Publications Archive

In the world of construction contracts, terms referencing an “act of God” are commonplace; reserving some circumstances in which a party will be excused for failing to fulfill its duties under the contract.

With recent announcements that a vaccine may be available soon, employers across the country are beginning to think about how and when they can safely return to their pre-pandemic “normal” and are now beginning to ask: “Can we require employees be vaccinated against COVID-19 prior to returning to work?”

On November 18, 2020, the IRS released Revenue Ruling 2020-27 relating to the non-deductibility of expenses paid with Paycheck Protection Program (“PPP”) loan funds. The Ruling may impact PPP borrowers who were planning to wait until 2021 to apply for forgiveness.

Last week the Small Business Administration (the “SBA”) announced that every borrower or group of affiliates with Paycheck Protection Program (“PPP”) loans in excess of $2,000,000 in the aggregate will be required to fill out a Loan Necessity Questionnaire. 

There are a lot of well-run businesses. But even the best of them face risks, from time to time, that threaten their existence. Such risks often arise from events that can’t be foreseen, let alone controlled. When risks become reality for a business, what are the owners to do?

HHS has updated its most recent Provider Relief Fund (“PRF”) Reporting Requirements to broaden use of the funds and Nebraska offers a second round of coronavirus relief grants. 

OSHA has published COVID-19 control and prevention guidelines for employers and employees who work in the construction industry. Keep in mind these important guidelines when managing a construction site during COVID-19.

High-net-worth individuals who wish to “lock in” the use of their estate and gift tax exemption should be prepared to do so by December 31, 2020, as the upcoming presidential election could bring about another major tax regime overhaul.

Exemptions related to employment information and business-to-business communications contained in the California Consumer Privacy Act of 2018 have been extended.

A recent decision by the Nebraska Supreme Court should serve as an important reminder to contractors who rely on insurance assignments for payment, that such assignment agreements must include a clear statement of what work will be performed.

As was discussed in previous Koley Jessen News Flashes, the Families First Coronavirus Response Act (the “FFCRA”) contains an elective exemption from the Paid Sick Leave and Emergency FMLA Leave for employers of health care providers.

On September 14, 2020, the United States Environmental Protection Agency’s (“EPA”) Region 7 office, which serves Iowa, Kansas, Missouri, Nebraska, and nine tribal nations,  announced that it reached a settlement with Kansas City-based Del Properties in connection with numerous alleged violations of lead-based paint regulations under the Toxic Substances Control Act (15 U.S.C. §2601 et seq.).

Effective October 2, 2020, U.S. Citizenship and Immigration Services will change the fees charged for most immigration benefit requests, update several of its forms, and adjust the premium processing timeframe available for most employer-based petitions from 15 calendar days to 15 business days.

The fact that a trust is “irrevocable” does not actually mean it cannot be changed. This is a widely-known secret in the estate planning world. Indeed, practitioners have the luxury of utilizing an increasing number of tools to modify irrevocable trusts.

On August 8, President Trump issued a Memorandum directing the Secretary of the Treasury to use his authority under section 7508A of the Internal Revenue Code to defer the employee portion of Social Security tax obligations (which is 6.2%) with respect to American workers making less than $4,000 per bi-weekly pay period (or $104,000 per year) for the period from September 1 through December 31, 2020. 

On August 10, 2020, Nebraska lifted a definitional requirement that prohibited ambulatory surgical centers (“ASCs”) from scheduling surgeries that would result in the patient being kept at the ASC past midnight. This change, made as part of LB783, which is set to become effective on November 13, 2020, finally aligns Nebraska’s ASC licensure requirements with Medicare’s ASC rules, thereby providing greater flexibility for ASCs operating within Nebraska to schedule afternoon and evening surgeries.

On May 6, 2020, the United States Department of Education issued amendments to Title IX of the Education Amendments of 1972 (the “2020 Amendments”).  Title IX and the 2020 Amendments apply to all institutions that receive federal financial assistance from the Department of Education, including state and local educational agencies, and provides that such covered institutions may not discriminate on the basis of sex in any educational program or activity; this includes the prohibition of sexual harassment.

The U.S. Department of Homeland Security (“DHS”) recently announced that it is extending the flexibility rules in place for Form I-9 completion until September 19, 2020. As part of the usual Form I-9 process, employers must physically examine, in the employee’s physical presence, the identity and work authorization documents presented within three (3) business days of the first day of employment. On March 20, 2020, DHS announced that it would temporarily permit employers that are operating remotely due to COVID-19 to examine the documents remotely, rather than in person, such as by video link, fax, or email.

Over the past several months, COVID-19 has been top of the list for issues facing employers across the country and around the world. In an effort to stem the spread of the virus, there have been quarantine orders, stay-in-place orders, travel restrictions and other limitations on federal, state and local levels. 

The Department of Health and Human Services (“HHS”) provided an update on their website regarding reporting requirements related to Provider Relief Fund payments and included additional details about the reporting system. It is key to watch for more detailed instructions with are forthcoming.

October 5, 2017, less than 3 years ago, the world read about the rape and sexual harassment allegations against Harvey Weinstein, bringing the Me Too movement to the forefront of American life. Since then, businesses across the United States have been addressing internal issues related to sexual harassment and discrimination that have long gone unnoticed or ignored.

Just a reminder that federal contractors must incorporate the updated Voluntary Self-Identification of Disability Form (CC-305) (the “Form”) into their applicant and human resource processes by August 4, 2020. The Form is used by federal contractors to monitor their progress towards hiring individuals with disabilities and is completely confidential. The Form is officially approved by the Office of Management and Budget and may not be substantially modified.

The Court of Justice of the European Union issued a landmark ruling on Thursday, July 16 that could immediately affect businesses in the United States by challenging data transfer arrangements that are currently in place for cross-border sharing of information between U.S. and EU companies.

The COVID-19 pandemic is causing financial distress across industries worldwide, impacting businesses large and small. According to the American Bankruptcy Institute, in May of 2020, total commercial chapter 11 bankruptcy filings increased 48% from May 2019.

The U.S. Small Business Administration (“SBA”) will soon be releasing the names of all recipients of loans in excess of $150,000. According to at least one news report, this could come as soon as Thursday, July 2, 2020.

The SECURE Act took effect January 1, 2020 and made significant changes to retirement benefits. Because of these changes, individuals who own retirement accounts should review their retirement account beneficiary designations and estate plans to determine if changes are advisable. In this article, Alex Wolf and Nick O'Brien answer a series of questions designed to help you regarding designation of beneficiaries under the Act.

When an employee contracts COVID-19, one question employers are grappling with is whether the employee’s COVID-19 diagnosis will be a compensable workers’ compensation claim. The answer to that question will depend on the workers’ compensation laws in the state where the employee is located.

The Fair Labor Standards Act allows employers in retail and service establishments to exempt certain employees paid primarily on a commission basis from overtime. Recently, the Department of Labor issued a final rule clarifying the application of this exemption. 

On June 22, 2020, President Donald Trump signed a Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak. The June Proclamation extended the previously announced restrictions to immigrant visas as set forth in Proclamation 10014 of April 2020 and also expanded restrictions to various nonimmigrant visa categories as summarized in this article.

For a number of years, there has been a question as to whether federal employment laws protected individuals from discrimination on the basis of their sexual orientation or gender identity. This question has been increasingly prevalent following the legalization of gay marriage nationally in 2015.

On June 5, 2020, the Paycheck Protection Program Flexibility Act of 2020 (the “Flex Act”) was signed into law. The Flex Act provides several amendments to the Paycheck Protection Program (“PPP”).

Now more than ever, businesses need help to protect their data. In this article, Data Privacy and Security attorney Maureen Fulton addresses (1) tips to help businesses prepare for and prevent data breaches; and (2) advice for the moments, hours, and days after a security incident occurs.

On May 19, 2020, the U.S. Department of Agriculture (“USDA”) released the final regulations for the Coronavirus Food Assistance Program (“CFAP”) and provided additional guidance on direct payment aid to agricultural producers affected by the coronavirus pandemic.

A resource for your company's planning - we share the presentation that was put together for our employees regarding the process and procedures that we will be following as we allow people back in the office.

On Friday, May 15th, the SBA released its PPP loan forgiveness application. The SBA’s stated intent with this forgiveness application is to reduce the compliance burden and simplify the forgiveness application process for borrowers. The press release accompanying the release of the application indicates that the SBA will “soon” be issuing additional regulations and guidance on the forgiveness of PPP loans. 

On May 13, 2020, the SBA issued SBA FAQ # 46 that addresses the required good-faith certification by Paycheck Protection Program (“PPP”) applicants concerning the necessity of the applicant’s loan request.

As a reminder, the Families First Coronavirus Response Act (the “FFCRA”) became effective April 2, 2020. Accordingly, private employers with fewer than 500 employees must currently be complying with the FFCRA, and providing Emergency Paid Sick Leave and Emergency Family Medical Leave Act (“FMLA”) Leave to qualified employees, absent the small business or health care provider exemptions previously discussed in Koley Jessen News Flashes.

Many employers continue to grapple with the interaction between the new federal leave laws, newly enacted state and local laws, and other paid sick leave policies employers may have had in place prior to the pandemic. As a recap, the Families First Coronavirus Response Act (the “FFCRA”) went into effect on April 2, 2020.

On April 21, 2020, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly published a final rule changing the definition of “waters of the United States” (WOTUS). The Navigable Waters Protection Rule will reduce the number and type of water bodies subject to jurisdiction of the federal Clean Water Act (Act). The rule will take effect on June 22, 2020 unless legal challenges halt or delay it.

On April 30, 2020, the Internal Revenue Service published Notice 2020-32 that announces that otherwise deductible business expenses funded by proceeds from a forgiven PPP loan are not deductible for federal income tax purposes.

To provide some relief in regards to decisions affecting benefits during the COVID-19 outbreak, the Department of Labor, Treasury Department and the Internal Revenue Service published a joint notice on April 28, 2020 (the “Notice”) announcing an extension to several key deadlines under the Employee Retirement Income Security Act (ERISA). See Disaster Relief Notice 2020-01.

For many companies, cyber attacks and data breaches have become an inevitable part of owning and operating a business. Although a data breach response plan is always recommended for businesses to have in place, the importance is heightened because of the additional challenges and obstacles that the COVID-19 pandemic has placed on businesses.

As businesses begin to consider reopening their operations and returning employees to their locations and places of business, there are many things that employers must consider and pitfalls that employers will have to take care to avoid. Provided below are some important questions and answers to assist employers in reopening their operations and returning employees. 

During this uncertain time, many employers are facing the need to make decisions regarding their workforce in order to mitigate the impact of the COVID-19 coronavirus pandemic. Employers who require telework or choose to furlough, layoff, or otherwise alter the work status of their workforce must be particularly mindful of the implications of these decisions with respect to H-1B workers.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package that offers relief to state and local governments, small and large businesses, and individuals affected by the 2019 novel coronavirus (COVID-19) pandemic. In particular, the CARES Act provides for the issuance of one-time payments called recovery rebates to assist individuals recover from the economic impacts of the COVID-19 pandemic.

Last week, health care providers that participated in Medicare during 2019 should have received an automatic deposit to the bank account that the provider uses to receive payments from Medicare. The deposit description would have been “HHSPAYMENT US HHS Stimulus.” These deposits are part of an initial $30B in CARES Act stimulus funds directed at the health care industry in response to the COVID-19 national public emergency.

The CARES Act allows employers to defer the deposit and payment of the employer's share of Social Security taxes. On April 10, the IRS published updated guidance addressing FAQs related to the payroll tax deferral. 

We address the special rules for use of retirement funds and the temporary waiver of required minimum distributions which were included in the CARES Act.

On April 9, 2020, the Federal Reserve announced the preliminary details of the Main Street Lending Program enacted through the CARES Act. The program will be available to borrowers with fewer than 10,000 employees or less than $2.5 billion in revenue. Lenders will be able to originate new loans (the “Main Street New Loan Facility”) or utilize the program to increase existing loans with borrowers (the “Main Street Expanded Loan Facility”).

We have identified ten items that small businesses already approved for loans under the Paycheck Protection Program (the “PPP”) should consider to help maximize the benefits of the program.