Business Law, employment law, Legal

4 Common Legal Mistakes by Small Businesses:Legal Reasons #72

1) Failing to “put it in writing” early

Before founders do any significant work together, it is essential to put into place a written agreement which outlines the roles and obligations of each respective party. Founder Agreements provide clarity regarding critical aspects of the work relationship, including but not limited to ownership percentages, salaries, removal grounds and procedures, governance and management, voting protocol and profit-sharing.

2) Failing to carry out buy-sell provisions

The decision by one founder to leave the company can lead to internal turmoil, customer erosion and disruption in revenue flow. These issues also could arise in the event a founder passes away or experiences long-term disability.

Simply put, failing to plan for the end is planning to fail. A properly drafted buy-sell agreement executed by the founders of the business at the outset (in conjunction with a founder agreement) can effectively account for how the company will proceed in the event of unanticipated change.

3) Using inadequate employment agreements

It is critical to invest in properly drafted agreements that can serve as the foundation for the employment relationship. Common terms included in an employment agreement include, among other things, the length of employment or whether the employment is at-will; the classification of the worker (i.e., employee/independent contractor, exempt/non-exempt); and rights and restrictions upon termination.

Employers should be mindful to not expose the company to liability by disregarding any prior-employment related obligations of job candidates, including any restrictive covenants and/or obligations to return sensitive documents that belong to the prior-employer.

4) Misclassifying workers

Many employers hire independent contractors rather than employees and/or misclassify employees as exempt under the Fair Labor Standards Act in an effort to avoid the payroll obligations that come with the traditional employment relationship, such as the duty to pay minimum wage and overtime. Serious liability can result from these misclassifications, including substantial wage repayment going back as far as three years and other harsh penalties.

Business Law, Legal

Reasons to Incorporate Your Business:Legal Reasons #71

Incorporating your company allows you to protect your personal assets from any actions that might affect your business. It also gives you the professionalism of an incorporated company, making it more likely that others will choose to work with you.

Business owners choose to incorporate outside their home state for many reasons. California is one of the most popular states for incorporation, because it has a thriving business community and offers important business benefits.

One major benefit of corporations in the state of California is management flexibility – the state only requires three officer positions in the filing: president, chief financial officer, and secretary. You can even fill all three of these with the same person. This allows you a lot of flexibility when it comes to filling out your corporation’s leadership team in the future.

Another reason forming a California professional corporation is a great choice is due to the anonymity of shareholders and management. The state only requires the director and resident agents to be disclosed, allowing stockholders to avoid having their names in the public record.

Finally, California corporation taxes are only 9%, with other significant advantages available depending on the type of corporation formed.

How to Incorporate in California

The process of registering a company is California is straightforward. Below is a brief overview of the steps to incorporating:

  1. Make sure your chosen business name is available under California rules and regulations.
  2. File California articles of incorporation.
  3. Have your organizational meeting and create your company bylaws.
  4. Get your Federal Employer Identification Number (FEIN) and open your incorporation’s bank account.
  5. Get business licenses from the county and/or city where you will do business.
  6. Submit your initial report, called a Statement of Information, within 90 days.
Business Law, Legal

What Every Good Partnership Agreement Should Contain: Legal Reasons #69

Although not required, I strongly recommend that partnerships have a partnership agreement in place to detail the business ownership and responsibilities of partners. The clearer and more complete the agreement, the less that is up for debate or disagreement when partners don’t quite see eye to eye.

1. Contributions

Make sure you clearly lay out each partner’s stake in the formation and ongoing finances of the business. How much will each partner contribute to start the business and what will each partner’s responsibilities be for future needs? In your agreement, define what each partner will put forth—not only in the amount of money, but also with regard to time, effort, customers, equipment, etc.

2. Distributions

You’re all in the business to make some money and create and sustain a comfortable life, right? Your partnership agreement should detail how the partners will split your business profits? How much will each partner get paid and who will get paid first? Outline not only how profits will be distributed, but also define if each partner will be paid a salary (and of course how much that salary will be).

3. Ownership

What if something changes with regard to ownership of the business? If you sell it, which partners will get what? What is your partnership’s position on taking on new partners? If one partner wants to withdraw from your business, what happens then? What are the options for buying out another partner? Your agreement should carefully describe how ownership interests would be handled in various scenarios like those and others, such as in the event of any partner’s death, a retirement, or bankruptcy. And to protect your business from a partner leaving, setting up a new company, and stealing your customers, you should also consider adding in a non-compete clause. Better safe than sorry!

4. Decision Making

I can’t emphasize enough how important this is! Trust me, you and your partner(s) will not agree wholeheartedly about everything. You need to define how day-to-day management and long-term decisions will be made. Who gets the last say? Identify what types of decisions require a unanimous vote by partners, and what decisions can be made by a single partner. By setting up a decision-making structure that everyone understands and has agreed to, you’ll have the foundation for a more friction-free business.

5. Dispute Resolution

Ugh! No one wants to think about this, but you should. If things get ugly between partners, how will disputes be handled? Your partnership agreement should define the resolution process. Should mediation be the initial step? Will you require arbitration to settle differences? Keep in mind that if a dispute goes to court, lawsuits become part of public record. Setting up how you’ll handle disputes will take the guesswork out of navigating dissention.

6. Critical Developments

Sometimes, the unexpected happens. It’s what makes business so exciting—and unnerving at times. Your partnership agreement should address possible scenarios and concerns, such as:

  • A partner getting sick or dying—What happens then?
  • A buyout—How will the business be evaluated (and what is the split) if an offer is laid on the table?
  • Retirement provisions.
  • Circumstances under which you can modify your partnership agreement—and the process for making changes.

These are the most common issues. And there are numerous others you should think about.

7. Dissolution

Your agreement should also include what steps should be taken to legally end your partnership. You might opt to do this if you and your partners can’t agree on the future of your business. Also research what your state requires to dissolve partnerships. State law governs dissolution and your state’s website should define the process and provide the forms you need to complete.

Business Law, employment law, family law, Legal

How Much Will It Cost? Legal Reasons #67

When clients ask, “how much does a lawyer cost,” the answer can vary from $150 to $350 or more per hour. But if you’re facing a legal issue, working with a lawyer is very helpful and can affect the outcome of the case. Before hiring a lawyer, you should talk to him or her about fee schedules, flat-rate vs. hourly billing, retainer vs. contingency fees, and a ballpark estimate of the total cost based on the case.

As you consider how much a lawyer will cost, think about how much you have to spend and what the outcome is worth to you.

For example, if you’re thinking about taking legal action against a local business that did not repair your refrigerator properly, do you have enough money available to hire a lawyer, present evidence, and get the court to rule in your favor? Even if you do have enough money, is the overall cost of replacing the refrigerator or having someone else repair it worth the trade-off?

If you decide to move forward with legal action, or you need assistance with a legal matter, ask all potential lawyers that you meet with about their billing practices and fees. If the lawyer is not willing to discuss the costs with you, it’s a sign of poor client service.

Most lawyers bill under one (or several) of the following arrangements:

  • Hourly rate: this is the most common way for a lawyer to bill. This process requires careful documentation of all time spent working on documents, reviewing case files, presenting information in court, and any other tasks related to the client’s case. The client and lawyer will agree on the hourly rate before getting started with the case.
    • A lawyer’s hourly rate varies drastically based on experience, location, operating expenses, and even education.
  • Retainer fee: many lawyers require a retainer fee up front, which is something like a down payment on the case. As the lawyer works on your case, he or she will deduct the costs from the amount you paid and send you periodic invoices showing the deductions.
    • If you drop a case for which you have already paid a retainer fee, it is most likely non-refundable.
  • Flat fee: a lawyer may offer a flat fee for a specific, simple, and well-defined legal case. Examples of cases eligible for flat fee billing include uncontested divorces.
    • Before agreeing to a flat fee, make sure you understand what is covered in the agreement. It may not include filing fees or other fees associated with the legal process, so you’ll need to plan accordingly.
  • Contingency fee: a lawyer may offer this type of billing in a  personal injury case. With a contingency fee, the client doesn’t pay until the case is resolved. Upon resolution, the contingency fee is a percentage of the settlement or money awarded on behalf of the attorney’s client.
Business Law, Legal

Which Corporate Entity Works Best?Legal Reasons #66

LLC (Most Recommended) (Most Ideal for Non-U.S. Citizens)

Limited Liability Company (LLC) is the most common and best business structure for most small businesses because LLC offers personal liability protection.

Having an LLC establishes your business as a separate legal entity — meaning members are not personally responsible for business debts and liabilities. In other words, if someone sues your business or if your business is liable to debtors, then your personal possessions, such as car or home, can’t be touched by creditors.

Also, unlike Corporations, LLCs enjoy pass-through taxation — meaning all the profits and losses are “passed through” the business to each members of the LLC. Members report their share of the LLC’s profits and losses on their individual tax returns, and any tax due is paid at the individual level.

The first thing most businesses do is form a LLC and as a business lawyer, I highly recommend having a registered LLC before you start your business.

 

C-Corporation

Corporation is also an independent legal entity, separate from the people who own, control, and manage it. Corporations can enter into contracts, incur debts, and pay taxes apart from its owners.

In other words, the Corporation itself, not the shareholders who own it, is held legally liability for the actions and debts the business incurs.

However, Corporations are more complex than other business structures because they tend to have costly administrative fees and complex tax and legal requirements. Because of these issues, Corporations are generally suggested for more serious companies.

C-Corporation is typically not suggested for most businesses to avoid double taxation. Ask me if you have any questions about this.

 

S-Corporation (Recommended for U.S. Citizens, Most Tax-Friendly)

S-Corporation is a special type of corporation created through an IRS tax election.

An eligible domestic corporation can avoid double taxation (once to the corporation and again to the shareholders) by electing to be treated as an S-Corporation.

What makes the S-Corporation different from a traditional corporation (C-Corporation) is that profits and losses can pass through to your personal tax return. Consequently, the business is not taxed itself. Only the shareholders are taxed.

S-Corporation offers the best of both worlds: personal limited liability protection along with the tax benefits of an LLC.

S-Corporation is recommended for most businesses as well.

Can’t decide on which business structure is right for you?

business lawyer can help you choose the right business structure and relieve the administrative burden of registering, organizing, and forming your proper business structure with state and federal authorities.

 

 

Business Law, employment law, Legal

So You Want To Start a Business?Legal Reasons #66

Before starting a business in California, you should consider the multitude of legal issues that surround such a task, including choosing the right business structure (sole proprietorship, corporation, limited liability company, or partnership), selecting the right company and/or product name, and how the business (including legal and accounting fees) will be financed, what potential liabilities you face with your proposed business, and what licenses and permits you will need.

Choosing the Right Business Entity For a California Business Start-Up.

Once you have determined that you are prepared to start your own business, you should begin the process of making your business legal. The first step should be to decide which legal structure is right for you. There are four main types: sole proprietorship, partnership, corporation and limited liability company. Which one is right for you? A sole proprietorship may be sufficient if: (1) you have no assets; (2) your proposed business is unlikely to be a source of liability; and (3) you don’t anticipate earning more than $50,000 a year. If you do have assets that you want to protect, or if you believe your new business will generate at least $50,000 in income, then you should consider either a corporation or a limited liability company. See, S-Corporation or LLC and then discuss your impressions with a local attorney, hopefully Melissa C. Marsh. Seeing an attorney for just an hour to learn more valuable information could save you thousands down the road.

Sole Proprietor.
If you are not ready to form a corporation, or a limited liability company, you can simply remain a sole proprietor. To start a business as a sole proprietor, all you need to do is get: (1) a taxpayer identification number ( EIN ), (2) a fictitious business name, (3) a local city business license, (4) a seller’s permit if you will be selling taxable goods, and (5) other city or state permits required for your particular business. Prior to selecting a fictitious business name, it is important to make sure the name is available.

Partners.
If you are planning to go into business with one or more other individuals, get a commitment — an agreement that sets forth your planned relationship, expectations, and financial commitment. If you are forming a corporation, make sure there is a shareholder buy-sell agreement in place. If you are forming a limited liability company, make sure the Operating Agreement contains buy-sell provisions. If you plan to operate as a general partnership, ask yourselves if the additional co-owners are merely going to contribute products and/or services as opposed to money. If so, consider forming a single owner business (sole proprietorship, corporation, or single member LLC) with contractual agreements with those who are to provide products and/or services. If a party later fails to perform, then you can typically find a replacement. If you are going to operate as a partnership, then make sure you execute a written partnership agreement that contains provisions addressing how each partner can leave the business.

It is always best to start a business on your own, rather than with partners. If co-ownership is essential, then make sure you have a well written partnership agreement that: (1) calls for the formation of a corporation or limited liability company if a certain goal is met, and (2) contains buy-sell provisions that provide for the buyout of any co-owner at a set price in the event the co-owner fails to perform, becomes disabled, dies, files for bankruptcy, or becomes involved in a divorce. Most owners of a business never intend, or expect, to become partners with their co-owner’s spouse, but that is exactly what can happen if you don’t have a well prepared buy-sell agreement executed by all of the co-owners.

Corporation. To determine if a corporation will best suit your needs, I will cover in the next blog post.