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Attorney for Internet-Based Business

The beauty of the Internet is that it creates online experiences that connect people worldwide to solutions or products that your company offers. And an Internet-based business can get off the ground without the big budget and deep pockets needed to launch a brick and mortar storefront. Digital storefronts are fast and nimble, and you can launch them relatively quickly without a huge investment in infrastructure for business operations.

An important partner for your Internet-based business is an experienced and competent business attorney to handle the legal affairs of your company or provide advice as it launches, grows, and expands to new products, services, markets, or business acquisitions.

Below are some best practices surrounding the topic of what new Internet-based businesses should look for when hiring a lawyer:

Look for an attorney you can trust. A competent, responsive, and experienced attorney in the area of Internet-based business is a great place to start. People skills, such as trust, congeniality, and relatability, are important and often overlooked considerations.
Don’t wait for a problem to hire a lawyer. Just because start-up costs for an Internet-based business are low relative to bricks and mortar launches does not mean that your start-up does not need a lawyer. Lawyers are invaluable for any transactions involving the government, interactions with customers, suppliers, users, employees, and the public. Specific tasks that lawyers help start-ups accomplish include:
Incorporation and forming a business entity
Hiring employees
Negotiating contracts with customers and suppliers, including establishing terms of service for websites and license agreements for software
Raising capital
Obtaining copyrights, patents, and trademarks

What if your legal budget is small, which priorities should you focus on?

There are certain legal tasks that must be addressed early in the development of your Internet-based business. Proper business formation, including selecting an LLC or corporation to protect you from business liability, should happen before your launch. Establishing ownership and equity rights of the company when there are multiple founders, along with their corresponding responsibilities, are the second most important tasks to resolve, early in the life of your startup.

Sort out your taxes, and determine which ones need to be paid concurrently with the posting of your income, such as sales and use taxes, as well as understanding the tax consequences of business forms. Lastly, Internet-based businesses are intellectual property. Make sure that your idea, and any software developed to run your business is legally protected and owned by the company, especially if you use independent contractors to develop software or apps.

Experience Handling Business Formations

If you are an aspiring business owner or entrepreneur seeking an attorney for starting and building an Internet-based business, we can help you turn your ideas into actions. Our Fremont business attorneys can partner with you to build a lasting relationship that is mutually beneficial. Contact us today for an initial legal consultation in Fremont, CA as well as Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, and Santa Clara. We look forward to putting our legal experience to work for you.

attorney for Internet-based businesses, business attorney, Internet lawyer

6 Ways to Prevent Wrongful Termination Claims

Sooner or later, every business will have to deal with an employee claiming that they were wrongfully terminated from their job. The reality is that employers usually terminate employees for performance or due to downsizing. Whenever you must make the business decision to terminate an employee, you should be aware that the employee may file a claim or attempt to sue you.

Your company’s termination process, and how it handles employees during the termination process, very often has a direct impact on whether the employee decides to file a wrongful termination claim against your company post termination. Even when you have a clear termination policy and clearly communicate it to employees as they join the company, and follow it as the employee exits the company, a lawsuit may follow.

Here are some best practices to help you avoid wrongful termination litigation

Define work performance objectives.

If you make the decision to terminate an employee, it should not be a great surprise for the employee. Document the employee counseling process – from warning, to reprimand, and to suspension. Communicate the progressive disciplinary measures with expectations for improvement to the employee and document this in his or her employee file. Thus, having a system to identify performance objectives, and comparing an employee’s individual performance against those objectives, and then communicating with the employee whether they meet or don’t meet those criteria, makes the actual termination, for performance reasons, simpler and less shocking to the employee.

Terminate with compassion.

Even if an employee expects to be terminated from employment because of performance failures, they may still be shocked when terminated and react poorly. A termination from employment is a stressful event. Wherever possible use compassion and empathy to deliver the news while remaining firm that despite everyone’s best efforts, a separation from employment may lead the employee to find a better position elsewhere.

Consider liability insurance.

Because employee lawsuits against employers for wrongful termination are common, an employer should consider liability insurance, to help pay for legal fees and any potential claim for damages. Make sure you understand the available insurance options – including what is covered, whether you are permitted to select your own attorney, and whether the claims are paid per claim or per claimant.

Comply with all state and federal employment laws, when applicable.

Most employers do not know all the state and federal employment laws applicable to their businesses. There are several Supreme Court cases and laws implemented during the year. It is best for business owners to see an Employment Law attorney annually to review their policies and procedures (see below Item 5) and to know the laws applicable to their businesses.

Make sure your company follows all the rules associated with employment promulgated by the federal Department of Labor and the State of California’s Labor and Workforce Development Agency. Posting requirements, payment of severance wages, and responding to unemployment insurance inquiries are very important.

Also, before terminating an employee, consulting with an attorney would be best practice. Your Business Attorney will review documentation, then help clients through the termination process to minimize claims.

Employment handbooks.

Writing down your employment policies and procedures as well as distributing copies of the company’s employment policies and procedures to employees is the foundation of providing a defense to a claim for wrongful termination. Employees should be provided with an employment handbook at the start of their employment and required to sign a receipt indicating that they received the handbook and accept the employment policies contained in the employment handbook.

Train your human resources team.

Your human resources personnel should be up to date with all the labor and employment laws in California or wherever else your company maintains employees. Don’t underestimate the power of developing soft skills, like using effective and efficient communications during the onboarding and termination processes.

Develop a termination plan and related employment policies

Avoiding wrongful termination suits and defending against them if they arise are just two realities of employer-employee relationships today. Assure that your company is following all applicable state and federal laws. If you own a small business and seek assistance preparing an employment handbook and related employment policies and procedures, contact Aria Law firm, a Fremont business lawyer for an initial consultation. Counseling clients in Fremont, CA near Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, Santa Clara, We look forward to putting our legal experience to work for you.

employee termination, employment handbooks, wrongful termination claims

Why Use a Fictitious Business Name?

Choosing a unique business name is one of the most important decisions a business owner makes when establishing a new enterprise. Your business name is the foundation of your brand. It provides an identifying mark that tells your customers who you are and what type of product or service you offer. A poorly chosen business name may bring negative attention from the marketplace and has the power to kill your venture before it properly takes off.

When a business would like to operate with a name that is different than the name used to form the business, then a fictitious name is required.

A fictitious name is an excellent way of setting up a boundary between you and your business venture. Fictitious business or trade names are known as a “DBA,” which means “doing business as”. In addition, you may manage many “DBA’s” under the same original legal entity for different businesses you may manage.

Details about Setting up a California DBA

A DBA must be filed under a unique name and your selection should be researched in the local county clerk’s office or recorder’s office
Certain words cannot be part of your DBA, such as “incorporated”, “LLC”, “corporation” and others
A sole proprietor may not need a DBA if they intend to use their surname in the business name
DBA statements must be published in a local newspaper within 30 days of filing for your DBA

Advantages of Operating Under a DBA

Low up-front costs. A DBA requires low upfront costs. You can register a trade name with the Division of Corporations and your business can open its doors for a nominal fee with few compliance requirements (besides business entity and state registration, as required).
Quick market entry. A DBA allows companies to rapidly maximize business potential by locking down a name and branding without the fear of another market entrant claiming it.

Where to Get Help

If you want to operate your company under a fictitious business name you must register with the appropriate county and state authorities. A California business lawyer can help you file and register a DBA or trade name. It is important that you understand what liability protection is available to you when establishing a DBA. To receive personal protection of your assets, your company will need to file and register a corporation.

If you are a business owner in the East Bay Area including Fremont, CA near Newark, Hayward, East Bay Milpitas, Union City, San Leandro, Gilroy, San Jose or Santa Clara, seeking legal guidance on how to establish a trade or fictitious names, look no further than a California business lawyer who can provide legal advice and counsel.

business attorney, california dba, dba, fictitious business name

Business Websites Need to be ADA Accessible

A web presence is necessary in today’s business world for companies large and small. In this article, we not a recent federal decision in the Second Circuit is a reminder that restaurants, and other businesses that may interface with the public, have additional responsibilities under the places of public accommodation provisions of the American with Disabilities Act (ADA).

In this New York case, a blind woman, Cheryl Thurston, who relies on a screen reader to interact with websites was unable to read the menu on a restaurant’s website using her screen reader. She was unable to do so because the restaurant’s website was not designed to permit access using a screen reader. Ms. Thurston sued the restaurant for violations of Title III of the Civil Rights Act of 1964 (Title III) and the ADA.

United States federal law requires public accommodations to be accessible to all people, including the blind, and prohibits discrimination on the basis of “race, color, religion, or national origin.” The definition of public accommodation within the Title III of the Civil Rights Act of 1964 includes “any inn, hotel, motel, or other establishment which provides lodging to transient guests.” The other establishment provision referenced here includes restaurants.

The trial court granted summary judgment in favor of the woman, finding that the restaurant’s website fell within the category of “services …privileges, advantages, or accommodations of” a restaurant, which is a place of public accommodation under the ADA. In short Ms. Thurston proved that the restaurant’s website was inaccessible to blind users. The court issued an injunction mandating the restaurant complies with the current version of the Web Content Accessibility Guidelines (WCAG) published by the World Wide Web Consortium, a non-governmental international agency that sets the standards for the worldwide web.

The restaurant appealed the decision. The court of appeals affirmed the lower court’s decision holding that the trial court properly found that Title III of the ADA applied to the restaurant’s website. However, like the trial court, the court of appeals declined to declare that the restaurant was in violation of the ADA for not previously having implemented the standard. The restaurant is required to comply with WCAG 2.0 guidelines to make its website accessible to disabled people.

Why the Thurston Decision Matters

The decision in the Thurston case will have far reaching effects on many businesses, not just restaurants. In the past, to maintain a lawsuit alleging a violation of the ADA, a business patron would have needed to physically go to the business and be able to describe in the complaint what he or she “saw” that made the business non-compliant with the ADA. Now, all a business patron needs to do is try to engage with your business’ website.

Key Takeaways for Your Business’ Website Regarding ADA Accessibility

Businesses with websites should immediately investigate whether their websites are ADA compliant. Check with your website designer, webmaster, or advertising agency for guidance on how to comply with the WCAG guidelines to make your website ADA compliant.

Unfortunately, prior to implementing this change to your website, your business may get hit with a lawsuit or receive a threatening letter from an attorney about a lawsuit. Small businesses often wind up paying $5,000 or more to make the claim go away, which could increase your compliance costs substantially.

If you own a business in the East Bay Area including Fremont, CA near Newark, Hayward, Milpitas, Union City, San Leandro, Gilroy, San Jose or Santa Clara and you are seeking legal guidance on how to make your website ADA compliant or need counsel to represent your business threatened with a lawsuit for ADA non-compliance, get legal advice from a California business lawyer today.

ada accessible, California business attorney, web content accessibility guidelines, website design

New Wildfire Smoke Employment Requirements for California Businesses

On July 29, 2019 California’s Occupational Safety and Health Standards Board issued emergency regulations to protect outdoor workers from the harmful effects of wildfire smoke. The emergency regulations are in response to the wildfires that have plagued the state in the last several years. Employers are now required to monitor levels of smoke at workplaces or worksites and take protective action in response to changed conditions that put worker safety in jeopardy. The new emergency regulations are effective through January 28, 2020, with two potential 90-day extensions, until the permanent rule is effective sometime in 2020.

Affected Employers

For the most part, workplaces at which the air quality index reaches a certain level are required to comply with these emergency regulations. Employers must monitor air quality, and when it reaches or is expected to reach a dangerous level, reduce their employee’s exposure to smoke. Affected industries include agriculture and construction; occupations like delivery, maintenance, and landscaping workers; and even retail locations, like restaurants and banks, where outside doors are opened throughout the day by patrons. There are exempt employees, such as firefighters fighting a wildfire and workers inside buildings or vehicles with mechanical ventilation, for example.

Communication and Training Requirements

Employers are required to update, communicate, and train employees about wildfire smoke and these health and safety regulations. Employers should consult with an employment lawyer to update workplace policies and employment handbooks to reflect these new regulations.

Next Steps

California businesses must comply with these new health and safety regulations. The first step, however, is to investigate if your business is required to comply with these rules. To learn if your business is exempt from the new regulations, contact an employment law attorney. Secondly, employers will need to create policies and procedures to satisfy the planning, education, and training components of the regulations.

Wildfires are disruptive to employers and employees alike. Like other natural disasters, you must anticipate your wildfire response to maximize employee safety while minimizing disruption or intervention into the work of your organization.

Employers should meet with an employment lawyer at least once a year regarding new laws or changes to regulations that might impact their business. Employment handbooks should be reviewed annually, and updated at a minimum every three years. It is important to keep current and comply with federal, state, and local labor and employment laws to protect your company and employees. If you are a business in Fremont, Newark, Hayward, East Bay, Milpitas, Union City, San Leandro, Gilroy, San Jose, or Santa Clara, California, consult legal counsel today to learn how to bring your business in compliance with the new emergency regulations to protect employees from wildfire smoke.

california air quality, employee training, employer safety regulations, wildfire smoke employment law

Why Might a Business Incorporate in Delaware Instead of California?

Classified Board of Directors

Many of the largest public companies in the world are incorporated in Delaware. California business owners ask me whether they should incorporate in Delaware when choosing a state of incorporation for a business about to go public. This post will examine some of the key differences between incorporation and corporate governance laws in California and Delaware.

Under Delaware law, corporations are permitted to have a classified board of directors, with each class having a term of longer than one year. Whereas, a non-public California corporation requires annual election of its board of directors.

Cumulative Voting for Directors

Delaware law permits cumulative voting for directors, so long as this provision is included in the company’s certificate of incorporation and/or its bylaws. California law is more expansive with respect to cumulative voting. By default, cumulative voting is available to shareholder elections of directors and it need not be specified in the articles of incorporation or bylaws. Cumulative voting is considered a statutory right for shareholders of non-publicly traded corporations, unless specifically excluded in the company’s articles of incorporation and/or its bylaws.

The Right of Stockholders to Call Special Meetings of Stockholders

Stockholders are only permitted to call special meetings if the company’s certificate of incorporation or bylaws authorizes it under Delaware law. In California, on the other hand, not only may a special meeting of shareholders be called by the holders of 10% or more of the voting stock of the corporation, but this right may not be waived by the shareholders in the company’s certificate of incorporation or bylaws.

Insulation of Directors

California permits unlimited monetary liability for directors upon a finding of breach of fiduciary duty. Delaware law provides a complete shield to directors from monetary liability for breach of fiduciary duty except in circumstances in which a stockholder can demonstrate a breach of the duty of loyalty, a failure to act in good faith, intentional misconduct, or a knowing violation of law, among other violations.

Predictability Surrounding Corporate Outcomes

In Delaware, both the legislature and the courts work in concert to act quickly and effectively to meet changing business needs. Corporation law in Delaware is one of the most extensive and well-defined bodies of corporate law in the United States. The Delaware Court of Chancery is renowned for its sole focus on business and corporate law, no backlog, and a knowledgeable bench in resolving complex corporate issues.

If you are starting a business in California, or own an existing business in the East Bay Area including Fremont, Newark, Hayward, East Bay Milpitas, Union City, San Leandro, Gilroy, San Jose, or Santa Clara and you are seeking to explore incorporating in California or Delaware, you will need to ensure that the right steps are taken for incorporation. Seek legal advice and counsel from a knowledgeable California business lawyer today, call us at 510-794-9290.

board of directors, business entity, business incorporation, startups, stockholders

Navigating California’s Work Breaks and Overtime Laws

California’s work breaks and overtime laws regularly confuse companies that do business in California. Understanding your obligations to provide rest and meal periods to employees is critical to the operation of any size business. A mistake, however innocent or inadvertent, results in costly penalties at rates much higher than any wages that may be due. The crux of the problem involves understanding which employees must be relieved of all their duties prior to a work break and what that entails, and which employees are entitled to overtime compensation for working in excess of 40 hours in a work week.

When companies encounter these issues they are immediately blindsided by numerous laws, case law, and regulations in the area of labor and employment law. If your business has inadvertently misclassified a worker as an independent contractor instead of an employee or an hourly worker as a salary worker, you could find yourself owing these employees hundreds of hours of unpaid wages.

Rest and Meal Breaks

California law requires employers to provide a paid 10-minute rest break to it employees, relieving them of all their work-related duties, when they work for more than 3 1/2 hours. This break should be as far as practical in the middle of a worker’s shift, not at the beginning or end of the work period. The assignment of the slightest task during an employee rest period is not permitted. The break itself must be paid and the employer is not required to record the rest period.

The same is true for meal breaks — no employer may interrupt a worker’s meal period by requiring them to perform a task. This 30-minute meal period every five hours does not have to be paid, should fall in the middle of the worker’s shift, and must be recorded.

In Augustus v. ABM Security Services, Inc., the California Supreme Court issued a ruling holding an employer responsible to pay wages to security guards when they were required keep their pagers and radio phones on during rest and meal breaks. The court awarded the employees close to $90 million in statutory damages, interest, and penalties.

Overtime Laws

California’s overtime laws mandate that any hourly worker who works more than eight hours a day or more than 40 hours in a work week receives overtime compensation for the extra hours. That means that the employee shall not be employed more than eight hours in any workday or more than 40 hours in any work week unless he or she receives one and one-half times his or her regular rate of pay for all hours worked over the threshold.

If you are a business in the East Bay Area including Fremont, Newark, Hayward, Milpitas, Union City, San Leandro, Gilroy, San Jose or Santa Clara looking for guidance on overtime and rest and meal break laws and regulations, seek legal advice and counsel from a California business lawyer today.

California labor laws, meal breaks, overtime laws, work breaks

Three Things You Must Know When Starting a Home Health Agency

Home health agencies have revolutionized elder care options, permitting many older adults to live in their own homes longer than before. These agencies are responsible for placing health care professionals – registered nurses, nursing assistants, physical therapists, or home care aides – in the patient’s home to provide primary care, medical treatment, and assist with day-to-day living activities so that the patient may remain in his or her home.

If you are interested in starting your own health care agency, you will need to master the following three topics to successfully grow your business and meet market demands:

Regulations that apply to home health agencies
The importance of providing employee training, and
The labor laws that apply to the home health care industry.

Know the Regulations That Apply to Home Health Agencies

The federal government and the state of California heavily regulate the home health agency field. There are different laws that apply when hiring a home health care worker directly than when hiring a health care worker through an agency. Additionally, you must have a license to operate a home health agency before you start operating your business.

Copying information from another home health agency to create your compliance documents may not be sufficient. The information may not apply in California, may be outdated, or may never have been correct. It is important to consult with a business lawyer who is knowledgeable about the legal needs of a home health agency and can help you comply with all legal requirements, including record keeping, on-going legal requirements, and compliance with HIPAA.

One of the costliest problems is that if the home health agency collects Medicare, their rules regarding what protocol must be followed and required documentation must be kept in compliance. Medicare performs audits routinely and then charges back the agency many thousands of dollars if records are not in compliance.

Develop and Train Your Team of Employees

It is important for your employees to be fully trained to perform their tasks and to understand what documents need completing and maintaining when providing care for an individual in his or her home. You must provide training that demonstrates how to properly complete these documents and why their inclusion in the patient’s care plan is necessary. Other topics that you should cover in training include HIPAA compliance and labor law compliance.

Know Applicable Labor Laws

Owners of home health agencies must know the labor laws that apply to their workforce. Your payroll department must understand when to pay overtime, the rest and meal break laws, the difference between independent contractors and employees, and what labor records to keep.

If you are an entrepreneur planning to start a home health agency or already running one in the East Bay Area including the communities of Fremont, Hayward, Union City, Milpitas, or Newark, California, seek legal advice and counsel of a business lawyer today.

Business Startup, HIPAA, home health agency, labor laws

The Business Activities Without Corporate Protection

Back to the Basics: Understanding Limits on Corporate Protection

Protecting personal assets from liability for business activities that produce a loss, debt, or liability is one of the chief drivers motivating business owners to establish a corporation, limited liability company, or limited partnership when they set-up their new business. For the most part, in California, once you form one of these entities, your personal assets (such as your home, automobile, and savings) are protected from the reach of creditors of losses, debts, or liabilities, incurred by the business.

There is no corporate protection, however, for debts and liabilities of a business if:

The corporation was not formed correctly; and/or
The corporation does not operate as a corporation.

Even if your corporation was formed correctly and operates as a California corporation, personal liability for the corporation’s debts and liabilities may flow to you personally if you are an officer, director, and sometimes shareholder of the corporation.

