Elaine Yandrisevits, an Associate in Antheil Maslow & MacMinn's Estates & Trusts practice group, will participate as faculty on April 23 & 24 at a National Business Institute continuing education program at the Sheraton University City Hotel in Philadelphia.  The program will highlight information crucial to effective adminstration of an estate in Pennsylvania.

This two-day basic level seminar will provide attorneys, accountants, tax professionals Financial Planners, Trust Officers and Paralegals an overview of the latest court and tax rules and the most effective transfer tools to ensure each client's estate is laid to rest according to the decedent's wishes, with minimal tax burden. This comprehensive program will cover all the skills needed to administer estates that include trusts and/or business interests.

Course Content

• Crucial notice and filing requirements when opening the estate

• Forms and checklists that will help you in administration.

• Understand how income and estate tax deductions interact and find the most advantageous way to structure the tax returns

• Learn how to use disclaimers more effectively.

• Clarify what must be done when the trust becomes irrevocable.

• Practical legal ethics guide focused on trusts and estates practice.

• Prevent mistakes in final petition and ensure each estate is closed quickly and without disputes.

  To register, visit Estate Administration Boot Camp

One of the trickiest issues we deal with in business control disputes relates to the impact and management of personal guaranties on the part of the individual shareholders/members.  A personal guaranty can be an impediment to a transaction among the shareholders consolidating ownership, an impediment to the withdrawal of a shareholder/member, or even a trigger of default under the terms of financing agreements in place between a business and its bank.  Managing the impact and expectations of business owners as to a personal guaranty should be considered in the early stages of any potential transaction.

In nearly every small business banking relationship, the bank requires personal guaranties on the part of business owners.  Personal guaranties, often even the more overbearing “spousal” personal guaranties, are the norm.  Of course, the purpose from the bank’s perspective is to increase the level of security against repayment.  The individual terms of the personal guaranty are governed by the language of the agreements. 

The net effect of a personal guaranty is to, in effect, pierce the corporate veil and render the guarantor liable for the debt to the bank (or other creditor party to the guaranty agreement).  In this way, not only does the bank obtain another source from which it can recover, but also dramatically impacts its practical bargaining power.     Often we see shareholder agreements including and incorporating indemnification provisions which reference those situations in which a shareholder/member has guarantied an obligation to a lender.  The value of such indemnification provisions is suspect given that the bank is always going to look to the path of least resistance to recover the extent of its obligation.  In a guaranty the company is the primary obligor to the creditor.  It is the primary obligor’s default which leads to exposure under a personal guaranty.  In that instance, the company is not likely in a position to indemnify as its assets are likely devoted to the repayment of the primary guarantied obligation.

The best and most frequent approach to a personal guaranty in a business control dispute is to secure the release of the guaranty by the bank or other creditor as part of the transaction.  Certainly, if the debt is retired in a third party sale, accounts are closed and the issue is moot.   Not necessarily so in an ownership consolidation transaction involving a transfer among existing owners or members, or where one or more shareholders/members leaves the business.  In that case, the business may continue and banking relationships may remain unmodified.  The bank is not required to release the guaranty.  Even further, under certain circumstances and agreements, a transaction may constitute an event of default of the credit arrangement.  Management of the personal guaranty becomes an important part of the deal.

It is obviously always better to secure a release of a guaranty contemporaneous with a transaction.  If that course of action is unavailable, indemnity is the only other option.  In such cases, indemnification should flow from both the company and individuals as, if the guaranty is ever an issue, it is likely the Company’s ability to pay in the first place, which gives rise to creditor’s pursuit of the guarantor.    

Elaine Yandrisevits, an associate in Antheil Maslow & MacMinn’s Estates and Trusts practice group, will participate as faculty on March 28th at a Pennsylvania Bar Institute continuing education program in Philadelphia, with simulcast at various locations. This basic to intermediate level program will teach the essential procedures for closing an Pennsylvania estate including: the advantages and disadvantages of the methods used to close an estate, steps involved in a Formal Court Accounting and Audit, Family Settlement Agreements and Receipts and Releases.  To register visit www.pbi.org/meetings

Course Content

Examine Each Step of a Formal Court Accounting and the Audit Process

•  Learn the statutory requirements for filing an account
• Understand the nuances involved in providing proper notice to an accounting
• Know what forms to use and when
• Understand how to handle objections to the accounting and walk through the audit process

Family Settlement Agreements and Receipts and Releases

• Understand what elements are required in a family settlement agreement
• Avoid common mistakes when drafting a family settlement agreement
• Review sample agreements and discuss enforceable issues

A recent case from the United States Court of Appeals for the Sixth Circuit demonstrates the ongoing struggle to apply the Fair Labor Standards Act (“FLSA”) to the “side gigs” that have come to signify the modern employment market.  In Acosta v. Off Duty Police Services, Inc., United States Court of Appeals for the Sixth Circuit, Nos. 17-5995/6071 (February 12, 2019), the Sixth Circuit held that security offers working for Off Duty Police Services (“ODPS”) as a side job were employees entitled to overtime pay under the FLSA.  

ODPS workers were either sworn law enforcement officers who worked for law enforcement entities during the day, or unsworn workers with no background in law enforcement.  All workers had the same duties, but sworn officers earned a higher hourly rate.  Duties included “sitting in a car with the lights flashing or directing traffic around a construction zone.”  They were free to accept or reject assignments, but would be punished by withholding future assignments if they did so.  When they accepted an assignment, ODPS instructed the workers where to report, when to show up, and who to report to upon arrival.  ODPS provided some equipment, but workers did have to use some of their own equipment.  Workers followed customer instructions while on assignment, and only occasionally received supervision from ODPS.  ODPS paid workers for their hours upon submission of an invoice.  Workers did not have specialized skills, as sworn officers and unsworn workers had the same duties.   

ODPS treated the workers as “independent contractors.” As the facts set forth in the Sixth Circuit opinion demonstrate, the factors relevant to determining whether a worker is an independent contractor or employee do not provide a clear answer.  The United States District Court for the Western District of Kentucky broke the tie this way:  the court held that “nonsworn workers” were employees, but that the sworn officers were independent contractors because they “were not economically dependent on ODPS and instead used ODPS to supplement their incomes.”   

The Sixth Circuit disagreed, noting that the FLSA is a broadly remedial and humanitarian statute, designed to improve labor conditions.  The Sixth Circuit applied the “economic reality” test to determine that the sworn offers were also employees and not independent contractors, and to uphold the finding that unsworn workers were employees.  Specifically, the Court noted that the officers provided services that represented an integral part of the business, and that the work required no specialized skills, that the officers made only limited investment in equipment, and that the workers had little opportunity for profit or loss.  The Court noted that the facts did not “break cleanly in favor of employee or independent contractor status” regarding the right to control the work for the sworn officers.