Getting a Trademark

Getting a Trademark
Getting a Trademark

As one of the smallest businesses in the City of Alexandria, VA, I never really considered getting a trademark.

My previous employer, a small software development firm applied and received trademarks, but it was always an expensive and lengthy process that was accomplished by the law office that represented the company.

In the summer of 2013, I decided to maximize the use of my home and increase my income. My home and garden became an AirBnB. And the first guest to stay with us was an attorney for the U.S. Patent and Trade Office, just down the street. We hit it off right and were friends. He stayed with us for over a month while searching for a permanent place to live.

After moving here and getting settled in at his new office, our friend offered to help file my trademark application. At that point, I figured it was a great opportunity to add creditability to my small business. And receiving inside help with my trademark meant my application went through the full process without any problems in just five months, they had a four month backlog when I applied.

Looking back, the biggest issue with applying for a trademark is that it is public record. There are entire businesses set up in the City of Alexandria to trick you into thinking you are getting information updates about your application from the Patent Trade Office (PTO), which includes payment requirements that are the exact amounts PTO will soon be charging for your trademark. These fake communications come in emails and U.S. Mail with titles and addresses very similar to the real PTO. If you’re not paying attention, you fall for it. Several times I sent these along to our friend asking if it was real or fake. PTO knows this is going on and some clients do not have the funds for their application because they’ve already paid the fake businesses, not knowing. For now, you just need to pay close attention to not fall victim to these scams.

As a small business, be open to finding new ways to build your credibility. Recognize a great opportunity when it presents itself. It may not always be within your timetable.

Government Shutdown: React, Communicate, Control

Small Business Is Open for Business During Government ShutdownSmall organizations are at extra risk during the government shutdown – you already know that. But what can you do?

1. Keep your fears at home.

Your employees need concrete information and clear communications. But don’t add to their burden by discussing your fears.

2. Grab control where you can.

A big part of this problem is the lack of control we all feel. Reduce your stress by taking control of what you can. Look for those things in your organization which you can change to help you manage through this tough spot and take action.

3. Talk to your staff.

Clear communications are critical. What are you going to do which affects them?  Tell them now.

What ideas – such as profit improvement or cost control – do you need?  Ask for everyone’s help.

4. Make decisions and execute.

Do you need to stop paying everyone on a government contract and support staff until there is work again? Do so with a clear communication. Talk about their value and how you want to retain them. Be clear on what you must do now to save the company until the return of work. Keep the communications regular once you have send everyone home on unpaid leave.

Are you in retail or otherwise facing a significant loss of business? Decide whether you need to cut hours across the board, close one day a week, reduce employee hours, or reduce employee numbers. Then take the action and clearly explain it to all employees.

More information on unemployment benefits during this time: http://www.vec.virginia.gov/

Don’t dither. Don’t play favorites.

5. Keep politics out.

Whatever your politics and how you feel about this shutdown, keep your comments and communications focused on your business and its future. You and your staff may or may not agree politically but do not add that emotional content to your communications. It will reduce their effectiveness.

Taking corrective actions now is your best focus. It will help you feel more in control. It can help focus your staff on creating ways to improve the company.  Act to protect your organization’s future.

Clear, regular communications are vital to keeping your people actively engaged with the company and to retaining those you need.

Patricia A. Frame is an experienced management consultant, HR executive, speaker, and author on human capital issues. She is known for her ability to address organizational goals and issues effectively and to create human resource management practices which support these goals without excessive administrivia. Patricia has advised executives and boards on a wide range of human capital and strategic planning issues. She has expertise in organization development, talent management, process restructuring, compensation, and training. She has worked with technology-based companies, government contractors, non-profits, associations, and retail operations. She advises small to mid-size organizations on ways to succeed and to help their employees thrive. Ms. Frame has given seminars for SBDC in recent years on the basic processes of HR management. Additionally, she generously provides one-to-one HR counseling once a month through Alexandria SBDC.

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Common Small Business Problems Hinder Success

Swot analysis

One of the advantages of consulting is that you get to see others’ mistakes. And learn from them. I have made more than my fair share of mistakes. Yet, I still am surprised by how often the basics underlying how you run your operations are the most common small business problems.

