Free Enterprise - The FindLaw Small Business Law Blog

August 2009 Archives

Small Business Feeling Hopeful

Life in the small business world seems to be looking up these days.  Business confidence is the highest it has been in 18 months, according to a recent study conducted by Discover Small Business WatchSM.  The index climbed to the highest level since February 2008 over the month of August.  And the survey reported a drop in the number of small business owners who thought the economy was getting worse.

5 Types of 501(c)3 Non-Profit Organizations

You hear the the tax code section "501(c)3" after identifying an organization as a "non-profit", but did you know there are actually 5 distinct types of 501(c)3 organizations? Here's a rundown of the characteristics of each of the types of non-profits and the basics you should know before filing as one of them.

8 Landmark Employment Laws for Small Business

At will employment affords both employer and employee considerable flexibility in starting and ending an employment relationship; however, there are limitations.  Though employers can choose to hire or not hire a candidate for many reasons and can fire at will employees for cause or no cause, employers cannot make employment decisions on grounds that are illegal.   And in order to abide by the law, you need to know what the law is. 

Listed below are 8 federal laws your small business must follow when making employment decisions.

1. Civil Rights Act of 1964 (Title VII) : Prohibits discrimination on the basis of race, color, religion, national origin, and sex (gender).  It additionally prohibits gender discrimination on the basis of pregnancy and sexual harassment.  The Civil Rights Act also established the U.S. Equal Employment Opportunity Commission (EEOC).

Tax Incentives for 'Green' Business: The Webinar

If your small business is developing renewable or sustainable technology or is otherwise in the 'green' sector, you may want to tune in to the webinar happening on September 10th 2009 titled "Tax Incentives for the 'Green' Industry" from 12:30-2:30 PM EST.

SBA Fee-Free Business Loans: Act Fast!

What can a small business use to weather the current economy?  How about zero loan fees.  And a 90% guarantee on certain loans.  That's right small business super stars, these features may be available to your company, courtesy of the Small Business Administration (SBA).  And just like all good things, you'll have to act fast before this one runs out...

The American Recovery and Reinvestment Act (ARRA) passed in 2009 set aside $375 million for the SBA to guarantee up to 90% of certain loans and eliminate loan fees.  The initiatives have been gaining popularity with SBA having used 55% of the funds already. 

Cybercrime Wave Targets Small Business

With increasing sophistication of cyber tools for online innovation comes slicker cybercrime.  A multimillion dollar virtual crime wave targeting small and mid-size companies has been reported by NACHA-The Electronics Payment Association--a task force representing over 15,000 institutions in the financial industry.

NACHA reports that cyberbullies have been swiping small business usernames and passwords associated with corporate accounts at banks using malware and tools that record keystrokes.  The gangs organizing the bulk of the million-dollar criminal mischief appear to be from Eastern Europe.  They have been siphoning off U.S. small business funds and sending the funds overseas using money transfer services.

3 Ways To Make a Big Impression & Protect Your Brand

The way small business gets things done is changing.  Social media, online marketing, and e-newsletters have allowed businesses big and small connect to their customers in new and innovative ways.  Best of all, using the right combination of online and traditional media can help level the playing field between small biz and big biz, and all within budget.

Is your small business ready to go 2.0?

Here are some tips of ways to spruce up your business's image through design and tech innovation.

Do You Know about is a federal initiative that stores information of over 1,000 grant programs, providing access to a $500 billion pool of annual fund awards, including government grants for small businesses.  And if your small business doesn't know about it, you may be missing out.

The site defines a federal grant as "an award of financial assistance from a federal agency to a recipient to carry out a public purpose of support or stimulation authorized by a law of the United States".  It goes on to list grants provided by 26 federal agencies.

Who is eligible for federal grants?

Generally the grants are available to small businesses, government organizations, education organizations, public housing organizations, non-profits, and certain for-profit organizations as well.

Generally, what is considered a 'small business'?

Small Business Workers Comp: Are You Prepared?

Your small business is focused on brainstorming innovative ideas, generating revenue, and cutting costs to stay ahead of the current economy.  The last thing you want to think about is a workers' compensation claim.  But if one does come up, we want you to have resources to help you know what to do and what your role is.  That way, you can spend less of your hours filling out paperwork, and stay focused on building your business.

Workers' compensation, what is it?

Small Business Government Contracts: $93 Billion Too Little?

The Small Business Administration (SBA) released its latest scorecard showing that the federal government spent a record $93.3 billion in small business government contracts for the 2008 fiscal year, setting a new record.  It reflects a $10 billion increase from the previous fiscal year. 

The large figure, however, hasn't managed to impress all small business critics. 

Pros and Cons of Non-Profit 501(c)3 Incorporation

Incorporating as a non-profit 501(c)3 organization provides an organization considerable tax benefits, but what are the drawbacks?  Below are some pros and cons for filing for non-profit status.

Pros for incorporating as a non-profit 501(c)3 organization

  • Pay no federal, state, or local taxes
  • Qualify for special grants and government funding, even lower postage rates
  • Encourage donation by providing donors with tax deduction
  • Shield owners and directors from liability through status as a corporation
  • Be eligible for discounted advertising rates, including possible free tv and radio public service announcements (PSA’s)

What is a Franchise License?

Budding entrepreneurs can start a business from scratch or they can choose to represent an already-established brand.  When a business owner 'buys' a franchise they are actually purchasing a license to use established trademarks and trade names. 

What is a franchise license all about?

What Your Business Should Know About At Will Employment

At will employment means that a company can terminate an employee relationship for no cause or any cause, so long as the basis of termination is not illegal under federal or state law.  On the flip side, the employee can also leave the company for reason or no reason.

The at will employment doctrine gives companies and employees broad roles in making employment decisions.  For small businesses, at will employment has its definite advantages and disadvantages.

Here are some things your business should know about at will employment:

Where's the Cash, for the Clunkers?

In a surprise move during a slow period for the auto industry, hundreds of New York car dealers are withdrawing from the federal government popularly known as Cash for Clunkers---officially called the Car Allowance Rebate System (CARS) which offers up to a $4500 rebate for trading in qualifying gas-guzzling cars for new fuel-efficient ones. 

What's the beef?  Auto dealers feel like they are getting a line from the government, you know one that goes something like "the check is in the mail"...

6 Ways Your Business Can Collect Unpaid Debt

Your business works hard to perform and deliver.  So what do you do when you don't receive payment for goods delivered or services rendered?  It's a question that takes on a new urgency in times of economic challenge.

Your company has available a variety of options and depending on your size, type of business, and ability to continue operations, what is best for your business may not be the same as what is best for the business next door.

Here are 6 options on how your small business can collect unpaid debt:

The $10 Million Small Business Guarantee

The Small Business Administration (SBA) announced last month that it was extending surety bond guarantees to federal contracts of up to $10 million.  That's up $5 million from its previous threshold, implemented in March 2009 and slated to run through September 2010 on all public and private contracts. 

Does your small business qualify for the SBA's new surety bond guarantee? Here are some facts about the program.

Record High Sugar Prices Impact Small Business

Sweet tooth or not, the sugar prices have food-makers big and small concerned.  Sugar prices are at a 28-year high, and up 72% from what they were six months ago.  Unfavorable weather--droughts in India and rains in Brazil--affected the crops of the top two sugar-producing countries. 

The country's major food producers are concerned with recent increases in the cost of raw and refined sugar and are urging the Obama administration to loosen import laws restricting import of foreign sugar to meet domestic needs.  Sugar happens to be the only major U.S. crop to be subject to import restrictions, designed to benefit domestic producers.  According to legislation passed last year, the U.S. Department of Agriculture (USDA) can only change sugar import quotas in the last 6 months of the federal fiscal year, ending September 30th 2009. 

How will the spike in sugar costs affect Main Street?

Senate Confirmations Pending for SBA Top Spots

President Obama's nominees for high-level Small Business Administration (SBA) positions look as they may have a clear lane to Senate confirmation in September. 

The changing of the guard would usher in Winslow Sargeant for the position of head of SBA's Office of Advocacy and Peggy Gustafson for SBA Agency Inspector General. 

SBA's Office of Advocacy was created in 1976 and provides an independent forum for small business within the federal government structure.  The Office of Advocacy aims to protect, strengthen, and represent small business within legislative and rule-making processes.  And, it works to reduce burdens that federal policies impose on small firms while also maximizing government benefits to small businesses. 

