Perspectives

In light of recent extreme weather events, it’s crucial for businesses to ensure their contracts include a Force Majeure clause. This provision protects parties from liability or obligations when unexpected events beyond their control prevent the fulfillment of contractual duties.

What Does Force Majeure Cover?

A Force Majeure clause typically applies to situations such as:

• Natural Disasters: Hurricanes, floods, wildfires, or other severe weather events.
• Government Actions or Regulations: Unexpected regulations, travel bans, or other state-imposed restrictions.
• Labor Strikes or Civil Unrest: Disruptions in operations due to strikes or protests.
• Pandemics or Public Health Emergencies: Events similar to the COVID-19 pandemic that impact business operations.

Why Force Majeure Clauses Matter?

Including a Force Majeure clause in contracts is essential for businesses to mitigate risks, provide flexibility, and avoid breach of contract when unforeseen events occur. Here’s why:

Mitigates Risk: A Force Majeure clause reduces potential liabilities by freeing parties from obligations when events beyond their control-like natural disasters or pandemics-disrupt operations.

Provides Contract Flexibility: This provision allows for the adjustment or suspension of obligations during disruptive events, ensuring businesses can adapt without facing penalties.

Avoids Breach of Contract: By acknowledging the impact of unpredictable events, a Force Majeure clause helps prevent breaches and protects relationships between parties.

How This Plays Out in Practice

In real-world scenarios, Force Majeure clauses are invaluable when dealing with:

Supply Chain Disruptions: When extreme weather or other factors interrupt supply lines, the clause provides relief from penalties.

Service Interruption: If a company cannot perform services due to uncontrollable circumstances, it avoids liability by invoking the Force Majeure provision.

By including this clause, businesses can protect themselves from undue risks and financial burdens when events outside of their control occur. It’s a proactive step that provides flexibility and helps manage unforeseen disruptions effectively.

If you’re looking to strengthen your contracts or need guidance on incorporating Force Majeure clauses, our legal team at WFJ is here to assist.

The Corporate Transparency Act (CTA) is fast approaching its critical deadline of January 1st, 2025. This law, designed to enhance transparency and combat illicit financial activity, requires certain business entities to report beneficial ownership information to the Financial Crimes Enforcement Network (FinCEN). If your business falls under this new mandate, now is the time to act. (Learn more about the CTA in our previous blog post: here.)

Why the Deadline Matters

Failing to comply with the CTA by the January 1 deadline could result in severe penalties, including fines of up to $10,000 or imprisonment for up to two years. Compliance isn’t optional, and businesses that miss the mark could face significant risks. Preparing now ensures your business remains compliant and avoids unnecessary complications.

Is Your Business Ready?

Many businesses, including corporations, LLCs, and other entities formed under state law, must submit reports identifying their beneficial owners-individuals who own or control at least 25% of the company or exercise substantial control over it. Even if you’re not sure whether your business is required to report, it’s essential to seek legal advice to determine your compliance obligations.

How Can WFJ Help?

• Assessment and Planning: We’ll help you assess whether your business must report under the CTA and develop a plan to gather the required information.
• Accurate Reporting: We’ll guide you in accurately identifying and documenting your beneficial owners, ensuring your filings meet FinCEN’s standards.
• Ongoing Support: The CTA isn’t just a one-time requirement; reporting obligations may change as your business evolves. We offer ongoing support to keep your business compliant beyond January 1, 2025.

Don’t Wait-Act Now

Time is of the essence. The January 1, 2025, deadline will arrive sooner than you think, and preparation is key. Partner with WFJ today to ensure your business is ready and compliant. Our experienced team is here to provide the legal support and guidance you need, so you can focus on what matters most-running your business.

Contact us today to schedule a consultation or take the first step towards meeting your compliance obligations. 

Developing a Robust Compliance Program Can Protect from Litigation from Internal Sources

Developing and maintaining a robust compliance program is critical for businesses to protect themselves from potential litigation arising from internal sources, such as employees or management. Understanding the importance of a comprehensive compliance program is essential to safeguarding a business’ financial and legal interests, ensuring that operations are conducted in accordance with relevant laws and regulations.

