Join us for the second episode with guest Michelle Rehwinkel Vasilinda. Michelle is a former member of the Florida House of Representatives, representing the 9th District, which includes most of Leon County, from 2008 to 2016. Her insight into State politics, current bills, and how all of this impacts citizens, employees and businesses is unique and interesting. Michelle's perspective on the current legislative session with the backdrop of the Coronavirus are the ingredients of an awesome episode of Business Matters.

At the recording of the show, we are dealing with the fall out from the Coronavirus and the energy war between Russia and OPEC. The price of oil has plummeted and the stock market is now officially in a bear market. Major events are being canceled as schools and businesses evaluate how to change their delivery of products and services. Resiliency and Adaptation is a hallmark of America and is the American Way. Difficult times force people to think outside the box, to adapt to the challenges and create new solutions and a 'better way'. 

We discuss a wide range of hot topics that are relevant today, including how schools will function if they don't have classes in the school, how business will operate and survive and in fact create new and better solutions. How will the OPEC/Russia conflict over oil impact the energy industry? We have had conflicts over energy and the price of oil before and it forced us to become energy independent by using our own oil reserves, fracking and natural gas. What is the next energy frontier? America is strong and will overcome the turbulence.

The Florida Legislature is in the final scheduled week, but will it end on time? E-Verify and other bills may cause session to be extended. Of course we talk about the Coronavirus, and the impact in Florida on businesses and the education system. Governor DeSantis signed Executive Order Number 20-52, COVID-19 Public Health Emergency to assist the State of Florida efficiently respond to the challenges presented by the virus.

We also discuss the relationship of E-Verify, Coronavirus and the $15/hour minimum wage. Will E-Verify level the playing field? Should Florida wait to implement E-Verify requirement until after the Coronavirus impact is over? How does the $15/hour help or harm the economy in Florida. Check out this episode for a lively, informative and entertaining discussion.

Oliva: Florida Senate E-Verify Plan Un-American 

https://www.wlrn.org/post/oliva-florida-senate-e-verify-plan-un-american

Should lawmakers consider Coronavirus before enacting E-Verify requirements? 

https://floridapolitics.com/archives/322295-should-lawmakers-consider-coronavirus-before-enacting-e-verify-requirements

Senate approves E-Verify requirement, sens to House for Approval 

https://floridapolitics.com/archives/322479-senate-approves-e-verify-requirement

Join us for this episode with guest Michelle Rehwinkel Vasilinda. Michelle is a former member of the Florida House of Representatives, representing the 9th District, which includes most of Leon County, from 2008 to 2016. Her insight into State politics, current bills, and how all of this impacts citizens, employees and businesses is unique and interesting.

We discuss a wide range of hot topics that are relevant today. The Florida Legislature is in the final scheduled week, but will it end on time? E-Verify and other bills may cause session to be extended. Of course we talk about the Coronavirus, and the impact in Florida on businesses and the education system. Governor DeSantis signed Executive Order Number 20-52, COVID-19 Public Health Emergency to assist the State of Florida efficiently respond to the challenges presented by the virus.

We also discuss the relationship of E-Verify, Coronavirus and the $15/hour minimum wage. Will E-Verify level the playing field? Should Florida wait to implement E-Verify requirement until after the Coronavirus impact is over? How does the $15/hour help or harm the economy in Florida. Check out this episode for a lively, informative and entertaining discussion.

Oliva: Florida Senate E-Verify Plan Un-American 

https://www.wlrn.org/post/oliva-florida-senate-e-verify-plan-un-american

Should lawmakers consider Coronavirus before enacting E-Verify requirements? 

https://floridapolitics.com/archives/322295-should-lawmakers-consider-coronavirus-before-enacting-e-verify-requirements

Senate approves E-Verify requirement, sens to House for Approval 

https://floridapolitics.com/archives/322479-senate-approves-e-verify-requirement

 Governor's Executive Orders - https://www.flgov.com/2020-executive-orders/

Guest Terry Madigan gives practical tips on legal documents that should be in place to prevent heart ache and pain when separation happens with business partners, employees or in a business transition situation. Check out this episode for nuggets of knowledge from long-time Tallahassee attorney, Terry Madigan.

This show does not provide legal advice and Provider is not a law firm.

Top 10 Legal Documents For Small Businesses

 LINKILAW JANUARY 22, 2018 LEGAL DOCUMENTS

Top 10 Legal Documents For Small Businesses

So, you’ve got the idea and are all psyched to get going! But one thing holds you back every time you try to get the ball rolling; where do I start? do I have all the right documents to ensure I have a working business?

These are the 10 most important legal documents for small businesses: 

1. Memorandum Of Understanding

When you are ready to start your own business. The very first thing you need to do is to ensure that you and your business partners are committed to a common course of action. A memorandum of understanding, although not legally binding, is the first stage before a formal contract. It is a way of solidifying a deal and is often used to make sure all parties are on the same page. This document establishes your intentions and will spell-out the essential terms of your agreement.

A memorandum of understanding will also help ensure that expectations are aligned between business partners. It makes clear what you can and cannot expect from one another.

2. Memorandum Of Association & Articles Of Association

When your business idea is on track it is time to officially set-up your business. You will need a Memorandum of Association and Articles of Association, both of which are essential founding legal documents for every business in the UK.

The Memorandum of Association sets in stone your intention to form a company, while, the Articles of Association establish the rules about running and owning it. They also define the purpose of your business as well as the basic rights and obligations of directors and shareholders.

Both are standard legal documents and may be easily amended to add any provision that you may wish to include to better reflect your vision. Don’t worry about getting these drafted by a lawyer from the very start, because, when you incorporate a private limited company in the UK, you will automatically be provided with model articles.

3. Shareholders’ Agreement

The most important legal document for any business regardless of size; is the Shareholders’ Agreement.

