We have started a new tradition.  Every Saturday I will point out a great Web resource for business start-ups.  Today is one of my favorites.

The Entrepreneurs’ Viewpoint Blog along with the Kauffman eVenturing Web site is one of the best comprehensive resources for businesses on the Web.  The site contains orginal articles written by entrepreneurs for entrepreneurs.  The focus of eVenturing site is to develop the "best of the best" content in order to assist business people who are starting and running high impact companies. 

The site features articles on the following business topics:

Accounting and Finance;

Human Resources;

Sales & Marketing;

Products & Services;

Operations; and

The Entrepreneur.

Do you have a great business Web resource?  I would like to know. 

The Iowa Association of Business and Industry has published a survey indicating Iowa’s legal climate is hurting job growth.  The survey also states that many Iowa business leaders are dissatisfied with Iowa’s legal climate and believe it is costing the state jobs because of competition from other states.

The survey seems to contradict the U.S. Chamber of Commerce survey which said Iowa ranks fourth in the country in judicial fairness.  Iowa has ranked in the top five for each of the last three years.

So which is it?  Well, there is no question businesses (in Iowa and all states) are devoting more time than ever to liability concerns and defending themselves against lawsuits.  However, my experience with clients leads me to believe Iowa’s judicial system is as good as any state.  In fact, certain businesses I know could tell you horror stories about the judicial systems in other states with so-called "legal reform".  That’s not to say we can’t improve though and we should continue to look for ways to improve our business climate.  I am just not convinced the major problem is Iowa’s legal system.

The six-year old Iowa private antitrust class-action against Microsoft is finally heating up.  The case is set for trial November 13, 2006 but yesterday a hearing was held on Microsoft’s allegations that Plaintiffs’ lawyer, Roxanne Barton Conlin, engaged in misconduct when she persuaded a Hewlett-Packard technician to give her internal documents from another case.  Microsoft is asking that Conlin be removed from the case.

Conlin’s lawyer, Mark Tripp of the Bradshaw Law Firm, said Microsoft’s lawyers are on an ethical witch hunt in order to keep Conlin from trying the case because they don’t want to face her in court.  He also argued the information the technician had was insignificant.

The lawsuit seeks up to $450 million for Iowa consumers upon the novel legal theory of "lack of innovation".  Conlin contends that Microsoft’s anti-competitive activities during the 1990s killed many innovations that never reached consumers.

Pundits have their doubts about whether the lack of innovation theory has any merit but don’t count Conlin out.  She has a number of large verdicts to her credit including a big win over UPS where she hit them for over $80 million.  The National Law Journal has named her as one of the Top Ten trial lawyers in America.

Frankly, when I first heard about this case I had my doubts.  Could it be that Bill is afraid to take the stand after all?

 

Is it acceptable to request the birth date of an applicant on the job application? 

It is generally NOT advisable to request an applicant’s date of birth on an employment application (except to ask whether an applicant is over the age of 18).  The Age Discrimination in Employment Act prohibits discrimination on the basis of age and applies to people age 40 and over.  Like sex, age is rarely relevant to a job description.

In order to avoid age discrimination you may also want to refrain from asking questions about when an applicant attended elementary, high school or college.

It is always a good idea to consult your employment lawyer regarding your employment applications.

Lawpportunities, a joint venture between Des Moines lawyers Rush Nigut and Brett Trout, is receiving national attention for its legal blogging seminar coming up this November 10th in Johnston, Iowa.  According to LexBlog’s Kevin O’Keefe, Lawpportunities is hosting the country’s first full-day CLE devoted to blogging. LexBlog is one of the country’s leading providers of law blogs.  O’Keefe describes the seminar as "[g]old for lawyers needing mandated CLE credits while learning something that can grow their business."

So if you are a lawyer, be sure to sign up for the YBlawg seminar today.

Corporate Law Notes Blog recently posted an interesting article which should cause employers to carefully consider their policies concerning monitoring of personal email and other technologies in the workplace.

A Massachusetts trial court ruled that the employer did not adequately put the employee on notice that his personal email account (Yahoo in this case) would be monitored despite several warnings in the manual that "Internet activity" would be monitored.

The case emphasizes the need to specifically set forth in an employee manual that "the content of personal email" may be reviewed and monitored when accessed through company owned computers or other technology.  It also emphasizes the need to be specific about whether other technologies will be monitored including voice mail, cell phones, text messaging, etc.

The awareness of monitoring email or other communications in the workplace will likely increase given the congressional page scandal involving Mark Foley.

A recent Iowa Supreme Court case, McVey v. National Organization Service, Inc., stresses the importance of developing a drug-testing policy that complies with Iowa law and making sure that policy is delivered to each employee.

McVey lost her job after testing positive for marijuana during a random test.  The employer notified her over the phone and she did not return to work.  Depsite testing postitive, McVey filed a wrongful termination lawsuit seeking damages and also reinstatement.  The trial court dismissed her claim and she appealed.

McVey and her attorney, Mark Hedberg, made two arguments.  First, that McVey did not receive a copy of the the company’s drug-testing policy.  Second, the written policy was not adequate to meet Iowa’s statutory requirements.

The Court agreed with McVey.  The Court ruled the requirement that the employer adopt an employee drug-testing policy and deliver it to each employee is a necessary step in invoking the statutory authorization for employee drug-testing.  The Court said that even if McVey had received a copy of the employer’s policy, the policy submitted did not meet the detailed requirements of Iowa law because it did not set forth what disciplinary or rehabilitation actions the employer shall take against the employee upon receipt of a confirmed positive test.

Here are some suggested preventative measures in order to avoid some of the pitfalls of Iowa’s drug-testing law:

1)  Make sure your policy complies with Iowa and federal law;

2)  DO NOT assume your DOT/CDL drug-testing policy will satisfy the state law;

3)  Periodically review your drug-testing policy to make sure it is compliant with state and federal laws through a human resource audit;

4)  If you have any questions please be sure to contact your attorney.

Also, make sure to see my post on drug testing from April 29, 2006 before the recent decision.

I was recently interviewed for an article written by Patt Johnson of the Des Moines Register entitled, "Franchise Owners Buy a Head Start".  As a part of my business law practice, I routinely review franchise agreements and Uniform Franchise Offering Circulars (UFOC).

The article featured several franchisees that are pleased with the franchise process and discussed the success of the local Maid-rite franchisor.  In the article I pointed out that prospective franchisees must keep in mind while franchising can give you a head start it is still critical to perform your due diligence.  You must interview as many franchisees as possible in order to get an accurate picture of a prospective franchisor.  It is also important to keep in mind that while you will be your own boss you will not have complete independence.  You will still need to live within the rules of the franchisor.

The term, renewal and transfer provisions of a franchise agreement are often overlooked by prospective franchisees.  Many people focus on getting into the business but how you get out is just as important.  Therefore these provisions must be reviewed carefully.

The term of the franchise agreement determines how long the franchisee will be authorized to carry on using the franchisor’s system and trademarks.  Normally the term is for a specified number of years (for example 5, 10, or 15 years).  The length of the initial term usually varies by industry practice, the initial investment required and the nature of the franchise business.

In most cases, the franchisor will offer the franchisee a right to renew for another specified term.  The renewal period may or may not be the same as the initial term.  Some franchise agreements provide only one renewal term while others will provide multiple or an unlimited number of renewal terms.   Certain conditions must usually be met in order to renew.  Generally, the franchisee must not be in default on any provisions of the franchise agreement including royalty and advertising payments.  At the time of renewal a franchisee is typically asked to sign the then current franchise agreement (which may include higher royalty payments and updating your location).  The franchisee is usually expected to provide a release for any potential claims against the franchisor for anything that occurred during the initial term.  The franchisee is generally required to pay an additional fee in order to renew.

Generally, there are no restrictions on whether the franchisor can transfer or assign the franchise agreement.  The franchisee, however, is often restricted in transferring or assigning the franchise agreement to another unless certain conditions are met.  The franchisee’s ability to sell or transfer a franchise agreement will usually be subject to obtaining the consent of the franchisor.  A potential buyer must fulfill the requirements set forth by the franchisors including financial stability and training.   A franchisee who owns the rights to multiple franchises should also pay particular attention to whether the agreement requires the franchisee to develop all of the locations before the franchise rights can be assigned or sold.  The franchise agreement may also contain a right of first refusal provision which allows the franchisor the opportunity to buy the franchise at the price offered by another buyer.  Like the renewal provision, the franchisee is generally required to pay a fee in order to transfer the franchise rights.

Iowa law does provide some protection regarding renewal and transfer provisions which a franchisor cannot force a franchisee to waive.  See Iowa Code sections 523H.5 and 523H.8