Business Law & Litigation

Our careers often become who we are, but unfortunately, if you are a member of a marginalized population, these dual identities may be at odds. If an employer is not accepting of who you are, it can become nearly impossible to complete required tasks. In worst case scenarios, discriminatory events or general workplace hostility may lead to a rushed resignation or immediate termination. No matter the circumstances, losing a job—particularly when you have not been presented with an opportunity to first find a new one—is a lot like getting the rug pulled out from under you. You are effectively left to face financial anxiety, a sense of purposelessness, and resentment toward your former work environment. Meanwhile, with zero consequences in place, your employer continues their malicious treatment towards people like you. While it may seem like the individuals involved “got away with it,” the right course of action may stop them in their tracks.

First, it is important to clarify what kinds of workplace discrimination are enforced by the federal Equal Employment Opportunity Commission (EEOC). It is possible that you are being subjected to maltreatment for a condition or characteristic that falls into a protected class. While workplace training on ageism is becoming more prevalent, many are unaware that individuals over 40 have special protections due to negative stereotypes that middle aged and elderly folks are not as spry as 20-somethings. While greater age is sometimes associated with more meaningful experience, it may not equate to greater or even equal pay to younger employees. In fact, ageism might just result in a layoff.

Pregnant women also fall into a class of protected workers. The EEOC defines pregnancy as a “temporary disability,” which means that light duty for related conditions (gestational diabetes, preeclampsia, etc.) must be honored. Further, when it comes to the birth of the child, the employer must abide by the requirements for maternity leave dictated in the Family and Medical Leave Act. Another lesser-known area of workplace hostility is genetic discrimination, which generally involves unfair treatment based on a biological condition. For example, Scott Vicknair, LLC represented a client who was facing harassment at work for being HIV positive. A full list of protected classes can be found on the EEOC website.

What Can You Do About it?

If you are being discriminated against, harassed, or terminated due to your membership in one of these categories, it is time to act. Ideally, you were able to obtain a copy of your employee file or any vital records before your employer had the opportunity to destroy them. If not, collect and organize any documents that are associated with your employment and subsequent discrimination. Apart from the vital need for documentation, pursuing a workplace-related lawsuit is a bit different from other kinds of litigation. Before you can officially file, you must have written approval from the EEOC or your local state-run employment board. If you fail to take this step, your case will be thrown out.

When it comes to the EEOC, your complaint can be filed online, through the mail, over the phone, or in person at a local office. Specifically, you will need to provide detailed accounts of all incidents, as well as the names of potential witnesses who can validate your claims. Your employer will be notified of your grievance within 10 days, and the EEOC will take an unspecified amount of time to investigate your employer’s response, as well as any additional information that arises. At the end of this period, your complaint will either be thrown out, or you will receive a right-to-sue letter.

While you can choose to move forward with filing a lawsuit on your own (very rarely will the EEOC or a state agency do so on your behalf), it is ideal to retain a lawyer if you have not done so already. Because the documentation for employment cases can become voluminous, trying to go it alone can quickly become an arduous task. Because it is likely that you are going up against an organization with their own counsel and not just another private citizen, you deserve to be equally matched. Your career may be who you are, but any abuse that happens at work does not have to define you. With both federal and state measures in place to prevent these exact types of incidents, your employer can only “get away with it” for so long.

So, you’ve got a fabulous idea to meet an unfilled need, create a new customer base, and turn a tidy profit. Now it’s time to take that idea and turn it into a reality, which means formally creating your company under a specific legal structure. One of the earliest and most important decisions you will make is choosing exactly what type of business entity is most appropriate to launch your project.

