and all the BS fit to read!

New Georgia Law HB 30

New Georgia Law HB 30

Jun 9, 2011

New Georgia Law Allows Employers to Enforce Stronger Non-Compete Agreements In May of 2011 HB 30 was signed into law, implementing a change to Georgia’s constitution approved in 2010, which gave Georgia business owners more latitude in structuring non-compete agreements, not only with employees, but with contractors and with sellers of businesses being purchased.  The bill provides a number of guidelines, but generally allows non-compete agreements that are reasonable in the context of the specific situation, and it generally brings Georgia’s law on this subject into the mainstream among US states.  But non-competes that are enforceable in one situation may not be enforceable in another; a non compete for a key sales employee can be broader than for a clerical worker, for example.  Any business seeking to protect its business with reasonable non-compete agreements should consider reviewing and revising its agreements, and perhaps requiring existing, as well as new, employees to sign an appropriate agreement. Employees who are asked to sign such agreements should be aware of the likelihood of their being enforceable. — Gary R. Whitaker Whitaker Business Law The Gates at Sugarloaf 1325 Satellite Blvd, Ste 1604 Suwanee, GA 30024 Cell: 310-405-1044...

What To Do When Your Firm Says No

What To Do When Your Firm Says No

Apr 20, 2011

So you’re a registered rep. or an advisor who wants to harness the power of social media for business purposes.  Maybe you want to raise brand awareness of your business, increase your personal profile, or perhaps start a blog to improve internet visibility and help educate your clients and potential clients.  But what do you do when your firm says no to your social media plans? First, take a deep breath.  Understand that many firms are still somewhat scared about social media and its use for business purposes.  This reluctance is likely rooted in three things: 1) a lack of understanding how social media tools work and can be good for business, 2) concerns about ensuring compliance with industry rules and regulations (especially for broker-dealers), and 3) concerns about how the firm can appropriately supervise your use of social media. Brokers must recognize that, for most firms, use of social media is still a very new concept and many firms have not developed any policies and procedures for its use, other than to just say no. Brokers should not begin using social media in violation of firm policies.  If they do, they may face the wrath of regulators (FINRA has announced that electronic communications and social media use are examination priorities for 2011).  Rather, the broker can develop a proposed plan for use of social media and then speak with his supervisors and compliance folks.  Find out what their concerns are, and address them.  Educate your principals and compliance folks on the benefits of your plan, and demonstrate how the plan will be executed and how the firm can supervise it.  Put in place safeguards that will let the firm pre-approve certain uses when needed, and provide for the archiving and retention of the media.  Address issues relating to review and approval of both static and interactive media in your plan (see FINRA Notice 10-06 http://www.finra.org/Industry/Regulation/Notices/2010/P120760 )  See if you can get started on a trial basis, if needed, to show the firm that the plan will work.  And finally, follow through on your plan, making sure that your compliance folks grant necessary approvals. Joel R. Beck The Beck Law Firm, LLC 2330 Scenic Highway...

Legal and Regulatory Considerations in Hiring Employees

Legal and Regulatory Considerations in Hiring Employees

Apr 5, 2011

A big step for a business owner is hiring the first employees.  Of course there are the financial and operational issues, but what legal and regulatory issues arise? Following is a brief discussion of several considerations: 1. Liability. When a business is operated by a single individual or perhaps a husband and wife team, they might not have formed a corporation, a limited liability company or another limited liability business entity, because of concerns about costs, record keeping, or a belief that any contract or tort liability the business incurred also would be directly attributable to that owner. However, when a business hires an employee, the negligent acts of that employee that injure, or damage the property of, others in the course of that employee’s employment activities are the responsibility of the business. If a limited liability business entity is not the employer, the injured party could sue the owners personally, seeking judgment liens against all of their personal assets. So while insurance is a good idea, so too is creating a limited liability business entity when an employee is hired. 2. Employment Laws.  Many laws become applicable when an employee is hired, and even if only one employee is hired, the employer must be aware of and comply with a variety of federal and state laws, including the Fair Labor Standards Act (requiring, among other things, overtime pay to “non-exempt” employees), Federal and State anti-discrimination and harassment laws, OSHA requirements of reports of injuries and maintenance of MSDS forms, requirements that an I-9 form (regarding authorization to work in the US) must be completed and the file kept on premises, and the employer must comply with laws concerning the use of polygraphs and protection of privacy rights. Federal and State tax laws also require payments of FICA (medicare and social security taxes) and withholdings of other taxes by an employer.  Georgia requires an employer to report to the State New Hire Reporting System all new employees, and compliance with its unemployment compensation laws and regulations. As more employees are hired, Georgia law requires workers compensation insurance (at three or more employees). As the number of employees reaches 11, additional OSHA reporting obligations arise,...

Choosing the Best Form of Business Entity

Choosing the Best Form of Business Entity

Mar 21, 2011

Gary Whitaker There are many different types of entities available to conduct your business.  While there are many factors that could influence your choice, four of the major reasons are liability protection, taxation, management flexibility and documentation requirements. The major forms available to business owners in the United States are as follows: 1. Sole Proprietorship 2. General Partnership 3. Limited Partnership 4. Limited Liability Company 5. C Corporation 6. S Corporation 7. Close Corporation 8.  Professional Corporation Each of these types of entities has its advantages and disadvantages. SOLE PROPRIETORSHIP. A sole proprietorship is a common form for one-person businesses. This means that the individual is running the business in his or her individual capacity.  There is no liability protection, and all of the debts or liabilities of the business are the individual’s personal debts and liabilities. Benefits are the low cost, with a business license perhaps being required, depending on local county or city regulations and the type and nature of the business being conducted, and a “doing business as” filing required with the clerk of county in which the business is located if the business is not being conducted in the name of the individual.  There is no need to create a business with the office of the Secretary of State.  Income or losses of the business are included in the individual’s income for federal and state tax purposes. GENERAL PARTNERSHIP.  A general partnership is essentially two or more individuals who are acting jointly, and has many of the benefits of a sole proprietorship, including no need to create a business with the office of the Secretary of State.  All that is needed to form a general partnership is two individuals agreeing to run a business and to share profits.  A general partnership can be created without any written partnership agreement being agreed upon and signed, although a complete agreement that specifies the partners’ respective rights and obligations is certainly advisable.  A major disadvantage of this form of business is that each partner is liable for the contract and tort obligations created by the other partner in his or her business activities.  For example, if a partner runs into and injures another...

Basic Considerations in Creating a Sales or Service Contract

Basic Considerations in Creating a Sales or Service Contract

Mar 7, 2011

One area in which a business lawyer can assist a small to mid-sized business, is the creation or review of the business’s contract with its customers.   If the contract currently being used consists of little more than a statement of the price and general statement about a warranty period, the business is seriously risking liability and foregoing protections most companies have in their contracts.   The first consideration is to specify exactly what is to be provided (including terms that deal with products that are sold by quantity where the quantity shipped might not be exactly the amount that is ordered), what the cost is, and how and when it is to be paid.  This must be clear, and the customer’s agreement to that, as well as the customer’s agreement to the other terms of the sale, must be obtained.   One important area is in the limitation of liability.  The customer will not be limited to merely seeking a repair or refund unless that is specified in the contract. Claims for lost profits, or the cost of obtaining a repair or replacement from an alternative supplier also may be pursued by the customer.  In addition, the exact scope of the warranty should be defined, so that a business is not sued for selling a product or service that meets industry standards, but failed to meet a customer’s particular needs.  There should be a time period for making claims, so that the customer does not make a claim years after a product or service is supplied, when determining the cause of the problem might be impossible. In addition, the customer should obtain prior approval before returning products the customer believes are defective.   Other important issues for inclusion include provisions permitting the business to recover attorneys’ fees and expenses or collection costs, in the event the customer fails to pay, as well as a legal interest charge for late payments.  Consideration also should be given to requiring disputes to be brought in a particular court, or jurisdiction, or perhaps submitted to arbitration.   In some types of contracts there are intellectual property issues; if the customer is receiving software, for example, there would...