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Archive for the "Family-Owned Businesses" Category

Prevent Workers’ Comp Claims By Understanding How To Manage Risks

Accidents will happen – about 23,000 times a day in U.S. workplaces, on average, according to one study.

Workers’ compensation insurance pays for occupational injury and illness claims, and that typically protects businesses from defending against personal injury claims brought by employees. In South Carolina, which has a “no-fault” system, it doesn’t matter who is to blame for the workplace injury for a valid claim to be paid.

Although workers’ comp insurance covers an injured employee’s medical expenses and disability pay, the hidden costs for businesses are significant. The Occupational Safety & Health Administration calculates that lost productivity, higher insurance premiums and other indirect costs can total up to four times the cost of the workers’ comp claim itself.

With costs related to occupational injuries and deaths adding up to $192 billion annually, a plan to manage those risks is essential for every business.

First and foremost, employers must develop a culture of safety. OSHA says workplaces that establish safety and health management systems can reduce their injury and illness costs by 20 to 40 percent.

Changing an organization’s culture is not often easy, so leadership is critical to achieve buy-in from employees throughout the organization. Whether it’s a small business or large corporation, the message that safety is a primary concern must come from the top down.

A risk management plan can minimize workers’ comp costs in three ways: limiting opportunities for risk by controlling who comes through your door, identifying and fixing problems before something happens and managing additional risks once an accident occurs.

It’s Time To Get Your Cybersecurity Plan In Place

Cybersecurity threats pose risks to every type of business. As our dependence on technology has increased, the opportunities for data to fall into the wrong hands are all around.

Every business has some understanding of the dangers of dealing with sensitive data. We’ve heard the horror stories. Hospitals have been held hostage by hackers demanding ransom in exchange for restoring access to electronic files. Data files stolen from retailers have resulted in millions of compromised credit card accounts. Threats include any way fraudsters can use your information to make a buck.

Think of a cybersecurity plan in the same way as a plan you would prepare for any other emergency. Businesses take preventative steps to avoid fires, accidents and other catastrophic events and have plans for how to respond when an emergency comes up. Fire drills, safety procedures and incident response teams can help protect businesses from physical threats. Data breaches may be more difficult to detect initially, but they can have a similar disruptive effect on your business – and on the bottom line.

Minority Shareholders Navigating a Buyout: Know The Landscape

Minority ownership of a closely held company can be a lucrative but risky proposition. A minority shareholder’s marginal voting position can unfairly empower other shareholders, especially if they vote together.

To illustrate this point, consider a family business owned by three siblings working for the company. Without laws protecting each individual shareholder, one sibling would be powerless to stop the others from cutting her out of a profitable deal or firing her and refusing to pay dividends, thereby depriving her of any ownership benefit. The two siblings could also vote on a risky business change – like selling all of the company’s assets in a blue chip market to finance the production of a fad product – without opposition from the minority owner. 

South Carolina has attempted to balance the power enjoyed by majority shareholders through laws that permit an alienated owner to force the company to buy out her shares. These laws are applicable to situations like those discussed above, when a minority shareholder is being treated grossly unfair (often called “minority oppression”) and also when a minority shareholder dissents on a vote that would fundamentally change the way the business operates or is owned, as in a merger (often called “dissenter’s rights”).       

Beware the Double Whammy of New Overtime Rule

By the end of the year, employers could get hit with a double-whammy from new overtime pay rules. You may have heard about the new minimum pay rule, but another aspect of the overtime rules could sneak up on you.

The big, publicized change, announced in May, is that executives, administrators, outside sales people and professionals (and some others) are exempt from overtime under the Fair Labor Standards Act (FLSA) only if they perform duties that are considered exempt (the “duties test”) and are paid a minimum of $47,476 annually, or $913 a week (the new “salary test”). The current threshold, unchanged since 1975, is only $23,660.

Read our previous post on this change in overtime rules here

What makes it a double whammy is that the attention given to the new salary test likely will prompt many employees to ask if they are correctly being classified as exempt based on the “duties test,” which is separate from the salary test. Regardless of how much someone is paid, they must be paid overtime for hours worked over 40 per week if they don’t fall into an exempt category based on their actual job duties.

Employers won a major victory when the U.S. Department of Labor left the existing definitions for exempt classifications unchanged when it increased the pay threshold. We would caution employers not to breathe a sigh of relief, however. This unchanged part of the overtime rules may prove to be quite troublesome in the months ahead. 

Attorney-Client Privilege: Use with Care

A bedrock principle of our legal system is the protection that the law gives to communications between an attorney and the client.

Like most legal rights, however, attorney-client privilege has limits. Every word shared between a client and attorney isn’t protected. If you’re talking to a lawyer about a sensitive matter, don’t take attorney-client privilege for granted. The law provides exceptions, case law sometimes offers muddled guidance and opposing parties may litigate vigorously over what is covered. Your attorney can advise you as to how it applies to your circumstances, but here are some guidelines about relying on attorney-client privilege and waiving it. 

New Overtime Rule: What You Need to Know

Come December, 67,000 South Carolina workers will be newly eligible for overtime pay, following a revision of federal rules governing when overtime must be paid. Employers must take steps now to prepare for this rule, which goes into effect December 1, 2016 and will impact employees’ job duties, payroll expenses, and how work is assigned.

Depending on your point of view, the U.S. Department of Labor (DOL) regulatory change is either a severe burden for businesses – especially small businesses that may have less flexibility in how work is assigned – or a long overdue revision to allow lower-paid salaried workers to catch up to the rest of the economy.

Nationwide, the DOL estimates that about 4.2 million workers could benefit from the rule. In South Carolina, it will affect approximately 30 percent of salaried workers.

Announced May 18, the change addresses the overtime pay rule that is part of the Fair Labor Standards Act (FLSA). When Congress passed the FLSA at the tail end of the Great Depression, it mandated that workers had to be paid overtime at a rate of time-and-a-half for all hours over 40 worked in a given week. Exceptions were carved into the law, including exemptions for employees who worked in executive, administrative, outside sales, or professional jobs. (The logic behind these exemptions is that with this level of responsibility comes an obligation to get your work done, regardless of the clock.)

However, in addition to proscribing a baseline for the duties these employees engaged in on a day-to-day basis, Congress said employers could exempt only those employees who were paid a minimum salary. Since 2004, the minimum salary for each of these exemptions has been $455 per week, or $23,660 per year. In addition, employees compensated over $100,000 per year (and paid a weekly salary of at least $455 per week) could be exempt regardless of their job duties.

Don’t Let Your Workplace Become Collateral Damage in the Cultural Wars

The so-called cultural wars have roiled politics since at least the 1990s and now have invaded the workplace.

However you feel about these issues personally, you should know they are going to spawn confusion and litigation in the workplace as employers try to make sense of conflicting mandates in the courts and legislatures. Uncertainty is the enemy of risk management, and unless you want to make an expensive public statement about your beliefs, we advise you to approach these issues with caution – and sound legal counsel – until the smoke clears.

Many date the cultural wars to 1992, when presidential candidate Patrick J. Buchanan delivered what became known as the “cultural war” speech at the Republican national convention, warning that “there is a religious war going on in this country. It is a cultural war, as critical to the kind of nation we shall be as was the Cold War itself, for the war is for the soul of America.”

You don’t have to agree with Buchanan’s politics to recognize that he was right about the nature of the battle. And with talk radio and cable TV’s insatiable appetite for controversy and our never-ending cycle of national campaigning, we don’t expect the cultural wars to abate, even following the election in November. 

Shareholder Agreements Give Minority Owners Peace of Mind

When entrepreneurs start a business, they are long on optimism and short on contingency plans. That faith in free enterprise and the willingness to take risks has made America great. But businesses do hit speed bumps and the best-business-friends who worked so well together at the beginning of the enterprise sometimes find that their relationship unravels. When that happens, it can be frustrating if you’re a minority owner of the business.

As a dissenting minority shareholder, you can find yourself with no voice in a business where you invested money or sweat equity. That can include operations, hiring and firing, how profits are distributed, and mergers and acquisitions. While people often have honest disagreements over business strategy, the majority also can embark on a deliberate strategy to devalue a minority shareholder’s interest or shut him out of a fair share of profits.

As in most things, you often can avert headaches in a business relationship by assuming the best and planning for the worst.

Forming an LLC? Don’t Forget to Have “The Talk”

About two-thirds of all new businesses in the U.S. start out as LLCs, or limited liability corporations. Entrepreneurs recognize that LLCs combine the protections of a traditional corporation with the operating flexibility that small businesses need. 

We’re big fans of LLCs, but they are not without potential pitfalls. When there are problems, it’s usually because the LLC members were in a hurry at the outset, and didn’t take advantage of all the safeguards and flexibility this business formation entity allows.

Business Visas Help Companies Fill Critical Positions

Immigration is much in the news these days as the presidential candidates discuss border security, terrorism and preserving jobs for U.S. citizens. These public policy issues deserve a thorough vetting of candidates, but they shouldn’t be confused with the legal business visa process that thousands of American businesses depend upon.

Unfortunately, our schools are not producing a sufficient number of graduates in some professional fields, and American businesses have to bring in foreign nationals to fill critical positions. There is a common misconception that these businesses are hiring cheap labor that displaces U.S. citizens, but that’s wildly inaccurate. American businesses are incurring substantial expense to bring in foreign workers with specialized skills, and they would gladly hire U.S. citizens but for the dearth of domestic talent in some professional areas. 

Avoid These Legal Snares in 2016

We always like to look ahead and advise our business clients about legal issues that may receive more attention throughout the year. Some are pushed to the forefront by public policy and politics – immigration, for example. Other issues, such as data protection and workplace harassment training, always are important, but the beginning of the year is a good time to review whether your business follows best practices.

Records Retention - Do You Have a Plan?

For many small businesses, deciding what documents to keep and for how long is a function of storage capacity. As servers and filing rooms reach capacity, businesses look for documents to discard. 

This is not the way to manage your documents.

Why You Must Renew South Carolina Buy-Sell Agreements to Reflect Inclusion of Goodwill

A recent South Carolina court ruling has adopted the emerging majority approach utilized by the courts nationwide, and for the first time has recognized the distinction between “enterprise goodwill” and “personal goodwill” for equitable distribution purposes in a divorce action. 

Why Your Lawyer and Accountant Should Work as a Team

One of the first things I do when I get a new business client is to ask if they have a relationship with an accountant. With the client's permission, I'll call the accountant, introduce myself and open up the lines of communication between us. 

Don’t Make These Mistakes in Your Will

As a long-time practitioner in wills and estates and a former South Carolina probate judge, I’ve seen a lot of wills. Unfortunately, I’ve also seen many mistakes that create problems for loved ones at this difficult time or that undermine the intentions of the deceased. 

Here are the most common mistakes I’ve seen, and all are easily avoidable.

Protect Your Intellectual Property with Employment Agreements

In an era when confidential information can be secreted out the door on a thumb drive, business owners can’t depend on the goodwill of employees to keep their intellectual property safe. If you have any form of IP – and almost every business does – we recommend that you protect it with employee agreements. 

While many businesses have unique intellectual property concerns, here are some of the topics we often see emerge. 

What You Need to Know about Estimating the Value of Your Business

If you're considering buying or selling a business, including it in estate planning or setting terms for a buy-sell agreement that is part of succession planning, you want to know what it's worth. While valuing a business certainly includes subjective judgments, there is a method to arriving at an accurate estimate.

