While it may not always be obvious, the law is in the background of nearly every aspect of your business from hiring, retaining or terminating employees to improving your facilities to making sure your assets are protected and passed on according to your wishes. Our legal expertise panelists share their insights on how their legal expertise impacts your business.
Panelists:
William J. Amann, partner at Amann Burnett Law, amburlaw.com
Hannah Devoe, an attorney specializing in employment and municipal law with Drummond Woodsum, dwmlaw.com
Maria T. Hyde and Austin M. Mikolaities, attorneys in the business law group at Shaheen and Gordon, shaheengordon.com
Robert J. Kendall, associate attorney, Primmer, Piper, Eggleston & Cramer PC, primmer.com
James Kerouac, shareholder and co-chair of the real estate practice group, Bernstein Shur, bernsteinshur.com
Timothy O’Brien, member of trust and estate planning, probate administration and business practice groups at Upton & Hatfield, uptonhatfield.com
John Prendergast, member of the disability, leave and health management group at Jackson Lewis, jacksonlewis.com
William J. Amann, partner, Amann Burnett Law
Will filing a bankruptcy stop a foreclosure against my house in Massachusetts?
The U.S. District Court for the District of Massachusetts recently issued an opinion in an appeal from the Bankruptcy Court denying a Chapter 13 debtor’s attempt to avoid a foreclosure sale that occurred before the bankruptcy case was filed.
The term “avoid” is a bankruptcy term of art akin to “reverse” or “undo” in layman’s terms. Certain sections of the Bankruptcy Code permit a trustee or, in some circumstances, a debtor, to avoid transfers of money or property that occurred before the bankruptcy case was filed.
A foreclosure auction is a transfer for bankruptcy purposes. Since at least the decision in In re Mularski, 565 B.R. 203 (Bankr. D. Mass. 2017), many Chapter 13 debtors have been successful in avoiding a foreclosure sale under specific sections of the Bankruptcy Code when the bankruptcy case is filed after the sale takes place but before the foreclosure deed is recorded.
The legal mechanics to avoid a pre-petition foreclosure are briefly described in the Bankruptcy Code at § 544(a)(3).
As of the date of this article, the Debtor has filed a notice of appeal to the First Circuit Court of Appeals.
What kind of law do you handle?
The attorneys at Amann Burnett have several decades of experience, specifically in the realm of commercial litigation, bankruptcy representation of both creditors, debtors and interested parties in Chapter 11, 13 and 7 cases.
We are well versed in subchapter V cases, small business cases and single-asset real estate cases. We regularly handle and lecture nationally to other attorneys for CLE’s on subjects such as the Automatic Stay, Debt Subordination, Debt Characterization, Plan Formulation and Plan Objections, Asset Valuation, Dischargeability, Mechanic’s Liens, §363 Sales, Proofs of Claim issues, Adversary proceedings and Bankruptcy Appeals.
Besides bankruptcy, we also have extensive experience with business law issues such as business creation and dissolution, partnership disputes, fraudulent transfers, UCC issues and Labor Law.
We also handle specific real estate cases such as mechanic’s liens and land use. We regularly represent construction contractors as well as home and business owners. We also have a great deal of experience with partition of real estate cases, student loan sebt, mediation and arbitration, and bankruptcy appeals.
Why should I hire your firm?
We view our primary role as problem-solvers. We are down-to-earth and pragmatic. While we can (and often do) go toe-to-toe against some larger or more expensive firms, we know that knowledge, experience, preparation, attention to detail and common sense nearly always wins the day.
Generally, no one wants to need a lawyer. It often means that you or your business have a problem. While we can’t prevent claims against you or your business that occur before we begin working with you, we can help you defend them at the highest caliber of legal work. Sometimes we can prevent claims against you if we are hired soon enough.
Our attorneys have a mix of experience ranging from working at big firms, being a solo practitioner and law school professor. We solve problems in the most economical way.