Good administrative processes will support and enhance your ability to grow and succeed. Set them up early and properly to be effective. Boring work, probably. Critical, yes!

Financial literacy is quite low in the US.

Whether you are a financial whiz or barely understand cash flow, you need effective financial processes in your business. You need a system that is right for your size and work. But you also need to understand and use it. Get basic training. Or hire someone to help you set up your own chart of accounts and understand what your system can do for your business. Then add help to maintain it as needed.

Your ability to manage your cash flow is critical to your success. And your tax returns are far easier with a good system. So is your planning!

Yet… recently it was a long-time business owner whose bank account was overdrawn before he realized he had not seen his outside book-keeper in months and his employee was not entering everything correctly. Last fall it was a CEO who had not made payroll on time – again; but thought employees should understand good intentions!

And don’t even ask me what happens to firms which do not pay employee tax withholding on time – think locked doors, seized bank accounts, personal assets at risk.

How are you hiring and paying for services your business needs?

Do you have employees? Independent contractors? Contractors or consultants? Interns?

Tax and labor laws contain a lot of traps for those who do not learn about the rules. Pay attention to what you are doing when you bring in the help you need. Often solopreneurs and small organizations hire extra help or expertise on an “as needed” basis. But you do need to be clear about the “how” and “which” among your options.

If you hire via a company which provides such services, it is usually a nice clean transaction – business to business.

But if you hire someone directly, you need to be sure to keep it legal.  And that is true even if you only hire the person for a few days or hours.

Check out this IRS guidance on hiring independent contractors. Be sure the help you hire, no matter what they call themselves, is working with you to ensure both of you are in the clear legally on your payments to them. Get a W-9 form. Keep good documentation.

Do you have employees? The federal and state governments are cracking down on proper classification and payment of employees. They are looking at whether the organization is trying to call them independent contractors instead of employees to avoid paying taxes and mandated benefits. They are checking out wages and hours and whether the organization is trying to treat employees as exempt from overtime laws when the work done is actually not exempt.

And when you have employees, you need records of their employment status and how it starts and ends. People claim unemployment often when they really are not eligible. But if you do not have a record of hiring and termination, whether the person resigned or was in a short-term contract or internship, you may be charged and your unemployment insurance (UI) rates may rise.

Want to hire an intern? Lots of small organizations think of interns as free help. Not so! Generally you have to pay interns, unless you are working with an educational institution where the internship is a part of a class or program. Note: non-profits can hire unpaid interns more easily. See this DOL guidance. I see organizations all the time that want an unpaid intern to work for them but violate these rules – and get into trouble. Back pay, taxes, and fines are common.

Violations of these laws are quite expensive. You will need a good lawyer, probably an HR consultant, and be subject to financial penalties.

And don’t get me started on business planning!

We all know we should – but do you actually have a plan? Does it include realistic information on your revenues and expenses? SWOT analysis? (Do you even know what SWOT means?) Do you have an assessment of your market and potential targets? Do you have goals for the short and medium term? And, if you have been in business awhile, when did you last update or re-do it?

I have seen a lot of small organizations get into trouble because they overdid hiring or outside assistance when a simple business plan would have helped them think more clearly.

Help is available from the Alexandria SBDC. Good online resources exist at the SBA. Special programs also exist for veterans, minorities, and women – so seek out all the support you need.

 

These ‘administrative basics’ are not what many of us want to do, we are too busy finding revenue. But they are worth your time and effort to learn and do correctly — so you can SUCCEED!

Patricia A. Frame is an experienced management consultant, HR executive, speaker, and author on human capital issues. She is known for her ability to address organizational goals and issues effectively and to create human resource management practices which support these goals without excessive administrivia. Patricia has advised executives and boards on a wide range of human capital and strategic planning issues. She has expertise in organization development, talent management, process restructuring, compensation, and training. She has worked with technology-based companies, government contractors, non-profits, associations, and retail operations. She advises small to mid-size organizations on ways to succeed and to help their employees thrive. Ms. Frame has given seminars for SBDC in recent years on the basic processes of HR management. Additionally, she generously provides one-to-one HR counseling once a month through Alexandria SBDC.

