Category Archives:Legal Update

New Rules for Business in 2020

by William Haut, Densborn Blachly LLP

The start of 2020 brings new rules and regulations that may impact business and financial planning. To understand how these impact you, it is wise to consult with qualified legal, tax or other professional advisors. 

Joint Employment

The topic of joint employment is not necessarily one that excites business managers, but it is a topic that may arise more frequently as the manner in which businesses employ human capital continues to evolve. In light of the Department of Labor’s (DOL) recently announced final rule addressing joint employment under the Fair Labor Standards Act (FLSA), the following is a reminder about the joint employment doctrine and its potential impact on applicable employment practices.

  • Joint Employment Basics. Briefly, joint employment exists when an individual employed by one employer can also be considered employed by another employer. In this context, both employers are two independent entities, rather than related entities under common ownership and control. The relationship between an employer and a staffing agency supplying employees to the employer is a common situation giving rise to joint employment considerations. If a joint employment relationship exists, both employers must comply with various federal, state and local labor and employment laws with respect to their joint employees. For example, aggregation of the joint employees can result in application of certain laws to small employers that would not otherwise be subject to such requirements (for example, the 15-employee threshold under Title VII of the Civil Rights Act of 1964 prohibiting discrimination based on race, color, religion, sex or national origin, and the 50-employee threshold under the Family and Medical Leave Act).
  • New DOL Rule for FLSA. The DOL recently announced a final rule updating and clarifying its standard for determining joint employment status under the FLSA, which is the federal law establishing minimum wage, overtime pay, recordkeeping requirements and child labor standards. The final rule becomes effective on March 16, 2020. The DOL had not revised its standards in this area in over 60 years.
  • New Rule Basics. In short, the final rule is intended to provide guidance on joint employment status in two common joint employment scenarios. First, the new rule contains a four-factor balancing test for determining joint employment status in situations where one employer hires an employee to work, and another person simultaneously benefits from that work. Second, the new rule provides guidance for determining whether multiple employers are joint employers if they are sufficiently associated in situations where they employ the employee to work a separate set of hours in the same workweek. If the multiple employers are joint employers, they must aggregate the hours worked for each of them to comply with the FLSA. Because courts have considered guidance under the FLSA when faced with cases addressing other employment-related laws (the Family and Medical Leave Act, for example), courts may consider the guidance provided by this new rule in future joint employment cases.

Overtime – Increased Compensation Levels for Certain Exemptions

Effective Jan. 1, 2020, the minimum salary threshold (referred to as the “standard salary level” by the U.S. DOL) for employees to be exempt from federal overtime pay requirements as executive, administrative and professional employees increased to $684 a week (equivalent to $35,568 annually). Additionally, the total annual compensation threshold for the highly compensated employee exemption is now $107,432 and requires weekly pay on a salary or fee basis of at least $684. 

  • Administration of the Rule. Employers may use nondiscretionary bonuses and incentive payments, including commissions, that are paid at least annually, to satisfy up to 10% of the minimum salary threshold for exempt executive, administrative and professional employees. If, despite such payments, an employee’s salary falls short of the minimum threshold, an employer may make a final catch-up within one pay period after the end of that period (i.e., the next standard payroll payment made by the employer).
  • Update Exempt Classifications. Employers that have not already updated their exempt classifications to reflect the new minimum salary threshold should do so. Keep in mind that paying an employee on a salaried basis does not make the employee exempt; the salary component is just one part of the analysis. It is also important to ensure correct classification of individuals as employees versus independent contractors. The costs for misclassifying employees as exempt or non-exempt employees for overtime purposes, and as employees rather than independent contractors, can be substantial.

Retirement Planning

The Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019 was signed into law in December 2019. The Act and a recent appropriations act made significant changes to the rules governing employer-provided retirement plans and IRAs. Here are a few key highlights.