Choosing the Best Structure for Your Business

To put yourself on the path towards success and protect yourself in the event the business fails, it is crucial to pick the right kind of structure. This choice has significantly bigger repercussions than just the level of paperwork involved. The structure of your business has a direct impact on your:

• Available methods for raising capital
• Personal liability if your company is ever sued or held liable for damages
• Tax concerns
• Methods for exiting the business or passing it on to family members

While the type of entity you create has a drastic impact on future operations, it’s important to understand that there isn’t one single “best” option. Which specific type of structure you should pick hinges on a variety of factors unique to your business plan. Here’s what you need to know about the differences between each type of structure before making this critical decision:

• Sole Proprietorship – The simplest type of entity to set up provides the most personal control over your business, but also saddles you with the most potential liability. Your business and personal assets are one and the same with a proprietorship, meaning a lawsuit can devastate you financially. It may also be more difficult to secure startup funds from lending institutions, and you can’t sell stock to raise capital. A sole proprietorship can be worthwhile if your business has little risk and a low chance of experiencing legal hurdles, however. In some cases, there may also be benefits to your taxes since you can take a variety of business deductions at tax time.
• Partnership – This is a relatively simple way for two or more people to form a business together, but it is critical to ensure you are doing business with a reliable partner, and to have an attorney thoroughly go over the partnership agreement. Different methods of setting up a partnership exist that should be discussed with legal counsel. For instance, one partner can have limited liability and pay self-employment taxes while the other has unlimited liability but receives the profits, or it instead can be crafted so all partners are shielded from liability and from the actions of the other partners.
• Corporation – Also known as a C corporation, this type of entity shields you from personal liability and offers multiple methods for raising funds, including offering stock. It is also more expensive to form, requires extensive record-keeping, and is taxed differently than sole proprietorships or partnerships.
• S Corporation – Similar to a C corporation, this type of business entity protects you from liability but uses different tax rules. Profits and certain losses can be taxed personally rather than using the corporate tax rate, and you can also avoid issues of double-taxation when profits are taxed on the business and then a second time on your personal taxes. There are more stringent rules for forming an S corporation, however, and it won’t be feasible for every type of business.
•  LLC (Limited Liability Company) – An LLC provides an option partway between a partnership and a corporation. This entity protects your personal assets from liability so you don’t have any danger of losing your home or savings if the business is sued. Still, you do need to consider how self-employment tax with an LLC may affect you.

Talk to an Experienced Business Startup Lawyer

Even the greatest business idea can be easily scuttled by legal problems. Be sure to consult an attorney early in the process to protect your entity and get help making the right moves financially and legally. Set up a consultation to find out how we can assist in choosing a structure, help with any permits and licensing needed for your specific operations, and represent your business if it faces legal challenges.

When customers see your logo or company name, they associate that unique branding with specific attributes such as the quality of a product or the type of service you offer. Your brand has actual value and deserves to be protected to the fullest extent possible under the law. Trademarking different facets of your brand is a critical method of stopping others from using your name or confusing potential customers with similar phrases and imagery.

Why Trademarks Are Important to Safeguarding Your Brand

The point of branding is to create immediately identifiable iconography or slogans that build up a base of repeat customers to help your business thrive. Essentially, your brand consists of distinct features that consumers immediately link with your business and set it apart from other companies. Going through the trouble to legally trademark a brand helps to prevent imitators and competitors from harming what you’ve built.

However, you have to zealously defend your trademark to keep it, which is why you should discuss your brand with an experienced business startup lawyer before making any decisions. A strongly identifiable brand is much easier to defend and makes it more likely a court will side with you if you need to bring legal action against someone for misusing that branding.

Not everything can be trademarked, of course, and there are strict limits on what specific words or images can be protected. You can typically apply to trademark elements of your business like your:

• Brand name
• Logo
• Packaging
• Tagline or slogan

Creating a Strong Trademark for Your Unique Brand

To guard your brand, you need to apply to register a specific trademark with the U.S. Patent and Trademark Office. A trademark can be registered either at the state level for Louisiana, or instead registered federally to gain international protections for your brand, although the latter option has stricter rules.

In either case, it’s important to perform a thorough search ahead of time to ensure the particular logo or name you want to trademark isn’t already in use by another business. Whatever portion of your brand that you want to protect as your own must also be “strong” enough to warrant trademarking.

For instance, certain extremely common terms and phrases aren’t eligible to be trademarked under most circumstances. Generic descriptive terms are often rejected outright, although they may be accepted in cases where the term is outside the norm. There is a notable exception in cases where the word is arbitrary and not typically used in your specific industry.

For instance, “spaghetti” probably can’t be trademarked for a restaurant or pasta producer, but it could potentially be part of a trademark for a brand in a completely different industry. One of the most famous examples is “apple,” which obviously has been trademarked for a massive global tech company, but would likely be rejected for a fruit business.

In general, the tagline, logo, slogan, etc., needs to be unique and connect the end customer with a key concept or element of your brand somehow. You have the best shot at getting a trademark approved if the word or image is fanciful and unique, or strongly suggests the specific quality of your service.

With your attorney’s help, the application also needs to explicitly list out the goods or services associated with the name or logo, and it must be strictly limited to your specific business type and the sorts of services you offer. If you apply for too broad a trademark covering a wide range of products you don’t actually provide, your application may be turned down, and you will need to start over.

Protect Your Brand With the Help of an Experienced Business Attorney

What facets of your brand to trademark and how you should proceed depends on your specific, unique situation. Your business is different than any other and will benefit from different legal advice than other companies. If you’re ready to take the next step and start protecting the brand you’ve built, get in touch with the Scott Vicknair law firm to schedule a consultation.

One of the earliest and most crucial decisions you make for your business is selecting a corporate structure. While filing to incorporate may seem manageable on your own, the process includes a number of perils that may scuttle your business plan without proper legal advice. Don’t make a mistake in your company’s very first decision by incorporating without an experienced business startup attorney in your corner to help avoid common pitfalls.

How Incorporation Works in Louisiana

Setting up a corporation requires providing the proper paperwork to the Corporate Division of the Louisiana Secretary of State’s office. While all businesses have to provide certain similar details, what specifically goes in your filing will vary depending on your industry and the makeup of your corporate leadership team.

Choosing to incorporate, instead of establishing a partnership or limited liability company, is more expensive and comes with significantly more rules and regulations to handle. So why go this route at all? The major benefit of choosing a C corporation is to shield your personal assets from liability if the business is sued. Incorporating also provides a governing structure to help the business establish itself and offers credibility to your brand name.

Besides limiting the personal liability of corporate officers, the board of directors, and shareholders, after incorporation your entity can also:

• Acquire business licenses and permits
• Apply for a tax ID
• Offer stock
• Sign contracts

How an Attorney Helps With Filing Articles of Incorporation

Choosing a corporate structure is necessary to conduct business in the state or abroad, but the incorporation process may be more complex than expected. There are highly specific requirements under Louisiana’s Revised Statutes 12:1-202 that must be followed when setting up a corporation.

The good news is that a qualified and knowledgeable attorney will be able to guide you through each step. That helps prevent delays in processing by ensuring all the required info is included the first time. Failing to properly handle your incorporation can result in major legal and financial headaches down the road. A business startup attorney can specifically assist with incorporation issues like:

• Choosing a unique business name as required by law. If you have a fabulous name picked out but are concerned someone else may use it before you can complete the incorporation process, it is possible to reserve the name in advance.
• Creating a certain number of shares for the corporation to be sold.
• Establishing the required corporate officer positions. When incorporating in Louisiana you must specifically establish the President, Secretary, and Treasurer offices for your business. Under state law, one person can hold up to two of those titles, however.
• Providing the necessary information from the incorporator(s).
• Selecting the number of directors your business will have, as well as providing specific information on each director in the filing.
• Setting down optional provisions directly in the incorporation articles, such as distinguishing different share classes.

Exactly how you file to incorporate can also vary from parish to parish, as some areas only allow online filing. In other cases, you may be able to mail your filing or take all the paperwork and payments in person.

It’s important to keep in mind that the amount of record keeping is significantly more extensive with a corporation than with a sole proprietorship or LLC. If you are going to run a C corporation, you absolutely need an attorney to protect your business from potential legal threats and help ensure you are following both Louisiana and federal law. Corporations are also taxed differently from other types of business structures, which you should discuss with your attorney ahead of time to avoid problems with the IRS.

Are You Planning on Incorporating a Business in New Orleans?

The Scott Vicknair law firm wants to hear from you and find out how our team can provide your business with the know-how it needs to thrive. From incorporating to aggressively defending your rights in court, we can help with every aspect of your business’s legal needs. Contact us through our online form here or call to schedule an appointment at (504) 500-1111.