By David R. Bohm
Hat tip to my friend, Harold Kirtz, who is a senior litigator with the FTC:
It is important that we, and our employees, families and friends, be vigilant for various scams playing off coronavirus fears. For your information, click on the link below for a good summary from the FTC concerning various of these types of scams.
More than ever, it is important that we engage in safe internet practices.
Coronavirus Scams – What the FTC is Doing
Additional Resources:
COVID-19 Business Operations for Danna McKitrick
Coronavirus/COVID-19 Resource Center
Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.
(c) tashatuvango www.fotosearch.com
03/24/20 11:57 AM
Business Law, COVID-19, Cybersecurity, Employment Law | Comments Off on Coronavirus Scams and the FTC |
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Coronavirus Scams and the FTC
By A. Thomas DeWoskin
Who would have thought we’d be in a situation like this? This is the 21st century, not the Middle Ages. The need for action is certain, but the need for panic is not. In fact, panic makes the matter worse for all concerned.
On the personal front, take care of yourself first. You need to have your wits about you at a time like this.
- Keep your mind busy with something other than worry. If you have a hobby, now is a good time to engage in it. Read a book; write a letter; call your mother. If working 80 hours a week has limited time with your kids, spend some time with them now. Just speak to them with open-ended questions. Find out what’s on their minds. Do something together.
- Help someone else – you’ll feel good about it.
- We’ve all heard the saying that every problem is an opportunity. One of the best ways to stay calm is to do something. You can’t sit and fret your way out of this.
On the business front, now is a great time to analyze your situation, both short- and long-term.
Continue reading »
03/24/20 8:38 AM
Bankruptcy, Business Law, COVID-19, Emerging Business, Employment Law | Comments Off on Thoughts for Business Owners Trying to Run a Business During a Pandemic |
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Thoughts for Business Owners Trying to Run a Business During a Pandemic
By Ruth Binger
UPDATED 3/7/2022
Review the links below for guidelines for reopening your business based on your location. If you have any questions, one of our employment attorneys can assist you.
Additional Resources:
COVID-19 ORDERS AND INFORMATION
State of Missouri
St. Louis Metro Area
St. Louis County
City of St. Louis
St. Charles County
Franklin County
Jefferson County
Lincoln County
Warren County
Other Missouri City and County Orders
Continue reading »
03/23/20 9:21 AM
Business Law, COVID-19, Emerging Business, Employment Law, Manufacturing and Distribution | Comments Off on Updated COVID-19 Information: St. Louis City, St. Louis County, Missouri, Outstate Missouri Areas, and Illinois |
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Updated COVID-19 Information: St. Louis City, St. Louis County, Missouri, Outstate Missouri Areas, and Illinois
By Employment Law Practice Group
UPDATED 9/21/2020
This chart is intended to provide a general overview of new obligations under the recently enacted Families First Coronavirus Response Act legislation. This new law is complex and subject to regulatory guidance and evolving interpretations. The employment law attorneys at Danna McKitrick, P.C. are available for up-to-date guidance before taking any action. For updated DOL regulations, see Department of Labor’s Updated Regulations for FFCRA effective 9/16/2020.
EMERGENCY FAMILY & MEDICAL LEAVE EXPANSION ACT
(FMLA EXPANSION)
|
Who must provide leave under the FMLA Expansion?
|
Employers with less than 500 employees
|
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Who is eligible to
use this leave?
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Employees (both full- and part-time) after 30 days from hiring, for the reasons listed below.
|
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Why may an employee use this leave?
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The employee is unable to work, either onsite or remotely, because the employee must care for a minor son or daughter whose school or place of care has been closed, or whose care provider is unavailable due to a public health emergency
|
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How long is the
leave?
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Up to 12 weeks
|
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What is the required pay during the leave?
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The first 10 days may be unpaid. An employee may choose to use accrued PTO for the first 10 days.
This is the employee’s choice and may not be mandated by the employer. After the first 10 days, the employee must receive pay based on the number of hours the employee would normally be scheduled to work. The pay must be two thirds of their regular rate of pay, not to exceed $200 per day or $10,000.00 total.
|
|
Is job protection
required for an employee who uses this leave?
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Yes, the employee must be able to return to the same or equivalent position.
|
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Are there exceptions to the requirement for job protection?
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Yes, job protection requirements may not apply to employers with less than 25 employees, if specific conditions are met and the position is eliminated due to changes
resulting from the public health emergency. In this circumstance, an employee must be placed on a re-hire list for one year.
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Are any employers with less than 500 employees exempt from the new FMLA expansion?
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Possibly. The Secretary of Labor may choose to exempt small businesses with less than 50 employees if following the requirements would jeopardize the viability of the business.
Note that the Secretary of labor has NOT made this exemption as of the time
of this writing.
Employers of health care providers or emergency responders may exclude such an employee from the benefits of this Act. The regular FMLA definition of health care provider is limited and this exclusion should be applied cautiously.
|
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When is the FMLA Expansion in effect?
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April 1, 2020 through December 31, 2020
|
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How will my
business recover the cost of this leave?
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With a refundable tax credit equal to 100% of the qualified paid wages required under this Act.
|
EMERGENCY PAID SICK LEAVE ACT
Continue reading »
03/20/20 4:04 PM
Business Law, COVID-19, Employment Law | Comments (4) |
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An Employer’s Guide to Paid Leave Under the Families First Coronavirus Response Act
By Ruth Binger
No one knows how long the COVID-19 Pandemic will last.
The predictions are all over the place, from 6 weeks to 4-6 months. Last
week, businesses instituted a hiring freeze. This week businesses are looking
at terminating their entire workforce in some cases and shutting down or taking
other measures.
According to Moody’s
Analytics, over 50% of the 153 million jobs in the economy are at high or
moderate risk of being lost. (In perspective, there were 800,000+ jobs
lost in March 2009 during the Great Recession). According to Mark Zandi,
chief economist at Moody’s Analytics, “…as
many as 10 million of those workers could see some impact to their paychecks —
either layoffs, furloughs, fewer hours or wage cuts.”
What are your company’s
payroll options when your orders disappear or are substantially reduced?
As flight director Gene Kranz says in Apollo 13, “Work
the problem, people.”
Continue reading »
03/17/20 3:54 PM
Business Law, COVID-19, Employment Law | Comments Off on Reducing Payroll and Avoiding Lawsuits During the Coronavirus/COVID-19 Pandemic |
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Reducing Payroll and Avoiding Lawsuits During the Coronavirus/COVID-19 Pandemic
By Corporate Law Practice Group
The state of Washington has a reputation as a worker-friendly state with some of the highest minimum wages in the country. So it’s no surprise that Washington Attorney General Robert Ferguson has been aggressively pursuing large corporate franchisors that include no-poach clauses in their franchise agreements. What is surprising is that he’s affecting franchise agreements across the U.S. (A “no-poach clause” is language in the franchise agreement that prevents a franchisee from hiring current and former employees of another franchisee or its franchisor.)
Businesses are always trying to gain competitive advantages by pushing the boundaries of regulations that promote fair competition. For example, many workers have non-compete clauses in their take-it-or-leave-it employment agreements. These clauses prevent a competitive labor market which creates a wage-fixing affect and triggers anti-trust laws. As a result, many courts have determined that non-compete clauses for employees without knowledge of trade secrets and with little ability to sway customers to follow them are unenforceable. Courts have refused to enforce non-competes for yoga instructors, camp counselors, and fast food employees.
Many franchisors include “no-poach” clauses in their franchise agreements. The terms restrict franchisees from poaching each other’s employees by allowing the franchisor to terminate the franchise of any franchisee who hires a worker employed by another franchisee or its franchisor. No-poach agreements and non-compete agreements both discourage employees from leaving their current employer. Continue reading »
10/10/19 3:50 PM
Business Law, Employment Law, Franchise Law | Comments Off on How the Washington Attorney General Is Changing Franchise Agreements Nationwide and What It May Mean For You |
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How the Washington Attorney General Is Changing Franchise Agreements Nationwide and What It May Mean For You
By David R. Bohm
The U.S. Department of Labor (DOL) has finally issued its long-awaited final rule updating its regulations defining exemptions for executive, administrative, and professional employees.
Some of the key take-aways from the new regulation are:
- The “standard salary level” to qualify for the exemption has been raised from $455 per week to $684 per week ($35,568 annually). Employees paid less than this amount after January 1, 2020 will not qualify for the exemption and will have to be paid overtime for working more than 40 hours per week.
- The total annual minimum compensation level for “highly compensated employees” (“HCE”) has been increased from $100,000 to $107,432 annually.
- Employers may use nondiscretionary bonuses and incentive pay (including commissions) that are paid at least annually to satisfy up to 10% of the standard salary level.
- There are special provisions for workers in U.S. territories and in the motion picture industry.
Continue reading »
09/25/19 9:11 AM
Employment Law | Comments Off on DOL Final Overtime Rule Published – Effective 1/1/20, Minimum Exemption Threshold Set at $35,568 Annually |
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DOL Final Overtime Rule Published – Effective 1/1/20, Minimum Exemption Threshold Set at $35,568 Annually
By Katherine M. Flett
Failure to wear a seatbelt will be admissible in product liability cases in Missouri beginning January 1, 2020. Governor Mike Parson signed Senate Bill 30 into law on July 10, 2019, amending Section 307.178 RSMo to provide that a plaintiff’s failure to wear a seatbelt shall be admissible as evidence of comparative negligence or fault, causation, absence of a defect or hazard, and failure to mitigate damages in product liability lawsuits involving an automobile. Previously, such evidence was only allowed to be admitted before the jury to mitigate damages up to 1% of the damages after any reductions for comparative negligence.
