Sometimes all you need to navigate the legal landscape is a little information. Our blogs and articles touch on a wide spectrum of legal matters that can pop up in both business and everyday life, and we hope they’ll shed a little light wherever you happen to need it.

Key Considerations for Employers in a Liquidity Crisis

With the recent closure of Silicon Valley Bank, employers may feel the pressure of liquidity issues, which in turn could impact their ability to pay employees on time or operate their compensation/benefits programs.

Three key considerations to focus on when evaluating your company’s internal finances are payroll, furlough, and benefits. These will effect your employees’ day-to-day lives, and eat up most of your HR staff’s time.


Payroll/Employee Communications:

Communicate immediately with employees regarding potential delays in payroll timing and provide prompt updates on changes. If you’re switching payroll to another financial institution, ensure compliance with existing wage rules that are designed to prevent changes to employee’s elected methods of payment without their consent. To the extent the employer cannot timely make payroll, consider furloughing or terminating employees.

Benefit Plans:

Review health and welfare benefit plans, contracts and arrangements to determine whether missed or late payments by the employer to third-party providers may cause a lapse in benefits/insurance coverage for employees (or otherwise impact coverage).

Fair Labor Standards Act:

Many employers impacted by the SVB closure are faced with difficulties in making payroll. Most employers are covered by the Fair Labor Standards Act (“FLSA”), which governs federal wage and hour standards. Covered employers have several obligations under the FLSA, including ensuring nonexempt employees are paid (a) minimum wage for all hours worked and (b) overtime for all hours worked in excess of 40 hours in any workweek. There is no explicit deadline in the FLSA itself with respect to the payment of wages. Nevertheless, the U.S. Department of Labor’s (the “DOL”) position is that FLSA-mandated sums earned for a workweek generally must be paid on the regular payday for the pay period in which the workweek ends. Currently there is no available waiver, or exemption, for noncompliance resulting from bank closures.

An employer that repeatedly or willfully violates the minimum wage or overtime pay requirements of FLSA is subject to a civil penalty of up to $1,100 for each violation. For any violation (including isolated or inadvertent violations), the employer is liable to the employee for the amount of unpaid wages and overtime pay, if any, plus an equal additional amount paid as liquidated damages. There is no requirement that the affected employee show harm beyond the late payment.

In addition to potential penalties for compliance failures under FLSA, employers may also face penalties in connection with failure to timely remit the employer portion of taxes, which includes federal income tax, Social Security and Medicare taxes and Federal Unemployment Tax. There are penalties for untimely, inaccurate, or improperly paid employment taxes, imposed based on the number of days the taxes are overdue.

State Wage Laws:

In addition to complying with wage payment obligations under FLSA, employers must also comply with applicable state wage laws or risk additional fines and penalties. Unlike FLSA, many states impose specific intervals for paying employees (e.g., weekly, bi-weekly, etc.), which may vary depending on an employee’s role or function or the industry in which they work. Penalties for failing to comply with state wage laws vary by state and can include liquidated damages and attorney’s fees.

Furloughing Employees:

In connection with similar liquidity crises, employers have considered employee furloughs as an alternative to layoffs until they can resolve their liquidity issues. Furloughs generally refer to a mandatory, but temporary, cessation from work without pay, with the expectation that the impacted workforce would return to work with the employer in the future.

Health Benefits and COBRA:

Employers that sponsor group health plans should consider whether a furlough would allow employees to continue to participate in employer-provided health benefit plans as “active” participants without requiring participants to elect benefits under COBRA. The determination will depend on the terms of the applicable plan and the underlying insurance policies maintained by their plan carrier.

Qualified Defined Contribution Retirement Plans:

A furloughed employee will generally be considered an active participant in the retirement plan and will not be considered to have experienced a “severance of employment.” Therefore, the employee would not qualify to take a termination distribution from the retirement plan. Further, furloughed employees would not qualify to take a termination distribution from the retirement plan termination assessment. Furloughed employees who are considered active participants may, subject to applicable plan terms, receive plan loans (or have existing loans remain outstanding) or in-service distributions.

Other Benefits:

Employers should also carefully review and assess the impact of furloughs on company participation in, and elections made under other benefit plans, including flexible spending accounts. A furlough may be considered a qualifying event triggering an employee’s ability to make mid-year election changes under a flexible spending account.

Labor Law and Contract Considerations:

When determining which employees to furlough, it is important for employers to use objectively defined and non-discriminatory categories of employees, to mitigate arguments of disparate impact and retaliation.

Further, employers with 100 or more employees need to be aware that under the federal Worker Adjustment and Retraining Notification Act of 1988 (“WARN Act”), employers are required to provide 60 days advance written notice to terminated employees in the event of a “plant closing” or “mass layoff.”

Under the federal WARN act, notice obligations are not triggered if employees will be furloughed for fewer than six months. However, a furlough that exceeds six months or a reduction of hours by 50% for six months or more will constitute an “employment loss” and trigger WARN’s notice obligations.

Several states that have adopted “mini-WARN” laws have similar exceptions for unforeseeable business circumstances to the WARN Act, such as New York. Employers should review the applicable local, state, and federal notice requirements before furloughing any employees.

The expense of missing payroll, or letting your employee’s benefits lapse could be detrimental to your business, especially during times of economic distress. The attorneys at Wagner, Falconer and Judd have decades worth of experience navigating the ever-changing legal obligations employers face, and are only a phone call away to help you ensure your employees, and your bottom line, are protected. Visit our Support Services page to schedule a consultation with one of our attorneys.


How Would Proposed Changes to Minnesota Employment Law Impact Your Business?

Minnesota lawmakers have advanced a bill that would create a new state-backed family and medical leave program, which guarantees paid time off for the roughly 75% of MN workers that currently don’t already have access to the benefit. This new law aims to take some of the cost and risk associated with employee leave off of employers, but what does that mean for your business?

What would the new policy entail?

The law proposes providing up to 12 weeks of partial wage replacement for medical leave (including pregnancy). The law also proposes providing up to 12 weeks partial wage replacement for family leave, including for a new baby or seriously ill relative.

What would the benefits be?

The law would replace wages on a progressive scale at 90%-55% of an employer’s salary (66% on average), while protecting job healthcare benefits.

Who would foot the bill?

The cost for providing leave would be handled by creating a large statewide risk pool to attempt to equally share costs between employers and employees, with both contributing 0.31% on employee earnings.

Who is going to do the paperwork?

The Minnesota Department of Employment and Economic Development would handle payments and administration on behalf of employers.

Who will be entitled to this benefit?

All working Minnesotans, including small business owners and those who are self-employed would be eligible for leave. The leave would be job-protected, including a right to be reinstated after the completion of leave, and retaliation is prohibited.

Key Components of MN’s proposed family leave policy:

This proposed policy has NOT been passed by Minnesota law makers yet, so there is no need to make any changes to your employee policies at this time. The information here is not legal advice, and you should not take, or refrain from taking action based on information here. If you have additional questions about this policy, or would like to work with the WFJ Employment Law and Human Resources team to develop your internal policy now-visit our Support Services page to request a consultation, or give us a call!


Avoid Home Buyer’s (and Seller’s) Remorse-What You Should Know About Home Seller Disclosure Law

What is a home seller disclosure law?

A home seller disclosure las is a law that requires home sellers to disclose or reveal known defects regarding the property that is being sold. Every state has their own unique disclosure laws and timelines. Many states also require a specific disclosure form, which should be provided by your Realtor.

What defects should be disclosed?

Material defects, anything that has an impact on the home’s value or safety. Water or flood damage (basement), leaking roof or ceiling, foundation cracks or issues, structural issues, insect infestations, mice infestations, toxic conditions such as asbestos, mold, lead paint, mechanical issues with the HVAC system or otherwise, electrical issues, deaths that occurred on the property in the recent few years, zoning issues or proposed changes to zoning, property line disputes-and depending on the state, naturally hazardous conditions such as location in a flood zone or near an earthquake fault line, tree roots impeding the plumbing lines, etc. The seller has a duty to report all defects they are aware of. If you can, paying for a detailed home inspection may help spot latent defects (defects not visible and not always detected by a general home inspection) and help you provide a comprehensive disclosure.

Does an issue have to be disclosed even if it was fixed by the homeowner?

Yes-disclose it in case the issue reappears for the buyer. Avoid a misrepresentation, negligence or fraud claim. Sometimes home issues that are repaired/fixed are perpetual problems. When in doubt, disclose.


What are your legal options if a problem wasn’t disclosed before you bought the home?

The buyer may have a claim against a seller when it can be proven that the seller knew about the defect and intentionally failed to disclose it. Typically this must be something that existed prior to the buyer taking possession of the home, a defect that is not obvious or visible to the buyer, and there is monetary damage resulting from the defect (buyer has out of pocket costs to fix or repair the issue.) The value of the claim is typically the cost to repair the defect. In some cases, there may be an attorney’s fees provision in the purchase contract.

What can a buyer do to make sure they aren’t buying a home with issues?

Pay for a thorough home inspection by a qualified professional that comes recommended to spot/reveal any issues. Read the entire disclosure form provided regarding the property, follow up with questions to the seller if you have any. Buying a home is a large investment, and you should take the time to understand what you are buying, and the contract you are signing-it is worth hiring a competent realtor or attorney to review the documents regarding the sale. Homeowner disputes can be lengthy and costly, so if you notice any red flags regarding the property, purchase agreement or disclosure, ask your realtor to ask the seller additional questions, and ask for them in writing.

Snowmobiling Under the Influence

With all the snow in the Midwest, snowmobile traffic has increased and towns all over are seeing an influx in visitors from snowmobilers looking for fresh trails. While a snowmobile is often viewed as a fun “toy”, it’s also a motor vehicle and is subject to many of the same laws you would be expected to follow if you were driving a car.

One of the largest factors in fatal snowmobile crashes is alcohol. Alcohol and drugs have a negative effect on the driver’s vision, balance, coordination, and reaction time. A snowmobile can weigh over 600 pounds and travel at speeds exceeding 90 mph, so it’s important to have your wits about you.

Snowmobiling under the influence (SWI) laws and regulations are heavily enforced but citations can be avoided if you have the right information. Here are some of the commonly asked questions about snowmobiling laws.

Can I have alcohol on my snowmobile?

The open bottle law applies to motor vehicles-including snowmobiles-on public roads, regardless of whether the vehicle is in motion. The open bottle law prohibits both drivers and passengers from consuming or possessing an open container of alcohol in a vehicle that is on a public roadway or shoulder of a roadway that is not part of a designated snowmobile trail.

Do police enforce laws against snowmobile operators drinking? If so, how?

Police officers, conservation officers, state troopers, deputy sheriffs and other peace officers do enforce these laws. Law enforcement can stop, inspect, and test snowmobilers for sobriety in the same manner they do in roadside checks on state highways. These often include preliminary breath and field sobriety tests. Some states do not even require probable cause to do so.

Operators who are suspected to be impaired may be required to submit to tests by an enforcement officer to determine the presence of these substances. There is a separate additional criminal penalty for refusal to submit to these tests, and the person’s snowmobiling privileges may be suspended for one year upon refusal. SWI convictions and refusals are recorded on the violator’s driver’s license record and effect their driver’s license privileges.

It’s also important to understand the laws for the region where you are snowmobiling. For example, under Wisconsin law, by operating a snowmobile on areas open to the public, you have automatically consented to provide a sample of your breath, blood or urine to any officer who requests the test.

What are the consequences?

The consequences of an SWI are like those of a DWI. An operator who is found impaired or has an alcohol concentration of 0.08 or more, can be charged with a misdemeanor, gross misdemeanor, or felony level DWI. People convicted of a misdemeanor could: be fined up to $1,000; sentenced to jail time; and/or suffer loss of snowmobile operating privileges for up to one year.

Additional penalties may apply if the person has any prior DWI convictions, has an alcohol concentration of twice the legal limit, or has a child under 16 years of age with them on the snowmobile. Penalties include: up to $3,000 fine with longer mandatory jail time; forfeiture of the snowmobile; if a person has 3 or more DWI convictions or revocations in the last 10 years, or has prior felony convictions, they can be sentenced to 3-7 years in jail, up to $14,000 fine, or both, and longer license revocations also could be imposed.

These convictions can further effect your snowmobile and car insurance rates, making you a more high risk driver if you are charged or convicted of a crime involving alcohol. If you are a commercial driver, the consequences could be devastating.

How can I avoid these charges?

First and foremost, avoid alcohol while operating your snowmobile. You can also avoid charges by knowing the area’s snowmobile laws and regulations, making sure everyone on your snowmobile follows the safety rules, and by taking courses on safe snowmobiling.

If you find yourself charged with an SWI, speaking with an attorney immediately is the best course of action. Questions about SWI or other traffic charges can be directed to our legal team here.

How to Spot a Customer in Distress-and What to Do Next

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.

Monitor for Red Flags:

  • Customer sells business or talks about selling business
  • Allegations of theft or embezzlement
  • Dismissal of key financial personnel
  • Problems covering payroll
  • Principal or 3rd party revokes personal guarantee
  • Any party in contract chain is having financial troubles-not paying, files bankruptcy, or is placed in receivership
  • Paying creditors on one project from proceeds from another
  • Not returning phone calls or emails
  • Not paying on time or paying in irregular amounts

Know Your Rights:

Knowing your rights means knowing what you are entitled to through your paperwork.

Be mindful of the following items:

  • Deadline to file a Mechanic’s Lien Claim
  • Deadline to file a Bond Claim
  • Deadline to initiate suit
  • Personal Guarantees
  • The terms & conditions of your contracts
  • The credit application
  • Suspension of performance

Simplify things with WFJ:

Lien deadlines and notice requirements vary by state, and not staying up-to-date on changes is a costly mistake most companies can’t afford. Staying in touch with your lien team (3rd party vendors, bankruptcy specialists, or the experienced attorneys at WFJ) and your local branches and offices can save you time and money in the long run.

‘Tis the Season for Holiday Travel Stress and Disruptions

These tips are from a LegalShield blog-previously posted on 11.21.2022.

In anticipation of flight delays, cancellations, and all the challenges that go with holiday travel, 19% of respondents in a recent survey are feeling “extremely” stressed. This is understandable as those who traveled during the previous holiday season experienced the following:

  • 62% had a delayed flight
  • 34% reported a flight cancellation
  • 34% were on an overbooked flight
  • 29% missed a connecting flight due to a delay
  • 26% lost baggage
  • More than half (53%) were able to make it to their destination but arrived late
  • 78% said it took as long as five hours to resolve the flight issue

Despite all the challenges they face, one-third of the survey respondents still do not know their legal rights from the airlines when they experience travel issues. Knowing your legal rights when traveling can make all the difference in terms of saving time and reducing stress. 38% said their stress level would improve if they had a dedicated advocate that could assist in case of flight disruptions.

LegalShield offers dedicated, affordable advocates who can provide legal assistance during travel. Once you experience a flight disruption, LegalShield shares four things to remember this holiday season:

  1. Stay calm. It’s easy to be flustered or frustrated when experiencing a delayed or canceled flight. Keep up to date on information from the airline, as they should provide constant communication with travelers and provide alternative transportation options.
  2. Keep track of the details. Take screenshots of app/SMS communications, photos of boarding passes and other helpful information. Track airline policies so there is a record of the experience and record waiting time.
  3. Consider not accepting vouchers. Before accepting a voucher, understand the rules and ask questions. In some instances, accepting a voucher will disqualify the traveler from receiving monetary compensation for the disruption.
  4. Talk to a lawyer about your travel rights. A lawyer is a dedicated advocate to help a traveler understand travel laws and rights. Through LegalShield, a member can text or call in the mobile app.

“Although a fun and festive time of the year, the holidays can be very stressful for those coordinating travel arrangements. It’s a financial and time investment and oftentimes, there are flight challenges out of our control,” said Keri Norris, Chief Legal Officer at LegalShield. “LegalShield exists to help people navigate these issues and ensure they are legally equipped to handle anything.”

This LegalShield study was conducted on October 8, 2022. LegalShield surveyed 812 adults, 18 and older, who live in the United States. The sample was balanced by age and race, among other demographic variables, according to the U.S. Census.

HR Trends for 2023

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.