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Breakfast and Business Law Brought to you by: Carroll County Chamber of Commerce The Burson Center PRESENTS &

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Presentation on theme: "Breakfast and Business Law Brought to you by: Carroll County Chamber of Commerce The Burson Center PRESENTS &"— Presentation transcript:

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2 Breakfast and Business Law Brought to you by: Carroll County Chamber of Commerce The Burson Center PRESENTS &

3 Richard G. Tisinger, Jr. Protect Yourself Tips to Avoid Being Sued Phone:(770) Fax:(770)

4 Protect Yourself Tips to avoid being sued Richard Tisinger, Jr. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

5 Risk Management Identify, Prioritize, and Respond to Risk – Focus on areas of greatest risk – Assign Responsibility for Risk – Create policies and procedures – Communicate and Educate about Risk Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

6 Get Insurance A comprehensive general liability (CGL) insurance policy and any other types of insurance specific to your industry will protect your business. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

7 Know the Law Know the Basics and When to Get Help Starting a Business Contracts Government Regulations Labor and Employment Lawsuits Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

8 Government Regulations Obtain the necessary permits for your business and maintaining them Comply with local ordinances (zoning, permits, building codes, etc.) Comply with Health and Safety Laws Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

9 Labor and Employment Improve Your Hiring Practices – Reference checks – Drug Testing – Credit Checks – Motor Vehicle Reports Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

10 Labor and Employment Mentor & Monitor Employees Document Create Employee Handbook Do Not Discriminate – Gender, Race, National Origin, Age, Pregnancy Address Sexual Harassment Be Aware of Overtime Terminate Employees with Care Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

11 Contracts Put it in Writing Beware of form or standard Contracts Attorney Review of Contracts Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

12 Business Practices Incorporate – Protects you against personal and financial liability risks. – Sole proprietorships leave you open to great legal risks. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

13 Business Practices Create Policies and Procedures – Explain to your staff what it is you expect of them – Evidence of your reasonableness Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

14 Business Practices Keep Good Records – Avoid Disputes with Clients and Vendors – Avoid Claims of Mismanagement Protect Records – Practices – Technology Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

15 Business Practices Communicate with Clients and Vendors – Policies – Charges – Time Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

16 Torts Follow the Law Create Policies and Procedures Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

17 Intellectual Property Protect your Intellectual Property Do Not Infringe on Others IP Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

18 Good Business Ethics Truthful Keep your word Nice Reasonable Resolve Disputes Early Avoid Suing Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

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20 Stacey L. Blackmon Employment Law: Recent Updates Phone:(770) Fax:(770)

21 EMPLOYMENT LAW UPDATE Americans with Disabilities Amendment Act Servicemember Amendments to FMLA Genetic Information Nondiscrimination Act Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

22 Americans with Disabilities Act (ADA) Applies to employers with 15 or more employees Prohibits discrimination against qualified employees, or applicants, on the basis of a qualifying physical or mental disability Requires employers to provide reasonable accommodations to employees to perform the essential functions of their jobs Requires employers to engage in the interactive process with employees to determine eligibility under the ADA and, if the employee is qualified, to discuss options for an accommodation with the employee. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

23 AMERICAN WITH DISABILITIES AMENDMENT ACT Effective January 1, 2009 Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

24 ADAAA ADAAA makes important changes to the interpretation of the definition of a "disability" by rejecting the holdings in several Supreme Court decisions and portions of EEOC's ADA regulations. Effect is to make it easier for an employee to establish that he or she has a disability within the meaning of the ADA. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

25 Disability Definition of Disability has not changed: – a physical or mental impairment that substantially limits one or more major life activities; – a record of such an impairment; or – being regarded as having such an impairment. However, the interpretation of the definition has changed. Focus will not be on whether employee is disabled, but rather on employer compliance. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

