Perspectives

In times of economic stress, there is too much money on the line to not review your large projects for red flags. Failing to act quickly when a customer is in distress could cause you to lose some of the remedies available to you-and can leave large sums of money left behind.

In our latest webinar, our employment attorneys reviewed the most recent changes to employment law in each of the 50 states. Here are some of the trends we noticed for 2023-

Hair Discrimination – Illinois: Illinois amended the state Human Rights Act. The Act prohibits employers from engaging in discrimination based on numerous protected characteristics, including race. This amendment expands the definition of “race” to include traits associated with race, including but not limited to hair texture and protective hairstyles such as braids, locks, and twists.

Wage Transparency – New York: New York City amends the city wage transparency provisions to clarify the positions for which a pay range must be provided. In addition to employers, 134-A specifies that employment agencies, and employees or agents thereof, must also include a salary range or hourly wage range in each advertised position, promotion, or transfer opportunity. Job advertisements for “temporary employment at temporary help firms” are still exempted from the law.

The new law also establishes a private right of action for employees. (Effective date to November 1, 2022.)

Rhode Island: Rhode Island prohibits wage discrimination; prohibits an employer from requesting or relying on an applicant’s wage history; requires an employer to provide a wage range for a position.

Washington: Requires employers to disclose hourly or salary compensation and a general description of benefits of postings for job openings.

Noncompete Limitations – Washington 2023 Non-Compete Enforceability Thresholds

Increases the amount an employee must earn to meet the non-compete enforceability threshold to account for inflation using the consumer price index.

Reproductive Health Decision-Making – Beginning January 1, 2023, California employers will be prohibited from discriminating against an applicant or an employee based on their reproductive health decision making— defined as “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Employers will also be prohibited from requiring applicants or employees to disclose information relating to their reproductive health decision making.

Staying up to date on HR trends can help save your company headaches, hassle, and money in the long run. Follow Wagner, Falconer & Judd on LinkedIn to receive updates on ever-changing laws and regulations.

When does a school have a duty to do an initial evaluation to determine if a child is in need of special education services? Is your school district “dragging their feet” and not conducting an educational evaluation for your child?

All school districts have a child find duty under the Individuals with Disabilities Act (IDEA). The IDEA states that a state’s education agency, other state agencies, or local educational agency shall conduct a full and individual initial evaluation before providing special education and related services. This mandate applies to all children in a school district from birth through age 21.

Often we find that school districts will “discuss” with parents a child’s struggles, but there seems to be a lag in getting an evaluation done to determine a child’s potential need for services. If no evaluation is done, no services can be provided, so what is a parent to do to get the evaluation done? How can the school take so long to complete an evaluation when a child is struggling?

Minnesota Statute 3525.2550 states that a school must conduct an evaluation within a “reasonable time” not to exceed 30 school days from the date the district receives parental permission to conduct an initial evaluation. The IDEA section 1414 (c)(i) states that a district has 60 days, after receiving parental consent for an evaluation to determine if a child needs services.

How can these provisions work together? First, it is important to note the 60-day deadline under the IDEA is not limited to “school days”. Therefore, the school district has a duty to conduct evaluations even during the summer if the 60 days will end during the summer. Second, the Minnesota statutory 30 school days deadline applies when school is in session and shortens the 60-day federal rule. Collectively, the school has until the end of whichever deadline comes first to complete an initial evaluation after parental consent for an evaluation is provided.

So what is parental consent?

Parental consent can be as simple as a written letter to the school saying, “I think my child has need for services and I give you permission to evaluate my child.” If you simply call the school, chat with a teacher, etc. the school will argue that the deadline did not start because they don’t have written evaluation plan signed by a parent. yes, a written plan is better than blanket permission to evaluate a child, but it is not required under the law to start the clock running on the 60 and 30-day deadlines. You do not have to wait for the school district to develop a written plan, present it to you, and then get your approval. Send your approval right away! Some school districts seem to drag their feet and the time they have to evaluate a child by taking a long time to develop a plan for evaluation and failing to see parental consent on their plan. This is not acceptable.

In a recent Minnesota case (M.J.C. ex rel. Martin v. Special Sch. Dist. No.1, Minneapolis Pub. Sch., No. CIV. 10-4861 JRTTNL, 2012 WL1538339, at *8) the school district argued that it made a good faith effort to evaluate a child that was obstructed by the parent. However, the court held that the district failed to produce an evaluation plan in writing and that failure contributed to the child not being evaluated, thus causing the child find violation.

Legal issues are complex. Working with an attorney doesn’t need to be. When you bring your case to Wagner, Falconer & Judd, our dedicated on-boarding staff will explain your payment options to you. Based on the type of case you have, they will walk you through which payment option is right for you.

Retainer Fee: A retainer is a sum of money paid by the client to the attorney up front before the attorney will begin working on the client’s case. This money is placed in an account that the attorney will bill their time against as the case progresses. This is all explained in a written retainer agreement, which your attorney will explain to you before you sign. This will state how you will be charged and what will happen if your retainer fee is reduced to zero before the case is completed.

Flat Fee: A flat fee is a single amount paid by the client in return for a single legal service performed by the attorney. This is usually used for legal work that will not require ongoing representation. (One time events such as filing an LLC, or handling a real-estate agreement.)

Contingency Fee: A contingency fee is when a percentage of the “winnings” either awarded to the client by the court after a trial has occurred, and or paid to the client from the defendant via a settlement agreement. The attorney will not get paid unless the client wins the case. Typically, contingency fees are charged for a personal injury case, where a client is suing someone for a wrong against a client. Contingency fees are not allowed in certain kinds of proceedings, such as criminal defense or divorce representation. Attorney fees can not be contingent upon any specific outcomes in those types of proceedings.

If you have any questions about how your specific case is being billed, or to discuss your best options, reach out to our consulting team. They are always here to help.

On April 29, 2022, to thank Minnesotans who kept vital businesses running during the COVID-19 pandemic, Governor Tim Walz signed the Frontline Worker Payments law.  The law allows eligible workers in one of 15 different frontline sectors to apply to receive an estimated $750.00 payment.

These sectors include:

• long-term care and home care;
• health care;
• emergency responders;
• public health, social service, and regulatory service;
• courts and corrections;
• childcare;
• schools, including charter schools, state schools and higher education;
• food service, including production, processing, preparation, sale, and delivery;
• retail, including sales, fulfillment, distribution, and delivery;
• temporary shelters and hotels;
• building services, including maintenance, janitorial, and security;
• public transit;
• ground and air transportation services;
• manufacturing; and
• vocational rehabilitation.

Employers in one of the above-delineated frontline sectors must provide all current, potentially eligible workers with notice of the Frontline Worker Pay law by June 23, 2022.  The Minnesota Department of Labor has created a sample employer notice which can be found here.  The notice must be posted at each worksite where workers work and in a conspicuous place that can be easily accessed by all workers, such as a break room or in a location where other work-related notices are posted.  Notices can also be distributed in paper or electronic copies.

The Department of Labor has also created a helpful FAQ document which can be found here.

Getting injured on the job can be particularly stressful. Worker’s compensation provides medical expenses, lost wages, and rehabilitation costs to employees who are injured or become ill during the course of their job.  Let the experienced attorneys simplify an otherwise complex situation. So you can focus on getting well, and moving forward.

What should you do if you are injured at work?

First- you should report the injury to your employer as soon as your injury occurs. Make sure the supervisor/HR knows as well. It’s helpful to shoot an email to your supervisor, manager, HR department the same day of the injury. The email should document any and all injury/symptoms from the incident. Even if it feels unrelated, such as your neck hurting after slipping and falling on your hip, let them know.

Your health and safety should always be top priority. We encourage all injured persons to be seen by a doctor who can help with treatment and recovery. Remember, the employer and their insurer may be liable for all treatment of a work injury, depending on your individual state’s laws.

You should start documenting work time missed and medical costs incurred, including medical bills, prescription costs, mileage and time off of work. Document any time missed for the injury, appointments, and reduced time if you are put on certain restrictions. Any wage loss incurred should also be documented.

If you have been injured on the job and unsure if you have covered all your bases, our team of Personal Injury attorneys are standing by to help simplify the process for you, so you can focus on healing.

The State of Virginia recently passed a law which helps ensure that construction subcontractors get paid for their work. Historically, “paid-if-paid” clauses in construction contracts have been enforceable in Virginia if the contract language is unambiguous.[1] A paid-if-paid clause creates a condition precedent where the prime contractor is only required to pay its subcontractors if the project’s owner first pays the prime contractor. Therefore, if a construction job falls through and/or the owner otherwise stops paying, paid-if-paid clauses free the prime contractor from having to pay its subcontractors. Virginia’s new law shifts the risk of getting paid for completed work from subcontractors back to the prime contractor.

In April 2022, Virginia passed into law SB550, which prohibits the use of paid-if-paid clauses in any public or private construction contract; the law goes into effect on January 1, 2023. SB550 requires a prime contractor to pay its subcontractors, regardless of whether the project owner pays the prime contractor. Under SB550, prime contractors are obligated to pay a subcontractor within sixty days from receiving an invoice from the subcontractor, or seven days after receiving payment from the owner, whichever is earlier.

Virginia’s new law is unique because paid-if-paid clauses are enforceable in most jurisdictions. Virginia will be the seventh state to make paid-if-paid clause unenforceable.[2] Nine other states only prohibit paid-if-paid clauses under certain conditions.[3] In most of these jurisdictions, paid-if-paid clauses are void when they weaken the subcontractor’s ability to file a mechanic’s lien. A mechanic’s lien is a claim against the project owner’s physical property to secure payment for labor or materials supplied for a private construction project. An argument against laws like SB550 is that subcontractors can remedy nonpayment for a job by filing a mechanic’s lien and directly pursue the private project’s owner. Most states also have lien and fund trapping statutes that help subcontractors get paid. However, filing mechanic’s liens is a complex and time-consuming process, and SB550 gives subcontractors additional protection.

It is uncertain whether other states will follow Virginia’s lead and ban paid-if-paid clauses. SB550 is a significant bill because Virginia’s historic view on contract law is that a contract’s terms usually supersede other provisions. Any new paid-if-paid laws throughout the country will likely result on a state-by-state basis, rather than states coming together to pass new legislation. WFJ will continue to stay up to date on paid-if-paid laws and all other mechanic’s lien and payment bond laws in the United States and Canada to ensure our clients are protected and fully informed of their rights.

[1] See Galloway Corp. v. S.B. Ballard Const. Co., 464 S.E.2d 349 (Va. 1995); see also Universal Concrete Products v. Turner Const. Co., 595 F.3d 527 (4th Cir. 2010).

[2] The other six states are California, Delaware (for private contracts), New York, North Carolina, South Carolina, and Wisconsin.

[3] The nine states include Illinois, Indiana, Kansas, Maryland, Massachusetts, Montana, Nevada, Ohio, and Utah.