If one of your resolutions for 2022 is to start that business you’ve always dreamed of, don’t think that you can avoid the big question of titles. When you’re starting out, it might feel difficult to be so formal to decide who is the founder or CEO. Unfortunately, some of the biggest disputes occur over money and/or power. As you grow, the less distinction your organization has between people’s duties and roles, the more conflict you’ll have. Working through these decisions before you bring more people into the business can help you avoid many problems.
Titles aren’t about ego
When you work for a large organization, the structure of each position is already built in. In a startup, you have to create that structure. Your engineer shouldn’t be responsible for bookkeeping, nor do you want two people handling the same duties. It just creates confusion and resentment. By defining people’s roles, everyone is on the same page and knows what they are responsible for.
Titles can prevent legal issues
Conflicts over titles can cost a startup a lot in legal fees when someone sues. Remember the Winklevoss twins and Zuckerberg? They settled for $65 million, a mix of Facebook shares and cash. Snapchat ended up settling with Reggie Brown for $157.5 million in a lawsuit against the co-founders. These may be high-profile cases, but one search of co-founder lawsuits brings up hundreds, if not thousands, of other cases. Pinterest was accused of not paying one of its co-creators. Square was sued by Robert Morley, who alleged he should be a co-founder of the company because he invented the card reader but was not included on the patent. Win or lose, the costs of defending legal actions goes far deeper than finances.
Titles are confidence
When presenting to investors, having clear titles shows the investors that you and your co-founders can have tough conversations about who owns the company and its intellectual property. It demonstrates that you have a solid foundation for your business. Even if you never need investors, titles give your business structure.
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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