 By Associate Attorney Danielle Nodar
Marketing your business has extended beyond websites and social media, with many businesses choosing to reach their customers directly via text messages. While this form of marketing is a great way to communicate promotions, offers, or new products to your customers, businesses must adhere to text message privacy laws or risk incurring hefty penalties. For example, a violation of the Telephone Consumer Protection Act (TCPA) can result in a fine of $500 to $1,500 per violation, which can add up quickly if multiple messages are being sent to multiple consumers. Electronic communications, including phone calls, e-mails, and text messages, are regulated in the United States under two federal privacy laws: The TCPA and the CAN-SPAM Act. The TCPA is the primary telemarketing law in the US and prohibits calls and text messages to cell phones unless the consumer has provided express written consent. Express written consent must be related to receiving promotional text messages--not just being contacted by the company. For example, having a customer provide their phone number to set up an account or as part of a transaction does not constitute consent to receiving future promotional messages. To comply with TCPA’s consent requirement, businesses should provide a consumer with a clear, conspicuous disclosure of the kinds of text messages they will receive before sending them promotional messages, the approximate number of messages they will receive in a certain time frame, and how to get more information about the subscription program and opt-out of future messages. Many times, this constitutes an introductory text message that provides information about the promotional program, message and data rates, and a prompt that allows a consumer to enter “STOP” to unsubscribe or “HELP” to receive further information about the texting program, including links to the company’s privacy policy or terms and conditions. Another law businesses must comply with when engaging in text message marketing is the CAN-SPAM Act. This is the primary text messaging spam prevention law in the US. Just like TCPA, a business needs a customer’s consent before sending commercial text messages. The commercial text messages must clearly disclose that it is an advertisement and provide an easy, clear way to opt-out of receiving future messages. When a consumer opts-out of a text message campaign, the business must honor the request within 10 days. CAN-SPAM Act does not apply to existing relationships or transactions, such as order or delivery confirmation texts. However, if the main content of a message is commercial, the CAN-SPAM Act will apply, even the message also includes other transactional information. In order to comply with these two laws, businesses must ensure that they have a compliant procedure for obtaining written consent from a consumer prior to them receiving promotional text messages. Some options include keyword texting, where a customer will text a keyword from their phone to join, an online form or website pop up that allows a visitor to opt into the program, or a paper form. Businesses should also keep records of a customer’s consent, including when they consented and if they opted out. If you are thinking of using text message marketing for your business, please call Jesson & Rains to learn more about how to properly start a texting campaign and best practices for protecting your business!
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 By Attorney Kelly Jesson & Meg Abney
Most people are aware that 529 plans are a way to intelligently save for minor’s education with pre-tax dollars. We use the word “minor” because money can be set aside for any beneficiary, not just your child, to use on education. This article contains more details on these accounts so you can determine whether these plans are right for you. What can 529 funds be spent on?
What can 529 funds not be spent on?
Can a 529 plan affect the ability to get financial aid/needs-based scholarships? Yes. If the student or parent owns the 529 plan, on the FAFSA form, it counts as an asset. If a grandparent owns the 529 plan, it is not reported on the first year, but if money from the plan is used to pay for the student’s education, it must be reported as “untaxed income to the student” which may affect the ability to get aid in future years. What happens if the beneficiary does not need the money? When money is contributed to a 529 Plan, the account owner retains control of the money in the account, even when the beneficiary is no longer a minor. There is no expiration date on the account, and there is no age limit by which funds must be withdrawn. Withdrawals for non-authorized expenses are penalized and taxed, similar to early withdrawals from a retirement account. 529 plans cannot have multiple beneficiaries at the same time, but they can be split into two in the event you want to make distributions to more than one beneficiary. If the account owner dies, who decides what happens to the account how the funds are to be spent? It depends on the terms of the particular 529 plan. Sometimes the terms of a 529 plan will provide that the beneficiary becomes the new owner of the account upon the owner's death. However, this is not common practice. Usually, the enrollment application for a 529 plan asks the owner to name a successor owner. This person becomes the new owner and even has the ability to change the account's beneficiary and make nonqualified withdrawals. For more control, it is better to name a trustee as the successor owner since the actions of the trustee are bound by the terms of the trust. If no successor is listed, and the account holder dies, the former owner’s executor will become the new account holder. The executor will usually have the same powers over the account as the original owner.  By Associate Attorney Danielle Nodar
The No Surprise Act, a new law establishing protections for consumers against surprise medical billing, became effective on January 1, 2022. This law protects individuals covered by insurance from receiving surprise medical bills when receiving certain kinds of medical services, particularly emergency services, at an out-of-network facility or from out-of-network providers working at an in-network facility. Before this law became effective, an insured patient receiving care from an out-of-network provider or at an out-of-network facility may have been responsible for the balance of the bill not covered by their insurance, which could result in a patient being responsible for hundreds or thousands of dollars in “balance” or “surprise” bills. This applied even if a patient went to an in-network facility but unknowingly received care from an out-of-network provider, like an anesthesiologist or radiologist. The No Surprise Act protects consumers from these surprise medical bills by banning surprise bills for most emergency services, even if they were received at an out-of-network facility, banning surprise billing for certain non-emergency services provided by out-of-network providers in an in-network facility, and requiring insurance to cover out-of-network claims and apply in-network rates. The law’s main aim is to protect insured consumers who may unknowingly receive out-of-network treatment. The No Surprise Act also provides consumer protections to uninsured patients or those who choose to pay for their care out of pocket by requiring most providers to provide a good faith estimate of how much your care will cost before you receive treatment. Also, if there is a dispute over the amount payable, patients no longer serve as the middleman, as the Act establishes a negotiation and arbitration procedure between the insurance carrier and out-of-network provider. The No Surprise Act does not apply if the patient gives prior written consent to waive their rights under the Act and be billed more for out-of-network providers. This waiver exception does not apply in an emergency situation. Consent must be voluntarily given, and the notice must clearly explain the rights the patient is waiving. Otherwise, a provider can refuse care if consent is denied. As this law is still new, there are still many aspects that have not been clarified, such as how the law is enforced and applied to different providers. For example, some medical communities have concerns with providing a good faith estimate prior to treatment as it may be difficult due to a lack of diagnosis or may serve as a deterrent to care for certain patients, such as those seeking mental health treatment. However, medical providers impacted by the law still have a duty to comply with its requirements, particularly with regard to notices of a patient’s rights under the law, waivers and consent to balance billing, and good faith estimates. If you think your practice may be impacted by this law, please feel free to contact Jesson & Rains.  By Attorney Edward Jesson
In North Carolina, the Licensing Board for General Contractors controls who can apply for and hold a general contractor’s license and what the criteria is for those seeking to obtain a license. In general, in North Carolina, if you are wanting to bid on or perform construction projects with a value in excess of $30,000.00, you must obtain a general contractor’s license. Of course, if you are involved in plumbing, electrical, or HVAC work (or various other trades), you must obtain a license from the relevant board controlling those trades. We have frequently been asked if a company or individual who doesn’t own a general contractor’s license can simply “lease” or “borrow” a license from someone who does hold a general contractor’s license. The answer is “no.” The definition of a general contractor in North Carolina is “any person or firm or corporation” who plans on performing work in excess of $30,000.00. In order to hold a general contractor’s license, among other things, the license holder has to pass a test. A “firm or corporation” is not able to sit down and take a test—a person must. Therefore, this is where “qualifiers” come into play. In North Carolina, a business applicant must identify in its application a person who has successfully passed the exam (or who plans to take the exam) who will act as a qualifier for the business. A qualifier must be a responsible managing employee, officer, or member of the personnel of the business applying. A responsible managing employee is a person who is working for the applicant business for a minimum of 20 hours per week or a majority of the hours operated by the business. If the person is not an owner, officer, or partner, the person must be a W2 employee. Similarly, a member of the personnel refers to a W2 employee. Therefore, the qualifier cannot be an independent contractor and cannot be “leased” or “borrowed.” Under these circumstances, for example, XYZ Building, Inc. would be the named license holder but “Mr. Jones” would be the qualifier—the individual who had actually passed the Board’s exam. If that qualifying individual is no longer employed or associated with the company, the company’s license will remain in effect for 90 days in order for the company to make arrangements to get another qualifier in place. However, and very importantly, during that 90 day period, the license holder company cannot bid on or obtain any more work until its license is fully reinstated. Not just anyone can act as a qualifier for a company. Moreover, simply hiring someone who holds a general contractor’s license does not mean that the company is properly licensed with the Board. XYZ Building, Inc. would have to submit an application to the Board that lists Mr. Jones as its qualifier, and Mr. Jones would have to fit the criteria to actually be a qualifier. Without going through the proper steps, XYZ Building, Inc. may be guilty of the “unauthorized practice of contracting,” which is a class 2 misdemeanor in North Carolina. Additionally, XYZ Building, Inc. may not have any recourse against a homeowner who fails to pay them because they were not properly licensed. If you need assistance complying with the North Carolina Licensing Board for General Contractor’s rules or have already received notice from the Board that you are in violation of its rules, the attorneys at Jesson & Rains may be able to help.  By Attorney Kelly Jesson
This year, make a resolution to prioritize estate planning. Estate planning allows you to gain control and peace of mind over difficult and unpredictable situations. We have previously written about the difficulties caused by dying without a will in North Carolina and the pitfalls of the probate process in North Carolina; however, many of the “worst-case” scenarios can be avoided with proper planning. Let us help you make 2022 the year you plan for emergency scenarios and protect your business and personal assets for the benefit of your loved ones through estate planning. Unfortunately, COVID-19 has shown us that there are no guarantees, but it has also highlighted what is most important to each of us: family. Estate planning allows you to plan for what happens when you pass away, including naming a trusted person to handle your final affairs, name guardians for minor children, and distribute your assets according to your wishes. In addition to planning for death, our office drafts durable and health care powers of attorneys, where you can name agents to make both financial and medical decisions for you if you are incapacitated and cannot communicate. There is no reason to wait to do planning, and as the pandemic continues to be a part of our “new normal,” you should get a plan in place before it is ever needed. If you do become incapacitated or ill, it may be more difficult or impossible to get documents in place, as you must have testamentary capacity to create valid estate planning documents. Some of our clients delay estate planning because they do not have any friends or family members they trust to serve in fiduciary roles. In some circumstances, members of the firm may serve in these roles for the client if the client feels comfortable. It is better for you to take control and name someone yourself than to have the government appoint someone in an emergency or when you pass away. We want to help you take CONTROL in 2022! Please call Jesson & Rains if you have questions about getting your estate plan in order or updating an existing estate plan. While You Build, We Protect.  By Attorney Kelly Jesson
We hope everyone has had a wonderful holiday so far. People frequently make new year’s resolutions to stop bad habits or improve their lifestyle, but what about a new year’s resolution for your business? Make 2022 the year that you start running your business and stop the business from running you. One key to making this switch is delegating tasks to others, and Jesson & Rains is happy to take a few things off your plate. Last year, we started offering annual plans that include some of the administrative annual tasks with which businesses (i.e. YOU) have to comply, such as filing annual reports and keeping meeting minutes, and offer cost-effective peace of mind with discounted legal services, registered agent services, and quarterly or unlimited calls. There’s never a reason not to consult your lawyer if we make it easy for you. Not running your business properly can result in a loss of asset protection, which is one of the whole points of formalizing your business. We wrote about this in a past blog HERE, and this LINKS to our annual plan packages. Give us a call if you would like more information! Start 2022 off right! |
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