Free Enterprise - The FindLaw Small Business Law Blog

May 2009 Archives

Like many states, Texas is trying to find a way to aid struggling small businesses while also facing large budget shortfalls. If legislation passed by the Texas Senate becomes law, some small businesses would get temporary exemption from paying state franchise taxes. Anyone considering starting or moving a business should keep an eye on if and how different states adjust their treatment of business income taxes and franchise taxes.

Currently, Texas offers an exemption from franchise taxes for businesses with annual revenues under $300,000. As reported by the Fort Worth Star-Telegram, the bill passed by the Texas Senate would extend the exemption to businesses with revenues under $1,000,000 through the end of 2011. A competing House bill would extend it until 2012.

This move would extend the exemption to an estimated 132,000 additional businesses.

GM Bankruptcy Coming: Dealerships Could Face Expedited Closure

Weeks after Chrysler, a second of the big three, GM, will soon file for bankruptcy. Though GM informed 1100 dealerships that they'd be cut in 2010, with GM in bankruptcy, those 1100 and possibly more could have much less time to wind down their businesses.

As reported by Reuters, GM has cleared the path to filing for Chapter 11 bankruptcy reorganization by persuading a key group of bondholders not to oppose the bankruptcy (in exchange for equity and warrants in the restructured GM).

Two weeks ago, GM informed over 1100 dealerships that their dealer agreements would not be renewed in 2010, as reported by the Washington Post.

With GM set to enter bankruptcy, however, those 1100 dealerships and potentially more could face much quicker death.

Exceptions to At-Will Employment

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These days many businesses and employees anguish over job losses. Many employees have been forced to learn the hard way what at-will employment means. For most, at-will employment has become the rule. To best prepare for worst-case scenarios, employers and their employees should also understand the exceptions to at-will employment.

At-will employment means that both the employer and the employee are entitled to end the employment relationship at any time.

These days, most employees are at-will employees. Generally, an employer may fire such employee for any reason or no reason. Employees are not at-will employees if there is an employment agreement in place specifying otherwise.

Top 6 Trademark Mistakes

Trademarks allow businesses to communicate to customers where goods and services originate. Your business spent time, sweat and money to make what you sell. Connecting the product to your company in the consumer's mind is vital to attracting and keeping business. Here are 6 common misconceptions and mistakes businesses make regarding trademarks.

  1. Failing to properly search existing trademarks. Simply looking at what is already registered is not enough. Neither is disregarding owners whose registrations have been "cancelled" or "abandoned." Trademark rights are created by use, and even if they have not registered, or have not properly maintained their registration, others still may have rights to the trademark in question.
  2. Thinking that because you coined a phrase or name you own a trademark. You have no trademark rights until your mark is used in commerce. Use of a trademark gives you geographically limited common law trademark rights. Federal registration gives you nationwide rights. Both common law and federal trademark rights are subject to rights previously owned by others.
  3. Thinking that putting a "TM" next to your trademark is enough. Common law trademark rights can give geographically limited protection without federal registration, but slappig a "TM" (or the "poor man's trademark" symbol), however won't gain you any protection outside your immediate area of operation. In the mean time, someone else can apply for federal protection of the same trademark and leave you fighting to protect your ability to continue using the mark.

Two weeks ago, the doors of a Rotorua, New Zealand gas station were shuttered. Its owners, rather than cashless, were likely already out of the country with over $2 million their bank accidentally made available to them. Though perhaps bringing a grin to the faces of many small businesses whose recent experience with banks has not involved the dolling out of millions, the case shows us one way, a bad way, to close up shop.

As reported by the New York Times, Leo Gao asked his bank, Westpac Bank, for increased overdraft protection. Instead of $62,000 in overdraft, a slip of a bank teller's finger resulted in $6.2 million being made available to Mr. Gao. Westpac's motto is "Make the most of life." Mr. Gao and his girlfriend Cara Young did just that.

They had been running an ailing gas station. The Guardian reports that after withdrawing as much of the money as they could, the pair told neighbors they were going on holiday, quietly shuttered the gas station, and took off. The manhunt is now reportedly focused on Hong Kong.

Paid Vacation Law Coming Soon? The Paid Vacation Act of 2009

On the heels of recently proposed mandatory paid sick leave legislation, a Florida Congressman has proposed legislation that would require some employers to offer employees annual paid vacation.

Currently, employers have no legal obligation to offer employees paid or unpaid vacation.

Yesterday, Alan Grayson, Representative of Florida's 8th District which includes Orlando, proposed the Paid Vacation Act of 2009. If passed, the law would federally mandate that businesses with at least 100 employees, and later businesses with at least 50, offer paid vacation each year to full- and part-time employees.

Employers with 100 or more employees would be required to offer one week of paid vacation to full- and part-time employees (25 hours/week or 1250 hours/year) after one year of service. In three years, it would increase to two weeks paid vacation at businesses with 100 or more employees.

In three years, businesses with 50 or more would be required to offer one week paid vacation to employees.

Choosing a Business Structure: the Sole Proprietorship

To complete our National Small Business Week series on business structures, we take a look at the most common, the sole proprietorship. With a vast majority of U.S. businesses owned by one person, let's look at the reasons why, and also the reasons why some successful sole proprietorships later shift to other business structures.

According to I.R.S. data, as of 2006, there were more than 22 million non-farm sole proprietorships in the U.S. The sole proprietorship offers an ease of entry and level of control that appeals to many looking to dive into a new business or simply start a small business on the side.

So, what are the pro's and con's?

SolarWinds, OpenTable Launch IPOs; Basics of "Going Public"

After a dry spell in terms of companies going public (bailout references aside), this week saw two once-small technology companies launch initial public offerings (IPOs). For those whose IPO memory has evaporated in the recent economic desert, and for those who hear the term tossed about, here are some basics about what launching an IPO and "going public" means.

This Wednesday, SolarWinds, Inc., a network management software company out of Austin, Texas held its IPO, which according to reports from the Wall Street Journal, was well received.

Today, OpenTable, Inc., a San Francisco based company offering a popular online restaurant reservation system, went public and so far share prices have increased. The Journal notes that OpenTable's IPO is the first IPO of a company backed by Silicon Valley venture capital in 15 months.

Business Week reported that SolarWinds and OpenTable are only the third technology company IPOs this year (after Rosetta Stone, Inc.).

So, what exactly does it mean to "go public"?

Choosing a Business Structure: the Partnership

Continuing our series on the types of business structures available to small businesses, today we'll look at the partnership. The general partnership is one of the oldest forms of joint business endeavor. Today, it has spawned several children, including limited partnerships, limited liability partnerships (LLPs), and even limited liability limited partnerships (LLLPs).

Some benefits of doing business as a partnership include:

  • Fewer formalities. Unlike corporations or limited liability companies, partnerships do not need to register their existence with the state. It is formed by a private agreement between the partners; and
  • "Pass through" taxation. The partnership is not taxed. Partners are taxes on profits and losses from the business, which they must report on their personal tax returns.

Some disadvantages include:

  • Personal liability. Unlike owners of corporations or LLCs, partners are personally liable for the debts and obligations of the business;
  • Joint authority. All of the partners can bind the partnership to agreements and obligations. All partners also have the same level of managerial power, unless the partnership agreement specifies otherwise;
  • Potentially limited duration. A partner's leaving, death or bankruptcy generally causes the partnership to dissolve unless such eventualities are not addressed in the partnership agreement;
  • Difficulty selling interests. If the partnership agreement does not spell out other procedures, nobody can become a new partner without the consent of all existing parties. This limits a partner's ability to sell their stake in the business.

Mandatory Paid Sick Leave Coming Soon?

Today is National Employee Health & Fitness Day. While we wait to see if any true changes to our healthcare system come to fruition, one change may be coming, and it's one many small business owners would not like. Congressional Democrats have introduced legislation that would require employees to receive at least 7 paid sick days per year.

As the New York Times reported, the Healthy American Families Act would require businesses with more than 15 employees to grant no less than one hour of paid sick leave per every 30 hours worked, up to a total of 7 paid sick days per year. In addition to using this paid time to recover when they are sick, employees would be able to use it to care for a child, parent, spouse or "any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship."

As currently drafted, here are some other details of what may become federal law for businesses with more than 15 employees:

  • Employees would be eligible to start using accrued sick time after 60 days of employment;
  • Employees would need to make a reasonable effort to accommodate the operational needs of their employer;
  • Employers could require certification from a health care provider if the absence exceeds 3 days;
  • In cases of domestic violence, sexual assault, or stalking, employees could use the time to seek medical (including psychological) services, to relocate, to seek victim services and/or to take legal action; and
  • Employers would be required to post information about paid sick leave accrual.

SBA Disaster Loans: Who is Eligible and What Types Are There?

The SBA offers a variety of disaster related loans that can help small businesses recovery from natural disasters and even prevent future damage. Whether to repair damaged property or equipment, or to help run the business in the recovery period, small businesses needing funding to bounce back from a disaster should explore their SBA options.

SBA disaster loans are actually available to homeowners and businesses alike. SBA disaster loans become available after a disaster is declared by the President, a governor, the Secretary of Agriculture, the Secretary of Commerce or the SBA itself. FEMA's website includes information on designated disasters. Businesses, non-profits and homeowners then have until a set deadline to submit their disaster loan application. For example, those in many Florida counties affected by Tropical Storm Fay have until June 6th to submit their application for SBA disaster loans.

Two types of SBA disaster loans apply to small businesses: Business Physical Disaster Loans and Economic Injury Disaster Loans. Physical disaster loans can go toward repairing real estate, buildings, equipment, supplies or other property damaged by a recognized disaster. Economic injury loans go toward working capital, to help the borrower make it through the recovery period.

Choosing a Business Structure: the Corporation

To continue our National Small Business Week series on potential business structures for small businesses, let's look at the corporation. Coming in varying shapes and sizes, corporations offer advantages and disadvantages that should be carefully considered before deciding to incorporate.

Yesterday we discussed limited liability companies (LLCs). Today, the corporation. Though often considered the heavy-weight of business organizations, the corporation can come in many varieties, such as the "close" (aka "closely held") corporations owned by few, or S corporations.

So, what are the basic advantages and disadvantages of incorporating?

The long anticipated SBA emergency bridge loan program will begin taking applications June 15th. It will offer loans of up to $35,000, and unlike many of the other recent lending initiatives, the money can be used to pay back existing debt.

As CNN reported, SBA Administrator Karen Mills announced the launch date of the program during a kick-off speech for National Small Business Week. In her words, these loans are for businesses "in a situation where they just need a little extra help to bridge the troubled waters."

Dubbed "ARC" (America's Recovery Capital) loans, these loans were authorized in January's stimulus package. They will offer businesses with immediate financial hardship up to $35,000 in interest free loans that may be used to pay existing debts. No repayment is required for one year, and borrowers will have five years to repay.

This week is National Small Business Week. For the wide variety of people considering starting a business, this week we'll detail the basic types of legal entities small businesses can use. To begin, we'll look at the advantages and disadvantages of operating as a limited liability company (LLC).

The SBA's National Small Business Week website offers webcasts of this week's speakers and events, which cover a wide variety of topics.

As discussed here, though a downturn is a tough time to start a business, many are doing so. Whether due to the loss of an old job or seeing new opportunities amidst the current tough times, an intitial step new business owners must take is choosing the form in which to structure their business. The menu is large: sole proprietorships, partnerships, limited liability companies (LLCs), corporations, and variants in between (such as S corporations).

So, what are the pro's and con's of operating as an LLC?

Noncompete Agreements: When are They Enforceable?

Many people who used to have jobs also have non-competition agreements in place with their former employer. The agreements themselves vary, as do the state laws determining their enforceability. For small businesses putting new non-competes into place and for those wondering whether they are bound by an old non-compete, here are the basics on when non-competes can be enforced.

Non-competition agreements have direct impact on three groups of people: employers wishing to enforce them, workers who want work in the same area as their old boss, and new employers who can face liability for hiring someone in violation of the new-hire's old non-compete.

The law on noncompetition agreements varies by state. In some states, such as California, noncompetes are unenforceable, with very limited exceptions. To find a non-compete enforceable, other states generally require it to be reasonable as to scope, time and geography, and that the employee get something in return for entering the agreement.

On Tuesday, Governor Arnold Schwarzenegger signed into law a requirement for health plan providers to notify some former employees of small businesses that they have a second chance to enroll in Cal-COBRA continuation of health plan coverage, this time with a possible premium subsidy under the recently enacted American Recovery and Reinvestment Act of 2009 (ARRA). In offering this second chance at health care to former employees of businesses with fewer than 20 employees, California joins a growing list of states.

In response to the cost of COBRA continuation of care coverage and increasing unemployment, Congress and President Obama passed federal COBRA premium subsidy assistance. COBRA obligations apply to employers with 20 or more employees. For businesses with fewer than 20 employees, some states have "mini-COBRA" programs to make continuation in group health plans available to laid off employees.

ARRA mandated subsidy assistance not only for qualifying COBRA eligible individuals fired between September 1, 2008 and December 31, 2009, but also for those eligible for COBRA "comparable" coverage under other laws (i.e., state mini-COBRA laws). ARRA mandated that health plan providers re-offer COBRA (with possible premium subsidies) for those who turned it down after being fired post September 1, 2008.

The problem for many wanting coverage with premium subsidy under state mini-COBRA programs is that ARRA did not require a second election period for those who turned down mini-COBRA participation before the subsidy went into effect. That's where laws such as that signed by Schwarzenegger today come into play. The San Francisco Chronicle cites the legislation's author as stating that this could bring health care premium assistance to 100,000 Californians.

Chrysler plans to eliminate 789 of the dealers in its network. This represents 25% of its dealers, many of whom still had life left on their Dealership Agreements. As a warning to any franchisee whose franchisor might declare bankruptcy, the bankruptcy process may allow a franchisor to reject the franchise agreements it wants to shed.

In normal circumstances, a franchisor (even if it's one of the Big 3 automakers) may not simply reject franchise agreements it has in place. This can quickly change, however, if the franchisor declares bankruptcy. Chrysler filed for bankruptcy on April 30. Its plan for reorganization involves a marriage to Italian automaker Fiat and shrinking its dealership network. Thouh it hasn't declared bankruptcy, according to the Washington Post, GM will allow around 1100 dealer agreements lapse next year.

As the Post quoted from Chrysler's filing today with the bankruptcy court, "[i]mmediate rejection of these agreements is necessary and appropriate to begin the work necessary to complete the transition to the smaller, more effective, and more profitable dealer network . . . and minimize disruption upon the closing of the Fiat" sale.

So, what happens to franchisees when the franchisor declares bankruptcy?

Today the U.S. House Committee on Small Business is considering a bill that would expand the Small Business Administration's (SBA's) entrepreneurial development programs. The bill aims to support entrepreneurship nationwide, within specific regions and within specific demographic groups.

As reported by the Central Valley Business Times, the "Job Creation Through Entrepreneurship Act of 2009" would be the first major revision of the SBA's entrepreneurship programs in more than 10 years. Along with changes to specific programs, the bill would call on the SBA to create and present a plan to Congress for how it will create jobs through entrepreneurial development programs (both nationally and within specific regions).

The bill also calls for the SBA to:

Tax Cuts for Small Business in Obama's Proposed 2010 Tax Plan

The Treasury Department released its "Greenbook" for 2010. Tax policy headlines have centered on tax cuts for most individuals' and tax increases for top earners. However, the Treasury Department's proposals also include measures to eliminate some tax loopholes, and a purported $99 billion in proposed tax cuts for small businesses.

