News and Articles

When a Trademark Licensor Goes Bankrupt

Yogi Patel - Tuesday, January 05, 2016

Businesses often enter into licensing agreements to use a trademark belonging to someone else. One of the most essential circumstances to consider before expending any resources on a trademark license is what happens in the event that the owner of the trademark declares bankruptcy. Businesses who develop products, perform research, and make sales revolving around a trademark license, savvy planning in advance is essential for protecting their interests. Poor planning or a failure to do so can result in the license being revoked, even if paid for in advance, resulting in the licensee's business potential failure. A more in-depth article on this issue is now available on our website.

In general, courts have found trademark licensing agreements to be executory, meaning the parties to the agreement still have duties remaining to be performed. When a licensor declares bankruptcy, it has the option of assuming or rejecting the agreement. If the agreement is accepted and certain conditions are met, everything continues as normal. However, if the agreement is rejected, there is the very real risk that the licensee will lose all rights to use the trademark, leaving the owner free to re-license the trademark to someone else. While Bankruptcy laws offer some protections for intellectual property, such as patents, copyrights, and trade secrets, courts have split on whether trademarks are included. Because Bankruptcy Courts have the authority to resolve trademark issues, licensees must take steps to minimize the risk of an unfavorable decision.

One possibility is to structure the licensing agreement as a sale or assignment of the trademark. This minimizes or reduces the risks to the licensee as it transfers ownership in the trademark and creates a non-executory contract. However, when this is not possible, another option is to require that the trademark be owned by a limited liability company with the single purpose of holding the trademark. The LLC can also be prevented from incurring debt, which greatly reduces the risk of a bankruptcy filing. One last alternative is for the licensee to take a security interest in the trademark, but this is not commonly used as it creates disincentives for both parties. While there are additional drafting techniques one should adopt, such as explicitly referencing Bankruptcy Law protections, combining trademarks in the same agreement as other protected intellectual property, and paying royalties over time, anyone considering entering into a trademark licensing agreement should enlist the services of an attorney to make sure their rights are protected.

Legal Update - January 2016 Newsletter

David Lloyd - Tuesday, January 05, 2016

Dear valued clients and supporters: Happy New Year. This month's newsletter will focus on: (1) The effect bankruptcy of a trademark licensor has on a licensee; (2) The limits on non-compete clauses; and (3) The emergence of "The Internet of Things" and its legal impact.

When a Trademark Licensor Goes Bankrupt
Businesses sometimes enter into licensing agreements to use a trademark belonging to someone else. One of the most essential circumstances to consider before expending any resources on a trademark license is what happens in the event that the owner of the trademark declares bankruptcy. For businesses that develop products, perform research, and make sales revolving around a trademark license, savvy planning in advance is essential for protecting their interests. Poor planning or a failure to do so can result in the license being revoked, even if paid for in advance, resulting in the potential failure of licensee's business. A more in-depth article on this issue is now available here on our website.

 

Grounds for Refusing to Enforce a Non-Compete
In New York, non-compete clauses must be necessary to protect a legitimate interest of an employer, and must be reasonable in scope, duration, and location. Non-compete clauses are generally disfavored as restraints on trade and will only be enforced if signed for adequate consideration - i.e. in exchange for something. In a recent commercial court case involving three former executives of a Suffolk County-based vitamin distributor, NBTY, the judge addressed the validity of a non-compete clause signed after the executives were already employed. Years after being hired, the executives signed a stock option agreement containing a clause prohibiting them from working for any competitor in North America, Europe, or China for one year. The executives all then resigned and began working for a competitor without exercising the stock options.

The court held that the non-compete clause was not supported by new consideration and therefore unenforceable because the executives had chosen resigning over exercising their options. By forfeiting their right to any benefit under the stock option agreement, they rendered the non-compete clause invalid. Additionally, the court found that the geographic scope was unreasonable, noting that such a global restriction was only generally appropriate when a business is sold. Finally, the court rejected the argument that the executives would inevitably misappropriate confidential information, requiring more than hypothetical speculation to form the basis of such a claim.

This case highlights how employers who wish to hold their employees to non-compete clauses must be careful in tailoring their restrictions not only so that they are reasonable and necessary, but also so that they are in exchange for adequate consideration.

 

The "Internet of Things"
The Internet of Things refers to the everyday objects people use - smart phones, smart watches, smart cars, and even smart homes - that are digitally interconnected and function through a computer network that transmits and analyzes high levels of data. These "things" can be typically controlled and/or accessed remotely, and the new digitized "ecosystem" of which they are a part allows for automation, constant monitoring, and instant access to seemingly endless information. Any single device can be composed of parts made by multiple manufacturers, require a local "gateway" through which it connects to a greater network and other devices, and function through a cloud computing platform. While consumers and businesses alike enjoy the increased functionality the Internet of Things provides, the ever-expanding network of devices, systems, subsystems, clouds, and people has created a whole universe of legal considerations.

 

For one, with such vast access to and exchanges of data, participants in the Internet of Things must take steps to protect the privacy of personally identifiable information. Additionally, other data, such as sensitive or secret information, and control over a computer network, must also be heavily protected, making cybersecurity paramount. Other potential sources of intense litigation will be over the ownership of the various data generated by the Internet of Things, the ownership of the underlying technology/processes on which it all functions, and as well as accusations of anti-trust violations. Finally, when things go wrong and devices malfunction, break, and/or injure a user, with all the potential parties involved, determining whom to hold liable will be a complicated matter. All of this inevitably will result in an increase of rules, laws, and regulations governing the Internet of Things as it develops, and any supplier, manufacturer, or participant should consult with an attorney about potential liabilities before injecting a product into this emerging ecosystem.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.

 

Business Owners May Be Liable for Business Debts and Transactions Through the Alter-Ego Doctrine

Erin Lloyd - Thursday, December 03, 2015

The chief purpose of forming a corporate entity is to protect the business owner’s personal assets. Incorporation protects these individuals from being held personally liable for their company’s debts and obligations. However, the use of corporate form is a privilege, and abuse of its protections can have serious consequences.

For example, when a corporate entity is so dominated by an individual that it primarily transacts the individual’s business instead of its own, it will be called the individual’s alter-ego and the corporate form will be disregarded to achieve an equitable result, Rohmer Associates v. Rohmer, 36 A.D.3d 990 (3rd Dept. 2007).

In order to prevail on an alter-ego claim, a plaintiff must establish that there was such a “unity of interest and control” between the individual defendant and the entity, or between two entities, that they cannot really be said to be separate. See Rohmer Assoc. Inc. v. Rohmer, 830 N.Y.S.2d 356, at *1 (App. Div. 2007). An alter-ego determination by a court does not technically make one entity vicariously liable for the debts of another. Rather, it results in disregarding the separateness of the entities as a legal fiction and treats them as one in the same entity for all purposes. This is applied to limited liability companies as well as traditional corporations.

“Alter-Ego” Liability Does Not Require a Showing of Fraud

It is not necessary to allege or prove fraud in order to pierce the corporate veil under the alter-ego theory. What is required is proof that a corporation is being used by an individual to accomplish his own and not the corporation’s business, and that the business owner’s control is being used to perpetrate a wrongful or unjust act. The question is whether the corporation is being used as a “shell” by the individual business owner to advance his own purely personal interests at the expense of another party, typically a judgment creditor, Port Chester Electrical Construction Corp. v. Atlas, 40 N.Y.2d 652 (1976). In making an alter-ego determination, a court is concerned with reality and not form. Wajilam Exports v. ATL Shipping, 475 F.Supp.2d 275 (S.D.N.Y. 2006). The focus is on the actual conduct of the dominating business owner and the impact of that conduct on innocent parties such as judgment creditors.

New York Courts Evaluate a Number of Different Factors

The factors relied upon by New York’s courts in applying the alter-ego theory include the use of alleged corporate funds for personal purposes, commingling corporate and personal funds, shuttling funds between personal and corporate accounts, the use of common telephone numbers and office space, using the corporation as a “shell” to advance personal rather than corporate interests, and otherwise abusing the corporate form.

When the use of an incorporation entity privilege of is abused, business owners may be held liable through the alter-ego doctrine in the State of New York. As with any legal transaction matter, individuals are encouraged to consult with an attorney before taking any official action, as every situation is unique and should be independently analyzed.

For more information, business owners can contact us here

December 2015 Newsletter

Yogi Patel - Wednesday, December 02, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) The nation-wide increase in the usage of arbitration clauses in employment agreements; (2) Negotiating a more favorable employment offer/agreement; (3) The "Alter Ego" doctrine; and (4) New York City's Fair Chance Act.

 

Arbitration Agreements
In recent years, there has been a nation-wide spike in the usage of arbitration clauses by employers in their employment agreements. The motivation for employers to include such clauses is that they typically require employees to settle any grievances through arbitration, effectively preventing them from bringing an action in court. The clauses also usually require that all disputes be brought individually, which can have the effect of prohibiting employees from bringing class action suits. In the wake of United States Supreme Court decisions upholding the validity of arbitration clauses that prevent employees from bringing a collective suit, many employers are now requiring that all employees agree to arbitration as a term of employment. Employers and employees are advised to consider the implication of this trend, as employers may seek to include arbitration clauses while employees may seek to negotiate the removal of this term when possible.


Negotiating A More Favorable Employment Offer/Agreement
Many employees may not be aware that when they are offered a new position, they often have significant leverage at their disposal to negotiate for better terms of employment. Prospective employees who bring years of experience or unique skills and knowledge should not sell themselves short at the bargaining table, especially prior to accepting an offer of employment. From increases in salary, stock options and other benefits, to more favorable terms of severance, grounds for termination, and restrictive covenants, employees should consider what they can gain through such negotiations. An in-depth article addressing terms that an employee should consider negotiating as well as how to negotiate effectively so that an employer is not "put-off" by your ask is now available here on our website.


"Alter Ego" Liability
The number one reason why business owners form corporate entities is to insulate their personal assets from the liabilities of the company--if the business has an issue that causes it to owe money, the owner's house, bank account, and other personal property cannot be used to pay the company's debt. However, when a business owner abuses this protection and primarily uses the entity for her own personal gain rather than to transact the corporation's business, a court may find that the business is actually the "alter ego" of the owner. Upon such a finding, the owner and the business are treated as one and the owner's personal assets become at risk. To find out more about the factors New York courts look at under an "alter ego" analysis and the consequences of a determination stripping a business owner of the protections of her corporation, please read a more in-depth article posted here on our website.


New York City's Fair Chance Act
On October 27, 2015, the New York City Fair Chance Act went into effect. The law makes it illegal for employers to ask applicants about a criminal record before making a job offer. The Act bans reference to criminal histories or background checks in employment ads, job applications and during interviews. An in-depth article analyzing the Act and an employers obligations under the new law are now available here on our website.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.

Negotiating a Better Employment Offer/Agreement

Yogi Patel - Tuesday, December 01, 2015

Introduction

Many employees, especially executive level employees, approach an offer of employment as a “take it or leave it” proposition. The reality, however, is that unless you negotiate, you will end up with terms that are generally skewed and favorable to the employer. As with executives negotiating more favorable severance packages, executives negotiating employment agreements should consult with an attorney prior to negotiating or signing any such document. Once you sign on the dotted line, the executive has effectively given up any leverage in negotiating terms that will directly impact his or her role, compensation, future obligations to the employer, including who and where else they can work next. This article will address some of the terms that we recommend an employee should consider negotiating as well as how to negotiate effectively so that an employer is not “put-off” by your ask.

Will My Future Employer Negotiate?

An executive with an employment agreement in hand is in a strong position to negotiate with the employer for better terms of employment. The employment agreement is the last step of an employer’s long recruitment process, which plays largely into the employer’s willingness to negotiate at this point. On the surface it seems the negotiating dynamic is skewed much in favor of the employer, who holds the desired position. However, the employer does not want to lose the person they want most and then have to repeat the arduous recruitment process if all it takes is revising the existing agreement to provide the executive with better terms. Executives who come to their employers with reasonable requests might be surprised by the employer’s willingness to negotiate. This is especially so when the employer has actively recruited the executive from her current employment at another company. This is the first moment where the executive and employer’s interests may clash; and the employer, having pursued the executive, will want to show that it is responsive to the executive’s needs and willing to give them serious thought.

How Does Negotiation Work?

The first step is to understand the terms that are being offered and the future implications of those terms. By reviewing the agreement with the help of employment counsel, the executive will get a full understanding of the agreement’s terms and the risks associated with signing off on those terms—especially restrictive covenants that might inhibit the executive’s growth in the profession should he or she leave the company for a position elsewhere. The goal is to isolate the terms that are important to the executive and that need to be refined with a plan for how the executive will negotiate those terms when he or she next meets with the employer or its representative. For example, an executive who wants to protect themselves from subjective termination would prioritize negotiating a pro-employee “cause” termination clause and a severance package that stipulates the executive will receive earned, unvested compensation if terminated. For an executive whose compensation is primarily based on bonus, equity pay or stock options, the priority will lie with negotiating better vesting options and non-dilution terms.

Once counsel and the executive have worked through the priority of the terms that need to be revised, it is often advisable to have the executive provide an annotated agreement with the revisions built-in to the employer for consideration. The executive must assert their position boldly while being careful not to alienate the future employer with coaching from counsel on presentation of issues. If the executive and the employer fail to compromise, the executive should then consider having his or her attorney engage in direct negotiations with the employer’s General Counsel on behalf of the executive.


So What Exactly Will I Be Negotiating?

Depending on the industry and the executive’s priorities, an employer may seek revisions on any of the following terms of employment.

  • Remunerative terms, such as:
  • • Salary
  • • Bonus
  • • Commission
  • • Stock options
  • • Medical benefits
  • • Retirement benefits
  • • Deferred compensation
  • • Vacation and leave

  • Restrictive covenants, such as:
  • • Non-compete
  • • Non-solicitation
  • • Confidentiality
  • • Preserving trade secrets
  • • Dispute resolution

  • Terms of severance, such as:
  • • Grounds for termination, i.e., for cause, not for cause, mutual agreement, notice requirement, opportunity to cure
  • • Severance pay
  • • Continued medical coverage
  • • Buy-back of equity
  • • Bonus payouts and vesting periods
  • • Dispute resolution (arbitration vs. litigation).

Conclusion

The bottom line is that an executive with an offer of employment and an unsigned employment agreement should always consider negotiating for better terms. If you do not ask, you will never get – but you have to do it with tact and strategy. This article is not intended to be nor should it be construed as providing legal advice. As with any matter, the particular details of each executive’s situation require careful consideration and should be reviewed individually with an attorney.


Yogi Patel, Esq. is an employment and business lawyer and partner at Lloyd Patel LLP, a general practice law firm. He can be reached directly at yp@lloydpatel.com.

Whitney McCann is a second year law student at City University of New York School of Law, interning at Lloyd Patel LLP, and expects to graduate in May 2017.

NYC Fair Chance Act Limits If and How Employers Can Consider Criminal Histories in the Hiring Process

Erin Lloyd - Tuesday, December 01, 2015

On October 27, 2015, the New York City Fair Chance Act went into effect. The law makes it illegal for employers to ask applicants about a criminal record before making a job offer. The Act bans reference to criminal histories or background checks in employment ads, job applications, and during interviews. Only once the employer has made a conditional offer of employment is the employer allowed to inquire into an applicant’s criminal record and determine whether there are grounds to revoke the offer consistent with New York Correction Law Article 23–A (“Article 23–A”). The Fair Chance Act applies to all employment decisions—including hiring, firing, and promoting individuals with criminal histories. This article focuses on the hiring of applicants with criminal records and outlines what employers must do to comply with the new law when they offer a position to someone they discover has a criminal record.

How Do I Comply with the Fair Chance Act?

Prior to Making a Conditional Offer

The first step is to eliminate any reference to criminal histories or background checks in an employer’s employment ads, job applications, and interview practices. Advertisements with phrases such as “no felonies,” “must pass background check,” or “must have clean record” are illegal. As for print and online job applications, employers must rid them of any language inquiring into an applicant’s criminal history or asking an applicant to authorize a background check. This practice is the same during the interview, where the interviewer is prohibited from asking about an applicant’s criminal history.

If during the interview, an employer or hiring manager accidentally discovers the applicant has a criminal record, the interviewer should give the applicant a basic overview of the NYC Fair Chance Act. Explain that employers are only allowed to consider the applicant’s criminal record after making a conditional offer and that it would be inappropriate to discuss the record until that point, if at all. Interviewers may want to make a note in the applicant’s file should disclosure later become an issue.

After Making a Conditional Offer

Only after an employer extends a conditional offer of employment may it ask the applicant, either in writing or orally, whether he/she has a criminal history or pending criminal case. The New York City Commission of Human Rights recommends employers style their written inquiry as follows:

Have you ever been convicted of a misdemeanor or felony? (Answer “NO” if your conviction: (a) was sealed, expunged, or reversed on appeal; (b) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (c) resulted in a youthful offender or juvenile delinquency finding; or (d) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.)

If an employer runs a background check to determine or confirm the applicant’s criminal history, it is legally obligated to give the applicant the exact information used to inquire into his/her background. For example, if the employer hired a third party to conduct the check, it must turn over a copy of its report; if it found the information online, it should print a copy of the page; if it accessed the information by public record, it must print that page; or if it relied on the applicant’s oral testimony about the record, best practice would be to present a written summary of that information back to the applicant.

Once the employer has the applicant’s criminal record, if it decides the information discovered in the applicant’s criminal history is irrelevant and makes a final offer of employment without regard to the criminal history, and the employer complied with the above requirements, no other steps are required to be in compliance with the law.

Revoking a Conditional Offer

An employer that is unsure whether to hire the applicant based in any part on the information you discovered in this criminal history must carefully and deliberately evaluate whether that criminal record outweighs the reasons the applicant was selected for the position.

For forty years, New York State Article 23–A, has prohibited employers from denying applicants work based solely on a criminal record, and has governed how employers make this determination. Article 23–A requires employers evaluate job seekers and current employees with conviction histories fairly and on a case-by-case basis. It lists eight factors employers must use to determine whether there is a direct relationship between the criminal record and the prospective position or whether, based on the conviction, the employer can show the applicant poses an unreasonable risk to the company’s safety:

  • 1. New York State’s public policy of encouraging the employment of persons with prior convictions;
    • 2. The specific duties and responsibilities necessarily related to the . . . employment sought;
    • 3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his ability to perform one or more such duties or responsibilities;
    • 4. The time which has elapsed since the occurrence of the criminal offense or offenses;
    • 5. The age of the person at the time of the occurrence of the criminal offense or offenses;
    • 6. The seriousness of the offense or offenses;
    • 7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and
  • 8. The legitimate interest of the . . . private employer in protecting property, and the safety and welfare of specific individuals or the general public.
  •  

If after weighing these factors, an employer still wishes to hire the applicant, again, there is nothing more to do.

If, on the other hand, the employer decides to revoke the offer based on the applicant’s criminal history, it must: (1) explain to the applicant why, using the City’s Fair Chance Notice; (2) provide the applicant with a copy of the background check or criminal history information you obtained; (3) and give the applicant three business days to respond to the notice. The Fair Chance Notice acts as the employer’s application of Article 23–A to the applicant’s criminal history; it gives the applicant the employer’s reasoning for wanting to rescind the offer. The applicant has three days to respond to the Notice and should include information about errors in his/her record and any additional information the employer should consider before making the final determination to retract the offer.

The New York City Commission offers free trainings on the Fair Chance Act. Given how dramatically this law changes former employment practices in hiring people with criminal histories, it is important all employers and employees are aware of all its requirements to avoid unlawful discrimination against job seekers with criminal histories. If you are unsure how to apply the new law in your business, or if you feel you have been a victim of unlawful discrimination in the hiring process, our attorneys can help. Contact us today.

Erin Lloyd, Esq. is an employment and business lawyer and partner at Lloyd Patel LLP, a general practice law firm. She can be reached directly at el@lloydpatel.com.

Whitney McCann is a second year law student at City University of New York School of Law, interning at Lloyd Patel LLP, and expects to graduate in May 2017.

November 2015 NEWSLETTER

David Lloyd - Tuesday, November 03, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) New York City legislation, effective January 2016, expanding the right to pre-tax transit benefits for certain employees; (2) Governor Cuomo’s recently introduced statewide regulations prohibiting harassment and discrimination against transgender people; and (3) The first article in a two-part series focusing on executive severance packages and negotiations.

Pre-Tax Benefits a Boost for Commuters
Beginning January 1, 2016, New York City companies with 20 or more full-time employees will be required to offer their employees pre-tax transit benefits. This legislation encourages employers to take advantage of an existing federal tax benefit that allows companies to offer workers $130 as pre-tax income for transportation costs. As a result of this law, the City anticipates employees will save $400 per year on MetroCard expenses and employers will annually save $100 per employee in tax liability. The Department of Consumer Affairs will enforce the law, which imposes fines on covered business who do not offer the required benefits. However, companies that fail to comply will be given a 90-day grace period to fix their violation before being subject to civil penalty. To allow businesses adequate time to adjust their practices, employers will not be subject to penalty before July 1, 2016.


Expanded Protections for Transgender New Yorkers
Governor Cuomo recently introduced regulations by Executive Order that provide broad protections for transgender New Yorkers from unlawful discrimination. The statewide regulations prohibit harassment and discrimination against transgender people by all public and private employers, housing providers, businesses, creditors, and others. Cuomo’s order, to be enforced by the New York State Division of Human Rights, will be subject to a 45-day notice and comment period before being fully implemented. The regulations will provide the full force and protections of the existing New York Human Rights Law, which includes extensive compensation and other legal remedies for victims of discrimination and harassment, as well as stiff penalties for those who violate the law.


Executive Severance Negotiation
Executives who have been recently terminated and more importantly those that are considering leaving their current positions, including those that believe they are about to be terminated are urged to think more pro-actively about their severance packages. Rather than settle for what an employer may initially offer, if anything at all, executives should consider the benefits of developing a negotiation strategy that results in a package that makes their transition to the next phase of their lives and careers more manageable and equitable. The legal issues that generally determine what leverage, if any, an employee may have depends in large part on the rights under their specific executive employment agreements, any legal claims they may have against their employer, and other non-legal factors. To find out more about how to negotiate a better severance package from your employer, please read a more in-depth article posted here on our website.

 

Next month's newsletter will focus on the flip-side of the issues - Executive Compensation strategy.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.

Negotiating a Better Severance for Executives

Yogi Patel - Monday, November 02, 2015

If you are an executive looking to leave your current business, or if you have recently been terminated, consulting with an attorney is absolutely essential for negotiating the terms of your severance. All to often, executives are either uninformed about their rights, or they simply do not take the time to exercise the leverage they do have, and they ultimately agree to conditions that leave them in a far less favorable situation than necessary. When executives seek the advice of counsel and refuse to blindly sign away their rights, they can be assured that they are negotiating from as strong a position as possible and are maximizing their benefits under any settlement they reach with their former or soon-to-be former employer.

