Help during COVID-19

Offering Compassionate Legal Counsel During These Uncertain Times

The spread of COVID-19 (Coronavirus) is having significant implications for all of life’s legal challenges. Rizzo & Diersen is offering a variety of on-demand legal services designed to address your needs during this outbreak. For individuals, we can use Efile to file any court action that cannot be done in person at this time. For employers, we can address your questions and represent you as employment challenges impact your business and employees.

Legal Services for the Individual

• Assistance with filing for a Divorce

• Filing Family Court actions

• Estate Planning, Financial Power of Attorney, Healthcare Power of Attorney

• Chapter 7 & Chapter 13 bankruptcy

• Termination of Employment

• Online ticket disputing

Legal Services for Business

• Understanding what The Families First Coronavirus Response Act means for your business

• Maneuvering and understanding Federal and State Unemployment procedures

• Handling contract issues during a pandemic

• Bankruptcy and reorganizations

• Business planning and longevity

Rizzo & Diersen can help provide peace of mind during these difficult times with flat fees and customized legal services not previously offered. To learn more or to schedule a consultation, call 262-652-5050

COVID-19 Landlord and Tenant FAQs

LANDLORD FAQS

Q: My tenant is not paying rent, am I able to evict them?

A: Governor Evers implemented Emergency Order 15: A Temporary Ban on Evictions and Foreclosures. This order has altered the remedies available to landlords for a period of time. Currently, all evictions are suspended until May 27, 2020. Landlords are unable to begin the eviction process despite non-payment of rent by a tenant. There is an exception to this new rule: an eviction that is not based on failure to pay rent accompanied by a reasonable belief of imminent harm to another person. If a landlord has a reasonable belief, supported by affidavit, that a failure to proceed with the eviction will result in an imminent threat of serious physical harm to another person, then they may proceed with an eviction.

Q: Does this order apply to only residential landlords?

A: No, the order applies to both commercial and residential landlords.

Q: Can my tenants simply stop paying rent during this time?

A: A tenant my choose to stop paying rent at this time. However, the emergency order does not absolve them of their responsibilities as a tenant under their lease. During the stay on evictions and notices, a tenant is still responsible for rent, utilities, and all other obligations specified in the lease. If a tenant stops paying rent, make sure to maintain your records, inform the tenant they are behind, and request payment. If the tenant is behind on rent at the end of the emergency stay, then you can proceed with an eviction.

Q: If my tenant does not pay rent, can I still serve them with a notice?

A: No, the stay on evictions is extended to serving a notice. The best thing to do at this time is to try and work with your tenants. This is a difficult time for everyone, being thoughtful and understanding at this time can bolster your property’s image and reputation.

Q: What about the evictions that have already been filed?

A: COVID-19 has brought court proceedings across Wisconsin to a halt. The order does not dismiss or terminate your previously filed eviction, it just delays the proceedings. Make sure to check in on your current cases with your respective courts to see if or when your hearings have been rescheduled.

Q: Has the order affected writs of eviction?

A: Yes. The stay on evictions and notices extends to writs. At this time, no new writs are being issued, and those that have been sent to the sheriff’s office are not being executed. In many cases, if you have already sent the deposits in, they will be refunded upon your request.

Emergency Order 15 issued by Governor Evers has affected landlords and tenants across Wisconsin. With the uncertainty of COVID-19, it is important to stay informed on potential new orders issued by the Government. If you need additional advice or have questions about your rights and remedies as a landlord during this time, please contact Rizzo & Diersen, S.C.

TENANT FAQs

Q: Do I still have to pay rent?

A: Order 15 has stayed all evictions and notices by landlords to tenants. However, you are still responsible for the rent under your lease agreement. If you do not pay rent now, once the stay on evictions is lifted, you may receive an eviction notice from your landlord. If you are struggling to pay rent during these trying times, contact your landlord to see if you can work something out.

Q: I just received an eviction notice from may landlord, what do I do?

A: Due to Governor Evers Emergency Order 15, this notice is not valid. All notices of eviction for failure to pay rent and evictions have been stayed until May 27, 2020. If you received this notice, it is prudent to contact your landlord or community manager to discuss setting up a payment plan or explain your situation.

Q: What if I am already in the middle of an eviction proceeding? Is my eviction no longer allowed?

A: Most courts have pushed back proceedings several months due to Emergency Order 15 and the Safer at Home Order. However, the cases that have been filed prior to the issuance of the order will not be dismissed by the courts and will proceed when the Orders issued by the Governor allow. Be sure to check with the court in which your case was filed to stay updated on your new court dates.

FAQ: Unemployment Benefits Due to COVID-19

According to the latest unemployment projections from the St. Louis Federal Reserve, the COVID-19 emergency is likely to cost 47 million jobs and push the unemployment rate above 30%. Unsurprisingly, the number of unemployment claims filed has reached historic levels. For the week ending on March 21, a record 3.3 million Americans filed initial jobless claims with an estimated 2.65 million to follow in the next week. The various state departments of unemployment are overwhelmed with claims and Wisconsin is no exception. The Wisconsin Department of Workforce Development, which handles unemployment claims in the State, reported that a typical week the number of calls it receives is roughly 24,000. However, during this emergency, the Department reported it is now receiving a staggering 1.5 million calls per week. Since March 15th, Wisconsin unemployment filings reached nearly 222,000, compared to roughly 13,000 filing during the same time last year. As a result, many Wisconsinites have questions about the unemployment process. This article will address many of the frequently asked questions.

Question One: Am I Eligible for Unemployment If I Have Been Laid Off Due to the Coronavirus?

Generally, yes. Wisconsin unemployment benefits are available to any worker who is unemployed through no fault of his own. Many employers are unable to operate during this time due to Governor Ever’s March 24th Safer-At-Home Order. In response, many employers are reducing their workforce on a temporary basis with the intention of hiring back its employees once the emergency concludes. Regardless of the exact language used – furloughed, laid off, terminated, fired, etc. – employees are eligible for unemployment benefits if they are unemployed through no fault of their own.

Question Two: My Employer Has Not Fired Me But My Workplace Is Closed And I Have No Hours to Work, Am I Eligible for Unemployment?

Assuming you meet the monetary criteria and weekly eligibility requirement, you will be eligible for unemployment. If you are unemployed through no fault of your own, you are eligible for benefits in the State of Wisconsin. An employer does not need to formally fire an employee for the employee to be eligible for unemployment. Where an employer has no hours for you to work and the business is closed due to the coronavirus, you will be eligible for unemployment as if you had been formally fired. Even those workers who have had their hours reduced, but are still working, may be eligible for unemployment in certain circumstances.

Question Three: I Am Self-Quarantining Due to the Coronavirus, Will I Be Eligible for Unemployment Benefits?

Generally, no. To receive unemployment benefits, an individual must be unemployed through no fault of his or her own. While many businesses have been closed due to the coronavirus, many essential services continue to operate. If your workplace remains open and has hours for you to work, you will likely not be eligible for unemployment benefits while you self-quarantine.

While you may not be eligible for unemployment benefits, the federal government has provided relief to workers suffering from the coronavirus. The Families First Coronavirus Response Act (FFCRA) goes into effect on April 2nd. Among other provisions, it provides for Emergency Paid Sick Leave for most workers affected by the coronavirus. This Act now allows an eligible employee to take paid sick leave because the employee is:

  1. Subject to a federal, state or local quarantine or isolation order related to COVID-19;
  2. Advised by a health care provider to self-quarantine due to COVID-19 concerns;
  3. Experiencing COVID-19 symptoms and seeking medical diagnosis;
  4. Caring for an individual subject to a federal, state, or local quarantine or isolation order or advised by a health care provider to self-quarantine due to COVID-19 concerns;
  5. Caring for the employee’s child if the child’s school or place of care is closed or the child’s care provider is unavailable due to public health emergency; or
  6. Experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

If an employee meets any of these categories, the employer will be responsible for providing 80 hours of paid sick leave at the employee’s regular rate or two-thirds of the employee’s regular rate if the employee falls under categories 4, 5, or 6 above. This paid sick leave provision will remain in effect until December 31, 2020.

