I own a business, so I might as well have a target on my back that says, “SUE ME.”
It is seriously ridiculous. The lawyer part of me says, “why does anyone own a business?” The entrepreneur part of me says, “screw those guys, they aren’t taking me down!”
But I digress. I was sued. Why? Because I was driving a car when someone broadsided me in an intersection. As the insurance company dawdled on settlement, the woman who hit me learned that I owned a business (through the magic of Google, I presume). She thought she could threaten me and my business insurances and assets.
You see, if you or your employees are driving within the scope of business or employment, then the business can be liable if you cause an accident.
I wasn’t driving anywhere on business nor was I at fault, but those details didn’t seem to matter to her. Fortunately, I own a law firm, so her lawsuit did not last very long.
Still, it made me think about the employer liability rules for employees. Do you have a company car? Or do your employees sometimes go on errands, drive to see clients or take pit stops from lunch or work? Do they go to more than one office?
If so, you have some risk as a business and business owner if they get in an accident. (Uber’s strategy to avoid this is to classify everyone as independent contractors. It won’t work in the end and is not recommended. Uber has a lot of money to spare for legal fees so that they can delay and game the system; but most businesses don’t and this strategy will make things worse for them.)
Here’s a little video outlining some of the things you should consider when it comes to employees driving. Get insurance accordingly. And talk to your lawyer about ways to keep you lawsuit-free.
Say your employee got into a car accident driving home from work. Can you get sued or be held liable for the accident?
Like many questions in law, the answer depends on the facts.
The answer is “yes” if the employee was driving a company vehicle.
The answer is “no” if the employee was driving their own vehicle as part of their daily commute.
The answer is complicated when the employee sometimes uses his or her car for work during business hours.
Or if the employee is not commuting at the time of the accident.
For example, the employee is driving home from a different office or job site than usual.
Or from a side errand run for the employer.
In these scenarios, the employer may get sued, but may win at trial anyway.
How useful is a condom that is never taken out of its box and wrapper?
If you were the kind of person with enough forethought to buy a condom, you would probably want it to protect you from several things.
But it would not be very useful to go through the trouble of buying the condom and not taking the additional necessary steps to get its benefit.
Lawyers call certain legal services “prophylactic.” That’s because their purpose is to prevent problems and unwanted consequences.
Completing your necessary corporate compliance and regulatory paperwork is prophylactic. Buying an LLC and not taking it out of the box will not give you the desired results.
Say you filed an LLC using Legal Zoom. Are you personally protected from lawsuits?
Maybe a few, but mostly, no.
Because they don’t give legal advice, budget legal sites don’t tell you there are numerous things to do after you file the LLC to legitimately and legally set up your business.
After years of starting businesses, we have developed a list that is several pages long made up of single spaced bullet points.
If you don’t do all the things on this list for your LLC, then the “corporate veil” can be pierced.
But more likely, if you don’t do all of the things you are supposed to do to start up your business legally, you will violate one of several laws that carry personal liability even if you are incorporated.
When I first started practicing law, I was asked by a fitness-conscious employer whether he could require his employees to quit smoking.
After some research into the Americans with Disabilities Act, I concluded, “no.” Basically, I concluded that smoking interferes with a major life activity — namely, breathing.
The senior lawyers whom I worked with disagreed.
They had some good points at least politically. Being a smoker is not a sympathetic status in California.
But a decade has passed and the ADA has broadened. And I’ve become more experienced as an employment lawyer, so I have thoughts on other laws that inform this situation.
So this video has my thoughts on whether you can make your employees be non-smoking.
Sometimes employers ask, “Can I require my employees to be nonsmokers?” Some employment lawyers will say it’s acceptable because it’s not illegal to discriminate against smokers.
But you could be risking a disability discrimination claim because smoking is a physical addiction that may impair a major life activity, such as in situations when the person develops lung or throat disease.
In addition, employers do not have the right to inquire about an employee’s health and medical history, including at a hiring interview.
