Attn. Louisville Landlords, New Registration Requirement

The Louisville Metro Council passed an ordinance last year that requires all rental properties to be registered with the city by March 1st of this year.  Similar requirements exist in Indianapolis, Austin, Memphis and Pittsburgh.

Registration requires an account with Develop Louisville and owners must provide the rental unit's street address along with current contact information of the owner and managing operator. If property is transferred, new owners must register with 30 days of obtaining ownership. 

Here is an easy to follow registration guide and more information about the registry

Injunction Stalls Overtime Rule: 42 Million Hurry Up & Wait

By: Rachel Dickey & Darryl Durham 

As most Louisville businesses are aware by now, the Department of Labor added a new rule to the Fair Labor Standards Act, doubling the salary threshold for overtime pay from $23,660 to $47,476. Under the proposed rule, employees who are paid $47,476 or less must be paid time and a half for any overtime, unless they come within a special exception to the rule.  That gives employers a couple of options: 1) pay time and half for overtime hours; 2) raise the employee’s pay to an amount over the threshold to avoid paying overtime; 3) limit the employee’s hours to 40 hours per week; or 5) some combination of the above.

This proposed change, which was to go into effect December 1, 2016, impacts over 4.2 million employees across the United States.  

However, the rule was recently challenged in State of Nevada et al v. U.S. Department of Labor, and an emergency preliminary injunction was granted in the case on November 22, 2016, by Judge Amos Mazzant of the Eastern District of Texas.

This injunction hits the pause button on the rule's roll out in all fifty states, even those who were not among the 21 states who joined as plaintiffs.  The Department of Labor’s website indicates that they “strongly disagree with the decision by the court” and insist that the “Overtime Final Rule is the result of a comprehensive, inclusive rule making process.” 

On December 1st, the Department of Justice, on behalf of the Department of Labor, filed a notice to appeal the preliminary injunction and made a motion to expedite the appeal, which was granted.    

For now, employers and employees across Kentucky can well… hurry up and wait.  However, your Louisville business should still be putting a plan in place, should the injunction be lifted.  

Don't let your employees text and drive!

By: Rachel Dickey 

Insurance companies have been paying attention to the accident statistics involving cell phone use.  As a business owner, you can expect for your carrier to start asking if you have a transportation policy in place that covers cell phone use by employees while driving.  This doesn’t just apply to large corporate businesses. Even small businesses should have these policies in place if their employees are driving on the job.

Why do insurance companies care? Because of the increased risk for liability.  There is a 1 in 4 probability that a motor vehicle crash will involve a cell phone and  341,000 accidents involved texting in 2013. 

While every business is different and may require customized policies to reasonably fit their needs, as a business owner or manager, you should make sure that your cell phone driving policy (or broader transportation policy that includes the company policy on cell phone use while driving) is formalized and signed by your employees.  This policy should extend to any employees that drive during the work day, even if they are using their own car and cell phone to perform company business.   

In general, the safest approach is to ban the use of cellphones while driving all together. This includes texting, emailing, using apps, and talking on the phone via a hands free device.  The business’s policy should be included in new hire orientation, sent out regularly via email to employees as a reminder, and should be posted in high traffic employee areas.

Weber Rose Attorney Spotlight: Brittany Griffin Smith

Brittany Griffin Smith joined the firm in the Fall of 2014.  In addition to her J.D., she also has a M.A. in Communications with an emphasis in Media Law and Public Policy.  It was her love for the media that ultimately made her decide to go to law school.  Working in media, she saw the pervasive impact the law had and enjoyed observing how important media related policy issues were decided in the courtroom.  Ultimately, she knew she wanted to be a part of that process and she set her eyes on becoming a litigator.  Brittany now practices litigation and media law. 

Brittany also just had a baby!  So when she isn’t practicing law she is busy being a new mom.  Her favorite things are making her baby smile, taking his picture, and anxiously awaiting the many milestone moments that are to come.  

