IRS Issues Seasonal Employee Guidance

On November 22, the IRS issued guidance to employers that hire seasonal workers.  Under the health care law, many employers may have questions as to whether they are subject to the law if they hire seasonal employees.  The issues hinges on whether the employer is an applicable large employer.

The IRS issued IRS Health Care Tax Tip 2016-77 to address this issue.  The key takeaway is:

“If you have at least 50 full-time employees, including full-time equivalent employees, on average during the prior year, your organization is an ALE. Here’s the exception: If your workforce exceeds 50 full-time employees for 120 days or fewer during a calendar year, and the employees in excess of 50 during that period were seasonal workers, your organization is not considered an ALE. For this purpose, a seasonal worker is an employee who performs labor or services on a seasonal basis.”

This guidance may offer some relief to small employers that hire seasonal workers.  As always, it’s important to understand your obligations as an employer under the ever changing legal landscape.

Oxford Commas and Contract Review

Gurinder Sangha, a lawyer and entrepreneur, has developed technology to allow lawyers to find ambiguities in contracts and other documents to help avoid loopholes and inconsistencies in the document.  The technology stems from the drafting nightmare that was the Patient Protection and Affordable Care Act (PPACA or ObamaCare).  More information about Sangha’s vision and the technology he has developed is available here.

Sangha’s technology is innovative.   As an attorney, Sangha understands that a drafter’s word choice or comma placement can make or break a contract and resulting relationship. (Take a look at the classic Oxford Comma dilemma here.)   He recognizes the importance of sound legal advice, while recognizing that unintentional drafting errors can cause confusion and cost parties time and legal fees.

The need for the technology underscores the need for thorough contract review during all stages of the contract: drafting, review, negotiation, implementation, and enforcement.  Having an attorney assist you throughout these stages may help to avoid future disputes.

If you have questions or would like to discuss how JVG Law can assist you with your contract issues, please contact our office.

Landlord/Tenant FYI: Can Rent Payments be Subject to Online Payment Fees?

On June 16, 2016, Ken Paxton, the Attorney General of Texas, issued an opinion (Opinion No. KP-0095) addressing whether a Real Property Owner (“Owner”) may impose a fee or charge on a tenant who uses an online payment option to pay rent and ancillary charges to the Landlord through a third-party vendor.  Specifically, the Attorney General addressed whether this fee or charge for paying online would constitute a prohibited surcharge on the use of credit or debit cards in violation of Section 339.001 of the Finance Code and section 604A.002 of the Business and Commerce Code.

The short answer:  Yes, online rent payments may be subject to fees or charges, so long as the fee or charge is uniformly charged to all online payments by an arms-length third-party payment processor.

To ensure compliance, the Attorney General cautioned that owners must take care to ensure that the online payment system is truly a third-party, arms-length transaction.  If the arrangement is truly an arms-length transaction, then the Owner would not be imposing an additional fee and would not violate the statutes. In this case, the third-party processor is charging the fee, not the Owner; therefore, there would likely be no violation of Section 339.001 of the Finance Code or section 604A.002 of the Business and Commerce Code.

If there is a question of whether the Owner is truly separate and autonomous from the third-party processor charging the fee, then, depending on the facts, the Owner and third-party processor may be determined to be one of the same. In this case, the Owner may be in violation of Section 339.001 of the Finance Code and section 604A.002 of the Business and Commerce Code.

This opinion is in accord with the Advisory Bulletin issued by The Texas Office of Consumer Credit Commissioner in June 2015, Bulletin B15-2.

This Advisory Bulletin recommends the following to ensure compliance with relevant laws:

  1. If the Owner contracts with a third-party payment processor to accept payments by credit card, the Owner should not contract to receive any portion of the fee charged by the processor, either directly or indirectly;
  2. Ensure that the relationship between the Owner and the third-party processor is an arms-length relationship that is limited to processing payments.  Otherwise, the tenant could claim that the Owner and third-party processor have a general agency or joint venture relationship; and
  3. Provide the Tenant with multiples means of payment, so that the Tenant is not required to pay the third-party processor’s fee. If an Owner requires the Tenant to make payments through the third-party processor, without any other option, and there is a fee associated with that form of payment, then there is an argument that the Owner is imposing a credit card surcharge.

Protecting Your Business and Personal Information

We use the internet for almost everything – business and personal – from communication to online banking and shopping.  Protecting your information while conducting your day to day business is essential to your personal and business well-being.

Education is important.  If you think the communication is suspicious, do some research. Remember the FTC has excellent resources, with examples of phishing scams, how to deal with the scams, and steps that you can take to avoid the scams.

You can find more good advice on how to protect your information here.