Don’t Get Caught With Your Hands In The Tip Jar

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Outside of the traditional wage and hour lawsuit (typically based on an employer’s failure to pay minimum wage or overtime compensation), there is a separate type of lawsuit aimed at restaurants (and other hospitality industries) for a different type of wage and hour violation—one based on improper tipping practices.

Over the last few years, Department of Labor (DOL) investigators found tip credit violations in over 1,500 cases, resulting in nearly $15.5 million in back wages. Unique to the wage and hour lawsuit is the potential for individual liability: In other words, a manager, high-level employee or owner of a restaurant can, and often does, get named as a defendant in a wage-and-hour lawsuit based on wage and hour violations.

It is no secret that employees in the restaurant industry rely heavily on tips, as they comprise a significant portion of their compensation. Tips from customers are considered property of the employee, and employees are entitled to retain all monies they earn in tips.

Under the law, an employer may take a credit against its minimum wage obligation and pay a reduced minimum wage to certain “tipped employees” employees (i.e., individuals who have regular customer interaction and receive more than $30 dollars per month in tips). Employers must fill in the gap when and if the employee fails to earn at least the normal minimum wage through wages and tips combined.

Additionally, an employee may participate in a “tip pool,” which is where an employee shares his or her tips with other tipped employees and all such employees receive distributions from the tip pool. A tip pool may not include employees who do not have customer interaction and do not customarily and regularly receive tips (i.e., dishwashers, managers, cooks, chefs, janitors, and other back of the house employees).

In fact, a common lawsuit is one that involves a tipped employee claiming that the restaurant employer “diluted” the tip pool by including non-tipped employees in the tip pool. By permitting non-tipped employees (who earn at least the normal minimum wage and do not engage in customer interaction), tipped employees are losing a portion of their hard-earned tips that would ordinarily only belong to them.

Another common lawsuit is when a restaurant employer requires his or her employees to perform nontipped duties at the reduced/tipped minimum wage. In every restaurant, there is some down time or a list of “side work” for tipped employees to complete. (For example, servers may be asked to assist in setting and/or wiping down tables, restocking supplies or silverware, etc., even though such work does not directly result in tips.). The DOL permits restaurant employers to continue to pay the reduced minimum wage to tipped employees while performing such side work so long as it is (1) minimal and no greater than 20 percent of the time and (2) related to the performance of tipped duties.

However, employers cannot pay their tipped employees the reduced minimum wage if they spend a significant amount of time performing non-tipped work (e.g. washing dishes, preparing food, mopping the floor, wiping down tables, etc.). In this scenario, the employer is improperly benefitting from paying its tipped employees the reduced/tipped minimum wage, while the employee is performing significant work that does not result in tips.

It’s important to note that each state has its own minimum wage and tipping requirements. Nevada (and in particular, Las Vegas) is the home of many popular restaurants found on the famous Las Vegas Strip. Recognizing the need to maintain quality service to cater to a tourist crowd, Nevada is one of a minority of states that provides equal treatment to tipped workers in terms of wages, meaning restaurants must pay their employees at least the regular minimum wage (rather than a reduced tipped minimum wage) per hour. Thus, Nevada employers may not take a tip credit for their employees and must pay at least the full minimum wage.

Nevada, however, has still had its share of tip-violation issues. In 2015, the limousine company Executive Las Vegas was required to pay over $200,000 to 479 employees for minimum wage violations. In that case, the DOL reported, among other things, that Executive used incorrect calculations to measure whether employees’ tips exceeded the minimum wage.

Earlier this year, the 9th Circuit Court of Appeals reversed a lower court decision that allowed Wynn Las Vegas to pool its dealers’ tips and distribute them among other employees. Wynn’s tip-pooling policy previously required that casino dealers share their tips with “box people” at the craps tables and customer service team leaders.

This may result in Wynn (and other casinos or Vegas organizations that have similar tip pools) having to compensate hundreds of dealers who previously had to share their tips with other employees. Wynn elected to maintain its policy as it awaits further appeal before the U.S. Supreme Court.

With all of the above said, here are five “tips” to avoid the tip-related audit or lawsuit in any state, including Nevada:

1. Understand that tips are the property of the employee and the employee is not required to share them with anyone. If your restaurant is permitted to take a tip credit on employees and does, make sure employees are notified and paid the appropriate tipped minimum wage.

2. If your restaurant has a tip pool, maintain and enforce a strict policy that only permits employees who “customarily and regularly” receive tips to participate in the tip pool. Never allow non-tipped employees to participate in the tip pool.

3. Maintain adequate and accurate time-keeping records. If your “tipped employee” is performing non-tipped work, make sure it is related to the tipped position and only for a very limited amount of time. Otherwise, the employee must be paid the full minimum wage for time spent on non-tipped work.