To ensure the smooth running of your business, a well-drafted Shareholders’ Agreement is required to outline the relationship between shareholders and to establish their respective rights and obligations. Among other things, it defines each party’s proportion of shares, profit sharing and the company’s decision-making procedures. Without one, in the event of a dispute or simple doubt you will have to rely on the narrowly-drafted constitutional documents, namely, the Memorandum of Association and Articles of Association (see above). 

A Shareholders’ Agreement serves the purpose of safeguarding shareholders’ interests in various circumstances. It allows you to protect your investment in the business by including clauses that force shareholders to sell their shares back to you in certain sets of circumstances.

4. Non-Disclosure Agreement

A non-disclosure agreement creates a trusting relationship between the signatories. You may use it to protect any kind of information that you may want to share but wish to remain confidential.

It is always useful if your business involves an innovative idea or know-how. This legal document is also commonly used when presenting a new idea or product to investors, or when dealing with third parties i.e. contractors, distributors.

If you do not have a non-disclosure agreement in place, you may risk losing your intellectual property rights to your product and brand name. The people or businesses you share your business ideas with, may share them with others, or even implement them themselves. You may as a result be exposed to competition and face information leaks that could lead to loss of potential investment opportunities.

5. Directors’ Service Agreement

Directors are responsible for running a business and this is why their authority needs to be clearly defined to avoid any complications. Think of a Directors’ Service Agreement as an employment agreement which deals with the directors core duties towards the company.

It outlines the rights and obligations of directors that go beyond the basic duties that are imposed on them by law. The document will typically include a definition of the director’s role in the company, the salary, working hours as well as provisions regarding termination of employment.

It is a legal requirement to have some form of written agreement between your business and its directors within 2 months of a director beginning work.

6. Employment Agreement

Needless to say that once your business starts expanding you will need an Employment Agreement for any new recruits. An Employment Agreement will specify the employee’s role but most importantly, it will limit the employer’s liability.

It is necessary to put one in place as in the absence of a written agreement, default legal provisions will apply which tend to favor employees.

Do not forget to consider the types of staff you may want to hire (i.e. intern, consultant, contractor) as a different type of employment agreements will be needed in each case.

7. Terms & Conditions For The Supply Of Goods Or Services

It is fundamental to define the terms on which you trade with your clients when supplying goods and/or services. Your business will need to have a comprehensive set of Terms and Conditions both when acting as a supplier and as a buyer during its lifecycle.

This essential legal document includes information on contract formation as well as product and service specifications. It deals with payment process, delivery, cancellations and returns issues. As a business owner it is important to include provisions to limit your liability and to account for the event of insolvency as well as to determine the applicable laws in case of a dispute.

Your Terms and Conditions will be the main point of reference in case of dispute and therefore will have a great impact on your business. You will find that standard Terms and Conditions will usually apply, however, they can be industry specific. So, it is well worth getting tailor-made legal advice.

8. Website T&Cs

You might be wondering if anyone actually reads those, but, Terms and Conditions are essential for any website owner. They form an online agreement between the client and the business that outlines each party’s rights and obligations and it also provides basic guidelines on how to use the website.

So, why are Website Terms and Conditions needed? Without them you risk being exposed to liability for your website’s content and any fault that may arise as a results of its use. They also help safeguard your own intellectual property as well as your user’s data.

This legal document will highly vary depending on the type of business in question, it, therefore, is essential to get terms and conditions that reflect your business and do not expose you to any uncertainty.

9. Cookie Policy & Privacy Policy

As a website or app owner, you will probably use cookies to provide a customised and user-friendly experience to your online users.

A cookie is a small text filed that is stored onto the user’s computer which gathers information. A Cookie Policy will inform users about the use of cookies. It will explain which types of cookies are used, the kind of information they gather, their purpose, and finally the procedure of deleting the cookies.

Given the widening privacy concerns it is required by law to have an extensive Privacy Policy that explains how your business collects, uses, discloses your customer’s personal data. The policy will have to focus on personal information that directly relates to the customers (i.e. name and address) to prevent them from exposing their identity.

This is particularly important in light of the forthcoming General Data Protection Regulation which will come into force in May 2018 and will impose fines of up to €20 million on businesses for privacy breaches.  

10. Software Development Agreement

Lastly, you may need a Software Development Agreement if software is being developed as part of your business. This agreement will outline your relationship with your developer and will map out the overall development process. Typically, the developer working for your will develop the specified software and will transfer the IP created back to you.

This technical legal document will set the scope of the project, the payment for the work and will address any confidentiality concerns. One cannot stress enough the importance of having in place a Software Development Agreement as in its absence you may risk getting an unusable or faulty software. Even worse, the developer could run away with valuable information about your business.

Have in mind that you will need to create a new contract for every new software as they may vary considerably due to their nature.

Getting the right legal documents drafted by specialist lawyers is a must for your small business. They are essential for a successful business to kick-off and ensure all you hard work does not go to waste.  

Another informative episode about the expected impact of a $15 per hour minimum wage in the State of Florida. In this episode, Charles Musgrove and guest Drew McLeod, restaurant owner, discuss the unintended consequences of what is likely to happen if this Amendment passes in Florida. Drew has spent over 40 years in the restaurant industry and has owned and managed several successful restaurants in and around the Tallahassee, Florida area. Drew talks about the financial challenges that already exist in the industry and the thin profit margins. The direct impact to his business will be immediate. The long-term impact will likely force the independent, full-service restaurants to change their business model or go out of business. The unintended consequences of this legislation will ripple through each business and the industry. Other pay grades will be impacted, workers' compensation insurance, payroll taxes as well as other employment costs will go up along with the minimum wage increase. Check out this episode to hear it from an owner in the business that will feel the impact.

Small Business and the Fight for $15

A new study shows how a rising minimum wage hurts little companies.

