The Centers for Disease Control and Prevention Issues New Eviction Moratorium in Wake of Surging Covid Cases

UPDATE: On August 26, 2021, the Supreme Court lifted the stay and evictions that were previously prohibited by the CDC Eviction Moratorium may resume, unless otherwise prohibited by state and local law.  https://www.supremecourt.gov/opinions/20pdf/21a23_ap6c.pdf

Effective August 3, 2021, the Centers for Disease Control and Prevention (“CDC”) issued a new order (“Order”) placing a moratorium on residential evictions. The Order is targeted only to those U.S. counties experiencing high or substantial community transmission, which in Oregon (as of the date of this blog post) includes every county except for Grant.  This CDC map shows the community transmission levels in each U.S. county. The Order expires on October 3, 2021.

Where the Order applies, the restrictions are very similar to the restrictions imposed under the old CDC eviction moratorium. A landlord may not evict a covered residential tenant, while COVID-19 transmission in that county remains substantial or high, and while the relevant state or county has not provided a level of protections above those provided in the Order. A covered person is anyone who submits a declaration to their landlord that states: that the person has made best efforts to obtain government assistance, the person made no more $99,000 in 2020 (198,000 if filing a joint tax return), and the person is unable to pay full rent due to a loss of income or health expenses. A form of declaration is available on the CDC’s website.

Because the Order is targeted, it will stop applying in counties whose transmission rates drop below the community transmission thresholds established by the CDC. When community transmission rates drop below substantial levels for 14 consecutive days, the Order will cease to apply. The Order will apply immediately to counties whose community transmission rate increases to substantial or high after the Order’s August 3, 2021, effective date.

The Order is at risk of being overturned by the Supreme Court. In June 2021, the court ruled 5-4 in Alabama Association of Realtors v. Department of Health and Human Services to leave the old CDC order in place. Justice Kavanaugh joined the majority but wrote separately to say that he believed the old CDC order exceeded the CDC’s authority. Justice Kavanaugh’s concurrence explained that he only voted to uphold the original order because it was set to expire in a few weeks. He also noted that Congress would need to pass legislation to support extension of the old order past July 31, 2021. Justice Kavanaugh’s concurrence signals that if the Order were to come up before the Court, he would vote with Justices Barrett, Gorsuch, Alito, and Thomas to overturn the order. The Alabama and Georgia Chapters of the National Association of Realtors have already filed suit to overturn the Order.

Important Changes to Oregon’s Safe Employment Act

On June 15, 2021, Governor Kate Brown signed and enacted Senate Bill 483 into law, amending the Oregon Safe Employment Act (OSEA) to include a significant new protection for employees alleging claims for employment discrimination and retaliation under the Act. Previously, if an employee brought an action alleging discrimination or retaliation under the Act, the burden ultimately rested on the employee to prove that the action taken by the employer was discriminatory or retaliatory. However, the amended law now shifts that burden of proof on the employer—that is, depending on the timing of the employer’s alleged adverse actions.

Effective immediately, ORS 654.062(7)(a) provides that in any action brought for discrimination or retaliation under the Act, there is now a rebuttable presumption that a violation has occurred “if a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against an employee or prospective employee within 60 days after the employee or prospective employee has engaged in . . . protected activities[.]” ORS 654.062(7)(a) (emphasis added). Protected activities include expressing opposition to unsafe workplace practices, filing complaints, initiating proceedings, and reporting assaults that take place on the premises. As noted above, under this new provision the person accused of violating the Act bears the burden of persuasion and may rebut the presumption that a violation has occurred only by demonstrating, by a preponderance of the evidence, that the alleged adverse employment action was not discriminatory or retaliatory.

In addition, Senate Bill 483 included an emergency clause and a provision that the rebuttable presumption applies retroactively to complaints that have not been issued a final decision by BOLI as of June 15, 2021. Thus, on July 19, 2021, BOLI announced that it would be implementing new rules to respond to complaints made under the new measure, and “complaints that meet the criteria of the measure must now be investigated based on the rebuttable presumption, thus shifting the burden of proof and the investigatory process of the Civil Rights Division (CRD).” By enacting temporary rules, BOLI now has the ability to immediately respond and investigate complaints brought in accordance with Senate Bill 483.

