Category: Business Consulting

Freelancer Laws in California

Whether a worker is designated as an independent contractor or employee has significant consequences both for the employer and the worker. Most of these consequences are financial; employers are not required to pay unemployment insurance, payroll taxes, health benefits, vacation time, and more. In return, ideally, the contractor has more control over their schedule, how they perform the work, and what jobs they take on.

There is little doubt that many businesses have abused this system by miscategorizing employees as independent contractors in order to save money, but efforts at reform have been contentious, especially in California. Industry groups and even some worker groups have fought against legislative changes, arguing that freelancers will lose their independence and jobs will leave the state. 

Here is the current state of freelancer laws in California.

The ABC Test

The test for whether a worker should be categorized as an independent contractor or an employee as established by the California Supreme Court in Dynamex Operations West, Inc., and has since been codified and extended by the legislature in Assembly Bill 5. Under this law’s “ABC test,” a worker is presumed to be an employee unless the employer can demonstrate each of the following:

  • The worker is free from the control and direction of the employer in connection with the performance of the work, both under the contract for the performance of the work and in fact.
  • The worker performs work that is outside the usual course of the hiring entity’s business.
  • The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

If all of these do not apply, then the worker should be considered an employee, not an independent contractor.

Exceptions to the ABC Test

Not surprisingly, the law also recognizes quite a few exceptions to the rule stated above. First, there are a number of professions that are exempted. These include physicians, dentists, veterinarians, lawyers, architects, accountants, commercial fishermen, and more.

Also, if the worker provides one of a number of specific “professional services,” the ABC test does not apply. However, this is only true if the worker’s situation meets a variety of requirements, such as a separate business address and the ability to control their own schedule, which serve to establish the worker’s actual independence from the employer. 

The law’s exceptions are numerous, and many have their own list of unique requirements that must be individually evaluated.

Prop 22

In November 2020, California voters approved Proposition 22 by ballot initiative, which exempted app-based ridesharing companies from the requirements of AB 5. As a result, drivers for companies such as Uber and Lyft are not considered employees (as they would have been under AB 5), but independent contractors. In exchange, these drivers receive a few additional protections and benefits, though only while “engaged” in work for the companies.

If your business is unsure how to categorize its workers, or if you are a worker and believe you have been wrongly categorized as an independent contractor, contact Hoffman & Forde today for a consultation.

What You Need to Know About Business Legal Advisory Services

Business legal advisory services are a lot like preventative medicine:  people have a tendency to put them low on their list of priorities, but when a problem does arise everyone wishes they had done more to prevent it. At the heart of what a business advice lawyer does is prepare for worst case scenarios, and hopefully keep them from ever happening. 

Consider a few examples of how a business attorney can play a crucial role at different stages of your company’s lifetime.

Business Formation 

Whether you are starting a sole proprietorship, a corporation, or a nonprofit organization, the decisions you make at the formation and planning stage will have ramifications far into the future. It is critical to work closely with a business attorney throughout the process. 

The issues to be addressed here are numerous and diverse. Are your personal assets protected? How much control will investors have over the company? How can tax exposure be minimized?

Or take for example a partnership with two owners. The business starts out great, but over the years the situation changes. Personal relations become strained, the partners have differing visions for the company, or one of them simply wants out of the partnership. It’s important to have the assistance of a business advisory lawyer who can plan for these contingencies without pointing fingers. 

Contracts and Compliance

Your business is established and growing. Revenues are up, you have more employees, and maybe you’re thinking of expanding operations. You may not need in-house counsel, but you should definitely have your lawyer on speed dial by this point – someone who is already familiar with your business and can help keep things running smoothly.

As businesses grow, contracts tend to become more complicated. Rather than simply signing boilerplate agreements, now you may have more leverage to negotiate. Contract law is a jungle unto itself, however, and custom-tailored contracts require expertise to ensure you are covered in all situations. Contractual disputes can be similarly complex, and your business generally is best served by quickly handing them over to your attorney.

Compliance and liability issues also take on increased importance as the financial stakes go up. Anything from workplace accidents to digital security breaches can send a business reeling. An experienced attorney who is up to date on the latest changes in the law can help you establish best practices in order to prevent problems and keep your company protected when they arise. 

Succession

You’ve built the business from the ground up, but now you are ready to retire, or you want to establish what happens to the company if you die. Succession can be complicated and requires careful legal planning. A thorough valuation of the business is needed, as well as transfer instruments that will pass muster in court if necessary. Consulting with an attorney to create a clear succession plan helps ensure that your wishes are respected and the company can continue to thrive for years to come.

Consult a Business Attorney

Whatever stage your business is at, the attorneys at Hoffman & Forde are ready to provide comprehensive legal advisory services. Schedule a consultation today.

What to Look for When Hiring a Business Attorney

Business owners may not always have hiring an attorney at the forefront of their minds. But legal counsel doesn’t just apply to litigation or when your business is already well-established. In fact, it would prove beneficial to consult with a business attorney even before starting your enterprise. This way, you can avoid legal troubles down the road and especially if you’re a first-time business owner. Here are some things for you to consider when hiring a business attorney.

Experience

Check how long your potential attorney and law firm have been practicing. But in addition to the number of years in their particular practice area, are they also experts in their field?  Look for proven success as you review their track record.

Proven Success

Here are a couple questions for business owners to consider: What kinds of businesses have they helped and in what capacity? What is their track record based on available testimonials? Your business attorney should have a firm understanding of the differences between small business needs and large corporations, and have demonstrated success in serving different types of businesses.

Legal Specialties

Choose an attorney that specializes in business law but consider the firm that the attorney’s a part of. Boutique firms (such as Hoffman & Forde) have access to legal professionals that specialize in other relevant fields that are beneficial to business owners.

Pricing

Find out if your attorney provides clients with a sensible billing structure that ensures there are no unnecessary fees or surprises.

Accessibility

Is the attorney an effective communicator and do you have access to their legal team? Choosing a business attorney that is accessible, compassionate, and communicates well makes a big difference. Accessibility demonstrates dedication to clients. 

How Our Southern California Law Firm Helps Businesses

Whether you’re considering pursuing a startup or already have a business that’s pivoting, our Southern California law firm strategically advises our clients on all stages of a business’ cycle, from formation to succession. Your business may opt to retain us to serve as if we are their in-house general counsel or as consultants during the formation phase.

Entity Formation & Planning

 Hoffman & Forde is engaged in all aspects of our clients’ business formation and development, from conception through liquidity. We provide business and legal guidance to clients through all stages of development, from initial incorporation, to seed and angel investments, venture capital debt and equity financing, strategic investments, and more.

Contracts

Contracts are key to any business. Our business consulting law firm has extensive experience in drafting tailored contracts to meet our clients’ needs, including terms and conditions, distribution agreements, customer contracts and non-disclosure agreements, breach of contracts, and more. If you need assistance with contracts, we can help.

Corporate Governance

Our business attorneys help clients develop and implement corporate governance policies and procedures, including employment policies, to foster best practices and to help meet clients’ obligations under applicable law. With policies changing more frequently because of coronavirus, employers need to be even more aware of their legal rights and responsibilities.

Consulting

We counsel employers on regulatory, legal, and human resources issues to ensure compliance with employment laws. We also help our clients establish policies, procedures, and guidelines essential to their businesses. At Hoffman & Forde, we help business owners keep up with their legal requirements and duties, and provide superior legal advice and planning. Learn more about our business consulting practice or contact our business attorneys for a complimentary consultation today.

Is Now a Good Time to Start a Business?

With many businesses struggling or outright closing permanently, it may seem counterintuitive to start a new business in the middle of a pandemic or a recession. But did you know that some of the biggest companies today were started during an economic downturn? Today we take a look at why starting a new business in the midst of a pandemic is still a good idea.

Business Insider listed companies that got their start in the middle of a recession. The list includes giants such as Microsoft, General Motors, Hyatt, and Hewlett-Packard. Previous downturns also paved the way for mobile companies such as Square and Slack. NerdWallet was born during the 2008-2009 financial crisis and CEO Tim Chen lists these factors why a recession is the perfect time to start a business:

  • Better talent at cheaper costs
  • Inexpensive marketing
  • Less competition
  • Nimbleness of new businesses

Rashmi Menon, entrepreneur in residence at the University of Michigan’s Zell Lurie Institute for Entrepreneurial Studies, echoes some of Tim Chen’s sentiments in a New York Times article. She notes that “there is less competition for resources” during these times and “whatever changes we face, positive or negative, bring up new customer needs. And customer needs are at the core of any business.”

Most economic signs seem to say it’s crazy to invest in a business or to start one during challenging times. However, there are still many out there whose entrepreneurial spirits are undefeated. There are still people applying for small business loans and requesting EINs, albeit at a slower rate than previous years.

“There have been more than 500,000 applications for an employer identification number since mid-March, according to the Census Bureau, although that is down nearly 20 percent from a year ago. Between mid-March and mid-April, the Small Business Administration issued nearly 300 start-up loans worth about $153 million, a 36 percent drop from a year earlier. Stripe, the credit card processing firm, said it had handled more than $1 billion in sales for businesses that started on the platform during that time.”

Source

To do business well, consider legal counsel to make sure all aspects of your endeavor are in accordance with and protected by the law. 

How Our Law Firm Helps Businesses

Whether you’re considering pursuing a startup or already have a business that’s changing directions, our Southern California law firm strategically advises our clients on all phases of a business’ cycle, from formation to succession. Our clients may choose to retain us to serve as if we are their in-house general counsel or serve as consultants during the formation phase.

Entity Formation & Planning 

Hoffman & Forde is engaged in all aspects of our clients’ business formation and development, from conception through liquidity. We provide business and legal guidance to clients through all stages of development, from initial incorporation, to seed and angel investments, venture capital debt and equity financing, strategic investments, and more.

Contracts

Contracts are key to any business. Our business consulting law firm has extensive experience in drafting tailored contracts to meet our clients’ needs, including terms and conditions, distribution agreements, customer contracts and non-disclosure agreements, breach of contracts, and more. 

Corporate Governance

Our business attorneys help clients develop and implement corporate governance policies and procedures, including employment policies, to foster best practices and to help meet clients’ obligations under applicable law. With policies changing more frequently because of coronavirus, employers need to be even more aware of their legal rights and responsibilities.

Consulting

We counsel employers on regulatory, legal, and human resources issues to ensure compliance with employment laws. We also help our clients establish policies, procedures, and guidelines essential to their businesses. At Hoffman & Forde, we help business owners keep up with their legal requirements and duties, and provide superior legal advice and planning. Learn more about our business consulting practice or get in touch with our business attorneys for a consultation today.

 

California Coronavirus Workplace Safety and Employment Resources

Even in the midst of a worldwide pandemic, we are still bound by our legal duties. Employers and workers alike still need to know their rights and responsibilities to ensure that everyone is safe and their business is run sustainably.

As businesses have been opening at various stages throughout California, here are some basic guidelines and resources that employers and workers need to keep in mind. All facilities must check off these items prior to reopening:

  1. Perform a detailed risk assessment and implement a site-specific protection plan
  2. Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them
  3. Implement individual control measures and screenings
  4. Implement disinfecting protocols
  5. Implement physical distancing guidelines

Industry-Specific Guidelines in California

These guidelines are available in the state’s COVID-19 website and cover topics such as a workplace specific plan, employee training topics, and cleaning & disinfecting protocols. We have included a few guides here for your reference.

For those needing unemployment assistance, the California Employment Development Department (EDD) has resources for filing unemployment claims. Their Pandemic Unemployment Assistance page can be viewed here. If you are an essential worker and your employer has failed to follow these guidelines, they may be subject to damages and/or penalties. You have the right to file a complaint or to refuse to go work if your environment is unsafe.

According to California’s Department of Industrial relations, if you are a non-essential worker who can’t work from home, you “can use any available paid sick leave for time off work under the ‘preventative care’ provision in the law.”Employers also need to be mindful of the following legislation:

For employers and workers needing legal assistance during this time, schedule your consultation with our employment and wage & hour lawyers. We will help you understand your rights, make sense of laws that apply to your situation, and walk you through the legal process.

Sources:

California COVID-19 Website

California Department of Industrial Relations

California Labor & Workforce Development Agency