MAKE THE BEST OF THIS DIFFICULT TIME WHEN YOUR BUSINESS IS CLOSED OR SLOWED

If your business is either closed or running a smaller operation, now may be the time to step back, do some planning, and get your “house” in order.  It’s a good time to evaluate your focus and your customer base.  Do 80% of your revenues come from 20% of your clients?  Do 20% of your clients cause 80% of your headaches? 

From a legal perspective, here are some things to consider.

–    If you are an LLC, do you have an Operating Agreement?  Does it still work for your purposes?  Are your business partners treating you fairly or pulling their weight?

–    Are your restrictive covenants (Massachusetts noncompetes, confidentiality agreements, non-solicitation agreements, etc.) up to date with current law?

–    Do you use other Massachusetts employment contracts of some sort or even a written offer letter (which can be construed as a contract for a term in some circumstances)?  Have they been properly vetted and updated by a Massachusetts employment lawyer?

–    Do you have a standard severance agreement or separation agreement?  Is it up to date?  Does it fully protect you?

–    Do you have questions or concerns about laying off or firing employees?

–    Are your policies and procedures and employee handbooks up to date?  Including: sexual harassment; bring your own device policy; leave policies; work at home policies; earned sick pay; vacation; marijuana; etc.

–    Have you recently vetted whether your salaried employees are truly exempt under Massachusetts wage laws and the Fair Labor Standards Act?  There have been changes in the law.  Misclassification can come with great liability.

–    Do your commissions plans or commissions policies expose you to triple damages and attorneys’ fees?  There have been recent rulings in Massachusetts that could have devasting consequences.  Commissions are considered wages if due and payable and able to be calculated.

–    Has a Massachusetts employment lawyer vetted whether your “independent contractors” are really contractors, or will they be deemed to be employees, which could expose you to significant liability?

–    Do your standard contracts with customers, vendors and suppliers give you as much protection as you need?  Sometimes, one simple clause in a contract can make a world of difference.

–    Have you reviewed your lease?  Your other operating or service contracts?  Are they going to auto-renew?  Do you need to give notice?  Do you want to renegotiate them?  

–    Are your filings with the Secretary of the Commonwealth up to date?  

–    Have you had an insurance checkup with an independent broker?

–    If you are currently in litigation, do you need a second opinion regarding your goals and strategies?  Are your limited resources being put to good use?

–    Have you checked to see if your competitors are playing by the rules?  And do you have a strategy to make sure they do so?

By Adam P. Whitney: 617.338.7000