On Friday, April 17, at 9:30 AM, Finney Law Firm Attorney Rebecca L. Simpson will present “Powerful Assistance to Realtors under the Paycheck Protection Act” (“PPP”) to Realtor and affiliate members of the Cincinnati Area Board of Realtors. This special program is free to members and nonmembers.
Ms. Simpson has already conducted an extensive webinar on the PPP to EmpowerU. To date for live participants and those watching the recorded webcast (here) that message has reached more than 1,000 viewers. That webinar was primarily aimed at Part #1 of PPP, which dealt with employers with W-2 employees.
This program on the other hand primarily is aimed Part #2 of the PPP that just launched today (April 10, 2020): 1099 contractors, self-employed, sole proprietors (for example, real estate investors whose companies have no employees). Ms. Simpson also will explore the various situations of Realtor “Teams” with 1099 contractors and W-2 employees within the teams, part-time Realtors who may also have separate W-2 jobs, and other variables specific to Realtors.
CABR Members can log in to register here and nonmembers can register here. This program is free for both members and nonmembers.
Contact Christy Beaver (513.842.3011) at the CABR for questions about the program and registration.
I spoke with two clients last night, one who applied with First National Bank of Lebanon (only $25,000 in loan amount) and one who worked through Heritage Bank (based out of Northern Kentucky) who obtained $745,000.
So, the SBA is not messing around. As promised, these loan funds are being pushed immediately into the economy.
Stay tuned for more updates, and free free to contact Rebecca L. Simpson (513.797.6227) for more information.
As our clients have noted from six years and a half years of our work to “Make a Difference,” Finney Law Firm is actively working to assure that our attorneys are constantly up to date on developments in the law, and then impart that information to clients and the public with blog entries, e-newsletters, seminars, webinars and media appearances.
Our performance during the COVID-19 crisis has met and exceeded that standard. And, because our clients hunger for information to help them to weather this unprecedented storm, the response has been overwhelming.
Here is our performance by the numbers since the beginning of March:
28 COVID-related blog entries with critical legal updates for clients, including information on the PPP and EIDL programs from the SBA.
Those blog entries have had more than 6,300 “reads” since the crisis began.
6 major Constant Contact e-mail blasts with important COVID-19 legal developments.
More than 13,250 “opens” of those emailed newsletters, a record number in one month. We are seeing that the information is so valuable that there are a record number of “forwards” from clients to their contacts with our information, and those “forwards” are opening and reading the communications as well.
We have had 8 major TV and radio appearances relating to COVID-19 issues.
We have gotten calls from all over the nation for help on the PPP program from the SBA.
We have done or will do 4 webinars on the PPP program. Between the webinar live attendees and those watching the recordings, we will have reached more than 1,000 participants.
We have retained exclusive relationships with 1 Ohio e-notary and 1 Kentucky e-notary to become one of the first title companies to be able to do entirely electronic, remote closings over the internet through Ivy Pointe Title.
All of this is designed to assure we are as effective as we can be in serving you, by understanding the law, which is developing daily, by developing the contacts to achieve your objectives, and by imparting that knowledge in a usable format so you can implement to win on legal and economic battlefields that are daily emerging.
I congratulate and thank our team — lawyers, paralegals and staff — for contributing to this area of service to our clients. And thank our clients — existing and new — for recognizing this sophisticated and cutting-edge approach to the practice of law for their benefit.
Let me know personally how the Finney Law Firm can help you to weather this storm. My email is Chris@FinneyLawFirm.Com and my phone numbers are 513.943.6655 (o) and 513.720.2996 (c).
Litigation attorneys perform much of their work outside the courthouse. There is law to research, documents to review, and motions to write – all of which can be completed remotely with the right technology. But sooner or later, litigation makes it way to the courthouse for a motion hearing or a trial. As the COVID-19 pandemic spreads across the country, trials have been postponed, depositions canceled, and discovery deadlines ignored. What are we – and our clients – to do while the nation weather’s the storm inside our homes?
New legislation on litigation deadlines
Fortunately, the legislature and judiciary have reacted quickly to the developing pandemic and provided much needed guidance. On March 27, 2020, Governor DeWine signed H.B. 197 into law, effectively tolling all statutes of limitations and other deadlines under Ohio law until the state of emergency is lifted or July 30, 2020 – whichever comes sooner.
How do the extensions work?
Statutes of limitation prevent a litigant from having her claims heard in court if she files her case beyond the statutory deadline. In Ohio, for example, an individual has one year from the date of discovering a medical malpractice claim to file a lawsuit. If the would-be-plaintiff files after the expiration of the one-year-period, her case will be dismissed no matter how compelling or meritorious it may appear.
So, how do the new tolling provisions impact our hypothetical med-mal plaintiff? Let’s assume she discovered the malpractice on May 9, 2019. She would then have until May 9, 2020 to file her lawsuit. H.B. 197 now tolls the deadline, retroactive to March 9, 2020 when Governor DeWine issued the state of emergency. Let’s assume the state of emergency is lifted on June 1, 2020. In that case, none of the days between March 9, 2020 and June 1, 2020 will count against our plaintiff. She had two months remaining to file her case when the state of emergency was issued, and she continues to have two months to file from the date the order is lifted. In this scenario, our plaintiff has until August 1, 2020 to file her case.
Changes to Civil and Local Rules affect deadlines
But, in addition to statutory deadlines imposed by the state legislature, the practice of litigation is governed by a litany of deadlines imposed by the judiciary. The Rules of Civil Procedure allow defendants 28 days in which to file a response to a complaint. Local county courts have rules that establish how long a litigant has to file a response to a motion. Each judge sets a calendar order for each case, specifying when discovery is to be completed, dispositive motions are to be filed, experts are to be identified, and when trial is to take place. The list goes on.
To address these issues, the Supreme Court of Ohio issued its own order on March 27, 2020 which tolls the time requirements set forth in all rules promulgated by the State’s high court. The Supreme Court’s Order also applies retroactively to March 9, 2020. Thus, if a defendant’s response to a complaint was due on March 16, 2020, that response will now be due one week after the Court’s Order expires.
What’s happening in practice?
Trial court judges and attorneys are also working to address specific issues on a case-by-case basis. For instance, some in-person hearings can be handled on conference calls, allowing the parties to advance the case where practical. But if your case involves a health care provider, or an entity crippled by the pandemic, the case will likely be put on hold for the duration of the fight.
Technology advantage
In my practice alone, I have had two trials, three mediations, and several depositions all postponed indefinitely. Fortunately, the Finney Law Firm has invested significant resources in technology over the last few years which has allowed us to adapt our practice to meet the needs of our clients while working remotely. We are leveraging cloud-based technology to review and edit documents, obtain electronic signatures, and host video conferences with our clients and colleagues. We can conduct depositions remotely, using videoconferencing technology, when opposing counsel and the particular circumstances of the case allow.
Conclusion
If your case can be advanced in this time, we have the means and wherewithal to do so. Hopefully, sooner than later, we will be able to passionately advocate for our clients in the courts. Until then we are committed to helping our clients navigate the pandemic, and their cases, in these trying times.
On April 6, 2020, the Department of Labor published its temporary rules for the Families First Coronavirus Response Act (“FFCRA”). Our firm has written prior entries regarding the FFCRA and Covid-19’s impact on the workplace, and I previously noted that a significant portion of the FFCRA would require additional federal guidance to understand. The rules define qualifying reasons for leave, employer and employee notice obligations, and the small business exemption.
Key Definitions
Under the new rules, a “Child Care Provider” is a provider who receives compensation for providing child care services on a regular basis and is licensed under state law. However, a Child Care Provider does not need to be compensated or licensed if they are a family member or friend who “regularly cares for the employee’s child.”
“Place of Care” means the physical location where care is provided for the Employee’s child while the employee works for the employer.
“Son or Daughter” includes biological, adopted, and foster children. It also includes stepchildren, legal wards, or the child of a person standing in loco parentis. Son or Daughter can also include persons over the age of 18 when that person is incapable of self-care because of a mental or physical disability.
“Subject to a quarantine or isolation order” includes the “shelter in place” or other general orders issued by states and municipalities in response to the Covid-19 epidemic, and includes when a governmental authority has advised certain categories of citizens to shelter in place.
Application to Emergency FMLA Leave
The qualifying reason for Emergency FMLA leave is narrow, applying only to employees who are unable to work or telework due to the need to care for a Son or Daughter if the child’s school or Place of Care is closed or the Child Care Provider is unavailable due to the Covid-19 pandemic. But as stated previously, the definition of a “Child Care Provider” is quite broad, including family members and other persons who regularly care for a child out of a neighborly or familial bond. Similarly, a “Son or Daughter” includes the full spectrum of children and persons who are regularly under the care of a parent. As such, it would be improper for an employer to deny EFMLA leave to an employee because the child is not necessarily a biological relative or the Child Care Provider is not a licensed day care.
Paid Sick Leave Implications
The six reasons for paid sick leave have also been impacted by the new regulations:
1. Subject to a federal, state or local quarantine or isolation order related to COVID-19.
Employees are only considered to be “subject to a quarantine or isolation order” when, but for being subject to the order, they would be able to perform work that is otherwise allowed by their employer. When the order shuts down the employer’s operations, an employee is not entitled to paid sick leave.
