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Ohio Employment Law: Update on COVID-19 paid sick leave and family medical leave

Author By Matthew S. OkiishiPosted on

Last week, I wrote a comprehensive overview of the new federal requirements for paid sick leave and family medical leave under the Families First Coronavirus Response Act (the “Act”). Since then, the Department of Labor has published its first guidance on the application and enforcement of those provisions.

The Effective Date of the Act Has Changed:

The Act states that its provisions shall go into effect within 15 days of enactment. As the Act was signed by President Trump on March 18, 2020, I took a conservative approach and wrote that the new paid sick leave and family medical leave provisions would be effective on April 2, 2020. Per the new Department of Labor guidelines, the Act will be effective on April 1, 2020, one day ahead of schedule.

Under-the-radar sick time provision:

Nestled in to the Act’s paid sick leave provision is a prohibition against employers requiring the use of other paid sick leave (this includes ALL accrued time off, whether vacation time, bereavement, sick time and other time off. In many companies this is known in their personnel policy as  “PTO” or “Paid Time Off”). This is an easy provision to run afoul of, and employers should consider consulting with competent legal counsel to ensure compliance with the Act.

Small Business Exemption Still Vague, Non-Enforcement Grace Period:

The Act exempts employers with less than 50 employees from its requirements if compliance would jeopardize the viability of the business. Department of Labor regulations on the topic are forthcoming and should be released in April 2020.

In an effort to help employers navigate this uncertainty, the Department of Labor’s Field Assistance Bulletin has instructed its officers to not enforce the Act’s provisions until April 17, 2020. The Department of Labor will not bring about any enforcement actions provided that an employer makes “reasonable, good faith efforts to comply with the Act.” Employers will only be found to behave reasonably and in good faith when all of the following are satisfied:

  1. The employer remedies any violations, including by making all affected employees whole as soon as practicable;
  2. The violations of the Act were not “willful” based on the criteria set forth in McLaughlin v. Richland Shoe, 486 U.S. 128, 133 (1988) (the employer “either knew or showed reckless disregard for the matter of whether its conduct was prohibited…”); and
  3. The Department receives a written commitment from the employer to comply with the Act in the future.

Employers who may require use of the small business exemption should consult with competent legal to prepare for the upcoming regulations and ending of the grace period. Employers should also be aware that the Field Assistance Bulletin does not limit the right or ability of an employee to bring a private action for violations of the Act.

Conclusion

Our 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 Stephen E. Imm (513.943.5678) and Matthew S. Okiishi (513.943.6659).

COVID-19 Developments: The Ohio Stay-At-Home Order is not all that broad

Author By Christopher P. FinneyPosted on

Here is the Ohio Stay-at-Home order.

Read it carefully, as it is not as broad as the reports of today’s press conference might lead you to believe.

For example, as it relates to Finney Law Firm, and Ivy Pointe Title, law firms, title companies, Realtors, insurance companies and lenders are all deemed essential and thus the purchase and sale of real estate can continue unless the closing of auditor’s and Recorder’s office (in Ohio) and Clerk’s offices (in Kentucky) cause title to become uninsurable.

What the order says

The meat of the order is:

All businesses and operations in the State except Essential Businesses and Operations as defined below, are required to cease all business activities within the State except Minimum Basic Operations, as defined below.

Moreover, all Essential Businesses and Operations are encouraged to remain open. In other words, unless you are forced to be closed, they want you to continue operating and presumably at full strength.

But the exceptions are incredibly broad

Then the order goes on to except or define as Essential Businesses and Operations, which is virtually everyone:

  • Working from home and home-based businesses
  • Food service providers (production, distribution, fulfillment, and storage)
  • The construction industry
  • Building management and maintenance
  • Airport operations
  • The entire utility industry
  • The oil and gas industry
  • Distribution centers
  • Garbage collectors
  • Computer and internet-related companies
  • All governmental functions
  • Grocery stores and pharmacies
  • Food, beverage and marijuana production (including farming, manufacturing, processing, and cultivating)
  • Animal shelters, rescues and kennels
  • Religious facilities
  • Media and news companies
  • Other first amendment speech activities, which would include activities relating to the primary and general elections, protests, and rallies.
  • Hardware stores and stores selling HVAC, plumbing or electrical equipment and materials
  • tradesmen such as plumbers, electricians, janitors, exterminators, painters and HVAC repairmen
  • Everyone involved in the postal or shipping industry
  • Schools that already have not been ordered closed as long as 6-feet of distance is maintained
  • Laundromats and dry cleaners
  • Restaurants for carryout food only
  • All means of transportation
  • Home-based healthcare
  • Professional services such as law, insurance, title and real estate
  • Banks and other lending institutions
  • Labor union functions
  • Hotels and motels
  • Funeral services

It also allows for travel:

  • To visit healthcare providers;
  • To obtain services from Human Service Operations, which include nursing homes, day cares, residential facilities for those with developmental disabilities and substance abuse issues, vocational services, rehabilitation services, adoption agencies, and those providing services to the indigent
  • To shop
  • To go to and from Essential Businesses and Operations

Enforcement

There is no enforcement mechanism for the Order, and indeed the Governor said as much in today’s press conference that they don’t intend to put anyone in jail for violating the Order. Thus, it is aspirational in nature, or perhaps just intended to get everyone’s attention to stop interacting with others as much as possible.

Conclusion

Certainly, the Governor intended something by the order, but given the incredibly broad exceptions, and the lack of any intent to enforce it, it appears to be an attempt to educate the public on the dangers of work and social interactions more than a heavy hand telling Ohio citizens what they can and cannot do in their work life.

Call our any of attorneys if we can advise you on COVID-19-related developments.

Ohio Real Estate Law: Ivy Pointe Title goes the extra mile to assure we continue to be “Accurate and On Time” during the COVID-19 pandemic

Author By Christopher P. FinneyPosted on

In order to protect the safety of all parties to a real estate closing, Ivy Pointe Title has a team of closers willing “go the extra mile” to obtain signatures and notarize documents for buyers and sellers.

Curb-side service

To minimize social interaction, if you drive to either of our two offices (Mt. Adams or Eastgate), you can sign documents from the comfort of your car. We will come to you with the documents, obtain signatures, and notarize those that need to be acknowledged.

Travel to your location

We will also travel to the homes or workplaces of buyer and sellers to obtain signatures and notarize documents.  When all signatures are obtained and the transaction is funded, we will record the documents, issue the title insurance policies and disburse.

Best closing practices for hygiene and safety

We use “best practices” in all of our closings, including (a) we will not meet in person with any buyer or seller who is ill or exhibiting flu symptoms, (b) none of our closers will work or attend any in-office or remote closing if he or she is ill, (c) we wash hands, use hand sanitizer, and use Clorox wipes of all pens, equipment and surfaces before and after each closing, (d) we will not shake hands and will maintain a safe distance from all closing participants and (e) almost all of our Ivy Pointe personnel are working remotely from home to limit human-to-human interaction at the company.

Teleconferencing for Realtors and lenders

At closings, we also have the technology and have trained our personnel to teleconference in lenders and Realtors from our laptops so they may participate at all stages, all while keeping a social distance and minimize the amount of people gathered at one time.  Ahhh, this probably won’t fly for roadside service closings, but we can try with FaceTime!

A great future together

Let’s all cooperate to keep the closings moving forward and stay safe!

Conclusion

Even in the most difficult times and the most difficult transactions, Ivy Pointe’s team is willing to go the extra mile to be “Accurate and On Time” in your real estate closing. Contact Rick Turner (513.943.5660) or Eli Kraft-Jacobs (513.797.2853) to close your real estate transaction quickly and accurately.

Ohio Employment Law: New COVID-19 rights extended to workers

Author By Matthew S. OkiishiPosted on
Attorney Matthew S. Okiishi

In the wake of the Covid-19 pandemic, Congress and the Trump Administration have greatly expanded the protections available to workers affected by the disease. On April 2, 2020, both the Emergency Family and Medical Leave Expansion Act (“EFMLEA”) and Emergency Paid Sick Leave Act (“EPSLA”) will go into effect, and both will remain in effect until December 31, 2020.