26 Guidelines to Determine Whether Someone has a Disability Disability shall be construed in favor of broad coverage and should not require extensive analysis. An impairment need not prevent, or significantly or severely restrict, performance of a major life activity to be substantially limiting. An individuals ability to perform a major life activity is compared to most people in the general population, often using a common-sense analysis without scientific or medical evidence. An impairment need not substantially limit more than one major life activity. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

27 Temporary Impairment Temporary, non-chronic impairments of short duration with little or no residual effects that usually will not substantially limit a major life activity. Examples: common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis, and seasonal allergies. However, an impairment may still be substantially limiting even if it lasts or is expected to last fewer than 6 months, such as a 20-pound lifting restriction lasting several months. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

28 Mitigating Measures Positive effects of mitigating measures are ignored in determining whether an impairment is substantially limiting Except for ordinary eyeglasses and contact lenses Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

29 Examples of Mitigating Measures include Medication, medical equipment and devices, prosthetics, hearing aids, cochlear implants and other implantable hearing devices, low vision devices, mobility devices, oxygen therapy, use of assistive technology, reasonable accommodations and auxiliary aids or services, behavioral or neurological modifications, and surgical interventions that do not permanently eliminate an impairment Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

30 Impairments that are Episodic or in Remission An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples of impairments that are episodic or in remission include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, schizophrenia, and cancer. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

31 Substantially Limited in Working An individual with a disability will usually be substantially limited in another major life activity, therefore generally making it unnecessary to consider whether the individual is substantially limited in working. Replaces class or broad range of jobs with the concept of a type of work. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

32 Major Life Activities (MLAs) MLAs include major bodily functions, such as functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, and cardiovascular systems, and reproductive functions. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

33 Major Life Activities (MLAs) MLAs also include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, sitting, reaching, interacting with others, and working. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

34 Regarded As Prong ADA prohibits discrimination if employee is regarded as having an impairment, regardless of whether or not it substantially limits a major life activity. Employer regards an individual as having a disability if it takes a prohibited action based on an actual or perceived impairment that is not transitory (lasting or expected to last for six months or less) and minor. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

35 Regarded As Prong For example, taking an adverse employment action based on a sprained wrist and broken leg expected to heal normally does not amount to regarding an individual as having a disability, because these impairments are transitory and minor. Taking an adverse action based on carpal tunnel syndrome or Hepatitis C, or on a 2-day virus that an employer perceived to be heart disease, would amount to regarding an individual as having a disability. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

36 Regarded As Prong Reasonable accommodation is not available to someone only covered under the regarded as prong of the definition of disability. The employee has to have a disability to be entitled to a reasonable accommodation. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

37 Provisions of ADA that have NOT changed: Interactive Process required Reasonable accommodation standards Undue hardship defense Direct threat defense Still not covered: – Current use of illegal drugs – Pregnancy – Sexual behavior disorders not resulting from physical impairments, compulsive gambling, kleptomania, pyromania Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

38 PRACTICAL EFFECTS OF ADAAA More employees will be considered to have a disability. Fewer awards of summary judgment to employers and more jury trials. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

39 Focus will be on: Whether specific accommodations were available or reasonable Whether either side was participating in the interactive process in good faith Whether a plaintiff was actually qualified for the job, Whether the employers description of the essential functions of the job is legitimate Whether an employer made an employment decision on the basis of disability or for some unrelated reason Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

40 Practical Tips Carefully draft job descriptions that accurately capture the essential functions of each individual, different job position. Respond to requests for accommodation. Develop policy and/or form for employee to request reasonable accommodation. Train managers to refer issues to HR. Properly discipline employees based on performance issues. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

41 FAMILY & MEDICAL LEAVE ACT SERVICEMEMBER AMENDMENTS Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

42 Servicemember Amendments National Defense Authorization Act (NDAA) enacted in Initially limited to families of National Guard and military reservists. Expanded to families of all active duty military personnel effective in Purpose: provide relief for families of military personnel involved in wars in Iraq and Afghanistan Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

43 FMLA Covered employers must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for one or more of the following reasons: – for the birth and care of the newborn child of the employee; – for placement with the employee of a son or daughter for adoption or foster care; – to care for an immediate family member (spouse, child, or parent) with a serious health condition; or – to take medical leave when the employee is unable to work because of a serious health condition. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

44 Eligible Employee Employed by the covered employer for at least 12 months in the previous seven year period, and Employed for at least 1,250 hours during the twelve months immediately preceding the requested leave. Employed at a worksite where 50 or more employees are employed by the employer within 75 miles of that worksite. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

45 Covered Employer All public employers regardless of size. Private employers with at least 50 or more employees working 20 or more calendar workweeks in the current or preceding calendar year. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

46 SERVICEMEMBER LEAVE New qualifying reasons for family members of active duty military personnel for: – Because of any qualifying exigency arising out of the fact that the employees spouse, son, daughter or parent is a covered military member on active duty (or has been notified of an impending call or order to active duty) – Care for a recovering service member Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

47 Qualifying Exigency Employees spouse, son, daughter, or parent is on (or has been notified of an impending call to) covered active duty in the Armed Forces Short notice deployment (less than 7 days notice) – limited to 7 days leave Providing childcare on an urgent, immediate need basis (but not on a routine, regular, or routine everyday basis) when the need to provide such care arises from the active duty status of a covered military member for a biological, adopted, or foster child, stepchild or a legal ward of a covered military member Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

48 Qualifying Exigency Attendance at military events and related activities such as pre- and post- deployment ceremonies and family support programs To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment (limited to 5 days for each instance) Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

49 Covered Active Duty For regular Armed Forces, deployment with the Armed Forces to a foreign country. For U.S. National Guard and Reserves, deployment with the Armed Forces to a foreign country. (Prior to the 2010 NDAA amendments, qualifying exigency leave did not apply to family members serving in a regular Armed Forces, and there was no requirement that members of the National Guard and Reserves be deployed with the Armed Forces to a foreign country.) Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

50 Military Caregiver Leave Eligible employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember to Take up to 26 workweeks of FMLA leave in a single 12-month period Care for a covered servicemember With a serious injury or illness Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

51 Covered Servicemember Expanded to include a veteran who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness if the veteran was a member of the Armed Forces at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy. (Prior to the 2010 NDAA amendments, military caregiver leave was limited to care for current members of the Armed Forces, including regular components and National Guard and Reserves.) Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

52 Serious Injury or Illness Serious injury or illness that was incurred by the member in line of duty on active duty Serious injury or illness that existed before the beginning of the members active duty and was aggravated by service in line of duty on active duty in the Armed Forces that may render the member medically unfit to perform the duties of the members office, grade, rank, or rating. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

53 Serious Injury or Illness of Veteran a qualifying injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the members active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

54 Next of Kin The nearest blood relative, other than the covered servicemembers spouse, parent, son, or daughter, in the following order of priority: – blood relatives who have been granted legal custody of the servicemember by court decree or statutory provision, – brothers and sisters, – grandparents, – aunts and uncles, and – first cousins Unless the covered servicemember has specifically designated in writing another blood relative as his or her nearest blood relative for purposes of military caregiver leave under the FMLA. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

55 Next of Kin Reasonable Documentation Employer may require reasonable documentation or statement of family relationship. Examples of this reasonable documentation include a simple statement from the employee, or a childs birth certificate, court document, etc. Using a birth certificate or other court document to document the familial relationship outside the immediate family may be difficult. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

56 Length of Leave Eligible for up to 26 work weeks of FMLA leave to care for a recovering service member. Eligible for up to 12 work weeks of FMLA leave for ALL other qualifying reasons. No employee is eligible for more than 26 work weeks of FMLA during any 12 month period. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

57 FMLA Employer Notice Requirements Notice of eligibility within 5 business days of receipt of notice of qualifying reason for leave – no magic words required from employee Notify employee of reason if employer determines employee is not eligible Written notice to employee if additional documentation is needed to determine if qualifying reason (Rights & Responsibility Notice) Written notice that leave is designated as FMLA leave within 5 business days in most cases Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

58 Train Managers & Supervisors To recognize and handle leave requests from employees. No magic words required from employee to request FMLA leave. Managers must know qualifying reasons for FMLA leave. Proper discipline of performance issues. No retaliation. Maintain records. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

59 Title II of the Genetic Information Nondiscrimination Act of 2008 Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

60 Effective November 21, Under Title II of GINA, it is illegal to discriminate against employees or applicants because of genetic information. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

61 GINA Prohibits the use of genetic information in making employment decisions, Restricts acquisition of genetic information by employers and other entities covered by Title II, and Strictly limits the disclosure of genetic information. The EEOC enforces Title II of GINA Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

62 Genetic Information Genetic information includes information about an individuals genetic tests and the genetic tests of an individuals family members, as well as information about any disease, disorder, or condition of an individuals family members (i.e. an individuals family medical history). Family medical history is included in the definition of genetic information because it is often used to determine whether someone has an increased risk of getting a disease, disorder, or condition in the future. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

63 Discrimination Because of Genetic Information The law forbids discrimination on the basis of genetic information when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoffs, training, fringe benefits, or any other term or condition of employment. An employer may never use genetic information to make an employment decision because genetic information doesnt tell the employer anything about someones current ability to work. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

64 Harassment Under GINA, it is also illegal to harass a person because of his or her genetic information. Harassment can include, for example, making offensive or derogatory remarks about an applicant or employees genetic information, or about the genetic information of a relative of the applicant or employee. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

65 Harassment Although the law doesn't prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so severe or pervasive that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or someone who is not an employee, such as a client or customer. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

66 Retaliation Under GINA, it is illegal to fire, demote, harass, or otherwise retaliate against an applicant or employee for filing a charge of discrimination, participating in a discrimination proceeding (such as a discrimination investigation or lawsuit), or otherwise opposing discrimination. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

67 Unlawful to Acquire Genetic Information, except: Inadvertent acquisitions of genetic information do not violate GINA, such as in situations where a manager or supervisor overhears someone talking about a family members illness. Genetic information (such as family medical history) may be obtained as part of health or genetic services, including wellness programs, offered by the employer on a voluntary basis, if certain specific requirements are met. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

68 Exceptions for Acquiring Genetic Information Commercially and publicly available documents like newspapers is permitted, as long as the employer is not searching those sources with the intent of finding genetic information. Genetic monitoring program that monitors the biological effects of toxic substances in the workplace is permitted where the monitoring is required by law or, under carefully defined conditions, where the program is voluntary. Employers who engage in DNA testing for law enforcement purposes as a forensic lab or for purposes of human remains identification is permitted, but the genetic information may only be used for analysis of DNA markers for quality control to detect sample contamination. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

69 Confidentiality It is unlawful for an employer to disclose genetic information about applicants or employees. Employers must keep genetic information confidential and in a separate medical file. (Genetic information may be kept in the same file as other medical information in compliance with the Americans with Disabilities Act.) There are limited exceptions to this non-disclosure rule. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

70 Practical Tips Do not include inquiries about family medical history for: – post-offer, pre-employment medical exams – fitness-for-duty exam Inform physician conducting the medical exam of GINA requirement to avoid common questions about family medical history. Particularly in smaller towns, there may exist considerable knowledge (whether true or not) of family medical history. Train recruiters and hiring managers to avoid making a hiring (or other) decision based on personal knowledge of family history. Update non-discrimination policy to include GINA. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

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72 Amy L. Velasquez E-Verify Program: The Basics Phone:(770) Fax:(770)

73 E-Verify The Basics – What is it? – Who does it apply to? – Who can I verify? – How does it work? – Does Georgia have any E-Verify requirements? – What else do I need to know? Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

74 E-Verify: The Basics - What is it? A free, internet based program sponsored by the United States Citizen and Immigration Services (USCIS) Allows employers to determine if employees are authorized to work in the United States Companion to the I-9 form, used since 1986 Authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 Pilot program has produced todays version Goals are to reduce unauthorized employment and maintain a legal workforce Partnership between DHS/SSA/Dept. of State Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

75 E-Verify: The Basics - Does It Apply to Me? Who does it apply to? – Businesses that contract with the Federal Government AND have the FAR Clause in their contract (called qualifying contracts) – All federal contracts (with a period of performance over 120 days and a value above $100k with exceptions) have FAR Clause as of September 8, 2009 – Speak to contracting official for details about your contract – E-Verify does not apply to employers without qualifying federal contracts UNLESS your State requires it – If you do not contract with the Federal Government and your State does not require you to use it, it is purely voluntary Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

76 E-Verify: The Basics - Georgia Law Georgia Law and E-Verify – Applies to all public employers – Applies to employers who contract with a State or Local Government entity to provide services Contracts for the physical performance of services Contractor must E-Verify new employees Contractor must submit an affidavit of compliance to the local government entity Subcontracts: include language requiring all subs to participate and comply with E-Verify and I-9 requirements and subcontractor affidavit Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

77 E-Verify: The Basics - Who Can I Verify? Federal Contractors – Can choose to verify entire workforce (and all new hires) OR – Existing employees assigned to the federal contract AND all new hires – NO selective verification Everyone Else – NEW HIRES ONLY!! – Verify within three days the employee begins work for pay – DO NOT prescreen potential candidates using E-Verify – NO selective verification Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

78 E-Verify: The Basics - How Does it Work? Must enroll and register to use it (tutorial, deadlines) Input employee information using completed I-9 form Your computer talks to the SSA first; if no info, it talks to DHS SSA or DHS sends response confirming employees authorization to work in the U.S. or issuing a TNC (tentative non confirmation) If TNC, you and the employee have work to do Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

79 E-Verify: The Basics- How Does It Work? (contd) I-9 – Employee completes on first day of work; employer must complete its section by the end of the employees third day – Government can audit I-9 forms; employers subject to sanctions – Carefully train staff to follow I-9 instructions – No requirement to copy documents; do not ask for particular documents – Always use current form available – Accept documents that appear to be valid – Re-verify temporary work authorization documents when expired (employment authorization cards, H1-B visas, some student visas); DO NOT re-verify other documents E-Verify used after I-9 is completed using the information from the I-9 Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

80 E-Verify: The Basics- How Does It Work? (contd) Some 96% of employees are confirmed authorized to work TNC = Temporary Non-confirmation – There is a mismatch in the I-9 information and the information on file at SSA or DHS, or there is no information on file at SSA or DHS – Now what? Explain the TNC to employee; ask if he/she wants to contest If no contest = Final non-confirmation (terminate) Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

81 E-Verify: The Basics- How Does It Work? (contd) Employee wants to contest the TNC: Print out sheet provided which explains the exact mismatch in the information and contains the phone number and address of the agency the employee needs to contact to fix the issue Employee has 8 federal government working days to fix the problem or = Final non-confirmation (terminate) Sometimes the agency will ask for more time, that will show up in your computer under the case Must close out each case (tell the computer the final result- self termination, termination, no action…) Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

82 E-Verify: The Basics- What it is Not and Things You Need to Know It is not a way to prescreen employees - used after hiring It does not protect you from DOL/Immigration audits It does not give you employees immigration status Cannot take any action against an employee during TNC 8 day contest period You must display E-Verify posters in a location visible to employees Enforcement – Civil and criminal penalties – Self audits Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

83 E-Verify: The Basics – Information and Resources No case law yet = no interpretation New vocabulary, manuals, web interface as of June 13 Online tutorials, PowerPoints, webinars available directly from USCIS / DHS Training is extremely important for your human resource staff for I-9 forms and E- Verify Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

84 References 48 C.F.R O.C.G.A. § , et seq. Ga Comp. R. & Regs Ga. ALS 421 Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

85 Rebecca J. Dobras Collections: Collecting from others and dealing with your creditors

86 PART 1 Collecting Unpaid Debt: How to Protect Yourself and Your Business

87 Collecting Unpaid Debt: Something to Think About After 6 months, a business only has a 50% chance of collecting a delinquent debt After one year, that chance drops to 25%

88 You might think you have the perfect customer/client…

89 But you never know what kind of trouble that person may run into in the future

90 ANTICIPATE PROBLEMS IN ADVANCE: The Basics Run a Credit Check Get all important information – Address, Phone Numbers, Where employed – Does the individual have authority to do this? Keep Good Records – Keep copies of invoices – Document every payment received – Keep all correspondence – letters, s, etc

91 ANTICIPATE PROBLEMS IN ADVANCE: Put the Agreement in Writing Clearly Defined Terms Signed by all parties to agreement Terms to Include Payment Terms What is considered a default Repercussions for late or no payments Interest on Unpaid Amount Attorneys Fees

92 ANTICIPATE PROBLEMS IN ADVANCE: Other Considerations Have a guarantor to guarantee the loan or debt Have the debt secured by real or personal property

93 What if you receive a bad check? Criminal and civil remedies CIVIL: See O.C.G.A. Sec )Write a demand letter to maker of check 2)You are entitled to demand: Full amount of check $30.00 or 5% of check value, whichever is greater Any fees charged to you by the bank 3)If you do not receive payment within 10 days, you can take the maker to court. Entitled to: Full amount of check x2 (up to $500) $30.00 or 5% of check value, whichever is greater Any fees charged to you by the bank Court costs

94 YOU ARE NOT GETTING PAID! What Now?? Your Options: 1)Let it Go 2)Discuss with Client and Negotiate 3)Send to a Collection Agency 4)Hire an Attorney and File Suit Or any combination of the above

95 Considerations Before Taking Action How much money is owed? Is it worth your time? Does the debtor have the means to settle? Might the debtor file bankruptcy? What is your relationship with the debtor? Will you be able to locate the debtor? Do you want to hire an attorney or try to collect on your own? What is the statute of limitations for filing a court action?

96 TO DO FIRST: Call Debtor AS SOON AS the account becomes delinquent Follow up with debtor if no payments are received

97 Your Options: Settlement PROS Probably best way to keep a working relationship going Can set up a payment plan that works for everyone Can begin to receive payments immediately Not as expensive CONS Might not get the total amount that you are entitled to Debtor might still not pay and you have to start the process over

98 Your Options: Collection Agency PROS Will harm debtors credit score Can be more aggressive in collection efforts than you may have time to CONS Most agencies take a portion of the amount owed as their fee Collection agencies cannot garnish wages, foreclose on house, place liens on property etc Subject to the Fair Debt Collections Practices Act

99 Your Options: Legal Action – Without An Attorney in Magistrate Court PROS Cheap Faster Process is simplified Still get a binding judgment that is enforceable CONS Magistrate courts will not hear cases with damages that could exceed $15,000 Not entitled to the same legal protections No jury trials No discovery Other side is still entitled to have a lawyer

100 Your Options: Legal Action with Attorney PROS Threat of legal action may frighten debtor into payment or settlement Lawyer know the intricacies of the law You would be relieved of figuring out how to do it on your own May be entitled to attorneys fees from debtor CONS Expensive Timely Might not see any money for years as the court process drags on

