He Said v. She Said

By: Stacey L. Romberg, Attorney at Law

Sally recently left her 9-5 corporate job, and enthusiastically began a new event planning business. Sally’s friend, Larry, wanted to be one of her first clients. Larry wanted to hire Sally’s business to plan his wife Judy’s 50th birthday party. Sally found an event planning contract on the internet, and tweaked some of the language. The contract set forth that Judy’s birthday party would be held at the Gigantic Golf Club, with cocktails and dinner for 100 guests. Larry would pay Sally’s business $5,000 for event planning services, to be paid no later than ten days after the party concluded. Sally is thrilled to work with her friend, and to plan her first big event.

Larry and Sally signed the contract, and Sally then contacted Gigantic Golf Club to reserve the space. Gigantic Golf Club informed Sally that it required an advance deposit of $8,000.00 to lock in the reservation. Sally contacted Larry by email: “Hi Larry. I’ve reached out to Gigantic Golf Club, and they need an $8,000.00 deposit. Can you please send me a check for that amount, made out to Gigantic Golf Club? Then I can forward it over to them to secure the space. Thanks!” Larry responded: “Hi Sally. Our contract says I am supposed to pay for everything ten days after the party has concluded. I’d appreciate it if you could please pay the deposit, and then put it on my bill. Thanks.”

Sally is shocked when she receives Larry’s email. She reviewed the contract. The contract stated:  “Larry is responsible for all costs related to the Event.” It also stated: “Upon conclusion of the Event, Sally will submit an invoice to Larry which will be due no later than ten days after the date of the Event.” The contract is silent as to whether Larry’s responsibility for the event’s costs meant that the costs will be paid up front by Larry, or whether Sally was required to initially incur the costs and then invoice Larry for those amounts. Sally doesn’t recall that they ever discussed this issue. Since Sally knew Larry personally, Sally wasn’t worried about getting paid and didn’t pay a lot of attention to the specifics of the contract.

Sally tentatively responded to Larry’s email: “Hi Larry. I’m so sorry for the confusion. Our contract doesn’t seem to address the issue of whether the costs will be paid up front. I’m afraid I cannot afford to incur an $8,000 fee, since I just started my business. Could you please pay it? Thank you for understanding!” Larry responded to this email within five minutes: “You have got to be kidding me! Don’t you remember that we talked about this? I told you that my son Charlie’s private school tuition is due shortly, and I’m tapped out. I won’t be able to make any payments until after the party. You better pay that deposit right away, because it’s too late at this point for me to fire you and hire a new event planner. If you don’t do right by me here, I’m going to go on Yelp and write the most scathing review possible!”

These types of situations, unfortunately, occur much more often than most business owners realize. A well written contract is the key to avoiding these types of “he said versus she said” disputes. Business owners need to routinely use thorough, well-drafted contracts that are prepared by an attorney. Here are seven tips for working effectively with your business attorney to develop a great contract:

#1: Explain any pertinent background information regarding how your industry works, and also set forth your goals for the agreement.

#2: Communicate your main concerns to your attorney about the proposed transaction (getting paid, receiving poor work quality, handling disputes, etc.).

#3: Provide a written outline to your attorney identifying the parties and principal terms of the deal.

#4: Think through how you’d like the contract negotiation process to proceed. Do you want to work through counsel exclusively? Or do the parties want to negotiate directly, and then go back to their attorneys with questions and revisions?

#5: Discuss the timing of the work.

#6: Understand the attorneys’ fees, and how you will be billed for the work performed.

#7: Be mindful of attorneys’ fees while negotiating contract terms. Some issues may be so minor that it’s not worth the attorneys’ fees to argue about it.

If there is a disagreement about the terms of a contract, rather than continuing an email or telephone “war” with the other party, here are some recommended first steps:

#1: Review the Contract Requirements Related to the Issue in Controversy: What does the contract say about the issue being disputed?  Are you sure you are right and the other party is wrong?

#2: Review the Contract Requirements Related to Dispute Resolution:  The contract may tell you how you have to proceed in resolving the dispute. Mediation? Arbitration? Litigation?

#3: Make an Initial Attempt to Calculate your Damages: Litigation is very expensive. In order to decide whether it’s worth it to pursue litigation, you need to know the monetary value of your loss.

#4: Call Your Attorney: Let your lawyer know your preliminary thoughts based on your initial legwork, and then discuss the situation and your options.

Stacey L. Romberg, Attorney at Law, focuses her practice on business law, estate planning and probate. For more information, please visit the firm’s website at www.staceyromberg.com.

Attend Stacey Romberg’s Biz Fair class “Business Law Essentials” at the 22nd annual Biz Fair on Saturday, September 29 at Renton Technical College, RSVP today: bizfair2018.eventbrite.com

Find the Missing Link in Your Social Media Strategy

By: Robbin Block, Blockbeta Marketing

An effective social media strategy depends on finding the right sites to reach your audience. Beyond the major social networks, which attract a large, generalized audience, there are plenty of niche sites which will help you build exposure and website traffic.

Benefits of Niche Sites

  • More targeted: Relevance trumps size
  • Buyers, not browsers: Leads to more qualified, convertible traffic
  • Big fish, smaller pond: Less clutter and noise, more chance to get noticed
  • More meaningful sharing and engagement

Be Where They Are

The point of using social media for business is to get in front of potential customers, which means you want to be where they are hanging out. Whether you choose major or niche sites, define your audience using the following and then match it to the sites that meet your criteria:

Geography: Neighborhood, city, regional, national, international.

Interest: Consider the site’s focus: i.e., design, games, business, etc. Drill down as much as possible to match your target audience.

Demographic: Easily identifiable stuff about participants, like age, income, education. For data about social sites, start your research at PEWInternet.org. For small sites, you may have to find out from the site itself. Look for advertising information in the footer (just for info, not to advertise).

Activity: What people do at the site, i.e., simply commenting vs. watching videos. Think about the kind of content that fits with what your business is about, i.e., if you have a visual business, Instagram and Pinterest may be a good fit.

Affinity: What participants have in common, i.e., people planning a wedding or those that like to invent things with Legos.

Many people participate in both major and niche sites, so select a balance of each. If you choose a major, join subgroups that match your audience, ie., a food related business in Seattle could join the Seattle Foodies group on Facebook.

Where to Find Niche Sites

The more sites seek to create interactivity and engagement, the more they’re likely to offer social opportunities to participate in. Start with the associations and groups your audience belongs to (ask them), then look for social opportunities in the following places:

  • Search Google like a customer looking for a product like yours and see what social sites come up.
  • Industry Associations
  • Online Publications
  • Social site directories
  • Check competitors’ sites for their social badges
  • Look at your own referral traffic data
  • Vendors sometimes have their own social networks too
  • Search Google for “niche social sites” + your area of interest
  • Go local (websites, blogs, publications, etc. in your geographic area)

Don’t Spread Yourself Too Thin

Once you’ve narrowed down your list of niche sites, finding the best match you can, prioritize them by highest amount of traffic. Then, start using them and track the referral traffic to your site, using something like Google Analytics to see if all that effort is paying off.

Learn more about social media marketing.

Robbin is presenting “Slay the Social Media Dragon” at this year’s Bizfair.

Your Fortune Is In The Follow Up

By: Debbie Page

We’ve all heard the phrase, “Your fortune is in the follow up,” which is then immediately followed by,

“Yeah but I don’t want to be sales-y.” Brace yourself friends, I need to tell you something straight and it might sting.

Get over yourself.

One of my great business colleagues says, “Sales is an act of love,” and if you are passionate about what you do and know that it provides great value to your ideal client then it is your obligation to follow up.

Research shows that 80% of sales are made after the 5th follow up. How many times do you follow up? Once? Twice? You are losing money if you do not have a documented and repeatable system to follow up 5 times or more, with people who have expressed interest in your products/services.

You also need to have more in your follow up than, “Are you ready to buy?” This is where the documented follow up system fits in.

Here are 5 steps to include in your sales follow up process:

  1. It’s totally appropriate to make your first follow up about checking in to see if the prospect has any questions or is ready to move ahead.
  2. The second time you follow up reference what they mention they need to attend to before they start working with you.
  3. The third time share something they might find valuable as it relates to their business, an article a blog post (written by you is fine or by someone else)  or a tool that you think they or their clients might find useful.
  4. The fourth time, send them a handwritten note with a $5 coffee card inside and a note that says, “I know you have been working hard, take a break today – coffee is on me.
  5. The fifth time call them. Yes, I said call them. No need to schedule an appointment. Just pick up the phone and give them a ring. “Hi Jack, Liz Lemon here. I was just thinking of you and ratings season and wanted to wish you the best. Let me know if there is anything I can do to help you get that Emmy this year.”

Any of this seem sales-y? Not at all.

Keeping yourself top of mind will keep you in line when your ideal customer is ready to invest with you.

Create a documented sales follow up system and plan that you and everyone on your team follows EVERY time a prospect enters into conversation with you. Having a documented plan that is executed can increase your revenue by 50% or more.

What would an additional 50% in revenue do for you and your business? 

Learn more marketing tips from Debbie at Biz Fair on September 30.

3 Ways the Public Library Helps Entrepreneurs

By: The Seattle Public Library

Whether you are exploring a new business idea or are trying to grow an existing small business, your public library can be an important ally in helping you create a viable plan. The Seattle Public Library (SPL), King County Library System (KCLS), and Pierce County Library System (PCLS) offer access to an extensive selection of free resources for entrepreneurs at any stage.

Here are three great ways you can take advantage of your public library:

1: Conduct Market and Industry Research

Business databases accessible through your library’s website can help you locate valuable research and data that is not available on the open web. With your library card, you can access these tools 24/7 without having to visit the library. You’ll find:

Information about other companies:
Enhanced business directories will help you identify competitors, prospects, suppliers or partners, and they are searchable by type of business and geography. These directories also include detailed information for private companies that can be difficult to find elsewhere, like estimates on revenue and number of employees. Look for: ReferenceUSA (SPL, KCLS) and Mergent Intellect (PCLS, KCLS)

Information about consumers:
Demographics databases are useful for choosing a business location, locating target customers, and sizing your market. These tools go beyond basic census data and dive deeper into consumer spending and psychographics. Look for: DemographicsNow (SPL, PCLS) and Social Explorer (KCLS)

Information about your industry:
Industry reports available through business databases will include your industry’s trends, opportunities, challenges, regional highlights, financial benchmarks, and more. Look for: ABI/Inform Trade and Industry (SPL, KCLS) and Business Source Complete (PCLS)

2: Build Your Technology and Business Skills

Web classes:
Brush up on business and tech skills with online courses you can take at home, at any time, and on your own schedule. Classes range from beginner to advanced level, and include a wide range of courses like social media marketing and Microsoft Access. Look for: lynda.com (SPL, PCLS, KCLS), Microsoft Imagine Academy (all libraries)

Books & eBooks:
Library collections include up-to-date guides on starting a business, writing a business plan, marketing, business tech skills, and more – available in print or as eBooks. Look for: Safari Tech Books (SPL) for its vast collection of up-to-date tech and business eBooks that are always available.

Library events:
Attend free library workshops and events to get expert advice and ask your own questions on topics like marketing, operations, funding, opening a food business, and more. Meet representatives of local agencies at library-hosted open houses. Check your library’s calendar to find out what’s happening soon!

3: Get Research Help

Locating the best business resources for your needs and then learning how to use them can be time consuming and frustrating. Librarians are available to make this process a little less painful! All libraries can help in person, over the phone, and by email; Seattle Public Library also offers one-on-one business research appointments.

Find The Seattle Public Library and Pierce County Library System at the Biz Fair to learn more!

Tips for Success in Choosing a Business Structure

By: Stacey Romberg, Attorney at Law. www.staceyromberg.com

Choosing a business structure can be a daunting task! I recommend that entrepreneurs, in making their selection, analyze the following four factors:

Evaluate Your Risk

Does your business idea involve some risk of liability? If so, in what sense? And how much risk? For example, do you want to lead rock climbing excursions? Or to provide a more common example, suppose you want to operate a cross training gym? The risks involved in these types of businesses are clear – the participants may be injured. On another note, suppose you are a wedding photographer? You could be on the hook if the photos don’t turn out well and the bride and groom become angry and litigious. Generally speaking, if your business involves a great deal of potential risk, a business entity such as a corporation or a limited liability company (LLC) may prove helpful in shielding you from individual liability.

Evaluate Your Business Relationships

Breaking up is hard to do! Most couples, when they get married, incorrectly assume that their relationship will last forever so no prenuptial agreement is necessary. Similarly, many business owners assume they will always be able to work together well so there’s no need to spend money on legal fees to develop a corporate Shareholders Agreement or LLC Operating Agreement. These agreements govern the relationship between business owners, and can spell out what will happen if business owners are deadlocked or how a business owner may exit out of the business. A breakup of a business relationship can resemble the dissolution of a marriage, with all the accompanying drama, stress, and expense. If you are going into business with another person, enter into that relationship with caution and a solid legal agreement in place.

Confer with Your Certified Public Accountant (CPA)

Be sure, as you consider what business structure to form, to consult with your CPA about the tax implications of the various business structures. It’s important that you understand all the financial facts regarding your potential tax liabilities before making a decision.

Confer with Your Business Attorney

A business attorney should form any business entity other than a sole proprietorship. If your business is not formed properly, you may be disappointed to discover that, in the event of litigation, the business entity fails to shield you from personal liability because the structural documents are insufficient, inappropriate, or not being consistently followed.

Stacey L. Romberg, Attorney at Law. www.staceyromberg.com This post is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting with an attorney.

Small Business Bookkeeping

By: Jim McClaflin, Director at Washington State Society of Enrolled Agents (WSSEA)

What we see in the tax business are small businesses that are running a profitable business but their bookkeeping processes don’t hold up under an IRS audit. When you have difficulties proving your income and expenses to the IRS you then have to in essence recreate the business’ books properly. This is expensive for the owner(s) as this type of bookkeeping comes at a premium cost. Audits are normally done years after the tax return is filed and it is difficult to remember all the details of your business transactions, which could result in unallowed deductions or additions to business income.

Here are a couple of common stumbling areas for small business bookkeeping that we frequently see:

  • Combining personal and business accounts. There is nothing illegal about doing this, but it greatly complicates an audit and brings your personal accounts into the audit process. If you sell a personal car on Craigslist and that income goes into your personal account which is included in the audit, then you have to prove that the sale of your personal car was not business income. In an audit the IRS will go through every single deposit and you have to show that it was not business income. Personal expenses paid out of your business account can be identified as an owner’s draw, however an excessive amount of personal expenses will cause the auditor to question if some of the business expenses are in fact personal in nature and not deductible. For LLCs and Corporations this starts to breakdown the legal distinction between the person and the company.
  • Not keeping invoices or receipts. Several businesses use their credit card statements that show where the purchase was made as their method of proof of a business expense. This is not a fool proof plan. In a Washington State audit if you have made a purchase over the internet the credit card statement will not show if you paid sales tax. In an audit if you can’t prove via an invoice that you paid the sales tax, then you will be required to pay use tax (the same rate as sales tax). Since I run a tax business a purchase from Staples would logically be a business expense and accepted in an audit, however a purchase from Lowes would be questioned and I’d likely need to show an receipt proving that what I purchased was needed for the business. The best plan it to scan in all your receipts and write any notes about the purchase on the receipt or invoice.
  • Not using a professional bookkeeper.  Bookkeeping seems pretty easy to do, until it isn’t. A professional bookkeeper is a cost effective method of keeping your business records straight. At the very least have a professional set up your books and show you how to make the entries correctly. Going back to fix the books is incredibly frustrating and time consuming for a business owner. A professional will also bring other accounting/tax knowledge to your team besides just the books themselves.

