“That’s the way I’ve always done it!”
My usual response is an internal groan.
An example is a small condo association with three units that does not keep official meeting minutes, and does not do proper voting. Problems arise when there are new unit owners with questions in regards to past events. There is no record and this can result in a liability issue.
There is a reason why there are condominium bylaws. They need to be followed, and if they are too difficult to follow then either a) hire a management company or b) change the bylaws.
What about sending out contracts, and starting the work before they are signed. This is very common, but it becomes an issue when the work being done is questioned. A signature is very important.
An easy fix is to use Hello Sign or DocuSign. These are valid ways to have signatures signed, and courts recognize them per state and federal law.
There always needs to be follow through so make that follow through easier.
Just because a contract is “standard” does not mean that it cannot be changed. Most contracts are the result of a negotiation. You want the contract to reflect the discussions, and to understand what is being stated because you will be signing it along with the other party.
The adage does not just extend to legal matters. Marketing and networking may also require some change.
Sure, most people think of January as the beginning of the new year, but I always see September as a time to make new business plans and look at some disturbing legal trends that will be effecting small businesses. There are ethical issues, then there is privacy and regulations that have an uneven impact on small businesses.
The ethical issues that have arisen are in regards to equality based on gender and sexual orientation. The implication does trickle into business. What do to when there are allegations of employee discrimination? How can you protect your business and your clients? Even the smallest of companies should consider an employee handbook that should include the ethical standards your business wishes to emulate. These ideals should permeate the whole business- website, retail level and statements. I had a great experience at my local Lens Crafters where they fixed my sunglasses for free and suggested I make a donation to Gifts of Sight, a charity they support.
Privacy and protection of information is paramount. This is a topic that should be addressed in an employee handbook. Some thoughts are –what type of security do you have on your computers? Are doors locked? Are passwords changed from time to time? Is there a list of who has access to what? What happens if there is a breach? It is important to have a plan in case the worst happens. Something to consider is an application like Last Pass https://lastpass.com/enterprise_overview.php which provides password management with encryption software.
Being the LITTLE GUY is difficult with federal regulations and with legal matters. If you have a business that has connections with federal oversight- like the EPA for example, then you want to make sure you are aware of upcoming regulations that can affect you. Watch the Federal Register: https://www.federalregister.gov/. Since I do some landlord/tenant work, I am keenly watching a state bill that may have an impact on my clients. It is easy to join association or have online membership to different groups that can provide information that will help or hurt your business. Following on social media can also be a great source.
Lastly, law suits are expensive, and the cost only increasing. Think about conflict management and less expensive ways to handle your disputes. Using mediation and referencing it in your contracts and employee handbook can be an easy way to avoid costly litigation. Contact True North Business Consulting about employee handbooks and mediation today.
July 31, 2015
It seems as though every year I get a slew of questions that lead back to licensure. Certain professions require a license. Licensing is important because there are requirements in order to get the license and standards in order to keep the license.
In order to keep a license there is usually a continuing education requirement and a scope of practice. Recently body workers have come under fire. Body works are not licensed massage therapists. Many cities and towns are not allowing for body workers to open businesses.
There is next the scope of practice issue. Licensed professionals have a scope of practice they must adhere to and not go beyond that scope. For example a physical therapy assistant cannot bill their services to an insurance company and they have to be under the direct supervision of a physical therapist.
What if the consumer has an issue? Frequently consumers hire unlicensed contractors to work on their homes and businesses. Also frequently are the issues that arise due to poor workmanship and incomplete work. If the contractor is licensed then there is actually some recourse through the state. If the contractor is not licensed then that ability is lost.
It is important to use licensed individuals as there is some protection provided. It is also important for those licensed to stay within their scope of practice to limit legal issues.
My friend called me on a Saturday to ask for advice. She was at the gym and the person sitting next to her felt she was too close and threw a weight at her. He had threatened her in the past. She had decided to go to the police after talking to the gym with no results except for, ‘You need to work this out amongst yourself.’ Wrong answer.
She had a bruise, a minor injury and although there was a video recording, the police did not want to get involved.
My thought went to how poorly the gym handled the situation. It did rise to negligence- the gym owes a duty to its members to provide a safe work out environment, and that duty was breached. However, the gym was as, Jessica Nagle of Nagle Law called it, ‘ethically challenged.’
Conflict is a growth industry. Because of that business need to have systems in place on how to deal conflict whether that is among employees, vendors or customers.
My suggestion is to have a written policy about how you will deal with conflict. Amongst employees, for example, this may be an anonymous hotline to report issues or for customers there may be a formal complaint process.
These small ideas would create an ethical business and also one less likely to have negligence claims.
I had the opportunity to learn about the Office of Advocacy recently and wanted to share my experience. The Office of Advocacy is part of the Small Business Administration, a federal agency. From their website: https://www.sba.gov/advocacy
Advocacy is an independent voice for small business within the federal government, the watchdog for the Regulatory Flexibility Act (RFA) and the source of small business statistics. Advocacy advances the views and concerns of small business before Congress, the White House, the federal agencies, the federal courts and state policy makers.
What this means is that on a daily basis the federal government changes regulations, before those regulations are changed there is a time when the government asks for input. Unfortunately, most small businesses are not aware of changing regulations and their impact.
Let me give you an example:
What if there is a change to manufacturing regulations that if you are a jewelry manufacturer, a federal regulation requires lead testing. This means that if you sell jewelry on a site such as Etsy that you would have to get your necklaces, rings and bracelets to a lab.
The Office of the Advocacy would reach out to small business and ask for the law’s impact. But, what if it is too late, and you, a small time jewelry maker get a fine from the federal government?
In this case, with fines, then within the Office of the Advocacy is an Ombudsman office. The ombudsman, although an employee of the federal government is an official appointed to investigate individuals’ complaints against maladministration. The ombudsman can intervene in regards to the fine that is issues.
This is a little known office with a big impact! I suggest signing up for their email newsletter to stay informed. If you have time http://www.regulations.gov lists all of the changes in regulations- you can see if there will be an impact to your business
I enjoy being a mediator. Mediation is when a third party neutral helps the disputing parties by facilitating their dispute. It is the last opportunity the parties will have to be a party in the decision making process, because if mediation fails then there will be litigation or arbitration. This means a judge, jury or arbitrator will be making the decision.
Being a mediator allows me to be a guide and organizer to attempt to bring a resolution to the disagreement. What I believe is the most important though is that mediation allows people to make agreement that are legal, but that a court could never create.
For example, partners want to split the business, but it is not a simple 50/50 division. There were debts neither party wanted, client agreements for future events and the name of business. With mediation each issue could be dealt with, rather than a costly trial which leaves most people feeling the results were unsatisfactory, let alone the antagonistic behavior.
If you have a small claims court action in Massachusetts, and most other states, then expect that you will be mediating that dispute first. If you entering a contractual agreement with another party consider a dispute resolution clause with mediation as a choice before court proceedings.
I am snow weary. Usually this condition does not hit me until the end of February, but with two storms the feeling started early.
“The snow brings out the worse in people,” said a plow driver.
This is true- patience is lost. Here are some other issues that the snow brings:
- Timing. If you have contracts or due dates on projects then be advised to make sure you have an understanding about date flexibility. The postal services are not running on time, in fact a form I sent to the court was delayed. I called until I was told it was received and recorded. If date and time is important, then you may want to consider a courier service.
- Liability. Yes, sidewalks, parking lots and common areas should be clean, but please recognize that in many locations there are 30+ inches of snow with no place for the snow. Think about using technology to avoid driving or at least to be understanding.
- Prepare. I do have the ability to work from home, but this means in order to do so I must back up my computer files. This is important for not only security reasons, but so that you can complete your work as seamlessly as possible, especially if due dates are immovable. As an adjust professor, I have noticed that my students have not kept up with the reading on missed classes, but the classes will continue and with online classes they will be made up with many students behind. No need to get behind if you keep up with the work and remain prepared.
