Business Stress Test ™ 

According to a 2014 Forbes article, between 36 and 53 percent of operating businesses in the U.S. are involved in at least one legal or court proceeding in any given year. Many of those businesses are sued by employees, contractors, vendors, clients, customers, and even business partners.

What’s even more concerning than the numbers is the fact that many of these legal issues and disputes could be prevented, or at least minimized, with the proper legal planning and compliance.

Don’t Become a Statistic

A ‘business stress test ™ ’ is like a legal audit for your established business to help you avoid becoming a lawsuit statistic. It’s a thorough review of your operations, procedures, and legal documents to identify any holes or weaknesses that are leaving your business vulnerable to lawsuits and other disputes.

The business stress test begins with a one-hour consultation to develop a personal audit plan for your business based on your specific needs and goals. Then, we’ll thoroughly and systematically audit your business with a hands-on, deep dive into your documents and operations.

What Does a Business Stress Test™  Include?

Every business is different, with unique needs, but your business stress test may include a review of the following:

• Contracts and Agreements – We’ll review your employee, vendor, lease, and sub-contractor contracts to determine if there are any holes or gaps that could lead to liability issues.
• Employee Handbooks – If you have employees, you need an employee handbook. We’ll examine yours to look for consistency, compliance, and thoroughness. If you don’t have one, we’ll help you put one in place.
• Formation Documents – If you want to run a legally compliant business, you must follow the formalities. We’ll review your Articles of Incorporation, Corporate Binders, Operating Agreements, and other formation documents to make sure they’re current and complete.
• Regulatory Compliance – Your business will have to comply with city, county, state, and industry-specific laws, rules, and regulations in order to operate legally. We’ll asses your regulatory needs and work with you to meet these requirements.
• Insurance Policies – Every business needs insurance, no matter how solid your contracts are, how thorough your handbook is, or how meticulous your formation documents are. The truth is, things still come up. We’ll work with you and your insurance agent to determine what, if any, liability exposure your business may face.
• Accounting and Taxes – We are not tax experts, but we will work with your CPA regarding business compliance and legal documentation. Your financial decisions and actions must be documented and reflected in your corporate books.  We believe in a collaborative approach to work with other professionals such as your CPAs to understand the big picture and help to make recommendations that work across your entire business platform.

Post-Audit Recommendations

After the legal audit is complete, our corporate attorney’s will prepare an organized and detailed evaluation that includes our findings and recommendations. Our recommendations may be simple or complex, depending on what we find. At the very least, we may recommend that you send internal memos reminding staff of policies and procedures or holding corporate seminars to educate your employees about issues like sexual harassment or OSHA standards. Sometimes, a business simply needs some reminders or refreshers.

If we find gaps in your compliance or documents, we may recommend something more thorough, like a meeting with your insurance advisor to strengthen your insurance policy, a renegotiation of your vendor contracts, or an update to your official policies and procedures or employee regulations.

Whatever the case, our recommendations will be specific to your business and the audit findings and they’ll be geared towards filling gaps, boosting your protection, and reducing your overall liability.

A Practical Path Forward for Businesses Dealing with COVID-19

The simple fact is we are living through a pandemic – and it’s going to be with us for a while. That’s our new reality. But life must go on, and needs must still be met, so the question is, ‘What are we, as small business owners, going to do to move forward?

We need hope, good news, and some practical advice so that business can continue; maybe not ‘as normal’, but decidedly forward.

County and State Health Requirements 

Admittedly, these have been a bit of a moving target (to say the least), but health requirements are everything right now. If you don’t understand (and abide by) the current health codes, your business may not be allowed to reopen or continue operations.

Every county and state is different, so I can’t cover specifics, but it’s essential that you stay on top of the changes, understand them, and implement them properly.

Employees, Subcontractors, and Training Policies 

It’s vital that you understand all the new policies; but it’s just as important that your employees and subcontractors do, too. As the owner, it’s your responsibility to train them.

Some states are requiring that you make a ‘good faith effort’ to ensure that your employees, clients, and customers are staying healthy while they’re on your watch. Taking the following steps can help you meet that legal requirement:

• Require that your employees and subcontractors sign a form acknowledging that they read and agree to abide by the new health rules
• Hold weekly or periodic meetings to update your staff
• Arrange for professional training
  • OSHA
  • The local health department
• Update your written policies
• Develop hard and fast rules for what to do when an employee gets sick
  • Take temperatures at the beginning of a shift?
  • Do NOT come to work if you’re sick (which should be policy anyway)
  • If they exhibit systems of COVID, require that they get tested
• If possible, modify operations so that some employees can work from home, or alternate and scatter schedules so fewer people are in the workplace at the same time

Contract Review 

A lot of businesses have already experienced an interruption in their supply and work chain. You may be able to perform right now, but it doesn’t mean all your suppliers or subcontractors can. Now is the perfect time to pull out any contracts that are relevant to your business currently and see if/what can/needs to be renegotiated. Through addendums or amendments, you can adjust the following (if needed):

• Add contingency and extension of time clauses
• Review or add indemnity agreements and limited liability causes
• Adjust your insurance
• Termination: some contracts may simply need to be terminated and redrawn

With new contracts, consider including clauses that specifically address COVID-19 (and future pandemic) interruptions. This is a way to be preventative versus reactive moving forward because the reality is, this could happen again.

