Upload
erin-mcclarty
View
2.288
Download
0
Tags:
Embed Size (px)
DESCRIPTION
A presentation I did discussing the legal issues small businesses and nonprofits should be aware of when incorporating and operating.
Citation preview
THE LEGALITIESThe Legal Issues Your Small Business and Non-profit Should Be
Aware OfPresented by: Erin McClarty Esq.
Wednesday, September 14, 2011
WHEN LEGAL ISSUES CAN ARISE
Formation
General Operation
Advertising/ Transactions
Labor
Trademarks/Intellectual Property
Dissolution/ Winding Down
Wednesday, September 14, 2011
Sole Proprietorship
Not a legal entity; one person doing business
Unlimited liability for all debts
General Partnership
Group of two or more who agree to carry on all business and share in all profits/losses.
Limited Partnership
General partners make managerial decisions and share liability. Limited partners liability limited to their share.
CHOOSING A FOR-PROFIT STRUCTURE
Wednesday, September 14, 2011
CHOOSING A FOR-PROFIT STRUCTURE
Corporation
Limited Liability Company
Limited Liability Partnership
Wednesday, September 14, 2011
OTHER STRUCTURES CONSIDERED
• Franchise
• Distributorship- License to sell products
• Business format- Allow for business under a trademark
• Manufacturing- given the formula to make a product
• Joint Venture
• Would enter a joint venture agreement
• Subsidiaries
Wednesday, September 14, 2011
CHOOSING A NON-PROFIT STRUCTURE
Trusts
• Created by a settlor
• Very rigid in structure
Unincorporated Association
• 3 or more people come together for a common non-profit purpose
• Less formality and fewer reporting requirements than a corporation
Wednesday, September 14, 2011
CHOOSING A NON-PROFIT STRUCTURE
Limited Liability Company
Corporations
Wednesday, September 14, 2011
ADVERTISING: TELEPHONE SOLICITATIONS
Telephone Consumer Protection Act
Texas Law Enforcement Telephone Solicitation Act
Must file a registration statement and pay fee.
Wednesday, September 14, 2011
ADVERTISING: WEBSITES
Privacy Concerns
• Have a privacy policy in place
Internet Regulations
• Children’s Online Policy Protection (COPPA)
Jurisdictional Issues
• Post “Terms of Use” on your website
E-commerce
Wednesday, September 14, 2011
ADVERTISING: EMAIL
Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (CAN-SPAM)
Governs “commercial mail”
Wednesday, September 14, 2011
ADVERTISING: OTHER TEXAS LAWS
Criminal and civl offenses for fraud or misrepresentation
Example: Texas Deceptive Trade Practice Act
Wednesday, September 14, 2011
OPERATIONS
Insurance
Worker’s Compensation
General Liability
Licenses and Permits
Does your business require
• a certain license?
Wednesday, September 14, 2011
OPERATIONS CONTINUED....
Supply Chain Concerns
Getting agreements in place with manufacturers. Want to est. pricing, delivery, warranties, indemnities, termination and governing law.
Address products liability. Can affect everyone in the sales chain.
Federal Corrupt Practices Act (FCPA) Concerns
Huge concern when you have intermediaries or representatives abroad.
Respondeat Superior Concerns
Protect Intellectual Property
Wednesday, September 14, 2011
COMMERCIAL PROPERTY
Must protect against lawsuits for injury.
Landowners often try to disclaim responsibility for these.
Legal issues can arise with commercial leases
Will want to get assurances that the land is suitable for your purposes, address maintenance, rent increases, term and foreclosure.
Always be thinking about potential zoning or covenant issues
Wednesday, September 14, 2011
LABOR
Managing Employees
Create an employment agreement
Include a confidentiality agreement
Beware with Social Media Policies
Wednesday, September 14, 2011
EMPLOYEE V. INDEPENDENT CONTRACTOR
Classification is a hot-button issue
Avoid employee problems and many taxes using independent contractors.
Several Factors to determine who is an IC
Determination of Worker Status (IRS Form SS-8)
Texas workforce commission also has a test at http://www.twc.state.tx.us/news/efte/ics_contract_labor.html
IC’s make you more susceptible to IRS audits
Wednesday, September 14, 2011
LABOR LAWS
Fair Labor Standards Act (FLSA)
Department of Labor has a handbook for guidance: www.dol.gov/asp/programs/handbook/main.htm
Family Medical Leave Act (FMLA)
Texas Labor Code
Wednesday, September 14, 2011
NON-PROFIT ISSUES
Charitable Solicitation Laws
May require registration in each state you plan to solicit in
Fill out Uniform Statement Kit at www.multistatefiling.org
Losing tax-exemption status
Unrelated Business Income Activities
1. Trade or business; 2. Regularly carried on; 3. Not substantially related to furthering the exempt purpose.
IRS Publication 557 Tax-Exempt Status for Your Organization gives guidance
Wednesday, September 14, 2011
HOW CAN YOU PROTECT YOURSELF
Educate yourself on all the applicable laws
Take how-to books with a grain of salt
Get together your “team”
Bring in knowledgeable people. You get what you pay for.
Utilize development centers, groups and associations
Look for “Meet-ups” and Networking Groups
Attend continuing education
Wednesday, September 14, 2011
WHY DO I NEED AN ATTORNEY?
Guidance and Counsel
Sound-board
Can’t know every law
Draft or review contracts
Pre-emptive action, mitigation and judgement calls
Advocate and representative in case of business transactions
mediation, mergers, negotiationsWednesday, September 14, 2011
BUT I CAN’T AFFORD ONE…..
Be Creative
Some attorneys allow you to buy “credits”
Do package deals
Hire counsel on a contract basis
Wednesday, September 14, 2011
ATTORNEY RESOURCES
Houston Volunteer Lawyers Program
S.C.O.R.E
Houston Lawyers Referral Service
Texas Accountants and Lawyers for the Arts
Texas C-bar
Wednesday, September 14, 2011
CONTACT
Erin McClarty Esq.
www.notationsonnonprofit.com
Wednesday, September 14, 2011