Lie Detector Tests At Work

Lie Detector Tests At Work

Can your boss use a lie detector at your work? You’ve seen it haven’t you?
Where someone is undercover and they film the “bad guy” to a lie detector machine with a fast moving needle, sweat beading on the criminal’s face as he is subjected to intense questioning under a blinding spotlight. Enter the polygraph test.

In real life, the use of lie detector tests in an employment setting is far less exciting and much more heavily regulated by the federal government. Below you will find information on an employer’s use of a polygraph test and when it may be required of a potential or current employer.

The Employee Polygraph Protection Act (EPPA) applies to most private employers. The law does not cover federal, state and local governments.

The EPPA prohibits most private employers from using lie detector tests, either for pre-employment screening or during the course of employment.
Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act.

Employers may not use or inquire about the results of a lie detector test or discharge or discriminate against an employee or job applicant on the basis of the results of a test, or for filing a complaint, or for participating in a proceeding under the Act.

What Is Allowed?

The Act permits polygraphs to be administered to:
• Job applicants of security service firms (armored car, alarm, and guard) and of pharmaceutical manufacturers, distributors and dispensers;

• Employees of private firms who are reasonably suspected of involvement in a workplace incident (theft, embezzlement, etc.) that resulted in specific economic loss or injury to the employer.
Even then, polygraph tests are subject to strict standards for the conduct of the test, including the pretest, testing and post-testing phases. An examiner must be licensed and bonded or have professional liability coverage. The Act strictly limits the disclosure of information obtained during a polygraph test.

The EPPA provides that employees have a right to employment opportunities without being subjected to lie detector tests, unless a specific exemption applies. The Act also provides employees the right to file a lawsuit for violations of the Act. In addition, the Wage and Hour Division accepts complaints of alleged EPPA violations.

The Secretary of Labor can bring court action to restrain violators and assess civil money penalties. An employer who violates the law may be liable to the employee or prospective employee for legal and equitable relief, including employment, reinstatement, promotion and payment of lost wages and benefits.

Any person against whom a civil money penalty is assessed may, within 30 days of the notice of assessment, request a hearing before an administrative law judge. If dissatisfied with the administrative law judge’s decision, such person may request a review of the decision by the Secretary of Labor. Final determinations on violations are enforceable through the courts.

The law does not preempt any provision of any state or local law or any collective bargaining agreement that is more restrictive with respect to lie detector tests.

Employer Lawyer Free Consultation

When you need legal help with a lie detector test at work or other employer law issues, 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
itemprop=”addressLocality”>West Jordan, Utah
84088 United States

Telephone: (801) 676-5506

Ascent Law LLC

4.9 stars – based on 67 reviews


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Corporate Lawyer Midvale Utah

Corporate Lawyer Midvale Utah

Just as time extends infinitely into the past and future, place may be anything from a point with no dimensions to the infinity of space in all directions. As the content of a segment of time is called the history of Utah, a small area–84,990 square miles–of the earth’s surface is arbitrarily named Utah. Viewed from space there is no change from red to blue at its border as on the map in the atlas. Yet place may be defined, and Utah may be distinguished from all other places. Place may be an office occupied by Brigham Young and defined in terms of furniture, size of room and other such details, or the entire building, or the political unit–a city–where it is found, or a range of mountains next to which it stands. The physical characteristics of each place differentiate it and have some impact upon the events that occur through time in its location.

Upon hearing the word Utah the average American usually thinks of the Mormons who first migrated to the Salt Lake Valley in 1847, conducted a remarkable colonization program during the next several decades, and went on to make Salt Lake City the headquarters and center of the worldwide Church of Jesus Christ of Latter-day Saints. But there’s a lot more to today’s Utah. Utah is booming with business. Each day new businesses of varied sizes are being set up in Utah. To assist such businesses, there are many corporate attorneys. However if you are based in Midvale, Utah and your business is having to deal with the SEC, seek the assistance of an experienced Midvale Utah Corporate Attorney.

Security Regulations

The United States regulates a variety of securities activities conducted within its borders. Distributions of securities, the activities of broker-dealers and investment advisers, the operation of stock exchanges, the conduct of investment companies and a variety of other securities-related activities are subject to a comprehensive body of regulation. The US domestic regulatory standards apply to non-US market participants to the extent their activities directly affect the United States, which raises the possibility that the non-US market participants will be subject to inconsistent regulation. This problem is especially prevalent in the area of the disclosure required in connection with securities distributions, because the United States has a comprehensive set of requirements. The US accounting standards, in particular, cause difficulties for non-US issuers. The US requirements for financial intermediaries, such as broker dealers, impose significant US regulation on non-US market participants. If your business needs assistance with securities regulations and disclosures, speak to an experienced Midvale Utah Corporate lawyer.

Disclosure

The US regulatory system generally works well in facilitating the smooth and efficient operation of the US domestic market and in providing protection to US investors. A fundamental tenet of the US regulatory system is that the market must be kept fully informed about companies whose securities are offered and traded. There was a strong sense that a significant cause of the crash of 1929 was that investors were not adequately informed about the financial condition and business affairs of the companies whose securities they were buying. As a result, investors, particularly retail investors, were making inappropriate investment decisions.

As part of the radical overhaul of US securities regulation in the wake of the market crash, a comprehensive disclosure system was implemented requiring any issuer wishing to sell securities to the public in the United States to register those securities with the SEC and to provide prospective investors with detailed information regarding its business and financial situation. Moreover, an issuer that registers securities with the SEC, or whose securities are widely held in the United States, is obligated to provide ongoing disclosure.

The rationale behind this disclosure requirements is that retail investors must have sufficient information on which to base their investment decisions. The view was taken that market forces alone were not enough to compel issuers to provide adequate information so the disclosure was made mandatory. The requirements are substantially the same for all issuers, to ensure that investors will be able to compare different companies.
The same considerations do not apply to certain institutional investors, who are deemed capable of looking after their own interests. It is thought they are better equipped both to know what information is important to their investment decisions and to obtain that information. However, offerings that are made only to institutional investors seldom attract the same level of regulation.

In order fully to protect US retail investors, the disclosure requirements apply to all offerings that include such investors. Thus, a non-US issuer that wants to make a US public offering must provide disclosure that is, with limited exceptions, identical to that which a US issuer must provide. In addition, a non-US issuer that conducts a public offering, or lists its securities on a US stock exchange (or obtains a NASDAQ quotation), becomes subject to the ongoing periodic disclosure requirements of the Exchange Act.

SEC

The SEC regulates corporate and individual disclosure in connection with the purchase and sale of securities, and in regard to the governance of the publicly held corporation. Under the Securities Act of 1933 the commission has established a structure of mandatory disclosure for the offer and sale of securities by corporations and controlling shareholders. Pursuant to that regulatory system, corporations prepare elaborate disclosure documents called prospectuses and registration statements. The Securities Exchange Act of 1934 requires the commission to establish a system of mandatory disclosure for proxy statements in connection with meetings of shareholders. Requirements are established for routine meetings as well as extraordinary meetings that involve proxy contests and major mergers and reorganizations. The commission also has established a complex system of mandatory financial and accounting disclosure for various classes of publicly held corporations. Pursuant to this structure, corporations prepare annual reports on Form 10K and periodic reports on Forms 8K and 10Q. The purpose of mandatory disclosure is to winnow out the false from the true. A related purpose is to produce a complete and informative description of the business. It is a modern form of censorship designed by a concerned entity.

The SEC regulates corporate and individual disclosure in connection with the purchase and sale of securities, and in regard government to protect the investor from misrepresentation and lies. It differs from older forms of censorship that flatly banned publication in the important sense that mandatory disclosure requires the dissemination of information, sometimes more information than would be disclosed in the absence of the regulation.

Fraud Protection

Another central element in the disclosure system is civil and criminal fraud prosecution. The commission has the power under a number of antifraud rules and statutes, such as Rule 10b-5 and Rule 14a-9, to seek an injunction and ancillary equitable relief in court against corporations and individuals who have committed fraud in connection with proxy voting or the purchase and sale of securities. The commission, as discussed below in some-detail, has the power to require registration and disclosure by investment advisors. In certain cases the commission has administrative powers to punish transgressors. In virtually all cases the Justice Department may pursue egregious cases criminally. The essential difference between the two regulatory structures is that mandatory disclosure rules specify the information that must be disclosed. The antifraud statutes and regulations permit the government to prosecute lies and misrepresentation wherever it finds them, even in the absence of a particular disclosure rule mandating a specific disclosure. The government also is empowered to seek civil and criminal penalties against people who have violated the mandatory disclosure rules.

The question in SEC regulation is whether some or all of speech governed by the SEC is speech that receives some First Amendment protection. It is now traditional doctrine that commercial speech (at least truthful commercial speech) receives such protection. Commercial speech, as we have seen, is the advertisement of particular products or services for business gain.
Fraud prosecution involves a kind of after-the-fact-of-publication litigation. It can operate without the presence of mandatory disclosure rules. A “simple” form of fraud prosecution would involve a suit by, let us say, an aggrieved buyer against a seller of securities to her. She would allege deceit, materiality of the lie, reliance, and harm. Is the misrepresentation commercial speech?

A somewhat more complicated fraud case might be involved when a publicly held corporation, not engaged in buying or selling its securities, issues a misleading press release, an area not necessarily covered by specific disclosure rules. It runs the risk that the commission may seek to enjoin the statement on grounds of fraud. The court may add ancillary remedies to the naked injunction. Such forms of relief may involve, for example, replacement of the old board with a new board acceptable to the SEC. The Justice Department may pursue the corporation and offending officers criminally.

A famous branch of fraud prosecution involves insider trading. The paradigm case is a transaction in which a corporate insider trades in corporate stock without disclosure of material facts. The insider does not lie or mis represent. It is a silence case in which the courts generally hold that the insider has a duty to disclose to the shareholders, or refrain from trading.

Broker-dealer Regulation

Brokers and dealers play a significant role in the smooth operation of the securities markets. They act as agents in the purchase and sale of securities by retail and institutional investors and conduct significant proprietary trading. Brokers and dealers played a major role in the 1929 stock market crash. Brokers had extended a large amount of credit to investors for the purchase of securities and many were undercapitalized. When stock prices started to fall, investors were unable to repay the loans and were forced to sell their securities at’ a loss, forcing prices down even further. A combination of incompetence, malfeasance, bad luck and bad judgment meant that the entire system was overextended and could not withstand the shock of falling stock prices.

Because of the importance of broker-dealers to the market, regulation of their activities was another major element of the regulatory reform after the crash. Key areas where more rigorous standards were introduced included capital adequacy requirements, limits on the amount of credit that can be extended for the purchase of securities and supervisory and recordkeeping requirements. To ensure that US investors benefit from these protections, it is a requirement of the US regulatory system that only broker-dealers that are registered with the SEC, and are therefore subject to the regulations, can deal with US investors. Whereas distinctions were made in the Securities Act based on whether distributions were made to the public or only to sophisticated institutions, no such distinctions were initially made under the Exchange Act; broker dealer registration is required in order to do business with any customer in the United States. If you are a broker in the securities market, an experienced Midvale corporate lawyer can assist you comply with the regulations and ensure that you are not subject to any penalties or criminal prosecution.

Commercial Speech

If you are a business owner you should be aware of commercial speech and the First Amendment. Until fairly recently, in constitutional jurisprudence, what has come to be known as commercial speech had been excluded from the coverage of the First Amendment. Commercial speech, most narrowly construed, is any speech or publication that advertises a product or service for profit or business purposes. Some authorities, however, assert a considerably broader definition of the concept. Commercial speech has been extensively regulated at the state and federal levels. For example, food and drug ads are subject to extensive regulation. The states and the federal government extensively regulate the speech and publications of corporations and other business entities. Remember the government through various agencies enforce these regulations. If your business violates any of these regulations, it could spell trouble for you. Your business may have to pay penalties. Violations of some of these regulations can result in criminal prosecution. Be safe. Seek the assistance of an experienced Midvale Utah corporate lawyer.

Free Consultation With A Corporate Lawyer in Midvale Utah

When you need legal help with your business in Midvale Utah, please 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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Brandon M. Evans, Esq.

Brandon M Evans

Brandon M. Evans, Esq.
Attorney and Counselor at Law

When Brandon was admitted to the Utah Bar he fulfilled a dream whose inception began in his youth as a result of learning of the Founding Fathers and the Constitution. He is also admitted to the District of Columbia, Washington DC, Bar. While very grateful that he was able to fulfill this dream. Whether you are working to build, protect, or salvage your dream, Brandon can help you.

Whether you are getting married, getting un-married, creating a new business, defending your business, selling or ending your business, dealing with criminal concerns, planning your estate, seeking permanent immigration status, or recouping damages, Brandon will negotiate and litigate for you and your dreams.

Other dreams that Brandon enjoys creating and fulfilling are spending time doing activities: woodworking, gardening, board games, camping, and reading. Brandon loves that his wife and three children also enjoy those activities.

Brandon enjoys the following areas of legal practice:

  • Family Law (Child Custody, Mediation, Litigation, Parenting Plans, Divorce, Adoptions, Annulment)
  • Contract Law (drafting and litigation)
  • Criminal Defense (federal and state cases, including DUI, Theft, Domestic Violence, etc.)
  • Business Formations (LLC, Corporations, Partnerships, etc.)
  • Business Representation (Lawsuits and Litigation)
  • Real Estate (Quiet Title Actions, Evictions, etc)
  • Estate Planning and Probates (Wills, Trusts, including formation and administration, both contested and uncontested)
  • Tax Matters (IRS and Utah State Tax Commission)
  • Personal Injury Law (Car Accidents, Motorcycle Accidents, Dog Bites, Slip and Falls)
  • Collection Issues (collections; Fair Debt Collections Practices Act, etc.)
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

Additional Information

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Real Estate Lawyer

Business Lawyer

Estate Planning Lawyer

Divorce Lawyer

Criminal Lawyer

Injury Lawyer

Shareholder Rights and Derivative Actions

Shareholder Rights and Derivative Actions

Sometimes a CEO or other corporate insider puts the value of a company at risk by committing crimes such as wire fraud or embezzlement. When a shareholder believes that a director or officer has harmed the corporation by breaching a contract or breaching their duties, the shareholder can assert their rights and seek relief. One option is to file a derivative lawsuit. This article discusses shareholders rights and derivative actions, including information on the following:

  • The shareholder’s role in the corporation
  • The requirements for filing a derivative action
  • Shareholder activism

Corporate Roles

The shareholders (also called stockholders) are investors who own shares in the corporation. The directors have obligations and duties to both the shareholders and the corporation itself. This role differs from that of the officers and executives who handle corporate governance by running the operations of the corporation, although the roles can overlap.

Derivative Actions and Shareholder Rights

Being a shareholder comes with certain duties, responsibilities, and rights. Shareholders have a general range of rights concerning the corporation, which include:

  • ownership in a portion of the company;
  • ownership transfer rights;
  • voting rights; and
  • an entitlement to dividends.

One of the most significant shareholder rights is the right to sue an officer or a director who has harmed the corporation. This type of litigation is referred to as a shareholder derivative action or lawsuit. Unlike a securities class action suit, where individual investors and shareholders are seeking relief, the derivative action includes the interests of all shareholders and permits them to file on behalf of the corporation.

Shareholders often bring derivative suits against their corporation to try to resolve conflicts between the shareholders and the officers, directors, or board members who have harmed the corporation through mismanagement or other wrongdoing. For instance, a shareholder of the fast food corporation Wendy’s filed a derivative action against its directors and officers for its security practices that ultimately led to a massive data breach.

Requirements for Shareholder Derivative Lawsuits

Many states require that a plaintiff must be a stockholder at the time of the alleged improper conduct in order to file a derivative action. Others require that the shareholder own stock at the time of the improper conduct and continuously throughout the resolution of the lawsuit; this is referred to as the “continuous ownership requirement.”

Notice Requirements

Prior to filing the suit, the affected shareholders must demonstrate that they informed the company’s management of the problems in writing and that the directors decided against pursuing any action. If management fails to comply, the shareholders must show that the management’s conduct adequately harmed their position and that they refused to resolve the issues.

The shareholder must give notice (on their own or at the expense of the corporation if ordered by the court) to the other shareholders that the action has been initiated, providing them the opportunity to join the lawsuit.

Damages for the Corporation

If a shareholder prevails, they won’t recover individually; any recovery obtained from a derivative action is for the corporation only. However, a shareholder will generally receive legal expenses from the corporation.

Shareholder Activism

While a derivative suit is a very specific way to affect corporate governance, shareholder (or stockholder) activism is another more broader means to promote interests through shareholder rights, especially voting rights. Shareholder activism occurs when shareholders attempt to use their power to pressure management and affect a corporation’s behavior resulting in favorable results for the shareholder or to promote broader political or social causes, As an example, some Apple investors have sought to pressure the company to address smartphone addiction, especially among children. This can be achieved through various actions including litigation, proxy contests, publicity campaigns, and more.

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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Get Your Employees CPR and First Aid Certified

Get Your Employees CPR and First Aid Certified

I’m telling you, as an employer lawyer that having employees that are CPR and first aid certified can not only protect employers from personal injury and wrongful death suits, but also make employees feel safer in the workplace. Getting your workforce CPR and first aid certified isn’t as difficult as it may sound. Even smaller cities such as West Jordan, Utah have a variety of certification options for employers. No matter where you choose to complete your training, courses in either CPR or first aid each take about three hours to complete.

American Heart Association

The American Heart Association (AHA) has offices and affiliates all over the United States. The AHA offers traditional classroom training in CPR and first aid as well as a blended learning experience, which combines online courses with in-person practice and testing. Both options will teach your employees what to do in case of an emergency, protecting both the employer and the employees from a wrongful death claim.

American Red Cross 

The American Red Cross offers similar classroom and online certification options as the AHA, and will also come to you and provide on-site training from a certified instructor. If you’d like to have your own instructor in-house, you can send a company representative to the American Red Cross to be trained and certified in teaching CPR and first aid — your newly certified representative can then lead classes in the workplace. The American Red Cross also hosts regularly scheduled community classes in cities such as West Jordan that are open to members of the public.

Local Hospitals and Fire Departments 

Most fire departments hold regular CPR and first aid certification classes that are open to their communities. Often they are willing to come to your workplace and educate employees on proper procedure, helping to save lives and protect against wrongful death. Local hospitals frequently host community courses as well.

Local Colleges and Universities

If your company is located near a college or university, chances are it offers CPR and first aid certification to the public. Employers in West Jordan can find certification courses offered at Davis Applied Technology College as well as nearby Westminster College and the University of Utah.

HOW TO BE A PROACTIVE DRIVER

While one can argue that the leading causes of an auto accident can be texting while driving or driving while under the influence of drugs and alcohol, what these basically amount to is driving while not paying attention to driving. How can drivers in St. George, Utah not end up in an auto accident due to someone else’s negligence?

Proactive vs. Reactive

The difference between a proactive driver and a reactive driver, as any good lawyer will tell you, is on the intention of a person’s actions while driving. Distracted driving is entirely made up of reactive driving, as the only thing a driver can do is drive out of the corner of his eye. If you want to be a proactive driver the first step is to put both eyes on the road, at the very least outside the car. St. George has some gorgeous views, so take those in rather than the latest Youtube video.

Know Your Next Move

Like a good chess master or a seasoned trial lawyer, as you’re driving you should always be several moves ahead of your opponent, or in this case fellow drivers. Plan what lane you want to be in and who to pass, such as an erratic driver or a truck with an unsecured load to avoid an auto accident. The roads around St. George are littered with debris from accidents that could’ve been prevented just from seeing the guy who forgot to tie down his barbecue.

Keep Your Mind on the Road

You may have your phone put away, but that doesn’t mean your bladder isn’t empty or that the kids aren’t screaming. Take whatever stops you need to make to calm the kids and your digestive system. A lawyer who’s seen hundreds of auto accident cases can attest to it not being worth your life to lose your patience and run off the road because your kid dropped a crayon.

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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Protect Your Business in Divorce

Get this – 52 percent of all first marriages and 70 percent of second and third marriages end in divorce. Although divorces are always difficult for everyone involved, they can become that much more arduous when one or both spouses own a business.

Your business is probably the most valuable financial asset you own. You’ve spent countless hours and resources nurturing and growing it. But did you know that you might be unwittingly doing things that could put your business at risk in the event of a future divorce?

Protect Your Business in Divorce

Depending on your individual circumstances, your spouse may be entitled to as much as 50 percent of your business in a divorce. Since it’s probably safe to assume that you will not want your ex-spouse to remain in your life as a business partner, what can you do to protect your business?

This article will first explain the basic differences between separate and marital property and then provide you with a number of effective tools that could help protect your business against the possibility of a divorce. We will also discuss several ways to mitigate the damage if you are already heading for divorce.

Before we begin, please keep in mind the following critical piece of advice:

In order to be effective, these protective methods must be in place well before the thought of divorce enters anyone’s mind. Obviously, something like a prenuptial agreement needs to be signed before the wedding (and please not the night before), but techniques such as transfers to an irrevocable trust need to be done years in advance. Depending on your state’s fraudulent transfer laws, transactions can be voided up to seven years after the transfer. If you and/or your spouse are even slightly thinking about divorce, it’s probably too late to take any protective measures.

OK, so let’s begin with the basic differences between separate and marital property.

How to Protect Your Business in a Divorce: Separate vs. Marital Property

Although there are differences from state to state, in general, separate property includes:

  • Property that was owned prior to the marriage
  • An inheritance received by one spouse solely
  • A gift received by one spouse solely from a third party (not from the other spouse)
  • The pain and suffering portion of a personal injury judgment

Warning: Separate property can lose its that status if it is mixed or commingled with marital property or vice versa. For example, if you re-title your separately owned condo by adding your spouse as a co-owner or if you deposit the inheritance from your parents into a joint bank account with your spouse, then that property will most likely now be considered marital property.

All other property that is acquired during the marriage is considered marital property regardless of which spouse owns the property or how it is titled.

Marital property consists of all income and assets acquired by either spouse during the marriage including, but not limited to: Pension plans; 401(k)s, IRAs and other retirement plans; deferred compensation; stock options; restricted stocks and other equity; bonuses; commissions; country club memberships; annuities; life insurance (especially those with cash values); brokerage accounts – mutual funds, stocks, bonds, etc; bank accounts – checking, savings, CDs, etc; closely-held businesses; professional practices and licenses; real estate; limited partnerships; cars, boats, etc; art, antiques; tax refunds.

In many jurisdictions, if your separately owned property increases in value during the marriage, that increase is also considered marital property.

It is also very important for you to know if you reside in a Community Property State or an Equitable Division State. There are nine Community Property States: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. These states consider both spouses as equal owners of all marital property (a 50-50 split is the rule). The remaining 41 states are Equitable-Distribution States, which consider factors such as the length of marriage and the spouse’s earning power and involvement in building the business when determining a settlement. Settlements in Equitable Distribution States do not need to be equal, but they should be fair (equitable).

You should fully understand this very important distinction between separate and marital property so that you do not inadvertently do anything that might cause your separate property to be construed as marital property.

How to Protect Your Business in a Divorce: Prenuptial and Postnuptial Agreements

So what is a prenuptial agreement? A prenuptial agreement (prenup) is a contract signed by both parties before their wedding that details what their property rights and expectations (including alimony) would be upon divorce. A well-drafted prenup can “override” both Community Property and Equitable Distribution State laws and the courts will usually respect such agreements, making them a very powerful tool in protecting your business.

Having said that, prenups can be rather tricky, so it is really important that they are well drafted. To strengthen them, each to-be spouse should be represented by their own attorney. In most jurisdictions prenups should contain the following vital elements:

  • The agreement must be in writing (No oral prenups)
  • It must be executed voluntarily and without coercion (having your fiancé sign a prenup the day before the wedding is a good way to invalidate that prenup)
  • There must be full disclosure (no hiding of assets) – this is another way to invalidate a prenup
  • The agreement cannot be unconscionable (this is also another way to invalidate a prenup). For example, if you’re making millions, don’t expect to get away with only giving up the silverware in the divorce, even if that’s what’s in the prenup.
  • It must be  executed by both parties, preferably in front of witnesses (or a notary)

Some attorneys even recommend having a judge witness the signing to make sure that no party was coerced.