Question Four: I Am Sick At Home With the Coronavirus, Will I Be Eligible For Unemployment Benefits?

No. Eligible unemployment applicants must be able to work, available for work, and actively seeking suitable work. If you are so ill that you are unable to work, you would not meet these criteria. However, you should be aware that you may be eligible for unemployment benefits if you have subject to a mandatory quarantine by federal, state or local government.

Irrespective of the individual’s unemployment benefit eligibility, he or she may still be covered under existing laws concerning sick leave including the Family and Medical Leave Act (FMLA). Also, as stated above, the FFCRA provides coronavirus-related paid sick leave effective April 2nd.

Question Five: With So Many Businesses Temporarily Closing Due to Coronavirus, Am I Required to Look For Work to Receive Unemployment Benefits?

The normal requirement to receive unemployment benefits in Wisconsin is that the individual must complete 4 work search actions per week. However, by Executive Order of Governor Evers on March 18th, the work search requirement has been waived for the duration of the coronavirus emergency.

Question Six: Is There Any Additional Unemployment Assistance Available In Response to the Coronavirus Emergency?

The federal government has enacted legislation that provides additional unemployment assistance to the unemployed. The Relief for Workers Affected by Coronavirus Act has received much attention due to the direct payments provision which provides up to $1,200 in direct cash payment to applicable Americans. However, the relief bill also extends additional coverage to the States for its unemployed individuals. Qualifying individuals may receive up to an additional $600 per week in unemployment benefits, above and in excess of any state provided benefits, for the next four months (ending on July 31, 2020). In Wisconsin, most persons receive the state weekly maximum benefit of $340 per week. With the federal stimulus bill, you may receive an additional $600 per week, or $940 per week total in unemployment benefits.

Additionally, federal law may extend existing benefits. Under Wisconsin law, unemployment benefits are provided for a maximum of 26 weeks. However, the federal relief bills may extend unemployment benefits beyond existing limits to qualifying states – up to an additional 26 weeks. At this time, it has not been determined if Wisconsin qualifies for extended benefits, but if so, it may provide additional relief to those economically affected by the coronavirus.

Conclusion

This article has sought to provide answers to commonly asked questions regarding unemployment benefits in Wisconsin during this challenging time. Governments continue to aggressively monitor and address challenges faced by the Coronavirus and we may expect to see additional remedial legislation and updates in the future. For legal advice regarding unemployment benefits, or for any other employment law issues you may be facing, please contact us 262-652-5050 for a free consultation.

Contractual issues during a pandemic

The current coronavirus pandemic has caused local and national disruptions that will have a short and long term effect. These disruptions have affected our schools, jobs, and businesses. Some of us might be wondering how a contract we signed might be affected by this pandemic. Parties to a contract can attempt to negotiate around these disruptions. But what if the parties cannot come to an agreement? What follows is a description of some legal doctrines that could be implicated in such contractual scenarios.

Force Majeure

A standard clause found in contracts is the force majeure/impossibility clause (hereinafter “force majeure”). Force majeure is when an extreme event beyond the control of the obligor arises and prevents the impacted party from performing the contract. An example of this is when a natural disaster prevents an obligor from delivering goods or services. If the natural disaster prevents the obligor from performing, then the obligor can be excused from performing because of the force majeure event.

Things to consider in a matter that involves force majeure

  1. “Is the extreme event listed in the force majeure clause?”;
    1. If the event is not listed, then the obligor is not excused from performance and will be in breach of the contract if he does not perform even if a non-listed event does occur.
  2. “Which party is bearing most of the principal non-payment obligations?” (whoever is that party is the primary beneficiary of a force majeure clause);
    1. In a sale of goods transaction, the seller bears the principal non-payments obligations and therefore, would want a broad force majeure clause.
  3. “Do the parties have the ability to terminate the contract if a force majeure event continues for a certain length of time?”
  4. “Does the dispute resolution clause (if there is one) apply to the force majeure clause, or does it go straight to the court?”
    1. Research shows that force majeure-related events are typically arbitrated.
  5. “Is the force majeure event covered or excluded by the parties’ insurance policy?”
  6. “What duty does the obligor have to the other party(ies) if a force majeure event occurs? Does he have to mitigate? Notify the obligee(s)?”

