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News from Cross, Gunther, Witherspoon & Galchus - September 2012

Date Published: 9/14/2012

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What the New Health Care Bill Means for Employers -- Greg Northen 

The Supreme Court's much-anticipated ruling on President Obama's Patient Protection and Affordable Care Act of 2010(PPACA) has come and gone, and many groups of people still have little understanding about how PPACA actually affects them. While much of the media hype surrounding PPACA involved the individual mandate (requiring individual citizens to obtain health insurance), group health plans carried by employers and providers will also be significantly changed in the near future. Understanding not only what changes are coming, but also when they become effective, is key to preventing new penalties being levied against your company. 

Notably, there are a few new rules already enforced under PPACA. For instance, all health insurance plans now cover adult children up to the age of 26, even if they are married. Also, pre-existing condition exclusions for new applicants under the age of 19 have been eliminated. Both lifetime and annual limitations on coverage amounts (for essential health benefits) have already been erased by PPACA. Finally, the Internal Revenue Service will no longer consider over-the-counter medications as qualified medical expenses that can be paid using tax advantaged funds through health accounts. This includes flexible spending accounts, health reimbursement arrangements and health savings accounts. Flexible spending accounts will be limited to $2,500 per year, and the penalty for nonqualified purchases made with health savings account funds prior to age 65 is increasing from 10 percent to 20 percent. 

However, many upcoming changes to group health insurance plans have yet to be enforced under PPACA, and understanding how the Act affects you is vital to avoiding new penalties (or taxes as the Supreme Court found them). PPACA's impact on an employer depends on number of Full-time Employees (FTEs) (Note: 30 hours/week = FTE under PPACA). The following is a simplistic breakdown of the categories in which employers will be placed (and the effect of their classification) for purposes related to PPACA: 

25 FTEs or less = Smallest Employer

  • Employers with 25 or fewer employees and an annual payroll average of less than $50,000 per employee will receive a graduated tax credit (maximum 35% in 2010, up to 50% by 2014).

26 - 50 FTEs = Small Employer

  • Small employers with an annual payroll of less than $750,000 will not be mandated to provide insurance under the Act, but they will not receive a tax credit for doing so.

50-199 FTEs = Mid-Sized Employer

  • Employers with more than 50 employees must pay provider insurance or pay fines of $2,000 for each employee who receives a federal subsidy from the "health care exchange" set up by PPACA. This is commonly referred to as the "Pay or Play" provision. Thus, employers must either: (1) offer "qualified and affordable" insurance; or (2) Opt out and pay fines (monthly) to the government.
    • A "qualified plan" is one that is expected to pay at least 60% of allowed charges and meet minimum benefit standards.
    • An "affordable plan" is one where employee contributions do not exceed 9.5% of the employee's household income.

200+ FTEs = Large Employer

  • Automatic enrollment if employer offers any health insurance plan to its employees.
  • Employees can opt out, but must elect to do so themselves.
  • Employers must provide notice of effect of opting-out, and must notify employees about health care exchanges and available premium assistance if employer contributes less than 60% of costs.

PPACA does not become fully implemented until January 1, 2014. However, there are many other changes in the Act that are not discussed in this brief overview, such as W-2 reporting requirements for 2012 and other notice requirements that go into effect throughout 2013. It is critical that employers begin reviewing and preparing to revise, if necessary, any health care benefit plans offered to employees to avoid being penalized by the new provisions under PPACA. 

The Supreme Court’s Decision in Arizona – What Does it Mean? -- Mary Cooper

In 2010, Arizona enacted state statute S.B. 1070 to address several issues related to increased illegal immigration in the State. The law sought to create state immigration offenses and expand local law enforcement's immigration policing authority. The United States sued to enjoin the Arizona law, arguing that it was preempted by federal law. The district court granted a preliminary injunction preventing four provisions of the law from taking effect and the Ninth Circuit affirmed. Arizona appealed the case to the United States Supreme Court, which heard oral arguments on April 25, 2012. On June 25, 2012, the Supreme Court issued its opinion affirming in part and reversing in part the Circuit Court's holding. 

On appeal, Arizona argued that the Circuit Court erred in preventing four provisions of S.B. 1070 from taking effect. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; Section 5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; Section 6 authorizes state and local law enforcement officers to arrest without a warrant a person "the officer has probable cause to believe...has committed any public offense that makes the person removable from the United States"; and Section 2(B) requires officers making a stop, detention or arrest, in some circumstances, to verify the person's immigration status with the Federal Government. The Supreme Court held that Sections 3, 5(C), and 6 of S.B. 1070 were preempted by federal law. The Court found that it was without sufficient interpretation from the lower courts to determine whether Section 2(B) conflicts with federal law and remanded that provision back to the District Court for further adjudication. 

In its opinion, the Court first set out the history and scope of the Federal Government's broad constitutional power over immigration and alien matters and its inherent sovereign power to control and conduct foreign relations. The Court noted that the Federal Government has exclusive power to regulate immigration matters such as categories of aliens that are ineligible to enter the United States, alien registration and proof-carrying requirements, imposing sanctions on employers who hire unauthorized workers, and the specific aliens which may be removed from the United States and the procedures for removal. These matters are exclusively enforced by Immigration and Customs Enforcement (ICE), an agency responsible for identifying, apprehending and removing illegal aliens. Under the Supremacy Clause, states are precluded from regulating conduct in a field where Congress has expressly stated that the federal law preempts state law. Federal law will also preempt state law where Congress determined that the area to be governed is completely within the power of the Federal Government. State laws are also preempted where they conflict with federal law. 

The Court found that Section 3, which makes failure to comply with federal alien-registration requirements a state misdemeanor, was preempted by federal law. The Court reasoned that Section 3 intrudes on the field of alien registration, which Congress has determined is to be regulated entirely by the Federal Government and not the states. Section 5(C) of S.B. 1070 makes it a misdemeanor for an unauthorized alien to seek or engage in work in Arizona. The Court determined Section 5(C) also to be preempted, because the imposition of criminal penalties acts as an obstacle to the federal regulatory system in place under the Immigration Reform and Control Act (IRCA). IRCA is a comprehensive federal law that provides a framework for "combating the employment of illegal aliens." IRCA makes it unlawful for employers to knowingly hire, recruit, refer or continue to employ illegal aliens. The Court found that Congress decided that it would be inappropriate to impose criminal penalties on unauthorized employees. Thus, a state law to the contrary is an obstacle to the regulations put in place by Congress. The Court also held that Section 6 of the Arizona law was preempted. Section 6 authorizes state and local law enforcement officers to arrest without a warrant a person "the officer has probable cause to believe...has committed any public offense that makes the person removable from the United States." The Court found that Section 6 also created an obstacle to enforcement of federal law because it attempts to provide state officers with greater arrest authority, which they could exercise without instruction from the Federal Government. Congress did not intend for states to have this increased authority, where federal law specifies the limited circumstances in which state officers may perform an immigration official's functions. Lastly, the Court determined that it was improper for the lower courts to enjoin Section 2(B), because it is not clear at this point whether the provision conflicts with the federal scheme put in place by Congress. Section 2(B) requires officers making a stop, detention or arrest, in some circumstances, to verify the person's immigration status with the Federal Government. If the law only requires state officers to conduct a status check during the course of a lawful detention, the Court determined that the law is probably not preempted. However, because there is no interpretation from state courts at this point the Court refused to assume that the law conflicts with federal law. The Supreme Court's decision does not prevent future challenges to the law after further interpretation in the Arizona state courts. 

The DREAM Act: No Longer a Dream?

The Development, Relief and Education of Alien Minors Act (DREAM) is a bill introduced to Congress in 2001 and reintroduced in 2009. The bill was created to help youths brought to the United States by undocumented parents as children who are now graduating from high school find a path to citizenship and also be allowed to continue their education into college and beyond upon adhering to several strict guidelines. The DREAM Act has not been passed in Congress and remains a proposed law. In June, President Obama made a move to circumvent Congress. He issued an executive order that will prevent DREAM Act-eligible undocumented immigrants from being deported. The administration's plan will also grant DREAM Act-eligible immigrants authorization to obtain jobs legally in the United States without the fear of being deported. The executive order is temporary and will surely be up for reversal if Mitt Romney is elected to the White House in the 2012 presidential election.  