101 PART 2 Dealing with Creditors: How to Protect Yourself

102 Word of Advice Do NOT ignore the problem and hope it disappears!! It Usually WONT!

103 Your Rights: Fair Debt Collections Practice Act If you owe money, collection agencies cannot: 1) Harass you 2) Use abusive or profane language 3) Threaten you 4) Call you after 9 pm or before 8 am 5) Call you at work 6) Give you any misleading information

104 Your Rights: Fair Debt Collections Practice Act (Cont.) What To Do If Collection Agency Violates Act: Keep a written log of each time any kind of abuse or harassment occurs File a formal complaint with the Federal Trade Commission Send complaint to Georgias Governors Office of consumer affairs and to creditor File suit against collection agency and creditor for violations of FTC regulations

105 Your Rights: Power of Creditors Creditors on their own have no power to: 1) Garnish your wages 2) Sell your home 3) Place you in prison Only Courts Can Order These - So do not let empty threats frighten you into hasty action.

106 In Over Your Head? Prioritize Your Debts Always make family necessities your top priority Mortgage payments should also be a top priority Essential utilities next Car Loans Unpaid child support could land you in jail Credit Cards, Other unsecured loans: LAST

107 Handling Unpaid Debts: When You Only Have Small Debts Small debts need to be repaid as soon as possible Speak to creditors See if they are willing to work out alternative arrangements

108 Handling Unpaid Debt: When You Have Large or Multiple Debts Do not try to pay off large debts in their entirety as fast as possible Your Options 1) Speak to creditors directly 2) Talk to a debt settlement agency or a lawyer to negotiate on your behalf 3) Bankruptcy

109 Kristin H. Dial Business Structures: Overview of common business structures & issues regarding commercial leases Phone:(770) Fax:(770)

110 Overview Business Structures – Types – Advantages Commercial Leases – Terminology – Common Issues Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

111 Why Form an Entity? LIABILITY PROTECTION Tax reasons Administrative (banking, hiring employees) Authority for contracts, transacting business, etc.

112 Types of Entities Corporations – C Corporation – S Corporation Limited Liability Companies (LLC) Partnerships – FLP (Family Limited), LLLP (Limited Liability Limited) – General, Limited Others – Estates – Trusts

113 Pros/Cons of Entities in General Advantages Liability Protection Accounting procedures Separation of businesses/records Privacy Facilities co-ownership Taxation Disadvantages Reporting requirements Procedural requirements Documentation Setup/Administrative costs

114 Corporations Formation/Documentation – Articles of Incorporation – Bylaws – Resolutions of Directors/Shareholders – Shareholders Agreement Membership/Management – Shareholders – Directors – Officers

115 Corporations Advantages – Separate legal entity – Shareholders not liable for debts PROVIDED formalities followed – S-Corp (pass-through taxation)

116 Corporations Disadvantages – Strict procedural requirements Annual meetings, record keeping, use title & seal, etc. Pierce the corporate veil – Administrative dissolution – Dissolution/distribution – C-Corp (double taxation) – Limitations on Shareholders

117 Limited Liability Company Formation/Documentation – Articles of Organization – Operating Agreement – Consent of Members Membership/Management – Members – Managers (optional) – Officers (optional)

118 Limited Liability Company Advantages – Flexibility – Liability protection PROVIDED formalities followed – Pass-through taxation Disregarded entity Choice of alternate tax classification – Ease of dissolution/distributions – Estate planning uses – Flexibility in membership (ownership) – No annual meeting or seal Disadvantages – Fairly new type of entity – Formalities for liability protection

119 Partnerships Formation/Documentation – Partnership Agreement – Certificate of Limited Partnership Membership/Management – General Partners – Limited Partners

120 Partnerships Advantages – Flexibility – Established case law / procedures – Limited Partnerships – gifting / control / management Disadvantages – LIABILITY of General Partners

121 Entity Selection Liability protection Employment issues Taxation issues (consult accountant) Ownership structure Setup costs Procedural/administrative requirements Reporting requirements

122 Commercial Leases - Terminology Landlord / Lessor Tenant / Lessee Common Area Maintenance (CAM) Trade fixtures Quiet enjoyment

123 Types of Leases In addition to rent & other costs…. Single Net – Tenant pays real estate taxes Double Net – Tenant pays real estate taxes + building insurance Triple Net – Tenant pays real estate taxes + building insurance + maintenance

124 Issues with Leases Rental – Annual escalation or renegotiate Term – Short or long period – Automatic renewal Termination – Ability to exit any time, only upon default, or within certain period before renewal, etc. – Ability to sublease

125 Issues with Leases Taxes – Tenant or landlord responsible Insurance – Name landlord in policy Maintenance/Repairs – Costs, responsibilities – Floors, roof, interior vs. exterior, windows Destruction of Premises – Lease continue or not

126 Issues with Leases Restrictions on Uses – Types of products, services, foods, etc. Tenant Allowance – Pay for improvements – Paid in advance or refund for expenditures Tenants remedies vs. Landlord Personal Guaranty – Understand what youre backing up

127 John A. Harris Insurance: What should you do if you are sued? How insurance works and is full coverage enough coverage? Phone:(770) Fax:(770)

128 LIABILITY ISSUES / INSURANCE – GENERALLY Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

129 OVERVIEW – In a typical liability insurance policy, the insurer agrees to pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury and/or death arising out of the ownership, maintenance or use of an automobile – The liability insurer agrees to defend the insured in any action brought against the insured for bodily injury (or death) or property damage. – The liability insurer agrees to pay the judgment up to the policy limits Business exclusion on personal policies – make sure your business is covered (i.e. General Commercial Liability Policy [GCL])!!!

130 CONTEXT IN WHICH YOU MIGHT BE SUED – Premises Liability – i.e. slip and fall – Automobile Accidents

131 POTENTIAL THEORIES OF LIABILITY Respondeat Superior (i.e. Agency) = Liability of owner for negligence of employee (Let the master answer). Employers and employees can be held jointly and severally liable for the negligence of employees committed within the course and scope of employment

132 Respondeat Superior - Course and Scope If an MVA occurs and its shown that the at-fault driver was operating in connection with his employment at the time, a presumption arises that the employee was operating within the course and scope of his employment at the time of the MVA. Cell phone / texting Medication / alcohol / drugs Running personal errand on employer time Going to/from work (is typically considered outside course and scope) BUT employer permitting personal use coupled with on-call status 24/7 may result in course and scope finding

133 POTENTIAL THEORIES OF LIABILITY Types of Negligence – Garden variety Negligence – i.e. Violating Rules of the Road – Negligent Hiring (knew OR should have known standard) – Negligent Retention – Negligent Supervision – Negligent Entrustment (actual knowledge of incompetence/recklessness)

134 BE SURE TO NOTIFY YOUR INSURER ASAP! – Notify YOUR insurer even if you believe the other party was at fault – Failure to notify may result in loss of coverage (DUTY to notify)

135 WHAT TO DO IF YOUR REGISTERED AGENT IS SERVED – IMMEDIATELY submit suit papers to insurer (or insurance agent) – 30 Days to file an Answer – Existence or non-existence and/or amount of insurance is not relevant or admissible in the trial of a civil lawsuit for money damages involving bodily injury – DANGERS OF DEFAULT JUDGMENT

136 IS FULL COVERAGE ENOUGH COVERAGE? – Minimum Liability Limits in Georgia: $25,000 – How Far Will That Go – consider this (SEE HANDOUT)

137 Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and

138 Disclaimer Nothing contained in this PowerPoint presentation is to be considered the rendering of tax or legal advice for specific cases. Readers are responsible for obtaining such advice from their own legal counsel. Any information contained herein is intended for educational and informational purposes only. Brought to you by: The Burson Center, Carroll County Chamber of Commerce, and


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