Pandemic, Policies, and Processes: What Companies Should Consider During these Unprecented Times

Watch a webinar presented by the experts at MinuteMen about what companies should do in the COVID-19 era.

In a recent webinar presented by MinuteMen, experts explored what companies should consider doing temporarily and permanently to maintain positive employer practices in the age of coronavirus.

Topics covered include:
Current best practices if a non-critical infrastructure employee gets COVID-19 
Legal requirements with the pandemic 
Policies and practices you may want consider to be temporary or to “stay in place”

Watch the full recording below:

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  • Next up: What Does the Healthcare Talk Mean for You?
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  • What Does the Healthcare Talk Mean for You?

    Current health care "talk" still doesn't mean anything to you and your current plan, at least for the moment.

    With all the activity on health care legislation this week, we've received quite a few calls asking about what it means for small business owners.  The answer in a word (or two) is "Nothing (yet)."

    We keep pretty close tabs on what's going on here and COSE members and staff were actually in DC last week to talk about health care and tax reform with our elected officials.  In engaging with staffers of members that are involved in the discussions, it was apparent that even they and their bosses were being kept in the dark on all the details.

    We can't tell you what the prospects of passage are this week, but even if something passes, it will need to be reconciled with the House Bill and that won't be a pretty process.

    It's pretty likely that effective dates for all of the changes that could be made won't take effect for years -- and like the implementation of the ACA it could all change in the process of implementing whatever passes.

    So, what to do as a small business owner?  As they say, "Keep Calm and Carry On."  If you are in a grandfathered plan, nothing has changed for you.  If you are in a grandmothered or "transitional" plan, those will continue to be available to you through December 2018, allowing you to stay where you are without being disrupted by the nonsense.  You may recall those have now been extended three times since the implementation of ACA in 2014.  If you are on the individual exchange--with or without a subsidy--you may be the most impacted by the changes that have happened and that are possible with new legislation.  But, again, nothing has happened yet and any action will likely be phased in over time.

    One option, no matter what your situation, is to look at experienced based options like COSE's Health and Wellness Trust (aka COSE MEWA).  There are other self-insured MEWAs like the COSE MEWA out there as well.  These plans get back to underwriting your real experience, avoid some of the costs and rules of the ACA and are viable options -- especially if you have average to decent medical experience.  The plan has grown a lot since we introduced it late last year and is a great option if you are looking for something stable that isn't as sensitive to the daily conversation of congress.  You can learn more at COSEMEWA.ORG....and if you have specific questions, feel free to get in touch directly...it's a big part of what we do every day for you and we are happy to answer your questions.

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  • Next up: Cover Your 6 in 2020: What Every Business Owner Should Do Before December 31
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  • Cover Your 6 in 2020: What Every Business Owner Should Do Before December 31

    One of the most important things you can do in the New Year is to buy a legal audit. Be proactive, not reactive, with these tips on protecting your business from lawsuits.

     

    What’s one thing you must do for your small business before the end of the year? The short answer is: Buy a legal audit. Buy it now; perform it in 2020. The ROI is better than anything you’ll find on Wall Street. Here’s why.

    Lawsuits suck

    I’ve been representing businesses in litigation for 18 years. I love it. I love the battle. The chess moves. The psychology. The theater. The winning. (The losing not so much). Litigation is why I went to law school. To compete. To be a gladiator. To attack the bad guys and defend the good guys.

    You know who hates litigation? Our clients. Even when we win, they lose. Even when we knock it out of the park and do everything right, they’ve still spent months and years in courtrooms and conference rooms, giving testimony, getting prepped, giving information, producing documents, reviewing documents, explaining documents.

    And that’s just the time suck. Then there’s the expense: $300 - $500 per hour, which adds up really quickly. A lawsuit will cost our clients anywhere from $50k to $500k through trial.

    Then there’s the stress. My job is to stress out the other side and their job is to stress out my side. The lawyers don’t get stressed, of course. This is what we do for a living. No. It’s our clients who get all the stress.  Everything’s public and court filings can say nearly anything without regard to the actual truth, so long as there’s some basis for saying it. So when our clients are accused of malice and fraud and theft and a whole parade of horribles, they just have to sit there and take it. And they have to take it to the office and to their homes, totally distracted while they’re talking to their employees and their investors and their families, explaining to all of them why the court filings are full of crap.

    And yet, it’s often so avoidable.

    Waiting to react means you’re a sitting duck

    I believe that for hundreds of years, most lawyers have been hired the same way—reactively.  Clients don’t want their lawyers starting the clock when the phone call starts so they don’t call them in the first place. They wait until the summons comes in the mail telling them they’ve been sued. They wait for the cease and desist letter telling them their business is engaged in some kind of infringement. Then and only then do they make that panicked phone call to their lawyer. “I’m in trouble,” they say. “I need you to get me out of this. How much is it going to cost me?”

    By then it’s too late. They’re already in it. And they’re feeling vulnerable and embarrassed and pressured. They’re unlikely to shop around. They just want the one lawyer they know to make the problem go away. The lawyer tells them how much it’ll cost and the client writes the check. They’ve already lost. They’re in the litigation casino. They’re feeling the pain and they’re going to be feeling it for a while.

    In my 18 years of practice a couple of things have become clear to me: First, most business lawsuits I’ve litigated could have been prevented if my client had been proactive instead of reactive. Second, they would have spent a fraction of the cost of one lawsuit by being proactive. And third, all they had to do was ask their lawyers some basic questions.

    Three key questions

    Scoping, quoting and starting the legal audit comes down to three questions. These are the questions you need to ask your lawyer right now:

    1. Who can sue me?
    2. For what?
    3. What can I do about it?

    That’s it. Three questions. That’s your starting point for the discussion I want you to have with your lawyer about a legal audit in 2020. Here’s how the rest of the discussion should go.

    Who can sue me?

    The universe of plaintiffs is small. In my entire career, handling hundreds if not thousands of lawsuits, I’ve only found six primary categories: Customers, vendors, owners, competitors, employees and the government. That’s it.

    For what?

    The shortest answer is “anything.” Anyone with $250 can file a lawsuit. But the question isn’t “how can I prevent every lawsuit?” That’s impossible. The better question is how can I avoid (a) predictable lawsuits which I’m either (b) going to lose or (c) spend a ton of time and money trying to win? That question can be answered.

    Ask your business lawyer that question, and ask her to break the answer down into the six categories of potential plaintiffs from two paragraphs ago.

    Likely to sue group no. 1: Customers. What are my customers (or invitees) likely to sue me for? Breach of contract, injury from using my products, violating consumer laws, false advertising.

    Likely to sue group no. 2: Vendors. What are my vendors likely to sue me for? Breach of contract, primarily.

    Likely to sue group no. 3: Employees. What are my employees likely to sue me for? Discrimination, violating the Family Medical Leave Act, the Fair Labor Standards Act, safety rules, a handful of other laws.

    Likely to sue group no. 4: Competitors. What are my competitors likely to sue me for? Unfair competition, trademark/patent/copyright infringement, stealing trade secrets, violating non-compete agreements with their former employees.

    Likely to sue group no. 5: Partners and investors. What are my partners and investors likely to sue me for? Violating our partnership agreement, securities laws or state corporation laws.

    Likely to sue group no. 6: Government. What is the government likely to sue me for that isn’t already covered by one of the above? False Claims Act violations by government contractors, Fair Credit Reporting Act enforcement in the Consumer Financial Protection Bureau, FTC Act violations for false advertising, violations of the Americans with Disabilities Act for commercial websites, among others. The biggest ones, though, are failing to register in states where you transact business and failing to pay taxes correctly. Last year the IRS assessed almost $23.3 billion in just civil penalties to taxpayers, the majority of which were assessed against entities.

    The above list isn’t exclusive, and will depend on your particular industry and locations and products, but I believe that much of the low-hanging fruit is listed, subject to further discussion with your lawyer.

    What can I do about it?

    If you know who’s likely to sue you and for what, then you have a roadmap for addressing your issues and avoiding a whole lot of pain. Put simply, each of the above likely plaintiffs has a likely claim, and each likely claim has legal requirements. Your conversation with your lawyer should lead to a discussion of what you’re doing that violates those legal requirements, how to do business without violating them, and what you can do to mitigate your risks.

    That’s the audit.

    Thus, your lawyers should review your hiring and firing practices, your employee handbooks, your customer contracts, your payroll practices and employee classification, your partnership agreements, your sales tax collection and payment practices, among other things. They should be interviewing you and your managers, requesting documents from you and reviewing legal checklists. They should be suing you virtually, confidentially, before the government or a plaintiff’s lawyer sues you in public, for stakes. They should be giving you a report card and then giving you a set of recommendations to plug up your legal minefields.

    They should be adding dispute resolution clauses into all of your documents—your customer agreements, your partnership agreements, your employment agreements. Well-crafted, enforceable provisions (they’re not always enforceable so they have to be drafted correctly and in the right contexts) that create waterfall requirements like written notice of claims, an opportunity to cure, a face-to-face meeting, a mediation, and then an arbitration or a courtroom in your hometown, not in the other side’s choice of venue.

    In the end, your lawyer should identify, discuss, recommend and then repair. And she should do it now, not after the government, a disgruntled employee or one of other six types of plaintiffs brings it up in a legal document.

    How much will this cost?

    Before the conversation gets to the “let’s do this” stage, you’ll ask what every client asks: What’s this going to cost me? The answer should conform to your budget, but will be commensurate with your business, its size in customers and employees, its number of locations, its products and services, its industry and regulatory landscape. Ultimately, you should be prepared to spend up to $10,000 for a small company to simply re-draft of your key documents, or up to $100,000 for a complete legal audit of a dynamic, mature middle-market company with multiple locations and hundreds of employees.

    But you know what? It’s worth it. First, hiring an in-house counsel will cost twice that. Second, and more importantly, you’re paying for it already.

    You’re paying for it by being reactive. When that summons comes in the mail, when the feds come knocking on the door, when the cease-and-desist letter is FedEx’d to you, when you walk into the litigation casino and you start rolling the dice, your money and your time and your serenity are going to start flying.

    Cover Your Six in 2020

    Hopefully this article equips you and your lawyer with a framework for putting your legal house in order in 2020. If not, though, call us, or go to www.covermysix.com to read more.

    This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or to provide legal advice on which you should rely without talking to your own retained attorney first.  If you have questions about your particular legal situation, you should contact a legal professional.

    Alex Gertsburg is the CEO and Founder of the Gertsburg Law Firm Co., LPA. He can be reached by email at ag@gertsburglaw.com or by phone at 440-571-7775.

    About The Gertsburg Law Firm

    The Gertsburg Law Firm is changing the character of the attorney-client relationship in business from a cost-center to a trusted advisor. Drawing from their complex litigation and transactional experiences as members of large law firms, in-house counsel and as business owners themselves, the Gertsburg Law Firm’s award-winning attorneys provide clients the benefit of business lawyers with real-life business experience in a wide variety of industries. This dynamic results in a comprehensive and innovative approach to business law that is proactive and consultative, ultimately saving clients money in fees and exposure before issues arise. Located in Chagrin Falls, Ohio, the Gertsburg team of lawyers and support staff leverages its knowledge, broad experience and steadfast dedication to both solving and avoiding clients’ business problems, and helping them actually grow their businesses in a way that no other law firm does.

     

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  • Next up: What to Know About New OSHA Rules
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  • What to Know About New OSHA Rules

    Hopefully, you heard the news OSHA issued a final rule on Walking-Working Surfaces and Personal Fall Protection Systems that was effective Jan. 17, 2017. The final rule includes revised and new information that addresses everything from fixed ladders and fall protection systems to training and design requirements.

    Hopefully, you heard the news OSHA issued a final rule on Walking-Working Surfaces and Personal Fall Protection Systems that was effective Jan. 17, 2017. The final rule includes revised and new information that addresses everything from fixed ladders and fall protection systems to training and design requirements. The supporting materials in the rule also references more than a dozen industry standards, from Safety Requirements for Workplace Walking/Working Surfaces and Their Access to Safety Requirements for Personal Fall Arrest Systems. If an organization has fall-related hazards and exposures it would be prudent to have a fall protection management program in effect. The rule, by itself, doesn't require all employers to have a written fall protection program, unless doing residential roofing (non-construction) where use of fall protection is infeasible. It is also important to note the revised rule gives employers flexibility to use personal fall protection systems (personal fall arrest, travel restraint, and work positioning systems) in lieu of guardrail systems. This addresses performance-related practices, so an assessment would be important to utilize and is consistent with existing requirements for written hazard assessments for selection of necessary PPE.

    Under new rules, employers must set up the workplace to prevent employees from falling off overhead platforms, elevated work stations or into holes in the floor and walls. Employers will also have to inspect working and walking surfaces for conditions that could create hazards, including snow, ice, water, blood, uneven flooring, and exercise good housekeeping to identify and correct conditions such as protruding objects or cables across walkways that could trip or otherwise injure workers.  

    As a baseline, OSHA expects employers to: 

    • Inspect and provide working conditions that are free of known fall dangers.
    • Keep floors in work areas in a clean and, so far as possible, a dry condition.
    • Select and provide needed personal protective equipment at no cost to workers.
    • Utilize guardrail or other effective barrier systems to engineer out fall hazards where possible, but otherwise effectively use Personal Fall Arrest Systems (PFAs), train workers on use of PPE, maintain and inspect equipment.
    • Provide appropriate ladders or other aerial work platforms and scissor lifts to allow workers to safely access work areas (and train them on the use of this equipment).
    • Train workers generally about fall hazards and PPE use in a language they can understand

    Here are 10 specific items that changed in the standard.

    1)    Training required for exposed workers or equipment users by May 2017.  This includes general for exposure, roof, equipment, and key individuals (authorized, competent, and qualified persons).

    2)    Equipment requirements included changes to the test weights of snap hooks and carabineers, and requirements for self-retractable lanyards, including deceleration distances.

    3)    Changed safe distance to roof edges as well as defining temporary and infrequent tasks on roofs.

    4)    Modified ladders and stairs requirements starting in 2018 and required safety systems on all ladders by 2036. This includes requirements for spiral stairs and ships ladders.

    5)    Guardrails are now aligned with construction industry and codified 19 inch opening requirements.

    6)    Requires written certification of the workplace assessment to determine if hazards are present.

    7)    Rope descent systems must comply with 1910.27(b)(1)(i).

    8)    Documentation requirements include assessments, training, anchors, and walking working surface load rating.

    9)    Updated definitions of competent and qualified person in subpart D and I. 

    10) Important compliance dates for employee training May 17, 2017, certification of anchorages on Nov. 20, 2017, existing fixed ladders need cage well, ladder safety system or PFAs Nov. 19, 2018, new ladders with ladder safety system by Nov. 19, 2018, and all fixed ladders must be equipped with a ladder safety system or PFAS by Nov. 18, 2016.

    Employers should ensure compliance, safety, and risk management in all tasks.  With this in mind, OSHA estimates these changes will prevent 29 fatalities and 5,842 lost-workday injuries every year.  

    OSHA aligned fall protection requirements for general industry with those for construction, easing compliance for employers who perform both types of activities. For example, the final rule replaces the outdated general industry scaffold standards with a requirement that employers comply with OSHA's construction scaffold standards.  OSHA has created a frequently asked questions guide for the standard.

    We hope this article is helpful and feel free to contact us with questions regarding implementation of the standard. 

    Learn more about COSE’s Workers’ Compensation program

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  • Next up: What To Know When You Exit Your Business
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  • What To Know When You Exit Your Business

    If you're a business owner, you know there is going to come a day when you will step away from your business. During COSE's recent Small Business Convention, James Aussem, a shareholder at the law firm of Cavitch, Familio & Durkin, laid out three things business owners should know before they exit their business.

    If you're a business owner, you know there is going to come a day when you will step away from your business. At COSE's recent Small Business Convention, James Aussem, a shareholder at the law firm of Cavitch, Familio & Durkin, laid out three things business owners should know before they exit their business.  

    1. Anticipate your needs

    Retirement can be costly. To keep up with your current lifestyle, you're going to have to know how much you're going to need in terms of such things as living expenses, health insurance, and more. If you're selling your company, you're going to need to make sure you get enough from the sale to help provide a comfortable retirement.

    2. Business needs

    It's important to understand what the needs of the business are. Some considerations to keep in mind are:

    • capital requirements;
    • taxes; and
    • expansion of the successor generation's income. 

    3. The next generation

    If the owner intends to sell to the next generation, he or she needs to understand several things first. For example, there are tax risks involved with bargain transactions between family members. The Internal Revenue Service presumes all transactions among related parties have a gift element, for example.

    Want to know more about exit strategies? Keep an eye out in January for COSE's refreshed magazine for small business owners which will include an in-depth feature on what entrepreneurs need to know when it comes to exit strategies. 

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  • Next up: What You Learn from A Restaurant that Hires Only the Formerly Incarcerated
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  • What You Learn from A Restaurant that Hires Only the Formerly Incarcerated

    Brandon Chrostowski knows a thing or two about what it means to hire for potential.

    Brandon Chrostowski knows a thing or two about what it means to hire for potential.

    The founder and CEO of EDWINS Leadership & Restaurant Institute in Cleveland started EDWINS, a restaurant staffed entirely by people who spent time incarcerated. At any given time, there are 40 people enrolled in the program with a new class beginning and ending every two months. The restaurant provides job training, life training and perhaps most importantly, a second chance to its staff. 

    “There’s so much potential in this town,” Chrostowski says. “There’s so much depth. There are so many people willing to work. There’s just no system in place to facilitate this.”

    EDWINS provides such a system for some, though with every one of his employees having previously been imprisoned, he acknowledges it’s important that he keep a keen eye for hiring. So, what are some of the key things he is looking for?

    “Someone who wants it,” he says. “A desire.”

    Chrostowski continues: “I run them through the mill. It’s a test to see who has a winning attitude. I want to see if in the first three weeks they’re not getting up early; they’re not improving. They have to show improvement. We can train anyone with a ‘I can, I will’ attitude.”

    Needless to say, Chrostowski is a big believer in second chances. “If you believe in human will and fair and equal opportunities for everyone and put all of that together, it should all come together. It’s obvious it should,” he says.

    Given his experience at EDWINS, what’s Chrostowski’s advice to his fellow entrepreneurs? Be vigilant about everything that is going on in your business and be aggressive about getting things taken care of.

    “When you see a problem, fix a problem,” he advises. “There’s no reason why you should wait or the problem should wait. If you don’t address it, you’ll have a bigger one.”

    In addition to the Feb. 7 event, learn about additional COSE events that will provide you with the resources you need to grow your business.

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