2017 Legal Elite Includes Five Allison MacKenzie Attorneys

 

James Cavilia

James Cavilia

Allison MacKenzie is proud to announce that five attorneys have been recognized as Top Attorneys in Northern Nevada by Nevada Business Magazine. Each year, the publication releases its Legal Elite list highlighting the top 4 percent of attorneys in the state. After a rigorous nomination, verification, and voting process, Allison MacKenzie attorneys James Cavilia, Chris MacKenzie, Ryan Russell, Joel W. Locke, and Kevin Benson were named as part of the 2017 Legal Elite.

Ryan Russell

Chris MacKenzie

Legal Elite attorneys are nominated by votes from their peers in the legal community. Nearly 6,400 nominations were collected throughout the state of Nevada for Legal Elite this year. After closing the nomination process, every ballot was reviewed for eligibility and every voting attorney was verified with the State Bar. Each nominated attorney was then scored based on the number and type of votes received. Votes from within their own firm were given a score of one and votes from someone at an outside firm were given a weighted score of three. The top scorers are then verified again before officially being named to the final list. This thorough selection and vetting process ensures that Legal Elite includes and recognizes only the most exceptional attorneys in Nevada.

Kevin Benson

Joel W. Locke

James Cavilia, Chris MacKenzie, Ryan Russell, and Joel W. Locke are partners at Allison MacKenzie; Kevin Benson recently joined the firm as an associate attorney. All five attorneys are native Nevadans who have dedicated their careers to serving the communities of Northern Nevada.

James joined Allison MacKenzie in 1992; his practice areas include Real Property and Property Development Law. Chris has been with the law firm for 24 years and focuses his efforts on Business and Administrative Law. Ryan primarily practices Local Government and Entity Law and has been with the firm since 2004. Joel celebrates 10 years with Allison MacKenzie this year and focuses on Estate Planning and Family Law. Kevin came on board earlier this year, and his primary area of practice is Litigation and Appeals.

Congratulations to James, Chris, Ryan, Joel, and Kevin for their outstanding work and ongoing commitment to superior legal representation.

Tips to Successfully Start and Run a Family-owned Business

Allison MacKenzie Associate, Will Wagner Explores the Challenges of Running a Family-owned Businesses

Running a family-owned business can present both advantages and disadvantages while competing in the marketplace. Family dynamics in a business can add complexity to operations that competitors may not be burdened with. However, the personal and financial payoff can be immense for businesses that overcome common obstacles and pitfalls of working with family members.

Practical and legal suggestions for successfully operating a family-owned business include

Creating Structure:

While family-owned businesses often begin as a hobby or an idea among family members, as the business grows, it is imperative to create a legal structure to operate efficiently. Be sure to establish yours by creating an entity, registering with the Secretary of State’s Office, establishing separate bank accounts, and developing a business plan.

Establishing Clear Roles:

Make these roles as “official” as possible by creating titles and providing business cards. It would be prudent to require a family member to sign the same employment agreement that non-family employees sign, and subject family members to the same performance reviews as non-family employees.

Balancing Family vs Work Time:

Establish clear working hours and keep some family activities work free.

Creating a Succession Plan:

Plan ahead and have an exit strategy.

Read the complete article at: Northern Nevada Business Weekly

Former Senior Deputy Attorney General Joins Allison MacKenzie Law Firm

Kevin Benson, attorney with Allison MacKenzie Law Firm

Allison MacKenzie Law Firm is pleased to announce the hiring of Kevin Benson as an associate attorney effective March 1, 2017. A Carson City native and former State of Nevada Senior Deputy Attorney General, Kevin joins the law firm and will focus his areas of practice on civil litigation, appeals, administrative and regulatory matters, election law, and ballot measures.

Upon graduating from Carson High School, Kevin attended the University of Nevada, Reno, where he obtained a degree in Criminal Justice with a minor in Biology in 2001. In 2004, he obtained his Juris Doctor Degree from Rutgers School of Law in New Jersey. Committed to returning to the area and serving fellow Nevadans, Kevin accepted a position with the State of Nevada Attorney General’s office where he worked for over a decade. There, he rose to the position of Senior Deputy Attorney General.