California does not provide corporate protection to directors, officers, and shareholders when:

Wages owed to employees: If the corporation is unable to pay employee wages, the officers and directors of the corporation are personally liable during the time that they are directors and officers for those unpaid wages. California holds officers and directors to a higher standard as fiduciaries of the corporation. A fiduciary in these cases is one who is legally obligated to act in the best interest of the corporation (as opposed to themselves). As fiduciaries, the officers and directors should have made provisions to pay employee wages first. If they failed to do so, they can be held personally liable for the employee wages. This also includes the wages of independent contractors, who are wrongly classified as independent contractors, when they are actually employees.
When officers and directors have extended personal credit: Officers and directors of corporations will remain personally liable on corporate debts and liabilities if they extend their personal credit in two types of situations:
- First, granting a personal guaranty on a corporate debt, usually done for commercial leases and bank loans, makes one personally liable for the corporate debt in the event the corporation cannot meet the repayment terms.
- Second, when the corporation operates initially as a partnership or sole proprietorship, and it is then incorporated. If personal credit was utilized to obtain credit for the business in the past, it will remain after a change in status. Even though vendors are informed of the new corporate structure, and they change the name on the account to the corporation, personal liability holds.

Seek Legal Advice From a California Business Lawyer

There are ways to minimize your personal liability when forming a California corporation. Limited liability company, or limited partnership. A California attorney can assist you in reducing your personal liability by forming a corporation correctly and advising you on the proper way to operate the corporation. A California lawyer can also assist you in minimizing or eliminating your personal liability on vendor accounts once incorporated, and not incurring personal liability for future corporate debts.

If you are interested in forming a corporation or converting an existing partnership, sole proprietorship into a corporation, in the East Bay Area including the communities of Fremont, Hayward, Union City, Milpitas, or Newark, California, seek legal advice and counsel of a California business lawyer today.

california corporation, corporate protection, liabilities, officer, shareholder

Resolving Employee Disputes Before You are Sued

Preventing employee lawsuits and other legal claims is more challenging than you might think for a business. When your company is experiencing a staff problem such as an employee who continually comes in late, frequently takes days off, or is not performing his or her job, your first inclination may be to terminate that person.

Confusion Surrounding “At Will” Employment

Many employers believe that because employment is “at will,” meaning an employee may be terminated with or without cause, that their actions against an employee are justified. However, even when the employment relationship is “at will,” some employers hold on to problem employees out of fear that the employee will make a claim against them or sue them for workplace discrimination.

A situation such as this is difficult to resolve without support from legal counsel. If you are facing this challenge, it is important to seek legal advice from an attorney as to the proper way to terminate employment and to understand fully the legal risks associated with such a termination.

Legal Counsel for Employers Resolving Employee Disputes

An experienced California employer lawyer can assist your business by:

Reviewing your documentation
Helping you with your discipline process
Determining whether an employee has a protective status (i.e.: federal and state sick leave laws, disability laws, Title VII laws, etc.)
Evaluating what types of claim an employee could make, and the status of your company’s documentation to fight such a claim.

Often, we find that employers take action first and then belatedly seek legal advice when the employee makes a claim.

At this point, employers often realize that it is costly to resolve a claim after mistakes have been made. A knowledgeable employment law attorney cannot change the facts but will defend the employer and try to get the best outcome, minimizing monetary and reputational damage.

Relevant and timely legal advice regarding employment issues helps minimize problems before they arise. An attorney can help you understand the various federal, state, and local employment laws and make critical changes to your business practices to avoid further claims in the future.

The Importance of Documentation

Any employment conflict could potentially result in litigation. It is important that you, as an employer, comply with California law in all aspects of your business’s employment policies and procedures, including such items as policy training, complaint investigations, hiring and promotion practices, management development, and employee training. You must also keep documentation of these as proof that you are following California law. Your good faith efforts to prevent employment discrimination, harassment and retaliation, and maintain a safe working environment may serve you well – creating a shield or defense to employee litigation.

If you are an employer in the East Bay Area including the communities of Fremont, Hayward, Union City, Milpitas, or Newark, California seek legal advice and counsel of a local business lawyer today.

disputes, employees