Government Intrusions

Federal Card Check Update

There is a chance that at the federal level, an Employee Free Choice Act (EFCA) vote could occur in June and we believe it is important for your U.S. Senators to continue to hear from you regarding EFCA.

This week U.S. Senator Tom Harkin (D-Iowa), a key proponent of EFCA, indicated that he may bring the original bill (S. 560) to a vote on the U.S. Senate floor if progress is not made on a potential compromise.  Several EFCA-related compromises have been floated but have not resonated including:  increased union access to worksites, and quick union elections (over a 10-14 day period) which significantly hampers the ability of employees to hear a balanced perspective from the union AND the employer.  Senator Harkin is trying to spur action on EFCA or an EFCA-related compromise, and we must remain engaged.

Tell California U.S. Senators Barbara Boxer and Diane Feinstein to oppose EFCA and that these rumored compromises are just as bad as the original bill.  Your continued emails, letters and phone calls have and will continue to make a difference!  Talking points on EFCA and some of compromise concepts are below.

The National Restaurant Association (NRA) and the business community are taking the U.S. Senator’s comments very seriously.  As talks of compromise continue, NRA will remain engaged, and help refine messaging. For now we encourage you to reinforce your opposition to EFCA and these early compromise concepts.

Background:

Under the “Employee Free Choice Act” (EFCA), H.R. 1409 and S. 560, employees effectively lose their right to private-ballot elections. While Congress has been hearing opposition from you and the entire Restaurant Action Network this year, please continue your communications to your lawmakers urging them to vote “no” on all votes related to EFCA.

Effect on Restaurants:

This legislation could fundamentally alter the workplace. Under the bill, employers would be required to recognize a labor union if a majority of employees signs cards saying they want to join. Workers would lose their current right to a private ballot vote when determining whether or not to participate in a union. Employers and employees would also have all wages and working conditions determined by a federal arbitrator under a binding two-year agreement.

HOW YOU CAN HELP!

1. Go to the Restaurant Action Network at www.restaurantactionnetwork.org and email your U.S. Senators and Representatives.  Login to the network and follow to the card check action alert and tool kit.  Send an email to your personal elected officials. Urge opposition to H.R. 1409 and S. 560.

2. Call Your Members of Congress: Specifically urge your members of Congress to vote “no on cloture” on the Employee Free Choice Act. Urge them to vote “no” on all votes related to the bill.

As always, let us know what actions you have taken and we can thank you for your efforts!

When taking action, please refer to the following talking points:

Again, please specifically urge your members of Congress to vote “no on cloture” on the Employee Free Choice Act. Urge them to vote “no” on all votes related to the original bill.

* Retention of the current federally-supervised private ballot process is critical to protecting working families from coercion or intimidation from union representatives, employers or both.
* The authorization card or “card check” process proposed under the Employee Free Choice Act denies workers their right to a private ballot vote when deciding whether to join or not join a union.
* The bill also includes extremely harmful “binding arbitration” language that would allow a federal arbitrator to unilaterally establish wages, health benefits, etc. for small businesses if the employer and the union don’t reach agreement within 90 days of a union being established.

Talking Points on Rumored “Compromise” Themes:

* Quickie Elections - A “quickie election” compromise would impose a limited timeframe to complete a secret ballot union recognition election. A short time table can virtually eliminate an employers’ ability to provide employees with adequate information about the union, respond to the union’s comments or unionization generally. Such a scheme allows professional union organizers to “campaign” for months, while providing employees with limited - if any - time to hear from their employer about potential downsides to unionization.

* Mail-in union authorization cards.  The National Labor Relations Board (NLRB) currently uses mail-in ballots in place of secret ballot elections held on the employer’s premises in rare circumstances where “eligible voters are scattered . . .  over a wide geographic area” or are otherwise “not present at a common location at common times” - and only then after considering various other factors.  NLRB career staff has mentioned several problems with the mail-in ballots, including “the potential interference by any party in a mail ballot situation…”  To top it off, statistics substantially lower participation rates by potential voters in mail-in ballots than in secret ballot elections

* ”Last best offer” arbitration.  While this differs somewhat from the original EFCA, binding arbitration still gives a government bureaucrat the ability to impose a labor contract—wages, hours, work rules, pension, etc—on American entrepreneurs.  Moreover, in choosing which offer is the most reasonable, the arbitrators will look to other unionized employers in the industry.  For example, if you are an auto maker, your offer will be compared to Ford, GM and Chrysler’s contracts, not their nonunion competitors.

