Free Enterprise - The FindLaw Small Business Law Blog

August 2017 Archives

According to his lawsuit filed in a U.S. District Court in Tallahassee, Florida, Anthony Kelley missed a shift at a local Walmart because he took his son to the doctor after the boy began vomiting up blood. Two weeks later, he was out of a job.

Kelley's lawsuit against Walmart accuses the company of "a pattern and practice of terminating employees for taking necessary time off to attend family emergencies," and it isn't the first time the company has been charged with punishing employees for taking time off.

One of the biggest first steps for your small business, right after crafting a business plan and tracking down funding, is securing your space. And whether you're looking for offices, retail, or manufacturing, signing your first commercial lease can have an enormous impact on the future of your business, from your brand to your bottom line.

So here are a few legal considerations before you sign on the dotted line.

One man was fired from his job at a Mojo Burrito in Chattanooga, Tennessee. Another lost his job at an Uno Pizzeria and Grill in South Burlington, Vermont. One was fired from Limehouse & Sons, a construction company in Ladson, South Carolina. And yet another lost his job at Top Dog, a hot dog shop in Berkeley, California. All four were identified on social media as attending the "Unite the Right" demonstration in Charlottesville, Virginia, the gathering under the auspices of protesting the removal of Confederate statutes that was a collection of neo-Nazis and white supremacists clashing with counter-protestors.

So the question becomes, as it so often does after these firings, were their employers legally in the right for firing them for merely being a neo-Nazi or attending a white supremacist rally?

And the answer is, as it so often is to any legal question, it depends.

Weird question, right? Predictably, the world's biggest tech company is pretty concerned with leakage -- a one word descriptor for the many ways consumer goods exit a store without being paid for. Given the prices of its goods and their strict release dates, Apple might be more concerned with leakage than most companies.

So, predictably, Apple subjects employees at its retail stores to security checks; searching their backpacks, purses, and other belongings to make sure they're not "leaking" any products. But those checks come at the end of an employee's shift, after they've clocked out. Some employees sued, claiming they should be paid for that time, only to have a federal judge toss their lawsuit in 2015. The employees appealed, and that's where the case got a little weirder.

Following the revelations that multiple Uber policies failed to track employee access to customer data -- including its so-called "God view" that let employees spy on the rideshare app's users in real time -- the company has agreed to implement a comprehensive privacy program in order to settle Federal Trade Commission charges. The policy must be in place for the next 20 years, and includes regular, independent privacy audits.

The FTC had been investigating Uber's response to the "God view" program (which FTC attorneys claim was only enforced for about eight months) and a massive data breach in May 2014 wherein over 100,000 names and license numbers of Uber drivers were stolen.

Back in 2012, Congress passed the Jumpstart Our Business Startups (JOBS) Act, easing the restrictions on crowdfunding for certain private companies. The JOBS Act also created a new category of securities issuer, the "emerging growth company" (EGC), that included those with revenues under $1 billion which had either not gone public or just had their IPO.

Given the difficulty in securing funding for many startups and small business, any rule that makes it easier to raise capital or go public is some very good news. So could your company qualify as an EGC? And how could that help your crowdfunding?

Entrepreneurs are optimists. And even those with a long-term view on their startups often don't envision leaving those companies, much less failing or being forced to close. But ending a business is as much a reality as starting one, and planning for the worst is as essential as hoping for the best.

So here are five legal considerations if you're looking to end or exit your small business, from our archives:

Mr. Dane Lane and Ms. Allegra Schawe-Lane were husband and wife when they began working at an Amazon warehouse in Kentucky in 2014, and Schawe-Lane is a transgender woman. This should not be a big deal, especially at an employer as big as Amazon, who had a non-discrimination policy at the time that included sex and gender identity as protected classes.

But that didn't stop their coworkers from escalating discrimination, harassment, and retaliation against the couple, including threats of physical violence and other intimidation. Lane and Schawe-Lane are now suing Amazon under Title VII of the Civil Rights Act, asking for damages and an injunction against Amazon's "unlawful employment practices."

You've got a lot on your mind as a small business or startup company. First and foremost, there's your product. After that, you're thinking about marketing, design, and technology, and, not least of all, how much all of it is going to cost. One thing that you might not have included in your budget is legal advice.

