Uncertainty and unrest have defined 2020. From COVID-19 and record-breaking unemployment to ideological, political, and societal conflicts, business owners have faced significant challenges to their survival and success. Regardless of their current political views or health and financial statuses, business leaders agree that they must navigate this time with care. The decisions that business owners make during difficult periods could have long-lasting effects on the business's future success. As a business owner, here are a few things to keep in mind as you navigate these unprecedented challenges.
As small business owners grapple with the economic realities of nationwide stay-home orders and social distancing mandates, legislatures have been updating laws and developing new programs to keep the economy afloat. The latest and most groundbreaking is the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2.2 trillion stimulus package aimed at supporting individuals, businesses, and governments now and beyond this pandemic. The federal government has earmarked $377 million to help small businesses avoid failure and encourage them to retain their workforces. Here are the most important things for business owners to know about the CARES Act:
In a matter of weeks, the COVID-19 pandemic has impacted the world and forced communities to reevaluate everything. Despite the unpredictability that has accompanied this global crisis, it is not too late to implement changes to protect you, your employees, and your business. Here are some tips and strategies to help you navigate these challenges and the ones to come.
Are you considering leasing office or retail space for your small business? The terms of your lease can have a huge impact on whether your business succeeds or fails. There are several important provisions that should be considered before you sign on the dotted line.
Leases of a certain duration (usually one to three years, depending upon the state) are generally required to be in writing and signed by the party against which they are being enforced. In reality, it is advisable for all commercial leases to be in writing, regardless of their duration. They should clearly spell out certain terms that are of crucial importance, including the following:
(1) The leased space. Your lease should state exactly what space you are renting, including common areas such as hallways, restrooms, stairs, and elevators. The square footage of the space and how it was measured should be specified.
Small businesses make a huge contribution to the U.S. economy. Nevertheless, starting a new business is risky. Lenders view loans to small businesses, particularly start-ups, as among the riskiest they make, particularly when there is little or no credit history or business revenue on which to base their decision. In an effort to lessen their risk, lenders frequently require small business owners to sign personal guarantees as a condition for giving the loan. A personal guarantee is a legal commitment by a business owner to repay a business debt if the business is unable to repay it. These guarantees put the personal assets of small business owners on the line—savings accounts, cars, homes, and retirement funds. However, there are several steps you can take to minimize your liability.
If you are starting a new business, it is important not to overlook federal, state, and local business license and permit requirements. Almost every business, even one that is home-based, is required to obtain some form of license or permit in order to operate legally. Failure to do so can lead to fines, and in some cases, the closure of your business.
Why Are They Necessary?
The government has two main purposes for requiring licenses and permits: keeping track of a business’s revenue for taxation purposes and safeguarding the public.
For example, in the context of taxation, a state sales tax permit allows the state to oversee the collection, reporting, and payment of sales taxes: A business that sells goods or services collects the sales tax on behalf of the state and is responsible for remitting it to the state.
Other licenses and permits are aimed at protecting the public, either physically or economically. For example, occupations that could impact a person’s health, such as doctors, dentists, hair stylists and barbers, generally require professional licenses establishing that these practitioners have a certain level of expertise in their field.
What Is Required?
The licenses or permits your business must obtain will vary based on the type of business, its location, and the applicable government rules. Although it is important to check with a business planning attorney to verify which licenses and permits are needed for your particular business, the following are among the most common.
The State Liquor Enforcement Division (LED) is looking for some basic things.
If you’re thinking of starting a business (or already have a business in the works), make sure that the name you use is not already taken. Original names are essential for three reasons: marketing power, clarity, and trademark infringement avoidance. For example, if you’ve decided to open a coffee shop, it’s fairly easy to determine that the name “Starbucks” is not an option. But, what about “Smith’s?” And what happens if the “Smith’s” trademark is an auto insurance company in your town?
What’s Really in a Name When it Comes to Business Trademarks?
Before attempting to trademark your business’s name, find out if the name is available on the U.S. Patent and Trademark Office’s website. TESS, the Trademark Electronic Search System database, will indicate whether someone else has already claimed the name or symbol you want to use.
Often, there’s generally a way to accommodate both companies – especially when it comes to businesses with similar names, but dissimilar products (the “Smith’s” example above); those whose geographical locations may not conflict; and those whose names are too generic (for example, “The Clothing Store”).
Domain Extensions as Trademarks
In today’s marketplace, many businesses have both a physical location and an online presence. The question then becomes whether to trademark the company name (for example, Amazon), the URL (www.amazon.com), or both. It’s generally recommended that companies with an internet presence not register their web extensions (such as .com, .net, etc.) with their name unless planning to register the mark both with and without the web extension. The reason is that other businesses registering the same name can do so by just adding a different (non-registered) extension and cause a great deal of confusion for customers.
A prime example is Craigslist. The multi-purposed classified ad site is technically a “.org” site, but those who searched for craiglist.com or craiglist.net were often led astray. The company now has trademarks for all, so typing in the latter extensions now brings you to the main .org site.
If you have questions about business trademarks, call our office and we’ll guide you through trademark protections so your business and your efforts are protected.
You and several friends start a new business and decide to operate it as a limited liability company (LLC). Now that you’ve completed the first step—choosing a business entity—it is now important to prepare an operating agreement. The operating agreement is a contract which governs the operations of the LLC and sets forth the arrangements made among the members, including their rights and responsibilities upon the withdrawal of a member. Although departure from the business may be the last thing on anyone’s mind, it is important to plan ahead. A non-competition, or non-compete, clause can help protect the company from harm inflicted if a former member decides to form a competing business.
What Is a Non-Competition Clause?
A non-compete clause protects business assets like goodwill, confidential information, and trade secrets by preventing the former member from using the knowledge gained while participating as a member of the LLC to compete against the LLC.
If the operating agreement contains a non-compete provision, a former member can be precluded from engaging in a similar type of business directly or indirectly in competition with the LLC. If the operating agreement does not contain such a clause, the former member is free to compete with the LLC.
In addition, the non-compete clause may prevent the member from soliciting the LLC’s clients or customers for business. Usually, such provisions take effect after the relationship has ended, although they sometimes may preclude members from competing with the LLC during their membership in the LLC.
Because non-competition provisions place restrictions on the former member’s ability to secure future employment, they will only be enforced if they are not unduly burdensome. Consequently, they must only restrict competition for a reasonable period of time and in a reasonable geographic area, Additionally, the scope of the services the former member may provide in a competing business must not be unduly restricted.
Members of LLCs often have intimate knowledge of the business, such as its trade secrets, confidential information, and customer lists. If members are permitted to compete with the business immediately after they withdraw, and in the same geographical location, the financial success of the original business could be jeopardized.
Although many LLCs are formed by small groups of friends or family members who get along well and trust each other in the beginning, you cannot ignore the possibility of a dispute arising in the future. Circumstances can change, and it is important to try to prevent disagreements from undermining the success of your business. Including a non-compete clause in your operating agreement will help ensure your business is protected against a preventable harm.
We Are Here to Help
If you are interested in protecting your new or existing LLC, we can help you draft or amend your operating agreement to include key provisions such as a non-compete clause, as well as others specifically tailored to meet your business’s needs. Please give us a call today to set up a consultation.
The LLC is a popular way to structure a business because it provides personal liability protection to the members-- like a corporation does to its shareholders--but without as many administrative formalities. But if you’re an LLC member, don’t let this lull you into complacency.
As a business owner, you’re responsible for the proper governance of the LLC. If a conflict arises—either among LLC members or between the LLC and a third party—the governing documents and methods through which the owners govern the LLC may help prevent a conflict from escalating into litigation. Even if a dispute reaches court and you are unable to control the outcome, you can ensure that the LLC presents clear evidence of its intent and purpose by practicing good governance.
Good LLC governance hinges on four key practices:
-All distributions and any advancements to members should be documented as such.
-Members who are also employees of the LLC should receive a paycheck from the LLC payroll account like any other employee would.
Practicing good governance of the LLC helps make the intent and purpose of the LLC clear to its members and to outside parties. And, if a conflict goes to court, good governance provides the judge or jury with a clear picture of what the members intended for the LLC.
We work closely with business owners to create and implement forward-thinking business-planning strategies. We anticipate what can go wrong and counsel our clients on how to best maintain their businesses so that they are well prepared to weather any storm.