Because we often handle bankruptcy cases, we understand that resources are often scarce in any case, whether as a plaintiff or defendant and whether in or outside of bankruptcy. The reality of litigation is that it can be expensive and carry risk.
We are experts at risk assessment and working with clients to develop the best plans of action. We pride ourselves on working hard, being creative and providing the best possible outcomes in every case.
Hannah Devoe, an attorney specializing in employment and municipal law with Drummond Woodsum
What are some updates to employment law that businesses should be aware of?
Recently, there have been two legal updates that will impact employees who are, recently were, or who seek to be pregnant — the federal Pregnant Workers Fairness Act (PWFA) and New Hampshire’s Policies Related to Nursing Mothers, codified in RSA 275:78–:83.
These laws seek to clarify how employers should support, and engage with, employees and applicants who are/were/may become pregnant. Employers must become familiar with the standards and processes outlined in each.
What is in the Pregnant Workers’ Fairness Act?
The PWFA, which went into effect on June 27, 2023, requires covered employers, those with 15 or more employees, to provide reasonable accommodations to a qualified employee’s or applicant’s known limitation(s) related to, affected by, or arising out of pregnancy, childbirth, or related medical condition.
To determine what reasonable accommodation should be provided, the PWFA requires an interactive process like the Americans with Disabilities Act (ADA). While this standard may sound like employers’ obligations under the ADA, the PWFA’s protections are in many ways broader and more complicated to apply. Here are some essential points about the PWFA.
The PWFA applies to pregnancy and related medical conditions, the list of which is extensive including menstruation, infertility/fertility treatments, pregnancy termination (including abortion), and lactation conditions including low milk supply. It may also apply to underlying conditions exacerbated by pregnancy, including where an employee can no longer take medication treating another medical condition due to pregnancy.
The PWFA applies to current pregnancy, past pregnancy, or potential/intended pregnancy. Only exploring or utilizing the PWFA when an employee is pregnant won’t be enough.
Employees and applicants may be entitled to accommodations under the PWFA even where they cannot perform one or more essential functions of the job, so long as that inability is “temporary,” and they will be able to perform the essential function in the “near future.”
Thus, under the PWFA, employers will need to consider and/or assess the temporary suspension or removal of an essential function(s) as a potential accommodation.
Under the PWFA, there are specific instances where employers may not ask for a doctor’s note during the interactive process.
This includes where the limitation and reasonable accommodation is obvious; where the employer has sufficient information to support a known limitation; where the request is one of the four “predictable assessment accommodations” (to carry/keep water, to take additional restroom breaks, to sit/stand as needed, to take breaks to drink/eat); requests for lactation accommodations; and when employees with known limitations receive the request modification under policy or practice without supporting documentation.
Employers should be thoughtful about pregnancy and related conditions moving forward. While employers navigate the PWFA in its early stages, it is important to frequently connect with legal counsel to ensure that you are properly applying the rules without overstepping boundaries with your employees.
What is included in New Hampshire’s law regarding nursing mothers?
Starting July 1, 2025, employers will also need to ensure compliance with the new sections of RSA 275, subtitled Policies Relating to Nursing Mothers.
The New Hampshire law, which imposes specific requirements beyond the federal PUMP Act, applies to employers with six or more employees and requires employers to: (1) provide nursing employees with an unpaid break of approximately 30 minutes for every 3 hours of work performed; (2) a sufficient space for expression of milk; and (3) adopt a policy addressing these topics, provided to employees at the time of hire.
The “sufficient space” cannot be a bathroom and must be clean, shielded from view, free from intrusion by coworkers or the public, and be equipped with at least a chair and an electrical outlet unless such equipment is infeasible.
Moving forward, employers should consider the overlap between the PWFA, the PUMP Act, and New Hampshire’s Policies Relating to Nursing Mothers, particularly where employees are seeking accommodations related to lactation. Employers may also consider consulting legal counsel to draft and revise policies to ensure compliance with these new laws.
Maria T. Hyde and Austin M. Mikolaities, attorneys in the business law group at Shaheen and Gordon
The Corporate Transparency Act (CTA), is a new federal law intended to provide law enforcement with specific ownership information to detect, prevent and combat business entity misconduct.
To accomplish this, the CTA requires certain business entities to file information with the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). The foregoing is not intended to be an exhaustive list of information regarding these new reporting standards.
Is my business affected by the Corporate Transparency Act?
The CTA-imposed filing requirements apply to “Reporting Companies,” which include corporations, LLCs, and other entities that are (1) created by filing with the secretary of state or similar office as required by state law, or (2) formed under the law of a foreign country and registered to do business in the U.S. In addition, foreign reporting companies identified as non-U.S. entities registered to do business in any state or tribal jurisdiction are also expected to file.
However, the CTA also outlines several exemptions from its filing requirements, including:
• securities reporting issuer
• governmental authority
• certain financial institutions
• investment companies and advisors
• insurance companies and producers
• commodity exchange act registered entities
• public accounting firms
• public utility companies
• tax-exempt entities
• large operating companies
• inactive entities
• most trusts used for estate planning purposes
If you have questions about whether your company is exempt, please contact our team.
How do I file a CTA report?
The filing process requires non-exempt reporting companies to submit Beneficial Ownership Information (BOI) reports electronically through FinCEN’s Beneficial Ownership Secure System (BOSS), at boiefiling.fincen.gov.
While the CTA only requires an initial report and there are no annual reporting requirements, the act does impose an obligation to maintain accurate and up-to-date information with FinCEN. There is no fee for submitting the BOI report to FinCEN.
The reported information will not be publicly available and will be stored in a secure private database maintained by FinCEN. The BOI report is not collected by the secretary of state and should only be submitted directly to FinCEN through the online filing system. The International Association of Commercial Administrators (IACA) advises reporting companies to refrain from reporting beneficial ownership information to any organization except FinCEN and beware of potential scam websites.
What are the deadlines and consequences of CTA?
Depending on when your business was created, the CTA sets specific deadlines for filing a report.
Business entities created or registered prior to January 1, 2024, have until January 1, 2025, to comply with the new reporting requirements.
Business entities created or registered between January 1, 2024 and December 31, 2024, must file a BOI report within 90 calendar days of notice of formation.
Business entities created or registered after December 31, 2024, must file a BOI report within 30 calendar days of notice of formation.
In the event of a change in ownership, membership, or control of your previously formed entity, you must file a BOI report within 30 calendar days of any such change.
If your business was previously exempt, but no longer meets the criteria for exemption, then you must file an initial report within 30 days from the date your business no longer met exemption criteria.
If you fail to file a report, then you may face serious penalties. Any person who willfully provides false BOI or willfully fails to report complete or updated BOI to FinCEN shall be civilly fined $500 per day for each day the violation continues and may face criminal penalties including fines of up to $10,000 and/or imprisonment for up to two years.
Consider contacting one of Shaheen & Gordon’s knowledgeable business attorneys to help you stay compliant and avoid consequences. Our team has proudly represented businesses across northern New England for decades and is always ready to guide clients through the latest legal requirements.
Robert J. Kendall, associate attorney, Primmer, Piper, Eggleston & Cramer PC
What are some ways property owners working with a construction company can proactively prevent/manage disagreements?
Having a contract that sets forth terms that outline each contracting party’s rights and responsibilities is an important baseline. Depending on the size and scope of the project, ensuring that all interested parties, including the owner, general contractor, and others such as an architect or engineer who may also be involved, have all relevant information made available to them helps prevent future missteps.
