We are Forever Grateful and Moving On…

I received a text today from a lawyer I coached,. He asked how I was doing. It is a very long story, and in journalism there is a rule that I suggested for blogging: “Don’t bury the lead.” So I won’t.

I had surgery in February to remove cancer from my neck. After surgery I had chemo and radiation with all the expected side effects. By July I thought I was recovering. But, I had pain in the other side of my neck with it shooting down my right arm. I had surgery in Cabo and almost died from pneumonia afterwards. As a result we sold our home in Cabo and we are building a home in Fort Worth.

Here are the details of my story.

Many people I know have been through far greater challenges than me, and haven’t shared their stories. In that way I feel selfish sharing mine. I believe I share not to help lawyers I coached and lawyers who read my blog over 15 years. Instead, at this point I feel like I share my 2022 for those lawyers to help me by understanding my angst and just by saying hello. (I no longer use my business email as I have retired.)

After radiation and chemo I had more side effects than anticipated. I recovered from those, was cancer free, and moved to our new home at Diamanté Cabo San Lucas. In July I had severe pain in my neck. Nancy took me to a Cabo hospital where I was given pain medicine such that Nancy was afraid to put me on an airplane to return to Texas. She rightly thought I would create a ruckus and we would be on the no fly list for the rest of our lives.

A Cabo surgeon removed and replaced three discs. Before the surgery, I wrote a text that I don’t remember writing. I asked in the text why I was spending a second night in the hospital.

After surgery I got bacterial pneumonia and almost died. I was on a ventilator for five days. My first memory was our daughter Jill holding my hand. I spent 18 days on the hospital and lost 40 pounds. I was an extremely unpleasant patient. I was delirious and had the most crazy thoughts you could ever imagine. None of my thoughts were favorable towards anyone working at the hospital. I didn’t realize what it was like for our daughter Jill,  and especially Nancy. She had spent the entire 2022 caring for me, driving me to doctors, helping me get up in the middle of the night, and worrying about whether I would survive.

I was brought home in Cabo in an ambulance and brought in our casita in a wheel chair. I fell trying to lie down. I spent the following weeks trying to walk, and sorting through what was real during my hospital visit and what was not. It was a mental struggle. Not wanting the trauma or cost of another health incident in Cabo, we sold our Casita in one day and we will be back in Arlington, Texas November 30.

 

Throughout my life, I have been inspired by words. This is especially the case when times have been tough for me, like they have been this year. When I was down I needed to hear someone essentially tell me to get up and work harder to get better. At 75, I was challenged.

Graduation speeches are purposely designed to inspire the graduates to go out and change the world. One graduation speech that inspired me was Steve Jobs graduation speech at Stanford in 2005. I have likely included the YouTube video of it in a past blog post and if you haven’t watched it, I encourage you to do so. If you don’t have time, this Forbes article gives you the highlights.

There is a second graduation speech I strongly recommend you watch. It is Admiral McRaven at a University of Texas graduation. He was the Chancellor of University of Texas before stepping down because of health issues. Read about him here. But, please take time to watch and listen to what he told graduating students. I like this YouTube version of it.

These two gentlemen inspire me to make myself better each and every day. I am walking sometimes as much as a mile. I still struggle because the surgery to replace my discs paralyzed my vocal cord on the right side, meaning it never touches the left vocal cord, meaning my voice is a mess, I sometimes can’t swallow. my mouth is dry, and I get out of breath easily. This article describes my situation. Down the road they can do something to help my situation.

Like I said we are here at Diamante until the end of November. I am able to play golf from the most forward tees. In many ways we are sad to be leaving our dream retirement home. It was wonderful for the few months we were here, but, more important than our beautiful home, we will always remember the people who work here.

There are too many incredibly nice people to name, and I would for sure miss one or more. Let me say the guys and gals who work at the front gate greet us by name and chat with us. The caddies, especially Javier who has worked with us for many years, make our golf experience unique and special. The gals who work at the comfort stations greet us and take care of us. The guys and gals who work at the Diamante restaurants take great care of us. The valets who park our car greet us, smile and take care of us. The incredible gals who work in the two pro shops have for twelve years helped us and our guests with tee times. The golf pros and assistant pros we have known over the years have embraced us, taught us, and worked us in on busy days. Each Diamante staff person we met over the twelve years called us by name and made us feel part of their family. They never expected anything back from us other than a smile of appreciation. Nancy and I will be forever grateful for their kindness.

So, we are setting out on a new adventure. We are building a home in Fort Worth. It is minutes from my many doctors, downtown Fort Worth  and The Retreat Golf Resort where we play golf. I keep saying to you that this is my last blog post, and maybe this time I may be telling the truth. I am at a point when I am not sure I have anything to say that will help you enjoy your career.

 

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2023 Estate and Gift Tax Update

Part 1 of a 3-part series

The IRS has announced 2023’s estate and gift tax numbers. To understand them in context, we must look at 1) the Basic Exclusion Amount, 2) the Unlimited Marital deduction, 3) how the IRS will handle taxes after 2026. These ideas are interrelated and may affect your planning options.

The Basic Exclusion Amount

The basic exclusion amount is increasing from $12.06 million in 2022 to $12.92 million in 2023, the largest adjustment the exclusion has ever received. People with a small estate, a million-dollar estate, or multi-million-dollar estate all benefit from the exclusion amount, so keep reading! The exclusion can be applied to offset tax on gifts you make during your lifetime, or on transfers you make at the time of death. When you make a gift larger than the annual exemption amount (in 2022 it is $16,000 and it will be $17,000 in 2023) the excess is subject to gift tax. To eliminate the gift tax, you can tell the IRS to apply the basic exclusion amount to the gift. Doing so consumes some of your basic exclusion amount leaving less available for use at the time of your death.

Historically, the basic exclusion amount started to increase during the GW Bush administration, was expanded under the Obama administration, and was again expanded under the Trump administration. The Trump expansion was, however, saddled with a built-in rollback set to hit in 2026. The rollback will cut the $12.92 exclusion back to about $6 million unless the law is changed before 2026. I say “about $6 million” because there is a set $5 million exclusion which is increased for inflation, so the adjusted exclusion should be about $6 million in 2026.

The Unlimited Marital Deduction

A married couple can pass an unlimited value between spouses without estate tax. It is important to understand that the Unlimited Marital deduction delays paying estate tax, it does not eliminate estate tax. Values you leave to your spouse are not taxed when you die, but they are included in your spouse’s estate and are taxed at the second death if the values exceed the basic exclusion amount.

Historically, this gave rise to a planning technique wherein the first to die would not leave all assets to the surviving spouse. This was done by creating a Bypass Trust in the Will of the first to die and leaving a value equal to the exclusion amount to that trust upon the first spouse’s death. The transfer to the trust was taxable, but the tax was zeroed by the decedent’s exclusion amount.

All value higher than the exclusion amount passed to the surviving spouse tax-free under the Unlimited Marital deduction. Then, when the second spouse eventually died the exclusion amount of the second spouse was also applied. Only the value in excess of both exclusion amounts was subject to estate tax. Both exclusions were thus used to eliminate estate tax. By contrast, if a Bypass Trust was not used then the exclusion amount of the first to die was wasted (because the value passed directly to the surviving spouse) so when the second spouse eventually died, only that second spouse’s exclusion amount was available to reduce the estate tax. Any taxable estate that used only the Unlimited Martial Deduction was wasting the first spouse’s exemption amount.

Portability Replaces Bypass Trusts

Since 2010, however, a Bypass Trust is not necessary to take advantage of both exclusion amounts. The law was changed to allow “portability” of the first exclusion. When one spouse dies, the survivor can ask the IRS to put that first exclusion on hold, then to apply both exclusions when the second spouse dies. Even without a trust, the only portion left taxable is any value that exceeds both exclusion amounts.

How has the value of your estate changed since 2010? When did you last update your legal estate planning documents? If your estate is no larger than about $6 million yet your Wills contain Bypass Trusts, then you should speak with your estate planning attorney about eliminating the burdens imposed by that now unnecessary and restrictive trust. Are you my estate planning client? Does your Will contain what we called a “federal credit trust” or a “shelter trust”? Make your appointment for a planning review asap because we can likely eliminate the burdens and costs of that restrictive trust, which was needed when the exclusion was smaller but is no longer needed now that the exclusion is larger. (Visit www.Premack.com and use the yellow button to book an appointment.)

Next Week: The 2026 Trump Rollback

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Paul Premack is a Certified Elder Law Attorney for Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. To contact us, click here.

Column published on November 14, 2022

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Student Loan Assistance in Texas: How Do I Know if PAYE Is the Right Option for Me?

Are you struggling to pay back your student loans? You’re not alone. Forty-eight million Americans have federal student loan debt totaling $1.6 trillion.

The good news is that student loan assistance options make paying back your loan more affordable. The PAYE repayment plan can drastically reduce monthly payments for eligible borrowers, and some participants can qualify for loan forgiveness after 20 years.

In this article, the second in our multi-part Student Loan Repayment blog series, debt resolution attorney and owner of Ciment Law Firm, PLLC, THE Debt Defenders, Daniel Ciment, explains how PAYE works. Call us at (833) 779-9993 to schedule a free consultation to explore your options and determine if PAYE is right for you.

What is PAYE?

Short for “pay as you earn,” PAYE is a student loan repayment plan designed to reduce the amount of your monthly payments. Instead of paying a fixed loan amount based on your loan principal and interest, PAYE limits your monthly payments to 10% of your discretionary income.

Referred to as income-driven repayment (IDR), PAYE keeps loan payments affordable, allowing borrowers to climb out from crippling student loan debt.

What You Need to Know about PAYE

Because there are several different programs available offering assistance for educational loans, the options for student loan borrowers can get overwhelming.

To avoid some of the confusion from similar programs, here’s what you need to know about PAYE:

1. PAYE can make student loan payments more affordable. Your loan payments are capped at 10% of your discretionary income, so you don’t have to decide between eating dinner or paying your student loan.

2. PAYE is a long-term plan. While other income-driven repayment plans provide temporary relief, such as deference or a pause on payments (referred to as forbearance), PAYE offers long-term assistance for as long as you are eligible for the program.

Further, because PAYE carries a 20-year term, you will accrue more interest than a standard plan, which has a ten to twelve-year term. As a result, your total amount paid over the life of the loan could be higher.

3. PAYE is not a loan rehabilitation program. If you’ve defaulted on your loan and are trying to get it back on track, there are other options besides PAYE.
4. You have to reapply each year. Because eligibility is based on your income, you must reapply each year to confirm that you are still qualified. As your income goes up or down, your payment will also be adjusted.
5. Your spouse’s income may be included in your income calculation. If you are married and file taxes jointly, your spouse’s income could affect the amount of your discretionary income, which could spike your payment obligation.

PAYE Loan Forgiveness

Many borrowers turn to PAYE to reduce their monthly student loan payments, but another benefit can be even more compelling.

If you have made continuous payments and kept your loan in good standing, you can have any remaining balance erased at the end of 20 years. The federal government forgives the loan, and you are free from making future payments.

The debt is gone for good, whether you have remaining loan balances totaling $10k or $100k.

There is one caveat to loan forgiveness to keep in mind: the amount of the loan that’s forgiven gets added to your taxable income, so you could end up with a tax bill from Uncle Sam to offset the windfall.

For example, if the amount of student loan forgiven is $10,000 and you pay 18% in taxes, you would have to pay $1,800 back to the government when you file your taxes. Still, that’s better than being on the hook for the entire $10,000 balance!

How Discretionary Income is Calculated

Borrowers under the PAYE program can reduce their monthly payments to a mere 10% of their discretionary income, but how is “discretionary income” calculated?

Discretionary income is based on your adjusted gross income, which is essentially your taxable income after adjusting for 401k contributions, pre-tax healthcare costs, and other pre-tax expenses.

From there, you will subtract 150% of the federal poverty line for Texas from your adjusted gross income. This number changes yearly and is also based on the size of your household.

PAYE Eligibility Requirements

To be eligible for PAYE, you must meet the following requirements:

1. Your loan must be federally backed (private loans are not eligible)
2. You cannot be in default on your loan
3. You have to demonstrate financial hardship (your payments exceed 10% of your discretionary income)
4. Your loan must have been taken out after October 1, 2007
5. You must have received a loan disbursement after October 1, 2011

The Bottom Line

If your income is limited and you’re struggling to meet your payment obligations, having your loan recalculated based on your income could give you some financial breathing room.