Read the compete article at: CarsonNow.org

The Importance of an Estate Plan

Many people question the necessity of an estate plan and often conclude that the size of their estate does not warrant any future planning. However, estate planning is no longer only considered a vehicle for the wealthy and is used by persons of all income brackets to ensure their possessions go where they want upon their death. Without an estate plan, all of your property passes by operation of law, and you will have no say in where or to whom your possessions go. Fortunately, there are several choices in Nevada available for you to direct where your possessions go upon your passing, the most popular being a Last Will and Testament (“Will”) or Trust.

Upon executing a Will, you can nominate a Personal Representative and specifically detail who will receive your belongings upon your death. While this may accomplish your goal in ensuring that your property goes where you desire, your Personal Representative will still have to go through probate, a costly and time consuming Court process. In Nevada, there are four different levels of probate ranging from estates with a total value of less than $25,000 to estates exceeding $300,000. At each level, additional Court involvement is required, necessarily entailing higher costs and expense to your estate. Further, Nevada law entitles attorneys to compensation based on a percentage of the size of the probate estate. For example, Nevada law provides attorneys statutory compensation in the approximate amount of $9,000 for administering and probating a $300,000 estate. Alternatively, attorneys may charge the estate on an hourly basis for the time spent in the probate process. At Allison MacKenzie, Ltd., we charge the estate the lesser of the two amounts, allowing more of your estate to pass to your beneficiaries as desired.

Alternatively, the most popular form of future planning available to you is a Trust. While a Trust accomplishes the same goal as a Will, property in a Trust does not have to go through probate or be administered by a Court. Further, with recent changes in federal law, the vast majority of estates are no longer subject to additional taxes. This has allowed the attorneys at Allison MacKenzie, Ltd., to prepare Trusts and estate plans that easily accomplish your goals without convoluted legal jargon. In addition to the Trust itself, these estate plans include documents such as durable powers of attorney and living wills which set forth your personal desire regarding care during your life, in addition to the Trust which directs distribution of your property upon your death. At Allison MacKenzie, Ltd., all of these documents can be prepared for less than one-third of the expense your estate would be responsible for if it had to be probated under a Will.

Kyle Winter is a Nevada native and attorney at Allison MacKenzie Law Firm in Carson City. His areas of practice include Family Law, Estate Planning, Guardianships, and Probate Law.

Retirement: Final Rule on Fiduciaries

Allison MacKenzie Attorney, Jordan Walsh, Explains the Department of Labor’s Final Rule

The way we plan for retirement in the United States has changed drastically in recent years. In the past, employees could rely on their pension, which was typically managed by a financial expert, to support them through retirement. Today, for most of us, pensions are things of the past, and we, as individuals, are responsible for making the financial choices that will shape when and how we may retire.

While this system provides retirement savers with the flexibility to make financial choices that are uniquely tailored for their situations, this method of saving is fraught with pitfalls for retirement savers because most of us lack the expertise, time, and confidence, to invest our savings in a manner that will allow us to efficiently meet our retirement goals. Accordingly, we look to financial advisors to assist us in making smart financial decisions that will allow us to reach our retirement saving goals.

While most of us have good relationships with our financial advisors, statistics suggest there’s a segment of financial advisors who abuse the trust of their clients by putting their own financial gain above that of their clients. The Department of Labor (DOL) and the White House Council of Economic Advisors (CEA) estimate on average conflicts of interest between unscrupulous financial advisors and their clients cause retirement savers to earn one full percentage point less annually than would be expected based on the status of the economy on their returns.

Furthermore, the DOL estimates such advisors cause their clients to waste upwards of $17 billion of retirement savings every year on exorbitant fees and lost revenue associated with the purchase of ill-advised financial products resulting from a conflict of interest. These conflicts of interest can occur because financial advisors aren’t currently held to a fiduciary standard under the law, and for this reason, they owe their clients no duty to provide advice that aligns with the client’s financial goals. In fact, it’s common for firms and purveyors of financial products to provide financial incentives to advisors whose clients invest in certain financial products.

For the complete article, visit: Nevada Appeal.

 Jordan Walsh is an associate with Allison MacKenzie Law Firm with primary practice in the areas of Labor and Employment Law and Civil Litigation. Jordan was admitted to practice in Nevada and California in 2014.

Recent Nevada Case Law May Render Your Business’ Non-Compete Provisions Unenforceable

will-wagner

Allison MacKenzie Attorney, Will Wagner, Explores Non-Compete Provisions

In a July 2016 opinion, Golden Road Motor Inn, Inc. v. Islam (“Golden Road”), the Nevada Supreme Court pronounced a new legal rule regarding the enforceability of overbroad non-compete provisions in Nevada.  In light of Golden Road, it would be prudent for any entity conducting business in the State that relies on non-compete provisions to reevaluate the scope of such agreements to ensure they remain enforceable.

A non-compete provision is a contractual clause that prevents an employee from joining a competitor following the termination of employment.  Non-compete provisions are important to businesses that use sensitive information such as proprietary client lists or similar trade secrets.  These provisions also protect a business’s investment in training and retaining quality employees, while deterring competitors from luring valuable workers.

Non-Compete Provisions can be Overbroad in Timeframe or Geographical Scope Restrictions

Typically, the state’s laws in which the employee works will govern a non-compete provision. Non-compete laws vary widely from state to state as to enforceability and overbreadth. For instance, in California, under most circumstances a non-compete provision is unenforceable and cannot restrict an employee from joining a competitor. The primary exception to this being that when a business is sold, the selling entity and its employees can be restricted from competing. Many other states, including Nevada, allow non-compete provisions generally (both in the normal course of business and while a business is being sold) so long as the scope is reasonable and germane to the organization’s interests.

For the complete article, visit: Northern Nevada Business Weekly.

Will Wagner joined Allison MacKenzie Law Firm in 2016. He is a native Nevadan and University of Nevada, Reno graduate. Will pursued and obtained his law degree from the Sandra Day O’Connor College of Law at Arizona State University where he graduated cum laude. Upon graduating from law school, he served as a law clerk to Justice James W. Hardesty on the Supreme Court of Nevada. He was admitted to practice law in Nevada in 2015, and California in 2016. Will’s areas of legal practice include Business, Real Estate, Employment, Appellate, and Administrative Law.

Fernley Native, Will Wagner, Joins Allison MacKenzie Law Firm

will-wagner

Will Wagner Joins Allison MacKenzie Law Firm

Fernley native Will Wagner accepted an associate position with Allison MacKenzie Law Firm in Carson City, effective Sept. 12 of this year. Wagner will focus his practice in business, real estate, employment, appellate practice, commercial litigation, governmental affairs and administrative law.

Upon graduating from Fernley High School, Wagner attended the University of Nevada, Reno where he began his studies in biochemistry before ultimately deciding to become an attorney and pursuing a degree in political science with a minor in business administration. In 2015, he obtained his Juris Doctor Degree from Sandra Day O’Connor College of Law at Arizona State University where he graduated cum laude. He returned to the area and began his legal career as a law clerk for Justice James W. Hardesty at the Supreme Court of Nevada.

See the complete article: Nevada Appeal

Family Law Series: Modification of Child Custody and Visitation

Family Law Series: Modification of Child Custody and Visitation

Kyle Winter is a Nevada native and attorney at Allison MacKenzie Law Firm in Carson City. This home grown talent focuses his practice in the areas of Family Law, Estate Planning, Guardianships and Probate Law and recently completed his third article, and follow up article to Understanding Child Support Basics, in the Family Law Series: Modification of Child Custody and Visitation.

Please see the complete article below or visit: The Nevada Appeal.

More often than not, divorce and separation leaves parties in a difficult situation having to make decisions immediately, most frequently involving their minor children. Importantly, and until a Court order is entered to the contrary, each parent is considered to be a joint legal and joint physical custodian, meaning each is entitled to be with the children on an equal basis. As discussed in a previous article, the initial custody determination is important, for it sets the standard that serves as the basis for future determinations, including the time when a parent seeks to modify the current custody and visitation arrangement.

Generally speaking, once the custody and visitation of a minor child has been determined by a court of competent jurisdiction, that court retains and exercises continuing and exclusive jurisdiction to modify or vacate its prior order or decree until the child reaches age 18. However, and because a change in custody can be traumatic for a child and tends to undermine the stability and continuity the child has come to enjoy and need, Nevada courts don’t lightly entertain requests for change. Based on this understanding, and always considering the best interest of the child, the standard used by the court to determine whether a change in custody is warranted depends on the type of custodial arrangement that has been previously ordered or agreed upon by the parties.