Insurance Review and Update 

A lot of business owners are finding that their insurance coverage wasn’t designed for a disaster like COVID-19 and claims are being routinely denied. While you may not necessarily be able to fix that, you can update your insurance now so that you’re better covered moving forward. Consider adding:

• Business interruption coverage
• Civil authority coverage
• Contingent property insurance or dependent property insurance

Business Opportunities and Expansion 

On the good news front, we are experiencing a surge of creative entrepreneurship – and it’s inspiring! Business owners everywhere are shifting to expand and create new opportunities so they can continue to serve through the pandemic and beyond. This includes:

• Launching an online business or an online extension of a current business
• Creative supply chain opportunities (think restaurants and delivery services)
• Outsourcing, freelancers, and the gig economy (this is going to be big!)

What’s really exciting is that investors are looking for opportunities outside the stock market! Small business owners can take full advantage of this.

Financial Management 

Pandemic or not, financial management is key to a successful business. Right now, it’s even more critical. Your income may be lower than normal, and everything is still so uncertain. As the heart of our economy and communities, it’s important for you to take advantage of the programs available, like:

• Paycheck Protection Program (PPP)
• Economic Injury Disaster Loan (EIDL)

This is also a perfect time to sit down (or Zoom) with your CPA or accountant to review your:

• Debts
• Savings
• Cashflow

Shareholder and Partnership Agreements 

Most business owners are not thinking about this right now, but you should be. Business as usual will probably never be, so we highly recommend reviewing these contracts for clauses that include hidden risks that may be triggered by the pandemic, or opportunities to improve. Examples include:

• Issuing capital calls
• Buy-sell agreements
• Reorganization and restructuring
• Business valuation

Succession Planning 

Last but not least, let’s talk about succession planning. Much of what we’ve already discussed all leads up to this. What happens to your business, family, assets, and employees if the unthinkable happens to you? Consider reviewing your succession planning for all the following areas:

• Business
  • Who takes over if you pass?
  • Does your partnership agreement cover succession?
• Personal
  • Is your will up to date?
  • Does your trust need to be amended?
• Employees
  • Consider providing success planning for your employees (they’re worried right now, too, and you can give them some peace of mind)

Moving Forward with McDonough Law

Despite all the fear and uncertainty, there are a lot of positive things that businesses can do right now to protect their present and future. There are encouraging opportunities for businesses to move forward and not just survive but thrive during and after the COVID-19 pandemic.

To learn more about your path forward, or for questions about what was covered, give us a call at McDonough Law today! Let’s move business forward together!   

2020 New Privacy Law

The CCPA will change how many businesses do business

Data privacy laws call for businesses to take steps to safeguard customers’ and employees’ personal information and to notify them if a breach occurs have been on the books for years. Recently, however, a new California privacy law—the California Consumer Privacy Act (CCPA)—was enacted ensuring consumers (but not employees–at least for now) the right to know what personal information is being collected and requiring businesses to respond to consumer demands for records showing all the personal information a business has collected about them and any third parties with which it has shared or sold their data, as well as requests to have their data erased and to opt-out of the sale of their personal information.

The new law becomes effective on January 1, 2020, and administration begins on July 1, 2020. Other states, including Hawaii, Maryland, Massachusetts, Mississippi, New Mexico, and Rhode Island, are following California’s lead and considering similar legislation. Because the California law will affect many small businesses, including some located in other states, and because it is likely that other states will adopt similar laws, it is important for small business owners to be aware of the new law and its potential impact on them.

Which Businesses Must Comply?
The CCPA applies to businesses that fall into at least one of the following categories: (1) those that earn $25 million or more in annual revenue; (2) those that buy, receive, or sell the personal data of at least 50,000 consumers or households; or (3) those that obtain at least half of their revenue selling the personal data of California residents. Any business, including those located outside of the state of California, will be subject to the law, if it meets one of the three conditions mentioned above. It has been estimated that more than 500,000 U.S. businesses, including many small businesses, will be impacted. The law does not apply when a business’s commercial conduct “takes place wholly outside of California,” i.e., (1) the business collected information while the consumer was outside of California; (2) no part of a sale of the consumer’s personal information occurred in California; or (3) there was no sale of the personal information collected while the consumer was in California.

What Are Businesses Required to Do?
The CCPA involves businesses, in response to a demand by a consumer, to make certain disclosures, which must be reasonably accessible to consumers and updated at least every 12 months.

Although the CCPA includes many specific requirements, in general, businesses that collect consumer data must:

Inform consumers about the categories of personal information they will collect;
Inform consumers about the purposes for which these categories of personal information will be used;
Provide notice if any new categories of personal information will be collected after the initial disclosure; and
Inform consumers of their right to request the deletion of personal information and the limitations to that right.
Businesses that sell consumer data or disclose it for a business purpose must comply with the requirements listed above and provide the following information:

A list of the categories of personal information they have sold over the preceding 12 months;
A list of the categories of personal information they have disclosed over the preceding 12 months;
A statement disclosing that consumer information may be sold; and
A disclosure of consumers’ right to opt-out of the sale of their personal information.
Businesses must also provide a clear, visible, and easily accessible link on their homepages and privacy policies enabling consumers to opt-out of the sale of their personal information. In addition, the CCPA requires businesses to disclose to consumers their right not to be discriminated against as a result of opting out. For children, there must be an express opt-in for their personal data to be sold. Upon a request by a consumer to delete the consumer’s personal information, the business must delete the information from its records and direct any service providers to delete the consumer’s personal information from their records as well.

Businesses must provide at least two ways for consumers to make requests for information, including, at least, a toll-free number, and if the business has a website, a web address. The business must deliver the information requested within 45 days at no charge to the consumer.

What Happens If My Business Violates the CCPA?
If regulators notify a business of a violation, it has 30 days to comply with the law before any penalty will be imposed. If the business does not resolve the issue within the 30-day deadline, the state of California can impose a hefty fine of up to $7500 per record. In addition, individuals affected by a violation of the CCPA can sue the business individually or as part of a class action for damages.

Give Us a Call
If you need help determining whether the New Privacy Law or a similar law will impact your business and what your business needs to do to comply with the law, we can help. Please call our office at 970-776-3311 to set up a consultation so we can discuss this law or any of your business’s other data privacy and protection obligations.

Oil & Gas Rights Q&A

3 Common Questions from CO and WY Land Owners
The oil and gas attorneys at McDonough Law receive a lot of questions from landowners about oil and gas rights. If you own land in Colorado or Wyoming, there is a good chance that you are sitting on oil or natural gas. Whether or not you own the rights to those natural minerals is an important legal determination, especially as business in that industry continues to boom.

Here, are three of the most common questions we receive about oil and gas rights.

If I own the land, do I also own the minerals?

Surface land and mineral estates are legally defined as two separate things. In other words, you can own the surface of your land, but not the mineral rights to anything found below the surface; including minerals like oil and gas.

If you own both the surface land and the mineral rights, it is known as a ‘fee simple ownership.’ However, if the mineral rights were ever separated from the surface use through a deed, it created a ‘split estate’.

Unfortunately, determining if you have fee simple ownership or a split estate can sometimes be difficult. Deeds are not always properly recorded or conveyed in purchase agreements or estates and trusts, which means that the mineral rights may have been deeded years ago but were long forgotten in the paper trail. A proper land title search is usually necessary.

If you need help determining whether you own minerals you should speak with an experienced oil and gas attorney from McDonough Law Group. A full-service law firm with a depth of knowledge, Crystal McDonough and her team can help you understand your property rights and determine exactly how much you own.

8 Steps To A New Business

Starting a new business is an exciting endeavor but can quickly become overwhelming – especially if you’re doing it alone. Creating a well-defined business plan allows you to refine incomplete ideas, address matters you might not have considered, construct a roadmap so you know what to do next, and even increase credibility for bank lenders or investor funding.

Here are some guidelines provided by the U.S. Small Business Administration (SBA), that will help you get down to business, literally:

1. Executive Summary. An executive summary is a snapshot of your business plan as a whole and touches on your company profile and goals.

2. Company Description. The company description provides information on what you do, what differentiates your business from others, and defines the markets your business will serve.

3. Market Analysis. Before launching your business, it is essential for you to research the industry, market, and competitors. What’s working and what’s not working for your competitors? How will you distinguish yourself from others? Is there anyone else in your market? If not, it could be for good reason—there might not be a consumer demand for your product or service.

4. Organization & Management. Every business is structured differently, so it’s important to understand how your company will be organized and managed. What entity will you use? Who’s in charge of what, and when? What kind of business succession plan needs to be put in place?

5. Service or Product Line. Tell the story about your product or service. Describe the features of what you sell and how it will benefit your potential customers.

6. Marketing & Sales. Describe how you plan to market your business and explain your general sales strategy.

7. Funding Request. If you are seeking funding for your business, make sure to include every detail requested by potential investors in your business plan. Any omissions may put your request at the bottom of the pile, or worse yet, in the garbage can.

8. Financial Projections. Providing financial projections to back up your funding request is critical. Find out what information you need to include in your financial projections for the bank or angel investor.

It’s likely that you may not know the answers to these questions, and that’s okay. McDonough Law Group can help you to refine your goals, map out your plan, and provide the kind of details needed to make your venture a success. Even if you’re already “knee-deep” in your business model, we’ll help you get your “ducks in a row.” Call (970) 776-3311 to schedule your FREE consultation.