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Monday, December 18, 2017

Negotiating a Commercial Lease; What to Look For.


There are number of considerations for business owners involved in negotiating a commercial lease, not the least of which is the fact that the main objective of landlords is to maximize profits. By understanding the following fundamental concepts, it is possible to make a good deal.

Market Conditions

First, understanding the market conditions for commercial properties is crucial. Generally, pricing is based on square footage, but there is a difference between "usable" square feet and "rentable" square feet.

Rentable square feet is the actual measurement of the space that is being leased.
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Monday, December 11, 2017

Caution: Sexual Harassment in the Workplace -

Given the many high profile cases in the media over the past several months, it is crucial for any business to understand its responsibility to prevent sexual harassment in the workplace. However, most people do not know what constitutes sexual harassment. Some assume it applies only to behavior between people of the opposite sex. However, this is not true...sexual harassment can be found in same sex behavior. 

Generally, sexual harassment is deemed to be a form of sex discrimination under Title VII of the Civil Rights of 1964 (Title VII), and most states have far stricter laws in place designed to prevent harassment.

There are two types of sexual harassment: quid pro quo ("this for that") and hostile work environment.

  • Quid pro quo - This occurs when an employer, most often a person in a position of authority, demands sexual favors in exchange for a job or any other benefit of employment including promotions, bonuses and raises. An employee who is fired, disciplined, or given a poor performance evaluation, for refusing a sexual advance may be the victim of this form of harassment.
  • Hostile work environment - This involves an employee being subjected to a pattern of unwelcome conduct, such as comments or visual displays, that is severe or pervasive enough to create a distressing work environment and alter the conditions of employment.

Under federal law and most (but not all) state statutes, In order to have grounds for a claim the employee must demonstrate that he or she believed the conduct was offensive or hostile. It is also necessary to show that a reasonable person in the same position would believe the conduct was hostile. Finally, the employee must prove that he or she complained to a supervisor or someone else in a position of authority and that the employer failed to take action to stop the harassment.

Before filing a federal lawsuit, the employee must file a complaint with the Equal Employment Opportunity Commission (EEOC). This is referred to as "exhausting administrative remedies" and is required if the employee wants to avail him or herself of protections afforded by federal law. If the matter is not resolved at the EEOC level, a "right to sue" letter is issued and a civil lawsuit can then be filed.

State laws may differ. For example, in New Jersey under the Law Against Discrimination (LAD), an employee can file a sexual harassment lawsuit in state court without first filing a complaint with the New Jersey Division on Civil Rights. Attorneys often recommend doing so as the remedies available under the NJ LAD may be better than under federal law or the employer may not be covered by federal law because it has too few employees.

In short, all employees have a right to a workplace that is free from sexual harassment. It is crucial for any business to establish policies to prevent such conduct, and institute procedures to address any employee concerns. Ultimately sexual harassment is bad for business because it can create a toxic work environment that adversely impacts employee morale. Moreover, a lawsuit can not only lead to a costly settlement, but also damage a company's reputation.

If you believe you are the victim of sexual harassment or any form of discrimination on the basis of your gender, gender identity, or sexual orientation, do not wait and hope "it will go away" on its own. Contact an employment law firm, such as The Law Office of Randall P. Brett, to discuss your situation and what can be done.

If you are an employer, do not tolerate any form of harassment, whether sexual or not (including bullying). Contact an experienced employment law firm, such as The Law Office of Randall P. Brett, to review your policies and procedures and provide guidance regarding permissible supervisor behavior and management responsibilities. 


Thursday, December 7, 2017

Franchise Agreements - What, Why & How

A franchise agreement is a contract that governs a franchise relationship.  These agreements are entered into by the franchisor, the entity that owns the business model, and the franchisee, the individual or entity that will run a location of the business.  While the terms of each contract are unique to the particular deal, most include similar provisions. 

Most franchise agreements will include provisions describing where the franchise will operate and whether that territory is exclusive.  The agreement will also detail how long the franchise relationship will last.

These contracts will most likely include terms regarding franchise fees and royalties the franchisee will have to pay the franchisor.  The agreements will also usually contain provisions relating to how the franchise is to be run on a day to day basis, including details as to what training is to be provided by the franchisor.

Terms relating to intellectual property owned by the franchisor are very important in franchise situations.  Franchise agreements include provisions instructing how patents, trademarks and copyrights can be used by the franchisee.  Advertising terms are also usually included in these contracts as it is likely that the franchisee will have to contribute toward advertising costs.

Termination and renewal terms are also essential parts of a franchise agreement.  These detail how the franchise relationship can be ended before the natural expiration and how the relationship can be revived if the parties so choose.  It is also common to find terms relating to disputes that may arise between the franchisor and franchisee and how these disputes are to be resolved.  This is where alternative dispute resolution and choice of law clauses may be utilized.  Terms relating to the resale of the franchise might also be present, as many franchisee’s have this option, although there may be a right of first refusal clause accompanying it.  This would provide the franchisor with the option of buying back the franchise before anyone else.

Franchise agreements determine all of the details of the franchise relationship and therefore must be clear and understood by all parties.  They can often be complex and it is therefore of the utmost importance to consult with a business law attorney who has experience with franchise law to advise you and negotiate with the franchisor. The Law Office of Randall P. Brett has assisted many entrepreneurs in evaluating and launching new businesses, including franchises.


Tuesday, May 30, 2017

Negative Online Reviews - Do They Constitute Business Defamation?

We are living in the digital age and consumers use the internet to make a variety of decisions, including what products to buy and what professionals to hire. During their research,  many savvy consumers go online to look at the reviews the business has received on local business directories like Yelp or Google+.  These online reviews can have a profound effect on the success of your business so it is important to understand your rights should your business receive a negative one. 

In the case that your business has received a negative online review, you may have recourse under state or Federal defamation laws.  However, before pursuing that route, you should consider using any dispute or review process provided by the review site.  Defamation is generally defined as the act of intentionally publishing a false statement that has the ability to negatively effect another’s reputation.  Defamation laws protect individuals and businesses alike.  Publication is the communication of the defamatory statement to another person and the act of posting a review to a website usually qualifies.  Whether a statement has a negative effect on another’s reputation is judged using a reasonable person standard and will be looked at on a case by case basis.  In order for the statement to actionable, it does not have to be intentionally defamatory; it just has to be intentionally published.  Defamatory statements must be false and cannot be opinions.  Whether your situation meets the necessary threshold for defamation may be difficult to ascertain, so it is important to consult with a qualified attorney before pursuing a claim for business defamation.

If you believe that your business has received an online review that contains false information and is damaging to your business reputation, you might have a claim for defamation.  Recent civil cases for this type of wrong have resulted in large verdicts for the businesses that were injured.  While you most likely cannot pursue an action against the hosting website, as they are usually exempt under the Digital Millennium Copyright Act (DMCA), you might be able to recover from the individual that made the statement.  All litigation should be considered using a cost-benefit analysis and business defamation cases resulting from online reviews are not any different.  


Tuesday, April 11, 2017

Why Your Business Needs an Email Policy.


In the contemporary workplace, email is an essential and efficient form of communication. Whether it is used internally among staff members, or for exchanges with vendors and customers, email is a necessary business tool. At the same time, misuse of this technology can expose an organization to legal and reputational risks as well as security breaches. For this reason, it is crucial to put a


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Tuesday, April 4, 2017

Entrepreneurial Immigrants: Building the American Dream.

The American Dream of starting your own business and pulling yourself up by your bootstraps is alive and well. If you are an immigrant and are considering starting a business in your new homeland, there may be a number obstacles ahead of you.
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Tuesday, March 28, 2017

Are employees owed overtime for checking and answering email after hours?


Technology is a double-edged sword. It allows us to work remotely and to have greater flexibility as to where and when we work, but the freedom it affords can also be a burden. All the work that is being done outside of work hours is creating a compliance problem for many businesses.


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Monday, March 13, 2017

Hiring The Right Person The First Time -


With the improving economy has come a tightening in the job market. Good employees are becoming harder to find. While no one can guarantee that you will always make a sound hiring decision, here are several tips to improve the odds that you will find and hire the best person available for your open position.


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Monday, February 27, 2017

Employment Discrimination Laws in a Nutshell -

There are a variety of state and federal laws that make it illegal for employers to discriminate based on certain characteristics when making decisions about hiring, terminating, promoting, demoting or compensating employees, or any other terms and conditions of employment. Employers are also barred from retaliating against employees who file a discrimination-related complaint or engage in other protected activities. While the laws vary from state to state, all employers have an obligation to adhere to the following federal laws.

Title VII of the Civil Rights Act of 1964

This law prohibits discrimination in the workplace based on race, color, national origin, religion and gender. Title VII also established the Equal Employment Opportunity Commission (EEOC), the government agency that is tasked with investigating employment discrimination claims.  Before an employment discrimination lawsuit under federal law can be brought, it is necessary to file a claim with the EEOC. Title VII applies to employers with 15 or more employees.

Age Discrimination in Employment Act (ADEA)

The ADEA prohibits employers with 20 or more employees from discriminating against individuals who are 40 years or older and their age cannot be used as a factor in any employment decision.

The American with Disabilities Act (ADA)

The ADA prohibits employers with 15 or more employees from discriminating or harassing disabled employees and requires employers to make reasonable accommodations that will enable a qualified disabled worker to complete his or her job functions.  

The Pregnancy Discrimination Act (PDA)

The PDA prohibits discrimination based on pregnancy regarding any aspect of employment in businesses with 15 or more employees. Women who are temporarily unable to perform their jobs due to pregnancy must be treated similarly to other temporarily disabled workers. The ADA may also protect a woman who suffers from a pregnancy related medical condition.

State and Local Laws

Most states and many municipalities have laws governing the treatment of employees. For example, The New Jersey Law Against Discrimination ("NJLAD") NJSA 10:5-1 prohibits employment discrimination based on race, creed, color, national origin, ancestry, age, marital status, familial status, sex or sexual orientation, atypical cellular or blood trait, generic information, or service in the armed forces.  This law is considered "remedial legislation" and can provide relief beyond what federal law may permit.

An example of protection under municipal law is the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York. This law prohibits discrimination in New York City and provides relief in excess of what is required under New York State law. Individuals are protected from discrimination in many areas, based on a number of protected classes.

The Bottom Line

In sum, employers are prohibited from discriminating against employees and potential job candidates because of race, religion, sex, age, disability, pregnancy or national origin. Not only can violations lead to financial penalties, a discrimination lawsuit can damage a business' reputation. By engaging the services of an experienced employment law attorney, you can establish policies and procedures to ensure that your business is in compliance with these laws.

The Law Office of Randall P. Brett assists employers to avoid claims of discrimination and provide strong legal representation in court if needed. The firm also works with employees who have suffered discrimination to achieve just outcomes for their claims.

 


Tuesday, November 15, 2016

Oral Contracts - Are They Binding? -

There is quote attributed to Samuel Goldwyn, a famous film producer in the early years of Hollywood, that goes "A verbal contract isn't worth the paper it's written on". While this is actually a misquote of what was really said, nevertheless it conveys a widespread misconception that verbal contracts are unenforceable.  However, a contract made orally with another party, without embodying the particular terms in a signed writing, can still be valid and binding. Even so, any disagreement concerning the deal may pose multiple problems for both parties. 

In order for the court to give a verbal contract legal effect, the terms of the deal will have to be demonstrated.


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Tuesday, November 1, 2016

Opening a new restaurant? -


Some key legal considerations for restaurateurs

Each year, approximately 30,000 new restaurants are opened in the United States. Most restaurateurs understand the great risk that comes with these ventures; in fact, some sources estimate as many as 18,000 of the 30,000 restaurants opened this year will fail within the first three years in business. Despite the risk, many chefs and hospitality professionals dive right in. If you’re a hopeful restaurateur, legal planning is an absolute necessity to ensure you don’t fall victim to many of the common mistakes that cause these businesses to fail. Consider the following:

Business Entity
All restaurant owners must carefully consider the best corporate structure for their businesses.


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