For more information on this issue, please visit the business community’s Coalition for a Democratic Workplace (CDW) website at www.myprivateballot.com <http://www.myprivateballot.com/> .

Questions? Please contact Tim Ehlert at the National Restaurant Association (800) 424-5156, or email tehlert@restaurant.org.

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New I-9 Form Use Starts Today

U.S. Citizenship and Immigration Services announced that a revised Employment Eligibility Verification Form (I-9) is now available for use. All employers are required to complete a Form I-9 for each employee hired in the United States.

Employers are required to start using the revised Form I-9 today, April 3. Click here to download a copy of the form.

For more information and instructions for completeing the form, visit the USCIS website.

Popularity: 45% [?]

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New Law Extends Net Operating Loss Carryback for Small Businesses

The Internal Revenue Service announced today that small businesses with deductions exceeding their income in 2008 can use a new net operating loss tax provision to get a refund of taxes paid in prior years.

To accommodate the change in tax law, the IRS today updated the instructions for two key forms - Forms 1045 and 1139 — that small businesses can use to make use of the special carryback provision for tax year 2008. These forms are used to accelerate the payment of refunds.

The new provision, enacted as part of the American Recovery and Reinvestment Act of 2009, enables small businesses with a net operating loss (NOL) in 2008 to elect to offset this loss against income earned in up to five prior years. Typically, an NOL can be carried back for only two years. The IRS released legal guidance today in Revenue Procedure 2009-19 outlining specific details.  Some taxpayers must make the election to use this special carryback by April 17, 2009.

“The new net operating loss provisions could throw a lifeline to struggling businesses, providing them with a quick infusion of cash,” said IRS Commissioner Doug Shulman. “We want to make it as easy as possible for small businesses to take advantage of these key tax benefits.”

With the economic downturn and the new law, the IRS expects record numbers of small businesses to be eligible for the refunds. The IRS is putting in special steps to ensure timely processing of these refunds to help small businesses during this difficult period.

Small businesses with large losses in 2008 may be able to benefit fully from those losses now, rather than waiting until claiming them on future tax returns.

The normal two-year carryback remains available if the small business does not elect the special carryback provision.  If the loss exceeds the income for the carryback period, the taxpayer can continue to carry forward the remaining balance of the NOL for up to 20 years.

For small businesses that use a fiscal year, this special carryback may be used for an NOL in either a tax year that ends in 2008 or a tax year that begins in 2008.  Once a taxpayer makes this election, it may not be changed.

To qualify for the new five-year carryback provision, a small business must have no greater than an average of $15 million in gross receipts over a three-year period ending with the tax year of the NOL.  Businesses with more than $15 million in gross receipts still qualify to carry back their 2008 NOL for two years.

There are several methods that a small business uses to elect the new provision as detailed in the Revenue Procedure.

If a small business previously elected to waive the carryback of 2008 NOL but now wants to elect this special carryback, the small business may revoke its previous election to waive the carryback.  The election revocation must be made on or before April 17, 2009.

Generally small businesses that are not corporations (including sole proprietorships filing schedule C with their Form 1040) may accelerate a refund by using Form 1045, Application for Tentative Refund.

Corporations with NOLs may also accelerate a refund by using Form 1139, Corporation Application for Tentative Refund.

The IRS will be closely monitoring these filings and will provide additional staff as needed to process these forms. The IRS will work to issue refunds within 45 days or even earlier to the degree possible.

In addition, Frequently Asked Questions have been posted on the IRS.gov web site.  Small businesses that file Form 1040 can also call 1-800-829-1040 with NOL questions. Corporations can contact 1-800-829-4933 with NOL questions.

Form 1045 or Form 1139, whichever the taxpayer uses, generally must be filed within one year after the end of the tax year of the NOL. In addition, the current year’s tax return must be filed by the date the Form 1045 or Form 1139 is filed.  Form 1045 and Form 1139 are filed at the same place the taxpayer’s return is filed, as listed on the return instructions.

Accelerated refunds paid via Form 1045 or Form 1139 is described as “tentative” because the applications for refunds are potentially subject to review at a later date. Form 1045 Instructions and Form 1139 Instructions on www.IRS.gov provide more information on the accelerated refund option.

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New FMLA Rules

10 Important Revisions

The Department of Labor has released final regulations covering the Family and Medical Leave Act (FMLA) and addressing new military family leave entitlements for employees.

The department says that many of the revisions were designed to clarify the requirements that the FMLA imposes on both employees and employers and to improve the communication between employers and employees.

