Rush on Business : Iowa Corporate Lawyer & Attorney : Rush Nigut of Brick Gentry Law Firm : Serving Des Moines, Cedar Rapids, Davenport, & Sioux City

Are you considering a franchise business?  Read this blog post on evaluating the strength of your franchisor before signing on from the First Prize Franchise blog.

I posted on this a couple of years ago but  I consistently see people who invest their life savings tinto franchise operations.  Some of these people achieve great results but many (perhaps even a majority) do not. What separates the good from the bad? 

One critical aspect to consider in my view is the brand itself.  Is the brand recognizable?  If not, the franchise better have a fantastic system, unique concept or protected intellectual property.  Otherwise, I think you need to question up front whether the franchise is right for you.

There is no also validity to the claim that franchise operations are less likely to fail than non-franchise operations. The truth is that franchisees fail at a rate that is similar to non-franchise businesses. In fact, the International Franchising Association has discouraged all franchisors from making such claims.  So careful due diligence is important when considering a franchise opportunity. One of the best things you can do is talk to as many existing (and former) franchisees as possible. Also, consider several key disclosure issues including:

1. Franchisor's litigation history;
2. Amount of the initial investment;
3. Vendor rebates and products you must buy from the franchisor;
4. Earnings claims made by the franchisor;
5. Franchisor's financial statements;
6. Trends concerning the number of outlets.  It is important to closely review the information regarding outlets. Carefully study the number of transfers and not just the number of closures.  A high number of transfers may be an indication that franchisees in the system are struggling, but bad stores have not been shut down. 

And finally, be willing to walk away. This is the paradox of successful negotiation. Those that are willing to walk away usually find they get more in negotiation, especially in today's economy. Many franchisors are willing to make a deal these days. Don't get in a hurry in your negotiations. You may be able to secure important concessions if you are patient.

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Growing Des Moines businesses may want to consider a six month program offered by the Small Business Administration called the Emerging 200 (e200) Initiative.  Locally the course is taught by Monica Dolezal of Bizstarts.  The program begins in April.

The goal of e200 is to identify 200 inner-city businesses across the country that show a high potential for growth and to provide them the network, resources and motivation required to build a sustainable business within a designated inner-city geographic location.

The cornerstone of the e200 initiative is an in-depth educational program running approximately 80-100 hours, to be held two half-days per month from April through October, 2010. It will focus on topics such as organization management, finance, growth strategies and management, market development, and strategic planning.  Small business executives in the e200 Initiative participate in an intensive and comprehensive program, draw from each other's experiences and expertise, develop connections with local capital providers, and complete a growth plan by the end of the program.

Participation in e200 is free to qualifying businesses. Criteria for participation includes having been in business for a minimum of three years, $400,000 or more in gross annual revenues, and a business location within the City of Des Moines. Participation will be limited to only 15 businesses in Des Moines and 200 businesses nationwide.

For more information contact Monica Dolezal of Bizstarts at 515-229-2345 or the local Des Moines SBA office at 515-284-4522.

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A common thing I see from franchisees is that they include only the name of their franchise in an agreement as opposed to including their corporate or limited liability company name. Most of the time the names are different. For example, if my franchise is "Tops Franchise" but my corporate name is "Rush Nigut Enterprises, Inc.", I need to make sure the corporate name is included in the contract. 

I had this exact thing happen to a franchisee client. He failed to include the name of his corporation in a contract and used only the name of his franchise. The court ruled that he was personally liable for the debt because he had not disclosed to the other side that he was signing in a corporate capacity.

So be careful to always include your corporate or LLC name and sign with your title, (i.e. President, Vice-President, member, etc.).

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A bill in the Iowa Senate could require all businesses to provide paid sick leave to their employees.  My gut tells me many small businesses cannot afford to provide paid sick leave.

What do you think? 

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This is a part of an on-going series of posts which will form the Legal Guide for Starting a Business in Iowa.

You are considering forming an Iowa small business. What type of business structure should you choose? In Iowa, your choices generally are a sole proprietorship, a partnership, S corporation, C corporation, or a limited liability company. There are others but these are the main entities to research.

Some of the factors to consider in choosing a business structure are:

1) Personal liability protection;
2) How profits are taxed;
3) Ability to take advantage of fringe benefits;
4) Ease in raising capital.

A sole proprietorship is the easiest to set up (you generally do not need to take legal action) but you have unlimited personal liability. In today's sue happy society it is probably a good idea to consider a form of business that provides you with personal liability protection like a corporation or LLC.

Similarly, a partnership is also easy to set up and involves two or more people. A partnership requires no formal documentation but a partnership agreement is preferred. Like sole proprietorships, you and your partners have unlimited liability. With the ease of setting up and operating a limited liability company, a partnership is usually not recommended given today's litigious society. 

Traditionally, most small business owners selected the S corporation as their form of business. The S corporation is often a good choice because it provides you the limited liability you need but you avoid double taxation because all business profits are taxed to you as an individual.

The limited liability company has exploded in popularity over the past decade and also provides limited liability and avoidance of double taxation. An LLC may offer flexibility not available with corporations when it comes to ongoing requirements, its ownership and how the owners are paid.

The C corporation has traditionally been used for larger businesses but accountants may recommend this entity because the owners can take advantage of certain fringe benefits. Also if you need outside capital, a C corporation may make it easier to attract investors such as venture capitalists.

So which business structure should you choose? Before choosing a business structure it is wise to talk with an accountant. The accountant can review your financial situation with you and advise you on the best strategy for your business. In my view the choice of a business structure usually boils down to tax treatment. So talk to your accountant first and then go to the business lawyer to set up the business entity.

Our next posts in the Legal Guide to Starting a Business in Iowa series will examine the S corporation, limited liability companies and C corporations in more detail.

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This February is National Start a Business Month. To celebrate I am offering to form any Iowa incorporation or LLC for half the price during the month of February 2010.  It's my small way to encourage business start-ups and help out start up entrepreneurs.

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A couple of years ago I set out to write a Legal Guide to Starting a Business in Iowa. Unfortunately trying to work, write a blog, coach baseball and write the guidebook didn't quite work for me. I started the guidebook but never came close to finishing it.

So this year I have decided to blog the guidebook. At the end of the project, I'll have my book and hopefully Iowa entrepreneurs will have something that is helpful and informative.  The project may take several months so most of the information on the blog over this time will be very general in nature rather than dealing with current events. I'll still blog on current events as appropriate.

Thanks for your continued support and have a happy New Year!

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A couple of years ago I touched on how wage and hour lawsuits were on the rise. Since then Iowa's own Casey's General Stores got tagged for $11.7 million in a settlement.  But not even I could have predicted the potential $1,000,000,000 liability that AT&T allegedly faces for failure to pay overtime. Yep, that's a BILLION dollar claim!

Naturally that kind of pie in the sky number might leave one to think, "It's never going to happen to me, my business is much smaller and I won't be a target." But when you look at the fact that experts believe approximately 70 percent of businesses are out of compliance with wage and hour laws, you shouldn't be quick to shrug off the prospects of a process server knocking on your door. All it takes is one disgruntled employee to contact the Iowa Workforce Development or the Department of Labor and you could find yourself in the middle of a wage and hour dispute.

So what are some helpful tips to avoid wage and hour lawsuits? (The outline below is from an earlier post.  The comments from some prominent employment attorneys are especially good).

• Conduct a Wage and Hour Review.  Your first step should be to get with an employment law attorney or other wage and hour/human resources specialist who can review your pay practices to determine whether you are in compliance with the law.  The cost spent for a review and developing a compliance program could save you tens of thousands of dollars in the long run or perhaps even millions if you run a large company. 
• Train Managers.  Making sure managers understand the rules is paramount.  Managers can avoid costly mistakes and spot problems before they become too costly.
• Think Exempt-Non Exempt, Not Just Salary - Hourly.  Too many employers pay employees a salary and then believe that relieves them from any obligation to pay overtime.  Employees need to make sure those employees are properly classified as exempt (someone who is typically not paid overtime) or non-exempt (someone that is generally entitled to overtime).
• Take Complaints on Wage Issues Seriously.  You want to treat wage and hour complaints just as seriously as employment issues including harassment or discrimination.  In fact, these wage and hour lawsuits could be more costly to your business.
• Do Not Retaliate.  Never, never, never retaliate against someone that makes a complaint for wage and hour issues.
• Develop strong policies on pay practices and employee hours.  Make sure employees work those hours assigned and do not work off-the-clock.  Above all, properly document the number of hours worked because just like in baseball where a tie goes to the runner - if the employer has not documented the hours worked by the employee - the benefit of the doubt will go to the employee. 

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An article in Barron's supports, in a big way, the importance of keeping good business records. The article details how the IRS disputed a $75,000 repayment of a loan for a business owner named Henry resulting instead in a $68,000 dividend, on which Henry owed tax. 

Joseph Gelband, a tax attorney from Larchmont, New York, wrote the article. He provides some wise counsel for business owners:

[Henry's] story points to the importance-especially for a closely held corporation-of observing formal business practices, if for no other reason than to create a record.  Minutes should be kept, and updated at least annually. Executive salaries, bonuses, and loan transactions should be reflected in those minutes, which should be reviewed by the company's accountant when statements are prepared.  The existence of that kind of paper trail would have left Henry in a much stronger position.

Now is a great time to document those transactions before the end of the year. 

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The Franchise King has a great list of 20 small business blogs that have the right stuff. These blogs possess some of the best content on the Web when it comes to small business. Be sure to check them out!

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Throughout this blog you will see posts that recommend business people enter into a shareholder agreement when they start a corporation with multiple shareholders. But did you know that unless your shareholder agreement states otherwise, your shareholder agreement may only be valid for 10 years pursuant to Iowa corporate law?

Chapter 490.732 of the Iowa Code seems to indicate exactly that (although I have never seen it applied in a case yet). I think this is something that maybe even some of the most experienced corporate attorneys may not realize. So don't be surprised. You should review your shareholder agreement. If it is more than 10 years old, it may no longer be valid and a new agreement may be necessary.  If the agreement is less than 10 years old it may be a good idea to revise it so there is language indicating the agreement applies for more than 10 years. 

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I had the pleasure of sitting down for an interview with Michael Libbie yesterday. We talked blogging, discrimination cases, franchising and other issues.

If you didn't catch it live you can watch the podcast here. (The interview begins at about the 30 minute mark).

If you haven't heard about Des Moines Local Live, you should check it out. It's an Internet radio station with 50 local radio hosts talking everything from business to sports.  A real testament to Des Moines' Internet-blogging presence.

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Need capital for your business? Looking for an investor? If so, you should take the opportunity to attend a seminar from the Business Innovation Zone of Central Iowa (BIZ) on how to get your business into shape and attract an investor's eye.

Adam Claypool of DeWaay Investment Banking is the speaker. I have worked with Adam on several occasions so I know this will be a worthwhile opportunity to listen to one of central Iowa's more prominent investment bankers. The presentation is this Wednesday, October 21st at the Des Moines Partnership offices, 700 Locust Street, Suite 100, Des Moines, Iowa. It begins at 11:30 a.m.

Afterwards you can listen to me on the radio this Wednesday at 1:00 p.m. with Mike Libbie offering insights on business on Des Moines Local Live.

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Megan Erickson of the Dickinson Law Firm has started Erickson's Blog on Social Networking and the Law.  Now that's a blog that will have a never ending flow of posts.  She already has an interesting array of posts including one where a business owner got slapped with a $2 million libel lawsuit for Facebook and Twitter posts.

This is one blog I'll be sure to follow.

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The title of this post may be a little tongue-in-cheek, but I would say at this point I am forming perhaps 2-3 times as many LLCs as S corporations.

It still doesn't mean you should rule out the S corporation as your entity of choice. It could be the entity for your situation. Joe Kristan, an accountant with Roth and Company in Des Moines, explains in a recent post who can and should own a S corporation. 

It's important to note that a decision to form an s corporation or LLC is often as much a tax driven question as it is a legal decision. That's why I encourage all new business owners to contact an accountant, in addition to a business lawyer, to determine which business entity to form.

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Liz Overton of Sullivan & Ward, P.C. has a timely post on how employers should deal with the H1N1 virus. 

While it's true that employers are currently under no obligation to allow additional time off to employees who do not have available time off or have exhausted their available leave, I could easily see employers facing a tough dilemma about whether to adjust their leave and/or PTO policies if a significant outbreak of H1N1 occurs at work, or perhaps even in our schools. 

Have you considered what you will do as an employer if a significant outbreak occurs?  Will you make changes in your policies? Whatever you decide, consistency and fairness are keys to avoiding legal problems.    

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Okay, you have decided you can do it on your own. You don't need a lawyer to review your agreement (at least until the proverbial you know what hits the fan).  But let me give you some MasterCard commercial-like "priceless" advice:

READ YOUR AGREEMENTS. 

I am honestly not trying to be a smart aleck when I say this. I cannot tell you how many times I have seen really smart business people fail to follow this simple plea.  Just reading and actually understanding your agreements will help you avoid a great deal of trouble - with or without a lawyer.

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You've probably seen them in your contracts. Miscellaneous provisions such as choice of law, litigation venue, successors and assigns provisions, no waiver, entire understanding, or supersede clauses.  They tend to always appear at the end of the contract and are almost always an afterthought by the parties. After all, those provisions don't mean anything, right? 

Wrong.

Often when a contract claim proceeds to litigation these miscellaneous provisions are outcome determinative.  Take for example the litigation venue provision.  Let's say you are a small Iowa company and the contract specifies that your case must be heard in the courts of Los Angeles, California.  This means you must be prepared to fight the case in Los Angeles or you may automatically lose your case. The California venue will almost assuredly drive up the costs of litigation over an Iowa venue. First, your Iowa lawyer, unless he or she is licensed in California, will need to get local counsel in California. Chances are the California local counsel will charge a substantially higher hourly rate than here in the Midwest and you will likely need to travel for court hearings and other proceedings.  WIthout the money to fight, you are doomed from the outset regardless of how good your case may be. Plus, without a history with the judges in that state it is often difficult to predict the outcome of issues which could put you at a real disadvantage.

That's just one example. The other miscellaneous provisions in your contracts can come back to bite you in other ways. My recommendation is to carefully consider these provisions and don't treat them as an afterthought. If litigation occurs, you may be very happy you did.

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Tiger Woods is the greatest golfer of his time. He was such a lock going into the weekend of the PGA Championship that an Irish bookmaker actually paid out the winnings on Tiger before the third round even started -- oops! I'll admit that I never could have imagined Y.E. Yang would actually pull it out for a victory.

But all of this provides a good lesson about trial law. You just never know what will happen when you go in front of a jury or judge. The case you thought was a lock may not be so.  When we are in the role of representing the underdog (which is often the case) I love it when the other side says we can't win. It motivates us, and frankly, it takes much of the pressure off. If you're not supposed to win you have nowhere to go but up!

So thanks, Y.E.. You proved why the game must be played, no matter who is in the lead (or who thinks they have the case that can't be beat).

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A recent case reported in the Des Moines Register discusses how a handshake deal on the sale of a home went awry for a man that apparently invested over $100,000 in a home - only to learn the home was not his.

Actually there was a one-line agreement in this instance which read, "I Floyd A. Schake agree to put 1500 E. 9th on contract with Billy Erico Stockbauer on 1 Feb. 1989." Schake argued successfully to the court that the language meant he intended to sell the home on contract in the future but the deal was never made.

While the axiom is to get a contract in writing, it is especially critical in real estate deals where oral contracts are generally not valid. The judge in the case ruled that the language did not set out the terms necessary to convey the property.  It's fairly easy to criticize Stockbauer for not having an agreement that set out all the terms but this type of thing happens much more than anyone would ever imagine.

That's why the old adage holds, "get it in writing."

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How Business Gets Done, Words of Wisdom from Central Iowa Experts has hit the virtual bookshelves at www.lulu.com. I am honored to be a contributing author with several respected peers in our business community. My chapter is on the Partnership Prenuptial where I discuss the importance of drafting a  buy-sell agreement from the beginning of your business relationship.

The costs of litigating a business dispute can easily run in excess of $100,000 per side while a buy-sell agreement usually costs less than a a couple of thousand dollars. Unquestionably most business owners would rather concentrate on running their business than spending time in court.

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Major league baseball teams have not exactly been known for their employee relations over the years. But the Boston Red Sox are an excellent example of how treating employees the right way can pay big dividends. 

Read attorney Jay Shepherd's post on Division-leading employee management to find out why.

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 I am proud to be one of the authors of How Business Gets Done: Words of Wisdom By Central Iowa Experts. Thirty-two experts from Central Iowa have collaborated to share their best practices on a variety of subjects including marketing, leadership, accounting, and legal. It's a great desk reference for any entrepreneur.

Visit lulu.com to pick up a copy of the book. Proceeds go to fund scholarships through www.bizci.org. Hats off to Mike Colwell and Drew McLellan for masterminding such a great book.

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Whether you are starting a business from scratch or buying an existing business you should consider setting up a corporation or limited liability company (LLC) before you actually sign any agreements or documents relating to your new venture. To the extent possible, avoid signing any contracts, loan agreements or leases in your personal name. In many cases, however, you may be required to personally guarantee the loan or other debts but it is still recommended that you place those agreements in the company name. It is often surprising how the start-up documents may impact litigation issues down the road. If those agreements are in the business name it may help you avoid personal liability on unknown issues in the future. One of the most important reasons for starting a corporation or LLC is to protect your personal assets from the risks of the business. It is smart to start right from the very beginning.

A post from Ohio business lawyer Terri Rasmussen describes how one person went a little too far in trying to avoid personal liability. But the underlying advice in the blog post cannot be minimized. It is critical to sign documents in your corporate capacity (i.e. "President" or "Vice-President") and if you are signing on behalf of an LLC you should sign as "Member". Using catchy marketing titles such as "Big Cheese" or "Chief of Results" has no place when you are signing documents that could bind your business and subject you to personal liability. 

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Looking for money for your business? Check out the entrepreneurial resource guide from Biz. The guide explores and explains grants, loans and assistance programs.

I am excited to speak at the Biz on How To Choose the Right Business Structure for Your Business. The presentation is June 17th at 11:30 a.m. The admission fee is $10.00 and lunch is provided. 

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From time to time I enjoy featuring a business law blog worth reading. The San Diego Small Business Law Blog from Joseph Dang is definitely one to check out. Although the blog is centered on California law, Joseph has a number of general posts that are helpful to any small business owner.

In particular, I encourage you to read his posts on business formation and incorporation. Real good stuff!

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I'll be speaking about the dangers and pitfalls of the electronic workplace this afternoon at the Iowa Employment, Training and Benefits Conference sponsored by HR-One Source. 

Matt Brick and Doug Fulton of Brick Gentry are also presenting at the conference.  Matt is providing the employment law update and Doug will present on FMLA basics. 

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A few weeks ago I attended a conference relating to venture capital in Iowa. During the talk several of the panelists commented that they would not sign a non-disclosure agreement prohibiting them from discussing a potential business idea they learned about from someone seeking capital. The venture capitalists did not want potential liability for ideas that they might hear several times in a week. Almost every single panelist indicated that sliding a non-disclosure agreement over the table at the beginning of the meeting was a deal killer.

That discussion led into a great discussion involving non-compete agreements and employee non-solicitation agreements. The participants had mixed feelings about non-compete agreements. It is often tough for entrepreneurial types to admit that restricting another person from competition is a good idea. However, all were committed in the importance of employee non-solicitation agreements. An employee non-solicitation agreement prevents one of your employees from hiring one or more of your employees for a set time period, generally about 1 year.

In the end the panelists believed that the human capital was critical to the success of the business, perhaps even more so than the clients themselves. An interesting take indeed. 

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A terrific post from employment attorney Ellen Simon discusses the potential liability and hazards when an employer accesses the personal emails of an employee. The actions of the employer described in the post were extreme but every employer should think twice before accessing an employee's personal email.

I have discussed the dangers of the electronic workplace in several presentations over the past several years including last year for the Central Iowa SHRM Chapter. I'll be giving a similar presentation at the upcoming Iowa Employment, Training and Benefits Conference on April 21, 2009. The conference is sponsored by HR-One Source. If you are an employer in Iowa, we hope to see you there.

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 I am excited that the Wall Street Journal featured Rush on Business as one of the blogs that provide insight for would-be franchisees.  One of my passions for a long time on the blog is providing information to franchisees on pre-investment due diligence.  Recently I ran across a potential franchisee that was told by a franchisor that he should not seek legal counsel. The franchisor told the prospective franchisee that a lawyer would only try to talk them out of the deal.

The purpose of a franchise agreement and disclosure document review is not for the lawyer to talk the client out of their franchise business opportunity. An appropriate review will help point out the legal and business risks and possible areas of negotiation. (Yes, many franchise agreements are negotiable). After the review, the client must still make their own decision about whether to proceed forward. I have been told by more than one client that a review opened their eyes to help them better understand the franchise opportunity. Some moved forward while others backed away from the deal.

There are some classic warning signs of franchisors that I have written about in the past. You could probably guess #1. There are a significant number of excellent franchisors out there. Don't waste your time on those that don't believe you should seek counsel when you are potentially investing your life savings.  You owe it to yourself to do the best job possible investigating the franchise and performing the most due diligence possible.  

Some of the other sites in the WSJ article are a great place to start for that due diligence including:

Blue MauMau (www.bluemaumau.com)

Franchise-Chat (www.franchise-chat.com)

The Franchise Pundit (franchisepundit.com)

Unhappy Franchisee (www.unhappyfranchisee.com)

www.wikidfranchise.org

I would also add one of my personal favorites, The Franchise King Blog. The blog's  author, Joel Libava, is pro-franchise but is a big proponent of franchise due diligence.

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I'll be one of the speakers at the Raising Capital seminar sponsored by BIZ this Tuesday, March 24th at 8:00 a.m.  The seminar admission fee is $30.00 and features entrepreneurs, venture capitalists and accountants. The seminar is designed to help the entrepreneur plan successfully for an investment in their business.

For more read here.

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In these tough economic times many individuals have lost their jobs. As a result, many are thinking of opening their own business or buying a franchise to replace the income lost from their former job. Franchise lawyer Charles Internicola has an excellent post on the topic. Charles has also published a new book, An Entrepreneur's Guide to Purchasing a Business, to provide important information for would be business owners.

Over the years I have been fortunate to see successful business owners from all walks of life. But remember, the vast majority of businesses fail. Do not jump hastily into a decision to own your own business. Charles points out some of the major considerations you will need to think about including whether you have sufficient capital, family support and whether you are prepared to "wear the many different hats" required of the new business owner.  

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Partnership agreements (also known as Buy-Sell Agreements) are like prenuptial agreements for people that are in business together.  The formation of any business with multiple owners should include a buy-sell agreement.  Why?  Because reality dictates that it is not a matter of IF your partnership will end, but rather WHEN your partnership will end. Unfortunately the buy-sell is an agreement that is often neglected by business people because they want to save on initial start-up costs or falsely believe there is no need because the partner is a “friend” or “family member”.  As a fellow business lawyer says, “As with prenuptial agreements, people tend to overlook the importance of buy-sell agreements or simply don’t want to deal with the subject; after all, they are in love!”

What are effective buy-sell agreements designed to accomplish?  An effective buy-sell agreement covers how an owner can sell his ownership interest and how that ownership interest is valued.  Further, an effective buy-sell agreement sets forth what happens in the event of an owner’s death, disability, retirement, termination, divorce, bankruptcy or other considerations.  These agreements will also generally require a right of first refusal.  This means if one owner finds an outside buyer for his interest the owner must first offer those same terms to the existing owners.  This protects the owners from suddenly running the business with someone they did not intend to have as a partner.

When should you enter into a buy-sell agreement?  The time to enter into a buy-sell agreement is at the beginning of the business relationship when everyone is excited and getting along well.  Dealing with the buy-sell agreement in the beginning helps to prevent the unenviable position of negotiating under difficult circumstances with former friend, their families and their estates.  It is often difficult to negotiate a deal when something has gone wrong and people are upset.  Without a buy-sell agreement negotiated in the beginning, owners may end up in court and the business may suffer.  The costs of litigating a business dispute can easily run in excess of $100,000 per side while the buy-sell agreement usually costs less than a few thousand dollars. Unquestionably most business owners would rather concentrate on running their business than spending time in court.

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You've worked hard to build a successful business and have built up some significant personal assets. You were smart enough to sell stocks before the recent stock market downturn so you have a fair amount of cash built up. You own a few pieces of real estate.  One night your 18 year old son is driving his car and causes an accident. The driver of the other car is seriously injured and may require medical care for the rest of his life. The car is owned by you and insured in your name. The amount of insurance will not cover the other driver's damages. A personal injury lawyer files a lawsuit on the other driver's behalf and tells you they will be seeking payment beyond the insurance limits.

FIrst, let me say that if this scenario occurs to you the time for asset protection has likely passed. Making adjustments after the fact may raise red flags and could subject you to liability for fraudulent conveyances. You must protect your assets in advance. Unfortunately asset protection is often overlooked.

One of the easiest ways add a layer of protection in this scenario is to have umbrella insurance coverage. Look at obtaining the most expensive coverage you can reasonably afford. One million dollars ($1,000,000) in umbrella coverage is usually under $200.00 or less per year, plus some added expense for increased coverage on your vehicle. However, I say you should consider buying a larger policy. You might be surprised to learn to that five million dollars ($5,000,000) in umbrella coverage will not cost you substantially more while the protection is FIVE times as much.

But remember that not all umbrella policies are the same. They differ in coverage, definitions, scope and features. Some umbrella coverages may have exclusions that do not provide coverage in connection with  a business, occupation, trade or profession. Therefore, It is  good idea to read the policy carefully to understand what is covered and what is not. Sometimes business owners automatically assume they are covered for all situations with their umbrella policies. That is not always the case and you may end up with business owners that have the false sense they are covered. Generally, umbrella policies will cover you for personal situations only.

Another consideration in the scenario I outlined is whether the child should own the car and maintain all insurance coverage. Naturally the cost of insuring the vehicle is substantially higher if you place the insurance coverage in the name of your teenage son. But the the increased cost may not be nearly as great as the potential loss of assets. If you are able to afford it, consider placing ownership and all insurance coverage in the name of your child if the child is the primary driver of the car. This could help protect your assets from damages caused by your child. While you are sure to complain about the costs when you pay for the insurance, you will be very happy if the scenario I described ever happens to you.

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There has been considerable interest in raising venture capital among several entrepreneurs in the Des Moines area recently. For those looking to raise capital you won't want to miss an upcoming event sponsored by BIZ.

Matt Kinley, senior vice president of Pappajohn Capital Resources and Equity Dynamics, will be the BIZ guest and speaker at the Business Insights and Networking Luncheon on February 18, 2009. Matt will discuss raising venture capital from the investor's point of view.

Many entrepreneurs do not understand what is expected from their business in order to raise capital. This is a great opportunity to learn from one of Iowa's most respected and active venture capitalists.

The admission fee is $10.00. The event starts at 11:30 a.m., February 18th at the Des Moines Partnership's offices, 700 Locust Street, Suite 100 in downtown Des Moines.

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My partner Pat Burk weighs in with a blog post on the new Iowa LLC law and real estate transfers. It's a great blog post because LLCs have long been the entity of choice for real estate ownership. The post includes a discussion on statements of authority and title examination.

Pat distinguishes nicely my previous comments concerning due diligence in dealing with LLC members to make sure they have appropriate authority to act for the LLC and the need to have title examiners assume proper authority. Again, it will be interesting to see how courts treat these issues (and others) under the new Iowa LLC law. 

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The Des Moines Register has an interesting article on the fitness business market in Des Moines. Included in the article is a discussion on the growing number of 24/7 franchises in Des Moines. So, it begs the question, "Is buying a fitness franchise a solid investment in this market?"

I have represented a number of franchisees in the fitness industry. Based upon this experience, I would say the competition is fierce and a prospective franchisee needs to carefully consider whether to purchase a fitness franchise gym given the current market conditions in Des Moines.  Specifically, I would look very carefully at the trends of the franchisee concerning the number of outlets.  You should closely review the information regarding outlets. Carefully study the number of transfers and not just the number of closures.  A high number of transfers may be an indication that franchisees in the system are struggling, but unprofitable gyms have not been shut down.  Of course if there is a significant number of closures in the system that is definitely a bad sign. The reality is that profitability in this market with a fitness franchise gym is often a tough task to achieve.

Be sure to visit with current franchises and franchisees that have left the system. Ask the franchisor whether its records are updated so you can talk to as many franchisees (and former franchisees) as possible.  Consider what will differentiate your facility from other gyms in the area.

I am not saying that profitability cannot be achieved in this industry but I encourage any prospective fitness gym franchisee to conduct thorough research (and maybe think twice) before making the investment.

FYI:  Coming soon I have developed a new niche site related solely to franchise issues called RushonFranchise. It will include programs on how to research and buy a franchise for franchisees and how to develop a franchise program if you are a franchisor. I will interview experts in the industry and will have in-depth materials on franchising. For those of you that are regular readers, this is the ever-evolving Interactive Learning Environment I referenced previously on this blog.

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 The State of Iowa recently announced that it intends to step up efforts to enforce independent contractor misclassification. It is anticipated these enforcement efforts could bring in millions to the state coffers.

For more information on this topic please see my recent post on IowaBiz and another post from August of 2007 warning about independent contractor misclassification.

See also this article on how to avoid misclassification of independent contractors. 

It is more important than ever for businesses in Iowa to understand the differences between employees and independent contractors.

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With the recent economic downturn, layoffs have begun to occur. A potential option for many former corporate employees is franchise ownership. While franchising does offer many advantages it is critical to approach a franchise opportunity just as you should any other business opportunity - with caution.

It is a misnomer that franchises are more likely to succeed than other businesses. In fact, the International Franchising Association has discouraged all franchisors from making such claims. The truth is that franchises fail at a rate that is similar to non-franchised business.  So careful due diligence is important when considering a franchise opportunity. One of the best things you can do is talk to as many existing (and former) franchisees as possible. Also, consider several key disclosure issues including:

1. Franchisor's litigation history;
2. Amount of the initial investment;
3. Vendor rebates and products you must buy from the franchisor;
4. Earnings claims made by the franchisor;
5. Franchisor's financial statements;
6. Trends concerning the number of outlets.  It is important to closely review the information regarding outlets. Carefully study the number of transfers and not just the number of closures.  A high number of transfers may be an indication that franchisees in the system are struggling, but bad stores have not been shut down. 

And finally, be willing to walk away. This is the paradox of successful negotiation. Those that are willing to walk away usually find they get more in negotiation.

For more on franchise due diligence be sure to visit the Federal Trade Commission's Consumer Guide for Buying a Franchise. 

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This blog post is the fourth in a series of blog posts highlighting changes in the 2009 Iowa Limited Liability Company Act. The new law applies to all LLCs filed in Iowa after January 1, 2009. The new LLC law will apply to older LLCs beginning on January 1, 2011 unless otherwise agreed by the members.

The new Iowa LLC law has a significant change relating to management. The current law provides that member voting is based upon capital contributions of the members. Generally, that means voting is based upon the percentages of the members and a member with 51% or more will control how the company is operated.

 However the default provision with the new LLC law is one member - one vote. This means that even a member with a minority percentage may have the ability to have as much management authority as an member that has a majority of the membership units. Accordingly, if a majority owner wants to maintain management control, the written operating agreement will need to specify such arrangement.

This may become even more important after January 1, 2011, when all LLC companies will need to comply with the new law. Some unsuspecting LLC majority owners may be surprised to learn that they may not be in control of their business unless an operating agreement specifies the majority interest controls.

This issue is just one of reasons I recommend that all LLC owners seek legal advice from a business attorney when forming an LLC under the new Iowa LLC act.

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This blog post is third in a series of blog posts highlighting changes in the 2009 Iowa Limited Liability Company Act. The new law applies to all LLCs filed in Iowa after January 1, 2009. The new LLC law will apply to older LLCs beginning on January 1, 2011 unless otherwise agreed by the members.

In my last blog post I picked on the new Iowa LLC law because I don't see great benefits to LLC members with some of the changes in the law related to operating agreements. But changes relating to Statements of Authority may not be so bad. (That is if you are an LLC owner. Third parties might disagree). 

Currently, Iowa LLC law says that all members of the LLC are agents of the company unless otherwise stated in the articles of organization. The new LLC law provides that members are no longer automatically agents of the company. As fellow Iowa business lawyer Marc Ward points out on his blog, "The risk of a rogue member binding or otherwise obligating the LLC will be gone."

The new law also permits an LLC to file a statement of authority with the Iowa Secretary of State. (Still amazing to me the Sec. of State has no notice of the new LLC law on its site). The statement of authority will serve as notice of who does or does not have authority to act for the LLC, sign documents transferring real property, or otherwise act for and bind the LLC.  The statement can state the authority or limits on authority by position (e.g. member, manager, president) or a specific person or persons.

Third parties will need to be careful in assessing whether a member actually has authority to sign on behalf of the LLC.  In doing so, third parties probably should request a copy of the Statement of Authority documentation from the LLC. This information will also likely be viewable on the Sec. of State's Web site under the Company's  filings. It will be interesting how courts will handle the issue of "apparent authority" under the new law (i.e. where a person purports to have authority to bind the company but really doesn't). After all, the whole purpose behind the provision is to prevent rogue members from binding the company. Is "apparent authority" thrown out the window if a Statement of Authority is filed?

A statement of authority filed in the county recorder's office will be conclusive evidence in favor of a person who gives value for real property in reliance on the statement.  Similarly, a filed statement limiting the authority of a person or position to transfer real property will constitute notice to all.

Under the new law, a statement of authority will expire 5 years after it or the most recent amendment becomes effective, unless canceled earlier.

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This blog post is second in a series of blog posts highlighting changes in the 2009 Iowa Limited Liability Company Act. The new law applies to all LLCs filed in Iowa after January 1, 2009. The new LLC law will apply to older LLCs beginning on January 1, 2011 unless otherwise agreed by the members.

Beginning in 2009 there are a couple of issues relating to operating agreements that LLC business owners must consider. The operating agreement is the document that sets forth how the LLC is governed and run.

1. LLCs are not required to have an operating agreement in writing but watch out. On its face the fact an operating agreement is not required in writing might excite LLC owners. However, it is not advisable to go without a written operating agreement, particularly if there are two or more members in the LLC. Even a single member LLC should consider a written operating agreement in order to protect against piercing the corporate veil. If an operating agreement is not in writing, the provisions of the new statute will automatically apply to the LLC. In many instances, the statute has provisions that may surprise and bite unknowing LLC owners especially with regard to management rights, profit distribution and transfers of interest. It is best practice to have a written operating agreement.  
2. Operating Agreements may be amended orally. LLC owners may amend their operating agreement orally under the new statute. Again, while that may make it easy to amend the agreement it will likely remain best practice to override this statutory provision to include language in the written operating agreement requiring an amendment to be in writing. That way members may avoid the enevitable arguments that ensue when agreements are not memorialized in writing. People tend to remember things differently when agreements are not in writing and the agreement is more difficult to prove in court.

Check back for more on the Iowa LLC law changes in future blog posts.

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This blog post is first in a series of blog posts highlighting changes in the 2009 Iowa Limited Liability Company Act. The new law applies to all LLCs filed in Iowa after January 1, 2009. The new LLC law will apply to older LLCs beginning on January 1, 2011 unless otherwise agreed by the members.

Beginning January 1, 2009, you will no longer file Articles of Organization with the Secretary of State to start your Iowa limited liability company. Instead, you will now file a Certificate of Organization to begin the process. Unless there are changes with the Secretary of State, I do not anticipate the filing fee would change from the current fee of $50.00. (Amazingly, the Iowa Secretary of State's Web site has no mention of the upcoming changes that I could see). 

The Certificate of Organization under the new Iowa LLC law will actually have less detail than Articles of Organization typically had in the past. The only information required for the Certificate of Organization are as follows:

1. The name of the limited liability company;
2. The street and mailing address of the registered office and the name of the registered agent.

That's it. The organizer also won't need to state the the LLC has a perpetual duration in the articles as the new law automatically provides that LLCs have a perpetual duration (just like corporations).

Now, that may seem simple enough to start but there are a number of issues with the new Iowa LLC law that could trap unsuspecting business owners. I will highlight some of those areas in upcoming posts. 

An excellent resource on the this topic is Ward on Iowa Limited Liability Company Law, written by Marc Ward of the Dickinson Law Firm. Marc has devoted an entire blog to the changes in the new Iowa LLC law. 

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There are significant changes to the Iowa limited liability company (LLC) statute effective January 1, 2009.  The changes include everything from how an LLC is initially formed and filed with the Secretary of State to changes that apply when a member leaves (i.e. disassociates) from the LLC.

Check back over the next couple of weeks for a series of posts regarding the new changes in Iowa's LLC law.

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A great discussion took place last Friday on Twitter among several young entrepreneurs in the Des Moines area. As a result, Daniel Shipton of Impromptu Studio took the bull by the horns and organized an "impromptu" entrepreneurial roundtable discussion for this Tuesday, December 9th from 12:00 p.m. - 1:00 p.m.

The anticipated roundtable will consist of Matt Kinley of Equity Dyanmics, representatives of the Technology Association of Iowa and several local entrepreneurs.  So if you care about the entrepreneurial climate here in Iowa be sure to participate.  I'll see you there.

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There are many entrepreneurs who want to run all their business AND personal expenses through the business.  For example, earlier this spring I witnessed a father buying his son's baseball equipment at a local sporting goods store.  I chuckled when he pulled out a company check to pay for the equipment.  Sure, one expense might get buried and never noticed in an audit but experience tells me that "pigs get fat while hogs get slaughtered."  Many business people don't understand where to draw the line.  Business expenses are fine to deduct.  But  running obvious personal expenses through the business just isn't acceptable.  It could even be a reason to "pierce the corporate veil" in litigation causing you to lose your limited liability protection. 

But where it may really hurt is when you go to sell your business. That is when it is critical to show the best possible operating profitability and cash flow to gain a fair price for your business. This means those avoidable (or perhaps illegal) expenses take away from the bottom line of the business and leave you with less value.  Moreover, it draws questions about your integrity and could make it harder to sell our business.

So keep the end in mind. Accurate and organized financial statements are a must. A penny saved today might be a dollar lost tomorrow.

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Last December I wrote a blog post on how Iowa has never been the hot bed for franchisors but it seemed as though some Iowa franchisors were really picking up steam.

Now we are pleased to announce that our new franchise client, The Pink Hippo , just completed its first franchise sale in Urbandale, Iowa and will soon be expanding to other states. The Pink Hippo specializes in the sale of hairbows and other accessories for young girls.  Julie Nitchie and Gretchen Stevenson are motivated entrepreneurs and have developed a unique franchise offering. Our services for the Pink Hippo included completion of their franchise disclosure document and franchise agreement plus assistance with the development of their franchise operations manual.

Congratulations to The Pink Hippo and we wish them continued franchising success.

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I recently received an email from a business brokerage advertising their services.  In the email the brokerage said they have "low-risk" businesses and franchises for sale. While that may make for good marketing - I must unfortunately say that "low-risk" businesses do not exist in my opinion. If our struggling economy has shown us anything, it has demonstrated that risk is inherent in business. To advise otherwise minimizes the enormity of the decision to purchase a business.

Now don't get me wrong. I am not knocking the business brokerage. It's their job to sell businesses and that's just what they are attempting to do. But the prospective buyer should be more cautious and take the time to understand the inherent risks of ownership in the business you intend to buy.  It is absolutely critical to conduct due diligence. Appropriate due diligence includes examination of the following areas in the business:

• Organizational documents and good standing with state and/or federal authorities
• Financial information
• Physical assets
• Real Estate
• Intellectual property
• Employees and employee benefits
• Licenses and permits
• Environmental issues
• Taxes
• Material contracts
• Product and service lines
• Customer information
• Litigation
• Insurance Coverage
• Professionals
• Articles and publicity

See this due diligence checklist for more details.  It is a very comprehensive checklist.  The level of due diligence will likely vary with the size of the business transaction but this list should give you a good outline of the issues to consider. 

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In this current economic downturn many people will lose their jobs.  Many of those individuals will turn to franchising as a form of business ownership instead of opting for another position in the corporate world.  While franchising may be a legitimate option for some, it is important for prospective franchisees to remember that it is not often very easy to get out of a franchise agreement.  Investing in a franchise is not a decision to take lightly.

A typical franchise agreement may last anywhere from 5-10 years and have options for renewal.  Often franchisees mistakenly believe they can get out of the franchise agreement if things go bad.  The reality is that the written franchise agreement usually remains in force and often the franchisor has rights to sue the franchisee for lost royalties if the franchisee does not pay.  Not to mention potential problems you will have with your lease and/or other contracts.

So before you buy a franchise follow these steps as outlined on the FTC Website:

• Study the disclosure document and proposed contract carefully.
• Interview current owners in person. (They should be listed in the disclosure document.) Visiting them in person may help you identify any that are "shills" — people paid to give favorable reports. Don't rely on a list of references selected by the company because it may contain shills. Ask owners and operators how the information in the disclosure document matches their experiences with the company.
• Investigate claims about your potential earnings. Some companies may claim that you'll earn a certain income or that existing franchisees or business opportunity purchasers earn a certain amount. Companies making earnings representations must provide you with the written basis for their claims. Be suspicious of any company that does not show you in writing how it computed its earnings claims.
• Sellers also must tell you in writing the number and percentage of owners who have done as well as they claim you will. Keep in mind that broad sales claims about successful areas of business — "Be a part of our $4 billion industry," for example — may have no bearing on your likelihood of success. Also, recognize that once you buy the business, you may be competing with franchise owners or independent business people with more experience than you.
• Shop around. Compare franchises with other business opportunities. Some companies may offer benefits not available from the first company you considered.
• Listen carefully to the sales presentation. Some sales tactics should signal caution. For example, if you are pressured to sign immediately "because prices will go up tomorrow," or "another buyer wants this deal," slow down. A seller with a good offer doesn't use high-pressure tactics. Get the seller's promises in writing. Any oral promises you get from a salesperson should be written into the contract you sign. If the salesperson says one thing but the contract says nothing about it or says something different, it's the contract that counts. If a seller balks at putting oral promises in writing, be alert to potential problems and consider doing business with another firm.
• Consider getting professional advice. Ask a lawyer, accountant, or business advisor to read the disclosure document and proposed contract. The money and time you spend on professional assistance, and research — such as phone calls to current owners — could save you from a bad investment decision.

In representation of a new franchisor I have recently been on the other end of this investigation process. But it is clear to me that a good franchisor will not discourage you from conducting due diligence.  You should be very wary of high pressure sales tactics.  Don't be in a hurry.

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Good article on IowaBiz regarding insurance for employee lawsuits.  Most businesses would be smart to explore this type of insurance coverage, especially in today's slumping economy.

I think many small businesses are under the mistaken believe that they are covered for employment lawsuits through their ordinary business liability coverage. This is usually not the case.  You will need to purchase a specific policy relating to employer practices in order to be covered. In addition, employer practices liability insurance policies vary greatly so be sure to carefully review the covered items with your insurance agent and lawyer.  Find a policy that provides comprehensive coverage.

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UCLA professor Samuel Culbert says to get rid of the employee performance review. But to protect your business I say you better not do that any time soon. Find out why in my post over on IowaBiz.com.

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It has taken longer than I had hoped but my November goal is to lauch the Interactive Learning Environment for clients and others interested in employment law compliance and training, franchising basics and starting up your business.  Our initial free program will include a Legal Guidebook on Starting Your Iowa Business.  Gradually, we will release more and more content on the important issues that impact your business. One of my partners, Matthew Brick, will be a major contributer on employment law issues.

My introductory video is complete so I need to get moving on the programs. Due to time constraints with work load and this project, followers should expect blogging to be very light over the remainder of the month. I appreciate your loyal support to this blog and I encourage you to give our ILE a try when its finished. 

A special thanks to the guys at createWOWmedia who have been so invaluable in getting the ILE project off the ground. Stay tuned for the finished product and I look forward to your comments once we are up and running.

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The ABA's Forum on Franchising is this week in Austin, Texas.  Another all-star lineup features an intensive program about learning from mistakes under the new FTC rule.   Again, there are several other terrific programs.  One of the more interesting talks is about franchising in the BRIC markets.  (Brazil, Russia, India and China).  Like the US, those markets have experienced an economic downturn.  How will that impact franchising development in those countries?  

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Juice Magazine recently interviewed me for an article on how to start your own business. I offered the following tips to new business owners:

• Get agreements in writing up front, whether it's a few hundred dollars or larger.
• Small business centers are a good place for people to start. It's often a good place for people to go get some counseling.
• You should be very careful if you're going to go into business with partners. You should draft a buy-sell agreement that outlines how the business will be run, and what happens if one of them should die or want to leave the business. Whether it's family or friend. 

I also thought Iowa intellectual property attorney Brett Trout offered some excellent advice by recommending that new business owners obtain a federal trademark for their business name or product. In this flat world it is more important than ever to protect your intellectual property. A federal registration is significant because it enables you to collect attorney's fees and treble damages under certain circumstances in a trademark infringement lawsuit.

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The Ohio Practical Business Law Blog examines the new Franchise Disclosure Document (FDD) a recent post.  The new FDD rules began in earnest  on July 1, 2008.  

Previously I posted on some of the key differences between the old UFOC rule and the new FDD rule including:

• Use of unaudited financial statements.  Start-up franchisors may phase-in the use of audited financial statements.  In this case the franchisor must clearly and conspicuously disclose that the franchise has not been in business for three or more years and cannot include all required financial statements.  (There may still be requirements to submit audited opening balance sheets in registration states).  Franchisees should make sure to review the financials carefully as always.
• Financial Statements.  The FTC will allow the use of financial statements prepared according to U.S. generally accepted accounting principles ("GAAP").  There must be separate audited financial statements for any parent that "commits to perform post-sale obligations for the franchisor or guarantees the franchisor's obligations" in the disclosure document.
• No Broker Disclosures.  The Amended FTC rule eliminates the broker disclosure requirement.  However, the broker will need to be listed on the Receipt Page because the Receipt Page requires the franchisor to identify all "franchise sellers".
• Litigation.  Franchisors will be required to disclose material franchisor-initiated litigation against its franchisees.  The rule will be more lenient as a franchisor will only have to disclose actions that the franchisor filed during its last fiscal year - not the last 10 years. Further, a full description of the case will not be necessary.  If a counterclaim is filed against a franchisee the disclosure will need to be treated as any other franchisee-initiated action and the regular, full disclosure will be required.  (Franchisees will need to more fully investigate whether franchisor-initiated litigation occurred whether it is in the disclosure document or not).
• Financial Performance Representations.  The new rule encourages franchisors to provide financial performance representations but it is still voluntary.  Franchisors may provide a more detailed cost and expense analysis which could be helpful for prospective franchisees.  Also, franchisors may provide financial representations based upon a subset that shares the same characteristics. 

There are other differences so be sure to talk with an attorney experienced in franchise matters if you are looking at purchasing a franchise. 

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I received word today from conference organizers that the inaugural Midwest Small Business Conference has been canceled.

Hopefully organizers can give it try again next year. I thought it was a great lineup. Too bad it didn't fly. 

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The bailout is not universally popular with Main Street America but the International Franchise Association says a bailout is needed because our credit crisis "threatens to derail the future growth of franchised businesses because it undermines the health of credit markets as well as equity markets."

There is no doubt Wall Street is hoping against all hope that a bailout occurs.  If it the legislation isn't passed I have heard pundits predict the DOW could drop as low as 8,000.  More banks would fail, retirement accounts would plummet and a lengthy recession could occur.

But I have mixed feelings about this bailout.  Should bad business decisions be rewarded?  Most of the business people I represent rightly remark, "I don't get a handout, why should they?"  Should we just let the market work itself out?

Columnist Rhonda Abrams urges that small businesses need direct help. Some of the areas Congress could help small businesses include giving tax credits for hiring your first employee, credit card fairness, SBA disaster assistance loans and estate tax reform. Generally, franchisees are of the small business variety.  It seems they would benefit more if direct help occurred from Congress rather than just bailing out the largest financial institutions in America.

It's tough to know the answers and I don't pretend to be an economist. I have talked recently with several local bankers concerning the current economic climate.  The bankers have told me they are still making loans and actually have some optimism for the Iowa economy.  That flies in the face of a recent report indicating that West Des Moines is No. 4 on the list of the towns that could be hardest hit by the financial crisis.  I hope the local bankers are right.

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The Midwest Small Business Conference is now set for October 10 & 11, 2008 at the Des Moines Marriott.  This event is rescheduled from the previous announcement on this blog because the original date conflicted with the Iowa-Iowa State football game. (Conference organizers learned that not even business gets in the way of football).  Fortunately the conference was able to pick up a new date and additional speakers.

I will be speaking on how to keep your business out of court.

Click here for a lineup of the conference speakers.  We hope to see you there!   

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I am honored to be included among the Alltop franchising news selections.  Some exciting things have been happening for me on the franchising front including developing the franchise disclosure document and franchise agreement for a new local franchisor, the opening of a client's new Max Muscle franchise location just on Thursday and the completion of a franchise litigation dispute.

I am also excited to attend the Forum on Franchising in Austin, Texas this October.  Last year's seminar was one of the best I have attended.  Given this year's lineup I am sure it will be equally as good.

Thanks to Joel Libava of Franchise King Blog for suggesting this blog for Alltop. 

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From the Small Business and Entrepreneurship Council I found this comparison of where Obama and McCain stand on the key issues of concern to U.S. small businesses.

I have not independently researched the comparison document myself but I have heard the candidates refer to many of their plans and it appears the SBE Council has tried to give a "no spin" look at the issues.

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It's so simple.  Everybody knows you get agreements in writing, right?

Then tell me why so many people ignore this most important axiom in the business world.

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I connected this morning with Tyler Osby of Four Legacies Mortgage.  I met Tyler through Twitter (you can follow him @tylerosby). I have been impressed with the breadth of information he provides.  He uses Twitter in a very meaningful way by acting as a resource on the mortgage market. 

Tyler brought up a great point today during our discussion.  When someone starts a business they must demonstrate at least TWO YEARS of verifiable income, assets, credit history and tax returns before the new business owner will be able to get a new mortgage.  It's something I've always known but never really discussed much with clients when they are forming a new business.

So if you are planning to start a new business be sure to review your mortgage interest rate.  Otherwise, it may be a couple of years before you can do much about it.  

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I have seen many articles on the Internet which state that you absolutely need to form a limited liability company (LLC) if you are a small business owner.  The S corporation, once the darling of small business entities, is probably feeling a little lonely these days.

One important aspect of the S corporation is that you may be able to save on self-employment taxes by using an S corp instead of an LLC.

But don't get too carried away in the belief that you can set a low salary says accountant Joe Kristan in his latest post on Iowa Biz regarding s corporation salaries.  The key is to set a "reasonable salary" if you are the owner, although admittedly no one really knows what that means.

As is often the case in dealing with tax issues, Joe's advice is to remember that "pigs get fat, but hogs get slaughtered."  It's definitely a good idea to talk with an accountant when setting your salary in your S corporation.  It could save you considerable time and expense in dealing with the IRS. 

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A recent article from the Wall St. Journal online discusses something I thought I would never see from a franchisor: A money back guarantee. 

Others are not convinced and warn to investigate the details carefully in the Franchise Disclosure Document.  

Thanks to Joel Libava for pointing out the article.  Joel is a franchise consultant from Cleveland,Ohio that publishes an extraordinary amount of content regarding franchising.  Both the good and the ugly.  And never dispassionately.  Be sure to check out his Web sites if you have an interest in franchising.

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Twice a month I blog for IowaBiz which was acquired by the Des Moines Business Record this summer.  Since that time it appears the bloggers have stepped up their game.  The posts have been informative and entertaining.  I encourage you to take a look.

My post today for IowaBiz centers on the trend of hiring outside law firms on a non-billable hour basis.  It's a trend I embrace and use frequently in my law practice.  Similar to the law firms mentioned in my post, I have already provided outside general counsel services to certain business clients based upon a mutually agreeable fixed monthly fee.  These clients receive a fixed monthly bill and do not receive bills for phone calls and overhead costs such as copying and postage.  I also have performed certain projects such as incorporation and LLC formation on a fixed rate and have also done so with contract review and writing.  No, I have not completely eliminated the billable hour from my practice but would love to do so.

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Great post from Susan Reid on the Small Business Trends Web site on the 15 Ways the Olympics Exemplify Success for Small Business Owners.  In the comments of Reid's post, Anita Campbell has some terrific words about West Des Moines, Iowa's very own Shawn Johnson.  Johnson definitely made us all proud with her amazing attitude and fantastic performance.

But I'll add one to Reid's list:

Be Honest.  Although you may initially capture the gold it certainly won't be worth the consequences if you are caught being dishonest.  It includes your dealings with the IRS, customers, suppliers, employees and business partners.  The dishonest small business owner will likely get sued, or worse, end up being prosecuted.  And with the Internet it is very hard to keep your reputation quiet.

photo of Shawn Johnson in butter at the Iowa State Fair on Flickr by Iowaarcheryboy.

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I will be speaking at the Midwest Entrepreneur and Small Business Conference scheduled for September 12 & 13 at the Jordan Creek Marriott in West Des Moines.

I encourage you to check out the preliminary presenters' list for this first of its kind conference in our community.  Hope you will consider attending.

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Gavin Craig in his new Twin Cities Business Litigation Blog has an excellent post on the importance of making sure the world knows you have a corporate entity.  Craig is convinced that many small business owners (especially contractors) do not know how to properly operate a corporation or LLC. Craig says,

When a person incorporates their business, it takes more than just filing a form with the Secretary of State. When a business is incorporated, it can't be a secret to those that do business with the new corporation. In other words, the new corporation needs to disclose the fact that the business (the party that is contracting with others) is incorporated on its letterhead, business cards, invoices and checks.

Craig is right on with his warning on this issue.  Whether you live in Minnesota, Iowa or Timbuktu, you must make sure you disclose the fact you have a corporate entity on your letterhead, business cards, invoices, checks and especially CONTRACTS. 

This is a particularly important message for franchisees.  Many franchisees operate under franchise trade name but fail to disclose in contracts, letterhead, business cards, etc. the name of their actual corporate entity.  One franchisee I know was personally sued for the damages related to an advertising contract because he had not disclosed to the other side that he actually operated with an LLC rather than as a sole proprietorship.  He had signed the contract using only the trade name of the franchise.  The other side said at trial that it didn't know the franchisee had an LLC.  So ultimately the judge sided with the advertising company.  It was an expensive lesson that could have been easily avoided. 

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Many people dream about owning their own business.  More and more people are choosing franchising as the avenue to to pursue these dreams.

The Federal Trade Commission (FTC) has excellent information in its consumer guide for buying a franchise.  The FTC recommends that BEFORE you invest in or select a franchise you should think about how much money you have to invest, your abilities, and your goals. The guide warns you to "be brutally honest."  Three key areas are listed:

1.  Your Investment - How much do you have to invest?  How much could you afford to lose? Do you need financing? What's your credit score?  Do you intend to invest with partners? How much do you have in savings?

2.   Your Abilities - Does the franchise require special education, expertise or training?  What skill sets do you bring specifically to this business?

 3.  Your Goals - Do you need a specific annual income?  Do you have interest in a particular field?  Are you interested in retail or service?  How many hours can or will you work?  Do you intend to hire a manager or run the business? Is this a primary source or supplement to income? Do you get bored easy or are you in it for the long run?  Would you like to own multiple locations?

One of the biggest questions to ask yourself in my view is whether you are just buying yourself a job.  If you buy a franchise you should treat it like an investment and expect a return on that investment.  Otherwise, you are most likely better off just looking for employment.  It's certainly less risky and considerably less stressful. 

In the next post we will examine what it means to "buy yourself a job" and how to avoid that trap.

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Franchisee lawyer Richard Solomon has a passion for spreading the word about conducting pre-investment due diligence.  His latest post on the BlueMauMau site outlines many of the pitfalls experienced by franchisees in various industries.  It also discusses the fact that a mere review of the franchise disclosure document and franchise agreement is not enough.  On that subject he says,

Every failed franchisee hired some cheap lawyer to “read the contract”.  When you add up what you are risking, you will appreciate that a few hundred dollars for an incompetent review of documents by someone who doesn’t know where else to look for what needs to be considered is really stupid. You can’t afford that approach. But it’s your money and your decision.  

I agree with Richard that due diligence is critically important.  I also agree that prospective franchisees must do more than just read the contract (i.e. Franchise Agreement and Disclosure Document).  Real due diligence will require a multi-disciplined approach.  The prospective franchisee should get a lawyer, accountant, banker, and even a marketing professional into the decision-making process.  If a specific location is key (such as retail or restaurants) you will want a commericial real estate agent also involved.

But above all, the franchisee must become engaged in the process.  Don't rely on the professionals to do the hard work for you.  You must roll up your sleeves and investigate.  In the next post we will discuss more of the details about how conduct franchise due diligence.    

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These posts demonstrate some good business basics:

Small Biz Survival has a good blog post on how to keep good tax records. 

Kyle Kruidenier of the Iowa Law Blog talks about the importance of thinking with the end in mind when forming a business.

Marc Ward shares why LLC operating agreements should be in writing.

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Many Iowa business owners think the new Iowa SmokeFree Air Act only applies to bars and restaurants.  Not so!

Check out my post today on the Des Moines Business Record's IowaBiz site for more details.

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Nothing like a good article on franchising to bring me out of a blogging hiatus that I anticipated would last at least another week.  But thanks to the Small Business Trends site and franchise consultant Joel Libava, my rest is over.

The Franchise King posted on a Central Ohio restaurant franchise called Roosters that seeks experienced franchise operators rather than newbies that might not understand the industry.  Like Joel, I agree it's a good concept for a franchisor to target franchisees that have experience in the industry.  Experienced operators are much more likely to be successful.  We agree on that.  We actually couldn't agree more on that.

However, Joel doesn't carry that logic forward when it comes to working in a franchise before buying one.  Joel says he is often asked this common question:

“Joel, are there any franchise companies out there that will let me work with a local franchisee, to see if I like the business?” 

And being the laid back guy he is (now don't get me wrong, Joel is a well-intentioned guy who wrote a book on Franchise Research Steps), Joel responds with an emphatic "No!"  He doesn't recommend it because the franchisee won't get the full story.  After all, they don't have any "skin in the game, so how could they possibly understand what the franchise business owner is going through?  He more or less says that if you aren't willing to go "all in" from the outset perhaps you should take it as a sign that you shouldn't go into business for yourself.  (Unfortunately too few people will heed this advice in my experience and take it as a personal challenge to go forward).

So it's my view working in a franchise business BEFORE buying doesn't make you a chicken!  In fact, it may be the best due diligence any prospective franchisee could do.  It's the same reason why so many successful business owners were once employees of the business they ended up buying.  It's the same reason a successful franchise owner I know worked in retail for a year before buying a retail franchise.  She wanted the experience.  No, she NEEDED the experience before investing much of her life savings.    

Now, it's true that some prospective franchisees might not benefit from the experience.  Some prospective franchisees have no business ever owning a franchise or any other kind of business.  But to say all prospective franchisees shouldn't avail themselves of the opportunity to work in a franchise system seems a bit bold in my opinion.  As a franchisee and reader of this blog pointed out:

The most difficult information to obtain and verify is franchisee profitability.  The profitability of the franchisor and the franchisees is not always related.  Sometimes those selling franchises make money while the franchisees do not.  And it is not always due to lack of due diligence on the part of the franchisee.  It may be because of inaccurate information supplied by the seller or franchise support that was promised but never delivered.

Risk is inherent in any business venture.  You are taking a chance and a leap of faith.  But actually working in a franchise business before you buy may allow you to find out whether you want to stake your life savings on the opportunity.  Taking a chance with maximum information is not random chance but a calculated risk - and that could make all the difference.

photo on flickr by ™bluhousworker and original photo by TedSher

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All Business has a decent article describing the ten key provisions of a franchise agreement.  However, I do take issue with the comment in Section 1 that "most franchisors offer ongoing support including administrative and technical support."

As I discussed in my last post on franchising, it is my experience that "most" franchisors DO NOT offer much in the way of ongoing support including administrative and technical support.  I believe this is a major item that separates the good franchisors from the bad ones.  And trust me, the MAJORITY of franchisors I have seen are downright awful in this category.

The majority of franchisors are good at only one thing - getting you into business.  After that, you're on your own and you'll be left to wonder why you are paying all those franchise royalties.  Perhaps harsh words for the industry overall but the truth hurts.  If you are buying a franchise make sure to do your due diligence and find those franchisors with a system for ongoing support.  Otherwise, why buy a franchise?

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With the help of Doug Mitchell and Andy Brudtkuhl I will be going live with an Interactive Learning Environment to complement this blog very soon.   The Rush on Business Legal Wire will focus primarily on employment law, franchise due diligence  / investigation issues and business purchase or sale considerations.  I also hope to attract top speakers to participate in the process.  The online seminar presentations will include in-depth written materials, audio presentations, podcasts and possibly video.

Forums will also be available for you to share your insights and ask questions.  Similar to the blog format, I won't be able to answer questions regarding specific situations but we can discuss topics generally.

I welcome your comments and suggestions on topics you would like to hear more about.

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Don't forget that Iowa's smoking ban in public places starts July 1, 2008.  If you are a business interested in learning more about compliance with the new law please visit the Iowa Department of Public Heath site at www.iowasmokefreeair.gov.

An informative Q & A concerning the smoking ban is available here.

Bar owners in particular are upset about the new law.  Is a challenge in the works?

photo on flickr by greefus groinks

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Jonathan Frieden of the E-Commerce Law Blog offers some excellent advice that companies should refrain from copying another company's Web site terms of use policy.  Jonathan says that even sophisticated companies are tempted to reduce legal expenses by copying such policies.

Iowa intellectual property attorney Brett Trout has also offered the same advice.  As Brett pointed out in his post, an Iowa company looks pretty awkward explaining to a court why its dispute should be tried in Albuquerque.    

The bottom line is that even if you use standard terms of use policies and other online policies you will need some customization for your particular business needs.  Discuss with your lawyer whether he or she has standards forms that can be customized for your business.  Most eCommerce lawyers have such forms.  But it is a good practice to avoid directly copying the terms of use and other online policies of other companies.

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Indiana civil and business lawyer Sam Hasler recently expressed his view that the place to incorporate your business is generally in your home state.

I agree with Sam. 

Delaware or Nevada may offer viable options for some companies but in general most Iowa small businesses are probably wise to incorporate here in Iowa.  First, Iowa has very low fees when it comes to incorporating your business.  It is a $50.00 fee to file Articles of Incorporation for a domestic corporation in the state of Iowa.  Further, it only a $30.00 fee every two years for a biennial report if you file online.  These fees are extremely low compared to other states.

Second, you won't avoid Iowa taxes by incorporating your Iowa small business in Nevada or Delaware if you are doing business here in Iowa.  The tax and corporation laws of Iowa will require you to register your company and pay fees as a foreign corporation in Iowa and you will be required to pay Iowa state income taxes for any income earned.  (You also do not avoid federal income taxes by incorporating in Nevada despite the lack of an information sharing agreement with the IRS).

And the perceived court advantages in Delaware?  That might be fine for a large business that is actually going to litigate a case in Delaware but it is probably not cost effective for most Iowa small businesses to litigate their cases in Delaware.  Besides unless you have well-written forum selection clause in contracts your Iowa small business will likely end up in Iowa courts anyway.

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This post on employment lawsuits causing most e-discovery woes just confirms the reasons why a sound document retention policy is necessary in today's business environment.

Organizations need to respond to an increasing number of document requests, from regulatory compliance issues to internal investigations to full-scale litigation. Much of this information is available electronically. Despite the prevalence of such document requests most organizations remain reactive rather than proactive when it comes to dealing with the issue of electronic discovery.

Are you prepared?

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Tonight I will be appearing on the Iowa Business Hour with Jim Goodman from 7:00-8:00 p.m. on 98.3 WOW-FM. 

I follow a long line of distinguished guests on the program including the incomparable Brett Trout. 

If you don't have anything else to do take a listen tonight.

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Do you have bad credit?  If so, this article on how to qualify for a franchise loan even with bad credit may interest you.  But please don't be offended when I say I hope you don't get the loan.

The number one reason I see for business failures is the lack of sufficient capital.  I have seen several people invest their entire life savings only to have their business fail because they lacked the money to survive the first 6 to 24 months.  These overly optimistic business owners scraped the money for the initial loan but had no room for error.  When the business didn't cash flow right away they were doomed.

My advice is simple for those that have bad credit and want to start a business.  Work on improving your credit and accumulate cash to invest in your business. You should plan on having at least double the capital you believe you need.  If you have the idea you just cannot pass up at this time you may need to go raise capital through a rich uncle, an angel investor or venture capital.  If you are investing in a franchise operation as discussed in the article you can probably forget about venture capital.  It's not likely to happen.

I am not saying every person with bad credit shouldn't consider starting a business.  But the odds of business success (a difficult task under the best of circumstances) go down measurably when the potential business owner cannot manage money well and does not start out with adequate capital.  A much better article would have been about how someone could improve their credit and increase savings to start out a business on solid footing.  Providing loans to those that cannot afford them is not the recipe for business success.  After all, it's the same mentality that caused the mortgage crisis our nation currently faces.

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Tomorrow's BIZ networking luncheon features Jonni Tonnemacher, a CPA specializing in fraud detection services.  Learn how to identify fraud in your business and implement controls to prevent fraud from occurring.

I have not heard Jonni talk previously but the topic is fascinating.  It is downright scary how much fraud occurs in business.  Don't be a victim.  Be informed.

Read more about the offerings of BIZ at www.bizci.org.

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I am frequently involved with the purchase and/or sale of a business.  Often the purchaser discovers the business through a business broker.  In the Des Moines area, it seems as though several of the business brokers convince prospective buyers to make an offer before seeking legal advice or reviewing the basic terms before the offer is signed. (i.e. price, financing terms, earn-out, non-compete, etc.).  The selling point is that the broker's form offer to purchase makes the agreement contingent upon review by professionals including a lawyer and/or accountant. 

While the contingency is a good one, the problem is that it does not replace a consultation with a lawyer or accountant before the offer is made.  The simple reason is that once the offer is made it creates a binding agreement.  If you fail to consult the lawyer before signing the offer the basic terms of the sale are complete.  At that point, the lawyer may be able to help you with the legal wording in the final contract but it is awfully tough to change the terms of the deal.

