Washington, D.C. – U.S. News & World Report and Best Lawyers, for the 10th consecutive year, collaboratively announce the release of the “Best Law Firms” rankings. This is the second time in less than two years that the Kim & Lahey Law Firm has been recognized for this honor.
by Kim, Lahey & Killough Law FirmDoug Kim Shares Legal Strategies for Entrepreneurs
The pandemic has forced many changes in the business world, from closings and layoffs for some, to successful pivots for others. One surprising outcome is the surge of new startups in America, which had increased by almost 50% for the year by October.
To celebrate this renaissance, i4Series is hosting a free online event as part of Global Entrepreneurship Week on November 19 from 11am – 12pm. Whether you’re a startup or looking to scale your business, join us to learn about software and legal strategies that put you on a path to success.
Doug Kim has been supporting the entrepreneurship community for more than 20 years, helping innovative businesses of all sizes thrive. Now, more than ever, during this time of rapid innovation and uncertainty, entrepreneurs need legal strategies that empower them to succeed, strategies like protecting inventions and your brand, protecting your work from being copied, and using contracts to safeguard your interests to name a few.
He is joined by fellow speaker, Zac Muma, a Business Solutions Specialist for Microsoft. Zac works with entrepreneurs to identify what they need in their software stack and helps them get set up. With so many apps available, it’s hard to know which ones you may need and how they work together. Whether you’re B2B, eCommerce or offer professional services, Zac will show you ways to streamline operations and get new clients.
by Kim, Lahey & Killough Law FirmAre Your Non-competes Null & Void?
Why You Should Re-examine Employment Contracts Post COVID-19.
If you had to lay off employees during the global shutdown, there is more than safety to consider as you begin to reopen. Your re-hired employees may need to sign new employment contracts, or you risk not being able to enforce the restrictive covenants employees agreed to when they were first hired.
Earlier this month, pharmaceutical company Novo Nordisk Inc. was prevented from enforcing a confidentiality and noncompete agreement it had with an employee who was briefly laid off and then rehired before leaving to work for another pharmaceutical company.
Novo Nordisk sought to enforce the agreement that prohibited the employee from working for a competitor for a year after the end of his employment. The employee was laid off in 2018 and rehired a few days later but was not asked to sign a new agreement upon his return.
Was there a break in employment?
The court said for the employee to continue to be bound to not compete beyond 2019, “Novo Nordisk would have needed to ensure there was no break in employment.” It relied on the unambiguous language of two documents:
- The termination letter stated his employment “ended effective August 3, 2018.”
- The rehire letter offered him a “new position” “effective August 6, 2018.”
The court determined there was a clear break in employment. As such, the employee was no longer bound by the “old” terms of his “previous” employment. Download full findings: Russomano v. Novo Nordisk Inc., 1st Cir., No. 20-1173, 6/2/20.
What to do next.
We want our clients to be aware of the potential pitfalls involved when there’s a break in employment, even when it’s only for a few days. What constitutes a break in employment will depend on the facts of each case, especially the language used in the documents at issue. You will most likely need to re-execute new agreements when employees return to work.
Need our help?
Casey Martens offers services in state and federal employment law, drafting and enforcement of contracts, business disputes involving interference with client relations, defamation, collections and enforcement of non-compete agreements. You can reach her at cmartens@kimandlahey.com.
by Kim, Lahey & Killough Law Firm“Risky Business” in the COVID-19 Reopening Era
As businesses begin to open their doors again, there are many questions, including legal liability risks, that come with reopening in light of COVID-19. As of May 22, a large national firm has identified nearly 2,300 COVID-19 related claims, a clear sign this risk is not “hypothetical.”
So far, we have general guidelines from the federal government, but the states have been tasked with the final decision on reopening requirements and regulations, which makes it difficult because they will vary state-by-state.
