I am not a lawyer. Do not take legal advice from a news story.
Over at Hongkiat, Veronica Howes has a great piece about the rights that every designer should give themselves when it comes time to make a contract. It’s not just good advice for designers, though. Anyone at the mercy of the client revision deserves to know these tips.
Many of them are about making sure that the rights to your work are secured. That’s important! Work-for-hire has always been treacherous territory. But in the gig economy, when more people than ever are doing contract work, holding on to your intellectual property is important, if you can swing it.
But just as important? Knowing when to walk away — and having the freedom to do so. Having an exit strategy is important to everyone who has ever had a bad client experience, trust us on this one.
There are plenty of reasons you might need to do this. Creative differences, a work environment you weren’t expecting, or even just an unreasonable number of revisions. Obviously, you never *want* to lose work, and you never want to leave a client unsatisfied. But sometimes walking away is better emotionally and financially than finishing the gig.
Writing in a “kill fee” can help you do this safely. A kill fee is a guarantee that you still receive some compensation for the work that you did, even if that work wasn’t completed. It’s an exit strategy. If you sink a year into a project for a client and then they decide to move in a different direction, the kill fee makes sure that you didn’t just waste a year of your life. It’s an important safety tool for anyone freelancing.
The standard phrasing to include in the contract is: “Termination. Either party may terminate the contract at any time through written request. The Company shall upon termination pay Consultant all unpaid amounts due for Services completed prior to notice of termination.”
And it is worth talking about the specifics of the kill fee. Some may charge for hours already worked regardless of who terminates the contract, others may choose to keep a retainer, and so forth. Think that through and include it in your contract.
Now, let’s talk about revisions. Half the time, the reason you’d want an escape clause is that the work wasn’t scoped correctly in the first place. You need to be very clear about the expectations of the amount of work that’s going to go into a job.
Let’s say you quote someone a flat fee of $100 for a tiny project because you expect it to take you an hour or two. But suddenly, there are 12 people at the client’s office arguing over what the project should actually be, on a conceptual level, and you’re caught in the crossfire while they re-imagine the project you’ve already finished. The worst-case scenario here is that you’re stuck doing dozens of revisions, and with each minute you spend, your hourly rate just dwindles down to nothing.
Setting up an exit strategy with appropriate expectations ahead of time (in writing) can really save you here. Allot for one major revision of the work and some touch-ups, or maybe three rounds of revisions. Do whatever’s appropriate for your field and the scope of the work. But be sure that the expectations are clear, have it in writing, and be sure you’ve got that escape hatch at the ready if things go past it.
Small businesses angry at depletion of COVID-19 relief funds without warning
(ENTREPRENEUR) Small businesses are in shock when they find out COVID-19 relief funds are no longer available, with an email update from the SBA.
In May, the Small Business Administration (SBA) sent out an update to borrowers of the Economic Injury Disaster Loan (EIDL) for COVID-19 relief. The EIDL program is now out of funds, according to an email sent to borrowers.
The loan program formally closed back in December 2021, but there was a period when small businesses who had already received funding could request additional money. That period is now officially over, and the $345 billion that was allotted for COVID-19 relief is gone.
The impact of EIDL
Many owners and entrepreneurs are outraged and frustrated with the lack of transparency from the SBA. There was no warning that the funds were almost depleted and many businesses were relying on that loan money to keep their businesses afloat as the economy rebounds. However, SBA Administrator Isabella Casillas Guzman praised the program,
“The SBA has delivered historic economic relief to millions of America’s small businesses through the COVID Economic Injury Disaster Loan program…”
According to an SBA press release, over $390 billion in aid was distributed to nearly 4 million businesses.
Small businesses still need help
In May, Tedros Adhanom Ghebreyesus, Director-General of the World Health Organization (WHO), told health ministers that COVID-19 and its effects are not over. Here in the United States, life seems to be getting back to normal, if you discount the horrific inflation and gas prices, which are further impacting the recovery of small businesses.
Congress has been wrangling with legislation (H.R. 3807) that would offer more funding for those that were hit hard due to covid. Getting the House and Senate to agree on this legislation is expected to be difficult. So, no guarantees that more help is coming.
The SBA recommends that businesses who need more resources contact their local SBA office. Virtual appointments can be made for those who wish to avoid contact.
Regularly update your succession plan – it isn’t for setting and forgetting!
(ENTREPRENEUR) You may think that once you have a succession plan in place, you’re set for life, however, it’s recommended to continually update them!
We’ve written before about how the everlasting success of the business will need to outlive you, and this is best conjured up in a succession plan. This is especially true for small business owners and entrepreneurs that have built an empire for themselves but aren’t sure what the future will hold beyond their passing. This is the exact reason that succession plans shouldn’t be set and forgotten, but instead consistently updated.
What are some of the obvious reasons that you may need to update your succession plan?
- Health Issues
- Marriage or Remarriage
- Changes in health in executors or guardians
- Changes in the law
- Changes in Residence
Now, for the not-so-obvious reason: It should be updated when any personal circumstances changes, which most likely happen often. This is why a will is like your home, an investment that needs to be properly maintained, and if it is, it will last a very long time.
Examples include changes in economic or parental status, as well as designations or fiduciaries. Elders could be aging, siblings may be having their own life changes, as well as if any dependents are born with or develop special needs.
“Every state has different laws regarding the administration of a will,” he said.?“For instance, states vary regarding the required residence of an executor, inheritance tax laws, and whether a child can be disinherited by omission.”
The recommended procedure is to review wills and powers of attorney at least every five years.
Lastly, when should a will update to a trust?
- When you have some significant assets (more than $500,000) in your own name.
- If you have special needs beneficiaries.
- If you have properties in multiple jurisdictions (multiple states or even counties).
- If you have beneficiaries you want to control distributions to (e.g., distribute at ages 25/30/35).
- If you have kids from a previous relationship you want taken care of.
- If you may want asset protection (special trust needed).
- If you are a big dog (over $22M if married), to save taxes.
Should your severance agreements include confidentiality clauses?
(ENTREPRENEUR) Confidentiality clauses and NDAs have long been tied to severance agreements – but is that notion becoming outdated?
Severance agreements and their ilk have long included confidentiality clauses, often comprising an exhaustive list of actions former employees may not take should they desire to keep the benefits listed in the agreement. Carey & Associates P.C.’s Mark Carey breaks down the knowledge you’ll need to successfully incorporate a severance agreement – including a stern warning about the future of confidentiality clauses.
There is a long list of things you’ll need when curating a severance agreement, but we’ll start with Carey’s honey-do-nots.
Carey’s primary recommendation is avoiding a non-compete clause where, previously, there wasn’t one.
“As employment lawyers, we see this tactic used every day, but you do not,” he says.
This is because most employment lawyers will advise that a non-compete agreement is largely unenforceable, which sets a poor precedent for an otherwise airtight document.
Carey even recommends against reviewing prior non-compete clauses for the same reason.
He also eschews what he calls the “21 days to sign – or else” philosophy, and he advises that employers should loop themselves into the non-disparagement clause so that employees cannot be blacklisted – something he refers to as “a very real phenomenon.”
What a severance agreement should include is a non-admission provision, a payment provision, a release of all claims to cover any feasible scenarios regarding employee disclosure, a challenge to agreement, a “no other amounts are due” section to release the employer from future responsibility, and a mandate to return any company property. This is a truckload of information, so you’ll want an employment lawyer to help you through the process.
But what Carey warns against is the future of confidentiality agreements, or NDAs. While these provisions have long accounted for employee silence in the face of abusive or corrupt employers, Carey posits that, one day, “confidentiality provisions in employee severance agreements will be banned as a matter of statute and public policy.”
This assertion comes in the wake of the #MeToo movement and the uncovering of the manner in which powerful people were using NDAs to buy silence from the people who suffered under their direction. Carey points out that it’s a non-partisan issue; corruption isn’t aligned with one specific political party, and the option to come forward with allegations of misconduct is a courtesy that should be afforded to all.
Whether or not confidentiality agreements are ethical is a moot point, and Carey does recommend continuing to use them when necessary – but, sooner or later, one can safely assume that the landscape of severance agreements will change, arguably for the better.
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