By 

The Editorial Board

Dec. 15, 2019 4:17 pm ET

Here’s another volley in the debate over the “Fight for $15”: As the federal minimum wage rose from 1989-2013, small businesses in affected states suffered “lower bank credit, higher loan defaults, lower employment, a lower entry and a higher exit rate.”

That’s according to a study last week from the National Bureau of Economic Research. The analysis by three professors at the Georgia Institute of Technology exploits the fact that many states—now more than half—set their own minimum wages higher than the federal standard. This provides a natural control group. When the nationwide minimum goes up, how do the states where it applies fare in comparison?

Start with data on one million loans, averaging around $100,000, made through the Small Business Administration. For each $1 increase in the minimum wage, the authors estimate that loan amounts dropped 9% more in the affected states. The risk of default was 12% higher. The average credit score for small companies in those states showed “a sharp decline.” Business entries fell 4% in the year the minimum wage went up. A year later, business exits rose 5%.

These results, the authors say, hold throughout various statistical analyses, such as while controlling for local economic conditions. The effects are stronger in businesses like restaurants and retail, which rely on low-skilled labor. Smaller and younger companies are more severely affected as well. In short, the authors conclude: “We find that increases in the federal minimum wage worsen the financial health of small businesses in the affected states.”

By now some readers are probably thinking: Well, duh. It does not take a University of Chicago Ph.D. to suspect that raising the price of labor will make it harder to sustain a small, labor-intensive business. Don’t forget that there’s no cost-of-living adjustment: A $15-an-hour federal minimum wage would apply equally to a French bistro in Manhattan and a pizza joint outside Manhattan, Kan.

Many progressives still insist this is a free lunch, and most of the Democratic presidential candidates support raising the federal minimum wage to $15. That includes the so-called moderates, like Amy Klobuchar and Mike Bloomberg. They ignore the millions of small businesses that are trying to make payroll and grow.

The churn of companies with fewer than 10 employees, this study says, accounts for “more than 70% of job gains and losses in 2018.” No matter what politicians say, inhibiting that dynamism hurts the smallest businesses and the least-skilled workers the most.

This is from a recent article about the subject.

Seattle is experimenting with a $15 minimum wage — here are the results so far

In this episode Charles Musgrove and guest Taylor Hodges with Southern Capital discuss important information about disability insurance and life insurance. These policy types provide the beneficiary and owner a method to cover for those events that cannot be paid from available cash. 

From Smart About Money

Why You Need Disability Insurance

Disability insurance provides a source of income to people who are unable to work due to an accident or illness. Remember that your earning power is one of your greatest financial assets. 

Without disability insurance protection, workers and their dependents are “living on the edge,” at risk of losing their homes and investments. If you need disability insurance, take a look at the details:

• The average disability claim lasts almost 13 months and mortgage foreclosures due to disability occur 16 times as often as they do for death. Yet, more than 40 percent of full-time workers do not have coverage in the event of a short- or long-term disability to protect against a loss of income.
• Research indicates that one-third of employed Americans will become disabled for at least 90 days at some point in their career. Yet, lack of disability insurance is a common financial error.
• Adequate disability policies generally need to be purchased individually from an insurance agent. While some employers provide disability coverage, it is generally short-term and may replace only a small portion of a worker’s salary. In addition, if the employer pays for coverage, benefits are taxable.
• Disability insurance is especially critical for self-employed workers and those who lack the ability to “bank” employer-paid sick leave. Financial experts generally advise purchasing a policy to replace about two-thirds (60 percent to 70 percent) of a worker’s monthly income. Insurance companies usually don’t provide coverage above this or it would discourage people from returning to work.
• Two key features of disability insurance, that greatly influence its cost, are the definition of disability and the elimination period. “Own occupation” policies are more expensive because they kick in when you are unable to perform duties of the job for which you are trained — which means, even if you’re still able to do other types of jobs, but you are not able to do your chosen profession, then you can collect on the disability insurance. On the other hand, “any occupation” coverage defines disability as the inability to do any type of work. Many insurers also offer “split definition” policies that use an “own occupation” definition for several years, followed by an “any occupation” definition later on.
• The elimination (waiting) period is the number of days after a disability begins before benefits are paid. The longer the elimination period (for example, 90 days versus 30 days), the lower the premium for a specified amount (for example, $1,500 a month) of disability insurance.
• Read the fine print. Look for a disability insurance policy that is non-cancelable or guaranteed renewable and pays residual benefits to make up for lost income when a worker is unable to work at full capacity. For example, if an insured person goes back to work three days a week at 60 percent of full pay, the benefit would be prorated to reflect the actual amount of income lost.
• Review the recurrent disability clause that describes what happens if an insured person becomes disabled again from a preexisting disability. For example, if someone becomes disabled again from the same cause, say, within six months of returning to work, they may not have to wait for another elimination period.
• Consider purchasing a cost-of-living rider to protect the purchasing power of monthly benefits. Also check provisions related to disability benefits provided by an employer disability policy or Social Security. Sometimes income from these sources will be considered part of the policy benefit.
• Consider purchasing a policy for the remainder of your working life (until age 65, for example).
• Work with an independent insurance agent to shop around among competing carriers.
• If you are unable to qualify for disability insurance at an affordable price consider investing the amount that you would have paid monthly for premiums, to build up your emergency reserves.
• In a divorce decree, require an ex-spouse to purchase and maintain disability insurance if you are dependent on his or her income for support payments.

From Article by Adkins Insurance

You are 7 times more likely to become disabled before age 65 than to die, according to statistics and marketing research organizations. This startling statistic brings to light the importance of owning the correct type of insurance, even if you are young and healthy. Life insurance and disability insurance are very different, so how do you prioritize?

