Perspectives

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.

May was Mental Health Awareness Month, which aims to bring awareness to and reduce the stigma of mental health issues.  Recently, PwC announced that it would be embracing the movement and investing $2.4 billion (yes, that’s billion with a “b”), into programs meant to improve employee mental health and wellness.  These new wellness driven policies provide employees with options to establish work schedules and locations that are most conducive to the employee’s present circumstances.  In addition, the company will shut down for two weeks in both July and December to encourage time away from work, provide expanded parental leave, give mid-fiscal-year salary increases to all employees, and offer professional development opportunities.

Research shows that when employees are struggling, a company’s bottom line can also suffer.  For example, a study published by the American Psychiatric Association Foundation’s Center for Workplace Mental health found that employee depression, which can lead to increased absenteeism and lost productivity, costs the U.S. economy more than $210 billion each year (there’s that “b” for billion again).  Not only is it the right thing to do to take steps to improve employee wellness, but the investments can lead to increased productivity and output, and thus higher profits.

While most companies cannot invest billions of dollars into employee wellness programs like PwC, there are many low-cost measures companies can take to improve mental health and wellness, such as the examples below.

Train Managers to Spot the Signs of a Struggling Employee: Front-line managers should have a basic understanding of the warning signs that an employee may be struggling with their mental health.  For example, perhaps a once-stellar employee is now struggling to complete projects on time or turns in work riddled with errors.  Another employee may have had a great attendance record, but suddenly is absent or tardy from work often.  These issues could stem from depression, anxiety, or other mental health conditions, rather than just sudden poor performance.  Managers should also know that certain employees may be at higher risk of suffering from work-related stressors.  Common examples of workplace triggers include employees who work alone, in high-risk positions, or have intense workloads.  If a manager senses an employee is struggling, the manager should understand how to broach the subject with the employee, what to say, and just as importantly, what not to say.

Understand How to Properly Handle Employee Reporting of Mental Health Issues: If an employee discloses that they are struggling with their mental health, employers should understand their potential legal obligations under the Americans with Disabilities Act and corresponding state laws.  Employees may be entitled to reasonable accommodations such as additional break time, modifications to work schedules, or unpaid leave.  It may also be appropriate for the employer to offer resources to the employee.  For example, if the company has an Employee Assistance Program (EAP), the employer can refer the employee to the EAP, who can then connect the employee with the necessary resources.  Often employees either forget about their EAP options or are hesitant to reach out believing their situation is not serious enough and need some encouragement.

Conduct High-Quality Check-Ins to Build Connections: The COVID-19 pandemic left many people feeling isolated from family, friends, and colleagues, which can have a corresponding negative impact on an individual’s well-being.  Even as more employees have returned to working on-site, there is no doubt that remote/hybrid work arrangements are here to stay.  A tool companies can use to help combat employee isolation is to conduct more frequent, but shorter duration, check-ins.  The practice of conducting once-annual performance reviews for the sole purpose of analyzing wage increases is often inadequate to address employee performance, and certainly does not help with employee engagement.  Rather, employers should take care to really listen to their employees.  Employees who feel their concerns are taken seriously, and that they are given opportunities to assist the company with solving workplace problems, are likely to feel more engaged, valued, and have better job satisfaction.

While there is no one-size-fits-all approach to implementing programs and policies that will improve employee wellness, there are many steps companies can take which require minimal capital investments, but that ultimately pay dividends.

There are a number of exciting employment opportunities at Wagner, Falconer & Judd right now. If you or someone you know is looking for a job with an established law firm and fun, fast-paced team environment, look no further!

Employment Practice Attorney

WFJ is seeking an employment attorney to serve our growing employment law needs. Ideal applicant would have 2-4 years of employment law experience, a strong focus on customer service, and an interest in the evolving legal service industry delivery models. The successful candidate will have immediate client exposure and hands-on client interaction and must be positive, self-motivated, adaptable, high energy, and enjoy working in a fast-paced team environment. Applicants should have strong interpersonal skills, and an eagerness to help solve HR problems. Great salary with full range of benefits available.

Small Business Attorney

WFJ is seeking an entrepreneurial business law attorney to serve our growing small business clientele’s formation, acquisition, contract and employment needs. An ideal applicant would have 2-4 years of business experience, a strong focus on customer service, and an interest in the evolving legal service industry delivery models. The successful candidate will have immediate client exposure and hands-on client interaction and must be positive, self-motivated, adaptable, high energy and enjoy working in a fast-paced team environment. Great salary with full range of benefits available.

General Practice Attorney

WFJ is seeking a general practice attorney with a passion for service that is licensed to practice law in any of the following states: Minnesota, Wisconsin, North Dakota, South Dakota, or Montana The lawyer would assist the firm in servicing its contract for a group services legal plan with thousands of members across the state. This is a unique opportunity to service a market of individuals, families, and small businesses that are often otherwise priced out of traditional models of access to legal services. The position involves assisting clients with their legal needs through telephonic consultations, document review, legal research, and limited scope representation in many different areas of law. Applicants should have strong interpersonal skills, and an eagerness to help people solve problems. We work in a collegial, team-oriented environment, with offices in Billings, MT, Brookfield, WI, and Minneapolis, MN. We value work-life balance, offer telecommuting options to qualified employees, as well as a competitive salary and benefits package.

Litigation/Injury Attorney

WFJ is seeking an entrepreneurial injury law attorney with at least 5 years of experience to lead its injury practice. The successful candidate will work with the firm’s executive committee to grow the firm’s regional injury practice which services a large clientele of over 40,000 individuals in the upper Midwest. Excellent legal skills and superior customer service are a must. Applicants should have strong interpersonal skills, an eagerness to help people solve problems, a true caring for the client’s well-being, an understanding of social media marketing strategies, and a dedication to fostering long-term relationships with our clients. Our firm is dedicated to providing extraordinary legal representation to our clients and outstanding customer service, all in a fun, positive, team orientated environment for our employees.

Accounting Specialist

WFJ is looking for an accounting specialist who can handle a wide range of administrative support and office related tasks. Individuals must deliver outstanding service to our clients and have strong computer skills, including QuickBooks, Excel and Word. Other tasks will include data entry, invoicing and billing, deposits, and assisting with reporting. Candidates need to be well organized and able to handle confidential information. Person must be positive, self-motivated, energetic, and enjoy working on a fast-paced team . Full-time position with full range of benefits and onsite gym.

Customer Service Specialist

WFJ is seeking an experienced customer service specialist to join our growing team. This position is responsible for assisting both internal and external clients and our team of attorneys in a professional manner. We are looking for someone that thrives on helping others and who can deliver award winning service. The right candidate will possess strong leadership and communication skills, have a passion for helping others, possess a high level of integrity and be detail oriented. If you are a passionate person who thrives in a team environment and truly care about making a difference in the lives of others, this might be the right role for you. This a full-time role with daytime hours from Monday-Friday 8:00-5:00 and offers a wide range of employee benefits.

If you think you would be a good fit for one of these positions, please reach out to us at jobs@wfjlawfirm.com.

Sometimes it’s easy to look at a project or customer through rose colored glasses. Especially in a time when you are overworked, understaffed, and worried that the well of work might dry up. However, it’s important to keep an eye out for certain red flags that can majorly impact your ability to be paid on time. Or at all.

The attorneys at WFJ have been supporting construction companies for decades, and we’ve compiled a list of a few things that often lead to trouble later down the road.

• Project Owner not paying general contractor or having financial problems
• General contractor not paying your customer or having financial problems
• Any party in contract chain files bankruptcy or is placed in receivership
• General contractor or customer tells you to file a lien or bond claim
• General contractor/subcontractor is terminated
• Customer pays creditor on one project with proceeds from another project
• Customer having difficulty obtaining credit, shopping for business loans
• Quasi-public/private project
• Tenant improvement projects
• Customer not paying on time or paying in irregular amounts
• NSF checks (to you or others)
• Customer sells business or is talking about selling business
• Loss of line of credit
• Dismissal of key financial personnel
• Problems covering payroll
• Principal or third-party revokes personal guaranty
• Secured party repossesses customer’s equipment or other collateral
• Lawsuits or judgements
• Federal or State Tax liens

Sometimes customers and projects don’t show any immediate red flags. If you are having trouble collecting on a project, it might be time to place your claims with Wagner, Falconer & Judd. Contact us to learn more about getting started.

The short answer, sometimes. If you are looking for a way to improve your credit score, but don’t have much of a credit history, you’re rent history could be considered.

All three major credit bureaus accept payment history if they receive it. You aren’t allowed to self-report your on-time rent payments, but there are several rent reporting services that range in price. (Your landlord might even offer to cover this expense, as most of these services offer other resources to support those managing properties.)

Paying your rent on time isn’t going to immediately boost your credit score, especially if you already have a score over 620, but a 2017 TransUnion study reported an average increase of 16 points within 6 months of reporting for consumers with a credit score below 600.

Typically, it takes at least 3-6 months of good credit behavior to see a noticeable change in your credit score. It is difficult to make a change any faster, unless the negative information on your credit report was a minor blip, like being late with bill payments one month.

Here are some time frames for negative information that detracts from your credit score:

• A delinquent account remains on your credit report for 7 years
• Car prepossession stays on your report for 7 years
• Chapter 7 bankruptcy is on your report for 10 years. Chapter 13 remains for 7 years
• Credit application inquires remain on your report for 2 years
• Public record items such as property liens are on your report for 7 years.