Key Legal Issues for Entrepreneurs

If you're thinking of starting a business, you likely are focused on how to sell the product or service you plan to offer. But don't neglect to set up a legal framework that will protect your business and allow it to thrive. In our litigious society, a working knowledge of business law and a relationship with a law firm has to be part of your entrepreneurial toolkit. 

Here are six areas where we recommend that first-time entrepreneurs protect themselves by getting good legal counsel at the outset to reduce the possibility of problems down the road.

Plan for Succession Even if You Plan to Work Forever

You may be one of those business owners too busy being successful to think about succession planning. Nonetheless, it is folly not to plan for your succession, and your strategy should follow the old adage of “hope for the best and plan for the worst.”  Assuming the worst – that you would unexpectedly leave the business tomorrow – do you have plans in place for transition in management, what happens to your ownership interest, and how to use your stake to provide for a spouse and family members?

What to Expect When You are the Target of a Lawsuit

It’s frightening for most business owners to receive notice of a personal injury or premises liability lawsuit, and one of the first questions lawyers are asked is whether to settle the suit and for how much. The good news is that a majority of suits settle, usually within the limits of insurance coverage, and those plaintiffs who insist on going to trial generally have weak cases.

Protect Your Business Investment with a Buy-Sell Agreement

Every business relationship eventually will lead to a parting of ways. Investors or business partners retire or are slowed by health issues, die, disagree about the future course of the business, or simply decide they want to do something else with their time and money.  

We often deal with “corporate divorce,” and it’s surprising how many people go into a business relationship without giving sufficient thought to their exit strategy. If you’re forming a new business or investing in one, you need a buy-sell agreement that anticipates the end of the relationship and sets terms that will help you avoid hurt feelings, protracted and unpleasant negotiations and even litigation. 

Here are some of the factors you will want to discuss with your legal counsel.      

Business Start-up Legal Checklist

Anyone who has started a business can tell you that they were surprised at how many legal and regulatory hoops they had to jump through just to open their doors. My husband and I experienced this first-hand when we opened a coffee shop and retail business in Greenville. We’re both lawyers, and we still found the process daunting. 

When you start a business, be sure you have the right people in place to help you. A lawyer will be one of them, and here’s a checklist that will help new entrepreneurs stay out of trouble and increase the chances of getting their business off to a trouble-free start. 

The Perils of Social Media for Hiring Managers

Hiring managers increasingly are checking out job applicants on social media, and it’s easy to see why: The Internet holds a trove of personal information on most of us, and it doesn’t take much time or skill to mine this data. 

But, you do so at your peril, I always tell employers. 

A lot of what you come across in Internet searches about a job applicant will make my job as an employment litigator harder if I’m defending you in a discrimination lawsuit. The problem is that there are certain things that you should never ask in a job interview, and yet you can’t help but stumble across these areas in a search of social media. 

Remember, every click of your keyboard is subject to discovery in litigation. Once you’ve seen something, you can’t turn back the page. 

Be Careful What You Sign: Red Flags in Commercial Contracts

When businesses sign a contract, they’re usually focused on the opportunity it represents – a new customer, a better supplier or a partnership that expands their reach. Unfortunately, when we, as lawyers, see some of these same contracts, it’s after the air has gone out of such expectations and a deal has soured. 

While our best advice is to have every contract reviewed by your attorney, we realize that most businesses aren’t going to do that for every agreement. If there is a lot of money – or risk – involved, consider asking your attorney to review a contract – a process that usually isn’t time consuming for legal counsel familiar with your business. 

However, in those cases where you choose not to make a call to your attorney, here are some things to watch for based on our experience. 

Why You Must Update Your Will

Our first advice on wills is to make sure you have one. And once you have a will, review it periodically and consider whether it needs an update. While wills never expire, your life circumstances do change, and a will that hasn’t been updated will complicate matters for your family when you are gone, and ultimately, may not reflect your wishes. 

Here’s when you should review your will.

How to Pick a Lawyer

Just as we all need a family doctor who we can rely on, every small business eventually finds that it needs a relationship with a lawyer. As with the family doctor, many small business owners find it beneficial to develop rapport with one lawyer as a point of contact. While the relationship attorney may sometimes direct the client to someone with specific experience, it’s reassuring to begin the conversation with someone who understands your business and industry – and remembers the names of your kids.

I frequently go shopping for other lawyers myself, so I have some experience in this area. In my case, I’m usually looking for a lawyer or firm in another state who can handle a matter for a client. Even as a lawyer, it’s not always easy to judge if another is going to be a good fit, so I understand how business owners may find it difficult to pick an attorney. Here’s my test for picking a lawyer. 

How to Collect Business-to-Business Bad Debts

Uncollected business-to-business debt is a huge problem for most small companies, and unlike consumer debt, there are no laws in South Carolina that directly address either the rights of creditors or debtors. Hardly a day goes by that we don’t hear from a client seeking advice on how to collect on a long-overdue commercial debt. Here is a list of best practices to help collect bad commercial debts, and to avoid ending up with these tough-to-collect liabilities in the first place.

LLC or Corporation? Which Is Right for Your New Business?

For most entrepreneurs, the choice of business entity comes down to an LLC or corporation, since both insulate personal assets from liability claims. LLCs, S corporations and C corporations all have advantages, depending on your business goals. 

Generally, the comparisons among the three will center on taxes, operating flexibility and treatment of investors and shareholders. 

Here’s a quick overview of these three alternatives that will give you a starting point for considering your options before you talk to your attorney. 

All Businesses Should Have a Document Retention Policy

Technology has made it easy for us to electronically store documents that would have required warehouse-size space in paper form. Now, businesses wrestle with the question of what they can safely get rid of, and what they must retain. This is especially a problem for small businesses, which may not have the luxury of designating someone to supervise document retention.  

Guns and the Workplace in South Carolina

Guns are a tough issue for many business owners. They may own guns and support the Second Amendment, but as business owners, they recognize that when employees bring guns to work, potential liability is created. And while some employees may feel like their Second Amendment rights are limited by workplace policies, most will understand their employer’s concern for dangerous accidents – and resulting lawsuits – that can occur when employees are permitted to carry concealed weapons. 

Don’t Let Hackers Cripple Your Business

Some of the biggest names in American business were the victims of data breaches last year, but hackers didn’t limit their attacks to companies such as Target, Home Depot and eBay. If trends hold, almost half of American businesses each year will have sensitive data stolen, according to the Ponemon Institute, which studies cybersecurity. 

Don’t Automatically Include Arbitration Clauses in Commercial Contracts

For years, mandatory arbitration clauses have been almost automatically included in many commercial contracts, because they’ve been regarded as cost-effective detours for matters that might otherwise work their way through the courts. Over the last few years, we’ve adopted a more critical view of arbitration, and now regard it as a good strategy for some clients, but not for others.

How to Write a Workable Non-Compete Agreement

Employers invest time, training and trust in key employees, and they don’t want to see them walk out the door and help a competitor. Non-compete agreements can protect your investment in employees – but only if they’re written with reasonable restrictions. 

Don’t Allow Your Business to Become a Victim of the Dreaded Ds

Is your closely-held business protected from the five dreaded Ds – death, disability, divorce, disaster and disagreement?

Turmoil, and even business failure, can follow if you don’t have a legal succession plan in place when any of these events occur. While this may not offer you any comfort, you are certainly not alone if you haven’t yet set up a succession plan: fewer than half of closely-held and family-owned businesses have a plan in place that covers these contingencies.

Five Ways to Save a Family Business for the Next Generation

It’s a harsh, but motivating reality - more than 70 percent of family businesses do not survive the transition from one generation to the next. While many family business owners dream that their legacy will survive deep into their family history, the idea that their long-term investment may not outlast them is a reality they should face … and work to protect against. With some smart and proactive measures, business owners can go a long way to protect against generational demise.