Essential Advertising Rules For Businesses

Essential Advertising Rules For Businesses

Whether your business is a mom and pop operation or has a multistate presence, it is important to be familiar with the applicable state and federal advertising laws. This article outlines basic advertising rules — where they come from and how they operate — and offers tips on how to make sure your business is in compliance.

Where Advertising Law Begins

The advertising rules that dictate what businesses can and can’t say in ads come from applicable state and federal laws. Typically, these laws focus on truth in advertising, deceptive advertising practices, and unfair advertising. State and federal laws and agencies aim to curb these advertising practices, require businesses to be truthful about their products or services, and to substantiate claims that they make in advertisements.

There is a fine, but generally clear, line between a business making unsubstantiated claims (which violate the law) and simply making subjective boasts about their product. For example, you can claim to have the best tasting coffee, but you cannot advertise that everyone who drinks your coffee loves it or that drinking your coffee will help you live longer.

Federal & State Law and Enforcement

The Federal Trade Commission (FTC) enforces advertising laws at the federal level, and every state also has a consumer protection agency which enforces state advertising laws. Additionally, the state attorney general and district attorney have the power to litigate against companies whose advertising harms citizens within their jurisdiction.
The FTC develops, reviews and enforces federal consumer protection laws and has the power to litigate claims through its Division of Advertising Practices.

FTC Advertising Laws

Under the watchful eye of the FTC, the following general advertising rules must be followed:
• Ads must be truthful and non-deceptive
• Businesses must have evidence to back up their claims
• Ads can’t be unfair, meaning the advertisement can’t cause substantial injury to consumers that consumers can’t reasonably avoid. For example, ads cannot make claims about health benefits that will lead reasonable consumers to buying a product, who only find out later that the product is actually harmful.

The FTC wields enormous power in enforcement and will first attempt to work out claims privately with the advertiser. If the advertiser doesn’t comply, the FTC can sue the company on behalf of harmed consumers and force the advertiser to run new ads that correct statements or implications of previously false, deceptive, or unfair ads. For example, television ads for Yaz birth control pills make mention of a previous ad that “may” have misled consumers. This corrective ad campaign was the result of the FTC and FDA winning a court battle and forcing the drug maker to run corrective ads (which cost the drug maker $20 million, in addition to fines levied by the FTC and FDA).

Federal Lanham Act

While the FTC enforces consumer protection laws on behalf of consumers, the Lanham Act allows business competitors to privately sue advertisers for false advertising. The Lanham Act principally concerns violation of trademark law, but competitors can also file lawsuits for false advertising. To sue under the Lanham Act, you must prove the following:
• Advertiser made factually false claims about the product
• Advertisement did or could deceive a large segment of the target population
• Deception was an important part of the ad
• Product was sold across state lines
• Competitor (plaintiff) was likely to be harmed by the deception
Note that while the Lanham Act protects consumers (from trademark confusion and false advertising), only competitors can sue under the act.

Utah Advertising Law

As mentioned, each state also has its own set of consumer protection laws which protect consumers against unfair competition and deceptive advertising practices. Whereas under federal law consumers have very limited rights to sue, under state laws, consumers typically have more power to privately sue companies for false or deceptive advertising.
For example, if you own a business and you believe a competitor is using a deceptive ad that could lead consumers to falsely believe that the product they are selling is actually coming from your company, you have several options. You could report the ad to the FTC and they could deal with it, you could sue under the Lanham Act (either for false advertising or trademark infringement, or both), or you could sue under your state’s unfair competition laws. If you’re a consumer, however, you can only sue in state court, assuming that you purchased the product based upon the deceptive advertisement.

Be Honest In Your Advertising

Telling the truth is the simplest rule, but is also where the most trouble comes from. Slight exaggerations and boasting (“the best coffee!”) are expected and for the most part allowed in advertisements, but don’t get too tricky with your wording or rely on technicalities to remain truthful. For example, you might be able to truthfully say that your tent is great in rainy conditions, but don’t extend the assertion to wind if you haven’t tested it or it just stands up to a slight breeze.
Additionally, if you’re a blogger or communicate using twitter and are being paid by a company to promote their goods, you must disclose the relationship. Not only is it the right, honest thing to do, the FTC has ruled that not doing so amounts to deceptive online advertising.
No Deceptive Pricing
All bargain ads tout extra low sale prices, and this is of course allowed. Just be certain that the sale price is actually a lower price than the regular price of the item. If you’re selling a shirt on sale for $50, it had better be the sale price and not the regular price. Making up a fictitious regular price in order to tout a “lower” sale price is deceptive and you risk not only being sued, but losing the faith of your customers.
Additionally, don’t advertise that something is “free” unless it really is free. If a customer has to pay for any additional service, state this fact clearly in the advertisement. Consumers understand “free” to generally mean that they must buy another item at a regular price to collect the free product. Advertising that something is free but then charging customers more for regularly priced items in order to collect the free item is deceptive and illegal.
Free offers and rebates are great marketing tools, just make sure that your offer is honest and above board.
No Baiting and Switching
Related to deceptive pricing is the classic bait and switch, where an advertiser lures customers into the store with an offer but does so with no intention or desire to sell that item at that price. Typically, businesses who use bait and switch advertising seek to sell a higher priced product or one of which they have too much inventory. All advertisement must be part of a bona fide effort to sell the advertised product.

If you run an advertisement touting a computer at half off, be sure to have enough of that product to meet reasonable consumer demand. If you don’t, then clearly state that you have limited quantities so that consumers expect it. If you don’t, you run the risk the ad being ruled a bait and switch or running afoul of certain states’ laws which require a certain amount of advertised inventory be in stock.
Don’t Knock Your Competition — Unless It’s Factually Accurate
Mentioning your competition in an advertisement in order to compare the products is fine. However, when you make claims about a competitor that haven’t or can’t be proven, you crossover into dangerous ground. The competitor may be able to sue under a variety of federal and state laws, and consumers may be able to sue under state laws.
For example, you can say that a competitor sells only athletic shoes when touting your wide variety of athletic gear, including shoes, clothing and accessories. However, you should not denigrate their business by claiming their sales associates are unknowledgeable or unprofessional. (You can, of course, tout your sales associates’ knowledge and professionalism, you just shouldn’t do it by denigrating the competitor, particularly by name.)
Testimonials and Endorsements
Whether you use celebrity endorsements or testimonials of regular customers, make sure that what they are saying is true. Unless the endorser is a celebrity or expert, if you’re paying an endorser, it must be disclosed. Additionally, when using a testimonial of a normal user of your products, when showing the product’s use, it must be during the normal use of the product. If you’ve retouched an important part of a photo or the product is being used in any other manner than its normal, intended use, it must be disclosed.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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How To Handle Harassment And Discrimination Complaints

How To Handle Harassment And Discrimination Complaints

Employees have the right under the law to report discrimination or harassment to an employer. An employer should deal with harassment or discrimination complaints immediately. The failure of an employer to conduct an investigation can lead to much bigger problems, such as a lawsuit.

When an employee files a harassment or discrimination complaint, an employer should:
• Listen to the accuser
• Take the complaint seriously
• Not retaliate against the accuser
• Keep the complaint confidential
• Not delay in conducting an investigation
• Conduct a thorough investigation
• Document the investigation
• If necessary, hire a third party to conduct the investigation
• Discipline a guilty party
Listen to the Accuser
Take the time to listen to the accuser’s complaint. Even if a workplace seems free of conflict, this does not rule out the possibility of harassment or discrimination. Avoid making the following mistakes when listening to an employee’s complaint:
• Do not make assumptions about the truthfulness of the complaint;
• Do not reach unfounded conclusions;
• Do not fail to recognize whether a complaint involves illegal discrimination based on sex, race, national origin, disability, age, or religion;
• Do not decide not to investigate.

Take All Harassment Complaints Seriously

There is nothing worse for an employee than to make a complaint that is not taken seriously by an employer. Even if the employee has a history of making complaints, it is necessary to consider each one seriously. The failure to treat a compliant with sufficient seriousness may lead an employee to file a complaint with the Equal Employment Opportunity Commission (EEOC), the federal government agency charged with enforcing laws against discrimination in the workplace.

Don’t Retaliate

When an employee makes a complaint, avoid retaliatory actions. The EEOC enforces laws that prohibit employers from engaging in retaliatory measures — or adverse actions — against a person that makes a complaint of illegal discrimination or against a person that participates in a discrimination investigation or lawsuit. Adverse actions include firing, harassing, demoting, pay cuts, job reassignments, or other forms of retaliatory measures.

Keep All Harassment Complaints Confidential

The details surrounding a complaint should be kept as confidential as possible. Even though it may be impractical to keep the allegations completely confidential, attempt to keep as many details a secret as possible. This will prevent employees from taking sides or spreading rumors. Make sure the accuser is aware that the investigation will result in the disclosure of some information.

Delaying the investigation of a complaint could create several problems. A delay may indicate the employer’s failure to take the complaint seriously, could result in further harassment of the accuser, may allow the loss of relevant evidence, or may result in inadequate discipline of the accused.
Conduct a Thorough Investigation of Complaints
An investigation of a complaint should involve corroboration through interviews of the parties involved, witnesses, and through the identification of evidence. When interviewing the accuser and the accused, ask the following types of questions:
• What happened;
• Where did it occur;
• What was said;
• What witnesses were present;
Make sure to distinguish fact from opinion. Corroborate the stories of the accuser and the accused by interviewing witnesses present when the incident occurred and by gathering other types of evidence. Evidence can include emails, time cards, schedules, and notes from meetings.

Do An Investigation And Document It Carefully

It is important to keep a written record detailing the steps taken in an investigation. This could become essential evidence if the employee files a complaint with the EEOC. If the EEOC conducts its own investigation, it will request the documentation created by employer. Documentation can include a formal report of the employer’s findings or notes that provide details about interviews, discipline imposed on the accused, the reason for not imposing discipline, and conclusions.

Hire Ascent Law LLC to Do the Investigation

In some circumstances, it may be best to hire a third party, such as a lawyer, a law firm, or a consulting agency, that specializes in employee harassment and discrimination complaints. This may be appropriate in situations where the accusations have become public, when an employee lodges a complaint against a high-ranking superior, or when the charges are criminal in nature.

Imposed Discipline If Appropriate Or Terminate Employment

If an investigation turns up evidence that the accused did engage in the alleged discrimination or harassment, an employer should institute appropriate discipline. In some cases, a suspension, a warning, or counseling may be adequate. In other circumstances, when the actions of the accused involved threatening behavior or violence like rape, unwanted touching, or stalking, termination may be the most appropriate disciplinary action.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Offering Employee Benefits

Offering Employee Benefits

Employers are not required by law to offer benefits such as health insurance coverage, pension plans, and paid vacations. These types of benefits can be quite costly for small businesses, at least at first glance, so why do employers offer them? Since payroll is already the largest line item on most employers’ balance sheets, and recruiting new employees costs time and money, you want to make sure you’re able to attract and retain the best talent possible. This is particularly relevant in competitive fields where workers have multiple options. Employers who can afford to offer benefits usually have a wider selection of candidates from which to choose.

But small businesses must manage expenses and cash flow wisely, so business owners must approach these considerations cautiously and prudently. After all, great benefits only go so far if the company spends more money on them than it takes in. Also, employers who offer benefits also are bound by certain laws and regulations. Regardless of whether there are violations, employers often need to pay advisers and attorneys to help them create benefit plans that comply with the law.

Below are some considerations to weigh when deciding if providing employee benefits will also benefit your business.

Some Pros For Offering Employee Benefits

• A benefits package, especially one that offers good health insurance coverage (including dental and vision), helps attract and retain quality employees.
• Businesses get the tax advantage of deducting plan contributions, including health insurance, life insurance, and pension plans.
• Employees often will accept better benefits in lieu of a higher salary, which can be a savings to the business.
• Offering benefits to employees also can be advantageous to a business owner, who may be able to get personal benefits for less money than if he or she purchased them privately.

• Offering health insurance has been shown to decrease absenteeism and improve employee health and morale; those with coverage are more likely to seek preventative care and live overall healthier lives.

Reasons Not to Offer Benefits

• Providing benefits costs more for small employers than for large ones, both in terms of higher prices because of lesser buying power, and due to relatively higher costs of administration.
• Small businesses have less choice in designing a retirement plan because of administrative costs.
• The more benefits a business offers, the more it must pay for administrative overhead.
• The cost of health insurance has steadily risen, making it less and less affordable to employers, and making financial planning difficult from year to year (although the small business provisions of the Affordable Care Act have altered this balance by incentivizing employer-funded benefits).
• Offering benefits creates concerns regarding legal compliance, which in turn causes a company to incur legal fees.
• Mistakes made in benefit plans can lead to costly lawsuits, or to regulatory fines.

Construction Contracts

Whether you’ve rented a car, leased an apartment, or signed up for a credit card, chances are you’ve signed many contracts as an adult. However, you might not have encountered a construction contract yet, and it may seem rather foreign when you first start to read through it. While it’s best to have an experienced construction law attorney advise you on the particulars, below are a few special considerations to think about when you’re getting ready to sign a construction contract.

Construction Contracts in General

A contract is a legally enforceable agreement between two or more parties. Each state has its own laws regarding the requirements for and enforcement of contracts, but many contracts must be in writing. For example, contracts for construction that could take more than a year to complete must be in writing. Similarly, construction loan financing and contracts involving the sale of improved real estate must also be written down.

While some construction contracts may be oral, it’s always best to have your contract in writing so that it’s clear what each party is responsible for, what the payment terms are, and what happens if something goes wrong. If there’s a dispute down the road, a court can more easily decide what’s fair under a written agreement.

