No Shark Fin Soup for You: Recent Changes to Oregon Laws

Possessors of shark fins, you now have one day (if you read this on December 30, 2011, to sell, trade or distribute any shark fins that you have in your possession. After December 31, 2011 you will no longer be able to sell, trade or distribute shark fins in Oregon without a license. California has enacted a similar law. After December 31, 2011, you also cannot possess shark fins in Oregon - unless you acquired the fin before January 1, 2012.

This begs the question, how will the authorities know if you gained possession of a shark fin before or after December 31, 2011? If you're pulled over and the officer sees the shark fin hanging from your rear view mirror you may be arrested if you cannot prove when you purchased the fin. You may want to use a permanent marker to mark the fin with the date you gained possession or if you still have the receipt, affix it to the shark fin with a stapler. You may also want to leave the fin at home.

There are also a few other laws that become effective as of January 1, 2012 in Oregon. Following is a brief rundown of some new laws and changes to old laws that become effective in 2012:

A. Drunk Driving:

The most significant change to Oregon's DUII laws is the requirement that anyone entering the DUII diversion program for a DUII arrest that occurs on or after January 1, 2012 will be required to place an ignition interlock device (IID) in their vehicle if they want to drive during the diversion period.

An IID is a small device wired to your vehicle's ignition which measures whether alcohol is on your breath. If it detects alcohol then the ignition will not start. This amendment is fairly significant since the costs associated with the installation and maintenance of the device are high. The IID device is also an inconvenient addition to a car, especially if the vehicle is the main family vehicle.

B. Cell Phone Usage:

The legislature decided to close a loophole in Oregon's ban on cell phone usage while driving by eliminating the exemption that allowed drivers to claim that they were using the cell phone for work purposes. Although the exemption was never clear, you can no longer check on the status of your fantasy team while flying down the freeway and claim that you were using the phone for "work" purposes. In principle the exemption made sense, but in reality it became difficult to enforce.

C. Estate Planning:

For an in depth look at changes in Oregon's inheritance tax laws see my earlier article entitled "Oregon Inheritance Tax Bill Passes Oregon House and Senate With Some Tweaks". Significantly, the new laws will tie Oregon's inheritance tax laws to 2010 federal estate tax laws. However, the inheritance tax exemption level remains at $1.0 million rather than the federal exemption level of $5.0 million. Essentially, the amendments make it easier to calculate Oregon's inheritance tax.

In addition to changes in the inheritance tax laws, Oregon's legislature enacted the "Real Property Transfer on Death Act". Many other states have enacted similar laws in the past which make it easier for an owner of real property (such as a parent) to transfer real property to a designated beneficiary or beneficiaries when the owner dies.

In the past, property owners frequently add a child or other individual as an owner of the real property as a joint tenant with right of survivorship. This would give the individual an ownership interest in the property and result in unintended tax consequences and other issues. By using a "transfer on death deed" the owner avoids transferring an ownership interest in the property during his life and ensures that the property will transfer to a beneficiary, or beneficiaries, automatically without the need for probate.

Although this may be an effective "probate avoidance" technique, individuals should consult with an attorney before deciding to use a transfer on death deed. The transfer on death deed is not effective in transferring the personal property in the house or on the property and cannot be used for any other assets. Consequently, even if you decide to use a transfer on death deed, additional planning will be necessary.

D. Divorce and Inheritance or Gifts from Parents

As a tie in to the above, say your dad leaves you a piece of property by transfer on death deed. After he dies, you and your wife divorce. During the divorce proceedings, your spouse wants ½ of the value of the property left to you by your father.

The old presumption was that the parties contributed equally to the acquisition of all property acquired during the marriage - including inherited property. The presumption could be rebutted if the inheriting spouse could prove that the individual making the gift or the bequest did not intend for the other spouse to inherit any portion of the property. Due to evidentiary rules overcoming this presumption was difficult.

Beginning January 1, 2012 the presumption will now be the opposite - property acquired by a party as a gift, beneficiary designation, or inheritance made to that specific individual will be presumed to be that party's separate property. In order for this presumption to apply, the spouse receiving the property must continuously keep the property separate from other marital property. In other words, depositing your $1.0 million inheritance into the joint checking account or transferring the property to you and your spouse as joint owners destroys this presumption. The presumption can also be overcome by offering proof that the gift, bequest or inheritance was intended to benefit the marital estate.

Of course, courts still have the ability to divide this property as the court deems "just and proper" depending on the facts of each case. In its application, it is possible for judges to award a spouse all separately inherited property but reducing that's spouse's interest in jointly owned property to make a "just and proper" distribution.

E. Employment Agreements

Oregon law permits employers to have employees sign employment agreements that require all disputes arising from the employee's employment to be subject to mandatory arbitration. Old law required any such employment agreement to be provided to the employee at least 14 days prior to the employee's first day of employment. The newly acted law only requires 72 hour notice. If the agreement also contains a non-competition clause you still will need to provide the agreement to the employee at least 14 days before the employee's first day of employment.

Due to the complexities associated with employment agreements, employers should consult with an attorney to bring their employment agreements up to compliance with state laws.

This list is a brief overview of some of the laws enacted by Oregon's legislature. Every year Oregon's legislature is busy changing laws and adding new ones. This list is a small sampling of the changes and additions made during the 2011 calendar year. If you have questions about these or any other changes or would like additional information you should consult with an attorney.

© 12/30/2011 Kevin J. Tillson of Hunt & Associates, P.C. All rights reserved.

Kevin J. Tillson is a Shareholder and Associate Attorney with the law firm Hunt & Associates, PC in Portland, Oregon. He is licensed in Oregon and Washington and maintains a general practice including estate planning, business law, real estate law, family law, misdemeanor criminal defense and personal injury. For additional information, please check out the company's website: http://www.huntpc.com/

View the original article here

How Will Employment Tribunal Changes Affect You?

Chancellor George Osborne has confirmed that the Government intends to implement some major changes to the process in which an employee launches claims against his employer through an employment tribunal. By doing so, Mr Osborne argues that British businesses will be saved an annual bill of around £6 million by lessening the number of cases that can add up to around 2000 per year. However, employee groups are seeing this as yet another nail in the coffin for employees' rights. How will these changes affect the ordinary, working man or woman?

Tribunal Claims.

In the first of the changes, the government is doubling the qualifying period in which an employee can be employed before they can launch a tribunal claim. Currently, an employee need only have been employed for one year before they are able to do so. But from April 1st 2012, this will become two years. Business owners welcome this as it makes it 'less risky' to hire new people, given that they will find it easier to make them redundant if they are found to be under-performing. However, employee groups believe that this system will be open to abuse by unscrupulous employers and a significant number of unfair dismissal cases will now go unreported. Dr John Philpott, Chief Economic Advisor at the Chartered Institute of Personnel and Development, warns that: "While less job protection encourages increased hiring during economic recoveries, it also results in increased firing during downturns."

Tribunal Fees.

The second change is the introduction of a fee to take an employer to trial. Although no decision has as yet been reached as to exactly how much an employee will have to pay to undertake a tribunal hearing, it has been suggested that it will cost £250 to file a claim, with a further £1000 incurred when the matter is listed for hearing. Claims in excess of £30,000 may well incur higher fees. While businesses are likely to applaud this system as it could significantly reduce the number of unfair dismissal claims seen each year. Sceptics argue that claims of this sort counted only for around 15% of employment tribunal cases seen between 2010 and 2011, and inclusion of the fee is a serious erosion of employees' rights.

However, for employers taken to tribunal, the changes will not make much difference, so it is still in their best interests to avoid tribunal action at all costs. The Government has said that it wants to increase the possibilities for non-legal resolution between employees and employers, and that this particular change is aimed at doing just that.

July 2004 saw employers raising their hands in horror as the Government introduced additional compensatory awards for hard-to-define matters such as stress, injury to feelings and personal humiliation. It seems that the pendulum is now swinging firmly in their favour, although the onus seems to be more on positive resolution outside the tribunal, rather than complete abolition of employees' rights. While it will no doubt be harder for employees with genuine grievances to launch cases, substantial sums will be saved from no longer having to deal with cases that would otherwise be 'thrown out'.

The Work Ethic are Employment Lawyers Edinburgh.

Looking for an Employment Law Solicitor?

Nick Jervis is a consultant to the Work Ethic.

View the original article here

Changes to the Construction Act 1996

Did you realise that alterations have been made to the Construction Act 1996 from the 1st October 2011? It's crucial that you stay as up to date as you can with all the current laws - this short article will share the alterations with all of you. The adjustments are referred to as Part 8 of the Local Democracy, Economic Development and Construction Act 2009 (LDEDCA) and as a result of these adjustments the Scheme for Construction Contracts has been revised as well.

The first change is the identification of payments that falls under the Construction Contract and the right to withhold payment has been rewritten. There's now a beefed up necessity for the management to offer a payment notice specifying how much he considers to be given to the contractor. If the employer does not serve this notice, then the contractor has the right to serve his own default payment notice which sets out what he considers to be paid. Whatever amount is specified in the payment notice needs to be paid unless a withholding notice is served. This basically means that loopholes have been extracted which beforehand permitted employers to prevent payment in circumstances where they had failed to serve without having a withholding notice. This change is likely to increase certainty and cash flow.

A further alteration is that 'pay when certified' clauses have been taken out. It's now not lawful to make payment conditional upon performance under another contract. It'll also be unlawful for a sub-contract to have a clause that says the sub-contractor only gets paid when the main contractor's application is authorized by the architect or engineer acting under the primary contract. There is a limited exception for 'management contracting'.

Following on from that, the adjudication laws have been altered to outlaw conditions that make one party liable for costs of adjudication no matter what the outcome. Also, a contractor is now able to claim an extension of time for any period of valid suspension or delay such as winding down, which has enhanced their right to suspend performance for non-payment. The defaulting party is also required to give the contractor reasonable costs and costs incurred in suspending performance.

The last change is that the Construction Act has now been elongated to cover contracts that are purely oral or only partially recorded on paper. If you have any kind of questions about the alterations to the Construction Act of 1996, then it's highly suggested that you go and speak to your solicitor.

Gosschalks is a trusted legal firm that specialises in this area. If you wish to find out any more information about this, a good idea would be to turn to Gosschalks.

View the original article here