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A Briefing on Emerging Issues Impacting Transactional Practice - Fall 2016

September 14, 2016 (8 min read)


THE U.S. GEOLOGICAL SURVEY (USGS) RECENTLY released its short-term forecast for seismic activity. For the first time, it includes a discussion of “Induced Earthquakes.” The study, which comes after a significant hike in the incidence of earthquakes in the United States, reports that the states facing the highest risk from human-induced earthquakes are, in order, Oklahoma, Kansas, Texas, Colorado, New Mexico, and Arkansas, with the largest populations at risk located in Oklahoma and Texas. The USGS concluded that wells with higher rates of injection are more likely to be associated with induced seismic activity. The full report is available at

Pratt’s Energy Law Report, Volume 16, Number 6.


THE FEDERAL BANK REGULATORY AGENCIES PUBLISHED final revisions to their “Interagency Questions and Answers Regarding Community Reinvestment.”

The new and revised guidance addresses questions raised by bankers, community organizations, and others regarding the agencies’ Community Reinvestment Act (CRA) regulations in the following areas:

  • Availability and effectiveness of retail banking services
  • Innovative or flexible lending practices
  • Community development-related issues, including (i) economic development, (ii) community development loans and activities that revitalize or stabilize underserved nonmetropolitan middleincome geographies, and (iii) community development services
  • Responsiveness and innovativeness of an institution’s loans, qualified investments, and community development services

Complete details are available at

The agencies last published the Q&As in full on March 11, 2010. In 2013, the agencies adopted revised guidance on community development topics that amended and superseded five Q&As and added two new Q&As. The new 2016 Q&As, which are based on a 2014 proposal, clarify nine of the ten proposed Q&As, revise four existing Q&As for consistency, and adopt two new Q&As.

Pratt’s Bank Law & Regulatory Report, Volume 50, No. 8.



HERE ARE THE KEY CHANGES TO THE federal exemption rules scheduled to take effect on December 1, 2016:1

  • Salary threshold. The salary threshold (minimum salary) will increase from its current level of $455 per week ($23,660 per year) to $913 per week ($47,476 per year).2
  • Bonuses and commissions. Employers can count bonuses and commissions to satisfy up to 10% of the salary threshold, provided they are paid at least quarterly.3
  • Automatic updates to salary threshold. The salary threshold will be adjusted every three years to maintain it at the 40th percentile of full-time salaried workers in the lowest income Census region of the country.4
  • Highly compensated employee threshold. This annual salary threshold will increase from $100,000 to $134,004.5

Tips for Employers When Reclassifying Employees to Nonexempt (Hourly) Status

  • Identify affected employees. Any exempt employee who currently earns a salary less than the new threshold of $47,476 per year must either have a salary increase to the new threshold or be reclassified to nonexempt status. Any employer who is currently considering using commissions and/or bonuses to partially satisfy the new salary threshold should carefully think through how it would work. Keep in mind that commissions/bonuses used to satisfy the salary threshold must be paid at least quarterly or the exemption will be invalid, which will require the employer to go back and pay the employee any overtime the employee worked during the period the salary threshold was not satisfied. This, of course, will require the employer to track the employee’s work time. For these reasons, use of commissions and bonuses to satisfy the salary threshold may be impractical.
  • Choose an effective date. The new regulations take effect December 1, 2016, which falls on a Thursday. But most pay periods run Sunday through Saturday, Monday through Sunday, or the like. As a result, implementing a reclassification on December 1 may be impractical for most employers. An effective date earlier than December 1 may be necessary.
  • Set hourly rates (do the math). Many payroll systems can automatically convert an annual salary to an hourly pay rate by dividing the salary by 2080, based on the following formula: 40 hrs/wk x 52 wks/yr = 2080 hrs/yr. But this formula assumes no overtime. Before setting hourly pay rates, employers should carefully estimate the amount of overtime they expect employees to work and plan accordingly (do the math).
  • Anticipate morale / status issues. Many employees who are reclassified to hourly/nonexempt status will consider it a demotion. A communication/messaging plan is therefore important. In addition, some employers make certain benefits available only to salaried, but not hourly, employees. A review of benefit plans may therefore be necessary. Some employers have addressed this issue by creating a class of employees with names such as “Nonexempt Professionals” or “Overtime Eligible Professionals.” Employees with these classifications are nonexempt but nevertheless receive the same benefits as exempt employees.
  • Training. Many exempt employees have never punched a clock or otherwise recorded their work time. Many managers have never supervised nonexempt employees. They will need to be trained on timekeeping procedures and other policies and practices that apply to nonexempt employees, including meal periods and rest breaks.

