All posts by Waltz, Palmer & Dawson, LLC

THANKSGIVING…A TIME TO COUNT OUR BLESSINGS…

The weather has turned colder and holiday decorations and sales are popping up everywhere, which means that Thanksgiving is right around the corner! Plans for family get-togethers are being finalized and excitement (or anxiety, for many) is growing, as we look forward to seeing relatives who we may not see often throughout the year.

The world outside our homes is a bit crazy right now, with more stories of unspeakable crimes and divisive politics every day on the news. While it is not always the case, time with our families and friends should be an escape from the “badness” in the world and be filled with laughter, old stories, updates on each other’s lives, and, of course, great food!

Consider who the most important people in your life are. Are they dependent on you? Do they like each other? Do their spouses and children like each other? What are your hopes and dreams for them? Then consider what would happen to them, both financially and emotionally, if you were no longer around. Sometimes there is one family member who is the glue holding the family together—without that person the family falls apart. When this happens, it’s heartbreaking. Younger family members miss the opportunity to grow up with and be close to their aunts and uncles, cousins, and sometimes even siblings and grandparents. Older family members lose touch, often at a time when they need each other the most.

While you certainly cannot control everything after you’re gone (most of us can barely control things while we’re alive!), you can take steps now that will, hopefully, provide financial stability and guidance for your loved ones. If you are thinking about creating an estate plan, or if you already have a Will and/or a Living Trust in place, consider discussing your decisions with your family. More importantly, discuss your reasons for your decisions with them. Having an open discussion with those who will be affected by your plan can go a long way in keeping your family together for years into the future.

You certainly have no obligation to justify your decisions to your family. However, if you can try to make them understand why you made the decisions you did, there is may be a better chance that they will not resent you, or each other, after you are gone. Then they can continue to enjoy many happy Thanksgivings for years to come, while reminiscing with funny stories about you, of course! This is so much more important than any amount of money you could leave to them.

If you would like to discuss your existing estate plan, or start the process of creating one, please call our office to schedule a no-charge initial consultation with one of our experienced estate planning attorneys. We will walk you through different options, depending on your needs, and help you think about how best to accomplish your wishes, and preserve family harmony, no matter what your plan looks like.

Have a Happy and Safe Thanksgiving…Be sure to slow down and enjoy your time with your family and friends and reflect on the blessings in your life!

Should you have any questions about business law or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

CHANGES TO THE ILLINOIS LIABILITY COMPANY ACT

The Illinois General Assembly has made sweeping changes to the Illinois Limited Liability Company Act (“LLC Act”), all of which are encompassed within a lengthy and detailed 112-page bill. These changes were effective July y 1, 2017, and apply to all Illinois limited liability companies, even those limited liability companies that already have an operating agreement in place as the LLC Act governs wherever an operating agreement is silent.

This article does not attempt to identify all of the changes that have been made to the LLC Act; instead it focuses on the major changes and those that are most likely to impact business owners. All references within this article are to the newly revised LLC Act.

ELIMINATION OR WAIVER OF FIDUCIARY DUTIES OF MEMBERS OF LIMITED LIABILITY COMPANIES

The new LLC Act allows members, via the operating agreement, to eliminate or waive the fiduciary duties owed to a limited liability company (other than the duty of care) provided that elimination/waiver is clearly and unambiguously stated in the operating agreement. Additionally, the new LLC Act allows the members to alter the duty of care, except to allow intentional misconduct or knowingly violations of the law. For the first time, members are allowed to identify, within the limited liability company’s operating agreement, specific types or categories of activities that do not constitute a violation of a member’s fiduciary duty. (See §15-3 and §15-5(c)).

DEFAULT MANAGEMENT OF LIMITED LIABILITY COMPANIES

Unless the operating agreement expressly states that the limited liability company is to be managed by a manager(s), Illinois will automatically assume it to be “member-managed”. (See §15-1(a)).

ALLOWANCE OF ORAL OPERATING AGREEMENT FOR LIMITED LIABILITY COMPANIES

The new LLC Act eliminates the requirement that an operating agreement must be in writing and allows members to have an oral operating agreement.

ELIMINATION OF ASSUMED AGENCY STATUS FOR MEMBERS OF LIMITED LIABILITY COMPANIES

Previously, the LLC Act stated that a member was automatically an agent of the limited liability company and that the member’s actions, on behalf of the limited liability company, were consider to be the acts of the limited liability company. The new LLC Act states that a member is not an agent of the limited liability company solely by being a member of the limited liability company. (See §13-5). Additionally, the new LLC Act adds a provision which allows a limited liability company to file a “statement of authority” with the Illinois Secretary of State which states the authority, or limitations thereon, of any member, manager or other person to transfer real estate on behalf of the limited liability company or enter into any other transaction which binds the limited liability company. (See §13-§15).

ELIMINATION OF FORCED PURCHASE UPON DISSOCIATION FROM LIMITED LIABILITY COMPANIES

Before the new revisions, the members of a limited liability company were required to purchase the membership interest held by a dissociating member as part of the dissociation process. This requirement has been removed completely from the new LLC Act as a result of the revisions to Section §35-55 and the repeal of Section §35-60. Under the new LLC Act, the membership interest held by a dissociated member is to be treated as the same as transferee of a member. (See §35-55).

MEMBER’S RIGHTS TO INFORMATION

While a limited liability company is still required to keep the same information as before under §1-40, a limited liability company is no longer required to automatically give this information to a dissociated member (who is now treated as a transferee) unless such member submits a written demand upon the limited liability company stating the records request and the purpose of the request. Additionally, the new LLC Act now requires that the purpose for the request must be proper or it can be denied by the limited liability company. It is important to note that the new LLC Act imposes time limits on the limited liability company’s response to the dissociated member’s request. (See §1-40(c), §10-§15(a) and §10-§15(g))

ALTERNATIVES TO DISSOLUTION FOR A LIMITED LIABILITY COMPANY

Even though a limited liability company may be required to be dissolved pursuant to the LLC Act, the new LLC Act allows the members to petition the court to allow the limited liability company to resolve the issue causing the dissolution in a different method, including the purchase of a separating member’s interest.

CONVERSION OF A LIMITED LIABILITY COMPANY TO A DIFFERENT TYPE OF ENTITY

The new LLC Act expands the ability of a limited liability company to convert to a different entity (i.e. a corporation) and vice versa. In order to convert, the converting entity must satisfy certain criteria and the laws currently applicable to the organization must allow such a conversation.

ENFORCEMENT OF THE LIMITED LIABILITY COMPANY’S OPERATING AGREEMENT

The new LLC Act automatically binds a limited liability company to the operating agreement executed by its members’ regardless if the limited liability company assented to the operating agreement or not. Additionally, the new LLC Act assumes (and enforce the assumption) that any individual who becomes a member of a limited liability company accepts and assumes the current operating agreement. (See §15-5(f) and §15-5(g)).

Should you have any questions about changes to the Illinois Limited Liability Company Act, how the changes to the Act are going to affect your Operating Agreement, or any other laws that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material included within is for informational purposes only and does not constitute legal advice.

To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com

 

COURT STOPS IMPLEMENTATION OF DOL’S NEW FEDERAL OVERTIME RULE

 

In 2016 a new overtime ruling was scheduled to go into place that would have raised the salary threshold from $23,660 to $47,476. The rule also provided for triennial adjustments based on the 40th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census region.

Many people know this ruling was stopped, but was it? And do you know the crazy twists and turns this case has taken?

NEW OVERTIME RULE BLOCKED BY FEDERAL COURT

In November, 2016, the U.S. District Court in the Eastern District of Texas granted a nationwide preliminary injunction, saying the Department of Labor’s rule exceeds the authority the agency was delegated by Congress.

In its ruling, the court explained, “The plain meanings of the terms in Section 213(a)(1), as well as Supreme Court precedent, affirms the . . . conclusion that Congress intended the [white-collar] exemption[s] to depend on an employee’s duties rather than an employee’s salary.” The court recognized that the delegation of rulemaking authority allowed the DOL to update the duties tests. However, the court stated that “nothing in the [white-collar] exemption[s] indicates that Congress intended the [DOL] to define and delimit with respect to a minimum salary level.”

The court then determined that the new rule increasing the minimum salary under the salary level test was “directly in conflict with Congress’s intent.” Accordingly, the court ruled that the updated salary level test was unlawful. It reasoned: “With the Final Rule, the [DOL] exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test. . . . If Congress intended the salary requirement to supplant the duties test, then Congress, and not the [DOL], should make that change.” Interestingly, the court was careful to state (almost inconsistently with its opinion) that it was “not making a general statement on the lawfulness of the salary-level test” for the white-collar exemptions.

NEW OVERTIME RULE ON APPEAL

In December, 2016, the date the new rule was to take effect, the DOL filed a notice of appeal. The appeal will be heard by the U.S. 5th Circuit Court of Appeals.

OVERTIME RULE UNDER THE NEW ADMINISTRATION

July 26, 2017, the Department of Labor published a Request for Information (RFI) regarding the Overtime Final Rule, which was published on May 23, 2016, asking for public input on what changes the Department should propose. That comment period has ended and the Department is reviewing those submissions.

August 31, 2017, U.S. District Court Judge Amos Mazzant granted summary judgment against the Department of Labor in consolidated cases challenging the Overtime Final Rule. The court held that the Final Rule’s salary level exceeded the Department’s authority, and concluded that the Final Rule is invalid.

September 5, 2017, the Justice Department asks a federal appeals court to dismiss the DOJ’s appeal in the ongoing battle over a stalled Obama overtime rule that was expected to make some 4 million workers newly eligible for time-and-a-half pay.

October 30, 2017, the Department of Justice, on behalf of the Department of Labor, appeals the district court’s decision to the U.S. Court of Appeals for the Fifth Circuit.

November 6, 2017, the Fifth Circuit granted the government’s motion to hold the appeal in abeyance while the Department of Labor undertakes further rulemaking to determine what the salary level should be.

SO IT’S OVER RIGHT? OH WAIT THERE IS A TWIST!

Chipotle workers sue over company’s interpretation of FLSA overtime ruling

On June 7, 2017, a class action lawsuit was filed by thousands of New Jersey Chipotle workers alleges that the fast casual chain illegally deprived them of overtime pay.

The lead plaintiff on the case is Fairfield resident Carmen Alvarez, a 55-year-old mother and grandmother, who has worked as a manager-in-training at multiple Chipotle restaurants since 2013, often in excess of 40 hours per week. Last November, the suit alleges, she and other apprentices were converted from salary to wage workers and began making overtime—apparently in response to new federal guidelines. But when the Texas ruling came down, the suit alleges, Alvarez and her coworkers lost their overtime.

Attorneys for the plaintiffs argue that last year’s injunction did not actually state the date of the overtime rule’s implementation (Dec. 1), nor did the ruling prevent the rule from actually going into effect. A Chipotle spokesperson told Gothamist that the company is “compliant” with current law.

Where is this case now?

In April, 2018 the case was stayed. The New Jersey federal court has agreed to pause the dispute with Chipotle Mexican Grill Inc. pending Chipolte’s interlocutory appeal over a contempt order levied against the attorneys.  (An interlocutory appeal is essentially an appeal that happens before a case has gone to trial – in this case whether the plaintiff’s attorneys engaged in contempt).

 

What does this mean for your business? The new rule did not go into effect on December 1 as initially planned. Until there is a further ruling by the Court, employers may continue to rely on the current $455 per week salary threshold for exempt status. But if you had already made changes to your pay schedule in anticipation of the ruling, be careful if you remove an employee’s right to overtime pay.

Should you have any questions about overtime rules, exempt vs. unexempt employee classifications or any other law that may affect your business, or would like to schedule a free initial consultation, please contact Waltz, Palmer & Dawson, LLC at (847)253-8800 or contact us online.

Waltz, Palmer & Dawson, LLC is a full-service law firm with various areas of service to assist your business, including: Employment Law, Intellectual Property, Commercial Real Estate, Business Immigration, Litigation and general Business Law services. Individual services include Estate Planning, Wills and Trusts, Probate, Guardianship, Divorce and Family Law.

This article constitutes attorney advertising. The material is for informational purposes only and does not constitute legal advice.

To subscribe to our business e-newsletter, pleases send an email request to www.info@wpdlegal.com

 

 

CONGRATULATIONS PAOLA ASCENCIO – NIU TAKES 2nd PLACE

Paralegal Paola Ascencio of Waltz, Palmer & Dawson, LLC and Member of the Northern Illinois University Mock Trial, participated in the Illinois State University’s 17th Annual Mock Trial Invitational Tournament hosted at the McLean County Law and Justice Center in Bloomington, IL. Lead by coach Mitch Pickerill, (not pictured), Northern Illinois University took 2nd place out of the twenty-six teams that participated.