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Do I Need a Buy-Sell Agreement?

Do I Need a Buy-Sell Agreement?

By Bradley Hunt, Attorney at Law What is a Buy-Sell Agreement? If you share ownership of a business, you need a buy-sell agreement. Buy-sell agreements are not written when you are buying or selling a company; rather, they outline the rules under which an owner may sell (or be forced to sell) his or her share of the business. They also cover the disposition of this share of the business if the partner is divorcing, files bankruptcy, retires, becomes incapacitated, dies, or fails to meet an obligation to the business. Any of these triggering events may activate the terms of the buy-sell agreement. These agreements can be especially important in family owned businesses as protection for all parties involved. How does a buy-sell agreement work? The buy-sell agreement defines the terms and conditions that will govern transfer of ownership of an owner’s share of the business. In a partnership with three principals where one decides to retire and sell his share, for example, the two remaining partners would be notified of the exiting partner’s intent to sell. They would then be given the first option to purchase this share of the business back. In most cases, the share would be offered with an equal split to the existing partners. The agreement protects the remaining partners by preventing the third partner from selling their share to an outside party or even a competitor. If the third partner has died, the heir(s) may choose to keep the business but must typically abide by the terms of the buy-sell agreement should they wish to sell their share. The selling price is usually...
Americans with Disabilities Act and Hiring

Americans with Disabilities Act and Hiring

If you hire employees, you must be aware of the Americans with Disabilities Act (ADA). The ADA is a federal civil rights law designed to remove barriers preventing qualified individuals with disabilities from enjoying the same opportunities that are available to persons without disabilities. The rules apply to private employers, state and local governments, employment agencies and labor unions with 15 or more employees. The ADA prohibits discrimination in all employment practices, including job application procedures, hiring, firing, advancement, compensation, training, and other terms, conditions and privileges of employment. The ADA rules apply when an individual has a disability eligible for protections under the law AND that individual is qualified to perform the essential functions of the job (these are duties that are fundamental to the job). What is the definition of a disability? ADA defines disability (sometimes referred to as “substantially limiting conditions”) as: a physical or mental impairment that substantially limits one or more major life activities; OR a person with a record of such an impairment; OR a person who is regarded as having such an impairment. Specific examples of substantially limiting conditions may include: Mobility impairments due to missing limbs or other disorders Cancer Diabetes Human Immunodeficiency Virus (HIV) infection Transitory impairments such as epilepsy Major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia Who is not covered by the ADA? Current users of illegal drugs (employers may conduct drug testing for illegal drugs) Transgender, homosexual, and bisexual individuals Those who have the conditions of compulsive gambling, kleptomania, or pyromania People who pose a direct threat Are you are in compliance...
Legal Challenges When Hiring Family Members

Legal Challenges When Hiring Family Members

By Bradley S. Hunt, Attorney Family business ventures can be tricky. When the business partners all get along and agree on how to run the business, things can go very smoothly. But when there is dissent, the situation can become very personal. What happens when the disagreement leads to more than a refusal to speak to each other over Thanksgiving dinner at Grandma’s? There are some practical challenges within any family business: Will the business close for a week while the family vacations together? Who will be the CEO, and will the other person’s feelings be hurt? Will everyone contribute the same number of hours of effort? Will the kids want to be part of the business? If they do, will they be qualified to run the company? The list goes on. Above and beyond the practical considerations, there are some common legal issues you should consider: The operative word is business. It’s important that your family business (like any other) be set up as a legal entity, complete with a separate financial structure. Whether you choose to set up a partnership, LLC or incorporate, everything should be in the form of a legal agreement to protect each of the owners individually. I recommend you have a “buy sell agreement” in place. This could be part of the operating agreement and would apply in the event that the owners of the business are in a deadlock and cannot agree on how the business should continue to operate. Buy sell agreements also usually include a method on how to value the business and can guide the parties on the process...
3 Reasons to Use an LLC to Form Your Business