An important consideration with regard to construction contracts is determining who the parties are and what their obligations are to each other. While some agreements may be straightforward – an understanding between you and a handyman – other construction contracts can be more complicated with the addition of a general contractor, subcontractors, architects, designers, and even government entities.

For example, if your construction contract only mentions some obligations between you and a general contractor, you could face serious problems if the general contractor fails to pay any of its subcontractors. In these situations, a subcontractor may come after you for payment (even if you’ve already paid the general contractor for the work), and could place a mechanic’s lien on your property to enforce payment. However, if your contract had anticipated these types of situations, you would have been better protected against this whole ordeal.

Because construction projects can involve so many different people, it’s important for the contract to articulate who these actors are and the aspects of the project for which each is responsible. That way, if something goes wrong, such as a construction defect issue, the contract can help guide the parties to some sort of equitable resolution.

Types of Construction Contracts: Allocating Risk and Making Payments
Another important consideration in construction contracts is the way payments are made and the work is completed. There are many types of contracts, and each one carries its own benefits as well as inherent risks. Below are some common types of construction contracts.

• Lump Sum or Fixed Price Contract: In these contracts, the owner pays a total fixed price to the contractor for the whole construction project. This puts much of the risk on the contractor since he or she may underestimate the cost to complete the project.

• Time and Materials: Here, the owner pays the contractor on an hourly or daily rate, plus an amount to cover materials used. This allows you to pay for the time worked, but may encourage the contractor to take more time with the project.

• Cost Plus: In these arrangements, you pay all of the allowed, actual construction expenses, plus an amount to cover the contractor’s profit. With cost plus contracts, the owner should include limits on the amount a contractor can bill.

Regardless of the exact type of construction contract you use, there are many issues to anticipate, and it’s important to know exactly what you’re paying for, how changes will be handled, and what the timeline for completing construction will be.

Business Lawyer Free Consultation

When you need legal help with your business in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Employee Benefits and Executive Compensation Law

Employee Benefits and Executive Compensation Law

Executive Compensation and Employee Benefits looks at pay and compensation guideline influencing executives, employees and organizations in significant purviews around the world. Points secured include: normal arrangements of work understandings; corporate administration necessities; disallowed compensation; executive compensation exposure rules; impetus and value compensation; compulsory benefits; end cutoff points and prerequisites; post-business prohibitive contracts; annuities and retirement benefits and change in charge issues.

Benefit projects run the typical range natural to salaried employees. They incorporate statutory benefits, for example, Social Security, Medicare, Workers Compensation, and Unemployment Insurance. Executives additionally take an interest in other organization benefits, for example, excursion, occasions, days off, severance pay, disaster protection, and restorative protection. Notwithstanding the benefits gave salaried employees, executives are regularly qualified to partake in extraordinary retirement plans. These plans, dissimilar to those that apply to all employees, are not ensured by government expense and benefits manages and are not normally verified by a trust. Rather, the sums in these plans are in danger, and if the organization is unfit to pay them, for example, in indebtedness or chapter 11, the executive would be in danger to lose such benefits.

These exceptional plans incorporate the accompanying:
• Nonqualified conceded compensation plans which enable executives to willfully concede pay and extra sums until a date certain, demise or retirement (much like a non-charge favored 401(k) plan).

• Supplemental Employee Retirement Plans (SERPs) which are intended to enhance conventional annuity plans, however are in danger Numerous nonqualified conceded compensation plans and SERPs are “rebuilding plans” intended to enable executives to spare a similar level of pay as different employees may spare in expense favored plans. Employee benefits ordinarily alludes to retirement plans, wellbeing extra security, disaster protection, incapacity protection, get-away, employee stock possession plans, and so forth. Benefits are progressively costly for organizations to give to employees, so the range and choices of benefits are changing quickly to incorporate, for instance, adaptable benefit plans.

Benefits are types of significant worth, other than installment, that are given to the employee as a byproduct of their commitment to the association, that is, for carrying out their responsibility.

A few benefits, for example, joblessness and specialist’s compensation, are governmentally required. (Specialist’s compensation is extremely a laborer’s correct, as opposed to a benefit.) Unmistakable instances of benefits are protection (therapeutic, life, dental, handicap, joblessness and laborer’s compensation), excursion pay, occasion pay, and maternity leave, commitment to retirement (annuity pay), benefit sharing, investment opportunities, and rewards. (A few people would consider benefit sharing, investment opportunities and rewards as types of compensation.) You may consider benefits being unmistakable or elusive. The benefits recorded already are unmistakable benefits. Impalpable benefits are less immediate, for instance, thankfulness from a supervisor, probability for advancement, pleasant office, and so forth. Individuals here and there discuss incidental advantages, more often than not alluding to substantial benefits, yet some of the time meaning the two sorts of benefits. You may likewise consider benefits organization paid and employee-paid. While the organization normally pays for most sorts of benefits (occasion pay, get-away pay, and so on.), a few benefits, for example, restorative protection, are frequently paid, in any event to a limited extent, by employees as a result of the mind-boggling expenses of medicinal protection.

Compensation incorporates themes as to wage as well as pay projects and structures, for instance, pay ranges for sets of expectations, merit-based projects, reward based projects, commission-based projects, and so forth. (Additionally observe the Related Info (counting Benefits). Compensation is installment to an employee as a byproduct of their commitment to the association, that is, for carrying out their responsibility.

The most widely recognized types of compensation are wages, pay rates and tips. Compensation is generally given as base pay as well as factor pay. Base pay depends on the job in the association and the market for the aptitude required to lead that job. Variable pay depends on the exhibition of the individual in that job, for instance, for how well that individual accomplished his or her objectives for the year. Motivator plans, for instance, extra plans, are a type of variable pay. (A few people should seriously think about rewards as a benefit, as opposed to a type of compensation.) Some projects incorporate a base pay and a variable pay. Associations generally partner compensation/pay ranges with sets of expectations in the association. The reaches incorporate the base and the greatest measure of cash that can be earned every year in that job. Employees have certain monies retained from their finance checks, normally including government personal expense, state annual duty, FICA (standardized savings) commitments, and employee commitments to the expenses of specific benefits (frequently therapeutic protection and retirement). Expert, the board and different sorts of talented occupations are named excluded. Absolved occupations get a compensation, that is, a fixed measure of cash per time interim, for the most part a fixed sum for every month. It’s normal for absolved positions to get higher compensation and benefits than non-excluded employments, despite the fact that non-absolved occupations frequently can get more cash-flow than excluded employments just by working more hours. Incompetent or section level occupations are normally delegated non-excluded. Non-absolved occupations generally get a compensation, or a measure of cash for each hour. Non-excluded occupations likewise get paid after some time, that is, additional compensation for quite a long time worked more than 40 hours per week or on certain days of the week or on siestas. Each activity must have a similar pay run for anybody playing out that activity, that is, one individual can’t have a higher most extreme pay than another person doing that equivalent employment.

It is amazingly valuable to reference compensation overviews when deciding pay rates. The overviews loan enormous believability and reasonableness to the way toward deciding compensation. Make certain that overviews are fairly current. Reference them to discover the pay rates for the activity jobs that are the nearest match to the jobs you are choosing the compensation for. The closer you can coordinate the job to the kind of administrations, area and employment title of the job you are choosing compensation for, the more helpful the overview is probably going to be to you, particularly if the review was produced in the previous five years or less.

Utah has laws that give more noteworthy securities to employees than government law, including pregnancy settlement rights and human services continuation inclusion commitments for littler managers, however for the most part pursues administrative law regarding themes, for example, the lowest pay permitted by law and word related well being. Select Utah business necessities are abridged underneath to enable a business to comprehend the scope of work laws influencing the business employee relationship in the state. A business must conform to both government and state law.

A business should likewise follow pertinent civil law commitments influencing the work relationship, notwithstanding conforming to state and government prerequisites.

The Utah Antidiscrimination Act (UADA) restricts segregation and badgering dependent on ensured attributes, for example,
• Race;
• Shading;
• Sex;
• Pregnancy, labor or pregnancy-related conditions;
• Age (40 years or more seasoned);
• Religion;
• National inception;
• Inability;
• Sexual direction; and
• Sexual orientation character.

The UADA, which applies to bosses with at least 15 employees, additionally precludes striking back against an employee since the person restricted illicit segregation, recorded a protest or partook in a procedure, examination or hearing. The UADA requires a business with at least 15 employees to give sensible facilities to pregnancy, labor, breastfeeding and related conditions. A business may expect employees to give confirmation enumerating the medicinal requirement for a sensible settlement, except if the employee has mentioned increasingly visit bathroom, nourishment or water breaks. Know that where there is cover between government, state or potentially nearby law, agreeing to the law that offers the best rights or benefits to the employee will for the most part apply.

A business that tests candidates for medications and liquor must meet certain necessities, for example,

• The business or potentially its administration must submit to comparative medication and liquor testing on an occasional premise;
• The business must pay all expenses of testing it requires;
• The testing must happen during, or following, the customary work time of current employees; and
A candidate must be allowed a chance to tell the business of any data that the person in question thinks about applicable to the test, for example, distinguishing proof of right now or as of late utilized medicine and nonprescription medications. Extra data on enlisting and employing rehearses in Utah can be found in Preemployment Screening and Testing: Utah and Does This Law Apply to My Organization in Utah? Government prerequisites can be found in Preemployment Screening and Testing. Key Utah prerequisites affecting wages and hours are:

• Utah’s lowest pay permitted by law is $7.25 every hour, equivalent to the government the lowest pay permitted by law. The lowest pay permitted by law must be checked on at regular intervals and whenever the government the lowest pay permitted by law is changed. Utah’s lowest pay permitted by law may not surpass the government the lowest pay permitted by law.
• Child work laws in Utah limit the occupations where minors might be utilized and the quantity of hours and times during which they may work. A minor may not work in any occupation esteemed risky by government law. Exemptions apply. Minors 16 years old or more established may work in:
o All occupations not announced dangerous; and
o Occupations that include the utilization of engine vehicles if the minor is authorized to work the engine vehicle for business purposes under state law.
o Minors 14 years old or more seasoned may work in an assortment of nonhazardous occupations, including:
 Retail sustenance administrations;
 Car administration stations, aside from the task of engine vehicles and the utilization of cranes;
 Open errand person administration;
 Janitorial and custodial administration;
 ard care; and
 The utilization of endorsed sorts of vacuum cleaners, floor polishers, control garden trimmers and walkway snow evacuation hardware.
Child work laws additionally list different occupations in which minors beyond 12 10 years old beyond 10 years old are allowed to lock in.
Utah’s medicinal services continuation inclusion law applies to all businesses. Under the law, a business must offer continuation of heath care inclusion for as long as a year to an employee and his or her secured wards who lose inclusion due to:

• The passing of the employee;
• Occupation end (except if ended for gross wrongdoing);
• A decrease in hours;
• Retirement;
• Separation or legitimate partition;
• A needy tyke stopping to be a secured ward;
• Vacation;
• Inability; or
• Time away.
• Installment of Wages

A business may pay its employees with money or check, as long as the employees can money their checks at full assumed worth and the business does not assign a specific budgetary organization for the elite installment of checks. A business may pay compensation by direct store or electronic paycards if certain conditions are met.

In Utah, a business may make wage conclusions whenever required by a court request or by state or government law (e.g., tyke bolster retaining, leaser garnishments, charge demands); whenever approved by the employee recorded as a hard copy; and for specific credits, deficiencies, misfortunes or harms.

Utah has couple of laws identifying with required leaves for employees, which spread all businesses. These laws include:
• Jury obligation/witness leave;
• Casting a ballot leave;
• Minor kid court appearance leave;
• Military leave; and
• Crisis responder leave.
On the off chance that an employee deliberately leaves or if work stops because of a work debate, last wages must be paid by the following ordinary payday. An employee who is fired or laid off must be paid all wages due inside 24 hours of end. Special cases apply for charged deals operators.
What amount does a Chief Executive Officer make in the state of the Utah? The normal Chief Executive Officer pay in the state of the Utah is nearly $754,000 as of May 31, 2019, however the range commonly falls somewhere in the range of $581,972 and $938,377. Compensation reaches can shift broadly relying upon numerous significant variables, including training, accreditations, extra abilities, the quantity of years you have spent in your calling. With increasingly on the web, continuous compensation information than some other site, causes you decide your accurate pay target.

Executive Compensation Lawyer

When you need legal help with employee benefits in Utah or executive compensation, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews

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Utah Business Entity

Utah Business Entity

Business entities are organizations formed by one or more persons. Since they are formed at the state level, they must comply with state laws. In most states, a business owner is required to file documents with a particular state agency, like the office of the Secretary of State, in order to legally set up their business. Business entity and legal entity are used interchangeably. A legal entity is distinct from a natural person. A legal entity is recognized by a government. It can enter contracts in its own name. A legal entity can sue and be sued. It can maintain bank accounts and buy insurance. In short, a legal entity can usually conduct all the commercial activity that an individual can.

Sole Proprietorship

This is a business run by one individual for his or her own benefit. It is the simplest form of business organization. Proprietorships have no existence apart from the owners. The liabilities associated with the business are the personal liabilities of the owner, and the business terminates upon the proprietor’s death. The proprietor undertakes the risks of the business to the extent of his/her assets, whether used in the business or personally owned. Single proprietors include professional people, service providers, and retailers who are “in business for themselves.” Although a sole proprietorship is not a separate legal entity from its owner, it is a separate entity for accounting purposes. Financial activities of the business (e.g., receipt of fees) are maintained separately from the person’s personal financial activities (e.g., house payment).

Partnerships-General and Limited

A general partnership is an agreement, expressed or implied, between two or more persons who join together to carry on a business venture for profit. Each partner contributes money, property, labor, or skill; each shares in the profits and losses of the business; and each has unlimited personal liability for the debts of the business. Limited partnerships limit the personal liability of individual partners for the debts of the business according to the amount they have invested. Partners must file a certificate of limited partnership with state authorities.

Limited Liability Company (LLC)

An LLC is a hybrid between a partnership and a corporation. Members of an LLC have operational flexibility and income benefits similar to a partnership but also have limited liability exposure. While this seems very similar to a limited partnership, there are significant legal and statutory differences. Consultation with an attorney to determine the best entity is recommended.


A corporation is a legal entity, operating under state law, whose scope of activity and name are restricted by its charter. Articles of incorporation must be filed with the state to establish a corporation. Stockholders’ are protected from liability and those stockholders who are also employees may be able to take advantage of some tax-free benefits, such as health insurance. There is double taxation with a C corporation, first through taxes on profits and second on taxes on stockholder dividends (as capital gains).

Small Business Corporation (S-Corporation)

Subchapter S-corporations are special closed corporations (limits exist on the number of members) created to provide small corporations with a tax advantage, if IRS Code requirements are met. Corporate taxes are waived and reported by the owners on their individual federal income tax returns, avoiding the “double taxation” of regular corporations.

What Are ‘Disregarded’ Business Entities?

Business entities are often subject to taxation, so the business owners must file a tax return for those businesses. Often, the owner of a single-member limited liability company or a sole proprietorship only needs to file a single tax return. In this case, the business entity and the count as one and the same. Also, the IRS “disregards” those business entities because the owner only needs to report their personal income and deductions. When the business owner files their taxes, they will report their business expenses and income on a Schedule C form along with their personal Form 1040. Alternatively, a one-member business could be treated as a separate entity. If the owner of the business chooses to go that route, they will have to fill out a Form 8832 to declare an Entity Classification Election and file the form with the IRS. Unless the owner of the sole proprietorship or single-person LLC files the Form 8832 for their business, that business entity will fall into the default classification of a disregarded entity.

How to Choose Business Entities

Once you know where you want to register your business, you must choose your type of legal entity. While legal entities are not quite like ordering food off a menu after you choose the restaurant, you do have options.

Cost of Incorporation

Registering a legal entity costs money: sometimes a little; sometimes a lot. Costs include the filing fee, renewal fees, professional fees, and franchise taxes. These are direct cost.

• Filing fees: Every jurisdiction imposes a filing fee. Fees change frequently. There are often fees for particular kinds of filings. Fees might also vary by type of entity. Review the fees for your jurisdiction and entity type carefully.

• Renewal fees: Registering a company is not a onetime event. You must renew the registration to keep it current. Not all registration renewals are annual. Some jurisdictions do not require renewal for several years. Simply do the math to annualize registration fees to compare them from jurisdiction to jurisdiction or entity type to entity type.

• Professional fees: There are three types of professionals you may need to pay: lawyer, accountant, and registered agent. Legal fees for incorporation can be modest or breathtaking. Business lawyers should be able to tell you about the costs for incorporation in your jurisdiction before starting any work. Legal fees can rise quickly to cover complexities beyond the registration. Fees for accountants follow a similar pattern.

Providing initial tax advice and setting up your accounting might be one cost, but getting help with complex asset transfers, foreign accounts, and the like, can quickly raise the costs. Good legal and accounting advice early in the process is money well spent. Registered agents, sometimes called “local agents”, are people or companies that are empowered to accept legal notices on behalf of the business. The registered agent address is published to the world. While you can often be your own registered agent in your own jurisdiction, you might choose to use a registered agent so that any legal notices do not get mishandled.

• Franchise tax: Not all jurisdictions impose a franchise tax, but many do. A franchise tax is basically a tax on the business’ balance sheet. It might be tied to assets or to net worth. The idea is that your registration and renewal fees are determined in part by the assets of the business. If the entity operates an “asset light” business, like consulting, then the franchise tax might be low for a long time. However, for an asset intensive business with equipment, real estate, or large cash balances, the franchise tax will be a material consideration. This is an area where good accounting advice about recording the value of your assets is helpful.

Ease of Incorporation

It is not difficult or time consuming to incorporate many entities in jurisdictions that encourage incorporation. The time and effort, however, can vary. Your local lawyer will have the most accurate estimate, but there several factors to consider: total time, number of steps, incorporator requirements, minimum capital required, and the number and type of investors.You can use the World Bank data on business entity formation to get benchmarks to help you estimate. While the World Bank data includes some sub national jurisdictions, like states in India, it does not include any data for individual states in the United States. You cannot compare Delaware to California and New York, for example.

Management Requirements

Some jurisdictions and entity types require named officers or certain board structures. You can often satisfy those compliance requirements without interfering with your management plan for operating the business. For example, if you must name a President and Secretary as authorized signers and you have a co-founder, then one of you can serve one role while the other serves the other function. This choice does not necessarily have any effect on the management team you put in place. Some jurisdictions also impose a dual board structure where one board is charged with governance matters and the other is the operational management board. Before chasing a dual board structure, make sure that it is required in your jurisdiction for your size and type of business.

Tax and Financial Objectives

One of the most important factors when choosing a legal entity is the tax treatment of that entity’s income. The place to start is the financial objective for the business: current income or growth. Of course, everyone wants both income and growth, but it is a question of priority and scale.

Types of taxes

Jurisdictions may impose one or more of the following taxes: personal income, business income, franchise, property, consumption, and capital gains. Incorporating a business will probably affect your personal income. It might go up or go down, depending on the choices you make and your objectives. The place of incorporation may also impose a tax on the business’ assets or net worth in the form of a franchise tax. A franchise tax is typically imposed at the time of registration and renewal by the jurisdiction where the business is registered. Jurisdiction also strongly influences property taxes. Any layer of government might impose taxes on property the business owns or acquires. If the business is asset intensive, then property taxes can influence where you decide to incorporate and operate. Consumption taxes come in two flavors: sales and use taxes (“Sales tax”) or value-added taxes (“VAT”). End consumers pay sales tax that is collected by a retailer who sends it to the taxing authority. VAT, on the other hand, is paid at each step of the supply chain. Sales and VAT regimes impose different administrative burdens on your business. Sales tax is the consumption tax used by states in the US. Finally, capital gains taxes warrant consideration. A business might generate capital gains, which are profits on the sales of things not in the ordinary course of your business, such as selling a building. But the most significant capital gains event is the sale of the business after it is wildly successful. How will the jurisdiction tax that event? As a practical matter, there might not be much choice about where to live and run the business.

International taxes

A quick word about a long, complex subject: international income taxes. If a business sells products and services across national boundaries, tax advice from a tax professional is critical. Countries tend to take either a territorial or residence approach to taxation of income earned outside the business’ home countries. The territorial system only taxes income earned within the country. The residence system taxes income earned globally for every company residing in the territory.

So knowing where your customers are and how you will reach them can affect your income tax bill and therefore the financial success of your business, and ultimately where you decide to incorporate your business.

Business Entity Compliance and Maintenance

Forming a business is a onetime event that creates a long string of maintenance tasks for as long as the entity is a going concern. Limiting liability and asset protection are primary objectives for forming a business entity. Maintenance preserves those benefits. Without careful maintenance of the legal entity, it might not provide protection when it is needed most.

Over time things change for every business entity. Those changes are easily filed and forgotten. To keep in compliance and reduce risk from legal entity management, there are five buckets of information to track: entity summary data, company documents, filing requirements, officers and directors, and owners.

Considerations for deciding the most suitable business entity

• Sole Proprietorship: In this situation, one owns the business oneself and can reap whatever financial benefits come from it. One can make decisions on one’s own and guide the growth of the business without having to consult with any other entity. This also means that no other employee will ever have the chance to have own stocks. This may sound pretty good. But be aware that with a sole proprietorship, there is no distinction between one’s business life and one’s personal life as far as taxes and other financial obligations are concerned. As far as the government is concerned, proprietor and the firm are one and the same. This could have negative repercussions on the proprietor. Moreover, as a sole proprietor, one’s business will exist only as long as one continues to own it.

• Partnership: In the same way as a sole proprietorship, a partnership draws no financial distinction between a partner’s personal and business finances. There are also inherent risks in partnerships. It is important to draft a “partnership agreement” to outline what happens if there is a disagreement among partners, if one wants to end the partnership, if one of the partners dies, etc.

• Limited Liability Company : LLC’s are extremely flexible, and can be used for a very wide range of businesses. The members (equivalent to shareholders or partners) can, but need not, have limited liability; can, but need not have, managers (equivalent to directors and officers) and can elect to be taxed either as corporations, or as partners (if they have two or more members) or be disregarded for tax purposes like a sole proprietorship.

• Business Corporation: Becoming “incorporated” brings with it many advantages. Your business becomes a separated entity (from you) and is chartered by the state in which it is located. This means that your business can enter into contracts, it pays taxes of its own, it can be sued. The owner becomes a shareholder and has the option to sell the business if things don’t work out for continued ownership. The negative piece of this option is that it is more expensive than the others and takes a bit more time. It is subject to much more compliance as compared to a Sole Proprietorship or Partnership or Limited Liability Company.

Business Lawyer Free Consultation

When you need legal help with a Utah Business Entity, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Managing Employees In Your Business

Managing Employees In Your Business

Much of a small business owner’s time is spent managing employees, which requires a basic understanding of employment law and the ability to maintain a harmonious workplace.

Employees and the Internet

The Internet and email have provided easier communication with customers, vendors, and employees. Although the Internet is an asset to most, if not all, businesses, it’s also important to have Internet and email policies in place to make sure that your business won’t get into to trouble, keep your business secure, and to promote your employees’ productivity. First, it’s important to have a clear and easy to understand employee Internet and email usage policy in place. This policy should explicitly outline which websites are appropriate and which are not for employees to visit while they are working.

You should also put your employees on notice if you plan to monitor their Internet usage. Monitoring employees’ Internet use is common practice among businesses these days, and most employees have a lower expectation of privacy when they use the Internet on their work computer. It’s also common for businesses to install software that limits access to certain websites, which can keep the company computer and information secure and lower the time an employee wastes while he or she should be working.

Employee Personnel Files

It’s probably a good idea to keep a personnel file for each of your employees. These files are meant to contain job-related documents, such as offer letters, job applications, employment contracts, and information relating to the employee’s salary and benefits. You can also keep any documents relating to employee discipline and performance evaluations in an employee’s personnel file. Items that should not be kept in an employee’s file are I-9 forms and medical records. Employees’ completed I-9 forms should be kept in a separate folder, while any medical records should be kept in compliance with the rules outlined in the Americans with Disabilities Act.

As for who can access employee personnel files, it’s a good idea to keep them in a locked file cabinet and limit who can access the files. Most states allow employees to see some of the contents of their own files. Generally, employers are allowed to be present while the employee reviews his or her file so that you can ensure that the contents of the file are not altered by the employee.

Leave Laws

Part of a manager’s job is to implement an effective employee leave program, which requires a functional understanding of federal and state leave laws. While some employers offer paid vacation and sick days as employee benefits, certain types of unpaid leave are mandatory in accordance with state and federal employment laws.

Employee Leave Policies

There are certain employee leave policies that employers are required to implement and others that are optional. For example, employers are not required to offer paid time off for vacation. However, if they do offer paid time off, it is considered to be compensation and employees must be paid out on it if the employment ends. Leave policies that employers must implement involve allowing employees to join the military, serve on a jury, or vote.

Certain employers – ones with 50 employees or more within a 75 mile radius – must also comply with the FMLA. This federal law requires employers to provide employees with up to 12 weeks of unpaid leave after the birth or adoption of a child, to care for a family member with a serious mental or physical health condition, or to take care of his or her own serious mental or physical health condition. Each state may also have its own mandatory leave laws, so it’s important to check the laws of your state to see what laws apply to your business.

Military Leave

There is a federal law that protects military service members’ jobs in the event that they choose to or are required to fulfill their military service. More specifically, the Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) prohibits employers from discriminating against employees who serve in the military, and provides rights of reinstatement once they complete their military service. All employers are required to comply with the USERRA, regardless of the company’s size. The law doesn’t require an employer to pay the employee while he or she serves in the military.

The aspect of the law that requires reinstatement of employment does have certain limitations. The employee is required to give advance notice of military training or service, and the cumulative military leave must not exceed 5 years. In addition, the employee must apply for reemployment within a specified time and must have been discharged under honorable conditions. There are also certain instances in which an employer does not have to rehire a military service member. For example, if the reinstatement would create an undue hardship for the employer or if the employment was so brief that the employee would not have a reasonable expectation to return to the position.

Small Business Lawyer Free Consultation

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Federal Employment Discrimination

Federal Employment Discrimination

Federal employment discrimination is a heavily regulated subject, and when hiring an employee, there are a host of rules and regulations that an employer can run afoul of. Many of these laws only apply to certain employers, and many of these laws have exceptions. Here is an overview of the regulatory framework regarding federal employment discrimination.
Overview of Applicable Federal Laws Prohibiting Employer Discrimination
Although this list is not exhaustive, these are the most commonly litigated areas of employment discrimination law:

• Title VII of the Civil Rights Act of 1964 (Title VII);
• The Equal Pay Act of 1963 (EPA);
• The Age Discrimination in Employment Act of 1967 (ADEA);
• The Immigration and Reform and Control Act of 1986 (IRCA);
• Title I and Title V of the Americans with Disabilities Act of 1990, as amended (ADA);
The Equal Employment Opportunity Commission (EEOC) is the primary federal agency for enforcing most of these laws.

Title VII of the Civil Rights Act

Title VII prohibits employers from discriminating against employees and applicants based on their race, color, religion, sex or national origin. Title VII also protects individuals against being discriminated against based on association with any of the above protected categories. For example, firing someone because they associate with a religious group you don’t approve of would violate Title VII. Finally, Title VII protects against harassment as well as retaliation based on the protected categories listed above.

Title VII only applies to the following employers:
• Private employers if they have more than 15 employees;
• Federal government employers;
• State government employers and their political subdivisions;
• Labor organizations;
• Employment agencies.

The Equal Pay Act

The Equal Pay Act prohibits discrimination on the basis of sex in the payment of wages for equal work. To be equal work, the work must “require equal skill, effort, and responsibility, and be performed under similar working conditions.” In other words, the general rule is that if a man and a woman perform the same job, they should be paid the same. The exceptions to this general rule are when difference is pay is based on “a seniority system, a merit system, a system which measures earnings by quantity or quality of production or a differential based on any other factor other than sex.”

Unlike other acts, the Equal Pay Act applies to practically every employer, including private employers regardless of how many employees they have.

The Age Discrimination in Employment Act

The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA also prohibits against harassment and retaliation based on a protected employee’s age. However, the ADEA does permit employers to favor older workers based on age even when doing so adversely affects a younger worker who is 40 or older.

The ADEA applies to the following employers:
• Private employers if they have more than 20 employees;
• Federal government employers;
• State government employers and their political subdivisions if they have more than 20 employees;
• Labor organizations;
• Employment agencies.

The Immigration and Reform and Control Act

IRCA prohibits employers from discriminating against employees or applicants based on their citizenship or national origin, and also makes it illegal to knowingly hire or recruit illegal immigrants
Note that this overlaps with Title VII, but applies to employers that Title VII may not cover. This is because IRCA applies to all employers who have more than four employees and is not nearly as limited as the list of employers covered by Title VII.

The Americans with Disability Act

The ADA prohibits employment discrimination against qualified individuals with disabilities. The ADA also prohibits employment discrimination against individuals who associate with or are related to individuals with disabilities. For example, this means that you cannot refuse to hire someone because their child is disabled.

What qualifies as discrimination under the ADA can be fairly complex but there are a few simple rules to keep in mind in order to comply with the ADA:

• Ask the Same Questions of Everybody: Make sure you ask the same questions of all applicants, don’t just ask people you think may be disabled. If you only ask a disabled person whether they can lift something that likely violates the ADA.

• Inquiring About “Accommodations” for Disabled Applicants: If there is no reason to believe that the applicant is disabled, you cannot ask whether the applicant needs any special accommodation (special equipment or help). If there is a reason to believe that the applicant is disabled, because it’s obvious (e.g., the applicant came in a wheel chair) or because the applicant told you about a disability, then you can ask whether the applicant needs any special accommodation.

• Employers are Free to Hire the Most Qualified Applicant: Employers can often misread the ADA’s anti-discriminatory intentions as requiring them to give people with disabilities special treatment. The ADA does not require an employer to give any preferential consideration to a disabled applicant over other qualified applicants. An employer is free to select the most qualified applicant available.

The ADA applies to the following employers:
• Private employers if they have more than 15 employees;
• Federal government employers if they have more than 15 employees;
• State government employers and their political subdivisions if they have more than 15 employees;
• Labor organizations if they have more than 15 employees;
• Employment agencies if they have more than 15 employees.

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
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Accounting Basics For Businesses

Accounting Basics For Businesses

There are many strategies to get ahead and grow your company’s profit margin. In order to properly grow your company, you’ll need to understand the basics of both accounting and bookkeeping and how they interrelate to help your business.

Bookkeeping and accounting are often mistaken as serving the same purpose. In the larger sense, this is correct, as both bookkeeping and accounting aim to assist businesses grow in a financially responsible manner. However, when you take a closer look, you’ll see that bookkeeping and accounting are two separate tasks which share a symbiotic relationship.

Bookkeeping primarily entails:
• the systematic recording of all of the business’ financial transactions
• accurately extracting financial information from business transactions in a form that can be analyzed for issues related to taxes, financial reporting, and the financial position of the business
Accounting generally encompasses:
• interpreting the data provided by the proper recording and extraction of financial information
• providing financial advice about the business’ present and future direction

For ease of reference for this basic overview of business accounting, we’ll refer to bookkeeping and accounting as the single idea of accounting, as they share the same goal and contain overlap in the duties typically assigned to them.

Much of accounting consists of the non-glamorous “grunt” work of taking your expenses and revenues and systematically and meticulously entering them into your records. You must faithfully keep each receipt and record all financial transactions, including payments received and expenses paid out by the business. You’ll need to keep detailed records and keep receipts for at least four years (for tax purposes).

Through this information, you can create summaries of income and expenditures on a regular basis (daily, weekly, monthly) to give yourself a snapshot of the financial state of your business at any particular time and to chart its progress.

A general ledger is the single document that presents a record of revenues and expenses, and every financial transaction will make its way onto the ledger. It serves as a permanent record of the business’ financial dealings and progress. Every important financial document related to the business, such as balance sheets and profit and loss statements, are derived directly from the general ledger.

There are also sub-ledgers, which eventually make their way into the general ledger as well. For example, you might have an accounts payable sub-ledger where you log every outgoing check. Once the check is deposited by the recipient, that information is inputted (or “posted”) into both the sub-ledger and general ledger.

Next, you’ll have to take that information and post it to the ledger(s). You don’t have to post to the ledger after every transaction, but you should do so at regular intervals which are appropriate for your business.
How frequently you post to the ledger will be determined by the amount of business you generate on a regular basis. Large clothing retailers and restaurants have a huge volume of sales and expenses on a daily basis and these transactions need to be recorded meticulously and then posted at the end of the day. On the other hand, if you have a lower volume business, you can probably post on a weekly or even monthly basis.

Your general ledger provides you with information with which you can accurately gauge your business’ financial health and also provides a defense against an audit (either tax or other outside audit). You’ll also want the record so that you can quickly find any discrepancies to resolve disputes with customers (for instance if you’ve double billed, you’ll be able to see it).

The financial report is basically an analysis of the information provided by your record-keeping and ledger entries. You take the data and distill it into a form that helps you see where the business is making money, where cash flow needs to be improved, and the state of your capital investments.
A financial report can be one single document or several smaller documents, depending on your wishes and the needs of the business. Common reports include:
• Income statements,
• Statements of capital,
• Balance sheets,
• Profit and loss statements, and
• Cash-flow statements.

The bookkeeping and accounting tasks outlined above can be done on your own, but with the easy availability of quality accounting software programs such as Quicken, you should seriously consider using those programs to help you in the task. The software can help you keep accurate records and create basic financial reports to ensure your business’ security.

Business Lawyer Free Consultation

When you need legal help with a business matter in Utah, please call Ascent Law LLC for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Pay Docking Salaried Employees

Pay Docking Salaried Employees

Docking the pay of exempt employees is only permissible in certain circumstances. The Fair Labor Standards Act (FLSA) governs wage and hour laws of nonexempt employees. The law requires employers to pay nonexempt employees at least the federal minimum wage and requires the payment of overtime for an employee who works more than 40 hours in a week. Employees who are exempt from the law are not entitled to overtime or the federal minimum wage, but employers may not make improper pay deductions from their salary.

Exempt Employees Under FLSA

The FLSA does not apply to certain types of workers, including executives, administrators, professionals, outside sales people, and some computer employees. To be exempt, the employee must meet certain requirements regarding job duties and — excluding outside sales employees and teachers — must be paid on a salary basis. Exempt employees must receive a salary of at least $455 per week. An exempt computer employee must receive a salary of $455 per week or at least $27.63 per hour.

Impermissible Pay Docking

In order for an employee to qualify as exempt, the employee must receive a predetermined wage each pay period. The law prohibits the employer from docking the pay of an exempt employee because of the “quality or quantity” of the work. This means that an exempt employee must receive a full weekly salary when any work is performed during the week (the number of hours or days worked is immaterial) and when work is unavailable but the employee is ready, available, and able to work.

The FLSA allows employers to make deductions of an exempt employee’s salary under certain circumstances, including:
• When the employee is absent for one or more full days for personal reasons
• When the employee is absent for one or more full days for sickness or disability if the employer has a plan that compensates the employee for lost salary
• To offset the amount the employee receives from jury service, witness fees, or for military pay
• To impose a penalty in good faith for the violation of safety rules of major significance
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for infractions of workplace rules of conduct
• For unpaid leave under the Family and Medical Leave Act
• During the first or last week of employment if the employee does not work a full week.

Penalties for Impermissible Pay Docking

An employer that engages in the “actual practice” of improper pay docking is subject to penalties if it is established that the employer did not intend to pay the employee on a salary basis. The court will consider several factors when making this determination, including:
• The number of improper deductions
• The time period the improper deductions were made
• The number and the location of both the employees subject to the improper deductions and the managers responsible
• Whether the employer clearly explained its policy on permissible and impermissible deductions
An employer that engages in the actual practice of improper pay docking will lose the overtime exemption for the period the docking occurred for other employees working in the same job classification for the same manager responsible for the deduction. This means that the employer must pay normally exempt workers overtime wages if their hours exceed 40 hours for one work week. If the deduction was a one-time occurrence or it was unintentional, the employer will not lose the exemption if the employee receives reimbursement.

The employer will receive safe harbor from losing the overtime exemption if:
• The employer clearly explained the policy of permissible and impermissible deductions and the complaint procedure;
• The employer reimbursed the employee for the improper deduction; and
• The employer commits in good faith to comply in the future.
The employer will still lose the overtime exemption if willful noncompliance continues after receiving complaints from employees, however.

FLSA Lawyer Free Consultation

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Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

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Disability Discrimination And The Law

Disability Discrimination And The Law

Disability Discrimination And The Law

Congress passed the Americans with Disabilities Act (ADA) in 1990. The purpose of the ADA is to prevent discrimination against people with disabilities in the workforce — as well as in most businesses and other places open to the public — by requiring that “reasonable accommodations” be made for many types of disability. The law surrounding disability discrimination can be confusing.

The following discussion should help provide a general understanding of the law under the ADA.

When Does the ADA Apply?

The ADA applies to all employers who employ fifteen or more people for a minimum of at least twenty weeks. It specifically provides that covered employers cannot discriminate against otherwise qualified individuals with a disability in:

• The application process;
• Hiring;
• Training;
• Promotion;
• Pay and benefits;
• Discharge and termination; or
• Any other condition of employment.

Prohibited discrimination includes classifying disabled employees so that their job opportunities are more limited than the job opportunities of non-disabled employees, or setting standards that make it harder for disabled employees to compete. To inform employees of their rights under the ADA, employers are required to post in the workplace a notice outlining the rights guaranteed by the ADA.

“Disability” Under the ADA

The ADA only applies to persons who meet the definition of “disabled” under the Act. A person is considered disabled, and so protected under the ADA, if he or she either actually has, or is thought to have, a physical or mental impairment that substantially limits what the ADA calls a “major life activity.” Major life activities include walking, talking, seeing, and learning.

Although the determination of whether a worker is disabled is made on a case-by-case basis, common examples of disabilities include:
• Confinement to a wheelchair,
• Blindness;
• Deafness;
• Learning disabilities;
• Certain kinds of mental illness.
Alcoholism and drug abuse are specifically mentioned in the ADA and employees are not protected by the ADA, nor are employees who currently use illegal drugs, but an alcoholic who can perform the duties of his or her job despite his or her addiction is protected, as is a recovered alcohol or drug abuser.

Substantially Limited by Disability

Finally, to be substantially limited by a disability, the disability must render the employee unable to work in a broad range of jobs. A disability that only affects the employee’s ability to perform a few specific jobs is not covered by the ADA. For example, if a woman seeks a commercial pilot’s license but is too nearsighted to qualify, she may not be disabled if her nearsightedness only disqualifies her from a job as a pilot, but does not limit her ability to perform a broad range of other jobs.

What is “Reasonable Accommodation”?

An employer has a responsibility to make “reasonable accommodations” for the employee’s disability. Such accommodations often consist of physical changes to the workplace to aid the disabled employee, i.e. installing ramps for an employee who uses a wheelchair. Other accommodations may include:

• Restructuring the job or its duties to allow the disabled employee to perform the work;
• Allowing the employee to take additional unpaid leave for medical reasons or to use vacation for medical leave;
• Moving the employee to a vacant position or to a temporary light-duty position;
• Installing special equipment to help the employee perform his or her duties, or assigning “non-essential” duties of the employee’s job, such as those that only occupy a few minutes a day, to another employee;
• Modifying the work schedule to accommodate the disability; or
• Providing the employee with a qualified reader or interpreter.
Exceptions to the “Reasonable Accommodation” Requirement
The ADA does allow employers limited latitude in refusing to accommodate the disabled in the workplace. If the practical aspects of a certain business are such that a job applicant with a particular disability could not perform the job even if the employer made reasonable accommodations, the employer may refuse to hire the applicant. For instance, if a blind person applied for the position of airline pilot. Despite “reasonable accommodations,” a pilot needs to be able to see, and sight is a job requirement consistent with the pilot’s ability to fly safely. Hence, the airline could refuse to hire an otherwise qualified blind applicant.

What Is Undue Hardship Under the ADA?

An employer may also refuse to accommodate a disabled person if the accommodation that would allow him or her to perform the job is not “reasonable.” The ADA recognizes that, even if accommodation of a particular disability is theoretically possible, the expense or difficulty may render the accommodation extremely impractical. If the employer can show that the necessary accommodation constitutes an undue hardship, the ADA does not require the employer to make the accommodation. An accommodation becomes an undue hardship when it is extremely difficult to put into place, or very expensive to implement — based on the financial costs and practicality of the accommodation required, and the employer’s financial resources, both at the workplace and overall.

Disability and ADA Business Attorney Free Consultation

When your business has been sued for a disiability discrimination or ADA compliance matter, please call Ascent Law LLC for your free ADA and business law consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

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