All corporations and limited liability companies registered in Ohio are required by Ohio law to appoint a designated person or entity to receive important notices and documents from governmental agencies, courts, and others. These designated persons or entities are called “Statutory Agents.”

Sometimes, in serving as Statutory Agent, the Statutory Agent is named as a party in a lawsuit brought against the corporation or limited liability company. Although courts typically do not hold Statutory Agents liable under these circumstances, such lawsuits can result in significant legal defense costs and require substantial amounts of time.

Black River Corporate Services, Inc. was created by Wickens, Herzer, Panza, Cook & Batista Co. to serve as a Statutory Agent to clients and others requiring this service. Black River will ensure that your company’s mail will be accounted for and delivered in a timely fashion. In the event that Black River is sued in its capacity as Statutory Agent, you and your company will not be responsible for paying the cost of defending Black River in such a lawsuit and will not be liable for any judgments against Black River for serving as your Statutory Agent.

For more information, please contact us by email to SBarsan@WickensLaw.com or by calling (440) 695 8000. Please visit our website at www.BlackRiverCorporateServices.com.

The BWC Board of Directors approved the creation and implementation of a new program in Ohio called the Grow Ohio Incentive Program. The Program allows brand-new employers to receive a 25% discount on their workers’ comp premium OR elect to participate in group rating within thirty days of applying for workers’ comp coverage. (In the past, new employers had to wait until the February group rating enrollment period and had to pay full premium until they could enroll in a group plan and then that group rating discount did not take effect until July.)

For purposes of the Program, a “new employer” is an employer creating one or more jobs in Ohio on or after July 1, 2011, or is an out of state employer bringing work to Ohio but never having had coverage in Ohio previously. (PEO’s, self-insured employer’s and employer’s with zero payroll are not eligible for the Program.)

A new employer will receive the 25% discount for the payroll period during which their new coverage becomes effective through the following four consecutive payroll periods. New employer’s electing to receive the 25% discount can also “stack” discounts from Drug Free Safety Program, Early Payment Discount, Safety Council, Salary Continuation and Small Deductible.

However, the 25% discount is not compatible with Group Rating, EM Cap, Group Retrospective Rating, Large Deductible, One Claim Program or Retrospective Rating.

Of course, these new benefits come with a price – each employer must complete the BWC’s safety program which includes completing a safety assessment and participating in a safety training module. Additionally, in order to continue to receive the 25% discount, a new employer must be current on premium payment and cannot incur a lapse in coverage of more than forty days within a twelve month period.

Please feel free to contact Attorney Randy Phillips at RPhillips@WickensLaw.com or at (440) 695-8044. Or, contact Paralegal Kelly Fraatz at KFraatz@WickensLaw.com or at 440/695-8059 if you have specific questions or would like to discuss any of the above information.

Given the current tightened (and, likely, further tightening) credit market, an increasingly popular method of obtaining credit for many small businesses is the use of “peer-to-peer” lending. Peer-to-peer lending is designed to permit a particular business to utilize vendors and/or suppliers and/or other non-traditional third-party lending sources to serve its credit needs. Notwithstanding that many of such peer-to-peer lending relationships are borne of beneficial and often long-standing business relationships, caution should be exercised prior to undertaking any such loan relationship as these loans are also frequently borne of intense need and impending financial hardship.

Often because of the friendship and/or long-standing acquaintance of the relevant business owners, ordinary loan formalities are overlooked or not fully appreciated when such loans are initially negotiated. Inattentiveness to detail and failure to examine a particular business’s existing lending relationships can lead to catastrophic consequences and can result in an unrealistic likelihood of repayment or, worse yet, an otherwise “secured” obligation being reduced to general unsecured status in event of default, creditor challenge or bankruptcy (and thereby jeopardizing or reducing the priority of such loan vis-à-vis other creditors, compounding a likely risk-laden loan arrangement). Similarly, such a “peer-to-peer” loan will be subject to additional scrutiny in the event of an Internal Revenue Service audit, default of other loans or bankruptcy, possibly jeopardizing the expectations of all and placing additional risk on the lending party.

Several important factors should be considered when such a loan is contemplated, including the existing financial state of the borrower, status and extent of other creditors (secured and unsecured), what collateral has been obtained as security for existing secured loans and what collateral is available for the proposed loan, whether the loan(s) violate any existing loan or mortgager covenants, the status of any and all liens, judgments and claims impacting the borrower, and the status of unpaid and/or accrued tax obligations. Some of the benefits of peer-to-peer lending include the avoidance of lender fees, reduction in the performance of time consuming and laborious underwriting tasks, and business-friendly loan terms (often dependent on the overall loan-related risk assessment, collateral needs of the lending party, and length of repayment obligation). However, before formally entering into such a loan, legal counsel should be consulted to ensure the proposed loan contemplates the aforementioned factors and to ensure commercially reasonable arm’s-length terms are achieved and respected. Proper analysis and documenting of a “peer-to-peer” transaction is crucial to make sure the expectations of all parties are addressed and to preserve the underlying relationship that served as the catalyst for the loan.

Further, a full analysis of the borrower’s existing indebtedness and capacity to repay the loan must be evaluated as well as securitization options, including guarantees, to secure the performance under the loan, which may include additional mortgages on borrower’s real estate and pledging of assets or borrower’s equity interest in one or more companies. For further information, please do not hesitate to contact attorney Todd Schrader at (440) 695 8081 or by email (TSchrader@WickensLaw.com).

In July, 2010 the U.S. Department of Justice updated the regulations of the Americans with Disabilities Act (ADA). The updated regulations, known as Title III, became effective March 15, 2011 and require compliance by March 15, 2012. The revised regulations provide for, among other things, revised design standards for areas of public accommodation to accommodate people with disabilities. These revised design standards impose further regulations on building owners in addition to the standards imposed in the last go around in 1991.

As was done before a “safe harbor” has been created under which existing building elements that already comply with the 1991 ADA Standards for Accessible Design would not be required to be brought into compliance with the 2010 Standards until the elements were subject to a planned alteration. The result is that by March 15, 2012, all places of public accommodation will be required to meet the 1991 ADA Standards for Accessible Design regardless of whether they have ever been altered. Likewise all places of public accommodation which are altered after March 15, 2012 will have to meet the 2010 standards upon alteration.

These revised standards provide a challenge for building owners whose buildings do not meet the 1991 standards (presumably since their buildings have never been altered), but whose buildings are places of public accommodation. Between March 15, 2011 and March 15, 2012 building owners will have to remove barriers to comply with either the 1991 standards or the 2010 standards. After March 15, 2012, elements in a facility that do not comply with the 1991 standards must be modified using the 2010 Standards to the extent readily achievable.

In addition to adopting the new ADA 2010 Standards, the amended regulations contain many new or expanded provisions on general nondiscrimination policies, including the use of service animals, the use of wheelchairs and other power-driven mobility devices, selling tickets for wheelchair-accessible seating at sports and performance venues, reserving and guaranteeing accessible rooms at hotels and providing interpreter services through video conferencing. Businesses and municipalities will be required to meet these expanded provisions by March 15, 2012. Of particular note is the requirement to provide interpreter services for the disabled. This provision will require municipalities to request notification of the possible attendance of disabled persons at public meetings. The municipality, upon notification that a disabled person will attend a public meeting, must provide an interpreter for the disabled. These new standards will thus require additional pre-planning for municipalities when holding public meetings.

As with any new regulation, the affect on business owners and municipalities is softened with planning. As March, 2012 approaches, a full review of facilities and relevant activities should be conducted in advance of the deadline. Building owners should assess whether their facility is a place of public accommodation and if so whether it meets the 1991 ADA standards. Business owners and municipalities should review the new regulations and access what facilities and/or procedures will require modifications.

Should you have any questions regarding compliance with the 2010 revisions to the Americans with Disabilities Act, please contact any member of the Wickens, Herzer Panza, Cook & Batista Co. real estate team.

The Fifth District Court of Appeals in Price v. Goodwill Industries of Akron, Ohio, Inc. (Ohio App. 2011) 192 Ohio App.3d 572, recently rendered a decision further clarifying when an employee is deemed to be a fixed-situs employee, how that impacts the application of the coming-and-going rule and the injured workers ability to obtain workers compensation benefits.

Ms. Price, at all relevant times, served as an assistant manager of the Goodwill store in Mansfield, Ohio. As part of her duties, Ms. Price traveled two to four times a year to the Goodwill office in Akron for training. Ms. Price was scheduled to attend a training session in Akron and during her commute was struck by a tractor trailer.

Ms. Price filed an application for workers’ compensation benefits which was allowed by the district hearing officer as well as the staff hearing officer. Goodwill appealed the decision to the Industrial Commission which reversed the decision of the district and staff hearing officers. Ms. Price appealed the Industrial Commission’s denial of her claim to the Richland County Court of Common Pleas which granted summary judgment in favor of Goodwill finding Ms. Price to be a fixed-situs employee and therefore not eligible for workers’ compensation benefits. Ms. Price appealed that decision to the Fifth District Court of Appeals.

The Fifth District stated that the coming and going rule is used to determine whether an injury suffered by an employee in a traffic accident occurs in the course of and arises out of the employment relationship so as to constitute a compensable injury. The District Court continued by stating that: “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Worker’s Compensation Fund because the requisite causal connection between the injury and employment does not exist.”

In determining whether an employee is a fixed-situs employee and, therefore, within the coming and going rule, the Court confirmed that the focus is on whether the employee commences his/her substantial employment duties only after arriving at a specific and identifiable work place designated by her employer. The focus remains the same even though the employee may be reassigned to a different work place monthly, weekly, or even daily. Despite periodic relocation of job sites, each particular job site may constitute a fixed place employment.

The Court concluded that a fixed-situs employee injured either before commencing or after ending her “substantial employment duties at a specific and identifiable work place” is not eligible for workers compensation unless there is an exception established. Accordingly, the District Court upheld the lower courts decision finding in favor of Goodwill Industries and denying Ms. Price’s application for workers’ compensation benefits.