3 Reasons to Use an LLC to Form Your Business

Starting a new business can be exciting and a bit daunting. Should you form an LLC? Incorporate? Borrow money to get started? Lease office space? Bring on a partner? There are many decisions you must make up front, some of which can have long-term implications. One of the most important decisions you will make relates to the structure of your business. Many individuals begin their small business as the sole “employee,” reporting their earnings as income on their personal tax returns without creating a formal structure to minimize their personal liability. Others immediately incorporate without considering the strict reporting required by the government. A limited liability company (LLC) falls in between these two options, giving business owners some protection while requiring less stringent (and time consuming) reporting. Here are three reasons you might choose an LLC to form your business: An LLC, as the name suggests, limits the liability of the owners. Individuals who operate a business without any formal structure are personally responsible for the debts of the business. This means another party could get a judgment against you personally and potentially collect it by going after your assets (bank accounts, personal property, etc.) Under an LLC, the assets and liabilities are owned by the company. While incorporating your business also limits your personal liability, corporations have specific requirements for reporting that must be filed with the state and/or federal governments. The requirements for an LLC are less rigid. In addition, corporations must name officers and have a board of directors. The “members” of an LLC must have a registered agent, but they can divide management responsibilities as...
Proper Classification of Employees Under FLSA

Proper Classification of Employees Under FLSA

Should Employees Be Classified as Exempt or Non-Exempt? By Bradley Hunt, Attorney The Fair Labor Standards Act (FLSA) is administered by the Wage and Hour Division (WHD). The Act establishes standards for minimum wages, overtime pay, recordkeeping, and child labor. These standards affect more than 130 million workers, both full-time and part-time, in the private and public sectors. The Act exempts some employees from its overtime pay and minimum wage provisions, and it also exempts certain employees from the overtime pay provisions only. However, many employers unknowingly misclassify their employees which can lead to costly legal expenses and significant penalties for non-compliance. Federal and State Departments of Labor aggressively pursue and enforce these violations and the best practice to avoid running afoul of the FLSA exempt or non-exempt requirements is to take a proactive approach and be sure that your employees are properly classified. For guidance or additional information you may want to visit the US Department of Labor website or consult with legal counsel for guidance on proper classification of your employees. Within this article you will find some general definitions and guidance for complying with these standards. Employees commonly referred to as “executives,” “professionals,” and outside sales persons and certain administrative and computer employees are examples of employees exempt from the protections of Federal minimum wage and overtime pay requirements under the FLSA and the NC Wage and Hour Regulations. This type of employee typically must be paid on a salary basis with no reduction to their salary conditioned on the quality or quantity of work performed. Executive: This classification of employees must manage the day to day operations...

Avoiding Wage and Hour Complaints

By Bradley Hunt, Attorney There has been a huge increase in the past decade in wage and hour complaints by workers who believe their employers are breaking the law. Indeed, the increase since 2000 is more than 400%, with over 7,000 cases filed in 2011. Let’s begin by explaining the types of actions by an employer that might be considered wage and hour violations under the Fair Labor Standards Act: Failure to pay employees for working “off the clock.” If a non-exempt employee is on-call for troubleshooting after hours, checks email or handles customer calls from home or in the car driving home, meets with a client for breakfast, responds to comments on the company’s social media site, or does any work outside of the standard workday, he or she may be entitled to payment for these hours. Not paying overtime when owed. Do your policies say that employees can clock in no more than 5 minutes before or after their shift begins/ends? Do they work before or after they clock in/out? Misclassifying workers as exempt from overtime pay when they should be non-exempt. Exempt and non-exempt job classification can sometimes be subjective. Look carefully at the type of work, rate of pay and how they are paid (hourly vs. salary). Labeling a consultant as an independent contractor (or “1099” employee) when he or she technically meets the definition of an employee. If you are providing the materials and equipment, setting the hours, determining how the work is done, and the job has a level of permanence, the individual would likely be considered an employee. Deducting hours for a...