Jan 2010 Newsletter

JANUARY NEWSLETTER

Vol. 5, Issue 1 January, 2010

ESTATE TAX EXEMPTION EXPIRES

2010 may be the best year to die for the next several years from an estate planning viewpoint. The Bush Administr

ation estate tax exemptions are in complete effect now and there is no federal estate tax for persons dying in the year 2010. However, this repeal of the Federal Estate tax is temporary since the law enabling the repeal "sunsets" Dec. 31, 2010. What happens then under the Obama Administration is anybody's guess.

A broad based consortium of insurance professionals, non profits and estate planners have begged the Obama administration to do something that will allow estate planners to have some idea of what the Estate Tax landscape will look like after 2010 and to date there has been no substantive response.

Frankly, there is no good way to advise you right now in this situation. Without some idea of what the Federal Estate Tax will look like in coming years, estate planners are literally working in the dark trying to second guess an increasingly mercurial congress.

WATCH YOUR CREDIT CARD STATEMENT CLOSELY

In anticipation of new laws severely curtailing previous abuses, many credit

card companies are increasing the rates on their cards to the maximum allowable, changing credit terms, etc. You should carefully examine your credit card statements and correspondence for the last three months of 2009 and take immediate action if you find objectionable changes.

EXAMINE YOUR NEW CREDIT CARD CLOSELY

Some credit card companies are now issuing RFID (Radio Frequency Identification) credit cards that do not require a physical scan to be used. They can be read by simply being in close proxmity to the RFID scanner much in the same that PIKEPASS reads your device as you pass through a toll gate. Despite assurances that the encryption used is very strong and cannot be hacked, a group of computer scientists at Amherst University were able to crack the code within hours. And, there is now a "hack" circulating on the internet claiming to allow a tech savvy reader to build an RFID credit card scanner for eight dollars.

If you have a choice, my advice is to refuse an RFID card altogether. If you do not have a choice, invest in a metal lined wallet which will at least block an RFID scanner while the card is not in use.

CAN YOU TERMINATE AN EMPLOYEE FOR CONTACTING THE OKLAHOMA DEPT. OF LABOR?

The law says no. Emphatically no. However, in a split decision, the Oklahoma Supreme Court has cast doubt upon this long standing rule of employment law.

Employer enacted a policy whereby, depending upon the paygrade of the employee, either one half an hour or one hour was deducted from the employee's pay for a lunch break whether or not they actually took the break.

Employee contacted the Oklahoma Department of Labor to inquire if his Employer could deduct pay for lunch breaks he did not have time to take. A fellow employee informed Employer of Employees inquiry. Shortly thereafter, Employee was fired for substandard performance.

Employee sued in federal court. The federal court issued a certified question of law asking the Oklahoma Supreme Court to clarify. The Oklahoma Supreme Court ruled as follows:

¶20 We conclude that Oklahoma does not have a clear and well-defined public policy protecting an employee's right to a lunch break or requiring an employer to pay wages to the employee for work performed during the lunch break without the employer's permission. This conclusion does not encompass employer-ordered work during a lunch break. Our answer to the reformulated question is that the Oklahoma Protection of Labor Act, 40 O.S.2001 and Supp.2006, §§ 165.2, 165.7, and 165.8, and 40 O.S.2001, § 199 do not provide an established and well-defined public policy sufficient to support a Burk tort claim based on allegations that the employee was wrongfully discharged for contesting the employer's lunch-break policy.

This ruling is troubling in that it apparently attempts to place Oklahoma law in direct contradiction of previous decisions and perhaps Federal labor law. The dissenting justices on the Oklahoma Supreme Court stated:

¶7 ... This Court's analysis strayed when it focused on whether Plaintiff had a viable wage claim under section 165.2 of title 40 which addresses the payment of "wages." That was not the question asked by the federal court and it is irrelevant to his wrongful termination claim. The question of whether Plaintiff had a viable wage claim is irrelevant to this matter, just as the issue of the actual existence of harmful mold in the courthouse was irrelevant in Vasek. An employee is not required to correctly assess the likelihood that the employer is actually violating a statute before making an inquiry of a regulatory agency charged with the employee's protection. The question is simply whether there is an established norm of conduct which prevents an employee's discharge without consequences for making contact with a regulatory agency. Although a prescribed norm of conduct against discharging a worker for contact with the Department of Labor was present in both this matter and in Vasek, this Court has chosen to give effect to that norm of conduct only in Vasek.

¶8 Today's decision ignores precedent. It brings uncertainty and confusion to wrongful termination actions brought by whistleblowers. It tells employees in Oklahoma they must not inquire concerning, much less report, any suspicions they have about the legality of their employer's conduct to a regulatory agency. If they do, they risk discharge with no redress, even in the presence of a statute criminalizing such a discharge by their employer.

¶9 The astounding contradiction in the treatment of the terminated plaintiff in Vasek and Plaintiff in this matter will not go unnoticed. Whatever benefit this Court finds in its disparate treatment of the similarly situated plaintiffs will be outweighed by the needless confusion today's opinion creates and the fundamental unfairness it propagates.

The case is: Reynolds v. Advance Alarms, Inc. 2009 OK 97

The Bill Kumpe Law Firm