4. Constantly monitor compensation and tip distribution to ensure employees are paid appropriately and timely.

5. Keep your employees happy. Retaining happy employees is the number one way to avoid a workplace-related lawsuit.

Adam D. Kemper, Esq., is senior counsel for Greenspoon Marder, P.A., a full-service law firm with offices in Florida, Nevada, California, New York, and Colorado. He practices in the area of labor and employment law where he regularly counsels employers on a variety of workplace issues including but not limited to interviewing; hiring; employee discipline and discharge; workplace discrimination; harassment; retaliation, wage and hour (including tipping practices); whistleblowers; unemployment; restrictive covenants; non-compete, non-solicitation and non-disclosure agreements; separation agreements; and workplace policies and employee handbooks.

More information about Kemper can be found at http://www.gmlaw.com/adam-d-kemper/.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Advocates Arena: Tort Reform

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Leonard Fink, Esq.

Affirming View

No two words in civil litigation are more divisive than “tort reform.” While you can always point to outliers, generally, plaintiff attorneys and consumer lobby groups advocate a hands-free approach to litigation emphasizing that if someone has caused another person harm, the offender should pay for it. And while the defense industry generally agrees that an injured party should be compensated, there need to be limits in place so that commerce and free enterprise are not choked out by runaway jury verdicts.

The risk is very real that without tort reform, unlimited damages awards can burden businesses with liabilities they cannot afford to pay and, consequently, there will not be any affordable insurance available for businesses or individuals to compensate injured parties. While this argument has always struck me as somewhat reptilian, in and of itself, it is compelling when we consider what can happen without adequate safeguards. To avoid this scenario, every potential plaintiff (which is all of us) must be willing to take a step back, take a society-wide view, and agree that reasonable limits must be put in place on what they are legally entitled to recover. As the price for insurance rises, so does the cost of doing business as a whole. In order to continue making a profit and thus preserve their existence (because without profits there is no business), businesses are forced to push those increased costs to their customers. In the end, therefore, it is the consumer that pays, and the consumer, after all, is all of us, even injured plaintiffs. So, for every multi-million dollar verdict that a jury awards, there are costs that we all must pay

Taking this scenario further, once a few multi-million dollar judgments begin to pile up, we can see the real possibility that the cost to insure an individual or business can become so outrageous (because even insurance companies have to make a profit), the individual or business can no longer afford it. When that happens, we lose necessary service providers…even good ones. This was exactly the situation that Nevada faced in 2002 concerning the rising cost of malpractice insurance for OBGYNs. Due in no small part to litigation and increasingly large damages awards, in 2002, many insurers began to charge unaffordable skyrocketing premiums (or declined to continue to write medical malpractice insurance altogether). As a result, many OBGYNs considered leaving the state, which would have created a public health crisis: If expectant mothers were suddenly unable to get proper treatment during their pregnancies, no doubt the number of birth complications would rise, placing further stress on health insurance and other tangential businesses in addition to the personal costs that would be incurred by the women, children, and families negatively impacted by a correctable problem. Ultimately, reason won the day and the Nevada Legislature passed an emergency bill to address these concerns, including instituting the 2004 caps on medical malpractice damages awards, largely averting the crisis. Nothing is ever perfect!

Even when insurance remains available and a business or individual can afford the increased premiums, sometimes the insurance product or coverage is not as great as it was before. In the construction defect industry, we saw many insurers leave Nevada in the mid-2000s, with others coming in and writing policies that offered much less coverage than what was previously available, leaving contractors unprotected. Consequently, a homeowner might not be able to recover any damages for real issues, especially when an insured business ceased operations and there are no remaining assets to look to for compensation other than that insurance policy

Although I certainly agree that an aggrieved party should be entitled to be compensated by the person that harmed them, that must not come without risk or the willingness to compromise. Without tort reform, the first plaintiffs will get all, and maybe more than they otherwise deserve, but at the expense of society at large (including future plaintiffs). While I do not claim to know the best answer to achieve an appropriate balance between a party’s ability to be compensated without overburdening commerce, I do know that tort reform is necessary to a healthy economy and that it will take the concerted efforts of a lot of people to look past their seemingly different agendas to come up with a compromise that compensates fairly but does not put the overall system in crisis.

Glenn Truitt, Esq.

Dissenting View

Tort Reform. The name alone represents a successful reframing-by-renaming effort on the part of the insurance lobby. What “tort reform” really means is medical malpractice reform. After all, medical malpractice only represents a small fraction of the overall tort legal market, and yet, when reform is called for, they simply assume the mantle. And the reforms contemplated amount to nothing more than capping payouts. In that way, it’s not unlike how San Francisco insists on being called “The City” in a metropolitan area where it is the third largest of the three major cities comprising it. Nevertheless, we can all agree that, unlike San Francisco, the MedMal system is one that is deeply in need of improvement.

