Join VF&N’s litigation attorney Brett Callahan as she presents at the Oct. YPNOVA Success Series Seminar: Avoiding Litigation.
Ms. Callahan will cover common mistakes businesses make that can lead to or increase the risk of litigation related to contracts, real estate, employment, intellectual property, business formation, and compliance.
Open to the public, YPNOVA membership not required.
Join us for a free upcoming seminar: Employee Handbooks. Will Yours Make the Grade?
February 13th, 2020
Time: 8:30 am –10:00 am
Location: Paul Davis training room- 44601 Guilford Dr, Ashburn, VA 20147
In partnership with the Loudoun Workforce Resource Center, join Vanderpool, Frostick & Nishanian, P.C.’s employment law attorneys Kris Spitler and Brendan Cassidy for a presentation on how to create an effective and compliant employee handbook.
Whether you are creating a brand new handbook or revising your current handbook, spending the time to properly craft the policies in your employee handbook can help ensure that they fit your Company’s business needs, do not expose it to liability, and provide employers with defenses against common charges brought by employees.
To reserve your space, please complete the form below:
The process of Martindale-Hubbell® Peer Review Ratings™ has been the gold standard in the rating of attorneys’ legal ability and high ethical standards for more than 100 years. One of the reasons this award is such an honor is that it is only bestowed on a select few, about 10% of all attorneys. Because of this, it is a designation that can be trusted by clients and those who need to refer clients for other legal services.
As a human resource professional, business owner, executive, manager or administrative personnel tasked with dealing with HR issues, you need to stay on top of recent developments in the field of HR and employment law that may impact the future of your business. This Summit is designed to provide you with critical information in an engaging and useful format. Being informed about what is going on in the world of employment will help you stay on top of your company’s evolving HR needs.
The Employment Law & HR Summit is an easy and affordable way to summarize and highlight the most up-to-date information employers need to address issues currently impacting their workforce and organization, and identify issues that can have an impact on tomorrow’s workplace.
Jointly Presented by Vanderpool, Frostick & Nishanian, P.C., and Prince William SHRM, Inc.
Hottest employment law issues and trends of 2019 as well as significant court decisions.
Christopher D. Silva – Assistant District Director US Department of Labor/Wage & Hour Division
Learn important information from the DOL on topics including FLSA exemptions, wage deductions, independent contractor classifications, overtime requirements, and minimum wage issues. This is also the opportunity for attendees to gain a clearer perspective about common employer violations and trends in DOL enforcement.
Jinnae Monroe – Managing Principal, Professionals by Design
Gain a deeper richer understanding of generations in the workplace and best practices for accepting roles and responsibilities of each generation. The session will discuss the importance of HR’s role in leading and guiding other organizational units in embracing generational differences.
Mauricio Velasquez – CEO & Owner The Diversity Training Group
The HR professional in 2020 must understand the concepts of Change Management and have the skills and knowledge to guide their organizations through change. This session will address how HR professionals can help their organizations identify the impact of change, assess and manage the ripple effects that change can cause across the organization, and how to communicate change across throughout all levels of the organization.
Pricing: Includes admission, continental breakfast, lunch, written materials (online), and a chance to win prizes!!!
Early Bird Rate on or before August 31st: PWSHRM Member Rate: $129, Non-Member Rate: $169.
Regular Rate on or after September 1st: PWSHRM Member Rate: $169, Non-Member Rate: $199.
Cancellation Fee $25. No refunds will be issued after September 12, 2019. Registration closes October 3, 2019.
Credit Status: One-Day Conference is approved for 5 HRCI ( 3.75 Business/1.25 General ) & 5 SHRM PD Hours
In a press release by the Australian Minister for Defence; issued March 06, 2019it was announced that “the Royal Australian Navy (RAN) will receive a new sovereign air transportable Submarine Rescue Service capability under a contract with Phoenix International (Australia).”
Attorney Christopher Collins speaks to the proposal efforts, the due diligence performed to vet subcontractors and the importance of solid teaming agreements.
ICE Agents have been active recently in the Prince William area and other parts of the VA/DC/MD metropolitan area, investigating businesses (especially small and medium companies) to determine compliance with properly completing and retaining I-9 forms. Employers in industries involving construction, restaurants, landscaping, and janitorial/cleaning services are frequently (but by no means the only) targets of ICE investigations.
