Talkin Baseball:

Let’s take time away from business and corporate law. Let’s talk baseball.

One of the bright spots in the major leagues this year is the play of Indianola, Iowa native Casey Blake for the Cleveland Indians. Casey is hitting over .400 and currently ranks in the top ten in batting average and on-base-percentage. Could an all-star game be in his future? A great start is no guarantee but Casey has historically played his best ball after April and May. Let’s go Tribe!

On the downside, it is Barry Bonds. Bonds may very well be the greatest hitter that ever lived. (My Grandpa is probably rolling over with that comment but I never saw Ted Williams). I once saw Bonds receive four straight intentional walks. Sixteen straight balls. Pitch number seventeen? Bonds hit it out of the park. Who else could do that? Despite the revelations in Game of Shadows there is no conclusive proof that Bonds knowingly took steriods. It is tough to defend Bonds but I find it hypocritical the way Major League Baseball has acted with Bonds, McGwire, Sosa et al. MLB glorified the pursuit of the single season home run mark and fans returned in droves to stadiums across the country. (Recall that baseball was practically dead before Sosa and McGwire did their magic). Then came Canseco and his book. Next, Congress put the pressure on several sluggers and now the target is Barry Bonds. MLB recently announced it plans to investigate Bonds to determine if he used steriods.

It appears Bonds may be prosecuted for perjury. Interesting. I recall Rafael Palmeiro testified before Congress that he did not take steriods – shortly before he tested positive for steroid use. Was he prosecuted? No. In fact, the President of the United States (and former Texas Rangers owner while Palmeiro played there) supported his friend 100 percent. Bush believed Palmeiro did not take steriods even after a positive test! Bonds? The guy could really use a friend.

Employer Personnel Files in Iowa – Part II

A typical personnel file may include the following:

-Employment application, along with supporting documents such as a resume, transcripts and interview notes;
– Recommendation letters and reference checks;
– Copies of non-compete agreements with any prior employer;
– Offer letters and/or employment contracts;
– Form I-9;
– Tax withholding forms;
– Job description;
– Copies of any required licenses or certificates required for the position;
– Receipt for the employee handbook;
– Testing materials, if any (Not drug tests or other medical related tests);
– Training records relating to safety, job competency, sexual harassment, etc.
– Evaluations;
– Awards and disciplinary actions;
– Pay records;
– Personal contact information – home address, telephone number, name of spouse and emergency contact
– Exit interview notes and/or form;
– Recommendation letters and notes of references given to prospective employers.

Employers should establish a records retention policy. When documents are required by law, the law usually specifies how long the document needs to be retained. In absence of a law, the applicable statute of limitations should be the guide. (A statute of limitations is a time period after which a lawsuit will be barred unless the claim is filed within the applicable time period.) Also look at your internal workings to determine if certain documents are needed in order to respond to requests for information.

If information is kept electronically, restrictions should be placed on who can access that information just like paper documents. Also back-up information needs to be kept off-site in order to protect against disasters or theft.

Employer Personnel Files in Iowa

Employers should maintain a separate personnel file for each employee. An employer should also maintain a medical file which is separate from the personnel file. Both sets of files should be secured or locked. Access to those records should be restricted to a need-to-know basis and designated individuals should be trained in how to handle such records. The files need not contain everything related to the employee. Instead, management should determine in advance what documents are, and are not, to be kept in the file. In addition, it is a good practice to organize the file into sections so particular items can be located easily. Files should be periodically reviewed in order to ensure compliance with your policies and procedures.

Next post … what types of documents should be kept in the personnel file.

Do you want to build the next Subway? Curves? or Jackson-Hewitt?

Ask yourself these questions in deciding whether you should franchise your business.

1)Are you making a good living in your business?
2)Have you operated multiple locations?
3)Do you have a proven system of operation?
4)Are the profit margins large enough for the franchisee to make a good living, support employees and pay you a royalty?
5)Do you have the time to devote to a franchise operation?
6)Do you have the skill set to promote a franchise operation?
7)Do you have start-up and operating capital?
8)Will franchisees be able to get financing from afforable sources?
9)Does your business have a unique selling proposition?
10)Does success of the business depend on skills people have or can quickly acquire?
11)Is the market stable enough to provide for growth over several years?
12)Are you able to support franchisees once you get them in business and do you have something to offer them beyond getting them in business?

If the answers to these questions are "Yes" then perhaps you are a candidate to franchise your business.

Click here for more information regarding franchise UFOC and agreement review services.

If you are considering a franchise you should conduct appropriate due diligence. One of the most important things you should do is contact as many current franchisees as you possibly can. For some reason this is often overlooked.

I strongly suggest you keep talking with current franchisees until you find someone who is willing to describe some problems or issues with the franchisor. Trust me – you will learn a lot more about the franchisor in that conversation than all the glorifying remarks put together. Because a franchisee has a problem does that mean you should look elsewhere? Not necessarily. It just means you are now able to make your decision with open eyes.

Click here for more information regarding franchise UFOC and agreement review services.

Franchising is the most popular and fastest growing business model in the United States. There are thousands of franchises on the market. A franchise is a business "system" that allows people to share brand identification, a proven method of doing business and a successful marketing and distribution system. The selling point of franchising is that your assets are being put into a proven business. You may have the opportunity for a faster start up, developing a customer base more rapidly, and experiencing profitability with less risk.

With all opportunity there are pros and cons. The pros of franchises are that there is often a proven formula, owner training is available, and there is an ability to thoroughly review past records and company history. The cons of franchises are the royalty and national advertising fees are often significant and continue even though in some cases the ongoing support of the franchise is not stellar. A franchisor may get you into business but what they do after that is probably most important. If you pick a franchisor that does not have a proven system or good name identification what are you really buying? It may also be difficult to pick the right franchise or the right industry given the myriad of choices and sometimes financing options are limited.

If you are considering franchising a good resource to contact is Joe Cooney of Frannet. Joe is the Frannet consultant for Iowa and Nebraska. He routinely holds seminars in the Des Moines area and throughout Iowa. One of these seminars may help you decide whether franchising is right for you.

If you have any questions or need assistance reviewing a franchise agreement or Uniform Franchise Offering Circular you should contact a lawyer. Click here for more information regarding franchise UFOC and agreement review services.

Iowa Federal Court to Host Teflon Lawsuit Battle

Numerous class action lawsuits filed against DuPont have been consolidated in the Federal District Court for the Southern District of Iowa for pretrial proceedings. Approximately one-third of the nation’s population may be affected. The suits allege that DuPont knew for more than 20 years that Teflon and its component chemicals had the potential to make people sick – and hid that fact from consumers. DuPont contends the material is safe.

The class of potential plaintiffs could well include almost every American that has purchased a pot or pan coated with DuPont’s non-stick coating. The lawsuits include six Des Moines residents who are represented by Des Moines lawyer Kimberly Baer of Wandro & Associates.

The lawsuits call on DuPont to:

-Pay damages to every member of the class to compensate them for purchasing replacement cookware.

-Create a fund for ongoing medical monitoring of consumers who purchased cooking products made with Teflon.

-Create a fund for independent scientific researchers to further investigate the potential for adverse health effects to consumers who used cooking products containing Teflon.

-Require that DuPont provide a warning label on cooking products regarding the potential adverse and harmful effects of Teflon.

This is sure to be one of the biggest legal battles of the next several years – and we get a front row seat.

Why Incorporate?

Here are three excellent reasons to incorporate:

1) Protect Your Assets

When you incorporate or form a limited liability company (LLC), you protect your assets including your money and home. As long as you follow the corporate formalities your company is legally separate from you as an individual so that any debts or liabilities do not put your bank account or home at risk.

2) Pay Less Taxes
There are often tax benefits to incorporating or forming an LLC that allow you to save money by paying less in taxes.

3) Enhance the Perception of Your Business

If you plan to have employees or seek investors incorporating or forming an LLC is usually a first step in enhancing the perception of your business and demonstrating that you are business savvy.

Click here to find out more about incorporating your business or forming an LLC.

No Good Deed Goes Unpunished:

When it comes to lawyers it appears that no good deed goes unpunished. After all, we are easy targets, right? Recently a Des Moines Register letter to the editor unfairly criticized some lawyers who had volunteered for junior high and high school mock trials. The letter said the lawyers made a "mockery" of our mock trial system because certain lawyers admitted to students that they had not read the materials before judging the contest. The writer further stated the lawyers gave the impression to the students that due diligence is not important within the Iowa bar.

How unfortunate these volunteers would be called out on the carpet. Lawyers across Iowa volunteer countless hours judging junior high, high school and university mock trial tournaments each year. These tournaments include local, regional, state and national tournaments. Each year lawyers leave their busy law practices and spend time away from their families to assist students. The mock trials occur during the middle of work day, in the evening and sometimes even on the weekend. The only compensation is knowing you have served your community. Due to tight schedules these lawyers may not always have time to read the case materials before volunteering. Does this mean they should not volunteer?

The reality is that every time a lawyer steps in front of a jury that jury is hearing the case for the first time. It is the lawyer’s obligation to educate the jury about the facts of the case. Often judges may be unfamilar with the facts of a case before a bench trial. Again, the lawyer must educate the judge. I see nothing wrong with a mock trial judge that has not read the case still volunteering their time. Perhaps it is more realistic and less contrived.

Despite the writer’s pot shot it is obvious these lawyers demonstrate each year that community service and assisting our youth is important. Is that such a bad example?

Settle Stubborn Business Disputes Like Lincoln: Mediate

In his Notes on the Practice of Law, Abraham Lincoln wrote:

"Discourage litigation. Persuade your neighbours to compromise when you can. Point out to them how the nominal winner is often a real loser – in fees, and expenses, and waste of time. As a peace maker, the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation. A worse man can scarcely be found than one who does this."

Abraham Lincoln would have been a big proponent of mediation. Mediation 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. Sullivan & Ward, P.C. has an experienced group of mediators.

Larry McLellan is a member of the Iowa Academy of Trial Lawyers and has been recognized by his peers as one of the "Best Lawyers in America". Larry will graduate in May with an LLM in Alternative Dispute Resolution from the University of Missouri Law School. Larry is a Board Certified Mediator by the American Academy of ADR Attorneys and is a member of the Board of Directors of the International Academy of Dispute Resolution. He has been the mediator or arbitrator over the past decade in matters involving the following areas: Business and Commercial Law, Construction Law, Employment Law, Environmental Law, Family Law, Toxic Torts and Personal Injury.

Bob Holliday is also a member of the Iowa Academy of Trial Lawyers. Bob has completed mediation / arbitration training through the American of ADR Attorneys. He mediates cases involving Personal Injury, Business and Commerical Law, School Law and Family Law.

Click here to learn more about Sullivan & Ward’s mediation services.