Here are summaries of some of the significant revisions included in the final rules.

Serious Health Condition: While the rule retains the six individual definitions of “serious health condition,” it adds guidance on some regulatory matters. First, it clarifies that if an employee is taking leave involving more than three consecutive calendar days of incapacity plus two visits to a healthcare provider, the two visits must occur within 30 days of the period of incapacity. Second, it defines “periodic visits to a healthcare provider” for chronic serious health conditions as at least two visits to a healthcare provider per year.

Intermittent Leave: The final rule clarifies that employees who take intermittent FMLA leave have a statutory obligation to make a “reasonable effort” to schedule such leave so as not to disrupt unduly the employer’s operations.

Employee Notice: The final rule states that when an employee becomes aware of a need for FMLA leave less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day. When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

Gaps in Service: The final rule adds a new paragraph that addresses the requirement that employees are eligible to take FMLA leave only if they have been employed by the employer for at least 12 months and have at least 1,250 hours of service in the 12-month period preceding the leave. The final rule states that, although the 12 months of employment need not be consecutive, employment prior to a continuous break in service of seven years or more need not be counted.

Light Duty: Under the final rule, time spent in “light duty” work does not count against an employee’s FMLA leave entitlement, and the employee’s right to job restoration is held in abeyance during the light duty period. If an employee is voluntarily doing light duty work, he or she is not on FMLA leave.

Perfect Attendance Awards: The final rule changes how perfect attendance awards are treated to allow employers to deny a “perfect attendance” award to an employee who does not have perfect attendance because he or she took FMLA leave–but only if the employer treats employees taking non-FMLA leave in an identical way.

Medical Certification: In the final rule, the department adopted a change that allows employers to contact the employee’s healthcare provider directly. An employer may contact the employee’s healthcare provider for two purposes only: clarification and authentication of the medical certification. The employer may request no additional information beyond that included in the certification form

In response to privacy concerns expressed by employees, the department added a requirement to the final rule that specifies the employer’s representative contacting the employee’s healthcare provider must be a human resource professional, a leave administrator, or a management official, but in no case may it be the employee’s direct supervisor.

The revision also specifies that the employee is not required to permit his or her healthcare provider to communicate with the employer. However, if the employee denies the employer permission and doesn’t otherwise clarify an unclear certification, the employer may deny the designation of FMLA leave. However, prior to making any contact with the healthcare provider, the employer must first provide the employee an opportunity to resolve any deficiencies in the certification.

Fitness for Duty Certification: The final regulation also clarifies that employers may require a fitness-for-duty certification to address an employee’s ability to perform essential job functions. However, if the employer does have such a requirement, the employer must provide the employee with a list of those essential job functions no later than the “designation notice” and specify in the designation notice that the fitness-for-duty certification must address the employee’s ability to perform those essential functions.

Military Caregiver Leave: Implements the requirement to expand FMLA protections for family members caring for a covered service member with a serious injury or illness incurred in the line of duty on active duty. These family members are able to take up to 26 workweeks of leave in a 12-month period.

Leave for Qualifying Exigencies for Families of National Guard and Reserves: The law allows families of National Guard and Reserve personnel on active duty to take FMLA job-protected leave to manage their affairs–”qualifying exigencies.” The rule defines “qualifying exigencies” as: (1) short-notice deployment (2) military events and related activities (3) childcare and school activities (4) financial and legal arrangements (5) counseling (6) rest and recuperation (7) post-deployment activities and (8) additional activities where the employer and employee agree to the leave.

The final regulations are scheduled to be published in the November 17, 2008, edition of the Federal Register and will become effective 60 days from that date. The final rule also contains revised forms for employers.

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Texas Minimum Wage Increase Set For July 24

The minimum wage rate will increase to $6.55 on July 24, 2008. The cash wage for tipped employees will remain at $2.13, however the overtime rate for tipped employees will increase.

The federal minimum wage will increase to $7.25 on July 24, 2009.

continue

Popularity: 100% [?]

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Restaurants To Benefit From Stimulus Bill

WASHINGTON (Feb. 8, 2008) Restaurants would be able to write off 50 percent of their 2008 equipment purchases and expense up to $250,000 of their investments in new buildings or other tangible property under the economic stimulus bill that President Bush said he will sign into law next week.

The measure also provides tax rebates of $600 for individuals making $75,000 or less per year or $1,200 for couples earning no more than $150,000. Families would receive another $300 per child. The rebates are reduced for persons above those income thresholds.