In South Carolina, most restaurants, gyms, salons, and other close-contact businesses were allowed to reopen last week, but were given eight pages of suggested guidelines. In contrast, North Carolina allowed restaurants and personal care services, like hair salons, to reopen, but has provided a lengthy list of businesses that must remain closed, like bars, nightclubs, indoor fitness facilities, public playgrounds and indoor entertainment facilities, like movie theaters and bowling.
Further, NC requires that customer occupancy be limited to 50% of the fire capacity. Georgia has the most liberal position, as it allowed all businesses to reopen in late April.
In deciding to reopen, businesses must balance the need to generate revenue with the need to protect the health of employees and clients. If someone claims to have contracted COVID-19 due to acts or omissions of the business, employment claims, Workers’ Compensation claims, personal injury claims, and potentially wrongful death claims can be implicated.
The mitigation of this risk, based upon the differing regulations and guidelines, has to be determined on a state-by-state basis. “In South Carolina, a COVID-19 Workers’ Compensation claim is likely to be diverted to the Worker’s Compensation system, which can limit exposure for the business. This may not be true for other states,” says Casey Martens, an employment lawyer for the Kim & Lahey Law Firm.
“Failure to follow basic guidelines, such as the CDC’s, could result in negligence claims, such as the business breaching its duty to provide a safe work environment, or failure to provide proper equipment,” says Martens, “These risks are increased for businesses that rely upon close customer contact, like restaurants, salons, retail and other businesses with frequent customer interactions. The risk to the business is not just from the customer, but from the employee as well.”
There is also a risk associated with a business’s reputation and customer confidence in the business. “A business’s brand is one of its most valuable assets,” says Douglas Kim of the Kim & Lahey Law Firm. “For example, the most valuable brand in the United States is reported to be Apple at $316 billion, followed by Google at $313 billion.” So, understanding the significant risk of a negative news article reporting an employee or client contracting COVID-19 in your establishment should not be underestimated as businesses consider reopening.
Reopening is not a simple or risk-free endeavor: it requires weighing multiple factors on deciding when and how to reopen. Factors to consider include the applicable guidelines from federal, state, and local regulatory and health organizations (e.g. from the CDC to the Greenville City Council). Guidelines and safety protocols vary from business to business and state to state, and failure to follow them can significantly increase the risk to businesses. Business owners should also keep in mind that regulations, protocols and guidelines are constantly changing. It is important to be aware of all updates, and to communicate them to employees to give them the assurance and impression of compliance.
Resources:
- First Response Training International is offering free training on everything from how a virus spreads to utilizing personal protective equipment (PPE) and even documentation and cleaning procedures.
- For updated information regarding reopening in South Carolina after COVID-19, visit the accelerateSC website.
- Download the South Carolina Chamber’s new guide for employers operating during the pandemic: Business in the Era of COVID-19: A Guide for Moving Your Business Forward.
by Kim, Lahey & Killough Law FirmUpdate on PPP Loan: $150 Billion Still Untapped
SBA Data Shows $150 Billion In PPP Loans Still Untapped
Reuters (5/26, Saphir, Schneider) reports that while the SBA’s PPP loan program “remains active,” data from the SBA “shows net weekly PPP lending has actually been negative since mid-May, as fewer firms applied for loans, and some borrowers returned funds.” Reuters adds, “All told, the SBA says it had approved $512.2 billion in PPP loans as of May 21. That’s nearly $150 billion less than the $660 billion allocated to the program, which was designed to keep Americans on company payrolls and off unemployment assistance.” The article adds that business owners “are now worried that confusing and changing rules may keep them from converting the money to a grant, meaning they will need to pay it back. To ensure forgiveness, for instance, firms need to spend three-quarters of the funds on payroll. But for some firms that doesn’t leave enough to cover overhead. Others don’t have enough work to justify rehiring many of their pre-crisis staff.”