For further information about PAYE and other programs in Texas, contact a student loan assistance lawyer at Ciment Law Firm, PLLC, THE Debt Defenders, at (833) 779-9993 today or fill out our online form.

Copyright © 2022. Ciment Law Firm PLLC, THE Debt Defenders. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

Ciment Law Firm, PLLC, THE Debt Defenders
221 Bella Katy Dr
Katy, TX 77494
(833) 779-9993
https://www.cimentlawfirm.com/

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4 Steps Every Business Should Take to Protect Confidential Information

If 2023 is THE year that your business is going to maximize protections for confidential information, make sure you have the following four areas addressed:

1. Non-disclosure agreements (and non-compete and non-solicitation agreements) protect confidential information because they impose contractual restrictions on what employees can disclose to third parties. These are the first documents that courts look at when a company attempts to obtain an injunction preventing a former employee from disclosing their confidential information.
2. Mobile device management (MDM) software protects confidential information because it prevents employees from forwarding, downloading, or taking screen shots of confidential information from their devices.
3. Network behavior analysis (NBA) software protects confidential information because it alerts your company if an employee is attempting to engage in a prohibited action, such as plugging in an unauthorized USB drive or downloading large amounts of data.
4. Employee training helps to protect confidential information because it educates employees on what the company considers confidential, company confidentiality policies, and the consequences of violating those policies.

Leiza Dolghih is the founder of Dolghih Law Group PLLC.  She is board certified in labor and employment law and has 16+ years of experience in commercial and employment litigation, including trade secrets and non-compete disputes. You can contact her directly at leiza@dlg-legal.com or (214) 531-2403.

The post 4 Steps Every Business Should Take to Protect Confidential Information appeared first on North Texas Legal News .

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Free CLE Opportunity: What Every Lawyer Should Know About the Attorney Grievance System

Laura Gibson

Editor’s Note: State Bar of Texas President Laura Gibson sent the following message to members on Wednesday.

It is the duty of the State Bar of Texas to improve and advance the quality of legal services to the public, and foster integrity and ethical conduct in the legal profession. The attorney grievance system is vital to these efforts; however, the workings of the system aren’t always well understood.

In an effort to provide our members more information, I recently moderated a CLE webinar titled “What Every Lawyer Should Know About the Attorney Grievance System.” It is now available to all members to watch on demand, for free, at texasbarcle.com for 1.25 hours of MCLE ethics credit.

The structure of the State Bar enables Texas lawyers to have an independent, confidential, and fair system for handling attorney grievances. The Texas attorney discipline system is governed by the Texas Disciplinary Rules of Professional Conduct and the Texas Rules of Disciplinary Procedure. The ethics rules define proper conduct for purposes of professional discipline. The procedural rules provide the mechanism by which grievances are processed, investigated, and prosecuted.

From the presentation you will learn about the Commission for Lawyer Discipline, which oversees the grievance system; the Office of Chief Disciplinary Counsel’s role in administering the system; the role of the District Grievance Committees; and the additional processes of checks and balances that ensure all parties are treated fairly. You will also hear from Seana Willing, the chief disciplinary counsel, and Scott Rothenberg, a Bellaire attorney who currently serves as panel chair of the District 4 Grievance Committee, who so graciously joined me as panelists.

I hope you take the time to view the presentation. It is very informative and insightful and could save you some time navigating the grievance process.

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Major Life Activities as Essential Functions and What That Means for Test Takers Trying to get into Those Jobs

Today’s blog entry deals with two decisions from the U.S. Court of Appeals for the Second Circuit dealing with essentially the same fact pattern. One decision, Williams v. MTA Bus Company, here, is a published decision decided August 12, 2022, while the other decision, Frilando v. New York City Transit Authority is a summary order decided on August 19, 2022, here. Both decisions have the potential to set back the ability of Deaf, deaf, and HOH individuals to be employed. I don’t see why the decision don’t have the ability to set back people with other kinds of disabilities from being employed as well. The facts are substantially similar. Both cases involve culturally deaf individuals seeking employment. Both cases involve exams needing to be taken in order to see if they were qualified for that job. Both cases involve a refusal to have an interpreter to interpret the examination and its instructions. The panel for Williams was Cabranes, Raggi, and Carney. The panel for Frilando was Cabranes, Lynch, and Chin. As usual the blog entry is divided into categories and they are: court’s reasoning in Williams; court’s reasoning in Frilando; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning in Williams

 

1. Only qualified individuals can establish a disability discrimination claim.
2. The term “qualified individual,” appears in the statutory section, 42 U.S.C. §12112(a), talking about how a person cannot be discriminated against on the basis of disability with respect to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. Through the use of the term “qualified individual,” means that a person has to be able to perform the essential functions of the employment position.
3. 42 U.S.C. §12112(b) references 42 U.S.C. §12112(a). Therefore, the term “qualified,” is equally applicable in that section as well.
4. Doesn’t make sense that Congress would intend to permit individuals who are not qualified for their desired employment positions to maintain action for some types of employment related discrimination but not for others. Therefore, Congress intended the “qualified individual,” requirement to apply to all forms of employment discrimination under 42 U.S.C. §12112.
5. Reading 42 U.S.C. §12112 to maintain the “qualified individual,” requirement is consistent with both the ADA and the Rehabilitation Act taken as a whole.
6. 42 U.S.C. §§12111, 12112 work together. So, considering the interactive relationship between those two provisions, it would be nonsensical to disregard the term “qualified individual,” when reading 42 U.S.C. §12112(b)’s subparts rather than reading it all together so that only “qualified individuals,” may bring claims based upon discriminatory acts enumerated in 42 U.S.C. §12112.
7. 504 of the Rehabilitation Act, 29 U.S.C. §794, echoes that only an “otherwise qualified individual,” can sustain a discrimination claim under that section.
8. Since the statutory sections are clear, the EEOC guidance does not come into play. However, even if it were to come into play you still get to the same endpoint. The EEOC guidance said that an employer must provide a reasonable accommodation to a qualified applicant with a disability that will enable the individual to have an equal opportunity to participate in the application process and to be considered for the job. Accordingly, it is fair to read the guidance to say that before an employee can prevail on its failure to provide accommodations during the application process, the plaintiff must show that he was qualified for the employment position at issue.
9. The portion of the EEOC guidance does not address the employer’s obligation regarding an applicant who cannot perform the essential functions of the position regardless of any on-the-job accommodations, and therefore is another reason why the EEOC guidance is of little assistance.
10. Taking a test to see if they are qualified for certain jobs is not an employment position and therefore the test-taker is not entitled to accommodations in the test taking process if they are not qualified for the employment position they are seeking.
11. An employer is perfectly within its rights to mandate that the applicant evaluate his qualifications for the job before seeking accommodation for exams. An employer does not have to allow a person to take exams for job that they are not qualified for. In other words, an applicant cannot sue successfully a potential employer under 42 U.S.C. §12112 when the individual is facially not qualified for the position sought at the time of the preemployment test.
12. Williams simply did not have the education or experience requirements necessary for the jobs that he wanted to take the exams for.
13. In the Second Circuit, an employer’s failure to comply with the interactive process requirement is not an independent cause of action under the ADA.

 

II

 

Court’s Reasoning in Frilando

 

1. Plaintiff applied for the jobs of train operator, track worker and bus operator.
2. Defendants offered to provide ASL interpretation for the exam instructions but refused to provide interpretation for the exam questions and answers.
3. The term “qualified,” applies not just to current employees but to job applicants as well.
4. When assessing whether a person is otherwise qualified for a job, a court must give considerable deference to an employer’s judgment regarding what functions are essential for a particular position.
5. In a four day bench trial, the District Court found that the ability to communicate in English and the ability to hear sounds were essential functions of all three positions. Plaintiff was not qualified for any of the positions because he could not be understood in spoken English and also did not understand spoken English. He also did not have the minimum hearing standard for any position.
6. Test taking is not an employment position. Therefore, plaintiff is out of luck for a failure to accommodate claim with respect to taking the test necessary to qualify for the various jobs.

