Oklahoma Business Law

I started an Oklahoma business, I need more money . . . what do I do?

You started a new Oklahoma business, you made it through the rocky first months or perhaps even years. 

Your business is starting to gain some traction; growth is happening, but . . . you need something more.  You need money.  Money to invest in inventory, research, and development, marketing, or perhaps to hire new employees.  Or maybe you access – to new markets, new customers, new talent to hire.

You need that extra spark to take your business to the next level.  What are the options for bringing the extra spark into your business?

Well, there are essentially two options for bringing additional money and talent into your company:

  1. Debt

Debt is just as it sounds: Someone or some business is going to lend your business money, money which your business will have to pay back, likely at a healthy interest rate.  But if cash is what you need, then perhaps a loan is the right solution for you.  There is another, more robust option that opens new possibilities.

  1. Equity

Equity is giving someone or some business an ownership interest in your company in exchange for payment, usually but not exclusively cash invested in the company.  You essentially are adding a business partner who will have some level of control over the business.

The questions to ask before doling out equity in your business including the following:

How much money do you need?

The answer to this question needs to be based on your business plan, projections, and actual performance of the company.  Being able to accurately determine how much additional funding is necessary allows you to negotiate with the new investor coming into the company accurately.

How much control in the company are you willing to give up?

Let’s assume that right now you are the sole owner of the business; you call all the shots, you make all the rules, the buck stops with you.  Bringing on a business partner will permanently change the dynamic of your company. 

  • Do you want to allow the investor to have decision-making authority in the company at any level? What types of issues and decisions are you comfortable giving up control over?  Or Do you want a silent partner?

 

  • Do you want to use a mix of voting interest and non-voting interest to structure the control in the company the investor/partner has? In a corporation, this would usually be referred to as using preferred shares of stock versus common shares of stock.

 

  • Are you willing to provide the investor with the option to purchase a more significant interest in your company in the future? Using, for instance, a time-based option or performance-based option?

 

What intangible value is the investor bringing to the company?

Can you bring on an investor who has experience moving businesses like yours from point A to point B or even further?  How about an investor with contacts with potential suppliers and customers in your industry with whom you do not have contact?  Or an investor who is willing to get into the trenches with you and help grow the business?

 

How will you value your company?

To properly bring investment money into your company, you need to know what your company is worth to value the equity you provide to the investor accurately.

 

How will you and your investor separate if one of you wants to leave the company?

Obviously, you are planning on your relationship with the investor being successful, and hopefully, it will be.  However, if it is not successful or one of you simply decides you want to leave the company, you need a written plan for how the exit can happen and how the person leaving the company will be compensated for their equity ownership interest in the company.  This type of plan can usually be addressed in the operating agreement if the company is a limited liability company.

Posted by Shawn Roberts in Blogposts, Business Law

Making the rules while playing the game: Check out the new guidance from the SBA on the Paycheck Protection Program program

The United States Government rode to the economy’s rescue in March when it enacted the Paycheck Protection Program (PPP), established by Section 1102 of the Coronavirus Aid, Relief, and Economic Security Act (the “Act”). 

The PPP provided funding for businesses and nearly everyone connected to the economy including Oklahoma small businesses, employees, and independent contractors.  The PPP is administered by the United States Small Business Administration (the “SBA”), meaning the SBA makes up the rules for the PPP loan program. 

In what was certainly a path leading to confusion and difficulty but perhaps a path required by the severity of Coronavirus National Emergency, the SBA made the rules for the PPP during, after, and while it was distributing the funds from the PPP.  That means Oklahoma small businesses and businesses around the United States received PPP loan funds and since then have had to address new rules.

In a bid to try to ease the confusion, yesterday, May 6, 2020, the SBA issue these PAYCHECK PROTECTION PROGRAM LOANS Frequently Asked Questions (FAQs):

Paycheck-Protection-Program-Frequently-Asked-Questions
Posted by Shawn Roberts in Blogposts, Business Law

Questions and Answers for Oklahoma employees and employers: The Families First Coronavirus Response Act

Below is a table I put together for Oklahoma employers and Oklahoma employees answering some basic questions about the Families First Coronavirus Response Act.  A more detailed discussion of the Act is located here.

What is the Families First Coronavirus Response Act?

The Families First Coronavirus Response Act ( the “Act”) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. 

Which government agency enforces the Act?

The Department of Labor. Through its Wage & Hour Division, will administer and enforce the Act. 

When does the Act start, and how long does the Act last?

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

To which businesses does the Act apply? 

Under the Act, “covered employers” are certain public (Government) employers and private employers who employ fewer than 500 people.

What does the Act require employers to do?

 

Provide employees with paid leave along these lines:

  • Leave at Regular Pay Rate.
    Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Leave at 2/3rds of employee’s regular pay rate.
    Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or to care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition.

How long is the Act effective?

The Act becomes effective April 1, 2020, and runs through December 31, 2020.

What employees are covered by the Act?

(a) All employees of covered employers are eligible for two weeks of paid sick time for specified reasons related to COVID-19, or (b) Employees employed for at least 30 days are eligible for up to an additional ten weeks of paid family leave to care for a child under certain circumstances related to COVID-19.

What reasons qualify an employee for leave under the Act?

Employees qualify for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because of:

  1. Quarantine.  The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. Self-Quarantine. A health care provider has advised the employee to self-quarantine related to COVID-19
  3. Experiencing Symptoms. The employee is experiencing COVID-19 symptoms and is seeking a medical diagnosis
  4. Caring for Person.  The employee is caring for an individual subject to an order described above or a person who self-quarantined as described above;
  5. Caring for Child. The employee is caring for a child whose school or care place is closed (or no child care is unavailable) for reasons related to COVID-19; or
  6. Similar Condition.  The employee is experiencing any other substantially-similar condition specified by the Government

How much leave does an employee get?

For reasons 1-4 and 6 above – a full-time employee is eligible for up to 80 hours of leave, and part-time employee is eligible for the number of hours of leave the employee works on average over two weeks.  

How much leave does an employee who is caring for a child receive?

For reason five above, a full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick leave followed by up to 10 weeks of paid expanded family & medical leave) at 40 hours a week. A part-time employee is eligible for leave for the number of hours that the employee is typically scheduled to work over that period.

How does an employer calculate pay?

  • Reasons 1, 2, or 3 above: Employees taking leave are entitled to pay at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day, and $5,110 in the aggregate (over 2-weeks).
  • Reasons 4 or 6: Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day, and $2,000 in the aggregate (over 2-weeks).
  • Reason 5: Employees taking leave are entitled to pay at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day, and $12,000 in the aggregate (over 12-weeks). 

What if complying with the Act’s paid leave requirements would crush my small business and maybe put me out of business?

There is a small business exemption: To choose the small business exemption, you must document (in writing) why you believe your Oklahoma small business meets the criteria set forth by the Department, which will be addressed in more detail in forthcoming regulations (How about that?!? You are required to comply with regulations that do not exist yet!).

Do I have to post Notice about the Act at my business?

Yes.  The USDOL has provided mandatory posters regarding employee rights under the Families First Coronavirus Response Ac.  All private-sector employers with fewer than 500 employees are required to place the poster in a conspicuous area, which will generally be alongside your other federally mandated employee notices, you can find the post here. Additionally, you can find answers to questions about posting the Notice here.

 

The US Department of Labor also has some excellent resources on the Act, including a Q&A, a Fact Sheet for Employers, and a Fact Sheet for Employees.

Posted by Shawn Roberts in Blogposts, Business Law

What business licenses are required to do business in Oklahoma City?

I believe that Oklahoma is perceived as a state with a relatively small amount of business regulations (a relaxed regulatory environment so to speak).  However, even in Oklahoma’s relatively regulation-lite environment, there are still regulations to consider if you are in business.

One example is if you are doing business within the Oklahoma City limits there are a number of occupational or business licenses you must have to be legally compliant.  Below is a list of most of the required occupational licenses and if you are looking for more information consider visiting the City of Oklahoma City’s website.