In 2015, nearly four billion dollars were paid from Medical Malpractice actions, and Nevada represented the second largest growth in payouts, increasing 73% over the previous year. Medical malpractice payouts declined for a decade from 2003 to 2012, before again rising in 2013 and every year since. Whatever we thought might be working is not, and now, with awards on the rise, and the associated insurance premiums rising with them, the calls have resumed for “tort reform.

The stakes for physicians are, quite literally, life and death. As a result of the unique and important part that healthcare plays in human life, the economy that has evolved around medicine is both mature and sophisticated in dealing with the risks associated with it. Malpractice jurisprudence serves important public policy objectives: holding physicians accountable for a recognized standard of care and punishing failures to meet that standard which result in substantial and often permanent harm (including death). What’s more, the malpractice insurance market has developed to help physicians manage and quantify the risk associated with potential malpractice. By employing extraordinary amounts of data and actuarial analysis, malpractice carriers pool the economic risk of malpractice across populations of physicians, at a fraction of the cost to the offending practitioner that he/she would have otherwise been liable for.

These carriers constantly warn of the dangers of increasing awards and payouts, noting that they will be forced to pass along these costs on to clients in the form of increase premiums, dropped clients and perhaps ceasing operations altogether. Further, many physicians decry the increasing cost of malpractice insurance premiums, noting that the concurrent downward pressure on reimbursement makes private practice all but impossible.

Of course, insurance carriers are not public utilities. They are profit-seeking enterprises with stockholders, partners and other principals who seek to benefit handsomely if the insurance company can lower its expenditures (e.g. payouts) without a corresponding reduction in premiums.

However, the proposed “tort reform” (i.e. capping payouts) is a profoundly reductive and myopic solution – placing the burden on the parties least capable of bearing it: the actual victims of negligence and malpractice. There certainly is reform needed, after all, no one wants private practitioners to be priced out of the market before they’re even in it. However, addressing compensation is a derivative concern; the real reform needed is in the practice of medicine, itself.

Initial American medical licensure is widely-considered to be the most challenging in the world. The course of study, performance and testing required to become a medical doctor in the U.S. is rigorous, demanding and prohibitively lengthy and expensive. Unfortunately, continuing licensure for domestic medical doctors is woefully asymmetrical to its academic counterpart. Dazed attendance at CME (Continuing Medical Education), administrative form filling and nominal annual fee payments are nearly all that’s required to maintain a medical license. Little, if any, actual testing is required. Nevertheless, we expect a physician’s training to endure so substantially as to never require refreshment until retirement.

Further, as physicians mature in their careers, most rely less and less on team-based medicine, and are increasingly expected to have superior judgment based almost wholly on experience. This approach ignores the value of both continued instruction and, more importantly, innovation, which becomes all but inaccessible to aging practitioners. One study showed that by the age of 65 years, 75% of physicians in low-risk specialties and 99% of those in high-risk specialties were projected to face a malpractice claim.

So, if we all agree that the astronomical amounts of money spent on medical malpractice payouts deserve reform, we should all be able to similarly agree that there are at least two ways to address this problem: reducing the amount paid per claim (the “traditional tort reform” solution) or reducing the number of claims. Addressing the root cause, rather than a secondary outcome, is economically and ethically preferable.

The good news about this approach is not having to tell the victims of medical malpractice or their families, to make due with less money, despite the horrors inflicted upon them, and rather, focuses on avoiding those circumstances in greater numbers.

The even better news is that many of these reform efforts are already underway with leadership from the insurance industry

Public and private payors are increasingly turning to outcome-based reimbursement models to provide economic incentives to practitioners to undertake the best possible treatments for their patients and not simply the most valuable ones. As government payors seek innovative tools to manage their costs and ensure their survival as a matter of vital public importance, they have aggressively pursued data analysis, information technology and coordination of care to make this model not only possible but practical. It is estimated that implementation of these structures could reach fifty percent in the next two to three years, and result in an overall cost savings of more than ten percent.

Tort reform? That’s a special interest trope. We’ve got plenty of reform taking place in healthcare already, and it will undoubtedly result, in the near term, in a lower total Medical Malpractice payouts because it will result in fewer actionable outcomes. The only difference is we won’t be handing those gains over solely to insurance carriers.

Glenn H. Truitt, Esq. is a founding and managing partner of iDeal Business Partners in Las Vegas, NV, and has been practicing law for over 11 years. Licensed in Nevada and California, Glenn represents healthcare clients in a wide variety of transactional, business and compliance matters. He is a frequent contributor to local scholarship regarding healthcare law and policy and consults with industry leaders nationwide. Glenn his bachelor’s degree in Mathematics from the United States Naval Academy in Annapolis, MD, and following submarine service aboard the USS Tennessee (B), received his Juris Doctorate from Stanford Law School in Palo Alto, CA.

Leonard T. Fink, is a founding partner of Springel & Fink, LLC in Las Vegas, Nev., and has been practicing law for more than 20 years. Licensed in Nevada, California, Arizona, Washington, and Idaho, Fink represents a variety of different clients in all types of civil and business-related litigation matters. He is a frequent speaker at MCLE events and, at times, a guest lecturer at the University of Nevada, Las Vegas. Fink received his Juris Doctor degree from the University Of San Diego School Of Law and received his bachelor’s degree from Arizona State University.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Advice From The Surgeon: Doctor: I Don’t Like The Way I Look!

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Doctor, I don’t like the way I look. What do I need done? I think that is the most frequent question I hear from my patients. They have gone through all of the wonderful things in life and are starting to see some changes in their face, but they can’t quite put their finger on it. This is usually the case with what I call “tweeners,” or people who see something happening but are left guessing what they need to have done because the changes are so subtle. When people see large problems such as loose-hanging skin, they can pretty much decide they likely need surgery…but what about the “tweeners?”

One thing I find very educational as I handle these questions and suggest options is to look at pictures of the patient from years ago. I prefer candid shots, as they show the patient in a relaxed pose and are more realistic. (In planned photos, the patient is warned when to smile and in so doing, they all lift up their eyebrows and cheeks to look happy…yet, that is not the way they see themselves since that pose is only held for a minute.) There are times when a plastic surgeon can look at a face and take an educated guess as to what has occurred. We see lines in a certain direction that point to a subconscious attempt to raise something that has fallen, or we see a depression where, normally, there should be a smoother surface. Yet, we cannot always count on that. That is why old photos coupled with strong communication between surgeon and patient prior to surgery is so crucial. With it, the proper option can be chosen together to achieve the desired effect.

Surgery can do wonderful things. For example, it can tighten skin by moving the tissue below its surface into a more youthful position. But surgery performed when something else would have been a better option can leave the person looking different…looking as if “something was done” rather than achieving the rested appearance they actually sought.

In many cases, since one of the early changes of the face is loss of volume (which causes things to look less plump and as if features have fallen), the use of fillers is all that is needed. I know it might sound strange to hear from a surgeon that I might endorse and encourage things besides surgery, but my philosophy is to get the patient to where they want to go with the least possible intervention. We can always do more, but if too much is done right away, it can take years to look better and natural. The options suggested should not be cookie cutter. They must be customized to the patient…to their hopes and desires, as well as what is reasonable and safe.

Fillers such as Restylane, Perlane, Juvederm, Voluma, and Sculptra are great volumizing fillers in my armamentarium of options for the “tweener” who needs volume to achieve their goal. These fillers can also extend the time between facial surgeries by correcting small areas that can make a large difference on the face. If you think you’re a “tweener” and are wondering what is making you look less like “you,” come in for a consultation and explore the options at your disposal. It might surprise you that you don’t need as much as you thought!

Julio L Garcia, MD FACS, is the founder of the Regenerative Medicine Institute of Nevada, which is dedicated to helping patients with adipose-derived cell therapies for the treatment of acute and chronic medical issues. For more information about Dr. Garcia, please visit his websites at http://www.lvcosmeticsurgery.com and http://www.rminlasvegas.com, or contact his office by calling 1-888- FACES-89 or (702) 870-0058.

This feature was previously published in The Ridges Magazine, limited distribution to residents of The Ridges, Las Vegas

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

What Is A Wife Worth? A Comprehensive Overview: Economic Damages

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

The full value of what a wife is worth is indeed a provocative and difficult question, and one that often arises in Nevada courts. Many women are effectively the chief executive officer of a complex organization known as a household, in addition to whatever work they may perform at an outside job. When a woman is injured or killed, in addition to lost income, the household loses a large variety of irreplaceable household family management services, not just the execution of physical chores.

Juries are asked to place a value on these services in personal injury and wrongful death claims…but how can they possibly do that? Further, what guidance can an economist give them?

Evaluating Physical vs. Nonphysical Chores

While most think of household services in terms of physical chores such as housecleaning, cooking, laundry, etc., what makes the wife’s CEO job complex is that women also provide tangible advice, counsel and accompaniment services akin to that provided by coaches, advisors, home aides, or companions to the elderly. Economists have traditionally only valued the physical chores and have ignored the non-physical duties and responsibilities, yet these, too, can be valued based on comparable market alternatives (obviously, exclusive of love and affection).

For an injured woman in her 30s (including those fatally injured) who can no longer provide such services, the loss of housekeeping alone typically exceeds $1 million; however, the loss of advice and accompaniment typically exceeds that amount to the husband alone. Advice and accompaniment is also lost to children, siblings, parents, etc., thus this value can quickly multiply and eclipse the loss of the value of physical chores as well as income. For full and fair recovery to claimants, these additional components of household services must also be valued.

The methods I and other economists use to value the loss of the intangible love and affection component of society and companionship, or consortium, was discussed in my the last article for Vegas Legal Magazine (VLM). (The loss of quality or enjoyment of life to the injured person is another separate component, to be discussed in a forthcoming article.) Courts have long recognized claims for the value of tangible household family services as an element of damages in personal injury and wrongful death cases. However, women are not the only ones to provide such services: so do men, and to some degree, children, as well. These services are provided without charge or cost. The family members who may receive such services can include spouses, children, parents, or siblings. (Such family members do not necessarily have to reside in the same household to receive such services.)

Economists and courts have also long recognized that an appropriate method in valuing such tangible services is to look at market equivalents from which an economic standard can be established. This approach was set forth in the 1913 U.S. Supreme Court Decision, Michigan Central Railroad Company v. Vreeland, 227 U.S. 59 (1913). The Supreme Court’s suggesting in valuing compensable services in Vreeland is a standard that is not rigid, but actually rather general: “[The] pecuniary loss or damage must be one which can be measured by some standard….Compensation for such loss manifestly does not include damages by way of recompense for grief or wounded feelings.”

Examples of lost household services that used to be performed by persons (whether fatally or nonfatally injured) include physical chores such as mowing the lawn, painting the house, cleaning the windows, doing the laundry, washing and repairing the car, preparing the meals and doing the dishes, among others. But since economists recognize that in addition to the physical chores, “tangible services” to family members include services well beyond the physical housekeeping chores, it is important that a complete analysis of all services performed by family members include much more than the physical housekeeping chores. This supported by my own research and that of others that is published in peer-reviewed, scientific, economic journal articles that I, and others, have authored.

The Human Factor

Every family member acts as a companion to other family members. And it is common for family members to act as counselors for one another. Women typically provide advice and counsel on important personal, family, medical, financial, career or other issues. The marketplace can and does value such items of loss. If the person cannot provide these services, or does so at a reduced capacity or rate, there is a distinct and definite loss to the other family members. These losses have a definite and easily measurable pecuniary value. Vreeland requires only that a “reasonable expectation” of loss of services be proven, and that such loss be valued by some standard—presumably a reasonably based economic standard—to allow recovery.

The economic literature on recovery of loss of services discusses an estimated, market-oriented valuation cost method to assess the pecuniary value advice, guidance and counsel services, as well as the loss of accompaniment services that family members provide to one another, within a broadly defined scope of household family management services.

According to Chief Justice Robert Wilentz of the Supreme Court of New Jersey, in Green v. Bittner, 85 NJ 1, 1980, pp. 12, accompaniment services, to be compensable, must be that which would have provided services substantially equivalent to those provided by the home companions often hired today by the aged or infirm, or substantially equivalent to services provided by home health aides; and their value must be confined to what the marketplace would pay a stranger with similar qualifications to spend social time with another for performing such services.

Both the U.S. and the New Jersey Supreme Courts discuss looking at labor markets for the equivalent value of such services…an identical methodology to the traditional approach that economists have been using for over four decades that uses market rates paid to housekeepers; child care providers; waitstaff; private household cooks; laundry and dry cleaning workers; maids and housekeepers, etc., which averages approximately $20 an hour. The number of hours expended can depend on family size. While standard tables provide such hours, and interviews with family members can also establish estimates, at three hours a day (a typical measure), the value exceeds $20,000 per year, which for a young wife can exceed $1 million over a lifetime.

The Emotional Factor

The value of advice and counsel services is also measured using market rates paid to people who work as family counselors, social workers, clergy, coaches, teachers, etc., which averages approximately $35 an hour. Again, the number of hours expended can depend on family size, but at one hour per day for the husband (a typical measure), the value exceeds $12,000 per year, which for a young wife can exceed $500,000. Children, siblings and parents who receive such services often lose in aggregate an amount equal to or exceeding this figure.

The value of accompaniment, or social time spent with family members, is again measured using market rates paid to home companions which averages approximately $15 an hour. On average, at three hours per day for the husband, the value exceeds $15,000 per year, which for a young wife can also exceed $500,000

When added together, the injury to a wife can result in household family management services that can be a multiple of the traditional housekeeping chores alone. (And, naturally, the same approach outlined above can be used when measuring the loss of husbands.) Regardless of which parent is no longer a part of the family, when such testimony is provided to a jury through family members and an economist, a full and fair recovery can be achieved.

Stan V. Smith, Ph. D., is president of Smith Economics Group, Ltd. Trained at the University of Chicago (one of the world’s pre-eminent institutions for the study of economics and the home of the law and economics movement), Smith has also taught at the university and co-authored the first textbook on the topic of economic damages. A nationally renowned expert in economics who has testified nationwide in personal injury, wrongful death and commercial damages cases, Smith has assisted thousands of law firms in successful results for both plaintiffs and defendants, including the U.S. Department of Justice. To that end, Smith also developed the first course in forensic economics at DePaul University, and pioneered the concept of “hedonic damages,” testifying about the topic it in landmark cases. His work has been featured in the ABA Journal, National Law Journal, and on the front page of The Wall Street Journal.

