In continuation of our recent commentary on COVID-19, we're going to use this article to examine force majeure clauses. While most of our questions so far have come from our sports clients, all of whom are materially impacted by the sudden and nearly simultaneous prohibition against public gatherings around the world, the issue is applicable to any business that is obligated to provide goods or services to another party.

Translated from French, force majeure means superior force. The idea is that something greater than ourselves caused us not to perform a contractual obligation, despite our earnest desire to do so. 

It is no surprise that the health pandemic of COVID-19 is affecting businesses across the globe. To provide greater context on COVID-19, here are a few links to useful resources:

In a lesser known song about Denver, Colorado, Jimmy Buffett sings “winter dictates everything from frost to naked trees.” This statement couldn’t be more apropos regarding the 2020 Outdoor Retailer Snow Show this year. Anyone and everyone in the business of gear for surviving the harsh and slippery conditions of winter, enjoying a ride down a powdery slope, and imbibing a cocktail in an insulated mug for après ski is represented. 

This past week I had the pleasure to check in on a few clients and take in the Snow Show in all of vast expanse and glory. It truly is a great show and definitely a great place to get a sneak peek of the improvements and innovation hitting the shelves next winter. Given that innovation is a focus of the show and its many attendees, I thought I may be able provide a little perspective as it relates to my area of expertise and perhaps help some of those up and coming designers, developers, and companies looking to make an impact in future years.

On December 3, 2019, the Indiana Supreme Court clarified the limited power courts have to revise non-competition agreements.  While Indiana is a “blue pencil doctrine” state, courts won’t do your drafting for you.

The facts of the case, Heraeus Medical, LLC, v. Zimmer, Inc., et. al., 135 N.E.3d 150 (Ind. 2019), are these:

New overtime rules go in effect on January 1, 2020 that may affect whether your employees qualify for an exemption from overtime pay. You may recall that a previous rule in 2016 to increase salary levels was blocked by a federal judge before the rule went into effect. Thankfully, for employers, this new rule is a smaller increase in salary levels than the 2016 rule.

In summary, the salary threshold for two exemptions from overtime pay -- the white collar exemption and the highly compensated employee exemption -- are increasing on January 1, and certain nondiscretionary bonuses and incentive payments can be used to satisfy a portion of the salary threshold. This means that employers will need to increase salaries, nondiscretionary bonuses, or nondiscretionary incentive payments to retain the exemptions or pay overtime to employees who do not meet the new test.

The full details on the final rule can be found in the Department of Labor press release, but here's a brief summary of the changes: