Mansour Gavin Welcomes Diane Calta as Counsel

Mansour Gavin is pleased to welcome Diane Calta as a member of the firm’s litigation and real estate practice groups. She possesses over 20 years of legal experience in a variety of disciplines including municipal law, litigation, real estate, and probate and estate planning.

Ms. Calta is the former Director of Law for the City of Beachwood where she led the law department in navigating the legal challenges presented by the pandemic. Diane previously served as the Law Director for the City of Green and as an Assistant Director of Law for several other Northeast Ohio communities, including Mayfield Village, Chagrin Falls, and Bentleyville. She also worked as an assistant prosecutor for the Village of Bratenahl and provided legal counsel for economic development for Mayfield Village.

Ms. Calta is licensed to practice in the State of Ohio and has been admitted to the U.S. District Court, Northern District of Ohio and the U.S. Court of Appeals for the Sixth Circuit.

Diane earned her J.D. at Valparaiso University School of Law and B.A. at St. Mary’s College.

Mansour Gavin LPA is a 24-attorney law firm founded in 1954 with offices in Cleveland and Independence, Ohio.

E-Notary Services are now available at Mansour Gavin LPA. Our E-Notary service provides online notary services for the State of Ohio. Our notaries are certified and authorized by the Ohio Secretary of State to perform notarial acts. No in-person meeting is required.

Requirements:

• Access to a computer, internet and webcam
• Access to a smart phone (iOS or Android preferred)
• State issued identification or passport
• Digital version of documents that need to be notarized

There is a nominal fee for Mansour Gavin clients ($10 for the first notary stamp and $5 for each after – per session) and an additional $25 notarial fee for non-clients.

Once the notarization is completed, a recording and a copy of the notarized document will be securely stored according to the laws provided by the State of Ohio and an electronic copy of the notarized document will be sent to the signer..

Please reach out to one of our certified E-notaries with any questions.

Michele Kerling – mkerling@mggmlpa.com
Allison Hakal – ahakal@mggmlpa.com
Vicki Marley – vmarley@mggmlpa.com

Mansour Gavin LPA is pleased to announce that Daniel McGuire has been elected to the firm’s partnership, effective January 1, 2021. Focusing his practice on estate planning and trusts, Dan has represented clients in the entire wealth spectrum and is adept at advising clients to address changing circumstances that require planning for the future.

Dan was in private practice before joining the trust department at PNC. “Since joining the firm in 2018, he has made significant contributions to our firm by demonstrating a deep understanding of our clients’ needs and delivering superior legal service. I’m thrilled to welcome him to the partnership and to support him in the next phase of his career” said Tony Coyne, Mansour Gavin president.

Dan earned his J.D. from Case Western Reserve University School of Law.

Mansour Gavin LPA is a 23-attorney law firm founded in 1954 with offices in Cleveland and Independence, Ohio.

The United States Department of Labor (“DOL”) eased the classification process by clarifying the factors that determine when a worker is considered an independent contractor versus an employee under the Fair Labor Standards Act (“FLSA”). On January 6, 2021, the DOL issued this Final Rule which is set to take effect on March 8, 2021. However, the incoming Biden administration may revise or rescind the rule before the effective date.

The DOL rule affirms and emphasizes the “economic reality test” when classifying a worker for FLSA purposes. The rule examines that a worker who labors for himself is an independent contractor; whereas, a worker that is economically dependent on a business is an employee. Applying the rule requires balancing five factors, two of which are critical while the other three are considered relevant.

Five factors are examined in determining whether a worker is an independent contractor or an employee for FLSA purposes. Critically, the two core factors controlling the analysis are the nature and degree of control over the work and the worker’s opportunity for profit and loss based on initiative and investment. The three relevant factors balance the skill required, degree of worker’s permanence, and whether the work is part of an integrated unit of production. Ultimately, the new DOL rule emphasizes the practical aspects of work over the theoretically or conceptually possible outcomes from their work. Also helpful is the Final Rule at §795.115 which provides six real-life examples of how the new analysis works.

Broadly, the purpose of the DOL rule is to add firmness when classifying workers for FLSA purposes. While this rule may make classification easier, the rule’s viability hinges on the incoming administration, which may rescind or revise the DOL’s Final Rule. Therefore, relying on the rule is premature and employers must wait and see how the rule is treated. We will continue to keep you informed of any changes to this rule.

If you would like additional guidance on how to navigate these changes in the law or any other employment issues, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.

On January 12, 2021, Governor Mike DeWine signed House Bill 352 (“HB 352”), the Employment Law Uniformity Act, into law. It will go into effect April 12, 2021 and apply to discrimination claims filed on or after that date. The new law provides much needed clarity to employers while still protecting employees’ rights to challenge workplace discrimination. The following are highlights of the new law.

Elimination of Personal Liability for Managers and Supervisors
Under the new law, managers and supervisors can no longer be held individually liable for violation of employment discrimination laws (with a few exceptions), consistent with federal law. Managers and supervisors therefore can make decisions free from fear of liability provided that they are not retaliating against an employee for opposing a discriminatory practice, acting outside the scope of their employment, or otherwise aiding in a discriminatory practice.

Failure to Exhaust Administrative Remedies
Akin to the requirement for most federal discrimination claims, before an individual can file an employment discrimination lawsuit, they must now file an administrative charge with the OCRC and one of the following must apply:

• The person has received a notice of right to sue from the OCRC;
• The person has requested a notice of right to sue and the OCRC fails to issue a notice within 45 days; or
• The OCRC determines there is probable cause that an unlawful discriminatory practice has occurred and the person elects to file a suit.

HB 352 creates exceptions to the above scenarios where the person seeks only injunctive relief or has received a right to sue from the U.S. Equal Employment Opportunity Commission (EEOC).

Statute of Limitations Shortened
HB 352 shortens the statute of limitations for employment discrimination lawsuits from six (6) years to two (2) years after the alleged discriminatory act occurred. The statute of limitations is tolled while the charge is being investigated by the OCRC.

Prescribes Affirmative Defense
The new law provides an affirmative defense for employers in hostile work environment harassment claims. The employer must (1) show that the employer exercised reasonable care to prevent or promptly correct any harassing behavior and (2) show that the employee alleging the hostile work environment unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer. The intent of this new legislation, aligning to the Faragher/Ellerth affirmative defense under federal law, is to encourage the implementation of effective anti-discrimination policies and promote the resolution of issues within the workplace.

Reduces Availability of Age Discrimination Lawsuits
HB 352 finally provides a clear path for pursuit of an age discrimination claim. Previously, there were three different statutory avenues for age discrimination claims. Now, age discrimination claims are treated as other protected class status discrimination claims, subject to a 2-year statute of limitations and requiring exhaustion of administrative remedies.

Available Remedies for Employment Discrimination Lawsuits
HB 352 now classifies employment discrimination lawsuits as a “tort action” making them subject to previously enacted tort reform limits on liability. Thus, the following applies to available remedies:

• Compensatory damages for the plaintiff’s economic loss (lost wages, salary, or other compensation and expenditures) are not limited;
• Compensatory damages for the plaintiff’s noneconomic loss (pain and suffering, loss of consortium, and mental anguish) cannot exceed the greater of $250,000 or an amount that is equal to three times the plaintiff’s economic loss, as determined by the trier of fact (a jury or a judge in a nonjury trial), to a maximum of $350,000 for each plaintiff or a maximum of $500,000 for each occurrence that forms the basis of the tort action;
• Punitive or exemplary damages cannot exceed two times the amount of the compensatory damages awarded to the plaintiff or 10% of a small employer’s or individual’s net worth when the tort was committed, to a maximum of $350,000, unless the tort action was committed “purposely” or “knowingly.”

This new law was years in the making and a welcome update to Ohio’s employment discrimination laws, aligning them with federal employment discrimination laws. If you would like additional guidance on how to navigate these changes in the law or any other employment issues, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.

2020 has been a year of unprecedented disruption and one that will be remembered for a global pandemic, political division, and social activism. We have experienced significant shifts in the way we work and in the way we live, testing our resilience and resolve. COVID-19 disrupted our business and personal lives and challenged the norms of our safety, health, and well-being. We witnessed peaceful protest and civil unrest. We have seen challenges for a justice system that needs to work for everyone and a Presidential election that seemed to deepen the political divide in our country.

Despite these significant events, Mansour Gavin stood strong and leaned into these challenges to deliver for our clients. Here are some highlights:

• Over the last two years and before the pandemic, we upgraded our software and billing systems. Our attorneys and staff were able to work remotely and seamlessly with access to our new cloud-based systems, which provide state-of-the-art security infrastructure and comprehensive governance protocols.
• Firm leadership made sacrifices to ensure that the welfare of our employees is at the forefront. We managed to keep our employees safe and avoid any staff reductions throughout this challenging time. We were also able to welcome five new attorneys to the firm this year. Welcome Ken Callahan, Tatyana Pishnyak, Danielle Easton, Malek Khawam, and Kendall Grodek!
• Consistent with the underlying principles and culture of our law firm, we responded to current events surrounding social injustice by looking at how we can build upon our current practices and do better. We proudly state our mission “to continue to strive to maintain a workplace that promotes and values diversity, champions individual thought and expression, and creates an inclusive culture where all forms of diversity are appreciated, and where everyone can feel valued and included.” And this year, we formalized our commitment by forming a diversity and inclusion committee.
• We expanded our social media presence on Facebook, LinkedIn, and Twitter to keep you apprised of developments in the law, the community, and at our law firm. We updated our website, launching subpages to highlight our experience in several areas, including Banking and Finance, Creditors’ Rights and Receivership, Marijuana Law and Policy, and Healthcare and Assisted Living.
• We worked hard to assist our clients in continuing business operations with the least amount of interruptions, navigating the CDC and boards of health guidelines in order to return employees to work safely. In that regard, we continue to serve as a valuable resource for our clients in navigating COVID-19 as it relates to business, labor and employment, environmental, health and safety, real estate, municipal law, litigation, and estate planning. Our attorneys are staying abreast of new developments and will continue to provide timely guidance, relevant alerts, and resources addressing key changes arising from the pandemic.

While it’s been a year of many accomplishments at Mansour Gavin, we’re looking forward to turning the page to 2021. We can’t wait to resume business as usual and connect with you in person.

Before I conclude, I wish to share two inspirational moments in tribute to the people of this great Nation. At the end of WWII, one of my uncles could not make it back from overseas in time for Christmas. He wouldn’t make it home until March. My grandmother demanded, and the entire family agreed, that we keep the Christmas Tree up until he returned to open the presents then. It was all about family.

In the Pandemic of 1918, 675,000 Americans died. The United States population was one-third of what it is today. Many families left a place setting and an empty chair at the dinner table as a remembrance of a loved one that would not be with them for that special family holiday dinner. This year, keep that symbolic gesture in mind, not just for a family member that passed, but for family members in nursing homes, in quarantine, or simply unable to travel because of the pandemic. Think of it as a “remote” way to give thanks and celebrate the time you have with your family.

As we bid farewell to 2020 and leap into the new year full of hope, let us savor the holiday celebrations with family and friends, whether it’s in person or via FaceTime or Zoom and at the stroke of midnight, let us toast to the arrival of 2021 with excitement and delight.

From all of us at Mansour Gavin, we wish you a safe, healthy, and happy new year!

Anthony J. Coyne
President, Mansour Gavin LPA

On September 4, 2020, the Centers for Disease Control and Prevention published an Order in the Federal Register in an effort to prevent the further spread of COVID-19 by placing a temporary halt to certain residential evictions (the “Order”). Under the Order, effective through December 31, 2020, a landlord, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person under the Order from any residential property. However, the Order does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract. Nothing in the Order precludes the charging or collecting of fees, penalties, or interest as a result of the failure to pay rent or other housing payment on a timely basis, under the terms of any applicable contract.

In order to be a “Covered Person” as defined in the Order, every tenant on a residential lease must provide their landlord a declaration under penalty of perjury indicating that:

(1) The individual has used best efforts to obtain all available government assistance for rent or housing
(2) The individual either (i) expects to earn no more than $99,000 in annual income for Calendar Year 2020 (or no more than $198,000 if filing a joint tax return), (ii) was not required to report any income in 2019 to the U.S. Internal Revenue Service, or (iii) received an Economic Impact Payment (stimulus check) pursuant to Section 2201 of the CARES Act;
(3) the individual is unable to pay the full rent or make a full housing payment due to substantial loss of household income, loss of compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket medical expenses;
(4) the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual’s circumstances may permit, taking into account other non-discretionary expenses; and
(5) eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options.

The Order does not preclude evictions based on a tenant: (1) engaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance, or similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment (including non-payment or late payment of fees, penalties, or interest).

Under 18 U.S.C. 3559, 3571; 42 U.S.C. 271; and 42 CFR 70.18, a person violating the Order may be subject to a fine of no more than $100,000 if the violation does not result in a death or one year in jail, or both, or a fine of no more than $250,000 if the violation results in a death or one year in jail, or both, or as otherwise provided by law. An organization violating the Order may be subject to a fine of no more than $200,000 per event if the violation does not result in a death or $500,000 per event if the violation results in a death or as otherwise provided by law. The U.S. Department of Justice may initiate court proceedings as appropriate seeking imposition of these criminal penalties.

Little guidance has been issued regarding the Order and it remains unclear how Courts will interpret and administer the Order.

If you would like further clarification or have any questions regarding how this Order may affect you, we encourage you to reach out to your contact at Mansour Gavin or one of the firm’s real estate attorneys to discuss.

On September 14, 2020, Governor Mike DeWine signed House Bill 606, otherwise known as the “Good Samaritan Expansion Bill,” into law to protect people and businesses from tort liability lawsuits stemming from virus transmissions. This law retroactively applies from March 9, 2020, in accordance with Executive Order 2020-01D, and through September 30, 2021.

Across the nation, a rising tide of tort lawsuits have flooded courts, entangling business in litigation surrounding coronavirus transmission. House Bill 606 prevents this practice. The Ohio General Assembly sought to provide certainty to businesses that are re-opening. The legislature recognizes that COVID-19 is a fluid disease and the “best practices” have shifted as more knowledge of the virus is obtained. The purpose of House Bill 606 is to prevent lawsuits against people and businesses for coronavirus transmission. Expressly, House Bill 606 protects persons and business, absent reckless or intentional conduct, from lawsuits seeking damages as a result of transmission of COVID-19.

Lastly, the reach of the “Good Samaritan Expansion Bill” is not solely isolated to re-opening business, but also protects health care professionals from disciplinary conduct for their actions, absent gross negligence, as a result of treating the coronavirus. In short, the “Good Samaritan Expansion Bill” seeks to provides solace, certainty, and stability to reopening businesses from tort liability from COVID–19 transmission.

If you would like further clarification or have any questions regarding House Bill 606, please contact one of Mansour Gavin’s Civil Litigation attorneys.

Brendon Friesen, Mansour Gavin LPA shareholder and Business and Corporate Services Group chair, recently secured two major victories for his clients, Ancient Roots of Wilmington, Ohio and Cielo Processing of Euclid, Ohio.

In January 2019, the Medical Marijuana Control Program (“MMCP”) of the Ohio Department of Commerce (the “Department”) denied both companies provisional licenses to process medical marijuana despite scoring high enough to qualify. Following the administrative appeals, the Department agreed with the legal arguments of Mansour Gavin and awarded both companies licenses. The licenses constitute two of just a handful of the coveted Ohio medical marijuana licenses won on appeal. The processor licenses will ultimately permit both companies to produce and sell products such as vape cartridges, edibles, tinctures, and other cannabis extract products approved by the MMCP.

Mansour Gavin represents Ancient Roots, Cielo Processing, and other companies in the legal cannabis markets of Ohio, the U.S. and abroad. If you have any questions on how we can assist your legal cannabis business, please contact Brendon Friesen or one of our other Business and Corporate Services attorneys.