Most importantly, it is a time to be able to use collaborative negotiation in order to solve issues, looking past positions to find out what truly are the issues, keeping in mind it is usually timing, liability and preparedness. Do not be stuck in your way (in ice or snow), but collaborate to find a solution. It will not melt the snow faster, but it will make it bearable.
It was take your dad to court day, not that I sued my father, but that he had a legal matter and I was co-counsel. It was fascinating to see the process through a layman’s eyes because court is not about “justice,” it’s about “negotiation.”
This frustrated my father. Statistically about 75% of cases settle. Why?
The judge made two important statements:
“This is not about all the emotions or who is right or wrong.”
“Each side had to give and take.”
The other side in this case was unreasonable and unwilling to give up anything so there will be a trial.
My dad is still confused.
First, the clerk magistrate is like a gatekeeper. He or she is giving information on the validity of your case. They try to settle matters at that level first, if not then your next step it to appear before the judge where the judge again will try to settle matters.
Courts are busy and trials take time. If there are settlements negotiated or mediated, then the judge is free to handle other matters.
What about the lawyer?
Well, in the court room there was a matter before the judge that just needed to the two lawyers to agree to continue. So they each charged their clients to come to court to work out a date to meet in the future.
My point is this—if things go wrong, then approach it with a settlement attitude. Negotiate so that you can come up with a fair outcome, talk to a lawyer to see your rights, but it will cost less in time and money when you can come up with a solution before court.
December means the holidays, family and even stress, but it may also be the time to think of bonuses for your employees, which leads me into the timely discussion of the difference between independent contractors and employees.
I usually get this question when a business owner is worried that the person they have been giving a 1099 form to—the IRS form given to independent contractors so that they pay their own taxes- is not really an independent contractor. In fact, this person is an employee who is being fired and may want to collect unemployment, something an independent contractor cannot do.
The IRS looks at three criteria:
• Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done through instructions, training or other means.
• Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job.
• Type of Relationship factor relates to how the workers and the business owner perceive their relationship.
In Massachusetts the law and test is stricter as people are considered to be an employee under those chapters unless:
(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact; and
(2) the service is performed outside the usual course of the business of the employer; and,
(3) the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.
The best example to illustrate is:
Independent contractor: You are a health care practitioner with your own office and need an electrician to install outlets. You hire an electrician, you do not know how to install outlets, do not tell the electrician how to do their job and pay them a fee for the service they have done.
Employee: You are a health care practitioner and you offer massages, you hire a massage therapist, give the massage therapist a room, clients and tell the massage therapist what time to come in. This is an employee.
The issue is that it is less expensive to utilize independent contractors because with employees the employer must pay payroll taxes, workers compensation and unemployment. However, the question is how much do you want to risk since penalties are stiff for a business owner.
I was watching an episode of the Good Wife and their files were being held for ransom. I thought it was something that was fictional, but when I was speaking to Marcus of ASCE Solutions I learned otherwise. He has helped businesses when they find their files held hostage- truly the only avenue is to pay.
What can be done?
Since 2010 Massachusetts required every business or individual who uses a Massachusetts resident’s personal information to have a Written Internet Security Program. Many people do not know about this requirement.
To start what is personal information?
(a) Social Security number;
(b) driver’s license number or state-issued identification card number; or
(c) financial account number, or credit or debit card number.
What WISP is requiring is that paper files are locked and their access is limited. For computer files they require firewalls, virus programs and if you backup then that needs to be secured, too.
You mention ransoms?
There are individuals that hack into computers and will hold files hostage. It has happened to many companies, but is not publicized. A case that was publicized was that of Swansea Police Department. They were forced to pay $750 in ransom earlier this month to hackers after a virus locked all of their computer files.
Meet the WISP protocols at least, but think about working with a technology expert. Adhering to the law is important, but being protected.
For more information on WISP: http://www.mass.gov/ocabr/docs/idtheft/sec-plan-smallbiz-guide.pdf
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