business & corporate law
LLC & OPERATING AGREEMENTS
Starting A New Business
You are about to become a new business owner. You may be starting from scratch, buying a new business or a franchise or newly buying into a existing business. The kind, complexity and expense of legal services will of course depend upon your particular kind of new business and the trajectory of your business goals. What follows is a list legal services for small businesses which you may need immediately, soon, in the future or never.
Buying A Business: If you are buying a new business or franchise or buying into an existing business you will want your lawyer assisting you in the transaction. I encourage you to have a lawyer review an transaction before you sign an Offer, Letter of Intent or a Final Agreement. Buying A Business
Partners: If you are going into business with one or more other people you will want an lawyer to assist you in identifying the issues which can lead to disagreement and to address those issues early on. We presume you already have a good relationship with your new partner(s). Why else would you be considering going into business. Agreements with partners are to be sure that there is a complete understanding, especially if something goes wrong in the relationship. This is also true in family owned businesses. Disagreements with partners are a common cause for small business failure. Sometimes these relationships are desirable, event essential. Sharing authority and revenue in a small business environment is not without challenge.
Business Entities: You will need to consider whether or not it is valuable or necessary to be entity, especially those having the advantage of limited liability like a corporation or an LLC. You might also consider a partnership, or if it is only you, a sole proprietorship. The limited liability advantage is by no means absolute and it is helpful to understand when limited liability might not protect you.
Licensing: While every business requires a business license, that is usually routine. Other businesses require extensive licensing to operate at all. It may be a liquor license for a store, approval of the health department for a restaurant; approval from the county for a camp, or you may be in a business that requires a license to operate such as a contractor, lawyer, accountant, doctor or the like. And all of those licenses may be impacted by choosing to operate as an entity. Also, you need a permit to collect sales taxes and to avoid paying sale tax on goods to be resold. You may need a permit to operate your business using a name other than your own.
Employees and Independent Contractors: If there are any two topics most likely to cause problems for small businesses they are: (1) Hiring workers as 1099 Independent Contractors rather than W2 Employees, and (2) Failing to comply with Federal, State and sometime local wage and hour laws and requirements. Because governmental entities which enforce these rules can be somewhat slow to react, small businesses often are lulled into a false sense of compliance. Sadly, when violations are discovered, enforcement can and often is vicious and typically goes back four years. Ignorance of the law or examples of your competitors doing the same thing generally provides no defense. Knowing the rules and complying with them is the only sure way for a new business owner to avoid potential disaster.
Intellectual Property: A core business asset of yours may fall into the zone of intellectual property. You may have a name that you want to keep others from using, which will generally require the USPTO to issue a trademark. Typically, registering a name as part of form a corporation or LLC or filing a Fictitious Business Name Statement provides inadequate protection from others using the same name. You may have developed a technology that can be issued a patent to prevent others from using that technology. We do not file patents but will refer you to lawyers who do. Your business may depend upon the licensing of intellectual property from or to you. We do prepare licensing agreements.
Contracts and Agreements: Apart from written agreements to buy your business, with your partners; with your landlord; with your employees and contractors and with your customers, various relationships are often subject of a written contract, such as a franchise agreements, distributorship agreements and licensing agreements.
Employee and Independent Contractor Issues
- What are the rules and risks pertaining hiring workers as independent contractors rather than employees and preparing written Independent Contractor Agreements.
- Which employees may be qualified as Exempt rather than Non-Exempt and what effect those different classification have on the employment relationship.
- Written Employment Agreements and the importance of "At-Will" employment.
- Assisting Employers in developing and documenting appropriate vacation, sick leave, holiday and health insurance policies as well as profit sharing and ownership incentives.
- Employee Handbooks.
- Representing employers in claims brought before the Labor Commissioner, the EDD or in court relating.
- Developing effective policies and strategies for avoiding wage and hor claims.
- Complying with labor code requirements relating to overtime, lunch, breaks, tip policy, paychecks, etc.
- Guiding employers through the process of terminating an employee.
- Developing policies for avoiding harassment and discrimination claims and providing representation if claims are made.
- Restaurant employer tipping issues, and challenges related to breaks and lunch.