Gislason & Hunter Law Blog

It’s a common refrain: there is no liability for bullying in the workplace – but there might be soon!    Awareness and discussion of bullying, and all of the stresses and issues that come with that behavior for both the bullied and those around them, seemingly grows exponentially annually.  While this rising awareness certainly includes focus on bullying in many venues other than the workplace (notably, schools), workplaces also have not been excepted from the conversation.  At least one study has concluded that nearly half of all adults have either witnessed or been subjected to workplace bullying, with 37% of respondents reporting that they have been the subject of that bullying.

In 2003, a bill was introduced in California to provide employees with remedies against workplace bullying, and legislators in many other states followed suit.  While no state has passed legislation to that effect to-date (in fact, all 23 efforts have failed), New Jersey is currently considering anti-bullying legislation.  For its part, Minnesota was the 21^st state to introduce workplace bullying legislation, though that measure did not pass.[1]

It would be tempting to believe that, with the failure of that legislation, Minnesota employers need not worry about liability for workplace bullying that did not also amount to illegal conduct for some other reason, such as racial bias.  However, an employee recently successfully sued his employee in Ramsey Country District Court for behavior that could only be classified as bullying, using the Minnesota Whistleblower Statute, Minn. Stat. § 181.932.  This article provides brief background on the operation of that statute, and then discusses the litigation that may change the legal landscape for workplace bullying in Minnesota.

If you’ve been paying attention to what Congress is (or isn’t) doing this year, chances are you’ve heard that several advantageous estate and gift tax provisions are set to expire at the end of this year.  However, it’s less likely you’ve heard that the adoption tax credit—one of the largest tax credits available to families—is set to expire for most families at the end of 2012, too.

Aside from being one of the largest tax credits, the adoption tax credit has a history of being one of the most changeable and confusing credits as well.  In 2011, the credit was a refundable credit of $13,360 per child.  In 2012, it decreased to $12,650 and became non-refundable—meaning that if the adopting family doesn’t have $12,650 in federal tax liability in 2012, they won’t receive a refund for the unused balance of the credit, but they will be able to carry the unused balance over and apply it to tax liability for the next five years. 

In 2012 and previous years, the credit has been available for most adoptions except stepparent adoptions.  Families that adopt “special-needs children”—usually children in foster care—have also been allowed to take advantage of the full amount of the credit, whether or not they actually have that much for upfront adoption expenses.

That all changes dramatically on January 1, 2013.  The adoption tax credit will drop to $6,000.  Even more dramatically, this reduced credit will only be available for domestic adoptions of special-needs children, and will only apply to upfront expenses.  Since adoptions from foster care usually have few, if any, upfront costs, very few families will be eligible for the tax credit in 2013.

With only a little over two months left before the credit expires, there may not be that much prospective adopting families can do to take advantage of the credit before it’s gone.  However, if you adopted a child in the past few years and didn’t claim the credit, there may still be time to file an amended return.  The IRS is notorious for auditing returns claiming the adoption credit, so it’s a good idea to consult your accountant and attorney to make sure you have the right documentation to back up your return.

Kaitlin M. Pals is a business and estate planning attorney with Gislason & Hunter LLP (www.gislason.com), who also practices in the family law areas of assisted reproductive technology, adoption, and guardianships. Kaitlin can be reached at kpals@gislason.com or (507) 354-3111. This information is general in nature and should not be construed as tax or legal advice.

Custody and visitation issues are often the most important and contentious parts of a divorce.  If you and your spouse have embryos in storage at an infertility clinic or other medical facility, the question of who “owns” that stored genetic material may be almost as important as determining the custody of your existing children.

As I mentioned in a previous blog entry, assisted reproductive technology (commonly known as “ART”) law is so new that it’s difficult to say much about it with anything close to certainty.  However, trends in the laws of other states provide a preview of how these disputes could turn out in Minnesota.

(Note: In at least some jurisdictions, a person who intended to be the parent of a child of ART has the same rights whether or not that person contributed a gamete (sperm or egg) to make the embryo.  I use “intended parents” below rather than narrower terms such as “genetic parents” or “spouses.”)

