Thursday, October 25, 2018

401k Plan Fees for Employers

401k Plan Fees for Employers

A participant-directed retirement savings plan, such as a 401(k) plan, is an important tool to help your employees achieve a secure retirement. As part of offering this type of program, you or someone you choose must select the investment options from which your employees will choose, select the service providers for the plan, and monitor the performance of the investments and the provision of services. All of these duties require you to consider the costs to the plan. This brochure can help you ask the right questions to better understand and evaluate the fees and expenses related to your plan.

You or the person you select to carry out these responsibilities must comply with the standards provided under the Employee Retirement Income Security Act of 1974 (ERISA). This federal law protects private-sector pension plans. The law’s standards include ensuring that you act prudently and solely in the interest of the plan’s participants and beneficiaries.

Understanding fees and expenses is important in providing for the services necessary for your plan’s operation. This responsibility is ongoing. After careful evaluation during the initial selection, the plan’s fees and expenses should be monitored to determine whether they continue to be reasonable. While ERISA does not set a specific level of fees, it does require that fees charged to a plan be “reasonable.”

Of course, the process of selecting a service provider and investment options should address many factors, including those related to fees and expenses. You must consider the plan’s performance over time for each investment option. This selection process and continual monitoring will make it possible for your employees to make sound investment decisions. As part of your evaluation process, here are 10 questions to help focus your consideration of fees and expenses:

  • Have you given each of your prospective service providers’ complete and identical information with regard to your plan?
  • Do you know what features you want to provide (e.g., loans, number of investment options, types of investments, Internet trading)?
  • Have you decided which fees and expenses you, as plan sponsor, will pay, which your employees will pay, and/or which you will share?
  • Do you know which fees and expenses are charged directly to the plan and which are deducted from investment returns?
  • Do you know what services are covered under the base fee and what services incur an extra charge?
  • Do you know what the fees are for extra or customized services?
  • Do you understand that some investment options have higher fees than others because of the nature of the investment?
  • Does the prospective service arrangement have any restrictions, such as charges for early termination of your relationship with the provider?
  • Does the prospective arrangement assist your employees in making informed investment decisions for their individual accounts (e.g., providing investment education, information on fees, and the like) and how are you charged for this service?
  • Have you considered asking potential providers to present uniform fee information that includes all fees charged?
  • What information will you receive on a regular basis from the prospective provider so that you can monitor the provision of services and the investments that you select and make changes, if necessary?

Retirement Plans for Businesses in Utah

Provide all prospective service providers with complete and identical information about the plan and what you are looking for so you can make a meaningful comparison. This information includes the number of plan participants and plan assets as of a specified date.

Consider the specific services you would like provided. For example, the types and frequency of reports to employer, communications to participants, educational materials and meetings for participants and the availability and frequency of participant investment transfers, the level of responsibility you want the prospective service provider to assume, what services must be included and what are possible extras or customized services, and optional features such as loans, Internet trading and telephone transfers.

  • Make informed decisions in selecting and monitoring your plan service providers and investments.
  • Fees are just one of several factors you need to consider in your decision making.
  • All services have costs. Compare all services to be provided with the total cost for each prospective provider.
  • Consider obtaining estimates from more than one service provider before making your decision.
  • Cheaper is not necessarily better.
  • Ask each prospective provider to be specific about which services are covered for the estimated fees and which are not. To help in gathering this information and in making equivalent comparisons, you may want to use the same format for each prospective provider. See EBSA’s Web site for an example of a uniform fee disclosure format to assist in your selection and monitoring process.
  • Fees and expenses can have a significant impact on your employees’ retirement savings.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wednesday, October 24, 2018

Three Things to Consider in Divorce

Three Things to Consider in Divorce

It is easy to make small mistakes that have a big impact during divorce. When thinking about divorce, skilled legal counsel helps you anticipate problems that could dim a bright post-divorce future.

If the health of your marital relationship is uncertain, consider these tips:

  1. Financial literacy: If you suspect your spouse is thinking of divorce—or if you are—get a good understanding of your financial situation. Know where and how your wealth is held. Make copies of important documents and tax returns. If you are not familiar with the finances, review account statements to ensure unexplained sums were not transferred out of investment or other accounts.
  2. Keep conflict low: Lower conflict divorces cost less in time and money. Mediation is a terrific avenue toward divorce for couples who can still work together for their common good.
  3. Loose lips: If your spouse makes an informal promise that sounds too good to be true at the outset of divorce, it probably is. Do not agree to conditions proposed by a spouse without speaking with an attorney, especially if there seems to be a threat involved. Before, during and after a contested divorce, be careful about what you say to mutual friends and what you write in an email or on social media websites.

