Blog | Attenza Law

Employees Must be Paid for Work Done…No Matter What!

September 27, 2011 By Karen Lundquist Leave a Comment

I was talking with a friend recently. He is an employee in a local small business. At the beginning of this month, his employer told him that he wouldn’t be able to pay him for the first two weeks of the year (even though he had worked) because the company just didn’t have the money to pay his wages. So my friend’s question was whether this was legal. No, it isn’t!

Employees have a right to be paid for the work they perform. It doesn’t matter whether the company is low on money, has no money or needs to pay off other debts. Employees must be paid and must be paid on a regular basis (weekly, bi-weekly or monthly) at least once every 31 days according to Minnesota law. These are obligations that can’t be altered.

A similar Minnesota law states that terminated employees must be paid immediately at the time of discharge. If the wages aren’t paid and the employee makes a demand for them, the employer then has 24 hours to pay the unpaid wages or risks a penalty equivalent of a day’s wages, up to 15 days.

For more information about your rights and obligations under Minnesota employment laws, as either an employer or employee, contact Attenza Law.

Job Descriptions: Why You Should Care

August 30, 2011 By Karen Lundquist Leave a Comment

One of the most important policies a business can have in place is a clearly defined job description for each position. This is a good way communicate the employer’s expectations of the employee, and can serve as an important reference point in the employee’s relationship with the business. While not legally required under Minnesota law, job descriptions serve important legal purposes.

Americans with Disabilities Act: The ADA requires employers to make reasonable accommodations to a disabled individual who can perform the essential functions of the job that he or she seeks or is performing. Thus, it is extremely important to define the “essential functions” of a specific job to determine whether or not an accommodation can and should be offered. For example, is a regular presence required at the place of business? If not, telecommuting might be a reasonable accommodation. Physical requirements such as lifting, bending or standing for long periods of time are other essential functions that could be included in a job description and could be relevant in the discussion of a reasonable accommodation.

Fair Labor Standards Act: Both the federal and state FLSA require employers to pay non-exempt employees overtime when they work more than 40 or 48 hours per week (for further information about whether you should pay according to state or federal FLSA. Whether the job duties fall into one of the exempt exceptions under the FLSA, meaning that the employee is not entitled to overtime, will depend in large part on the job descriptions. Does the employee exercise independent judgment? Does she have authority to hire, fire and discipline other employees? Does she do office or nonmanual work? If so, the job is likely exempt, and having a written job description in place will make it easier to prove if it is ever challenged.

When employees and employers have written job descriptions, it will be easier for you as a manager to identify when employees are not meeting expectations, and to provide specific feedback on the employee’s missteps.

Filed Under: Business, Employment Law Tagged With: job descriptions FMLA, job descriptions for disability claims, when should you update job descriptions, why does a business need job descriptions

Why You Should Maintain Corporate Records

August 30, 2011 By Karen Lundquist Leave a Comment

About 35% of all businesses are established as corporations or limited liability companies (LLCs). The principal advantage that a corporate entity such as an LLC provides is personal liability. In other words, the corporate entity acts as a shield, protecting the owners’ personal assets from any obligations of the business; the owners cannot be held personally liable for any judgment against the business. Of course there are exceptions to this rule.

The exception is known as piercing the corporate veil. This mean that under certain circumstances, courts will allow the imposition of personal liability on owners for the obligations of their corporations. Most often, parties try to pierce the corporate veil by showing improper conduct such as fraud, demonstrating that there was a disregard for the corporate entity and for corporate formalities.

These are other important factors that courts consider when determining if the corporate veil should be pierced:

a failure to adhere to corporate formalities,
inadequate capitalization,
commingling of assets and
use of corporate funds for personal use.

And those factors bring us to the message behind this posting and why a good September activity is to update corporate records. While insufficient on its own to pierce the corporate veil, the failure to adhere to corporate formalities (which includes maintaining regular meetings or drafting minutes in lieu of meetings and amending the articles of organization or the member control agreement) is an argument that has been successfully used along with other factors to pierce the corporate veil. Thus, it is a good reason to update your business records and make sure that everything is up to date.

If you are mixing your business and your personal assets by writing checks for your dry cleaning or your personal vacations out of your business accounts, the fact that is another factor that courts consider when deciding to pierce the corporate veil is reason enough to stop immediately.

The September lesson and activity for you: take your surge of autumn energy to draft up minutes for the last years, memorializing any changes such as loans taken out or changes in management or the board of governors, and updating the articles of organization to reflect your business today, not when it was started. If you don’t have any corporate records, talk to a business attorney and get some drafted. It is an investment in the stability of your business and personal life. Finally, get your financials in order if they are not. Get the bookkeeping up to date and become vigilant about keeping business and personal separate.

Filed Under: Business Tagged With: corporate records, do you have to add minutes for corporation, do you have to have corporate records for llc, updating corporate records in mn, why you should update corporate records

How On-Going Employee Education Can Help Reduce Your Liability

August 30, 2011 By Karen Lundquist Leave a Comment

Education is important. Now that September is upon us, we are reminded of this when we see the yellow school buses around our neighborhoods each morning and afternoon. Education is important for your employees as well. It can help reduce your liability as a business owner for the actions or inactions of your employees. This posting will look at some of the important training that employers should provide.

Harassment and Discrimination: Perhaps this is the most common training for employees. All employees need to know the liability that their employer is exposed to for their actions. In addition, they must learn what constitutes sexual harassment and bullying. If there are employees from different cultures, this might be especially important as there are varying views around the world about what is and is not acceptable behavior in the workplace. Finally, employees and in particular managers and supervisors need to learn what classes are protected under state and federal anti-discrimination laws, such as sexual orientation and marital status.

Social Media: This is an area of employment law that is constantly evolving. Employees and managers should be aware of their rights within the workplace for what they say online. They might be surprised to learn that in a private workplace, these rights are few. Defamation should be explained and examples provided about how complaints and postings on websites like Yelp have been used for defamation claims. Managers and HR should be informed about how to use (or not to use) social media when screening applicants and what information can and cannot be used for employment decisions like hiring and promoting.

Disability and FMLA: The FMLA is what got me thinking about the importance of on-going education. The ADA has undergone tremendous change in the last years, and employers need to keep their managers informed about what accommodations should be offered, and how they should react when employees have medical issues, or the managers suspect that there might be issues. Managers should be instructed on how to handle employees with disability accommodation requests and to deal with medical leave issues, such as under the FMLA. Employers can be liable if managers fail to act in some cases, and education is the best way to make sure this doesn’t occur.

Keeping Proper Documentation: Documentation is key for a well-run business. For matters like medical leave, managers and supervisors should be taught to write down verbatim the employees words when they request leave; doing so can help defend against claims. Likewise, all disability and discrimination matters (such as requests for accommodations) and terminations and discipline issues should be well documented. Informing managers on what should and shouldn’t be written down is key in developing a good defense if and when employees or former employees file claims or complaints.

These are only a few areas where employers should consider providing on-going education for their employees. September is the ideal month to start planning on some training sessions as we all think about going back to school at this time of year.

Filed Under: Business, Employment Law Tagged With: education for employees on employment law, employee training, employer liability for employee actions, when is employer liable for what employees do

Is He a Good Employee Who Made a Mistake or a Mediocre Employee Who Doesn’t Accept Responsibility?

August 25, 2011 By Karen Lundquist 2 Comments

The Small Business Blog of the New York Times had a gem of an article yesterday. It is one that is sure to strike a chord with many business owners because it hits to one if not the hardest part of running a business: managing employees. The article discusses mistakes. We all make mistakes, and this is acknowledged in the article. The article doesn’t talk about how to hire employees who won’t make mistakes, since obviously those people don’t exist since we are all humans. Instead, it tells a story about bags. The moral of the story is this:

There is an art to distinguishing between a good employee who makes a mistake and a mediocre employee who does not accept responsibility.

I will leave the article for you to read. I am curious too…have you learned the same lesson as a business owner? How have you learned to distinguish between a good employee who makes a mistake and the mediocre one who never admits it? How have you handled it?

Filed Under: Business, Employment Law Tagged With: employee management, employee mistakes, firing employees, how employees should handle mistakes

Vacation Rights for US Workers

August 12, 2011 By Karen Lundquist Leave a Comment

It is August, and for most of Europe, that means vacation. In many countries, cities and towns are practically shut down as residents go to the sea, to the mountains or wherever their favorite vacation spot may be. In some countries like Italy and Turkey, even the courts close and go on holiday. During the “judicial vacation,” pleadings are accepted and hearings held only emergency measures like injunctions.

Europeans see vacation as a right that they, as workers, are entitled to. Just last year Antonio Tajani, the European Union commissioner for enterprise and industry, declared “travelling for tourism today is a right. The way we spend our holidays is a formidable indicator of our quality of life.” French workers are entitled to about 40 days of paid vacation per year, while Swedish workers receive 5 weeks of paid vacation and Italian workers 31 days.

What about in the United States? Here, there is no federal law that mandates vacation for workers. Minnesota has no state law requiring employers to offer paid or unpaid vacation. Approximately 25% of all US workers receive no paid vacation and in 2010, 43% took no time off at all. The average worker in the States got 18 vacation days in 2010, but only used 14 of those desirable days off.

With regard to paid vacation time, the Minnesota Supreme Court said that even though that time is classified as “wages,” you have no right to that money when your employment is terminated, in contrast with wages for work performed for which all workers have a right. In other words, your employer can legally limit or eliminate your right to collect accrued, unpaid vacation time at the time your employment ends, whether for termination or resignation. Many employers now have provisions in handbooks that state that an employee forfits his or her right to collect unpaid, accrued vacation time if that person is terminated for misconduct or if he or she fails to give 2 weeks notice of resignation. Employers also have a right to implement a “use it or lose it policy.” In other words, if you don’t use your vacation days within the calendar year, they don’t roll over to the next year.

The advice for employees is to check their employers’ employee handbook and manual to see what policies are in place regarding vacation time. The advice for employers is to limit when accrued vacation time is paid out to limit or eliminate the large pay outs that can happen if an employee who didn’t use up his vacation days leaves, and also to implement a “use it or lose it” policy to reduce the same risk.

Filed Under: Business, Employment Law Tagged With: how much vacation time do US workers get, Minnesota workers right to vacation, rght to vacation in the United States, right to vacation in Europe, right to vacation in US, when does an employee have a right to vacation

Latino Artists Sue Grammy Awards for Eliminating Their Category

August 8, 2011 By Karen Lundquist Leave a Comment

Disclaimer: I haven’t read the complaint, nor have I seen any contract between the organizers of the Grammy awards and the four Latin jazz artists who are now suing them, alleging the elimination of their category from next year’s competition has caused them irreparable harm.

Musicians Robert Sanabria, Benjamin Lapidus, Mark Levine and Eugene Marlow accused the National Academy of Recording Arts and Sciences of violating its fiduciary and contractual obligations in April when it cut 31 categories from the annual awards ceremony, including Latin jazz. The lawsuit also accused the academy of failing to consider the adverse impact the decision would have on the musicians’ careers. It appears that there nationwide chapters with voting rights concerning the Grammies, and the plantiffs claim that their rights were also violated when the organizers failed to obtain their input before making the decision to drop the category.

The first thought I had was exactly what contractual obligation would the organizers of the awards have towards these Latino artists, or any artists for that matter? It seems strange that there is a contract that the organizers signed with these chapters, promising that they would put on the awards and that a certain number of categories would be offered. Would an organization also have a duty towards these artists? I find that hard to imagine as well.

The academy, which organizes the Grammies, has stated that they intend to fight the suit and call it “frivolous.” I will hold judgment till I see a copy of the complaint (if I can find one online) and the documents like the agreement between the parties, but I remain skeptical.

Filed Under: Business Tagged With: breach of contract, breach of contractual violations, breach of fiduciary duties, latino artists sue grammy awards, when can you sue for breach of contract

What’s Been Going On?

July 14, 2011 By Karen Lundquist Leave a Comment

It has been a while since I’ve posted. And before I was so religious about it. I’ve been busy with lots of activities, hence the lull of silence.

First, I launched my online legal English school, The Global Legal Institute. I offer language courses and lessons aimed specifically at lawyers and legal professionals abroad who need English for their job. I teach technical legal English. With my backgroun in teaching and law, it is perfect. All the courses are done in an online, virtual classroom so I bring the comfort and ease of technology to language learning.

I’ve also been working a lot for Law Linguists. They are the only translation agency in the world that does just legal translations, done only by licensed attorneys. I do Italian to English translations. Fun stuff, especially learning about the Italian legal system and civil procedure as many of the translations are technical and discuss the rules of civil procedure and the civil code.

Finally, I accepted just yesterday a position with the University of Minnesota law school. I will be teaching in the school’s LLM program, which is specifically aimed at foreign lawyers who want to come to the States to improve their English, get an advanced degree and learn about the US legal system. I will be teaching a course on legal writing and reading. A perfect match and way to bring together my love of teaching, writing, languages and language learning.

Filed Under: Our Law Firm Tagged With: karen lundquist attorney, learning legal english, learning legal english online, legal english for foreign attorneys, legal language, online language learning, online legal english

“No tengo ni diez kilos!”: How the Translation of One Word Can Mean the Difference Between Conviction and Acquittal

May 27, 2011 By Karen Lundquist Leave a Comment

Anyone who has studied a second language knows that there aren’t always precise equivalents for words or phrases in one language or another. Regional dialects, expressions and accents, as well as slang and jargon, complicate matters and make the translation from one language to another difficult. It becomes even more difficult when the translation must be done in real time in a courtroom.

Nowadays in Minnesota, as elsewhere in the United States, a growing number of people speak a language other than English as their mother tongue. Approximately 10% of the population of Minnesota speaks a language other than English at home, while approximately 7% are foreign born. What happens with these individuals when they are placed in a courtroom setting, such as a criminal trial, and must rely on an interpreter to relay their words to the judge and jury? Unfortunately, justice is often denied.

There is famous case of how an interpreter unfamiliar with regional language can bring about disastrous results for a criminal defendant. In the case, a Cuban defendant was convicted on drug charges because he uttered the words, “¡Hombre, no tengo ni diez kilos!” He used the words in response to a request for a loan and given the dialect of the speaker and the context of the statement, the words can be translated as “[m]an, I don’t even have ten cents.” Instead, the interpreter mistakenly translated them as, “[m]an, I don’t even have ten kilos.” With that incorrect yet plausible translation, the man was convicted of the drug charges (fortunately, the conviction was ultimately overturned).

In another case, a Mexican immigrant was convicted of murder. The interpreter in his case spoke Spanish, but one can only wonder how he could correctly translate the words of the defendant, Ramiro Lopez Fidel, who didn’t speak Spanish but rather an indigenous Indian language, Mixtec. The judge and the defense attorney never thought to confirm whether the defendant even spoke Spanish but merely assumed he did because he was Mexican.

These two cases show the importance of language in the justice system. Even for bilingual or multilingual attorneys, we can’t be expected to know all possible languages of our clients. We have to rely on interpreters. We must verify their familiarity with the regional language of our clients and not make assumptions about the language that they speak. Not doing so could mean the difference between justice served and justice denied.

Filed Under: International Law, Other Legal Matters Tagged With: bad translation in criminal proceedings, how a mistake in translation can lead to a criminal conviction, interpreter's mistake, language and the law, language in the courtroom

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