Consumers have numerous options for reviewing, consolidating, and appealing information on their credit reports. It’s hard to know which option is best for your unique situation, so let the experienced attorneys at Wagner, Falconer & Judd simplify that for you. The sooner you take charge of your credit report, the sooner you can improve your score-so reach out to us today!

Unless you spend your day refreshing the Minnesota State Legislation website, you may have missed some of the new laws that have been passed so far in 2021. Don’t worry, it’s our job to pay attention- and we are happy to report back to you!

1. Insurers Cannot Discriminate Against Those with Prescriptions that Interfere with Opiates

Prescription for opiate antagonist: When determining whether to issue, renew, cancel, or modify a policy of life insurance, an insurer may not make an underwriting determination based solely on information revealing that a proposed insured has a prescription for an opiate antagonist.

2.  Statutory Deadlines Suspended During Peacetime Emergency

An act relating to civil actions; suspending the expiring of statutory deadlines imposed upon judicial proceedings during a peacetime emergency; Deadlines governing proceedings in district and appellate courts suspended during peacetime emergency. Deadlines imposed by statues governing proceedings in the district and appellate courts, including any statute of limitations or other time periods prescribed by the statute shall not expire from the beginning of the peacetime emergency declared on March 13, 2020 in governor’s executive order 20-01 through April 15, 2021. Nothing in this statute prevents a court from holding a hearing, requiring and appearance, or issuing an order during the peacetime emergency if the judge determines that individual circumstances relevant to public safety, personal safety, or other emergency matters require action in a specific case. This section is effective the day following final enactment and applies to all deadlines that had not expired as of March 13, 2020 and that would have expired during the period starting March 13, 2020 and ending April 15, 2021.

3. Department of Corrections to Provide Resources to Those Recently Released

An act relating to corrections; requiring that certain information, assistance, services and medications be provided to inmates upon release from prison; providing identification cards for released inmates, requiring a homelessness mitigation plan and annual reporting on information related to homelessness.

“Beginning July 1, the Department of corrections will have to provide health and other information to people leaving the prison system. The idea is to help ease their re-entry into the community. People leaving prison must also receive a month’s supply of their medication and a prescription for two months of refills. The department must help them apply for MinnesotaCare or Medical assistance if the person wants it. The department must also provide a range of information such whether the person can vote and whether they owe court-ordered payments or fines.

4. Frontline Workers Who Contract Covid-19 Able to Claim Worker’s Compensation Through 2021

First responders, health care workers and child care providers who serve those groups will be able to claim worker’s compensation if they contract COVID-19 through 2021 thanks to an extension of the policy passed in April. It first took effect las year and established the presumption that the people on the front lines who developed a COVID infection were exposed to it in the workplace unless their employer could prove others.

5. New Law Sets Energy-Saving Goals

This law, three years in the making, “will strengthen Minnesota’s energy conservation programs, reduce greenhouse as emissions and create jobs across the state, “according to a May press release from the governor’s office. The law sets energy-saving goals and requires documentation of progress toward those goals. It took effect when Walz signed it May 25.

Want to see all the laws passed so far this year? Visit Minnesota State Legislation’s website to read the full list of statutes.

Have questions? Our attorneys are always available to work with you on your legal needs.

Small businesses are a pillar of the American economy. In 2005, Congress enacted Bankruptcy Abuse Prevention and Consumer Protection Act to allow small business owners easier options for reorganization.

After almost 15 years, Congress realized small business debtors were the least likely to have a successful reorganization while still having a high number of small business failures.

On August 23, 2019, Congress passed the Small Business Reorganization Act (SBRA). The SBRA is a Chapter 11 reorganization bankruptcy under the new subchapter, Subchapter V.

The SBRA has new requirements as to which individuals or entities will qualify under Subchapter V, as well as new procedures. These features were added to allow small business to avoid some of the burdensome costs and time typically associated with a Chapter 11 bankruptcy.

The highlights of the SBRA are as follows:

1. Debt limit has a baseline of total debt at $2,725,625;
2. Elimination of the absolute-priority rule for creditors;
3. Appointment of a trustee, similar to those appointed in Chapter 12 and Chapter 13 of the Bankruptcy Code; and
4. Less strenuous disclosure statements and more debtor-friendly rules governing the plan requirements.

The complexity of filing bankruptcy for small businesses owners and small business debtors may be lessened by these new changes, the option to file under Subchapter V will keep many businesses operating.

The changes brought forth by the SBRA are exciting and a welcoming change to the law. There are many factors for small business owners to consider before filing of a reorganization bankruptcy. As always, it is best to consult with your LegalShield provider firm for a more detailed analysis.

Posted on April 14, 2020