In requiring your employees to be nonsmokers, you may run the risk of violating these laws.
Employers do have the right to designate the workplace as smoke free.
However, employers do not have the right to dictate how employees spend their breaks, such as unpaid lunch breaks, when employees are free to leave the premises.
If you are worried about your employees’ health, try offering access to a smoking cessation program.
If you offer employee health insurance, many such programs are offered as part of the insurance plans and can be promoted by human resources.
I had a law partner for 3 months. She and I were not friends before we partnered, actually, but we became fast friends once we decided to do business together. About a month later, she joined my law firm.
It was temporary, though. Within a couple months, we disagreed on how to build and manage the business.
We parted ways shortly after that. It seemed amicable at first… until it came to the money. Then it got a little ugly (although we worked it out pretty quickly).
Now she won’t speak to me. Needless to say, we are not friends now.
Even though I did not know her long, I felt hurt and betrayed by several of her actions. I felt also some loss and grief.
I can only imagine how much worse this would have been had we been friends for a while beforehand. I do not think that a friendship beforehand would have prevented the problems — we simply clashed over business strategy and who was responsible for making certain decisions.
So here’s the lesson: if you want to keep your friend after going into business together, you better have all the boundaries and duties worked out and in an agreement.
I’m going into business with my best friend. Do we really have to sign a big, long, complicated, legal partnership agreement? YES.
Relationships need boundaries — especially ones that involve money.
You may be longtime friends but business is not the same as friendship.
The fastest way to kill your friendship is by going into a business partnership without clear boundaries and responsibilities.
No matter how close you are, you will have different ideas and different expectations from one another and the business.
Contracts are not about trust. You must trust someone to do business with them, whether you have a contract or not. Contracts are about defining expectations so that no one is disappointed.
They are essential in outlining the rights and responsibilities of every person or company with whom you do any business. A contract will make your business and relationships smoother.
Do you know where your legal land mines are? To find out, call us for a Business Risk Review at 800-449-8992 or email us at [email protected].
A few years ago, I had a problem with my office. I occupied a two story unit in a mid-rise downtown.
The problem was that I was on the bottom floor. And at night, we were regularly burglarized.
With the burglaries came broken and vandalized windows, broken doors, lost property, and damage to the store front.
When I first leased the office, the landlord agreed to put up gates around the property and provide security. This was an unusual thing to contract for — and lucky. When the landlord failed to keep its promise, it had to repair the damage.
And, after a year, when the problems continued, I was able to break the lease and move out without any hard feelings or damages.
But what about structural problems like mold, plumbing, a leaky roof or the electricity? Are landlords required to keep up the building in good working order? Watch this video to find out.
My office building isn’t up to code. Can I make the landlord fix it?
Maybe. It depends on what the lease says.
When you rent a house or an apartment for residential use, most states have laws that protect you from slumlords forcing you to live in dangerous conditions.
But that is not the case with commercial leases.
Commercial leases lack protections most of us have come to expect from our experience with residential leases. A commercial landlord doesn’t have to provide you with a building that is up to code unless that is what you negotiated for in your lease.
A leaky roof, bad wiring or mold may be your problem and not the landlord’s. Many commercial leases require the tenant to be responsible for building maintenance, property taxes and insurance.
When you rent a space for your business, you need to be aware of the real costs of what you are signing up for.
Do you know what your legal documents say? Sign up for a Business Risk Review with Bellatrix PC to find out. For a consultation call 800-449-8992 or email us at [email protected]
No one ever begins a professional relationship anticipating that relationship will later turn sour. Unfortunately, contentious business disputes can still arise for any number of reasons. When commercial litigation arises from alleged breach of contract, unfair competition, improper use or disclosure of trade secrets, or other violations, it is critical to protect your company’s legal and financial interests by working with an experienced team of business defense attorneys.
At Bellatrix PC, we understand the economic impact commercial litigation can have on a business, and our legal team will sit down with you to discuss your goals and concerns in detail with a cost-benefit analysis. We are dedicated to finding practical and cost-effective solutions to even the most complex of conflicts, including mediation and arbitration where appropriate, and have obtained favorable outcomes for numerous clients across a wide spectrum of industries.
We defend businesses against claims involving, but not limited to, the following matters:
To arrange for a private legal consultation with our experienced commercial litigation attorneys, call the law offices of Bellatrix PC at (800) 449-8992. Don’t wait for your dispute to escalate – call today to start discussing how Bellatrix PC can assist.
What Are the Elements of Breach of Contract?
Most business disputes arise because two or more parties disagree about their rights and responsibilities under a contract or agreement, such as a stock purchase agreement or a franchise agreement. However, not all contractual disputes provide a strong basis for claiming breach of contract. In order for a breach of contract claim to be successful, all of the following elements must be in place:
A formal contract must have existed between the parties. Be advised this can extend to oral contracts and verbal agreements.
The plaintiff company must have either fulfilled or been excused from its contractual obligations.
The defendant company must have either:
Failed to fulfill its contractual obligations.
Engaged in conduct which was prohibited by the contract.
The plaintiff company must have been harmed by the defendant company’s failure to satisfy its end of the contract.
The burden of proof falls upon the plaintiff, who must be able to demonstrate that the aforementioned criteria have been satisfied. Moreover, the plaintiff must prove the defendant’s breach was material, or significant enough to actually result in damages to the plaintiff. Immaterial or non-material breach generally does not excuse the plaintiff from fulfilling its end of the contractual agreement.
Resolving Investor and Partnership Disputes: Mediation or Commercial Litigation?
Sometimes disputes arise within a single entity, such as a dispute between partners or investors. Internal disputes can be just as if not more debilitating than external disputes, impairing efficiency, demoralizing personnel, and bringing the affected company to a stand-still for as long as the disagreement persists. It is imperative to resolve internal disputes as rapidly as possible so that the business can continue to flourish.
In these types of cases, it may be appropriate to seek conflict resolution through mediation before resorting to the more aggressive measure of litigation. While litigation sometimes proves necessary to achieve a favorable outcome, mediation carries several advantages of its own. For example:
Litigation pits opposing parties against one another, which can create feelings of bitterness and mistrust. Mediation offers a more cooperative and mutually-determined means of conflict resolution, which is ideal for preserving professional relationships. Mediation can help keep a business together, instead of resulting in a schism between partners.
Mediation is simpler and less time-consuming than litigation. The sooner you can resolve your dispute, the sooner you can resume normal operations.
Protracted litigation can deplete a company’s assets, which ultimately serves no one. In addition to protecting your professional relationships, mediation can also help to protect your company’s bottom line.
If your company is trapped in gridlock, or if your business has been served with a summons, try not to panic. While it’s perfectly normal to feel anxiety, anger, and frustration, it is critical that you assess and approach the situation calmly. It is of the utmost importance that you resist the temptation to lash out, whether in person or on social media, as any statements you make could potentially have a negative impact on the outcome of the case.
The better way to respond to an internal dispute or a legal claim against your company is to immediately contact an attorney for assistance. The business defense lawyers of Bellatrix PC have extensive experience helping partnerships, limited liability companies, and corporations efficiently resolve their internal and external disputes.
To schedule a private legal consultation, call our law offices right away at (800) 449-8992. Let’s start discussing how our team can help yours.
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Alicia I. Dearn is the founder of Bellatrix PC, a woman-owned law firm with offices in Missouri and California. Bellatrix PC handles lawsuits and business transactions. We advise in business, employment, real estate, intellectual property, civil litigation, and election law.
The articles published by Bellatrix PC are for informational purposes only and do not constitute legal advice. If you have a legal issue, please get competent advice from a licensed attorney in your jurisdiction. Use of Bellatrix PC's site is subject to our Attorney Advertising Disclaimers.