Employee or Independent Contractor? 10 things to consider

By: Rachel Dickey 

For many Louisville, Kentucky entrepreneurs and business owners, the cost of hiring an employee is daunting and many decide to simply bring on independent contractors.  Sure, it’s nice not paying employment taxes, supplying health insurance, workers compensation benefits etc., but the fact of the matter is, calling a worker an independent contract doesn’t make them an independent contractor.  It is the nature of the relationship, not the label that matters. 

A Wage and Hour Division Investigation in 2015 resulted in more than 74 million dollars in back wages for more than 102,000 employees, who were primarily in low income jobs.  They found that many  businesses intentionally mislabeled their employees as independent contractors to reduce costs and in turn deprived workers of their rights as employees, including their right to a fair wage. Given the misclassification epidemic, proper classification is all the more important as government agencies crack down.

Unfortunately, there is no clear line that determines when a worker should be classified as an employee or independent contractor and each situation must be looked at on a case by case basis.  Generally speaking, the more control the company has over the worker, the more likely the I.R.S. will treat them as an employee. (Here is some guidance from the I.R.S.).

Below are ten questions to serve as a starting point. The more "yes" answers, the more likely a worker will be considered an employee by the I.R.S. However, as previously mentioned, this determination is made on a case by case basis and speaking with an attorney can help you weigh the various factors to determine the appropriate designation.

1.     Does the company control the day to day activities of the worker (e.g. you must   arrive by 9 and stay until 5)?

2.     Does the company provide the worker’s equipment and supplies?

3.     Does the company provide training on job specifics and expectations?

4.     Is the worker paid on a set schedule (e.g. via biweekly payroll)?

5.     Does the worker work solely for the company and have no other clients?

6.     Is the company in charge of hiring individuals to work with or to help the worker perform their job?

7.     Does the company reimburse all of the worker’s expenses?

8.     Does the company, rather than the individual worker, stand to suffer the loss of the worker’s non-performance?

9.     Does the company treat other workers doing similar activities as employees rather than independent contractors?

10.   Is the work performed by the worker an integral part of the company’s business?

If you are an independent contractor and you want to learn more about the self employment tax, visit this link.

Weber Rose Attorney Spotlight: Brittany Bailey McKenna

Brittany joined Weber Rose as an associate in the Spring of 2016.  Prior to joining the firm, Brittany was staff attorney to the Honorable Justice Lisabeth T. Hughes of the Kentucky Supreme Court.  Brittany is very active in the Louisville Community and currently sits on the board of directors for YouthBuild Louisville, an organization that helps young people rebuild their communities and their lives. 

When she isn't working as a business attorney and litigator, she spends most of her time with her husband and two daughters.  Her oldest daughter, Savannah is 5 years old and her younger daughter Harper is 2 years old. They are avid zoogoers and major park enthusiasts.

You can also find Brittany teaching classes at The Barre Code Louisville, practicing yoga, or searching for her next favorite podcast.  

You can learn more about Brittany by visiting her bio page

Real Estate Law Practice Tips

Tips from Jim Lobb
An Excerpt from BAR briefs MAGAZINE

Shareholder James T. Lobb (better known as Jim), was recently named Best Lawyers'® 2017 Louisville Real Estate "Lawyer of the Year."   Jim recently contributed real estate practice tips for the Louisville Bar Association's October 2016 BARbriefs Magazine.  In case you missed it, here is the excerpt:

Urge your client to let you review all surveyor and environmental consultant work contracts before your client signs them.

Most consultant work contracts limit the consultant's malpractice liability to the lessor of (i) a small, arbitrarily determined dollar amount or (ii) the amount that your client actually pays the consultant for the work. 

Reputable consultants should carry errors and omissions insurance.  If they don't, then your client shouldn't use them.  If they do, they should be willing to increase their potential malpractice liability to the lessor of (i) the actual harm caused by their negligent acts or (ii) the full amount of their errors and omissions policy (or at least a much higher, arbitrarily determined dollar amount).  Most consultants will make this change to their work contract if you ask.  If they won't, again, your client shouldn't use them.

Make sure the contract requires the consultant to give third-party reliance letters at a reasonable rate.

And make sure your client owns or has a license in the work product that requires the consultant to produce the most current completed version of its work product, and allows the client to use that version of the work product to finish the job, if the consultant and the client have a falling out.