So if you are purchasing a business be sure to consult a business lawyer before signing the offer.  Don't fall for the notion that a contingency permitting legal professionals to review the agreement will allow you to change the terms of deal in the final agreement.  Once you sign the offer it is probably too late.

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In his new blog, Marc Ward of the Dickinson Law Firm, sets out some key changes to the new Iowa LLC Act.  One important issue to remember is that by default under the current law, Iowa LLCs are member managed unless unless the articles of organization or the operating agreement provides for management by manager(s).  Under the new law only a provision in the operating agreement can change the management of the LLC from member-managed to manager-managed.  As Marc indicates:

The operating agreement must expressly provide that (a) the LLC is "manager-managed" (b) the LLC is "managed by managers" (c) management of the LLC is "vested in managers" or (d) words of similar import.  Be safe, use one of the first three phrases recognized by the Act to avoid all doubt.

But even perhaps more importantly, the new law (effective Jan. 2009) provides that a member is not an agent that can bind the LLC just because they are a member.  The LLC may also file a statement of authority with the Iowa Secretary of State that specifically sets forth who does or does not have authority to act for the LLC to execute an instrument transferring real property or to enter into transactions on  behalf of or otherwise act for or bind the LLC.

Hat tip to Joe Kristan for pointing out Marc's blog.  For those that doubt the validity of social media, it's kind of funny that I learned my neighbor was blogging through someone else's blog post. 

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Former general counsel and small business owner, Anita Campbell, offers sage advice in her post on the Build a Solo Practice Blog about how to write a better contract .  What is the better contract in Anita's view?

1. First and foremost, the better contract protects the client.
2. The better contract is written in plain English.  (A novel concept indeed!)
3. The better contract is written for a 12th grade education or lower.
4. The better contract incorporates standardization.

A word of caution concerning standardization of contracts:  Clients will often take a standardized contract and fail to adapt it appropriately for the current business transaction.  Clients should be reminded that it is a good idea to have the business lawyer review the agreement to make sure it adequately protects the client in the current transaction, contains the actual terms of the current transaction and fulfills the goals of the current transaction.  I can't tell you how many times I have seen the embarassing situation where a business person took a standardized contract and failed to revise it appropriately for the situation.  It happens often when people pilfer agreements from the Internet and fail to modify the terms.  If litigation occurs, the result of this carelessness could be a verdict against the client.

Anita's solution involves providing a set of instructions to the client along with the standarized contract.  Included in the instruction sheet is the direction to have the business manager consult the corporate lawyer before signing or implementing the agreement.  This may work well with organizations that have in-house counsel but is probably less intuitive for businesses with outside counsel.  I offer the reminder to always have contracts reviewed by your business lawyer.

Hat tip to Susan Cartier Liebel and her Build a Solo Practice Blog.  Susan is passionately building one of the best blogs in the country.  Notice I didn't limit it to legal related blogs either.

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The Small Business Administration (SBA) and FranNet have teamed up to offer an online training course for those interested in franchising.

The free online course on franchise basics provides three key sections that examine more than 10 essential areas relating to franchising, including Whether Franchising Right for You and How to Choose the Right Franchise. The course also covers franchising options, strategies for growth, and pitfalls to avoid. Course participants will be able to better understand franchising and decide if it is the best small business option for them.

For more information please be sure to contact Joe Cooney who is the FranNet consultant for the Iowa / Nebraska region.  I have found Joe to be a very helpful resource.

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Anita Campbell of Small Business Trends shares her thoughts about how to avoid the contract from hell on the Build a Solo Practice site. 

As a former general counsel and now a small business owner, Anita has been on both sides of the fence when it comes to contracts.  According to Anita, here are some things to avoid in your next contract:

• Too much legalese.
• Using adverbs like "whereas" and "heretofore".  It's kind of like using "COMES NOW" for pleadings.  Does anyone really talk like that?
• More than 5-7 defined terms.
• Attaching multiple exhibits.  I can speak from experience that multiple exhibits is a real pain for the drafter so I can't imagine what it is like for the reader.
• Making it so hard to understand that it leads to avoidable litigation just because no one can understand it.

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Teri Rasmussen of the Ohio Practical Business Law Counsel blog has gathered some excellent resources for those who are interested in pursuing a franchise to start a business.

Thanks to Teri for referring to a couple of my blog posts but I also recommend checking out the Small Business Administration's consumer guide to buying a franchise as well as attorney Mike Hamblin's 4-part series on franchising.

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In a recent blog post, Daniel Schwartz of the Connecticut Employment Law Blog reminds employers just how important it is to notify insurers under their employment practices liability insurance.

This advice is not just critical in the employment context.  It is vital for every type of insurance your business may have.  If a claim occurs be sure to notify your insurer immediately.  The failure to do so may result in a denial of coverage.

Thanks to Daniel for the reminder.

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Do you have an estate plan?  It has been reported that approximately sixty percent of people in the U.S. do not have a will.  Of course having a will is critical if you have children but let's not forget about another baby - your business.

As the owner of a closely held business much of your wealth may be tied up in the business.  If you have not planned properly you may cause tremendous problems for your heirs.  After paying probate and estate taxes your heirs may also encounter liabilities that were payable upon your death.  All this during a time where the business may have decreased revenues due to your death.

Fortunately proper planning may eliminate many of these problems.  Using buy-sell agreements and trusts are two of the ways that business owners can protect their assets and reduce taxes.

Another important life-goal for business owners is charitable giving.  This week's Des Moines Business Record has an informative article on available options for starting your own philanthropic legacy. 

Even if you are young, consider an Acorn Fund through the Greater Des Moines Community Foundation.  For an initial contribution of $1,000 and a commitment of $600 per year until the amount equals $10,000, a young business owner could start their own permanent endowment fund.  And not only do you get the deductions for charitable contributions but you may also be eligible for additional tax credits.

photo on flickr by Norma Desmond

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One of my franchisee clients offered a very simple question that every prospective franchisee should ask of other franchisees when conducting due diligence:

What doesn't the franchisor do well?

He says this evoked the best responses from franchisees when he conducted his due diligence.  If you are considering a franchise be sure to talk to as many franchisees as possible.  Speaking to only a handful is not enough. 

For more information be sure to read this article on franchise due diligence resources.

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In last week's Tip of Week (yes, I am a little behind), John Phillips of the Word on Employment Law raises the interesting perspective that it is possible to overdocument in employment cases.

Some of John's warnings on overdocumentation include:

• Documentation on trivial matters.
• Creating a paper trail right before an employee is terminated.
• Documenting conduct or performance issues for an employee when you have not done the same for others.
• Summarizing in a document right before an employee is terminated all the things you wanted to document when the conduct occurred but didn't.
• Preparing documentation after the employee is terminated.

Granted, John's point is well taken.  It is important to be fair and consistent in the documentation of employee performance and conduct.  Employees should be treated in a consistent manner and it is best to document performance and conduct as it occurs. 

However, I am not sure I necessarily agree that it is best to go forward without any documentation at all when the documentation has not been done right away.  It depends on the circumstances.  There are times when a summary of events written after the fact may be helpful.  Much of this also depends on the way the document is written.  And of course I would never advocate that anyone fabricate evidence.  

Please consult your employment lawyer for advice in a particular situation.   

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Are you considering a franchise business?  Read this blog post on evaluating the strength of your franchisor before signing on from the First Prize Franchise blog.

Time and time again I see people invest their life savings into franchise operations.  Some of these people achieve great results but others do not.  There is no validity to the claim that franchise operations are less likely to fail than non-franchise operations.  One critical aspect to consider in my view is the brand itself.  Is the brand recognizable?  If not, the franchise better have a fantastic system, unique concept or protected intellectual property.  Otherwise, I think you need to question whether the franchise is right for you.

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Today I will present at the Central Iowa SHRM monthly meeting located at Copper Creek Golf Course on electronic workplace issues. The electronic workplace is all around us. Computers, voice mail, internet, intranet, e-mail, fax machines, laptops, PDAs, videoconferencing, social media, blogs and more are common features in the American workplace. The development of the electronic workplace has not come without legal implications. The same technology that allows us to perform work more efficiently creates several twists on several areas of employment law. We will explore many of the dangers and pitfalls in the electronic workplace:

I. Email

• Discovery in Litigation
• Record Retention
• Discrimination, harassment and other concerns

II. Internet

• Accessing Inappropriate Material
• Social Media and Blogs
• Copyright violations

III. Employee Privacy Rights

• Electronic Communications Privacy Act
• Handbooks - lower expectation of privacy
• Consistency

IV. Telecommuting

• ADA
• Workers' Compensation

V.  Employment Ads and Resume Posting on Internet

Program details:  Tuesday, April 8, 2008 at Copper Creek Golf Course, 4825 Copper Creek Drive, Pleasant Hill, Iowa.  Registration begins at 7:15 a.m. Business Meeting begins at 7:40 a.m. Program begins at 8:00 a.m.

1.0 General recertification credit has been pre-approved.

Thanks to the Central Iowa SHRM Chapter for the invitation.

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A new program from the non-profit Iowa Foundation for Microenterprise and Community Vitality (IFMCV), will provide a statewide mechanism for Iowa's microentrepreneurs to connect with community development agencies for assistance. Among the groups spearheading the effort are the Greater Des Moines Community Foundation and the Community Vitality Center (CVC), a policy analysis center based at Iowa State University. The program specializes in providing loans of $35,000 or less to small businesses.

State legislators are considering ways to fund microenterprise assistance programs that would be offered through the Iowa Department of Economic Development. An appropriations bill now under consideration would provide $500,000 to fund a microenterprise specialist at the IDED and begin a microloan program, using unspent Grow Iowa Values Fund dollars.

These are exciting developments for the state's small businesses which have long been ignored in Iowa. For more information please read this article from the Des Moines Business Record.

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It's no April Fool's joke, the Iowa Secretary of State corporate biennial reports are due today, April 1, 2008.  If you have not filed your report be sure to do so today.  In Iowa, limited liability companies are also required to file the report.  If you file online the cost is $30.00 for the filing fee.  The cost is $45.00 if you file a paper report.

If you do not file your report a notice is generated and eventually your corporation will be administratively dissolved after the notice.  You can get your corporation or LLC reinstated but that will cost you additional time and effort.  You also cannot get reinstated unless you have paid all applicable state taxes.

So get your report filed today.  If you know your corporation # and pin # you can file the report by going to the following link:

https://www.sos.state.ia.us/BiennialReports/index.asp

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Pennsylvania employment lawyer Michael Moore has an excellent post on Five Things Every HR Generalist Should Know about Retaliation Claims.  Michael notes that the number of retaliation claims rose 18% in 2007 to a record high, doubling since 1992.  His post covers the following areas:

• What is unlawful retaliation?
• What is "Adverse Action" by an employer?
• What is "Protected Activity by an employee?
• Promptly investigate comments & complaints regarding discrimination.
• Monitor supervisors for adverse action following an employee complaint.

In my experience, employers are usually cognizant of discrimination and harassment claims. However, they are often blindsided by retaliation claims. The successful resolution of a discrimination or harassment complaint means you are only halfway home. Supervisors and employees must not retaliate against the employee who complained. This is especially important because of a United States Supreme Court decision lowering the burden for employees to show retaliation.

Here are some proactive measures employers can take in order to avoid retaliation claims:

1. Make sure your employee handbook includes a policy prohibiting retaliation.
2. Always have alternative reporting avenues.
3. Conduct supervisor and management training on harassment, discrimination and retaliation. 
4. Make sure supervisors and management have been asked the tough questions when it comes to employee discipline. Make sure the discipline has nothing to do with the complaints of harassment, discrimination or retaliation. 
5. Periodically talk with the complaining employee to determine if anyone has retaliated against them. If performance is an issue for the employee be sure to bring this to the attention of the employee and make sure to document your conversations. Document! Document! Document!

As always, be sure to consult your employment lawyer for advice in specific situations.

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I read a Des Moines Register article this past week on a young man who is starting a business while employed by another company.  According to the SBA deputy director in Iowa this happens frequently.  I must say that I greatly admire anyone who has the courage and desire to start their own business. But my question is whether this is good for employers?

This is not an easy question.  On the one hand it is important for an employee to grow and allowing an employee to create a business on his or her own time may in fact create a more productive and happy employee.  Particularly if the employee is starting a business that is different than the employer and they do it on their own time there may be no harm.

On the other hand, an employer pays an employee to do their job.  The employee's allegiance should be to the employer as long as that employee is receiving wages and other job benefits, right?

I must confess that I am not sure whether there is a right answer and it probably depends on the circumstances.  I am aware of many successful companies that draft policies that prohibit outside business activities while many other successful companies provide an environment that encourages employees to start their own companies.

One important risk in allowing employees to start businesses while on the employer's dime is the potential for the employer to start a similar business and steal clients.  This should be prevented.  One way to do this is with a non-compete agreement.  Other ways employers can protect themselves is through the use of confidentiality and non-solicitation agreements. 

But employers may want to read this article on what to do when an employee betrays you.  Unfortunately, many employees are not as upfront and honest as the young man in the Register article.  Employees have a legal obligation to act in the employer's best interests.  If an employee breaches this duty an employer may have an enforceable right.

Photo on flickr by Burpee Gardens.

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Ohio business lawyer Terri Rasmussen has an excellent overview of the resources available on the SBA Website.  (With a hat tip to Joel Libava on the Small Business Trends Blog for the original post).  Terri also refers to a helpful post from Anita Campbell on the Ten Ways Business.gov Helps Your Business.

While I couldn't agree more with these posts about the valuable information found on the SBA Web site, I would add I find the Kauffman eVenturing site to be one of the most useful business resources on the Internet for pure business advice and information.  The quality of the ideas and writing on the Kauffman site is outstanding.

P.S.  If you are looking for an interesting interview, be sure to take some time to listen to Central Iowa's very own Sherry Borzo interview Anita Campbell on the dsmBuzz site.  It's terrific!

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A cautionary tale about partnership from Richard Fox on the Kauffman eVenturing site is an absolute must read.  Fox shares how he thought his legal background would protect him well as he created shareholder agreements, buy/sell agreements, voting trusts, special bylaws and articles of incorporation when he entered into a business partnership.  But even he was surprised when a 50 percent partner tried to sell the company out from underneath him after his father's funeral.  To make matters worse the partner tried to sell the company to their number one competitor.

Fortunately for Fox he was able to ultimately sell the company for a handsome price because he continued to concentrate on building the business rather than retaliating against his partner.  But it's pretty clear Fox believes any business person should be extremely careful when taking on partner.  He offers the following priceless advice (with my comments following):

• Know Your Existing Shareholders' Rights. Shareholders of private companies—even minority shareholders—hold the same legal rights as shareholders of public companies. When you accept shareholders, you accept the same scrutiny that comes with being a public company without the benefits. Understand that you can never be adequately prepared for a shareholder who wants to maliciously assert their shareholder rights to cause you problems. 

(Comment:  In Iowa, all shareholders are entitled to the financial information of the company as well as copies of all corporate documents   I strongly suggest you keep all copies of all important corporate documents and financial information routinely, not just when you need them.  In particular make sure you have any documents that would evidence ownership rights.  It is my experience that often one partner will have access to the corporate documentation while the other partner does not.  Don't let that happen to you).

• Avoid Taking on New "Legal" Shareholders. Entrepreneurs sometimes give ownership interests to key employees to allow them to share in the equity growth of the business. For the reason stated immediately above, you might consider offering "phantom stock," (read this article for more on phantom stocks) which carries all the economic benefits of common stock ownership without the potentially abusive rights of legal ownership. A lawyer should be able to advise you on the details. 

(Comment:  My experience with clients is that most employees really want to be paid more.  I know entrepreneurs often want employees to feel as though they have a "piece of the action".  But I also caution you to think twice about employee ownership).

• Take the high road. Rather than counter-suing the partner, Fox chose to put his energy into building the business. Not only was it good for the business, but it kept from muddying the waters any further and made a much needed ally out of the company's other corporate director. 

 (Comment:  This is very difficult to do is some situations.  Sometimes you may have no alternative but to fight back.  But I agree it is critical to continue growing the business). 

• Be prepared for anything. Pushed to the edge, some people will fight back with extreme measures. Although secretly passing legislation is extreme, be prepared for the unexpected.

(Comment:  I have learned this lesson the hard way myself with business partners in a few of my endeavors.  Do everything you can to protect yourself.  Start by knowing your rights and make sure to document, document, document.  Adversity often brings out the worst in people but amazingly people also change with substantial success.  Researchers have found the mere presence of money changes people.  It is also a good idea to have a trusted confidant that can help you vet a potential partnership without emotion).

• Sell on your way up. Entrepreneurs are "hard-wired" to grow businesses. The idea of selling is usually a far-away concept that is considered, but knowing the best time to sell is not intuitive. Don't wait until you can see the peak because chances are your buyers can see it too and will discount the price accordingly. Plan on a full year for the sale process to be completed; if you pull the trigger too late, you may miss.

(Comment:  This is a tough one for most business people.  You need to have a little luck on your side to sell at the right time.  But it's just like investing in the stock market.  You will likely never sell at the peak so don't be greedy.  A business sale should be a win-win for the buyer and seller). 

Overall, I just can't stress enough the importance of carefully considering whether a business partnership is right for you.  I often joke that it is not a matter of "if" but a matter of "when" the partnership will end.  But this is one joke I don't consider to be a laughing matter.  Fox's tale proves it.   

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Today is my last day with the Sullivan & Ward law firm.  This coming Monday I am taking a hop, skip and a jump over to the law firm of Brick Gentry, P.C. in West Des Moines, Iowa.  This is actually almost literally true as the Brick Gentry law firm is located across the parking lot just to the west of my current office location. 

It is difficult to leave my friends at the Sullivan & Ward firm but I am excited by this new opportunity.  Brick Gentry is a growing law firm with an excellent reputation in the Des Moines legal community for over 40 years.  The firm now consists of approximately twenty-five lawyers practicing in a wide range of areas including business law, municipal law, health care law, employment law, litigation and real estate.   

I'll join the firm as a shareholder and continue to work with my current business law clients and litigation matters.  Rush on Business will also continue although you will notice some changes to the links and contact information on the blog in the next couple of days. 

My new contact information is:

Rush Nigut, Brick Gentry, P.C., 6701 Westown Parkway, Suite 100, West Des Moines, IA 50266.  Phone:  515-274-1450; Fax:  515-274-1488; email:  rush.nigut@brickgentrylaw.com

Thank you again to all of you that read this blog.  I appreciate your support and look forward to this next step in the journey.  Stay tuned for more because I have a few plans ahead to mix it up and enhance the blog.  I'll need to settled in but I am looking forward to working on some new challenges very soon. 

photo on flickr by phxpma

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Here's some great tips for new small businesses.  Some terrific advice.  The top ten tips as listed:

1. Save up as much money as possible before starting.
2. Start on a shoestring.
3. Protect your personal assets.
4. Understand how--and if--you will make a profit.
5. Make a business plan, no matter how short.
6. Get and keep a competitive edge.
7. Put all agreements in writing.
8. Hire and keep good people.
9. Pay attention to the legal status of your workers.
10. Pay your bills early and your taxes on time. 

I especially appreciate the emphais placed on paying your payroll taxes on time, particularly the portion you withhold from your employees' wages. (See the commentary on No. 10).  It is critically important to understand that a corporation or LLC will not protect you from personal liability in the event these taxes are not paid.  (For an example, see a post from my favorite blogging accountant, Joe Kristan).

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I don't know a single employer that can't use some good interview tips.  Fortunately for us Ohio Employer attorney Jon Hyman shares how to avoid hidden interview traps  and common stereotypes to avoid during job interviews.

These are great posts so be sure to check them out.

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The Electronic Discovery Blog of K & L Gates has an informative post on a recent electronic discovery decision out of the Northern District of Georgia. 

In the case the court found that deleted emails were not reasonably accessible and the defendant had no duty to search backup tapes for emails of a sexual nature.

Lessons from this decision:

1. DIscovery requests for emails should be relevent, specific and limited by time, sender and recipient.
2. Following a written document retention and destruction schedule can prevent spoilation sanctions.
3. Plaintiffs should request company-wide email perservation and not rely solely on the fact litigation has commenced.  Requests should also include the names of individuals from whom you want the emails.
4. If the costs of retrieving emails on backup tapes are too high, judges are reluctant to order production.

Read the entire decision here.

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Brian Honnold of Professional Solutions Insurance Services shares important information on IowaBiz that every retailer should know about their insurance coverage when you build out your new retail space in your local mall or strip center.

If you don't fully check out your coverages chances are you will be sorry.

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Interested in franchising your business and have an extra 36 minutes? 

You may want to listen to this informative podcast on AllBusiness featuring franchise lawyers Julie Lusthaus and Warren Lewis discuss the pitfalls of the Franchise Disclosure Document (formerly known as the UFOC).

The new amended FTC rule concerning franchise disclosure documents requires franchisors to update their UFOC by no later than July 1, 2008.  After July 1, 2008, franchisors must comply with the new FTC rule only.  Currently, franchisors may comply with either the former rule or the new rule.

Stay tuned for the next post on some of the differences between the new franchise disclosure document and the UFOC.

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Welcome to a RAGBRAI inspired Blawg Review.  What is RAGBRAI?  The Register's Annual Great Bicycle Ride Across Iowa is an annual seven-day ride across the state.  Heading into its 36th year, RAGBRAI is the longest, largest and oldest touring bicycle ride in the world.  It's not a race.  It's an experience.   And since Blawg Review is a carnival, nothing says carnival in an uniquely Iowa way like bicycles, spandex, pork chops, pie, frivolity and 10,000 of your closest friends!

The weather in Iowa is frigid this winter.  As the weekend of this Blawg Review approaches Iowans brace for another heavy snow.  Our friend Charlie Longbrief looks at the floor below his stationary bike and dreams of summer.  A person can stand only so many YMCA spinning classes.  He thinks back to his first RAGBRAI as a twenty year old when law school hadn't yet entered his mind and the biggest celebrity on the ride was Oakland Raiders great and Miller Lite spokeman Ben Davidson.  Now it's nothing to see the likes of lawyer turned politician John Edwards or the bicycling legend himself, Lance Armstrong.  Armstrong may have participated in the famous New York City Marathon but his heart will always belong with RAGBRAI.  Listen for yourself:

Day 1:  Missouri Valley to Harlan  - 58 miles

This year's ride starts in the river town of Missouri Valley.  While performing the traditional dip of his back tire in the Missouri River, Charlie sees Liz Overton of the Iowa Law Blog who warns him that because of the $350,000 settlement in a 2004 RAGBRAI death bicyclers better beware of the new proposed legislation from the Iowa State Association of Counties.