Section 530 Safe Harbor May Provide a Defense for Taxpayers Who Incorrectly Classify Employees as Independent Contractors -- Bo Loftis

Late last year, the Internal Revenue Service (IRS), the Department of Labor (DOL) and several states signed a joint memorandum aimed at reducing the number of workers that are misclassified as independent contractors. According to the press release announcing the initiative, the IRS intends "to end the business practice of misclassifying employees in order to avoid providing employment protections." Arkansas employers are sure to feel the effects of this initiative by the IRS and DOL as random audits will no doubt increase. 

The classification of an individual depends on the amount of control exercised over the individual by the employer. An individual is an independent contractor if the employer only controls the result of the work, not what work will be done and how it will be done. Whereas, an individual is an employee if the employer can control what will be done and how it will be done.   

An incorrect worker classification may subject a taxpayer to a challenge by the IRS. An IRS challenge can even result in a retroactive federal employment tax assessment, which comes with hefty penalties plus interest.   

In September of 2011, the IRS launched a voluntarily classification settlement program, offering reduced penalties for employers that correctly classify their workers going forward. The voluntary program is not the only avenue for relief, however. Section 530 of the Revenue Act of 1978 may provide relief to taxpayers who have incorrectly classified an employee as an independent contractor, thus failing to pay employment taxes, including Social Security and Medicare.   

For Section 530 to apply, a taxpayer must have had a reasonable basis for not classifying the individual as an employee. A reasonable basis may be found if the taxpayer reasonably relied on (1) judicial precedent, published rulings, technical advice with respect to the taxpayer or a letter ruling to the taxpayer; (2) a past IRS audit of the taxpayer in which there was no assessment attributable to the treatment (for employment tax purposes) of the individuals holding positions substantially similar to the position held by this individual; (3) longstanding recognized practice of a significant segment of the industry in which the individual was engaged; or (4) any other reasonable basis for treating an individual as an independent contractor. The taxpayer has the initial burden of establishing "reasonableness." 

Even though the taxpayer has the initial burden of proving "reasonableness," the provisions of Section 530 are generally construed in the taxpayer's favor. In General Investment Corp., 823 F.2d 337 (9th Cir. 1987), the Ninth Circuit held that "nationwide practice" is not required to prove longstanding recognized practice of a significant segment of the industry in which the individual is engaged. Industry practice may also be shown if the IRS has previously approved of treating an individual as an independent contractor. In Marlar, Inc., 151 F.3d 962 (9th Cir. 1998), the classification of employees as independent contractors was upheld because the court found that the IRS had previously audited and approved a competitor's classification of similarly situated employees as independent contractors.   

Although liberally construed, a reasonable basis alone will not protect the taxpayer. The taxpayer must have treated the individual and all other individual workers performing the same tasks as non-employees for all periods. Additionally, the taxpayer must have filed all appropriate federal and informational tax returns. The appropriate returns include Form 1099-MISC, which specifically applies to non-employee compensation of $600 or more, and the transmittal Form 1096. If these two conditions can be met, in addition to a reasonable basis, the taxpayer most likely has an IRS defense.   

Employers can use the 530 Safe Harbor provision to overcome an IRS challenge and avoid tax penalties. The safe harbor should only be used if the qualifications can be met. Any taxpayer wishing to use the safe harbor must have had a reasonable basis, treated similarly situated workers the same, and filed all necessary and proper information and returns. 

Criminal Background Checks: What You Need to Know about the EEOC’s New Guidance 

On April 25, 2012, the Equal Employment Opportunity Commission issued new Enforcement Guidance regarding employer use of criminal records under Title VII of the Civil Rights Act of 1964. The EEOC issued this Guidance in response to two issues: (1) employers' purported increased access to and use of criminal history information and (2) data showing that criminal record exclusions may have a significantly greater impact on minority applicants and employees.  

The EEOC explains that records of arrests and convictions must be evaluated differently and a blanket ban on hiring an individual based solely on his/her arrest record violates Title VII because an arrest does not establish that criminal conduct occurred. By contrast, a conviction record will usually serve as sufficient evidence that a person engaged in particular conduct. However, the Guidance makes clear the EEOC's belief that a policy which bars hiring applicants who have criminal convictions of any kind would also violate Title VII. An employer may be in violation of Title VII if its neutral policy against hiring all individuals who have criminal arrests and/or convictions results in a disparate impact on employees or applicants of a particular race or national origin, unless the employer can demonstrate that its policy is "job-related and consistent with business necessity." It is also unlawful for an employer to treat individuals with similar criminal records differently based on factors such as race or color.   

The Guidance discusses two circumstances in which the EEOC believes employers can satisfy the "job related and consistent with business necessity" defense when using criminal records to make employment decisions: (1) the employer validates the criminal conduct ban or exclusion for the position in light of the Uniform Guidelines on Employee Selection Procedures (which is likely an impossible burden for most employers to meet); or (2) the employer develops a "targeted screen" considering the nature of the crime, the time elapsed and the nature of the job. The policy must also provide an opportunity for an individualized assessment for people excluded by the screen to determine whether the policy as applied is job-related and consistent with business necessity. The Guidance also discusses the four factors used to determine whether an employer's hiring and other employment decisions and policies relating to criminal background checks violate the law: (1) convictions as opposed to arrests; (2) nature and gravity of the offense or conduct; (3) time that has passed since the offense; and (4) the nature of the job held or sought. It also provides specific examples of criminal background policies which the EEOC believes violate Title VII. 

Perhaps the most significant aspect of the new Guidance is the EEOC's position that although Title VII does not require an "individualized assessment" of criminal history in all circumstances, the use of a criminal background screen that does not include such an assessment is more likely to violate the law. 

The EEOC's list of best practices for employers who consider criminal record information when making employment decisions includes eliminating policies and practices that exclude individuals from employment based on the mere existence of a criminal record; developing a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct; training managers and decisionmakers on how to implement hiring policies and procedures; and limiting inquiries regarding an individual's criminal background to situations in which such information is job-related for the position in question and consistent with business necessity as defined by the EEOC.

CGWG Case Corner

"Severe" Obesity Now Protected Under the ADA

In July, BAE Systems was ordered to pay $55,000 to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC claims that BAE discriminated against an employee based on his actual or perceived disability - morbid obesity - by terminating his employment, denying him reasonable accommodation and otherwise denying him equal employment opportunities within BAE. The employee, Ronald Kratz, II, weighs more than 600 pounds, and was required to occasionally drive a fork lift. He asked for a seatbelt extender for the fork lift and was terminated two weeks later because, according to BAE, he could no longer do his job due to his weight. Employers should beware that employment decisions that are based on an employee's weight or detrimentally impact overweight employees may lead to trouble with the EEOC. Click here to read the full story. Click here to read the EEOC's complaint. 

Counseling Refused by Employee Considered "Medical Examination" Under the ADA

The 6th Circuit case Kroll v. White Lake Ambulance Auth. will certainly broaden the definition of a "medical examination" to include "psychological counseling," but not in every scenario. The Sixth Circuit Court held that if an employer asks an employee to agree to counseling, then the court must determine what purpose of the counseling is intended by the employer. IF the counseling is to uncover potential mental defects, such as bi-polarism or depression, then it would be construed as a medical exam under the ADA. If the purpose of the exam is intended to determine behavioral aspects of an employee, such as truthfulness, personality type, leadership skills, etc., then it would not be a medical exam as defined by the ADA. In the case of Kroll, the District court must now to determine whether the employer intended the testing to be for "medical purposes." Employers should beware that, sometimes, an employer's suggestion that an employee get psychological counseling could be grounds for an ADA claim. To read more, click here.                                        

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Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

Stephen HirschfeldAs an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel


Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.


We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel