It’s Almost Time: DOL Overtime Exemption Rules Effective Dec. 1, 2016

Ruth Binger

By Ruth Binger



Changes are coming soon to overtime exemption rules. Issued in May 2016 by the United States Department of Labor (DOL), the updated final overtime rule (Final Rule) will be effective December 1, 2016.

Under the Fair Labor Standards Act, unless considered “Exempt,” an employee must be paid overtime pay of time and one half of regular hourly rate (150%) for all hours worked over 40 in a seven-day regular workweek. Currently, in order to be exempt, the employee must meet all parts of a three-part test:

  1. Salary level test (currently $455 per week or $23,660 per year),
  2. Salary Basis test (employees must be paid a pre-determined salary that is not subject to reductions based upon quality/quantity of work), and
  3. Duties Test for White Collar Employees. Employees engaged in bona fide executive, administrative, or professional capacities that meet a prescribed “duties test” (including any employee employed in the capacity of academic administrative, or teacher in elementary or secondary schools or in the capacity of an outside sales employee, computer systems analyst, computer programmer, software engineer and other similarly skilled computer engineer (“White Collar Exemptions”).

The Final Rule changes effective in December 2016 are only directed to the Salary Level Test; the remaining two parts remain the same. Those changes are as follows: Continue reading »

Update: Governor Vetoes Missouri Senate Bill Imposing New Requirements on Health Care Providers

Katherine M. Flett

By Katherine M. Flett



On July 5, 2016, Governor Jay Nixon vetoed Missouri Senate Bill 608. In his veto letter, Governor Nixon offered reasons that are unrelated to the “Health Care Cost and Transparency Act” provision of the Bill. Specifically, he opposed the provision of the Bill that would impose fees on MO HealthNet participants for missing appointments or failing to provide twenty-four hour cancellation notice. The Bill would also prohibit a MO HealthNet participant from scheduling another appointment until the fee is paid. Governor Nixon argued that this would needlessly punish our state’s most vulnerable citizens, calling the fees “cruel and punitive.”

He used the opportunity to criticize the legislature for refusing to expand Medicaid edibility over the past four years, costing Missouri billions of dollars in federal funding. He argued that Medicaid needs to be strengthened in Missouri, noting that currently, in order for an individual to qualify for Medicaid in Missouri, a single parent with two children can make no more than $3,600 per year. “Strengthening Medicaid would provide health coverage to an additional 300,000 working Missourians, create thousands of jobs in high-paying health care fields, and generate millions of dollars in revenues for other priorities.” Continue reading »

Short-term Rentals Via Internet Outlets: Three Tips for Homeowner & Condominium Association Boards

Jeffrey R. Schmitt

By Jeffrey R. Schmitt



Community associations continue to struggle with the emergence of the “sharing economy” issues raised by AirBnB, VRBO and other online outlets (see CNN Money article: Why everyone is cracking down on Airbnb).

When addressing these issues, condominium, townhome, and neighborhood association boards should consider the following steps as a proactive approach to maintaining their desired community environment:

  1. Be vigilant. The good news is that you are only a few mouse clicks away from finding out whether your owners are making short term or transient leases. Nearly all of these sharing economy services are online and searchable by location. Additionally, urge other residents to keep an eye out for new faces on a regular basis.
  1. Know the rules. Does your association prohibit short term leasing or lodging? Is permission required to rent? Do tenants have access to all common areas?  The answers to these questions should all be found in your governing document, the declaration or indenture and possibly in your rules and regulations as well. Know the rules of the game and consider whether they should be updated or amended to address emerging issues.

Continue reading »

Passage of Missouri Senate Bill 608 Imposes New Requirements on Health Care Providers

Katherine M. Flett

By Katherine M. Flett



On May 25, 2016, Missouri Senate Bill 608 was passed by the Missouri House and Senate.  The Bill adds new requirements to the provision known as the “Health Care Cost and Transparency Act.” Beginning July 1, 2017, the new law would require all licensed health care providers, facilities, and imaging centers to provide an estimate on the cost of a particular health care service or procedure within three business days of a written request from the patient, along with a medical treatment plan from the patient’s health care provider. The estimate must only include those services within the direct control of the health care provider and the amount that will be charged to a patient if all of the charges are paid in full by the patient, without a public or private third-party paying for any portion of the charge. Further, these provisions do not apply to charges for hospital emergency departments.

If health care providers provide publicly available links to the estimated costs or post such costs on a publicly available website, they are not required to provide cost estimates to patients upon written request.

Beginning also July 1, 2017, hospitals will be required to make publicly available the amount that would be charged, without discounts, for each of the 100 most prevalent diagnosis-related groups, as defined by Medicare. Continue reading »

Eighth Circuit Rejects Obesity as an Impairment Under the ADA: Morriss v. BNSF Railway Company

Katherine M. Flett

By Katherine M. Flett



The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) was enacted for the purpose of broadening the scope of the American with Disabilities Act (ADA). The ADAAA expanded the definitions of “major life activities” and “substantially limits,” while also increasing protection for those who are “regarded as” having a disability.  Over the years, the ADAAA has been criticized for being too broad.  However, three circuits have now rejected the idea that obesity, without an underlying physiological disorder or condition, is a disability under the ADA.

In Morriss v. BNSF Ry. Co, Case No. 14-3858 (8th Cir. April 5, 2016), the Eighth Circuit Court of Appeals affirmed a Nebraska district court’s decision, ruling that for obesity to constitute an “impairment” under the ADA, one must prove that the obesity is the result of a physiological disorder or condition.

In March 2011, Melvin Morriss, applied for a machinist position with BNSF Railway Company (“BNSF”). Morriss was extended an offer of employment contingent on a satisfactory medical review.  A subsequent physical examination indicated that Morriss was 5’10”, 285 pounds, with a BMI of 40.9. BNSF’s policy was to not hire obese (defined as having a BMI of 40 or higher) applicants for safety sensitive positions. Therefore, Morriss was notified that he would not qualify for the safety sensitive machinist position due to his obesity. Continue reading »

Best Practices for Avoiding Misleading Browsewrap and Clickwrap Agreements in Cyberspace

Ruth Binger

By Ruth Binger



Visiting a website and merely viewing its contents can bind you to an internet “Terms and Conditions” or “Terms of Use” (“browsewrap” or “clickwrap”) contract.

Website owners, as technology providers, have a dilemma as they wish to facilitate business in the most efficient way. Maintaining the integrity of their software by controlling the scope of the limited software license they are offering is essential to protecting their copyrighted technology.

Given website owners are offering their services to the world, a pressing concern is a disgruntled website user who sues via a class action in the user’s home state. The issue for the courts is how many dispute resolution pre-existing legal rights a website owner can remove through its browsewrap contract, often called “Terms and Conditions,” if the website user receives little to no notice of its existence or has no knowledge that such a notice refers to a binding contract.

If you look carefully at a website you frequently use, you are likely to see various notices in capital letters in highlighted colors referencing that your use of the website is an automatic agreement to the website policies of privacy and terms and conditions. You may not know that this means you are binding yourself to a contract. If you do click on that bothersome notice link, you will most likely notice a nonnegotiable contract that contains a choice of law, agreement to arbitrate, and/or class action waiver. Given the limited attention span of a website user, most users will not click on the link. This is especially true if the website owner has buried the notice at the very end of the page, made it as inconspicuous as possible, and does not require any action to proceed with using the website. Continue reading »

Separate Spousal Tax Liability for Missouri Income Taxes

Marcia Swihart Orgill

By Marcia Swihart Orgill



If a married couple files a joint federal income tax return, both spouses are jointly and severally liable for the full amount of federal income tax liability for that tax year. Joint and several liability means the Internal Revenue Service can collect the full amount of income tax from either or both spouses, regardless of whether the income tax liability is attributable to the separate income of only one spouse.  A divorce does not prevent the IRS from collecting the entire unpaid income tax liability from either of the spouses.  Under certain circumstances, a spouse may obtain relief from joint and several tax liability by timely filing Form 8857 and proving a claim for innocent spouse relief, separate liability or equitable relief.

By contrast, a married taxpayer who files a combined Missouri income tax return is liable only for the amount of Missouri income tax liability attributable to his or her own income. A taxpayer’s  separate income includes his or her earned income such as wages, income from his or her own separately owned property, and his or her portion of income from jointly owned property, such as interest from a jointly owned financial account.

Missouri law requires a married couple who files a joint federal income tax return to file a combined Missouri income return.  The income of each spouse is reported separately on the combined return. The Missouri tax due on each spouse’s income is separately determined and then added together and reported on the return.

However, in assessing unpaid income tax liability, the Missouri Department of Revenue does not track which spouse’s income gave rise to the liability. Instead, in practice the Missouri Department of Revenue assesses the entire income tax liability against each spouse, even if the tax liability is only attributable to the income of one spouse. Continue reading »

Investment Crowdfunding Will Be Legal But Will It Be an Improvement?

Joseph R. Soraghan

By Joseph R. Soraghan



In the JOBS Act adopted in April 2012, Congress required the Securities and Exchange Commission (“SEC”) to adopt rules legalizing (i.e., exempting from the requirement to register with the SEC) the offer and sale of securities by small business issuers (which cannot afford registered public offerings) using mass media, to-wit: the Internet, social media, etc. Historically, both state and federal exemptions required “privateness” and forbade “general solicitation.”

On October 30, 2015, the SEC, in a 686 page release, finally adopted rules (see pages 547-686) to allow investment crowdfunding (the use of mass media to make offers and sales to non-accredited investors, i.e., persons with less than $1 million net worth and incomes under $200,000 annually). The rules will become effective in April 2016.

Supporters argue that these rules simply bring the offering and sales of securities into the modern age of mass media and allow persons of limited means to participate in the great boom of entrepreneurship. Critics, on the other hand, point out that those are the very persons who are the least investment sophisticated and the most vulnerable to financial fraud.

What Was Available Before Investment Crowdfunding?

Continue reading »

Regulation Crowdfunding: Is It Right for You?

Joseph R. Soraghan

By Joseph R. Soraghan



To much ballyhoo, on October 30, 2015, the Securities and Exchange Commission (“SEC”) finally adopted rules to allow investment crowdfunding (which the SEC calls “Regulation Crowdfunding”). That is, it allows the use of mass media (Internet, etc.) (called “general solicitation”) to make offers and sales to non-accredited investors. Those are persons with less than $1 million net worth and annual incomes under $200,000. (Under present rules, general solicitation may be used only to solicit purchases from “accredited” investors.) The new rules will not become effective before April 2016.

“Regulation Crowdfunding”: A Method for True Investment Crowdfunding

Conceptually, allowance of general solicitation to solicit non-accredited investors is a sea change, in direct conflict with the basic investor protection philosophy of the SEC and state regulators since adoption of the Securities Act of 1933. The actual benefit of the new rules, however, is in some doubt. Continue reading »

No Vacancy – When Bed & Breakfasts Run Afoul of Condominium Communities

Jeffrey R. Schmitt

By Jeffrey R. Schmitt



The popularity of vacationing or traveling via bed and breakfast lodging, or, as more popularly known, “BnB,” is rapidly on the rise. The concept allows an owner with a vacant house, condominium, apartment, or even a single room, to create investment property by listing the space on a website for rent to vacation and business travelers, often for very short stays and possibly as short as a single night. Property owners can make a little extra money, and travelers can often find better accommodations at lower prices. Add in the ease of use by listing your space on the internet – airbnb.com and vrbo.com are among the most popular sites – and this is a quickly expanding industry.

Frequently, the phenomenon overlooks the legal ramifications of being a short-term landlord, or essentially acting as a hotel or lodge. Some local governments are addressing the issue and requiring that property owners apply for permitting, pay taxes, or maintain compliance with other local rules relating to lodging or short-term leasing. However, the Airbnb concept also runs afoul of various considerations applicable to community associations, specifically condominiums and townhomes. Continue reading »