Risk Management

Risk Management

Our relationships transcend the typical attorney-client dynamic. Our lawyers become an integral part of a business’s strategic planning and risk management teams, working hand-in-hand with management to grow your business.

We partner with our clients to ensure that legal relationships are aligned with their business goals, working together closely to establish standard operating procedures that will address the everyday risk involved with managing a business. Each step of the way, we’ll weigh the potential costs and benefits of each prospective approach and action – whether it involves developing and implementing strategies for commercial agreements, managing employment and benefits risks, or analyzing and evaluating insurance plans.

We are comfortable operating in industries with long-standing market practices, but we also focus on emerging industries that need a more tailored approach to risk management and resource allocation. For each of our clients, we take a customized, practical approach to risk management, while keeping the company's strategic goals in perspective.

Our Services

  • Entity structuring: aiding in entity selection; structuring to minimize risk and owner liability
  • Commercial agreements: coordinating risk profiles for suppliers and customers, including impacting factors like raw material costs, term lockups, and tooling access and ownership
  • Global project management: devising solutions for the unique and complicated risks that apply in diverse global markets, while utilizing the local intelligence of our alliance lawyers to implement the chosen strategies to grow your business in markets worldwide
  • Licensing agreements: developing strategies for inbound and outbound licensing of IP, including patents, marks, copyrights, processes, branding and know-how; preparing and negotiating inbound and outbound licenses and sublicenses to use, produce, reproduce, or market services or goods incorporating or relating to IP
  • IP analysis and risk assessment: analysis of IP platforms; preparation of IP protection strategies; inbound and outbound licensing preparation; comprehensive IP audits
  • Standard operating procedures: creating processes for managing your internal and external business needs while incorporating “best practices” into financial, commercial, IP and human resource platforms; conducting executive and administrative staff training for the purpose of implementing best practices
  • Employment and benefit risk: drafting and reviewing employment policies and procedures; drafting employment contracts and independent contractor contracts; advice regarding implementation of polices and compliance with federal, state and local laws regarding the workplace; defending employers against administrative and judicial actions alleging violations of employment laws

Our Clients

Our risk management clients range in size from pre-seed start-ups to mid-sized public and private entities. We advise clients across a number of industries, but our service always focuses on the unique opportunities, risk factors, and cost structures that affect each specific client need and goal.

People

Steve Barsotti

Managing Director + Chair, Emerging Business

614-462-5458Email
David M. Wilson

Director + Chair, Privacy + Data Responsibility

614-462-5406Email
Kacie N. Davis

Director + Chair, Business Transactions + Franchising

614-462-5402Email
Vinita Mehra

Director + Leader, Global Business Practice

614-255-5508Email

Experience

Providing Strategic Counsel for a Global Online Payment Company

Sale of Food Safety Consulting and Research Business

Exchange of Real Property Between U.S. Army and Private Industrial Park

Creation of Dual-Rail Industrial Park

Publications + Presentations

Presentation

Rethinking Engineering Ethics: Lessons from Leading U.S. and Global Programs

Ohio Department of Transportation Local Technical Assistance Program (LTAP)
Presentation

Rethinking Engineering Ethics: Lessons from Leading U.S. and Global Programs

Ohio Department of Transportation Local Technical Assistance Program (LTAP)
Presentation

AI + the Future of Highway Design: Opportunity, Risk + Responsibility

ACEC/ODOT Partnering Conference
Article

New Data Privacy Requirements, But Do They Apply to Your Business?

publication

Ohio’s Revised LLC Act - What You Need to Know

Article

Guess What’s Back (Back Again)

E-mployment Alert
publication

School’s Out for the Coronavirus

Smart SummaryWith schools once again switching to remote learning, the FFCRA is once again front of mind for business owners and HR managers.Offering flexibility in telework and intermittent scheduling can help employers avoid having to grant FFCRA leave for working parents.HR departments should monitor the reasons for requested leave because a company is only eligible for FFCRA tax credits for qualified leave.“Out for summer, out ‘til fall, we might not come back at all.” Franklin County is now listed as purple on Ohio’s COVID-19 map, and three more counties are approaching that level. Last week, the city of Columbus and Franklin County issued a Stay-At-Home Advisory “strongly advising” residents to stay home, not travel outside the state, and forego houseguests during the holiday season. In light of these developments and the continued surge in cases, many Columbus-area schools are changing their learning models. Some (like Dublin, Reynoldsburg, and Worthington) have shifted to a full remote schedule for the rest of the year, while others are giving parents the option of in-person or remote learning. But even though school may be out, it doesn’t mean employees have to be. We’ve outlined the FFCRA paid leave options here, here, and here, but as a reminder, parents who are unable to work due to a need to care for children who are at home due to school and daycare closures can qualify for up to 12 weeks of paid leave under the expanded FMLA and emergency paid sick leave provisions of the FFCRA. This leave is paid at ¾ of the employee’s regular rate. As we move into this next phase and leave requests presumably increase, here are some key reminders for employers (with an assist from “School’s Out” by Alice Cooper). 1. “No more pencils, no more books.” (but Mom and Dad may still have to work) Perhaps the most important exception to the paid leave requirements is outlined in the FFCRA itself. It specifies that parents must be unable to work—including telework—due to the need to care for kids who are at home. This means that if you allow employees to work from home and/or on a flexible schedule, they may become ineligible for leave. For example, if an employee has children who will be home and needs to help them periodically throughout the school day, you can instruct the employee work his/her usual number of hours, but on a flexible schedule and outside typical working hours. Then, they are able to work and leave is not necessary. You could also allow the employee to take leave on an intermittent basis. In the example above, this might mean for only a couple of hours a day when the parent needs to help his/her children log on in the morning and in between Zoom sessions. In short, being flexible may help keep your employees working and out of a twelve-week paid absence. While school may have “been blown to pieces,” it doesn’t mean your workforce should be too. 2. “If that don’t suit ya, that’s a drag.” This past fall, the DOL updated it’s guidance on the applicability of FFCRA leave in anticipation of school closures and alternative schooling options. It specified that employees who chose to educate their children from home when the school gives them the choice of either online or in-person learning are ineligible for any form of paid leave. On the other hand, if the school mandates distance learning, whether on a hybrid schedule or full time, FFCRA leave is still available for the days children are at home. As the DOL explained, when parents are given an option and choose to school their children at home, out of concern for contracting COVID-19 at school for example, the school isn’t “closed,” as is required for FFCRA benefits. Given the different approaches taken by different school systems—and even different grades within the same school system—it will be important for HR departments to monitor the reasons for requested leave. Remember, your company is only eligible for FFCRA tax credits for qualified leave. 

E-mployment Alert
publication

Ohio’s New Retail Mask Order Compliance Checklist

Smart Summary Governor DeWine’s new order is materially different from the order this past summer and retailers need to adjust.Affected businesses should require masks, provide alternatives to eligible shoppers, post notice, designate compliance officers, promote physical distancing, and discuss how to handle angry customers.Be proactive- a second violation could result in the closure of your business for up to 24 hours.  Governor DeWine’s new mask order went into effect yesterday. If you are a store, retail business, or otherwise offer goods to customers in person, here’s your checklist for compliance. Require Masks The order requires all customers to wear a mask at all times unless they are medically or developmentally unable to do so. This requirement isn’t new. The governor’s original mask order went into effect over the summer, though this order specifies that cloth masks—as opposed to face shields—are what’s required of customers. Another new feature is the requirement that retailers provide those who are unable to wear cloth masks with specific alternatives. First, if someone is unable to wear a cloth mask, the company should allow them to wear a face shield. The only requirement is that the face shield must extend below the chin. As a second alternative, the order requires businesses to provide online and/or telephone ordering and no-contact pickup or delivery. Technically, this “personal shopping” must only be provided to those who can’t enter the store with a mask or compliant face shield. Post Notice Stores must post notice at all entrances requiring customers to wear a mask. Six sample notices are available for download here under the “Face Coverings” tab. Along with the required notice, we also recommend posting notice of your mask accommodations, stating that customers who are medically or developmentally unable to wear a cloth mask may enter with a face shield that extends below the chin. Also encourage individuals who are not able to wear a mask and do not have a compliant face shield to take advantage of remote ordering and pickup/delivery options. Designate a Compliance Officer + Decide How to Handle Tough Situations Each business is also responsible for designating a compliance officer(s). One compliance officer must be on-site at each business location for all business hours. If your employees rotate shifts, this means you’ll likely need to designate more than one compliance officer (though only one is required per shift). Compliance officers are responsible for ensuring that customers wear masks or properly take advantage of accommodations. The compliance officer is also the point of contact for local health department investigators and law enforcement officers. Compliance officers should also be instructed regarding how to address the difficult situation that arises when a customer refuses to comply with the order. If a person refuses to wear a mask (or compliant face shield if they cannot wear a mask), the compliance officer should first offer your personal shopping accommodation. If this doesn’t work, compliance offers can ask customers to leave or be denied entry. If the problem persists, some employers have instructed compliance officers to call local authorities to handle the situation and remove the offender. Of course, if a compliance officer or other employee ever feels that his or her safety is at risk, they should phone the police immediately. There is some ambiguity in the application of the order to those who cannot wear a mask for medical reasons; as a result of this, other retailers have elected to allow disgruntled customers to enter, but are taking steps to move those customers in and out of the store as quickly as possible. Note that the order contains a phone number where members of the public can report a business for not enforcing the order. The Bureau of Workers Compensation is tasked with investigating complaints and the second violation a company receives could lead to closure for up to 24 hours. Miscellaneous The order also requires employers to ensure physical distancing and hygiene. While most employers have already done so, you should mark six-foot separation spots at all check-out lines, designate aisles as “one way,” and limit or stagger the number of customers on the premises at a time. The order also requires retailers to place sanitizer in high-traffic areas, require regular employee handwashing, and disinfect high-touch items, such as carts and baskets after each use. 

E-mployment Alert
publication

Latest PPP Guidance Provides More Pieces to the PPP Puzzle

After more than a month without additional guidance from the Treasury or the SBA, new guidance was released on August 4th in the form of Frequently Asked Questions on Loan Forgiveness. Many borrowers have completed their covered periods and spent most or all of their PPP funds at this point. Accordingly, this guidance will be most helpful to those who have elected to use a 24-week covered period or have yet to apply for a PPP loan. If you have spent all of your PPP funds already, take solace in the fact that the SBA has clarified that borrowers may rely on the guidance available at the time of their application. With that out of the way, I have outlined some of the new pieces to the PPP puzzle below.Timing Timeline for Applying for ForgivenessBorrowers must apply for forgiveness within 10 months of the completion of their covered period. PaymentsBorrowers do not need to begin making payments on amounts not forgiven until the forgiveness amount is remitted to the lender by the SBA. Interest accrues on amounts owed during the time between the disbursement of the funds and the SBA’s remittance of the forgiveness amount on any amount that is not forgiven. After the lender receives notice from the SBA of the forgiveness amount, the lender is responsible for notifying the borrower of the forgiveness amount and the date on which the first payment is due. After that, the amount not forgiven must be repaid by the maturity date of the loan. Note that the maturity of the loan is 5 years if the loan was issued after June 5, 2020. For loans issued prior to June 5, the maturity date is 2 years, unless a different arrangement is reached between the lender and the borrower.Payroll Costs Cash v. Accrual BasisAccrual basis is reaffirmed for payroll costs incurred prior to the covered period, but paid during the covered period, and payroll costs incurred during the covered period, but paid by the next payroll date after the covered period. Cash Compensation and CalculationAll forms of cash compensation are includable as payroll costs (subject to the $100k annualized limit). This includes: tips, commissions, bonuses, and hazard pay. In calculating cash compensation to employees, it was not previously clear whether this would include the gross or net amount. The newest guidance clarifies that the gross amount before deductions for taxes, employee benefits payments, and similar payments should be used for calculating cash compensation. Group Health BenefitsAlthough not previously clear, the guidance clarified that forgiveness is not provided for group health payments accelerated from periods outside of a borrower’s covered period. However, those group health benefits payments by borrowers on behalf of employees that were incurred or paid during the covered period are still eligible for forgiveness. Retirement ContributionsAs with group health benefits, forgiveness is not provided for employer contributions for retirement benefits accelerated from periods outside of a borrower’s covered period. However, employer contributions for retirement benefits on behalf of employees that were incurred or paid during the covered period are still eligible for forgiveness. Owner CompensationThe guidance has provided detailed guidance on amounts paid to owners that are eligible for forgiveness for owners of C. Corps, S. Corps, Self-Employed Individuals, General Partners, and LLC Owners. Non-Payroll Costs Alternative Covered PeriodFor payroll costs, borrowers may elect an alternative covered period, beginning on their first payroll date after receiving their funds. However, this is not permitted for non-payroll costs. For non-payroll costs, the covered period is limited to the period beginning on the date of the disbursement of the PPP loan. Cash vs. Accrual BasisAccrual basis is reaffirmed for non-payroll costs incurred prior to the covered period, but paid during the covered period, and non-payroll costs incurred during the covered period, but paid during the next regular billing date after the covered period. Prepayments of Non-Payroll CostsPrepayment of all non-payroll costs (except for mortgage payments) is not prohibited. Unsecured DebtsInterest payments on unsecured debts are not eligible for forgiveness. Forgiveness is limited to interest payments on business mortgages on real or personal property (like auto loans). Renewal of Leases and Refinancing of MortgagesPayments on leases renewed during the covered period or mortgages that were refinanced during the covered period are eligible for forgiveness, so long as the obligation under the original agreement existed prior to February 15, 2020. Prepayments on lease obligations are not expressly prohibited. Transportation CostsPrior to the latest guidance, there was much confusion as to what constituted “transportation costs” as a permitted non-payroll cost. The guidance clarified that “transportation costs” refers to transportation utility fees assessed by state and local governments. Forgiveness Reductions Comparison Period for Seasonal EmployersSeasonal employers are to use the same 12-week period used for calculation of their loan amount as the period used for calculation of any reduction in the amount of loan forgiveness. Employees Making More Than $100kBorrowers are to include those employees who made more than $100,000 in 2019 on their forgiveness applications. Reductions to CompensationFinally, the guidance clarified that only decreases to an employee’s salary or wages are to be counted against a borrower for purposes of reductions to its forgiveness amount, as opposed to all reductions to that employee’s compensation.