Small Business Insurance: A Necessity From the Start

Insurance
Insurance (Photo credit: Christopher S. Penn)

The “to do list” is long and daunting when you are start a new business. What entity to use ? What about office space ? What office furniture and equipment do I need ? All are good and necessary questions. Frequently missing from the list – what type of small business insurance will I need ? This question is one of the most important.

Insurance protects your business from losses due to fire, theft, yours and your employee’s negligence, and accidents that occur in your office. In its various forms, it provides peace of mind for you, protection for your business, its assets and your own personal assets.

While insurance needs depend on the business’ nature, almost all businesses should have a commercial general liability (CGL) policy. This policy protects the business from the costs of defense and settlements or judgments that result from bodily injury, property damage, libel, and slander claims. Depending on the policy and the nature of the claim, it may cover the costs of defense and a settlement or judgment for a breach of contract claim.

In addition to a CGL policy, if a business provides services, error and omissions (malpractice) insurance is a necessity. This policy provides protection for claims which allege negligence in the provision of services to customers and clients. A CGL policy does not cover these claims.

If the business owns the building or the business has business personal property, property insurance is a necessity. Property insurance protects the business property from fire, theft, vandalism and the like. If the business owns motor vehicles, then commercial auto insurance is necessary to protect the business from any claims arising from accidents in company owned vehicles. If employees drive their own cars for business purposes, then non-owned auto liability coverage is necessary in case the employee does not carry auto insurance or has inadequate coverage.

Depending on circumstances, other insurance policies that a small business should consider are: workers compensation insurance (required if the business has employees), business interruption insurance, disability insurance, data breach insurance, directors and officers insurance, and products’ liability insurance.

Many of the above coverages may be combined into a Business Owner’s Policy (BOP). A BOP is a package policy that combines the more common coverages, CGL, property, auto, business interruption, for example, into a single policy with premiums that are lower than if you purchased each policy separately.

To assess the types and amount of insurance that best suits your business, seek out an independent insurance agent who specializes in commercial lines insurance. Such an agent has the ability to shop the policy around for the best coverages and deductibles for the best premium. Since not all policies are created equal, the independent insurance agent is invaluable in comparing policies to ensure that you are buying the most appropriate insurance for your purposes. As 2012 comes to a close and 2013 dawns, it is a great time to assess or reassess your insurance needs. 

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia 22314
(703) 519-3733 (Telephone)

Criminal Records Check in Employment for Small Business

Seal of the United States Equal Employment Opp...

In April 2012, the Equal Employment Opportunity Commission (EEOC) expanded its guidance, “Enforcement Guidance on the Consideration of Arrest & Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964,” and addressed in detail an employer’s use of criminal records checks information in employment decisions. While the EEOC always has cautioned employers not to use such records to preclude employment across the board, the expanded guidance provides insight on how to use criminal records check information in employment decisions without running afoul of Title VII.

The guidance, which applies to employers with 15 or more employees, warns employers that the use of criminal records checks information in hiring decisions may lead to discrimination claims. These claims will be based, most likely, in racial or national origin discrimination because statistics show that African Americans and Hispanics are arrested and convicted at a rate disproportionate to their numbers in society. Consequently, if an employer uses criminal records check information as a screening tool, eliminating all applicants with any criminal record, the employer will run afoul, more likely than not, of the guidance.

The guidance does not preclude the use of criminal records checks information in employment decisions. Rather, it requires that the employer use such information in a neutral manner so as not to screen out automatically applicants who are in “protected classes,” particularly race and national origin.

The guidance suggests a three pronged test as well as “best practices” to guide the employer in its use of criminal records checks. Under the test, the employer should ask three questions: what is the nature and gravity of the criminal offense; how long has it been since the applicant committed the offense; and, what is the relationship between the offense committed and the job’s requirements. In addition, the employer should determine if there are mitigating circumstances regarding the criminal records check information by giving the applicant an opportunity to explain and demonstrate why the information should not disqualify the applicant from the job. If there is a relationship between the position and the criminal record and a substantial amount of time has not passed between the offense and the application, then it may be appropriate to deny the applicant the position.

The guidance’s “best practices” recommend that employers eliminate policies that preclude employment based on any criminal record without context, train hiring managers about Title VII and how to apply it legally to a criminal records check policy, and develop a policy that matches the job requirements and the offenses that potentially disqualify an applicant from a job. The “best practices”also recommend that employers set a time limit for consideration of a criminal history and allow applicants to respond to it. Finally, the “best practices” recommend a written policy with its justifications, preservation of the research used to develop the policy, and appropriate confidentiality rules.

