Business and Employment

Business

Privately owned businesses encounter a wide variety of the legal issues in which Rousso & Jackel has substantial experience. These include business formation and organization, acquisitions, protection of property interests, labor relations, contract disputes, leases, trade secrets, unfair business practices and collection of account receivables. Resolving these types of issues involves a broad knowledge of the law, which Ms. Rousso and Mr. Jackel have obtained from their many years of experience.

The key to successfully representing a business is developing long term relationships with its owners and key employees. This enables an attorney to not only anticipate the types of legal problems which may occur, but to avoid the necessity of learning how the business operates and who does what each time representation is needed. Businesses frequently hire large law firms to represent them, in order to make sure that specialists are available for every possible legal issue. This makes sense only for large public corporations who can employ in-house general counsel. Small and medium sized privately held businesses need general counsel too. Such representation is offered by Ms. Rousso and Mr.. Jackel, who take great satisfaction is helping businesses achieve their goals.

Employment

“Employment Law” is a very broad topic about which a lot of lawyers have written a lot of books. Many people think that “employment law” is the same thing as “labor law,” when in fact “labor law” generally means the rules relating to organized labor such as unions. Nora Rousso and Jonathan Jackel are employment law specialists. What does this mean? The simple answer is that Rousso & Jackel have valuable experience representing employers and employees in disputes arising out of the employment relationship and helping them to avoid such disputes.

In California the general rule is that employment is “at will.” This means that an employer does not need a reason to terminate an employee. However, there are many exceptions to this rule. These exceptions primarily arise from laws that prohibit discrimination and “whistle blower” statutes. There are numerous “public policies” which also prohibit employers from terminating employees. And of course, there is also the possibility of an employee claiming an “implied contract” not to terminate without “good cause.” Such contracts can arise from long term employment relationships and/or assurances of long term employment.

A “wrongful termination” case can be very difficult to prove. However, when there is sufficient evidence to prove such a case, the employer’s liability can be astronomical. This is especially true in discrimination cases where certain statutes authorize the court to award attorney’s fees. Because of the difficulty of proving such cases and the time and effort required, Rousso & Jackel are very selective about whom they decide to represent. We are comfortable representing employees with meritorious claims. Our experience representing employees has proven invaluable to our business clients who are subjected to frivolous claims or who want to avoid such claims.

Business - Frequently Asked Questions

Should I incorporate?

Should I form a limited liability company?

Do I need “good cause” to terminate an employee?

Can I require employees to waive their right to sue?

How can I ensure that my customers pay their invoices?

Should I incorporate?

Business owners commonly want to incorporate in order to protect their personal assets. While incorporating makes it more difficult for creditors to hold shareholders personally liable, there are no guarantees. A creative plaintiff’s lawyer can attempt to “pierce the corporate veil” and reach personal assets by alleging an abuse of the corporate form. There are various other legal theories that can be used to hold business owners personally liable, especially when the claims arise from the employer-employee relationship. However, there are other advantages to forming a corporation, such as the organization it provides, the ability to raise money by selling stock to investors, offering stock options to employees and certain tax advantages. Whether incorporating will save money on taxes or increase tax liability is a question which should be discussed with both an attorney and an accountant.

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Should I form a limited liability company?

A limited liability company (LLC) has the advantage of being easier to operate than a corporation. There are no annual meetings, no elections of directors and very few formalities. Management is determined by an operating agreement, in which the members agree on all of their rights and responsibilities. However, these same features may make an LLC less attractive for certain businesses. The lack of “shares” and a formal organization makes it more difficult to attract investors or use it to offer employees incentives. The number of members is limited. There are other differences between an LLC and a corporation which can make the choice very difficult. The decision flows from how the owner wants the business to be organized and how income from the business will be taxed.

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Do I need “good cause” to terminate an employee?

It is a common misconception that employees cannot be terminated without “good cause.” In California the general rule is that employment is “at will.” Generally an employer does not need to have any reason to terminate an employee. However, there are various circumstances which can give rise to an “implied” contract not to be terminated without good cause, such as lengthy employment with repeated assurances of permanent employment. Many employers require employees to sign statements when they are hired acknowledging that their employment is “at will.” These can be effective. However, they do not protect an employer from claims based on discrimination and harassment. There are a maze of state and federal laws governing the rights of employees and the duties of employers. A prudent employer will not leave these important issues to chance. Instead, he or she will seek counsel from an attorney who keeps current with this ever-evolving area of the law.

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Can I require employees to waive their right to sue?

In principal, lawsuits based on breach of contract, discrimination, harassment and other employment torts can be avoided by having employees sign arbitration agreements. While arbitration does not release an employer from liability, it puts the decision into the hands of an arbitrator, who is perhaps less likely to put a company out of business than a jury. Arbitration also has the advantage of being less time consuming. However, recent court decisions have required that the arbitrator’s fees be paid by the employer and that employees have the same right to “discovery” they would have in a civil action. In addition, employees cannot be forced to arbitrate wage and hour claims. The enforcement of arbitration agreements continues to be a ripe area for legal intervention and judicial interpretation.

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How can I ensure that my customers pay their invoices?

When goods or services are provided to customers and clients without being paid in advance the business becomes a creditor. Such a customer or client should be required to fill out a credit application, sign a promissory note and provide collateral. However, in many businesses it is neither practical nor customary to do so. The consequences of this is that many businesses are unable to collect their invoices because their customers are insolvent or the cost of collecting exceeds the amount owed. At the very least, information about a customer’s or client’s assets and financial condition should be obtained. Sometimes, the easiest way to collect a debt is by attaching a bank account, so just the information contained on checks used by customers or clients to make payments can make the difference.

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