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Guidance from Departments of Labor & Treasury Related to Families First Coronavirus Response Act

Mar. 27, 2020

The Departments of Labor and Treasury have issued some guidance related to the Families First Coronavirus Response Act.  Here’s what employers need to know:

  1. Poster – All covered employers must post notice of FFCRA requirements.  This is a link to a compliant poster.  Employers must hang the poster in a place where employees will see it from April 1, 2020, through December 31, 2020.  Employers can also satisfy the posting requirement by emailing or direct mailing the poster to employees or by posting the poster on an employee information internal or external website.  Additional information regarding the posting requirement can be found here
  2. Tax Credits for Employers – Employers who grant leave under the FFCRA may be entitled to tax credits.  This is a link to information released by the Treasury Department regarding the available credits.
  3. Small Business Exemption – Businesses with fewer than 50 employees may be exempt from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.  The Department of Labor has been tasked with providing regulations regarding this exemption and has stated that it expects to release the regulations in April 2020.
  4. Additional Guidance – The Department of Labor has issued the following additional guidance:
    1. Fact Sheets
      1. Employer Paid Leave Requirements
      2. Employee Paid Leave Rights
    2. Questions and Answers
      1. Families First Coronavirus Response Act
      2. COVID-19 and the Fair Labor Standards Act
  5. Lastly, here is a link to the Department of Labor’s Questions and Answers regarding the COVID-19 and the Family and Medical Leave Act

The employment law attorneys at Blethen Berens are here for you.  As a provider of critical services, Blethen Berens attorneys are available to you throughout the Shelter-in-Place order and beyond.  Please contact Julia Ketcham Corbett, Beth Serrill, Kevin Velasquez, or Alyssa Nelson with any employment law needs.


Blethen Berens Operations During Shelter-in-Place Order

Mar. 26, 2020

March 26, 2020

To our valued clients and colleagues, we are reaching out to communicate Blethen Berens’ efforts in response to the impact of the coronavirus (COVID-19) and Governor Walz’s Shelter-in-Place Order which will take effect on Friday, March 27, 2020.

As a provider of critical services, Blethen Berens will continue to serve our clients and maintain the same level of service quality, with an added focus on doing our part to prevent the spread of the virus and mitigate impact to the communities in which we live and work. 

From March 30, 2020 through April 10, 2020, we are taking the following actions:

  • Our attorneys and staff will primarily be working remotely, but may be available, as needed for in-person meetings. You can continue to reach them via email or telephone.
  • Our phones will continue to be answered and staff will be available to accept documents or deliveries at our office locations.
  • Our lobbies in both Mankato and New Ulm will be closed to visitors and deliveries, except by appointment.
  • We request that any documents that can be provided electronically or by mail, be provided in that format rather than being delivered to our offices.
  • We are shifting to virtual or telephonic meetings where possible
  • Real estate closings, will signings and other similar in-person events will continue, but with appropriate social distancing.

Blethen Berens has made investments in technology to transition to remote work and mobile capabilities.  We are confident that the technology, tools and commitment of our staff and attorneys will allow us to continue to serve our clients and partners and maintain effective communications and legal services delivery.

This is certainly not business as usual; however we believe the health and safety of our staff, our clients and our partners should be our top priority. We will work closely with our clients and partners to minimize disruptions and appreciate your help as we navigate these next few weeks and months.

We will update this information as the situation evolves and additional measures may become necessary.



The Families First Coronavirus Response Act – What are the New Leave Obligations that Covered Employers must Address?

Mar. 19, 2020

On March 18, 2020, President Trump signed into law the Families First Coronavirus Response Act (the “FFCRA”), which was passed by both the House and Senate with overwhelming bipartisan support.   The final version of the FFCRA that was enacted does have some changes from the House version that was passed on March 14, 2020.

The FFCRA has a number of provisions, but most applicable to employers are the new obligations on employers with fewer than 500 employees for mandatory paid leave through the Emergency Paid Sick Leave Act, and the requirement of additional leave, both paid and unpaid, under the Family and Medical Leave Act (“FMLA”) for what is referred to as “public health emergency leave.” 

The FFCRA contains provisions that employers will receive significant federal tax credits related to the amount of sick leave paid to employees under this law.

The FFCRA takes effect on April 1, 2020 and expires on December 31, 2020. 

A summary of the most relevant provisions for employers are as follows:

Emergency Family and Medical Leave Expansion Act

Covered Employers: Significantly, the FFCRA applies to all employers with fewer than 500 employees.  As a result, even employers with fewer than 50 employees, who previously were not required to comply with the FMLA, will now need to become familiar with and comply with the new leave provisions of the Emergency Family and Medical Leave Act and the notices and documentation required under the FMLA.   Employers with under 50 employees are still exempt from the prior provisions of the FMLA.

Eligible Employees:  Previously, in order to be eligible for FMLA leave, an employee must have worked for an employer for a minimum of twelve months and 1,250 hours in the prior twelve months. That has not changed for standard FMLA leave.  However, for the new public health emergency leave, employees are eligible if they have been employed by their current employer for a minimum of thirty (30) calendar days.

Exceptions to Covered Employers and Eligible Employees: The FFCRA provides the U.S. Department of Labor with the authority to issue regulations “for good cause” to: 1) prohibit “certain health care providers and emergency responders” from taking public health emergency leave; and/or 2) “exempt small businesses with fewer than 50 employees … when the imposition of [the new leave] requirements would jeopardize the viability of the business as a going concern.”  Those regulations have not yet been issued but we anticipate they will be and we will work to update this information as the regulations are issued. 

New Leave Requirements: Pursuant to the FFCRA, eligible employees will be able to take up to 12 weeks of “public health emergency leave” in the following circumstance:  

  1. To care for their child (under age 18) if their child’s school or place of care has been closed, or their child’s child care provider is unavailable, due to a public health emergency.

IMPORTANT NOTE:  The bill passed by the Senate and signed into law by President Trump is a change from the House version of the bill that passed on March 14, 2020, which allowed this expanded medical leave for additional reasons related to the employee’s own diagnosis, or need to care for others diagnosed with COVID-19.  Those additional reasons are not part of the final FFCRA that has been passed.

Terms of Leave:  Another significant change under the FCCRA is that, unlike prior FMLA leave, which was and remains unpaid, the public health emergency leave provides for paid leave.

The first ten (10) days of public health emergency leave can be unpaid.  However, as under the prior FMLA, employees can choose to substitute their accrued vacation, sick or PTO leave for this unpaid time, and given the Emergency Paid Leave requirement discussed below, many employees may choose to substitute their new additional Emergency Paid Leave for this period of unpaid leave.  Employers cannot require an employee to use paid time during the unpaid portion of the public health emergency leave.

Leave under the prior FMLA was all unpaid leave.  Importantly, under the FFCRA, if an employee continues to be eligible for and take public health emergency leave beyond the first ten-day period, covered employers are required to provide the employee with paid leave for the duration of the leave.  This paid leave must consist of an amount of pay that is not less than two-thirds of an employee’s “regular rate” of pay (per the FLSA) for “the number of hours the employee would otherwise be normally scheduled to work.”  The pay amount is capped at $200 per day and $10,000 for the entire leave.

Job Restoration.  As under the prior terms of the FMLA, covered employers must restore employees who take this public health emergency leave to their previous position or an equivalent position upon their return from leave.  This requirement is relaxed for small employers, who employ fewer than 25 employees Those employers do not need to restore an employee to his or her job following public health emergency leave if: 1) the “position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave”; 2) the employer makes reasonable efforts to restore the employee to an equivalent position; and 3) if the employer’s reasonable efforts fail, the employer makes reasonable efforts to contact the employee if an equivalent position becomes available during the following year.      

Emergency Paid Sick Leave Act

Covered employers are required to provide all of their employees with a new amount of paid sick leave through December 31, 2020

Covered Employers: All employers with fewer than 500 employees. 

Exceptions. An Employer of an employee who is a health care provider or emergency responder does not have to provide this Emergency Paid Sick Leave.  The Act provides the US Department of Labor to create regulations to exempt small businesses with fewer than 50 employees when the provision of the paid leave would jeopardize the viability of the business as a going concern.  However, these regulations have not yet been issued.

Eligible Employees: There is no length of service requirement in order for an employee to be eligible.

Amount of Paid Sick Leave.  Full-time employees of covered employers are entitled to up to 80 hours of emergency paid sick leave; part-time employees of covered employers are entitled to an amount of emergency paid sick leave up to the average number of hours they work over a two-week period.  This paid sick time does not carry over into the year 2021.