Emergency Family and Medical Leave Expansion Act

The EFMLEA applies to all employers with fewer than 500 employees. Employees who worked for the employer for at least 30 days prior to the designated leave are entitled to up to 12 weeks of job-protected leave. However, the reason for the emergency leave is especially narrow, and only applies to an employee who is unable to work or telework due to the need to care for the employee’s child if the child’s school or place of care is closed or the childcare provider is unavailable due to a public health emergency. Due to the proactive measures taken by Governor Mike DeWine, many employees in Ohio may find themselves covered under the EFMLEA.

Employees who qualify for leave under the EFMLEA are entitled to partially paid leave. For the first 10 days of the leave, employees are not entitled to pay. However, employees can substitute accrued paid leave or EPSLA (explained below) to bridge this gap. After the 10-day period, a full-time employee is entitled to pay at a rate two-thirds their regular rate, capped at $200 per day and $10,000 aggregate. Hours for part-time employees are to be calculated as the average of the hours worked in the preceding six months.

At the conclusion of the leave, employers with 25 or more employees must return the employee to the same or equivalent position. Employers with fewer than 25 employees are excluded from the requirement if the employee’s position no longer exists following leave due to an economic downturn. However, the employer must still make a reasonable attempt to return the employee to an equivalent position.

The EFMLEA further permits the Secretary of Labor to exclude emergency responders and healthcare providers from eligibility, and to exempt small businesses (defined as employing less than 50 employees) if the leave would jeopardize the viability of their business.

Emergency Paid Sick Leave Act

The EPSLA applies to employers with fewer than 500 employees, but healthcare providers and emergency responders may elect to be exempt. Employees qualify for paid sick leave under the EPSLA if the employee is:

  1. subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. experiencing COVID-19 symptoms and seeking medical 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;
  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
  6. experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

Qualifying employees are generally entitled to 80 hours of paid sick leave at their regular rate under the EPSLA (employees who are taking sick leave for the fourth, fifth, or sixth listed reason above are entitled to a two-thirds pay rate). The paid sick leave is capped at $511 per day for the employee’s own use, and $200 to care for others.

A Word of Caution

Because the EFMLEA amends the Family Medical Leave Act, the anti-retaliation and discrimination provisions of the same apply. It is illegal for employers to interfere with employees exercise of their rights under the FMLA or to otherwise discriminate against them.

Similarly, the EPSLA prohibits employers from requiring employees to use other paid leave provided by the employer to the employee before the employee uses EPSLA sick time. Further, the EPSLA prohibits employers from retaliating or discriminating against employees who elect to utilize the EPSLA.

Conclusion

Our labor 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 Stephen E. Imm (513.943-5678) and Matthew S. Okiishi (513.943-6659).

Ohio Commercial Law: COVID-19 crisis and force majeure

Author By Christopher P. FinneyPosted on
Attorney Christopher P. Finney

 

With the raging COVID-19 crisis and its economic fallout, the question that we are fielding the past few days is:

How can I get out of my contract to do “X”?

Each of the three analyses below hinges on the language of the contract.  Thus, “it depends.”

Contract Contingencies

First, with respect to contracts to buy companies, real estate or other assets, consider the contingencies in the contract.  For example, read here and here for easy “exits” from Cincinnati Area Board of Realtors residential contracts for buyers.

“Force majeure” provisions

But what about leases, long-term supply contracts, employment contracts, construction contracts and other commercial contracts?

Many such contracts contain what is known as a “force majeure” provision that essentially contemplates precisely the situation in which we find ourselves today: Some unexpected exigency such as war, famine, or pandemic.

In its essence, a force majeure clause is a contract provision that excuses a party’s performance under a contract when certain circumstances beyond their control arise, making performance impracticable, impossible or illegal. These clauses are common in complex commercial contracts, such as a commercial lease (and we really don’t expect to actually use them).  Yet here we are and they can be a business-saving resource in determining how to proceed.

Can this provision excuse your performance and let you “get out of” a contract? Well, as you might expect your attorney to say: “it depends.”  It depends on the language of the contractual provision.

Here is a sample force majeure provision from a commercial contract:

In the event a party shall be delayed or hindered in or prevented from the performance of any obligation (other than a payment obligation) required under this contract by reason of strikes, lockouts, inability to procure labor or materials, failure of power, fire or other casualty, acts of God, disease, restrictive governmental laws or regulations, riots, insurrection, terrorism, war or any other reason not within the reasonable control of such party, then the performance of such obligation shall be excused for a period of such delay, and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.

Would such a provision allow a tenant to terminate a lease? Would it allow an employer to terminate an employment contract for a term? Would it allow a manufacturer to avoid its obligations under a supply contract?

In this contractual language, we have the specific exceptions of “disease,” “acts of God,” and “restrictive governmental laws.”   Since we have a disease that is arguably an “act of God,” and government-imposed shutdowns, it would seem that there are multiple bases upon which to argue for termination.  But there could be countervailing arguments as well.  For example, payment obligations are not excused in this sample language.

Some courts have applied force majeure clauses very narrowly, meaning that the specific occurrence has to be contemplated by a force majeure provision. Thus, is the word “disease” in your force majeure clause? Well, COVID-19 would seem to fit tightly within that definition, but does it? Hamilton County, for example, as of this writing, has no reported cases, and yet tens of thousands of people have been thrown out of work because of the fear of pandemic.

Mere diminished performance or increased expenses to perform alone likely would not be a sufficient basis to excuse performance and invoke a force majeure clause.

Business Interruption Insurance

Do you have business interruption insurance that would cover the COVID-19 pandemic consequences?

If you were prescient or cautious enough to buy business interruption coverage, that usually covers only a direct physical loss such as a fire, flood or earthquake.  Some policies require that a loss be specifically designated, while other policies have no such requirement.

  • In the case of COVID-19, it may be tough to prove a direct physical loss but what if a workplace is contaminated and unusable due to a COVID-19 outbreak?
  • Possibly, business interruption coverage could be invoked if a supplier shuts down and can’t supply product or parts due to COVID-19

Additional considerations

Before triggering contingencies, invoking a force majeure provision or making a claim for insurance coverage, consider the following:

  1. Are alternative means to perform your contractual obligations.
  2. Will the other party to the contract consider mitigation of the performance problem, such as a rent reduction or other part-performance?
  3. Could the parties reach a mutual agreement to terminate a contract or delay performance?

Conclusion

Virtually overnight, our firm and our clients have found ourselves in the middle of single worst crisis in perhaps 100 years.  The first option should be to work towards accommodation with the other party to the contract.  Beyond that, we have the options set forth above to consider for relief in this incredibly challenging environment.

Call one of our skilled and experienced attorneys if you want to explore your legal options or pursue one of these remedies.

More on upcoming property tax valuation increases

Author By Christopher P. FinneyPosted on

For both commercial properties as well as single family homes, owners have flooded us with inquiries about their notices from County Auditors in Hamilton, Butler, Clermont and Montgomery Counties as to new property valuations.  We can’t imagine the number of calls the County Auditors must be getting.

A few guideposts for you:

  • First, read this important blog entry that essentially tells you that the first 30% of the valuation increases in southwest Ohio will not result in an increase (or at least not a significant increase) in your actual tax bill.
  • Second, Auditor’s property valuation is not some magical number — for the January 2024 tax bill, it is to be the fair market value as of January 1, 2023.  Thus, if your property was worth more then than in the prior valuation period, you should expect a valuation increase — perhaps one even above average for all properties in the marketplace.  Some clients seem to think that since valuations were less than what they thought the property was actually worth in the past, the Auditor’s valuation process is supposed to yield a lower number.  Well, it’s not.
  • Third, if your property was purchased since the last triennial valuation date (January 1, 2020), the sale price likely will be reflected in the valuation.  As this blog entry addresses, a recent arm’s length sale essentially — and largely irrebuttably — IS the value by law.
  • Fourth, if your property falls in one of the gazelle categories of properties whose values have leaped ahead of the market — single family homes, warehouse and industrial properties, and apartment buildings — you should both celebrate your good fortune and expect a bigger tax bill as a result.
  • Fifth, on the flip side, if you are a victim of the weak office market or the mall or downtown retail market weaknesses, you should should see some tax relief in the January tax bills.
  • Sixth, gas prices are up, grocery prices are up, car prices are up.  You have not had a valuation increase in three years.  Wouldn’t you expect your tax bill would rise some, at least modestly?
  • Seventh, for both buyers and sellers in today’s market, the looming valuation increases create both a possible problem and an opportunity as to contractual tax prorations for sales between now and January when the new — very different — valuations come out.  Read here for more detail on this.
  • Eighth, remember, the Board of Revision process to challenge property valuations is a two-way street.  If your property truly is undervalued, you risk an increase.  Cautiously keep in mind the upward dynamics of the real estate market over the past three years.  You could wind up with an increased valuation as opposed to the sought reduction if you overplay your hand.
  • Finally, I had a client recently ask me “why would single family home valuations be increasing in Cincinnati?” and I swear he must live under a rock.  I responded, “haven’t you seen newspaper articles explaining that Cincinnati has had one of the hottest housing markets in the nation since the start of COVID?”  The response, “ummm, no.”  It is surprising since we deal with this every day, and to some extent it is just denial of the obvious fact that we are blessed in Cincinnati with a fantastic housing and commercial real estate market.  Enjoy it while it lasts!

If, after reading this and the prior blog entry on the new valuations coming out in January, you still have tax valuation questions, please contact me (513.943.6655) or another member of our tax team.  We are glad to help.

Hamilton County Court of Appeals rules that certified mail practice during pandemic is not effective service of process

Author By Julie M. GuginoPosted on

On September 29, 2021, the First District Court of Appeals issued a decision in CUC Properties, Inc. v. smartLink Ventures, Inc., Case No. C-210003 which will have a far reaching and substantial impact upon cases in the State of Ohio in which default judgment was obtained as a result of service by the US Postal Service during the COVID-19 pandemic.

At issue in CUC Properties v. smartLink was the service of Summons and Complaint by the US Postal Service.  In that action, smartLink disputed that it received service of the Complaint as provided under Civ. R. 4.1 where the USPS noted “Covid 19” or “C19” on the return receipts delivered to smartLink and its registered agent.  As a result of their failure to file an Answer, CUC Properties obtained judgment by default against them.  smartLink appealed, asserting that the notation “Covid 19” or “C19” did not amount to service as provided under the Civil Rules.

The Court agreed, holding that,

The Covid-19 pandemic certainly demanded innovation and flexibility, and courts around the state (and country) admirably exhibited great creativity in keeping the courthouse doors open while also ensuring public safety. The challenging nature of the pandemic aside, we simply cannot dispense with the rules and due process protections. This is particularly so when the record contains no indication that service was otherwise validly achieved. On this record, therefore we hold that a notation of “Covid 19” or “C19”  does not constitute a valid signature under Civ. R. 4.1(A).

This decision, undoubtedly, will have far reaching effects upon the finality of default judgments granted in Ohio courts during the course of the pandemic where the USPS chose to use a notation of “Covid 19” or “C19” in place of having the individual at the address personally sign for the mail from the Court.

 

foreclosure attorney

Do I Need A Foreclosure Attorney?

Author By Susan Cress BrowningPosted on

In the current post-covid climate many homeowners are finding themselves in a position they never would have imagined: facing foreclosure and a looming sheriff sale. During the pandemic, job loss, layoffs, shutdowns, and illness caused payments to be missed.

The government response was to put moratoriums in place to prevent homeowners from losing their residence. As these moratoriums are being lifted in some places, despite the Center for Disease Control’s continuation order, mortgage companies are once again filing or reinstating foreclosures. This blog will provide information about how you may be able to save your home in the bankruptcy context as Dayton, Northern Kentucky, and Cincinnati foreclosures are on the rise. If you would like further information, please visit our bankruptcy page.

Before Filing for Foreclosure

I receive frequent calls from potential clients seeking a foreclosure attorney because they have been served with a summons and complaint for foreclosure. In some cases, there may be defenses to your foreclosure available. Foreclosure defense can be a very complex area of law, especially when there are Truth in Lending Act (TILA) and Real Estate Settlement Procedures Act (RESPA) violations at issue.

Option 1: Mortgage Company Violations

Mortgage companies must follow certain guidelines under state law when foreclosing on your home. If you feel like your mortgage company has violated your rights in the foreclosure process or in servicing your loan, please seek legal advice. However, if you have been advised that there are no viable defenses to your foreclosure other options may be at your disposal.

Option 2: Short Sale or Deed-In-Lieu

In the case where you no longer have the income to pay your mortgage, you may have the option of a short sale or deed-in-lieu. Keep in mind as you explore these options that they may have forgiveness of debt consequences associated with them.

Option 3: Mortgage Modification

In every case where a potential client is facing foreclosure, I begin by recommending that they submit the necessary paperwork to request a mortgage modification with their mortgage company. This will include a statement of hardship explaining what circumstances led to getting behind on your payments. The client may qualify for payments to be reduced or delinquencies to be added to the back end of the mortgage. Sometimes a modification may solve the homeowner’s issues without anything more.

Option 4: Chapter 13 Bankruptcy

If the modification process is not fruitful and the client has sufficient income, it is possible that a chapter 13 could be filed with the Bankruptcy Court to catch up the mortgage arrearage over time while paying the regular monthly mortgage. A chapter 13 bankruptcy plan can last from three to five years depending on your income and the amount of time needed to pay the delinquent payments. Even if the court has issued an order for foreclosure and a sheriff sale has been scheduled, a chapter 13 bankruptcy can stop the sale.

Filing a chapter 13 bankruptcy may also be beneficial to resolve other debt issues the client may have including medical bills and credit card debt. Most times these unsecured debts will be paid just pennies on the dollar during the bankruptcy process. Chapter 13 can also provide a method to pay back taxes and automobile loan delinquencies.

 

If you are facing foreclosure and would like to speak to an experienced attorney to assess whether you can save your home, please contact the law office of Finney Law Firm at 513-797-2857.

Our practice areas include bankruptcy, corporate transactional, commercial and residential real estate, estate planning, employment and labor, personal injury, business and commercial litigation, tax valuation, and public interest law.

Finney Law Firm co-sponsors EmpowerU Ohio seminar on 2nd Round PPP and other stimulus bill details

Author By Christopher P. FinneyPosted on

President Trump signed into law at the very end of 2020 another COVID-19 stimulus bill. Much of the writing about it has focused on the $600 direct payments to to individuals whose income falls below a certain thresholds. but this bill also contains important subsidies and changes for small businesses, including a new and significant second round of direct payments to small businesses payments under the Paycheck Protection Program (loans later forgiven).

Finney Law Firm attorney Rebecca L. Simpson will follow up on her blockbuster Spring performances on the initial PPP with information on the new stimulus programs, and be joined by Seth Morgan of the MLA Companies, a financial service and advisory group on Wednesday, January 13th from 6:00 to 7:15 PM via live webinar.

The Cincinnati Area Board of Realtors is also co-hosting the webinar.

Webinar topics include:

  • Second round PPP:
    • Amounts (including increased amounts for restaurants)
    • Eligibility (much tighter than round #1).
    • Expanded qualifying expenses for Round #2.
    • Forgiveness.
  • First and second round PPP tax deductibility.

Click here to register.

For assistance with the PPP or more information, contact Rebecca L. Simpson (‭513-797-2856). Also contact her if there is anything more we can do to help your small business.

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