Business

The Importance of the Employee Handbook with Respect to Anti-Discrimination and Anti-Harassment in California

July 29, 2016 | Jaclyn Ford

California law requires employers to take reasonable steps to prevent and address alleged discriminatory and harassing conduct, to provide a government-issued brochure on sexual harassment to all employees, and to conduct sexual harassment prevention trainings if the employer has 50 or more employees. As of April 1, 2016, the California Department of Fair Employment and Housing (DFEH) has enacted regulations that will require employers to develop written anti-discrimination and harassment policies with certain content requirements.

Under the new regulations, the anti-discrimination/harassment policy must be in writing, and must at a minimum:

List all of the protected categories under California’s Fair Employment and Housing Act, which currently include race, creed, color, national origin, age, ancestry, physical and/or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, and military and/or veteran status,

Important Contracts for Startups

July 22, 2016 | Mark Figueiredo

Contracts are an integral part of conducting business and the necessity for certain contracts can arise from the very start of your company. The following are only some examples of important contracts for startups in California.

Founders’ Agreement — If you are going into business with one or more people, having a comprehensive and clear founders’ agreement is imperative. This agreement can be likened to a premarital agreement: it foresees and addresses potential issues that may arise and sets guidelines for dealing with those issues. A solid and enforceable founders’ agreement can prevent a lot of legal conflict and costs down the road.

Nondisclosure Agreements — If you have the idea or formula for a unique product or process, you want to keep information confidential so others do not try to misappropriate your idea. However, it will be necessary to share information with co-founders, employees, investors, contract developers, and others involved in the project. In such cases, you may have others sign a nondisclosure agreement to ensure they will not disclose confidential information to other parties.

LLCs – Fiduciary Duties of Members and Managers in California

July 15, 2016 | Katya Mezek

A limited liability company (“LLC”) is one of the most favored forms of business entities because they combine the advantages of a corporation, such as limited liability and protection of their members from investor-level liability, with the advantages of a partnership, such as “pass-through tax treatment.” Additionally, LLCs are characterized by the informality of its organization and internal governance, set forth through an internal contract called the operating agreement. An LLC member can be an individual, a corporation, a partnership, another limited liability company or any other legal entity.

An LLC can be structured as a manager-managed or member-managed LLC. In a manager-managed LLC, the members appoint a manager or managers to run and manage the LLC while the members take on a more passive role. In a member-managed LLC, all the members share in managing the day-today operations of the LLC. The managers or managing members who have been charged with the responsibility of running the LLC are obliged to act in the best interest of the LLC. The duties connected to this obligation are known as fiduciary duties. The key fiduciary duties are the duty of loyalty and the duty of care. These duties are specifically defined by California law, as discussed in more detail below.

Requirements of a Fiduciary Duty

Dissolving Your LLC in California – Important Things to Consider

July 8, 2016 | Katya Mezek

At some point during the life of a limited liability company (LLC), the owners may decide that it is time to close the business. The process of closing a business is just as important as the process it took to create the LLC, because, among other things, the owner(s) need to provide notice to creditors and ensure that the LLC is beyond the reach of creditors. The formal process of closing your LLC is called “dissolution.” While there are many ways to dissolve an LLC, including involuntary dissolution, this article focuses on voluntary dissolution by the LLC’s member(s) and for those LLCs which were active in conducting business during its lifespan.

Dissolving the LLC

In order to voluntarily dissolve an LLC, the member(s) should first look to the company’s formational documents, which are the articles of organization and operating agreement. In the majority of cases, one of these two documents will contain procedures and/or rules for how to dissolve the company. In most cases, the procedure begins with a vote of the LLC members on a resolution to dissolve. It is important that any specific requirements regarding the voting of member(s) are followed, such as providing for when a meeting to vote should take place, whether any advance notice to the LLC’s members is required in preparation for the meeting, and what required percentage of members is needed to pass the vote.

Understand the New Overtime Rules

July 1, 2016 | Jaclyn Ford

If your business employs at least one person, you should be thoroughly familiar with both the California and federal wage and hour laws. These laws regulate many aspects of employment from minimum wage to guaranteed rest and meal breaks. One important part of compensation that is regulated by wage and hour laws is overtime payments for individuals who work more than 40 hours per week.

Overtime laws entitle certain employees to time-and-a-half payments for additional hours worked. However, not everyone is entitled to overtime and the laws that regulate overtime exemptions can be complex. One important rule under the Fair Labor Standards Act (FLSA) is that anyone who earns less than $455 per week for full-time work ($23,660 annually) is automatically entitled to earn overtime. If employees earn more, a closer examination into their job duties must be made. In addition, once an employee earns $100,000 annually, they are considered to be “highly compensated” and no longer have the right to overtime provided his or her job duties meet certain minimum requirements.

The Department of Labor updated the overtime rules with regard to the income threshold and the new rules will take effect on December 1, 2016. The new threshold for automatic entitlement to overtime will be $913 per week for full-time work ($47,476 annually) and the new highly compensated threshold will be increased to $134,004. It is estimated that over four million people will receive a new entitlement to overtime.

Restricted Stock vs. Stock Options: Deciding How to Compensate Your Employees

June 24, 2016 | Mark Figueiredo

Issuing equity in a company is a popular form of employee compensation. This trend is especially popular here in Silicon Valley, where startup companies often defer cash compensation to their employees in exchange for a share of future growth through the issuance of equity. If you own a non-public company, you may wish to compensate your employees partially by issuing them equity in the company. Equity aligns incentives between employers and employees while enabling employees to build up wealth over a longer term. Equity issuance can be done in different ways, including by issuing restricted stock grants or by issuing stock options. Each of these forms of compensation can have its own pros and cons and you want to make sure you carefully analyze the decision and decide which is best for your circumstances.

Restricted Stock

Restricted stock is a stock award that will not fully transfer to the employee until certain conditions have been met. These conditions can include a certain length of time working for your company, meeting certain performance or financial goals or milestones, and more. These restrictions can be helpful for owners to ensure that employees do not simply walk away from your venture and that they must wait for the award to vest before they receive the stock benefits. In addition, by making an 83(b) election with the IRS within a certain period of time after the restricted stock grant, employees can save significantly on the tax burden once the stock vests. If no election is made, however, employees may face hefty tax liability at the time of vesting depending on the value of the shares. Restricted stock is less risky and easier to manage in comparison to regular stock. However, restricted stock has less favorable tax treatment than options.

Avoiding Business Ownership Disputes

June 17, 2016 | Mark Figueiredo

Starting a business with a partner can be highly beneficial: collaborations offer many benefits and are particularly popular with startups and firms providing professional services. When you start a business with another person or people, the last thing you expect is to end up in a disagreement about business ownership. Unfortunately, these kinds of disputes arise on a regular basis and can have a significant impact on the success of your business as well as your personal bottom line.

Business disputes can arise in a variety of contexts – here are some of the most common situations:

A party may attempt to assert authority which he or she does not have

What is an Apostille? Using Documents in a Foreign Country

June 10, 2016 | Mark Figueiredo

It is not uncommon for businesses in today’s global economy to engage in international transactions. More often than not, these transactions require an exchange of business and/or legal documentation. Although these documents are signed and exchanged by those who have been engaged in business together, there are times when the documents must still be authenticated in order to be used in a foreign country from which the document originates.

The Hague Convention of 1961 established a certification to authenticate documents to be used in foreign countries. This certification is known as an apostille. The apostille is attached to the document that is being sent overseas and it certifies the authenticity of the signature of the documents; it does not actually certify the contents of that document. The apostille is required to be used by a designated verifying authority in a country party to the Hague Convention.

Apostille Requirements

Avoiding Personal Liability for Corporate Debts: Piercing the Corporate Veil

June 3, 2016 | Katya Mezek

A business will select a certain business entity at the time of formation for a variety of different reasons. One of the most important reasons businesses elect a certain type of business entity is to protect owners and investors from personal liability. Business entities such as corporations and limited liability companies (LLCs) remain attractive because they protect owners, investors, members, etc. from personal liability. On the other hand, entities such as a sole proprietorship or partnership leave owners open to personal liability for corporate debts.

Yet, while limited liability protections exist for corporations and limited liability companies, these protections are not impenetrable. Rather, personal liability may, in some circumstances, run through the company and attach to its owners and investors. This is called “piercing the corporate veil” and it is something of which all businesses, whether starting out or established, should be well aware.

How Can the Corporate Veil be Pierced?

Selling Your Business: Tips for Success

May 27, 2016 | Structure Law Group, LLP

As an innovator or entrepreneur, you may launch a business for a variety of reasons. At first, a primary reason is to develop a profitable product or technology you believe will provide a nice return. But, creating the next popular app or useable technology could lead to a life-changing acquisition of your business at a premium valuation. At the same time, if your business is not performing as you had hoped, selling may be the best option for you. These are only a few reasons why you may want to sell your business.

It is important that businesses considering a sale of their company obtain the guidance of legal counsel. A Silicon Valley business attorney will be able to work with owners to identify and avoid potential legal issues that may arise with the potential sale of the business. These pitfalls could include, for example, issues with due diligence, fiduciary duty and duty of care, voting requirements, corporate compliance, shareholder approval, intellectual property, and lien holder negotiation. After all, once a decision is made to sell the business, the goal is not only to get a good offer but to be able to actually get the deal done.

Owners considering a sale of their business should consider the following four tips: