COVID-19 Vaccines and the Workforce – Mandatory or Encouraged?

Ruth Binger

By Ruth Binger



covid-19 vaccineGetting back to normal in the next year or so may be impossible without the widespread use of COVID-19 vaccines. Although authorities do not anticipate the vaccines will be widely available until Spring 2021, employers should be considering whether to mandate or merely encourage vaccinations in the workforce.

Currently there is no definitive answer regarding mandatory vaccinations, and your plan will depend on many variables. Because this is the first pandemic in our memory and it is all new to us, consider forming a committee to monitor the status of laws, regulations, and guidance from various agencies.

Your business may be one of the lucky ones that navigated the pandemic without causing a loss of morale or culture, operating safely by working remotely, social distancing, wearing masks, and following CDC requirements. If so, setting aside all other factors, you may simply want to encourage vaccinations for the first few months that they are available, especially given potential concerns about the safety and efficacy of the vaccines and the ever-changing laws. You could do this by training and educating employees as to the efficacy of the vaccine, encouraging participation, and offering the vaccine for free (if not covered by insurance) at the workplace during work hours. Continue reading »

FMCSA’s New Rules Offer Improved Flexibility to Commercial Motor Vehicle Drivers

Steven Ahillen

By Steven Ahillen



truckingFor years, commercial drivers and transportation companies have urged the Federal Motor Carrier Safety Administration (FMCSA) to provide greater flexibility in the hours of service (HOS) regulations. This call grew even louder following the implementation of the electronic logging device (ELD) mandate. This summer, FMCSA finally announced revisions to the hours of service regulations. The new rules went into effect on September 29, 2020.

The FMCSA’s rule changes affect four areas: the short-haul exception; the adverse driving conditions exception; the 30-minute break requirement; and the sleeper berth provision. Additionally, although it is not a formal rule change, the FMCSA issued new guidance regarding personal conveyances. These updates will help provide flexibility to an industry that often grapples with rigid regulations that have failed to keep pace with reality.

Short Haul Exemption

The short-haul exemption applies to drivers who report at the same location at the start and end of each workday and operate in a limited area. These drivers can keep a time record in place of the more burdensome HOS log. FMCSA’s new rule increases the geographic restriction from 100 air-miles to 150 air-miles. This change will allow motor carriers utilizing this exemption to expand their range, and some drivers whose regular routes previously prevented them from taking advantage of the exemption now can do so. Further, the on-duty limit for short haul operations has increased from 12 hours to 14 hours. Continue reading »

Accumulating Cash and Improving Your Business’ Cash Flow

A. Thomas DeWoskin

By A. Thomas DeWoskin



Part 2 of a 5-part series: Options for Small Business Owners in Financial Distress

turbulenceCash is how your business likely will get through its difficulties. Simply put, obtain as much cash as you can, and spend it sparingly.

In Part 1 of this five-part series on options for small business owners in financial distress, I suggested some ideas about improving the operation of your small business in order to survive different types of disasters. In Part 2, I’ll share some thoughts on improving your cash position and cash flow.

First, look at your business as a source of cash.

  • Account receivables: Contact your customers with outstanding account receivables and encourage them to make payment. Provide discounts for prompt payment and charge interest on past due amounts if you can.
  • Line of credit: If you have unused room on a line of credit, draw on it now while you still can. If things get bad enough, your lender might freeze your line and cut off further draws.
  • Business loan: If you need to approach a lender for a new loan or an increase in an existing one, do your homework. No lender is going to give you money just because you ask for it.
  • Business plan: Prepare a business plan or update your current plan to reflect current conditions. You may need help from your accountant, attorney, consultant or similar outside sources in order to do so. Your plan may include both a “needs” list and a “wants” list.
  • How much? Determine how much money you need to implement your plan whether your business plan is to simply tread water, grow, or pivot in another direction. Break it down so your potential lender understands how it is going to save your business.
  • How to pay it back? Once you have a rough number, consider how you’re going to repay it. Your business’ survival depends in part on its ability to pay its debts. Consider both the amount and duration of the likely payments.
  • Avoid “hard money” lenders: When looking for lenders, be very careful to avoid “hard money” lenders and their draconian interest rates and repayment schedules. These can include factoring companies who purchase your receivables, MCA lenders who say they are “purchasing” your accounts receivable but in reality are lending against them, and other types of lenders with outrageous interest rates and impossible repayment terms.

Continue reading »

$5,000 Grants Available to Restaurants and Small Businesses in St. Louis County

Ruth Binger

By Ruth Binger



covid-19 helpIn response to the tightening of COVID-19 restrictions for restaurants and some other small businesses, St. Louis County Executive Sam Page announced $5,000 grants through the Small Business Rapid Deployment Fund.

Grants can be used for operating expenses or business costs (e.g., rent and payroll) and purchases needed to adapt to COVID-19 restrictions (e.g., heaters and tents) “incurred between April 1 and December 16, 2020 as a direct result of COVID-19.”

According to the fund’s website, restaurants and small businesses must meet the several eligibility requirements including: Continue reading »

Your Small Business: Getting Through the Economic Turbulence

A. Thomas DeWoskin

By A. Thomas DeWoskin



Part 1 of a 5-part series: Options for Small Business Owners in Financial Distress

turbulenceSuppose your small business has been doing fairly well over the last few months in spite of COVID-19 and the many other factors affecting our economy. However, you are worried about the upcoming change of seasons, additional shutdown orders, or other circumstances which might adversely affect it.

Or suppose you expect to do well over the holidays even in the face of (or because of) the pandemic, but dread your normally slow months of January, February, and March.

Or suppose you recently undertook a large project which fell apart and left you owing a ton of money.

Different situations require different responses.

Specific Event

If a specific event led to your problems, but your business is otherwise profitable, you may be able to work out of them.

Equipment Problems

Imagine that your business was doing so well that you bought additional equipment and hired additional employees in order to meet the demand.

Unfortunately, your new equipment didn’t work as promised. Rather than the promised six weeks, the new equipment took a year to get up and running smoothly. In addition to failing to fulfill all of your orders during this time, you paid employees overtime to produce as much as they could despite the distractions caused by the equipment problems. Continue reading »

Options for Small Business Owners in Financial Distress: A 5-Part Series

A. Thomas DeWoskin

By A. Thomas DeWoskin



options for business

Many small business owners are suffering financially due to the effects of COVID-19 and the unpredictable, rapidly changing economy in general. In this five-part series, we will discuss the various options available to small businesses in financial trouble, all the way from working out obligations informally to Chapter 11 reorganization to going out of business.

The series will cover the following issues:

Part 1: Your Small Business: The Economic Turbulence – Analyzing and improving your business operations

Part 2: Accumulating Cash and Improving Your Business’ Cash Flow – Analyzing and improving the business’ flow, as well as obtaining additional financing if necessary

Part 3: Non-Bankruptcy Ideas for Helping Your Troubled Small Business –  Ideas on using non-bankruptcy options in an effort to restructure your debts

Part 4: Bankruptcy Options for Your Troubled Small Business – Pros and cons of various types of bankruptcy

Part 5: Getting through a bankruptcy case and coming out on the other side (coming soon)

Continue reading »

Updates Made to Three Main Street Loan Facilities from the Federal Reserve

Hannah E. Mudd

By Hannah E. Mudd



covid-19 financial assistanceThe Federal Reserve Board recently adjusted the terms of the Main Street Lending Program (MSLP) in an effort to focus their support on smaller businesses who continue to suffer due to the pandemic. The minimum loan size for the Main Street New Loan Facility (MSNLF), Main Street Priority Loan Facility (MSPLF), and Nonprofit Organization New Loans Facility (NONLF) have been reduced from $250,000 to $100,000. The fees on these three facilities have also been adjusted to encourage business owners to apply for these loans.

New Fee Amounts for the MSNLF, MSPLF, and NONLF

  • Transaction Fees: If the initial principal amount of the Eligible Loan is $250,000 or greater, an Eligible Lender will pay the Special Purpose Vehicle (SPV) a transaction fee of 100 basis points of the principal amount at the time of origination. Eligible Lenders may require Eligible Borrowers to pay this fee. No fee will be imposed if the initial principal amount is less than $250,000.
  • Origination Fees: If the initial principal amount of the loan is $250,000 or greater, an Eligible Borrower will pay an Eligible Lender an origination fee of up to 100 basis points of the principal amount at the time of origination. If the initial principal amount is less than $250,000, the origination fee will be up to 200 basis points of the principal amount at the time of origination.
  • Servicing Fees: If the initial principal amount of the loan is $250,000 or greater, the SPV will pay Eligible Lenders 25 basis points of the principal amount of its participation in the Eligible Loan per annum. If the initial principal amount is less than $250,000 the SPV will pay 50 basis points of the principal amount of its participation in the loan per annum.

PPP Loan Considerations Continue reading »

Is the Arbitration Provision in Your Employment Contract Enforceable?

David R. Bohm

By David R. Bohm



arbitrationMany employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Changes to the Missouri Merchandising Practices Act and Claims for Punitive Damages

Steven Ahillen

By Steven Ahillen



consumer protectionGovernor Mike Parson recently signed Missouri SB 591, which brings significant changes to the Missouri Merchandising Practices Act (MMPA) and claims for punitive damages. The statute also adds new evidentiary and pleading requirements that will make it more difficult to prevail on a claim under the MMPA and to obtain punitive damages generally. The changes apply to lawsuits filed on or after August 28, 2020.

Changes to the Missouri Merchandising Practices Act

The MMPA (Section 407.010 RSMo., et seq.) is a broad consumer protection statute designed to safeguard the public against dishonest business practices. Under the MMPA, it is unlawful to engage in any deception, fraud, misrepresentation, or unfair practice in connection with the sale or advertisement of any merchandise in commerce, or solicitation of funds for a charitable purpose. While the act charges the attorney general to police the marketplace, it also provides for a private cause of action for those who have been victimized. Attorneys’ fees are recoverable under the statute, and it has proven to be a popular tool in suits against businesses. However, SB 591 adds several new requirements that a plaintiff must satisfy to prevail on an MMPA claim.

  • Reasonableness is Required

Continue reading »

Guidance Released on Deferring Employee Social Security Taxes

Hannah E. Mudd

By Hannah E. Mudd



social securityThe IRS released guidance for employers regarding President Trump’s August 8, 2020 memorandum on withholding, deposit, and payment of employee Social Security taxes for the period of September 1, 2020 through December 31, 2020. Secretary of the Treasury Steven Mnuchin has since confirmed the deferral as voluntary and that employers may choose to continue to withhold and deposit employee Social Security taxes under the normal schedule.

The guidance clarifies that employees eligible for deferral are those with wages (for FICA purposes) of less than $4,000 per bi-weekly pay period or an equivalent amount for other pay periods. The deferral of eligibility determination must be made on a payroll-by-payroll basis. Any compensation not considered wages for FICA purposes does not count when making the determination of eligibility. It is also important to remember that ‘wages’ considered are not based on gross pay but are based on the amount of wages after nontaxable deductions. Continue reading »