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Constitutional Law: Media wrap on today’s big win overruling Dr. Amy Acton and opening Ohio’s gyms

Author By Christopher P. FinneyPosted on

Finney Law Firm, attorney Curt C. Hartman and the 1851 Center for Constitutional Law won a great victory for Ohio citizens today when Judge Eugene Lucci of Lake County Common Pleas Court ruled unconstitutional the broad rule-making by Governor Mike DeWine and Dr. Amy Acton (Director of Ohio Department of Health) that has shut down Ohio businesses and locked people in their own homes.

The specific ruling today addressed re-opening Ohio gyms and fitness facilities, but the reasoning in the decision broadly finds all of Dr. Acton’s orders are unconstitutional. Read about that here.

Here is a wrap of today’s media coverage of this landmark decision:

I want to recognize the outstanding legal strategizing and implementation of Maurice Thompson of the 1851 Center for Constitutional Law, Curt Hartman, and Julie Gugino and Rebecca L. Simpson of this firm in this case. They did simply outstanding work on a series of cases holding Dr. Acton’s feet to the fire as to her authority (or lack thereof) to shut down businesses and incarcerate residents throughout Ohio during the COVID-19 crisis.

These attorneys have caught the vision of the Finney Law Firm to use our law licenses to “Make a Difference” for our clients and community with our legal work.

Ohio Employment Law: Matt Okiishi CBA panel discussion on COVID-19-related employment issues is on line

Author By Christopher P. FinneyPosted on
Attorney Matthew S. Okiishi

Today, Finney Law Firm attorney Matt Okiishi participated in a panel discussion for the public sponsored by the Cincinnati Bar Association on employment law issues presented by the COVID-19 crisis.

That discussion is now on line. You may watch it here.

Matt Okiishi devotes his practice to the employment law arena, representing both employers and employees in disputes, which include wage and hour issues, Family and Medical Leave Act issues, and illegal discrimination based upon age, race, gender, handicap, national origin, and other protected classifications. He has written extensively on COVID-19-related employment legislation on this blog.

Please contact Matt (513.943-6659) for help with your employment law issues.

 

 

Paycheck Protection Program:  New guidance on what Is required for your PPP loan to be forgiven

Author By Rebecca L. SimpsonPosted on
Attorney Rebecca L. Simpson

If you are one of the many small businesses that received a Paycheck Protection Program (PPP) loan, you’ve likely been wrestling with questions about how to make sure your loan is forgiven.  We blogged several days ago about the unanswered questions on forgiveness and the need for guidance from the SBA.

The SBA has now provided additional guidance on PPP forgiveness in its Loan Forgiveness Application, which you can find by clicking here.  You will submit this Application (or an online version of it) to your bank, or the holder of  your loan, to apply for PPP forgiveness.

The Application and its instructions provide significant clarification on what is required for forgiveness and what documents and certifications you will need to provide to your bank.  Here are some of the highlights:

In general, how is forgiveness calculated?

In general, forgiveness is calculated by adding your qualifying payroll costs to your qualifying non-payroll costs, and reducing that amount by “FTE” and “Salary/Hourly Wage Reductions” (if you did not maintain or restore levels of compensation and employment as required).  Once you do that calculation, if you spent at least 75% of your PPP loan on qualifying payroll costs, the total you spent on qualifying payroll costs and qualifying non-payroll costs (up to the total amount of your loan) can be forgiven. (Then, obviously, if you spent more than 75% of the loan amount on qualifying payroll costs, the loan will also be 100% forgiven.)

What are the major changes to PPP loan forgiveness guidance? 

The Application and its instructions provide significant new guidance on PPP loan forgiveness which changes and expands previous guidance. Here are some of the major changes:

  • Period you look at for forgiveness: Previously the SBA had issued guidance that PPP funds were to be spent and forgiveness was to be measured during the 8 weeks following the distribution of the funds to the borrower.  This is defined as the “Covered Period.”  The Application allows for a “Alternative Covered Period” for some purposes for borrowers with a biweekly, or more frequent, payroll schedule.  The Alternative Covered Period begins on the first day of the borrower’s first pay period following their PPP loan disbursement date.   If you are eligible for and choose to use the Alternative Covered Period, make sure you read the instructions closely as you fill out the Application, required PPP Schedule A to the Application, and the Schedule A worksheet.  Even if you choose the Alternative period, some calculations still require you to use the Covered Period.
  • When payroll is measured: The Application clarifies that qualifying payroll costs include those paid as well as those incurred during the 8-week Covered Period or the Alternative Covered Period.  So, for example, if you incur payroll costs prior to the end of the 8-week period, but those incurred amounts are not paid until your normal payroll date after the 8-week period, they still count in the forgiveness calculation.  The Application makes clear, however, that payroll costs incurred and paid in the 8 weeks can only be counted once.
  • Expansion of qualifying non-payroll costs: The Application confirms that only 25% of PPP funds can be used for qualifying non-payroll costs, and that those qualifying costs include mortgage interest, rent, and utilities.  The Application, however, expands the definitions of mortgage interest and rent to include not only interest and rent on real estate mortgages and leases, but also to “mortgage” interest and rent or lease payments on personal property.  Covered non-payroll costs count in the calculation of forgiveness if they are paid or incurred during the Covered Period (the Alternative Covered Period is not applicable to the calculation of qualifying non-payroll costs), and are on obligations that were in place prior to February 15, 2020.
  • Calculation of reduction of loan forgiveness if employee and/or compensation levels are not maintained as required: The Application provides tables to complete and detailed instructions on how to calculate the reduction in your loan forgiveness if, in general, you do not maintain your full time employee level or you decrease salaries and wages by more than 25% for any employee that made less than $100,000 annualized in 2019.  These calculations require you to analyze levels on an employee by employee basis during certain defined time periods and then compare those periods. The Application also confirms safe harbors for those who restore their employees and salary levels by June 30, 2020.

Conclusion

Although the Application and its instructions provide a great deal of guidance on PPP loan forgiveness, more guidance is still needed.  We anticipate that the SBA will, over the next several days and possibly weeks, issue further guidance. Finney Law Firm will stay on top of the latest and will update you though this blog.  And, if you have questions or need guidance on the Application or on the PPP in general, please contact Rebecca L. Simpson at 513.797.2856.

We welcome attorney Susan Cress Browning and launch our consumer bankruptcy practice

Author By Christopher P. FinneyPosted on
Attorney Susan Cress Browning
Finney Law Firm is pleased to announce that Attorney Susan Cress Browning, a veteran consumer bankruptcy attorney, has recently joined our firm and anchors our bankruptcy law group.
Susan has a passion for the practice of consumer law. Her membership in several legal associations have afforded her the opportunity to learn from and educate some of the most respected consumer law practitioners in the country. This invaluable experience, combined with her strong compassion and commitment to her clients, has culminated in Susan’s successful consumer bankruptcy practice.
Susan earned her Juris Doctorate cum laude at Northern Kentucky University’s Salmon P. Chase College of Law in 2002. Her practice includes the filing and management of Chapter 7 and Chapter 13 consumer bankruptcy cases. She is admitted to both Ohio and Kentucky Bars and to both State and Federal Courts.
She will be located in our Mt. Adams office and will meet with clients at either of our office locations. Please contact Susan (513-797-2857) for a free consultation.
Learn more about Susan here.

Secrets of Savvy Business Owners

Author By Christopher P. FinneyPosted on
Finney Law Firm Business Manager Jane Schulte

Introduction:

Finney Law Firm’s new Business Manager is not an attorney, but an experienced and gifted executive for small businesses, a manager of people and capital resources.  She is the author of four published books, including Work Smart, Not Hard! and BOLD Leadership.  She will from time to time share her leadership and management insights in this blog.

__________________________

It looks like most small businesses are going to have to hit the reset button.  While we are busy “re-opening” and assessing our next steps, it is important not to lose sight of the vision and the dreams that brought us to starting our businesses in the first place.  So, let’s get back on track and begin with renewed energy and focus!

When times are bad is when the real entrepreneurs emerge.

– Robert Kiyosaki, founder Cashflow Technologies Inc.

When searching for ways to grow and attract more clients and customers to our businesses, we are sometimes puzzled by those who have mastered the art of success in a seemingly effortless way. What are their secrets?  They have figured out that success is the direct effect of working from the inside out.  In other words, getting the best out of the people on their team. They know that:

  1. Emotional and Creative Intelligent people are invaluable.

Hire employees with a high EQ and high CQ.  Individuals with high EQ (emotional quotient) soft skills are good at critical observation, problem solving, conflict resolution, project management, teamwork, and adaptability.  Individuals with a high CQ (creative quotient) are curious.  They have keen intuition, improvisation and see problems as opportunities.

The things we fear the most in organizations- fluctuations, disturbances, imbalances – are the primary sources of creativity.

– Margaret Wheatley

  1. All problems and all solutions boil down to one thing – communication.

Effective and ongoing communication is at the foundation of all successful businesses.  Business owners must practice listening empathetically without formulating a reply, understand others’ unique perspectives, and seek a win/win in every communication, to the extent possible.

  1. Change is good.

If you keep doing the same things and expect a different result, you will go insane.  Be open to new ideas and ways of conducting business.  Be flexible, curious and humble.  Attract disruptors – those individuals who can objectively see the company’s blind spots and help pave the way to innovative solutions to nagging, ongoing problems.

  1. Servant leadership works.

Show your employees that you care more about them as human beings than about how they can make money for your business.  If you have an issue with someone, confront it, as it will not go away on its own by sheer avoidance.  If you are clear, concise and kind in your delivery, most people will appreciate honest conversation and the ability to clarify a misunderstanding or the opportunity to perform at a higher level.  Be a mentor rather than a director.

  1. Not everyone is an entrepreneur.

Many business owners want to believe that their employees think like they do.  They do not.  If they wanted to be a business owner, they would be.  Put them in positions that play to their strengths so they can work to optimal capacity and allow them to perform work in their own natural way.

  1. Negative employees cannot remain.

As the saying goes, it only takes one bad apple to spoil the whole bunch.  Even employees who perform well can have an extremely negative effect on the business if they are not rowing in the same direction and are causing turmoil in the workplace.

  1. Governing by the dollar does not work.

Money is great – everyone needs it – but making money the primary objective skews thinking.  It can interfere with employee morale and individual self-esteem.  Not all work performed turns into revenue for a company (i.e. sales force versus administrative team).  However, one cannot exist without the other.  Build teams so strong that you cannot tell where one employee leaves off and the other one begins.  Incentivize the net result.

Chase the vision, not the money, the money will end up following you.

– Tony Hsieh, CEO Zappos

Conclusion:

To learn more about how you can recruit the best employees for your team, contact Jane Schulte, 513.797.2855.

Ohio Employment Law: Today, Attorney Matt Okiishi co-presents at the Cincinnati Bar Association on COVID-19 issues

Author By Christopher P. FinneyPosted on
Finney Law Firm attorney Matt Okiishi

Today at 3 PM Finney Law Firm attorney Matt Okiishi co-presents to the public (not just CBA members) at the Cincinnati Bar Association with attorney Kelly Mulloy Myers on “legal issues in the wake of COVID-19.”

It is simply a 30-minute program of pre-selected questions submitted by the public on the noted topic.

A link to the Facebook announcement about the program is here and you can sign up for the program thru that link.

Key Aspects of the CARES Act Provisions Authorizing Small Business Loans

Author By Todd McMurtryPosted on

Small business owners are necessarily prepared for various types of challenges, but what do you do when the government orders you to close for an indefinite amount of time? Unfortunately, the COVID-19 pandemic has put millions in this very difficult position. Even worse, it is still unclear in many places when authorities will allow businesses to reopen their doors, and what the U.S. economic landscape will look like when they do.

To address these concerns, the federal government has passed legislation designed in part to support small businesses throughout this crisis. Understandably, reaction has been overwhelming, but the different types of relief can be confusing, and a mistake that leads to a delay could be very costly. If you’re looking for assistance offered in the Coronavirus Aid, Relief, and Economic Security (CARES) Act, here’s what you should know:

  • Paycheck Protection Program — Much of the media coverage has been focused on the Paycheck Protection Program (PPP), which allows small businesses to apply through their local bank for up to $10 million or 2.5 times their average monthly payroll — whichever amount is smaller. If the funds received from the PPP loan are spent within eight weeks on payroll, mortgage payments or a few other necessary expenses that are outlined in the text of the law, the loan amount is forgiven, making this more of a grant than an actual loan.
  • Economic Injury Disaster Loans — This measure simplifies and expands upon the Economic Injury Disaster Loan (EIDL) program. Run by the Small Business Administration, the EIDL approval process has been streamlined and businesses can now ask for up to $10,000 as an advance on the loan. These amounts do not have to be repaid and can be granted regardless of whether the underlying loan is ever issued. Moreover, the collateral requirements that were previously in place for larger loans have been eased or eliminated.
  • Possible future modifications — Even in the first few days, the popularity of the programs caused delays and fears of depletion. Congress is expected to authorize more funds to back these loans, but small businesses might need tenacity, patience and assistance from an experienced adviser to keep up with the changes and secure the funding they need.

If you’re wondering which loan to pick, you can actually apply for both. Just remember that each loan has its own requirements for forgiveness. If you have difficulty applying for, or getting approved for, one of these loans, or if you have questions about whether your lender or the SBA is complying with the text of the law, consult a small business attorney on whether a suitable remedy is available.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

Paycheck Protection Program: May 14, 2020 Need Certification Safe Harbor Extended to May 18, 2020

Author By Rebecca L. SimpsonPosted on

 

Attorney Rebecca L. Simpson

We blogged earlier this week about a new need certification safe harbor for borrowers who received PPP loans of less than $2 million.  That safe harbor was created in question 46 of the SBA’s FAQ document, and it also gave further guidance to those with loans over $2 million.  Click here to read our blog about FAQ 46, the new safe harbor, and what it means for your business.

So that borrowers have time to assess their situations in light of the new guidance in FAQ 46, the SBA has now issued FAQ 47, which extends the May 14, 2020 need certification safe harbor to May 18, 2020:

  1. Question:  An SBA interim final rule posted on May 8, 2020 provided that any borrower who applied for a PPP loan and repays the loan in full by May 14, 2020 will be deemed by SBA to have made the required certification concerning the necessity of the loan request in good faith.  Is it possible for a borrower to obtain an extension of the May 14, 2020 repayment date?

Answer:  Yes, SBA is extending the repayment date for this safe harbor to May 18, 2020, to give borrowers an opportunity to review and consider FAQ #46.  Borrowers do not need to apply for this extension.  This extension will be promptly implemented through a revision to the SBA’s interim final rule providing the safe harbor.

To read more about the now extended May 14 safe harbor, click here.  If you have questions, please feel free to contact Rebecca L. Simpson at 513.797.2856

When Can a Worker Sue for Defamation?

Author By Todd McMurtryPosted on

Your ability to earn a livelihood depends in large part on your reputation, which can be heavily based on what your present and previous employers or clients say about you. If you believe that anyone connected with your career made disparaging remarks that hurt your prospects for a job or a promotion, you may be entitled to sue for defamation, seeking money damages.

Proving defamation requires showing that the statements were false, of a defamatory nature, about the worker, made to a third party, made negligently or intentionally, and (depending on the defamatory nature of the statements) caused damages. Because of this exacting standard, there are important things to keep in mind when contemplating such a claim against an employer or other business associate:

  • Some communications are privileged — Employers usually may speak about an employee’s character and qualifications to other parties who have a legitimate interest in that information, such as a hirer or recruiter seeking a reference. This is a qualified privilege, however. It does not cover a false statement made with actual malice — namely, knowledge of its falsity or reckless disregard of whether or not it is true.
  • The statement must have been harmful (i.e., of a defamatory nature) — Even if a knowing false statement can be proved, the plaintiff still must show that an injury resulted, such as reputational damage or emotional distress. This includes showing that the plaintiff’s job prospects were significantly hampered as a result of the defamation.
  • Certain statements are defamatory per se — When false statements are made that an employee committed a crime, engaged in lewd or promiscuous activity or carried on other conduct that would be considered a public disgrace, defamation is presumed to have occurred. The employee may recover punitive damages even without showing actual harm.
  • Opinions are not statements of fact and thus cannot be proven false —An opinion by its very nature is neither true nor false but only an indication of the speaker’s frame of mind. However, the line between opinion and statement is not always clear. Even expressions couched in terms like “I feel,” “I think” or “In my opinion” can be defamatory if they convey false information.

Many companies have adopted best practices that prohibit giving out any data about employees, other than to confirm their job titles and dates of employment. However, offhand comments on the side can be defamatory. What’s more, these communications are usually not protected by the qualified privilege.

About Finney Law Firm, LLC

Founded in 2014, FLF has grown to 15 attorneys located in offices in Eastgate and downtown Cincinnati with five major practice areas: Corporate Law, Real Estate Law, Employment Law, Commercial Litigation and Public Interest and Constitutional Litigation.  FLF has the unique claim to three 9-0 victories at the United States Supreme Court for its public interest practice along with breakthrough class action work.

FLF also has an affiliated title insurance company, Ivy Pointe Title, LLC, that closes and insures nearly a thousand commercial and residential real estate transactions annually.

For more information about Finney Law Firm, visit finneylawfirm.com.

Media Contact: Mickey McClanahan; [email protected]; 513.797.2850.

 

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