Publications Archive

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. 

On April 10, 2020, HHS announced that it will begin immediately delivering an initial $30B from the Fund as rapid relief distributions to health care providers that are currently enrolled in Medicare. These distributions are considered payments, not loans, and do not need to be repaid (subject to certain terms and conditions).

As we adapt to the ongoing challenges posed by COVID-19, we hope you and your families are safe and healthy. The current public health crisis raises the issue of how prepared each of us is for an emergency. It also highlights the importance of having the proper legal documents in place to manage your assets during incapacity, direct who receives your property when you pass away, and set forth your wishes for your medical care.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) which, among other things, provides additional unemployment benefits to employees who have been affected by the COVID-19 virus.

This article addresses some of the common questions on the new $350 billion SBA loan program (the “Paycheck Protection Program”) included in the CARES Act. 

The outbreak of the novel Coronavirus known as COVID-19 has had a profound impact on nearly all businesses worldwide. Businesses are trying to identify and address a variety of internal and external challenges posed by the spread of COVID-19.

On March 27, 2020, the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) was signed into law. The CARES Act is the third piece of Federal legislation designed to respond to the COVID-19 outbreak caused by the novel coronavirus.

This article provides an overview of especially pertinent points in the DOL’s latest guidance. As a reminder, the Paid Sick Leave and Emergency FMLA Leave becomes effective April 1, 2020.

The IRS is halting some collection and audit activities until July 15 as the coronavirus pandemic spreads. The IRS has already taken some steps to ease enforcement, including suspending most notices and all levies issued by the automated collection system (ACS).

The U.S. Department of Labor recently published their model notice for employers, pursuant to the Families First Coronavirus Response Act (FFCRA). According to the DOL, notice of the FFCRA's requirements must be posted, in a conspicuous place on it premises, by each covered employer by April 1, 2020.  

The Families First Coronavirus Response Act provides two new refundable payroll tax credits for covered employers to help reimburse them for providing leave to their employees. On March 20, 2020, the U.S. Treasury Department, Internal Revenue Service, and U.S. Department of Labor announced plans to implement Coronavirus-related paid leave for workers and tax credits for covered employers to recover the cost of providing Coronavirus-related leave.

This update includes information on the CMS Extension of MIPS, MSSP, and other Quality Reporting Programs deadlines and waiver of penalties by the DHHS Office for Civil Rights  for HIPAA violations in connection with telehealth. 

This article discusses the impact of COVID-19 on loan and credit agreements and discusses the provisions in your loan documents that should be reviewed to determine if a borrower’s access to credit could be limited by the the COVID-19 crisis. Also included is a a brief overview of the current governmental response to COVID-19 as it specifically pertains to matters related to finance. 

Telecommuting—also known as working from home, working remotely, or telework—is a work arrangement in which the employee works outside of the office. With the COVID-19 outbreak spreading across the United States and a number of states issuing “stay home” or “shelter in place” orders, many employers have effectively been forced to transition to temporary telecommuting arrangements with their workforce in order to continue operations. 

President Trump signed the Families First Coronavirus Response Act (“HR 6201”) into law on March 18, 2020. Accordingly, Covered Employers (those with fewer than 500 employees) will be responsible for providing employees additional FMLA leave and paid sick leave beginning April 2, 2020. Related questions also answered here.

The ongoing spread of the COVID-19 coronavirus is continuing to cause hardship and concern for many employees and employers as organizations work to mitigate the damage the virus is causing to their workplace and business. In an effort to reduce the burden on employees and employers, Governor Ricketts signed Executive Order No. 20-04, Corona Virus – Emergency Unemployment Insurance Benefit Relief, on March 17, 2020.

There are many business issues to consider surrounding COVID-19 Coronavirus outside of the general employment issues that arise. We have put together a list of top 10 non-employment related things a business should do.

On March 14, 2020, the U.S. House of Representatives passed the Families First Coronavirus Response Act (“HR 6201”). HR 6201, expected to be approved and signed into law, currently awaits Senate approval.

In order to achieve social distancing during the COVID-19 coronavirus outbreak, millions of employees in the United States are either already working from home, or businesses are sprinting to prepare for their employees to work remotely. As everyone settles in for what could be weeks or months of remote work, it is important to ensure that companies, and their workers, are aware of heightened cybersecurity risks facing them and follow best practices when it comes to keeping company systems and data secure.

The spread of the COVID-19 coronavirus in recent weeks has caused growing concerns for many individuals and employers as organizations prepare to manage their operations in the event the virus impacts the workforce. Koley Jessen has been in regular contact with our clients to address the many issues facing employers and workers in the current climate. 

If you fear you may have been the victim of email hacking, here are some tips and best practices we recommend to follow in order to prevent further exposure.

