From the Atlanta Journal Constitution
The U.S. Senate late Wednesday unanimously passed legislation extending unemployment benefits and also significantly expanding a homebuyer tax credit that was championed by Republican U.S. Sen. Johnny Isakson of Georgia.
The Senate voted 98-0 to extend unemployment benefits for the jobless by up to 20 weeks. In states with unemployment rates of 8.5 percent and above -- in Georgia the unemployment rate is 10.1 percent -- the jobless could receive up to 99 weeks of benefits, which average about $300 per week. Read more.
Thursday, November 5, 2009
NLBMDA ALERT: Tell Congress to Oppose Health Care Tax Hikes on Small Business
BACKGROUND: The House Democratic leadership has unveiled their final health care reform legislation, with a vote expected before Veterans' Day - and possibly as early as this weekend. Unfortunately, the "Affordable Health Care for America Act" (H.R. 3962) contains numerous onerous provisions that will only drive up the costs for small businesses and penalize employers, rather than addressing health care costs in a meaningful way.
Some major areas of concern in H.R. 3962 for small businesses:
* Employer Mandate: Employers will be required to offer health care to full and part-time employees. All employers with a payroll of $500,000 or more will pay a payroll tax of up to 8 percent if they do not provide "qualified" health insurance to their employees.
* "Pay-or-Play": Employers who do offer benefits may still be subject to penalties if they do not offer "qualified" individual and family coverage, meet premium contribution requirements of at least 72.5% for individuals and 65% for family plans, and offer a "qualified" plan as defined by a government-appointed board. If an employee declines coverage from their employer and instead obtain coverage through the exchange, the employer will be subject to a payroll tax penalty of up to 8 percent. An employer who offers coverage other than the "qualified" plan can be assessed a penalty of $100 per employee per day, up to $500,000.
* Surtax on Small Businesses: The bill contains a surtax on individuals with incomes of $500,000 single/$1 million joint - which will also impact the 75 percent of small businesses who are structured as pass-through entities and pay their business taxes at the individual level.
* 1099 Reporting Requirements: H.R. 3962 includes increased corporate reporting requirements that will mandate that companies issue a Form 1099 to all corporations from whom they purchase goods or services, once a $600 per year per vendor threshold has been reached.
TAKE ACTION: Visit www.BuildtheVote.org to quickly send an email message to your Representative asking him/her to vote NO on H.R. 3962. You can also call your legislators through the Capitol Switchboard at 202-224-3121.
Some major areas of concern in H.R. 3962 for small businesses:
* Employer Mandate: Employers will be required to offer health care to full and part-time employees. All employers with a payroll of $500,000 or more will pay a payroll tax of up to 8 percent if they do not provide "qualified" health insurance to their employees.
* "Pay-or-Play": Employers who do offer benefits may still be subject to penalties if they do not offer "qualified" individual and family coverage, meet premium contribution requirements of at least 72.5% for individuals and 65% for family plans, and offer a "qualified" plan as defined by a government-appointed board. If an employee declines coverage from their employer and instead obtain coverage through the exchange, the employer will be subject to a payroll tax penalty of up to 8 percent. An employer who offers coverage other than the "qualified" plan can be assessed a penalty of $100 per employee per day, up to $500,000.
* Surtax on Small Businesses: The bill contains a surtax on individuals with incomes of $500,000 single/$1 million joint - which will also impact the 75 percent of small businesses who are structured as pass-through entities and pay their business taxes at the individual level.
* 1099 Reporting Requirements: H.R. 3962 includes increased corporate reporting requirements that will mandate that companies issue a Form 1099 to all corporations from whom they purchase goods or services, once a $600 per year per vendor threshold has been reached.
TAKE ACTION: Visit www.BuildtheVote.org to quickly send an email message to your Representative asking him/her to vote NO on H.R. 3962. You can also call your legislators through the Capitol Switchboard at 202-224-3121.
SCAM ALERT: PHONY TRUSS ORDERS
SCAM ALERT
Scammers are targeting the truss portion of the industry. More than 40 companies have been contacted by the scammers, and one company may have lost money because of it. We urge you to be extremely vigilant in screening potential customers!
Be on the watch for these warning signs:
• Emails from an individual asking for pricing on a large quantity of trusses (e.g., 200). He may attach a picture of a truss. Often, the requestor claims to be a Reverend representing the Presbyterian Church of God. However, in the most recent wave, the scammers have had normal names (e.g., Dave Weliam).
• The requestor says he is making arrangements with a freight company to pick up the order.
• At some point the requestor will ask if you accept credit cards and may even send you a credit card number. He will likely instruct you to pre-pay the freight company, and add the freight charges to his final invoice.
Please forward this email to anyone in your company that receives email and has contact with customers. The U.S. Federal Trade Commission, Better Business Bureau and the FBI have many resources on how to avoid falling victim to email fraud. You can also file a fraud complaint on any of these websites.
Scammers are targeting the truss portion of the industry. More than 40 companies have been contacted by the scammers, and one company may have lost money because of it. We urge you to be extremely vigilant in screening potential customers!
Be on the watch for these warning signs:
• Emails from an individual asking for pricing on a large quantity of trusses (e.g., 200). He may attach a picture of a truss. Often, the requestor claims to be a Reverend representing the Presbyterian Church of God. However, in the most recent wave, the scammers have had normal names (e.g., Dave Weliam).
• The requestor says he is making arrangements with a freight company to pick up the order.
• At some point the requestor will ask if you accept credit cards and may even send you a credit card number. He will likely instruct you to pre-pay the freight company, and add the freight charges to his final invoice.
Please forward this email to anyone in your company that receives email and has contact with customers. The U.S. Federal Trade Commission, Better Business Bureau and the FBI have many resources on how to avoid falling victim to email fraud. You can also file a fraud complaint on any of these websites.
Wednesday, November 4, 2009
Georgia Appellate Court Voids Restrictive Covenant in Employment Contract
10/5/2009
By Diane Cadrain
The Georgia Court of Appeals voided the noncompetition clause in an employment contract, finding that it was overbroad because it failed to properly limit the territory to which it applied.
Mary Squire worked as a tax professional at an H & R Block office in Gainesville, Georgia. Her job required her to prepare and file tax returns for individual Block clients. After four months of this work, Block hired her as the office manager for her office for the 2008 tax season. In her capacity as an office manager, Squire had access to Block's client database for the entire Gainesville District. Her employment contract for the office manager job contained certain post-employment restrictive covenants, including noncompetition and nonsolicitation clauses, which barred her from setting up or working for a competing business within 10 miles from Block's Gainesville district and soliciting Block clients.
In early December 2008, Squire resigned from Block, but worked for approximately two more weeks after giving her notice of her resignation.
During that time she continued to have access to the Block client database for the Gainesville District.
In early January 2009, Squire's former district manager at Block saw Squire pictured, together with other former Block employees, in an advertisement for Paramount. The ad referred to Paramount's "tax professionals, pictured above." Shortly thereafter, Paramount sent out a business-solicitation letter to almost 6,000 people, offering them $30 off on tax preparation services, and stating that many recipients of the letter may have used Paramount's professionals when they previously worked at "another company around the block." The letter then gave the names of Paramount's "Tax Preparers," each of whom was a former Block employee, and specified the Paramount location where each individual was working.
Block sued Squire and Paramount for breach of the contract covenants. A trial court ruled that the covenants were enforceable and that Squire had breached them. Squire and Paramount appealed.
The appellate court first addressed whether the restrictive covenants in Squire's employment contract were enforceable. Such covenants, the court stated, will be enforced only if they are reasonable as to: (1) duration;
(2) the capacity in which the employee is prohibited from competing against his former employer; and (3) the geographic territory in which the former employee is restricted from working.
Applying these principles, the appellate court found that the restrictive covenants were unenforceable because the noncompetition clause was overbroad in that it failed to properly limit the territory to which it applied.
To be enforceable, the court said, a non-competition clause must contain a territorial limitation sufficient to give the employee notice of what constitutes a violation by specifying the territory in which the employee's conduct is restricted.
Squire's contract barred her from working for any employer whose business included the preparation and electronic filing of income-tax returns, if that employer was located, conducted business, or solicited business in Block's Gainesville District or within 10 miles of its borders. But, the court said, the contract failed to limit the prohibited conduct to a specific geographic area. In fact, on its face, according to the court, the contract language would have prevented Squire from accepting employment anywhere in the United States, if her prospective employer engages in the preparation and electronic filing of tax returns and also either has an office or advertises in, or within ten miles of, Block's Gainesville District.
Significantly, the court stated, the restriction would apply even if Squire were not going to work at a location within ten miles of the district. It would bar Squire from accepting employment, for example, at the Atlanta, Savannah, Macon, or Columbus office of a statewide tax preparation or accounting firm, if that firm also had an office in or advertised within ten miles of the Gainesville District. Similarly, assuming that one or more of Block's national competitors has offices or advertises within ten miles of the Gainesville District, this language would prevent Squire from accepting a position with such an entity, even if she were relocating out-of-state.
In light of those provisions, the court found that the contract overprotected Block's business interest in the customer relationships Squire may have developed while at Block, and it did so at the expense of her right to earn a living and her ability to determine with certainty the area within which [her] post-employment actions are restricted.
Given its overbreadth, the noncompetition covenant contained in Squire's employment contract was unenforceable as a matter of law, the court concluded. And because the noncompetition clause was unenforceable, the nonsolicitation clause included in the agreement was likewise unenforceable.
The Court of Appeals reversed the lower court's findings.
About the author.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.
Editor's Note: This article should not be construed as legal advice.
Paramount Tax & Accounting, LLC v. H & R Block Eastern Enterprises, Inc., Ga. Ct. App., No. A09A1542 (Aug. 6, 2009).
By Diane Cadrain
The Georgia Court of Appeals voided the noncompetition clause in an employment contract, finding that it was overbroad because it failed to properly limit the territory to which it applied.
Mary Squire worked as a tax professional at an H & R Block office in Gainesville, Georgia. Her job required her to prepare and file tax returns for individual Block clients. After four months of this work, Block hired her as the office manager for her office for the 2008 tax season. In her capacity as an office manager, Squire had access to Block's client database for the entire Gainesville District. Her employment contract for the office manager job contained certain post-employment restrictive covenants, including noncompetition and nonsolicitation clauses, which barred her from setting up or working for a competing business within 10 miles from Block's Gainesville district and soliciting Block clients.
In early December 2008, Squire resigned from Block, but worked for approximately two more weeks after giving her notice of her resignation.
During that time she continued to have access to the Block client database for the Gainesville District.
In early January 2009, Squire's former district manager at Block saw Squire pictured, together with other former Block employees, in an advertisement for Paramount. The ad referred to Paramount's "tax professionals, pictured above." Shortly thereafter, Paramount sent out a business-solicitation letter to almost 6,000 people, offering them $30 off on tax preparation services, and stating that many recipients of the letter may have used Paramount's professionals when they previously worked at "another company around the block." The letter then gave the names of Paramount's "Tax Preparers," each of whom was a former Block employee, and specified the Paramount location where each individual was working.
Block sued Squire and Paramount for breach of the contract covenants. A trial court ruled that the covenants were enforceable and that Squire had breached them. Squire and Paramount appealed.
The appellate court first addressed whether the restrictive covenants in Squire's employment contract were enforceable. Such covenants, the court stated, will be enforced only if they are reasonable as to: (1) duration;
(2) the capacity in which the employee is prohibited from competing against his former employer; and (3) the geographic territory in which the former employee is restricted from working.