Many disputes arise from lack of communication, lack of written documentation procedures, or misunderstandings between parties. A detailed agreement that contracting parties understand from the outset is the best mechanism to prevent disputes. No contract is foolproof, and not all disputes can be prevented, but in the event they occur, parties can agree to disagree by having a process to settle disagreements. If the parties cannot agree between themselves, the parties can agree to seek to resolve the dispute via a neutral mediator. Ultimately, the law requires that contracting parties work in good faith with one another. If parties cannot settle their differences, a lawsuit may be inevitable.
What are the most common legal disputes you see when it comes to construction projects?
A wide range of disputes and legal issues can arise when things go awry on a construction project. Larger construction projects may involve a general contractor, plus multiple subcontractors.
Subcontractors are hired by the general contractor to perform a specific scope of work that a general contractor does not typically perform itself. These subcontractors perform work within a specialized industry, which includes professionals such as electricians, plumbers, HVAC technicians and other specialized contractors who perform a specific scope of work within the overall project. Given that subcontractors are performing much, if not all, of the actual construction on moderate or large projects, many construction disputes arise out of improper work performed by a subcontractor, which may give rise to additional claims between the owner, the general contractors and other parties involved.
Finding a replacement subcontractor, potentially having to re-do any defective work, and additional costs resulting from those delays can lead to ballooning legal disputes between multiple parties.
What are the options for resolving disputes?
Parties can voluntarily agree to enter into an alternative dispute resolution (ADR) process, such as mediation or arbitration. In mediation, the parties will work with a neutral mediator (typically a retired judge or lawyer specializing in mediation) who will work with the parties to attempt to reach a compromised agreement to settle the dispute.
Parties may also enter into arbitration, where the parties present their respective case to an arbitrator (or arbitration panel) which functions similarly to a trial judge, and the arbitrator(s) decide the merits of the dispute. Mediation and arbitration can both be voluntarily entered into by the parties, required by the parties’ contract, or mandated by the judicial system in the event of a lawsuit.
The alternative to ADR is simply to file a lawsuit in a court of competent jurisdiction. A lawsuit is typically the most expensive and time-consuming process but oftentimes cannot be avoided due to fundamental disagreements or uncooperative parties.
How do you handle situations where the disagreement is over something more subjective, like quality of workmanship or stylistic differences?
Quality of workmanship and stylistic differences can be a more difficult category of dispute to deal with, depending upon the exact deviation from the expected quality of work. Like many other types of disputes, having a detailed contract and set of plans, drawings or other documents that govern the work is the best way to remedy these situations.
Legal action in this regard may be challenging, depending on the degree to which the deviation in workmanship varied from what is considered acceptable in the industry. Typically, lawsuits founded on this type of claim will be largely dependent on testimony from an expert witness. If considering legal action for an issue of this nature, an owner should carefully weigh the costs and benefits of doing so, as a claim that hinges on an ambiguous contract will likely be harder to prove and may require substantial reliance on an expert.
The commercial real estate market in New Hampshire has seen significant shifts since the start of the century. From the Great Recession to a post-pandemic market, opportunities for development remain, but certain trends and headwinds have shifted development strategy.
What has changed since you began your commercial real estate practice in New Hampshire two decades ago?
It’s odd to think that I’ve been doing this for more than two decades. The commercial real estate market has experienced significant changes during this time, going through various challenging and positive cycles. During the Great Recession, I regularly helped clients with loan workouts and foreclosures. Afterward, and before and during the pandemic, there was a period of low interest rates and an active real estate market. During that time, we begin seeing an influx in institutional capital to New Hampshire. We continue to see more investment from out-of-state capital.
The pandemic and the following steep rise in inflation have further shifted the market. As we all know, the pandemic changed work habits, reducing the demand for commercial office space. There were stretches earlier in my career where I regularly did deals involving commercial office buildings, including leasing, buying and selling of properties. Now, there’s a trend towards repurposing these properties, such as converting office spaces into multifamily properties or mixed-use developments, particularly in Manchester.
James Kerouac, shareholder and co-chair of the real estate practice group, Bernstein Shur n What are current trends and challenges you’re seeing with the commercial real estate development industry?