Excerpt from article by Aaron Buckley, Bender’s California Labor & Employment Bulletin, Volume 16, Issue 8.


THE IRS HAS PROVIDED GUIDANCE ON THE RECOVERY of administrative and litigation costs in connection with the determination, collection, or refund of any tax, interest, or penalty by individuals and organizations that provide pro bono representation to taxpayers. The revenue procedure supplements concurrently issued final regulations, T.D. 9756. Specifically, Revenue Procedure 2016-17 provides detailed information and processes regarding pro bono representation.

To recover fees in a pro bono case, the representative must maintain contemporaneous activity records of all time spent on the case for which fees are being claimed. The IRS’s denial of an award of fees, in whole or in part, may be challenged in the Tax Court under I.R.C. § 7430(f). The hourly rate used to calculate an attorney fee award for pro bono representatives who charge hourly rates in their ordinary course of business will generally be limited to the lesser of the statutory hourly rate set forth in I.R.C. § 7430(c)(1)(B)(iii) or their hourly billing rate, unless they can establish that a special factor, as set forth in I.R.C. § 7430(c)(1)(B)(iii), applies.

A fixed rate is given for individuals who provide pro bono representation but do not charge an hourly rate for representing taxpayers equal to the statutory hourly rate under I.R.C. § 7430(c) (1)(B)(iii). If an award based on a higher hourly rate is sought, the burden will be on the requester to establish that a higher hourly rate is appropriate. Reasonable fees may be recovered for work performed by students who have been authorized to practice before the IRS or Tax Court under the supervision of a practitioner through the clinical, student practice, and calendar call program, and by paralegals or other persons qualified to perform paralegal work who are assisting pro bono representatives. Fees for time claimed for other volunteers (such as students or professionals who have not been authorized to practice before the IRS or Tax Court or paralegal students) working at a pro bono clinic or organization may be recoverable case by case.

To be eligible for an award of attorney’s fees, taxpayers represented by a pro bono representative must meet all applicable requirements of I.R.C. § 7430. A fee awarded under I.R.C. § 7430(c)(3)(B) will generally be paid to the pro bono representative unless the IRS is specifically instructed by the representative in writing to pay the fee to the representative’s employer, such as a law firm.

Lexis Federal Tax Journal Quarterly, June 2016.


THE CONSUMER FINANCIAL Protection Bureau (CFPB) recently unveiled its student loan Payback Playbook. The set of prototype disclosures provides borrowers with personalized information about their repayment options from loan servicers so they can secure a monthly payment they can afford.

“Millions of consumers needlessly fall behind on their student loan debt, despite their right under federal law to a payment they can afford,” said CFPB Director Richard Cordray. “The Payback Playbook . . . is designed to help ensure student loan servicers provide personalized information, tailored to the borrower’s individual situation. This will help these borrowers take action, stay on track, and steer clear of financial distress.”

According to the CFPB, about 43 million Americans owe student loan debt, with outstanding debt estimated at $1.3 trillion. One out of four student loan borrowers is currently in default or scrambling to stay current on student loans, despite the availability of income-driven repayment options for the vast majority of borrowers. Also, 70% of federal Direct Loan borrowers in default earned incomes low enough to qualify for reduced monthly payment under an income-driven repayment plan.

The Payback Playbook would require servicers to provide personalized information tailored to borrowers’ specific circumstances that show what their payments will be under different repayment plans. This information would include the number of payments over the life of the loan, monthly payment amounts, and whether payments will change over time.

The Payback Playbook would also provide borrowers with updated information when their plans or circumstances change so they can keep on top of their payments. This information would include how much longer they need to make payments until their loan is paid off or forgiven.

In a related action, the Bureau also released a new action guide to help military borrowers navigate their student loan repayment options and take advantage of special consumer protections designed to help men and women in uniform manage their debt while serving our country.

Pratt’s Bank Law & Regulatory Report, Volume 50, No. 6.

1. Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees, 81 Fed. Reg. 32,391, 32,399. 2. Id. at 32,405. 3. Id. at 32,425. 4. Id. at 32,430. 5. Id. at 32,429.

*Copyright © 2016. Matthew Bender & Company, Inc., a member of the RELX Group. All rights reserved. Materials reproduced from Bender’s Labor & Employment Bulletin, Pratt’s Energy Law Report, Pratt’s Bank Law & Regulatory Report, and Lexis Federal Tax Journal Quarterly with permission of Matthew Bender & Company, Inc. No part of this document may be copied, photocopied, reproduced, translated or reduced to any electronic medium or machine readable form, in whole or in part, without prior written consent of Matthew Bender & Company, Inc.