The current economy has created a stressful situation for employees worried about their job security and for the unemployed who are discouraged in their job searches. A promising option is to become self-employed as a small business owner. Having your own business can be flexible and personally rewarding, but the small business owner should also understand the accompanying responsibilities in terms of compliance with the local governing body. Direct sales, for example, is an area where small business owners often misunderstand their role as a business separate and distinct from the company whose products they are selling.
Independent distributors, sometimes called independent consultants, are not actual employees of the companies whose wares they sell. The agreement the distributors enter into is not an employment contract. Rather, the agreement allows the new business owner to (1) order wholesale goods from the company; (2) sell the products at retail pricing predetermined by the company; and (3) use the company’s promotional materials. In order to comply with local ordinances, the direct sales business owner must still register with the appropriate city or county as an independent business. In California, most cities or counties also require a business tax or license for business activities performed within the corresponding city/county limits. This means that the business owner must also register with any out of city or county locations where business activity will take place. The failure to obtain the proper business licenses and pay the required fees can result in monetary penalties assessed by the city and/or county.
Most cities provide their specific requirements and applications online for the prospective business owner’s convenience. In preparing a business license application, it is very important for the seller to consider the following:
• Unless specifically authorized to do so in the agreement executed with the wholesale company, the independent distributor cannot use the company’s name in its registered business name. The business license application will ask for the name of the new business. As a standard business practice, the terms of the independent distributor agreement, in most cases, do not permit the seller to use the company’s name in the title of the business.
• The independent distributor must not engage in business activities until receipt of the business license, unless the county or city authorizes operations pending license approval.
This blog entry was written and researched in large part by attorney Francesca Svarcas and has been reprinted here with her permission. If you have questions or concerns regarding making your independent business compliant with the local ordinances, then contact Ronnie Gipson at (415) 655-6820 or Gipson@higagipsonllp.com.
Thursday, December 2, 2010
Friday, November 19, 2010
Federal Government Takes Action Against Employer Restrictions on Employee Speech
Constitutional case law on the right to free speech makes a distinction in the restrictions imposed based on the situs of the speech. At the simplest level, if the speech occurs in a public forum, then restrictions must pass tougher scrutiny to comply with the First Amendment to the Constitution's free speech clause. If the speech occurs in a private forum, then the restrictions imposed are subjected to less stringent standards for compliance with the free speech clause.
With the rise of social media websites, employers promulgated very broad restrictions governing their employees' use of these sites when the employees' posts pertain to the workplace. Referencing the traditional distinction for scrutinizing free speech issues, these employer restrictions warranted less stringent standards because the speech is regulated in private forums- the employer's workplace.
The Federal Government has now stepped in to challenge the employer restrictions using a law that governs labor practices as opposed to regulating speech. I discuss the facts of the case because they are instructive as a potential road map for future challenges by employee advocates.
The employer, an emergency medical services provider, demanded that one of its employees submit a written incident report in connection with an ongoing investigation that had the potential to lead to disciplinary action for the employee. The employee requested that a union representative assist her with the preparation and submission of the incident report. The employer denied that request. The employee submitted the report and received disciplinary action as a result. The employee subsequently made entries on her Facebook account about the working conditions to include the incident and the people involved. When the company became aware of the postings, the employee was terminated for violating the company's Internet posting policy.
The question that comes to mind from this scenario is, "Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website?" The short answer is Yes. The National Labor Relations Act ("NLRA") protects the rights of employees to communicate with each other in order to better the working conditions of their collective employment. Note that although the case referenced above includes a union, there is no need for the worker(s) to be represented by a union for the worker to receive the protection of the NLRA. Whereas in the past, the NLRA was used to protect the workers' rights to discuss the workplace conditions via public awareness campaigns using leaflets, by contacting the media, through bulletin board postings, or through conversations among workers in the workplace; the NLRA now extends to postings made by the employee on social media websites.
From a legal standpoint, this case is very interesting because the policy issue being decided effects an employee's free speech. However, the mechanism used to protect the free speech is not the 1st Amendment but the NLRA which governs fair labor practices. Some view this approach as an end-run around the public-private distinctions of the free speech analysis. The legal community, specifically the defense bar is watching the above-referenced case to see how far the National Labor Relations Board goes in applying the NLRA. Stay tuned to the Higa & Gipson, LLP blog for developments.
In the interim, if you are not sure whether your company's Internet policy complies with the law, then contact Ronnie Gipson at gipson@higagipsonllp.com or (415) 655-6820.
With the rise of social media websites, employers promulgated very broad restrictions governing their employees' use of these sites when the employees' posts pertain to the workplace. Referencing the traditional distinction for scrutinizing free speech issues, these employer restrictions warranted less stringent standards because the speech is regulated in private forums- the employer's workplace.
The Federal Government has now stepped in to challenge the employer restrictions using a law that governs labor practices as opposed to regulating speech. I discuss the facts of the case because they are instructive as a potential road map for future challenges by employee advocates.
The employer, an emergency medical services provider, demanded that one of its employees submit a written incident report in connection with an ongoing investigation that had the potential to lead to disciplinary action for the employee. The employee requested that a union representative assist her with the preparation and submission of the incident report. The employer denied that request. The employee submitted the report and received disciplinary action as a result. The employee subsequently made entries on her Facebook account about the working conditions to include the incident and the people involved. When the company became aware of the postings, the employee was terminated for violating the company's Internet posting policy.
The question that comes to mind from this scenario is, "Does the employer break the law by terminating an employee for submitting posts about the workplace to a social media website?" The short answer is Yes. The National Labor Relations Act ("NLRA") protects the rights of employees to communicate with each other in order to better the working conditions of their collective employment. Note that although the case referenced above includes a union, there is no need for the worker(s) to be represented by a union for the worker to receive the protection of the NLRA. Whereas in the past, the NLRA was used to protect the workers' rights to discuss the workplace conditions via public awareness campaigns using leaflets, by contacting the media, through bulletin board postings, or through conversations among workers in the workplace; the NLRA now extends to postings made by the employee on social media websites.
From a legal standpoint, this case is very interesting because the policy issue being decided effects an employee's free speech. However, the mechanism used to protect the free speech is not the 1st Amendment but the NLRA which governs fair labor practices. Some view this approach as an end-run around the public-private distinctions of the free speech analysis. The legal community, specifically the defense bar is watching the above-referenced case to see how far the National Labor Relations Board goes in applying the NLRA. Stay tuned to the Higa & Gipson, LLP blog for developments.
In the interim, if you are not sure whether your company's Internet policy complies with the law, then contact Ronnie Gipson at gipson@higagipsonllp.com or (415) 655-6820.
Tuesday, October 26, 2010
Recent Changes in the National Airspace System
Runway Crossing Instructions from Ground Control
Effective June 30, 2010, the Federal Aviation Administration instituted a change in the format for runway crossing clearances issued by air traffic controllers (ATC), specifically ground control. Previously, if a pilot was authorized to taxi to a runway that required crossing another runway, then ATC issued a clearance directly to the final runway destination on the airport. For example, a clearance received such as "Cessna 23841 you are cleared to runway 31 left via Zulu" meant that the pilot was directed to taxi to runway 31L via taxiway Zulu and that the pilot could cross all other runways en route to the end of runway 31L.
With the new change instituted, that type of taxi clearance is no longer being issued by ATC. The reason for the change is simple. The FAA wants to eliminate runway incursions. Now, when a taxi clearance is given that requires crossing active, inactive, or closed runways, it is done so in a piecemeal fashion. Using the example above, if the aircraft must cross runway 31R to get to runway 31L, then the taxi clearance might sound like this, "Cessna 23841 cleared to taxi to runway 31R via Zulu." Upon reaching 31R, the aircraft would then receive a second clearance from ground control authorizing the pilot to taxi across runway 31R to get to 31L. In short, pilots should now expect to receive specific crossing instructions for each runway encountered on the taxi route.