The Treasury Department's Greenbook is its revenue proposals for a given year. The Greenbook for 2010 calls for $736 billion in tax cuts for working families, almost $100 billion in tax cuts for small businesses and closure of hundreds of billions of dollars worth of tax breaks and overseas tax havens.

Let's get straight to brass tacks -- what's in it for small businesses?

Many small businesses have recently had their credit card interest rates hiked and/or their credit limits slashed. At the same time, more business owners have come to rely on plastic to operate or finance the business. With consumer credit card protection approaching, some wonder whether we'll see any small business oriented reform of credit card industry practices.

The National Small Business Association (NSBA) released its 2009 Small Business Credit Card Survey. The results showed increased reliance by small businesses on credit cards, along with worse terms imposed by credit card issuers. Nearly two thirds of responding small businesses claimed to have had their interest rates hiked in the past 12 months. 75% reported that their credit card terms had worsened in the past six months.

Despite higher interest and lower limits, the survey shows increased reliance on credit cards -- not simply as a stop-gap, but to finance the business. Credit cards were the most commonly reported source of financing for capital needs, with 59% of businesses saying they used plastic to make capital purchases. 34% of small businesses responded that credit card debt constitutes 25% or more of their business debt.

With headlines about consumer credit card protection dominating recently, many small business owners want similar protections.

In July, Los Angeles will open the doors of its Office of Small, Local and Disadvantaged Business. The new city office will help small businesses navigate the many rules and benefit programs scattered throughout different city departments. Many other cities also gave a small business office that can serve as a good resource for navigating local regulations and opportunities.

As reported by the LA Times, Los Angeles' Office of Small, Local and Disadvantaged Business aims to demystify municipal bureaucracy. While contracting programs at the local, state and federal levels can offer government contracts to some small businesses, all small businesses face local, state and sometimes federal rules and regulations when they start up and operate. At the municipal level, offices like the one to open in L.A. will hopefully assist small businesses to more effectively navigate issues such as permits and licensing, local taxes and incentives, and government contracting.

Other cities have established departments with a similar purpose. A sample of these includes: New York, San Diego, Sacramento and San Francisco. In addition to guidance on city bureaucracy, these offices can direct small business toward state and federal regulations and benefit opportunities. Some, such as New York's, offer guidance on business planning, financing, training, and a host of other issues.

High season has begun in many farmers' markets around the country. Farmers' markets offer small scale farmers and hobbyist gardeners an opportunity to earn money while providing fresh food and produce to their communities. So, how do you get started and what kinds of rules govern selling at a farmers' market?

Like the zucchini and corn at your local farmers' market, the rules governing farmers' markets are highly local. For this reason, often the best place to start is the person called the "Market Manager" (or "Market Master"). This is the person who oversees operation of a specific farmers' market, and who can point you toward that market's rules and procedures. Usually, the Market Manager can be found at the market on its day of operation. If not, your local Chamber of Commerce may be able to put you into contact.

Typically, the Market Manager decides who gets to sell at that market. Selection criteria vary by market or group of markets. As an example, the criteria used by markets in the California Farmers' Market Association include:

  • the seller's history of compliance with state, local and market rules;
  • the seller's past participation in the market;
  • the number of people selling the same goods at that market (to avoid monopolies and gluts while meeting buyer demand); and
  • the number of unreserved slots.

Once you inform yourself as to local procedure for applying, you'll need to know the rules that that govern selling at a farmers' market.

The Department of Justice (DOJ) announced today a return to more strict enforcement of federal antitrust laws. As described in a DOJ press release, the move is intended "to let everyone know that the Antitrust Division will be aggressively pursuing cases where monopolists try to use their dominance in the marketplace to stifle competition and harm consumers." Enforcing our laws against anti-competitive behavior could mean more room for small businesses to compete.

The New York Times reports that Christine Varney, the new Assistant Attorney General, announced the policy reversal in a speech to the Center for American Progress. She stated that the Bush administration "lost sight of an ultimate goal of antitrust laws -- the protection of consumer welfare." As pointed out by the Times, Varney's announcement was a repudiation of antitrust enforcement guidelines used during the Bush administration. The DOJ's guidelines as to when they will pursue antitrust cases affect not only government prosecution of violators, but also private antitrust litigants. Private parties involved in antitrust litigation often cite the DOJ guidelines as how federal antitrust laws should be interpreted and enforced. Today, Assistant AG Varney put dominant companies on notice that relying on the old DOJ monopoly guidelines would no longer be wise.

While Bush's DOJ pursued zero anti-monopoly case, we may see a return to enforcement more like that during Bill Clinton's presidency (including enforcement against Microsoft). The Times cites people familiar with Varney's initiative as saying she will target agriculture, energy, health care, technology, telecommunications companies and possible financial services firms.

Oprah, KFC Coupons and Franchise Agreements

Tuesday, Oprah offered coupons for free KFC grilled chicken meals on her show's website. Chaos ensued. The website couldn't handle all the downloads. KFC locations were mobbed. Some refused to honor the coupon. Some simply ran out of grilled chicken. Who was left to deal with irate and hungry customers? KFC franchisees struggling to honor a promotion instigated by KFC central.

Criticism of Oprah's KFC giveaway didn't come from the seeming hypocrisy of criticizing factory animal farming and then partnering with KFC. It came from people wanting more of that free "finger lickin' good" chicken. CNN reports that Oprah estimated that 10.5 million coupons were downloaded, totalling $42 million in free meals. 4 million coupons were redeemed. Inability to meet demand has KFC issuing rainchecks to customers who send in their unused coupon.

Though Oprah's power magnifies the KFC pickle, it sounds a bit like the Quiznos situation from February. The sandwich giant issued coupons for free subs, but received fury from customers after some Quiznos shops refused to honor them. The reason? Quiznos corporate expected franchisees to eat the cost of the free subs (all ingredients of which must be bought from Quiznos corporate). As discussed on the Consumerist, Quiznos corporate eventually agreed to redeem some, and then all honored coupons.

Since March, JPMorgan Chase (Chase) has been suspending the lines of credit of thousands of small businesses. This includes businesses who missed no payments. A line of credit is a financing option with many benefits for small businesses. However, as illustrated by lenders pulling the rug from under thousands of businesses, borrowers must pay strict attention to the fine print in their line of credit agreements.

Business Week reports that the suspension of thousands of credit lines by Chase came after scrutiny of the businesses' current financial conditions. One might think that a borrower being current on payments would be enough, but not so. The line of credit agreements in question allow Chase to change the terms if the borrower's financial condition changes. A lowered credit score or weakened financials means Chase may make wholesale changes to the agreement.

Apparently, handbags made of python skin have been all the rage for a while now. And also soccer shoes made of kangaroo. But be careful if you want to sell them in California. Unfortunately, trends in luxury goods and performance footwear don't always coincide with state specific laws governing animal based goods. This can apply to certain culinary "delicacies" as well. California merchants, and out-of-state businesses wanting to sell in California need to be aware of sometimes poorly publicized product prohibitions.

The sale of python handbags in California is prohibited under a criminal statute dating back to 1971. It forbids the commercial importation, sale, or possession with intent to sell the dead body or any part of the following animals: polar bear, leopard, ocelot, tiger, cheetah, jaguar, sable antelope, wolf (Canis lupus), zebra, whale, cobra, python, sea turtle, colobus monkey, kangaroo, vicuna, sea otter, free-roaming feral horse, dolphin or porpoise (Delphinidae), Spanish lynx, or elephant. On January 1, 2010, alligator and crocodile will join the list.

Though a misdemeanor, for each violation, perpetrators face a fine of $1,000 to $5,000, up to 6 months in county jail, or both a fine and imprisonment.

Yesterday, the state of Ohio and Huntington Bancshares announced a joint program to lend $1 billion to small businesses over the next three years. Many small businesses have waited for such initiatives from banks like Huntington that received TARP money.

According to the press release issued by Huntington, Ohio's Governor and the Department of Development, the Ohio and Huntington Job Growth Partnership is a public private partnership designed to "attract, retain and grow businesses and jobs within the state."

As noted by the Columbus Dispatch, the initiative seeks to bolster small business lending, which has lagged despite the infusion of federal money from the Troubled Asset Relief Program into many banks. Huntington received $1.4 billion in TARP money.

Under the new program, $1 billion will be lent to small and medium sized businesses over three years. $250,000 will go through Ohio's Department of Development, and $750,000 through Huntington itself.

For the growing number of people opting or needing to start up a new business venture, one of the first things required is an Employer Identification Number (EIN). Before getting too far, new businesses should know that they likely need an EIN and how to get one.

As discussed here and here, sour economic times appear to have sparked new business ventures. These new businesses will likely need EINs. EINs are, like Social Security Numbers, a type of Taxpayer Identification Number. EINs are assigned by the IRS to identify businesses, primarily for federal tax purposes.

Just about all businesses need an EIN, including any business that has employees or is operated as a partnership or corporation. Look here to find out in you need an EIN.

One issue sometimes overlooked is the need for a new EIN in certain circumstances. Generally, a change in the ownership or structure of a business requires a new EIN. Changing the business' name, however, does not. Look here to see when specific business forms (partnership, corporation, etc.) need a new EIN.

A group of Senators from both parties introduced legislation yesterday to help small businesses and those who work for them obtain health insurance. Through the Small Business Health Options Program (dubbed "SHOP"), the legislation would let small businesses join together to negotiate health plans and provide tax incentives for those that pay a portion of employee coverage.

As discussed in this blog post, some claim health care costs to be the number one issue facing small businesses. Though no consensus has been reached as to employers' role in remedying the lack of affordable health care in America, the undeniable reality is that fewer and fewer small businesses are able to offer their employees health benefits. The Senate bill introduced yesterday seeks to change that.

What is an S Corporation? What are its Benefits?

Businesses can take many legal forms — sole proprietorships, partnerships, limited liability companies (LLCs), and corporations, along with different flavors of each. One commonly used type of corporation is the "S corporation," which can both limit liability and give tax advantages to some businesses.

An S corporation is a regular corporation that has elected "S corporation" tax status. Being a corporation generally shields owners from the business’ liabilities. Being an S corporation offers this perk, plus the tax structure of a partnership. In a partnership (and an S corporation), all of the corporation’s profits and losses "pass through" to the owners, who report them on their individual income tax returns. The S corporation itself does not pay any income tax.

This avoids double taxation on profits and allows the offset of business losses with income from other sources. Also, unlike owners of LLCs, S corporation shareholders are not subject to self-employment taxes the way active LLC owners are. Though state laws vary, most states follow the federal model for S corporations and taxes.

The Federal Trade Commission (FTC) is probing Google and Apple regarding their respective boards of directors. In particular, the FTC is examining shared members of the two boards. Though rarely invoked, US antitrust laws forbid "interlocking directorates" - the sharing of officers and/or directors between competing corporations.

As reported by Reuters, the FTC is concerned about Google CEO Eric Schmidt and Arthur Levinson, the former chief executive of Genentech Inc. They both sit on the boards of both Google and Apple. Why would this be a problem? The FTC is concerned that the seldom enforced Section 8 of the Clayton Act, banning "interlocking directorates" in competing corporations, may apply to Apple and Google.

The rule is intended to prevent anti-competitive coordination between corporations. Additionally, all directors owe a duty of care and fiduciary duties to the companies on whose boards they sit. Sitting on the boards of competing companies (or serving as an officer) would open the door to conflicting fiduciary duties.

Of course, the focus of the FTC inquiry into Google and Apple will be the degree to which they compete.

The SBA announced that it would expand access to the most common type of federally guaranteed small business loans, its 7(a) loan program. The change will allow access to 7(a) loans for some businesses previously excluded due to having too much in annual sales. The temporary change is a good time to look at how SBA size limits work.

As reported by Reuters, the SBA announced that from now through September 30, 2010, there will be an alternative size limit for prospective SBA backed 7(a) loan applicants. The rule is widely reported as a way to open SBA 7(a) loans to struggling auto dealerships. Under the temporary alternative size limit, businesses previously ineligible for having too much in annual sales will be eligible if their net worth (including subsidiaries and affiliates) is less than $8.5 million and average net income over the last two fiscal years is less than $3 million. These are the limits currently in place for SBA backed 504 loans.

The SBA’s press release claimed the move would open 7(a) loans to an additional 70,000 businesses. It also stated that such temporary increases in size limits worked effectively in 1993 to counter the early 1990’s recession and in 2005 to combat Hurricane Katrina’s effect on small businesses.

Talk of who would best benefit from small business loans and who can get them makes it a good time to look at how the SBA’s size limitations work.

The Delaware Department of Transportation recently sent a newsletter to its employees illustrating ways one should avoid communicatiing with coworkers. The detailed illustrations of what not to say did not go over well with many department employees. To contrast the example set by the Delaware DoT's newsletter, here are some things small businesses can do to make workplaces more inclusive.

As reported by Delaware Online, Delaware DoT's "Diversity Spotlight" newsletter was intended to promote diversity awareness. Ironically, it asks, "How can you go about interacting with your colleagues without putting your foot in your mouth?" Contrary to state's intentions, the Diversity Spotlight appears to have cast a light on just about every way one can cause offense in the workplace.

Unfortunately, the newsletter's language prevents this blog from linking to it. Let's just say it systematically goes through most minority types and identifies three or four incredibly offensive things you should not say to such people. About "the N word," the newsletter says that although we've heard African American comics says it, it's never acceptable to say. "You are asking for trouble; leave this one alone," it concludes. Good advice indeed. Also for those drafting workplace diversity newsletters.

Some say Delaware DoT bungled a very important topic. Some say the Diversity Spotlight itself was sexist, racist, homophobic and ageist. Not Delaware DoT spokesman Darrel Cole, however. His response? "Is it in your face? Absolutely. Is it pretty bold? Yeah, it is. But the general thought is that you have to shock people to get their attention. The overwhelming response was 'Wow, this is saying what we've been feeling.'"

In saying what not to say, the Delaware DoT showed us what not to do. On the other hand, here are a several things small businesses can do to limit discrimination and harassment in the workplace.

Facebook, Blockbuster and Changing Terms of Use Agreements

Recently, a federal judge in Dallas held that Blockbuster can be sued over its practice of transmitting lists of movies rented by particular customers for posting on those customers’ Facebook pages. The judge rejected Blockbuster’s argument that its terms of use agreement requires arbitration of all claims. Why did the arbitration clause get tossed? Blockbuster’s terms of use agreement was found to be “illusory” because it allows Blockbuster to unilaterally change any part of the agreement. While the weight of the case remains to be seen, all businesses with websites should takes steps to ensure the enforceability of their terms of use agreements.

As reported by the Register, Facebook’s “Beacon” program, through which advertisers like Blockbuster send information about a customer’s off-Facebook activity for posting on that customer’s Facebook page, has drawn a firestorm of criticism.

In the Dallas lawsuit, the plaintiff sued Blockbuster for sending movie rental information which was posted on the plaintiff’s Facebook page. The plaintiff alleged violation of the Video Privacy Protection Act, which forbids disclosure of personally identifiable rental information unless the customer gives specific consent in writing.

The decision in Dallas, however, could have implications outside of the privacy realm. The terms of use agreement which Judge Lynn found illusory resembles many business’ online terms of use agreements.