This article is the first in a two-part series on executive negotiation of severance packages and new employment agreements. The goal of this article is to demonstrate how, with the assistance of an attorney, an executive can maximize her leverage in negotiating the termination of her employment. The second article in this series will detail how an executive can utilize the expertise of a lawyer in negotiating the terms of a new offer of employment.

Why do Employers Negotiate with Executives?

Perhaps most fundamentally, an employer negotiates because either it or the executive is seeking to terminate a relationship governed by a contract that did not work out. Unlike a typical at-will employment arrangement, an executive employment agreement may contain a wide array of benefits, obligations, restrictions, and even limits on termination itself. The terms of an executive employment agreement can govern the actions of the employer and executive both during the performance of the contract and after they part ways, and a breach by either party can have serious consequences.

Additionally, an executive may be financially invested in the company, holding a significant number of shares or other assets in the company’s name, or she may know inside information about the business’s operations. Buying or otherwise taking back company assets from an executive and ensuring she does not reveal company secrets after she leaves are two vital interests of employers that give significant leverage to executives when negotiating a severance.

Finally, an executive may have been subjected to unlawful or abusive treatment, or she may know of other behavior or information that the company would not wish to be made public. While an executive must be careful not to short-change herself in waiving claims against an employer or to partake or implicate herself in anything illegal or unethical, her experience and interactions with others within the company can also strengthen her bargaining power.

How Does Negotiation Work?

Regardless of whether an executive has been terminated, is facing termination, or wishes to leave her current position, the first step is always to consult with an experienced attorney. An executive is ill advised to engage in negotiations unless she is clear about what her obligations and rights are under both her employment agreement and the law. Reviewing the contract with a lawyer ensures that an executive understands the full implications of its terms and enables her to develop a negotiation strategy with the assistance of an expert.

The next decision to make is whether to have the attorney directly advocate on the executive’s behalf, or for her to assist from the sidelines. Typically, this decision will depend upon the relationship between the executive and her employer, whether the situation is hostile or not, and to what degree the executive will be using potential legal claims as leverage.

The advantage of having the executive negotiate directly with her employer while the attorney advises in the background is that in an informal format, an employer may be willing to discuss terms more candidly. If an informed executive is able to work out a severance with her employer in such a manner, negotiations may proceed more quickly and additional confrontation may be avoided. Still, even in the most amicable of negotiations, an executive should not agree to or sign anything without having her attorney carefully reviewing any proposed terms of separation.

The reality is, however, more often than not an executive is seeking to leave her position or is terminated because of a dispute between her and her employer. The initial conditions for negotiating are therefore often unfriendly or hostile and attempts at informal resolution can prove to be counterproductive. Involving an attorney under such adversarial circumstances is not only necessary to ensure that an executives interests and rights are all being protected, but it also can mitigate some of the personal hostility the parties may feel towards one another and provide some leverage in reaching a resolution.

Once an attorney is involved, she will usually communicate with the employer’s attorney and make a severance demand based on the 1) terms of the executive employment agreement;
2) actions of the parties; 3) existence and viability of any legal claims against either party;
4) need for the employer to protect its interests and public image; and 5) the financial interests the executive has in the company. An experienced attorney will be able to take all these factors into consideration and weave them into leverage designed to maximize an executive’s compensation package with an eye towards avoiding litigation. While sometimes filing a claim may prove necessary, it is almost always the objective to reach a settlement without involving the courts.

So What Exactly are the Benefits of Negotiation?

Executives who have opted to negotiate rather than waive their rights and settle for less have received any number of the following:

  • • Additional Severance Pay
  • • Severance Pay as a Salary Continuation Rather than as a Lump Sum
  • • Continued Medical Coverage for their Families
  • • Additional Consideration for Agreeing to Restrictive Covenants;
  • • More Favorable Asset Buyout Terms
  • • Compensation for Waiving Legal Claims
  • • Compensation for Entering into a Confidentiality and Non-Disparagement Agreement
  • • Reimbursement of Unused Vacation Days
  • • Postponing the Executive’s Termination Date
  • • A Neutral or Positive Letter of Reference
  • • Reimbursement of Attorney’s Fees
  •  

Conclusion

Most employers want to be held in high esteem by their former executives, or at least have that be the public perception. Though employers might be stringent in negotiating better severance packages because they do not believe the former executive has power, an executive who pushes a negotiation can prove not only that she does have power, but also that it may actually be in the employer’s best interest to negotiate. By consulting with an attorney, executives can become fully informed of their rights and the leverage they have, and can design a negotiating plan that maximizes their bargaining power that increases the benefits they receive as severance.

Next month, we will publish the second article in this series, which details how executives can maximize their leverage in negotiating a new employment agreement with the assistance of a lawyer. If you are an executive looking to leave your current company, negotiate a new employment agreement, or if you have been recently terminated, you are encouraged to consult with one of our attorneys and may contact us here.

This article is not intended to be nor should it be construed as providing legal advice. As with any matter, the particular details of each executive’s situation require careful consideration and should be reviewed individually with an attorney.

October 2015 NEWSLETTER

Yogi Patel - Monday, October 05, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) the current and upcoming obligations for employers under the Affordable Care Act; (2) the differences between employees and independent contractors; and (3) Non-Qualified Stock Options as a tool for entrepreneurs to attract expert advisors/consultants/employees.

The Affordable Care Act Employer Mandate
Under the Affordable Care Act ("ACA"), employers with over 50 full-time employees are required to provide health insurance. The insurance must meet certain minimal standards and must be offered to the vast majority of employees in large businesses. Employers who fail to meet the ACA's requirements face penalties that could total in the tens or hundreds of thousands of dollars. While the ACA's rules for 2014 and 2015 have been more flexible, beginning in 2016, employer obligations and penalties will be in full effect. For smaller employers who are not required to provide insurance, the ACA offers tax incentives for doing so. All employers are encouraged to consult with counsel to make sure they are in compliance and can read more about this issue in our article available here.

Employees vs. Independent Contractors
Understanding what makes a worker an employee or an independent contractor under the law is one of the most important distinctions a business owner should be able to make. Depending on the classification, employers are required to make specific tax withholdings and carry workers compensation and unemployment insurance policies. Additionally, employees (as opposed to independent contractors) are protected by minimum wage, overtime, and other labor laws both under City, State and Federal Laws. Employers who misclassify workers and then fail to meet their obligations and/or violate the law can be held liable for penalties and damages that are as much as triple what they owe. Additionally, employers may be subject to investigation by government agencies. Recently, the U.S. Department of Labor issued an interpretation that clarified the standard used for determining a worker's status and the extent to which State and Federal agencies are auditing employee classification. For more information, including the test used for determining whether a worker is an independent contractor or an employee, see our article here.


Non-Qualified Stock Options
For entrepreneurs and business owners who might not have substantial cash on hand, offering equity in exchange for services is a commonly utilized option. One way in which this can be done is through Non-Qualified Stock Options ("NQSOs"), which grants an individual the right to purchase shares in a company at a low, fixed rate, in exchange for providing expert advise or other services. If the price of the company's stock goes up, the option holder will be able to purchase the shares at the lower, fixed rate and enjoy the increased stock price as profit. NQSOs come with built-in limitations that are designed to protect the interests of the business and allow the parties to establish their relationship first. Most commonly, the option holder does not gain the right to purchase shares until he or she has provided services to the company for a certain period of time. Understanding how to use NSQOs can be a powerful tool for business owners and is something all entrepreneurs should have at their disposal. For more information and in-depth discussion on NQSOs, see our article here.


Readers are encouraged to peruse the more in-depth articles on our website and to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other legal developments throughout the month.

Navigating Employers’ Responsibilities Under the Affordable Care Act

Kyle Carraro - Friday, October 02, 2015

Confused about your obligations as an employer under the Affordable Care Act (“ACA”)? The good news is you are not alone. With a sea of rules and regulations that have undergone several revisions and delays, knowing exactly what you are supposed to be doing as an employer with regards to your employees’ health care can be overwhelming. However, as the benefits and penalties of the ACA are set to take full effect soon, employers must take steps to educate themselves.

Employer Responsibilities: Who Must Provide Insurance and When Must They Do So

While the term “employer mandate” has made headlines and is quickly becoming part of the pubic vernacular, few people can explain its precise meaning. First, the employer mandate is a reference the Employer Shared Responsibility (“ESR”) provisions of the ACA. The ESR provisions state that any employer with over a certain number of employers must provide insurance coverage to its workers. Generally speaking, larger employers with 50 or more full-time employees must offer health care coverage to their employees and their dependents. The coverage must be affordable and meet certain minimal criteria. Employers who fail to comply with this requirement can be assessed hefty fines by the Internal Revenue Service.

For the year 2015, the government has offered “transitional relief” for employers who have between 50 and 99 full-time employees, meaning that for these employers, coverage does not have to be provided until January 1, 2016 if they meet certain requirements.

Here is where it can get a little confusing: In order to be exempt from the coverage requirements under the ACA, the employer must have had between 50 and 99 full-time employees from February 9 through December 31, 2014. Additionally, the employer must certify that it has not made any reductions to its workforce in order to meet the exemption requirements and must maintain any health coverage that was already previously being offered. If no such coverage was being offered, there is no requirement to begin offering coverage for employers who qualify for transitional relief until January 1, 2016. Of course, if an employer has legitimate business reasons for reducing or modifying her workforce, she is permitted to do so.

Businesses with 100 or more full-time employees are not exempt from providing insurance in 2015, but there is partial relief available. For 2015, if such a large employer offers coverage to at least 70% of its employees (and their dependents) and no employee receives a premium tax credit to help pay for coverage through an insurance Marketplace, then the employer will not be subject to any penalty payment. For 2016, the threshold is raised to 95%. Any employer with 100 or more full-time employees that does not offer insurance to the threshold number of employees and/or which has at least 1 employee who receives a premium tax credit, it will be subject to a penalty.

So Just How Bad Could the Penalties Be?

The short answer is: steep enough to incentivize employers to offer insurance to their employees. Any employer who is required to provide insurance but fails to do so, and which has at least one employee that receives a premium tax credit through an insurance Marketplace, will be subject to a penalty equal to the number of full-time employees it has for the year roughly equivalent to $2,000 per employee. The penalties are calculated on a monthly basis, meaning they only apply to the months during which no insurance was offered, but some employers could easily see fines in the tens or even hundreds of thousands of dollars each year.

Even employers who are providing insurance can be subject to penalties if they are not providing adequate coverage or if they fail to offer insurance to enough of their employees. While there are certain reduced penalties for 2015 only, there is currently no relief being offered from the complicated and stringent requirements of the ACA for 2016 or later. Any employer who is concerned about meeting the ACA’s requirements, even those who currently provide insurance, would be wise to consult with an attorney. Our lawyers are knowledgeable of employers’ obligations under the ACA and are dedicated to working closely with our business clients to make sure they are in compliance and avoid paying these steep penalties.

How to Calculate the Number of Full-Time Employees

A full-time employee is defined under the ACA as one who works at least 30 hours a week or 130 hours per month on average. For an employer who employs only full-time employees, this is a straightforward calculation taking the total average number of full-time employees she had each month over the previous calendar year. For employers who have part-time employees, the calculation is a little more complicated.

For the purposes of determining an employer’s obligation to provide insurance only, the ACA provides for the inclusion of Full-Time Equivalents (FTEs) into the calculation. This works by multiplying the total number of hours part-time employees work by the number of part time employees, all divided by 30. For example, 21 part-time employees who work 20 hours per week would amount to 14 FTEs.

Keep in mind, employers who own or operate more than one business will likely have the employees from each business added together for the purposes of determining whether or not the employer is required to provide insurance.

Tax Credits for Small Businesses

Under the ACA, businesses with less than 25 full-time employees who are paid, on an average, less than $50,000 per year are eligible for a tax credit if they pay at least half of the insurance premiums for their employees. The maximum tax credit is 50% of the premiums paid for small businesses, and 35% for small tax-exempt employers. Employees must generally enroll in a qualified health plan offered through a Small Business Health Options Program (SHOP) Marketplace in order to qualify. The credit is refundable, or it may be applied to future taxes.

Filing Requirements

Beginning in 2016, businesses with over 50 full-time employees must fulfill reporting requirements with the IRS. Employers are responsible for forms 1095-c and 1094c, which provide information to the IRS on the employers’ full-time employees and their insurance coverage. When employees, in turn, file their personal income taxes, the IRS will know whether or not an employee received a premium tax credit. The IRS then uses the employee’s personal income taxes and the employer forms to determine what, if any, penalty to assess.

So What Should Business Owners Do?

If business owners have over 50 full-time employees, they should plan to provide health coverage to their employees (and their dependents) beginning January 1, 2016. For every month afterwards that coverage is not provided, employers will face stiff penalties for non-compliance. Employers should work closely with an attorney and a payroll professional to make sure not only that they have in place the necessary coverage, but also are maintaining proper records, making withholdings from employees’ paychecks, and fulfilling their filing requirements. Smaller business should also consult with an attorney or tax professional to help determine if they are eligible for certain tax incentives. Finally, an employer who is growing a business or who owns multiple businesses should seek professional assistance to determine what her future obligations might be under the ACA to avoid paying hefty fines.

Employers of any kind should keep in mind that this article is intended to provide a general overview of some of the most pressing obligations under the ACA and should not be construed as legal advice. As with any important decision, there are nuances and specific details that may pertain to your situation and you are best advised to work with a licensed professional to meet your business’s needs. If you would like to consult with one of our attorneys about your ACA obligations, you can contact us here.


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