U.S. Immigration and
Customs Enforcement (ICE) (an agency within the Department of Homeland
Security) has significantly increased its efforts to reduce unlawful
immigration employment practices under the Immigration Reform and Control Act
(IRCA). Employers are legally required to verify the identity of the person
they hire and to confirm that they are eligible to work in the United States. The law further requires that employers document
this process by completing a Form I-9 for each person they hire.
ICE has focused
enforcement efforts on employers who hire an illegal workforce. They follow up
on tips provided by the public and conduct random and unannounced audits of
employer records to determine if the company has complied with its legal
obligations. They do not need probable
cause to investigate your business nor do they need to have a tip.
I-9 Forms and ICE’s Notice of Inspection
The mandatory I-9 forms
must be completed every time you make a new hire. The form must be retained for three years
after the date of hire, or one year after the date employment ends, whichever
is later. If ICE has been given a tip or the business has been selected for an
audit, ICE will present you with a Notice of Inspection.
What to Expect from an ICE Inspection
The notice of inspection
usually requests the following records from the company:
No-match and mismatch letters
Upon notice, you have
three business days to provide the investigating officers with the requested
Civil and Criminal Penalties
Failure of employers to
comply with IRCA can result in substantial civil fines and ultimately, possible
criminal prosecution if you are found to have knowingly violated the law.
What To Do If ICE Agents Present You With A Notice of Inspection Regarding Your I-9s
Do not provide records immediately or allow an
immediate inspection of records as you have up to three days to respond.
Call your trusted
employment lawyer in order to advise you on the best course of
action and to timely respond with the proper documents presented in the best
Ensuring Compliance Before ICE Investigates
If you have not yet been
the subject of an investigation, you can take steps to protect your
business. Employers should conduct
confidential internal audits of your I-9 forms with the help of your employment
lawyer. This process can help you
correct any potential problems before an inspection and avoid possible fines. It is also beneficial to have knowledgeable
employment counsel conduct periodic training of your personnel assigned to
handle your I-9s.
Contact a Trusted Employment Law Attorney
Kristina Keech Spitler, Esq., with Vanderpool, Frostick & Nishanian is ready to help your business respond to an ICE inspection, provide a confidential internal Form I-9 audit, and/or help train your personnel to properly complete and retain I-9 forms.
Kristina Keech Spitler is a Shareholder and Head of the Employment Law Practice of Vanderpool, Frostick & Nishanian, PC. With over thirty years of experience, Kris has been recognized as “Legal Elite” in Employment Law by Virginia Business Magazine, as well as a “Leader in the Law” and an “Influential Women of Law” by Virginia Lawyers Weekly. You can reach Kris at (703)369-4738 or firstname.lastname@example.org.
** The information contained in this website is provided for informational purposes only and should not be construed as legal advice.
The Maryland General Assembly passed Senate Bill 853, which took effect on October 1, 2018, that added the following text to Section 3-507.2 of the Maryland Code, Labor & Employment:
In an action brought under subsection (a) of this section, a general contractor on a project for construction services is jointly and severally liable for a violation of this subtitle that is committed by a subcontractor, regardless of whether the subcontractor is in a direct contractual relationship with the general contractor.
If a court finds that a sub-contractor failed, under certain circumstances, to properly pay an employee, the general contractor may be liable for damages, counsel fees, and other costs.
The Act now permits an employee of a sub-contractor, who was not paid in accordance with applicable Maryland wage/hour laws, the right of action against the general contractor even though there is no direct contractual relationship between the general contractor and the subcontractor’s employee.
Risk mitigation strategies for Owners, General Contractors and Senior Sub-Contractors involved in Maryland based construction projects:
Inspection of Payroll Records – Include in your contracts a provision that requires subcontractors to provide certified and detailed payroll information with every pay application.
Audit Clauses – Include provisions in your contracts that permits you to conduct “spot audits” or “interviews” with sub-contractor employees.
Certifications – Require sub-contractors to certify or declare in their payment applications that they have checked/audited the payrolls of every sub-contractor at every tier to confirm the payment of employees.
Insurance/Bonding – Require subcontractors to furnish payment and/or performance bonds or wage-hour insurance. To cover the entire statutory period for wage claims, these bonds or insurance will have to be maintained for three years after final payment of wages on the project.
Broad Indemnity and Personal Guaranty Provisions – In addition to any existing general indemnification clause, include a specific clause or language addressing claims arising out of any violations of the Act. Require that the principals of all sub-contractors personally guaranty compliance with the Act and payment of employees.
Flow Down of Terms and Conditions – Require that all clauses in the sub-contract relating to the Act and subcontractor’s obligations thereunder flow down to each subcontract tier.
Obligation to Defend – In addition to indemnification obligations there should also be provisions all sub-contracts requiring the sub-contractor to defend the general/direct contractor for violations of the Act.
Hiring Decisions – Include provisions giving the general contractor the power to approve or reject the hiring of sub-subcontractors of all tiers.
Site Security – Implement site security to confirm identification of all employees on the job site so no previously unidentified individuals can later appear seemingly out of nowhere and claim that an employer/subcontractor did not pay them.
Creation of Fiduciary Duty – “In-Trust” Requirements – Include a provision in all private works sub-contracts requiring sub-contractors to hold all payments received “in trust” for the benefit of the direct contractor and the benefit of the subcontractor’s employees, lower-tiered subcontractor employees, for the purpose of meeting the wage and benefit obligations owed not only to the subcontractor’s employees but the employees of any lower-tiered subcontractors.
Increased Retention – Increase retention percentages, withholding, and back-charges depending on the sub-contractor and size of job.
Identification of General Contractor – expressly note the identity of the general contractor in each contract. Project owners may want to include disclaimers that they are “not” acting as the general contractor.
Three Years Statute of Limitations – A general contractor should retain pertinent records from all subcontractors for at least that long following project completion and should make sure that all indemnification obligations survive the completion of the project for that length of time as well.
Please contact us at 703-369-4738 with any questions.
*The information contained in this website is provided for informational purposes only and should not be construed as legal advice. The material on this website may not reflect the most current legal developments. The content and interpretation of the law addressed herein is subject to revision. We disclaim all liability in respect to actions taken or not taken based on any or all the contents of this site. Do not act or refrain from acting upon this information without seeking professional legal counsel.
Many states have simplified the process of forming a business entity. In many jurisdictions the formation of a limited liability company or “LLC” can be completed either on-line or by filing a single page form along with the payment of a filing fee. Although the filing of the formation documents is quite easy there are many long-term considerations one should take into account during the organizational process.
A new LLC, like a partnership, will be treated as a “pass-through” entity for tax purposes, i.e., income or losses pass through to the LLC members (unless an organizer of an LLC makes an alternative election with the Internal Revenue Service to be taxed as a corporation). For new business owners the ability to deduct early losses may seem like a positive facet of the LLC but there are other factors one should consider.
LLC Membership, employee equity, and taxes
Many corporations offer employees stock options as part of their compensation package. When employees receive LLC equity (a “membership interest”) as compensation it entitles them to share in the value of the equity in the company. Unless the organizer of the LLC elected a different tax scheme, the LLC will file tax returns as a partnership, and everyone who is an equity holder will receive a K-1 tax schedule which will disclose a lot about the company’s finances. Many founders would probably not want to give company employees this kind of detailed information. Additionally, The Bipartisan Budget Act of 2015 changed the IRS partnership audit rules. Effective as of January 1, 2018 underpayment of taxes will be imputed at the partnership level, i.e., current partners owning interests in a partnership are liable for the underpayment of taxes even if the subject years of the audit occurred before their admission to the partnership.
LLC restrictions on the sale of membership interest
Without sufficient provisions in an LLC’s operating agreement governing restrictions on the transfer of LLC membership interest, members may find themselves in business with someone they do not know or who might cause problems for the company. “Permitted Transfer” provisions will expressly permit certain transactions but disallow others. In addition, the operating agreement should include provisions on “Involuntary Transfers”. These are transfers that occur by operation of law such as those resulting from death, divorce, or bankruptcy.
Difficulty raising equity with a LLC
Venture capital groups or “VC groups” may be hesitant to look at an LLC for investment. If a VC group is already structured as a pass-through entity itself, the group may be wary of investing in another “pass though” entity that could leave the VC stakeholders with an unwanted tax bill. Add employee/members to the mix along with inadequate or non-existent provisions regarding transfers of membership interest and many VC groups may walk away. Who wants to buy into a company where valuation is difficult to measure, and the full nature and extent of ownership cannot be documented?
It should be clear that the path that looks the easiest is not without consequences. If you are organizing a start-up or considering becoming a member in an LLC make sure you obtain competent counsel in Business Law to discuss, your business goals, liability concerns, and operational matters.
*This information is designed to provide general information, is not intended to constitute legal advice and should not be utilized as a substitute for professional services in specific situations. If legal advice or other expert assistance is required, the services of a professional should be sought.
When forming a company or changing the organization of your current business, it is important to know the different options available to you. The legal entity that you are operating will determine what tax structure you will comply with and your legal liability as a business owner, among other things. This post will give you a general overview of three types of companies: corporations, partnerships, and limited liability companies (LLCs).
Incorporating your business gives you the highest level of personal liability protection available. However, it also comes with greater corporate responsibilities, particularly in regard to taxes. There are two types of corporations: c-corp and s-corp.
Both are distinct legal entities separate from its owners (“shareholders”), which protects their personal assets. Both require articles of incorporation, a registered agent, elected directors, issued stock certificates, and by-laws. Corporate responsibilities include annual shareholders meetings, periodic director meetings, recorded minutes, detailed financial reports, and separate income tax returns. In both cases, personal liability protection can be forfeited if corporate formalities are not followed.
Where c-corps and s-corps differ is how they are taxed. C-corps incur double taxation; profits are taxed both at the corporate level and at the individual level. In an S-Corporation, corporate taxes pass through to the shareholders’ personal tax returns.
A partnership is simply when two or more people operate a for-profit business. There’s no fee or process for starting a partnership, though you may need to register a trade name. The drawback is that partners are personally liable for any business debts or lawsuits. A partnership agreement is also recommended to reduce conflicts. There are three main types of partnerships: general, limited, and limited liability.
In a general partnership, each partner is equally liable for the business and the actions of other partners. In a limited partnership, at least one general partner has full liability in the company while a limited partner is only liable for his or her own portion of ownership. In a limited liability partnership, each partner is only liable for his or her own actions. It is important to establish a partnership agreement that defines each partner’s role and responsibilities.
Limited Liability Companies (LLC)
LLCs offer the tax benefits and simplicity as well as limited personal liability protection. Requirements vary by state, but in Virginia, forming an LLC requires filing articles of organization, a registered agent, an annual $50 registration fee, and regulatory compliance. An operating agreement is not required, but its highly recommended to prevent or reduce conflicts. The only corporate responsibilities of an LLC are to file an annual report with the secretary of state and pay quarterly estimated tax payments.
Want more information?
For more general information on forming a company, QuickBooks has a set of short, informative videos that explain the differences between various business types.
Additionally, many of our attorneys are also business owners, and they have a deep understanding of both the practical and legal realities of forming a company. They can help with your business’ needs; contact us here.
Disclaimer: this blog does not constitute legal advice
Thinking about renting your home on Airbnb? Make sure to check your local laws!
Local laws and regulations often fail to keep up with the speed of market innovation, leaving jurisdictions scrambling to balance personal liberty and community safety. This is the case with Airbnb and other short term rental sites that allow homeowners to rent out their spare rooms or entire houses to travelers for a short period of time.
From its humble beginnings of San Francisco roommates Brian Chesky and Joe Gebbia renting out an air mattress in their apartment to help pay the rent to a global powerhouse disrupting the hospitality industry in under ten years, Airbnb has challenged governments around the world to rethink private property use. Some hosts are finding that their local zoning ordinances prohibit them from renting out their homes, while others are facing serious legal and financial consequences of less than ideal guest behavior.
So if you’re thinking of becoming a host on Airbnb or a similar services, municipal attorney Martin Crim has a few tips for you:
Check your local zoning ordinances
Before you begin hosting guests, check your local zoning ordinance for restrictions or requirements for short term rentals. For example, in the City of Manassas, short term rentals are allowed with restrictions on the amount of time a guest may stay. However, a few miles away in Fairfax County, short term rentals are prohibited unless your home is approved as a bed and breakfast.
Read your rental agreement / Homeowners’ Association rules
Even if your locality allows short term rentals, if you are a renter or have a Homeowners’ Association, you may be subject to additional restrictions or regulations regarding property use and guest occupancy limits.
Check with your local tax authority
Check with your local tax authority to ensure that the income you earn from renting out your property isn’t subject to any taxes beyond those handled by the service provider.
By far the most disastrous cases stemming from a short term rentals gone wrong have been those that occur when the homeowner wasn’t there. Don’t let a guest stay in your home completely unsupervised unless you are certain that they are trustworthy and will be respectful of your property, your neighbors, and any other entities involved.
The attorneys at Vanderpool, Frostick, and Nishanian, P.C. are here to help with your real estate, zoning, and land use matters – feel free to contact us!