By using a prenuptial agreement, the parties can decide in advanced what property will be considered separate property and what property will be considered marital property and how that marital property should be divided.

A prenup is probably one of the best and least expensive ways of protecting your business against a future divorce.

But if you don’t get a prenup put in place, a postnuptial agreement may be an option. It is similar to a prenuptial agreement except that it is, as the name implies, entered into and signed after marriage. In order to be valid, a postnup should contain the same vital elements as a prenup.

Having said that, a number of states still don’t recognized postnups and even when they do, postnups are challenged and invalidated much more frequently than prenups.

Here’s why: Before marriage, the parties are entering into an agreement much like two business people entering into a contract and neither party has any legal family law rights on the other. Theoretically, if they don’t like the contract, either party can walk away. However after marriage, the situation is very different. The married couple now have very well defined legal rights regarding support and property division and they are considered to be in a fiduciary relationship with each other, meaning each party has to act in the best interests of the other party. Therefore, any transactions between them will be viewed with caution by the courts. By negotiating a postnuptial agreement, one party will typically be giving up some of these rights and that’s why postnups will usually be held to a higher standard of fairness than prenups (on the theory that individuals have less bargaining power once married).

Nevertheless, if you don’t have a prenup, try to get a postnup. It’s better than nothing. Just understand that a postnup is not nearly as ironclad as a prenup and you never know how the courts will act if one spouse decides not to abide by the terms of the postnup.

How to Protect Your Business in a Divorce: Using a Partnership, Shareholder, LLC and/or Buy-Sell Agreements to “Lock-out” Your Spouse.

Partnership, shareholder and/or operating agreements should include various provisions that would protect the interests of the other owners if one of the owners gets divorced, including:

  • A requirement that unmarried shareholders provide the company with a prenup agreement prior to marriage along with a waiver by the owner’s spouse-to-be of his or her future interest in the business.
  • A prohibition against the transfer of shares without the approval of the other partners or shareholders and the right, but not the obligation, of the partners or shareholders to purchase the shares or interest of one or both of the divorcing parties so that the other owners can maintain their control of the business.

How to Protect Your Business in a Divorce: Pay Yourself a Competitive Salary

This point is often overlooked. If you don’t pay yourself a competitive salary and instead reinvest everything back into the business, your soon to be ex-spouse might claim that he or she is entitled to more money or a larger percentage of your business because he or she did not derive any benefit and all your money went back into the business instead of the household.

How to Protect Your Business in a Divorce: Think Twice About Involving Your Spouse in Your Business

As we discussed earlier, all or part of your business will probably be considered marital property. If your spouse was employed by you or your company, helped run the company in any way or even contributed business ideas during your marriage, then he or she may be entitled to a substantial percentage of your business. The more involved in your business your spouse was, the bigger that percentage would be. If you have partners in your business, then your spouse would own a percentage of your share.

How to Protect Your Business in a Divorce: How to “Pay-off” Your Spouse

If for whatever reason you were not able to adequately protect your business and now your spouse is entitled to an ownership interest, here are some ways to pay him or her off (I’m assuming your don’t want to be business partners after the divorce):

  • Use your share of other marital assets including cash, stocks, real estate, retirement funds, etc.
  • Property Settlement Note – this is a long-term payout (with interest) of the amount you owe your ex-spouse for the value of her share of the business.
  • Sell the business and divide the sales price. This is obviously the least preferred method, but all too common. When the business represents the vast majority of all assets, there just may be no other way to pay-off the other spouse. 

Free Consultation with Divorce and Business Lawyer in Utah

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will 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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Business Planning and Protection

No matter how much or what you own, it is important to protect from lawsuits any assets or estates, especially if you plan to leave them to heirs. Not only do you need to know what to protect, you need to know how to protect it. Asset protection planning is not quite the same thing as estate planning, but each process involves organizing your affairs and assets in advance to protect your assets from the risks to which they may be subject. However, asset protection planning is usually geared toward protecting a business or professional practice, though these are not the only applications of asset protection.

It is also important to understand what an asset protection plan does not protect. This service does not help clients in tax evasion. It also does not hide assets. Rather, it secures them as protected assets. A reputable asset protection attorney will not use this method as a way to defraud creditors. People actually tend to use asset protection as a safeguard against the potential of a future legal liability, not only as a way to protect assets in the event of death.

A good plan will not only deter any possible litigation or harassment by creditors, but it should also work to create a satisfactory outcome in the case of a settlement. This comes about by following a process of creating a user-friendly plan, discouraging legal action, providing the incentive of an early and cheap settlement, leveling the litigation playing field, enhancing your bargaining position, providing options and, of course, winning. Asset planning not only protects you from creditors, but it also helps you reallocate your most valuable assets to decrease federal inheritance tax, eliminate the probate process and save on estate tax returns and death tax.

In other words, asset protection may be a part of estate planning, but it goes beyond this area of law. Estate planning is meant specifically to help you transfer your assets from one generation to the next. Estate planning encompasses not only asset plans, but also long-term care, Medicaid and tax planning. It is usually best to find a comprehensive estate plan in order to prevent any miscommunication among entities such as the CPA, estate planner and financial or retirement planner because they may not all belong to the same firm.

Having a good asset protection plan just may help prevent your loved ones from years of litigation or other legal actions should the inevitable occur. An asset plan will keep you from dying ‘in testate’, meaning that you do not have a will, trust or other instructions on what your loved ones should do with your assets. However, a good plan should also help you ensure that you have an estate to leave to your heirs in the first place. It is important that this plan is not fraudulent or intended to be deceptive in any way; still, it should be highly favorable to you so that you keep your assets in the case of litigation.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business issue you need help with, call Ascent Law for your free 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

4.9 stars – based on 67 reviews


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Laws Businesses Need to Know

Employment contracts provide crucial structure for businesses and their employees. Before accepting an employment agreement, it’s important for employees to understand their rights. It is equally important for businesses to be well-versed in current employment legislation, in order to avoid costly and stressful legal disputes down the line.

Laws Businesses Need to Know

Here is an overview of three crucial employment laws that every individual and business should understand.

EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA)

As evidenced by the fallout of the 2008 financial crisis, it is critical that workers’ hard-earned benefits are properly invested and adequately protected.

ERISA is a set of legislative measures that applies to private employers, and covers pension plans as well as healthcare benefits. Under ERISA, employers are required to adhere to several standards, including:

  • Providing employees with their benefit plan information
  • Creating a reporting and appeals process for employee grievances and appeals related to benefits
  • Complying with HIPAA, which prohibits discrimination in the selection and administration of healthcare plans

For employees, it’s critical to understand the differences between the pension plans that your employer offers. Not all plans are the same, and the plan you accept can play a major role in your retirement security.

The two primary types of pension plans are defined-benefit and defined-contribution. Defined-benefit plans guarantee that employees will receive a specific amount of pension funds when they retire.

Since paying into your pension fund entails specific investments, however, defined-contribution plans can vary based on how the investment itself performs.

In cases where employers offer defined-contribution plans, exercise special care in selecting your investment portfolio.

FAIR LABOR STANDARDS ACT (FLSA)

Private employers have some flexibility in setting wages, but there are certain parameters that have to be followed. The FLSA determines the national minimum wage, with a variety of adjustments based on the industry and job function in question.

One of the legal challenges with the FLSA is that, as a federal law, the minimum wage it sets may differ from state laws. In those cases, employees are entitled to earn the higher minimum wage.

For example, the federal minimum wage is currently $7.25 per hour. If you live in New York State, however, the state minimum is $9 per hour for most industries. By 2018, the state minimum wage will be $15.

That means that private employers in applicable industries will have to pay a minimum of $15 per hour, even if the federal minimum wage remains at $7.25 per hour.

The FLSA also covers overtime pay, a critical issue that many employers unfortunately overlook in order to cut costs. Overtime regulations apply to all “covered nonexempt employees”; exemption is determined by several factors including:

  • The industry
  • The size and revenue of the company
  • The employee’s income level
  • The nature of the employee’s job duties
  • Whether the employee is paid a set salary or an hourly wage

The FLSA requires that any nonexempt employee who works over 40 hours each week is paid at least their usual wage plus one half of that rate (commonly referred to as “time-and-a-half.”)

Remember also that when calculating eligibility for overtime pay, your employer is not allowed to average time worked over a two-week pay cycle. The rules apply to each individual workweek, regardless of when during the workweek those hours occurred.

WORKERS’ COMPENSATION

Workers’ Compensation laws differ in each state, but they are based on the same general principles nationwide. This type of legislation protects employees in the event that they because injured or ill at their place of employment, due to the functions of their job.

Businesses who meet certain criteria are therefore required to pay into workers’ compensation insurance. Employees do not have to pay any contribution to this insurance and should never be asked to do so. Workers compensation coverage reduces legal risk and liability for employers, so paying into it can provide significant protective benefits.

In most cases, workers compensation coverage does not cover situations for an employee intentionally became injured on the job or engaged in negligent behavior such as substance abuse, which led to an on-site injury.

Another standard exception is when an employer’s egregious negligence has led to significant harm to the employee. For example, if a business knowingly exposes its employees to illegal toxic chemicals, employees who develop illnesses as a result can still reasonably pursue a lawsuit.

Businesses and employees should always check their state’s Workers’ Compensation laws to determine which exceptions could apply to their circumstances.

KNOW YOUR RIGHTS; AVOID BEING IN THE WRONG

These employment laws, in addition to the many others that have been enacted, are there to protect both employers and their employees. Legislation differs by state and varies significantly based on industry and job function.

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free 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

4.9 stars – based on 67 reviews


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Different Types of Liability in a Restaurant or Bar

Running or owning a restaurant can be a really fun experience. It can also take up a lot of your time and require your full responsibility. Not only for your actions, but the actions of others.  If you run a restaurant or plan to buy one in the future here are a few liabilities you will want to consider.

Different Types of Liability in a Restaurant or Bar

DUIs

One of the most common types of liability in a bar or restaurant are those that revolve around DUIs.  Somewhere around 30% of the traffic fatalities that happen each year are due to DUIs.  But, don’t think that regular automobiles like cars and trucks are the only thing to look out for.  If you have an establishment, for example, in the mountains that allows snowmobile drivers or people on ski-lifts to get off and come in your restaurant, these people are also a liability.

Make sure that you purchase a Liquor Liability Policy if you plan on having liquor or alcohol in your establishment.

Activity Hazards

At first thought, you might not be able to think of any activity hazards that might happen in your establishment. But, here are a few to get your brain moving:

– Mechanical Bulls
– Falling from Chairs
– Bar Fights
– Burns from the bartenders flaming alcohol trick
– Making bananas foster or other food items in front of tables

These hazards aren’t just for your patrons either. They cover your employees as well.  In order to properly be covered for Activity Hazards in your establishment, you need to write down exactly the types of risks involved and put them on your insurance application so that the agent can give you the right amount and type of coverage.

Missing Exit Zone

If you do not have an exit zone in your establishment OR you do but the light on the sign is broken or out, you could be asking to get sued not only by anyone in your establishment that might get hurt because of an emergency, but  family members of anyone who is killed in the event of an emergency.  This light should always be on and should never be blocked.

Flammable Decorations

In the same way, you need to recognize possible injury for activity hazards, you also need to recognize the possibility of flammable decorations and injuries as well.  Burns are painful, but they also can disfigure a person so not only would you be paying for an individual’s medical treatment, but also pain and suffering which can be incredibly high.

Decorations such as Tiki torches are a great example of flammable decorations.  They look great, they might add to the atmosphere or theme of your establishment, but is that really worth possibly injuring someone and then, in turn, getting sued for it?

Probably not.  Tiki torches aren’t the only flammable decorations, so are outdoor heaters, fireplaces, Chinese lanterns, etc.

When looking for insurance for your establishment, make sure they have loss control inspections.  This enables a Risk Management professional to come in and tell you which areas or processes in your building might be problematic.

Essentially they are your go-to person for figuring out what items, activities, or even food items in your establishment carry the most risk.  (i.e., a mechanical bull.  It may seem like a fun thing to put into a bar, but without the proper insurance and proper forms for your patrons to sign, you could be in big trouble if someone gets injured.)

Free Consultation with a Utah Business Lawyer

If you are here, you probably have a business law issue you need help with, call Ascent Law for your free 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

4.9 stars – based on 67 reviews


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Going Public With Your Startup in Utah

One writer for Forbes is brave enough to tell it straight: the gap between the “instant zillionaires” who build their own companies from the ground up and the painstaking—and legally entangled—process of launching a successful business into the public realm is enormous. A business attorney in Salt Lake City is familiar enough with the “sobering story” the law textbook relates, but the flashy emergence of wealth from garage-and-basement offices like Apple’s story have become the stuff of legend. So which is it? Or is there a middle ground?

Going Public With Your Startup in Utah

Going public can indeed be “messy and expensive,” with hours of time and headaches consumed by filings, disclosures, holds on stock activity, but it may not have to be that way. A business attorney in Salt Lake City that is well-versed in the securities regulations businesses would advise a business to go public only once they’ve reached their ready point, and like Forbes, he would remind CEOs that “it doesn’t have to be an all-or nothing decision between going public and staying private.”

The Securities and Exchange Commission does seem to put a damper on the idea of going public, what with their “arcane process” for registering stocks and bonds, as well as reporting in their infamous EDGAR database. The cost of managing these regulations can be cost prohibitive for a small business with or without the services of a business attorney in Salt Lake City.

But there may be another way. The 2012 JOBS Act, standing for Jumpstart Our Business Startups Act, made raising capital of up to amounts under $1 million through crowdfunding activities online much easier and requires much less reporting. Utah business lawyers familiar with securities law would advise their clients, too, that there are “break points” of $5 million and $50 million thresholds, below which companies can avoid some of the more “onerous registration and reporting requirements” in selling to the public.

A business attorney in Salt Lake City might also counsel a new company to consider selling to investors exempt from many of the reporting requirements, that is, accredited investors (the guys who we think of as “millionaires” and professional investors) and institutional investors. This option lets your company grow before your cousins and their girlfriends want to purchase stock. Fewer is better at first, too—Are there less than 35 investors? You might be able to get the SEC off your back by staying small in your scope, and there is a friends and family exemption in the rule books, so your cousins might be able to get in on the deal more-or-less free of charge (though their girlfriends are an iffy bunch).

All in all, though, securities laws are ridiculously complex, and our bet is that even if you’re a whiz at the business side of things, your head is spinning when you contemplate all the SEC regulations of going public. That’s when you call on a friend—or an attorney—because American laws shouldn’t inhibit economic growth. Don’t let the man get you down.

Free Initial Consultation with a Startup Lawyer

If you are a Utah business that wants to go public, 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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