Unfazed Charlie gets on his bike and sets out on his adventure.  But as he rides off he does ask himself whether Mad Kane is right.  Is it wise to travel with friends particularly where tents are involved?

About 15 miles down the road Charlie takes a break and starts getting an earful from New Yorker Eric Turkewitz about how State Farm has been hit with a RICO lawsuit over alleged sham medical exams.  That hasn't been reported elsewhere and Charlie worries whether State Farm might be doing the same thing in Iowa.  Charlie is so interested he and Eric ride the rest of the way to Harlan together.  Although its only the first day Turkewitz remarks that he agrees with Lance Armstrong . . . RAGBRAI is a hell of lot more fun than his beloved New York City Marathon.

As he pulls into Harlan, Charlie finds himself a little short on cash and heads off to find an ATM.  There he sees John Crenshaw who starts telling him about the biggest scams banks are pulling off everyday. Charlie just shakes his head in agreement as he pays the $2.00 charge to get the money out of the ATM.  After a little angel hair pasta its time to hit the sleeping bag.  There is a big week ahead and unfortunately Charlie isn't twenty any longer.

Day 2:  Harlan to Jefferson - 83 miles

The next morning Charlie wakes up bright and early and sets off for Jefferson.  He has some clients that are buying a business nearby and that reminds him he should heed Larry Staton Jr.'s advice to know what you are getting when you buy a trademark from an existing business.

About half way to Jefferson our city boy is a little mesmerized by the miles and miles of corn.  It makes him wonder whether Farmer David will be able to pay that large patent judgment he now owes Monsanto as reported by the Patent Baristas.

In Scranton, just short of Jefferson, Charlie sees a big group of people gathered in a park off the town's main drag.  There he sees Dan Slater of the WSJ Law Blog who explains that all the hoopla is because the M & M boys have turned their attention to the RAGBRAI water slides because the Naked Cowboy drove them outta of Dodge.  The revelers love it and the log jam causes a very slow ride into Jefferson that evening.

Day 3:  Jefferson to Ames - 56 miles

It's a big day for politicians on the way to Ames, home of Iowa State University.  Barack Obama and John McCain are expected to make appearances today.  Hillary Clinton is here too and keeps talking about how the Florida and Michigan delegates must count.  Obama shrugs it off by saying even his six year old knows it wouldn't be fair to count votes where there was no campaign.  But at least Florida has made significant strides in improving its jury system according to Juries.  While Diane Levin points out voters can learn a lot from the field of negotiation.  Eugene Volokh shares that John Mellencamp may be able to stop McCain from playing his songs after all.

All the political talk has people addressing serious issues on the road today.  Riding on a three person tandum, Leon Gettler of Sox First tells Charlie that Sarbanes-Oxley not only failed to stop the subprime meltdown, it contributed by giving investors the false confidence that they could rely on the law, and not prudence to protect their market holdings.  Scott Greenfield shares that Congress has a pending bill that may immunize banks from paying billions in dollars to a small Plano, Texas company.  Patently-O adds that although DataTreasury is not directly mentioned in the bill it is pretty clear that Section 14 is directed primarily at the company. 

As Charlie rides into Ames he sees Kevin O'Keefe and  Holden Oliver of What About Clients engaged in a heated discussion about whether corporate clients really want a lawyer that blogs.  O'Keefe says yes while Oliver says no.  It then gets a little personal when O'Keefe accuses Oliver of being someone else.  Charlie blames Teri Rasmussen who started the whole thing when she said every client should want a lawyer who blawgs.

Day 4:  Ames to Tama-Toledo - 75 miles

Charlie gets ready to head off to Iowa's version of the twin cities today.  In the pancake breakfast line he meets Connie Crosby who is kind enough to introduce him to David Bilinsky.  David tells Charlie all about how there is a great need for law firms to turn their senior partners into business leaders.  David Maister overhears them and chimes in that one-firm firms are often quite successful.

After an uneventful morning Charlie witnesses an accident on today's route where someone goes to the hospital.  It looks like the rider will be okay but David Harlow of HealthBlawg warns that hospital-acquired infections are a real problem.  Iowa estate lawyer Matt Gardner says that even if the rider makes it through he should still think about the disposition of his bodily remains.

 As he enters Tama (or is it Toledo), John Phillips of the Word on Employment Law almost runs smack into a little beagle that darts in front of him.  The incident causes John to conclude that beagles should no longer be excluded from the Animal Employment Protection Act (AEPA).  John is obviously a little excited about the near miss and starts rambling about how he handled the situation a whole lot better than Roger Clemens handled the accusations from Brian McNamee.

Day 5:  Tama-Toledo to North Liberty - 82 miles

Now that we have passed the mid-way point for this year's ride, everyone is a little loosey-goosey today.  Charlie's cadence starts to pick up as the wind blows with the sweet smell of pork chops.  That could only mean that Mr. Pork Chop is nearby.  As he pulls off the roadside to visit our pork chop hero, Charlie sees that Iowa legal blogger extraordinaire Brett Trout and his band of Iowa legal bloggers are engaging Mr. Pork Chop in a battle of wills to determine who has the loudest pork chop call.  Sadly, while Trout may be Iowa's toughest attorney he is no match for Mr. Pork Chop in this arena.  Hear why:

After a pork chop and a short nap Charlie rides along to catch up with Michael Moore who discusses risk management in employee terminations and explains sometimes the "How" is as important as the "Why".  Pretty soon both of them come across a big party along the roadside.  A crowd is gathered around Dennis Kennedy who apparently is still celebrating his blawgiversary and birthday.  During the party Tulane Law Professor Alan Childress wonders aloud whether any Iowa legal counselors had ever been in trouble like the lawyer that got into trouble with his state bar by trying to talk his way out of a ticket for deer hunting.

Still a little full from his banana cream pie, Charlie and his new friend Charles H. Green ride along at an easy pace discussing that as more and more banks and consumers walk away from loans--and contracts gone bad, we are reminded that legally binding contracts are often only as strong as the morality of those signing them.

That evening after dinner there is lots of entertainment in North Liberty.  At a concert Cathy Gellis proclaims, "I need a husband!"  The revelation causes Jon Hyman to explain what happens when office romances go bad.  But Cynthia Shapiro, who received her RAGBRAI pass from George's Employment Blawg, says you might be able to have that office romance if you know a few secrets.  When Jennifer Jaskolka-Brown overhears them she warns them that email has made it much easier to collect damaging evidence in divorce cases.

Day 6:  North Liberty to Tipton - 62 miles

Charlie decides to join the Lance Armstrong peloton this morning for some fun.  As you might expect with Armstrong the ride is a little faster paced today.  There are several others brave enough to join the pack this morning:

• Colin Samuels says he'll never say never when Charlie asks if he'll ride again but Colin sure didn't like it when he got lost on the road from Harlan to Jefferson.
• David Lat explains that the only reason he is on the ride is because his playstation didn't arrive on time.
• Daniel Solove says this is more fun than being interviewed by Money Magazine.
• Barry Barnett offers tips on how to make the ride easier when you are with him.
• Jackie Dowd contemplates what life would be like without a legal system which is maybe a little profound this late in the ride. 
• Carolyn Elefant is usually Solo by Choice but today she is content to ride with the group especially since she thinks Lance is so cute.
• Anne Reed says sometimes its better to walk this way but Charlie can't imagine a walk across Iowa. 

Day 7: Tipton to LeClaire - 55 miles

The last day!  On his ride to LeClaire, Charlie meets up with the anonymous Editor of Blawg Review to tell him the ride has been worth it.  Together they dip their front tires into the Mississippi River where Charlie quips that normally what happens on RAGBRAI stays on RAGRBRAI, but this year what happens on RAGBRAI ends up on Blawg Review!

 * Legal Disclaimer:  This Blawg Review is a work of fiction.  Names, characters, places, events and incidents either are the product of the author's imagination or are used fictitiously.  Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.  My dear friend and fellow Iowa legal blogger Brett Trout takes the helm next week.  We wish him well as he tries to best the excellence of his previous effort on Blawg Review #106.

--------------------------

 Flickr Photo Credits:  johnedwards2008, wade, blmurch, MNgilen, IaRuth, wade and artandscience

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A .300 batting average may get you into Major League Baseball's Hall of Fame but winning only 30 percent of your employment lawsuits won't do the trick.

See Mark Toth's Manpower blog for the results of the Question of the Week - What % of employment lawsuits are won by employers?  That's right, only 30 percent.

But fortunately there are things an employer can do to increase their chances to win and/or avoid lawsuits.  Jon Hyman offers several suggestions for the proactive employer:

1. Review and update handbooks, policy manuals and forms;
2. Implement a document retention and destruction policy;
3. Implement a harassment training program;
4. Audit job descriptions and employee classification for wage and hour compliance;
5. Properly document all performance problems.

photo on flickr by ewen and donabel

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Chris Moander of the Wisconsin Business Law and Litigation Blog shares his take on the timeless advice that business people can pay for it now . . . or pay for it later.  Chris points out that many business people sadly lump legal services into the "too costly" or "unnecessary" categories when it comes to starting or running a business.  And while good legal services are not cheap it may actually save you in the long run.  Here are some of the downsides for not seeking professional advice as described by Chris:

• Purchased form documents create a false sense of security as “boilerplate” terms are assumed by the entrepreneurs to be “safe,” which is hardly the case. Owners who are not getting along and decide to split may find themselves mired in extremely expensive litigation over a long period of time, all of which could have been avoided by spending a fraction of the litigation costs on quality document drafting by an attorney.
• Technical faults in any number of license or regulatory filings go unnoticed until the company is audited, a criminal investigation occurs, or some other form of litigation begins. The litigation costs dwarf up-front legal costs due to the belief that preventative legal advice was not necessary or worthwhile.
• Buyers and sellers throw together an amalgam of words, believing that the resulting document reflects a mutual understanding. Eventually, one party feels aggrieved and suddenly the so-called contract is revealed as imprecise and nebulous…and so costly litigation commences.

My favorite blogging CPA, Joe Kristan, also shares similar advice over on IowaBiz.com.  Joe's moral?

When you mess with the ownership of your business, it's a lot cheaper to call a business lawyer and a tax guy before you do the deal; it costs a lot more to repair a deal than to do it right in the first place. 

Focus on doing it right the first time.  You will never regret it.

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Terri Rasmussen of the Ohio Practical Business Law Counsel blog says that every client should want a lawyer that blogs.  As you might guess, I agree. 

Why is it important, you ask?  Terri shares her thoughts (with some comments by me):

1. Knowledgeable Entrepreneur.  The blogging lawyer thinks in broader terms about what they want to know and what they can offer to clients.
2. Communication 101.  Connecting in a simple, straight-forward manner is key.
3. Authenticy and Real Voice.  You get to see the personality of the lawyer. 
4. Quality and Competence.  There is some ability to assess the quality and competence of the lawyer you are thinking about hiring.  No way to do that with a yellow pages ad.  This is where Terri makes perhaps her best point.  Any lawyer that is willing to put themselves out there and open up to scrutiny ought to be high on the list of any client.
5. Commitment to the Law Made Practical.  Most clients want to deal with a lawyer that just isn't in it for the money.  Why not consider a blogging lawyer that not only spends their spares time writing but also GIVES AWAY practical information to help people?  Blogging lawyers care.

Like Terri, I strive to have fun and help people through my blog and there is no question it has made me a much more effective lawyer.  Blogging is an educational process.  Not just for the reader but especially for the writer.  Without blogging I would never get to learn from great lawyers like Terri.

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It's always nice when people say great things about you but I am particularly humbled by a recent post from What About Clients?  WAC? is one of the great blogs (and I do mean great as evidenced by their award as the Best All Business Blog for 2007 by the ABA).  I respect Dan Hull and his gang for their absolute passion to delivering superior customer service.  WAC? is really just an extension of that passion.  As a young lawyer it was drilled into me that you do whatever it takes to serve clients and even a little bit more.  It's apparent Dan Hull lives that motto every day - 24/7.

But now there is a little pressure for the Blawg Review on February 18th.  Between WAC? and the comments from the wildly popular Iowa patent attorney Brett Trout I better not disappoint.

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When our law firm started the Iowa Law Blog, I had high hopes despite the fact that I knew a firm-wide blog would not be easy.  But I saw what Stark and Stark had created with their New Jersey Law Blog and knew it could be done.

I don't know if you have noticed lately but Sullivan & Ward's Iowa Law Blog really seems to be catching its stride.  Three blogging faithfuls (Matt Gardner, Jennifer Jaskolka-Brown and Liz Overton) are creating a wealth of information in niche topics of Iowa law including weath and estate planning, family law and employment law.   Here are some of their great posts this past week:

• What is Probate for an Iowa Estate?
• Full Disclosure Required in Prenuptial Agreements
• You're Fired

Plus we officially (finally) made the I list.   Thanks to Chris Punke for that great widget.  Now I just need to get it on the blog.

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Did you know that women are starting businesses at twice the rate of men? 

Check out this interesting video from the Forbes.com Network featuring an unique program from Count Me In for Women's Economic Independence, a provider of micro loans and education for women entrepreneurs.   The non-profit organization's goal is to inspire one million women to reach $1 million in revenues by 2010. 

For more information be sure to visit the Make Mine a Million Web site.  It's a great concept that Iowa's women business owners should investigate more closely to see what opportunities are available. 

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 I often tell clients it is important to establish relationships with at least four individuals when they start a business:

• Lawyer
• Accountant
• Banker
• Insurance Agent

But in order to have a starting five we need to add a fifth professional.  Who would I add?  How about a marketer? 

But the real reason I wrote this post was so I could shamelessly plug the best team in Iowa.  The Drake Bulldogs basketball team has now moved to 19-1 with a hard fought win over Creighton last night.  The 16th-ranked Bulldogs are clutch this year and have found ways to win at the end of the close games.  Excellent free throw shooting never hurts and last night was no different.  It was a great crowd and great fun.  If you get a chance be sure to catch a game this magical season.

It's been a long time Drake fans had this much to cheer about.  Go Bulldogs!

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Under a new Iowa immigration bill, employers that repeatedly employ illegal aliens would face civil penalties of up to $10,000 and up to a year in jail under legislation being proposed in the legislature.  Employers would be exempt from penalties if they seek verification of a worker's citizenship status through the Department of Homeland Security's verification system.  But many employers complain that system is dreadfully slow.

House File 2026 has sparked significant debate.  Democrats claim it is a human rights issue.  Republicans claim it is pure politics in an election year and intended to protect unions while harming non-unionized independent contractors.   The Hispanic community in particular has great fears that jobs will no longer be available in Iowa under the new law.

This bill may have the biggest impact on Iowa businesses this legislative season.  Read  House File 2026 here.

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Employee lawsuits are continually on the rise.  So how do you keep your employees happy and stay out of court?

While it is technically not a "legal requirement" I have long suggested that treating employees with respect is the best way to avoid employee lawsuits.  Building on this thought I recently saw a couple of excellent posts from employment lawyers John Phillips and Jon Hyman concerning fairness as the Golden Rule of Employee Relations.

Treating others as you want to be treated is a concept that even young children understand.  But while the concept is easily understandable employers still have a difficult time being fair.  To this end, Phillips offers five areas of fairness where employers should concentrate their efforts:

1. Appearance: does an employment action appear fair to an outside observer?
2. Counseling: except in the most egregious of cases, was the employee told of a deficiency and given a chance to correct it?
3. Consistency: are similar disciplinary problems handled similarly and to the same degree?
4. Documentation: can you point to a performance review, written warning, a note in a personnel file, or some other contemporaneous piece of paper that supports the personnel decision?
5. Rationale: was the employee given a reason for the decision, and was it the real reason?

As Hyman points out, juries are big on fairness.  It is critical to remember that in a jury trial your jurors are likely to be employees rather than employers.  Being fair will not only reduce the employment claims against you but increase your chances of success if you are sued.

So next time you deal with an employee disciplinary situation be sure to remember the Golden Rule of Employee Relations.  It will make a difference.

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The Iowa Farm Bureau is sponsoring a business development seminar on February 7, 2008 at the Iowa Farm Bureau Auditorium in West Des Moines, Iowa.  (I didn't see a start time on the Web site but for further information you should contact 1-800-254-9670).

The Renew Rural Iowa is an Iowa Farm Bureau program that combines an innovative mentoring model for entrepreneurs with a rural vitality investment fund.  The program is designed to enhance the enterprise value of existing or new small town businesses to encourage their reinvestment within the community, thereby increasing the overall wealth of that community.  The program combines the relationships, network and resources of IFBF with the business mentoring muscle of Cedar Rapids-based Entrepreneurial Development Center, Inc. (EDC).

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Read this post from Indiana lawyer Sam Hasler to find out why it is so important to respond promptly and appropriately to sexual harassment complaints. 

In the case mentioned by Sam, Chili's Grill and Bar escaped liability even though the employee established a prima facie case of harassment in her lawsuit.

Sam also has some great advice:  "Having a harassment policy is not enough. Having a that policy in an employee handbook is not enough. Having the policy and enforcing the policy is the key to success."

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I've said it before (and also here) but it bears repeating that wage and hour class actions are booming.  Just this past week Iowa's Casey's General Stores was hit with a wage and hour lawsuit with allegedly more than $5 million at stake.  If that isn't enough to convince you to examine whether your company has vulnerabilities you better read this informative blog post from Mark Toth of Manpower.

The 4th Annual Workplace Class Action report from Seyfarth Shaw shows the volume of wage and hour class action continues to grow exponentially.  As the report's editor says, “identifying, addressing, and remediating class action vulnerabilities” should be at the top of every employer’s list of 2008 priorities. 

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This post from the New York Business Divorce Blog will make you think twice before becoming involved in a business with your romantic partner.

I recently wrote on the firm's Iowa Law Blog that one way to avoid a volatile business divorce is to draft and enter into an effective buy-sell agreement with your partner(s).  This is true whether you are entering into a business arrangement with your spouse, significant other or friend down the street.  Rarely do partner spouses enter into buy-sell agreements.  Like prenuptial agreements, it may not always be comfortable to form a buy-sell agreement  with a spouse.  But it is advisable nonetheless.

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Today I'll be pinch hitting for Brett Trout at the Des Moines Partnership's Biz Networking Luncheon.  I will cover how to stop doing things online that will land you into court.  The best part of this presentation is I get Brett's material.  I hope to see you there today.

This event will be held in the Arthur Davis room at the Greater Des Moines Partnership on January 15th. The luncheon will begin at noon and will conclude at 1:30. The cost of the event is $10 for members and $12 for non-members.  To RSVP for the event, please email Cathy Spenceri at caspenceri@dmacc.edu . We hope to see you there!

photo on flickr by jimcchou

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This Wednesday morning (Jan. 16th) I will speak at the IowaBiz breakfast series on the How To Avoid Legal Surprises for Your Company.  The presentation begins at 7:30 a.m. at the Professional Solutions Insurance Services' Building, 14001 University Avenue, Clive, Iowa.

Thanks to our hosts from Professional Solutions Insurance Services.  So far, the series has been fantastic including talks from Drew McLellan, Shirley Poertner, Brian Honnold and Mitch Matthews.

I hope to see you there.

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The Pennsylvania Employment Law Blog posts on how Lockheed's failure to take discrimination complaints seriously led to liability. 

Want to know how to avoid employment lawsuits?  See one of my more popular posts: 

 Seven ways to avoid employment lawsuits. 

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If you are looking at a franchise opportunity perhaps you should beware if your prospective franchisor says the following:

1. You don't need a lawyer to review the agreement. 
2. I would prefer you don't talk with the other franchisees.  You should only talk with me.
3. We won't negotiate any terms.
4. Trust us, we can't (and won't) change the agreement but we won't really hold you to that provision anyway.

Like many people you may be considering an investment of your retirement savings in a franchise.  You owe it to yourself to do the best job possible investigating that franchise and performing the most due diligence possible.  That includes hiring franchisee counsel to review the franchise agreement and disclosure document and talking with as many franchisees as possible.  Some franchisors won't negotiate but many will consider your needs.  And never, I mean NEVER, believe the franchisor that tells you they won't hold you to the terms of their written agreement.  You can be assured that the franchisor's lawyer in any lawsuit will never acknowledge that statement was ever made and most franchise agreements are written so that any such statement could not be used as evidence anyway.

Trust your gut.  Don't believe the hype.  Be willing to walk.

photo on flickr by Picture Perfect Pose.

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Is your business in need of a buy-sell agreement?  Don't know how to get started? 

An excellent resource worth considering is a book from Z. Christopher Mercer called Buy-Sell Agreements:  Ticking Time Bombs or Reasonable Solutions?   A blog post from Mercer worth reading also raises an excellent point regarding buy-sell agreements:

If you are in the process of creating a buy-sell agreement, be sure that the document actually reflects the agreement of the parties to the critical business and valuation issues that relate to the particular situation.  If you have an existing buy sell agreement, review it to insure that it reflects agreement of the parties on key business and valuation issues that currently pertain to your situation (and not to the situation fifteen years ago when you first signed it!).  In both cases, be sure through review by competent legal counsel, that the agreement appropriately considers legal issues that pertain to your situation.

Seems like common sense but I recently learned of a situation where two owners had drafted their own agreement. (Kudos for at least recognizing the need for it).  The owners agreed upon a valuation.  The problem that arose is that neither owner really understood the valuation they had agreed upon and as their business progressed the valuation did not reflect the realities of their business.  The failure to review and implement an agreement with competent counsel has now resulted in litigation. 

It's also wise to get advice from an accountant or other business valuation expert when creating the buy-sell agreement.  A team approach is often very helpful.

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The Iowa Caucus is approaching quickly.  If you attend campaign rallies for the candidates or listen to TV ads you will almost never hear anything about small business. 