One more thing to know: The city limits of Oklahoma City are expansive and amorphous indeed the OKC City Limits are large enough to hold the cities of Philadelphia, Boston, Washington, D.C., Pittsburgh, Manhattan, San Francisco, and Miami!

Advertising License Alcoholic Beverage License
Auction Sales License Coin ­Operated Device License
Day Care And Day Camp License Dry Cleaning License
Food Service Establishment License Gasoline And Oil License
Hotel/Motel License Kennel License
Low Point Beer License Massage Establishment License
Mobile Home Park License Outdoor Sellers
Pawnbroker License Used Auto Dealer & Salvage License
Used Merchandise License Vehicle Food Sales
Vehicle Frozen Dessert Sales License  

 

Posted by Shawn Roberts in Blogposts, Business Law

Oklahoma Business Law: When is an employer required to pay for overtime?

If you are a business owner or someone in a position of authority with a business, do you know if your business required to pay overtime to employees?

You might be surprised by the answer, read on to find out.

 
For Oklahoma employers covered by the federal Fair Labor Standards Act (“FLSA”), the FLSA controls the payment of overtime.  Here are the basic requirements your business must meet to required to pay overtime pay:
 
  • The business must be covered by the FLSA.  Consider this blog post to answer the question of whether your business covered by the FLSA.
  • The employee must not be an exempt employee to qualify for overtime pay.  Consider this post for the type of employees who might be exempt from the FLSA.
  • The employee must work more than 40 hours in one work week. 

 

What is the work week? I have seen some uncertainty about this from employers.  According to the United States Department of Labor:

The Act applies on a workweek basis. An employee’s workweek is a fixed and regularly recurring period of 168 hours — seven consecutive 24-hour periods. It need not coincide with the calendar week, but may begin on any day and at any hour of the day. Different workweeks may be established for different employees or groups of employees. Averaging of hours over two or more weeks is not permitted. Normally, overtime pay earned in a particular workweek must be paid on the regular pay day for the pay period in which the wages were earned.

 

To summarize:  All nonexempt employees of an FLSA-covered employer must be paid at a time and a half for all hours worked over 40 in the same work week.


Discouraging fact provided by the Tulsa World:

Oklahoma Minimum Wage

Oklahoma Minimum Wage

Posted by Shawn Roberts in Blogposts, Business Law, Oklahoma Employment Law

Collecting an Oklahoma judgment –> The Matrix

Have you ever wondered how an Oklahoma court judgment is turned into cash?

Good question. As most people know, get an Oklahoma judgment is only one step in the collection process. Rarely does a person owing a judgment simply write a check to pay it off and the State of Oklahoma does not usually collect judgments on behalf of parties in a lawsuit.

This is where the collection process kicks in. I outline some of the methods and steps in the post-judgment collection process for an Oklahoma judgment below:

Collection Outline Post Judgment

The other wildcard in the Oklahoma judgment collection process is that the person owing the judgment has to have something to collect.  This is where the old saying about not being able to get blood out of a turnip comes in.

Do you have Oklahoma judgment that needs to be collected? If so, let me know, I can’t guarantee that I will take your case, but I will take a look at and give you some guidance.

Posted by Shawn Roberts in Blogposts, Business Law

Come hell or highwater – beware of the finance lease

Connecticut River High Water in Bellows Falls Vermont

Do you want to sign a lease for equipment that doesn’t work?

Then, even though the equipment doesn’t work, be obligated to continue making lease payments for four years?

I thought not. This post explains the “finance lease” and why you want to know you are signing one before you sign it. [Tweet this]

Imagine this scenario

You’re a small business owner of a convenience store. You lease an ATM for your customer’s convenience from a broker. You sign a bunch of papers and ATM shows up a few days later. But from the start, it is defective: it fails to give out money, gives out the wrong amount of money and generally creates havoc for your business.
Continue reading →

Posted by Shawn Roberts in Blogposts, Business Law

Does an employer have to pay salaried employees overtime?