 

III

Thoughts/Takeaways

 

1. I often say in my trainings that an employer makes a big mistake by focusing on major life activities as an essential function of the job. These two cases say that the employer may get away with taking that considerable risk if it chooses to use a major life activity as an essential function of the job. That said, taking this approach is lousy preventive law. An employer will go much further in preventing litigation and successfully defending lawsuits when there is litigation, if the essential functions of the job do not include a major life activity.
2. On the plaintiff side, the argument to make is that hearing is not the essential function of the job but being able to communicate is. That is an argument the plaintiff successfully made in the case we discussed in the blog entry involving Johns Hopkins, here. The Johns Hopkins case is also a cautionary tale for an employer insisting on a major life activity being an essential function of the job.
3. Neither of the decisions are published (one is not published and the other is a summary order).
4. In footnote 16 of the Williams decision, the court says that the employer by not evaluating the plaintiff’s qualifications before refusing to provide him with an ASL interpreter for the exam, ran the risk of denying a reasonable accommodation to a qualified individual that would have rendered the company liable for disability discrimination. Also, courts should not bless off blanket denials of accommodation by accepting specious explanations why applicants with disabilities may ultimately not be qualified for a position.
5. Both of these cases give employers a tool now to prevent Deaf individuals in particular from even getting considered for a particular job because accommodations do not have to be offered for any testing for those jobs unless they can do the essential functions of the job first.
6. The Second Circuit decisions play down considerably the obligation of the employer to provide reasonable accommodations. Remember, reasonable accommodations can either be in the title I context a logistical or financial undue hardship. Per 42 U.S.C. §12111(10)(B), financial undue hardship looks to the entire operations of the entity, while logistical undue hardship looks to whether essentially the nature of the business is fundamentally altered.
7. A sign language interpreter does not do the job for a Deaf individual, rather they are just enabling communication. That said, I could see logistical undue hardship questions and possibly financial undue hardship questions as well arising depending upon the situation.
8. Before employers just start adopting including major life activities as essential functions, mandatory reading is this blog entry. Plaintiff lawyers need to make that blog entry mandatory reading as well after these two cases.
9. Deaf individuals frequently do not read above a fourth grade reading level because ASL is a completely different kind of language than English. It is of course a visual language and its structure is entirely different, based on French. Therefore, a Deaf person is equally unlikely to understand the exam questions as they are the instructions themselves. As such, granting ASL for instructions but not for exam questions means it is still the disability being evaluated rather than the person’s abilities.
10. A qualified interpreter for the Deaf is strictly a communication vehicle and is not offering their own view on anything.
11. Remember whether a person is qualified for a particular position depends upon whether they can do the essential functions of the job WITH or without reasonable accommodations.
12. Undue hardship is an affirmative defense, though the burden of proof can get complicated with respect to whether a person is qualified or not per the ADA.
13. Depending upon the circuit, failure to engage in the interactive process may or may not be a separate cause of action. That said, the trend is certainly in favor of a failure to accommodate being a separate cause of action.
14. I don’t see why these decisions necessarily get limited to hearing. Why not walking or seeing, smelling, etc.?
15. It will be interesting to see both how other circuits deal with this issue as well as how the EEOC reacts to these decisions going forward.

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Welcome to the Era of Salary Transparency

Have you heard it’s “taboo” to talk about your salary? Us too. Well, that is out the window now. Welcome to the era of salary transparency. Yes, we know it can be awkward to talk about salary, but with new laws on the horizon, it may be a little easier to figure out how much your co-workers are getting paid. 

 Recently, the New York City Council passed a law requiring employers in New York City with four or more employees to list the minimum and maximum salary on all job posting including ads, promotions, and transfer opportunities. This law applies to any position that can or will be performed, in whole or in part, in New York City. This affects remote listings, meaning any job that could conceivably be done in New York City must follow this. 

 So why did the New York City Council deem this necessary? They passed this law to try and fight against big pay gaps, specifically between genders as well as between majority and minority racial groups. Let’s be honest, pay matters. It affects where you work and how long you decide to stay there.  

Continue reading ›

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