"Line Up & Wait" Replaces "Taxi Into Position and Hold"
Effective September 30, 2010, the FAA made another change to standardized communications. The phrase "taxi into position and hold" has been eliminated from the lexicon. Instead, controllers will use the phrase "line up and wait". The meaning of the new phrase for pilots is exactly the same as the meaning for the old phrase. The change was made to reduce confusion with non-native English speakers for whom the phrase "taxi into position and hold" led to runway incursions. The new phraseology brings US operations and communications in line with the International Civil Aviation Organization (ICAO) standards being utilized around the world.
Transition to New Procedures
Pilots as a group don't like changes to procedures. However, the failure to adhere to new procedures carries the possibility of loss of life and significant property damage in the aviation industry. Where there is either a risk of loss of life and/or significant property damage, then there exists the potential for increased liability for negligence on the part of pilots. Concurrently, the potential for violation increases too. Taking these recent changes into account, Federal Aviation Regulation 91.103 titled "Preflight action." comes into play.
FAR 91.103 provides in pertinent part, "Each pilot in command, shall before beginning a flight, become familiar with all available information concerning that flight." If a situation occurs where a pilot fails to adhere to a runway crossing instruction under the new phraseology or the pilot fails to maneuver the aircraft properly in response to a "line up and wait" instruction, then the pilot without question has not become familiar with all available information concerning the flight. Legally, a pilot's failure to make himself/herself aware of the new operating procedures constitutes a violation of FAR 91.103. Ask yourself, "How many flights have I conducted recently without being aware of the changes?" With today's modern technology, there is simply no excuse for not maintaining awareness of the changes in operating procedure. In an enforcement hearing, the FAA most assuredly will take this position of zero tolerance for violating these very well publicized procedures.
The best course of action is to take steps to make sure that you, as the Pilot-In-Command, become familiar with all available information concerning that flight prior to departure. Resources are available through the FAA's website, the Aircraft Owners & Pilots Association's website, and industry magazines. If you need more information on either of these recent changes or are interested in implementing a program to maintain awareness of changes promulgated by regulatory agencies that impact your flying, then contact Ronnie Gipson at gipson@higagipsonllp.com.
Effective June 30, 2010, the Federal Aviation Administration instituted a change in the format for runway crossing clearances issued by air traffic controllers (ATC), specifically ground control. Previously, if a pilot was authorized to taxi to a runway that required crossing another runway, then ATC issued a clearance directly to the final runway destination on the airport. For example, a clearance received such as "Cessna 23841 you are cleared to runway 31 left via Zulu" meant that the pilot was directed to taxi to runway 31L via taxiway Zulu and that the pilot could cross all other runways en route to the end of runway 31L.
With the new change instituted, that type of taxi clearance is no longer being issued by ATC. The reason for the change is simple. The FAA wants to eliminate runway incursions. Now, when a taxi clearance is given that requires crossing active, inactive, or closed runways, it is done so in a piecemeal fashion. Using the example above, if the aircraft must cross runway 31R to get to runway 31L, then the taxi clearance might sound like this, "Cessna 23841 cleared to taxi to runway 31R via Zulu." Upon reaching 31R, the aircraft would then receive a second clearance from ground control authorizing the pilot to taxi across runway 31R to get to 31L. In short, pilots should now expect to receive specific crossing instructions for each runway encountered on the taxi route.
"Line Up & Wait" Replaces "Taxi Into Position and Hold"
Effective September 30, 2010, the FAA made another change to standardized communications. The phrase "taxi into position and hold" has been eliminated from the lexicon. Instead, controllers will use the phrase "line up and wait". The meaning of the new phrase for pilots is exactly the same as the meaning for the old phrase. The change was made to reduce confusion with non-native English speakers for whom the phrase "taxi into position and hold" led to runway incursions. The new phraseology brings US operations and communications in line with the International Civil Aviation Organization (ICAO) standards being utilized around the world.
Transition to New Procedures
Pilots as a group don't like changes to procedures. However, the failure to adhere to new procedures carries the possibility of loss of life and significant property damage in the aviation industry. Where there is either a risk of loss of life and/or significant property damage, then there exists the potential for increased liability for negligence on the part of pilots. Concurrently, the potential for violation increases too. Taking these recent changes into account, Federal Aviation Regulation 91.103 titled "Preflight action." comes into play.
FAR 91.103 provides in pertinent part, "Each pilot in command, shall before beginning a flight, become familiar with all available information concerning that flight." If a situation occurs where a pilot fails to adhere to a runway crossing instruction under the new phraseology or the pilot fails to maneuver the aircraft properly in response to a "line up and wait" instruction, then the pilot without question has not become familiar with all available information concerning the flight. Legally, a pilot's failure to make himself/herself aware of the new operating procedures constitutes a violation of FAR 91.103. Ask yourself, "How many flights have I conducted recently without being aware of the changes?" With today's modern technology, there is simply no excuse for not maintaining awareness of the changes in operating procedure. In an enforcement hearing, the FAA most assuredly will take this position of zero tolerance for violating these very well publicized procedures.
The best course of action is to take steps to make sure that you, as the Pilot-In-Command, become familiar with all available information concerning that flight prior to departure. Resources are available through the FAA's website, the Aircraft Owners & Pilots Association's website, and industry magazines. If you need more information on either of these recent changes or are interested in implementing a program to maintain awareness of changes promulgated by regulatory agencies that impact your flying, then contact Ronnie Gipson at gipson@higagipsonllp.com.
Monday, August 16, 2010
Higa & Gipson, LLP Featured in Asian American Bar Association Newsletter
The Asian American Bar Association (AABA) featured Higa & Gipson, LLP in the August 2010 newsletter. As a 100% minority-owned firm, we are honored that AABA chose to highlight our boutique firm as an example to other attorneys charting a different course in today's economic climate. The full article can be seen here: http://www.aaba-bay.com/aaba/docs/aaba-0810.pdf.
Monday, July 26, 2010
The FAA's New Aircraft Registration Rule Effects Airworthiness
The following is an excerpt from the Federal Aviation Administration's (FAA)website.
***
WASHINGTON, D.C. – In an effort to create a more accurate aircraft registration database, the Federal Aviation Administration (FAA) is requiring re-registration of all civil aircraft over the next three years and renewal every three years after that.
The rule establishes specific expiration dates over a three-year period for all aircraft registered before Oct. 1, 2010, and requires re-registration of those aircraft according to a specific schedule. All aircraft registration certificates issued on or after Oct. 1, 2010 will be good for three years with the expiration date clearly shown.
“These improvements will give us more up-to-date registration data and better information about the state of the aviation industry,” said FAA Administrator Randy Babbitt.
Current regulations require owners to report the sale of an aircraft, the scrapping or destruction of an aircraft, or a change in mailing address, but many owners have not complied with those requirements.
Re-registration of all U.S. civil aircraft by Dec. 31, 2013 will enhance the database with current data derived from recent contact with aircraft owners. The new regulations also will ensure that aircraft owners give the FAA fresh information at least once every three years when they renew their registration. The FAA will cancel the N-numbers of aircraft that are not re-registered or renewed.
***
Federal Aviation Regulations are codified in Code of Federal Regulations. 14 CFR § 21.181 governs airworthiness certificates. The regulation states in pertinent part,
(a) Unless sooner surrendered, suspended, revoked, or a termination date is otherwise established by the Administrator, airworthiness certificates are effective as follows: (1) Standard airworthiness certificates, special airworthiness certificates primary category, and airworthiness certificates issued for restricted or limited category aircraft are effective as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 43 and 91 of this chapter and the aircraft are registered in the United States.
14 CFR 21.181(a) (WEST 2010). As a result of the language of the statute, an aircraft that does not have a valid registration certificate does not meet the definition of an airworthy craft and should not be operated until brought into compliance with the code.