But in reality, America's small businesses are the driver of our economy.  Consider these facts from the Small Business Administration (SBA) as outlined in February 2006:

10. Small businesses make up 99.7 percent of all United States employers.

9. Small businesses create more than 50 percent of the American nonfarm private gross domestic product (GDP).

8. Small patenting firms produce 13 to 14 times more patents per employee than large patenting firms.

7. The more than 24 million small businesses in the United States are located in every community and neighborhood.

6. Small businesses employ 50.1 percent of the United States’s non-farm private sector workers.

5. Home-based businesses account for 53 percent of all small businesses.

4. Small businesses are 97 percent of America’s exporters and produce 26 percent of all export value.

3. United States saw an estimated 580,865 new small firms with employees start-up in the last year measured.

2. There are approximately 4,115,900 minority-owned businesses and 6,492,795 women-owned businesses in the United States, and almost all of them are small businesses.

1. The latest figures show that small business creates 65 percent or more of America’s net new jobs.

I encourage you to find out where the candidates stand on America's small business issues.  It's an issue vital to our economy.  You are unlikely to find an express position regarding small business on any of the major candidates' Web sites, so you will need to ask them.  Seriously, can anyone tell me where their candidates stands on SPECIFIC small business issues? 

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With 2008 fast approaching perhaps you are considering the pursuit of the American Dream to own your own business.  But where do you start?  Here are some helpful legal tips to consider before you start your Iowa business:

1. Find out the availability of your proposed business name. You can do a quick search on the Iowa Secretary of State Web site to see whether your name is available. If the name is available you may want to reserve the name through the Secretary of State but you are not required to do so before forming your business entity. You may also want to consider whether any company outside Iowa has your business name. You can conduct a free search on the U.S. Patent and Trademark Office or use a paid service to research trademarks nationwide. It is also a good idea to check whether someone has your proposed Internet domain name.  An intellectual property attorney could also be very helpful in this process.

2. Pick a Place to Incorporate or Form a Limited Liability Company (LLC). I am sometimes asked whether an Iowa company should incorporate or form an LLC in another state such as Delaware or Nevada. In general, an Iowa small business is probably better off incorporating or forming an LLC here in Iowa. The filing fees are low and the ongoing fees for registering the business in Iowa are among the lowest in the country. (Only $30.00 every two years if you file your biennial report online).

3. Choose the Shareholders and Directors. If you are forming a corporation who will be the shareholders in the company?  If it's an LLC, who are the members? These are the owners of the company.  Determine how much capital you will need. Do you have enough capital or access to capital in order to start the business on your own? If not you may need to consider other investors.

In most cases the shareholders of the small business are also the directors. Do you want outside directors? There may be good reasons to have outside directors but think this over carefully before you elect to do so.  Electing outside directors may limit your control over the business.

3. Create your Articles of Incorporation or Organization. The articles of incorporation (corp) or organization (LLC) act as a charter to start your new business in Iowa. The filing fee with the Secretary of State is currently $50.00. It is generally a good idea to have an Iowa business lawyer prepare your Articles of Incorporation or Organization and other corporate documents.

4. Prepare corporate bylaws or operating agreement. The bylaws (corp) or operating agreement (LLC) set out the operating standards and procedures the business company will follow.

5.Create meeting minutes, resolutions and agreements. It is a good idea to document the initial meeting minutes of the company including the meetings of the shareholders and directors or the members. At this time, you will elect the officers of the company including the president, vice-president, secretary and treasurer. You will also issue stock (corp) or membership (LLC) certificates at this stage. If you have multiple shareholders or members you will also likely need a buy-sell agreement.

6. Obtain your employer identification number (EIN). Your corporation or LLC will need to obtain an employer identification number from the IRS. This can be done through a convenient online application process.

7. Elect your tax status.  There are several different options for how your corporation or LLC could be taxed.  Make sure to talk with both your accountant and lawyer about which form of business entity is the most advantageous for your situation.

8. Open a bank account. You will typically need the EIN and a banking resolution in order to do this.

9. Obtain any licenses and permits. You will need to check the federal, state and local regulations to determine whether you need and licenses or permits to operate your business.

10. Follow the corporate formalties of running a business. In Iowa, this includes registering your business every two years with the Secretary of State's office. You also need to do corporate minutes at least on an annual basis including the election of officers and directors. Sign all documentation using your title as a corporate officer. You will also want to minimize or avoid situations where limited liability is not an absolute.

For more information on setting up an Iowa corporation or LLC please visit my small business formation page. 

photo on flickr by MargaretFun.

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Abe Lincoln, Freedom Fighter (1978)
Abe: I don't know about this politician business.
Judge: What do you mean by that?
Abe: If I have to sacrifice my integrity for politics, I guess I'll just have to stay a lawyer! 

Up to this point I have avoided blogging on politics and the Iowa caucus.  It's a no win situation for me.  I have clients on both sides of the aisle and a policy not to debate politics with clients has served me well.    Besides, Iowa lawyers like Gordon Fischer and Ted Sporer do a tremendous job of covering politics with their blogs so I'll leave the debate to the experts.

But one campaign strategy surprised me.  Many of the candidates are lawyers.  But as Joe Kristan recently pointed out, lawyers are not exactly the apple of the public's eye.  It's probably part of the reason why lawyer candidates tend to rarely emphasize their legal careers.  But one candidate has decided to go against the grain.  Trial lawyer extraordinaire John Edwards is campaigning in Iowa today with his most famous client.

As detailed in his book, Four Trials, Edwards obtained a $25 million judgment on behalf of Valerie Lakey and her parents.  Valerie nearly lost her life when she was disemboweled by a swimming pool drain that was incorrectly attached.  He has sent out mailings featuring the Lakeys and is now campaigning with them.  He also unabashedly points to his career as a trial lawyer as an example of how he will stand up and fight against corporate and special interests.    It's a bold but risky move given the public opinion of trial lawyers in particular.  But I am proud of Edwards for not shying away from his tremendous career as a lawyer. 

While the image of lawyers could be improved, it should start with lawyers being proud of the profession they have chosen.  We offer society a valuable and important service.  My thanks goes to lawyers like Edwards who aren't afraid to talk about it.   

Photo on flickr by alexdecarvalho  

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There is a nice article in the Business Record by Amanda Ripp this week about the Central Iowa Blogga Nostra gaining momentum and growing in popularity.  I am continually impressed with the quality of individuals and business people who are blogging in Central Iowa.  The article features several quotes from members of the Blogga Nostra extolling the benefits of business blogging: 

Mike Sansone (Blogging and social media coach): "The reach (of blogging) extends beyond borders; it brings money and business into Iowa."   "In the old days, it took a phone book and a chamber of commerce to extend your business to another city," Sansone said. Blogga Nostra members are extending their businesses through more high-tech means with their blogs.

Angela Maiers (Independent education consultant):  "I have seen a difference, not just with blogging, but being on the Web," Maiers said. "It has helped me to build connections with businesses and other educators, and helped me to prepare students for the 21st century. There are powerful people with powerful ideas outside of the classroom and I have made those connections through blogging."

Timothy Johnson (Chief Accomplishment Officer of Carpe Factum and professor at Drake University):  Timothy met his favorite author, Steve Faber, through blogging.  "A couple of months after I began blogging, I got an e-mail from Steve, out of the blue, complimenting me on my writing," Johnson said. After making the connection, Faber spoke to one of Johnson's classes.

Mike Wagner (branding consultant):  "When there are possible business opportunities, you are able to sustain those relationships," Wagner said. "You have a shot to do business with people. Typically you hand a business card to someone and they throw it away. Give them a brochure, maybe they read it and then they throw it away. With blogging you can keep up the conversation. You keep business growing and react to consumers through an interactive piece."

Brett Trout (Iowa patent and intellectual property attorney):  If a blog is linked to a more popular or higher-traffic blog, it will be easier for search engines to find the site, increasing the blogger's popularity, Trout said, "This is huge to Google."

Andy Brudtkuhl (Web developer with Simplifive):  "The diversity of the group makes for different readership; it allows us to cross audiences," said Brudtkuhl,

and even this Iowa business attorney:  "You link out to other people, or mention them on a post; it is a reciprocal effect," . "They write about you, and then someone else writes about that [post].  That's how it grows."  "The cost is minimal, Bloggers can spend anywhere from nothing to a couple hundred dollars per month. Web sites can cost thousands of dollars to maintain."

So what are you waiting for?  Join us at the Panera U in West Des Moines the first Friday of every month.  It's a great opportunity to meet new friends and gain business contacts.

P.S. Thanks to fellow Central Iowa Blogger, Doug Mitchell, for lunch today.  Doug is a perfect example of someone that has gained contacts through the Central Iowa blogging community and is now using those contacts to build a business.

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The New York Knicks sexual harassment case provides some great lessons on employment law.  Previously I touched on the Knicks case in explaining how companies could avoid sexual harassment claims.  Now the case has been settled and there are additional lessons to learn.

Frank Steinberg of the New Jersey Employment Law Blog explains the importance of "fee-shifting" in employment law discrimination cases.  In these cases the loser pays the attorneys' fees of the other side.  This places a great deal of pressure on the defendants to consider settlement.  As Frank said,

It is quite possible that, depending on the cases, the fees could be greater than the damages awarded to the plaintiff.  Thus, a realistic evaluation of the likelihood of complete success should always be a part of the defense strategy and should be evaluated on a continuing basis. 

You should always consider business strategies for litigation.  I encourage you to approach litigation dispassionately and consider the best business approach to ending your dispute.  Sometimes the best business approach means litigation is necessary but only after you have carefully evaluated all aspects of your case to determine how to prevail, or at the very least, extract yourself from the litigation under the most favorable settlement terms.

Or, if you got your brains beat in like the Knicks did settlement is never a bad option.

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Iowa accountant Joe Kristan of Roth and Company shares some year-end tax planning ideas over on IowaBiz.com. 

It's a good idea to visit your accountant now (if you haven't already) to determine if there is anything you can do to improve your position come April. 

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Iowa has never been the hot bed for franchisors but it seems as though some Iowa franchisors are really picking up steam.  According to the Des Moines Register this morning Chocolaterie Stam stores have expanded to Ames, Chapel Hill N.C., and Wauwatosa, Wisconsin.  Upcoming stores including Minneapolis and Steamboat Springs (that would be my personal favorite) and also is contemplating stores in Kansas City or West Des Moines.

Another expanding local franchise is Maid-Rite.  It is my understanding Maid-Rite is growing rapidly with plans to head into Florida and Texas and with the new store design it's easy to see why.  This definitely is not your father's Maid-Rite.

But if you are considering these franchises be sure to conduct your due diligence and consider the fundamentals for franchisees in your negotiations.  Don't fall in love with the deal.  (I know it's tough with chocolate but control yourself). 

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Looking back on the first year of work at the Business Innovation Zone (BIZ), I have met with over 60 potential clients ranging across a wide variety of business areas.  I have learned much on this path. First and foremost, I have learned to never prejudge an idea. I must say that some of the most "unique" sounding ideas described in an initial phone call or meeting have turned out to have the most merit. The entrepreneurs in this area have a tremendous amount of creativity and several have identified truly unique market niches that have not been exploited to date. Along with those great ideas, I have met with many whose ideas I found lacking. Asking hard questions has become a well worn path for me. In many cases the idea has not been thought through from a business perspective. The euphoria of the "perfect product" has overshadowed the realities of a profitable venture. I often find myself asking potential clients questions about the running of their prospective business. For many, it is a rude awakening as they come to understand the immense hardship and stress that will come with starting a venture.

I am often asked what advice I have for would-be or current entrepreneurs. Here are my thoughts for those starting out:

• Seek out many opinions on your idea. Do not just "go with your gut".
• Spend time up front on a business plan, but only to the point that you frame your path and plan. Business plans evolve rapidly when you are forming a business, rarely surviving the first customer engagement.
• Know your exit points. It is easy to look out and say "I will sell my business for $xxx,xxx,xxx". It is much harder to say, "I am only going to invest $xxx,xxx" or a certain amount of time. Treat your venture as an investment and know when to exit as the event arrives.
• Take a balanced approach to your idea and business. Do not ignore important areas for lack of knowledge or assume that "I will figure it out when I get there".
• Relationships matter. No matter how automated or high tech things get, the relationships you build will support your company and conversely the lack of relationships will guarantee its failure.
• Learn to sell. Selling is ABSOLUTELY CRITICAL to your initial success. Hiring a salesperson is not the answer in the initial phases of a startup. You the entrepreneur must be prepared to get out and sell your idea, your product, your service, and yourself.
• Finally, spend a substantial amount of time understanding the cash flow of your business. For most businesses, the lack of cash flow management is the single greatest failure point.

From Rush:  BIZ is a community sponsored non-profit business accelerator designed to provide economic growth in Central Iowa through the development and expansion of entrepreneurial enterprise.  Particularly if you have a business in Central Iowa that is poised to grow regionally, nationally or globally, I encourage you to contact Mike. 

photo on flickr by aloshbennett

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I have seen many articles on the Internet which state that you absolutely need to form a limited liability company (LLC) if you are a small business owner.  The S corporation, once the darling of small business entities, must now feel like the red-headed step child.

But as New York attorney Derek Underwood points out LLCs are not always a good fit for the small business owner.  You may be able to save on self-employment taxes by using an S corp instead of an LLC.  But as Iowa accountant Joe Kristan cautions you need to be careful when you set your "reasonable" salary.  Joe says the issue is given greater scrutiny by IRS auditors these days.  It's important to get advice from an accountant and/or business attorney on the issue when you make the decision about which business entity to choose.

Please note:  In Derek's post he mentions that an S corporation is usually less expensive to form than an LLC.  In New York the filing fees for an LLC are considerably more than an S corp.  However, in Iowa the filing fee for LLCs and S corps is currently $50.00.

photo on flickr by digitalclickclick

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Kyle Kruidenier provides a good reminder for landlords over on the Iowa Law Blog.

Landlords:  Don't forget your rental certificate.

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Recently I have been discussing the rise in wage and hour litigation.  See here and here. 

According to the Department of Labor approximately 70 percent of businesses are out of compliance with wage and hour laws.  That's right - 70 percent!  According to Shanti Atkins of the Compliance Training Blog, some experts believe this number is even higher.

But you might be asking yourself, "How could my business be out of compliance?  Everyone is salary.  I don't need to pay overtime.  Besides employees can volunteer their time."  As Mark Twain said,

It ain't what you don't know that gets you into trouble.  It's what you know for sure that just ain't so.

So what are some helpful tips to avoid wage and hour lawsuits?

• Conduct a Wage and Hour Review.  Your first step should be to get with an employment law attorney or other wage and hour/human resources specialist who can review your pay practices to determine whether you are in compliance with the law.  The cost spent for a review and developing a compliance program could save you tens of thousands of dollars in the long run or perhaps even millions if you run a large company. 
• Train Managers.  Making sure managers understand the rules is paramount.  Managers can avoid costly mistakes and spot problems before they become too costly.
• Think Exempt - Non-Exempt, Not Just Salary - Hourly.  Too many employers pay employees a salary and then believe that relieves them from any obligation to pay overtime.  Employees need to make sure those employees are properly classified as exempt (someone who is typically not paid overtime) or non-exempt (someone that is generally entitled to overtime).
• Take Complaints on Wage Issues Seriously.  You want to treat wage and hour complaints just as seriously as employment issues including harassment or discrimination.  In fact, these wage and hour lawsuits could be more costly to your business.
• Do Not Retaliate.  Never, never, never retaliate against someone that makes a complaint for wage and hour issues.
• Develop strong policies on pay practices and employee hours.  Make sure employees work those hours assigned and do not work off-the-clock.  Above all, properly document the number of hours worked because just like in baseball where a tie goes to the runner - if the employer has not documented the hours worked by the employee - the benefit of the doubt will go to the employee. 

The Department of Labor Web site is an excellent place for more information or please feel free to let me know if you desire more information on wage and hour reviews.

Update:  SMBTime blog had a great point in a follow up to this blog post regarding the fact that businesses should consider hiring an attorney to conduct the wage and hour audit so as the maintain the attorney-client privilege. 

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Thought I would share this article from Seeds of Growth following up on Mark Cuban's talk at Blogworld. 

Remember:  In business, you only need to be right once to be a success.

Did you know that a certain Central Iowa patent attorney also appeared at Blogworld?  Quite a feather in Brett's cap.

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Accurate and properly written job descriptions can be an invaluable aid in hiring well and legally.  But bad job descriptions . . . well that can be worse than none.  Inaccurate descriptions, and those that an employer allows to become outdated only confuse the hiring process, complicate employee reviews and make accommodation under the ADA a daunting task.

For those reasons, any employer that adopts written job descriptions must commit itself to the ongoing task of ensuring that all descriptions prepared and circulated are accurate initially, reviewed periodically and updated as necessary.

In preparing a good job description, an employer should keep the following in mind:

• List specific qualifications.  Ensure that all educational "requirements" are mandatory, or consider using the phrase "or equivalent experience."
• List essential job functions and duties.  Carefully determine if the position has any lifting and other physical requirements.  If the description contains physical requirement, they must be "essential" or the requirement may be found to discriminate against disabled job applicants.  Be as specific as possible about responsibilities and duties, particularly supervisory and discretionary duties, because job descriptions (and duties) are important in determining whether an employee is entitled to overtime pay.
• Seek appropriate input.  Seek input from employees who hold the position and their managers to ensure accuracy.
• Identify and list the pay range.
• Use appropriate language.  Keep language neutral, non-age restrictive and relevant to job requirements.  For example, say "college degree required" as opposed to "recent college graduate".
• Monitor accuracy.  Implement and monitor a system to ensure that all job descriptions are current and complete.

For further discussion on job descriptions visit an excellent post from attorney Liz Overton on Sullivan & Ward's Iowa Law Blog.  Another insightful post is from Pennsylvania attorney Michael Moore (no not that one) who explains that proper business records (including well written job descriptions) are your only true defense in surviving a wage and hour audit.

Photo on flickr by macartisan.

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On IowaBIz.com, West Des Moines accountant Joe Kristan shares a story about what happens when you try to take personal deductions for corporate expenses.

The moral of Joe's story:

If you incorporate your business, run it like a business. The corporation pays the corporation's bills, or your deduction vanishes.

Great advice indeed!

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Doug Mitchell interviews Steve Reese who is the owner of Fitness Together franchise in Clive, Iowa in his first podcast of the Iowa Small Business Zone.  Listen and you will find that Steve is an enthusiastic proponent of franchising.   I was also impressed with Steve's impression of the potential benefits of blogging from someone who is new to the medium.  He views it as a way to improve communication with existing clients first and foremost. 

Steve's key in choosing a franchise?  Make sure the franchise has a proven track record.

Doug is a natural in the interview process.  I look forward to more podcasts in the Iowa Small Business Zone.

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For some reason I am not having any success at getting people to comment on a couple of issues:  here and here.

But I am receiving a number of requests recently for information on specific subjects.  It's actually fun and gratifying to receive email from readers who say they have been following the blog and want to know what I think about . . .

Today, it's this question.  Does Iowa allow single member LLCs?

Answer:  Yes. 

How's that for direct and to the point.  See my post on LLC formation in Iowa for more information.

I also intend to get to a couple of other requests in the near future.

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It's tough to hire good employees these days.  I am not familar with the company but I loved this video from Success With People.  They have an intriguing low-cost mentoring program for hiring better people and engaging them in your business. 

The Pennsylvania Employment Law Blog also has a helpful post The Interviewing and Hiring Process.  The five keys every business owner should think about when it comes to interviewing and hiring according to Michael Moore:

1. Uniformity of Process;
2. Documentation;
3. Prohibited Questions;
4. Applicant Communication;
5. Training.

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The Rush on Business show is going on the road this next week.  On Monday, November 5, I'll be speaking in an Entrepreneur Workshop at Iowa State University.  The Human Computer Interaction (HCI) Graduate Program at ISU received funding to teach the Entrepreneurship Workshop, which is a one-credit, hands-on workshop for students interested in entrepreneurial activities with particular emphasis on commercializing a technology and/or starting a company. 

My talk will focus on Avoiding the Top Ten Legal Surprises that Wreak Havoc in New Tech Companies. 

FYI:  A National Science Foundation Report has just named Iowa State University as a technology licensing powerhouse.

The report noted that the Iowa State University Research Foundation executed 218 licenses in the year ending June 30, 2005. That was second in the country behind the University of California system.

"This is a tremendous accomplishment considering the University of California system has about $3 billion in research expenditures compared to ISU's $210 million," the case study said.

The study also noted Iowa State's total of 745 active licenses ranks sixth in the country. And the five start-up companies Iowa State launched in fiscal year 2005 ranked 22nd nationally.

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Charlie Longbrief picked up the phone on a Friday afternoon.  He was accustomed to these late Friday afternoon calls.   People with problems always seemed to call at this time because they need peace of mind over the weekend.  It was his friend Joe Smith who worked as sales manager for Shake, Rattle & Roll, Inc. a local baby toy manufacturer. 

"Charlie I need help.  I have just been fired from my job," said Joe.

"Tell me about it," replied Charlie.

"Well, I didn't like working there anyway and I was looking for another job.  I think I found one with a competitor but unfortunately my employer caught wind of it and they fired me.  I have a non-compete but of course they can't enforce that against me because I was fired, right?" asked Joe.

"Unfortunately Joe that is not always the case.  In Iowa, non-competes may be enforced even in situations where the employee has been fired.  It may be a factor to consider but the fact you were fired rather than quit does not necessarily invalidate the non-compete," Charlie said.

Joe shot back, "But I was told by my cousin Frank that works down at the loading dock that one of his friends said they couldn't uphold a non-compete against me if I was fired."

"I know that is a common belief but I am sorry to inform you that is not always the case.  It always depends on the circumstances of the particular case.  Every case is different but just because you are fired does not mean they can't enforce the non-compete," said Charlie with a little more emphasis this time.   

Charlie continued, "As you know I mostly represent businesses and I recently wrote an article on Protecting Your Iowa Business With a Non-Compete.  Why don't you take a look at it.   It outlines some of the key issues in determining whether a non-compete is valid in Iowa.  From an employee perspective it is never a bad idea to look at the situation from the employer's perspective and vise versa.  Read the article and then let's talk."

"Thanks, Charlie.  Not what I wanted to hear but at least I have a better idea of where I stand.  I'll give you a call back Monday," said Joe. 

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I read with interest fellow IowaBiz author Victor Aspengren's article on Forget the Ratings in conducting annual performance reviews.  Victor points out that most companies use subjective rating systems in their performance reviews which leave everyone in the company, supervisors and employees alike, dreading the annual review process.

What happens next is what I call the Lake Wobegon effect:  Every employee becomes "above average" because supervisors are unwilling to hold employees accountable.  Then when it comes time to discipline or terminate employees companies are often shocked when I tell them it may be difficult to discipline or terminate an employee because of their employee evaluations.

Employee evaluations are valuable proof in an employment lawsuit.  Make sure poor performance is properly documented.  Otherwise, the judge or jury will not believe you when you say the employee performed poorly but all their evaluations are excellent.  You should conduct the evaluations on a regular basis, usually at least once per year.  And Victor's ideas on creating a dialogue with your employees is on the mark as long as that dialogue is open, honest and holds employees accountable for their performance.

See also:  Considerations for Your Performance Evaluation and Employee Evaluations are Critical to Firing Decisions.

photo on flickr by Krista76

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Over on the Iowa Law Blog I discussed the fact that the number of lawsuits is down this past year for U.S. businesses.  The statistics are based upon a study from the international law firm of Fulbright & Jaworski.  But you need to read a little deeper to find a more intriguing statistic:

The survey showed that companies based in the Midwest settled more often than those in other parts of the country.

One surprising statistic is that smaller companies were actually less willing to settle their cases than mid-cap or billion dollar firms.

But no surprise that Midwest companies are more willing to settle.  My experiences have been that most Midwest lawyers, particularly here in Iowa, will work hard to get cases resolved.  Perhaps that is another reason why Iowa is not considered a litigious state.

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First with Drew McLellan on marketing, and now with Shirley Poertner on leadership, the IowaBiz.com free breakfast series is off to a fast start.  Shirley spoke yesterday about accountability in the workplace.  A concept that is frequently missing in many organizations.

Shirley says we have fallen into a "blame" society. 

• If you spill hot coffee in your lap while driving . . . sue McDonald's.
• If you invest money in a high risk portfolio and lose . . sue your broker.
• If your accountant misses the "S" Election . . . blame the lawyer. (Shirley really didn't say this one I just needed to poke fun at Joe one more time). 

This notion of blaming others permeates the workplace.  "It's not my fault" becomes the rallying cry of employees and supervisors alike. 

So how do we hold others accountable in the workplace according to Shirley? 

1. Set clear expectations.  You may think you have set clear expectations but would your employees say the same thing?  You might be surprised by the answers.
2. Consider Both Motivation and Ability.  Your initial thought may be that your employees are lazy or just want to make your life miserable.  Have you thought about other factors that may be influencing behavior?  What about whether the employees have the skill and knowledge to complete the task?  Is there a bureaucracy in your organization preventing work from getting done?    
3. To Hold Others Accountable:  Skillfully Handle the Hazardous Half Minute. 

• Describe the gap.  Make a statement about what you expected and what occurred.  Ex.  You made a commitment to get the project done by Friday.  It's the following Wednesday and the project is not completed.
• End with a question.  What happened?
• Then listen.  What's going on?  Is it about motivation or ability or both?

These strategies for accountability in the workplace will not only provide you happier employees and greater productivity but it may also help you reduce workplace litigation.  Treating employees with respect and effective communication are two of the cornerstones on how to avoid lawsuits from employees. 

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Attorney Liz Overton has an excellent post on the need to carefully prepare job descriptions for small businesses over on Sullivan & Ward's Iowa Law Blog. 

I encourage you to check it out.

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I have written in the past about Iowa Franchise Law and Territorial Encroachment.  Franchisees generally want an exclusive territory that is protected from encroachment by other franchisees or the franchisor's company owned stores.  But have you considered the impact of Internet retailing by the franchisor or other franchisees?

Be sure to review the territory provisions in the franchise disclosure document and franchise agreement with an eye toward whether the franchisor or franchisees are able to conduct Internet retailing.  In many instances franchisors will have a Web site but franchisees are not permitted to conduct online retailing.  While I am a big believer in the Internet for marketing and sales you will possibly suffer the consequences if a franchisor has a strong Internet sales presence.  Do you really have an exclusive territory if the franchisor conducts sales online?

Franchisors must also balance the possibilities of territorial enforcement with the need of franchisees to conduct online retailing.  This is where local search marketing comes into play.  Are there opportunities for franchisees to compete fairly online without cannibalizing each other? 

There are no easy answers when it comes to franchise Internet retailing but it should be a part of your decision making process in determining whether to buy a franchise.

Photo on flickr by aranarth

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At this past week's ABA Forum on Franchising I attended an insightful presentation with Michael Levitz, Kenneth Milner and Robert Purvin.  Purvin is from the American Association of Franchisees and Dealers which has some helpful tips and resources on its Web site to evaluate franchise opportunities.

While the presentation covered many areas of successful franchisee representation the concept of assembling a team to evaluate the franchise was probably most important.  In addition to the franchise lawyer, the presenters said successful franchisees will also contact the following:

1. Accountant - to examine the financials of the franchisor, costs and expenses to buy the franchise and financial projections of the business.
2. Real Estate Agent - to help you decide which location is best for you.  It is a mistake to rely completely on the franchisor in this context.  Most franchisors will be from out of the state and probably do not have a complete handle on the real estate market or trends in the community.
3. Marketing Professional - evaluate the marketing plan of the franchisor, develop your own marketing plan and assess whether the franchise opportunity is right for your region of the country.

I would also add that each prospective franchisee should also have a banker and an insurance agent to help them along in the process.  Assembling the right team is critical to success.

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This past week I had the opportunity to attend the ABA's Forum on Franchising.  What a great event!  First and foremost, it was an opportunity to network with some of the best franchise lawyers in America.   Second, I really enjoyed hanging out with fellow Iowa franchise lawyers, Matt Krigbaum of Cedar Rapids and David Bright of Iowa City.  These guys are excellent lawyers and terrific individuals.  If you are Eastern Iowa I recommend you talk with them regarding your franchising questions.

The initial seminar session I attended was the Fundamentals on Franchising.  Some top-notch franchise lawyers spoke during this 4 1/2 hour session but of particular interest to me was the talk by Ron Gardner of the Dady and Garner Law Firm in Minneapolis.   The law firm is regarded as one of the best firms in the country representing franchisees in disputes with franchisors.  In my franchise law work I counsel and negotiate on behalf of franchisees so the talk was very informative.

Some highlights of Gardner's talk:

1. If a franchisor is making certain promises you should attempt to have those promises included in the franchise agreement.  Often a franchisor will say certain things to entice a franchisee to enter into the franchise agreement.  But when you read the agreement these promises are no where to be found.  Get those promises in writing.  If not, you should have no expectation the franchisor will follow through on its promises.
2. Franchisees and their lawyers must communicate together on much more than just the franchise disclosure document or the franchise agreement.  In order to advise you properly it is important to know your background, your needs and your expectations.  Without this information it is often difficult to know what it important for you in a negotiation and what is not. 
3. Run Away from Franchisors that Won't Negotiate.  Some franchisors will tell you that they won't negotiate their agreements, or worse, tell you the laws and regulations do not allow them to negotiate their agreements.  Tell them to take a long walk off a short dock!  Ask youself whether you want to be in business with a franchisor that will not consider your busines goals and needs.  Fortunately, my experience has been that many franchisors will negotiate at least certain key terms and conditions.
4. Key Disclosure Issues.  Key disclosure issues generally include litigation, initial investment, vendor rebates, earnings, outlets and financial statements.  It is important to closely review the information regarding outlets. Carefully study the number of transfers and not just the number of closures.  A high number of transfers may be an indication that franchisees in the system are struggling but bad stores have not been shut down.  As I have preached franchise due diligence must include interviews of franchisees, including those that have left the system, in order to get a full picture of the franchise system.
5. Be Willing to Walk Away.  I have touched on this before.  This is the paradox of negotiation.  You should not fall in love with the deal.  Prospective franchisees who are willing to walk away usually get much more from those who have decided to sign at all costs. 

More to follow on other aspects of franchising in other posts this week.

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Shanti Atkins of the Compliance Training Blog has an interesting blog post about the crippling trend of wage and hour litigation.  The post references a recent BusinessWeek article discussing how plaintiffs' employment lawyers are "printing" money  with wage and hour cases.  One of the plaintiff's lawyers is quoted as saying,

"I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will."

In my experience, wage and hour issues are often misunderstood by employers.  Employers tend to run into problems when they ignore overtime regulations.  If you have questions I suggest checking out this handy reference guide to the Fair Labor Standards Act (FLSA) and consulting your employment lawyer.  You might also consider a wage and hour review to avoid misclassification of employees.

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A federal court jury in New York says Isiah Thomas and the New York Knicks are liable for the sexual harassment of a former female executive.  The jury found the former employee was subjected to unwanted sexual advances and verbal insults.  A retaliation claim also was alleged.  While Isiah Thomas still maintains his innocence and vows an appeal,  the jury has spoken.  The Verdict:  the Knicks and its owner owe nearly $12 million in damages.  (Thomas escaped punitive damages but his employer was not so lucky).

Could the harassment lawsuit have been avoided?  

Employers have an obligation to prevent sexual and other forms of harassment in the workplace.  At times employees will screw up but an employer must be prepared.  Some ways to avoid harassment claims include the following:

• Have a written policy against harassment which should include an anti-retaliation provision for those employees who report harassment.
• Provide and communicate in writing multiple channels for your complaint procedure. Employees should be able to report harassment to more than one person within the company.  The complaint process should be clearly defined in your employment manual.
• Make sure you train supervisors each year and require supervisors to report harassing conduct.
• Once notified of harassing conduct - take immediate action to investigate fully.
• Do not retaliate against employees that make a complaint.
• Discipline or terminate the offender as appropriate.

Michael Moore of the Pennsylvania Employment Law Blog has a great post on this issue and the particular problems created by complaints by high level executives.

The executive absolutely cannot have any direct or indirect control over the investigation.  Claims involving the company's CEO may require HR to go directly to the board of directors to protect the company.  Obviously, such action puts HR in an impossible position, so consider using outside counsel to manage the situation.

It is never easy dealing with claims of this nature but do not sweep it under the rug just because a high level employee is involved.  The stakes are high and you must follow your written policies and take the complaints seriously.  Ignore the behavior or retaliate at your peril.

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Mark Toth, Chief Legal Officer of Manpower, has a terrific employment law blog post any small business owner should read.  Toth's blog is creative and fun and his advice is right on the mark.  Follow his greatest hits and you are much more likely to stay out of trouble with your employees.

I particularly agree with Toth's Employment Law Golden Rule:

Treat all employees the way you would want to be treated — honestly, objectively, consistently and fairly on a timely basis.

See also my blog post on Seven Ways to Avoid Employee Lawsuits.  Toth and I have very similar thoughts on this subject.  My number 1:  Treat Employees with Respect.  Seems like a basic philosophy but it is amazing how many employers forget to treat their employees with respect.  Employees that are humilated or treated in a disrespectful way are much more likely to sue your company.

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Where should you incorporate your Iowa small business?  This question is asked a lot by many prospective small business owners.  The question used to be surprising but after seeing and hearing numerous advertisements for Delaware and Nevada corporations on the Internet and on satellite radio it is definitely a legitimate question.

Delaware has reputation and history on its side.  Delaware's Division of Corporations boasts that more than a half a million business entities make their legal home in Delaware including more than 50% of all U.S. publicly-traded companies and 60% of the Fortune 500.  Businesses, especially large ones, choose Delaware because of the state's business laws and respected Court of Chancery.  Most observers say it is because of Delaware's predictability. 

Nevada has recently exploded in popularity for many businesses.  This is due to Nevada's pro-business climate, low-tax mentality and the lack of an information sharing agreement with the IRS.

Delaware or Nevada may offer viable options for some companies but in general most Iowa small businesses are probably wise to incorporate in Iowa.  First, Iowa has very low fees when it comes to incorporating your business.  It is a $50.00 fee to file Articles of Incorporation for a domestic corporation in the state of Iowa.  Further, it only a $30.00 fee every two years for a biennial report if you file online.  These fees are extremely low compared to other states.

Second, you won't avoid Iowa taxes by incorporating your Iowa small business in Nevada or Delaware if you are doing business here in Iowa.  The tax and corporation laws of Iowa will require you to register your company and pay fees as a foreign corporation in Iowa and you will be required to pay Iowa state income taxes for any income earned.  (You also do not avoid federal income taxes by incorporating in Nevada despite the lack of an information sharing agreement with the IRS).

And the perceived court advantages in Delaware?  That might be fine for a large business that is actually going to litigate a case in Delaware but it is probably not cost effective for most Iowa small businesses to litigate their cases in Delaware.  Besides unless you have well-written forum selection clause in contracts your Iowa small business will likely end up in Iowa courts anyway.

If you have questions regarding where you should incoporate your Iowa small business be sure to contact a business attorney licensed in Iowa. 

Photo on flickr by rsgranne.

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If you operate an online business or you are thinking of starting one I recommend you pick up a copy of Cyberlaw:  A Legal Arsenal For your Online Business.  Written by Iowa intellectual property attorney Brett Trout the book is new and updated with lots more content than his previous version. This book still has the helpful sample agreements and policies, but now covers new topics like document retention policies and social networking. Trout also offers easy how-to’s on avoiding legal pitfalls. The rich content and practical advice is bound to save you costly legal fees down the road.

The great thing about this book is that it is actually written for entrepreneurs - not lawyers.  You will appreciate the easy to understand language.  If you call Brett directly you might even be able to pick up an autographed copy from Iowa's toughest attorney. 

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Michael Moore of the Pennsylvania Employment Law Blog has an excellent post on the possibility of reverse discrimination when employers make decisions under the auspices of voluntary affirmative action plans, diversity programs, or even "risk management".  Michael says:

I am surprised by how many companies will select non-minority employees for layoff in a reduction in force or discipline believing that they have eliminated potential discrimination claims.   

His observation that our discrimination laws are written to prohibit employment decisions based on factors such as race, gender, age, religion, disability, etc. is often forgotten.  Employers must carefully follow the laws and regulations if they intend to implement an affirmative action or diversity program. 

FYI:  Michael's blog was recently named # 3 in the HR Blog Power Rankings by the HR Capitalist.  A ranking well deserved in my opinion.

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I encourage you to check out Blawg Review #126 written by Anita Campbell of Small Business Trends.  Anita is a lawyer by training but an entrepreneur at heart.  Her award winning Web site was the "Best of the Web" according to Forbes Magazine for small business blogs.

The lineup of small business experts on Anita's site is impressive.  The articles are well-written and informative.  Fellow IowaBiz authors should especially take notice.  The site is something to which we should aspire. 

And thank you to Anita for including my post on whether Licensing is a Viable Option Rather than Franchising?

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I have written about how to hire a business lawyer at times in the past.  My first rule is that the lawyer should be experienced and competent in business law rather than choosing a personal injury, family law, criminal law or other lawyer.  My analogy used to be that you would not want a plastic surgeon operating on your heart.  But I have a new analogy: 

You wouldn't want a linebacker covering a wide receiver on 2nd and 13, right?

No disrespect to Mike Klinkenborg.  The guy played his heart out.

Congratulations to Matt Gardner - the most faithful Iowa State Cyclone fan I know. 

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Charlie Longbrief, attorney at law, had just turned off his computer late on a Friday afternoon when the phone rang.  It was Pete Geek who owned a local computer consulting service.

"Charlie, I've got a problem," Pete said.

"Tell me about it," Charlie said.

"Well, I had to fire one of my sales people earlier this week.  The termination seemed to go fine but he hasn't returned his company laptop or cell phone.  I want to deduct the value of those items from his last paycheck or at least withhold his last paycheck until he brings those things back to me."  Pete responded.

"Do you have any type of written agreement with him regarding the return of the equipment?" Charlie asked.

"No, I don't," said Pete.

Charlie advised, "I know it is frustrating but Chapter 91A.5 of the Iowa Code won't allow you withhold the check or deduct the value in this situation unless you have written agreement with the employee where the equipment has been specifically assigned to the employee, and acknowledged in writing by the employee.  Also the written agreement should authorize you to deduct the value of the equipment from the last paycheck if not returned.  If you violate the law you could be forced to pay the employee's attorney's fees, liquidated damages and any court costs plus the wages you owe him.  You definitely have the right to your equipment but you can't get it that way."

"I am glad I asked.  By the way, maybe you could prepare an agreement for my employees to sign authorizing me to deduct the value of the equipment from wages if the equipment is not returned,"  Pete asked.

"You bet.  By the way, you may want to check out a blog post from Jill Pugh on 10 Things to Keep in Mind When You Fire an Employee.  It's also a good idea to review the provisions of Iowa's Wage Payment Collection Act."

"Thanks a lot, Charlie.  I am glad I called."

Photo on Flickr by cutesmallfuzzy.

* This is a hypothetical.  Be sure to seek the advice of an employment attorney for advice in your specific situation.

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Congratulations to What's For Dinner - Des Moines and its owners, Dawn Angus and Kristen Severs for their feature article in the Des Moines Business Record.  The success of their meal assembly business has brought multiple inquiries from would be entrepreneurs who are wondering whether they offer franchises opportunities for their business.  The thought of expanding beyond the single store operation had intrigued the owners but the investment of time and money is substantial.  A franchise also opens you up to FTC and state regulations which require disclosure statements such as an offering circular.

The article discusses how Dawn and Kristen were presented an opportunity to offer a license of their recipes, Web site and logo.  In these particular circumstances we were able to craft an agreement which provided them the opportunity to expand their reach beyond the single location but without all the hassles and expense of a franchise. 

So is licensing a viable option for businesses looking to expand rather than franchising in all circumstances?  Absolutely not.  Whether or not licensing is right for you is completely dependent upon the facts and circumstances of your own individual situation.  (See Don't Let Your Distribution or Licensing Agreement Become an Inadvertent Franchise).

Iowa has very specific laws on franchising and other business opportunity promotions.  In order to license your business product here in Iowa you must fall within the exceptions to the franchise and business opportunity promotions.  Particularly if you are offering a business system or marketing plan to a new business it may be difficult to fall within the exceptions to these important regulations. 

In order to determine if licensing is right for you be sure to consult a business and/or franchise lawyer before acting. 

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Thanks to Nina Kaufman for quoting my post  "Employees v. Independent Contractors" on the Entrepreneur.com Blog Network.  Nina's blog on the network is "Making It Legal:  The small business mentor's guide to entrepreneurship and law."  Her advice on the employee v. independent contractor issue is excellent:

This is not an area to play fast and loose with the law. It’s like gambling in Vegas; the house is stacked against you. As confident as you think you may be about the situation, it’s wise to confirm your choice with an employment or other business attorney.

Another blog post worth mentioning on the subject is from David Willis on his Texas Small Business Law Blog.  David is right on track with his warning to small business owners:

The bottom line is that an SBO cannot simply say that a particular worker is an independent contractor and expect that decision to have legal effect. The consequences for failing to properly determine the relationship between the SBO and worker can be quite serious, resulting in legal liability to third parties, insurance issues, and penalties for unpaid employment taxes. For these reasons, it is critical that an SBO seek help from a professional when defining the nature of an employment relationship is important to the SBO’s business.

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Congratulations to Vince Basile of Aerospace Geartech who is featured in an article about the Business Innovation Zone (BIZ) in today's Des Moines Register Business section.

Executive Director Mike Colwell worked with Vince to obtain grants through the Iowa Department of Economic Development and DMACC in order to purchase two manufacturing businesses (one from Ilinois and one from Florida) and move them to Iowa.  Colwell also helped Vince with his business plan and other strategic issues. 

Vince is an example of how persistance pays off.  He would tell you that his search for a business was not easy.  He looked at many different businesses until he found the right one (I guess two) for him.   He is now in a business that fits his skill set and passions.  He is extremely resourceful which will serve him well as he moves forward with his new business venture.

I also cannot say enough about the guidance and expertise of Mike Colwell.  Every time I talk with him I learn something new about business and entrepreneurship.  Central Iowa businesses are extremely lucky to have such a great new resource.  If you are a start-up entrepreneur or a business looking for growth or capital, I highly recommend talking with Mike.  BIZ does not actually make investments in companies but it does help entrepreneurs locate grants and find investors.  BIZ is also able to provide assistance with improving business plans and open up valuable networking opportunities for new entrepreneurs.  The thing I like best is that Mike won't always tell you what you want to hear.  His objectivity and honesty is refreshing. 

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Iowa intellectual property lawyer Brett Trout has a terrific post on IowaBiz illustrating why it is dangerous to steal online contracts.  Brett says,

I have seen companies steal terms of use agreements and privacy policies from websites that have nothing to do with their line of business. Not even taking the time to read the contracts, they unwittingly leave in the original company's name, address and preferred jurisdiction. An Iowa company looks pretty awkward explaining to a court why their contract dispute should be tried in Albuquerque.

Terms in contracts are construed against the drafter. If you leave in an ambiguity, the court will read it in favor of the people suing you. That is why lawyers take such care in customizing contracts to your business and its goals.

Sometimes it is almost laughable how many companies copy the terms of use and other online policies of major Web sites.  In doing some research for an online auction company I noticed several of the companies I researched had the same online policies.  Was it just coincidence the policies were strikingly similar to eBay?  Well, I guess if it ain't broke . . .

Even if you use standard terms of use policies and other online policies you will need some customization for your particular business needs.  Discuss with your lawyer whether he or she has standards forms that can be customized for your business.  Most eCommerce lawyers have such forms.  But it is a good practice to avoid directly copying the terms of use and other online policies of other companies.

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Many businesses make the mistake of treating employees as an independent contractors so they can save money on taxes, red tape and benefit coverage.  The risks associated with this approach is often not worth it.

Businesses that misclassify workers often find themselves embroiled in wage and hour lawsuits or workforce development audits.  These businesses could also face tax penalities and lack of insurance coverage in key liability situations.

Often, businesses treat employees as independent contractors because they fail to fully understand the distinction between the two categories.  The most important difference is whether or not you have the right to control the work.  Other factors, such as where the work is performed, who provides the equipment, how payment is made and if there are set hours, also play an important role.

Generally, an employee is someone whose manner of work the employer has a right to control, even if the employer does not actually exercise that control.  True employees are sometimes known as W-2 employees because of the W-2 form issued to them for federal income tax purposes. 

On the other hand, an independent contractor is someone you engage to perform a certain task, but whose manner of work you do not have the right to control.  You have the right to tell your independent contractor what it is you want done, and you remain free to dismiss them if you do not like the work (depending on your contractual arrangement).  Ultimately though it is the results you are interested in.  The manner in which the results are accomplished is up to the independent contractor and is not subject to your control.  An independent contractor is given a 1099 form to report income for federal tax purposes.

