Free Enterprise - The FindLaw Small Business Law Blog

November 2016 Archives

While President Barrack Obama was intent on expanding civil rights and pro-employee labor laws, President-elect Donald Trump is expected to be pro-business. As such, many expect Trump to rollback a significant number of the labor and employment law changes made by the Obama Administration, and to take a step further by implementing more pro-business policies.

While campaigning, Trump was rather vocal about repealing the Affordable Care Act. Additionally, the new overtime regulations slated to go into effect may be a prime target for an early Trump executive order. Although Trump already has a reputation for flip-flopping his position on important issues, most expect that he will consistently implement policies that generally benefit big businesses.

A New York federal court complaint, filed last week, alleges that Jay Z's company, Tidal, discriminated against an employee who was returning from maternity leave. The complaint alleges that the day after the new mother explained to her boss that she needed a private room to pump milk in, she was terminated.

The terminated employee had only returned to work for one week before being terminated. During that week, she did use a private office to pump. However, she was allegedly told that she should stop and pump in a bathroom (which is a violation of Patient Protection and Affordable Care Act). The lawsuit was filed under both state and federal civil rights laws, as well as for breach of contract and an intentional tort.

Business owners love Black Friday. Shoppers come out in droves in order to shop for the holidays. The one thing business owners like seeing more than their stores filled with customers, is their sales (and thus revenues and profits) soar. However, if a business isn't ready for the holiday rush, disaster could be lurking around the corner.

Fortunately, we've got a round up 5 of the best FindLaw articles to help business owners survive the holiday shopping rush.

When an individual is financially underwater, they might explore bankruptcy as an option. However, when that individual is married, the question about whether or not to declare bankruptcy becomes more complicated. While they can and often do, spouses are not required to file for bankruptcy jointly.

Generally, bankruptcy will allow a person, business, or married couple, to get out from under debt either by liquidating assets to discharge the debts, or structuring a repayment plan. However, because there are restrictions on qualifying for bankruptcy, it is not always a viable option for married couples. Sometimes, only one spouse may actually qualify. When only one spouse declares bankruptcy, the non-declaring spouse needs to be aware of the ramifications.

To be fair, naming a restaurant "The Kitchen" doesn't sound all that original. But that's not Kimbal Musk's argument. Billionaire engineer/entrepreneur Elon Musk's billionaire restaurateur brother is suing Wolfgang Puck over a restaurant concept Musk says he started and shared with Puck in 2012.

So which eatery giant gets to use a generic word for cooking room? Let's take a look at the lawsuit.

Whether you're just starting your business, or you've been in operation for years, developing a business line of credit could be the most critical step in taking your business to the next level. While many business owners finance their businesses using their personal credit, business lines of credit can be vastly larger and superior to those offered to individuals.

The big question that many small business owners ask is: How do I establish credit for my business? Below you'll find the three steps you need to take to establish business credit.

Since Black Friday and Cyber Monday can make a retailer's year, small business retailers need to do everything they can to keep their operations up and running during those times. While brick and mortar retailers might need to hire security guards, hire extra sales staff, or extend store hours, for online retailers the concerns are a bit different.

To prepare for the biggest online shopping days of the year, business owners need to ensure that their site's security, and digital emergency plan, are in place, and that they have an adequate disclaimer to warn customers in case of high volumes of orders. In addition to the web-related concerns, retailers should be aware of the various false advertising laws.

If you thought that having employees based overseas might save you a few bucks come tax time, think again. As a general rule, U.S. social security and Medicare taxes still apply to any wages earned as an employee outside of the United States.

There are, however, some exceptions to that general rule, and the IRS has recently issued an update to its FICA rules for employees of American companies working abroad. Here's what you need to know.

If you're running any business and you're not using arbitration whenever possible, you're making a mistake. Arbitration agreements should not just be used for customers, but also for employees and even vendors if possible.

As a startup, you need to run as lean as you can, even if you are flush with venture capital money. And that means cutting costs at every opportunity. While certain unorthodox expenses are absolutely necessary (how are you going to attract good talent without a foosball table in the breakroom?), arbitration agreements can save companies from not just large financial losses, but also from intangible losses.

Maybe you're just getting ready to start your small business. Or maybe you've been plugging along for a couple years and are finally ready to take your operations big time. Or, you're unhappy with the current legal structure of your business and are looking for an alternative.

Either way, you may be considering forming a partnership. But you should know that partnerships, as all corporate structures, come with legal complications. Here are five legal issues that business partnerships may run into.

Any retailer is only as good as the products it sells, and online retailers are no different. No marketplace wants to be known for allowing counterfeit goods, especially one as big as Amazon. So it's somewhat surprising that the two lawsuits filed by Amazon this week are its first against merchants for allegedly selling counterfeit items in the company's 20-year history.

Here's a look at the lawsuits and what they could mean for e-commerce and counterfeiters in the future.

Ending a business, or one particular venture, can often be a smart business decision. Sometimes an entrepreneur needs to cut their losses and move on to the next project. When a business owner reaches that point, they may be wondering about how to get back the dollars they invested into their business. If your business has any assets the answer may just be liquidation.

If you are thinking about liquidating your business, or just a few business assets, below are a few tips to consider.

Sometimes an employee just doesn't work out. Although the employee you want to fire may need the job, as an employer, you have a business to worry about. Running a business requires making the tough decisions, which includes firing employees.

However, many small business owners become concerned about the legal liability of firing an employee. It may feel rotten to have to fire someone, but unless there was something more going on, there is nothing illegal about terminating employees for valid business reasons, such as poor performance, downsizing, or restructuring.

Now that the holiday season is upon us, small businesses need to make sure they are ready to handle just about anything. Before the holiday rush begins, small business owners should take some time to develop a crisis management plan to be ready in case of emergencies, and to minimize risks.

Crisis plans should not only include what to do in case of fire, flood, storms, or other natural disasters, but should also include situations like shootings, theft, overcrowding, fights, and injuries. While each of these situations should be handled differently, below are 5 legal tips to help every small business owner devise a crisis plan.

Businesses want to advertise to very targeted audiences. And with the wealth of information that social media behemoth Facebook has, perhaps no advertising platform in history has allowed businesses to more narrowly target their ads to specific consumers. But it turns out Facebook may have been allowing advertisers to narrow their focus in illegal ways.

Pro Publica revealed that Facebook was allowing advertisers to exclude specific groups from seeing advertisements based on "Ethnic Affinities." And a lawsuit filed in federal court in California claims this practice violated federal laws on housing and employment discrimination.

As hackers and cyber attackers get more sophisticated, preventing digital security breaches in business becomes more difficult. As soon as the good guys find a way to stop one virus, the bad guys write another two. Over the past few years, cyber attackers have set their sights on businesses that rely on digital data to operate. The goal in a ransomware attack is to gain access to the business's computer systems, then encrypt the business's files, and require the business to pay a ransom in order to have their files un-encrypted.

Ransomware targets can range from individuals to small businesses, big businesses, and even government agencies. Because every business is different, each business needs to create a digital security policy and digital emergency plan to protect the business and the business's employees.

It's hard to come up with a more polarizing and vitriolic presidential election in recent memory. Families were pitted against each other; Facebook friendships torn asunder; and, it seems, bosses playing resignation chicken with their employees.

Grubhub CEO Matt Maloney took a decidedly anti-Donald Trump tack in an email to employees, daring those who don't agree to "reply to this email with your resignation because you have no place here." Maloney added, "We do not tolerate hateful attitudes on our team." Does that mean Maloney will go stalking through the office, cubicle by cubicle, firing Trump voters?

Theranos, the once revolutionary laboratory testing company, may be facing a new secret lawsuit from their former partner Walgreens. In a filing on Tuesday, Walgreens asked the Federal District Court in Delaware to permit the company to file a lawsuit "under seal" against Theranos that is based on the contracts that the two companies held with each other.

The motion filed by Walgreens explains that the two companies signed a non-disclosure agreement (NDA) relating to Theranos's business and technology. As a result of the NDA, Walgreens explained to the court that the allegations in the complaint, if disclosed in a public filing, would likely violate the terms of the NDA exposing them to liability.

Any new presidential administration can cause some apprehension on the part of small business owners, whose operations can be affected by even the slightest changes in the legal landscape. And the election of Donald Trump is no different.

While Trump's stump speeches were short on large-scale economic policy, a few planks of his platform can have a tangential affect on small businesses. Here's what could change under future President Trump, and what that means for you.

Many people have been surprised to hear that the US Patent and Trademark Office has not only been accepting applications to patent various strains of marijuana, but it has actually been granting some patents. With numerous states legalizing marijuana for medical and recreational use by adults, speculators are predicting that the big business of marijuana is going to continue getting bigger.

There's nothing new about patenting plants. However, researchers had more to be concerned about before states started legalizing marijuana for medical and recreational use. Now that a handful of states allow recreational use, it is expected that more marijuana patents will be filed.

You know you can't start a business for free. Any comprehensive business plan will include an estimate of start-up costs, considering everything from rent and employee wages to inventory and insurance. The one thing many entrepreneurs may neglect in these calculations, however, is legal fees.

You may need an attorney's advice throughout your startup's life, from incorporation to employment law compliance. So here's a look at some of those legal fees, and some ways to keep them in check.

You work hard to hire the best employees. But are you working hard enough to keep them? As it turns out, getting a great staff into the office is only half the battle. Not only do you have to make your company attractive to applicants, you have to make it a great place to work and stay long-term.

Running a successful small business means fostering a fantastic work environment that attracts, and retains, the best talent. So here are three ways to do just that.

It's a long road building your business from the ground up. When the time comes to grow, entrepreneurs often seek funding from third parties, including friends and family, banks, venture capital firms, and anyone else who might have deep pockets. However, getting funding can be wrought with legal pitfalls. Until recently, an entrepreneur was not allowed to publicly solicit investments into their business. However, now that we are in the era of crowdfunding, the rules have changed.

With the JOBS Act, rules were devised for businesses that wanted to utilize crowdfunding. Also, the the JOBS Act provides rules on solicitation and details about who qualifies as as an accredited investor changed.

Starting January 1, 2017, employers in California will now face liability under the Fair Pay Act if they are found to have discriminated in setting wages based on race or ethnicity, as well as gender. When the Fair Pay Act initially went into effect on January 1, 2016, the act only applied to gender-based pay disparities. While prior state and federal laws did protect against this type of injury, the Fair Pay Act provides a more direct cause of action for aggrieved individuals, as well as tighter regulations for employers, in an attempt to eliminate this type of civil rights violation from even occurring in California.

For small to large business owners, this law means taking a look at your current employment policies to make sure you are in compliance, as well as reviewing your current payroll to make sure prior decisions did not run afoul of new rules. In addition to expanding the Fair Pay Act to also include race and ethnicity, the new law will also prohibit employers from using an employee's salary history to justify a current disparity in compensation.

The U.S. Equal Employment Opportunity Commission (EEOC) announced a settlement with Safeway, Inc. that will require the nation-wide grocery chain to rehire a food clerk and pay $27,000 in damages after she was fired following a work-related injury. The settlement sheds light on the kind of accommodations employers are required to make for injured employees and how long those accommodations are necessary.

Here's a look at the EEOC's settlement and the lessons for small business owners.

It's that time of year when the world falls in love ... with spending money and shopping! While you may be relying on this time of year to make your business profits soar, your employees may be relying on extra holiday pay and maybe even year-end bonuses.

Some small business owners, especially new small business owners, might be wondering whether they are legally required to provide holiday pay and/or bonuses. Unless your small business is part of a state or local government, then the answer, like most legal business questions, is the standard lawyer mantra of: it depends.

While different types of businesses will have different types of concerns when it comes to employees getting arrested, among the chief concern for business owners is whether the arrest will affect business. Typically, if an employee is arrested outside of work, for a crime not related to the work they perform, then a business likely will not need to be concerned about being exposed to liability as a result of the employees actions.

Unfortunately, when an employee performs a criminal act in furtherance of the business, a business can be held liable for the employee's actions. One of the more common examples of employees violating the law in furtherance of their employment is when employees must act as security, as one Taco Bell employee and franchise owner are learning.

Top 5 Trademark Questions

Hopefully you already know that protecting your small business's intellectual property is essential to your success. But you might not know the best ways to do it. For example, the differences between trademarks, copyrights, and patents can be difficult to discern, and there are cases where you may not need to actually file a trademark to have the benefits of trademark protection.

You may not even know the questions you need to ask to get started. Lucky for you, we've pulled some of the most important trademark questions from our archives, along with where you need to go for answers.

Religious discrimination in the workplace, especially around the holiday season, can be a contentious issue. While Christmas trees still light up city centers across the nation, many workplaces have discontinued the practice because the tree is a symbol for a religious holiday. Christmas parties are now called holiday parties for the same reason. Although celebrating a religious holiday may not seem to discriminate against anyone on first blush, it can easily become religious harassment or even a discriminatory event.

Religious discrimination and harassment in the workplace is a sensitive matter. While employers are required to accommodate the religious expression of employees, that accommodation has limits. Generally, the limit is where religious expression becomes religious harassment.

Election Day is next week, and if your employees haven't voted already, they'll likely need to hit the polls on Tuesday. That can put an awful strain on your small business, so are you required to give staff time out of the office to go and vote?

Although the big vote is for the presidency, states control specific election and polling place laws. So here's a look.

Since the BBB and FTC have issued guidance and new rules about truthfulness in advertising in the internet age, you might be wondering when a blog post is considered an advertisement. While blog posts can cover a wide range of topics, typically, the topic is less important than the purpose. Generally speaking, whenever a blogger is paid for their expression by a company, the paid relationship should be readily apparent, if not clearly disclosed, as the expression is promoting, or helping, the company in some way.

Identifying paid online advertisements is getting trickier and trickier, especially as advertisers understand how consumers use the various online platforms. Advertisers know that internet users will try everything to skip advertisements, such as using ad blocking software, disabling pop-ups, muting the volume, or even paying for premium ad-free memberships. To combat this, advertisers have started crafting ads that sneak by people's filters by actually providing useful blog content, or at least ads that mimic the appearance of useful content.

Even if you remember to declare the pennies on your eyes, an IRS tax lien can have a significant impact on your business. If you owe money to the IRS or state tax board, and are behind in making payments, the IRS or state tax collector can put a tax lien on your business assets. Having a tax lien can prevent your business from selling assets, or getting new lines of credit, and could potentially affect existing lines of credit.

A tax lien operates just like any other lien except that the debt owed that creates the lien is due to unpaid taxes. If you ignore the lien, the IRS may levy your assets in order to satisfy the debt. Below are the three ways that you can get rid of your business's tax lien.