2. Advised by a health care provider to self-quarantine due to COVID-19 concerns.
A health care provider has advised self-quarantine only when the advice is based on a belief that the employee (1) has Covid-19; may have Covid-19, or the employee is particularly vulnerable to Covid-19 and (2) this advice prevents the employee from being able to work at the employer’s workplace or through telework.
3. Experiencing COVID-19 symptoms and seeking medical diagnosis.
The employee must be experiencing a fever, dry cough, shortness of breath, or any other recognized Covid-19 symptom from the CDC, and must be seeking a medical diagnosis. Paid sick leave under this reason is limited to the time the employee is unable to work because of their affirmative steps to obtain the diagnosis.
4. Caring for an individual subject to a federal, state or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns.
“Individual” is an immediate family member, person who regularly resides in the employee’s home, or a similar person with whom the employee has a relationship that creates an expectation that the employee would care for them. Employees may only take leave under this reason if, but for a need to care for the individual, the Employee would be able to perform work for their employer at the workplace or through telework.
5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
Subject to the same EFMLA definitions, an employee may only utilize this reason if no other suitable person is available to care for the Son or Daughter during the period of such leave.
6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services (“HHS”) in consultation with the Secretary of the Treasury and the Secretary of Labor.
At the time of this posting, it does not appear that HHS has provided other “substantially similar conditions.”
Intermittent leave and Notice
Employees may only take intermittent leave under the FFRCA’s Emergency FMLA or paid sick leave provisions when the employer agrees. However, an employer may be required to grant “intermittent” leave when an employee is actively seeking a medical diagnosis, as doctor’s visits typically require employees to leave their worksite or telework desk.
Because of the rapid development of Covid-19 symptoms and an employee’s need for leave, the Department of Labor is not requiring employees to notify employers about their need for emergency FMLA or paid sick leave as soon as practicable. Instead, the Department generally advises employers to be proactive in notifying employees of the failure to give notice and an opportunity to provide documentation prior to denying the request for leave. Notice may only be required after the first workday where the employee takes EFMLA or paid sick leave.
From a content perspective, it is reasonable for an employer to require enough information to determine whether the requested leave is covered. This documentation is generally limited to: (1) the employee’s name; (2) dates for which leave is requested; (3) qualifying reason; and (4) a statement (oral or written) that the employee is unable to work because of the qualified reason for leave. For specific reasons, such as quarantine, doctor’s orders, or care for a child, additional documentation may be required. Employers are also permitted to seek information that is needed to support tax credits pursuant to the FFCRA.
Small Business Exemption
Employers with less than 50 employees may be exempt from providing paid sick leave or emergency FMLA leave when the imposition of such requirements would “jeopardize the viability of the business as a going concern.” An employer is entitled to this exemption when an authorized officer has determined that:
The leave requested would result in the business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
The absence of the employee or employees requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of their specialized skills, knowledge of the business or responsibilities; or
There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services by the employee or employees requesting leave and these labor or services are needed for the small business to operate at a minimal capacity.
Small businesses must document an exemption determination internally and maintain the records in its files.
Conclusion
The FFRCA has changed the way business is done in this country, albeit on a temporary basis (The FFRCA sunsets on December 31, 2020). In approaching requests for leave, the law and regulations contemplate that employers will engage in a thoughtful and well-documented manner and avoid knee-jerk reactions or blanket assertions of “business viability.” Employers of all sizes would be well-served to engage competent legal counsel to assist in navigating the FFRCA’s new requirements.
The Finney Law Firm’s labor and employment attorneys are well-versed in the rights and obligations of both employers and employees, including the rapidly evolving COVID-19 changes. For assistance with these matters, consult Matthew S. Okiishi (513.943.6659) and Stephen E. Imm (513.943.5678).
The COVID-19 crisis is prompting an increasing number of people to take care of their estate plan, including reviewing and updating their existing estate plan to comply with their current wishes. We are seeing an increased number of people thinking about having an estate plan in place in the event something should happen to them.
What does a basic estate plan include?
Estate planning can be simple or can be complex, especially during a fast moving and potentially deadly pandemic. At a minimum, it is recommended that each individual should have:
A basic Last Will and Testament,
A general durable Power of Attorney, and
Health care directives (i.e., Health Care Power of Attorney and Living Will).
By having these minimal estate planning tools in place, the Last Will and Testament will direct the individual’s wishes for the disposition of his or her assets in the event of death. The general durable Power of Attorney allows a chosen individual to make financial decisions. The health care directives provide the individual’s wishes for medical treatment, and designate certain chosen people to make health care decisions on their behalf, and receive health care information from their physicians.
The additional option of a trust
If an individual is looking to avoid probate of assets upon his or her death, the establishment of a Trust is a beneficial tool for this purpose. Not only does a Trust instrument allow for the disposition of assets upon the death of an individual, it avoids the necessity for probate, and is effective in reducing probate administration expenses, such as attorney’s fees, fiduciary fees, and court costs.
Social distancing and safe execution of documents
Finney Law Firm, LLC is practicing a safe signing environment at both of our offices, and is working with estate planning clients to arrange for signing of estate planning documents at the client’s residence upon request.
Conclusion
The experienced estate planning team at Finney Law Firm, LLC is available to assist with implementing an estate plan, and reviewing and/or amending an existing estate plan.
Our goal is to continue to fulfill the estate planning needs of our clients during this crisis.
Look, the Paycheck Protection Program is enormous, offering help to every small business in America with W-2 employees and the administration and Congress asked them to launch with six days’ lead time. What did you expect?
Yes, there are problems with the launch. But you are all sitting in lock-down at home anyway. We counsel patience. The President and Congress are united in their desire to get this money out where it is needed.
Attorney Rebecca L. Simpson of the Finney Law Firm has carefully studied the PPP and the Emergency Income Disaster Loans (“EIDL”) to help our small business clients access these funds. Feel free to call her at 513.797.2856 if you have questions about these programs or need help accessing PPP or EIDL funds.
The Payroll Protection Program (“PPP”) is easily the most generous small business support grant/loan program in the history of the nation. Essentially, it is a lifeline to hundreds of thousands of small businesses (under 500 employees) nationwide in the midst of the economic crisis borne out of the COVID-19 pandemic.
It launched Friday, April 3, 2020, and on Sunday April 5, Wells Fargo & Company announced that it has “reached its capacity of $10 billion to lend under the PPP.” According to FastCompany.Com, “the bank has only been focusing on nonprofits or companies with 50 employees or less,” the statement read. From Fast Company and Wells:
“Given the exceptionally high volume of requests we have already received, we will not be able to accept any additional requests for a loan through the Paycheck Protection Program. We will review all expressions of interest submitted by customers via our online form through April 5 and provide updates in the coming days.”
Many of our clients have wanted to apply quickly to be “first in line” for the grants, and successfully completed their on-line application with various banks. We have helped them to quickly apply, but generally counseled patience inasmuch as the program claims to extend through the end of 2020. Thus, we did not expect the grant/loan program would be cut off so quickly and callously by one of the nation’s biggest lenders. 48 hours of applications, which really was about eight business hours, and “poof” they are out of the game and leave their regular customers hanging.
To make matters worse, most banks with which we speak say they are limiting PPP applications to existing customers only. So, Wells Fargo customers may need to either wait or flail around for days, weeks or months to find another lender to process their perfectly compliant PPP application.
We continue to work with clients who are continuing to process PPP applications with PNC, US Bank, Fifth Third Bank, Huntington Bank and other major and smaller lenders. If you are a Wells Fargo customer who is having difficulties applying for a PPP loan, contact us to help identify a cooperative and open lender.
Attorney Rebecca L. Simpson of the Finney Law Firm has carefully studied the PPP and the Emergency Income Disaster Loans (“EIDL”) to help our small business clients access these funds. Feel free to call her at 513.797.2856 if you have questions about these programs or need help accessing PPP or EIDL funds.
Stay safe, America. We will get through this together.
Two updates this morning on the SBA’s important and potentially very helpful Paycheck Protection Program for small businesses:
The SBA’s Final Interim Rule issued Thursday night has this guidance on the difficult question of 1099 contractors:
Q: Do independent contractors count as employees for purposes of PPP loan calculations?
A. No, independent contractors have the ability to apply for a PPP loan on their own so they do not count for purposes of a borrower’s PPP loan calculation
2. There have been a series of doom and gloom articles about the SBA’s rollout and large Banks’ reaction to that, such as this article from Politico, and this one from Forbes. We counsel patience. The government is rolling out an unprecedented amount of money for small businesses in the coming 30-60 days ad we suspect they will fully fund that generous program now that they have started it.
Finally, Rebecca L. Simpson (513.797.6227) from this office is devoting her practice for the coming weeks to serving clients on the PPP and EIDL programs. If she can be of assistance, please contact her directly.
Ken Meyers of Ohio Financial (513.328.1341) has invited me to do with him a series of video chats on issues of importance in the residential real estate marketplace. We will be posting them here.
This is the first one on the topic of the typically unwise practice of allowing a buyer to have early occupancy of a property before a closing has taken place. The short answer is: don’t do it. Ever.
Ken is a residential mortgage lender with whom our team has had great experiences and we certainly would recommend him for your consideration.
Let me (513.943.6655) know if you have considerations of early occupancy, you need us to document an agreement for early occupancy, or we can help extricate you from a situation of early occupancy.