For the past twenty-five years, businesses seeking to protect marks used in the United Kingdom (UK), that is, England, Scotland, Wales, and Northern Ireland, have had a choice for protecting their trademarks. They could either register at the UK Intellectual Property Office or protect the mark through a European Community Trademark (EUTM) registration. Because the latter provided even broader coverage, including the UK and extending into the European Economic Area, many clients had opted to use the EUTM registration route.

On January 28, 2020, the Federal Trade Commission (“FTC”) announced the annual changes to the Hart-Scott-Rodino Antitrust Improvement Act of 1976 (the “HSR Act”) pre-merger notification thresholds (see attached Federal Register publication). The revised thresholds will become effective February 27, 2020.

The SECURE Act includes many provisions intended to help Americans save more for retirement. In this article, Lisa Lehan highlights changes made and the importance of reviewing beneficiary designations in light of the SECURE Act’s changes.

Debtors sign their federal tax returns digitally all the time. The Internal Revenue Service (IRS) allows digital signing, without reservation; the Department of Justice (DOJ) prosecutes digital signers for cheating on tax returns, without a problem; and the DOJ gets convictions against digitally signing taxpayers, frequently. So, why can’t debtors digitally sign their bankruptcy petitions and schedules, too?

There are significant changes in store for the H-1B nonimmigrant visa process for this year’s cap-subject petitions that are to be filed in the coming months. On January 9, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) issued its long-awaited final guidance on the H-1B nonimmigrant visa registration process for cap-subject petitions.

Construction liens, sometimes called mechanic’s liens, are useful tools to secure payment for unpaid services and materials under a contract to improve real estate. In this article, get answers to 10 questions addressing the basics of Iowa law governing construction liens.

If it has been a while since you’ve reviewed your estate plan, use this list to help you determine if your plan needs any updates. If you do not yet have your estate plan in place, review this list to help you think through some key decisions before meeting with your lawyer.

With the new year quickly approaching, it is a great time for employers to revisit handbooks, policies and procedures to ensure they remain in compliance with constantly changing employment laws. Each year, federal and state governments ring in the new year by rolling out new laws. This year is no different – on January 1, 2020, dozens of new employment laws impacting employers took effect in various states. 

Among the tools a contractor should have in their toolbox is the Spearin Doctrine, derived from the 1918 Supreme Court case, United States v. Spearin. This particular tool, when properly used, protects contractors from liability for damages resulting from faulty plans and specifications provided by project owners or engineers.

Upon a shareholder's death, an S Corporation's assets do not receive a basis step-up - and unfortunately, Subchapter S does not contain a provision similar to §754, which provides entities taxed as partnerships with the ability to adjust the basis of its assets when a partner’s interest is sold or when a partner dies. In certain situations, however, there may be an opportunity to obtain a tax-free basis adjustment for the assets held by an S corporation.

President Donald Trump recently signed into law several bankruptcy law changes, one of which was the Small Business Reorganization Act. In this article, Don Swanson answers commonly asked questions on the SBRA.

On October 23, 2019, in response to Executive Order 13847, the Department of Labor proposed new regulations for the electronic disclosure of pension plan documents. The proposal creates a new safe harbor for electronic disclosures that can be made in addition to, or in lieu of, the 2002 safe harbor.

On October 13, 2019, California Governor Gavin Newsom signed California Assembly Bill 51 into law, which bans employers from requiring applicants and employees to enter into mandatory arbitration agreements governing disputes that arise under the California Fair Employment and Housing Act ("FEHA") or the California Labor Code.

The Fair Labor Standards Act requires that most U.S. employees be paid at not less than time and one-half their regular rate of pay for all hours worked over 40 hours in a workweek, unless the employee qualifies for an exemption. On September 24, 2019, the Department of Labor ("DOL") announced changes to the "white-collar" employee exemption and the "highly compensated" employee exemption. The following outlines the changes set to go into effect January 1, 2020.

Construction liens, sometimes called mechanic’s liens, are useful tools to secure payment for unpaid services and materials under a contract to improve real estate in Nebraska. What do you need to know to utilize this tool?

In March 2019, the IRS announced that the ruling program for section 355 distributions created under Rev. Proc. 2017-52 has been extended indefinitely. While taxpayers and practitioners were previously hesitant to implement a section 355 distribution in the absence of a favorable IRS ruling, now taxpayers can obtain a transactional ruling and confidently implement a section 355 distribution

Over the last several years, the demand for H-2B nonimmigrant visas has exponentially increased. Because of the intense competition for H-2B visas, the technology and available staff resources of the U.S. Department of Labor (“DOL”) have been challenged to handle the increasingly large volume of H-2B applications filed on January 1 of each year. As a result of stakeholder comments and the most recent filing period in which the iCERT electronic filing system experienced a service disruption due to the large volume of system user requests, the DOL’s Office of Foreign Labor Certification (“OFLC”) has announced several new procedures that employers should be aware of if seeking to use the H-2B program during the Fiscal Year 2020 H-2B season.