Labor Day 2020- There is Still Something to Celebrate
In a year where nothing is normal, and many are working without the traditional structure of a Monday through Friday job in the office, major holidays can sneak up on us. Memorial Day didn’t feel much like the beginning of the summer season when most children had been home from school since March. You may hardly have noticed the 4th of July.
Labor Day, too, has lost its punch this year. Its relationship to the beginning of school is unclear at best right now. The Monday “off” may just feel like another day just like the last 177 days of being in our homes.
Yet the core value we celebrate on Labor Day- the recognition of the important contributions of all who work- is maybe more poignant than ever in 2020.
We have celebrated the front line health care workers who showed up every day to care for people with COVID, often reporting to facilities that were overwhelmed and unable to provide adequate protective gear. These health care workers are not just the doctors and nurses, but the whole gamut of people who keep a hospital working and make sure patient needs are met.
We have also seen our lowest paid and least celebrated workers- hourly employees of grocery and other retail outlets deemed “essential” during the shutdown- put themselves at a risk they probably never thought was part of their jobs by showing up everyday to sell us the things we needed to survive.
It was no different for those of us who chose curbside pickup or home delivery. Those nice people who brought groceries to my door or to the back of my car had to go through a supermarket picking out the food I ordered, which others who may or may not have taken precautions had touched or breathed on. They had to interact with on-site grocery store staff who spend their days exposed to whatever the public brings into the store. The delivery workers had to stop at multiple other homes along their route, where people may or may not have been masked when they met them at the door. Their willingness to take these risks put food in my home, as it probably did for many of you.
Then there are our teachers. They have had to grapple with a sea change in what their work- and their days- look like in a pandemic. Many were trying to learn how to teach remotely while doing the same thing other parents were- trying to supervise the remote schooling of their own children. Many were suffering the same feelings of loss from being separated from their classrooms that their students were experiencing. Many are still unsure how they can do what they love to do with children in a continued pandemic.
There are also many essential workers that we do not see. People working in manufacturing of things that were deemed essential. The people who work behind the scenes to fulfill orders from places like Amazon. People in food processing and packaging- often refrigerated environments that assist the spread of the virus with employees working in close proximity to one another.
Even those of us who could work remotely during the shutdown have had to grapple with fundamental changes in what work looks like. Maybe you were doing your office job from the kitchen table while also trying to watch your children. Maybe you were struggling to find ways to keep up with your responsibilities without the tools available in the office. Maybe you and your team had to completely rethink communication and collaboration in a virtual environment so that your company could still serve its customers. Whatever the situation, millions of workers made the unplanned transition to remote work in March, and have kept countless services available to consumers since then.
Finally, there are the self-employed, or dba’s, or solopreneurs. Just because you are not drawing a paycheck does not mean you should not be celebrated on Labor Day. You are working as hard as anyone to find and meet people’s needs, in good times and bad. You have been doing it this year without a safety net, in the face of sometimes existential challenges to your businesses caused by COVID.
2020 has been a dark and frightening year. On top of COVID, we have been challenged with the urgent need to address issues of racial inequality and bias in our country and in our communities. People lost loved ones, and many fell through the cracks, sometimes tragically. We have a lot to still figure out about our world, and how to live in the COVID era and make sure people can earn a living and that all families and children have the education and support systems they need and deserve.
But there is also something powerful and beautiful about everything that has worked. Sick patients got care. Our infrastructure remained intact. In the end most of us got access to the food we needed, even if it wasn’t always what we wanted at the moment. Lights stayed on. Elections happened, and will continue to happen. Our trash and recycling still got picked up. Businesses of all kinds found ways to continue serving their customers, and often new and creative ways to stay viable in a new environment. There are critical conversations and reforms happening in many workplaces and communities about equality and inclusion that are long overdue. Our social and economic safety nets like unemployment and food assistance have largely (with some hiccups) answered the call.
In short, there are still reasons for hope, and reasons to be grateful for that which has given us reason to hope.
If you are annoyed with a union for demands it is making in this re-opening period, remember that the work of the labor movement we celebrate on Labor Day was responsible for so many of the benefits and protections we take for granted every day, including some that have prevented even greater calamity in our current economic climate. You don’t have to agree with any particular union position, but we should all take a breath and remember that in advocating for their members they are doing the job that has historically improved conditions for everyone and helped make it safe for people to do the important work that they do, especially in challenging times.
It is also important to pause and remember that credit belongs to all of the people who show up every day, in whatever way they can, to do the work that has kept us all going throughout the pandemic. That is, quite literally, every one of you who may be reading this post.
