6 Reasons Why a Business Should Hire a Lawyer

  1. Provides proactive legal solutions
  2. Provides protective legal advice
  3. Protection of assets
  4. Prevention of lawsuits
  5. Lesson liability
  6. Compliance with state/federal laws

6 reasons why a business should have an employee handbook

  1. Clearly define a company’s policies and procedures in the workplace
  1. Give written notice to employees of their obligations in the workplace and standards of conduct that need to be adhered to
  2. Provide mandated legal notice regarding state and federal laws
  3. Provide communication of important information to employees
  4. Provide company legal protection, defenses in the event of a lawsuit, and potentially limit future liability
  5. Creates more uniform objective vs. subjective standards in the workplace

8 Reasons to Use a Lawyer to Review and Draft Business Contracts

  1. Provide an in-depth understanding of the terms and conditions, including legal terms of art.
  2. Avoid risks such as pitfalls/loopholes in terms and conditions.
  3. Ensure best terms and/or neutral terms and conditions.
  4. Provide protections in case of breach.
  5. Provide alternatives for disputes in case of breach.
  6. Make sure document is legally enforceable.
  7. Incorporate laws and regulations as necessary in the industry.
  8. Negotiate the terms and conditions.

25 Employer Mistakes when Terminating Employees

With exception of an employment contract or unionized employees, Michigan is employment “at-will”, which means the employer or employee can terminate the employment relationship for any reason or no reason at any time. However, employers are generally subject to possible legal action if the termination by the employer involved a violation of an employee’s legally protected rights under state and/or federal law (as applicable to the employer). By way of illustration, an employer cannot terminate an individual if such termination was based on a discriminatory reason(s). Over my 25 years of legal practice representing both employees and employers in the workplace in Michigan, the following are a list of common termination mistakes made by employers that may leave them legally exposed: 

  • Not having the proposed termination and related documentation reviewed first by legal counsel
  • Making an emotional or impulsive decision
  • Not following a progressive disciplinary process if the employer has one
  • Terminating an employee after they have made a claim that the employer violated a protected right of an employee under the law
  • Failure of an employer to investigate a prior employee complaint involving a potential violation of an employee’s protected right under the law
  • Terminating an employee for an event/situation where prior employees were not terminated for the same event/situation
  • Disciplining employees for frivolous issues
  • Terminating an employee under false pretenses (i.e., making up a reason)
  • Not having a witness for the employer at termination
  • Not conducting an exit interview of the employee
  • Not providing a legitimate, non-discriminatory reason(s) for termination
  • Giving multiple, inconsistent reasons for the termination
  • Giving bad performance reviews when the employee previously had consistently good performance reviews
  • Terminating an employee for performance-based reason(s) that are not realistically obtainable
  • Mishandling the termination
  • Not following the procedures outlined in an employee manual/handbook
  • Poor timing of the termination
  • Not having documentation to support the termination reason(s)
  • Waiting too long after an event/situation to terminate the employee
  • Terminating an employee shortly after they filed a complaint with a government agency concerning the employer or where an employee threatens an employer to file a complaint with a government agency
  • Terminating employees to save on wages
  • Not following proper employer termination procedures
  • Giving other employee preferential treatment
  • Not offering a separation package when appropriate under the circumstances
  • Unless a serious offense, failing to discuss the problem with the employee prior to termination

Social Security Disability

To be found disabled for purposes of receiving Social Security Disability (SSD) under either of SSD’s two (2) programs (RDSI or SSI), an individual (except for a title II widow, widower, or surviving divorced spouse, or a Title XVI child younger than age 18) must have a medically determinable physical or mental impairment(s) of such severity that he or she is not only unable to do his or her previous work but cannot, considering his or her age, education, training, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. The SSD provides a sequential evaluation process for determining disability. The disability must last for a period of at least twelve (12) months.

Nationwide, about 70% of all applicants are initially denied benefits at the application process. Of those who appeal the application denial and proceed to a hearing before an Administrative Law Judge (ALJ), approximately 50% nationwide receive benefits at the ALJ hearing level. In general, the application process takes about 3-6 months before a decision has been made. If the claimant loses at the application process and requests a hearing, the hearing will not generally take place until 12-15 months after the request for hearing has been submitted to SSA.

The ALJ hearing is an informal process and it is possible that a claimant can represent himself or herself at this level. However, statistics show that claimants who are represented by an attorney are successful more often than claimants without attorney representation.

Generally, attorneys who represent claimants at the hearing level, generally will assist or work with the claimant prior to the hearing in the following manner:

  • Gather medical and other items of evidence
  • Analyze specific of the case relative to SSA regulations
  • Gather additional reports from medical providers regarding your ability to work and/or the claimant’s restrictions on working as a result of the physical and/or mental impairments
  • Refer claimant to additional specialists, as may be required, in order to clear up issues that may have existed during the initial application process.
  • Review all medicals submitted to SSA
  • Request subpoenas as necessary
  • Advise and assist claimant in preparation of the hearing
  • Protect claimant’s rights during the hearing
  • Cross-examine adverse testimony primarily provided by SSA’s vocational expert
  • Submit a pre-hearing brief to the ALJ as to why claimant should be entitled to benefits
  • Present a closing argument at ALJ hearings

Generally, having an attorney at the ALJ SSD hearing stage can make all the difference in the outcome of getting a successful result for SSD benefits. Therefore, if a claimant has lost at the initial filing stage for SSD benefits they should contact an experienced SSD attorney like Seth T. Seidell to discuss the appeal process.

Employment Law-EEOC Priorities (2018-2021)

The U.S. Equal Employment Opportunity Commission (“EEOC”) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy, gender identity, and sexual orientation), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases).

The EEOC’s priority focus, include:

Eliminating Barriers in Recruitment and Hiring      The primary focus will be on class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers (over 40), women, and people with disabilities. Areas include exclusionary policies and practices, job segregation, channeling/steering of individuals into specific jobs due to their status in a particular group, restrictive application processes (including online systems that are inaccessible to individuals with disabilities), and screening tools that disproportionately impact workers based on their protected status (e.g., pre-employment tests, background checks impacting African Americans and Latinos, date-of-birth inquiries impacting older workers, and medical questionnaires impacting individuals with disabilities.

Addressing Selected Emerging and Developing Areas

  • Qualification standards and inflexible leave policies that discriminate against those with disabilities;
  • Accommodating pregnancy-related limitations under the ADAAA and Pregnancy Discrimination Act
  • Protecting lesbians, gay men, bisexuals and transgender (LGBT) people from discrimination based on sex;
  • Clarifying the employment relationship and the application of civil rights protections in light of increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, and independent contractors.

Preserving Access to the Legal System      The EEOC will focus on policies and procedures that limit substantive rights, discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or impede EEOC’s investigative or enforcement efforts. Specifically, the EEOC will focus on: 1) overly broad waivers, releases and mandatory arbitration provisions; 2) employers’ failure to maintain and retain applicant and employee data and records required by EEOC regulations; and 3) significant retaliatory practices that effectively dissuade others in the workplace from exercising their rights.

5 Things to Consider in Running a Business

Quite frequently, as an experienced business attorney, entrepreneurs have asked me what things they need to be conscious of and be knowledgeable in when owning a business.  Although many business owners are great at what they do, they do not necessarily have the know-how about business related subjects which will ultimately play an important role in their success in their business venture.  As such, I have come up with a list of areas that I feel are important for any business owner to be knowledgeable in or to at least have access to experienced legal counsel, a certified public accountant and a business related insurance agent or agency.

  • Business Insurance. Almost all businesses need some form of insurance to protect either themselves as owners or the company as a whole. A business owner should sit down and explore all the business insurance programs available to them consistent with their business operations and needs. Business insurance is an important part of protecting business assets and the owners from potential exposure. For example, if a company handles a lot of money, the company should consider getting employee dishonesty insurance to cover the potential exposure of an embezzlement claim.
  • Government Regulations. Business owners should be cognizant of all government regulations that could affect the workplace. This includes tax, employment, and conducting business in general (e.g. licensing). Some businesses, depending on the specific industry, are more regulated than others. For example, the trucking industry might be more highly regulated by laws than perhaps a pizza establishment.
  • Business Taxes. A general understanding of all taxes related to the company is important. Knowing how much tax will be assessed to businesses is as equally important as getting an understanding of when they need to be paid as well as what forms need to be filed with local, state and the federal government.  Failure to pay taxes when due and in the amount due could have a serious, detrimental impact on a business.
  • Business Contracts.  Ultimately businesses will be doing businesses with third parties (e.g. vendors, employees, individuals, other companies, etc.), and in many of those instances, a written agreement is important to protect the interests of the business.  In many instances, contracts will dictate what the parties have agreed upon.
  • Intellectual Property.  Protecting your name, product, slogan, or services are extremely important in business. Getting trademarks, patents, and copyrights protects you from competitors.

In my opinion, when running a business, business owners should have 3 “trusted” advisors which would include an experienced business attorney, certified public accountant and a business insurance agent or agency

“An Ounce of Prevention is Worth a Pound of Cure” in the Business World

Most of you have probably heard of the old saying of “An Ounce of Prevention is Worth a Pound of Cure” which was coined by Benjamin Franklin. That quote has been often used in the legal world for the general proposition that if we prevent a problem in the first place, it will save a great deal of time, effort and cost in trying to repair or fix the damage done later. In other words, it is better to keep a bad thing from happening than it is to fix the bad thing once it has happened. This is no different than things we do in our personal lives where we use preventative measures (e.g. vaccines, annual physicals and dental services) in order to protect us from potential harm or severe medical problems.  Unfortunately, and far too often in the business world, business owners and their employees try to do legal related things on their own, which are customarily meant to be done by an experienced business attorney, in order to save money. Many times, owners and their employees do not utilize business attorneys until they’ve got a problem, those problems normally being self-inflicted because they didn’t seek out legal advice in the first place and for which the problem is generally of a serious nature. Likewise, attorneys are not magicians or illusionists and normally can’t simply make a problem disappear with a “wave of wand” or “pixie dust” and, thus, the costs of fixing or repairing a problem are usually substantial as compared to doing something to prevent it in the first place. Business attorneys are generally engaged to provide business clients with preventative, proactive and protective measures so that problems won’t occur in the future, which, if in fact they do occur, will cost the business substantial risks and costs.

6 Reasons to Hire The Right Business Attorney

Below is a non-exhaustive list of when business owners should seek out legal counsel in business related transactions in order to explore what preventative, proactive or protective legal measures should be taken:

Seth T. Seidell, Attorney at Law, is an experienced business attorney in Michigan. For more detailed information on the types of business legal services provided, visit the Business Legal Service page on the website at www.seidell-law.com.

Starting a Business-Things to Consider

Below is a non-exhaustive list of things to consider when starting a business.

1. Before starting a business, do you have a business plan which encompasses both short and long term goals and objectives?
2. Where to conduct business activity (what state and community) and what type of business structure should you utilize (e.g. corporation, LLC, etc.).
3. Will you need financing to start up the business and what are the projected start-up costs?
4. What type of insurance coverage will the company need?
5. What type of licenses or permits will the company need?
6. Federal, state or local registration requirements for business taxes?
7. If hiring employees, information on payroll taxes and labor and employment law compliance.

If you plan on starting a business it is highly recommended that you seek out a business attorney, CPA and/or accountant, banker and insurance broker who can assist you in the process and answer questions. Seth T. Seidell, Attorney is an experienced business attorney in Michigan.

Buying or Selling a Business in Michigan

For many years my law firm has represented both buyers and sellers of small to medium sized privately held businesses in Michigan. Although “hybrid” options are available, in general, there are normally two options in a structured sale of a business. Business sale transactions consist of either an asset or stock/membership sale.

Business Asset Sale

In an Asset Sale, specified assets (some or all) are transferred from the entity to the purchaser while the corporation and/or limited liability company entity that sold the assets remains in place and continues to be owned by its owners. Often times, although agreements can be modified accordingly, although assets are sold to a buyer, the entity who sold the assets still retains the liabilities. In most cases, depending on the facts, buyers generally prefer the asset purchase method since they will not be taking on past liabilities and the buyer can normally use the purchase price of the assets as the assets basis for tax purposes.

Business Stock Sale

In a Stock Sale, the buyer purchases the equity (stock or membership) interests from the owner(s) of the entity to be sold. There is no change in the status of the entity itself and the new equity owners take on, unless otherwise agreed to, all of the entity’s liabilities and contracts and the assets remain with the entity. Government authorizations, permits and licenses may not be transferable, and, therefore, in some industries because of the restrictions, a stock sale may be the preferred method amongst the parties. In most cases, depending on the facts, sellers generally prefer the stock purchase method as, unless otherwise agreed to by the parties, the seller will no longer be liable for the entity’s liabilities.

This article is a mere synopsis on the types of transactions that are normally done in a privately held sale of a business in Michigan. Generally, facts will dictate the type of sale that should be contemplated. This is just one area of discussion when contemplating a sale of business transactions and many other facets are involved in such a transaction. It is important to seek legal and accounting professionals when contemplating a business sale or purchase. Seth T. Seidell, Attorney at Law, concentrates his legal practice in the area of business law.