Archive for category Employees
Summer Reads For Businesses in Iowa
Posted by Christine Branstad in Business Law, Corperations, Employees, Starting a Business on August 23rd, 2011
Summer Reading for business leaders often includes motivational books. Classics include:
Good to Great – Jim Collins
Getting to Yes – Roger Fisher and William Ury
How to Win Friends and Influence People – Dale Carnegie
If you read my blog, you are likely a family member or recognize the need to “brush up” on the law before your business is in trouble. With so many topics of interest for savvy business people to cover, I have developed my list of “Summer Reads for real Businesses in Iowa.”
Summer Reads for Businesses in Iowa:
Cyber Law: A Legal Arsenal for Online Business – Brett J. Trout
Cyber Law offers a guide to online business, including navigating pitfalls Cyber Law effectively translates “online geek” to “everyday business owner.” Unlike, the rest of my list, this book is actually fun to read.
The Human Resources Manual of a large organization or state agency.
You can get one from a business associate or buy an up to date version. As you read the manual, ask yourself why each provision is in the manual and if your business (no matter how small) may use some of those ideas.
Your own Human Resources manual.
Each business owner should be the expert in the business’s human resources manual. If you don’t understand it, talk with your lawyer about re-writing it. No business owner ever won a case by saying “I did not understand my own manual.”
The “standard” contracts used by your business.
If you don’t understand it, talk with your lawyer about re-writing it. No business owner ever won a case by saying “I did not understand my own contract.”
The actual regulations of your industry (and then the website that explains the regulations that you just read).
For this I recommend an iPad, Kindle or reader. State and federal regulations are free to the public and published in the Code of Federal Regulations (“CFR”). The US Government site provides a keyword search.
Some agencies provide websites with quick explanations of their regulations as well as FAQ pages. Additionally, many agencies publish updates on their websites, of which a complete listing is available here.
Iowa also publishes administrative regulations in the Iowa Administrative Code, available from the Iowa General Assembly’s website. Familiarizing oneself with these resources can not only consume numerous hours of free time, but also allow a quick answer to be found when issues do arise.
Iowa Supreme Court cases (just the business cases).
The Iowa Supreme Court regularly releases opinions which touch on business, as does the Iowa Court of Appeals. The Iowa Supreme Court and Iowa Court of Appeal opinions are well reasoned, concise, and usually enjoyable to read. More often than not I find my weekly review of recent opinions has bearing on a client’s matter or a personal interest. My next blog will be about recent Iowa Cases.
The Iowa UCC.
Iowa has adopted the Uniform Commercial Code (“UCC”), which governs myriad aspects of business, from creation of a contract (see Article 1) to sales of goods (see Article 2) to transactions involving security interests (see Article 9). The UCC is no light afternoon read. An entire law school course may only cover one Article of the UCC; though this should not dissuade you from reading it. Knowing the actual language of the law will help any business leader to ask the right questions when the next contract is negotiated.
Anything your tax advisor tells you to read.
Finally, a bit of a reminder that professionals are here to help you. Often, articles or other materials that are “suggested” for reading could end up saving a business (and any professionals employed by that business) time. Whether it is keeping receipts or ensuring a document is signed and notarized, advice from professionals is meant to aid a business. My advice is to take some time and read up on a topic which affects your business. Not only will you be more knowledgeable, you may just head off a “situation” before it arises, or prevent one from growing exponentially.
New Administration—->New Rules
Posted by Christine Branstad in Business Law, Business Records, Corperations, Employees on May 4th, 2011
Image via Wikipedia
Despite the refrain of pundits, new administrations are not “same old same old.” New leaders come in with new ideas, new agency leaders, and plans to “make a difference.”
The most direct effects are felt at the agency / administration / department level (I will just use “agency” for the remainder of the blog). If your company has someone dedicated to the regulatory process, that person will get to know the new guard and review changes. If, like most small businesses, that job falls on you, take steps to recognize upcoming changes.
1) Check the agency website every week until June.
2) Call and find out if the agency sends out a newsletter. Get on the list.
3) Call the lobbyist for your business association and ask to be in on the lobbyist’s newsletter.
4) Check your association website regularly.
If you are tech-savvy, get the appropriate RSS feeds. If you are not, ask a teenager to help you.
Most agencies want you to be in compliance and want things to move smoothly. Find a liaison who will help ensure that you have the appropriate information to be in compliance.
My next blog will focus on proactive steps you may take regarding the laws/rules before you become ensnarled in red tape.
Avoiding Lawyers and Lawsuits-Waivers of Liability
Posted by Christine Branstad in Business Law, Corperations, Employees, Liability, Personal Injury, Starting a Business on March 15th, 2010
Waivers are everywhere: the back of concert tickets, Web sites, sales agreements. As a business consumer, you may wish to make sure
Image by Aquila via Flickr
that you are willing to give up the stated rights. As a business owner, ask:
- From what are your protecting yourself?
- Is this a real danger?
- What is your goal?
- Do you run a PR risk by warning your clients that your product “may cause death” (especially if you sell coffee tables)?
This post addresses personal injury waivers: the kind you sign at batting cages and skating rinks.
My next post will address the types of waivers that are part of sales agreements and are found within websites for products..
The post that follows that will address Indemnification Agreements.
First, the easiest way to avoid lawsuits and judgments for personal injury is to be prudent in taking care of your business. Common sense safety is more cost effective than waivers.
- Encourage employee common sense through a wellness program.
- Have a plan to keep your employees and patrons safe.
- Talk with your insurer about risk analysis and risk reduction.
The Iowa Supreme Court addresses waivers in a number of cases:
Personal injury waivers must “be specific enough to identify all possible causes of injury so that a reasonable person is on notice.” A waiver that simply agrees that one party is not responsible for any injuries is not specific enough to waive all claims related to acts by that party1.
A waiver must be “voluntary“, ”intentional” and “knowing”. The waiver must intentionally relinquishment a known right.”2 The court uses the standard of a reasonable person to determine whether a party had notice of the provisions in question and may be bound by terms within a contract/agreement.3
The parties must be clearly identified to be considered released parties.4
Once the release is clear in its intent, parties may be bound. Even if you (or your client) does not read the release, a party who is able to read and has the opportunity to do so must suffer the consequences of failing to do so.5
The more dangerous your business, the more likely you can set out the risk and put them in the hands of a person who assumes the risk. For example,“Hang gliding is associated with injuries and death.” If you run a shoe-shine stand, it is more difficult to set out the risks and pass them on to a client. (Then again, hopefully the shoe-shine isn’t dangerous.) From a client perspective, you may have clients who wonder why they must sign a waiver that states that “death is a possible consequence” of their shoe shine. If you are leading rock-climbing expedition, the client likely expects a waiver.
A well drafted waiver will:
- specifically set out the parties involved,
- address the type of danger,
- specifically waive the damages, if any,
- show that the waiver is voluntary, and
- provide clear language.
We will see how the Iowa Supreme Court handles the inevitable case about “throw in the kitchen sink waivers” written in three-point font. For amusement or consideration, the waiver below from an actual ticket. I used a magnifying glass to read it. Apparently a kids’ concert needed the following waiver:
“warning! Despite enhanced spectator shielding measures, pucks still may fly into the spectator area, serious injury can occur, stay alert at all times including during warm up and after play stops. If struck, immediately ask usher for directions to medical station. Holder voluntarily assumes all risks and danger incidental to the event for which the ticket is issue, whether occurring prior to, during or after the event, including, but not limited to, danger of being injured by thrown, batted, kicked, shot, struck, etc. objects such as balls bats hockey sticks pucks racquets and other objects or equipment or by other spectators or players or by entering a mosh pit. Holder voluntarily agrees that the management, facility, league, participants, participating clubs, Ticketmaster, and all of their respective agents, officers, directors, owners, and employees are expressly released by holder from any claims arising from such causes”
- Christine Branstad
1. Sweeney v. City of Bettendorf, 762 N.W.2d 873, (Iowa 2009)
2. Benton v. Slater, 605 N.W.2d 3, (Iowa, 2000)
3. Joseph L. Wilmotte & Co. v. Rosenman Bros. 258 N.W.2d 317, (Iowa 1977)
4. Huber v. Hovey, 501 N.W.2d 53, (Iowa 1993) (plaintiff injured by fireworks misfiring into pit area of race track); Grabill v. Adams County Fair and Racing Association, 666 N.W.2d 592,( Iowa 2003) (plaintiff injured by detached wheel of race car flung into pit area of race track).
5. Forrester v. Aspen Athletic Clubs LLC, 766 N.W.2d 648, (Iowa App. 2009).
Right from the Start – Non Solicitation Agreements
Posted by Christine Branstad in Business Law, Corperations, Employees, Non-Solicitation Agreements, Starting a Business on January 6th, 2010
Image by lumaxart via Flickr
My previous post reviewed non-competition agreements to keep employees from walking away with the kitchen sink – trade secrets, client lists and knowhow. This post focuses on Non-Solicitation Agreements, a more narrow method of keeping other companies from luring employees or clients away. The next post will address non-disclosure agreements.
In the second year of your burgeoning IT business, you have 5 employees. You land a project that requires a temporary workforce of 10 employees. A staffing company offers to provide workers, but a clause in the contract prohibits you from soliciting any of the temporary staff for 2 years. Should you sign?
In its third year, your company competes for a project requiring onsite work. You plan to embed your team, but are concerned that you risk losing the contract if you muddy negotiations with a requirement that the client not solicit your employees. How do you address the issue?
A non-solicitation clause is a normative approach to both situations. Non-solicitation clauses are a common method for setting boundaries with staffing companies, consultants, and trainers.
A non-solicitation agreement with another company may prohibit luring employees. The strictest agreements prohibit all contact, which has led to litigation about whether purely social interaction violates the clause. Additionally, employees may be prohibited from hiring other employees away.
Other non-solicitation agreements prohibit luring away customers. Companies have agreed that, as employees move between companies, each will not solicit the clients previously serviced by the employee for the other company. In the alternative, the non-solicitation agreements may be directly between employer and employee (often in lieu of a non-competition agreement). Those agreements may be narrow (e.g. employee may not solicit clients for whom employee was account manager) or broad (e.g. employee may not solicit any client on company’s client list). The more broad the provision, the more likely it will be scrutinized by the court.
Agreements to limit competition, disclosure or solicitation are, by their nature, restrictions on trade. Iowa courts have long held that any restraint of trade is strictly construed against the one seeking to restrain another from pursuing employment or business pursuits. As one example, Iowa Courts specifically distinguished “selling” and “solicitation” based on who initiated the transaction.
As you consider non-solicitations agreements, consider:
- Is non solicitation good for your business?
- Is it good for the industry in general?
- What time limit should apply?
- What geographic limit should apply?
- Is the agreement limited to a certain type of client?
- Is it limited to a certain type of employee?
- Will it affect your ability to recruit and retain employees?
- Is it fair?
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