Inflation continues to affect our clients’ ability to develop property in a cost-effective way. Construction materials are more expensive than before the pandemic, and supply chain issues plagued development during and after the pandemic. Those factors, coupled with volatile interest rates, have made it more difficult to get deals done, especially projects that involve development and redevelopment of property. This forces clients to think outside of the box to get projects over the finish line. We help our clients by trying to identify different sources of capital or finding creative ways to structure deals. Historically, developers didn’t face these challenges.
Another challenge is infrastructure, particularly water and sewer availability, which hinders dense housing projects in areas without public services. Additionally, the power availability on the transmission grid is a concern for larger industrial projects.
What is the current state of affordable housing development in New Hampshire, and what’s coming?
New Hampshire has a major deficit in available housing, which is especially acute with respect to workforce and affordable housing. Building more housing has been challenging for many reasons, from NIMBYism to soaring construction costs and interest rates. On the positive side, it appears that housing, especially workforce housing and affordable housing, is getting more attention in Concord and Washington, D.C.
We are seeing more efforts to find ways to provide funding for additional development, but projects still face barriers. The funding of affordable housing development largely relies on the federal Low-Income Housing Tax Credit and other state and federal subsidy programs. Participation in such programs is competitive, and there are significant barriers to entry in those programs.
How do you help affordable housing developers bring their projects to life?
Our real estate attorneys possess a deep understanding of both the business of real estate development and the associated legal challenges. We assist clients in crafting comprehensive legal and business strategies to take projects from conception to construction and operation.
Additionally, our land-use lawyers are experts in navigating the sometimes-byzantine process of obtaining the necessary permits and approvals for development property. In addition, our Government and Public Affairs practice offers a strong network of connections to key decision-makers in Concord.
Timothy O’Brien, member of trust and estate planning, probate administration and business practice groups at Upton & Hatfield
Why do I need an estate plan?
If you do not have any basic estate planning documents, then if you become incapacitated or when you die, the probate court most likely will have to be involved in appointing and overseeing agents and fiduciaries to settle your affairs. It is more desirable to name your agents and your beneficiaries in your own estate planning documents, and if possible, empower those agents to settle your affairs without court involvement.
What is probate?
What most people mean by “probate” is the court-supervised process by which all your debts are settled and all your assets are transferred out of your name to your heirs or beneficiaries.
Probate can also be described as the “default setting” that will kick in if you do not make other provisions with an estate plan. Upon your death, any assets that are titled in your individual name will require the probate process to get retitled to someone else. Examples include the car with title in your name, the home deeded in your name, the bank account in your name, etc. You may have promised these assets to someone, but if you have not provided for their transfer to the individual of your choice outside of the probate process after your death, then the Probate Court will have to be involved in transferring them.
Doesn’t my will avoid probate?
No, it does not; quite the opposite. A will is the document that guides the process of probate. It is one tool in the toolbox that is in a basic estate plan, but it will not prevent your heirs or beneficiaries from having to go through the probate process. A will allows you to nominate someone to settle your estate (your executor), enables you to name a guardian for your minor children, and specifies what individuals or organizations will inherit specific assets.
How is the court involved if I’m incapacitated?
If you are incapacitated, whether from illness or dementia, someone must manage your affairs, pay your bills, sign documents for you, and make medical decisions for you if you are unable to make them yourself. In most cases, if you have not designated agents to handle these matters, the probate court will have to appoint agents for you through a formal court process called guardianship.
Alternatively, with a durable general power of attorney (for finances), and an advance directive (for health care), you can name the agents who you trust to act on your behalf when it becomes necessary without having to go to a court for authority. These tasks might include accessing your bank account to pay your bills or speaking with your doctor in order to make treatment decisions.
How is the court involved in my affairs after I die?