From incorporation to intellectual property rights, you're going to need the counsel of an experienced attorney, and, unfortunately for small business owners, that advice doesn't always come cheap.

Obviously you want to take good care of your employees, and sometimes that means giving them time away from the office. And as an employer, this can be a difficult balance to strike: you hired your employees for a reason -- to work -- but if they're not happy, they won't be working for you for long.

For the most part, federal labor laws strike the balance for you -- most workers are limited to 40 hours per week unless they're paid overtime. But the feds don't have a lot to say about parental leave, especially paid parental leave, and states and cities have recently stepped into the void. So it may be time to re-examine your parental leave policy.

Gone are the good old days of punching a time clock on your way in and out of work. Punch in, you're getting paid; punch out, you're not. Nowadays the kind of work we do, and where and when we do it, has become much more fluid, making it more difficult to determine when we're on and off the clock.

And it seems some employers are trying to take advantage of that. Wage theft lawsuits have been on the rise for years, accusing companies of skirting minimum wage and overtime laws. Now you can count coffee culture behemoth Starbucks among those targeted -- a former employee is suing the company, claiming it and subsidiary Evolution Fresh failed to properly compensate employees. Here's a look.

As more and more states relax marijuana restrictions, more and more of your employees may be taking part. And while some small business owners might think of cannabis like a cocktail and not give a second thought to their staff sparking up after work or even during a business lunch, many more are worried about weed invading the workplace.

So where can employers draw the line between pot-friendly state laws and office policies? Here's a look at marijuana use and employment law, from our archives:

Yes.

That's the short answer. And when it comes to at-will employment, you don't need much more. At-will employment means either side can terminate employment, for any reason or for no reason at all.

Still, there are some limitations to at-will firings. And after any high-profile firing based on an employee's statements, many will wonder if the First Amendment or free speech principles apply. So let's take a look.

American Airlines employees got some new uniforms last fall, but that hasn't been good news for many of them. Since the introduction of the new uniforms, manufactured by Twin Hill, over 5,000 flight attendants, pilots, gate agents, and customer service representatives have reported physical or allergic reactions to the new work wear, including rashes, hives, and headaches, and even severe respiratory issues.

American Airlines finally cut ties with Twin Hall in June, but two employees have filed a lawsuit against the clothing manufacturer, seeking a full recall of the harmful uniforms as well as a fund to pay for medical care and monitoring of American Airlines employees exposed to the uniforms.

No, this isn't some plot from a comic-book villain come to life; a company, that has, up till now, focused on marijuana technology and hemp oil, has purchased the town of Nipton, California for $5 million. The plan is to turn the ghost town, population: 6, into a destination for marijuana tourism.

Now, you may be asking: Marijuana tourism? Excuse me? However, in California's last election, marijuana was legalized for recreational use by adults in the state. This means that, soon, any adult will be able to purchase marijuana, like they would cigarettes or alcohol. As states like Colorado have seen, once marijuana is available for the public to buy, a new industry pops up: marijuana tourism.

You want to get your small business's name and product out there. But you don't want to get sued over it. You also might want to drum up business for a sale, but don't want to violate state or federal commercial codes. So how do you advertise right?

Here are a few tips and things to consider, from our archives:

The American Civil Liberties Union has filed a class action lawsuit on behalf of three Filipino immigrants against a couple and their various Oklahoma business enterprises, claiming the entities breached employment contracts, violated federal wage and immigrations laws, and participated in what amounts to human trafficking.

The suit claims that Walter and Carolyn Schumacher, along with a company that recruited workers, enticed Filipino nationals with promises of good pay and free housing, then exploited those workers for cheap labor, and used ties with law enforcement to intimidate workers.

August 1, 2017 is Startup Day Across America, and few things encapsulate the American spirit quite like entrepreneurship. If we don't think we have the newest idea, we certainly think we know how to improve the old ones.

But the small business world is not a kind one, nor is it an unregulated one. So having a successful startup has as much to do with knowing what to do from a legal standpoint as it does with knowing what to do from a business standpoint. So how do you get your startup off on the right foot, legally speaking? Here are a few tips, from our archives: