Blog, Business
Reinstating an Administratively Dissolved Business
In order to remain in good standing in the State of Indiana, business entities organized for profit (LLCs, LLPs, PCs, Corporations) are required to file a biennial “Business Entity Report,” along with a filing fee. Nonprofit corporations are required to file these reports annually. While it generally only takes around five minutes to file the reports online at inbiz.in.gov, the failure to timely do so may result in the Secretary of State administratively dissolving your business. Although an administratively dissolved business entity continues its existence, it may not carry on any business, except that business necessary to wind up and liquidate its business and affairs. This can have severe consequences. For example, title companies generally will not insure real estate closings if the buyer or seller of the property has been dissolved, and business owners often discover their failure to file their reports only after a closing date has been scheduled. Businesses may also be in danger of losing their corporate name, as the name becomes available for anyone to appropriate after 120 days of dissolution. Luckily, the process for reinstating your business after a dissolution is relatively straightforward. The first step is to receive a “certificate of clearance” from the Indiana Department of Revenue (DOR), certifying that all past due taxes to the State have been paid. This necessitates the filing of a notarized affidavit and updated information about the responsible officers in the business. The DOR also may require additional documentation, such as copies of tax filings for the years the business entity reports…
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Blog, Business, Employment Law
“Announcing” Employee Departures – A Practical, Nitty-Gritty Guide To Minimizing Disclosures About Former Employees
Clients frequently ask me what the “best” way is to announce a particular employee’s departure from their organization, and – as you might expect – that question gets asked more often when the departing employee is leaving under “less than ideal” circumstances. Sometimes it’s because the employee has done something “sensationally” wrong (bad behavior towards coworkers or clients, using the company Internet for things you’d have been happy never to hear about, criminal activity, etc.); sometimes the employee’s transgressions are objectively ho-hum but they’re a long-tenured or popular fixture with colleagues or customers who undoubtedly will be upset by their exit. Whatever the specifics, the same risks and recommendations generally apply. Legal Considerations Indiana has no specific statute or regulation governing how to “announce” an employee’s departure. Indiana does have a “service letter law” that requires employers to provide certain information in writing to the departing employee, but only in response to a qualifying request from that employee. That’s not the sort of “announcement” most employers ask about (though you should be aware of that law and consult counsel if you ever receive anything you think might be a qualifying request from a former employee). Indiana also has a statute that gives a certain amount of immunity (read: “protection”) to employers who provide truthful information in response to requests from other prospective employers, but that too usually doesn’t apply to the situations causing employers to ask questions about “announcements.” Most often, employers want to know what they can/should tell the rest of their workforce and/or customers,…
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Blog, Business, Corporate Law, Employment Law
So…Now What? What Employers Should Know And Be Doing About The New Proposed Overtime/Minimum Salary Rule
If you run a business, there’s a decent chance your inbox has been/will be more crowded than usual this days with alerts about the new Department of Labor (DOL) Overtime/Minimum Wage Rule. And you may also get a slight feeling of déjà vu, because the same thing happened back in the Fall of 2016. That’s when a federal judge blocked the Obama Administration DOL from implementing a rule that would have significantly increased the minimum salary employers have to pay employees who are classified as exempt under the Fair Labor Standards Act (FLSA). Rather than fighting over that version of the rule in court, the DOL went back to the drawing board, and it’s been working on a revised regulation for the last couple years. On March 7, 2019 DOL unveiled its long-awaited proposal for the “Minimum Salary Rule 2.0.” The full DOL proposal exceeds 200 pages, but your friendly neighborhood @HoosierHRLawyer prefers bullet points where possible (actually, one of my mentors taught me to hate bullet points, so here’s some ordered lists instead): What’s The New (Proposed) Rule Say? Well, a lot. But here’s some highlights: If you’re an employer in any of the 50 U.S. States and have “white collar exempt” employees (administrative, executive, or professional), you’ll need to pay them at least $35,308 annually ($679 per week). This is an increase from the current rule, which requires only $23,660 annually ($455 per week). If you don’t pay your exempt workers the minimum salary (consistently each week), you can’t treat them as exempt, and…
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Blog, Business
Out-of-state Sellers will soon be required to remit Indiana sales tax
The collection and remission of sales tax changed dramatically after the South Dakota vs. Wayfair decision by the US Supreme Court in June 2018. Now, states can collect sales tax from out-of-state sellers even if the seller has no physical presence in the state. The law goes into effect on October 1, 2018 and requires remote sellers to remit sales tax to Indiana if the seller has annual gross revenues from Indiana sales exceeding $100,000, or 200 or more separate Indiana transactions. Out-of-state companies are encouraged to use Streamlined Sales Tax Registration system at www.streamlinedsalestax.org to remit sales tax to multiple states (including Indiana). For those companies seeking to remit sales tax to only Indiana, remote sellers can register through the online portal, INBiz, at www.inbiz.in.gov. More information can be obtained from the Indiana Department of Revenue at https://content.govdelivery.com/accounts/INDOR/bulletins/201d096.
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Blog, Business, Environmental Law
Bona Fide Prospective Purchaser (BFPP) protections
Tucked into the recent 2018 Federal Budget are several items of interest to our environmental and real estate clients. The Brownfields Program can now protect lessees of property under the Bona Fide Prospective Purchaser (BFPP) provisions of the Act. In the past, lessees could only be protected if the lessor/owner had similar BFPP protections. No longer. Those lessees who develop real estate or operate under long term ground leases can now do so without the burden of liability for the pre-existing contaminants on the site. If a lessee is unrelated to the party responsible for a release of contaminants, conducts a Phase 1 Environmental Site Assessment (“all appropriate inquiry”) prior to closing and doesn’t make the situation at the site worse, the lessee is exempt from environmental liability at the site, even if the lessor is not protected as a BFPP. And there’s more good news on Brownfield Grants in the 2018 Budget. Grants may now be made to non-profit organizations. Grants have been increased to $500,000 from $200,000, and EPA can waive that limit up to $650,000. Multi-purpose grants are available for up to $1,000,000, which can include administrative costs. Facilities that generate renewable energy or demonstrate energy efficiency are now eligible for the program. The Environmental Practice Group at KGR can help developers and lessees negotiate the minefield of environmental liability when developing real estate. Call us, we’ll be glad to help.
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Blog, Business
Tax Deed Purchasers Beware: Due Diligence is Required
In a split decision, the Indiana Court of Appeals recently affirmed a trial courts’ decision to revoke a tax deed. In David L. Jenner and Vickie Jenner v. Bloomington Cellular Services, Inc. and Crown Castle South LLC, the majority of the Court determined that because the tax sale purchasers failed to notify interest holders outside the chain of title, they did not comply with the Indiana tax-sale statute, and were therefore not entitled to a tax deed for the property. The property at issue was acquired by Bloomington Cellular Services, Inc., in 1988, (“BCS”) and its title interest was properly recorded. BCS subsequently merged with Westel Indianapolis Company (“Westel”), but Westel’s name was never substituted on the property’s title. In 1999, Westel leased the operation and maintenance of a cell tower on the Property to Crown Castle South, LLC (“Crown Castle”) and in 2000, Crown Castle recorded a supplemental lease agreement outside the Property’s chain of title. Similarly, when Crown Castle subleased the cell tower to T-Mobile in 2009, the sublease agreement was also recorded outside the chain of title. Crown Castle installed a prominently-placed sign on the Property, including its name and contact information, identifying it as the operator of the cell tower. In 2014, the Property was included in Monroe County’s tax sale, and the Jenners purchased the tax sale certificate. As required by the tax sale statute, the Jenners conducted a title search and found only the interest of the original title owner, BCS. The Jenners provided notice of the tax sale to…
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Blog, Business
“I never signed anything, so I don’t have a contract. Right?” Wrong.
I often get this question or a variation of it from prospective clients and friends. This is a common misconception that all too often leads to problems. Invariably the next question is: if I haven’t signed anything, then how do I know if I have a contract? There are four basic requirements for the formation of a contract: Offer; Acceptance; Consideration; and Meeting of the minds between the contracting parties on all essential elements or terms of the transaction. Although some of these terms may be intuitive, others are not, so it is useful to consider each of them one by one. The “offer” is an element that’s typically intuitive: you are “offering” to enter into a contract with someone. Examples would include “I will pay you $50.00 to mow my lawn,” and “I am willing to purchase your table for $100.00.” If you receive a contract from someone, such as a loan document from a bank, that document is also considered an “offer” to enter into a contract. “Acceptance” is where the waters can become a bit murkier, and also where the title to this article becomes relevant. All that is required for acceptance is for you to demonstrate that you agree to the important terms of the “offer.” One of the clearest ways to do this would be to sign a document containing important terms (such as the loan document above). However, you can also demonstrate your acceptance of a contract by performing (such as retrieving your lawn mower and mowing the lawn in the…
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Blog, Business, Business Litigation
Commercial Courts, TROs, and Restrictive Covenants…Oh my!
The Court of Appeals recently addressed three issues important to Indiana businesses embroiled in legal disputes: 1) Validity of the Commercial Court, 2) ex parte (no notice) temporary restraining orders, and 3) enforceability of restrictive covenants (noncompete and nonsolicitation clauses) in employment agreements. We will address each in turn. Vickery’s and Ardagh Glass’s Dispute Ardagh Glass is a manufacturer of glass containers and bottles. Vickery worked for Ardagh Glass as a Senior Mold Engineer. As a condition of Vickery coming to work for Ardagh Glass, he signed a Noncompete Employee Agreement in 2004 that explicitly provided that Vickery could not work for a competitor for a one year period following his departure. Vickery was passed over for a promotion in 2016, and soon after applied for a similar position at Owens-Illinois, one of Ardagh Glass’s primary competitors. Vickery was offered and accepted the position at Owens-Illinois. Once Ardagh Glass determined that Vickery intended to go to work for a competitor, it informed him that it intended to enforce the Noncompete Agreement. On Vickery’s last day of work with Ardagh Glass, he was informed that Ardagh Glass was filing suit and seeking an injunction that day. Indiana’s Commercial Courts In 2016, Indiana became the 23rd state to establish commercial courts. The pilot program established commercial courts in six Indiana counties and provides litigants the opportunity to place their legal disputes in front of a judge regularly hearing business disputes. Concentrating business disputes with selected judges is intended to more efficiently resolve those disputes and free up the…
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Blog, Business, News
Ted Nolting selected for Indiana Leadership Forum Class of 2018
KGR attorney Ted Nolting was recently selected for the Indiana Leadership Forum Class of 2018. The Indiana Leadership Forum is a seminar series focused largely on government and political leadership. Participants have the opportunity to meet and interact with elected officials, business and community leaders. The program was created in 1993 by businessman Al Hubbard, political activist Roger Schmelzer and community leader Joe Hale to prepare qualified individuals for civil service and to generate a greater understanding of the political process. Today, in its second decade of operation, the Indiana Leadership Forum is dedicated to preparing Indiana’s most talented free enterprise, limited government minded community and business leaders for greater civic involvement, public service, or leadership roles throughout the state. To date, nearly 500 Hoosiers have graduated from the ILF program and many are actively engaged in various leadership positions across the state. They are teachers, doctors, attorneys and business professionals: men and women with a desire to become more involved in improving their communities. Ted joined KGR in 2016 and practices primarily in the areas of Municipal Law, Corporate Law, Real Estate, and Intellectual Property. With an extensive background in both government and the private sector, Ted serves a number of public and private clients in a wide range of corporate and municipal transactions, including real estate and construction projects, business formations, and minority and women owned business certifications. Ted additionally advises clients on political issues, including campaign and lobbying laws, and currently serves as counsel to the Republican caucus of the Indianapolis City-County Council. Prior…
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