Perspectives

It is no secret that the construction industry has been facing significant issues completing its project backlog that have caused stress on business.  Since construction is one of the largest sectors of the U.S. economy, most can appreciate these concerns, as they in turn impact many other sectors of business.  The two main problems most of the industry is navigating are: supply chain issues and shortage of workers.  First, current supply chain issues are pushing delivery dates to double or triple their typical timelines, which make planning projects difficult and deadlines tough to uphold.  Further, even when materials or equipment are available, US Inflation at a current rate of 8.52% is driving costs to unprecedented highs.  Second, the effects of the pandemic have left a significant shortage of skilled workers in the US labor market.  It is difficult to retain quality employees and challenging to hire new or replacement workers.  This labor shortage puts pressure on any project to complete the work on time and within budget.  In some instances, construction firms have taken a laxer approach to compliance, often with dire consequences.

However, these pressures on construction firms should not cause HR departments to “throw out the baby with the bathwater.”  In May, during hearings, the EEOC cited the construction industry’s culture of racism and sexism and commented that, with much of the $1.2 trillion Infrastructure Investment and Jobs Act being earmarked for construction firms, the Act should not fund an environment of hate.  It is safe to say that construction firms are squarely in the EEOC’s enforcement crosshairs, which is never a good place to be.

Consider a case that a Washington HVAC contractor recently settled with the EEOC.  The case involved allegations against the HVAC contractor’s owner who was accused of sexually harassing female employees, including telling women they did not belong in the building trades, engaging in nonconsensual touching, leaving condoms and lubricant out in public areas of the building, and asking women to wear more revealing clothing.  Ultimately, the contractor reached a settlement with the EEOC agreeing to be subject to federal oversight for five years and pay out a total of $361,000 to seven women who were subjected to the owner’s harassing conduct

Against this backdrop, it has never been more important for construction firms to recommit to compliance: starting with its anti-discrimination and anti-harassment policies.

Review: HR representatives should review existing policies and ensure they are up to date.  If any changes are needed, or an audit reveals some employees have not received the policy, HR should undertake to ensure all employees receive and acknowledge receipt of the policies.

Train: All employees and managers should receive anti-discrimination and anti-harassment training, ideally on an annual basis.  Companies should ensure that they comply with any specific state or local laws requiring employee and manager training.

Enforce: Compliant policies are no good if they are not properly enforced.  HR must take all allegations of discrimination and harassment seriously, regardless of the position of power the alleged perpetrator may occupy.  Companies should conduct thorough investigations.  Employees should be subject to appropriate remedial action, including termination of employment if the circumstances warrant.

Simplify your compliance needs by partnering with Wagner, Falconer & Judd. Let our experienced employment law attorneys assist you with everything from employee handbooks, onboarding and training to termination. Contact us today to learn more about our services. 

We’re sure you’ve heard the phrase “failing to plan is planning to fail”. Estate planning is a lot like that. Figuring out how to protect and distribute your assets after you pass is important for everyone.

Two of the main types of trusts are:

Revocable Living Trust- can be amended or revoked at any tie by the grantor. Because the grantor has the ability to amend or revoke the trust, and therefore still has the control over the property in the trust, the property in the estate is still included in the grantor’s estate upon the grantor’s death. Therefore, revocable living trusts do not provide shelter for assets from federal or state estate tax.

Irrevocable Living Trust- cannot be modified or revoked once it has been established. An irrevocable living trust is usually created to reduce estate and income taxes. It is unusual for the grantor to serve as the trustee of an irrevocable trust without losing the intended tax benefits.

Other types of trusts include:

Testamentary Trusts: By the terms of your will, testamentary trusts are created after your death. The assets to fund a testamentary trust usually go through probate. A common example of a testamentary trust is one created by a parent leaving assets to a child. The testamentary trust is administered by a trustee until the child reaches a stated age, at which point the assets are then transferred to the child.

Special Needs Trusts: A Special Needs Trust is a trust established for the benefit of a person under age 65 who is disabled. A trust that meets the requirements of a Special Needs Trust is excluded as an asset for a person whose MA basis of eligibility is due to blindness or disability.

Blind Trusts: Blind trusts refers to trusts established so that neither trustor or the beneficiary knows what assets are inside the trust after its creation. The trustee manages the trust until the beneficiaries are supposed to receive the assets or until the trustor closes the trust for those that are revocable.

Charitable Trusts: A charitable trust is when a donor gives ownership to a charity or creates a charitable foundation to manage and distribute assets such as cash, securities, and valuables, among others. Not only does the donor do a good deed, but the IRS also offers attractive tax benefits for creating a trust.

Asset Protection Trusts: An asset protection trust (APT) is a trust vehicle that holds an individual’s assets with the purpose of shielding them from creditors. Asset protection trusts offer the strongest protection you can find from creditors, lawsuits, or any judgments against your estate

Constructive Trusts: A constructive trust is not an actual trust by the traditional definition. It is a legal fiction that is used as a remedy for unjust enrichment. Hence, there is no trustee, but the constructive trust orders the person who would otherwise be unjustly enriched to transfer the property to the intended party.

Totten Trust: A Totten Trust is a revocable trust that is a payable-on-death bank account that names an account beneficiary. A Totten Trust is a way to pass money, not property or other assets, to your heirs. An Illinois Totten Trust, called a payable-on-death account, is best for accounts with over $100,000 deposited.

QTIP Trust: Qualified Terminable Interest Trust (QTIP Trusts) are an estate planning tool used to maximize a couple’s applicable exclusion amounts while qualifying for the marital deduction. Full property interest transfers to spouses do not trigger most gift or estate taxes under the marital deduction.

The way you want to handle your assets is as unique as you are. Let the attorneys at Wagner, Falconer & Judd help you create an estate plan that works best for YOU.

Magic Burgers, a Florida burger restaurant, employed Plaintiff, Ashley Merard, as a cashier in the restaurant’s front counter and drive-through.  Merard had previously been involved in a car accident leaving her with a tracheostomy tube, which was visible on Merard’s neck.  About one month after beginning employment, Merard was fired by her supervisor, Sonia Rivera.  When Merard asked Rivera why her employment was being terminated, Rivera pointed at Merard’s tracheostomy tube and said, “because of that.”  Merard filed a charge of discrimination with the EEOC alleging discrimination in violation of the Americans with Disabilities Act (“ADA”) and the Florida Civil Rights Act.  The EEOC issued a right-to-sue letter, and subsequently Merard filed suit.

During the jury trial, Rivera testified that after Merard’s termination, the Regional District Manager, Jim Burris, came to the restaurant to ensure that the “nasty girl with . . . the tube in her throat” had been terminated.   The jury awarded Merard $15,000 in compensatory damages, $30,000 in emotional pain and suffering damages, and tried to award $2 million in punitive damages.  Luckily for Magic Burgers, the ADA places a statutory $300,000 cap on punitive damages.  In total, the district court entered judgment awarding Plaintiff $345,519.60.

Plaintiffs asserting federal employment discrimination claims can recover punitive damages when “the employer has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529-30 (1999) (citing 42 U.S.C. § 1981a(b)(1)).  Employers can attempt to avoid an award of punitive damages by asserting a good-faith defense, as Magic Burgers attempted to do here.  Employers using this defense argue that a management-level employee’s decision is “contrary to the employer’s good faith efforts to comply” with employment laws.  Id. at 545-46.

Magic Burgers argued that its establishment of an anti-discrimination policy was sufficient to mount a good-faith defense to Burris’ actions.  However, the simple existence of an anti-discrimination policy is not sufficient to establish the good-faith defense.  Testimony at trial revealed that the company had failed to communicate and train their managers on the policy and that Rivera failed to report Burris’ discriminatory actions for fear she would be deemed insubordinate.  These facts rendered Magic Burgers’ anti-discrimination policy ineffective, thus the restaurant was not entitled to the good-faith defense.

Employers must remember that it is not enough for a company to just implement an anti-discrimination policy.  Companies must also ensure that all employees receive a copy of the policy and are given training, ideally on an annual basis.  Any state laws governing employee training must also be considered.  Employee training should, at a minimum, define the different forms of discrimination, discuss how employees can prevent workplace discrimination, and provide a variety of methods for reporting discrimination.  Managers at all levels should receive additional anti-discrimination training that more fully explains their duties to promote a discrimination-free workplace, understand the relevant anti-discrimination laws, how to recognize requests for reasonable accommodations, how to respond to discrimination complaints, and how to avoid retaliation.   Had the leaders from Magic Burgers followed their own, presumedly well-intentioned policies, that $345K would still be tucked away in their magic hat.

Does your anti-discrimination policy need an update? Or maybe you need help creating a training process for your employees to avoid making the same mistakes as Magic Burger. No matter your need, the Employment Law team at Wagner, Falconer & Judd is here to help!

One of the best and most important things you can do for your future is to have a will. A will is a legal document that allows you to state how you would like your assets to be distributed after your death. If you pass without a will, the state laws will dictate the distribution of those assets.

You should have a will if:

Most people don’t realize how simple it can be to set up a will. Let the attorneys at Wagner, Falconer, and Judd make it even easier for you! We have several estate planning options to choose from, depending on your situation. Speak with one of our consulting attorneys today to see what plan would be right for you!

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.