The Role of a Compliance Program

A compliance program is a structured set of policies, procedures, and practices designed to ensure that companies and their employees adhere to legal and ethical standards. A robust compliance program serves as a first line of defense against internal risks by promoting a culture of accountability and transparency within the organization. It helps prevent misconduct, detect violations early, and respond effectively to any issues that arise, thereby reducing the likelihood of litigation.

Key Components of a Robust Compliance Program

1. Clear Policies and Procedures: The foundation of any compliance program is a set of well-defined policies and procedures that outline the company’s expectations for ethical behavior and legal compliance. These should cover a wide range of areas, including workplace safety, anti-discrimination, harassment prevention, data privacy, and financial reporting. Policies should be easily accessible to all employees, written in clear language, and regularly updated to reflect changes in laws or business practices.
2. Training and Education: Regular training programs are essential to ensure that employees understand their responsibilities under the compliance program. This includes not only initial onboarding training but also ongoing education on topics such as regulatory updates, ethical conduct, and specific risks relevant to the company’s operations. Training should be tailored to different roles within the organization, ensuring that all employees, from front-line workers to senior management, are equipped to comply with applicable laws and policies.
3. Internal Reporting Mechanisms: A key aspect of a compliance program is the establishment of effective internal reporting mechanisms. Employees should have a clear and confidential way to report concerns or potential violations without fear of retaliation. This can include anonymous hotlines, secure online reporting tools, or direct access to compliance officers. Encouraging employees to report issues internally allows the organization to address problems early, before they escalate into legal disputes.
4. Monitoring and Auditing: Regular monitoring and auditing of compliance activities are crucial for detecting potential issues and ensuring that the program is being implemented effectively. This includes conducting internal audits of financial transactions, reviewing adherence to safety protocols, and assessing the effectiveness of training programs. Audits should be conducted by independent personnel or external experts to ensure objectivity and thoroughness.
5. Enforcement and Discipline: A robust compliance program must include clear enforcement mechanisms for dealing with violations. This means having a consistent and fair disciplinary process in place that holds employees accountable for misconduct. Disciplinary actions should be well-documented and applied uniformly across the organization to prevent claims of unfair treatment or discrimination, which can lead to litigation.
6. Leadership Commitment: The success of a compliance program depends heavily on the commitment of the organization’s leadership. Senior management must lead by example, demonstrating a strong commitment to ethical conduct and compliance with laws and regulations. This includes allocating sufficient resources to the compliance program, regularly communicating its importance to employees, and actively participating in compliance initiatives.

Benefits of a Robust Compliance Program

Implementing a comprehensive compliance program offers several key benefits that can protect companies from internal litigation:

• Litigation Prevention: By proactively addressing potential issues and promoting a culture of compliance, companies can prevent internal disputes from escalating into costly litigation. Employees are more likely to resolve concerns internally if they trust that the organization takes compliance seriously.
• Legal and Financial Protection: A strong compliance program helps ensure that everything operates within the bounds of the law, reducing the risk of legal violations that could result in fines, penalties, or lawsuits. This not only protects the company’s finances but also its reputation.
• Improved Employee Morale and Retention: A workplace culture that prioritizes ethical behavior and compliance fosters a positive work environment, leading to higher employee morale and retention. Employees who feel valued and respected are less likely to engage in misconduct or file lawsuits against the company.
• Enhanced Operational Efficiency: Compliance programs help streamline operations by establishing clear procedures and reducing the likelihood of disruptions caused by legal disputes or regulatory investigations.

Ongoing Maintenance and Review

A compliance program is not a one-time initiative but an ongoing process that requires regular maintenance and review. Internal teams should work closely with legal counsel and compliance officers to continually assess the program’s effectiveness and make necessary adjustments. This includes staying informed about changes in laws and regulations, updating policies and training materials, and addressing any new risks that arise.

Developing and maintaining a robust compliance program can create a solid foundation for legal and ethical operations, significantly reducing the risk of litigation from internal sources and protecting long-term success.

To ensure your compliance program is comprehensive and tailored to your company’s unique needs, the Employment and Labor group at Wagner, Falconer & Judd is here to help. Our team of experienced attorneys and HR Professionals can work with you to assess, develop, and enhance your compliance strategies, providing the legal expertise needed to protect your business from internal risks. Contact us today to take your compliance program to the next level and safeguard you from costly litigation.

Addressing defaults and outlining remedies within contracts is crucial for protecting businesses from financial risk. For finance teams, it is essential to ensure that these provisions are robust and clear, providing them with the necessary tools to respond effectively in the event of a customer’s default.

A default occurs when a party fails to fulfill its contractual obligations, such as making timely payments or or adhering to the terms of a lease or purchase agreement. To mitigate the financial impact of a default, contracts should include late or missed payments, failure to maintain insurance, or unauthorized use of equipment. By clearly defining what constitutes a default, the dealer can act swiftly and decisively when a breach occurs.

Once a default is established, the contract should provide a range of remedies to protect the businesses’ financial interests. Common remedies include the right to repossess any equipment, acceleration of payment obligations (where the full amount due becomes immediately payable), and the imposition of late fees or interest on overdue payments. The right to terminate the contract and recover damages, including the cost of retrieving and refurbishing the equipment, should also be clearly articulated.

To further strengthen these protections, finance teams should ensure that contracts include provisions for legal fees and costs, allowing the dealer to recover expenses incurred in enforcing the contract or pursuing legal action. Additionally, contracts should specify that any waiver of a default or delay in enforcement does not constitute a waiver of the dealer’s rights under the contract, preserving the dealer’s ability to enforce the agreement in the future.

It is also important to include dispute resolution mechanisms, such as arbitration or mediation, which can provide a more efficient and cost-effective means of resolving conflicts without resorting to lengthy litigation. These mechanisms should be clearly outlined in the contract, along with the steps required to initiate them.

Finally, finance teams should work closely with legal counsel to ensure that default and remedy provisions are tailored to the dealership’s specific needs and are compliant with applicable laws. Regular review of contract templates and updates in response to changes in the law or business practices is essential for maintaining effective protection.

On January 1, 2024, the Corporate Transparency  Act (CTA) came into effect, marking a significant step in the fight against money laundering, tax fraud, and terrorism and funding. This new law mandates the collection of beneficial owner information (BOI) for over 30 million small businesses across the United States. Here’s a breakdown of what the CTA entails and how it affects your business.

What is the Corporate Transparency Act?

The CTA is a federal law aimed at enhancing transparency in corporate ownership. By requiring a business to report information about their beneficial owners, the CTA seeks to prevent seeks to prevent illicit activities such as money laundering, tax evasion, and financing of terrorism.

Key Definitions

Reporting Company- This refers to any corporation, limited liability company, or similar entity that is created by filing a document with a secretary of state or any similar state office.

Beneficial Owner- An individual who owns at least 25% of the reporting company or has substantial control over the reporting company.

Company Applicant- The person who filed the document to create the reporting company. If multiple people were involved, it includes the person primarily responsible for directing the filing.

Reporting Requirements

Existing Companies- If your reporting company was created before January 1, 2024, you are required to provide information about your beneficial owners.

New Companies- For companies created on or after January 1, 2024, you must report information about your beneficial owners and company applicants. However, a reporting company created after January 1,2024, does not need to report its company applicants.

Identification of Company Applicants- Companies required to report must always identify at least one company applicant, but no more than two.

Filing BOI Reports

All companies subject to the CTA musts file a BOI report with the Financial Crimes Enforcement Network (FinCEN), a bureau of the U.S. Department of Treasury.

Penalties for Non-Compliance

Non-compliance with the CTA carries severe penalties:

Civil Penalty: $500 for each day the violation continues

Criminal Penalty: Up to two years of imprisonment and a fine of up to $10,000 for providing false information or failing to comply with the CTA.

Exemptions for Large Operation Companies

Some companies are exempt from the CTA requirements. To qualify for exemption, an entity must meet all the following conditions:

• employ more than 20 full-time employees in the United States
• have an operating presence at a physical office within the United States
• Filed a federal income tax return in the U.S. for the previous year showing more than $5 million in gross receipts or sales

The CTA introduces important changes for small businesses, aiming to foster greater transparency and accountability. It’s crucial for businesses to understand these new requirements and ensure compliance to avoid significant penalties. For more detailed guidance or assistance with your BOI report, please contact Wagner, Falconer & Judd.

Wage and hour compliance is an essential aspect of operating a business. It’s not just a legal obligation but a critical component of maintaining a fair and equitable workplace. Failure to comply with wage and hour laws can lead to significant financial penalties, damage to your company’s reputation and costly litigation. This post will provide an overview of wage and hour compliance, focusing on the Fair Standards Act (FLSA) and state laws like the Minnesota Fair Labor Standards Act (MFLSA).

Federal Standards: The Fair Labor Standards Act (FLSA)

The FLSA is the cornerstone of federal wage and hour regulations. It sets the baseline standards for several key areas, including:

Minimum Wage: The FLSA establishes a federal minimum wage, which is currently $7.25 per hour. However, many states, including Minnesota, have set higher minimum wages. For instance, Minnesota’s minimum wage is higher than the federal standard, and employers in Minnesota must pay the state rate. (Always be sure to review your local and state laws.)

Overtime Pay: The FLSA requires that non-exempt employees receive overtime pay at 1.5 times their regular rate for any hours worked over 40 in a workweek. This standard applies across the country, but states can impose stricter rules.

Recordkeeping: Employers are required to maintain accurate records for employee’s hours worked and wages paid. This includes details like the employee’s full name, social security number, address, birth date (if under 19), gender, occupation, time and day when workweek starts, hours worked each day, and total hours worked each week.

Youth Employment: The FLSA also sets restrictions on the employment of minors, limiting the hours they can work and the types of jobs they can perform. These provisions are designed to protect the educational opportunities of minors and prohibit their employment in jobs under conditions that may be detrimental to their well-being or health.

State-Specific Standards: The Minnesota Fair Labor Standards Act (MFLSA)

While the FLSA sets the baseline for wage and hour laws, state laws like the MFLSA can impose additional requirements. Employers must comply with both federal and state regulations and apply the standards that are most favorable to employees.

Overtime Pay: Unlike the FLSA, which requires overtime pay for hours worked over 40 in a workweek, the MFLSA mandates overtime pay for hours worked over 48 in a workweek. However, this does not mean that employers can ignore federal overtime requirements. If an employee is covered by both the FLSA and the MFLSA, the employer must pay the employee according to the standard that benefits the employee the most.

Minimum Wage: You state’s minimum wage may be higher than the federal minimum wage and vary depending on the size of the business. Employers must pay the higher state minimum wage if they are subject to both federal and state laws.

Additional State Requirements: Be aware that state’s also may have additional specific requirements. For example, Minnesota law requires meal and rest breaks, payment of wages upon termination, and protections for certain types of leave. Specifically, MN law requires that employees be given enough time to eat a meal during a shift that is eight hours or longer. Employers must be aware of the nuances to ensure full compliance. We recommend working with trusted legal counsel to ensure your follow all city, state, and federal laws.

The Importance of Compliance

The consequences of non-compliance with wage and hour laws can be severe. Employers who fail to meet these obligations may be subject to:

Back Wages: Employers may be required to pay employees any unpaid wages that were owed under law.

Liquidated Damages: In cases where violations are found to be willful, employers might be liable for liquidated damages, which can double the amount of back wages owed.

Attorney’s Fees and Court Costs: Employers found in violation may also be responsible for paying the employee’s attorney’s fees and court costs.

Reputational Damage: Beyond the financial impact, wage and hour violations can seriously damage an employer’s reputation, making it difficult to attract and retain top talent.

Staying Compliant: A Proactive Approach

Given the complexities of wage and hour laws, especially when considering both federal and state requirements, it is crucial for employers to take a proactive approach to compliance. This includes:

Regular Audits: Conduct regular audits  of your payroll practices and recordkeeping procedures to ensure compliance with all applicable laws.

Employee Training: Ensure that your HR team and management are fully trained on wage and hour laws and understand the importance of accurate recordkeeping and fair pay practices.

Staying Informed: Wage and hour laws are subject to change, so it’s important to stay informed about any updates to federal or state laws that may affect your business.

Consulting with Legal Counsel

Navigating the complexities of wage and hour laws can be challenging, especially for businesses that operate in multiple states or industries with specific regulations. To ensure compliance and protect your business from potential liabilities, it is highly recommended to work with trusted legal counsel who can provide expert advice tailored to your specific situation.

Your legal counsel can help you understand your obligations under both federal and state laws, identify potential areas of risk, and implement best practices to mitigate those risks. By partnering with experienced employment law attorneys, you can confidently navigate the complexities of wage and hour compliance, allowing you to focus on what matters most-growing your business. 

The Department of Labor (DOL) recently updated the Overtime Rule, bringing significant changes to the salary threshold for overtime exemptions. As of July 1, 2024, the threshold will increase to $844 per week, with a further increase to $1,128 per week on January 1, 2025. These changes will have wide-ranging implications for employers across the country. In this blog post, we’ll explore the historical context, financial and administrative impacts, and essential strategies for ensuring compliance with the new rule.

Historical Context and Rationale

The salary threshold for exemption has eroded over time, falling to $455 per week-currently less than the poverty threshold for a family of four. This has resulted in millions of workers working long hours without fair compensation. Between 1938 and 1975, the DOL increased the minimum salary required for the executive, administrative, and professional (EAP) exemption from overtime pay to every 5 to 9 years. However, long periods between increases after 1975 have caused the real value of the salary threshold to erode, lessening its effectiveness. 

The January 2025 salary threshold is set at the 35th percentile of earnings for full-time workers in the lowest-wage Census Region (currently the South), while the highly compensated employee (HCE) threshold is tied to the 85th percentile of earnings for full-time salaried workers nationally. Additional increases based on current wage earnings data are set to automatically occur every three years, beginning July 1, 2027.

Financial Impact

One of the most immediate concerns for employers is the financial impact of the new DOL overtime rule. With the new salary threshold increases, many employers will need to adjust their budgets to accommodate higher payroll expenses. For companies with a significant number of employees currently earning below these new thresholds, this could mean substantial increases in labor costs.

Employers will need to decide whether to raise salaries to maintain exempt status or reclassify employees as non-exempt and pay overtime wages. This decision will depend on the nature of the work, the number of hours typically worked, and the financial capacity of the business. Conducting a thorough cost-benefit analysis will be crucial to determine the most financially sound approach for your organization.

Administrative Impact

The new rule will require significant changes to payroll and HR practices. Employers will need to update payroll systems to ensure accurate tracking hours worked and proper payment of overtime for newly non-exempt employees. This may involve investing in new timekeeping software or upgrading existing systems. Additionally, HR departments may need to revise job descriptions and employment contracts to reflect changes in employment classification. Training for managers and HR personnel will be necessary to ensure compliance with the new regulations and effectively manage the reclassification process.

The administrative burden can be significant, especially for small business with limited HR resources. However, these changes are essential to ensure compliance and avoid potential legal issues.

Legal Compliance

Adhering to the new regulations is crucial to avoid penalties and potential lawsuits. Non-compliance can result in hefty fines, back pay for unpaid overtime, and legal fees. Additionally, failing to comply with the new rules can damage your company’s reputation and employee morale. Regularly auditing your payroll practices and employee classifications is important to ensure ongoing compliance. 

Consulting with legal experts and HR professionals can provide valuable guidance and help mitigate risks. Remember, staying proactive and informed is key to navigating these regulatory changes successfully.

Practical Considerations

Employers have some flexibility regarding the timing of reclassification. You can wait until January 2025 to reclassify employees if they meet the July, 2024 salary level. Planning for the reclassification process now will ensure a smooth transition. Stay informed about potential legal challenges and enjoinments to the new rule to make the best decision for your organization.

The DOL’s new Overtime Rule presents significant challenges and opportunities for employers. Assessing the financial and administrative impacts and ensuring legal compliance are crucial steps to navigate these changes successfully. By staying proactive and informed, you can make strategic decisions that benefit both your organization and your employees. 

Don’t know where to start? Integrating new legislation into your workflow shouldn’t be overwhelming. The Employment Law group at Wagner, Falconer and Judd stays up-to-date on state and federal laws so our clients can focus on running their businesses. Reach out today to learn how partnering with a firm like WFJ can provided much needed support to your organization’s leadership.