There seems to be a consensus that frozen, unimplanted embryos are not “persons” for purposes of family law.  Courts tend to treat embryos more like property than people, but they also tend to recognize that a disagreement over who gets genetic material that could, in theory, become a child is very different from a disagreement over who gets the good china.  In practice, this means that courts usually give intended parents more opportunity to change their minds about disposition of genetic material than they would have under a normal contract, but the parties’ prior agreements are still important.

Significant trends in other states include:

• If both intended parents are in agreement, their wishes for the disposition of their embryos usually trump those of the medical facility.  The intended parents are responsible for any additional storage costs, though.

• If both intended parents agree in writing as to the disposition of their embryos prior to divorce, their written agreement usually controls what happens to the embryos.  However, some courts, including the Iowa Supreme Court (In re Marriage of Witten), have held that even if there is a prior written agreement, if the intended parents disagree at the time of divorce, the embryos will be placed in storage indefinitely until the intended parents agree on their disposition.

• If there is no written agreement between the intended parents as to the disposition of their embryos, and one parent wants to use them to have a child but the other parent does not, the parent who does not want the embryos used usually wins.

These are very general observations.  There are only a handful of ART cases throughout the country, so courts are very far from addressing all the twists of embryo ownership agreements and disputes.  Also, there is no guarantee that Minnesota courts will follow cases from other states.

These cases demonstrate at least one facet of ART very clearly: it’s not unusual for people to change their minds about what they want done with their genetic material.  Stored embryos created with an ex-spouse’s genetic material may be a person’s last hope of having a biological child, particularly for women.  Because feelings and circumstances surrounding fertility and stored genetic material can change so much, it’s a good idea to continue discussing this topic with your spouse or partner over time. Particularly:

• Though it’s not foolproof, if you and your spouse or partner are undergoing fertility treatments, it’s wise to have serious discussions about what will happen to your embryos if you’re no longer together and to consult an attorney about entering into a written agreement.

• If you’re contemplating or in the midst of a divorce or separation, stored genetic material is definitely something you should talk about with your attorney, even if he or she doesn’t ask you about it.

• Also talk about stored genetic material with your estate planner, both so it’s clear what happens to the genetic material if you or your spouse or partner dies, and so your attorney can make sure that your child will be provided for in your will, even if he or she is born after your death.

To learn more about ART, please visit our main Assisted Reproductive Technology page.

Kaitlin M. Pals is a business and estate planning attorney with Gislason & Hunter LLP (www.gislason.com), who also practices in the family law areas of assisted reproductive technology, adoption, and guardianships. Kaitlin can be reached at kpals@gislason.com or (507) 354-3111. This information is general in nature and should not be construed as tax or legal advice.

Most employers know that conducting an exit interview with an employee who has resigned is a good idea.  No company wants to lose valued and productive employees without knowing why.  But exactly how an exit interview is facilitated will dictate the amount of useful information obtained. 

For example, a resigning employee may be more willing to provide truthful, detailed information if he/she can simply perform the interview by answering a series of questions on a computer.  The next best option is to have a neutral third party conduct the interview.  Another option is to have a human resources employee handle the interview by phone.  The theory is that the more anonymous or disconnected the resigning employee feels during the interview, the more accurate the responses will be.

If fraud occurs in inducing a party to enter into a marital termination agreement or settling the parties’ property and debt division, the district court may, within one year of the dissolution judgment, relieve a party from the judgment and grant a new trial or other relief for fraud, misrepresentation, or other misconduct of the adverse party.

It is important to keep in mind that the courts will require an affidavit of the party claiming fraud which presents a question of fact that fraud may have actually taken place. If such a fact question is presented to the court, the court may hold an evidentiary hearing (basically a trial) and can provide whatever relief the court deems appropriate.

Although claims of fraud are not brought in Minnesota very often after a divorce is final, certainly circumstances can occur after a divorce which would lead one party to believe that the other engaged in fraud in disclosing (or failing to disclose) assets or negotiating a martial termination agreement.

Andrew M. Tatge is a business and family law attorney with Gislason & Hunter LLP (www.gislason.com) and can be reached at atatge@gislason.com or (507) 387-1115. This information is general in nature and should not be construed as tax or legal advice