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The Bonus of Employee Benefits

Published on: September 2, 2016 | by Racine Olson

Many, but not all Idaho employers offer benefits of some sort to their full-time employees. This could include vacation pay, health, dental or life insurance, sick pay, paid time off for holidays, or other similar benefits. Employment benefits of these types are a fantastic addition to the wage or salary that is earned by the employee. When most employees are looking at a job they take into consideration the entire package of pay and benefits to decide whether the job is worth taking. The key is to understand the role of benefits in an employment relationship.

It’s amazing to me how often I am asked by clients whether they can force their employer to provide certain benefits to them as an employee. The reality is that no employer is required to provide any benefits to any employee. There is currently no Idaho law nor is there any federal law that requires an employer to provide any specific benefits to their employees. The only exceptions to this is that these employers almost always have to provide Workers Compensation Insurance and unemployment insurance.

What is the law for minimum wage and overtime in Idaho?

Published on: August 31, 2016 | by Racine Olson

By Joseph G. Ballstaedt

Idaho’s minimum wage is $7.25 an hour. Idaho Code § 44-1502. Idaho has chosen to mirror the federal minimum wage, which is established in the Fair Labor Standards Act (FLSA). 29 U.S.C.S. § 206(a)(1)(C). Some states have not kept up with the federal minimum wage. For example, the rate under Wyoming statutes governing minimum wage is $5.15 an hour, but federal law trumps any state law with a minimum wage lower than $7.25 an hour, the federal rate. States can choose, however, to increase the minimum wage above the federal rate, and 29 states have chosen to do so. Only a few of these states have rates above $9.00-$10.00 an hour, but some, like California and New York, have enacted laws that will eventually bring the minimum wage up to as high as $15.00 an hour.

Federal law also requires that all employees receive overtime pay after working forty hours a week. Overtime is one and one-half times the regular rate of pay. 29 U.S.C.S. § 207(a)(1). Thus, for Idaho employees who are paid minimum wage, overtime pay can be no lower than $10.88 an hour.

Does the Fair Labor Standards Act apply to persons employed in Idaho?

Published on: August 23, 2016 | by Racine Olson

By Joseph G. Ballstaedt

The Fair Labor Standards Act (FLSA) is a federal law that provides minimum wage, overtime pay, and other protections to covered, nonexempt employees. Employees who are “engaged in commerce” are covered employees. 29 U.S.C.S. § 206(a). An employee is engaged in commerce if he or she performs work “involving or related to the movement of persons or things” between state lines or overseas. See 29 CFR 779.103. However, the term commerce is defined so broadly under federal law that the FLSA covers almost every employee in Idaho. See 29 CFR 776.8. For example, the following employees are deemed to be engaged in commerce:

An employee in Idaho who uses a telephone, the U.S. mail, or e-mail to communicate with persons in another state.

TWO PROFESSIONALS NECESSARY FOR YOUR ESTATE PLAN

Published on: July 26, 2016 | by Racine Olson

Properly planning your estate takes teamwork. During our retirement years most of us will deal with several professionals for different purposes, including a financial advisor, an accountant, and an attorney. The most effect estate plans are those in which those professionals work together. That being said, there are several important professionals who should be involved in planning your estate, but are most often overlooked. Here are two:

A Funeral Director. One of the most overlooked resources available for your estate plan is a pre-paid burial plan. As a result, family members are forced to scramble to make decision, including decisions surrounding the appropriate funeral service, if any, and how to pay for the costs associated with a funeral service and/or cremation. Unfortunately those tough decisions need to be made while mourning the loss of a loved. one.

Consulting a funeral director during your life will provide you with a sense of peace as you know your loved ones will not have to deal with financial stressors in addition to dealing with loss. At Racine Olson our experienced estate planning attorneys recommend you speak with a funeral director to pay for and plan your funeral services. Many of our clients throughout Pocatello, southeast Idaho, Idaho Falls, Twin Falls, and Boise, report back to us of the sense of completion they fell after pre-paying for, and planning, their funeral services. Mostly, our clients feel like they are providing their loved ones with the opportunity to mourn rather than worry about financial issues after their passing.

Will a Trust Protect My Assets from Creditors?

Published on: June 29, 2016 | by Racine Olson

Most trusts do not protect assets from a grantor’s creditors. Contact an experienced estate planning attorney to review your trust documents for answers regarding the creditor protection your trust may provide.

The overwhelming majority of trusts in place today are known as revocable living trusts (RLT). Most RLTs provide benefits, including the seamless transfer of control in the event a grantor becomes incapacitated or dies. Most RLTs do not protect assets from creditors even though the assets may belong to the trust (i.e., a residence is deeded to the trust). The reason for this lack of creditor protection lies in the fact that the trust is revocable – meaning, the grantor (the person(s) placing the assets into the trust) may revoke the trust, or a portion thereof, and regain direct control of the assets. Thus, the assets are available to the grantor to satisfy obligations to creditors.

The Idaho Department of Health and Welfare will also consider assets belonging to an RLT as assets of the individual applying for Medicaid benefits. Generally, the assets are available to the applicant if he/she simply revokes the trust. As a result, persons seeking Idaho Medicaid eligibility will likely not meet the Medicaid resource eligibility requirement if they simply transfer their assets into an RLT. Contact an experienced Idaho Medicaid planning attorney to plan for the long-term care of your elderly loved ones.

No Bullies allowed in Idaho Worker’s Compensation Cases

Published on: June 23, 2016 | by Racine Olson

By Fred J. Lewis and Mallory Mitton

The general public’s ideas about the legal system are often shaped by TV shows such as Law and Order: SVU, The Good Wife, and Fairly Legal. The plaintiffs and defendants in these fictional courtrooms are enemies who battle it out using any means necessary to win. These are highly sensationalized and exaggerated representations of what really occurs in criminal cases and civil litigation. In contrast, worker’s compensation proceedings should not be like this at all. The entire purpose behind worker’s compensation laws is to get injured workers fair compensation for their injuries. It has been said that worker’s compensation cases are” nice guy law” where all the parties need to act civility and politeness. The junkyard dog approach will not be tolerated.

The definition of “nice guy law” is illustrated in the 2016 Idaho Industrial Commission decision Salinas v. Bridgeview Estates. The Commission states “…the ‘no-holds-barred’ mentality which is often a part of civil litigation has no place in workers’ compensation proceedings. Unlike civil litigation, which is truly an adversarial-based process, the goal of workers’ compensation – to provide an injured employee with those statutory benefits to which the worker is entitled – should be shared by all parties”. Because the goal of worker’s compensation is to provide injured employees with the benefits they need, no one loses if that goal is shared by everyone involved in the case as it should be!

Sneakers and trade secrets

Published on: January 20, 2016 | by Racine Olson

The always-fascinating EconTalk podcast had as its guest on January 18 “sneakerhead” Josh Luber of Campless.com, a site dedicated to tracking the secondary market in sneakers. There is a thriving market on Ebay and other sites in sneakers, particularly Nike basketball shoes. Just about every week, Nike releases small production runs of sneaker models to stores like Athlete’s Foot. They are intended to be collectible: maybe unique color combinations, or maybe a new run of a popular older model. People line up outside shoe stores in malls across the country every Saturday morning, trying to get a pair. They almost always resell them, sometimes for many times the already-inflated MSRP. The market is larger than you might think: in 2014, more than 125,000 individual resellers made more than $1.2 billion in profits over and above the retail price of the shoes.

And, of course, every year Nike releases the newest model of Air Jordans, and the same thing happens: hundreds of thousands sell out very quickly for full retail, and many of those also end up in the secondary market, selling for two to five times the retail price.

Listening to the discussion of sneakers made me think about trade secrets, an aspect of intellectual property law I haven’t discussed here before. Idaho’s intellectual property laws include a version of the Uniform Trade Secrets Act, which allows owners of trade secrets some means of protecting them.

The wildest patents of 2015

Published on: January 6, 2016 | by Racine Olson

Patent services website Patent Yogi produced this video identifying the wildest and most interesting U.S. patents granted in 2015, including a Star Trek-style force field and a car wheel that can pop off and turn into a one-wheeled electric motorcycle.

Trademark of the Day – 12/31/2015

Published on: December 31, 2015 | by Racine Olson

Going through the Trademark Official Gazette of December 29 was a little disheartening at first. It was the usual mish-mash of made-up words that marketers hope will become famous trademark through the expense of lots of advertising dollars, and I was despairing of finding anything interesting until I came across this:

There is usually a fight going on between the marketing people and the trademark protection staff over what to call a product. The marketers often want to give it a name which describes some desirable quality of the product. The trademark staff, on the other hand, know that marks which are merely descriptive of the product get very little protection, and may not be registrable. The trademark examiners at the Patent and Trademark Office are diligent about not allowing trademark owners to remove from the lexicon common words that competitors might want to use to describe their products. So a word that is the generic name of a product cannot be used as a trademark; words that are descriptive of the product can be used as trademarks but may not be registrable and will get very little protection. The compromise is to find words that are suggestive of a desirable quality, but not directly descriptive of the product. Or, of course, you can make up a word, like XEROX, or use a common word that is not related in any way to the product, like APPLE for computers.

With SHEER AND INNOCENT, there was clearly a compromise. A product might be sheer, but can a thing ever be described as innocent? Take them together, and the mark will be suggestive and eligible for registration, even though part of it might be descriptive. And, yes, the registrant in this case had to disclaim any rights in the word “sheer” apart from its use as part of SHEER AND INNOCENT as a whole. A disclaimer of this sort is an admission that, in most cases, use of the word “sheer” in another trademark would not be an infringement.

Who’s on First?

Published on: December 31, 2015 | by Racine Olson

Copyright cases aren’t usually a lotta laughs, but then, they aren’t usually about this:

https://www.youtube.com/embed/kTcRRaXV-fg

The heirs of Bud Abbot and Lou Costello claim to own the copyright in their famous “Who’s on First?” bit. They undoubtedly own the copyright on two filmed versions of the skit, because Universal Pictures gave them the copyrights on clips from two 1940s movies in which they performed it. But there are other filmed versions of the skit which are now in the public domain, the copyright protection on the movies having expired, and it is questionable whether anyone “owns” a copyright in the original skit, or indeed whether Abbot and Costello even wrote it.