If you have questions about whether to treat workers as employees or independent contractors be sure to consult with an employment or tax lawyer.  This area of the law is more complicated than just the control issue.  Tax lawyer Tripp Atkins is currently analyzing the 20-factor IRS test for determining an employee or independent contractor on his blog.

The safest course is to treat workers as employees if the workers' status as an independent contractor could reasonably be questioned.   

Photo on Flickr by Partsnpieces.   

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It is possible to form your own corporation without a lawyer's help.  Every day, many entrepreneurs do exactly that by using online incorporation kits.  I have written about such companies in the past.  There is definitely a segment of the market these incorporation companies serve.

The most obvious motivating factor for setting up a corporation on your own is to save fees.  But there is a potential trade-off.  You now subject yourself to the hassles of filing a corporation yourself and the possibility of filing erroneous paperwork.  At least if you hire a lawyer you have someone to blame, right?

But the real question to ask yourself is this:  "Have I considered how it all fits together?"  See this post on incorporating in Iowa for a checklist of steps.

But filing articles of incorporation is only one step in the process.  Have you also considered:

• Is a Corporation the right entity for me?
• Bylaws.
• Shareholder Agreements - Buy/Sell Issues.
• Board of Directors.
• Officers.
• Employees.
• Obtaining an Employer Identification Number (EIN).
• Banking arrangements.
• Issuance of Stock.
• Financing your corporation.
• Insurance.
• Whether or not to elect S corporation status.
• Corporate name protection.
• State government requirements.
• Taxes.
• How to Avoid Lawsuits.
• Following corporate formalities.
• Signing documents as an officer.
• Assigning existing business to the Corporation.
• Leases.
• Intellectual property.

The above list is just a sampling of the issues you may deal with as you start your business.  A good business lawyer should be able to help you with all these issues either by providing you with direct advice or connecting you with someone else (often accountants, bankers and insurance agents) that can help fill in the gaps.  Most business people will tell you that hiring a good lawyer is crucial to your business success.   Plus, you might actually be surprised at the cost of hiring an Iowa lawyer compared to some of the online incorporation companies.  

How do you hire an Iowa business lawyer?  I suggest you follow two rules:

1. The attorney must be experienced and competent with business law issues.  Since you are in business you probably should not hire the local personal injury, family law or other attorney that does not have experience with business law issues.  Choosing a lawyer that is not familar with business law may have serious consequences and may increase the costs because the lawyer may learn on your dime. By analogy, you don't want a plastic surgeon operating on your heart.

2.  Make sure you feel comfortable with the attorney.  Don't make a snap decision based upon hourly rates.  Do you trust the lawyer?  Did you get your call returned right away?  Is the attorney easy to talk with?  Does the attorney care about you and your business?  Does the relationship feel right?  There are many competent and experienced business attorneys in Iowa so make sure to trust your instincts.

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The Business Innovation Zone (BIZ) has its first networking event today.  The event is from 12:00 - 1:30 p.m. in the Arthur Davis conference room at the Greater Des Moines Partnership office at 700 Locust Street in Des Moines.

The featured speaker is Steven Smith, President and CEO of GCommerce.  He will be talking about early stage equity funding for startup business, and what has changed in recent years. Lunch will be provided and there will be plenty of time for networking. The cost for the event is $8 for members, and $12 for non-members.

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Jerry Kalish of The Retirement Plan Blog expanded on my post involving Document Retention and Electronic Discovery to discuss record retention under ERISA.

The post has a Q & A with basic information on document retention for ERISA plans. 

P.S.  You may also want to check out Jerry's informative post on "tax traps for the unwary" involving "S" corporations. 

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From Mike Colwell of Biz I learned about Franchise Interviews which is another resource for those interesting in franchising.  The site has several interviews with successful franchisees, franchisors and franchise experts (including lawyers).

I listened to the interview with leading franchise lawyer Kevin Hein of the Denver office of Snell & Wilmer. ( An interesting interview but the actual interview does not begin until 24 minutes into the 1 hour program).  Hein shared insight on what is necessary for a successful franchise concept.  His four points:

1. Unit economics - How much can individual franchisees make?  Will it generate revenue to cover expenses, pay a reasonable salary and give a return on investment?
2. Reasonable Demand for the Product - sometimes franchises may have unique niche, yet no significant demand.  A franchise must have real interest.
3. An easily replicated system - The more detailed the system the harder it will be to replicate.  Are you able to give the same customer experience no matter the market or region.  
4. Unique marketing proposition - How do you stand out? 

Later in the program Hein struck a chord with me when he warned about franchisees "buying themselves a job".  I have noticed that many franchisees do not carefully consider whether they will receive a return on investment when purchasing a franchise.  Obtaining a return on your investment may be difficult with many franchise concepts - so be sure to analyze potential revenue and conduct your due diligence.

P.S.  Another resource to check out is Seeds of Growth which is where Mike spotted the link to Franchise Interviews.  It features some great posts to help your business grow.

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Upon my return from vacation I ran across a site called The Franchise Pundit.  I have been looking a long time for Web sites that give balanced information on franchises rather than just reciting promotional materials.  The Franchise Pundit appears to be such a site. 

If you are conducting due diligence on a franchise you may want to investigate the site.  In a short time I discovered several articles providing practical information on several franchises.  Be sure to check out the franchisor list to see if there are any articles on your franchise of interest. 

If you know of any other sites that provide fair and balanced information on franchises please let me know.

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I am excited to announce that the Sullivan & Ward law firm will publish its Iowa Law Blog beginning in mid to late August.  The firm's law blog will cover general legal issues inlcuding the following areas of law:

• Utility and electric cooperative law;
• Business law;
• Trusts and estates;
• Family law;
• Real Estate law;
• Trial & mediation; and
• Regulatory compliance.

It will be a group effort by the lawyers at Sullivan & Ward.  Our friends at Lexblog are developing the blog.  Kevin and his staff have been great to work with.  I'll let you know when it hits the blogosphere. 

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Yesterday I had an interesting discussion with one of my buddies.  He is an executive with a Fortune 500 company out-of-state and he was expressing his frustration with lawyers - actually his own lawyers.  He just got off the phone with one of his outside counsel when I called.  After talking with him for less than 30 seconds I could tell the last person he wanted to talk with was another lawyer. 

Although not word for word his frustrations could be summed up in a post from Dan Hull called the 7 Habits of Highly Useless Corporate Lawyers.   This post is right on the mark and should be required reading for every corporate lawyer in America.  The biggest frustration?  No. 3 - Taking a stand.  Nothing seems to frustrate business people more than a lawyer who comes down squarely on both sides of the issue. 

The cure:  try listening to your clients.  You might be surprised what you learn. 

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The IowaBiz.com site is gaining popularity daily.  Yours truly is one of the contributing authors but the other eleven authors have me checking this site every day and reading it through my feedreader.  I am continually impressed with the quality of the ideas and concepts developed by the authors.  A couple of my recent favorites and applicable to readers of this site include:

• What Kind of a Critter is an LLC?
• S Corporation Losses:  The Basics

Both posts were written by Joe Kristan of the Roth & Company Tax Updates Blog.  Joe is one of the best business blog writers I have seen on the topics of accounting and finance. 

Hats off to Professional Solutions Insurance Services for sponsoring the site.  The company exhibits a pay it forward approach.  They really "walk the walk" when it comes to putting the needs of small businesses before their own.  And one of their agents, Brian Honnold, has turned out to be a pretty good blog author in his own right.

So congratulations to PSIS and the IowaBiz.com team.  It is fun to be a part of such a great group.

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Iowa intellectual property lawyer Brett Trout offers a trademark law primer today on IowaBiz.com.  Brett points out that companies seeking to protect their trademarks should consider federal registration of those marks for valuable trademark protection.  He says,

Once you start using your trademark in commerce, you obtain what are known as "common law" trademark rights.  Common law trademark rights can be effective in obtaining an injunction or a judgment against someone infringing your trademark, but they do not provide all of the benefits associated with state or federal trademark registration.

Every state provides for both registration and enforcement of trademark rights. While these state protections involve a small cost, they typically offer little more protection than common law rights. Accordingly, most companies opt for either free common law protection or much more valuable federal law protection. Federal trademark registration involves governmental and attorney fees of approximately $1,200 and about an eighteen month wait.

I agree with Brett.  Many Iowa businesses fail to register their marks or file the mark only with the Iowa Secretary of State.  Federal registration offers several advantages and should be considered.

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I ran across this list of tips for new small businesses.  Some terrific advice.  Here are the ten tips as listed:

1. Save up as much money as possible before starting.
2. Start on a shoestring.
3. Protect your personal assets.
4. Understand how--and if--you will make a profit.
5. Make a business plan, so matter how short.
6. Get and keep a competitive edge.
7. Put all agreements in writing.
8. Hire and keep good people.
9. Pay attention to the legal status of your workers.
10. Pay your bills early and your taxes on time. 

I especially appreciate the emphais placed on paying your payroll taxes on time, particularly the portion you withhold from your employees' wages. (See the commentary on No. 10).  It is critically important to understand that a corporation or LLC will not protect you from personal liability in the event these taxes are not paid.  (For an example, see a post from my favorite blogging accountant, Joe Kristan).

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A couple of Central Iowa business updates for your information:

1. SEMEE - The next SEMEE (Society for Entrepreneurial-Minded Executives) meeting is scheduled for July 19, 2007 from 6:00 - 9:00 p.m. at the EMC Insurance Building downtown.  I attended the February meeting and thoroughly enjoyed it.  Last time there were some great presentations by some excellent companies including US Rodeo Supply.  The focus of the organization is finding resources, other than money, that might help these companies grow.  Unfortunately I can't make it this time because of a prior commitment but I highly recommend attending if you are interested in business and live in Central Iowa.  It is a terrific networking and learning opportunity.  Hats off to the Steens of Transition Capital Management for continuing this great program.  There is no charge to attend.  For more information you might want to check out my podcast with Adam Steen.
2. BIZ - The Business Innovation Zone (BIZ) led by Mike Colwell is off to a fast start.  BIZ is a new regional business accelerator through the Greater Des Moines Partnership.  The organization already has many active clients in the first four months and has approximately 10 more ready to join.  A client, Aerospace Geartech, received substantial funding from the Department of Economic Development with the assistance of BIZ in order to start a new Central Iowa business.  For more information you may want to check out this podcast with Mike.  He has a tremendous amount of insight in business and a wealth of experience.

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I am hoping you will provide me with some input.  What do you think are the top legal issues facing small businesses today?

My general sense is that employee/human resource issues rank high.  If you are a small business owner, what keeps you up at night from a legal perspective?  If you are a lawyer or consultant, please add your perspective.

Please comment below.   Don't be shy.  I am hoping to develop some blog posts surrounding this discussion and I would love to hear from you.  If you are not interested in commenting publicly, please feel free to email me at rnigut@sullivan-ward.com.  With your input I should be better able to hone in on the legal issues facing small business owners.

Thanks for reading.  I appreciate it. 

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On the Texas Small Business Law Blog there is an helpful post on the common mistakes made by small business owners.  The common mistakes listed by business attorney David Willis include:

1) Under-capitalization.
2) Failure to plan and adjust for growth.
3) Over-emphasis on the type of business organization.
4) Failure to understand the impact of an employee.
5) Failure to understand the impact of employees.
6) Not having an employee manual.
7) Thinking: "I've got some experience, I can do this myself."
8) Not keeping up with the paperwork.
9) Failure to plan for litigation.
10) Not having an electronic document retention policy in place.
11) Failure to consult an attorney.

David is following up with more detailed posts about each mistake.  The one that caught my eye was No. 3 - over-emphasis on the type of business organization.  David warns that small business owners should not consider themselves invincible just because they have formed a business entity.  The small business owner must operate the business as a distinct entity. 

In the past I have written about some of the exceptions to limited liability.  The best way to maintain limited liability with your corporation or LLC is to is to make sure you keep your personal guarantees to a minimum, pay applicable taxes and keep all business dealings separate from your personal accounts.  Managing your small business corporate goverance (i.e. regular meetings of shareholders and directors with minutes documenting the meetings) is also critical.

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Many business owners I talk with are reluctant to enter into a non-compete with their employees.  These business owners are afraid an employee won't sign or a confrontation will occur.  Some just don't believe they should keep the employee from finding a job - even if it is to the employer's detriment.

But to avoid disruptions to your business or losing customer relationships you should consider non-compete agreements in certain situations.  This is especially true if the employee has a close relationship with the customer and could easily take the customer if the employee leave your employ.

The best time to secure a non-compete agreement is when you hire the employee although continued employment may be sufficient consideration to bind even current employees.  Iowa courts have developed a three-part test to determine whether a non-compete agreement is enforceable:

1.  Is it necessary for the protection of the employer's business?

Factors to consider:  Does the employee have a great deal of personal contact with customers?  Is the employee in a position to lure customers away?  Have you spent significant time and money training the employee?

2. Is the non-compete unreasonably restrictive of the employee's rights? 

Factors to consider:  Is the non-compete limited in time?  The most common time restrictions are 1-3 years.  Courts tend to favor shorter time restrictions.  (This will always depend on the cirmcumstances of the particular case).

Is the non-compete limited in geographic scope?  For a local business, a 50-mile limit may be reasonable while a regional business may use a scope spread out over several states.  It depends on the market area of the particular business.  Because of the Internet and other technologies, geographic limits are becoming a less effective way to control competition from former employees.  Businesses must carefully consider how to be reasonable and still control competition in the global marketplace.

3. Is the non-compete prejudical to the public interest? 

Factors to consider:  Does the particular non-compete harm the general public?  This part of the test has rarely been used to invalidate non-competes in Iowa.  For example, non-competes in Iowa have been upheld against doctors and dentists where you might expect that limiting access to health care could harm the general public.

Finally, Iowa has adopted a "partial enforcement" doctrine permitting a court to uphold a non-compete agreement to the extent it is reasonable and allowing the Court to modify terms if necessary.  For example, a court may reduce a time restriction from 3 years to 1 year if the judge finds that is appropriate.  Or, a judge could change a geographic restriction from the entire state of Iowa to a 100-mile radius of the business.  This is different from an all or nothing approach where a judge might declare the entire non-compete agreement invalid if just one of the terms is found unreasonable.  When litigating non-compete agreements in Iowa the parties must consider whether the agreement may be partially enforced.   

If you are one of those who is not comfortable with a non-compete agreement for your employees I would strongly encourage you to have at least confidentiality and non-solicitation agreements.  These agreements generally provide protection for your business without restricting the employee's ability to work elsewhere.  If a departing employee attempts to take clients or other employees with them you will be glad you had those agreements in place.

*Remember there are several pitfalls relating to these agreements if not written correctly so be sure to contact your employment or business lawyer to review and/or draft such agreements.  For more information read this interesting article on The Power of the Noncompete Clause through the Harvard Business School.

Photo on Flickr by D.F. Shapinsky (pingnews)

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Brett Trout has a post worth reading on "Who Owns Your Website?"  In the post Brett warns clients to carefully read the agreement and to take steps to ensure you own your Website and the domain name.  As Brett says, 

"Most clients think they are obtaining an "assignment" of these things when they write a check. They are shocked to learn that the people they paid to create these things actually still own them. Intellectual property laws are designed to protect the creator, to encourage the creator to create. If you hire someone to design a website for you, what you are actually purchasing is a "license" to use the design for the use intended by you and the designer."

So make sure to read your written agreement with the Web developer and carefully negotiate the terms of ownership of the site before you make any payment and before any work is performed by the developer.  Further, there is really no reason to have the developer obtain your domain name for you.  Just go to www.godaddy.com or some other site to obtain the domain name on your own.  It is easy and if you register it in your own name there won't be questions about who owns the domain name down the road.

P.S.  I also wanted to give a big shout out to Brett who is speaking at the Blog World Expo.  Brett is talking on keeping your blog out of court. The Expo is November 8 and 9 in Las Vegas.  See the Blog World Expo Blog for information on the conference schedule.  Congratulations on your selection, Brett.

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Over on IowaBiz.com Joe Kristan has an excellent post describing the basic tax treatment of S corporation losses.  Joe says,

Bottom line? The ability to deduct business losses is a good reason for many taxpayers to use S corporations.  If you expect S corporation losses, talk to your tax pro before year-end to make sure you are eligible to deduct them.

I always say that the choice of entity (C Corp. v. S Corp. v. LLC) usually boils down to tax treatment.  Joe's article demonstrates why.  If you are forming a new business you not only need to talk with your business lawyer but also an accountant.

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Michael Libbie had a great post on the recent 2007 Iowa Employment Values Study showing that more than anything workers want R-E-S-P-E-C-T.  Being respected in the workplace is the value Iowa workers feel is most important. 

But what if more employers were like Tony Dungy?  A post from TechRepublic says it very well,

"Dungy is one of the exceptions, and is part of a new breed of coaches who do things differently. He's not a yeller and he does not lead or motivate with fear. Instead, he believes in putting the right personnel in place, building a winning strategy based on the strengths of that personnel, and then treating them with the respect they deserve as professionals and human beings. As a result, the performance of his players is not driven by a fear of his wrath. The only fear they have is a fear of letting him down or disappointing him because of their trust in him and their loyalty to him."

Studies have shown that how well-respected employees feel is directly related to how enthusiastic they are about their overall employment situations.  Employees who feel well-respected are several times more likely to stay in their jobs.  Interestingly, one study says the main reason employees don't feel respect is not related to abusive management behavior as much as it is indifference or the failure of management to go out of its way to demonstrate respect to employees.

For the record, just check out my Number 1 out of 7 Ways to Avoid Employee Lawsuits written several months in advance of the Iowa Employment Values Study.  As I said then, it seems like a basic philosophy but it is amazing how many employers forget to treat their employees with respect.  Employees that are humilated or treated in a disrespectful way are much more likely to sue your company. 

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A few days ago Brian Honnold had an excellent post about the fear of lawsuits by America's small businesses over on IowaBiz.com.  The most alarming statistic?  Small businesses bear 69% of the total cost of the tort system to all U.S. businesses.  That's $98 billion a year in costs.  Further, six in ten small business owners feel constrained when making business decisions because of the fear of lawsuits.

So what's the solution?

Many call for legal reform.  That's what the Institute for Legal Reform is all about. But is it really working?  Despite millions of dollars poured into extensive campaigns, it is apparent our nation's small businesses do not feel any safer.

Should we kill all the lawyers?  Wait . . . I shouldn't have said that.  I am a lawyer.

The best protection for small businesses is to build a solid foundation.  A house of bricks rather than one of straw or sticks.  As Brian discussed, insurance is a component in building that solid foundation but other protections are necessary.

Here are five suggestions on how to protect yourself from lawsuits:

1. Use written agreements.  Unfortunately the day is over when you could rely on a handshake.  Make sure that your agreements are comprehensive.  The agreements should always set forth the rights and responsibilities of the parties in detail.  It is a good idea to have your written agreements drafted and/or reviewed by a business attorney.
2. Have a comprehensive employee manual.  Employee lawsuits are on the rise and a major distraction for your business.  A written employee handbook affords you a better opportunity to avoid misunderstandings that can lead to litigation.  Disputes are are less likely to occur when your employees know the rules.  Keep in mind that a well-written employee handbook can help your business but a poorly written handbook can cause even more problems for your business.  Don't pull a template from the Internet without consulting an employment lawyer.
3. Maintain your corporate or other limited liability structure.  Make sure to keep your personal guarantees to a minimum, stay current with corporate records, pay your applicable taxes and do not mix your personal assets with your business assets.
4. Protect your intellectual property.  Consider obtaining trademarks, copyrights and patents as applicable.  Consult an intellectual property lawyer in order to protect yourself against infringers.  Likewise, avoid infringing someone else's intellectual property.  Before deciding on a business or product name you should check to see if the name is trademarked by someone else.  Similarly, be careful not to steal copyrighted materials for your own use.
5. Consider alternative dispute resolution.  Mediation is often an efficient way to resolve business disputes.  It is a process in which the parties to a dispute, with the assistance of a neutral third party (the mediator), identify disputed issues, develop options, consider alternatives and work to reach an agreement. There is a time to go to court but consider the costs of the litigation before making that decision.  Approach the decision of whether to litigate in a business-like-manner rather than emotionally.

Be proactive.  Don't wait for the wolf to knock on your door before you protect yourself.

P.S. I wrote this post originally for IowaBiz.com.  The blog sponsor, Professional Solutions Insurance Services, and its parent company, NCMIC, had a nice write up in the Des Moines Business Record this week. 

Photo by Laenulfean on Flickr.

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We are excited to have entrepreneur and local radio star Jim Goodman speak at the upcoming Secrets of Successful Professionals Revealed seminar.  Are you routinely looking at ways to help your clients get what they want?  Perhaps even outside your professional discipline?  If not, you are likely missing golden opportunities to grow your business. 

Jim is the CEO of Customer Ease, Employer Ease and Emerging Growth Group in Des Moines. He is a frequent speaker on business topics and is the host of the Iowa Business Hour. Jim's program emphasizes the 4 M's of creating a successful business venture - Money, Management, Marketing and Model.

Although Jim played college football at Saint John's University (there is a story there) we won't hold that against him.  One of the philosophies he learned from his legendary football coach is, "We are just ordinary people, doing ordinary things, extraordinarily well."  Jim personifies that philosophy.  Don't miss the chance to hear him talk on how you can succeed by bringing others success.

For more information on the Business Conference seminar and the other speakers check out our Events Page.  The seminar is July 20th.  Register today! 

Questions?  Email Brett Trout at trout@bretttrout.com or Rush Nigut at rnigut@sullivan-ward.com.

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Joe Kristan, Central Iowa's premier blogging accountant, reminds us in a recent post that LLC and corporation owners are responsible for unpaid payroll taxes.  The most important take from the post:

The moral? Never, ever fail to remit your payroll taxes; if you do, don't expect an LLC, or any other entity for that matter, will fend off the IRS.

Joe also expands on his post in a recent article on IowaBiz.com.  I encourage you to subscribe via RSS to Joe's blog and also IowaBiz.com.  Joe's blog is entertaining and informative.  Who knew an accountant could have such a sense of humor?  IowaBiz.com is particularly interesting because it features 12 business bloggers from several different disciplines including marketing, law, accounting, networking and more. 

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