For instance, if the Court has awarded joint physical custody and a parent later desires to become the primary physical custodian, the court must determine whether such a change is in the child’s best interest. In Nevada, the court considers numerous factors in determining a child’s best interest, including but not limited to, (a) the wishes of the child if the child is of sufficient age, (b) a nomination of a guardian for the child by a parent; (c) which parent is more likely to allow the child to have frequent associations and a continuing relationship with the other parent; (d) the level of conflict between the parents and the ability of the parents to cooperate to meet the needs of the child; (e) the mental and physical health of the parents and the child; (f) the nature of the relationship of the child with each parent; (g) the ability of the child to maintain a relationship with any sibling; and (h) any history of parental abuse or neglect or whether either parent or other party has engaged in an act of domestic violence or committed any act of abduction. If after careful consideration of these factors, the Court determines it would be in the child’s best interest to modify custody from a joint custodial arrangement to a primary physical custodial arrangement, it will do so.

On the other hand, if the court has awarded one parent primary physical custody and provided the other parent reasonable visitation, the standard the court will consider in determining whether modification is appropriate is drastically different. In addition to proving a modification would be in the child’s best interest using the factors explained above, the moving party must also prove there’s been a substantial change in circumstances affecting the welfare of the child. This additional “substantial change in circumstances” prong serves the important purpose of guaranteeing stability for the child and requires the party seeking the modification to prove both prongs. Moreover, the substantial change in circumstances must generally have occurred since the last custody determination, preventing a dissatisfied party from filing immediate, repetitive motions until the desired result is achieved.

 

Fair Labor Laws in Nevada

Jordan Walsh, Allison MacKenzie Law Firm

2016 Changes to the Fair Labor Standards Act: Is the Final Rule Impacting Your Bottom Line?

Jordan Walsh is an associate with Allison MacKenzie Law Firm and was asked to explore the Fair Labor Standards Act for Northern Nevada Business Weekly. Her analysis can be found in the 2016 Business Law Publication or read below.

jordan-business-law justice

For many employers, it may feel like their rights and responsibilities are always changing. As difficult as it is to keep up with the changing landscape of labor and employment law, employers need to stay abreast of the law, support employees, and keep their businesses profitable – a task that is daunting at the best of times. To add to the conundrum, on May 18, 2016, President Obama and the U.S. Secretary of Labor, Thomas Perez, announced the Department of Labor’s publication of its “Final Rule” revising the application of the Fair Labor Standards Act (FLSA).

What does this mean for employers? The Final Rule extends the minimum wage and overtime standards outlined under the FLSA to millions of “white collar” employees working in the United States. The changes imposed under the Final Rule will become effective on December 1, 2016, so it is important for employers to familiarize themselves with the changes over the next few months so as to ensure their compliance with the FLSA at the time that the Final Rule takes effect.

Among other things, the FLSA establishes a minimum wage and overtime pay standards for employees working in both the private and public sectors. Under the FLSA, employees covered by the Act are entitled to collect the federally established minimum wage and receive overtime pay, at a rate of one and one-half percent of their regular rate of pay, for any time in excess of forty hours, which the employee works in a single workweek. While this list is not exhaustive, the following kinds of employees are typically covered under the FLSA:

1. An employee who works for an enterprise that has an annual gross volume of sales equal to or greater than $500,000.00;
2. An employee who works for an enterprise that does annual business equal to or greater than $500,000.00;
3. An employee who works for a hospital, or other business providing medical or nursing care for residents;
4. An employee who works for a school (whether operated for profit or not-for-profit), excluding teachers whose primary duty is teaching, tutoring, instructing, or lecturing.
5. An employee who works for a public agency;
6. An employee whose work regularly has the employee engage in or become involved in interstate commerce; or
7. An employee working for a non-profit charitable organization engaged in commercial activities resulting in $500,000.00 or more in business being done, or sales being made.

