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.

Navigating Common Legal Pitfalls: A Homeowner’s Guide to Avoiding Costly Mistakes

Homeownership is a significant milestone, but it comes with its own set of legal challenges that can create headaches if not properly managed. From title issues to contractor disputes, homeowners must be aware of the potential pitfalls to safeguard their investments and ensure smooth property ownership. Let’s delve into the most common legal issues homeowners face, and learn how an experienced attorney can help address them.

Title Issues

  • Unclear title: Inadequate title searches can lead to discovering liens, easements, or disputes over property boundaries.
  • Boundary Disputes: Issues with neighbors regarding the exact property lines can lead to legal battles.

Homeowners Association Rules

  • Violating HOA Covenants: Failing to adhere to HOA rules can result in fines, liens or legal action.
  • Unpaid HOA Fees: Non-payment of HOA fees can lead to penalties and potential foreclosure.

Zoning Laws and Permits

  • Unpermitted Work: Performing renovations or additions without the proper permits can result in fines and the need to undo the work.
  • Zoning Laws: Using the property in ways not allowed by local zoning laws can lead to enforcement actions.

Disclosures

  • Failure to Disclose: Not disclosing known issues, such as mold, water damage, or structural problems, when selling a home can lead to lawsuits.
  • False Disclosures: Providing inaccurate information about property condition can also lead to legal action from buyers.

Mortgage and Foreclosure Issues

  • Missed Payments: Falling behind on mortgage payments can lead to foreclosure.
  • Predatory Lending: Signing up for a mortgage with unfair terms can result in financial difficulties and legal challenges.

Tenant Issues (for rental properties)

  • Violating Tenant Rights: Not adhering to landlord-tenant laws, such as failing to return security deposits or provide habitable conditions, can result in lawsuits.
  • Eviction Procedures: Improperly handling evictions can lead to legal repercussions.

Environmental Regulations

  • Violation of Environmental Laws: Issues such as improper disposal of hazardous materials or not addressing asbestos or lead paint can lead to fines and legal action.

Property Taxes:

  • Non-Payment of Taxes: Failing to pay property taxes can result in liens and potential loss of the property.
  • Disputes Over Assessments: Challenging property tax assessments without proper legal grounding can lead to prolonged legal battles.

Insurance Issues

  • Insufficient Coverage: Not having adequate insurance can lead to significant out-of-pocket expenses in case of damage or liability.
  • Claim Denials: Disputes with insurance companies over coverage and claims can lead to litigation.

Contractor Disputes

  • Breaching Contracts: Issues with contractors regarding the quality of work, timelines, or payments can lead to legal disputes.
  • Mechanic’s Liens: Contractors or suppliers not paid for work done can place a lien on the property.

 

Being a homeowner is rewarding but requires diligence and awareness of potential legal issues. By proactively addressing those common challenges, homeowners can protect their property and avoid costly legal battles. Whether it’s ensuring a clear title, adhering to HOA rules, or obtaining the proper permits for renovations, taking the necessary steps to manage these legal matters will lead to a more secure and stress-free homeownership experience. If you encounter any of these issues, consulting with a legal professional can provide the guidance needed to navigate them effectively. Having an attorney in your back pocket can not only help you navigate any of these legal pitfalls, but keep you from encountering them in the first place. Reach out today to learn how.

Know Your Rights: Homeowner’s Legal Guide

As a homeowner, understanding your rights and legal obligations is essential for protecting your investment and ensuring a smooth living experience. From property rights to navigating homeowner association (HOA) disputes and landlord-tenant laws, here’s a brief overview of key topics every homeowner should be aware of:

Property Rights

Your property rights encompass various legal protections that safeguard your ownership and use of your home. These rights include the right to exclusive possession, the right to see or transfer the property, and the right to use the property in a manner consistent with local zoning laws. It’s crucial to familiarize yourself with local ordinances and regulations governing property use to avoid potential conflicts with neighbors or local authorities.

HOA Disputes

Many homeowners reside in communities governed by an HOA, which establishes rules and regulations aimed at maintaining property values  and community standards. While HOAs can provide benefits such as community amenities and maintenance services, disputes between homeowners and HOAs can arise over issues such as property maintenance, architectural guidelines, or assessment fees. Understanding your rights within the framework of the HOA’s governing documents and state laws can help you navigate these disputes effectively.

Landlord-Tenant Laws

If you rent out a property you own or are a tenant yourself, it’s essential to understand the legal rights and responsibilities outlined in landlord-tenant laws. These laws govern various aspects of the landlord-tenant relationship, including lease agreements, rent payments, eviction procedures, and maintenance responsibilities. Familiarizing yourself with your state’s specific landlord-tenant laws can help protect you from potential disputes and ensure a fair and lawful renting experience.

 

Knowing your rights as a homeowner (and renter) empowers you to navigate legal challenges confidently and protect your interests. However, legal matters can be complex, and seeking guidance from a qualified real estate attorney can provide invaluable assistance in understanding and asserting your rights effectively. Stay informed and proactive, you can enjoy the benefits of homeownership while minimizing potential legal risks and disputes. The attorneys at Wagner, Falconer & Judd are here to help! Reach out today for a consultation.

 

Navigating OSHA’s New Rules on Third-Party Representatives in Workplace Inspections

The landscape of workplace safety inspections is evolving, with new regulations from the Occupational Safety and Health Administration (OSHA) reshaping the dynamics between employers, employees, and third-party representatives. Effective May 31, 2024, a revised rule grants employees the right to choose a representative, whether an internal colleague or an external third-party, to accompany OSHA inspectors during workplace inspections.

This significant shift is designed to bring clarity and inclusivity to the inspection process. No longer bound by formal credentials, such as safety engineering or industrial hygiene qualifications, third-party representatives can now be selected based on their knowledge, skills or experience relevant to the workplaces’ hazards and operations. The purpose is clear: to facilitate effective and thorough inspections that prioritize safety and compliance.

However, with this newfound flexibility comes a need for careful consideration and preparation on the part of employers. Understanding the implications of this rule and how to navigate them is crucial for maintaining compliance and ensuring a smooth inspection process.

Key Points in the Revised Rule:

  • Expanded Representation Options: Employees now have the freedom to choose either an internal colleague or an external third-party as their representative during inspections.
  • Inclusive Representation Criteria: Third-party representatives are not limited to individuals with formal credentials. Instead, their selection is based on their ability to contribute positively to the inspection through their knowledge, skills or experience.
  • Compliance Officer’s Discretion: The Compliance Safety and Health Officer retains ultimate authority to determine whether a third-party representative is reasonably necessary for an effective inspection. This decision hinges on the representative’s potential contribution to the process.

Employer Response and Preparation

In anticipation of these changes, employers must revisit their policies and procedures related to OSHA inspections. This includes:

Analyzing Good Cause: Employers should be prepared to assess whether there is a legitimate argument against the presence of a third-party representative and articulate objections to the compliance officer.

Monitoring Representative Activities: Employers must ensure that third-party representatives adhere to the scope and purpose of their presence, preventing any behaviors that could disrupt or interfere with the inspection process.

Ensuring Transparency: Employers can promote transparency by staying informed about the selection process for third party representatives, potentially through active involvement in safety committees.

Addressing Union Concerns

While unions may view this rule change as an opportunity to increase organizing activities, it’s crucial to emphasize that the presence of third-party representatives is strictly for aiding in inspections. Compliance officers retain the authority to exclude individuals whose conduct disrupts the process.

OSHA’s revised rule on third-party representation in workplace inspections represents a significant step towards inclusivity and effectiveness. By empowering employees to choose representatives based on their expertise, the aim is to enhance safety and compliance standards. However, employers must be proactive in understanding and implementing these changes to ensure a smooth inspection process while maintaining a focus on workplace safety and compliance.

As employers adapt to to these changes, it’s essential to see guidance and expertise to ensure compliance while maintaining a safe working environment. If you find yourself grappling with updated regulations or need assistance in developing effective policies and procedures, we’re here to help.

DOL Raises Salary Compensation Threshold-What it Means for Employers?

On April 23, 2024, the U.S Department of Labor (DOL) issued a Final Rule raising the minimum salary thresholds for exempt employees under the Fair Labor Standards Act (FLSA). Exempt employees are (quite literally) exempt from the minimum wage, overtime, and time reporting provisions of the FLSA, allowing employers to pay these employees a weekly salary regardless of actual hours worked. The DOL sets the minimum threshold for compensation, and the positions must meet certain duties tests to be considered exempt. The Final Rule affects employees under the White Collar Exemption (executive, administrative, or professional) and Highly Compensated Employees’ Exemption.

Now and until July 1, 2024, employees occupying white collar exempt positions must be compensated at a rate of at least $684 per week ( about $35,568 per year). Similarly, employees in highly compensated positions must be compensated at a rate of at least $107,432 to qualify for the exemption.

The DOL, in its Final Rule, drastically raised these thresholds. But, potentially to soften the blow on the employers, the DOL is implementing the salary threshold increase in a two-part approach:

  • First, effective on July 1, 2024, the salary level threshold for exempt employees will increase to a minimum of $844 per week (about $43,888 per year), and to $132, 964 per year for highly compensated employees.
  • Then, starting on January 1, 2025, the threshold is set to increase to at least $1,128 per week (about $58,656 per year) for exempt employees and $151, 164 per year for highly compensated employees.

The Department of Labor plans on updating salary thresholds every three years beginning July, 1, 2027.

What Should Employers Do Now?

The Final Rule has already not been well received by some, and is expected to be challenged-which could delay implementation. Nevertheless, employers should proceed with caution and, despite the potential delay in the implementation, start preparing and budgeting for the changes.

  • Employers could either prepare to increase employees’ salaries in a two-part approach, as the DOL suggests, first on July 1, 2024, and then again on January 1, 2025.
  • Employers could also increase the salary threshold to January 1, 2025 levels on July 1, 2024.
  • Employers can always convert the employees to the nonexempt status should the new thresholds be too burdensome.

As always, when it comes to exempt employees’ classification and compensation, employers should always seek experienced legal counsel. Our attorneys at Wagner, Falconer & Judd are always available to answer any of your questions.

 

The FTC Voted to Ban Non-compete Agreements…Now What?

On April 23, 2024, the Federal Trade Commission (FTC) convened an open commission meeting. Following deliberation, the five commissioners cast their votes, resulting in a decisive 3-2 outcome in favor of approving the proposed final rule-banning non-compete agreements. This pivotal decision marks a significant shift in regulatory action.

This new rule could impact an estimated 30 million workers (or 1 in 5 Americans) who are subject to a non-compete through their current or former employers. Barring a successful legal challenge, this new rule will go into effect in 120 days (August 2024).

In January 2023, the FTC warned of this eventuality when it issued its proposed rule adopting the stance that non-compete clauses were an unfair method of competition due to a multitude of factors:

  • preventing workers from leaving jobs
  • decreasing competition for workers
  • lowering wages for both workers who are subject to the agreements and who are not

This rule paints with broad strokes, applying the ban not only to workers, but also independent contractors, externs, interns, volunteers, apprentices, or any sole proprietor who provides a service to a client or customer.

This new rule not only prevents employers from entering into new non-compete agreements with workers, but it also requires employees to rescind existing non-compete clauses. The rule also requires that employers notify parties that are currently subject to a non-compete, that the agreement is now void and unenforceable. While it may be of cold comfort to employers who traditionally utilize non-compete agreements, the FTC has not banned non-solicitation or nondisclosure agreements. Existing non-competes with senior level executives remain in effect, but new agreements, even with executives, are banned.

We expect pushack from employers and business groups who will likely challenge this rule in court. Wagner, Falconer & Judd will be watching these developments closely and will share as we know more.

 

Staying on top of legislative updates is time consuming. Consulting with an Employment Law Attorney to proactively monitor and update company policies is a simple way to ensure compliance with your local and federal laws. Learn more about the Business Support Services provided by Wagner, Falconer & Judd here. 

 

The NLRB has Teeth!

That’s right. You heard us. The National Labor Relations Board (NLRB) is not the toothless, independent federal agency some would have you believe.

In March of this year, Region 25 of the NLRB secured an agreement settling a case against a Midwest employer, Hilst Enterprises, Inc. d/b/a La-Z-Boy Furniture Galleries (Hilst), for $297,000 in backpay, front, pay, interest, excess tax, mileage, and medical expenses for the two discharged employees; removal of the unlawful discharges from the employee’s files; and a letter of apology to the discharged employees with mail and email notices to its current employees.

So, what exactly happened with Hilst? Essentially, it boils down to two key issues.

First, Hilst maintained three unlawful work rules:

  • Forbidding employees from discussing wages
  • Imposing restrictions on employees’ use of its name and logo without explicit permission.
  • Prohibiting employees’ personal use of the company email system and equipment

Additionally, two employees were fired the day after they engaged in protected concerted activity by expressing concerns about the behavior of Hilst’s President and its potential effect on Hilst’s employees and business.

As you probably know, Section 7 of the NLRA guarantees certain rights for workers. These include “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representative of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right to “refrain from any or all such activities.” Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”

In the present case, the Court concluded that “it is axiomatic that employees have a Section 7 right to discuss their wages” and observed that the three rules stated above could reasonably be construed by an employee to restrict or prohibit Section 7 activities. The Court also found “that the employee complaints about changes made by management to their working conditions constituted protected concerted activity” and that Hilst’s discharge of the two employees was intended to punish their protected conduct.

The crucial insights from this case abound. Employers need to regularly reassess their policies to ensure they are not chilling the rights of their workers under the NLRA. Employers must be aware that, in the words of NLRB Regional Director Patricia K. Nachand, “Workers have a right to take collective action free from retaliation.”

The NLRB laws serve as a crucial safeguard for employee’s rights to organize and collectively bargain. Employers who fail to uphold these rights not only risk legal penalties, but also undermine trust , morale, and productivity within their organizations. It’s essential for employers to prioritize compliance with these laws, not only to avoid financial and legal repercussions but also foster a fair and respectful workplace environment where both employees and employers can thrive together. Upholding these rights is not just a legal obligation but a cornerstone of an equitable workplace.

Being mindful of the language in your employee handbooks, contracts and agreements is solid first step in proactively protecting your business from legal risk. Consulting with an Employment Law Attorney while creating and updating your documents is a simple way to ensure compliance with your local and federal laws. Learn more about the Business Support Services provided by Wagner, Falconer & Judd here. 

 

Simplifying the Complex: Workplace Investigations

Establishing clear and comprehensive best practices for workplace misconduct is essential for fostering a healthy and productive work environment. These guidelines not only define acceptable behavior but also empower leaders to address issues promptly and effectively.

By proactively outlining expectations and consequences, organizations provide a framework that encourages accountability and professionalism. In the unfortunate event of misconduct allegations, having a well-defined set of procedures facilitates a fair and thorough workplace investigation. This not only mitigates legal and reputational risks but also ensures that the investigation is conducted transparently and impartially.

Additionally, such best practices serve as a preventive measure by promoting a culture of respect and integrity, ultimately contributing to employee satisfaction and retention. Regular training and communication about these guidelines reinforce the commitment to maintaining a safe and respectful workplace, empowering leaders to handle misconduct issues with confidence.

The employment law group at Wagner, Falconer, & Judd recommend the following tips when conducting your workplace investigations, whether you are conducting them yourself, or decide to outsource the investigation:

DO:

  • Explain confidentiality issues (and that confidentiality cannot be guaranteed).
  • Explain retaliation issues (particularly that any retaliatory conduct should be reported immediately).
  • Take time in interviews. If an interview is taking longer than anticipated, notify subsequent interviewees of any expected delay.
  • Be courteous and professional toward witnesses, including the complainant and accused.
  • Ask non-leading questions and provide the witnesses an opportunity to speak. Do not cut off the witnesses.
    • Don’t forget: who, what, when, where, why, how

 

DON’T:

  • Accuse: accusatory questions that are likely to put the witness on the defensive. For example, questions like “Did you sexually harass Employee X at the Employer’s holiday party on December 23rd?” should be avoided. “Could you describe your interaction with Employee X at the Employer’s holiday party on December 23rd?” is a better approach.
  • Become angry or emotional
  • Use legal jargon. (For example, sexually harassed, discriminated, constructively discharged, and so on.)
  • Use conclusory statements like “when Employee X harassed you, what did they do?”
  • Reveal the source of the questioning unless absolutely necessary. “Ms. X stated that you stole our Employer’s trade secrets and shared them with our competition.”
  • Make predictions on the outcome of the investigation to any of the interviewees, such as “this conduct is outrageous, Employee X is going to be fired for sure.”
  • Express agreement or disagreement with a witness’ statement.

To ensure the legality and comprehensiveness of the investigation process, it is highly recommended to consult with an experienced employment attorney. Legal expertise can provide invaluable guidance in navigating complex situations, minimizing potential risks, and ensuring that the company’s actions align with applicable laws and regulations. Investing time and resources in a well-structured investigation process not only safeguards the organization from legal repercussions but also demonstrates a commitment to maintaining a workplace where employees feel safe, valued, and heard.

Ultimately, prioritizing the integrity of workplace investigations is an investment in the long-term success and reputation of the company.