List of Force Majeure Events:

  1. Natural disasters (floods, earthquakes, severe weather)
  2. Pandemics, epidemics, quarantines
  3. Violence such as war, terror attacks, civil unrest
  4. Government action (eminent domain, condemnation, changes in laws/regulations, a government’s authority failure to act on a timely basis)
  5. Organized labor activities, strikes
    1. Have to look at if the obligor caused the strike (lockout of employees or bad faith bargaining)
  6. Shortages of power, supplies, transportation, and infrastructure
    1. Have to look at if the obligor caused the shortage or could have planned ahead.

List of Force Majeure Events that are excluded

  1. Changes in economic circumstances
  2. Subcontractor defaults
  3. Equipment failure
  4. Banking system failure

How have Wisconsin Courts interpreted and applied Force Majeure clauses

A Plaintiff argued that a lease continued in effect beyond a date under its force majeure clause.[1] The Plaintiff alleged that the combination of private and governmental inaction constituted a force majeure event.[2] The contract in Goldstein stated that the duration of the lease would be extended for a period equal to the period of force majeure event.[3] The court in Goldstein held that because it is presumed that parties to a contract know what laws and regulations will affect the ability to get a permit; thus, the failure to obtain the permit is not deemed a force majeure event. The court, in this case, also noted that only one party had the right to invoke the force majeure clause, and that was not the Plaintiff.

What if the contract/agreement does not have a “Force Majeure” clause?

Doctrine of Impossibility or Impracticality

If a contract contains no force majeure clause, then the doctrine of impossibility or impracticality might be invoked. These two doctrines excuse the obligor from performing under a contract if the performance is excessively burdensome due to an unforeseeable event that is not within the obligor’s control. 

Although there is not a lot of Wisconsin law precedent regarding the doctrine of impossibility or impracticality, there is Wis. Jury Instruction(JI)—Civil 3062. Which provides that:

“If performance of a contract is possible only if a certain state of facts continues to exist, then a cessation or termination of the state of facts which makes performance impossible will excuse failure to perform. But if performance becomes impossible by reason of contingencies which should have been foreseen by a party, then such party is not excused from the duty to perform.”

            A court would look at the facts and determine if the case satisfies the excessively burdensome standard. The Covid-19 pandemic is a unique circumstance that might allow a party to invoke one of these doctrines. A court would first have to look at a number of factors, some of which are considered in force majeure, to determine if one of the doctrines excuses nonperformance.

Frustration of Purpose Doctrine

 Frustration of purpose doctrine applies to contracts for goods and services. It is different from the doctrine of impossibility/impracticality because it can be invoked in cases where an event fundamentally changes the purpose of the contract. If the principal purpose of the contract is frustrated, at no fault of a contracting party, then the doctrine may apply to excuse nonperformance.  There is a high bar to meet when invoking this doctrine because the frustrating event must have been a primary purpose of entering into the contract. Furthermore, the event at issue must not have been within the risks contemplated by the contract.

            Wisconsin courts have held that to render a contract unenforceable because of a frustration of purpose, it requires that (1) the party’s principal purposes in making the contract is frustrated; (2) without that party’s fault; (3) by the occurrence of an event, the non-occurrence of which was a basic assumption on which the contract was made.[4] The court in In re Estate of Shepard determined a contract was enforceable because a flight instructor could no longer teach a student, due to the student’s death. [5]


Conclusion

Rizzo & Diersen S.C. is here to help you or your business navigate these legal issues. Contact our office at 262-652-5050 with any questions you may have regarding the coronavirus pandemic disruptions.


[1] Goldstein v. Lindner, 2002 WI App 122, ¶ 20

[2] Id. at ¶ 29.

[3] Id. at ¶ 30.

[4] In re Estate of Sheppard, 2010 WI App 105 at ¶ 13.

[5] Id. at ¶ 15.