Legal Solutions for Small Businesses

On June 2, 2009, Governor Ritter signed HB 1310 into law and if your company uses any independent contractors, this bill matters to you.

Under HB 1310, for EVERY misclassified independent contractor (i.e. an independent contractor that the state finds to be an employee), a business may be fined up to $5,000.00 for the first offense and up to $25,000.00 for subsequent offenses if the state finds the misclassification was willful. This may be in ADDITION to any withholding taxes, unemployment taxes, penalties, or interest that the state may currently apply. This means that if a business classifies five individuals as independent contractors and the state finds the five are employees, the business may own $25,000.00 in addition to everything else for the first instance of misclassification and up to $125,000.00 the second time.

For businesses trying to protect themselves, protection is properly classifying individuals as employees or independent contractors. However, as the state has determined that some individuals are employees to the dismay of attorneys, accountants, and the businesses involved, protection may also be found by a business ensuring that it had a good reason to classify the individuals as an independent contractor.

The key to protection is a good attorney. A good attorney can help a business ensure that the individual is properly classified as an employee or independent contractor. Even if the state determines that the person is an employee, if a business sought counsel from an attorney and can show that the attorney had a reasonable basis for advising the business that the person was an independent contractor. (However, if it appears that the business was *attorney shopping* this may not apply.)

To ensure that your business doesn’t face additional penalties under this new law, you should contact a business attorney to have all your independent contractors reviewed to ensure that they are truly independent contractors.

If you have any questions about the new law or the status of your independent contractors, please contact Elizabeth Lewis at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

I usually try not to bring my own personal opinion on issues to this blog.
However, I recently saw this picture that made me rethink this policy. For those that don’t click on the link, the picture is titled “The cost of piracy.” It isn’t talking about Somalia, but is rather talking about copyright piracy. In the same week that Air France stated it would give the family members of each victim of the recent crash $24,000.00, a court in Minnesota decided to punish a mother it found to be committing copyright infringement $80,000.00 per downloaded song. In other words – one human life = $24,000.00; a copy of a song = $80,000.00.

Now I am all for copyright policies. However, it is time to make sure that copyright is given its proper place in society. The Founding Fathers determined that copyright should be for a limited time. Maybe I don’t know what I am talking about, but considering the chances of me being alive when the copyright expires on Britney Spears’ new album are slim to none, I don’t think that our current policy is anything close to “a limited time”.

People deserve to profit from what they create. However, if copyright exists on a work 70 years AFTER the death of the author of the work, it stifles creativity. One only need to look at works being created on the internet to see that thousands of works have been or could be created which enhance our ideas about humanity, morality, politics, art, and thousands of other areas. Some are as simple as a child dancing to a song in the background (for which under our current law, copyright infringement was alleged) to something like a book adding zombies to Pride and Prejudice (a book which was no longer protected under copyright law).

Copyright policy must weigh the interest of the author and the interest of creativity of the rest of society. It must give authors a way to profit and society a way to incorporate the ideas of those around them during their lifetime.

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

With the increase of mobile devices with browsing capability, more sites are developing applications or sites for these devices. Facebook, Google, and LinkedIn have applications allowing individuals to use the sites on their iPhones and Blackberries. Twitter, CNN, and others have special pages just for mobile devices. When you use these applications and sites, they may have the same TOS as the normal site or may have their own.

So, why should a company care about whether they have information in their TOS about additional applications? The reason is because if your site uses additional applications, you may gain information that you wouldn’t through your normal website. For instance, if the phone they are using an application with had GPS capabilities, you may be able to access their location which may not be covered in your standard TOS. Therefore, you may want a separate section that covers applications that aren’t made by you.

How does this affect the average business owner? If you use third party applications or have applications that use anything other than a website login, you should probably have your terms of service reviewed by an attorney. If you don’t use third party applications and the only way people use your application is through a computer or laptop with a wired connection, you should still probably have your TOS reviewed but may or may not need to have it reviewed about third party apps or alternative uses. As always, I recommend that you find an attorney in your area that specialized in TOS.

For more information about terms of services, or if you need a terms of service written for your company, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

As noted in the second post in this series, recently there was community uproar about the change in the TOS that gave Facebook a greater license than the September 23, 2008 revision that is being used as of the time of this writing. Users wondered if Facebook owned their content or exactly how Facebook could use their content. This is a question that affects not just Facebook users, but users that post content anywhere online.

Whenever you post content on a site, the TOS may control who owns the content you post on the site. For instance, some sites say that you continue to own your content; others state that you own the content, but the site has a license to use it where the terms of the license vary; and a few even say that they own the content you post. Many sites state that the site can control the content to varying states.

So how do ownership clauses in TOSs affect the average user? It depends on what you are posting and what the terms are. If a photographer is posting pictures that he usually sells for thousands of dollars, it may matter a lot. If I am posting that I am having a great day, it may not matter at all.