Recently, a reader of this blog asked the question “How could a salaried employee be exempt under the Fair Labor Standards Act (“FLSA”)?

Good question. Since I have talked about who is covered by the FLSA and who must be paid overtime, it makes sense to discuss some of the ways a salaried employee could be exempt. Exempt in this context generally means that the employer is not required to pay overtime.

The most prominent exemptions are:

Business Owner
It is so simple that it is initially often missed. If you are an employee who owns at least a bona fide 20-percent equity interest in the enterprise in which employed, regardless of the type of business organization, and are actively engaged in its management, you are excluded from the FLSA as an “executive”.

Computer Professionals
An Employee who primarily performs work as a computer systems analyst, programmer, software engineer or similarly skilled work in the computer field. Examples: system analyst, database analyst, network architect, software engineer, programmer.

Executive
An Employee whose primary duty is to manage the business or a recognized department/entity and who customarily directs the work of two or more employees. Also includes individuals who hire, fire or make recommendations that carry particular weight regarding employment status. Examples: executive, director, owner, manager, supervisor.

Administrative
An Employee whose primary activities are performing office work or non-manual work on matters of significance relating to the management or business operations of the firm or its customers and which require the exercise of discretion and independent judgment. Examples: coordinator, administrator, analyst, accountant.

Professional/creative
An Employee who primarily performs work requiring advanced knowledge/education and which includes consistent exercise of discretion and independent judgment. The advanced knowledge must be in a field of science or learning acquired in a prolonged course of specialized intellectual instruction. Examples: attorney, physician, statistician, architect, biologist, pharmacist, engineer, teacher, author, editor, composer, musician, artist.

Commissioned sales employees
An Employee of retail or service establishment is exempt from overtime if more than half of the employee’s earnings come from commissions and the employee averages at least one and one-half times the minimum wage for each hour worked.

Highly Compensated
This is for an employee earning at least $100,000.00 per year, again with a minimum salary of at least $455.00 per week, and performs one of the duties of an exempt executive, administrative, or professional employee.

Outside Sales
This is for your sales positions where the majority of time is off your company premises soliciting sales, customer orders, and contracts. This exemption does not have a minimum salary requirement. So you have the option of having a 100% commissioned outside sales force if you want, without endangering their exempt status.

If an employee meets the requirements under one of these exemptions, it is possible that the employee will be considered “exempt” under the FLSA from the overtime pay requirements.

However, the consequences of an employer not paying overtime when it is required can be catastrophic. Check with an attorney before you assume an employee is exempt.

If would like to hone in on the specific details of your case, please feel free to email me (sjr@shawnjroberts.com).

Posted by Shawn Roberts in Blogposts, Business Law

Oklahoma Employment Law: Are wages required to be paid when an employee is on jury duty?

Q:  Are wages required to be paid when an employee is on jury duty?

A:  If the employee is a “non-exempt” worker wages do not have to be paid. If the employee is an “exempt” worker the Fair Labor Standards Act (FLSA) at 29 C.F.R. Sec. 541.602 states the employer is to pay wages for the period of time the worker is absent from work due to jury duty. However, the employer can offset any amounts received by the employee as jury fees for a particular week against the salary due for the particular week. Furthermore, an employer having a policy stating that exempt employees who serve on juries for an extended period of time will not be paid for workweeks in which they perform no work is permissible.

Source: Oklahoma Department of Labor

Posted by Shawn Roberts in Blogposts, Business Law

Oklahoma Business Law: If my employees are “salaried”, do I need to pay them overtime?

Q: If my employees are “salaried”, do I need to pay them overtime?

A: The short answer is Yes, even salaried employees are entitled to overtime pay. Overtime must be paid at a rate of at least one and one-half times the employee’s regular rate of pay for each hour worked in a workweek in excess of the maximum allowable in a given type of employment. Generally, the regular rate includes all payments made by the employer to or on behalf of the employee (except for certain statutory exclusions). A salaried employee who is not “exempt” from the overtime requirement must be paid overtime.

Posted by Shawn Roberts in Blogposts, Business Law