In January of 2024, the U.S. Department of Labor published a final rule revising its guidance for analyzing whether a worker constitutes an employee or independent contractor under the Fair Labor Standards Act. How an individual is classified is important because employees, but not independent contractors, are entitled to certain protections under the FLSA, including… Continue reading →
In January of 2024, the U.S. Department of Labor published a final rule revising its guidance for analyzing whether a worker constitutes an employee or independent contractor under the Fair Labor Standards Act. How an individual is classified is important because employees, but not independent contractors, are entitled to certain protections under the FLSA, including as to minimum wage and overtime pay. Incorrectly classifying employees as independent contractors can lead to serious consequences for a business.
The final rule, effective March 11, 2024, replaces the guidance that the Department of Labor issued in 2021, and makes the analysis more consistent with how courts have long determined this issue. Key factors in the analysis include whether the worker has an opportunity for profit or loss; investments made by the worker and employer; how permanent the work relationship is; the degree of control the company has over the person’s work; whether the work the person performs is integral to the company’s business; and the degree of the worker’s skill and initiative.
The Department of Labor’s 2021 rule put more emphasis on the opportunity for profit or loss and the degree of the employer’s control, an emphasis which is no longer present. The new guidance is expected to support more workers being deemed employees than under the 2021 rule.
Note that the federal guidance for classifying workers as employees or independent contractors may differ from state law. For example, under the Illinois Wage Payment and Collection Act, a person who is permitted to work by a company is presumed to be an employee unless all of the following conditions are satisfied: (1) the individual has been and will continue to be free from control and direction over the performance of his work, both under his contract of service with his employer and in fact; and (2) the individual performs work which is either outside the usual course of business or is performed outside all of the places of business of the employer unless the employer is in the business of contracting with third parties for the placement of employees; and (3) the individual is in an independently established trade, occupation, profession or business.
At Goldenberg Heller & Antognoli, we take pride in counseling financial institutions through each step of their business, transactional, and litigation needs. Recently, a national bank found itself named as a defendant in a class action lawsuit alleging it was improperly assessing overdraft fees on debit card transactions. These types of lawsuits have become common… Continue reading →
At Goldenberg Heller & Antognoli, we take pride in counseling financial institutions through each step of their business, transactional, and litigation needs. Recently, a national bank found itself named as a defendant in a class action lawsuit alleging it was improperly assessing overdraft fees on debit card transactions. These types of lawsuits have become common across the country, and many survive initial motions to dismiss, leading financial institutions to choose between lengthy and expensive litigation or costly class action settlements.
In this case, the bank hired GHA to defend it, and attorneys Tom Rosenfeld and Tom Horscroft, who have years of experience representing clients in complex commercial litigation and class actions, quickly got to work. After consulting with the bank and carefully reviewing the terms of the bank’s deposit agreement, the allegations in the lawsuit, and the case law, GHA prepared a motion to dismiss the plaintiff’s claims. GHA’s motion attacked multiple flaws in the plaintiff’s allegations and explained why the plaintiff’s claims should be defeated by, among other things, relevant language in the deposit agreement and by federal law.
The Court considered GHA’s written briefs accompanying the motion to dismiss, as well as the plaintiff’s opposition to the motion, which highlighted the many cases denying motions to dismiss lawsuits challenging overdraft fees. Mr. Horscroft also argued on behalf of the bank at the hearing on the motion. After considering the briefs and oral arguments of the parties, the Court issued its order granting the bank’s motion to dismiss the case.
For financial institutions looking for assistance navigating the complexities of banking law, business law, transactions, or litigation, Goldenberg Heller & Antognoli, P.C. has a team of skilled attorneys ready to help. Feel free to contact us with your legal needs today.
Goldenberg Heller & Antognoli, a full-service law firm based in Edwardsville, Ill., announced it will be opening a new office in Clayton, Missouri. The office will be located at 168 N. Meramec Avenue, Suite 101. “We are excited to have a new office in Clayton,” said partner and Clayton resident, Tom Rosenfeld. “Having an office… Continue reading →
Goldenberg Heller & Antognoli, a full-service law firm based in Edwardsville, Ill., announced it will be opening a new office in Clayton, Missouri. The office will be located at 168 N. Meramec Avenue, Suite 101.
“We are excited to have a new office in Clayton,” said partner and Clayton resident, Tom Rosenfeld. “Having an office in the heart of Clayton, the fastest growing community in the area, will allow us to better serve our many clients in the St. Louis area.”
The firm, which has more than 30 years of experience in the areas of business and commercial law, creditor’s rights, estate planning, class actions, intellectual property, asbestos litigation and personal injury, plans to utilize the new space at the end of the month.
For more information about Goldenberg Heller & Antognoli, please visit www.goldenbergheller.com or call (800) 782-8492.
On February 15, 2024, GHA’s Tom Addis will present a webinar on the Illinois Paid Leave for All Workers Act that went into effect on January 1, 2024. The Paid Leave for All Workers Act allows workers to earn up to five (5) days of leave from work each year. Workers can use paid leave… Continue reading →
On February 15, 2024, GHA’s Tom Addis will present a webinar on the Illinois Paid Leave for All Workers Act that went into effect on January 1, 2024. The Paid Leave for All Workers Act allows workers to earn up to five (5) days of leave from work each year. Workers can use paid leave for any reason and employers cannot require workers to provide a basis for their time off request. Workers earn one (1) hour of paid leave for every 40 hours they work. Tom has counseled clients on compliance with the new law, including drafting policies to implement the requirements of the Act. The webinar is presented in conjunction with the Illinois Small Business Development Center for the Metro East at Southern Illinois University – Edwardsville.
GHA’s Mark Goldenberg and Tom Horscroft are part of the legal team that successfully represented University of Illinois All American basketball player T. J. Shannon in obtaining a temporary restraining order reversing the University of Illinois’ suspension of him from the basketball team. The Court ruled that T. J. had a protectable right and that… Continue reading →
GHA’s Mark Goldenberg and Tom Horscroft are part of the legal team that successfully represented University of Illinois All American basketball player T. J. Shannon in obtaining a temporary restraining order reversing the University of Illinois’ suspension of him from the basketball team. The Court ruled that T. J. had a protectable right and that the school’s Division of Intercollegiate Athletics Policy did not provide adequate procedural safeguards while he is presumed innocent. Read more about the ruling here.
Understanding the Corporate Transparency Act: A Guide for Business Owners Introduction: The Corporate Transparency Act (CTA) is a new federal law aimed at combating money laundering, fraud, and other illegal activities by increasing transparency in corporate ownership. As a business owner, it is important to understand the implications of this law and the steps required… Continue reading →
Understanding the Corporate Transparency Act: A Guide for Business Owners
Introduction:
The Corporate Transparency Act (CTA) is a new federal law aimed at combating money laundering, fraud, and other illegal activities by increasing transparency in corporate ownership. As a business owner, it is important to understand the implications of this law and the steps required to comply with its provisions. This overview of the CTA outlines the actions you need to take to ensure compliance.
What is the Corporate Transparency Act?
The CTA, enacted by Congress in January 2021, directs the United States Treasury Department’s Financial Crimes Enforcement Network (FinCEN) to implement new reporting requirements for domestic and foreign entities registered to do business in the United States. The law aims to enhance the disclosure of Beneficial Ownership Information (BOI) to prevent illegal activities.
Who is subject to the new reporting requirements?
All non-exempt US companies, including limited liability companies (LLCs) and corporations, are subject to the new disclosure requirements. Under the CTA, these types of entities are known as Reporting Companies. Reporting Companies need to file reports with FinCEN that identify two categories of individuals who are: (i) beneficial owners of the entity, and (ii) company applicants of the entity. We recommend you consult with a professional advisor to determine your specific obligation.
Who is a Beneficial Owner?
Beneficial ownership includes individuals who exercise Substantial Control over the company, or own or control (directly or indirectly) at least a 25% interest in the company. Substantial Control means:
Serving as a senior officer;
Having authority to appoint or remove a senior officer or the controlling majority of the board of directors; or
Having substantial influence over important decisions.
Who are Company Applicant(s)?
There may be two Company Applicants:
The individual who directly files the document that creates or registers the Reporting Company;
The individual who is primarily responsible for directing or controlling the filing of the relevant document by another.
What entities are exempt from the reporting requirements?
The CTA excludes 23 types of entities—most are already registered or regulated—from reporting. One of the more important exemptions is for large private operating companies (20+ full time employees and $5 Million in gross receipts/sales).
What information needs to be disclosed about a Beneficial Owner?
Under the CTA, Reporting Companies must file and maintain a Beneficial Owner Information Report with FinCEN. This report includes identifying information for all beneficial owners and company applicants. Reporting Companies must report the individuals’ BOI to FinCEN, including:
Full legal name;
Date of birth;
Complete current address; (no agents or P.O. Boxes)
Unique identifying number from a U.S. passport, state ID, driver’s license, or non-expired foreign-issued passport; and
An image of the identification document from which the unique identifier was obtained.
An alternative approach may be if an individual provides these pieces of information to FinCEN directly, the individual may obtain a “FinCEN identifier number” which can then be provided to FinCEN on a BOI report in lieu of the required information about the individual.
When are you required to file?
For Reporting Companies created prior to January 1, 2024, the Reporting Company has until January 1, 2025, to file its initial BOI report. For Reporting Companies created on or after January 1, 2024, the Reporting Company must file its initial report within 90 days of the earlier date on which it receives actual notice of creation, or a secretary of state first provides public notice of the creation of the entity. An Entity formed after January 1, 2025, has 30 days to file its BOI Report. If there are any changes in Beneficial Ownership Information, the Reporting Company has 30 days to inform FinCEN of such changes.
Who has access to Reported Information?
Under the CTA, FinCEN will store the BOI reported information in a secure, nonpublic database referred to as the Beneficial Ownership Secure System (“BOSS”). Reported information in the database will not be made available to the public. However, FinCEN may disclose the reported BOI only if requested by certain U.S. federal agencies, or by state, local or tribal law enforcement agencies.
What are the penalties for noncompliance?
Noncompliance of the CTA can result in civil penalties and in cases of abuse, criminal penalties.
Conclusion:
The CTA introduces new reporting requirements for business owners to disclose Beneficial Ownership Information. As a responsible business owner, you should understand the implications of this law and take steps to comply.
Important Disclosure: This brief overview is for information and discussion purposes only. It is not intended to provide, nor should it be relied on for legal advice.
All information provided herein is based on sources currently available and believed to be accurate. It is important to note that regulations have not yet been published.
Please contact our office if you would like to further discuss the CTA and filing requirements for your business entity.
We have another new face. Daniel Levy is an experienced litigator who has worked on complex cases involving consumer protection, class actions, and employment law. He practices alongside our attorneys in our class actions and business and commercial law practices, and we are excited to welcome him to our firm. For more information on Goldenberg… Continue reading →
We have another new face.
Daniel Levy is an experienced litigator who has worked on complex cases involving consumer protection, class actions, and employment law. He practices alongside our attorneys in our class actions and business and commercial law practices, and we are excited to welcome him to our firm.
For more information on Goldenberg Heller and Antognoli, please visit www.goldenbergheller.com or call (800) 782-8492.
Please welcome attorney Richard Cornfeld to our team! Rick joins our firm as of counsel, and his practice focuses on consumer class actions. Before joining Goldenberg Heller and Antognoli, he collaborated with our attorneys on multiple occasions, including the settlement of the St. Louis Rams. We look forward to continuing our work with him as… Continue reading →
Please welcome attorney Richard Cornfeld to our team!
Rick joins our firm as of counsel, and his practice focuses on consumer class actions. Before joining Goldenberg Heller and Antognoli, he collaborated with our attorneys on multiple occasions, including the settlement of the St. Louis Rams. We look forward to continuing our work with him as part of our firm.
For more information on Goldenberg Heller and Antognoli, please visit www.goldenbergheller.com or call (800) 782-8492.
Goldenberg Heller & Antognoli is pleased to welcome veteran attorney Robert Bruegge to the firm. Bruegge will serve as of counsel for the firm, with his practice focusing primarily on business transactions, real estate, bankruptcy, estate planning and mergers and acquisitions. Prior to attending law school, Bruegge studied accounting at the University of Illinois in… Continue reading →
Goldenberg Heller & Antognoli is pleased to welcome veteran attorney Robert Bruegge to the firm. Bruegge will serve as of counsel for the firm, with his practice focusing primarily on business transactions, real estate, bankruptcy, estate planning and mergers and acquisitions.
Prior to attending law school, Bruegge studied accounting at the University of Illinois in Champaign, IL. He then passed his CPA exam and became a Certified Public Accountant while attending the University of Houston Bates College of Law in Houston, Texas. Bruegge has practiced law for over 40 years.
“Bob’s experience and knowledge of accounting has served him well throughout the years, and we are honored to have him join our debtor/creditor team with Joel Kunin, Sandy Tatoian and Steve Wallace,” said Mark Goldenberg, founder and managing partner of the firm.
Bruegge served as Chapter 7 Trustee for the Southern District of Illinois for 16 years. In addition, he also reviewed and administered cases as an independent trustee appointed by the United States Department of Justice.
For more information on Goldenberg Heller and Antognoli, please visit www.goldenbergheller.com or call (800) 782-8492.
Our Partner, Elizabeth Heller, is going to take on a few more cycling challenges this fall. We are so proud of her accomplishments. Liz has an incredible story. She’s broken world records and a few bones since her last competition. Read more about what Liz will be up to in the link below: Elizabeth Heller… Continue reading →
Our Partner, Elizabeth Heller, is going to take on a few more cycling challenges this fall. We are so proud of her accomplishments. Liz has an incredible story. She’s broken world records and a few bones since her last competition.
Read more about what Liz will be up to in the link below:
