Successor Liability

Successor Liability: How It Impacts Your Business

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Gov. John Kasich signed House Bill 259 on Dec. 22, 2015, that included a provision helping to ensure entrepreneurs will not be penalized in the form of increased workers’ compensation rates, outstanding balances, or uncovered claims costs for assuming space that was previously inhabited by a completely separate business with negative claims experience. Our partners at The Greater Cleveland Partnership and COSE have been a long-time advocate for reforms on this issue in order to avoid unpleasant surprises related to workers’ compensation matters for business owners.

To date, business owners who started a business or who moved their business to a location that was previously occupied by a completely separate company may wind up inheriting certain workers’ compensation liabilities. A transfer of experience and/or debt—an Ohio Bureau of Workers’ Compensation (BWC) policy known as successor liability—had a negative and unanticipated impact on a business’ workers’ compensation costs.

With the approval of this legislation, the Ohio BWC will be required to reduce the transfer of negative experience to a successor employer under certain circumstances. And this legislation paves the way for relief for small business owners that are often unknowingly impacted until it is too late.

“Business owners have been blindsided when they inherited these liabilities after the move occurs and it jeopardized a small business owner’s ability to participate in certain workers’ compensation savings plans,” says COSE Executive Director Steve Millard.

Due to the passage of House Bill 259, Ohio law now instructs the BWC to establish conditions and criteria that might reduce or waive negative experience to be transferred to an employer who is a successor in interest.

“My company has opened four restaurants in Northeast Ohio the last few years,” says Operations Manager of Driftwood Restaurants Toby Heintzelman. “In three cases—and despite the fact that our company did not buy these businesses from the previous owners—we were surprised to learn that we were expected to pick up the previous companies’ workers’ compensation history. It made no sense. Moving forward, we’re encouraged that business owners will be responsible for the real risk they bring, not the history or disputes of former occupants.”

BWC also now provides a limited release of relevant workers’ compensation information before an acquisition or merger occurs. To help facilitate these requests, the Request for Business Transfer Information (AC-4) Form has been created. This form, which both parties must sign, allows the buyer to view any outstanding liabilities as well as the risk experience of the predecessor.

“The Governor, Ohio BWC, and legislative leaders like former State Representative Barbara Sears are to be commended for listening to the business community and acting on this issue,” says Millard. “The old approach served to prevent, or even worse, penalize new business creation in previously occupied or abandoned facilities. We’re confident these common sense changes will provide small business owners with greater clarity when they move to a new place or open up a new business which will help revitalize Ohio neighborhoods and lead to economic growth.”

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