For more information about terms of services, if you need a terms of service written for your company, or if you are a small business starting to use online sites to market, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com for your legal needs

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

The sixth section of Facebook’s TOS goes over what a user can do (“User Conduct”). Like most sites, Facebook wants to have some control over how you use their site. Among the things that want to ensure are that you don’t use Facebook for illegal purposes, to harass others, to distribute copyrighted material for which you don’t own the copyright, spam others, solicit information from people under 18. In addition to these things, there is a list available on Facebook’s TOS. Most of these are pretty self-explanatory and almost everyone should understand the reasoning behind the stuff that isn’t allowed.

One thing with Facebook’s TOS that may differ from other sites (most notably Twitter) is that you can only have one account. If you create two accounts on many sites like I do to keep business and family/friends separate, you can’t do this on Facebook under the Sept. 23, 2008 TOS. You also cannot register an account for a group or entity. Therefore, if you want to register an account for your company, you would need to contact Facebook for permission since this would be seen as an entity.

Another thing that businesses need to be careful of is that you are only suppose to use your account for personal, non-commercial use only. Although Facebook doesn’t appear to be enforcing this strictly now, as I know many individuals who are starting to use Facebook to help advertise their business, individuals and businesses should note that this is against the policy.

So what does this mean for you? If you have a business, you may want to limit the content that users can post on your site. For instance, you may want to limit people to one account or not allow vulgar language. If you are starting a website, it is a good idea to talk to an attorney about what content you should allow and what content you should keep off your site.

For more information about terms of services, or if you need a terms of service written for your company, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

The fourth section of the Facebook’s TOS deals with proprietary rights and licenses to it. When a company designs a site, most of the time they have a copyright for the site’s design, contents, and other parts of it.* This gives them an exclusive right to decide who can use this information. In Facebook’s case, the company, through its TOS, gives the user a limited license to use its copyright. Facebook says that you cannot modify, distribute or alter, among other things, anything on its site for any reason except that you can download or print a copy of information you have accessed for your own personal use as long as you keep any copyright information on the information intact. However, unless it is your own material, you may not redistribute or republish this information. Facebook reserves the right to change or the license at any point in time for any reason. Facebook also includes additional information about what you can and can’t do with the information which can be found in its TOS but is not discussed here due to space constraints.

The fifth section of Facebook’s TOS deals with trademarks. It basically states it owns a whole bunch of trademarks and that you can’t use them without written permission from the company. This is typical of many TOS.

What does this mean to the average user? Not a lot. You can make a copy of your profile, copy the pictures your aunt posted on there of you as a kid for personal use, or view you best friend’s wedding pictures (if you have access to them). You cannot sell this information, post it on your website (unless you get copies of the original photos or documents and permission from the owner of them first), or use Facebook’s software or trademarks for any other use not allowed in the TOS.

What does this mean if you have a business with a website? You should talk to an attorney about whether you should give the end user any rights, and if so, what rights you should give them. Every site is different and what works for Facebook may not work for you.

If you have questions about whether your use of information from Facebook’s site violates the TOS, need a terms of service for your website, or have questions about doing stuff online in general, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

* A company may also have other intellectual property rights for a site such as patents or trademarks. In this series, I will not be discussing the different types of IP rights or in what cases you should use them. For more information about specific intellectual property questions, please consult your attorney or call me.

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

The second and third sections of Facebook’s Terms of Service go over the eligibility for using the site, and the registration data you must provide and information about account security. In regards to eligibility, Facebook requires that you be at least 13 years old to use the site. If you are between 13 and 18, you must be enrolled in high school or college to use the site. Not allowing children under 13 is typical for many websites due to the online child protection act that was passed several years ago as it increased the requirements sites must follow if they cater to or allow children under 13 to sign up. If you are a business that caters to individuals under 18, it is essential that you contact an attorney to ensure that your business is protected.

In regards to registration data and account security section, Facebook requires that you provide accurate and complete information on the registration form and continue to keep it up to date. You are also responsible for all use of your account. This means that you have to accurately disclose you name, location, date of birth and other information. If you give your friend access to your account, you are responsible for anything she does with your account. These terms are also fairly typical on TOSs. It is important to contact an attorney if for any reason you feel that you cannot provide accurate info to an online site and the majority require this. If you are a business, if you require registration data, it is important to talk to an attorney to make sure you can ensure that the person using you site is who he or she says they are.

If you think you might have problems with one of these areas, if you need more information about terms of services, or if you need a terms of service written for your company, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

By reading this series and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

The opening paragraph of the terms of service is usually the introduction to the terms that you will abide by when using the site. In some cases, such as Facebook’s, they reserve the right to change, modify, add, or delete provisions at any time. In the case of Facebook, if you continue to use the site after the TOS is revised, you automatically agree to the revisions. Many sites have similar provisions, but not all of them. For those that do, it is usually your responsibility to monitor the site for changes, not Facebook’s, to alert you to change.

