If you are owed money from a customer who is insolvent, beware of the "boomerang" effect that can happen to vendors. If the customer files for bankruptcy protection, there is a legal basis for seeking repayment of the funds that were made to vendors within 90 days of the bankruptcy filing if such payments are considered to be a "preference" payment over other vendors. This means the vendor provided a preference by way of payment received more than the vendor would have received if the case had been filed under Chapter 7 of the bankruptcy code (liquidation) and also more than the vendor would have been paid after the debtor company filed for bankruptcy protection.
A recent bomb threat was reported in the news involving a Tyson Foods chicken processing plant in Center, Texas. Responsible risk management for employers suggests a policy be put in place to describe how the company will respond to such threats. A person's first reaction is to call the police and report the threat. However, an Alpha code policy may suggest otherwise, depending upon the circumstances involved. Employee safety in the workplace also requires employers to consider this aspect of threats and violence occurring that is occurring more frequently in today's times. Under the General Duty clause in the OSHA regulations, employers are required to have in place policies, procedures and employee training involving bomb construction, bomb threats, planning premise, plan development, physical security, bomb threat response, evacuation procedures, bomb search procedures, suspicious objects found, and news media.
Attorney Bruce Smith of the Goosmann Law Firm spoke at the 2014 Business & Industry Seminar sponsored by Cain Ellsworth & Company, LLP on October 28th at the Terrace View Event Center in Sioux Center, Iowa.
The Occupational Safety and Health Administration has issued a final rule with new requirements for reporting work-related deaths, injuries and illnesses. The revised rule requires employers to report work-related fatalities within 8 hours and work-related hospitalizations, amputations and losses of an eye within 24 hours.
January 9, 2014. In 2013, Governor Branstad signed into law legislation establishing a Business Property Tax Credit (BPTC) for qualifying commercial, industrial or railway property in Iowa . Applications must be filed in the assessor's office by January 14, 2014, for the first year application and tax credit. Any forms received after this date will miss the credit for the first year. Once the BPTC is assigned, property owners will not have to refile for it, unless there is a change in the business. The deadline for refiling, if required, is March 15, 2014, and each year thereafter, for credit on taxes payable 2015-2016, and thereafter. To apply and qualify for the tax credit, you must certify in writing that the property is not rented or leased to low-income indviduals or families. Also, your property cannot be a mobile home park, manufactured home community, land-leased community, or assisted living facility as defined under Iowa law, or used for human habitation containing three or more separate dwelling units. Would you like more information? Contact Goosmann Law Firm at firstname.lastname@example.org or call 712.226.4000.
November 8, 2013. Complying with OSHA regulations concerning the need to de-energize equipment under the Lockout/Tagout program pursuant to 29 CFR §1910.147 can be complicated. See the recent decision from the federal Occupational Safety and Health Review Commission in General Motors Corp., 2007 WL 4350896 (Docket No. 91-2834E & 91-2950). Employers must understand that the program requires equipment specific procedures in writing on how to lock and tag out the equipment involved before an employee breaks the plain of the equipment exposing his hands and body parts to de-energized moving parts. Also, employees must be verifiably trained on the LOTO procedures. Annual retraining must occur along with annual certification that the LOTO procedures are current and accurate. Year after year, the federal Lockout/Tagout (LOTO) standard is one of the top 10 most frequently cited OSHA standards. To learn more about risk management techniques for your business contact the Goosmann Law Firm at email@example.com or call 712.226.4000. Also check back for our monthly webinars.
October 24, 2013. Criminal liability for environmental violations serves as a constant reminder for not only corporations, but for individuals working for a company, to avoid such risks. For instance, §1319(c) of the Federal Clean Water Act provides penalties for dischargers or individuals who violate certain requirements of the CWA concerning municipal wastewater treatment facilities. §1319(c)(3)(A) of the CWA provides that "Any person who knowingly violates [various sections of the CWA]... or any permit condition or limitation... and who knows at that time that he thereby places another person in imminent danger of death or serious bodily injury ... [commits a felony punishable by up to 15 years imprisonment]. Legislative history behind the Act reveals that Congress intended that an individual merely have knowledge of an action which "causes" a permit violation in order to be subject to criminal sanctions. United States v. Weitzenboff, 1 F.3d 1523 (9th Cir. 1993), amended on denial of rehg and rehg en banc, 35 F.3d 1275 (9th Cir. 1994), cert. denied, 115 S. Ct. 939 (1995). (quoting S. REP. No. 50, supra note 37, at 29). The CWA is not unique by imposing criminal liability on individuals for unlawful acts. The business community and employees must be educated and forewarned about such liability to make sure steps are taken to ensure compliance with environmental laws and regulations consistently occurs. Email firstname.lastname@example.org or call 712.226.4000 for help ensuring that your business is in compliance.
October 3, 2013. How to properly manage risk between contracting parties is important. The purpose of providing for an additional insured under liability coverage provisions is to protect the rights of another party that might become legally liable for the actions of the named insured. For instance, a landlord might become entangled in a lawsuit caused by the actions of his tenant. By naming the landlord as an additional insured, the named insured extends coverage, especially defense costs, to the landlord. The tenant's insurance company would have to defend both the named insured and the additional insured. The owner of a premises who hires contractors to perform work on the property should require the contractor to provide liability insurance naming the property owner as an additionally named insured. If an accident occurs resulting in injury or death, the contractor's insurance coverage will also protect the property owner's liability exposure up to the limits of that policy. For more information contact the Goosmann Law Firm at email@example.com or by calling 712.226.4000.
Criminal prosecutions of workplace fatalities investigated by OSHA have been far and few between over the years. Since OSHA's existence more than 30 years ago, over 200,000 workplace related deaths have occurred, yet only a handful of those cases have been referred to the Department of Justice for criminal prosecution. If a death results from the commission of a "willful violation" of an OSHA standard, the employer is subject only to a misdemeanor offense. OSHA reports only eight convictions has resulted in prison sentences for company officials. Nonetheless, employers and managers alike need to appreciate the risks involved if there is a willful and intentional disregard for the safety of workers and that such disregard can result in a criminal referral by OSHA over to state and federal prosecutors. For more information, contact Bruce Smith at the Goosmann Law Firm, 410 5th Street, Sioux City, IA 51101. Phone: 712-226-4000. Email: firstname.lastname@example.org.
August 22, 2013. OSHA's multi-employer worksite liability policy is a risk management area of concern construction site owners and general contractors should be aware of. Project teams should recognize the different types of employers and their safety duties and responsibilities and also how to pre-plan the safety of their employees for each workplace activity in order to proactively prevent injuries and deaths. There are times when the facility owner will be acting as the general contractor. Even delegating general site construction activity to a general contractor does not necessarily absolve the facility owner from OSHA liability. OSHA Directives CPL 02-00-124 and CPL 2-0.124 -- Multi-Employer Citation Policy (Dec. 10, 1999). Multi-employer Worksite policy, states: "On multi-employer worksites (in all industry sectors), more than one employer may be citable for a hazardous condition that violates an OSHA Standard." The following two-step process determines when one or more employers should be cited: 1. Establish if the employer falls into one of these categories: Controlling, Exposing, Creating and/or Correcting. 2. Establish the employer's obligations for the category(ies) in which they are grouped. For more information about OSHA multi-employer worksite liability policies and how facility owners and contractors are affected, contact: Bruce Smith at the Goosmann Law Firm, 410 5th St., Sioux City, Iowa 51101 whose practice includes Environmental, Health & Safety, Risk Management and Business Manufacturing. Email: email@example.com.