We will get past this year, and we will be stronger. For now, we want to wish everyone a happy Labor Day, and offer our sincere gratitude and appreciation for the part you play in the engine that keeps us all moving forward, even if we may stumble from time to time along the way.
Your Workplace in the COVID Era
We now all know or should know that the effects of the pandemic are far from temporary, even as many communities see their transmission rates dropping. Even as the state continues to re-open. The truth is our landscape is forever changed, including the workplace landscape.
For professionals and white collar workers, remote work may be here to stay, at least into 2021. For people who have to do their jobs in a physical location, the new practices and requirements about safety are likely to continue for a while. All of these things have practical and legal implications for both employees and employers.
The New Remote Work Landscape
Those of us who can have been working without going into a physical office since at least March 2020. It appears that this will continue well into 2021 if not longer. Companies that have already announced indefinite work from home arrangements for at least some percentage of their employees include Facebook, Twitter, Square, Slack, Box, and Shopify. A recent survey of 100 Massachusetts based companies found:
When people are working remotely, it is common sense advice for the employer to establish clear guidelines for productive use of time and expected results. As an employee, you too should be thinking about this. In the physical office environment, you would be able to pick up on hints or signals if someone was not happy with your work product. In a full remote situation, without clarity about expectations, you could be caught by surprise by an unfavorable review or even a termination.
Remote work, especially if some people are returning to the office and some are continuing to work from home, can raise employment discrimination issues as well. How does the employer decide who continues to work remotely and who returns? If the employees who continue to work remotely tend to skew female based on child care responsibilities, what happens when the next round of promotions passes these women over in favor of those who returned to the physical office?
The same question applies if those who choose to stay home do so because of underlying health conditions. A remote work arrangement could be seen as a reasonable accommodation for a disability. However, if remote status results in long term job or career harm, the employee might have a claim for disability discrimination under state and federal law.
It is important as well to think about the privacy of your personal information and the protection of your employer's confidential information. You may be working on your own laptop rather than the employer-provided desktop at the office. This means you are running both your personal information and your job-related information through the same system.
Or your employer may have provided you with a company laptop, and for convenience you are using it at home for both business and personal communications. In either case, you should make sure you read and understand the policies your employer has about privacy and their right to search electronic devices. These are often broader and more intrusive than many people realize, but important to understand before you expose your personal information.
The New Physical Work Landscape
A full return to a physical workplace creates many new complications for both employees and employers.
First and foremost will be compliance with the various orders and advisories regarding COVID-19 safety. The Commonwealth of Massachusetts has issued general safety standards applicable to all workplaces. These standards address the level of occupancy allowed in a building, distancing requirements, face covering requirements and cleaning and sanitation. There are also more specific standards for certain industries, which cover a broad spectrum of businesses that have re-opened or are re-opening. If you are returning to work in a physical location, you should review these standards so you can know what to look for in your workplace.
Some employers are also instituting "temperature checks" to screen workers as they arrive at work for possible infection. This is not something most employees ever had to contend with before COVID. It is likely to feel intrusive, but is probably lawful. There is a limit, however, to how much information about your health your employer can or should ask for, particularly if you have an underlying condition that might qualify as a disability or a perceived disability.
The new federal paid sick time rules have also caused some confusion in the context of re-opening. The Families First Coronavirus Relief Act (""FFCRA") requires employers to provide up to two weeks of paid sick time for employees who either have COVID or are under government or medical orders to quarantine. Massachusetts law also requires a certain amount of paid sick time if your employer has 11 or more employees. If you are sent home as a result of a temperature screening at work, you most likely are entitled to be paid for that time, at least until you can get tested and receive the test results.
The same is true if you get a COVID test because you believe you have been exposed. Many doctors will recommend that you quarantine at least until the results come in, and sometimes longer. If the reason for the test is possible or likely exposure, this time should be covered as paid sick time. However, some employers are having all employees in certain roles take a COVID test as a preventive screening measure. It is not clear that time spent in quarantine awaiting results, even if on a doctor's orders, counts as paid COVID sick time, or that your job is protected if you stay out of work waiting for results.
If you are asked to return to a physical workplace and you have a medical condition that puts you at high risk for COVID complications, you may be able to request reasonable accommodations to keep you safe. These could include working in a less populated area of the office, protective equipment such as plexiglass shields or N95 masks, or a staggered work schedule to avoid unnecessary contact with others.
If your concern is about a medically vulnerable family member at home, existing law does not provide the same protection. This is because at present there is no legal basis to ask for an accommodation to protect someone other than you with a disability.
Another consideration is what happens if you return to work and notice and report non-compliance with COVID safety guidance. You may report to a manager that mask rules are not being enforced, or distance requirements not observed, or cleaning not being done as required. This activity is not expressly protected under existing law, but may be considered by a court to be a form of "whistleblowing" that could protect you from retaliation.
Workplaces Without Borders
Right now, the discussion around remote work is focused on people adapting in their current employment relationships. However, the longer employers operate in a fully or partially remote status, the more they may begin to think differently about how, and where, they hire new employees. After all, if your local employees can be productive from a laptop in their house in Massachusetts, why not widen your recruiting net and look for talent anywhere else in the country, or even the world?
And from the employee's perspective, a remote work arrangement opens your own location possibilities wide open. It may be possible to live in a community with a lower cost of living while still earning the compensation from your Boston area job. It may even be possible to move to a different state, which may have cost of living and tax advantages.
Once the geographical boundaries of the employment relationship are blurred or even erased, new questions arise. If you live in New Hampshire and work remotely for a Massachusetts company, are you entitled to the protection of the Massachusetts wage and hour laws? Massachusetts discrimination law also includes protections that are not available under federal law or the laws of some other states. This includes protection against discrimination based upon sexual orientation and gender identify.
The analysis of which state's law to apply to an employment dispute is not always crystal clear. Without an employment contract that specifies the governing law, a court will have to determine where the primary site of the relationship is. If you are considering relocating to another state and working remotely, you should pay careful attention to any employment agreement you have signed, and specifically whether it states what law will apply to any dispute. It would also be wise to review the applicable employment laws of the state you are considering moving to, so you know what protections you might be giving up.
How We Can Help
If you have concerns about re-opening in your workplace, or just want to better understand your rights and obligations, our employment law team can help. You can call us at (781) 784-2322 to schedule a free consultation, or click the button below to schedule a call back from a member of our team.
Your Estate Plan Does Not Have to Wait
The COVID-19 outbreak has many people thinking about whether their affairs are in order. We all know that only a small percentage of people will lose their lives to the virus, but it can be sobering seeing the daily reports of deaths and hospitalizations. It also gets us thinking about what happens if we get sick and have to spend a week or more in the hospital without the ability to make informed decisions or manage our financial and legal affairs.
Many people, however, have been stymied by the stay at home advisory, and inability to meet with a lawyer to discuss estate planning. Even those who have been able to work with a lawyer remotely to prepare the documents have had to wait to sign them because the law requires in person witnesses to their signatures.
In April 2020, the Massachusetts House and Senate finally passed a bill allowing attorneys to witness and notarize documents via video-conference for the duration of the state of emergency. From now until three business days after the end of the current State of Emergency, we can prepare and finalize all of the estate planning documents you may need, without you leaving your home.
Remote Estate Planning- How Does It Work?
In order to have a legally binding will in Massachusetts, you have to sign it in front of two witnesses who are of legal age and not the beneficiaries of your will. Though not required, it is best practice to have a notary public witness those signatures. This makes your will a "self-proving" will, which means the witnesses will not need to provide affidavits or testimony to validate your will.
Other key estate planning documents have witness and notary requirements too. Your health care proxy needs to be witnessed by two people, for example. Your durable power of attorney and any trusts that you create also need to be notarized.
Existing law requires all of this witnessing to occur in person. Over the past few weeks, we have created a "quarantine workaround." Several of our clients have signed their estate planning documents in a car in our parking lot, with our staff witnessing from their own cars. Everyone is masked and gloved.
This meets the legal requirements and protects everyone safely, but is certainly an effort for all concerned. The remote notarization process is much easier.
The planning and drafting process involves a few conversations via phone or zoom between you and our team to confirm that you have chosen the documents you need to meet your goals, and to confirm details with you. It usually takes about a week to get you drafts to review, though it can be done faster if there is a need.
Once you have reviewed and approved your plan, we will send you the documents, then set up a four way video-conference with you, the attorney/notary, and two of our staff members as witnesses. We will all watch you sign the documents on video, then you will send them back to us in a prepaid overnight envelope that we provide. Once the documents arrive, we will sign as witnesses and affix the notary stamp, and send the originals back to you.
Why it is More Important Now Than Ever to Have an Estate Plan
There are many reasons that estate planning is important, with or without COVID 19. A will allows you to name guardians for your children, direct your assets to the people you want to have them, and streamline the probate process for your family.
A complete estate plan including a will and trusts can also protect your assets from estate taxes and the cost of nursing home care. It can also help your family save time and money by avoiding or minimizing the need to go through probate court to distribute your assets.
Finally, a complete estate plan includes documents that allow you to name someone you trust to make medical or financial decisions for you while you are incapacitated.
What makes this so urgent during coronavirus? It is not because you are that likely to die from the disease, based on the statistics. The real reason most people are thinking about this now is that mortality is around us generally, and they have time to think and talk about their plans with their families.
There are some reasons the crisis does make this more important, however. They include:
Planning for Illness. If you get sick and have to be hospitalized, you may not be in a position to make medical decisions or manage your financial affairs until you recover. Two simple documents (a health care proxy and a durable power of attorney) allow you to name someone you trust to fill in for you during that time.
Guardianship of Children. Anyone with minor children has some nagging concern even in the best of times about who will take care of their children if something happens to both parents. This is no less true in the age of COVID-19.
What is different is that there is a real possibility that both parents will contract the virus and be unable to take care of children for a period of time while they recover. in addition to naming a permanent guardian in your will, you can also execute a temporary guardianship document that would allow a trusted family member or friend to immediately take temporary custody of your children and take care of them while you recover.
If you have an existing will, you may already have named a guardian. This is a good time to review that decision and make sure it still makes sense. For example, if your guardian is a family member who lives in a place still struggling with the virus, you may want to name an alternate.
Protecting Your Family from Probate Court. A good estate plan can minimize or avoid altogether the need for your family to go to court to finalize your estate. It is always the case that this saves them time and money. An additional concern during COVID-19 is keeping your family from having to go to court or meet with lawyers during the pandemic.
Remote Estate Planning- What's Next?
Many of our clients are finding the remote notarization process more convenient, even if there weren't concerns about COVID. Right now, there is no legislation to make this process permanent, and our authorization to notarize remotely will end when the state of emergency ends.
That means now is a great time to get started on your estate plan, to take advantage of the convenience of a fully remote process. You can give us a call at (781) 784-2322 or shoot us an email at [email protected]. We look forward to hearing from you!
COVID 19 and Your Small Business
We recently held two on-line meetups for small businesses to discuss the COVID-19 outbreak and its impact on small business, as well as to unpack some of the recently announced resources designed to help small businesses navigate the crisis.
We are going to continue these on a weekly basis- feel free to join us for the Eastern MA meetup on Thursdays at 4:00 pm, or the Western MA meetup on Fridays at 12:00 noon.
In the meantime, we wanted to share some of the challenges, resources and information we discussed. The situation is changing every day. We will continue to post updates as we can, but in the meantime we believe we can learn from each other as small business owners during this crisis.
COVD-19 Small Business Impact
Our first two meet up discussions included small business owners in the commercial cleaning, marketing, restaurant, insurance, childcare, music, health and wellness, in-home special needs services, and in-home elder care businesses. Some of these businesses are still enjoying high demand for their services and those who are completely shut down for the duration of the social distancing orders.
This crisis looks very different if you run an essential local retail business than if you operate a bar. Many of us fall somewhere in between those two points. We may be able to operate remotely, but demand for our services may be lower. There may be a high need for our products or services, but people are less able or willing to pay for them. Or you may not be able to deliver those services remotely, for example if you are a physical therapist, massage therapist, or chiropractor.
It is important to remember that there are not "winners" and "losers" on this spectrum. Those who still have revenue coming in because of high demand still have concerns and questions about keeping their team members safe and how to handle sick leave and other employment issues. In one way or another, all small businesses are impacted by COVID-19, and we all have questions about our business survival during this time.
Assessment of Coronavirus Relief Programs
Is the Paycheck Protection Program ("PPP") right for your business? What about the $10,000 economic injury disaster loan, or other loan programs offered by the Small Business Administration ("SBA")?
These resources for small business that have been recently rolled out by the federal government feel like welcome relief. And for many they will be. But it is important to reflect on the considerations and concerns many have about taking advantage of them.
First, with the exception of the PPP and the $10,000 loan that is really a grant, all of these programs involve incurring debt for your business. The terms are very favorable, but debt is debt. Whether this makes sense for your business depends in part on how you predict the long term recovery will go.
Our restaurant owner, for example, may have high confidence that when social distancing is lifted people will return to dining out. There may even be a peak in demand, as people who have been shut in and isolated for months enjoy the luxury of returning to normal social activity.
Our businesses who provide in-person health and wellness services, especially those who offer those services through corporate employers in the workplace, may have a different projection. It may take more time for consumers to feel comfortable receiving services that require actual hands-on treatments. Workplaces, moreover, may adapt to different models of delivering wellness training and assistance during the crisis.
These are just two examples, and there are likely as many other examples as there are types of businesses. The bottom line is that we need to each be doing our own forecasting, with as much information as is currently available to us, to be sure that taking on an additional debt burden is the right choice for our businesses.
Second, even the PPP carries some risk of debt obligation. At least 75% of the forgiven amounts must be spent on payroll. The forgiveness will also be reduced if you are unable to maintain or restore headcount during the relief period. This means if the situation gets worse instead of better and you have to lay off staff despite the loan, you may lose some forgiveness.
Also, the total amount that can be forgiven is eight weeks. This means if your business slowdown is likely to last more than eight weeks, you will either be borrowing money through the PPP or through one of the SBA loan programs.
Decisions About Layoffs or Furloughs for Staff
Another hot discussion topic were recent and pending changes to unemployment benefits. For your employees, their state benefits will now be enhanced by an additional $600 per week from federal funds. They can also collect partial unemployment if their hours are reduced, even if they do not lose their job entirely.
It is important for business owners to remember that anyone on their payroll is also entitled to new paid sick and family leave benefits under the Families First Coronavirus Response Act. This is another potential, if not probable, cost that should be factored into your decisions.
All of our participants who have employees were concerned about their team members and wanted to help them during this difficult time. Some had already implemented layoffs; others were considering whether to use PPP or other SBA funds to avoid layoffs or reduced hours. It is important to do the math here- your team members may be as well off or even better for the short term collecting unemployment, and may reap greater long term benefits from your business' financial stability after the crisis.
Unemployment Benefits for Sole Proprietors and Owner-Operators
One of the most fundamental changes in the federal COVID-19 relief packages is the expansion of unemployment benefits to include independent contractors and self-employed individuals.
This could be a lifeline for many business owners. As of this writing, however, Massachusetts has not implemented the change. As a result, a self-employed individual applying for unemployment will be screened out in the online application.
All indications are that this will be sorted out within the coming days. Many are attempting to get their applications in anyway through the telephonic application process to preserve their application date for the calculation of benefits. If you choose not to do this, you should watch the news for updates about Massachusetts' implementation.
Relief From Other Financial Obligations
Where increasing or maintaining revenue is largely out of your control, another place business owners are looking is how to control and reduce costs outside of payroll. Many banks, large insurance carriers, and other creditors are willing to discuss alternative payment arrangements during the crisis.
If you rent space for your business, you should also consider reaching out to your landlord to discuss deferral or forgiveness of certain monthly rent payments. If your landlord has business interruption insurance that covers this situation, they may be willing to be more flexible. Even if they do not have applicable insurance, most landlords would rather keep a good tenant through a temporary crisis than deal with a vacant space for the duration.
Finally, there is pending legislation in Massachusetts that would put a temporary moratorium on evictions and foreclosures. As of this writing, it is unclear whether the final bill will include commercial tenants or only residential tenants. If the bill passes and includes a moratorium o commercial evictions, you may be in a better position to negotiate with your landlord.
Remember, though, that whatever short term arrangement you reach with any creditor, eventually it is likely that you will eventually have to make up the difference. Like consideration of available loan products, it is important to be clear about what you think the medium to long term future looks like for your business.
This is a frightening time for everyone, and small business owners are no exception. We hope you can join us on our weekly video meetups and be part of the conversation and support. You should also feel free to reach out to slnlaw at (781) 784-2322 or by email at [email protected] if there is anything specific we can help you with.
Charitable Gifts and Your Estate Plan
Creating an estate plan may not seem like the most fun activity, but it can be meaningful especially if you choose to leave a legacy through charitable gifts.
You may already be building that legacy now with current donations to nonprofits. However, you can continue to make an impact with your estate after you pass. Further, your donation will be beneficial to other recipients of your estate, as charitable giving reduces the amount of taxes your estate is subject to.
Let’s discuss the process of incorporating charitable gifts into your estate.
Determine Your Passions
Charitable gifts can be given to nonprofits, religious organizations and schools. However, only you can determine which of these organizations you’re passionate about, or maybe grateful for. A good way to find your passions is to see where you’re currently giving your time and money.
A way to evaluate the quality of a charity is to confirm that the majority of the funds received goes toward the charity’s work, rather than administrative costs. If you’re comfortable with their financial practices, you’re on the right track. Another aspect to consider when selecting charities is what assets you would like to give to them, and whether they can receive it.
