Blog Post
PPP Loans Less Than $2 Million Deemed Good-Faith Certified
Jordan Uditsky • May 15, 2020
Yesterday, in an update to its PPP FAQ, the SBA clarified its review of the “good faith” certification required in applying for PPP loans. As PPP applicants are aware, to apply for PPP loans, an applicant must certify in good faith that “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” For most applicants, COVID-19’s ramifications made this statement a no-brainer. But many left wondering how the SBA would police this clause. After all, borrowers are relying on PPP loan forgiveness if they properly use their loan proceeds. There is concern that the SBA’s review of the good faith certification could thwart borrowers’ forgiveness goal even if they used their loans for payroll and other areas acceptable for forgiveness. The SBA’s announcement gave reason to alleviate that concern for some borrowers.
In Question 46 of its PPP FAQ (found here
in its entirety), the SBA states that borrowers with an original principal amount of less than $2 million will be deemed to have made the required good faith certification. In the legal world, statements deemed to be true are facts for all intents and purposes. This clarification likely means that the SBA won’t even spend the time reviewing good faith certifications for loans under $2 million. Keep in mind, however, that the $2 million threshold applies to applicants taken together with their affiliates. If your total loan amount falls under $2 million, then you’ll have the benefit of this safe harbor.
For borrowers with loans greater than $2 million, you won’t have this safe harbor but that doesn’t mean you couldn’t have made a good faith certification. Your cases will be reviewed under their individual circumstances. In effect, today’s announcement changed little in advising how the SBA will review loans over $2 million. There remains uncertainty as to what the audit process for this good faith certification will look like and whether borrowers will have an opportunity to appeal, but if your loan is under $2 million you can breathe a small sigh of relief in knowing the certification you made in your application won’t be scrutinized.
If you have any questions on this latest announcement or just want guidance on the PPP in general, give us a call. We’ll keep you updated as more clarification comes out.
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An amendment to the Mechanics Lien Act (the "Act') permits the bonding over of mechanic's liens in the State of Illinois. The bill was signed into law ( 770 ILCS 60/38.1 ) on July 28, 2015, and went into effect on January 1, 2016. This statute is significant because it allows parties to "clear title" to real property that would otherwise be subject to a mechanic's lien. An eligible applicant will be permitted to substitute a bond for the real property subject to the underlying mechanic's lien so that the lien attaches to the bond instead of the real property. Who is Eligible? To take advantage of 770 ILCS 60/38.1 , the party desiring to bond over the lien must be an eligible applicant. The statute defines applicant relatively broadly to include the following parties: An owner; Other lien claimant; A party that has an interest in the property subject to the lien claim; An association representing owners organized under any statute or to which the Common Interest Community Association Act applies; or Any person who may be liable for the payment of the lien claim, including an owner, former owner, association representing owners organized under any statute or to which the Common Interest Community Association Act applies, or the contractor or subcontractor. Process for Filing a Petition To effectively substitute the bond for the real property, the applicant must file a petition with the clerk of the circuit court in the county where the property subject to the underlying lien claim is located. The petition must include the following: The name and address of the applicant and the applicant's attorney, if any; The name and address of the lien claimant; If there is a pending action to enforce the claim, the name of the attorney of record, or if there is no pending claim, but the claim has been recorded, the name of the preparer of the lien claim; The name and address of the owner of record of any real estate subject to the claim or the name and address of the homeowners association or the condominium association; A legal description of the property; A copy of the lien claim; A copy of the proposed eligible surety bond; A certified copy of the surety's certificate of authority from the Department of Insurance or the state agency charged with the duty to issue the certificate; and An undertaking by the applicant to replace the bond with another eligible surety bond in the event that the proposed eligible surety bond ceases to be an eligible bond. After filing a proper petition, the applicant must provide notice and a copy of the petition, either by personal service or certified mail, to every party whose name and address is stated in the petition and the lien party's attorney of record.
When Gov. JB Pritzker signed the Paid Leave For All Workers Act (the Act) into law on March 13, 2023, he made Illinois one of only three states that require employers to grant workers paid leave that they can use “for any reason,” not just illness. This statewide paid leave requirement comes in the wake of existing paid leave ordinances in Cook County and the City of Chicago. The interaction of those two ordinances with the new state law is one of several nuances Illinois employers must understand as they prepare to comply with the Act. Those nuances make it advisable for employers to consult with experienced employment counsel as they review, modify, or establish paid leave policies in light of the Act. But here are some fundamental aspects of the law that can help you get ready for this major change in Illinois employment law. The Act Covers Almost All Private Illinois Employers Almost all private employers in Illinois, regardless of size, are subject to the Act, as are state and local governments. Notably, those who employ domestic workers will also need to provide paid leave. However, the following employers are exempt from the Act’s leave requirements: School districts organized under the School Code or park districts organized under the Park District Code. Certain railroad employees. Temporary college or university student employees. Certain short-term employees of an institution of higher learning. Employees in the construction industry or who work for a freight, parcel, or document delivery company and are covered by a bona fide collective bargaining agreement (CBA). Cook County and Chicago Employers Will Not Need To Comply With the Act Most employers in the City of Chicago and Cook County already have an obligation to provide employees with paid leave under the Chicago Minimum Wage and Paid Sick Leave Ordinance and Cook County Earned Sick Leave Ordinance, respectively. The Act specifies that it does not apply to employers covered by a “municipal or county ordinance,” such as Chicago’s and Cook County’s, “that requires employers to give any form of paid leave to their employees, including paid sick leave or paid leave.” Accordingly, Cook County and Chicago employers covered by those ordinances will not need to comply with the Act, and such employers do not need to provide employees with an additional 40 hours of paid leave. The Act does apply to employees who are not currently covered by those ordinances. However, there is a significant chance that both Cook County and Chicago will amend their paid leave ordinances to match the broader “for any reason” rights provided by the Act. Any amendments made after the Act’s effective date “must comply with the requirements of this Act or provide benefits, rights, and remedies that are greater than or equal to the benefits, rights, and remedies” afforded by the Act. Cook County and Chicago employers should prepare for such a possibility. Amount, Accrual, and Use of Paid Leave Employees covered under the Act will be entitled to earn and use up to a minimum of 40 hours of paid leave during a 12-month period, which may be any consecutive 12-month period the employer designates in writing at the time of the employee’s hiring. Employees are eligible to begin taking leave 90 days after their employment begins or 90 days after Jan. 1, 2024, whichever is later. The Act also contains detailed provisions regarding calculating hours, accrual and carry-over, and obligations upon an employee’s termination or departure. Perhaps the most distinguishing aspect of the Act is that employees can take paid leave “for any reason of the employee's choosing,” not just illness-related reasons. An employee does not have to tell their employer why they are taking leave, and employers cannot require an employee to provide documentation or certification as proof or in support of the leave request. While an employer can’t ask why an employee is taking paid leave, it can require that an employee provide up to seven calendar days’ notice before taking paid leave if the need for the leave is foreseeable. If an employee’s use of paid leave is not foreseeable, the employee must provide notice as soon as it is practicable. An employer that requires notice of paid leave under this Act when the leave is not foreseeable must provide a written policy that contains procedures for the employee to provide notice. Notice and Recordkeeping Requirements The Act requires that employers conspicuously post a notice in the workplace advising employees of their rights under the Act and how to file a complaint alleging non-compliance with its provisions. Employers must also maintain records for at least three years reflecting each employee’s hours worked, the amount of paid leave accrued and taken, and any remaining paid leave balance. Anti-Retaliation Provisions and Penalties For Violations As with most employment laws, the Act prohibits retaliation against employees for exercising their rights under the Act or reporting alleged violations. While the Act does not establish a private cause of action, employers who violate the Act face: Civil penalties of $500 for an initial posting violation and $1,000 for each subsequent violation; General civil penalties of $2,500 for each violation (other than a posting violation); An Illinois Department of Labor complaint initiated by an employee, allowing them to recover for underpayment, compensatory damages, and attorney’s fees and costs, as well as a penalty of $500 to $1,000. As noted, these are only the broad strokes of the new paid leave law. Employers should consult with an employment law attorney to understand their specific obligations and establish or update their paid leave policies to ensure compliance before the Jan. 1, 2024 effective date. At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for owners, developers, construction managers, design professionals, general contractor, subcontractor and suppliers. We bring unique insights and deep commitment to protecting the interests of construction professionals and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation.
