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Intentional Wage Theft to Carry Increased Criminal Liability

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CALIFORNIA EMPLOYER UPDATE

By Chandra Winter, Business Litigation Associate at Lobb & Plewe Attorneys at Law

California employers often feel they are navigating a minefield when it comes to maintaining wage and hour compliance in the ever-changing landscape of California law. One of the latest changes to that landscape, AB 1003 was signed into law by Governor Newsom on September 27, 2021, and will go into effect as Section 487m of the Penal Code on January 1, 2022. This new Section 487m imposes harsh penalties, including potential jail time, for employers committing intentional wage theft. When changes to employment law take effect, there is always concern about the scope and applicability of those changes, and smart employers take the opportunity to review their current policies.  

While the new Section 487m on its face creates harsh penalties, there are some key points the average California employer should understand to alleviate concerns about the threat of jail time. Wage theft is defined in the section as the intentional deprivation of wages, gratuities, benefits, or other compensation by unlawful means with the knowledge that the wages are due to the employee. This definition introduces two main points, intentional deprivation, and knowledge that the wages are due to the employee. Although the term ‘intentional’ is not defined in the bill, other areas of California state law and provisions in the Labor Code require deliberate acts rather than an honest mistake. While comforting, this does not mean that the bill can be ignored given that this crime carries a potential prison sentence of up to three years in addition to allowing employees or the Labor Commissioner to seek redress through civil action. The second point, that there must be knowledge of the wages being due to the employee has also been addressed under current law but is not specifically addressed in the bill. Under the current legal framework, a good faith dispute regarding wages due precludes the imposition of penalties. These two points serve as protection for well-meaning employers following best practices to ensure that their employees are timely paid all wages owed.  

It is important to note that under Section 487m, the code defines an “employee” to include independent contractors, and  “employer” to include the hiring entity of an independent contractor this broader definition increases the type of employer who will be potentially liable under the bill. Additionally, the monetary amounts are the only limits placed, so employers of any number of employees need to ensure compliance as this bill is directed at all employers not only those that employ a larger number of employees. Section 487m makes an employer’s intentional wage theft of more than $950 from one employee, or $2,350 total from at least two employees, within a 12-month period, punishable as grand theft. The bill further allows wages, gratuities, benefits, or other compensation subject to the prosecution to be recovered as restitution. 

As with any change to the legal requirements regarding wages and employment, this bill should serve as a reminder that frequent reviews of your employment policies are the best way to protect yourself and your company. Now is a great time to review your policies and procedures to keep your company’s practices in line with the best practices related to California wage and hour law. This review should include policies related to all employees and independent contractors, policies for time entry and verification, payment of overtime wages, tracking of all tips and gratuities, and the delineation of discretionary and non-discretionary bonuses as appropriate. Our firm can assist your company in organizing a compliance review protocol as well as handling any claims or employment litigation.

The Inland Empire Business Journal (IEBJ) is the official business news publication of Southern California’s Inland Empire region - covering San Bernardino & Riverside Counties.

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Spectrum Reach Committing $15 Million to Support Small Businesses Across the Country

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In Ontario and Redlands, Spectrum Reach in partnership with the Inland Empire Regional Chamber of Commerce provides support and resources to the local businesses

Spectrum Reach, the advertising sales business for Charter Communications, is paying it forward, committing $15 million total in advertising and services to support small businesses across the country, including businesses in Ontario and Redlands.

Small businesses are the economic backbone of the communities we serve. They each add a unique characteristic, bringing people together to build stronger, more vibrant communities. One of the most impactful ways small businesses can support their communities is by supporting each other, and Spectrum Reach is doing its part to bring small businesses together and provide the extra support they need to grow, and communities need to thrive.

As part of Spectrum Reach’s mission to help local businesses thrive, now through the end of June, Spectrum Reach is once again committing $15 million in advertising, resources and creative support to provide small businesses with the full power of its local advertising expertise, products and services through the “Pay it Forward” program.

