With the school year approaching I thought it would be a good time to remind people to do their homework. Sure, you may be out of school and think you are done with homework, but that is not true.
In court there is a reading of the motions and a list of plaintiffs and defendants for the day. When a name called, the plaintiffs and defendants need to respond that they are present. The list may be long, but some days as many as 50% of the list are not present. If both parties are not in court, then the case is dismissed, but if one party shows up, then that person wins.
In those cases frequently the losing party comes in after the fact, and another date has to be picked, prolonging the proceedings.
The problem is that if you lose and there is a judgment against you, then it is on your credit report for 25 years!
Another time that homework is important is when purchasing a business. An inspection of the books and the property by professionals maybe costly, but it can prevent surprises later- expensive surprises.
Once a contract for a purchase of a business is signed, you are saying that you did your due diligence. After the contract there is no recourse. This means if there is a problem with the space or accounting, then you are unable to go after the seller. You bought the problems.
A little homework, as much as you groan, can save you later.
I recently went on vacation and used a tour company. The trip started in Paris, the first time I have ever been there and I wanted to make the most of it. According to the brochure the hotels were, “handpicked” and in central locations. Paris has 20 different neighborhoods which are called arrondissements. The tourist locations which are ideal are between one through eight.
My hotel was in arrondissement 19, which means I was in the middle of nowhere. It would take more than 2 changes on the metro to get into Paris proper and over 30 minutes. The distance was not the only issue. Two words: powdered eggs.
In a country that is home to the omlette, breakfast was a continental one with breads and meats and scrambled eggs. The scrambled eggs were suspiciously runny. It was then that someone in our group identified them as being powdered eggs.
Sure, I understand that the hotel is trying to make a profit and a way to save money is to buy powdered eggs and add water. Voila! Let’s fool the travelers. (I am not going to talk about the dirty sheets.)
In the end, the tour company stressed completing the feedback form because, “we do listen.”
I have not heard from the tour company. Actually, I did. They sent me a brochure.
If you are going to ask for feedback or ask for a completion of a survey, then you need to do something with that information.
1) What are the questions you are asking and why? For example are you looking for age information, what are your popular products or the value you provide?
2) What are you going to use to gather information? There is survey monkey online, but there is also social media or you can provide a mailing.
3) How will you collect the statistical information? Once you have the info then you need to set up interpreting the information.
You have collected this information so now what? Are you willing to change? Are you going to put this in your best practices? Will you reply? Surveys and feedbacks can be great as they can bring to light legal issues and management issues along with marketing opportunities. However, this can only happen if you do something with the feedback. Bonne chance!
My friend called me wanting my opinion. She had booked a trip with her family, and purchased insurance through the tour provider. They had been repeatedly told the insurance provided cancellation for any reason and could be used up until the flight.
The Paris Attacks happened, and they were worried so my friend confirmed again. Same answer, “You have cancellation coverage for any reason.”
Well, her sister had to cancel on the day of the trip. Guess what? The insurance was misrepresented. To cancel she would need a doctor’s letter and it would not be for the cost of the trip. The insurance would provide a voucher for the cost of the trip to be used in one year.
If you believed this is uncommon, then I can say it is the norm now.
I booked a trip, and purchased insurance. I was told the same that the insurance would cover the trip fully. I then made a change in regards to airlines, and this was where I was informed that the insurance only provides a voucher to be used in one year.
Is this misrepresentation?
“A practice may be deceptive if it reasonably could be found to have caused the plaintiff to act differently than he otherwise would have acted,” that is according to a Massachusetts case.
Would my friend have acted differently? Yes. She would have purchased the right type of insurance that provided a cash refund.
So now what?
Well, in Massachusetts there is ample consumer protection available. The first step is to write a demand letter that requires the company to reply within 30 days or face potential triple damages in court. This will usually lead to some sort of settlement. Other states have their own consumer protection laws, which can be found here: https://www.usa.gov/state-consumer
You may need to speak to a lawyer about a consumer issue to discover if your act was deceptive, but before that ask questions so you can make good decisions.
The third time was the charm when it came to purchasing a new washing machine and dryer after the appliance revolt of 2016. For two weeks since the washing machine died, and the dryer decided to follow, I have learned a lot. I want to share that knowledge.
1) High efficiency top loaders washing machines require you to be either a) above 5’7” or b) have a long arm span to be able to reach into the washer.
2) Items that you want to clean must be placed in a circular pattern where you can always see the middle.
3) You cannot wash water resistant jackets or sneakers.
4) If you have anything in the pocket you are doomed.
After two deliveries of top loaders, I went with the front loader BUT without the pedestals. Of course you ask, why not the pedestals?
Pedestals only come in one height, which was too tall. In addition, they cost as much as a dryer.
I was a client of big box nameless store who did not provide me with any of this information. It was the second big box store that provided me with more information that helped me make the decision. No one mentioned these issues to me prior to my purchase, and I thought I had done my homework.
Recently I got a call from a potential client about a restaurant idea. Without any definite plans, I decided to send him home to do some thinking.
1. He was in a partnership with no formalized agreement. A delineation of responsibility was needed, and the partner needed to be a part of discussions.
2. Unsure of investment amount which made it difficult to:
a. Find rental space.
b. Or decide to buy an already existing restaurant
c. Look into franchising
That potential client was ready to become a client. I thought I was ready to buy a washer and dryer, but I was not. I needed more information.
A prepared client is better than one who is not prepared. The client will also save money, which is always a benefit.
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.
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
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.
Why?
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