  • Required Minimum Distributions (RMDs). The age at which retirement plan participants, including IRA account owners, must start receiving RMDs increased from 70½ to age 72. This applies only to those reaching age 72 after Dec. 31, 2019.
  • Elimination of Stretch IRAs. Unless the beneficiary is an eligible designated beneficiary (i.e., surviving spouse, minor child, disabled or chronically ill individual), the account balance must be distributed within 10 years of the participant’s date of death. The 10-year rule applies regardless of whether the participant is receiving RMDs at the time of death.
  • Elimination of Age Limit on IRA Contributions. As long as an IRA account owner has earned income, he or she can continue to make IRA contributions. Previously, the individual could not make contributions after age 70½.

Densborn Blachly is here to support you with any questions related to these new rules and regulations. 

The information contained in this publication should not be construed as legal advice or opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are encouraged to consult your own legal counsel on any legal questions you may have concerning your particular situation. Please see our disclaimer.

More Change is Needed

Altman Weil recently published its annual report on Law Firms in Transition. The takeaway: law firms are changing, but not fast enough. The report analyzes a recent survey Altman Weil conducted of nearly 800 of the U.S.’s largest law firms. Its findings starkly highlight the challenges faced by traditional law firms. It’s clear many are failing to deliver what clients need from their lawyer. Law firms must change their business model to be more client-focused. Yet resistance to change dominates most big law firms. Clients need practical and efficient solutions (i.e. technology-driven) to their problems. Seems simple.

Indiana Benefit Corporations

In recent years, consumers and investors have demonstrated an increased preference for socially conscious companies. The natural outgrowth of this trend has been the rise of socially conscious companies like Tom’s, a shoe company that donates one pair of shoes to those in need for each pair it sells. On January 1, 2016, Indiana entered the fray as the 30th state to enact a benefit corporation statute. Benefit corporations are for-profit corporations formed with the additional purpose of providing a general public benefit. Under the statute, a general public benefit is a benefit creating “material positive impact on society and the environment,” as a whole, through a corporation’s operations.[1] This ambiguous language provides flexibility to benefit corporations that have a variety of benefit interests.

SEC Adopts Rules to Permit Crowdfunding

The SEC adopted final rules, effective April 27, 2016, known as “Regulation Crowdfunding”, which greatly liberalize the manner by which companies privately raise money in small increments from a large number of investors, using the Internet. Regulation Crowdfunding also creates a regulatory framework for the intermediaries — broker-dealers and funding portals –which will facilitate the online transactions.

Regulation A+ Establishes Capital Raising Alternative

The SEC recently adopted final rules amending Regulation A to permit eligible private (i.e., non-SEC-reporting) companies to conduct public securities offerings of up to $50 million in a 12-month period without Securities Act registration. The amendment, known as “Regulation A+”, was mandated by the Jumpstart Our Business Startups Act (the “JOBS Act”) and takes effect on June 19, 2015. Its aim is to promote small company capital formation by increasing the maximum amount which may be raised under Regulation A (from $5 million to $50 million), and by streamlining reporting and disclosure requirements.

NLRB Pulls a "Quick One" on Employers

In December 2014, the National Labor Relations Board (“NLRB”) issued what many call the “Quickie Election” Rule or “Ambush Election” Rule. In short, this new rule will decrease the period of time between a union election petition and the election itself from around forty-two (42) days to as few as fourteen (14) days. The rule is set to take effect today (April 14, 2015).

New Canadian Anti-Spam Law Could Affect Your Business

Canada recently adopted a new Anti-Spam Law (CASL), which will impact U.S.-based businesses that send electronic messages to recipients in Canada for commercial or promotional purposes. CASL went into effect on July 1, 2014. Unlike the general rule in the U.S., where a sender is free to send an unsolicited email as long as the recipient may “unsubscribe,” now, in Canada, the general rule is that a recipient must proactively “opt-in” prior to the message being sent. Failing to meet the new requirements of CASL can result in a fine of up to $1 million for individuals and $10 million for entities. 

Know Your Business Partners (OFAC Changes 50% Rule)

US persons and companies are prohibited from doing business with blocked persons. On August 13, 2014 the Treasury Department’s Office of Foreign Asset Control (“OFAC”) issued revised guidance on its 50% rule for Entities Owned By Persons Whose Property and Interest in Property Are Blocked. This new guidance dramatically increases the vigilance and diligence necessary to verify that you are not doing business with an entity that is a blocked person.