Hoyer Says House And Senate Close On PPP Loan Extension
Bloomberg (5/26, Wasson, House) reports, “House Majority Leader Steny Hoyer said the House and Senate should be able to quickly agree on changes to the Small Business Administration’s popular Paycheck Protection Program to give loan recipients more flexibility in using funds. The House is poised to pass a bill on Thursday that would extend the current eight-week period during which businesses must use funds to have loans forgiven to 24 weeks or Dec. 31, whichever comes sooner. It would let businesses repay loans over five years instead of two, and scrap a rule that no more than 25% of proceeds can be spent on expenses. The House also plans to take up a bill to increase transparency in the program.” The article adds the “timing matters because the first companies that received loans after the PPP program opened on April 3 will see the eight-week loan-forgiveness periods begin to expire at the end of this week and in early June.”
CQ Roll Call (5/27, McPherson) reports, “On Thursday, the House will turn its attention to legislation tweaking the terms of the Paycheck Protection Program that Congress created as part of a roughly $2 trillion coronavirus relief package in March.” The article adds, “A bipartisan bill from Reps. Dean Phillips, D-Minn., and Chip Roy, R-Texas, would change the current eight-week period businesses have to spend the money and qualify for loan forgiveness to 24 weeks. The Senate last week reached bipartisan agreement to change the loan forgiveness period to 16 weeks but did not pass its bill before recessing.” In addition, the House will vote Thursday on a bill requiring the SBA “to publish a list of businesses that have received more than $2 million in PPP or economic injury disaster loans and other information about the loan approvals. Committees start remote hearings”
The Hill (5/26, Carney, Brufke) reports, “In addition to changing the period of time for businesses to spend PPP loans, the House will also take up legislation requiring the Small Business Administration to publicly publish information on recipients of PPP and emergency disaster loans.”
Download Your PPP Loan Forgiveness Application
Last week the Small Business Administration released an updated PPP Loan Forgiveness Application.
To apply for forgiveness of your Paycheck Protection Program (PPP) loan, you must complete the application as directed, and submit it to your Lender (or the Lender that is servicing your loan). Borrowers may also complete the application electronically through their Lender.
Need help? Read our article about “Making Sense of SBA Emergency Assistance Loans,” or reach out to Attorney Jason Rosen for more information: jrosen@kimandlahey.com.
by Kim, Lahey & Killough Law FirmDoug Kim & Jason Rosen Selected to 2020 SC Super Lawyers® List
We’re proud to announce that Doug Kim and Jason Rosen have been selected to the 2020 South Carolina Super Lawyers® list. Each year, no more than five percent of the lawyers in the state are selected by the research team at Super Lawyers® to receive this honor.
Super Lawyers®, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement.
The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
The Super Lawyers® lists are published nationwide in Super Lawyers® Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in the practice of law. For more information about Super Lawyers®, visit SuperLawyers.com.
by Kim, Lahey & Killough Law FirmKim & Lahey Law Firm Named to “Best Law Firms” List 2020
Firms included in the 2020 Edition of U.S. News – Best Lawyers “Best Law Firms” are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must first have a lawyer recognized in The Best Lawyers in America©, which recognizes the top 5% of private practicing lawyers in the United States. Achieving a tiered ranking signals a unique combination of quality law practice and breadth of legal expertise.
“Choosing the right law firm can be a vital decision,” said Tim Smart, executive editor at U.S. News & World Report. “The rankings draw on U.S. News’ 35 years of experience evaluating complex institutions to help individuals and companies alike make the best decisions.”
The 2020 rankings are based on the highest number of participating firms and client votes received on record. Almost 16,000 lawyers provided more than 1,229,000 law firm assessments, and more than 12,000 clients participated providing 107,000 evaluations.
“For the 2020 ‘Best Law Firms’ publication, the evaluation process has remained just as rigorous and discerning as it did when we first started ten years ago.” says Phil Greer, CEO of Best Lawyers. “This year we reviewed 14,931 law firms throughout the United States – across 75 national practice areas – and a total of 2,106 firms received a national law firm ranking. We are proud that the ‘Best Law Firms’ rankings continue to act as an indicator of excellence throughout the legal industry.”