The rebate checks are scheduled to be mailed starting in early May. Some observers have said the rebates should have a positive short-term effect on restaurants’ top lines as consumers use the newfound money in part for dining out. But they say the upswing in sales fizzle out once the rebates are spent.

The bipartisan stimulus bill, first proposed by President Bush just two weeks ago, is expected to pump more than $152 billion into the economy.

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Ron Paul For President?

A drop in college tuition doesn’t look too promising for the near future, but this upcoming election Texas Senator Ron Paul is fighting on the side of many students who work in the service industry, as he introduces the Tax Free Tips Act, a law that would exempt all workers from being taxed on the tips they receive.
Read full story here…

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New I-9 Forms Released

U.S. Citizenship and Immigration Services, a division of the Department of Homeland Security, unveiled a revised I-9 Nov. 7th. It also released an updated handbook to help employers complete the I-9.

You can get them by clicking on the links below:

New I-9 and Handbook

Spanish Version

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6 States Adjust Minimum Wage

Relevant Jurisdictions: Federal, Arizona, Colorado, Florida, Missouri, Montana, Nevada, Ohio, Oregon, Vermont, Washington

Six states have announced their annual adjustments to their minimum wages for inflation.

The six states are Arizona, Missouri, Montana, Ohio, Oregon, and Washington.

Arizona’s minimum wage will rise from $6.75 to $6.90 per hour effective January 1, 2008. Arizona’s Minimum Wage Initiative requires the state to adjust its minimum wage annually for inflation.

This change will mean that Arizona’s minimum wage in 2008 will exceed the federal minimum wage. The federal minimum wage increased to $5.85 per hour in July of 2007. In July of 2008, the federal minimum wage will increase to $6.55. In July of 2009, the federal minimum wage will rise to its statutory maximum of$7.25 per hour.

Missouri’s minimum wage will increase by 15 cents from $6.50 to $6.65 per hour on January 1, 2008. The minimum wage law applies to all businesses/employees that are not specifically exempted. Any business, except retail or service businesses whose annual gross volume sales or business is less than $500,000 needs to pay non-exempt employees the minimum wage.

Workers in Montana will see the state’s minimum wage increase from $6.15 per hour to $6.25 per hour effective January 1, 2008. The state law requires that the minimum wage be the greater of the federal or current state minimum wage. Therefore, effective July 24, 2008, the minimum wage will increase to $6.55 per hour, based on the federal minimum wage increase.

The minimum wage in Ohio will increase from $6.85 per hour to $7.00 per hour effective January 1, 2008. The minimum wage for tipped employees will be $3.50 per hour (plus tips).

In Oregon, the annual cost-of-living increase will raise the state’s minimum wage from $7.80 per hour to $7.95 per hour effective January 1, 2008. The state has one of the highest minimum wages in the country.

In Washington, the minimum wage will increase 14 cents to $8.07 an hour beginning January 1, 2008. Washington’s minimum wage applies to workers in both agricultural and non-agricultural jobs, although 14‑ and 15-year-olds may be paid 85 percent of the adult minimum wage.

Four other states make annual adjustments to their minimum wages for inflation: Colorado, Florida, Nevada, and Vermont. They should be announcing their adjustments soon.

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NRA Responds To Restaurant Depreciation Legislation

WASHINGTON, D.C. — The National Restaurant Association has praised the introduction of a House bill aiming to address the tax code’s unfairness toward restaurants, the association announced.

The bill would make permanent the accelerated depreciation schedule of 15 years for both new building construction and improvements for restaurants in the United States. Representatives Kendrick Meek, D-Fla., and Pat Tiberi, R-Ohio, are the lead cosponsors of the bill.

“The nation’s 935,000 restaurant locations will serve over 70 billion meals and have an overall economic impact of more than $1.3 trillion in 2007,” said Peter Kilgore, acting interim president and chief executive officer of the Association. “By allowing restaurateurs to deduct the cost of new construction and renovations on a shorter schedule, this legislation will help restaurateurs to grow their businesses and create more jobs.”

Under current tax laws, owners of most commercial buildings — restaurants included — depreciate the building’s original cost, plus the cost of subsequent building renovations and improvements, over 39 years. Recognizing that some businesses suffer particularly heavy daily wear and tear, Congress has sped up the depreciation schedule for certain businesses, but not for restaurants.

“In order to compete, restaurants need to upgrade their facilities often. It makes no sense to force them to use a 39-year depreciation schedule when they need to improve their property more often to stay in business and serve their customers,” Meek said.

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