Life Insurance

Simply put, life insurance provides financial protection for your loved ones should something happen to you. You may also gain access to living benefits, such as cash withdrawals from Permanent type plans, or Living benefits that may be available to you in a Term plan should you become ill from a terminal illness.

You’ve probably heard of the different types of life insurance policies, for example term or permanent insurance. Term insurance policies provide protection for a set period of time. If you’re young and healthy, you may be tempted by the short-term security and lower prices of a term contract, but permanent insurance policies can often be the better deal in the long run.

Disability Insurance

To many, disability insurance is viewed as an unnecessary or unaffordable expense, and Social Security Disability will take care of them. Social Security Disability could take several years to receive any benefits and in most cases is not sufficient to a beneficiaries’ current needs.

Should you become disabled, your private disability insurance policy is designed to replace your after-tax income. Typically polices are written to replace 67% of your pre-taxed income. Disability policies generally provide monthly payments to you to cover your needs instead of
covering specific expenses.

Types of disability plans are some short-term and long-term. Generally, short term policies are written for benefits from 2-5 years and Long-Term disability policies are to age 65. Your policy will describe the definition of disability and most polices will require you to be disabled for a set amount of time before you begin receiving your benefits, so be sure to take a good look at the specifics of your plan before signing any contracts.

In this episode, Charles Musgrove talks with nonprofit expert and consultant, Alyce Lee Stansbury about effective boards. Board members play a vital role in the success or failure of nonprofits. Alyce Lee talks about the importance of nonprofits in a community and she shares her tips on what should be done to enhance the success rate of a nonprofit board. Learn how to be a better board member and how to improve the board that you serve. 

Other topics discussed on this episode:

• Importance and role of nonprofit sector
• Nonprofits are businesses [501c3 is a tax designation, not a business plan]
• Role and purpose of nonprofit Boards
• What to ask/consider before agreeing to serve on a nonprofit Board
  • Do you have a passion for the mission and time to serve?
• Need for regular board self-assessment
• Importance of paying competitive salary for chief Executive
• Why Boards fail [i.e. good, bad & the ugly of board service; what can go wrong]
• What high performing Board members need to know/do to be effective & enjoy the experience

Alyce Lee Stansbury, CFRE, Founder & President of Stansbury Consulting, is a nonprofit expert, 25-year fundraising veteran, and seasoned advisor in nonprofit management and board development. She has raised millions of dollars and helped her clients grow fundraising results by over 200%, build high-performing volunteer boards, and exceed campaign goals by 45%.

She is nationally certified by Association of Fundraising Professionals as a Master Trainer in Fundraising, past President of the Big Bend chapter of AFP, and the chapter’s first recipient of the Outstanding Fundraising Professional Award. She has maintained the Certified Fund Raising Executive (CFRE) credential since 2002.

Alyce Lee is a well-respected, trusted advisor and sought-after speaker throughout Florida and the Southeast.  She co-writes a weekly column called, “Notes on Nonprofits”, for the Tallahassee Democrat – USA Today Network.   She is a founding Board member and Past Chair of the Institute for Nonprofit Innovation and Excellence in Tallahassee and has served on numerous state and local boards.

Top 15 Non-profit Board Governance Mistakes

Posted on October 5, 2009 by Ellis Carter

This list was started as the inaugural post to CharityLawyer Blog. The post struck a nerve, was mentioned by the Chronicle of Philanthropy, the Nonprofit Quarterly, and numerous bloggers and twitter users. San Francisco tax-exempt organizations lawyer and publisher of the Nonprofit Law Blog, Gene Takagi, reviewed the list and added five more governance mistakes from his own experience. The expanded list is instructive and therefore I have posted it in its entirety here.

1. Failing to Understand Fiduciary Duties. When you volunteer to serve as a director or officer of a non-profit, you accept the responsibility to act with the duties of good faith, due care and loyalty. You also accept the potential liability for failing to fulfill those duties. Increased scrutiny from the I.R.S., Congress, state attorneys general, the Department of Justice, donors and the media require vigilance at every step. It is no longer sufficient to rubber stamp committee or staff recommendations or to simply “abstain” from dicey decisions. Today, board service comes with real responsibilities and real consequences for those that fail to live up to them.
2. Failing to Provide Effective Oversight. Boards are entitled to delegate tasks to committees, officers, staff, or in certain cases, professionals, but only if they perform sufficient oversight. Oversight is commonly exercised through policies and procedures so long as the board ensures that the policies and procedures are actually followed. Common oversight mechanisms include review of financial statements and the annual Form 990 as well as the implementation of various governance policies. Popular governance policies for nonprofits include conflict of interest policies, executive compensation policies, travel and expense reimbursement policies, whistleblower policies, etc. Difficult tasks that require more time and focused attention can be delegated to committees. Common governance committees include those designed to oversee finances, investments, audits, and compensation.
3. Deference to the Executive Committee, Board Chair or the Organization’s Founder. No one owns a tax-exempt non-profit. No one committee, director, or individual can control the organization. The executive committee, if one exists, is typically charged with acting on behalf of the board when the board is not in session and cannot be easily convened. It is, however, accountable to the full board and should not be permitted to operate as a “mini-board.” The chair’s primary duty is typically to preside over board meetings and to act as a liaison between the board and the chief executive. The chair does not have the power to override decisions of the board. Similarly, the founder may act as the chief executive and run the day to day affairs of the organization. The founder may also sit on the board, but even founders serve at the pleasure of the board. The board has a duty to review the performance and set compensation for the chief executive and if necessary, censure or even terminate the chief executive.
4. Micro-managing Staff. For a non-profit organization with paid staff, once board members demand keys to the organization’s offices and start making direct demands on staff that report to the chief executive, the board has crossed the line. The board’s key duties are to provide oversight and strategic direction, not to meddle in the organization’s day to day affairs. Board members who cross this line are undermining the authority of the chief executive to their own detriment and should be prepared to quit their day jobs. Similarly, staff should not invite micromanagement by asking the board to take on day-to-day tasks that the staff should be handling. The size and budget of smaller organizations necessitates some blurring of these lines, but board members and staff should know their roles and attempt to adhere to them as much as possible.
5. Avoiding The Hard Questions. It is can be uncomfortable to ask tough questions or to disagree with one’s fellow board members. However, group think rarely leads to sound decision-making. Often, the most valuable board members are the ones who, calmly and respectfully, speak their mind. It is important to set a tone that encourages a free exchange of ideas, both good and bad. Open, vigorous discussions about key issues should be encouraged. A board that passes every resolution “unanimously” should evaluate whether it needs to do more to encourage a thoughtful and open discussion.
6. Insufficient Conflict Management. If a conflict of interest is with an insider, their family member or business, its not enough to simply disclose the conflict and have the disinterested directors approve the transaction. In such cases, the disinterested members of the board need to consider alternate arrangements that do not give rise to a conflict of interest. If after considering alternatives, the board still finds the transaction with the insider is in the best interest of the organization, then the board should carefully document the basis for the decision and the fact that the interested director did not participate in the deliberations or vote. The best practice is to follow the procedures outlined in the intermediate sanctions regulations to properly analyze and document the proposed transaction.
7. Lack of Awareness of Laws Governing Tax-Exempts. Directors that hail from the for-profit world often assume nonprofits operate in a less-regulated environment. In reality, the opposite is true. Tax-exempt organizations enjoy an array of tax and other benefits. To ensure those benefits are not exploited, Congress and local governments have imposed additional legal requirements that tax-exempts must follow. It is essential that directors of tax-exempt entities be aware of the various federal, state, and local laws that apply to the organization. Many directors are unaware whether they are governing a private foundation, a public charity, a supporting organization, or another form of tax-exempt entity, all of which are subject to different limits on their activities. Board members should understand, at a minimum, the penalties they face for overpaying key employees or other insiders, for engaging in excessive lobbying or political activities, for accommodating tax shelter transactions, for making egregious bad bargains on behalf of the organization, the impact of failing to pass the public support test, etc. Ongoing board training and orientation for new board members is often the best solution.
8. Operating with Outdated, Inconsistent Governing Documents. Over time, many organizations change their mission and purpose without updating their governing documents. Similarly, many organizations develop governance practices that do not comply with their original governing documents. For example, it is not uncommon to see bylaws that call for voting members although no member votes have ever taken place or bylaws with a term that calls for the cessation of the organization on a date that has long since passed. Frequently, these issues stem from copying another institution’s bylaws without regard to the distinctions between the organizations or current law. Encourage compliance by conducting regular reviews of the governing documents and checking the bylaws before electing additional officers or directors, creating additional committees, adopting amendments, etc.
9. Airing Disagreements Outside the Boardroom. Every board’s motto should be “what happens in the boardroom stays in the boardroom.” Inherent in the duty of loyalty that all board members must adhere to, is an implied duty of confidentiality. Once an issue is settled by board vote, the board members who voted against the majority must present a united front. If a vote is so disagreeable that a board member cannot carry on in this manner, the board member should consider resigning. In extreme cases, if the board member believes the corporation’s rights are being violated, the board member could join together with other like-minded board members to bring a derivative suit to enforce the organization’s rights.
10. Failure to Cultivate Board Diversity. The initial board is typically made up of friends and advisors of the organization’s founder. Over time, the initial board may reach out to their trusted friends and advisors to fill vacancies. This approach to board recruitment can lead to the “usual suspect” syndrome. This is where the same individuals who went to the same schools, belong to the same clubs, and hail from the same neighborhoods and professions are institutionalized onto an organization’s board. If your organization is run by a group of “usual suspects,” consider mixing it up by creating a matrix of skills, experiences, and backgrounds that would add valuable perspectives to the board. Those with law, accounting, and fundraising skills are obvious choices. Substantive mission- related skills are also important. For example, an educational organization may want to recruit a retired teacher or school administrator; whereas, a domestic violence shelter may want to include a policy expert, social worker, or someone who has been a victim of abuse.

Plus, Gene Takagi’s excellent additions:

11.    Recruiting and Selecting Board Members Without Due Care. We sometimes select friends, relatives, and business associates often because we believe that they will share our vision, support our views, and make meetings pleasant. And sometimes because we can’t find anyone else. We sometimes select influential and wealthy individuals because they will contribute substantial sums to the organization and connect us to their network of other influential and wealthy persons. All of this may be well and good, but only if we make sure that we select directors who are going to attend meetings, provide real oversight, and govern using their independent judgment.
12. Failing to Educate and Motivate Board Members. If we’re not in startup mode, we may be stuck, at least temporarily, with a number of directors who regularly fail to meet their legal duties of care and loyalty. Amidst all the media attention on cases involving intentional misconduct, we should recognize that the vast majority of directors simply don’t understand what they are supposed to be doing and believe that they will not be held accountable for their inaction. It’s up to the president, chair, executive director, and really each board member to correct this lack of understanding. While this may be an ongoing (and seemingly Sisyphean) process, we can make some quick fixes. Set up a basic orientation process. Invite a nonprofit-exempt organizations lawyer to present to the board (directors’ ears tend to perk up when they hear the word “liability”). Regularly send out information to the board about the organization’s major issues (it’s okay to be repetitive if the issues remain outstanding) and how board members might help. Have the board conduct a SWOT (strengths, weaknesses, opportunities, threats) analysis on itself (not just the organization) and create an action plan based on the analysis.
13. Failing to Document Actions Appropriately. Some of us adopt minutes that are virtual transcripts of board meetings. Others adopt minutes that only document actions without any mention of the process or deliberations. What’s proper? Well, it depends. But often what’s most appropriate lies somewhere between these two extremes. Documenting every discussion could create greater exposure for liability and makes it unlikely that minutes will be reviewed except in cases where we are looking for something specific. On the other hand, documenting only actions can result in a loss of institutional knowledge about why certain decisions were made and provide less evidentiary support of a board’s due care in making decisions. Documenting nothing is not an acceptable alternative, but it’s a common problem. Do we incorporate minutes of board committee meetings into our minute books? Do we even have minute books?
14. Failing to Review Program Effectiveness and Efficiency and Take Appropriate Follow-Up Actions. Many of us board members understand that we are fiduciaries and have a responsibility to provide financial oversight. And we “know” that our charities are doing great work because the executive tells us so. But how do we really know this? And if charities exist to provide some sort of public good, and not to maximize profits, isn’t programmatic oversight just as, if not more, important than financial oversight?
15. Failing to Hold Executives (and Nonparticipating Directors) Accountable. This one earned a retweet from NY Times philanthropy correspondent Stephanie Strom. How many of us give regular performance reviews to our executives? Do we just give pats on the back (which we should do whenever deserved) or do we also take a hard look at deficiencies and take corrective actions? Many nonprofits are transitioning to younger, less experienced leaders as the boomers start to retire or move to other positions. Mistakes happen and may happen more often with new leaders. How do we respond to this? Do we document errors in judgment, complaints, abuses of authority? Are we prepared to fire an executive even without malfeasance where he or she is just not getting the job done? And what about removing directors who don’t show up at meetings or otherwise fail to fulfill their governance responsibilities? Tricky stuff, but don’t we need to deal with it?

Ellis Carter is a nonprofit lawyer with Caritas Law Group, PC. To contact Ellis, call 602-456-0071 or email us at info@caritaslawgroup.com.

In this episode, host Charles Musgrove discusses employee terminations with attorney Scott Callen. There are many factors that the employer should consider before terminating an employee. Terminations are sensitive for both the employer and employee and it is a critical time in the life of the business and the individual employee. Make sure it is the right course of action and that the right steps are taken. Not doing so, could result in unnecessary pain and suffering to all parties involved. Listen to this episode for more nuggets of knowledge.

Below is an article published on-line by Inc. on this subject. 

How to Fire an Employee Without Being Sued

Firing an employee may be a sticky subject, but by creating a plan of action and following procedure, you'll avoid lawsuits associated with terminating an employee illegally.

By Inc. Staff

Firing an employee may be a necessary act but it has the potential to be a legal minefield. Terminations can lead to legal claims based on a variety of potential allegations, including discrimination, retaliation, wrongful discharge, wage and hour liability, defamation, and so on. Mishandle firing an employee, or terminate someone in the heat of an argument without paving the groundwork, and your business and its employees could be paying for it for years to come. 

And, yet, firing an underperforming or troubled employee may be the best move for your business. It may improve morale among better performers. It may rid the business of a cancer.

'Firing an employee is both the worst day of your life and the best day,' says Jerry Osteryoung, director of outreach at the Jim Moran Institute at Florida State University's College of Business. 'That's because when you let someone go it affects their family and their livelihood, and it's tough. But it's also the best day of your life because, normally, if you have to fire someone, that person has been a pain in the butt for a while, and it's time for them to go.'

In business, however, it's important to make sure that you prepare well before firing an employee and that you follow the law and your own company procedures. The following pages outline steps to lay the groundwork for firing an employee, holding a termination meeting, and following up after termination. 

How to Fire an Employee: Prepare to Fire an Employee

The groundwork for an effective termination of employment should be laid long before the termination decision. 'The biggest mistake people make is they don't prepare for it. They don't work with the employee ahead of time to help the employee succeed so that firing is a last resort. People tend to put up with behavior until they say, 'I'm through,'' says Nancy M. Cooper, chair of the labor and employment group of Garvey Schubert Barer, a law firm based in Portland, Oregon.

A firing should never be a surprise. If you have worked with an employee to identify problems, goals, and performance metrics, that employee is going to know whether they measure up or not. 'Once you go through everything and see that the employee is still not meeting expectations, nobody is going to be shocked,' Cooper says.

The first step is to make sure you have documented your efforts with the following:

• The company's employment application
• An employee handbook describing unacceptable employee behaviors
• Policies describing the company's right to discipline and terminate employees
• Job descriptions or other documentations that specify performance expectations
• Performance appraisals
• Records of disciplinary counseling and formal disciplinary action
• Written documentation of the findings of any internal investigation related to the termination

Since these documents will be legally discoverable in the event a former employee sues the company, it is critical they be clearly written, accurate, and do not contain 'inflammatory' statements about the individual.

It may be best to consult with a human resources attorney before taking steps to fire an employee to make sure you are covering the bases. 'The number one thing you have to make sure of is that you don't violate any laws,' Osteryoung says. 'There are a lot of plaintiff's lawyers who love to sue businesses because they failed or did not follow the correct procedures in firing an employee.'

How to Fire an Employee: Think Through, and Review, the Decision to Terminate

 An employee should never be fired on the spur of the moment, and especially not in the heat of anger, Cooper says. 'You want to take some time to reflect,' she adds. A decision to terminate employment should be reached only after careful review of all relevant facts and documents. 

An important, but often neglected, step in the termination process is obtaining a thorough and independent review of the decision.  Sometimes that involves calling in another set of eyes and ears – maybe the direct supervisor, a member of the human resources department, or in-house or outside legal counsel.  'If it's an incident, talk to people and make sure the employee you're focusing on is really the one to blame,' Cooper says.

The purpose of the independent review is to make sure that:

• The firing is justified by the facts
• The firing is legal under all applicable laws
• The decision to fire follows company policies and procedures, such as those in the employee handbook
• The decision to terminate is consistent with the company's handling of similar situations in the past, regardless of race, gender, age, etc. of the employee being discharged.

'You want an audit trail. You want to document everything,' Osteryoung says. 'You can't just say, ‘I've tried to talk to you 16 times already.' There are a litany of things you need to do.'

How to Fire an Employee: Hold a Termination Meeting

Even under the best circumstances, an employee discharge can be a difficult and stressful situation for the employee and the managers involved.  'More often than not the problem is that entrepreneurs wait too long to fire an employee,' Osteryoung says. 'If you have a problem employee, they don't get better. They can affect the morale of your whole workforce because others are thinking, ‘Why aren't you doing something about this problem employee?' It's like a cancer. The sooner you surgically remove it, the better.' 

By following the steps below, managers can reduce their anxiety about conducting an employee termination and can help the employee deal with the termination in a healthy way.

Prepare for a termination meeting. A termination meeting should be carefully planned in order to minimize potential legal liability, protect employees and company property, and reduce emotional distress to the employee being discharged, experts say.  Issues to consider include:

• Why hold a meeting?A termination meeting should be held face-to-face. Firing an employee via e-mail or text or over the phone is likely to anger the employee and contribute to feelings that they are being treated unfairly, Cooper says. By meeting in person, you are showing the employee respect and treating them the way you would want to be treated.
• Who should attend?Generally, at least two company representatives should be present. The employee should not be permitted to bring a lawyer, co-worker, or family member to a termination meeting. 'Always have a witness, preferably other management or someone at a higher level than the employee,' Cooper says.
• Where will the meeting be held? It is best to conduct the meeting in a private, neutral location, such as a conference room. If the office is a big, open area, then try to schedule the meeting after hours to provide the employee some privacy, Cooper says. The company representatives should be seated by the door so that, if the employee becomes hostile, he or she cannot block the exit, experts advise.
• What will be said during the meeting? A script should be prepared before the meeting so that the meeting can be kept short, not more than 5 to 10 minutes. 'Keep it factual,' Cooper recommends. 'The one who will be emotional is the employee.' The message should be simple: the employee is being terminated because they have failed to meet performance expectations or address other problems that you had already outlined with them.
• Are special security measures needed? In extreme situations, it may be appropriate to have security personnel standing by, depending upon how the employee is likely to react. At a minimum, have the employee's passwords, accounts, access to buildings, computers or other company assets disabled before the meeting to prevent the employee from doing damage to the business after they are fired.
• How will logistical matters be handled?Make sure to address how the employee's final paycheck will be delivered, how company property should be returned, and how long benefits will be continued.
• Will severance pay be offered in exchange for a release of claims? A company that does not have a severance plan subject to the Employee Retirement Security Income Act (ERISA) may want to consider offering the employee severance pay.  Generally, severance should only be awarded if the employee agrees to sign a separation agreement that releases the employee from any claims against the company, Cooper says. 'If you're just paying severance out of the blue and you don't get a signed release of claims, you have no protection,' she says. She advises against issuing severance unless it is a risky termination because that sets a precedent for other employees to expect severance if they are fired. 

How to Fire an Employee: Follow Up After the Firing

The terminating managers should attempt to keep the meeting professional, brief yet complete, under control, and humane.  You may want the employee to be escorted back to their office after the meeting to collect personal belongings and then be escorted out of the building.

One of the most important things to do in the termination meeting is to treat the employee with dignity and respect.  This can be demonstrated by showing sensitivity to the employee's reactions, wishing the employee success in future endeavors, and being willing to speak with the employee after the meeting to answer questions about his or her transition out of the company. The terminating managers should also write down what was said at the meeting, in the event of a lawsuit.

Employee discharges don't end with the termination meeting.  Several tasks have to be effectively managed after the termination, including:

• Informing remaining employees on a need-to-know basis about the termination
• Handling reference requests appropriately, consistently, and in a way that will reduce the potential for lawsuits
• Dealing with claims for unemployment insurance benefits or other benefits so as not to trigger further problems for the organization

These post-termination activities should be handled with the same degree of planning and care as the actions before and during the termination meeting. 'Once you let an employee go, you immediately have to have a staff meeting with those who need to know,' Osteryoung says. 'Tell the staff briefly what happened and why. You need to stop the rumor mill very quickly. But you don't want to provide too many specifics.'

On this episode, Charles Musgrove and guest Taylor Hodges from Southern Capital discuss a variety of topics including:

• The 529 College Savings Plan and how the 2019 SECURE Act has expanded the use of the plan assets
• The Safe Harbor provision
• Non-ERISA plans or the Golden Handcuff and practical examples
• Distributions from inherited retirement plans
• Balance of tax deferred vs after tax savings

1. 2019 SECURE Act:
   • Small business owners will receive a tax credit for establishing a retirement plan
     • Additional tax credit for adopting auto enrollment
   • New provisions to allow part-time employees with less than $1,000-hours to join 401K
   • Elimination of stretch provisions for beneficiaries
     • With a few exceptions, most non-spouse beneficiaries will have 10 years to withdrawal 100% from the inherited IRA – No RMDs during 10-year window
       • Will count as income to beneficiary – Shift assets to tax-free?
     • RMD age pushed back to age 72
       • Only for people who turn 70 ½ after January 1, 2020
     • Everyone should check to make sure their beneficiaries are updated
       • If beneficiary is a Trust, understand how it may effect beneficiary amounts and taxes on distributions

2. Executive Benefits
   • Goal for business owners is to attract, retain and reward good employees
     • ERISA – 401K, SEP, ESOP
     • Non-ERISA – NQDC, Phantom Stock, Golden Handcuff
   • Different for 8(a) companies due to program restrictions on income and net worth
     • Specialize in 8(a) – Unique planning process

3. Articles
   • The Hierarchy Of Tax-Preferenced Savings Vehicles For High-Income Earners:
     • https://www.kitces.com/blog/hierarchy-tax-preference-savings-vehicle-roth-high-income/
   • Tax Brackets Resource:
     • https://www.nerdwallet.com/blog/taxes/federal-income-tax-brackets/
   • 2019 SECURE Act:
     • https://www.kitces.com/blog/secure-act-2019-stretch-ira-rmd-effective-date-mep-auto-enrollment/
   • Don't Die Yet: New U.S. Law Will Muddle Estate Plans:

https://www.kitces.com/blog/tax-rate-equilibrium-for-retirement-taxable-income-liquidations-rothconversions/

In this episode, Charles Musgrove and guest Taylor Hodges with Southern Capital discuss the different types of retirement plans. From the simple to the complex, the plans offer a variety of options relating to participation, amount of contributions, access to the cash prior to retirement and many more. The 2019 SECURE Act is also discussed about how it impacts the Retirement Plans. 

Highlights of the types of Retirement Plans:

• Solo 401K - $19,500 / $6,500 catchup + up to 25% of business income for matching
  • Max is $57,000 total contribution + $6,500 for employee catchup
  • Can be used for spouse in business to double contribution amounts
  • Roth option available, solo 401K usually more expensive to setup and maintain
• SEP IRA – 25% of income up to $57,000/yr.
  • Matching contribution for all employees – very important
  • LLC is based on net income / S-Corp is based on salary
  • Usually inexpensive to setup and contributions are made by the employer only
• SIMPLE IRA (Saving Incentive Match Plan for Employees) - $13,500 / $3,000
  • Usually requires employer contribution or match
  • Usually two-year hold on the account for rollover and higher penalty for early withdrawal (25% instead of 10%)
  • Less expensive to setup and maintain than 401K
• 401K - $19,500 / $6,500 for 2020
  • Multiple features and contribution structures
  • Must understand plan testing – cannot discriminate
    • Owners and key employees cannot own 60% of plan assets
      • Owns 5%/ owns 1% and makes $150k +/ officer making $175k +
      • Must be fixed in calendar year
    • Safe Harbor Provision – employer matching for employees and allows employer to avoid plan testing
      • 3 matching options:
        • Non-elective – 3% flat
        • Basic Match – 100% of first 3% / 50% of next 2%
        • Enhanced Match – 100% of first 4%
      • 2020 IRA and Roth IRA contribution limits: $6k / $1K catchup
        • Income phase out for IRA deduction: single $65k-$75k / $196k-$206k MFJ
        • Income phase out for Roth IRA: single $124k-$139k / $196k-$206k MFJ

1. Articles
   • The Hierarchy Of Tax-Preferenced Savings Vehicles For High-Income Earners:
     • https://www.kitces.com/blog/hierarchy-tax-preference-savings-vehicle-roth-high-income/
   • Tax Brackets Resource:
     • https://www.nerdwallet.com/blog/taxes/federal-income-tax-brackets/
   • 2019 SECURE Act:
     • https://www.kitces.com/blog/secure-act-2019-stretch-ira-rmd-effective-date-mep-auto-enrollment/
   • Don't Die Yet: New U.S. Law Will Muddle Estate Plans:
     • https://www.kitces.com/blog/tax-rate-equilibrium-for-retirement-taxable-income-liquidations-rothconversions/

In this episode, host Charles Musgrove discusses the $15 minimum wage ballot initiative with the Samantha Padgett, General Council with the Florida Restaurant and Lodging Association. We talk about the status of this option being included on the November 2020 ballot, the potential impact to the hospitality industry in Florida if it passes and many more factors around this topic that will surely become more hotly debated as the November election date approaches. 

To provide some context to the subject, below is a recent article published by the Wall Street Journal.

Small Business and the Fight for $15

A new study shows how a rising minimum wage hurts little companies.

By 

The Editorial Board

Dec. 15, 2019 4:17 pm ET

Here’s another volley in the debate over the “Fight for $15”: As the federal minimum wage rose from 1989-2013, small businesses in affected states suffered “lower bank credit, higher loan defaults, lower employment, a lower entry and a higher exit rate.”

That’s according to a study last week from the National Bureau of Economic Research. The analysis by three professors at the Georgia Institute of Technology exploits the fact that many states—now more than half—set their own minimum wages higher than the federal standard. This provides a natural control group. When the nationwide minimum goes up, how do the states where it applies fare in comparison?

Start with data on one million loans, averaging around $100,000, made through the Small Business Administration. For each $1 increase in the minimum wage, the authors estimate that loan amounts dropped 9% more in the affected states. The risk of default was 12% higher. The average credit score for small companies in those states showed “a sharp decline.” Business entries fell 4% in the year the minimum wage went up. A year later, business exits rose 5%.

These results, the authors say, hold throughout various statistical analyses, such as while controlling for local economic conditions. The effects are stronger in businesses like restaurants and retail, which rely on low-skilled labor. Smaller and younger companies are more severely affected as well. In short, the authors conclude: “We find that increases in the federal minimum wage worsen the financial health of small businesses in the affected states.”

By now some readers are probably thinking: Well, duh. It does not take a University of Chicago Ph.D. to suspect that raising the price of labor will make it harder to sustain a small, labor-intensive business. Don’t forget that there’s no cost-of-living adjustment: A $15-an-hour federal minimum wage would apply equally to a French bistro in Manhattan and a pizza joint outside Manhattan, Kan.

Many progressives still insist this is a free lunch, and most of the Democratic presidential candidates support raising the federal minimum wage to $15. That includes the so-called moderates, like Amy Klobuchar and Mike Bloomberg. They ignore the millions of small businesses that are trying to make payroll and grow.

The churn of companies with fewer than 10 employees, this study says, accounts for “more than 70% of job gains and losses in 2018.” No matter what politicians say, inhibiting that dynamism hurts the smallest businesses and the least-skilled workers the most.