The American Rule

In the United States, each party is responsible for its own legal fees.  This is known as the “American Rule.”  In other countries, the U.K. for example, the loosing party is responsible for the winner’s legal fees.  This critical difference in approach to the general legal framework explains why litigation in the United States runs amuck as compared to our British counterparts.  New Jersey however has an oft forgotten procedural rule that when used properly turns the “American Rule” on its head and effectively makes the losing party pay for the winner’s attorney fees if certain conditions are met.

Attorney Fees in NJ

The each page of the newest version of the I-9 form is laid out for display.
All US employers are required to use an I-9 form to verify the identity and eligibility of individuals (both citizens and non-citizens) for employment in the United States.  Please take notice that effective today, January 22, 2017, there is a new I-9 form that replaces the one currently in place.  You can download a copy of the new I-9 form by clicking here. For easy access, bookmark this blog entry for when you will need the form in the future.

Whats New?

This new form looks very similar to other recent incarnations with a few specific changes. The digital version linked above is now much easier to fill out online. It also includes the ability to general a QR code upon filling out the form, which can be helpful for providing copies to the appropriate parties. It also includes much more space to indicate preparers, translators, and other information that has often found it’s way to being written in the margins.

Wage-History-Question-Blog
Philadelphia City Council passed a Bill earlier this month that will soon make it illegal for any employer to ask a job applicant about his or her wage history.  This law will go into effect 120 days after it is signed by Mayor Kenney.  A spokesman from the Mayor’s office stated that the Mayor intends to sign the Bill into law shortly so we can expect this to be the law in Philadelphia in late March or early April 2017.  Philadelphia officials modeled the Bill after Massachusetts which passed its own wage history ban earlier in the summer.  At the state level, both the Pennsylvania and New Jersey legislatures have similar wage history proposals under consideration, but for now, it looks like the Philadelphia law will go into effect first.

Gender Wage Gap

The primary purpose behind the Bill is to address the gender wage gap.  According to the United States Census Bureau 2015, in Pennsylvania woman are paid 79 cents for every dollar a man makes.  woman of color are paid even less.  It is not uncommon for an employer to base a salary on what you were making at your previous job.  Therefore, basing an employee’s wage upon what she earned at a previous employer only serves to perpetuate the gender wage gap.   This Bill stresses that wages should be based upon job responsibilities and an applicant’s or employee’s qualifications.

New Overtime Law Blocked- Where, Why, and for How Long?

New Overtime Law is Blocked

The new overtime law that would have increased pay for millions of employees starting on December 1 has been blocked by a preliminary injunction issued by a Texas federal court.  The law would have raised the minimum salary hourly threshold exemption for white collar employees under the Fair Labor Standards Act from $23,660 to $47,476.  Since this occurred in a federal court, the  injunction applies to the entire country.  A preliminary injunction however, is not a final determination by the Court. All this means is that the Court wants to look into this matter further and that for now, the status quo will remain in effect.  From an employer’s perspective, this means that no changes need to take place on December 1 and employers can follow the existing overtime rules.  Please click here for our May 2016 blog post that discussed the impact the new overtime law would have had on your business.

Employer Overtime Considerations

Cyber Security For the Small Business

Cyber Security Month

October is Cyber Security Month. If your company uses any kind of computers, cell phones, networks, software, etc. to go about its business, then this month applies to what you do day in and day out. Having these technologies makes our lives more advanced and efficient but they also leave us open to security issues. Business large and small have to have plans and processes in place for how they deal with their digital technologies BEFORE something terrible happens.  It can seem like a big undertaking for the little guy given that the big guys seem to be hit time and time again. Yahoo for example, was recently the victim of yet another network security breach. One might ask what can a small business do with limited funds?   After all, if large companies with departments solely dedicated to thwarting cyber intrusions cannot stop hackers, what can a small business do?  The answer is simple – plenty.

  • Understand Your Business Network

Tax Amnesty Programs Available in Pennsylvania in 2017 to Individuals and Businesses

What is the Pennsylvania tax amnesty program?

Tax amnesty  is a program where taxpayers (businesses and individuals) who owe outstanding taxes can settle with the Pennsylvania Department of Revenue (“Department”) by paying less than what is owed.  Under the  program, if the taxpayer pays the entire amount of the outstanding tax due, the Department will waive all penalties and one-half of the interest associated with the underlying tax.  This is an incredible opportunity for taxpayers to settle with the Department and take advantage of the savings being offered.

When does the tax amnesty program take place?

How to Hire the Right Lawyer
If you are reading this then one of two things have probably happened.  You have a business relationship with another person or entity that is taking advantage of you and you need to change it immediately.   You were just served with a complaint that provides a response deadline.  In either scenario, you should hire a lawyer to protect your interests.  But when do you this? How do you do this?  Do you even know any lawyers?  What if I choose the wrong lawyer? How do I hire the right lawyer? Lawyers are intimidating and jerks (so I have been told).  These questions and statements are very common when I meet clients for the first time.  Knowing this, I have always wanted to prepare a cheat sheet that clients can refer to help them navigate the very unfamiliar process of how to hire a lawyer.

Step 1.  Be proactive – Start Your Search and Do Not Wait to Hire Your Lawyer

If you were served with a complaint and do not respond before the indicated deadline, the plaintiff (the person who filed the complaint) can ask the Court to enter a default judgment against you. Do not wait until the last day to reach out to hire an attorney.  It is always a better strategy to meet with an attorney (or with several attorneys) as soon as possible so you can see if you can work together.  The quicker you start your attorney search, the quicker you will hire an attorney.   Do not wait.  This only leaves you with less time to choose the best lawyer for you.  So, where do you begin?

Confession of Judgment
A recent court decision from the Philadelphia Courts should cause anyone with a commercial lease to review their contracts.  The issue in this case required the court to determine if a confession of judgment clause in a commercial lease was enforceable.  The Court ruled the confession of judgment clause was not enforceable against the tenant because the landlord did not strictly follow the statute.  As a result, the Court struck down the confessed judgment.  While not ground breaking in and of itself, the opinion serves as a reminder that a court will closely scrutinize all confessions of judgment.  You can read the court’s decision by clicking here.  Before we look closer at the court’s decision, a basic understanding of what a confession of judgement is and why it is so powerful is required.

What is a confession of judgment?

A confession of judgment clause is usually found in most commercial lending transactions and commercial leases.  In a nutshell, a confession of judgment clause flips our notion of due process on it head.   A confession of judgment clause authorizes the attorney for the bank or landlord to appear for the borrower or tenant without any notice and enter a judgment for a specific amount of money (or for possession of the premises in a lease situation).   Think about this for a second.  The first pleading your lender serves is the paper that informs you a judgment was entered against you.  Game over. Or is it?

Bankruptcy and Sheriff Sales Blog ImageAs a professional real estate developer or someone with an interest in purchasing real estate at a sheriff sale, you need to understand how the bankruptcy and foreclosure laws work together.  Foreclosure is a process by which a private party (a bank for example) or a municipality bring a lawsuit to collect monies that are past due. This can be taxes or other fees owed. Once a judgment is entered, the sheriff will schedule a sale to satisfy the money owed at a public auction.  This is known as a foreclosure or sheriff’s sale. Can a bankruptcy filing stop a foreclosure?  The simple answer is yes. However, the investor that fails to perform simple due diligence can make a foreclosure sale purchase a very costly and time consuming proposition.  Before turning to this, a little background on the bankruptcy laws.

Bankruptcy: The Automatic Stay.

The day a debtor files bankruptcy (Chapter 13, for example), is the petition date.  On the petition date, a legal wall comes down known as the automatic stay.  All creditors are now required by federal law to stop collection efforts for debts owed prior to the petition date.  This includes all demand letters, lawsuits and sheriff sales.  So long as the petition date is prior to the “gavel falling” at the sheriff sale, the real estate remains with its original owner.  However, if bankruptcy is filed after foreclosure, even one day after, the real property passes to the successful bidder. The real property is then not part of the debtor’s bankruptcy estate.

Blog.6.14.16Driving to work this morning I was thinking about my aging receivables and was becoming increasingly frustrated.  Although I am a lawyer and work in a Philadelphia law firm, I am also, at my core, the owner of a small business.  I provide services and expect or hope to get paid.  My situation isn’t very different from any business or service provider.  As I thought about what I could do better to insure that I got paid, I thought there are probably a lot of other business owners, chief financial officers and the like that would appreciate options they can consider implementing to increase their chances of being paid for services rendered, products delivered or items that were manufactured.

The starting point – your contract. Whenever a client or potential client calls me and wants to discuss how to structure a transaction to insure they are paid or at the very least minimize the risk they are not paid the starting point is always the same.  Have you worked with this entity before and do you have any written agreements or standard terms and conditions that govern the contemplated transaction?  Every contract starts with the assumption that each party will be responsible for paying its own legal fees?  This concept is known as the American Rule.  However, if your contract or standard terms and conditions state that the buyer will be responsible for all costs and expenses, including legal fees incurred in connection with your collection efforts – you have successfully shifted the American Rule on its head.  Now, not only is the breaching company responsible for paying your outstanding receivable, but it is now responsible for your legal fees as well.  Keep in mind that this does not necessarily guaranty payment but you not have another hammer in your negotiation arsenal to use against the defaulting party.

Cash is king.  In my line of work the only way I can completely guarantee payment is with the retainer.  Similarly the simplest way to guarantee payment is cash up front before services begin.  This is why, for example, doctors require the co-payment before services are rendered and not on the way out.  However, recognizing this is stating the obvious, other possibilities include timing the payments better.  For example, if you are manufacturing a specific part for a customer or providing consulting services, develop a payment schedule that is tied to verifiable deliverables.  If you meet a deliverable milestone and they don’t pay, you stop working.  Other possibilities that can be explored is cash on delivery (COD).  COD is a very basic but effective method to insure that you are paid when a physical product is involved.