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Keeping the Green Industry Legal

Experienced landscape pros build industry-focused law firm
By Mike Ingles



Image courtesy of stock.xchng/ Stephen Stacey.

Owning a small business is a complicated affair, especially in the green industry where rules and regulations come at you from national, state, city and even municipal townships. It is all very complicated. If you are considering legal advice, Zlimen & McGuiness, PLLC, (http://www.zmattorneys.com) might be your best choice.

Principals in the firm include Patrick McGuiness, Bryan Zlimen, Kristin Driscall Nervig and Michael P. Edman. Zlimen and McGuiness are founding attorneys of the firm, which is headquartered in St. Paul, Minn.

Patrick McGuiness comes to the law through the eyes of a green industry worker and as a green industry professional.

Says McGuinness: "I started as a block-hauler building retaining walls when I was 16 years old. During college and law school I owned a landscape installation company and really got to understand the industry from an insider's perspective.

"After law school (William Mitchell College of Law), I realized that one of the things missing from the industry was a law firm that focused on assisting green industry businesses. It made a lot of sense to start the firm, and we help clients from every sector of the green industry. From grounds maintenance companies and landscapers to tree care professionals and garden centers, we provide insight and knowledge to help our clients succeed," he says.

Because both partners have hands-on experience in the industry, McGuiness is confident that their firm is adept at keeping current with ever-changing industry laws and statutes, and can better adjust practices and procedures to keep a green industry company away from legal complications and many liabilities.

As an example, McGuiness points out that upcoming funding by the national government to ascertain information on those companies that are misclassifying workers to avoid taxes and paying benefits, which could aversely affect green industry companies.

McGuiness continues, "With $25 million dollars in new funding, the federal government is planning to crack down on employee misclassifications by businesses."

He adds that both the IRS and the Department of Labor are looking for companies that are misclassifying workers as subcontractors or independent contractors as a way to avoid taxes, insurance and other regulatory requirements.

"Just because you label someone as a subcontractor does not necessarily make them one. Time after time when talking with business owners I ask them about their employee situation and get the response 'I don't have employees, I just give my laborers 1099s and have them sign a subcontractor agreement.' Just because a company takes these steps, doesn't mean that they are not in violation of the law," warns McGuiness.

One of a kind?

"As far as I know, we're the only law firm with emphasis on green industry issues in the country, and our staff are well-trained and well-versed on the law as it relates to those particular concerns." McGuiness' credentials include his service as a captain and judge advocate in the U.S. Army Reserve, and adjunct representation professor at William Mitchell College of Law.

Cassie Larson, CAE, executive director, Minnesota Nursery & Landscape Association, explains what that experience means to their green industry members.

"They (Zlimen & McGuiness) have a personal understanding of the unique qualities that come with running a seasonal business. And bring the experience of having 'walked in their shoes' which our members have heralded. They also provide a huge emphasis on education. Zlimen & McGuiness want green industry firms to be in compliance up front so their services aren't required down the road. They provide MNLA with legal articles to educate members and provide seminars and webinars to educate members about ways they can run their businesses more effectively and efficiently."

The firm sponsors an industry-specific of educational seminars, everything from advice on "Wage and Overtime Laws for the Green Industry" to "How to Handle Problem Employees."

In addition Zlimen & McGuiness publishes for clients a newsletter sharing new developments in the law as it pertains to the green industry.

Chris L. Clifton, president, Southview Design, an award-winning design/build firm in the Twin Cities area, explains why his firm chose Zlimen & McGuiness. "There's not a lawyer around who is going to be more in tune with the issues and challenges of running a landscape business than Patrick. He's done it himself, and he deals with other landscapers on a regular basis. He simply knows this business as no other attorney possibly could.

"Second, he knows the players - the other service providers, the suppliers, manufacturers, growers, etc., the whole gamut - he knows them all, and it's very reassuring for us to do business with someone who is so well connected," says Clifton.

"Last, Patrick is a standup and conscientious guy who takes his craft seriously. We have a very high degree of confidence in the advice he gives us."

Lawson continues, "Our members have benefited from reaching out to Zlimen & McGuiness, not only for legal assistance, but also for help setting up contracts, distinguishing who should be a subcontractor versus an employee, help with collection strategies as well as wage and overtime clarification."

McGuiness further explains that their firm starts at the beginning, even to the extent of helping clients select the right employees.

"In recent months, we have assisted many clients with setting up effective hiring processes. Knowing the type of workers that are most beneficial to an industry allows us to set up a process geared toward the client's needs," he says. "Combining our industry knowledge with our legal knowledge creates a hiring process that assures clients of repeatedly hiring safety conscious and hardworking employees."



Patrick McGuiness learned about the landscape industry from the ground up and as the owner of a landscape company. He refers to himself as a "recovering" landcaper.
Photo Courtesy Zliman and McGuiness.

Jim Saybolt, CLP, principal, biota Landscape Design and Build, Minneapolis explains his selection of Zlimen & McGuiness this way. "Years ago at startup I was given the advice: 'Make sure you have a good lawyer and a good CPA.' That advice was fine, but not enough. My experience tweaks that advice. It's not good enough to find a good lawyer/CPA, there are plenty of lawyers that are good and have name recognition. You must find a good lawyer that is well-versed in your line of work and with businesses of similar sizes. Zlimen & McGuiness is a good fit not only for that reason, but also because they are tireless workers who are involved in our industry on many levels. They continue to take the pulse of the industry which helps to keep our business fit."

McGuiness asserts that green industry firms are unique in a variety of ways, such as seasonality and workflow and safety issues, making it impossible for those outside the industry to really understand the nuances and how compliance issues affect the industry.

Unique green industry issues

"There is a value to understanding the unique working environments our clients function in. We are able to provide legally compliant solutions to their problems, which other attorneys may not even think of. An excellent example of this is the Fluctuating Work Week payment plan. Most attorneys would simply tell their client that they can't pay their foreman a salary. Instead, they have to pay overtime, at time and a half after 40 hours. While this is a legally compliant solution, another solution, which would save the client thousands of dollars, is the Fluctuating Work Week payment plan," says McGuiness.

This plan involves paying a worker a fixed weekly rate and then paying a rate called "half-time" for overtime hours. In practice, it is a little more detailed to implement, but it is a great fit for many green industry businesses.

"Because we truly understand the green industry, we know that the payment plan is a better solution than the average attorney would suggest," says McGuiness.

A quick look at the photo on the firm's website gives a wealth of information about the principals and makes a not-so-subtle-point: A photo of the shoes of four men, three are wearing dress shoes, but the man in the center has on work boots. Practicing disciplines in business formation, employment, contracts, collections and litigation for green industries clients, Zlimen & McGuiness is a great place to start something.

Mike Ingles is an experienced researcher, writer and editor with decades of experience in contractor and logistic industries. Contact him at duckrun22@gmail.com.