By Associate Attorney Danielle Nodar

The California Consumer Privacy Act (CCPA), the strictest U.S. law regulating consumer data privacy, became effective on January 1, 2020. Even though the CCPA protects California consumers only, North Carolina business owners with E-Commerce businesses should take note because the law may apply to their business. The law applies to a business “doing business in California,” which includes selling goods or services to California residents even if the business is not physically located in California.

The CCPA gives California consumers certain rights to their data privacy, including the right to know what kinds of personal data a business collects, uses, shares, or sells to third-parties. Consumers will also have a right to request that a business delete any personal data kept on the consumer or prohibit the sale of personal data to third parties. The CCPA also protects a consumer with guarantees that a business will not penalize the customer with higher prices or lower levels of service if they request information regarding their data or data deletion.
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A business must comply with the CCPA’s data privacy requirements if it collects and sells consumer personal information of a California resident or discloses personal data for a business purpose. “Personal information” is broadly described as “information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular California resident or household.” This includes many identifiers such as name, address, social security number, email address, IP address, and geolocation data.

Since CCPA doesn’t just apply if a company sells data, it is important to understand how “business purpose” is interpreted under the statute. The CCPA defines “business purpose” as “the use of personal information for the business’ or a service provider’s operational purposes, or other notified purposes, provided that the use of personal information shall be reasonably necessary and proportionate to achieve the operational purpose for which the personal information was collected or processed or for another operational purpose that is compatible with the context in which the personal information was collected.” Some examples include 1) to fulfill the reason the information was provided (i.e. to provide the requested product or service); 2) administer websites; 3) perform market research; 4) advertise products and determine effectiveness of such marketing; 5) internal research for technological and business development; 6) debugging and repairing errors on websites; and 7) detecting against security incidents, including fraudulent or illegal activity.

Luckily, there is an exception for small businesses. For CCPA to apply, businesses must meet at least one of the following requirements: 1) Businesses with a gross annual revenue of $25 million or more; or 2) Businesses that possess personal data from 50,000 or more individuals, households, or devices; or 3) Businesses with at least 50% of their annual revenue earned from the sale of personal data.

If a business is subject to the requirements of CCPA, there are some steps that can be taken to ensure compliance. Prior to collecting data from consumers, businesses must inform the consumers of the categories of personal information the company collects and for what purposes the company uses the information. Companies must also provide consumers with at least two designated methods for submitting requests for information, including a toll-free telephone number and, if the business has a website, a website address. The business also must ensure it has protocols in place to respond to such requests free and within 45 days of receiving a verifiable request. The company must also maintain records of all requests made and how the company responded. A business can provide this type of information to consumers with an updated, comprehensive privacy policy that is easily accessible to consumers on the company’s website.
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If you believe that you may need to make your business CCPA compliant, contact Jesson and Rains for help with understanding and complying with these new data privacy regulations.

President Trump signed a new law in December that has taken effect this month called the SECURE Act (Setting Every Community Up for Retirement Enhancement Act). It includes a wide array of changes to retirement accounts that both individuals and business owners should know.

For individuals, here are a few highlights:

• Plan participants who did not already turn 70.5 in 2019 now do not have to take required minimum distributions (RMDs) until age 72.
• 529 accounts may now be use for qualified student loan repayments up to $10,000 total.
• Up to $5,000 may be withdrawn from 401(k) accounts without penalty in order to have or adopt a child. The distribution, which is still subject to tax, can be repaid to a retirement account.
• Plans may offer qualified disaster distributions without penalty to participants who lived in a presidentially declared disaster area if taken before age 59 1/2, and participants are permitted to spread taxes on the distribution or repay it over three years.
• The age limit (70.5) for traditional IRA contributions has been eliminated. However, it appears to require that Qualified Charitable Distributions come from pre-70.5 contributions.
• One potential downside to the law is that inherited IRAs must be spent within 10 years of inheritance (the government wants to hurry up and get those taxes) regardless of the age of the owner at time of death. If the IRA owner died in 2019, the new law does not apply to the beneficiary. We previously wrote about the old law and estate planning here.
  • There are exceptions to this rule: spouses, minors, disabled individuals, chronically ill individuals, or beneficiaries within ten years of age to the decedent.
  • It is unclear yet whether a trust for the benefit of spouse and children is an exempted beneficiary.
  • When a minor child reaches the age of majority (18), the ten-year clock starts. It is unclear how trusts will be treated where there are multiple children of different ages.
  • The definition of a disabled individual is a person who is “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration.” IRC §72(m)(7).
  • The definition of a chronically ill individual relates to the code section dealing with the deductibility of long-term care expenses. That section requires a licensed health care practitioner to certify that the individual’s limitation is indefinite but expected to be lengthy in nature, as well as one of three things:

                        (i) being unable to perform (without substantial assistance from another individual) at least 2 activities of
                        daily living for a period of at least 90 days due to a loss of functional capacity,

                        (ii) having a level of disability similar (as determined under regulations prescribed by the Secretary in
                        consultation with the Secretary of Health and Human Services) to the level of disability described in
                        clause (i), or,

                        (iii) requiring substantial supervision to protect such individual from threats to health and safety due
                        to severe cognitive impairment.
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Business owners should be aware of the following:

• The business tax credit for plan startup costs will increase from $500 to up to $5,000 in certain circumstances. 

• There’s an additional $500 tax credit for three years for plans that add automatic enrollment of new hires.

• The cap on payroll contributions in automatic-enrollment safe harbor plans has increased from 10% to 15% of wages (employees can opt out of the increase). 

• Employers must now include long-term part-time workers as participants in defined-contribution plans if they have completed at least 500 hours of service each year for three consecutive years and are at least 21 years of age. However, these participants can be excluded from safe harbor contributions, nondiscrimination and top-heavy requirements. 
• Employers and plan sponsors are now more likely to include annuities as an option by reducing their liability if the insurer cannot meet its financial obligations.

A financial adviser would be the best person to contact if you have any questions about how the SECURE Act affects your retirement, and a CPA would be a good person to contact regarding business credits. However, if you want to discuss how eliminating the IRA lifetime stretch might affect your estate plan, give Jesson & Rains a call.

​​By Attorney Edward Jesson
          
This week’s article deals with the responsibilities that contractors have with regards to the actual design of the building, which necessarily includes the building’s structural system. Generally, the contractor responsible for building the project, be it new construction or otherwise, is not responsible for the design aspects of the project unless we are talking about a design-build project. The design aspects will usually fall to a “design team,” often comprising of some combination of architects and engineers. Or, more often in the residential setting, the owner will provide plans and specifications to the contractor.

The following problem has come up time and time again: a general contractor finishes work on a project, built perfectly to the plans and specifications, only to find out that the plans and specifications were defective in some way, which has then caused issues with the final project (at the extreme end, these issues could be structural, rendering the completed project unfit for purpose). Invariably, on discovery that the project has some serious issues, the project’s owner will first turn to the general contractor to “fix it.” Of course, if “fixing it” involves starting from scratch, neither the owner nor the contractor wants to come out of pocket to pay for that.

Legally speaking, the courts throughout the United States have created a doctrine whereby the project owner impliedly warrants that the information, plans, and specifications that an owner provides to the general contractor are fit for purpose. In a residential setting, even if the owner used a design team, if the owner provided plans and specifications to the contractor, this doctrine would likely still apply. This doctrine is known as the Spearin Doctrine and arises from the case United States v. Spearin, which was argued in the United States Supreme Court in 1918.

What this essentially means is that, so long as the contractor complies with the plans and specifications supplied to it by the project owner, the contractor cannot be held legally responsible for structural defects if those plans and specifications are not adequate for the specific project. Contrast this, for example, with a design-build project, where the contractor or its consultants are partially responsible for the design aspect of the project, and you can see how Spearin would likely be inapplicable to those circumstances.

There are, of course, exceptions to this general rule. For example, if there is an express term contained in a contract that the contractor is responsible for any design defects, then it is likely that a contractor in that situation could be held legally responsible. Another exception is that of “reasonable reliance,” which means that if a design defect is so glaringly obvious that it could not be missed, a contractor would not then be able to later claim that they relied on the plans in order to avoid liability.

While generally not directly responsible for the design of structural systems (or, indeed, other areas of a project), that does not mean that a contractor cannot be held liable for deficiencies in the design. The best protection against issues such as the ones presented in this article are written contracts in place between all parties to a construction project, including the design team, and not just between the owner and general contractor.

By Attorney Kelly Rains Jesson
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In addition to celebrating Christmas, Hanukkah, and Kwanzaa this month, December is National Write a Business Plan Month! The holidays are a time for reflection and a time to look forward to the future, and if you’re thinking of starting a business in 2020, you should consider spending some time during your holiday break writing a business plan. While a business plan is not a legal requirement for starting a business in North Carolina, there are some benefits:

Writing a business plan helps you figure out your ideal business structure. As we wrote here before, you have several choices of entity in North Carolina, and they each have their pros and cons.

Writing a business plan helps you attract investors, partners, and key employees because it helps them envision the future and it shows you are responsible, serious about the success of the business, and strategic. Some lenders will require a business plan before issuing a business loan.

Writing a business plan helps you create a budget by planning for expenses and estimating revenue.

Finally, you can include goals and milestones in your business plan and then celebrate when you reach them in 2021!

Everyone here at Jesson & Rains wishes you a Merry Christmas and a happy holiday!

By Attorney Edward Jesson
          
I am excited for the opportunity to speak to you each month about legal issues in the construction industry. My name is Edward Jesson, and I am a partner with the law firm Jesson & Rains, PLLC based in Charlotte, North Carolina. I grew up in England and moved to the United States in 2005 to attend college in South Carolina before moving to South Florida for law school. Our firm protects businesses and their owners, specifically those in construction and related industries. My wife and I previously practiced in South Florida prior to opening Jesson & Rains in the fall of 2015.

In keeping with the theme of this first issue of Building Savvy, I think it’s important to be aware of a specific contract provision that can save the profitability of many jobs: Differing Site Conditions.

Coming across an unexpected site condition is a fairly common risk in a construction project, especially for those involved in new construction or those involved in the grading industry. Put simply, “differing site conditions” are generally considered to be a condition that is discovered while performing work on a project that was not apparent, visible, or expected at the time the project was bid. The majority of times these differing site conditions would be ones that could not have easily been discovered if the contractor had engaged in a reasonable site inspection during the bidding/quoting process. A good example of a differing site condition that you might encounter throughout the country would be unanticipated ground water. You could also come across differing site conditions during remodels -- a historical renovation would be one such example -- such as something in the walls that wasn’t expected or couldn’t have been uncovered with a reasonable inspection of the property (i.e. without tearing into walls to see what you find—which a lot of homeowners probably wouldn’t be too happy with during the bidding process!).

This presents a problem in construction projects, especially those that are for a fixed price. If you quote a homeowner $500,000 for a new build, and then encounter a differing site condition, the costs of construction can skyrocket. Without the proper contractual provisions in place, the homeowner may not be willing to pay those increased costs, nor may they be legally required to. Issues can also arise as
differing site conditions will often involve a delay in the completion date of the project; something which owners, both residential and commercial alike, are often none too happy about.

One of the main purposes of contracts in the construction industry is to assign various risks to parties to that contract before the work begins. This can clearly be seen with differing site conditions clauses in contracts. The differing site conditions clause in AIA 201-2017 states:

If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall promptly provide notice to the Owner and the Architect before conditions are disturbed and in no event later than 21 days after first observance of the conditions. The Architect will promptly investigate such conditions and, if the Architect determines that they differ materially and cause an increase or decrease in the Contractor’s cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall promptly notify the Owner and contractor in writing, stating the reasons. If either party disputes the Architect’s determination or recommendation, that party may proceed as provided in Article 15.
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AIA agreements are often standard in the commercial construction industry, though much less used on the residential side of things. While that AIA clause is certainly more than you would need for most residential construction projects, it is illustrative of what a differing site conditions clause tries to do. If the contractor notifies the proper people promptly (in this case the owner and architect, but on the majority of projects it would likely just be the owner), the owner must adjust the contract price accordingly to reflect the extra work that will be done and, if necessary, adjust the time required for performing the contract.

Contractors would be wise to consider using a differing side condition clause in their contract. A simple differing site condition clause, in addition to a well written contract in general, can help protect against the unexpected and, more importantly, help a contractor protect its profit when such conditions are discovered.

 By Associate Attorney Danielle Nodar

Thanksgiving is one of the best opportunities of the year to slow down before the rush of the holiday season and spend quality time with our loved ones. During this time of relaxation and reflection, many people also think about how to they want to plan for their future and the impact it may have on their loved ones. The holiday provides a chance to catch up with loved ones we may not see during the year and open the door to discussing important topics as a family.

While the majority of adults consider having an estate plan important, nearly half of all Americans do not have a will, and even fewer have other documents that plan for incapacity. Unfortunately, there are countless issues that could arise without proper estate planning.

Without a will or living trust, your assets would pass according to the intestacy laws of North Carolina. This takes away the control you have over who inherits what when you pass away and could have huge implications on your loved ones. Additionally, in North Carolina, a will is the only way to name a guardian for your minor children in the event that both parents pass away.

Furthermore, some people may require more complex estate planning depending on their family situation (such as second marriages, a child with special needs, or care of minor children) and the type and amount of their assets. Estate planning through devices such as living trusts allows you to put plans in place to address the specific needs of your beneficiaries, avoid the probate process, and address more complex tax issues depending on your assets.

Finally, a comprehensive estate plan not only plans for what happens after death, but also addresses who would be responsible for making decisions on your behalf if you became incapacitated during your lifetime. This includes naming someone to make financial decisions on your behalf and someone to make medical decisions on your behalf. Without such a plan, your family may have to go through more drastic and expensive court proceeding to have you deemed legally incompetent by a judge.

While most people think of turkey, football, shopping, and the inevitable food coma when Thanksgiving comes to mind, it’s an opportunity to discuss planning for the future while everyone is gathered together in the spirit of family and gratitude. If you approach the topic with honesty, care, and thoughtfulness, it could help you get the ball rolling on making important decisions for your estate plan that will have a positive impact on your family for years to come.