Still, the new legislation does not modify existing law with respect to adverse actions occurring more than 60 days after an employee has engaged in a protected activity. ORS 654.062(b) (stating “[i]f a person bars or discharges an employee or prospective employee from employment or otherwise discriminates against the employee or prospective employee more than 60 days after the employee or prospective employee has engaged in any of the protected activities . . .  such action does not create a presumption in favor of or against finding that a violation . . . has occurred.”) (emphasis added). In those circumstances, the burden remains on the employee or prospective employee to establish a causal link between an employer or prospective employer’s adverse action and the protected activity.

Notably, prior to the enactment of this legislation, employees could frequently create a triable question of fact regarding an employer’s alleged retaliatory intent by establishing a proximate temporal link between an employee engaging in a protected activity and an employer’s adverse employment action. However, this new law will have a significant impact on litigation moving forward. in that the burden is now presumptively on employers to show that adverse actions were based on legitimate, nonretaliatory reasons when taken within two months of the employee engaging in a protected activity. Thus, moving forward, employers may want to consider carefully evaluating the timing of any disciplinary actions for employees, and maintaining detailed documentation in support of any disciplinary action taken after an individual has engaged in a protected activity under the Act.

Blachly Recognized by Oregon Super Lawyers

Oregon Super Lawyers recently interviewed Victoria Blachly for her outstanding work on elder law cases. Complicated families and complicated medical conditions such as Alzheimer’s and dementia increase the challenging legal issues in preparing for end-of-life events, but Blachly strives for soft landings.  Read the article written about her impactful work, “Soft Landings:  Victoria Blachly Speaks For Those That Can’t Speak For Themselves.”

Disinherit Your Child?  Sure – It’s Your Money.

Christine Fletcher had an article in last month’s online Forbes, entitled “Should You Disinherit Your Child?”  The full text of the article is below, but I have to say that – to me – the answer is not one that should be made by an attorney, but by the owner of the assets.  If someone wants to disinherit their child, as long as that someone has legal capacity to do so and is not being unduly influenced by a wrongdoer, then that someone should do whatever they want with their estate plan.  While some have a bias that all children should inherit equally, an inheritance is a gift, not a given.  Such that the person giving the gift can decide exactly what they want to do with their money, or exactly what they do not want to do with their money. 

As a fiduciary litigator, I have handled many cases where a disinherited child simply cannot fathom why THEIR money wasn’t left to them, in spite of piles of evidence confirming it was their own poor choices that alienated them from their parent, but those children also forget that it wasn’t THEIR money to begin with.    

An experienced estate planner can talk a client through the pros and cons of disinheriting a child, but the decision rests with the client and must be respected. 

Article:  “Most people should not disinherit their child. If your child does not buy you a birthday present or forgets to call you on Mother’s Day – even if it is every year without fail – do not run to your lawyer and cut them out of the will. Those are not reasons to disinherit a child.  

Political differences are also not a reason to disinherit a child. You should have stronger familial bonds with your children that can withstand differences of opinion and political views.  

Your will is often the last act you will do (or not do) for your child. I encourage people to use their will to treat their children equally to the extent possible and include all their children. I have seen children reduced to tears by what their parent left them in their will, and others who had difficult relationships with their parents solidified by being cut out. The child was always the outcast of the family, and mom’s will reinforced that. Your will can be used to heal old wounds or to deepen them. 

There are, however, times when children should be disinherited. These situations mostly involve children who have experienced extreme addiction or mental illness issues that have been left untreated and have caused severe pain within the family. It can be difficult to get clients to discuss these children, but it is important to know the story behind the disinheritance.  

People do not come to the decision to disinherit a child easily and often spend months or years agonizing before making the decision to cut them out of the will. I often counsel clients to think about the child’s siblings and whether disinheriting the child will worsen his or her relationships with siblings. Perhaps including the child in the will can help foster better relationships with his or her siblings in the long run.  

If the decision is made to include the “problem” child, consider trust provisions that will limit the child’s access to the inheritance. This could be a matter of life or death if a child has a drug addiction. It can also preserve family assets for grandchildren if the child has a gambling issue or a greedy spouse. 

If you are going to disinherit a child, be sure to review your entire estate plan thoroughly with your advisors. In addition, you want to avoid probate. In most states if a will needs to be probated, all your children will receive notice of the court proceeding even the disinherited ones. This is because they are your heirs and are entitled to notice under the law. You can avoid a court hearing by transferring your assets to a trust during your lifetime and having assets pass by beneficiary designation where possible.    

Sometimes, someone wants to leave a child out of a will because the child has sufficient assets. For instance, a widow wants to leave all her assets to her daughter Sally because Sally has three kids and is divorced. The widow’s son Billy is cut out because he is a successful investment banker. That situation will work if Billy is fine with this arrangement. Be sure to speak with Billy and make sure that he is on board with this plan and pleased that his sister will be well provided for. Perhaps he is not as well off as his mother thinks he is, or perhaps he will feel slighted if he is cut out. In this situation, full disclosure is the best course of action.  

Think long and hard before disinheriting a child. The consequences could have lasting effects on them and it could leave a legacy that you did not intend.”

Oregon Office of Taxpayer Advocate: House Bill 3373

 

In early 2021, Representative Fahey sponsored HB3373 in an effort to establish the office of the Taxpayer Advocate in the Department of Revenue. The bill is currently awaiting the governor’s signature and the office will become an active office in the Department of Revenue on January 1st, 2022.

The purpose of the Office of Taxpayer Advocate is to provide understandable and concise information to taxpayers to answer common questions about tax policy, Department of Revenue policies and procedures, audits, collections, and appeals. The office will also assist with questions about preparation and filing of returns and locate documents filed with those returns and audits. Semi-annual reports will be provided to the legislature on any identified issues relating to issues or barriers of equitable and fair collection of taxes. The Taxpayer Advocate office will also be responsible for receiving and evaluating any complaints of improper, abusive, or inefficient service by employees of the department and recommending appropriate action to the director.

The Office will be particularly helpful for low-income Oregonians, says Alicia Temple of the Oregon Law Center in their April 15th testimony letter. Temple points out that many low-income Oregonians have a fear of the Department of Revenue and taxes in general and see the Department as “an agency that is simply out to take their money”. The Office of Taxpayer Advocate is anticipated to appease those fears by increasing transparency and developing trust between taxpayers and the Department of Revenue, which should prove beneficial to all Oregonian taxpayers and tax practitioners. The Office will benefit practitioners by making available additional materials about common tax issues and providing an additional, accessible pathway to relief for clients.

In addition to the creation of the Taxpayer Advocate Office, the bill now authorizes the Oregon Tax Court to order attorney’s fees if an opposing party disobeys any court order or makes claims and assertions without an objectively reasonable basis. Attorney’s fees can now also be awarded in cases involving transit self-employment taxes.

The bill is expected to have no revenue impact, a $571,682 fiscal impact for the 2021-2023 biennium, and a $758,937 fiscal impact for the 2023-2025 biennium. This cost includes furniture and equipment, legal costs, all salaries, and anticipated related expenses.

Modification of Guardianship or Conservatorship: Lessons From Britney Spears

The media has been all abuzz in recent months, weeks, and years about Britney Spears’ conservatorship. We all remember the fateful photo from 2007, showing Spears gleefully buzzing her signature long, blond locks. Shortly after, her father was appointed conservator for her. Fans have long suspected that Spears is dissatisfied with the structures of her conservatorship and the decisions made by her father and conservator Jamie Spears. For an internet deep dive on the topic, follow #FreeBritney. Spears has historically not spoken out against the conservatorship publicly – until now. Spears spoke to an LA County, California court for almost half an hour on June 23, 2021, airing grievances with her conservatorship, and particularly her conservator. For more information on the explosive testimony, follow this link: https://people.com/music/britney-spears-will-continue-fighting-for-future-after-shocking-court-testimony-cover-story/.

The Judge denied the request to modify the conservatorship on the basis that a formal petition had not been filed yet.

Luckily, for protected people and their families in Oregon and Washington, the courts have powers to address legitimate complaints of protected people who wish to have their guardianships or conservatorships modified or terminated – even when a formal petition has not been filed.  By way of background, a guardian is someone who is appointed by a court to protect and care for the health and well-being of another person. A conservator is someone who is appointed by a court to protect and care for the financial resources of another person.

In Oregon, the court has a wide latitude to appoint an attorney for a protected person – someone who can advocate for the rights of the protected person. Oregon statutes recognize the very grave nature of removing rights from a person, and caution courts to make orders only as restrictive as necessary. ORS 125.300(1), provides . . . “A guardianship for an adult person must be designed to encourage the development of maximum self-reliance and independence of the protected person and may be ordered only to the extent necessitated by the person’s actual mental and physical limitations.” The attorney for the protected person can help advocate for less restrictive supports and alternatives to the guardianship.

In Washington, the court also has wide latitude to appoint an attorney for a protected person. (RCW 11.88.045). The attorney for a protected person advocates for the protected person, and is separate and distinct from a guardian ad litem. The court may also appoint a guardian ad litem to investigate the complaints against the guardian (or conservator), or if it finds good cause. Washington statutes also recognize the importance of personal liberty interests and caution courts to make orders only as restrictive as necessary. “It is the intent of the legislature to protect the liberty and autonomy of all people of this state, and to enable them to exercise their rights under the law to the maximum extent, consistent with the capacity of each person. The legislature recognizes that people with incapacities have unique abilities and needs, and that some people with incapacities cannot exercise their rights or provide for their basic needs without the help of a guardian. However, their liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs.” RCW 11.88.005.

Those who are subject to a guardianship or conservatorship who would like their rights restored should seek the advice of an attorney to understand better whether modification or termination is right for them.

Changes Coming to Oregon Noncompete Agreements

Changes Coming to Oregon Noncompete Agreements

On May 21, 2021, Oregon Governor Kate Brown signed Senate Bill 169, amending Oregon’s statute governing employee noncompete agreements, ORS 653.295. Effective January 1, 2022, employee noncompete agreements entered on or after that date will need to comply with four notable changes under the modified statute.

Unlawful Noncompetition Agreements are Void Instead of Voidable

Under the current version of ORS 653.295, a noncompete agreement that fails to satisfy the requirements of the statute is voidable rather than void—meaning that an employee bears the burden of taking some affirmative step to demonstrate their intent to void an unlawful noncompete agreement. Under the new iteration of the statute, noncompete agreements that fail to comply with all of the requirements of ORS 653.295 will be rendered “void and unenforceable,” regardless of what steps an employee does or does not take to void the unlawful agreement.

Revised Minimum Salary Requirements

Currently, for a noncompete agreement to be valid, employees must earn a salary that exceeds the median income for a four-person family, as determined by the U.S. Census Bureau. Moving forward under the amended statute, an employee’s annual gross salary must exceed $100,533 at the time of the employee’s termination, and this compensation amount will be adjusted annually for inflation.

Reduced Limit on Post-Employment Restriction Period

The current maximum period for post-employment restrictions in a noncompete agreement is 18 months, and any restricted period that exceeds 18 months is voidable rather than void. With the amendments to the statute, the period for post-employment restrictions is limited to 12 months, and any post-employment restriction period that exceeds 12 months is rendered void and unenforceable.

“Garden Leave” Option for Non-Qualifying Employees

Under the current statute, an employer can impose a noncompete agreement on an otherwise non-qualifying employee—that is, an employee that is not paid on an exempt, salary basis, or an employee who is not paid the statutory minimum compensation mentioned above—by use of the statute’s “garden leave” option. Using this option, an employer can unilaterally enforce a noncompete agreement on a non-qualifying employee by paying the employee during the restricted period: (1) a minimum of 50% of the employee’s gross annual salary at the time of the employee’s termination; or (2) 50% of the median income for a four-person family, as determined by the U.S. Census Bureau.

The option to enforce noncompete agreements against non-qualifying employees remains available to employers under the amended statute. To exercise this option an employer will need to confirm, in writing, payment to the employee that is the greater rate of either: (1) 50% of the employee’s gross annual salary at the time of the employee’s termination; or (2) 50% of $100,533, as adjusted for inflation.

Outside of the amendments, several existing limitations on noncompete agreements will remain unchanged under the new version of ORS 653.295. These continuing limitations include—among others—a requirement to notify employees in writing two weeks before the first day of employment that a noncompetition agreement is required as a condition of employment, and providing the employee with “a signed, written copy of the terms of the noncompetition agreement” within 30 days of termination of employment.

Finally, the limitations set out by ORS 653.295 do not apply to all types of restrictive employment agreements. Most notably, under the current and amended statute, the law only applies to employee noncompete agreements and does not apply to confidentiality agreements or agreements not to solicit an employer’s customers or employees.

Pasieczny Appointed to FINRA’s National Arbitration and Mediation Committee

SYK is pleased to announce that attorney Darlene Pasieczny (“Pah-shetch-nee”) has been appointed by the Board of Governors for the Financial Industry Regulatory Authority (FINRA) to serve a three-year term on the National Arbitration and Mediation Committee (NAMC).  Darlene will serve as one of the “Public” members of the national 13-person advisory committee.  The NAMC reviews and recommends rules, regulations, procedures and amendments relating to arbitration, mediation, and other dispute resolution matters to FINRA’s Board.

FINRA is a self-regulatory organization authorized by Congress to regulate broker-dealers and associated persons (such as stockbrokers), and it operates national dispute resolution program.  Claims by investors against their broker for securities-related misconduct causing recoverable investment losses are commonly filed in FINRA Arbitration.  FINRA also operates a growing FINRA Mediation program for informal resolution of securities disputes.

Darlene currently serves on the Board of Directors and is Treasurer for the Public Investors Advocate Bar Association (PIABA).  She is also the Chair of the Securities Regulation Section of the Oregon State Bar for 2021.

Congratulations Darlene!

Lake Oswego Chamber of Commerce

SYK is pleased to announce that Anastasia Yu Meisner has recently been selected as an Ambassador for the Lake Oswego Chamber of Commerce. The mission of the Chamber is to strengthen local business though education, advocacy and community partnerships. The Chamber provides a wide range of business support including weekly networking events to promote local businesses, business grants, PPP loan information, free PPE, Small Business Administration information, business and leadership development, and opportunities to spotlight area businesses.

For more information about the Lake Oswego Chamber of Commerce, click the following link https://lakeoswegochamber.com/

Police Training Needed to Raise Dementia Awareness

Police actions and training have been the focus for some time now, but our elders need to be included when there are conversations about reform.  Specifically, better training when it comes to identifying dementia and working with those that struggle with the insidious disease would necessarily lead to less frightful and concerning interactions.

In Colorado, a slight 73-year-old woman of 80 pounds was recently wrestled to the ground after leaving Walmart without paying for $13.88 in merchandise.  The police video footage shows that there were no efforts to talk with the demented woman to assess her awareness or understanding of the situation, before her arms were wrenched behind her and she had a male police officer on top of her, all while she was crying, “I’m trying to go home.”  Civil claims and criminal investigations are on-going.

It is heart-breaking, and a reminder to us all to slow down, and use patience and calmness when interacting with people with dementia.  In fact, let’s just try use that standard in ALL of our interactions with ALL of our fellow humans.