Smith Economics Group, Ltd., is located at 1165 N. Clark Street, Suite 600, Chicago, IL 60610. Dr. Smith may be reached at 312-943-1551 and at Stan@SmithEconomics.com. – Stan V. Smith, Ph.D. 1165 N. Clark Street, Suite 600 Chicago, IL 60610 Phone: 312-943-1551 | Fax: 312-943-1016 Email: Stan@SmithEconomics.com

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Conservative Savings… Or Lifetime Retirement Income?

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

In uncertain times, sound financial decisions matter more than ever. When it comes to securing guaranteed retirement income, it’s important to base your decisions on a clear understanding of available products. Since many people turn to both deferred fixed annuities and certificates of deposit (CDs) for stable returns, it’s helpful to know the differences between the two.

First and foremost, a deferred fixed annuity is a conservative retirement vehicle, while a CD is designed to be a savings vehicle. Deferred fixed annuities can help you accumulate and protect assets until you are ready to receive them as guaranteed income during retirement–and many offer the option of guaranteeing retirement income for your lifetime. CDs, by contrast, offer a conservative way to save and preserve assets when your investment horizon (the amount of time you expect assets to be invested) is relatively short. CDs do not offer a guaranteed lifetime income option.

While both vehicles are considered conservative, they reduce risk in different ways. CDs are generally backed by banks and currently are insured for up to $250,000 for each depositor by the Federal Deposit Insurance Corporation (FDIC) or the National Credit Union Administration (NCUA).

Fixed annuities are guaranteed–with no maximum–by the issuing insurance company. They are not FDIC insured. Be sure to ask your financial professional about an insurance company’s financial strength ratings if you plan to purchase an annuity, because payment of lifetime income is contingent upon the claims-paying ability of the issuing company or companies. There are other important differences as well, involving income tax treatment, early withdrawal options, and other important factors. The best way to make a good decision when planning for retirement is to work with a trained, trusted financial professional to choose products that best meet your retirement income objectives and investment needs.

© 2015 Massachusetts Mutual Life Insurance Company 01111-0001

Annuity products are issued by Massachusetts Mutual Life Insurance Company (MassMutual) and C.M. Life Insurance Company. C.M. Life Insurance Company, Enfield, CT 06082, is non-admitted in New York and is a subsidiary of MassMutual, Springfield, MA 01111-0001.

Insurance products issued by Massachusetts Mutual Life Insurance Company (MassMutual), Springfield, MA 01111-0001 and its subsidiaries C.M. Life Insurance Company and MML Bay State Life Insurance Company, Enfield, CT 06082.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Las Vegas Icons: Rich MacDonald

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

When you ride with Rich MacDonald in his luxury SUV, it’s easy to forget for a moment that you’re traveling with an OG-level developer—an “original gangster” in Nevada real estate who has brought many in local government and business to their knees. His casual attire, cheerful attitude and downto-earth way of relating are enough to relieve anyone of social awkwardness while winding through some of the most breathtaking (and coveted) acreage in southern Nevada.

It’s only when you ask him details about the street you’re on that things get a bit weird. That’s because…you’re winding up a jaw-droppingly beautiful hillside street that Rich MacDonald personally named, while passing many other opulent streets he also named…streets that traverse graceful neighborhoods he named, that are nestled against some mountain ridges he named…inside a sprawling, gated community (which, yes, he named) overlooking the Las Vegas Valley where his career can be seen in a vast patchwork of celebrated developments…developments he also named and/or built. (See the pattern?)

MacDonald’s motto is, “No matter what happens, fight on,” and he credits his prolific, decades-long career to that fighting spirit. For this profile, MacDonald and I first met at the restaurant in the club that he recently brought back and improved with stunning upgrades throughout. Our purpose: to discuss the future of DragonRidge Country Club and Golf Course—which he re-purchased about a year ago with the intention of upgrading to their fullest glory—and his preparations to build a new round of cliff-side castles, the likes of which have never been seen. And I mean that quite literally: Models are shrouded in secrecy to prevent any disruption in current new home sales, which are very strong.

Vegas Legal Magazine: Henderson is recognized as one of the best communities to live in, anywhere in the country. To what extent are you willing to take some credit for that, given your history as a developer in Henderson?

Rich MacDonald: Let’s put it this way….I’ve owned about five percent of the city’s available land, so from that perspective we’ve planned and accomplished a lot with these planned communities and I’m really proud of all of them, actually. Henderson benefited from having large land masses. That lent itself to investor-planned development, which is why Henderson is as nice as it is today.

VLM: Do you give kudos to early city planners?

RM: Yes. The early city fathers somehow arranged to get big chunks of land from the government and get them into private hands. The reality is I’ve had a very contentious history with people like that at the city [level]. One in particular [comes to mind.] I think the planners, once they found out what we were doing, really liked it and said that we offer the best example of how to do hillside development…which we perfected doing cliffside development in Hawaii. The bottom line is we outlasted [the detractors], and we always got three out of five votes from council.