This leave is in addition to, any other paid time off the employer already offers to employees.  Employers may not require an employee to use other paid leave before they use the paid sick leave provided under the Emergency Paid Sick Leave Act. 

Paid Sick Leave Provisions.  Employers must provide each employee with paid sick time to the extent that the employee is unable to work due to a need for leave because:

  1. The employee is subject to a quarantine or isolation order related to COVID-19 (coronavirus);
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis;
  4. The employee is caring for an individual who is subject to a COVID-19 quarantine or isolation order or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19;
  5. The employee is caring for their own child if the school or place of care of the child has been closed or is unavailable due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretary of the Treasury and the Secretary of Labor.

Level of Compensation Required for Paid Sick Leave.  This leave is also paid at the employee’s regular rate of pay for reasons 1, 2 or 3 above, but is capped at $511 per day and $5,110 in the aggregate. For leave taken for reasons, 4, 5 and 6 above the required compensation is two-thirds of the employee’s regular rate of pay, capped at $200 per day and $2,000 in the aggregate.

Notice Requirements.  Covered employers will be required to post and keep posted, in conspicuous places, a notice regarding emergency paid sick leave that the Department of Labor must issue no later than March 25, 2020.  The DOL is also due to issue additional guidance to help employers comply with these new requirements.   

Blethen Berens recognizes that the FFCRA will impact many of our clients, especially those smaller employers of 50 or fewer employees who did not previously have to comply with the FMLA.  The requirements of the FMLA regarding notice and documentation can be complicated. There is a short time-frame for businesses to prepare to be in compliance with the FFCRA.  If you have questions about this new law and how to comply with its provisions, questions that are arising due to the impacts of the COVID-19 on your business, or any other employment law issues, please contact one of our employment law attorneys, Julia Ketcham Corbett, Beth Serrill, Silas Danielson, Kevin Velasquez or Alyssa Nelson.  We will continue to support you as we all navigate this challenging and uncertain times.

Setting Up Inheritances for Minors

Feb. 18, 2020

By Kim Literovich

Estate planning can involve a number of complex factors which can arise through a variety of scenarios. What happens if I’m sick and can’t make medical decisions for myself? What happens to my farm or business if I die? One such scenario is passing on your inheritance to your minor children. If you make no plans, your child will inherit at age 18.  Three factors to consider when planning your children’s inheritance are (1) what age you want them to gain control of the inheritance, (2) whom you want to manage the inheritance until they are of age, and (3) if the inheritance will interfere with any disability benefits.

If you were to pass away while your child was still a minor, at what age would you want them to have control of the money? Would they be ready to manage it when they become an adult at 18? You might also consider waiting until they are 21 or 25 to give them control. Another option is setting up a process by which the child receives percentages of the inheritance on certain birthdays, so that the amount of money they control increases with their age and maturity. In some cases, you may decide that it is best for the child to never have control of the inheritance. These questions are important to consider and must be decided on an individual basis depending on your situation.

Regardless of when you want your child to take control of their inheritance, you will need to name someone to manage the money until the child is old enough.  Depending on the circumstances, this could be a custodian or a trustee.  A custodian manages the money until they are 21. How they manage the money is determined by Minnesota’s Uniform Transfer to Minor’s Act, and you have no say in how the money is managed.  With a trustee, you set out the terms for managing the money in a trust, usually in your will.  The trustee can be a trust company or a friend or family member. This person may have to make some difficult decisions, so it should be someone you know well and can trust. The trustee will be relied upon to faithfully carry out your wishes and be prudent with the money you intend for your loved ones. The person you select must also be able to say “no” to your child if they want to use the inheritance in a wasteful way.

Another important aspect to consider when planning your estate for your minor children is the effect that inheritance can have on government disability benefits. The Supplemental Security Income (SSI) program and Medicaid (Medical Assistance in Minnesota) provides benefits to disabled individuals below a certain income and value of assets. Since an inheritance increases an individual’s income and assets, it may mean that that individual is no longer below the maximum level of income and assets needed to qualify for benefits. If you have a child who is disabled and qualifies for benefits, you will need to do further planning to make sure that they continue receiving their benefits when you die and pass on their inheritance. One possible solution is placing the inheritance in a special trust that provides benefits to your child but will not impact their benefits.