Notably, in the past, the FLSA did not apply to “white collar” employees; namely, bona fide executive, administrative, and professional employees, unless the employees made less than $23,660.00 annually (less $455.00 per week). This “white collar exception” to the application of the FLSA was “premised on the belief that these kinds of workers typically earn salaries well above the minimum wage and enjoy other privileges, including above average fringe benefits, greater job security, and better opportunities for advancement, setting them apart from workers entitled to overtime pay.” Under the current version of the rule, a “white collar” employee does not qualify for coverage under the FLSA if he or she (a) is paid on a salary basis, (b) is paid $455.00 or more per week, and (c) his or her primary duties involved the kind of work associated with one of the aforementioned exempt duties – executive, administrative, and professional duties. Where this exception applied, an employer was not required to meet the federal minimum wage, or pay the employee overtime. Instead, so long as the employer’s employee meets each of the criteria listed above; the employer was not required to pay the employee overtime or to meet the federal minimum hourly wage.

While the white collar exemption will still be available for employers come December 1, 2016, and the same factors will be used to determine which “white collar” employees are covered under the FLSA (see factors (a) through (c) listed above), employers must be cognizant of the fact that the salary criteria used to from the test changes dramatically on December 1st. Specifically, “white collar” employees who earn less than $913.00 per week will now be covered under the FLSA. This means that employees who earn annual salaries that are less $47,476.00 will now enjoy coverage under the FLSA. Notably, under the new rule, any “white collar” employee making less than $47,476.00 annually will be entitled to (i) collect overtime for any time worked in excess of 40 hours in a single workweek, and (ii) collect an hourly wage that is at the very least equal to the federal minimum wage.

Employers are expected to understand and comply with the Final Rule come December 1, 2016. While employers have many options for ensuring their compliance, failure to comply with the Act could result in the employer being subject to significant fines, fines up to $10,000.00; and/or up to 6 months of jail time. If stakes weren’t high enough, an employer may also be subject to litigation, and could be held liable to an employee for any unpaid wages and/or overtime, and may be liable for equitable and/or liquidated damages depending on the egregiousness of his or her non-compliance with the FLSA. Accordingly, in the coming months, employers in Nevada must take stock of their “white collar” employees, and should any of these employees fall within FLSA coverage, employers should start planning methods for ensuring that their businesses are, or come into, compliance with the FLSA by the Final Rule’s effective date.

Employers need to be proactive in their efforts to comply with the Act. While they do not need to be experts on the application of the FLSA; employers should be aware that major changes to labor and employment law will be taking effect come December 1st, and should they have any questions or concerns regarding their compliance with the law, they should seek legal counsel to assist them in navigating this complex area of the law. Furthermore, if you are an employer, it is advisable to seek legal advice before the Final Rule takes effect. Doing this will help to prevent you from running afoul of the new rules, a situation which could adversely impact the profitability of your business.

About Jordan Walsh

Jordan Walsh is an associate with Allison MacKenzie Law Firm with primary practice in the areas of Labor and Employment Law and Civil Litigation. Jordan was admitted to practice in Nevada and California in 2014. Jordan can be reached by calling 775.687.0202 or by email at JWalsh@AllisonMacKenzie.com.

Fair Energy for All Nevadans

Justin Townsend (2)

Justin Townsend is an associate with Allison MacKenzie Law Firm with primary practice in Business Law, Real Estate Law, Transportation Law, Commercial Transactions and Energy Law. In his Northern Nevada Business Weekly article: PUCN obligated to set utility rates that are fair for all Nevadans, he explores the efforts of the Public Utilities Commission of Nevada to ensure that non-solar energy customers are not forced to unreasonably subsidize net metering customers while ensuring solar customers receive fair service charges and reimbursement rates for solar power generated.

In Nevada, public utilities are regulated by the Public Utilities Commission of Nevada (“PUCN”). The PUCN is charged with promoting safe and reliable utility services at fair and reasonable rates.

Recently, the PUCN has made news in regard to an area of significant interest to many Nevadans — solar energy and the net metering program associated with it. Net metering is a metering mechanism that credits residential, rooftop solar energy system owners for the electricity added to the grid.

Prior to 2015, Nevada law provided a cap on the amount of electricity that could be added to the grid from residential, rooftop solar systems in the state. The cap had been expanded over the years and the rooftop solar industry in 2015 lobbied the Nevada State Legislature for another increase to the cap as residential solar installations neared capacity. The Legislature, in noting that the net metering model required non-solar customers to subsidize solar customers, opted instead for a new approach.

Read the complete article on NNBW.com.