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April 24, 2014
Lean Start-Up Business Tactics:
HR Issues and Your Start Up
Presented and Authored By
Attorney Andrea G. Chatfield
Cook, Little, Rosenblatt & Manson, p.l.l.c.
603-621-7118 a.chatfield@clrm.com
1000 Elm Street, 20th Floor Manchester, New Hampshire 03101
University of New Hampshire
Innovation Catalyst Seminar Series
Hosted by
“Green Clean”
You have developed a new cleaning solution that is
environmentally friendly and organic-based. You are
successful in getting funding for your new business
(“Green Clean”), and now you need a chemical engineer
to help develop more diversified applications of the
solution, and you need a business manager to handle
paperwork, administration, and finance (so you can
work on sales and overseeing the manufacturing which
is outsourced).
Inevitably, every successful start up will need the
services and/or skill sets of other people (you can’t do it
all!). Even if you only have 1 or 2 other people, your
business is not too small to avoid the radar – but you
can navigate your way.
When you start to add people to your lean start-up, the
initial question will be whether or not each person will
be an employee or independent contractor.
Independent Contractors
• You cannot simply “make” a worker an
independent contractor by agreeing to issue a
1099, even if that’s what the individual wants.
• Independent contractor status is something for
which the worker must qualify by meeting legal
tests.
• Classifying a worker implicates many federal and state laws.
Each law has a different set of factors and criteria and is
designed for different purposes (wage and hour,
unemployment benefits, payroll taxes, workers compensation
coverage, employee benefit plan eligibility, etc.).
• While not a guarantee, using a well written independent
contractor agreement can help to establish an independent
contractor relationship, especially in close cases.
• If a worker is misclassified as an independent contractor, there
can be a variety of negative consequences for your business –
fines, unpaid tax liability, failure to pay proper wages, liability if
the individual gets hurt on the job, etc.
In New Hampshire, there are two main statutory tests:
1. The New Hampshire Department of Labor
(NHDOL) test for purposes of wage protection,
workers compensation and minimum wage laws –
ALL factors must be met.
2. The New Hampshire Department of Employment
Security (NHDES) test for purposes of
unemployment insurance coverage – ALL factors
must be met.
NHDOL test:
a) The person has a federal employer identification number or
alternatively agrees in writing to carry out the
responsibilities imposed on employers under state law.
b) The person has control and discretion over the means and
manner of performance of the work.
c) The person has control over the time when the work is
performed. However, employer and person can agree to
completion schedule, range or maximum of work hours.
d) The person hires, pays and supervisors own assistants, if
any.
e) The person holds himself or herself out to be in business
for himself or herself with continuing or recurring business
liabilities or obligations.
f) The person is held contractually responsible for failure to
complete the work; AND
g) The person is not required to work exclusively for the
employer.
NHDES Test:
“Services performed by an individual for
wages shall be deemed to be employment
subject to this chapter unless and until it is
shown to the satisfaction of the
commissioner of the department of
employment security that:
a) Such individual has been and will continue to be free from control
or direction over the performance of such services, both under his
contract of service and in fact; and
b) Such service is either outside the usual course of the business for
which such service is performed OR such service is performed
outside of all the places of business of the enterprise for which such
service is performed; AND
c) Such individual is customarily engaged in an independently
established trade, occupation, profession, or business.
This is one of the more restrictive tests for determining independent
contractor status, and is often referred to as the “ABC test.”
Federal Law
Under Federal Law, there are several tests for
determining employment status for purposes of
determining income withholding tax responsibility, wage
and hour laws, and coverage under various other federal
employment statutes (ERISA, Fair Credit Reporting Act,
OSHA, etc.). The most commonly applied standard is
the IRS’ multi-factor test under which all information
that provides evidence of the degree of control and
independence must be considered.
Facts that provide evidence of the degree of control and independence
fall into three categories:
a) Behavioral: Does the company control or have the right to control
what the worker does and how the worker does his or her job?
b) Financial: Are the business aspects of the worker’s job controlled by
the payer? (these include things like how the worker is paid, whether
expenses are reimbursed, who provides tools/supplies, etc.)
c) Type of Relationship: Are there written contracts or employee type
benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the
relationship continue and is the work performed a key aspect of the
business?
Consequences of Misclassification
• Fines per misclassification and/or per day of violation.
• Unpaid payroll taxes, the individual's income taxes
that were not withheld, plus interest.
• Unpaid minimum wage and/or overtime pay for each
misclassified individual.
• Potential criminal implications.
• Individual Lawsuits: A misclassified worker can sue an
employer for back wages, overtime, value of lost
employee benefits, etc.
Employment Status
• Set Up Payroll System
• Register with NHDES
• Obtain Workers Compensation
Insurance
• Set Up Calculation for Withholding
Taxes and Payment of Payroll Taxes
• Decide if Offering Employee Benefits
Offer Letter
• State the Basic Terms (rate of pay, job title,
benefits – if any)
• Conditions to Offer (sign an employee
agreement, background check, funding
availability, etc.)
• At-Will Statement
• Individual’s Signature
Compensation and Classification of Employees
• Exempt vs. Non-Exempt
• Hourly vs. Salaried
• White Collar Exemptions (Executive, Administrative, Professional,
Outside Sales)
• Incentive Pay (Bonuses vs. Commissions)
• Commissions are earnings based on a transaction carried out by
employee
• Bonuses are earnings based on performance by more than
employee
NH Law requires written notice (signed by employee) regarding all
terms and conditions of pay (not on the back of a napkin!)
Employee Agreements (Restrictive Covenants)
Seek Legal Assistance!
 Yes, they are still enforceable – If Done Right.
 Tailored to scope of your business and the person’s
job duties
 Discuss during the recruitment/interviewing process
 Attach to Offer Letter
Current text of NH Law (RSA 275:70):
“275:70 Notice of Non-Compete and Non-Piracy
Agreements Required. Prior to or concurrent with making
an offer of change in job classification or an offer of
employment, every employer shall provide a copy of any
non-compete or non-piracy agreement that is part of the
employment agreement to the employee or potential
employee. Any contract that is not in compliance with this
section shall be void and unenforceable.”
This may be amended by current legislature: Stay tuned . . . .
Employee Agreements:
An employer’s legitimate business interests
that can be protected by employee agreements
include:
1. Trade secrets and confidential information
2. Customer goodwill
3. Business goodwill
Examples of Confidential Information to be protected:
• Trade secrets
• Customer information
• Financial information (but not employees’ pay)
• Business plans and strategies
• Operational procedures that are internal or unique to
your business
• Technical information
• Inventions and other research and development
Types of Employee Agreements:
• Nondisclosure – protects trade secrets and
information that does not qualify as a trade secret
• Assignment of developments – protects inventions
and IP
• Non-solicitation of employees
• Non-solicitation of customers
• Non-competition
Restrictive covenants must be reasonable:
1. The restriction must be no greater than necessary
to protect the legitimate business interests of the
employer;
2. The restrictions must not impose an undue
hardship on the employee; and
3. The restriction must not be injurious to the public
interest.
Restrictive covenants must be reasonable:
Not every employee will have access to confidential
information or will create customer or business
goodwill.
Consider a customized approach to avoid overly
broad restrictions and enhance the chances of
enforcement.
In considering a customized approach, ask yourself:
• Will the employee have access to confidential
information? Unfettered or limited access?
• Will the employee have customer contact?
• What is the extent/geographic reach of my business?
• How long is the typical transaction/sales cycle?
• How long should the restrictions run?
• Will the employee be involved in developing or
inventing anything?
Other terms in employee agreements
• Return of company property
• Employee is not bound by prior agreements and will not
bring prior employers’ information to your workplace
• Authorization to disclose agreement to future
employers
• Severability Clause
• Choice of Law
• Ability to assign agreement by employer
• Injunctive relief and payment of costs and attorneys
fees if employee breaches
When the New Employee Starts:
• Employment Verification Process (Form I-9)
• Form W-4 (Tax withholding status)
• New Hire Report (for new employees and
unincorporated independent contractors)
• Notice of Health Care Options (if your business is
covered by the Fair Labor Standards Act –
generally this means you have $500,000 or more
in annual dollar volume of business)
Back to the Beginning:
So, how do you want to treat your:
Chemical Engineer?