While using the three pronged test and the “best practices” in developing a criminal records check policy does not guarantee a claim free future, it enables the employer to provide a reasoned defense to discrimination claims filed against it. As always, before instituting any policy which has legal implications, it is advisable to seek the advice of legal counsel.

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia   22314
(703) 519-3733 (Telephone)

Lead Paint Renovation, Repair and Painting Regulation: Contractors and Homeowners Be Aware, Part Two

 The impact of the Lead Paint Renovation, Repair and Painting Regulation on residential remodeling and related contractors is three-fold: training and certification for the contractor and employees, required work practices and required recordkeeping. First: the education requirement. The regulation requires that at least one person in the contractor’s firm be certified as a “certified renovator.” To achieve the certification, the employee must complete an 8-hour EPA approved certification class, two hours of which must be hands-on training. The certified employee or “certified renovator” then trains the other company employees. The “certified renovator” acts as a supervisor on the renovation jobs and ensures that the work performed conforms to the required work practices.

Which brings up the second requirement: the use of required work practices. Under the regulation, the contractor must distribute, before the job begins, the EPA pamphlet, “Renovate Right,” to the homeowners. The contractors must post warning signs outside of the work area, warning about the presence of lead paint and follow defined containment procedures to prevent the spread of lead paint dust. The regulation also prohibits certain work practices. The contractor cannot use open flame or torch burning to remove paint, heat guns that exceed 1100̊ F degrees, or high speed sanding or grinding, unless the sander or grinder has a HEPA exhaust control. The required work practices procedures apply to both interior and exterior renovations. At the end of the project, the “certified renovator” must supervise the explicit and detailed cleaning and waste removal requirements.

Finally, the third requirement: recordkeeping. Under the regulations, the contractor must maintain job related records for 3 years. Some records that contractors must maintain for 3 years include the homeowner’s signed receipt verifying that the homeowner received EPA’s booklet, documents that confirm that the contractor performed the project in accordance with the required work practices, the educational certifications of the “certified renovator” and the training records of other employees. Under certain circumstances, the contractor must show these records to the homeowner within 30 days of the job completion.

As always, the devil is in the details. Contractors should take care to keep the necessary records for the required period of time and do so meticulously. It is always easier to hand the EPA inspector the records requested, then to try to reconstruct the records, or worse yet, to explain to that inspector that the records were not kept at all. If there are no records or only incomplete records, it is difficult to prove that you performed your jobs in accordance with the regulations. Many times, no records, poorly kept records and incomplete records are an invitation to EPA inspectors to investigate further and possibly assess fines and penalties.

Law Office of Paula M. Potoczak
218 North Lee Street, Third Floor
Alexandria, Virginia   22314
(703) 519-3733 (Telephone)

Lead Paint Renovation, Repair and Painting Regulation: Contractors and Homeowners Be Aware

The White House renovation
The White House renovation (Photo credit: Wikipedia)

Prior to 1978, lead was an additive in paints used in the residential and commercial construction industry. Consequently, residential housing stock built prior to 1978 was painted with lead-containing paint. The ingestion of lead paint dust and chips is a known potential health hazard to adults and children, but particularly to children 6 years old and younger. Pregnant women are vulnerable as well because of the potential of harm to the fetus if lead dust or chips is ingested.

To remedy a perceived problem, U.S. E.P.A. promulgated the Lead Paint Renovation, Repair and Painting Regulation. Effective in its amended form on April 22, 2010, the regulation requires contractors working on pre-1978 housing stock (single family homes as well as multiple unit housing) and child occupied facilities to be a “certified renovator,” engage in work practices that contain the spread of lead dust and chips during renovation, and educate clients by providing a pre-renovation pamphlet. The lead paint renovation repair and painting regulation applies to contractors of all types whose work disturbs lead based paint and who are compensated for their work. It applies not only to renovation contractors and painters, but to window and door installation contractors, electricians and plumbers and any contractor whose work disturbs painted surfaces.

