Legal Issues

Situation A
In this situation the employee, having requested a paid leave only from his manager, who has agreed to pay him while on leave, leaves his position. His replacement however allows him to get back to work after his leave is over, but refuses to pay his dues while on leave. In this light, the essay seeks to establish in what ways the Family and Medical Leave Act of 1993 is applied to the situation.

The Family and Medical Leave Act of 1993 applies to the situation described above in the following ways
The act addresses the qualification of an employee for a leave. A leave can be simply defined as days off from work. In this case one may be paid by the company or not. The provisions concerning the paid leave are under the title 1,generalrequirements for leave, section 102 part d. I will discuss the above situation with reference to both sections in a view to establish how the act applies to the above situation.

Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period because of the birth of a son or daughter of the employee and in order to care for such son or daughter. From this point of view employee A does qualify for the leave which is duly given to him.
 
If an employer provides a paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required under this title may be provided without compensation. In this case then employee A is entitled to payment for the eleven weeks that he was on leave. The remaining one week to attain the twelve should not be included as part of the leave and should instead be counted as part of his normal working days if he will started working by then.

The act applies to the situation above in two ways. One is in the way employee A qualifies for the leave and also in the issue pertaining to his payments. In the second part of question one, it seeks to establish if a violation occurs according to the Family and Medical Leave Act of 1993. From my considerations, a violation did occur. This is in the sense that the employee does qualify to go on leave given that his spouse had given birth. This is according to the act as states that an employee should be accorded a leave of leave of up to twelve weeks annually if their spouse gives birth. The act also provides for payment while on such leave. The employee should have been paid for the twelve weeks he could have been away. In this case he is away for a week short of the twelve. The Family and Medical Leave Act of 1993 states that if an employer provides paid leave for fewer than 12 workweeks, the additional weeks of leave necessary to attain the 12 workweeks of leave required under this title may be provided without compensation.

The new manager allows the employee to go back to his old job and also be paid at the current rates. This seems sensible in the light that all employees on the leave should resume their positions at their work places after the leave of work is over. The new manager however refutes claims for payment from the employee for the eleven weeks he was away. This is a violation of the Family and Medical Leave Act of 1993 which provides that the employee should have been paid for the aforesaid period.

Situation B
In the second situation an employee was overlooked for promotion due to his age despite his impeccable record. The promotion was later awarded his colleague almost half his age who had moderate performance. The essay seeks to analyze the situation according to the Age Discrimination in Employment Act of 1967.

The Age Discrimination in Employment Act of 1967 states that it shall be unlawful for an employment agency to fail or refuse to refer for employment, or otherwise to discriminate against, any individual because of such individuals age, or to classify or refer for employment any individual on the basis of such individuals age. (Age Discrimination in Employment Act, 1967)

Employee B has been with the company for forty two years and hence this gives him a considerable edge to do his work efficiently. Therefore, no wonder that he has been rated as an above average worker. When a promotion opportunity arose he should have been the first candidate to be considered for it. However this is not the case as his junior colleague, almost half his age, is awarded the promotion. In the deductions his seniors violated the Age Discrimination in Employment Act of 1967.

Section 4 of the act, which addresses the issues of the prohibition of age discrimination, clearly states in part a that It shall be unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individuals age. Promotion is an example of privileges of employment and in this case the employee is denied the privilege due to old age.

The second part of the question seeks to evaluate if a violation occurs in denying the employee the promotion due to his old age. The employee has been rated as an above average employee implying that he is skilled regarding his roles. However the promotion goes to his junior almost half his age, who is not as industrious as his colleague. From my deductions, a violation of the act occurs as it provides that an employee should not be denied of any privilege due to his age.

Situation C
The Americans with Disabilities Acts of 1990 general rule provides that no covered entity shall discriminate a qualified individual on the basis of the disability in regard to the job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. In this regard then the employee was discriminated against in that he was denied the employment opportunity.

Furthermore, part five on discrimination states that it is unlawful to not make reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity. In this regard, the company should have made the necessary adjustments in the elevator to allow for the employees movements.

Part B of the same section states that it is otherwise unlawful to deny employment opportunities to a job applicant or employee who is an otherwise qualified individual with a disability, if such denial is based on the need of such covered entity to make reasonable accommodation to the physical or mental impairments of the employee or applicant.

I can therefore conclude that a violation of the act occurs. The company should not have denied him an employment opportunity. Rather they should have made the right adjustments to accommodate the employee in the building.

REPORT
1. Sole proprietorship
This is a type of business which is operated by one individual. The owner can therefore use his trade name allowing him to open bank accounts with his legal name. All aspects of the management fall on him thereby allowing him to enjoy all profits and accruing all debts. All assets in the business are thereby his. He is also entitled to pay his debts using his personal property. This type of business has its advantages and disadvantages over other types of businesses. They are highlighted below.

Advantages. They are easy to start up as they require fewer regulations in comparison to other types of businesses, the owner has the full control over the business decisions. The owner enjoys all the profits
Disadvantages. The owner will have a hard time raising capital since it has to make up for all the businesss funds. Unlimited liability implies he is responsible for the businesss debts because he has control over the business.

Liability a considerable disadvantage of sole proprietorship is that the owner has unlimited liability. This means that his personal property can be used to settle debts if creditors feel that his business is not in a position to.

Income taxes profits made by the business are treated as income to the business owner, and all income is reported on your individual tax return, and is taxed in the year it is received.

Continuity of organization the operations of the business are subject to the owners interests. If for one reason he feels that he is unable to continue running the business due to illness, insanity, disability, commitments, inadequate funds or even his own death the business ceases to operate unlike in partnership where his partners would have continued operating.

Control the sole proprietor holds the total control over the business. Decision making is usually fast as he is the only one involved. The owner does what he feels is best for his business.

Profit retention being the only person running the business, the sole proprietor has control over all the profits made by the business. He can therefore expand his business if he so wishes.

Location the choice of location of the business falls on the sole proprietor. He locates his business where he feels he will access more customers and duly moves to new location if he deems it right. No documents have to be filled whatsoever while moving to a new location. However moving to a new state would require his business so that tax rules can be used on while taxing his profits.

Convenience the sole proprietorship is a very convenient type of business. This is due to the fact that all decisions are made in favor of the owner and he does not have to meet with anyone nor make reports. He only does what he feels is right for him, unlike in partnership where a dormant partner does not partake in decision making thus curtailing his convenience.

2. General partnership
This is an association of people with a common motive mostly to start a business. Their agreement should be in writing. The individuals are also personally liable for any debts the business may incur. Likewise, profits are shared among the partners. In partnerships each member can transact on behalf of the others as each member has an equal right to manage the business. Upon death, insanity, disability or withdrawal of a member the partnership should be dissolved.  New members are admitted with full consent of all members (Steven, 2003).

Advantages. The decision making usually takes into consideration several opinions, thereby making a better one than in sole proprietorships. Partners can contribute more capital than in sole proprietorships thereby it can expand the business faster than in the later. The unavailability of one member does not halt the operation of the business as the others can cover for him. Loses are shared.

Disadvantages The decision making presupposes that many opinions are considered before arriving at the final decision. Profits are shared. A single bad transaction made by one member on behalf of the others could end up bringing loses to all the other members. Unconscious partners usually end sharing in the partners despite their little input. The incapability, death of a member means that the business has to be dissolved.

Liability  like in sole proprietorships partners have limited liability over their personal property and thence it can be used to settle debts if creditors feel that the business is not in a position to clear their debts. The property is thus liquidated to clear the debt.

Income taxes taxation in partnerships is done on each members income. After the profits are shared amongst the members, it is then that taxation takes place as with the case with sole proprietorships. The amount of tax paid depends on the amount of profits as its a percentage of the total income made.

Longevity Upon death, insanity, disability or withdrawal of a member the partnership should be dissolved. (Steven, 2003).

Control  the management of the partnership falls on all the members. Decision making in a general partnership is an all inclusive affair as all members are entitled to it. It is however important to note that each member can transact on behalf of the partnership.

Profit return In a general partnership profit are shared amongst the members in a ratio that is predetermined, mostly governed by the amount of capital each member contributed during the formation of the business. The profits are first divided into two parts. One is meant to expand the business. This portion is decided by the members. This part is referred to as the profit that is returned to the business. The remaining part is then divided amongst the members depending on a suitable ratio. In sole proprietorships the owner enjoys all the profits while in partnerships the members share the returns (Steven, 2003).