Learn more at: http://wssea.org

Buyer Beware: 6 Things to Ask the Seller for When Buying a Business

By: Rose Gundersen, Small Business Liaison with WA State Department of Labor & Industries

Did you know when you buy an existing business — or a part of one — you assume the workers’ compensation claim liabilities of that business? It’s true. The new business owner inherits the claim responsibilities and their impact on premium rates.

How to protect yourself
To uncover potential hidden future expenses and risks, ask the seller to disclose the following 6 items before you buy a business. (This information isn’t usually included in financial documents and L&I can only disclose it to the current business owner, not to a potential buyer.)

1. Injury and Cost Profile: This 1-page report covers a 5-year history of workers’ compensation and injury data for the business, including:

  • Premiums which may include savings from a Claim-Free Discount or higher rates due to time-loss or disability claims.
  • Total number of claims per year.
  • Experience factor (over 1.0 means higher rates).
  • Claims-Free Discount history.
  • Top 5 types of injuries specific to the industry and the injury types incurred by the business.

2. Injury Report: This report shows the claim expenses incurred by the business without revealing identifiable information such as the injured worker’s name or the claim number. Claim expense categories include medical, time-loss, partial permanent disability, pension, and more.

3. Estimated Future Rate Projection: This predicts the business’s future experience factor and premium expenses, assuming that the business data remains unchanged.

4. Safety and Health Consultation Report: The business’s workplace safety culture is an intangible asset or risk that you’ll inherit as a buyer. Scheduling a no-cost, risk-free L&I safety consultation will help you assess this culture and evaluate whether it is an asset or a risk. The consultation includes a walk-through visit to the worksite to look for workplace hazards and an evaluation of the Accident Prevention Program. The business can’t be fined as a result of the consultation. Correcting serious hazards, however, is required with no financial penalties.

5. Occupational Safety and Health Act (OSHA) Log Records: Businesses with 11 or more employees may be required to record workplace injuries and illnesses on an OSHA 300 log (OSHA.gov).Reviewing these logs will inform you of hazards and the effectiveness of workplace health and safety programs. (The business must keep these reports on site for 5 years.)

6. Risk Management Consultation: This free consultation provides a review of the business’s injury history and a step-by-step plan with best practices to help control costs. If you plan to proceed with the purchase after learning the injury history and safety culture, a risk management consultation is an excellent mitigation step.

Partial business purchases
Even if you purchase only a part of a business, you can inherit the seller’s workers’ compensation liabilities. For example, if you bought a customer list, inventory or other partial assets and employees working in those reported risk classifications were injured on the job, you could potentially assume the claim liability.

Example of potential impact
To better understand workers’ compensation rates, remember that:

  1. The risk class reflects the overall loss history of each industry.
  2. The experience factor reflects the loss history of the business.
  3. A claim affects a business’s experience factor for 3 years, but your rate won’t be affected for 2-3 years after the injury date.
  4. An experience factor above 1.0 means more claim liability than average for that industry. An experience factor below 1.0 means less claim liability than average for that industry.

Assuming 10 full-time employees working 480 hours per quarter, here is an example of how various experience factors could affect the annual premium you’ll pay.

Table showing how a business's experience factor affects workers' compensation premium rates. Row 1: Telephone clerks with a risk class base rate of $.1569/hour will cost $3,012 at a 1.0 experience factor, $2,711 at a 0.9 experience factor, and $6,025 at a 2.0 experience factor. Row 2: Roofing work with a risk class base rate of $7.6753/hour will cost $147,366 at a 1.0 experience factor, $132,629 at a 0.9 experience factor, and $294,732 at a 2.0 experience factor.

More resources
If you’d like to learn more about ways to protect yourself and manage premium costs for your business, visit www.Lni.wa.gov/ControlMyCosts or our Help for Small Business web page.