The regulation applies to work which disturbs more than 6 square feet indoors and 20 square feet outdoors. There are no opt-out provisions. Even if the residence undergoing renovation does not house the targeted population, the regulations apply and the contractors must observe the work rules.

The new regulation increases the costs of renovation projects and exposes non-compliant contractors to legal liability. The increased costs range from EPA’s estimates of $8.00 to $167.00 per project to a private estimate of $500.00 to $1,000 for the remodeling of a kitchen, painting a couple of rooms or replacing several windows. While it is unclear what the full economic impact of the regulation will be, EPA’s Inspector General criticized its cost analysis in a July 25, 2012 report. The report noted that EPA’s cost analysis failed to use a statistically valid sample and failed to consider certain necssary costs which a contractor would incur. Thus, appears that the increased costs are closer to the private estimates than to EPA’s estimate.

Finally, the contractor who violates the regulations faces potential civil and criminal penalties, with fines up to $37,500 per violation. EPA is actively enforcing the regulation. It has fined, this year, a Maine rental property owner $10,000 for using power equipment improperly to remove paint from exterior surfaces of an 1850’s building, failing to train its workers properly and failing to apply for the proper certification. In another case, EPA fined a New Jersey window and siding company $1,500 for failure to follow the dust containment, waste disposal and training regulations. Likewise, it fined a Nebraska home repair company over $5,000 for failure to provide the homeowners with EPA’s approved lead hazard information booklet and to obtain the appropriate acknowledgment regarding the renovations.

So, if you are a contractor be certain that your employees are properly trained and that you are complying with the regulations. If you are a homeowner be prepared for higher renovation costs and longer renovation times.

Law Office of Paula Potoczak

218 N. Lee St., 3rd Floor

Alexandria, VA 22314

703-519-3733

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Document Retention for Small Business

Frequently small businesses ask me as a professional bookkeeper varying questions about document retention.  I am not going to tell you which documents you should retain.   This information needs to come from your CPA, attorney and/or your corporate headquarters.  I want to write about document retention because ultimately, you may be responsible for archived documents.  There are certain documents that you will be required to keep on file and available if needed by auditors.  Not only must you have them, BUT you must be able to retrieve them – which box and which folder.   If you can’t find it, then you don’t have it!

Learn which documents you must retain and for how long.  Find out if electronic copies are acceptable or if you must keep hard copies.   I will write about my best filing system another time, but a few tricks concerning retained documents:

  1. Use colored dots to mark the corner of files you will need to archive at the end of your fiscal year.  Then all you will need to do is pull those files and place them into an archive box for storage.
  2. If you have a single document and not a year’s worth of similar documents, it is okay to create a folder for one document, label it and then color tag it.  This makes it easier to retrieve this document if it is needed.  I always give critical documents their own folders.  [HINT:  I will make an electronic  copy of an archived document if it is something I may need to refer to from time to time.]
  3. Part of my filing system is to keep an electronic catalog of all my files.  Not only does it make it easier to find a document or folder (I’ll write more about this another time), it makes it very easy to create content lists of archived boxes.
  4. Number your boxes and label them with the general contents and dates.
  5. Your boxes need to be stored someplace where they will be safe.   If your basement floods easily or is subject to dampness, don’t put them there.  If your attic has insects, don’t store them there.  If you have a lot of boxes don’t stack them beyond their maximum load; the boxes can become damaged and will collapse.  You might consider checking into commercial storage companies.  They will pick up your boxes and will deliver boxes back to you if you need to retrieve a document (see the value of having a good list?).  These companies can be expensive, but may be worth the cost if you have neither the space nor a good, safe location to store them.
  6. If electronic copies of your documents are allowed, typically certain guidelines must be followed.  Some of the requirements will include minimal redundancy of your electronic files, where the electronic data is stored, legibility, etc.  You must obtain a copy of those guidelines and adhere to them.

Retention is a very important topic and should be part of your company’s Policies and Procedures.  Documents that must be retained should be known to anyone in your company who works with them.  I recommend also that document management be assigned to someone who will take responsibility.  That person might be you, because ultimately the liability is yours.

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Sue McLaughlin is the founder and principal of McLaughlin Bookkeeping Services, LLC and MBS Bookkeeping Seminars. Her mission is to offer small-business clients a fair price for bookkeeping services while delivering excellent customer service.