Convenience a businessperson operating in a partnership is most likely to have his duties allocated according to his availability, thereby working in his convenience. However, if a partner joins an already formed business, he is most likely to have his duties already allocated to him thereby curtailing his convenience.

3. Limited partnership
This is a business set up almost similar to a general partnership except that the business and the partners are different legal entities implying that the members have limited liability. In that case then personal cannot be liquidated to settle business debts.

Advantages  the greatest advantage of this kind of partnership over a common type of partnership is that the members have limited liability over their personal property unlike in general companies. (Deborah, 2001)
Disadvantages the disadvantages of a limited partnership are largely those of a general partnership as stated earlier in the report.

Liability in a limited partnership the members personal property cannot be used to meet the claims by the business creditors. In that case other methods have to be sought to meet the claims other than the members individual property. The business and its owners are different legal entities implying that they have limited liability over their personal property.

Control as is the case with the general partnerships, the control and management of the limited partnership is a duty in which all members have equal rights to. All decision making should include all members.

Longevity like in the general partnership the death, incapacity, insanity, disability, death or withdrawal of a member causes dissolution of the partnership.

Location the location of the business, like any other management issue of the business is subject to the discussion and agreement by the partners. It is then that each member signs into being a partner to form a business at the specified location. Upon moving the business all members have to give their consent as stipulated in the agreement and duly sign documents for the business to move to other states. Moving to new states would require proper documentation to enable them be taxed in accordance to the tax rules in the new state. (Deborah, 2001)

Convenience the convenience of the business to each member is curtailed as such events such as meetings have to take place even when all members do not agree on the time. In cases where the partners are many the setting up of meetings are usually a problem and some members end up being inconvenienced by the meetings (Deborah, 2001)

Profit retention like in the general partnerships the amount of profits to be ploughed back into the business is usually subject to agreement between the members. Many companies take it at 50-50. Fifty percent of the profit is shared amongst the members while the rest is used for expanding the business. (Deborah, 2001)

4. C-corporation
The income of a C-corporation is taxed, whereas the income of an S-corporation (with a few exceptions) is not taxed under the Federal income tax laws. The income, or loss, is applied,  HYPERLINK httpen.wikipedia.orgwikiPro_rata o Pro rata Pro rata, to each shareholder and appears on their tax return as Schedule E (incomeloss).Unlike companies treated as S-corporations, a company may qualify as a C-corporation without regard to any limit on the number of shareholders, foreign or domestic. The default rule is -- any corporation not properly filed as an S-corporation will be treated as a C-corporation for the tax purposes. This is the difference between the two. It is a disadvantage to c-corporations that they have to pay tax twice due to double taxation. All other aspects of a C-corporation are similar to those of s-corporations.
Income taxes the profits of a C-corporation are first taxed before the remainder of the profits is divided amongst the members. This is called double taxation as the members may be later required to pay tax on their incomes.

Control most C- corporations may have up to a hundred members and with such a huge number a board of directors is elected to run the corporation on behalf of the others. They are however accountable to them.
Convenience in an organization with large numbers of members a board of directors is elected to oversee the running of the organization in a day to day capacity. The other members are thus convenience as they have little or nothing whatsoever to do regarding the management of the corporation.

Liability S-corporations are separate legal entities from their shareholders and, under state laws, generally provide their shareholders with the same liability protection afforded to the shareholders of C corporations. For Federal income tax purposes, however, taxation of S corporations resembles that of partnerships.

Profit retention the corporations income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns. This implies that the shareholders can agree on an amount of the profit to be retained in their general meeting.

Longevity the death, disability or incapacity of a member does not collapse the whole organization. Instead the other members can choose to replace him or not depending on the number of members they require in the organization.

5. S-corporation
S-corporations are those that elect to pass corporate income, losses, deductions and credit through to their shareholders for federal tax purposes. Shareholders of S-corporations report the flow-through of income and losses on their personal tax returns and are assessed tax at their individual income tax rates. This allows S corporations to avoid double taxation on the corporate income. S-corporations are responsible for taxes on certain built-in gains and the passive income. This is a huge advantage as compared to a s-corporation. With the large numbers of members they can raise a huge amount of capital for expansion as well as sharing loses. However profit is shared by a huge number of people.

Taxation S-Corporations do not pay any income taxes. Instead, the corporations income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns. This concept is called single taxation if the corporation is taxed as a  C Corporation, it will face double taxation, meaning both the corporations profits, and the shareholders Dividend dividends, will be taxed.

Liability S-corporations are separate legal entities from their shareholders and, under state laws, generally provide their shareholders with the same liability protection afforded to the shareholders of C-corporations. For Federal income tax purposes, however, taxation of S corporations resembles that of partnerships.

Profit retention the corporations income or losses are divided among and passed through to its shareholders. The shareholders must then report the income or loss on their own individual income tax returns. This implies that the shareholders can agree on an amount of the profit to be retained in their general meeting.

Control most C-corporations may have up to a hundred members and with such a huge number a board of directors is elected to run the corporation on behalf of the others. They are however accountable to them.
Longevity the death, disability or incapacity of a member does not collapse the whole organization. Instead the other members can choose to replace him or not depending on the number of members they require in the organization.

Convenience in an organization with large numbers of members a board of directors is elected to oversee the running of the organization in a day to day capacity. The other members are thus convenience as they have little or nothing whatsoever to do regarding the management of the corporation.

6. Limited liability company
A Limited Liability Company or a company with the limited liability is a flexible form of a business enterprise that blends elements of partnership and corporate structures. It is a legal form of a business  Company company that provides   Limited liability limited liability to its owners. The company has a large number of members who can easily raise large amounts of capital. They also share profits and choose the company heads from themselves. However profits are also shared. These are the main advantages and disadvantages of LLCs. The primary characteristic an LLC shares with a corporation is o Limited liability limited liability, and the primary characteristic it shares with a partnership is the availability of  Flow-through entity pass-through Taxation in the United States income taxation. It is often more flexible than a corporation and it is well-suited for companies with a single owner.

Liability limited liability does not imply owners are always fully protected from personal liabilities. Courts can and do   Pierce the corporate veil pierce the corporate veil of LLCs when some type of   Fraud fraud or misrepresentation is involved. However, LLCs in most states are treated as entities separate from their members, meaning they have limited liability.

Taxation using a default tax classification, profits are taxed personally at the member level, not at the LLC level.  Flow-through entity Pass-through taxation is used to tax their profits, unless the LLC elects to be taxed as a C corporation.

Control the company is managed by a board of directors with a company head who are then accountable to the other members.

Longevity the company does not collapse on the death or departure of one member. Instead the other members can choose to or not to replace them.

Convenience the company being ran by a company president and directors means that an ordinary member does not take any part in the managing of the company. This means that his burden in the management of the company is minimal.

Location the location of such as organization is usually where it began from. However if the company finds it important to expand to other states, the company president has to fill documents to register the company in the new state so it can be taxed in accordance to the laws of the new state. This has to be endorsed by the members in their annual general meetings.

MEMORANDUM
The memo requires me to recommend a specific form of business that should be used in this situation. The owner should form a C-corporation. The discussions below are my justifications for the above proposition.
The owner requires capital to expand and open a new branch in the adjoining state. In this case he should consider selling stock in the company. This way he is going to continue having control over the business. He can also employ family members as officers in the company with him being the president.

The owner is also very conscious about losses and his personal property. A C-corporation has its members having limited liability over their personal property. This is because they are considered different legal entities from the business. In this case the owner will not be worried about losing his personal property to his creditors.

The amount of taxes paid by C-corporations is less, compared to other forms of corporations like S-corporation. This is because they use single taxation while S-corporations use double taxation. In single taxation, the company tax is not taxed. Rather it is first divided amongst the members who are then taxed individually.

A C-corporation does not collapse on a members death or departure. The owner is worried about the continuity of the business in the event of his death. In this case, his family members, who would then be officers in the company, would elect a new company head and the business would continue operating.
Having his trusted family members as officers in the company would ease his management duties. He would appoint each of them at different positions who would then be accountable to him as the company boss. This way he would have someone in charge of every sector like hiring of labor, legal affairs, finance. This would convenience him as it would ease his burden.