Blog Archives

IF YOU “LIKE” US, DON’T SUE US

Many of you may have seen my recent Facebook post regarding General Mills’ decision to update their Privacy Policy. General Mills, the maker of Betty Crocker, Nature Valley and Pillsbury brands, announced that if you choose to follow their company page, subscribe to their newsletter, or benefit in any way, including coupons, from their company, you may be waiving your right to future lawsuits. In fact, what their policy states is that by benefiting from the company you agree to resolve any issue through arbitration.

What does this mean for you, the consumer? Does this mean you cannot “like” General Mills or another company’s Facebook page because of their Privacy Policy?  Perhaps.  The law generally states that one who agrees to a contract is deemed to have read it and understood it.  Does hitting the “like” button mean you are agreeing to a contract?  Only time will tell how a court would interpret such a policy and if a court would find it enforceable.  I am curious to find out how many people “unlike” General Mills’ Facebook page recently.  To learn more about General Mills privacy policy: http://generalmills.com/Privacy_Policy.aspx

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

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SUMMARY OF 10 TIPS FOR SMALL BUSINESSES

I hope everyone has enjoyed my monthly tips over the last year for those who own, or want to own, a small business .  I thought as a closing for this series that I would summarize the tips in a one-page document that you can take with you and refer back to when you need a reminder.

First Tip: Create your corporate shield to “shield” you as an individual from liability by creating a corporation or a limited liability company for your business.

Second Tip: Get appropriate business insurance (worker’s compensation, unemployment, business liability, professional liability, health, etc.) and pay taxes.   

Third Tip: Do not misclassify your employees as independent contractors; do an analysis of the type of work, supervision, tools/equipment, control, etc. of your “independent contractors” to ensure they have not been misclassified.

Fourth Tip: Know the employment laws that affect your business such as Title VII, Equal Pay Act, Age Discrimination in Employment Act (ADEA), Americans with Disabilities Act (ADA), Family and Medical Leave Act (FMLA), worker’s compensation standards and Arizona state laws.

Fifth Tip: Set written employment policies in an employment handbook, consistently follow your own policies, and train your supervisors on how to implement your company policies.

Sixth Tip: Make sure you are promoting your employee benefits to your company’s advantage and do not forget the benefits that you can offer that do not cost you anything.

Seventh Tip: Make sure you have written contracts that lay out the true terms of the contract and avoid “handshake deals” which can create serious problems for your business if you end up in court.  

Eighth Tip: Integrate written social media policies into your workplace such as prohibiting employees’ use of social media at work, employees posting your company’s confidential material, trade secrets, or proprietary information, etc. 

Ninth Tip: Determine if you need a trademark or service mark for your business and if so, register your trademark or service mark with the United States Patent and Trademark Office (USPTO) to obtain exclusive nationwide ownership of the trademark and the presumption that the trademark is valid over others. 

Tenth Tip: Beware of personal guarantees because if you do sign a personal guarantee, you have to be willing to pay on the debt if the main borrower, whether it’s your business or your child, fails to pay. 

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

TENTH TIP; PERSONAL GUARANTEES

The next tip for those who own, or want to own, a small business: BEWARE OF PERSONAL GUARANTEES.

I have represented several individuals in the last year who signed personal guarantees and then were sued on that guarantee.  A personal guarantee can come up in several situations. 

The first situation that comes to mind is when a small business enters into a contract to lease office space and the landlord requires the business owner to personally guarantee payment of the lease.  Or, if a small business wants to set up an account with a new vendor, the vendor might require the business owner to personally guarantee payment for the products being provided. 

 In your personal life, a guarantee situation could arise where one family member signs a guarantee to secure payment for another family member.  Think of a parent co-signing on a car loan for an adult child.  

 One of the main reasons that lenders require personal guarantees is that if the main borrower does not pay, then the lender can go after the guarantor.  So in the office space lease situation, if there is a default on the lease, the landlord can sue the business who entered into the lease and also sue the owner of that business, i.e., the guarantor.  If the landlord wins that lawsuit, the landlord can then go after the business’ assets, and if the business no longer has any assets by that time, the landlord can also go after the business owner’s personal assets to obtain payment.  Or, in the parent co-signing for the child situation, the lender can go after the parent’s personal assets to secure payment for the loan.

 Moral of the story: consider the long term consequences before you sign a personal guarantee.  If you do sign a personal guarantee, you have to be willing to pay on the debt if the main borrower, whether it’s your business or your child, fails to pay.  And, be sure to read all of the terms of the contract and guarantee before you sign so you understand the terms and conditions of the loan. 

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

NINTH TIP: TRADEMARKS

The next tip for those who own, or want to own, a small business: DETERMINE IF YOU NEED A TRADEMARK OR SERVICE MARK FOR YOUR BUSINESS.

Business owners routinely ask questions about the names, logos and phrases they use to sell, advertise, and promote their goods and services.  This brings up the issue of what is a trademark/service mark and what can be trademarked.

A name, word, phrase, logo, symbol, design, image, or any combination thereof that a business associates with its goods and/or services can be projected as a trademark.  By way of example, McDonald’s, Inc. uses several trademarks that we are all familiar with.  The “golden arches” is a trademarked logo that is known worldwide.  The phrase “i’m lovin’ it”TM is also world-famous.

Trademarks perform a dual role for a business.  Trademarks add value to the business through branding, but they also protect the goodwill associated with the business.  Trademarks increase brand recognition by distinguishing the products or services of a business from those of its competitors and make it easier for customers to identify the source of the products or services.  Furthermore, trademarks and service marks are enforceable against competitors that try to encroach on the goodwill of the business and confuse customers by selling a competing product of lesser quality under the same brand name. If a business obtains a federal trademark with the United States Patent and Trademark Office (USPTO), then the owner of that mark has the exclusive nationwide ownership of the trademark and the presumption that the trademark is valid over others.  Once a trademark is registered, that mark will appear in trademark search reports which should discourage others from proceeding with the trademark registration of the same or similar trademark and the USPTO will refuse trademark registration to any trademark it deems confusingly similar to an already registetred trademark.

The information contained herein is a business advertisement with general information not legal advice, and does NOT establish an attorney-client relationship with Hymson Goldstein & Pantiliat, PLLC or Lori N. Brown.

EIGHTH TIP; SOCIAL MEDIA AND THE WORKPLACE

The next tip for those who own, or want to own, a small business: integrate social media policies into your workplace.  

This past year I learned how to use Facebook for business.  I had a personal Facebook page for several years but was not an avid user.  I heard people talk about using social media for business, but I didn’t understand what that meant.  About six months ago, I went to a basic social media class and started a Facebook business page.  I learned how to post, use pictures, tag, schedule future posts, use hashtags, etc.  Now I post legal tips everyday to my Facebook page and I am slowly building an audience.  The idea of a Facebook business page might be old news to some of you and new news to others.  The fact of the matter is that a growing business needs to use every avenue available to market and social media seems to be “the” tool to use at the present moment.  Social media is also being used to investigate potential employees.  It is not uncommon for companies to choose not to hire a potential employee after viewing information posted by or about the employee on social media outlets.  And, I am seeing more and more stories about employees being fired due to items posted via social media.  Think about what you would do if your employee was posting negative comments about your business while he was at work.  Being proactive and adopting and integrating social media polices in your workplace is one way to avoid social media problems.   

A lot of workplace rules about social media really are common sense, but they still should be put in writing and reviewed with your employees regularly.  Some possible policy considerations include:

  • Prohibiting employees’ use of social media at work
  • Prohibiting employees from posting messages or material that could damage your company’s image or  reputation
  • Prohibiting employees from posting your company’s confidential material, trade secrets, or proprietary information
  • Prohibiting employees from posting messages that defame or slander management and co-workers
  • Prohibiting employees from posting messages that disparage your company or another company

My rule of thumb is everything that is posted on the internet is public.  I tell employees and employers alike not to rely on “privacy” settings because those seem to change regularly.  One of the main reasons social media is used is to expand your “reach”.  You get your word out by posting and hoping that others “like” and “share” your posts.  But, that “reach” could quickly become your enemy if something is posted about your business that is less than favorable.  The old school version would be hitting the send button in an email and the next instant realizing that you sent the email to the wrong person, or worse, hit “reply all” when you wanted to only reply to the sender.  So go out and use social media to its fullest advantage.  But, you also need to keep a close eye on what you and others are posting about your business. And, of course, I invite you to check out and “like” my business page: https://www.facebook.com/BusinessLawyerLoriBrown and I hope the information you find there will be educational and entertaining. 

The information contained herein is a business advertisement with general information not legal advice, and does NOT establish an attorney-client relationship with Hymson Goldstein & Pantiliat, PLLC or Lori N. Brown.

SEVENTH TIP: THE IMPORTANCE OF WRITTEN CONTRACTS

The next tip for those who own, or want to own, a small business: make sure you have written contracts WITH CLEAR TERMS

I had a case a few years back where my client sold her home health business to a “friend”.  The two friends decided not to get a lawyer and instead used a form contract for the sale of the business.  Of course, a dispute arose after the contract was signed.  The buyer had made a down payment on the purchase of the business and then was supposed to make installment payments to pay off the balance.  But, after running the business for a short time, the buyer decided that she had not received what she expected and therefore she stopped making payments.  The dispute ended up in a lawsuit and the case went to arbitration.  The arbitrator ultimately decided that no one won the case because there was a “mutual mistake” involved, meaning the parties never really agreed on the terms of the agreement.  This was a very rare result because usually in a lawsuit someone wins.  In the end, both sides lost out, the seller never got her money, and the buyer did not get the business she expected.   

The above situation illustrates the importance of having written contracts that lay out the true terms of the contract.  When a contract ends up in court, the judge will look to the “four corners” of the contract, meaning only what it says in the contract, not some verbal side deal that was never written down.  The purpose of a contract is to deal with all potential issues that could arise.  You want to make sure that your written contracts “say what you mean”.  DO NOT just sign a business contract, read it carefully (or have an attorney review it for you).

And, the days of a “handshake deal” do not exist anymore.  I was doing legal research recently and read a quote from a case that I thought summed up this issue well and all business owners would be wise to remember:

“An agreement that is based on trust and is not documented is fine as long as there is plenty of money and as long as there are no problems. The purpose of legal agreements is to define, in advance, who has superior rights when there are not enough assets to go around.”[1]

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.


[1] In re Moye, Case No: 07-37770 (Bankr. S.D. Tex., 2008). 

FIFTH TIP: EMPLOYMENT POLICIES

The next tip for those who own, or want to own, a small business: set written employment policies.

All companies, large and small, need a written employment handbook that describes the policies that must be followed.  When I talk to an employer or an employee about a legal issue, one of the first questions I ask is: is there an established policy that governs this issue?  This is the same question that the court is going to ask if a legal dispute turns into a lawsuit.  The answer should be found in the written handbook.

Also, employers tend to rely on their “policy” when a problem arises.  For instance, when an employee asks a small business owner for something the owner is not willing to give, the typical (and easy) response to the employee is: that’s not our policy.  The problem is that many times the “policy” is not in writing.  Another problem is that there tends to be more inconsistency in how employees are treated when a policy is not in writing.  Inconsistency leads to the appearance of discrimination which can lead to a lawsuit.

Many policies can be included in a company’s handbook.  Typical handbooks include descriptions of the policies governing: attendance, vacation, sick, pay, confidentiality, trade secrets, discrimination/harassment, discipline, etc.  One of the most important parts of the handbook is the at-will employment disclaimer which informs employees that the handbook does not create a contract of employment.  Another very important part of the handbook is the “acknowledgement of receipt” of the handbook.  Employees should be required to sign the acknowledgment and return the acknowledgment to the company.  The employer will be hard pressed to prove to a judge later that the employee was aware of the company’s policies if the employer never had the employee sign an acknowledgment of receipt of the handbook.

And, last, but not certainly not least, once the employment handbook is created, all supervisors must be trained on how to implement the company’s policies.  There is no protection for the company if supervisors do not know and consistently enforce the policy.

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.

FOURTH TIP; KNOW THE EMPLOYMENT LAWS THAT AFFECT YOUR BUSINESS

The next tip for those who own, or want to own, a small business: know the employment laws that affect your business. 

If you are in business, your purpose is to make money.  To make money, most companies need workers to run the business.  Last month we discussed the difference between an employee and an independent contractor.  If you decide that you are going to hire “employees”, then you need to know and comply with the various federal and state employment laws in effect. 

For instance, there are various federal laws that prohibit discrimination in employment. Those laws include: (1) Title VII which prohibits employment discrimination based on race, color, religion, sex, or national origin, (2) the Equal Pay Act which prohibits sex-based wage discrimination, (3) the Age Discrimination in Employment Act (ADEA) which protects individuals who are 40 years of age or older, (4) the Americans with Disabilities Act (ADA) which prohibits employment discrimination against qualified individuals with disabilities, etc.  There are also similar state laws in Arizona that protect employees against discrimination.  You also need to comply with federal and state laws that establish minimum wage, requirements for payment of overtime work, recordkeeping and child-labor standards.  And then there are medical leave laws such as the Family and Medical Leave Act (FMLA) and worker’s compensation standards as well.

Not all of these laws affect every business because some of them only apply to businesses with a minimum number of employees.  For example, FMLA only applies to employers with 50 or more employees.  Every responsible small business owner should become aware of and comply with the employment laws that affect his/her business.  You certainly do not want to first become aware of a law that affects your business when you get hit with a government agency complaint or lawsuit.     

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown or Hymson Goldstein & Pantiliat.

THIRD TIP: EMPLOYEE V. INDEPENDENT CONTRACTOR

The next tip for those who own, or want to own, a small business: do not misclassify employees as independent contractors.  The reason that many small business owners want their workers to be independent contractors is because independent contractors are not covered by employment, labor, and related tax laws.  Therefore, a new business owner might be tempted to misclassify employees as independent contractors in order to avoid paying payroll taxes, benefits, and other liability.  Before you make this determination, you should do a careful analysis of many factors including:

  • the type of work the  worker is performing
  • whether the worker is supervising your employees
  • whether the worker has his/her own tools and equipment to perform the work
  • how much control you have over the worker (such as who sets the work hours and the pay rate)
  • whether the worker has his/her own insurance
  • whether the worker works for other companies or just for yours
  • whether the worker advertises his /her services separately

The above is not an exhaustive list, but demonstrates that this issue is not a simple one.  For instance, typically, independent contractors sign an independent contractor agreement which details the terms of the relationship between the company and the independent contractor.  But, do not fall into the trap of thinking that if you have a worker sign an independent contractor agreement, than that automatically makes the worker an independent contractor.  If you are being investigated by a government agency, the independent contractor agreement might be one factor that is considered, but it will be unlikely to cut short the investigation and end the inquiry altogether.

Also, consider this: if an employer fails to pay wages owed to an “employee”, that employer could liable under Arizona law for three times the unpaid wages.  If a court or government agency found that your business had misclassified an employee as an independent contractor and failed to pay wages properly, you could face other penalties as well including penalties related to the employment taxes you should have been paying all along.  There are other issues to consider as well such as immigration and worker’s compensation coverage.

My grandma used to say: “begin as you mean to go on”.  She was a wise lady because that is not only good life advice, but good business advice.  Whether you own an existing business or are starting a new one, it is wise to make sure you classify your workers properly.  And, if you already have an ongoing business and think you might have misclassified your workers, you are better off making efforts to correct your mistake now rather than letting the problem linger which could lead to bigger problems down the road.  At Hymson Goldstein & Pantiliat, PLLC we have experienced employment law attorneys who can assist you and guide you to avoid these legal pitfalls.

The information contained herein is general information not legal advice, and does NOT establish an attorney-client relationship with Lori Brown.

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