LJN Newsletters

Employment lawyers have been inundated in the last few weeks with calls from clients asking how and whether the new American Jobs Creation Act affects various severance pay plans and other deferred compensation plans. If you are still recovering from the recent presidential election, or are preoccupied by the pending elections in Iraq, this one may have slipped by you. The smart thing to do would be to consult your benefits partner, as I did. In this article, I explain this new law in layman's terms and help you respond to those callers clamoring for information about this creatively titled statute.

National rulings you need to know.

Slightly more than 2% of the lawyers at 23 of New York City's largest firms identify themselves as being lesbian, gay, bisexual or transgender, according to a New York County Lawyers' Association survey. The survey, the first of its kind, also found that the participating firms prohibit discrimination against employees because of their sexual orientation or identity. Those firms also uniformly reported extending family benefits coverage they provide to married couples to same-sex couples registered with the city as domestic partners.

On January 12 the Supreme Court, in United States v. Booker, found portions of the Federal Sentencing Guidelines unconstitutional. For the last few years corporate officers and directors have been forced to take a personal interest in criminal justice and in the Sentencing Guidelines. This has been especially true after the United States Sentencing Commission raised the guideline's penalties for white-collar crime in response to the Sarbanes Oxley Act of 2002.

Recent corporate scandals have cast a harsh light on executive compensation practices ' including deferred compensation plans benefiting officers, directors and high-level executives. As part of the American Jobs Creation Act signed by President Bush on Oct. 22, 2004, Congress added Section 409A to the Internal Revenue Code. Section 409A imposes numerous restrictions on non-qualified deferred compensation plans (NQDCs) and will introduce a new compliance regime in the executive compensation arena.

In the business world, risks are commonplace and an inherent part of doing business. The goal of any business, however, is to minimize the risks that it faces ' in the most efficient manner, using the minimum amount of resources. One of the keys to running an efficient and effective business is knowing how to manage risks in the context of the overall business strategy. In the IP arena, risks management is also possible, and it begins with the IP Audit.

Recent rulings of importance to you and your practice.

U.S. Sentencing Commission statistics indicate that companies charged with federal crimes have been doing an awful job of creating effective programs to detect and deter employees' criminal acts. According to the Commission, of the more than 850 companies convicted of crimes from 1995 through 2002, only two had a compliance program that a federal judge recognized as effective. In one respect, this is not surprising, as federal prosecutors routinely argue that if a company had an effective compliance program, the company wouldn't have committed the crime in the first place, and the court wouldn't be spending its time in a sentencing hearing.