Updating Your Will or Trust After Divorce

If you’ve been through a contested divorce, you’ve already fought to hold onto your separate property and a fair portion of your marital estate. So why let your estate plan give it all back to your ex? That’s what could happen if you don’t review your testamentary documents and financial products that list your beneficiaries.

After divorce, you need to revise your will for a couple of reasons. First, you might not have retained ownership of all the property that’s listed. You can’t give away what you don’t own. But more importantly, your ex-spouse is probably first and foremost among your beneficiaries. If something should happen to you before you revise your will, your worldly wealth may be headed toward the person you least want to get it.

Now, take a look at your financial instruments. The insurance policies, annuities, brokerage accounts and bank accounts you held onto almost certainly have a beneficiary listed. Upon your passing, those instruments transfer automatically to the named beneficiary, who is most likely your ex-spouse.

And what about your retirement plan? If you were the primary earner in your marriage, the court probably severed your qualified plan – 401(k) or IRA – with a qualified domestic relations order (QDRO). But if you were part of a two-career household, your retirement accounts could still be intact. If so, they no doubt name your ex as the beneficiary.

Finally, did you create a trust to hold any of your separate property? Take a look at the named beneficiary there. If it’s a revocable trust, you can amend it, naming someone else. If it is an irrevocable trust, you will need the beneficiary’s permission to make that change. If you didn’t bring that up with your ex during your divorce, good luck handling it now.

Understanding Divorce

In hindsight, people who have been divorced can usually offer advice on how their divorce lawyer helped or hurt their case. If thinking about divorce, it is important you understand up front the need for good legal counsel for any family law matter.

Divorce is the process of dissolving the legal relationship between you and your spouse. While you do not need to hire an attorney, the decisions you make during divorce impact your life far into the future. Before you are granted a divorce, you must resolve issues with your spouse concerning property, finances, support and children.

Experienced attorneys who handle family law are seasoned litigators who understand contract law, property division, the rights of mothers and fathers, child custody and the civil and sometimes criminal court system. Choosing the right Lawyer has a tremendous impact on the outcome of your case and your fortunes down the road. So what do you need?  Consider these points:

  • Experience: Retain an attorney who practices solely in family law. Even if your friend the personal injury attorney is willing to help you out, ask for a referral instead.
  • Ability: Even simple, amicable divorces can turn into bitter high conflict cases. High conflict cases give divorce a bad name, so make sure you have aggressive counsel willing to protect your rights.
  • Forum: Choosing an attorney unafraid to mediate or litigate gives you options for handling your case, whichever way it turns.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Overview of the DMCA

Overview of the DMCA

As an Intellectual Property Lawyer, I’m often asked about the DMCA. You know, copyrights provide an important protection to authors and artists who create original works that are fixed in a tangible form, such as a painting on canvas. When the creator of a work copyrights his or her work, it gives the creator certain exclusive rights. These rights allow the author or artist to preserve the originality of the work and enjoy the benefits of the work’s success without the fear of having someone else copy the work. The copyright owner also has the right to authorize others to perform the exclusive rights or transfer his or her rights to others.

As technology changes, laws must change as well. For example, the Internet has made sharing copyrighted works much easier, effectively diminishing the protections provided by copyrights. The Digital Millennium Copyright Act (DMCA) is an amendment to the copyright laws of the United States, which was enacted in response to the apparent lack of laws that addressed the nature of technology and how it affects the older copyright laws.

Reasons for Enactment of DMCA

The growing opinion of people just before the drafting of the DMCA was that new technologies allowed users to freely transfer music, texts, and other works of art to other people. This was especially true of the Internet, which made downloading music, text, and movies easier than ever before. Copyright holders felt that many of the laws currently on the books did not provide enough protections for their works.

Alongside the copyright holders’ demands for more protections, foreign governments were demanding more protection for copyright holders in their countries. For instance, the United States demanded that China enforce international copyright laws by finding and prosecuting software pirates and other violators of U.S. copyrights.

As a result of these sentiments, the U.S. signed two treaties that offered more protections for international copyright holders and also addressed technology issues relevant to keeping copyrights safe. These treaties, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT), were signed by the United States in December of 1996 and ratified by Congress. These treaties were written with the intention of extending around the world protections for copyright holders in their respective countries. They also motivated the United States to pass laws recognizing copyrights from other countries.

What Does the DMCA Do?

The DMCA makes it a criminal act to produce and disseminate devices, services, or technology that evades measures that control access to copyrighted works. The law also makes the act of circumventing an access control a crime, even if there was no actual copyright infringement, and increases the penalties for any copyright infringement that is done on the Internet.