Business Manager?

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Lean Start-up Business Tactics Seminar - HR Issues and Your Start-up

  • 1. April 24, 2014 Lean Start-Up Business Tactics: HR Issues and Your Start Up Presented and Authored By Attorney Andrea G. Chatfield Cook, Little, Rosenblatt & Manson, p.l.l.c. 603-621-7118 a.chatfield@clrm.com 1000 Elm Street, 20th Floor Manchester, New Hampshire 03101
  • 2. University of New Hampshire Innovation Catalyst Seminar Series Hosted by
  • 3. “Green Clean” You have developed a new cleaning solution that is environmentally friendly and organic-based. You are successful in getting funding for your new business (“Green Clean”), and now you need a chemical engineer to help develop more diversified applications of the solution, and you need a business manager to handle paperwork, administration, and finance (so you can work on sales and overseeing the manufacturing which is outsourced).
  • 4. Inevitably, every successful start up will need the services and/or skill sets of other people (you can’t do it all!). Even if you only have 1 or 2 other people, your business is not too small to avoid the radar – but you can navigate your way. When you start to add people to your lean start-up, the initial question will be whether or not each person will be an employee or independent contractor.
  • 5. Independent Contractors • You cannot simply “make” a worker an independent contractor by agreeing to issue a 1099, even if that’s what the individual wants. • Independent contractor status is something for which the worker must qualify by meeting legal tests.
  • 6. • Classifying a worker implicates many federal and state laws. Each law has a different set of factors and criteria and is designed for different purposes (wage and hour, unemployment benefits, payroll taxes, workers compensation coverage, employee benefit plan eligibility, etc.). • While not a guarantee, using a well written independent contractor agreement can help to establish an independent contractor relationship, especially in close cases. • If a worker is misclassified as an independent contractor, there can be a variety of negative consequences for your business – fines, unpaid tax liability, failure to pay proper wages, liability if the individual gets hurt on the job, etc.
  • 7. In New Hampshire, there are two main statutory tests: 1. The New Hampshire Department of Labor (NHDOL) test for purposes of wage protection, workers compensation and minimum wage laws – ALL factors must be met. 2. The New Hampshire Department of Employment Security (NHDES) test for purposes of unemployment insurance coverage – ALL factors must be met.
  • 8. NHDOL test: a) The person has a federal employer identification number or alternatively agrees in writing to carry out the responsibilities imposed on employers under state law. b) The person has control and discretion over the means and manner of performance of the work. c) The person has control over the time when the work is performed. However, employer and person can agree to completion schedule, range or maximum of work hours.
  • 9. d) The person hires, pays and supervisors own assistants, if any. e) The person holds himself or herself out to be in business for himself or herself with continuing or recurring business liabilities or obligations. f) The person is held contractually responsible for failure to complete the work; AND g) The person is not required to work exclusively for the employer.
  • 10. NHDES Test: “Services performed by an individual for wages shall be deemed to be employment subject to this chapter unless and until it is shown to the satisfaction of the commissioner of the department of employment security that:
  • 11. a) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and b) Such service is either outside the usual course of the business for which such service is performed OR such service is performed outside of all the places of business of the enterprise for which such service is performed; AND c) Such individual is customarily engaged in an independently established trade, occupation, profession, or business. This is one of the more restrictive tests for determining independent contractor status, and is often referred to as the “ABC test.”
  • 12. Federal Law Under Federal Law, there are several tests for determining employment status for purposes of determining income withholding tax responsibility, wage and hour laws, and coverage under various other federal employment statutes (ERISA, Fair Credit Reporting Act, OSHA, etc.). The most commonly applied standard is the IRS’ multi-factor test under which all information that provides evidence of the degree of control and independence must be considered.
  • 13. Facts that provide evidence of the degree of control and independence fall into three categories: a) Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job? b) Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how the worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.) c) Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?
  • 14. Consequences of Misclassification • Fines per misclassification and/or per day of violation. • Unpaid payroll taxes, the individual's income taxes that were not withheld, plus interest. • Unpaid minimum wage and/or overtime pay for each misclassified individual. • Potential criminal implications. • Individual Lawsuits: A misclassified worker can sue an employer for back wages, overtime, value of lost employee benefits, etc.
  • 15. Employment Status • Set Up Payroll System • Register with NHDES • Obtain Workers Compensation Insurance • Set Up Calculation for Withholding Taxes and Payment of Payroll Taxes • Decide if Offering Employee Benefits
  • 16. Offer Letter • State the Basic Terms (rate of pay, job title, benefits – if any) • Conditions to Offer (sign an employee agreement, background check, funding availability, etc.) • At-Will Statement • Individual’s Signature
  • 17. Compensation and Classification of Employees • Exempt vs. Non-Exempt • Hourly vs. Salaried • White Collar Exemptions (Executive, Administrative, Professional, Outside Sales) • Incentive Pay (Bonuses vs. Commissions) • Commissions are earnings based on a transaction carried out by employee • Bonuses are earnings based on performance by more than employee NH Law requires written notice (signed by employee) regarding all terms and conditions of pay (not on the back of a napkin!)
  • 18. Employee Agreements (Restrictive Covenants) Seek Legal Assistance!  Yes, they are still enforceable – If Done Right.  Tailored to scope of your business and the person’s job duties  Discuss during the recruitment/interviewing process  Attach to Offer Letter
  • 19. Current text of NH Law (RSA 275:70): “275:70 Notice of Non-Compete and Non-Piracy Agreements Required. Prior to or concurrent with making an offer of change in job classification or an offer of employment, every employer shall provide a copy of any non-compete or non-piracy agreement that is part of the employment agreement to the employee or potential employee. Any contract that is not in compliance with this section shall be void and unenforceable.” This may be amended by current legislature: Stay tuned . . . .
  • 20. Employee Agreements: An employer’s legitimate business interests that can be protected by employee agreements include: 1. Trade secrets and confidential information 2. Customer goodwill 3. Business goodwill
  • 21. Examples of Confidential Information to be protected: • Trade secrets • Customer information • Financial information (but not employees’ pay) • Business plans and strategies • Operational procedures that are internal or unique to your business • Technical information • Inventions and other research and development
  • 22. Types of Employee Agreements: • Nondisclosure – protects trade secrets and information that does not qualify as a trade secret • Assignment of developments – protects inventions and IP • Non-solicitation of employees • Non-solicitation of customers • Non-competition
  • 23. Restrictive covenants must be reasonable: 1. The restriction must be no greater than necessary to protect the legitimate business interests of the employer; 2. The restrictions must not impose an undue hardship on the employee; and 3. The restriction must not be injurious to the public interest.
  • 24. Restrictive covenants must be reasonable: Not every employee will have access to confidential information or will create customer or business goodwill. Consider a customized approach to avoid overly broad restrictions and enhance the chances of enforcement.
  • 25. In considering a customized approach, ask yourself: • Will the employee have access to confidential information? Unfettered or limited access? • Will the employee have customer contact? • What is the extent/geographic reach of my business? • How long is the typical transaction/sales cycle? • How long should the restrictions run? • Will the employee be involved in developing or inventing anything?
  • 26. Other terms in employee agreements • Return of company property • Employee is not bound by prior agreements and will not bring prior employers’ information to your workplace • Authorization to disclose agreement to future employers • Severability Clause • Choice of Law • Ability to assign agreement by employer • Injunctive relief and payment of costs and attorneys fees if employee breaches
  • 27. When the New Employee Starts: • Employment Verification Process (Form I-9) • Form W-4 (Tax withholding status) • New Hire Report (for new employees and unincorporated independent contractors) • Notice of Health Care Options (if your business is covered by the Fair Labor Standards Act – generally this means you have $500,000 or more in annual dollar volume of business)
  • 28. Back to the Beginning: So, how do you want to treat your: Chemical Engineer? Business Manager?