As with other types of estate planning, preparing an inheritance for a minor child depends on many complex factors. These include the laws of the state in which you live, the unique situation of the child, and your individual preferences. The best way to handle this is to reach out to an estate planning attorney who can take all these factors into consideration and prepare an estate plan that efficiently preserves your wealth for those you love most.

To learn more about the estate planning team at Blethen Berens, please visit our website. You can also reach them by calling our Mankato office at 507-345-1166 or our New Ulm office at 507-233-3900.

Blethen Berens Welcomes Paul J. Gunderson

Feb. 07, 2020

Blethen Berens is proud to welcome Paul J. Gunderson to their team of attorneys. Paul Gunderson concentrates his practice on general civil litigation, agricultural and business law, criminal defense, insurance defense, alongside general practice matters. Learn more about Paul by viewing his profile our website here

Blethen Berens & AEM Workforce Solutions Partner to bring AEM Engage Development Series to HR Professionals

Feb. 06, 2020

It can be difficult to find development opportunities for HR professionals which is why Blethen Berens and AEM Workforce Solutions are partnering to provide an educational and professional development opportunity in Mankato for HR professionals. It’s a 9-month program with 2 cohorts that meet monthly for a half-day; one cohort (the Foundation Circle) is geared toward newer HR professionals and will provide more basic information, the other (The Influencer Circle) toward more experienced HR professionals and will provide more advanced information. 

Registration is currently open. The cohorts will be limited to 25 people in each and sessions begin in March so register soon. See the flyer here for the upcoming schedule and topics to be addressed in each session. You may also register here.



Blethen Berens Partners with GMG on MN Wage Theft Law Seminar

Oct. 25, 2019

Greater Mankato Growth and Blethen Berens invite southern Minnesota business owners to join us for a seminar focused on Minnesota’s New Wage Theft Law, which is already in effect. The new provisions are related to documentation, recordkeeping, retaliation, enforcement authority, and criminal sanctions. This presentation will be valuable to all businesses, regardless of size, but may be especially valuable to the small to mid-sized business without dedicated human resource staff. 

Don’t waste your valuable time figuring out how to comply with this new law on your own. Let Blethen Berens help to make sure your organization is complying with these new requirements.


Have you used Roundup weedkiller in the past?

Oct. 17, 2019

Roundup can cause devastating side effects. During the past 13 months, juries have awarded more than $2.4 billion to four persons who used Roundup and later developed non-Hodgkin’s Lymphoma.

In July 2015, the International Agency for Research on Cancer classified glyphosate (the active ingredient in Roundup) as a “probable carcinogen” to humans. Some studies have shown that repeated exposure to glyphosate can more than double your risk of developing non-Hodgkin’s Lymphoma.

Blethen Berens is partnering with Meshbesher & Spence to help those harmed by Roundup in southern Minnesota. If you have used Roundup and were later diagnosed with non-Hodgkin’s lymphoma, click the Roundup link below to learn more information and for a free case evaluation.  You pay nothing unless we recover compensation on our behalf. 


US Department of Labor Announces Final Overtime Rule

Sep. 25, 2019

The U.S. Department of Labor (DOL) recently announced a final rule making more American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA). The current salary thresholds were set in 2004. Previously, in 2016, the DOL announced a final rule, significantly increasing the overtime thresholds for the “white collar” exemptions, which was to be effective December 1 of that year. This proposed change was halted by the Courts before it took effect. Then, after a change in White House administration, in July, 2017, the Department of Labor abandoned the proposed final rule from 2016 and started over with a new process of reviewing and proposing changes to the overtime rules. The resulting final rule, which will go into effect on January 1, 2020, provides an increased threshold salary for the white collar exemptions, but the increase is much lower than the previously proposed rule from 2016.

Key components of the final rule from the Department of Labor include:

  • the standard salary level for the white collar exemptions (executive, administrative and professional) will be increasing from the current level of $455 to $684 per week (equivalent to $35,568 per year for a full-time employee);
    • This means employees will have to be paid at least $35,568 per year on a salary basis. The duties tests for these exemptions did not change. To be exempt, employees must meet both the salary and the duties tests.
  • the total annual compensation level for “highly compensated employees (HCE)” will be increasing from $100,000 to $107,432 per year;
  • employers will be allowed to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually, at a minimum, to satisfy up to 10 percent of the standard salary level

Because this new rule goes into effect on January 1, 2020 there is a narrow window of time for employers to determine the impact of this new rule to their businesses. It also leaves a short amount of time to make changes to salaries or exempt/non-exempt status of employees, if needed. If you and your team need assistance determining the impact of this rule to your business or in implementing the provisions of this new rule, contact one of Blethen Berens employment-law attorneys – Julia Corbett (Julia Ketcham Corbett Bio), Beth Serrill (Beth Serrill Bio), Kevin Velasquez (Kevin Velasquez Bio) or Alyssa Nelson (Alyssa Nelson Bio) at 507-345-1166.


Estate Planning Terminology – Trusts

Aug. 28, 2019

Estate planning can be confusing, especially when special terminology is thrown in the mix. In particular, you might have heard that trust planning can be advantageous in an estate plan or broader tax planning but have no clue as to the difference between a revocable trust and an irrevocable trust, much less a testamentary trust versus an “ILIT,” “CRUT,” or “IDGT.” This article aims to help you sort through trust terminology so you can understand what plan may be best for you.

Revocable Trust. A revocable trust is just that—a trust that can be revoked. Think of a revocable trust as a glorified checking account: You can only establish a revocable trust while you are living. And like a checking account, you can freely move assets into and out of a revocable trust (and your creditors can access those assets to satisfy your debts). In addition, much like a transfer-on-death or pay-on-death designation on a checking account, the terms of the trust will control any assets in the trust at the time of your death.

It can be useful to use a revocable trust in many circumstances. Any assets placed in a revocable trust avoid probate. This can be especially helpful if you own real estate in multiple states. Without placing the land in a revocable trust, a probate will be necessary in each state where there is real estate. Using a revocable trust also helps protect your privacy. Court records of any assets that pass through probate are publicly available. In contrast, a revocable trust is a completely private structure, so any assets that are transferred into or out of the trust are protected from public view. A revocable trust can also be helpful to manage assets if you become disabled or incapacitated. When you are no longer able to manage assets in the trust, someone else named in the trust documents can step in to act as trustee and manage the property in the trust.

Irrevocable Trust. An irrevocable trust, as the name suggests, is one that is irrevocable. That means that any assets you place in the trust are permanently subject to the terms of the trust. An irrevocable trust may be created during your life (a so-called inter vivos trust) or at death by the terms of your will (a “testamentary trust”).

Testamentary Trust. As noted above, a testamentary trust is a type of irrevocable trust. You can use testamentary trust language in your will to automatically create a trust when you die to protect the persons inheriting from you. For example, a testamentary trust can be created to prevent young people from inheriting large sums of money. So rather than your grandchild inheriting a substantial sum at age 18, the assets can be held in a testamentary trust until he or she reaches a more suitable age that you designate—say, age 30. A testamentary trust can also be used to hold assets more permanently so that one of your heirs who is not financially responsible can’t waste their inheritance on frivolous purchases. By using a testamentary trust, the trustee has to approve many or all trust distributions so that the assets are used for appropriate purposes. And for spouses with a high net worth, testamentary trusts can be used to allow your surviving spouse to access your assets while still taking advantage of Minnesota estate tax exemptions.

Inter Vivos Irrevocable Trust. Inter vivos irrevocable trusts can be used in a wide variety of ways to reduce or avoid estate or income taxes. For instance, an irrevocable life insurance trust (“ILIT”) can own a life insurance policy on your life so that the life insurance proceeds are not included in the calculation of estate tax. A charitable remainder unitrust (“CRUT”) makes payments to beneficiaries for a certain period and then passes the remainder interest to charity, allowing you to take a charitable deduction and reduce the amount of your assets subject to estate tax. Other trust types you may encounter include a grantor retained annuity trust (“GRAT”), intentionally defective grantor trust (“IDGT”), and a qualified personal residence trust (“QPRT”). The terms of these and other inter vivos irrevocable trusts are quite intricate, so be sure to consult with your attorney and tax professional about how they can be helpful to you.

If you have questions or think that trust planning may be right for you, contact Blethen Berens at 507-345-1166 to schedule a consultation.

By: Jared Koch