Ensure the smooth flow of your business by choosing the appropriate legal structure, obtaining permits and licenses, and protecting business assets. Although formal legal advice cannot be offered, this workshop will provide guidelines for your new venture. Jennifer Hoenig, Senior Associate, West Hill Technology Counsel; Megan Taylor, Of Counsel, West Hill Technology Counsel

1. Business Legal Issues

2. MASSACHUSETTS SBDC NETWORK
• SMALL BUSINESS DEVELOPMENT
CENTERS
• UMASS AMHERST SBDC STATE OFFICE
• BERKSHIRE REGIONAL SBDC
• CENTRAL REGIONAL SBDC AT CLARK UNIVERSITY
• NORTHEAST REGIONAL SBDC AT SALEM STATE UNIVERSITY
• SOUTHEAST REGIONAL SBDC
• UMASS BOSTON REGIONAL OFFICE & MINORITY BUSINESS
CENTER
• WESTERN REGIONAL SBDC
• SPECIALTY CENTERS
– MINORITY ASSISTANCE
– MASS EXPORT CENTER
– GOV’T PROCUREMENT (PTAC)

3. SBDC at Salem State University
Counseling Outreach Sites
Salem (Regional HQ)
Amesbury
Beverly
Billerica
Gloucester
Lawrence
Peabody

4. REGIONAL SPONSORS

5. SBDC CONTACT
INFORMATION
• PHONE 978-542-6343
• FAX 978-542-6345
• EMAIL SBDC@SALEMSTATE.EDU
• WEB SITE WWW.SALEMSTATE.EDU/SBDC
– ONLINE CALENDAR OF UPCOMING WORKSHOPS
– REGISTER ONLINE FOR WORKSHOPS
– DIRECTIONS TO SBDC OFFICE & WORKSHOP
LOCATIONS

6. Business Law
http://www.westhillcounsel.com/
900 Cummings Center, Suite 206-T
Beverly, MA 01915
Jennifer Hoenig
Business Attorney
978-274-7058
jhoenig@westhillcounsel.com
Megan Taylor
Of Counsel, HR Consultant
978-274-7054
mtaylor@westhillcounsel.com

7. Business Law
Building Your Team
Choice of Entities and Formation
Taxation
Record Keeping
Intellectual Property
Workplace and Employees

8. Building Your Team
With the Best Advisors
• Four Basic Advisors to all Companies
– Accountants-CPA
– Insurance Agent
– Banker
– Attorney
• Shop around, budget, and integrate

9. Factors to Consider
• Comfort Level
• Expertise and Experience-Business
Matters; Client Industry
• Scope of Work-Resources available to
handle
• Fees – hourly vs. flat; alternative
arrangements reserved for start-ups; how
to best budget for
• Don’t be afraid to negotiate!

10. Choice of Entity
• Sole Proprietorship
• Corporation- “C” and “S”
• Limited Liability Company: “LLC”
• Partnerships:
– General Partnership
– Limited Partnership (“LP”)
– Limited Liability Partnership (“LLP”)

11. Considerations
• Ease of Formation/Incorporation
• Business Location and Jurisdiction – e.g.,
domestic vs. foreign incorporations
• Limited Liability
• Income Tax Treatment
• Ownership/Management Structure
• Exit Strategies

12. Intellectual Property:
Protect Your Brand!
• Copyrights: ©
- Company Website
- Key Content
• Trademarks: TM or ®
- Company Name
- Company Logo
• Patents

13. Your Business Website
• Copyright
© 2014 Westerly Widgets, Inc. All rights
reserved.
Not © 2011 westerlywidgets.com.
• E-Newsletter, blog posts, etc.
• Terms of Use
• Privacy Policy

14. WISP
• Almost all businesses are required to have
a Written Information Security Program on
file in their business office under MA law.
• Purpose of WISP: to create effective
administrative, technical and physical
safeguards for the protection of personal
information of residents of MA. Prevents
fraud, protects privacy, identity theft and
provides for notification if breached

15. Minimum Standards
• Develop, implement, maintain and monitor
a written program to safeguard personal
information.
• The program must fit the business
• The program must address paper and
electronic data
• Concerned with reasonably foreseeable
external and Internal risks

16. Record Keeping
• Corporate Records
• Personnel Records-hiring, payroll and
performance
• Medical Records
• Business Records
• Tax Records

17. Employment, Pre-Hiring,
Hiring, Benefits and Termination
• Laws have become and voluminous
• At the outset, must develop a strategy for
dealing with employment and human resource
issues-at all levels- i.e. from Top-Down.
• Collect the right Forms-I-9 (immigration status
documents-verification of employment eligibility
within 3 days of hiring), W-4, H-1B Visa if
applicable, etc.

18. Interviewing And Selecting The Candidate:
Prohibited And Risky Questions
• CORI Reform-5/4/12
• Protected Classes
• Residence, Lifestyle And Economic Status
• Family Status
• Union Allegiance
• Criminal History
• Immigration Status
• Medical/Health Information
• “Lifestyle”

19. Protected Classes: Military Service
You May Ask:
• Have You Served In The U.S. Armed Forces?
• What Is Your Military Service History?
• What Experience Or Skills Did You Acquire?
Do Not Ask:
• Have You Served In The Military of Another Country?
• How/Why Were You Discharged?
• Are You Receiving A Service-Related Disability
Pension?

20. Residence, Lifestyle,
Economic Status
You May Ask About:
• Address And Length of Residency
• Willingness To Relocate If Job Requires
• Ability To Meet Overnight Travel Requirements
• Membership In Professional Societies Or
Associations
• Ability To Commute
• Availability To Work Overtime

21. Medical/Health Information
Can An Employer Ask An Applicant
To Undergo A Medical Examination?
• Only After An Offer
• Must Be Job-Related
Do Not Ask About:
• Workplace Injuries
• Leaves of Absence
• Genetic Information
• Visible Physical Limitations
• Health Insurance Coverage

22. Reference Checks
• Why Check References?
• Release From The Applicant
(Job Application)
• Types Of Reference Checks
○ Background Checks – in light of Mass.
CORI law.
• Practical Tips – including what is your
company policy on giving references?

23. The Form I-9 Process
• Verification Of Employment Eligibility Of All
Employees Required
○ Exceptions
• Cannot Knowingly Hire, Recruit, Refer For A Fee
Or Continue To Employ Illegal Workers
• Must Be Completed Within 3 Days, And
Retained For Longer of 3 Years or 1 Year After
Employment Ends
• May be stored electronically

24. Critical Employment Policies:
Limit Liability And Exposure
While Serving Your
Business Needs

25. #10: Sexual And Other Harassment
• Zero Tolerance Policy
• When Does The Policy Apply?
• What Are Your Responsibilities?
• Report Harassment Complaints
• Prompt Investigation
• Disciplinary Action
• No Retaliation
• Best Practices – conduct annual training

26. Other Important Policies
• Electronic Communications
(Including Social Networking)
• Data Security Protection
• Commissions
• Maternity/Paternity Leave (and FMLA, if
applicable)
• Mobile Device Policy
• Remote Working Policy
• Wage and Hour Policy (overtime)

27. Managing And Documenting
Employee Performance,
Discipline And Discharge

28. Regular Performance Evaluations
And Improvement Measures
• Fair
• Timely
• Comprehensive
• No Surprises

29. Elements Of An Ideal Performance
Evaluation Form
• Key Performance Measures
○ Measures From Job Description
○ Organizational Tasks
○ Initiative
○ Teamwork
○ Reliability
○ Knowledge Of Job
○ Attendance - Punctuality
• Strengths/Weaknesses
• Goals
• Comments
• Employee And Reviewer Signature And Acknowledgement

30. Effective Performance Improvement
And Discipline System
• Articulate Clear Expectations
• Centralize Discipline And Be Consistent In
Treatment
• Reduce Risk Of Litigation
• Support Defense In The Event Of
Litigation
• Be Fair: The Punishment Should Fit The
Crime

31. Contents of Written Warning
• Name/Date/Supervisor/Title
• Prior Disciplinary Action
• Current Disciplinary Action
• Describe Specific Conduct
• Describe Reasons For Disciplinary Action
• Performance Improvement Plan
• Specific Improvements Need to be Made
• At-Will

32. Document, Document, Document!
• It Is Important To Document All
Conversations With Employees Regarding
Conduct Or Performance Problems!
• Documentation Tips
• Avoid Excess Documentation
• Personnel File Guidelines

33. Practical Tips
• Investigate Before Discipline
• Be Consistent
• Follow Up With Employee

34. The Decision To Discharge
• First Gather Facts/Conduct Thorough
Investigation
• Follow All Company Policies And Procedures
• Consider Whether Employee Is In “Protected
Category”
• Consider Whether Employee Has Been Given
Sufficient Time To Improve Performance
• Create Documentation: Why Discharge And
Why Now?
• … And Review of the Decision

35. Termination Checklist
• Prepare For Termination Meeting
• Strategize Actions And Basis For Actions
• Benefits And Notices Required By Law
• New DUA Form Effective March 2009
• COBRA Notices
• Return of Company Property
• Shut Off Access to Company Systems

36. Dignified Termination Meetings
• Who Should Be There?
• What Should Be Discussed?
• Avoid Defamation By Conduct
• Severance Plan?
• Required Paperwork
• Unemployment Compensation