Evaluate Your Assets
The next step in the process is to evaluate your assets. What do you want to give to a nonprofit? This step is a good time to consult with an estate planning advisor. An advisor can help you take stock of your assets and determine a strategy that helps optimize the giving benefits you and the nonprofit.
For example, you may want to give a large gift upon your passing. However, it may be more beneficial to you and the nonprofit to give a certain amount after you pass but divide up the remainder of the sum to give while you are alive. That way you can receive tax benefits, leaving more funds for the nonprofit, and possibly other beneficiaries of your estate.
In any case, strategies are best determined with an advisor and are contingent on your giving method.
Determine Your Giving Method
As mentioned previously, make sure that a nonprofit can receive a gift in the manner you intend. Most nonprofits accept cash, but others are capable of receiving other types of benefits, such as the following.
While it’s beneficial for anyone to include charitable gifts into their estate plan, it’s best to review the plan with an advisor to ensure you are doing the most good possible with your estate.
If you are ready to start the process of leaving a legacy by incorporating charitable gifts into your estate plan, contact SLN Law. We are excited to help you on this important and meaningful journey!
How a Poor Estate Plan Can Cost Your Children Money
Setting up an estate plan is not always the most enjoyable activity, but it’s worth the effort because of who you’re setting it up for — often your children. With an estate plan, you can give your children a gift, and you want to leave them as many of your assets as possible.
However, what if your estate plan is set up so that your children may receive only a portion of what you intend — or the estate might even end up costing them money? We will discuss mistakes that can lead to these unfortunate situations, and how to avoid them.
Disputes over your estate or neglecting to set up an estate plan that includes a will or trust can result in the need for your assets to go through probate court for distribution. Going to court to address your estate can cost your children money in the following ways:
Trusts are multifaceted and can cost your children money if they are improperly set up in regard to the following areas: management, recipients and special needs eligibility.
Without precautionary measures, your estate can be vulnerable to taxes and seizure. Be sure to prepare your estate for the following situations.
You go through the effort of creating an estate plan so you can leave a gift to your children. Reviewing the above components of your estate plan can help ensure not only that your effort counts, but that your children easily receive your gift as you intended.
If you would like help ensuring your children receive exactly what you plan for them to inherit, and you want to avoid costing them money, contact the lawyers at SLN Law. We will help make the estate plan process more beneficial for you and your children.
Understanding Alternative Dispute Resolution (ADR)
Legal disagreements are a part of life – whether in individual or business matters. Sometimes those disagreements require the decision of a judge in court (litigation). However, some matters can avoid the courtroom by using Alternative Dispute Resolution (ADR).
What Is ADR?
ADR encompasses methods of settling a legal disagreement outside of the courtroom. There are several methods including conciliation, negotiation, neutral evaluation, mediation and arbitration.
However, the most common methods are mediation and arbitration, which we will address here.
Types of ADR
Mediation is a type of ADR in which a neutral third party called a mediator helps the disputing parties resolve their disagreement. Usually, mediation is informal and the disputing parties can work together to find a solution. The mediator does not make a final decision or determine who is “right and wrong.” Instead, the mediator helps the two groups come to a voluntary settlement. Learn more about mediation here.
Arbitration involves a third party who acts as the “judge,” and whose decision is final. During this formal process, the two parties involved submit documents for review, but are not involved in making a decision.
Benefits for Businesses & Individuals
There are several benefits to ADR for both individuals and businesses.
Is ADR Right for Your Situation?
ADR can be for both individuals and businesses in a variety of situations. See examples of disputes below.
Individual ADR could cover:
Business ADR could cover:
This list is not exhaustive, but gives a broad range of possibilities.
Do you think ADR might be a good option for your dispute – or want legal counsel to determine if it is?
The lawyers at SLN Law can help you decide, as well as navigate your dispute. Contact SLN Law for more information.
Must Ask Legal Questions for Startup Businesses
Leading a startup means asking questions while you develop a robust network of business partners. This often includes a lawyer who can assist with everything from drafting contracts to advising on tax filings. Whether this is your first startup, or you are a serial entrepreneur, make sure to ask these five legal questions during the business development process.
1. Can We Use This Name?
Choosing a business name is an early milestone. Be careful about committing yourself to a name right away, however.
Start with basic online research. Can you find another business with that name? For example, does someone already operate at thatname.com or thatname.org or thatname.net? If the answer is yes, they may have registered a trademark that legally bars you from using the name.
In addition, some states and municipalities have naming conventions for their businesses. You must be compliant with all the regulations that apply to your geographic operations. Legal partners can help navigate the process of identifying a name that works for your circumstances.
2. What Type of Business Are We?
Startup businesses often have questions about creating their business entity, particularly in terms of what kind best suits the nature of the business. Forming the entity is important because it can legally separate your business liabilities from personal assets and provide a level of protection to both. If you are a sole proprietorship or dba and do not create a formal entity, you will not have this protection.
Once a legal structure is selected – LLC, C-Corp, S-Corp, nonprofit or other – business owners are then responsible for registering for operation. It is crucial to complete every step, so that you are not liable in the future.
3. When Should We Protect Our Intellectual Property?
It is never too early to think about legal protection for scientific research, new product designs, or your business logo and tagline. They are all aspects of intellectual property because your business would suffer if another organization tried to leverage them in competition.
The precise timing to trademark can be difficult. Trademarking may be an unnecessary expense if the business has not yet taken off, but you want to be ready to file once the business is up and running.
Consider engaging a lawyer to identify the words and images that are entitled to protection, search the trademark database, and even prepare the applications for registration.
4. What Sort of Contracts Does Our Business Need?
It is important to document everything in writing because those contracts will be invaluable if you ever end up in court. That said, the nature of the contracts are typically specific to the startup. They likely cluster around four audiences:
· Clients or customers
· Business partners
Getting a business lawyer involved with your contracts does not mean densely worded, incomprehensible legal documents. Your expert will simply ensure the essentials are documented, so you do not have to worry about ambiguities in any of those key relationships.
5. Is Our Business Legal Right Now?
There is a complex network of local, municipal, state and federal laws pertaining to business operations that startups must comply with from Day 1. For example, you may need to secure a license based on your company type and location.
Failing to adhere to those laws can lead to fines, penalties and other legal liability. Worst-case scenario, your business could be shut down altogether.
Connect with a knowledgeable attorney and your municipal government to identify all the applicable rules and regulations. Also, consider developing a relationship with the government offices that regulate or inspect your business and go to them proactively with your questions.
Unfortunately, rules and regulations frequently change, so you also need to stay on top of keeping your business compliant.
With advance planning you can avoid the legal challenges that startups routinely face. Ask questions early and often while working with someone who understands startup legal operations. Contact us at SLN Law for more information.
Common Legal Mistakes for Small Business
Small business owners face the risk of making legal mistakes every day. They are required to make quick decisions. Few step into the role with experience as manager, employee, director of operations and head of sales – just to name a few of the hats you’re expected to wear.
Avoid the following four legal pitfalls by carving out time for preparation and legal guidance. It could be invaluable in the long run.
Legal Mistake #1 – Failing to Organize & Register the Business Entity
Entrepreneurs may put off creating a business entity due to cost or lack of experience with the process. However, forming the entity can legally separate business liabilities from personal assets and provide a level of protection to both.
There are many resources available to teach first-time business owners about the difference between legal structures, such as sole proprietorships, partnerships and corporations. Once a legal structure is selected, business owners are then responsible for adhering to federal and state regulations around registering for operation.
Business attorneys can guide owners through the process or handle it entirely. Either way, it is crucial to complete every step, so that the business is not open to future liability.
Legal Mistake #2 – Not Putting Agreements in Writing
Never work without a written contract. It forces all parties to agree to exact terms. However, contracts do require time to work through and finalize.
Small business owners may justify “handshake deals” because they are engaging known vendors and contractors. In practice, if an issue in these circumstances goes to court, it typically ends up as a “he said/she said” fight with no guarantee of how it will resolve.
Business owners can work with their lawyer to establish a standard contract template that reflects the parties a business regularly works with – vendors, contractors, employees, customers, etc.
The clearer the contract, the easier it is to enforce if the business ends up in court for any reason.
Legal Mistake #3 – Failing to Protect Brand & IP
Many small business owners do not distinguish intellectual property (IP) with its unique categories or take time to determine how to best protect each type.
Do not wait until a competitor attempts to steal the “secret sauce” or claim rights to it. It will likely be too late to secure legal protection.
An easy first step is to inventory both current IP assets and the intent for future IP development, and then create a plan to protect it all appropriately.
Legal Mistake #4 – Not Preparing for Employment Issues
Taking on employees is a major milestone for small businesses. Good employees will help fast-track business growth. Subpar employees may intentionally or unintentionally undermine business objectives. The worst-case scenario is when bad employees become legal liabilities due to harassment, theft, or other legal issues that require time and money to resolve.
Avoid this problem by developing a legal strategy in advance that addresses all the relevant laws around hiring, managing and dismissing employees. This strategy should include creating an employment policy that covers terms of employment, disciplinary procedures and procedures for filing and dealing with complaints.
Hiring the right employees is important, but issues arise unexpectedly. Preparing for them in advance is the best way to protect business interests.
If you have questions related to business or employment law, you can call us at (781) 784-2322 or book a free consultation.
What Small Business Owners Should Know About Trademarks
Whether your business is still just an idea, or you are going full steam ahead with active customers, it is never too early to think about legal protection for your business name, logo, tagline, or other distinctive words or images your customers associate with your product or service. One relative easy thing you can do as soon as you have begun using those words or images publicly is apply for trademark protection.
What a trademark is: Once you begin using a name or a logo (a "mark") in business, you have some protection for that mark even if you do not register for trademark protection, if you are the first to use the mark and if it does not violate another company's registered or established mark. The danger is that those are two very big "ifs," and you might find yourself building a following around your brand name only to be met with a cease and desist letter from some company you have never heard of who had previously registered that trademark- something that has happened to at least one business we know of in recent years.
Why register a trademark: Registering a trademark will do 3 things for you:
How do you know if you can get a trademark: In order to get trademark protection, your mark must be distinctive, not generic. For example, you cannot trademark the word "food," but trademarks have been granted for names like "myfoods," "bliss foods," and "food made fabulous." If you have a distinctive logo, that can also be protected, with or without words. You can do a quick search on the USPTO trademark database to see if your business name or tagline is trademarked by somebody else- even if it is, it is worth further inquiry. If a name is registered for a different category of goods or services than what you provide, it may still be possible to register your mark, though this can be a little more complex and will require you to demonstrate to the USPTO that your use of the mark in your area would not cause customers to be confused about the two brands.
How to apply for a trademark: You can apply on your own using instructions from the USPTO. The filing fee is $250 for each classification you are seeking protection in. For example, if you were to register "xyz foods" as only "staple food products," you would pay one filing fee, but if you wanted to register it also under "meat and processed food products," you would pay a second filing fee. If you choose to only do one, all that means is that you only have protection in that classification, and someone else might be able to come along and register "xyz foods" under the second classification.
Does a trademark protect written or creative work? Generally, creative work is covered by a separate body of law known as copyright law. Similar to trademarks, a common law copyright ownership attaches as soon as you create and publish your work (a story, picture, movie, song, etc.), but your ability to protect and enforce those rights (and to establish your authorship and timing of publication) is much easier if you register the copyright, which is a separate process from registering a trademark. where this can get confusing is with logos- are they creative works subject to copyright or a mark subject to trademark? The simplest answer is that the difference is whether the image is used in commerce to identify your company or your brand (as opposed, for example, to an image created to augment content on the website, not necessarily to identify your company- think infographics or other images used to illustrate a point).
A note about copyright: Just because protection for creative works is distinct from trademark protection for your brand doesn't mean you shouldn't worry about it. Images that you get from the internet, unless you have gotten them from a service that has already paid royalties or owns the images itself, could be subject to someone else's copyright, which means at some point the owner of that image could demand that you take it down and/or seek royalties for your use of the image. Additionally, many if not most small business owners who hire a graphic designer to create images for them do not think through or clarify with the designer what rights they have to the images after the engagement is complete. From the business owner's perspective, an agreement that specifies that the whole project is "work for hire," meaning the intellectual property belongs to the company hiring out the work, is ideal. But remember that a designer might have a legitimate desire to limit the rights in the work, for their own use as well as to keep the business owner from taking their work to a competitor to augment or incorporate in other designs.
To hire a lawyer or not? You can register a trademark on your own, especially if you find no evidence the name is taken by someone else, in which case your only cost is your time and the filing fees to the USPTO. There are also online services that offer filing packages and a basic search for existing marks. What is missing from both of those is a specific legal analysis of the likelihood that your mark will be accepted if there are other, previously trademarked names or logos that are similar to yours. This could leave you out the $250 filing fee (or more if you are seeking multiple classifications) if the USPTO rejects your application as too similar to another registered mark. In contrast, knowing ahead of time that the mark will be challenging to register could lead you to revise your words or images to facilitate the trademark process, which is always easier to do early in your business life before a wide base of your customers have gotten to know your visual brand.
Additionally, because you can get into dangerous waters without even knowing to be concerned about it (see discussion about copyright above), you would be advised to have at least an initial consultation with a lawyer early in the process so that you can be on the lookout for issues that could cause problems down the road, and take proactive steps to protect yourself.