VLM: How many hours of your life would you guess you have spent at Henderson city council meetings?

RM: City council meetings? Every single one, for at least 20 years. It’s funny: The whole process—when you look back on it—it’s been really, really rewarding. Everything we’ve been through. One of the benefits to that now is that nothing bothers me. I don’t get upset about anything, because I know I can deal with whatever comes up. I’ve been through it all. If it’s a legal issue, we’ll take care of it. If it’s a development issue we’ll take care of it.

VLM: What was it like early on, getting this going?

RM: Stephanie Road didn’t exist south of the 215. As a matter of fact, I put Stephanie Road in on a weekend (chuckles), without a permit I might add. I just hired a guy with a blade and a bulldozer and pushed it through.

VLM: Did anyone complain? RM: Yeah. One guy called me up and said, ‘Hey: Somebody put a road through my property.’ I said, ‘Oh, is that the graded road that came down to 146? That would make it a section line, wouldn’t it? That could give you commercial potential I guess, huh?’ He said, ‘Yeah.’ I said. ‘Yeah, I guess it will. Gee, that was pretty good, then?’ (momentary pause) He said, ‘Yeah, I guess that is good.’ (laughs)

VLM: How would you characterize the real estate market here right now?

RM: I see a renewal of activity, which is really exciting. Of course, I see mostly what’s going on here [at DragonRidge] and we are getting a lot of people moving in from out of state. A lot of them are what you might call tax refugees. We are thinking of sending a gift to [California] Governor Jerry Brown because he’s really earned it! (laughter) This community is getting to be really well liked and well known. The challenge is, we don’t have a lot of people who want to sell their [existing] houses and we have a lot of people coming in from California. We have people building “spec” houses. They’re really good houses. We’ve even had some sell right from the plans. With the new visuals, you can actually walk through the house [that has yet to be built] on a computer.

VLM: Looking around this outdoor cathedral that is now called DragonRidge, what dazzles you most?

RM: The ambiance. There’s something about it. When I first hiked up to this place back in 1976 [before it was developed] I was blown away by it! [Later after we bought it] we had a Feng Shui master who advises major strip hotels come [to check out the property] and the first thing he told us was, ‘You don’t have one dragon [on the ridge tops] you have three!’ And, he said, ‘You have a vortex on your property! If you draw a line from Red Rock Canyon and from Valley of Fire they meet right here on the property and this vortex is the energy center for the entire Las Vegas Valley.’ We put up a little platform [at the vortex.] If someone wants to hike up there and meditate they can do that.

VLM: Over the next several years you plan to sell some 200 lots. Are you prepared for whatever issues might come up in the economy?

RM: There are a lot of issues on the horizon…global and national issues. With Trump elected I see positivity. It’s refreshing to see government now moving through things like a business [would]. On a personal level, I have no debt in this company at all, and I have no personal debt. I’ve structured things so that if the world goes to hell in a hand basket, I’m probably going to be sitting under a palm tree in Hawaii.

VLM: Your wife, Claire, has been your wingman through all this, and at some point she even considered running for city council in support of your plan. She sounds like a force to be reckoned with. RM: Oh, she’s a character. All the women in my family are like that. I had a grandmother who lived to be 96. My mother lived to be 92, and Claire is every bit as tough as they are. When I met Claire, she was a single mom with two little kids who had relocated to Hawaii after her divorce and she had her own business. I thought, ‘Well, this is a little different.’ There was a mutual respect there. Not just the normal window dressing. It’s worked out. VLM: Who gave you the best advice to help you succeed?

RM: My father said, ‘The only time they can beat you is if you quit. You just keep going. We don’t quit. We get things done, fast.’ That was probably the best advice he ever gave me. I couldn’t sell like he did. I was a fairly decent salesperson, but not like him.

VLM: Do you have bucket list?

RM: I have a little project I’m working on. I did an endowment with the Archaeological Institute of America where I gave them the biggest endowment they’ve ever had. That surprised me, because it wasn’t that huge. I want to buy the property under the city of Troy in Turkey and keep it in a historical trust so that future generations can come in and do archaeological digs. It’s available for that. That’s a good thing, because right now a lot of it is in private hands and there are two concerns with Troy. There’s the Citadel, which is the fort everyone thought of as the original city, and there is a huge lowland city that was underneath where people lived down below. In times of siege, the people would all run up to the citadel but they lived down below. I’ve got a 501(c)(3) I’m going to use to do that.

VLM: People say, with your contacts in Hawaii, wouldn’t you rather live there?

RM: The answer is no. Like this club, I like the people in the club. I like the community. It’s almost like extended family. [This is] a nice place to be.

VLM: What is the most common question you get from folks here?

RM: I am often asked, ‘Did you really envision it this way?’…The answer is ‘yes.’ Greenspoon Marder is a full-service business law firm that caters to all client legal needs, including labor and employment and cannabis law. Greenspoon Marder is proud to announce the recent opening of its offices in Las Vegas, Denver, New York and San Diego. For more information about any of the information contained in this article, please contact Adam Kemper, Esq., and Alejandro Leiva, Esq., at 954-491-1120 or via email at adam.kemper@gmlaw.com and alex.leiva@gmlaw.com.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Medical Marijuana & Employees

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.

Next year is shaping up to be a very interesting one: Donald Trump will be the president of the United States and marijuana will be legal (at some level) in many areas around the country

California, Massachusetts and Nevada recently passed laws to make marijuana legal for recreational purposes. Other states, including Florida, Arkansas and North Dakota, voted “yes” to make marijuana legal for medicinal purposes. While these laws generally provide comprehensive regulatory guidelines for, among other things, the production, use and sale of medical marijuana, most fail to provide guidance to employers as to their obligations to employees who are prescribed medical marijuana.

Pennsylvania is one of only a handful of states that has addressed an employer’s obligations in its marijuana-related legislation. Specifically, Pennsylvania law expressly prohibits employment discrimination against employees who use medical marijuana. Other state regulations are not so developed yet. Because most medical marijuana laws were only recently implemented, there have been only a few lawsuits, which involve employment-related disputes. As a result, this is a developing area of the law and employers need to stay ahead of the curve before they become the “example” of what not to do.

Whether your company currently operates in a state that permits the use of marijuana or it has employees who perform work in such states, it is important for you to understand your company’s legal obligations to employees who use medical marijuana.

Employers should be aware of the following: Marijuana is still illegal under federal law. While the Americans with Disabilities Act of 1990 (“ADA”) prohibits employers from discriminating against a qualified individual with a disability, the ADA does not protect individuals who use drugs which are unlawful under the Controlled Substances Act. The Controlled Substances Act currently designates marijuana as a Schedule I drug. Thus, although medical marijuana has been, or will be, legalized in virtually every state, its use is still considered illegal under the ADA.

Employers may still be required to offer reasonable accommodations to certain employees who use marijuana to treat a disability. Notwithstanding its current illegality under federal law, an employee’s disclosed use of medical marijuana may still trigger an employer’s obligation to engage in the interactive process with a disabled employee (i.e., informal communications between the employer and employee whereby both parties determine the appropriate reasonable accommodation for the employee’s disability). The reason is because an employer is required to offer accommodations to all disabled employees so long as the accommodation does not result in an undue hardship. Thus, while an employer is not required to accommodate a disabled employee by permitting use of medical marijuana, it must at the very least try to find other feasible accommodations for the employee.

Be aware of states (like New York and Pennsylvania) that have adopted their own laws, which expressly prohibit employment discrimination based on an individual’s use of medical marijuana. In 2014, New York enacted the Compassionate Care Act (the “Act”), which legalizes the use of medical marijuana to treat certain serious health conditions. The Act also deems “Certified Patients” as being “disabled” for purposes of the New York State Human Rights Law (the state law equivalent to the ADA). Thus, New York employers cannot take any adverse employment action against an employee simply because of their medically authorized marijuana use. This does not mean that employees have free rein to use, possess, distribute or be impaired while performing job functions. Employers may terminate an employee (or take other adverse employment actions) against an employee who uses medical marijuana on the job. Thus, any employee who uses medical marijuana during work (or who is impaired by medical marijuana on the job) may still be subject to disciplinary action, up to and including termination of employment.

In light of the foregoing issues surrounding medical marijuana use, here are some best practices for employers to consider: • Consult with an attorney who is familiar with the latest changes (around the country) to the laws on cannabis use. Staying ahead of the curve can help you avoid a lawsuit. • Review your drug and alcohol policy to ensure safety for your workers and others, but assess if it is overly restrictive on the use of legally prescribed marijuana. Medical marijuana (like other prescription drugs) must be used in the method and manner prescribed. • Incorporate applicable anti-discrimination policies into your workplace. • Engage in the interactive process with all individuals who state that they have a need for medical marijuana for their disability (even if it is illegal under federal law).

Greenspoon Marder is a full-service business law firm that caters to all client legal needs, including labor and employment and cannabis law. Greenspoon Marder is proud to announce the recent opening of its offices in Las Vegas, Denver, New York and San Diego. For more information about any of the information contained in this article, please contact Adam Kemper, Esq., and Alejandro Leiva, Esq., at 954-491-1120 or via email at adam.kemper@gmlaw.com and alex.leiva@gmlaw.com.

The Firm, P.C. is a boutique Las Vegas law firm founded by Preston Rezaee, Esq. Preston Rezaee is also the founder and Editor in Chief of Vegas Legal Magazine.