As this relentlessly awful year mercifully draws to a close, a light at the end of our pandemic tunnel is rapidly approaching. COVID-19 vaccines are poised for approval, and it is expected that distribution will begin in earnest shortly. But no matter how much and how confidently the FDA and other health experts proclaim these vaccines to be safe and effective, there are large numbers of Americans who say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease. Many of those who don’t want to get vaccinated will soon find out that they work for an employer who feels differently. Those employers may also tell them that they either need to get the vaccine or need to find a new job. And, in most cases, employers may be well within their rights to terminate employees who refuse to take the COVID-19 vaccine. Mandatory Vaccinations Are Not New Companies that have spent the better part of the year – and lots of money - trying to keep their workplaces COVID-free see the vaccine as the apex of those efforts. With a fully vaccinated workforce, business owners can operate without disruption and provide employees, customers, clients, and patients with confidence and peace of mind. But all of those benefits of the vaccine only accrue to fully vaccinated workforces. So, many companies may mandate that employees get their shot as a condition of continued employment. By doing so, they are following a legally sound path that predates the current pandemic. Well before anyone had heard of coronavirus, plenty of employers, primarily in the health care sector, required employees to get the flu vaccine and vaccinations against other infectious diseases. Most public school districts also require proof of vaccinations before a student can enroll and attend classes. Since most employees in Illinois work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers. ADA and Religious Exceptions However, employers who make vaccines mandatory need to be mindful that employees with legitimate health or religious concerns about the vaccine may be protected from termination and other adverse employment actions if they refuse the shot. But these exceptions don’t necessarily apply just because someone doesn’t believe in vaccines generally (“anti-vaxers”) or thinks that forcing them to get vaccination is an infringement on their liberties. Employees who have a disability recognized under the Americans with Disabilities Act (ADA) that prevents them from taking the coronavirus vaccine cannot be forced to get the vaccine, so long as their exemption does not impose an “undue hardship” on the employer. Such disabilities in this context may include a compromised immune system or an allergy to an ingredient in the vaccine. While there has been no definitive guidance on the subject, one could credibly argue that an employee’s refusal to get vaccinated is an “undue hardship” if it places the health and safety of other employees and visitors at increase risk of infection. Even in such cases, however, an employer may need to make a “reasonable accommodation” for the employee, such as allowing them to work from home. Similarly, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine. More Than Legal Issues To Consider Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, they may need protection against an employee who has an adverse reaction, even if they signed a waiver upon receiving the shot. A vaccination requirement may also get an adverse reaction from employees generally as well as the general public if it seems heavy-handed and overreaching. Of course, those that decide against a mandate face risks if someone does contract the coronavirus in the workplace and sues. Please Contact Grogan Hesse & Uditsky With All Of Your COVID-Related Employment Questions If you have questions or concerns about how to handle vaccinations or other employment issues related to COVID-19, please call us at (630) 833-5533 or contact us online to arrange for a consultation.
An amendment to the Mechanics Lien Act (the "Act') permits the bonding over of mechanic's liens in the State of Illinois. The bill was signed into law ( 770 ILCS 60/38.1 ) on July 28, 2015, and went into effect on January 1, 2016. This statute is significant because it allows parties to "clear title" to real property that would otherwise be subject to a mechanic's lien. An eligible applicant will be permitted to substitute a bond for the real property subject to the underlying mechanic's lien so that the lien attaches to the bond instead of the real property. Who is Eligible? To take advantage of 770 ILCS 60/38.1 , the party desiring to bond over the lien must be an eligible applicant. The statute defines applicant relatively broadly to include the following parties: An owner; Other lien claimant; A party that has an interest in the property subject to the lien claim; An association representing owners organized under any statute or to which the Common Interest Community Association Act applies; or Any person who may be liable for the payment of the lien claim, including an owner, former owner, association representing owners organized under any statute or to which the Common Interest Community Association Act applies, or the contractor or subcontractor. Process for Filing a Petition To effectively substitute the bond for the real property, the applicant must file a petition with the clerk of the circuit court in the county where the property subject to the underlying lien claim is located. The petition must include the following: The name and address of the applicant and the applicant's attorney, if any; The name and address of the lien claimant; If there is a pending action to enforce the claim, the name of the attorney of record, or if there is no pending claim, but the claim has been recorded, the name of the preparer of the lien claim; The name and address of the owner of record of any real estate subject to the claim or the name and address of the homeowners association or the condominium association; A legal description of the property; A copy of the lien claim; A copy of the proposed eligible surety bond; A certified copy of the surety's certificate of authority from the Department of Insurance or the state agency charged with the duty to issue the certificate; and An undertaking by the applicant to replace the bond with another eligible surety bond in the event that the proposed eligible surety bond ceases to be an eligible bond. After filing a proper petition, the applicant must provide notice and a copy of the petition, either by personal service or certified mail, to every party whose name and address is stated in the petition and the lien party's attorney of record.
