FINDING A BUSINESS LAWYER

What Is Business or Corporate Law?

Business law is sometimes called mercantile law or commercial law and refers to the laws that govern the dealings between people and commercial matters. There are two distinct areas of business law; regulation of commercial entities through laws of partnership, company, bankruptcy, and agency and the second is regulation of the commercial transactions through contract law. If you are looking to establish a business, a small business attorney or corporate attorney is your best choice.

Business law begins with setting up a business. In the eyes of the law, each business is a new, individual legal entity. Starting a new business typically starts with filing the paperwork that makes the business formally exist in the government’s eyes. The process to file  paperwork needed to establish a new  business also varies from one state to another.

Sources:  http://legalcareerpath.com/what-is-business-law/

http://www.gclawnc.com/blog/what-is-business-law-what-are-the-features-of-business-law

FREQUENTLY ASKED QUESTIONS

Choosing an appropriate legal structure.  It may be one of the most important decisions a business owner can make.  He or she must weigh the pros and cons of each entity (sole proprietorship, partnership, corporation) when starting a business and then choose the form that’s in their best interests.  An attorney can help with that, then help them file the necessary paperwork to formally start the business.

Business law and immigration law often intersect.  Businesses may want employees from other countries, may want international employees on a full-time basis, or may need temporary workers.  Knowing how to navigate federal immigration laws is essential.

Commerce isn’t as easy as it sounds.  Regulations govern how companies can make and sell products.  From factory working conditions to distribution requirements to price controls to tariffs, laws and rules regulate how a company buys materials and makes and sells its products. Also,  owners of small businesses often think that  intellectual property issues shouldn’t really concern them, and that only big businesses deal face such issues.  This could be a big mistake. Small businesses often have IP issues as well.

Business operations include preparing and negotiating contracts.  A contract can be anything from a lease agreement to a purchasing agreement to an agreement with a third-party vendor to sell a product.  Lawyers in business law must fully understand the elements of contract law and the nuances that might impact enforcement of a contract.  They must work with their clients to skillfully negotiate and draft contracts that work to the client’s best interests.

Sources: https://linkilaw.com/blog/key-legal-issues-facing-small-businesses

http://linkilaw.com/is-your-intellectual-property-legally-protected/

http://www.businessdictionary.com/article/538/common-legal-issues-faced-by-businesses/

https://www.wework.com/creator/run-your-business/hr-human-resources/10-legal-issues-entrepreneurs-need-know/

If your business has valuable or unique, proprietary information that you want to keep secret, it may be a good practice to have your employees sign a nondisclosure agreement.  An NDA is a contract in which the individual promises to protect the confidentiality of the information learned and/or disclosed during his or her employment.  If you have concerns that current employees might leave your company to work for a competitor, and this might cause you competitive harm, you may want to have new employees sign a non-compete clause.  A non-compete agreement is a legal contract that prohibits employees from revealing valuable information to competitors or other outsiders for a defined period after ending employment with the company.  A non-compete clause can also prohibit a former employee from going to work for a company deemed to be a competitor.

Sources:  https://www.thebalancecareers.com/non-compete-agreement-1918200

https://www.spigglelaw.com/employment-blog/subject-noncompete-nonsolicitation-agreement-beware-social-media/

https://www.workplacefairness.org/non-compete-agreements

http://www.cose.org/Mind%20Your%20Business/HR/Answering%207%20Questions%20About%20Non-Compete%20and%20Non-Disclosure%20Agreements.aspx

This is determined under the Fair Labor Standards Act (FLSA).  Factors include employees’ job responsibilities and autonomy to make decisions as part of their classification.  Employees determined to be non-exempt employees are paid minimum wage or higher for any hours worked less than 40 hours a week; for any hours over 40 worked in a week a rate of time and one-half must be paid.  Employees classified as exempt are not paid overtime under FLSA.

Job title alone does not determine classification of a job as exempt or non-exempt.  Use the job description to determine if an employee is an exempt executive.  An employee must earn a minimum $455 per week to be classified as exempt.  The most important determining factor in classifying employees as exempt or non-exempt comes from a duties test.

As always, seek legal help to make the right decision.

Sources:  http://www.flsa.com/coverage.html

https://www.lawyers.com/legal-info/labor-employment-law/wage-and-hour-law/am-i-an-exempt-employee-or-nonexempt-employee.html

https://www.thebalancecareers.com/exempt-and-a-non-exempt-employee-2061988

 

The determination of whether an individual is an employee or a contractor affects tax withholding, Social Security and Medicare taxes, and unemployment tax.  Typically, employees are regular workers under your control, while independent contractors are usually paid on a part-time or freelance basis.  An employee will perform duties controlled by you in your facility, whereas an independent contractor only works when required, may work offsite, and likely works for other throughout the year.

Sources:  https://www.irs.gov/businesses/small-businesses-self-employed/independent-contractor-self-employed-or-employee

https://www.thebalancesmb.com/how-the-irs-determines-independent-contractor-status-398618

Any business that employs people to work for them needs to have a solid understanding of employee law issues.  Some important things to navigate are correctly determining whether an individual is an employee or a contractor, whether employees are classed as “exempt” or “non-exempt” and eligible for overtime pay, and whether to employ non-disclosure and/or non-compete agreements. Other issues include discrimination and Harassment at the work place, Family and Medical Leave Act (FMLA) issues,  changes in health care laws, uses of social media in the workplace, dealing with labor unions, minimum wage, overtime, and misclassification,  Unsafe Workplace Complaints and Conditions, Workers’ Rights, Workers’ Compensation issues, Wrongful Discharge/Termination of Employment,  and others.

Sources: https://www.usa.gov/labor-laws

https://www.bizjournals.com/bizjournals/how-to/human-resources/2017/09/9-employment-law-issues-you-need-to-watch.html

 

A lot.  Owners of property in the United States are provided with certain protections and rights.  Property can be protected using patents, copyright laws, and trademarks.  Intellectual property is often protected through copyright laws.  The Internet has brought forth many new issues when it comes to protecting intellectual property.  Infringements can bring forth several responses, from “cease-and-desist” letters to lawsuits.

Your own intellectual property can be protected by a registered trademark.  Trademarks can be registered online at the U.S. Patent and Trademark website.  Before completing the registration, use the website’s electronic search system, where you can make sure another company hasn’t already registered the trademark you plan to claim.

Sources:  https://fairuse.stanford.edu/overview/introduction/intellectual-property-laws/

https://www.forbes.com/sites/artneill/2017/06/08/intellectual-property-101-what-your-business-needs-to-know-about-copyright-law/#6f6c4a5c11dd

http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf

https://www.thebalancecareers.com/intellectual-property-laws-what-does-a-copyright-protect-3514947

 

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Quotes of Wisdom

What Lawyers Wish You Knew

An ounce of prevention is worth a pound of cure.

I represent startups, entrepreneurs and growing companies. For them funds are always stretched thin and their biggest concern is cost. As a result they often skip contacting me thinking it will be too expensive. The consequence is that they resort to DIY freestyle contract drafting, ignore brewing partner or client problems, delay calling me until they get a court summons.

If there is one thing that I try to instill in my clients is that small micro investments in on-going advice yield big results. I notably recall how a one hour consultation swayed an entrepreneur from investing in a deal which later tanked to the tune of several million dollars. Or how a startup almost chose to form an LLC, using a service that advertises on TV, and after one of the founders contacted me they I formed them as a c-corp instead, allowing them to take on venture capital.

So, don’t be afraid to seek advice. The kicker is that often I (and many other good business attorneys) don’t even charge for micro advice.

–Roman Fichman
Business Attorney –  Owner of TheLegalist.com

“The minute you read something that you can’t understand, you can almost be sure that it was drawn up by a lawyer.”

― Will Rogers

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