If you die without a will, however simple, the probate court will have to appoint an individual, through a court process called estate administration, to settle your affairs, and the laws of intestacy will determine who inherits your assets. If you die with a will in place, you can nominate an executor to represent your estate and can name your own heirs in your will, but your nominated executor will have to settle your estate with the probate court through the probate process.
Alternatively, with the help of an attorney and some simple planning, and possibly the use of tools such as a revocable trust, an individual you have designated as trustee can settle all of your affairs after your death, pay your debts, and distribute all of your assets to beneficiaries of your choosing, without any court involvement at all.
John Prendergast, member of the disability, leave and health management group at Jackson Lewis
As New Hampshire business leaders know, court decisions and statutory overhauls often reshape the employment relationship by redefining or expanding employee rights.
Over the past year, New Hampshire has legislated protections for nursing employees needing to express milk, established a private cause of action for discrimination based on ethnicity-related hairstyles, and revised the wage act’s tip pooling rules.
The state Supreme Court also has recently pronounced accommodations for medical marijuana usage. There have been an even greater number of recent changes to federal employment laws.
Why should employers devote particular attention to leave of absence management?
One area subject to frequent changes is employee leave law. This area is complex and nuanced. Employers should engage in the training of supervisors to implement effective management of leaves of absence.
Leaves of absence can significantly impact an employee’s performance. To support employees in maintaining their health, focus and other obligations, companies offer various forms of leave.
These include sick days, vacation and medical leave, among others. Effective management of these leaves is a critical aspect of human resource management, governed by numerous state and federal statutes.
How can businesses adapt to and stay informed about changes in leave of absence law?
Employment law is dynamic, reflecting societal changes and adapting to new challenges. An employee handbook is an essential tool for staying compliant with these laws.
Regular handbook updates align company policies with the latest legal developments, protecting the business from unnecessary risk. An annual handbook review, in consultation with legal counsel, can help maintain compliance.
What resources are available to enhance compliance and efficiency in leave administration?
Many companies, driven by the desire to improve compliance and efficiency, outsource leave of absence administration to external vendors. This is particularly true for smaller companies that may lack the internal resources and expertise to confidently manage leaves of absence.
Automated software systems for leave tracking and management are another option. When implemented correctly, these systems can reduce the administrative burden, minimize errors and support regulatory compliance.
Having a trusted legal professional on hand for advice and counsel, interpreting new laws, and training employees and managers is another crucial part of a leave administration strategy.
How do the roles of an employment lawyer and HR manager differ concerning leaves of absence?
While there is some overlap in the roles of employment lawyers and HR managers, particularly in compliance and policy development, their roles are distinct. Employment lawyers specialize in legal issues and risk mitigation, while HR managers handle the practical application of policies and daily employee management.
Employment lawyers provide precise legal interpretations of statutes and regulations governing leaves of absence. They counsel employers on their legal obligations, draft leave policies, and defend against legal claims of discrimination or retaliation.
HR managers operationalize these policies by processing leave requests, communicating with employees about their rights and responsibilities, and managing the logistical aspects of employees being away from work. They monitor leave duration, coordinate with payroll and manage the employee’s return to work.
How can an employment lawyer help after a company discovers a mistake in its leave of absence administration?
Discovering a mistake in leave of absence administration can be a significant concern for any business. However, an employment lawyer can provide invaluable assistance in navigating back to compliance.
They can determine the extent of the error within the comprehensive legal framework and advise on immediate actions to mitigate risk. They can guide the company on how to correct the error, which might involve communicating with affected employees, adjusting compensation or leave duration, and ensuring that employees retain their proper job status or benefits coverage.
To sum up, effective leave management is essential for compliance, avoiding liability and maintaining a healthy workplace.
By staying informed, utilizing resources and seeking legal guidance, Granite State businesses can successfully navigate this complex landscape.
Many disputes arise from lack of communication, lack of written documentation procedures or misunderstandings between parties. A detailed agreement that contracting parties understand is the best mechanism to prevent disputes.