When Gov. JB Pritzker signed the Paid Leave For All Workers Act (the Act) into law on March 13, 2023, he made Illinois one of only three states that require employers to grant workers paid leave that they can use “for any reason,” not just illness. This statewide paid leave requirement comes in the wake of existing paid leave ordinances in Cook County and the City of Chicago. The interaction of those two ordinances with the new state law is one of several nuances Illinois employers must understand as they prepare to comply with the Act. Those nuances make it advisable for employers to consult with experienced employment counsel as they review, modify, or establish paid leave policies in light of the Act. But here are some fundamental aspects of the law that can help you get ready for this major change in Illinois employment law. The Act Covers Almost All Private Illinois Employers Almost all private employers in Illinois, regardless of size, are subject to the Act, as are state and local governments. Notably, those who employ domestic workers will also need to provide paid leave. However, the following employers are exempt from the Act’s leave requirements: School districts organized under the School Code or park districts organized under the Park District Code. Certain railroad employees. Temporary college or university student employees. Certain short-term employees of an institution of higher learning. Employees in the construction industry or who work for a freight, parcel, or document delivery company and are covered by a bona fide collective bargaining agreement (CBA). Cook County and Chicago Employers Will Not Need To Comply With the Act Most employers in the City of Chicago and Cook County already have an obligation to provide employees with paid leave under the Chicago Minimum Wage and Paid Sick Leave Ordinance and Cook County Earned Sick Leave Ordinance, respectively. The Act specifies that it does not apply to employers covered by a “municipal or county ordinance,” such as Chicago’s and Cook County’s, “that requires employers to give any form of paid leave to their employees, including paid sick leave or paid leave.” Accordingly, Cook County and Chicago employers covered by those ordinances will not need to comply with the Act, and such employers do not need to provide employees with an additional 40 hours of paid leave. The Act does apply to employees who are not currently covered by those ordinances. However, there is a significant chance that both Cook County and Chicago will amend their paid leave ordinances to match the broader “for any reason” rights provided by the Act. Any amendments made after the Act’s effective date “must comply with the requirements of this Act or provide benefits, rights, and remedies that are greater than or equal to the benefits, rights, and remedies” afforded by the Act. Cook County and Chicago employers should prepare for such a possibility. Amount, Accrual, and Use of Paid Leave Employees covered under the Act will be entitled to earn and use up to a minimum of 40 hours of paid leave during a 12-month period, which may be any consecutive 12-month period the employer designates in writing at the time of the employee’s hiring. Employees are eligible to begin taking leave 90 days after their employment begins or 90 days after Jan. 1, 2024, whichever is later. The Act also contains detailed provisions regarding calculating hours, accrual and carry-over, and obligations upon an employee’s termination or departure. Perhaps the most distinguishing aspect of the Act is that employees can take paid leave “for any reason of the employee's choosing,” not just illness-related reasons. An employee does not have to tell their employer why they are taking leave, and employers cannot require an employee to provide documentation or certification as proof or in support of the leave request. While an employer can’t ask why an employee is taking paid leave, it can require that an employee provide up to seven calendar days’ notice before taking paid leave if the need for the leave is foreseeable. If an employee’s use of paid leave is not foreseeable, the employee must provide notice as soon as it is practicable. An employer that requires notice of paid leave under this Act when the leave is not foreseeable must provide a written policy that contains procedures for the employee to provide notice. Notice and Recordkeeping Requirements The Act requires that employers conspicuously post a notice in the workplace advising employees of their rights under the Act and how to file a complaint alleging non-compliance with its provisions. Employers must also maintain records for at least three years reflecting each employee’s hours worked, the amount of paid leave accrued and taken, and any remaining paid leave balance. Anti-Retaliation Provisions and Penalties For Violations As with most employment laws, the Act prohibits retaliation against employees for exercising their rights under the Act or reporting alleged violations. While the Act does not establish a private cause of action, employers who violate the Act face: Civil penalties of $500 for an initial posting violation and $1,000 for each subsequent violation; General civil penalties of $2,500 for each violation (other than a posting violation); An Illinois Department of Labor complaint initiated by an employee, allowing them to recover for underpayment, compensatory damages, and attorney’s fees and costs, as well as a penalty of $500 to $1,000. As noted, these are only the broad strokes of the new paid leave law. Employers should consult with an employment law attorney to understand their specific obligations and establish or update their paid leave policies to ensure compliance before the Jan. 1, 2024 effective date. At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for owners, developers, construction managers, design professionals, general contractor, subcontractor and suppliers. We bring unique insights and deep commitment to protecting the interests of construction professionals and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation.
