Free Enterprise - The FindLaw Small Business Law Blog

April 2015 Archives

Today's employees are a fickle bunch. They come and they go. Sometimes they go taking a little bit more with them than when they came.

It is not uncommon for businesses to hire employees away from their competitors. Losing an employee hurts because you'll have to do interviews, find another employee, and then train them all over again. But, losing an employee can hurt even more if that ex-employee is using your trade secrets to steal your clients or copy your products and technology.

So, what can you do if an ex-employee is using your trade secrets?

Maybe you just don't like the habit, or don't want your office to smell like cigarettes. Or maybe you're more worried about the healthcare costs or extra sick days.

Whatever your reasoning, you might be thinking of joining the many companies that are now refusing to hire smokers. But are these bans legal? You might want to consult your state statutes to find out.

From cities to startups, everyone is trying to keep it weird these days. An offbeat corporate culture at your business may sound good in theory, but how do you keep it legal in practice?

Here are a few tips to keep your office weird from getting too legally wild.

Advertising is tricky business. The right words could bring lots of money into your business. The wrong words could hurt your business' reputation and bottom line.

Budweiser is learning that the hard way. As part of its "Up for Whatever" campaign, Budweiser printed, "The perfect beer for removing 'no' from your vocabulary for the night" on its beer bottles. Social media erupted in protest over the perceived encouragement of date rape.

As a small business owner, you should tread carefully when designing your advertisements. Here are 3 things you should not put in your ads:

Do I Need to Offer a Warranty?

Most items we purchase are covered by some kind of warranty. Car salesmen often extol the benefits of their 10 year, 100,000 mile, bumper to bumper warranty.

As a small business owner, do you need to offer a warranty? Is it required by law?

Like any important strategic business decision, whether to use independent contractors comes with its benefits and its costs. And it's up to you to decide what works best for your company.

And here are a few things to keep in mind if you have to make that choice:

You can lead a horse to water, but you can't make it drink. Lawyers can educate their clients, but can't force their clients to act one way or another.

Wise decision-makers consider advice from many sources, and make their own decisions. Weak decision-makers are easily manipulated by their eagerness to do whatever someone tells them to do. However, foolish decision-makers ignore advice, and do whatever they want to do.

As a business owner, are you a wise, weak, or foolish decision maker? Do you ignore your lawyer's advice?

The key to an effective workforce is often a happy workforce. But how do you know if your workforce is happy?

Many companies are surveying their employees to gauge happiness, satisfaction, and engagement. But these surveys are not without their pitfalls, legal and otherwise. Here are a few things to keep in mind to make sure your employee surveys are effective and legal.

As any small business owner knows, getting easy access to credit can be a challenge. You've already hit up friends and family for a business loan and the time and paperwork involved in applying for a bank loan are just too daunting. But like most challenges these days, the Internet is here to help.

More and more businesses are foregoing traditional bank loans and instead turning to online lenders to meet their cash needs, mostly because access to capital can be quicker and more convenient. But is there a price to pay? Here are three things you should know about online lenders:

Popeyes fired a pregnant woman victimized in a robbery because she wouldn't pay for it.

A pregnant shift manager, at a Texas Popeyes location, was held at gun point by a burglar who demanded money from the restaurant's safe. The manager claimed that she could only open the cash register. Normally, there would not be much money in the cash register, but the manager claimed that the restaurant had been busy. The burglar got away with $400.

Remember the good old days when angry customers bluster and threatened to tell all their friends about how unhappy they are with your service? You weren't too worried back then. How many people could they possibly tell?

With the growth of Yelp, social media, and other online review sites, unhappy customers now have a much wider audience to air their disappointments to. And, those reviews stay online forever!

So, how is a company supposed to protect its reputation? Respond to every bad post? Seethe in silence? Or, maybe you can have clients sign a non-disparagement clause! Is that legal?

While we all want to find the best talent to work in our businesses, we also want to keep our interviews legal. And walking the fine line between effective and legal interview can be tough.

Now that you've been warned the illegal questions to avoid in a job interview, including the questions you can't ask female applicants, what about the questions you can and need to ask?

Here are five questions that are essential for any effective and legal interview:

Ah the selfie stick. It was named one of the 25 best inventions of 2014 by TIME last year.

Despite its popularity and obvious amazing-ness, the selfie stick has been feeling a lot of hate lately. It's being banned at concert venues, museums, and even at Apple's World Wide Developers Conference. Admittedly, selfie sticks can be a hazard in enclosed crowded areas and among priceless art and artifacts.

With so many places banning selfie sticks, can your business do the same?

Now that you've submitted your tax filing to the IRS, what do you do with your copy of the paperwork? What about the filing for last year and the year before? How long should you keep your business's tax records?

While the IRS has its own recommendation, there are a few other considerations you might want to take into account before sending your old return paperwork through the shredder.

When an employee leaves on good terms, most employers are happy to give them positive reviews when a future employer calls for references. When the parting is on no-so-good terms, well, that makes the reference decision not-so-easy.

Most employers are wary of speaking ill about their former employees, especially when they run the risk of a defamation lawsuit. Of course you can always choose not to respond to reference requests, but how can employers provide negative references and avoid getting sued?

Yelp reviews are a blessing and a curse for businesses. Great reviews bring more customers. False or fake reviews don't only hurt your business' reputation, but they're also downright infuriating. It's unfair that these lies about your business are online for the whole world to see!

So, how should you respond to a false or fake yelp review?

Good business means keeping costs low and earnings high to maximize profits. However, sometimes business practices can be too efficient, and workers are hurt by that efficiency.

One of those harmful business practices is on-call scheduling. New York State Attorney General Eric Schneiderman is now investigating 13 large retailers, including Gap, Target, and Abercrombie & Fitch, for on-call shift practices that may violate the state's reporting time pay laws. The investigation comes after the office received complaints from workers who have been sent home early from shifts, told not to come in to work while already on their way to work, or who have to call in hours before their shift to see if they are scheduled to work.

Here are three things business owners should know about the law regarding on-call shifts:

Congratulations! It looks like your Etsy business is booming. Sales are so high you're considering getting a partner or even hiring employees.

However, before you do any of that, have you incorporated your business? Do you need to?

For business owners, incorporating a business can have tax benefits and ensure limited liability, but it can also be a hassle. Here are the pros and cons of incorporating a business:

Summer is almost here, meaning many parents will have to figure out how to keep their kids occupied for those three months. Some of those parents might be hoping their child can land a summer job. And some other parents may be hoping to put their kid to work in their own office.

So let's say that Junior comes to work for you at the family business. Do you have to pay him? Assuming you're keeping the employment on the books and above board, here are some considerations:

5 Things to Know About Hiring Kids

For many businesses, kids are a great source of temporary, low wage labor.

However, there a lot of laws regarding child labor that limit how old kids must be to work, what jobs they're allowed to do, and how long they can work. Violating these laws can mean hefty fines and even imprisonment.

Here are five things you should know about hiring kids:

If you have a business in one of 25 states with right-to-work laws, you may need to adhere to certain state labor statutes.

What is the right-to-work? Do you have to give a job to anybody who asks for it because they have a right to work?

Jack Daniel's has long been one of the most aggressive companies when it comes to defending its brand. Most recently, it successfully defended a state law that legally defined "Tennessee whiskey" -- a phrase featured prominently on Jack Daniel's bottles -- as charcoal-filtered, corn-based whiskey aged in new barrels -- a process almost unique to the Jack Daniel's distillery.

And while proactively defending the distinguishing trademarks and characteristics of your business is admirable (and sometimes necessary), some companies have been known to go overboard, and garner some negative attention. So how do you find the right balance when protecting your business image?

All business owners are trying to avoid legal problems before they start. So what are the best strategies for staying in business and out of costly litigation?

As it turns out, maintaining extensive and accurate records of your business is one of the easiest and most effective ways to keep your company out of legal hot water. Here are a few reasons keeping good business records is a great idea.

Gender discrimination is pervasive in the work place, even if we don't intend to perpetuate it.

In 2011, the gender pay gap was 23 percent. For every dollar a man earned, a woman in the same job earned only 77 cents. Is this because men are smarter? Is this because employers are evil and biased against women? No. Discrimination is often inadvertent and unintentional. Most employers don't design biased policies against women on purpose.

So why? How do men end up earning more than women?

Taylor Swift is trademarking her lyrics. A bunch of athletes are trademarking their names and catch phrases. Maybe you've wondered whether your business needs to register a trademark.

If your answer to that question is yes, you've come to the right place. Here's a quick guide on how to register a business trademark.

Click here! Update your login information, or your account will be frozen! Give us all of your personal information! Do it now!

That's a phishing scam.

A phishing scam involves emails or websites that try to trick people into entering confidential information such as account usernames, passwords, credit card numbers, social security numbers, etc. Some phishing emails are obvious junk. They say you've won a contest for a trip to Bermuda. Some are trickier. They claim to be from Microsoft or Bank of America or the IRS. They tell you that you need to change your password immediately, or your account will be canceled.

Apple recently received some bad publicity regarding its policy of prohibiting convicted felons from working on the construction of its new, 2.8 million square foot campus in Cupertino, California. According the San Francisco Chronicle, several workers lost their jobs working on the site because of past felonies.

Bad press is one thing, but is what Apple doing illegal? Are businesses allowed to have polices against hiring convicted felons?

Every year the Internet comes alive with great and horrible April Fool's Day jokes. From announcing fake products to fake deaths, these jokes can sometimes backfire.

For April Fool's this year, Tesla announced the launch of the Model W. The press release jokes that the Model W is a watch that can tell the date, is adjustable, and can "tell the time no matter where you are on Earth." Despite it being a joke, the press release caused Tesla's stock prices to jump $1.50 within the last five minutes of trading. The stock then fell back down, but in that time, many people lost money because they were duped by the joke.

A good joke will get a few laughs, but a bad joke may land you in legal hot water. Here are some ways April Fool's jokes might hurt your business:

Title II of the Civil Rights Act of 1964 and Title III of the Americans with Disabilities Act of 1980 prohibit discrimination based upon race, gender, ethnicitiy, religion, and disabilities in places of public accommodations.

But, what is a public accommodation? Does it apply to your small business?

Tax day is fast approaching, and some of you are still looking for some tax filing tips for your business. Don't worry -- FindLaw has you covered.

Here are five things you should know before filing your taxes on April 15:

You've done your best to create a friendly workplace, and you were confident that there was no discrimination or harassment in your office.

Still, you received a complaint from the Equal Employment Opportunity Commission (EEOC), and now you have to figure out how to respond. Here a few things to keep in mind if you receive and EEOC complaint.

Be careful of breaking wage laws if you require your servers to do side work.

A federal district court recently decided that Joe's Crab Shack improperly compensated its workers for non-tip producing duties, or side work. Joe's Crab Shack pays its tipped servers below minimum wage. This is ok, because it applied a tip credit. However, its servers were also required to spend an excessive amount of time doing non-tipped work, without getting paid minimum wage.

If you require your tipped workers to do side work, here's what you need to know about side work:

What Is a Mechanic's Lien?

After weeks of dust, banging and clanking, and construction, you completed a brand new bathroom with a huge tub, two sinks, and heated tile floors for your customer. While the customer is luxuriating in his new comfort, he refuses to pay you!

How do you get your money? Have you considered a mechanic's lien?

Here are three things you need to know about a mechanic's lien: