Jacksonville Small Business Lawyer & Attorney : Sabrina Bateh Law Firm : Commercial Leases, Business Agreements, Trade Secrets : Jacksonville, Northeast Florida

Part I: What is in a name?

Shakespeare, in Romeo and Juliet, toyed with the question, “what is in a name?” Interestingly, in the business world today, much more is in a name than Shakespeare could have ever imagined. 

Today, you must consider whether or not the name you have chosen is already in use. If it is, then you can't use it.  This search can be done through sunbiz.org. Through this State of Florida website, you can search to see if another entity has registered the business name already. 

Is your business name composed of non-English words? This can pose a problem. Recently, I came across a wonderful Vietnamese restaurant that is named Phở King Noodles (pronounced Fah King). Delicious restaurant, bad name – now, they call themselves PK Noodles and this works much better!!

Also, consider the wonderful coffee house, Bad Ass Coffee. Some people just snicker and patron the coffee shop for their daily caffeine fix while others won’t go there because the name doesn’t make them comfortable.

Today, you must also consider trade name infringement. Are you opening a burger joint? Do you want to call it MicRonald’s? You can’t – McDonald’s will sue you. Also, with trade name considerations, come trademark considerations. Are you opening a computer store? Do you want your logo to be an apple without a bite taken out of it? You likely can’t do that either! This will trigger the public to think that your business is somehow associated with Apple, Inc. and guess what? Apple will likely sue you. 

Take your time, and wisely consider the name of your business. Think about unique marketing that you can do with the business name. Also, think about public perception and preventing lawsuits.

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Watch Who You Hire

Do background checks before hiring employees – if they end up being a criminal and steal from your business, it is likely that they are also stealing from your customers and you could be liable.

                                                                           Employee Files

Create an employee file for each employee. This file should contain their W-4 and I-9 along with any employment, non-compete or trade secret agreements that they may have signed. Also, include in this file, employee write-up forms in case of unsatisfactory performance.

Properly Pay Overtime

According to an article in BusinessWeek Magazine, overtime litigation is a hot topic.  The Fair Labor Standards Act dictates which employees can be exempt from overtime pay.  It is important that you regularly audit your payroll and employee classifications.  If an employer misclassifies an employee, the employer could be liable for twice the amount of unpaid overtime as well as the employee’s attorney’s fees.

 Draft an Employee Policy Manual

* Include a disclaimer: THIS IS NOT AN EMPLOYMENT CONTRACT

* Make no promises in the manual

* Do not use the words: “Employer shall” or “Employer will,” always state “Employer may”

* Also Include: grievance procedures, prohibited activities and specific consequences.

** Employee must sign a form acknowledging receipt of Employee Policy Manual

Cutting Ties with Employees

Former employees can remain a danger. Be sure that you don't fire someone for an improper reason.  Always document reasons for termination and inform the employee of the reasons.  If possible, have the employee sign a write-up slip for each violation of the employee manual or unsatisfactory performance.  This slip should be kept in the employee's file.

                                                  Inc. or LLC, Alone, is a Ticking Time Bomb

Personal assets are not automatically protected if you incorporate or form an LLC. As a shareholder of a corporation or a member of an LLC, your liability is limited to your ownership interest. However, this limited liability is only good so long as 1) a shareholder meeting is conducted annually; 2) personal assets and liabilities are kept separate from the business’; 3) accurate corporate records are kept; and, 4) the business is not undercapitalized. 

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