As this relentlessly awful year mercifully draws to a close, a light at the end of our pandemic tunnel is rapidly approaching. COVID-19 vaccines are poised for approval, and it is expected that distribution will begin in earnest shortly. But no matter how much and how confidently the FDA and other health experts proclaim these vaccines to be safe and effective, there are large numbers of Americans who say they won’t get the shot when it becomes available. The most recent Gallup poll found that only 63 percent of Americans say they are willing to be inoculated against the disease. Many of those who don’t want to get vaccinated will soon find out that they work for an employer who feels differently. Those employers may also tell them that they either need to get the vaccine or need to find a new job. And, in most cases, employers may be well within their rights to terminate employees who refuse to take the COVID-19 vaccine. Mandatory Vaccinations Are Not New Companies that have spent the better part of the year – and lots of money - trying to keep their workplaces COVID-free see the vaccine as the apex of those efforts. With a fully vaccinated workforce, business owners can operate without disruption and provide employees, customers, clients, and patients with confidence and peace of mind. But all of those benefits of the vaccine only accrue to fully vaccinated workforces. So, many companies may mandate that employees get their shot as a condition of continued employment. By doing so, they are following a legally sound path that predates the current pandemic. Well before anyone had heard of coronavirus, plenty of employers, primarily in the health care sector, required employees to get the flu vaccine and vaccinations against other infectious diseases. Most public school districts also require proof of vaccinations before a student can enroll and attend classes. Since most employees in Illinois work on an “at-will” basis, they can face termination for almost any reason not expressly prohibited by federal, state, or local laws. Generally, no law stands in the way of an employer requiring the COVID-19 vaccine for its workers. ADA and Religious Exceptions However, employers who make vaccines mandatory need to be mindful that employees with legitimate health or religious concerns about the vaccine may be protected from termination and other adverse employment actions if they refuse the shot. But these exceptions don’t necessarily apply just because someone doesn’t believe in vaccines generally (“anti-vaxers”) or thinks that forcing them to get vaccination is an infringement on their liberties. Employees who have a disability recognized under the Americans with Disabilities Act (ADA) that prevents them from taking the coronavirus vaccine cannot be forced to get the vaccine, so long as their exemption does not impose an “undue hardship” on the employer. Such disabilities in this context may include a compromised immune system or an allergy to an ingredient in the vaccine. While there has been no definitive guidance on the subject, one could credibly argue that an employee’s refusal to get vaccinated is an “undue hardship” if it places the health and safety of other employees and visitors at increase risk of infection. Even in such cases, however, an employer may need to make a “reasonable accommodation” for the employee, such as allowing them to work from home. Similarly, the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 may protect a worker if their “sincerely-held religious beliefs” preclude them from getting a vaccination. Such beliefs do not include political or personal views. The burden is on the employee to demonstrate the legitimacy of their religious objections to the vaccine. More Than Legal Issues To Consider Even when an employer is within their legal rights to require employees to get the COVID-19 vaccine, other considerations may weigh against such a mandate. For example, they may need protection against an employee who has an adverse reaction, even if they signed a waiver upon receiving the shot. A vaccination requirement may also get an adverse reaction from employees generally as well as the general public if it seems heavy-handed and overreaching. Of course, those that decide against a mandate face risks if someone does contract the coronavirus in the workplace and sues. Please Contact Grogan Hesse & Uditsky With All Of Your COVID-Related Employment Questions If you have questions or concerns about how to handle vaccinations or other employment issues related to COVID-19, please call us at (630) 833-5533 or contact us online to arrange for a consultation.
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