Applying these principles, the appellate court found that the restrictive covenants were unenforceable because the noncompetition clause was overbroad in that it failed to properly limit the territory to which it applied.
To be enforceable, the court said, a non-competition clause must contain a territorial limitation sufficient to give the employee notice of what constitutes a violation by specifying the territory in which the employee's conduct is restricted.
Squire's contract barred her from working for any employer whose business included the preparation and electronic filing of income-tax returns, if that employer was located, conducted business, or solicited business in Block's Gainesville District or within 10 miles of its borders. But, the court said, the contract failed to limit the prohibited conduct to a specific geographic area. In fact, on its face, according to the court, the contract language would have prevented Squire from accepting employment anywhere in the United States, if her prospective employer engages in the preparation and electronic filing of tax returns and also either has an office or advertises in, or within ten miles of, Block's Gainesville District.
Significantly, the court stated, the restriction would apply even if Squire were not going to work at a location within ten miles of the district. It would bar Squire from accepting employment, for example, at the Atlanta, Savannah, Macon, or Columbus office of a statewide tax preparation or accounting firm, if that firm also had an office in or advertised within ten miles of the Gainesville District. Similarly, assuming that one or more of Block's national competitors has offices or advertises within ten miles of the Gainesville District, this language would prevent Squire from accepting a position with such an entity, even if she were relocating out-of-state.
In light of those provisions, the court found that the contract overprotected Block's business interest in the customer relationships Squire may have developed while at Block, and it did so at the expense of her right to earn a living and her ability to determine with certainty the area within which [her] post-employment actions are restricted.
Given its overbreadth, the noncompetition covenant contained in Squire's employment contract was unenforceable as a matter of law, the court concluded. And because the noncompetition clause was unenforceable, the nonsolicitation clause included in the agreement was likewise unenforceable.
The Court of Appeals reversed the lower court's findings.
About the author.
Diane Cadrain is an attorney who has been writing about employment law issues for more than 20 years. She is a member of the Human Resource Association of Central Connecticut.
Editor's Note: This article should not be construed as legal advice.
Paramount Tax & Accounting, LLC v. H & R Block Eastern Enterprises, Inc., Ga. Ct. App., No. A09A1542 (Aug. 6, 2009).
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Tuesday, November 3, 2009
News You Can Use
Product Information: Stanley and Blecker Decker to Merge
The Stanley Works and Black & Decker announced today they will merge to create Stanley Black & Decker, an $8.4 billion global tool company. The deal is worth $4.5 billion, the companies said in a joint news release. Read more.
September Construction Spending Up 0.08%
Construction spending in September posted a better-than-expected performance, powered by the largest jump in housing construction in more than six years.
The advance spurred hope that the battered housing sector is starting to turn around and will provide support for the overall economy as it struggles to emerge from the worst recession since the 1930s. Read more.
Employment costs rise at slowest pace since 1982
Employment costs rose by the smallest amount on record in the 12 months ending in September, as high unemployment restrained wage and benefit growth.
The data shows that employers face little pressure to raise pay, even as the economy recovers. The weak labor market makes it difficult for people with jobs to demand higher pay and benefits. Read more.
Have you seen EcoHome?
The Stanley Works and Black & Decker announced today they will merge to create Stanley Black & Decker, an $8.4 billion global tool company. The deal is worth $4.5 billion, the companies said in a joint news release. Read more.
September Construction Spending Up 0.08%
Construction spending in September posted a better-than-expected performance, powered by the largest jump in housing construction in more than six years.
The advance spurred hope that the battered housing sector is starting to turn around and will provide support for the overall economy as it struggles to emerge from the worst recession since the 1930s. Read more.
Employment costs rise at slowest pace since 1982
Employment costs rose by the smallest amount on record in the 12 months ending in September, as high unemployment restrained wage and benefit growth.
The data shows that employers face little pressure to raise pay, even as the economy recovers. The weak labor market makes it difficult for people with jobs to demand higher pay and benefits. Read more.
Have you seen EcoHome?
NLBMDA News
Pelosi Unveils House Health Care Bill
Last week, the Democratic House leadership unveiled their nearly-final draft health care reform bill. The bill makes some improvements to the employer mandate, by doubling the floor for penalties on small businesses for not providing health care benefits to employees and dependents. Previously, the penalties began at $250,000 in total wages; now, they begin at $500,000 in wages. Read more.
CPSC Issues Inconclusive Chinese Drywall Report
The Consumer Products Safety Commission (CPSC) last week issued a summary of its findings to date on the Chinese drywall investigation. An interagency task force, comprised of the CPSC, Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Centers for Disease Control and Prevention (CDC), Agency for Toxic Substance and Disease Registry (ATSDR) and state health departments have been coordinating research and governmental response to homeowners who have complained of health and metal and appliance corrosion in their homes. Read more.
OSHA Takes Initial Step Toward Combustible Dust Rule
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) just published an advance notice of proposed rulemaking (ANPR) in the Oct. 21 edition of the Federal Register as an initial step in development of a standard to address the hazards of combustible dust. Read more.
Home Builder Confidence Dips in October
With the expiration date for an important home buyer incentive approaching, builder confidence in the market for newly built, single-family homes slipped one point to 18 in October, according to the latest National Association of Home Builders/Wells Fargo Housing Market Index (HMI).
Read more.
Last week, the Democratic House leadership unveiled their nearly-final draft health care reform bill. The bill makes some improvements to the employer mandate, by doubling the floor for penalties on small businesses for not providing health care benefits to employees and dependents. Previously, the penalties began at $250,000 in total wages; now, they begin at $500,000 in wages. Read more.
CPSC Issues Inconclusive Chinese Drywall Report
The Consumer Products Safety Commission (CPSC) last week issued a summary of its findings to date on the Chinese drywall investigation. An interagency task force, comprised of the CPSC, Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Centers for Disease Control and Prevention (CDC), Agency for Toxic Substance and Disease Registry (ATSDR) and state health departments have been coordinating research and governmental response to homeowners who have complained of health and metal and appliance corrosion in their homes. Read more.
OSHA Takes Initial Step Toward Combustible Dust Rule
The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) just published an advance notice of proposed rulemaking (ANPR) in the Oct. 21 edition of the Federal Register as an initial step in development of a standard to address the hazards of combustible dust. Read more.
Home Builder Confidence Dips in October
With the expiration date for an important home buyer incentive approaching, builder confidence in the market for newly built, single-family homes slipped one point to 18 in October, according to the latest National Association of Home Builders/Wells Fargo Housing Market Index (HMI).
Read more.
Wednesday, October 21, 2009
News You Can Use - Product Information
Insurers dropping Chinese drywall policies
By BRIAN SKOLOFF, Associated Press
WEST PALM BEACH, Fla. - James and Maria Ivory's dreams of a relaxing
retirement on Florida's Gulf Coast were put on hold when they discovered
their new home had been built with Chinese drywall that emits sulfuric fumes
and corrodes pipes. It got worse when they asked their insurer for help -
and not only was their claim denied, but they've been told their entire
policy won't be renewed.
Thousands of homeowners nationwide who bought new houses constructed from
the defective building materials are finding their hopes dashed, their lives
in limbo. And experts warn that cases like the Ivorys', in which insurers
drop policies or send notices of non-renewal based on the presence of the
Chinese drywall, will become rampant as insurance companies process the
hundreds of claims currently in the pipeline. Read more.
By BRIAN SKOLOFF, Associated Press
WEST PALM BEACH, Fla. - James and Maria Ivory's dreams of a relaxing
retirement on Florida's Gulf Coast were put on hold when they discovered
their new home had been built with Chinese drywall that emits sulfuric fumes
and corrodes pipes. It got worse when they asked their insurer for help -
and not only was their claim denied, but they've been told their entire
policy won't be renewed.
Thousands of homeowners nationwide who bought new houses constructed from
the defective building materials are finding their hopes dashed, their lives
in limbo. And experts warn that cases like the Ivorys', in which insurers
drop policies or send notices of non-renewal based on the presence of the
Chinese drywall, will become rampant as insurance companies process the
hundreds of claims currently in the pipeline. Read more.
News You Can Use
Economists Forecast Strong Housing Growth
Experts at NAHB conference see a turnaround occurring by mid-2010, but the way back will be long
By Craig Webb, ProSales Online
The U.S. housing market appears to have bottomed out and looks likely to return closer to normal--but not boom--levels by 2012, a group of housing economists predicted today.
Enthusiasm with several strings attached was the prevailing mood expressed in presentations prepared for the National Association of Home Builders (NAHB) 2009 Fall Construction Forecast Conference. Read more.
Housing Starts Hold Steady in September
Total housing starts, expressed as a seasonally adjusted annual rate (SAAR), came in at 590,000, according to data released today by the Commerce Department. That's 0.5% ahead of the previous month -- which was adjusted downward, from 598,000 to 587,000.
If not for the downward adjustment of August starts, the total percentage would have declined 1.3%.
There was better news for builders, and their suppliers, in the single-family front. Single-family housing starts in September were at a rate of 501,000; this is 3.9% above the revised August figure. Moreover, the August figure was revised upward, from a previously stated 479,000 to 482,000.
Compared with September of last year, total starts declined 28.2%, and single-family starts declined 8.7%. Read more.
September housing construction rises 0.5 percent
By Martin Crutsinger
Source: Associated Press/AP Online
Construction of new homes edged up slightly in September, helped by a rebound in single-family construction. However, in a worrisome sign for future housing work, applications for building permits fell by the largest amount in five months. Read more.
More Signs of Economic Recovery
The decline in consumer spending on home renovation projects is tapering off, and remodeling activity should start to pick up early next year, according to a just-released study by Harvard’s Joint Center for Housing Studies.
The quarterly forecast pointed to several positive signs that could boost home improvement spending, causing a reversal in annual declines by the second quarter of 2010. Read more.
Experts at NAHB conference see a turnaround occurring by mid-2010, but the way back will be long
By Craig Webb, ProSales Online
The U.S. housing market appears to have bottomed out and looks likely to return closer to normal--but not boom--levels by 2012, a group of housing economists predicted today.
Enthusiasm with several strings attached was the prevailing mood expressed in presentations prepared for the National Association of Home Builders (NAHB) 2009 Fall Construction Forecast Conference. Read more.
Housing Starts Hold Steady in September
Total housing starts, expressed as a seasonally adjusted annual rate (SAAR), came in at 590,000, according to data released today by the Commerce Department. That's 0.5% ahead of the previous month -- which was adjusted downward, from 598,000 to 587,000.
If not for the downward adjustment of August starts, the total percentage would have declined 1.3%.
There was better news for builders, and their suppliers, in the single-family front. Single-family housing starts in September were at a rate of 501,000; this is 3.9% above the revised August figure. Moreover, the August figure was revised upward, from a previously stated 479,000 to 482,000.
Compared with September of last year, total starts declined 28.2%, and single-family starts declined 8.7%. Read more.
September housing construction rises 0.5 percent
By Martin Crutsinger
Source: Associated Press/AP Online
Construction of new homes edged up slightly in September, helped by a rebound in single-family construction. However, in a worrisome sign for future housing work, applications for building permits fell by the largest amount in five months. Read more.
More Signs of Economic Recovery
The decline in consumer spending on home renovation projects is tapering off, and remodeling activity should start to pick up early next year, according to a just-released study by Harvard’s Joint Center for Housing Studies.
The quarterly forecast pointed to several positive signs that could boost home improvement spending, causing a reversal in annual declines by the second quarter of 2010. Read more.
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