The DMCA also addresses the role of online service providers in copyright infringement. The law does not hold Internet service providers directly or indirectly liable for any copyright infringement that occurs through the use of their services, provided they adhere to certain guidelines. One action required of online service providers is to block access to or remove infringing material when they receive notice of an infringement claim from a copyright owner. Please keep in mind that the DMCA only addresses copyrights, not other forms of intellectual property, such as patents or trademarks.

Free Consultation with a Utah IP Lawyer

If you are here, you probably have an intellectual property law issue you need help with, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Tuesday, October 23, 2018

Things to Include in Your Child Custody Agreement

Things to Include in Your Child Custody Agreement

Every child custody agreement will have its own unique elements. But in general, there are certain items you will absolutely want to include in your own agreement. Here are a few of those most essential elements:

  • Custody descriptors. You need to clearly outline who has both physical and legal custody of the children. Physical custody refers to who is the physical guardian, while legal custody refers to a parent’s ability to make decisions on the child’s behalf. There are different arrangements. Sole custody gives one parent both legal and physical custody, while joint custody gives both parents a shared amount of legal and physical custody.
  • Who makes certain decisions. If you want one parent to be in charge of specific decisions regarding the upbringing of the child, such as medical care, education, religion and extracurricular activities, it should be included in your custody agreement.
  • How you’ll divide costs. Raising a child is expensive. Even when taking child support into account, both parents will likely need to split certain costs. You should have a clear outline of who is in charge for which expenses — or how much of a particular expense. For example, who pays for medication? Who pays for school costs? Which parent claims the child as a dependent on tax returns?
  • When visitation will occur. If one parent has sole physical custody of the child, you should have a thorough, clear visitation schedule implemented in your child custody arrangement so there can be no debate later on about the non-custodial parent’s rights. This plan should address holidays, frequency of visitations and any other issues that could arise between you and your spouse.
  • Future plans. You need to leave some room for flexibility to either amend the agreement down the road or to cover how you will address general issues not currently covered by your agreement.

Complexities of Child Custody Involving Unmarried Parents

When unmarried parents end their relationship, they must go through many of the same motions to establish custody as legally married parents. Nevertheless, there can be certain complexities that apply when establishing custodial rights of unmarried parents.

Importance of establishing paternity

Unlike their married counterparts, when an unmarried couple has a child paternity is not assumed, but must be established. During and after the unmarried couple’s split, the unmarried mother is typically given a primary right to custody, care and control of children resulting from the relationship.

If an unmarried father wishes to have partial or full custody of a child, he must establish paternity through a court order or by having his name listed as the father on the child’s birth certificate. However, if a child was born while the mother was married to someone other than the biological father, the mother’s legal spouse will be listed as the father on the child’s birth certificate. In this case, the biological father may file a paternity petition.

Once paternity is established, the father may be awarded partial custody of the child. If the mother is deemed to be unfit to parent or has abandoned the child, then a father may be able to establish full custody.

Child Support for custodial parents

Unmarried parents who have custody of their child may receive child support. As with married couples, child support is determined based on incomes of both parents and the amount necessary to properly look after a child. An exemption to this standard would be if a non-biological parent adopts the child. When another party adopts a child, the biological parent’s financial responsibilities to that child are terminated.

Free Consultation with Child Custody Lawyer

If you have a question about child custody question or if you need to collect back child support, please call Ascent Law at (801) 676-5506. We will aggressively fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Small Business Debt Collection

Small Business Debt Collection

If you own a small business, you may know how difficult debt collection can be. Small business debt collection is often one of the main failing points of many businesses throughout the country. With a little practice and courage, however, you may be able to lessen the amount of late payments that are due to you, and even develop an understanding of when to expect non-payment from a customer. If you can learn effective communication skills, you may find that you can spot problems before they become too big, or even before they happen at all.

Types of Late Paying Customers and Clients

In general, small business debt collection has to do with collecting monies owed from customers and clients who fall into three categories:

  • Customers and clients that will go to any length to avoid paying.
  • Customers and clients that tend to have many payments due at once and pay them sporadically.
  • Customers and clients that normally pay on time, but cannot because of financial trouble.

In general, you will want to ensure that your clients and customers fall into the last two categories. You will be able to manage and work with those that fall into the last two categories because they have a history of making full or partial payments. As a small business owner, however, you need to be able to devise a strategy and method for figuring out which clients and customers fall into the first category. In general, you will want act quickly with regards to the first kind of customer, perhaps by calling a collections agency or considering litigation to collect the debt owed.

There is a general rule that should be applied in all small business debt collection — act quickly and stay determined. No matter what kind of client or customer you are dealing with, acting quickly will ensure that you maintain your right to the money owed, and staying determined can ensure that you get paid in full. You should send bills and reminders to debt-owing clients and customers on a regular basis. There is no reason to wait until the end of a month to send an invoice or a past-due notice, send them immediately when the invoice comes in or when an amount is past-due.

Collections agencies are regulated through the Fair Debt Collection Practices Act, which prohibits certain actions that may be considered harassment or fraud. What follows are some more helpful hints for small business debt collection:

  • Avoid harassing the people that owe you money. This is both a good customer service policy as well as a good legal policy. If your actions can be considered harassing, you may wind up losing a customer as well as facing a legal challenge. If you call your debtors, be sure not to leave more than one message per day, and never threaten or speak ill of a debtor.
  • Keep phone calls short. To keep phone calls short, be sure that you are on message, short and formal. Try to be sure that the person on the other end of the line does not take the phone call personally. Do not imply that failing to make a payment is the same as a personal failure. Be sure to stay calm during the conversation, but always be clear that there is a debt that needs to be paid.
  • Write letters. The letters that you write to your customers and clients that owe money are called demand letters. You should be sure to send these in addition to making phone calls. Save copies of each letter you send. They may be useful if you have to go to a collections agency.
  • Get a collection agency to write demand letters. Collection agencies are professionals when it comes to getting money that is past due. Therefore, it is no wonder that they write great demand letters as well. Many collections agencies offer this letter writing service at a fixed cost. You will normally get a series of letters to mail, each one escalating in intensity.
  • Offer to settle for less than is due. If you think that a debtor would be willing to do so, you may want to offer to settle for less than is due to your small business. This is an often used strategy on clients and customers that have no real hope of paying off the debt they owe. This settlement should be made official in a legal document that shows a payment of less than is due that satisfies the entire debt.
  • Hire a collection agency. Collection agencies can often be your only hope to collect any money from a debtor. These agencies often charge up to 50 percent of what they collect, but getting some money is often better than getting nothing. You can find out more about collection agencies by visiting the Commercial Collection Agency Association.
  • Small claims court. If you do not want to go through a collection agency, you have the option of filing a lawsuit to get the money you’re owed. Depending upon your state, you may be able to file a claim in small claims court to recover the money owed to your business. Small claims court is a great arena for small businesses, as these courts are designed to eliminate the high costs of attorneys and other court fees. In fact, small claims courts are such a popular tool for businesses to use to collect debts that, according to at least one source, 60% of all filings in small claims courts are by small businesses.
  • File a lawsuit. If small claims court is not an option for you, and the amount of money is too great to hand over 50% of it to a collection agency, you may have to file a lawsuit in order to recover the debt. There are higher costs associated with this method, however, such as fees for attorneys as well as court costs.

 

Free Consultation with a Utah Small Business Debt Collection Attorney

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, October 22, 2018

Financial Tips for Women Going through Divorce

Financial Tips for Women Going through Divorce

For many people, divorce can be expensive. Between the legal fees and tax implications, the average divorce in the United States costs about $20,000. Furthermore, many people make some key mistakes during the divorce process that can cost them even more in the long term.

The following are some common financial issues women should be aware of as they approach divorce:

  • Don’t wait for child or spousal support money: Many women fail to realize that if they are seeking alimony or child support from their former spouses, they do not have to wait until the divorce is finalized to receive it. They may request a consent order to provide temporary support until a more permanent agreement may be reached.
  • Separate accounts as soon as possible: When a divorce is impending, some individuals may spend money and rack up debt, knowing that his or her former partner will have to share that debt. To avoid this issue, be sure to separate your accounts as soon as you can, and open up new accounts in your name alone.
  • Figure out health care: If you are on your spouse’s health insurance plan, you may have the option of keeping that policy as part of the divorce negotiation process. If that’s not a good option, you need to start thinking about how you will approach health care for both you and your kids, if needed.
  • Make a plan: A divorce can significantly disrupt your financial situation, and there are some short-term costs that can pile up if you’re not careful. Be sure to budget accordingly and borrow money from a family member or friend if you need to cover some expenses during or immediately after your divorce.

Couples More Likely to Get Divorced Upon Returning from Family Trips

According to research from sociologists at the University of Washington, divorce tends to be much more likely after couples get home from family vacations. It’s perhaps one of the primary reasons why divorce rates tend to spike in January and August of each year—those are the times right after the holidays and at the end of kids’ summer vacations, respectively.

There are numerous reasons why this might be the case. Couples may try to hang on to their struggling relationships through a family vacation, sometimes believing that the trip will help them reconnect. Or, they may wish to provide the family with one last positive experience before pursuing divorce. Regardless, problems in a relationship rarely go away with a vacation.

Vacations, holidays can expose underlying issues

According to the University of Washington study, vacations often highlight the tensions and conflicts couples near divorce are experiencing. There is also the factor of people having high expectations as the holidays or a vacation approach, which can make the letdown even greater once the experience is over and the relationship is still in turmoil. Meanwhile, despite the hope and excitement of the holidays, it can also be one of the more stressful times of the year, exacerbating existing conflict in a relationship.

Free Consultation with Divorce Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will fight for you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Wrongful Termination Laws

Wrongful Termination Laws

You should always be mindful of wrongful termination laws. Firing someone for the wrong reason could land you in a whole lot of legal hot water.

A majority of employees in the United States are “at will” employees. What this means is that you can fire these employees at any time and for any reason, so long as the reason is not discriminatory, retaliatory or otherwise illegal.

Both state and federal laws are in place that prohibit employers from firing employees for certain reasons. These wrongful termination laws will apply whether the employee is at will or the employee is working under an employment contract.

Wrongful Termination Laws: Discrimination

Under federal law, it is illegal for employers to fire an employee because of the employee’s race, gender, national origin, disability, religion or age (so long as the employee is at least 40 years old). In addition to these “protected classes,” federal law also makes it illegal for employers to fire an employee because she is pregnant or has a medical condition that is related to her pregnancy or childbirth.

A majority of states also have wrongful termination laws that prevent employers from terminating employees for all of the reasons listed under the federal laws. Some states also take their wrongful termination laws further and add more “protected classes.”

For example, some states also include sexual orientation in this list of protected classes. An employer in such a state would be prohibited from terminating an employee just because they were gay or lesbian. In addition, some states write their wrongful termination laws in such a way that they cover a wider ranger of employers than the federal laws do.

Wrongful Termination Laws: Retaliation

Generally speaking, it is illegal for an employer to terminate an employee for asserting his or her rights under federal or state anti-discrimination laws. Employees have been known to build successful retaliation claims even when the underlying discrimination claim doesn’t work out in their favor. As an example, if you fired an employee for complaining that she was not receiving equal pay to the men in similar positions, you may end up losing a retaliation lawsuit even if you end up showing that your pay schedules were not discriminatory based on gender.

Wrongful Termination Laws: Refusing to Take a Lie Detector Test

Under the federal Employee Polygraph Protection Act, employers are not allowed to fire employees on the basis that they refused to take a lie detector test. In addition to this federal law, many states also have laws that prohibit employers from firing employees because they refused a polygraph test.

Wrongful Termination Laws: Aliens

Under the federal Immigration Reform and Control Act, employers are prohibited from firing employees on the basis of their alien status. So long as the employee is legally eligible for employment within the United States, an employer cannot fire that employee solely on the basis of their alien status.

Wrongful Termination Laws: Complaints about OSHA Violations

Under the federal Occupation Safety and Health Act (OSHA), employers are prohibited from terminating employees because they make complaints about the employer’s OSHA violations. These complaints are often made about an employer that does not meet state or federal health and safety standards.

Wrongful Termination Laws: Violations of Public Policy

There are a number of states that have laws that prohibit employers from terminating employees when the terminations are in violation of public policy. In other words, these laws stop employers from firing employees for reasons that the public would find morally reprehensible or ethically wrong. These laws are often difficult for employers to follow, as morals and ethics are subjective and will vary from state to state. It is not uncommon for some state laws to differ form the laws of other states.

However, despite this subjectivity, there are some common themes that are found in many states’ laws. Many states agree that the following would be in violation of public policy:

  • Terminating an employee because he or she refused to commit an illegal act that was ordered of her by a superior (such as refusing to destroy documents that must be maintained according to state or federal law).
  • Terminating an employee because the employee complained about his or her employer’s illegal activities (such as firing an employee that made a complaint to the federal government about his employer’s illegal dumping of toxic materials). These laws are often referred to as “whistleblower statutes.”
  • Terminating an employee because the employee exercised his or her legal right (such as taking a permissible family leave).

Employer Fears about Wrongful Termination Laws

Even the most careful employer that follows all of the guidelines that are set out above can feel uncomfortable about wrongful termination laws. Many employers fear that a former employee will come back with a lawyer in tow and file a wrongful termination lawsuit. One way that you can alleviate these fears is to have all outgoing employees sign a “release” where the employee agrees not to sue the employer in exchange for some benefit (such a severance package).

Free Consultation with a Utah Business and Employer Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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