Personal Liability Pitfalls: Tips for Officers and Directors

1. Personal Liability Pitfalls: Tips for Officers and Directors Haley R. Van Loon BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-248-6625 Facsimile: 515-248-6626 E-mail: vanloon@brownwinick.com

2. Failure to Pay Wages on Time Iowa Code Chapter 91A, the "Iowa Wage Payment Collection Law" provides for "employer" liability, but . . . There have been numerous recent attempts to pass "wage theft" legislation in the Iowa legislature.

3. Wage Theft Legislation • The proposed legislation would make it a crime for undercapitalized businesses to "steal" wages through non-payment; and • This type of legislation has been aimed at both the employer, and others "in charge," including supervisors, officers and directors. The final word . . . Stay tuned, but be mindful that the non-payment of wages is looked upon with disfavor and may be the subject of new legislation.

4. Failure to Pay Minimum Wage Fair Labor Standards Act of 1938 (FLSA) The FLSA imposes certain minimum wage and overtime requirements upon employers.  Under the FLSA, each "employer" must pay a minimum wage.  29 U.S.C. § 206(a).

5. So who is the employer? Any person acting directly or indirectly in the interest of an employer in relation to an employee.  Any corporate agent who has economic control or can exercise control over the nature and structure of the employment relationship, based on the circumstances and economic reality of the relationship.  Thus, officers and directors (and possibly others) may be assessed individual liability.

6. Failure to Provide Workers’ Compensation Insurance "Employers" are required obtain workers' compensation coverage before engaging in business activities. Any person who "willfully and knowingly" violates this requirement is guilty of a class "D" felony.

7. In addition . . . • A failure to provide workers' compensation insurance means the Iowa Attorney General may be notified. Upon notification, the Attorney General is required to bring an action to stop further violation of the workers' compensation law (Iowa Code § 87.19); and • A failure to provide workers' compensation insurance will eliminate the "gross negligence" standard applicable to properly insured businesses.  Thus, the injured employee would simply need to show negligence in order to collect damages from a fellow employee.  Iowa Code § 87.21.

8. Failure to Withhold Taxes State Liability Employers and “withholding agents” are required to withhold taxes and pay withheld sums to the Department of Revenue

9. Who is a “withholding agent” under Iowa law? • Includes any officer or employee of a corporation or association who has the responsibility to withhold and pay taxes and who knowingly fails to do so.

10. Failure to Withhold Taxes Federal Liability Employers are required to withhold federal income and FICA taxes from an employee's wages.  Employers are also required to pay these amounts to the IRS along with the employer's share of FICA, as well as FUTA taxes.

11. Officers, directors (and others “in charge”) beware . . . Any person "responsible" for the collection and payment of these taxes who willfully fails to pay over withheld taxes may be personally liable for a penalty equal to 100% of the delinquent trust fund taxes.  In addition, criminal penalties are also a possibility.

12. Failure to Abide by ERISA The Employee Retirement Income Security Act (ERISA) governs employee benefit plans, like health insurance and 401(k) plans.  Officers and directors may have personal liability if they have "discretionary authority" or "responsibility" for the administration of employee health and 401(k) plans.

13. Failure to Comply with the Iowa Civil Rights Act The Iowa Civil Rights Act prohibits various forms of discrimination in employment, including on the basis on age, race, creed, color, sex, national origin, religion or disability.

14. The Iowa Supreme Court has determined that supervisory employees may be subject to individual liability under the Iowa Civil Rights Act.

15. The Possibility of Corporate Veil Piercing Because officers and directors are also frequently shareholders of a corporation or members of a limited liability company the possibility of corporate veil piercing should be considered.

16. Under Iowa law, owners can be personally liable if “the corporation is a mere shell, serving no legitimate business purpose, and used primarily as an intermediary to perpetuate fraud or promote injustice.” Factors considered include: • Undercapitalization; • Failure to keep separate books; • Failure to keep separate finances; • Corporation used to promote fraud or illegality; and • Corporation is a mere sham.

17. Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.