Spectrum Reach first introduced “Pay it Forward” last year, helping hundreds of multiculturally-owned businesses in communities across the country. This year, Spectrum Reach has expanded the program to include multicultural and women-owned businesses, doubling the number of participants and further empowering local businesses in communities large and small to thrive. By the end of 2022, Spectrum Reach will have helped more than 1,300 multicultural and women-owned business owners with the support, resources and tools they need for their business to grow and succeed through “Pay it Forward.”

In Ontario and Redlands, Spectrum Reach in partnership with the Inland Empire Regional Chamber of Commerce is providing support and resources to the local businesses below:

“The Inland Empire Regional Chamber of Commerce shares our dedication and commitment to providing local businesses with the support and resources they need to thrive,” said Melissa Beland-Roy, Director of Field Marketing, Spectrum Reach.  “Through our “Pay it Forward” program, we are helping businesses broaden their reach and grow their business, and build stronger, long-lasting relationships with the Inland Empire community.”

“Pay it Forward” Businesses in Ontario

  • Calvo Learning Centers
  • Damask Family Counseling and Consulting
  • Empire Epoxy
  • Trena Sells Homes

“Pay it Forward” Businesses in Redlands

  • Axe Slayers Throw House
  • City of Yucaipa
  • Clark’s Nutrition
  • Fan Diego
  • FPEM Consulting Services
  • Full Charge Business Solutions
  • Guardian Plumbers
  • Law Office of Joseph Richards
  • Nikki Watson – Realtor
  • Poindexter Consulting Group
  • Propane West Coast
  • Ranch RV and Self Storage
  • Re/Max Champions Victor And Carolina
  • Real Epic Photos
  • Ruff and Ready Moving and Storage
  • SAC Health
  • San Bernardino County Medical Society
  • Totally Kids Rehabilitation Hospital

“The Inland Empire Regional Chamber of Commerce is grateful for the continued support from Spectrum Reach. They have been a valuable partner for us over the years in their efforts to help local businesses. We look forward to continuing our relationship with Spectrum for many years to come!” said Edward Ornelas, Jr., President & CEO, Inland Empire Regional Chamber of Commerce.

The program offers businesses free dedicated support from a designated local Spectrum Reach sales representative, a three-month optimized TV schedule using Spectrum Reach’s award-winning AudienceApp media planning tool, and a personalized 30-second commercial through Waymark to use wherever they want —on their website, social media, and on TV – through the end of June.

Participating businesses also will have exclusive access to resources and insights on how to grow their business, including expert advice from Shark Tank star and “Pay it Forward” ambassador Daymond John.

More information about Spectrum Reach’s “Pay it Forward” program is available here.

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88% of Small Business Owners Say Inflation Is Impacting Their Business, According to Bank of America Small Business Owner Report

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Despite Concerns, 64% of Entrepreneurs Anticipate Revenue Growth and Business Expansion

A majority of small business owners report that inflation and supply chain disruptions are impacting their businesses, according to the Bank of America 2022 Small Business Owner Report. The survey of more than 1,000 business owners across the country—now in its 10th year—found that business owners are navigating operational challenges including price increases and loss of customers. Despite these difficulties, business outlook remains strong, with 64% anticipating their revenue will increase in the year ahead.

Conducted in March and April, the survey found:

  • 88% of business owners say inflation is currently impacting their business
  • 76% say supply chain issues are impacting their business
  • 31% are confident the national economy will improve, down from 50% in 2021
  • 39% are confident their local economy will improve, down from 56% in 2021

“Small business owners are betting on their businesses and seeking opportunities for expansion, despite concerns about the economy,” said Sharon Miller, President of Small Business and Head of Specialty Banking and Lending at Bank of America. “While facing a highly challenging environment, entrepreneurs are demonstrating resilience and adaptability as they focus on the operational and strategic decisions that directly impact their customers and employees.”

Economic Concerns and Recovery

Business owners are primarily concerned about key economic factors including inflation (80%), commodities prices (75%) and supply chain disruptions (64%), and this anxiety is dampening their overall outlook. Concerns over commodities prices, international affairs (61%) and interest rates (57%) all rose sharply this spring, while concerns over health care costs (57%) dipped to their lowest levels in the history of the SBOR.

While new challenges loom, entrepreneurs reported a steady recovery from the initial impacts of the pandemic. More than three-in-five business owners (62%) feel their business has fully or partially recovered from the pandemic, and nearly half (48%) cited increased consumer spending over the past year as a key driver in their recovery. Additionally, 70% of business owners plan to seek financing for their business in the year ahead, and 26% plan to hire, the highest percentage since fall 2018.

Inflation, Supply Chain and Labor Impact Operations

Most entrepreneurs say they’ve raised prices to sustain their business due to the impact of inflation and supply chain disruptions:

  • Nearly nine out of 10 (88%) business owners are feeling the impact of inflation, leading them to:  raise prices (68%); reevaluate cash flow and spending (34%); lose sales (31%)
  • Three-quarters (76%) of business owners reported supply chain issues are impacting their business operations, causing them to:  raise prices (58%); face difficulties sourcing products and supplies (49%); delay delivery of goods and services (43%)
  • Owners are also experiencing labor shortages, with 41% reporting impacts to their business, including the need for them to work more hours and difficulty filling open positions.

Interest in Emerging Technologies

Looking to the future, entrepreneurs believe new technologies will be critical to business growth and risk reduction. Business owners believe that cybersecurity platforms (57%), 5G (50%) and automation (39%) will be important for business success in the next decade. Business owners are also preparing to adapt their sales strategies to a digital-first world and, in the decade ahead, 44% plan to prioritize digital sales over brick and mortar.

Meanwhile, 70% of business owners have adopted new digital tools and strategies for their business in the past 12 months, including more business banking online or via mobile apps (52%), and accepting more forms of cashless payments (43%).

A Decade of Change and Commitment

This year marks the 10th anniversary of the SBOR. Over the last decade, business owners have operated in a challenging but rewarding business environment. A majority (72%) feel business ownership has become more difficult over the past decade, largely due to a dynamic and more competitive business landscape. Despite which, nearly half (46%) of entrepreneurs say they have been able to spend more time with their family, and 37% have set aside more personal wellness time, compared to a decade ago. Many entrepreneurs today (46%) are even in business with their spouse or partner, with the vast majority (96%) enjoying running their business together.

For an in-depth look at the insights of the nation’s small business owners, please read the full Bank of America 2022 Small Business Owner Report.

Providing a Business Advantage to Small Business Owners

Bank of America provides advice, solutions, access to capital and dedicated support to meet the unique needs of our 11 million business owner clients. According to the FDIC, Bank of America maintained its position as the nation’s top small business lender at the end of 2021, with $34.8 billion in total outstanding small business loans (defined as business loans in original amounts of $1 million and under).

Bank of America 2022 Small Business Owner Report

Ipsos Public Affairs conducted the Bank of America 2022 Small Business Owner Report survey online between March 22 and May 1, 2022 using a pre-recruited online sample of small business owners. Ipsos contacted a national sample of 1,037 small business owners in the United States with annual revenue between $100,000 and $4,999,999 and employing between two and 99 employees. In addition, approximately 250 small business owners were surveyed in each of ten target markets: Atlanta, Boston, Chicago, Dallas, Houston, Los Angeles, Miami, New York, San Francisco and Washington, D.C. The final results for the national and designated market area segments were weighted to national benchmark standards for size, revenue and region.

Prior to 2016, previous waves of the Small Business Owner Report survey were conducted by telephone and while best efforts were made to replicate processes, differences in sample, weighting and method suggests caution when making direct statistical comparisons of the results from pre-2016 and post-2016.

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Tax Updates and Planning Ideas for 2022

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As we launch into the second quarter of the year, there are many new and proposed laws which impact or may impact businesses and wealthy individuals. Lobb & Plewe will do our best to keep you updated as we move forward.

Proposed Federal Tax Law Changes:

On March 28, 2022, President Biden released his fiscal year 2023 budget (the “2023 Budget”) which consists of approximately $5.7 trillion in spending. The U.S. Treasury has released the “Green Book,” which provides details related to revenue provisions in the 2023 Budget. The revenue proposals in the 2023 Budget rely on a baseline that presumes enactment of the revenue provisions in the Build Back Better Act (the “BBBA”) as passed by the House of Representatives on November 19, 2021.

The revenue proposals described in the Green Book are intended to be in addition to the provisions in the BBBA. This is a curious story line because the BBBA stalled in the Senate at the end of 2021 and never became law.

It is up to Congress to pass a budget so the revenue proposals in the 2023 Budget may be included in future legislation. The way the proposed budget is being presented by the Administration appears to be a plea for Congress to enact pieces of the BBBA in order to declare a win in the context of the failed proposed legislation in 2021.

To raise revenue to pay for the spending contained in the FY2023 Budget, high-net-worth individuals and businesses are the piggy bank. The focus of the revenue raising proposals, encompass raising individual tax rates, raising capital gain and qualified dividend rates, taxing exchanges between grantors and grantor trusts, imposing restrictions on grantor retained annuity trusts and taxing dispositions of appreciated property at death. A summary of the proposed changes of interest to high-net-worth individuals include the following:

  • An increase in the C corporation tax rate from 21% to 28%.
  • An increase to the top marginal individual income tax rate from 37% to 39.6%. For taxable year 2023, the rate would apply to taxable income over $450,000 for married individuals filing jointly ($225,000 for married individuals filing separately), $425,000 for head of household filers and $400,000 for single filers. This proposal will be effective for taxable years beginning after December 31, 2022.
  • A limitation on gain deferred under IRC section 1031 to $500,000 for a single filer and $1MM for married individuals filing a joint return per taxpayer per year.
  • The imposition of ordinary income tax rates on long-term capital gains and qualified dividends for taxpayers with taxable income exceeding $1MM. If the proposal for raising the ordinary income tax rate to 39.6 % becomes law, then the maximum tax rate on capital gains would effectively be 43.4% (39.6% plus net investment income tax rate of 3.8%).
  • The application of ordinary income tax rates and self-employment tax for partners with taxable income from all sources exceeding $400,000. This subjects a partner’s allocable share of income from profits interests in investment partnerships such as carried interest to tax as ordinary income and self-employment tax regardless of the character of the income at the partnership level.
  • A wealth tax which consists of a minimum tax of 20% on taxable income, inclusive of unrealized capital gains, for taxpayers with a net worth in excess of $100 million. Payments of the minimum tax will be treated as a prepayment available to be credited against taxes on future realized capital gains. The minimum tax liability in subsequent years will equal 20% of (1) the taxpayer’s taxable income and unrealized gains reduced by (2) the taxpayer’s unrefunded, uncredited prepayments and regular tax. The tax due for the first year can be paid in nine equal annual installments. For subsequent years, the minimum tax could be paid in five equal annual installments.
  • The proposal does not eliminate the $500,000 exclusion currently available to joint filers nor the $250,000 for unmarried filers, upon the sale of their principal residence. It also does not eliminate the current exclusion on the sale of qualified small business stock under IRC 1202.

Estate Planning Changes:

Once again, the Administration seeks to limit estate tax planning. The proposal includes the following in the context of estate planning:

Transfers of appreciated assets by gift or death will be treated as realization events subject to capital gains tax, subject to a $5MM per donor lifetime exclusion. The proposal to tax unrealized capital gains on transferred appreciated property upon the occurrence of certain realization events, include:

  • Transfers of appreciated property by gift.
  • Transfers of appreciated property on death.
  • Transfers of property to, or distributions of property from, trusts, other than wholly revocable trusts.
  • Distributions of property from a revocable grantor trust to any person other than the deemed owner or U.S. spouse of the deemed owner, other than distributions made in discharge of an obligation of the deemed owner.
  • Terminations of a grantor’s ability to revoke a trust at death or during life.
  • Transfers of property to, and distributions of property from, partnerships or other non-corporate entities if the transfer is a gift to the transferee.
  • Recognition of gain on the unrealized appreciation of property held by trusts, partnerships or other non-corporate entities.

The proposal allows for some exclusions which include the following:

  • Transfers by a donor or decedent to a U.S. spouse will not be a taxable event, and the surviving spouse will receive the decedent’s carryover basis. The surviving spouse will recognize the gain upon disposition or death.
  • Transfers to charity will not generate a taxable capital gain. Transfers to a split interest trust, such as a charitable remainder trust, will generate a gain with an exclusion allowed for the charity’s share of the gain. Transfers of tangible personal property, such as household furnishings and personal effects are excluded. This exclusion does not include collectibles.
  • Once a donor has exhausted the lifetime gift exemption, the proposal allows a $5MM per donor exclusion from the recognition of additional unrealized capital gain on property transferred by gift or held at death. Any unused exemption by a deceased spouse would be portable to the surviving spouse, effectively making the exclusion $10 million per couple. This additional exclusion amount would be indexed for inflation after 2022. The transferee’s basis in the property shielded by this exemption will be the fair market value of the property at the time of the gift or the decedent’s death.

If passed into law, the proposal will be effective for transfers by gift, and on property owned at death by decedents dying after December 31, 2022, and on property owned by trusts, partnerships and other non-corporate entities on January 1, 2023.

The proposal allows payment of the tax on the appreciation of certain family owned and operated businesses to be deferred until the business is sold or ceases to be family owned and operated. The capital gains tax on appreciated property transferred at death is eligible for a 15-year fixed rate payment plan. Family businesses electing the deferral will not be eligible for the payment plan. Furthermore, contributions of appreciated property to charitable remainder trusts, will no longer have the favorable tax treatment afforded under current law.

Planning in 2022:

We are back to the same looming uncertainty experienced in 2021 as to how to plan for taxable events and estate tax. Because of Democrats not coming together to support the full BBBA, the manner in which the BBBA has been delivered to Congress by the Administration, it is clear the Administration is looking for pieces of the BBBA to be consumed in the final budget. Some of the “pieces” such as the wealth tax have been altered, but the underlying theme of raising taxes on companies and individuals to cover the massive budget remain. Which pieces will survive? Guessing could be costly so my mantra of “plan for the worst and hope for the best” will be repeated this year.

As to the changes in tax rates, planning early is best. If the changes in capital gains are to occur, the changes may be made with a retroactive effective date. This was the push by Democrats in 2021. Contrary to the opinion of some legal pundits, Congress can enact retroactive tax legislation. The Supreme Court unanimously upheld a retroactive increase in the estate tax rate in the 1994 case of United States v. Carlton. There are a few hurdles, but it can be done.

As to estate tax planning, many people began the creation and funding of grantor trusts in 2021 but did not complete the effort when it became clear the BBBA was not going to get through the Senate. If you have begun the process of creating and funding a grantor trust, it is a good idea to pick up where you left off.

If you have not begun the process, now is the time. Like 2021, professional advisors assisting clients with estate planning will become overloaded with work and may stop taking in new matters earlier in the year than normal.

In the context of estate planning, the revenue generating provisions of the 2023 Budget materially alters the rules for recognition of income when it comes to capital assets. Under current law, there generally must be a sale or exchange of property to generate a capital gain. The proposal will “deem” a sale when there was no sale. You must consider an estate’s likely liquidity. To pay the tax, the taxpayer will need cash to pay the capital gains tax. If the estate will not have sufficient cash, life insurance options must be considered.

Sales between a grantor and the grantor’s intentionally defective trust are not currently taxable events. The proposal will recognize such sales and require the seller to recognize gain on the sale of appreciated assets. It is imperative to understand the size of a taxable estate under the current rules as opposed to the rules which will exist if the 2023 Budget is passed in order to evaluate the planning which needs to be accomplished. An updated financial plan will be a great place to start.

The proposal will overturn IRS Revenue Ruling 85-13, which disregarded transactions between a grantor and the grantor’s trust for income tax purposes. This proposal will not be retroactive to transactions which occur before passage of the 2023 Budget. Under no circumstances should planning of this nature be delayed to the end of the year. Hastily structuring installment sales into grantor trusts is not prudent.

This article briefly touches on some of the provisions of the 2023 Budget and the fallout for companies and wealthy individuals, but it should spur some concern to plan now and not wait for the end of the year to see how things are going to settle. We are already in the second quarter of the year and it is not advisable to wait to the fourth quarter to start planning so we are left with five months to start and finish a comprehensive strategy to deal with the 2023 Budget. Provisions will obviously change but there will be a budget and the attack on companies and wealthy individuals will be a source of revenue funding.

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