Dan He
geman, the bill’s sponsor, said that Senate Bill 30 “serves the dual purpose of both creating fairer court procedures in which a jury is able to come to a broader understanding of the causes of a plaintiff’s injuries, and encouraging general seat belt safety.”
Continue reading »
09/24/19 12:08 PM
Litigation | Comments Off on Buckle Up, Buttercup: Missouri Governor Signs Law Enhancing Failure to Wear Seatbelt Defense |
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Buckle Up, Buttercup: Missouri Governor Signs Law Enhancing Failure to Wear Seatbelt Defense
By A. Thomas DeWoskin
If you own a small business (defined as one owing less than $2,725,625 in total debt) and are in or nearing financial difficulties, you should contact your attorney to learn more about The Small Business Reorganization Act of 2019 (the Act).
Effective in February 2020, this new addition to Chapter 11 of the U.S. Bankruptcy Code provides the benefits of a traditional Chapter 11 case, but with fewer burdens and more flexibility.
For instance:
- There will be no creditors’ committee to deal with (unless the court orders otherwise).
- A trustee will be appointed instead. This may be a mixed benefit.
- On one hand, a good trustee might be able to help keep the case moving, negotiate a consensual plan of reorganization, object to claims, and take other burdens off the debtor.
- On the other hand, a bad trustee might misuse his/her powers and make things worse for the debtor.
- In either case, the debtor will pay the trustee on a percentage basis, generally under 5% of debtor’s quarterly revenues.
- A status conference must be held within 60 days after the commencement of the case to further a prompt and economical resolution of the various issues involved.
- No disclosure statement will be required, saving both time and attorney fees in the process.
- Only the debtor may file a plan; creditors may not.
- It is somewhat easier to “cram down” the terms of the plan on objecting creditors.
- The Absolute Priority Rule is essentially eliminated, making it easier for owners to retain their ownership in the debtor.
- Confirmation standards are relaxed, making it easier to get your reorganization approved.
Continue reading »
09/16/19 3:18 PM
Bankruptcy, Business Law, Emerging Business, Litigation | Comments Off on New Benefits for Those in Financial Difficulty: The Small Business Reorganization Act of 2019 |
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New Benefits for Those in Financial Difficulty: The Small Business Reorganization Act of 2019
By Katherine M. Flett
Since the Sperl v. C.H. Robinson Worldwide, Inc. decision in 2011, freight brokers have been battling vicarious liability claims for the actions of motor carriers and their truck drivers.
In Sperl, truck driver DeAn Henry was involved in a multi-vehicle collision, resulting in several deaths. Henry owned the tractor she was driving and leased it to Dragonfly, a motor carrier. When the collision occurred, she was delivering a load for CHR, a freight broker. Dragonfly and CHR entered into a contract carrier agreement, which described the relationship between the parties as follows:
“The parties understand and agree that the relationship of [Dragonfly] to [CHR] hereunder is solely that of an independent contract and that [Dragonfly] shall and does, employ, retain or lease on its own behalf all persons operating motor vehicles transporting commodities under this Contract.”
Nonetheless, Dragonfly gave Henry permission to use its carrier authority to book and deliver loads on her own. If Henry booked a load, she would be permitted to keep all the profit. If Dragonfly dispatched Henry, Dragonfly would be entitled to five percent. Suit was filed against CHR, among other defendants, for wrongful deaths and personal injuries.
At trial, Henry testified that Dragonfly did not dispatch her for the load she was transporting for CHR when the collision occurred, but instead Henry called CHR and requested the load herself. Evidence revealed that CHR required Henry to have a refrigerated trailer of a specified length and CHR dictated special instructions concerning the load, including requirements that she pick up the load at a specified time, make daily check calls, and stay in constant communication with the CHR dispatchers. If Henry did not comply with the special instructions, she was subject to CHR’s system of fines.
At the close of trial, CHR moved for a directed verdict as to the agency issue, which was denied. The jury concluded that CHR was vicariously liable based on agency and entered judgment in favor of the plaintiffs in the amount of $23.8 million. The trial court denied CHR’s motion for a judgment notwithstanding the verdict and motion for new trial. Continue reading »
09/3/19 2:54 PM
Trucking & Transportation | Comments Off on Freight Brokers Granted Some Limitations to Plaintiffs’ Vicarious Liability and Negligence Theories |
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Freight Brokers Granted Some Limitations to Plaintiffs’ Vicarious Liability and Negligence Theories
