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Cypen & Cypen
JULY 12, 2007

Stephen H. Cypen, Esq., Editor

Never Forget - September 11, 2001


In a strongly-worded letter to him, Raymond T. Edmonson, Jr., retired Fort Lauderdale police officer and Executive Director of the Florida Public Pension Trustees Association, has blasted Fred Grimm’s recent Miami Herald column (see C&C Newsletter for June 28, 2007, Item 6). Edmonson concedes that public employment is another world -- one in which Grimm has never worked and does not understand. Edmonson agrees that public safety employee unions have represented their members well. He laments that they could not represent general employees, teachers and Miami Herald employees (who, according to Grimm, have paltry retirement benefits.) He also points out something Grimm conveniently overlooked in his column: local defined benefit public pension systems have mandatory employee contributions and the vast majority of benefits (75%) come from self-generated investment earnings! In closing, Edmonson says “Another thing you touched on was 911. Well you touched a nerve. How many reporters were killed running into the buildings to help others? You failed to mention the nine firefighters killed in Charleston. How about the 150 – 160 Police officers who are murdered each and every year? I must admit you are right, it is another world.” We always liked Ray, but now he has gone up another notch in our estimation.


On June 27, 2007, the U.S. Department of Labor released Family and Medical Leave Act Regulations: A Report on the Department of Labor’s Request for Information, a comprehensive review of the thousands of public comments received in response to the Department’s Request for Information about the Family and Medical Leave Act regulations and their impact in the workforce. The report comprises eleven chapters, ten chapters on key regulatory issues, plus the first one on the value of FMLA to employees. The executive summary recounts that the Family and Medical Leave Act of 1993 opened a new era for American workers, providing employees with better opportunities to balance work and family needs. This landmark legislation provided workers with basic rights to job protection for absences due to birth or adoption of a child or for a serious health condition of the worker or a family member. For women dealing with difficult pregnancies or deliveries, or parents celebrating arrival of a newborn or adopted child, FMLA provides the opportunity to participate fully in these significant life events. For other workers -- especially those who struggle with health problems or who are primary care givers to ill family members -- FMLA has made it possible to deal with these serious challenges while holding on to jobs, health insurance and some measure of economic security. The conclusion is that in those sections of FMLA dealing with leave for birth of a child, for adoption of a child and associated with health conditions that require blocks of leave and are undeniably “serious,” the law appears to be working as anticipated and intended -- and working very successfully. When addressing these areas, there is near unanimity in the comments: FMLA leave is a valuable benefit to the employee, improves employee morale, improves lives of America’s family and, as a result, benefits employers. These aspects of FMLA are fully supported by workers and their employers. But to the extent that use of FMLA leave has continued to increase in unanticipated ways, primarily in the area of intermittent leave taken as self-treatment for chronic serious health conditions, the Department has heard significant concerns. These unanticipated facets of FMLA are the source of considerable friction in the following areas:

  • How serious is “serious?”
  • What does “intermittent” leave mean and how long should it go on?
  • What are the rules surrounding unforeseeable leave?
  • How much information can an employer require before approving leave?
  • What are an employee’s responsibilities under the Act?
  • What workplace rules may an employer actually enforce?
  • How has other legislation, including ADA and HIPAA, affected FMLA?

Use of FMLA leave by a subset of workers -- those seeking unscheduled intermittent leave for a chronic condition -- appears to present the most serious difficulties for many employers in terms of scheduling, attendance, productivity, morale and other concerns. As was clear from the record, these comments are not inconsistent with each other. Success of FMLA depends on smooth communication among all parties. To the extent that employees and employers become more adversarial in their dealings with each other over use of FMLA leave, it may become harder for workers to take leave when they need it most. The full Report is available at


The economic status of older Americans has improved tremendously during the last 50 years, according to a new Issue in Brief from Center for Retirement Research at Boston College. Today the old-age poverty rate is about one-third of its mid-20th Century level, and poverty among the elderly is roughly the same as that among the non-elderly. Poverty rates for older non-married women, however, remain very high. The brief investigates why this group of the population is particularly vulnerable. One reason is that widowhood creates economic hardship, as Social Security benefits and pensions from employer-sponsored plans drop. In addition, those most likely to be widowed have lower incomes than intact couples even before they lose their husbands. Their lower incomes reflect less education on the part of both the husband and wife and poorer health on the part of the husband than couples that remain intact.


Internal Revenue Service has announced the redesigned Form 8857, Request for Innocent Spouse Relief, which will help reduce follow up questions and reduce the burden on taxpayers. The form will ask more questions initially, but collecting critical information early in the process will mean faster processing of the request. The new design will eliminate an estimated 30,000 follow-up letters annually. The result will be a reduced burden and quicker answer for taxpayers and less cost for the government. The form was revised based on suggestions from an IRS process improvement team led by the Office of Taxpayer Burden Reduction. When a taxpayer files a joint return, both spouses are jointly and individually responsible for the tax. Innocent Spouse relief provides an opportunity for a spouse to be relieved from the joint debt under certain circumstances. If one taxpayer believes that only his or her spouse or former spouse should be responsible for the tax, the taxpayer can request relief from tax liability. The redesigned form will also be easier to understand and to complete, and will help educate taxpayers about the process. Previously the questionnaire was separated from the form. IR-2007-125 (July 5, 2007).


According to the Sacramento Bee, an appeals court has denied California’s request to float $525 Million in bonds to cover government pensions, because the state did not ask voters for their permission. The California 3rd District Court of Appeal affirmed a lower court’s ruling that the pension obligation bonds are not exempt from the state’s constitutional debt requirement, which prohibits the legislature from borrowing more than $300,000 without a two-thirds vote in each house plus approval of a majority of the state’s voters. The state will not appeal the ruling, which means elected officials will not get to rely on bonds to help fill the budget gap. The bonds were authorized in 2004 by the legislature and Governor Arnold Schwarzenegger to pay a portion of the state’s payments to California Public Employees’ Retirement System. The state is facing an estimated $3.4 Billion operating deficit for the fiscal year that began July 1. Fortunately, the administration did not include the projected bond revenue in the governor’s May budget proposal.


Now it comes down to this: the process of getting ready for work is being litigated, according to the National Law Journal. In lawsuits across the nation, employees from police officers to poultry workers are suing to be paid for the time it takes to put on and take off their uniforms and required safety gear. Many of the lawsuits are a fallout from a 2005 U.S. Supreme Court case, in which the high court ruled employees should be paid for the time it takes to “don and doff” mandatory uniforms or equipment (see C&C Newsletter for December 8, 2005, Item 2). That case involved poultry and meat packing workers. The ruling, meanwhile, has turned into legal ammunition for numerous employees, the largest group being police officers. It’s not as easy as putting on a shirt and pants. Police are required to report for their shifts already geared up and ready to go. You can’t be a police officer on patrol arresting bad guys without a minimum of a bulletproof vest, a handgun, pepper spray, handcuffs and all of the various other items of gear that are on the belt. All that suiting up takes between 15 and 30 minutes a day. People should be paid to put on gear they are required to wear in order to do their job. Numerous suits involving police officers claiming overtime for donning and doffing are pending in New York, Colorado, Arizona, Hawaii, New Hampshire and Wisconsin. Stay tuned for updates.

Unless you are claiming your rights under the Fifth Amendment, one way to boost your credibility is to stay silent, according to Successful Presentations for Dummies. Silence creates an aura of knowledge. But most important, by staying silent, you won’t reduce your credibility by saying something stupid. (Did you ever see the Peter Sellers movie “Being There?”) Try the following, which sound a lot like fortune cookie wisdom:

  • If there is a substitute for brains, it has to be silence.
  • Most of us how to say nothing, but few of us know when.
  • Wise men think about talking; fools reverse the process.
  • Half of wisdom is being silent if you have nothing to say.
  • If a thing will go without saying, let it.
  • We have two ears and one mouth; we ought to listen twice as much as we talk.

Ah so.


“In case you’re worried about what’s to become of the younger generation, it’s going to grow up and start worrying about the younger generation.” Roger Allen

Copyright, 1996-2007, all rights reserved.

Items in this Newsletter may be excerpts or summaries of original or secondary source material, and may have been reorganized for clarity and brevity. This Newsletter is general in nature and is not intended to provide specific legal or other advice.

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