HUBZone Law: Move to Level the Playing Field?

Before breaking for summer session, the U.S. Senate passed an amendment to the fiscal 2010 National Defense Authorization Act concerning the Historically Underutilized Business Zones (HUBZone) program that would cut down preferences for some small businesses over others. 

Currently, the HUBZone program incentivizes contracts between the U.S. government and small businesses in economically depressed areas.  The Senate amendment puts three categories of companies on a level playing field---namely, there will be no added advantage for the government to contract with HUBZone qualified businesses versus companies owned by service-disabled veterans or Small Business Administration 8(a) business development programs. 

Top 5 Considerations When Hiring Employees

If your company is looking to hire new employees, there are some things you should keep in mind as you kick-off the hiring process.  There is no single law that companies are directed to follow, instead, small businesses are responsible for being familiar with applicable state and federal laws that govern employment procedures. 

Top 5 Considerations for Employee Hiring Process:

SBA Loans: Watch the Online Primer

Judging by the spike in the number of small business bankruptcies over the summer, it is clear that Main Street is looking for lifelines to stay afloat.  The Small Business Administration (SBA) wants you to know that it is here to help.

And in true Web 2.0 fashion, the SBA has introduced an online course to introduce small businesses to basics in small business finance, resources offered by the SBA, as well as loan guaranty programs it has developed.

SBA online finance primer

Small Business Bankruptcy Climbs 81% in June

The economy may be on the slow mend going forward, but looking back to June paints a very different picture.  Equifax reported that bankruptcy filings for small businesses rose 81% from the previous year for the country's 25 million small businesses.

To be sure--10,399 bankruptcies were filed in June 2009, compared to the 5,712 that were filed in June 2008.  The Golden State was hit the hardest, with 10 California cities making Equifax's list for most commercial bankruptcies filed.  Los Angeles, Oakland, Santa Ana, San Diego were all on the list.  And California wasn't the only site for bankruptcy, other cities showing steep inclines in bankruptcy filings include Dallas, Portland, Atlanta, and Houston.

Equifax analyzed data for both Chapter 7 and Chapter 13 filings to come with its report.

USDA Conservation Stewardship Program: Apply Now

The United States Department of Agriculture (USDA) is moving forward with its proposed Conservation Stewardship Program (CSP) which rewards producers with payments for using existing good conservation practices and implementing new ones.

The Conservation Stewardship Program features two types of payments based on the methods and effectiveness of soil conservation and water-quality practices employed and comes packaged in the 2008 Farm Bill.  It is slated to be available until 2017 and is a revamped and renamed version of the government's previous conservation initiative, the Conservation Security Program.

USDA will contract with eligible applicants for up to five years, with yearly payments not exceeding $40,000 per year or $200,000 over the five-year time frame. The two types of payment available include:

Top 5 FLSA & Overtime Rules for Employers

Should hourly workers be paid for answering work emails and calls when they're off-the-clock?

It is becoming a popular question in the time of Blackberrys, iPhones, smart phones, pda's, cameras that connect online, and cars that talk.  Especially in light of recent lawsuits brought by hourly employees against employers for not compensating for time spent answering and responding to calls, emails, and texts on company-provided cell phones.

As a small business employer, here are the top 5 things you should know about federal law provisions for overtime:

In-N-Out of Court: Trademark Infringement

Sleepless nights, unwieldy cravings, dissatisfaction with other options... eating a burger from the famous west-coast chain that started in Southern California can leave you wanting more.  But after visiting an In-N-Out Burger fast-food restaurant on the west-side you are warned from trying to appease your condition by replicating the experience where you live.

In-N-Out takes trademark infringement seriously.

CAN-SPAM & Internet Marketing Law: An Open Can

One point for email marketing.  And another against litigation factories.  In a ruling by a Ninth Circuit federal appellate three-judge panel last week, the court dismissed a suit filed against an email marketing company for sending an alleged 13,000+ unsolicited emails to the plaintiff-- who himself happened to be a 'professional plaintiff' who profited from filing anti-spam lawsuits against online marketers.

The Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM) of 2003 sets forth requirements regarding who can send commercial email and establishes penalties for spammers and companies whose products are advertised if they violate the law, and gives individuals the right to opt out of email spam lists.  The recent ruling took a little bite out of CAN-SPAM's ability to regulate internet marketing and opened the door for companies to sidestep the act's strict provisions.  The court held that CAN-SPAM does not enable individuals to file lawsuits against internet marketers, but instead reserves the right to sue specifically for private parties.  It also prevented the claims from being tried under Washington state law, holding that the federal law preempted the state version.

Where Did the Madoff Victims Go?

After hearing so much for so long about the devious Ponzi scheme that Bernie Madoff used to snatch nearly $65 billion from small businesses, individuals, non-profit organizations, and various other entities that invested with him, we have been wondering about the Madoff victims.  While Madoff contemplates life and times while doing the jailhouse rock,  what of the unsuspecting souls that lost big and small to his borrow-from-Peter-to-pay-Paul scheme, during a time when the economy was also flat-lining?

The Wall Street Journal reported that the Madoff victims caught up in the intricate Ponzi web have begun to receive refund checks from the Internal Revenue Service (IRS) for taxes paid on money that didn't actually exist.

No Gucci For You

It's tough being a Gucci these days.   And famed designer Paolo Gucci's ex-wife and daughter found that out all too well when a federal court barred them from using the "Gucci" name to sell handbags, gelato, and other goods without trademark approval.   Paolo Gucci was grandson to founder of the luxury Gucci brand and was known for a litigious streak.  By the time of his death in 1995 many of the Gucci family members had been ousted from the company, with the rest to follow after.

At the heart of the matter is trademark infringement.  U.S. District Judge Richard M. Berman issued a permanent injunction banning the mother and daughter from using the Gucci name commercially on a list of products including coffee, bedding, housewares, cosmetics, hosiery, handbags, wine, and gelato. 

Green For Clean: Grants for Renewable Energy

The government is releasing $3 billion in government grants for businesses engaging in clean, renewable energy projects.  The announcement, made last week, specifies that the grants will be direct payments in lieu of tax credits and will support 5,000 biomass, solar, wind and other renewable energy production facilities.

The green business grants will be funded by the American Recovery and Reinvestment Act (Recovery Act), which aims to save and create more than 3.5 million jobs over the next two years, and has a special focus on sprucing up the green sector to eventually double domestic renewable energy capacity.  A total of $150 billion of the Recovery Act has been set aside for new infrastructure projects, including transportation, mass transit, roads, and bridges.

Rural Tourism Amendment Approved by Senate

In its last week in session before the August recess, the Senate passed an amendment sponsored by Mary Landrieu (D-La.) aimed at boosting tourism revenue for rural small businesses.  Senator Landrieu, Chair of the Committee on Small Business and Entrepreneurship, stated that "the tourism industry remains largely untapped for small rural firms" and created the legislation--now dubbed the 'Landrieu Amendment'--to aid coordination efforts by the federal government to deliver tax dollars to rural America. 

Guess Bigger: $370M Defamation Verdict

A Los Angeles jury returned a verdict in defamation case against Guess Jeans co-founder Georges Marciano in favor of five former employees--to the tune of $370M.  The plaintiffs filed the defamation action as a response to a suit by Marciano who accused the five of stealing his emails, embezzling money and conspiring to sell costly art and wine from his collection.  And though that case was dismissed in December 2008 for the mogul's failure to comply with court procedure, the case against Marciano made it all the way...deep into to his designer jeans' back pockets.

Presiding Superior Court Judge Elizabeth White initially found Marciano liable for defamation in Marciano's counterclaim against the five former employees.  The employees claimed that not only did he accuse them of stealing, he also relayed the claims of accusation to police and passed on the same in other distributed communications.  One former-employee noted that the public accusations made against him made it difficult for him to find employment after working for Marciano.

Online Video... Is Your Business On Board?

Marketing your business just went viral...and we don't mean like the swine flu. 

The Pew Internet & American Life Project released a report showing that online video clips shared on YouTube, compared to tv shows and movies, has nearly doubled since 2006.  Internet video-watching even outnumbers social networking,  podcast downloading, and microblogging at sites such as Twitter. To be sure---a reported 62% of adult internet users surveyed in 2009 have watched an online video on sites such as YouTube compared to 33% in 2006, 46% have visited a social networking site, 19% have downloaded a podcast, and 11% have microblogged.

If your small business is thinking about investing in an online video campaign, consider the following: