by eclewis | Dec 30, 2011 | Business News, Random Thoughts
If you haven’t been to the home of your small business attorney recently, then you have probably noticed some big changes! As you can see, the website has been completely redone. You can now find the newest stories on the homepage. You can still find all the posts on the blog page. This year, each month will have a different theme with articles posted about top tips for you to have the best business year ever!
So make sure to check back to find out if there are new posts that will help you!
If you have comments about the new look, please let me know!
by eclewis | Sep 28, 2011 | Business News, IP Law, Online/Social Media Law
As an attorney that frequently speaks on social media, online law, and other techy legal issues, I get asked by employers what they can and can’t do as far as investigating applicants online. Unfortunately, the answer really varies on the specific circumstances. However, in most cases, employers should follow at least the following basic rules:
- Don’t do anything online that you can’t do offline. For instance, do not use information you find online to discriminate against a potential new hire. If you cannot discriminate against someone due to having children offline, you can’t research whether they have children online.
- You may be required to tell individuals where you get information about them during the interview process. If you are going to hire a company to research online sources to find out more about applicants, check with your attorney to determine if you must reveal this under the Fair Credit Reporting Act.
- After hire, make sure you clearly state what you expect from employees both on and off the job regarding the use of social media. For instance, do you need to worry about complying with the FTC endorsement rules (i.e. if your employee says good things about you do the disclose the employment status)?
Depending on the number of employees you have and the type of business you have, you may need to have a policy on both using social media in the hiring process and after hire. If you are hiring employees, or have employees and haven’t thought about whether you need a policy before this, contact me, your Denver Small Business Lawyer today to find out if you need one today.
by eclewis | Sep 21, 2011 | Business News
You’ve decided that you need another person in your business – you can’t hire someone as an independent contractor for various reasons (see last week’s blog post for more information) and have found outsourcing is too expensive. You are ready to join the thousands before you that have become employers. However, before hiring employees, there are several questions you should ask:
- Do you need intellectual property agreements with clients?
- What tax forms are you going to have to file?
- Are you going to meet any thresholds for complying with other laws?
If your employees are going to be making anything for the business, such as software, pictures, manuals, or products, or are going to be exposed to any trade secrets of the business, such as customer lists, financial information, or marketing secrets, you are probably going to want employees to sign intellectual property agreements. These agreements vary in what they cover but in most cases state that anything created for the company during the term of employment is owned by the company and that any intellectual property owned by the company must remain confidential. Of course, IP agreements vary depending on the company so speak with your Denver business lawyer to determine what yours should have in it.
If you are an s-corporation, you are probably already filing most tax forms needed for having employees (and if you aren’t, speak with your accountant to see if you should be!). Hiring an employee probably won’t change much except the amounts owed with each form. However, if you aren’t an s-corporation and you are hiring your first employee, welcome to a new world of forms, fees, and taxes. Just some of the forms you will need to file are an IRS 941 quarterly, an IRS 940 yearly, Colorado Department of Revenue forms, unemployment insurance forms, possibly occupational privilege tax forms, worker’s compensation and depending on your jurisdiction miscellaneous other forms. If this is your first employee, your accountant or bookkeeper should be your first resource to make sure everything is filed correctly.
Depending on the number of employees you have, you may have to comply with different laws. All businesses, with only a few exceptions, have to comply with wage and hour laws and pay at least minimum wage. However, providing health care and complying with FMLA rules, ADA rules, and other laws vary on the size of the company. When hiring employees, you need to talk to your attorney to determine what rules you need to follow based on the number of employees you have.
While these questions are some of the questions you need to ask, when hiring an employee there are thousands of others. If you are thinking about hiring an employee, you can always sign up for my seminar at the Front Range SBDC on the basics of hiring employees or contact me for one-on-one help.
by eclewis | Sep 15, 2011 | Business News
Many times when a business is first looking to expand, owners wonder whether they can hire someone as an independent contractor rather than an employee. Why? Hiring independent contractors is usually cheaper than employees. As we will discuss next week, hiring employees entails withholding taxes, paying the employer’s portion of FICA, purchasing worker’s compensation, paying unemployment insurance, complying with wage and hour laws, and the list goes on and on. However, when hiring an independent contractor, in most cases, someone only needs to pay the independent contractor and then file a 1099 with the IRS at the end of the year on what was paid to them.
The problem that arises when hiring independent contractors is that Colorado, the IRS, and the US Department of Labor may disagree with your conclusion that someone is an independent contractor and state that you have misclassified the person as an independent contractor and seek fines, penalties, and repayment of various amounts. For instance, if the Colorado Department of Labor determines that you have misclassified an employee as an independent contractor, you may be asked to repay all unemployment insurance premiums, fines, and penalties. If the IRS determines that you have misclassified someone, you may have to repay the employer portion of FICA.
So how do you determine whether you can hire someone as an independent contractor? Unfortunately, the IRS, the USDOL, and Colorado have three different standards. Typically, Colorado tends to be the strictest, finding more people are employees than either other entity. Colorado looks at two main factors:
- Is the independent contractor free from the business’s control and direction over how the independent contractor’s service are performed?
- Is the independent contractor customarily engaged in an independent trade, occupation, profession, or business related to the service he or she is performing for the business?
The CDLE In regards to the first, the CDLE looks at additional factors to determine whether someone is free from direction and control such as does the business or the independent contractor provide supplies? Who pays for mileage? Does the business train the independent contractor? In regards to the second question, the CDLE looks to see whether someone is truly running an independent business where they provide services to multiple companies or whether the person is more like an employee who only works for one company for a long time.
By looking at the whole picture, the CDLE is trying to figure out whether the relationship looks like an employee-employer relationship or one where the independent contractor is truly independent. If you are thinking about hiring independent contractors, make sure to speak with your accountant or attorney to go through the factors to determine that you are classifying the person correctly!
by eclewis | Aug 10, 2011 | Business News, IP Law, Online/Social Media Law
Last week, I talked a little about terms of use and why your website needs one. The TOU is only one of several documents that most website needs – websites typically also need privacy policies and copyright policies. Today you get to learn a little about what privacy policies are and when websites need them.
What is a privacy policy?
A privacy policy explains what you as the website owner do with the information you gain about website users. For instance, you may gain information about people through web-logging software such as Google Analytics. You may ask users to submit their names, birth dates, or email addresses to your site. You may request credit card payments from users or mailing addresses. All of this information collected will be used for various things. You may use someone’s name for both the username on the account and to mail them direct mail. You may collect analytic information to sell to marketers. A good privacy policy will go over what you collect, how you use it, how others use it, and where it will end up.
Does every website need one?
Most websites need privacy policies. Almost all websites collect some type of information. If you believe you do not need a privacy policy, it is always best to run this by an attorney to make sure it is true. Many privacy policies are fairly boiler plate; however, it is important to ask your attorney if there are any issues that aren’t addressed in your particular situation that should be as boiler plate text only works to a certain extent.
If you have a website and are wondering if your privacy policy is sufficient or if you need one written, contact your Denver business contract attorney today at 720-258-6647.
by eclewis | Aug 4, 2011 | Business News, IP Law, Online/Social Media Law
Last week, your Denver business attorney was lucky enough to get out of dodge and headed up to the gorgeous town of Breckenridge, CO to speak at the Colorado Women’s Small Business Development Conference. While I got out of the heat of Denver, I spoke about a topic that can get a business into a lot of hot water: online marketing. When setting up a business website, business owners worry about issues such as search engine rankings, visibility, and usability. However, many times they forget to think about whether the website is opening them up to liability issues. In today’s blog, I am going to briefly speak about what a terms of use is. Stay tuned next week to learn about privacy policies and the week after to hear a few things about copyright policies!
Terms of Use Policies
A terms of use, sometimes also referred to as a terms of service, is the agreement a user of a website enters into with the website owner. Typically, a terms of use states what the rights and obligations are of both the users of the site, the owners of the site, and browsers of the site. It ensures that everyone knows what they can and can’t do. For some sites the terms of use is fairly short. For instance, a site which is for a small audience and doesn’t allow comments is going to have a much smaller terms of use than a e-commerce social media site where people interact and buy and sell things.
What You Need To Include
A good terms of use will cover the issues that a site owner may encounter with a website user that would result in legal issues. Ninety-nine percent of terms of uses will include a basic description of what the site is going to be used for, whose law controls any disputes (i.e. Colorado or Vermont or Utah), where disputes are heard (i.e. Denver district court, Clay County, Florida, etc), whether the rights of a user can be transferred, and basic contract language (for more on this, attend one of my Contract Basic classes). In addition, depending on the site, terms of use may include clauses that are e-commerce specific (sales, shipping, and return policies); social media specific (account, user interactions, and uploading policies); or profession specific (attorney disclaimers, real estate disclaimers, etc).
Why You Need One
If your business is online, you need a terms of use. It may be something as simple as a few paragraphs if your website is only an online business card or it may become several different documents if you end up running a website as large as Google, Facebook, or MSN. If you don’t have one, especially if you are providing products or services through your website, you may find that you are fighting court battles in places you never expected (and didn’t particularly want to go) when a transaction goes wrong.
If you find yourself in need of a terms of use because you are starting an e-commerce site or have never had a website for your business, please call me, your online business law attorney at 720-258-6647.