Some of you may recently have heard about the controversy involving Facebook’s change to its Terms of Service. This controversy involved a change to the copyright license (which will be discussed in a later post) which changed the license you were granting Facebook. Many times you cannot stop the company from changing its TOS, however this time, due to user outrage, the company reverted back the prior TOS. However, already the web is abuzz that Facebook will soon be changing its TOS to incorporation something similar to the controversial provisions that were deleted.

Many websites have a similar opening. Before using a site, be sure to read the TOS for each site to see what you are agreeing to. It may change whether you want to use the site or how you use the site. For more information about terms of services, or if you need a terms of service written for your company, please contact me, Elizabeth Lewis, your business attorney at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

When you use a website such as Facebook, MySpace, Google, or even something as small as my site – www.eclewis.com – you agree to the terms of service of that website by using the website. Terms of Service (TOS) are just that – the terms that you agree to abide by if you use the site. The TOS is much like the terms you agree to when you shop at a brick and mortar store. You may agree to not bring food or drink into the store, to pay for items by cash or check and not credit card, or to adhere to a specific return policy. It is very similar when you go to a website.

A TOS is a contract between you and the website. You agree to do certain things in return for the ability to use the site. For something like Facebook, you agree to their TOS and in return you can connect to friends, post photos, and chat among other things. For something like my site, you acknowledge that I am not providing legal advice and in return get information about subjects so that when you go see your attorney, or if you use me as your attorney, you come to see me, you can come in with a basic knowledge about what you need from your attorney.

To help you understand what a TOS agreement is, I am going to spend the next twenty days going over the provisions of Facebook’s TOS. I am going to be using the September 23, 2008 revision. After going through the TOS, I will spend the next few days reviewing some common problems that may arise with a TOS and go over several other company’s TOS contracts just to highlight some of the differences that can exist.

Throughout this series, please be aware that you should not take my word for what the TOS means. I am giving my interpretation only – it is up to you to read the actual document and discuss any questions about it with your attorney. By reading my series on TOSs, you agree to the TOS on my site and the additional terms – you agree that this is not legal advice. You agree to consult an attorney if you have any questions about terms of service contracts. You agree that this is for informational purposes only. You acknowledge that if you are in a state other than Colorado, you may have additional regulations you must comply with as I don’t know any other state’s law and further acknowledge that you will contact an attorney in your state for any legal questions. If you have any questions about these terms of service, please contact me before reading further.

By reading this series and using this website, you agree to my TOS and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.

As more and more businesses start using the web to advertise services, sell products, or just to have an online presence, businesses are entering into a new frontier. While many of the bigger sites such as CNN, Facebook, and Google, have full-fledged policies governing the use of their site, companies just entering the World Wide Web may not have the same policies developed.

For brick and mortar businesses, coming up with and telling customers about policies is usually pretty easy. An owner may post a sign behind the cash register than says “Please turn off your cell phones when at the register” to state the policy on that customers can’t use cell phones when at the register. An owner may have a sign on the door that states “No Checks” to state the policy is cash or credit card only. An owner may print the return policy on a receipt to make the customer aware the returns must be in new condition.

However, when creating a website, the average website owner may not know what types of policies he needs, where to state them, or how to state them. Although I strongly recommend you go to a business attorney such as myself that specializes in working with businesses with an online presence, it is always a good idea to know a little bit before you see your attorney. Therefore, I am doing this series about what online businesses need to know about online policies.

For the next forty or so days on this blog, I am going to look at terms of services, privacy policies, copyright policies, sale policies, and all things pertaining to websites. For the Terms of Service, I will be using Facebook’s TOS to explain the major sections that are in most TOSs and go over the ones that are somewhat unique to Facebook’s, The information I give does not make up for reading Facebook’s TOS as I cannot go into everything that is in their TOS and they can change it at any time. In addition, as I point out in later posts, each site has its own TOS and it may differ from Facebook’s.

If you have any general questions or comments throughout this series of posts, please feel free to post them. I will try to answer general questions; however, if you have a specific question about what your business needs, please contact me personally as I cannot give legal advice over the web and, if you are not located in Colorado, may have to refer you to an attorney in your area that can help you.

Finally, please be familiar with my Terms of Service, Privacy Policy, and Disclaimers.

By reading this series, this bog in general, and using this website, you agree to my Terms of Service and acknowledge that this is not legal advice but for informational purposes only. If you are a Colorado business with an online presence, please contact me, Elizabeth Lewis, your online business attorney for more information about how you need to structure your business, what you need to do to make sure your website complies with all the laws and protects you, and for all your business needs at 720-530-3405 or Elizabeth.Lewis@eclewis.com.