The Executive Summary of the Final Rule Making, on more than one occasion, makes it clear that as a prerequisite for a U.S. aircraft to operate in compliance with the regulations, the aircraft must have both an airworthiness certificate and a valid registration certificate. Therefore, an aircraft that does not have both (i) a valid airworthiness certificate; and (ii) a valid registration, does not comply with the FARs and may not be operated until such time as the aircraft can comply with the changes to the regulation.
If you have questions about the new rule or need assistance with compliance, then contact Ronnie Gipson, head of the firm's Aviation Law practice. Mr. Gipson can be reached at (415) 655-6822 or via e-mail at gipson@higagipsonllp.com.
***
WASHINGTON, D.C. – In an effort to create a more accurate aircraft registration database, the Federal Aviation Administration (FAA) is requiring re-registration of all civil aircraft over the next three years and renewal every three years after that.
The rule establishes specific expiration dates over a three-year period for all aircraft registered before Oct. 1, 2010, and requires re-registration of those aircraft according to a specific schedule. All aircraft registration certificates issued on or after Oct. 1, 2010 will be good for three years with the expiration date clearly shown.
“These improvements will give us more up-to-date registration data and better information about the state of the aviation industry,” said FAA Administrator Randy Babbitt.
Current regulations require owners to report the sale of an aircraft, the scrapping or destruction of an aircraft, or a change in mailing address, but many owners have not complied with those requirements.
Re-registration of all U.S. civil aircraft by Dec. 31, 2013 will enhance the database with current data derived from recent contact with aircraft owners. The new regulations also will ensure that aircraft owners give the FAA fresh information at least once every three years when they renew their registration. The FAA will cancel the N-numbers of aircraft that are not re-registered or renewed.
***
Federal Aviation Regulations are codified in Code of Federal Regulations. 14 CFR § 21.181 governs airworthiness certificates. The regulation states in pertinent part,
(a) Unless sooner surrendered, suspended, revoked, or a termination date is otherwise established by the Administrator, airworthiness certificates are effective as follows: (1) Standard airworthiness certificates, special airworthiness certificates primary category, and airworthiness certificates issued for restricted or limited category aircraft are effective as long as the maintenance, preventive maintenance, and alterations are performed in accordance with Parts 43 and 91 of this chapter and the aircraft are registered in the United States.
14 CFR 21.181(a) (WEST 2010). As a result of the language of the statute, an aircraft that does not have a valid registration certificate does not meet the definition of an airworthy craft and should not be operated until brought into compliance with the code.
The Executive Summary of the Final Rule Making, on more than one occasion, makes it clear that as a prerequisite for a U.S. aircraft to operate in compliance with the regulations, the aircraft must have both an airworthiness certificate and a valid registration certificate. Therefore, an aircraft that does not have both (i) a valid airworthiness certificate; and (ii) a valid registration, does not comply with the FARs and may not be operated until such time as the aircraft can comply with the changes to the regulation.
If you have questions about the new rule or need assistance with compliance, then contact Ronnie Gipson, head of the firm's Aviation Law practice. Mr. Gipson can be reached at (415) 655-6822 or via e-mail at gipson@higagipsonllp.com.
Friday, June 25, 2010
Florida Repeals Use-Tax for New Aircraft Visiting State
Florida imposes a 6% use tax on the total value of recently purchased aircraft visiting from out-of-state for any purpose. In Florida, out-of-state aircraft owners are subject to the use tax for visiting the state within six months of purchasing an aircraft, even if the owners already paid sales tax in their own state. (Note: California levies a sales tax on aircraft purchased in the state. California imposes an use-tax for aircraft purchased outside the state and domiciled within the state.)
Governor Charlie Crist signed Florida House Bill 173 into law on May 27, 2010. As a result, on July 1, 2010, a permanent exemption for the 6% use tax for visiting out-of-state aircraft goes into effect. The possibility of incurring a 6% use tax for visiting Florida in a recently purchased aircraft deterred pilots from California and all over the nation, from visiting Florida over the past few years. Now out-of-state aircraft owners will be able to visit Florida with newly purchased aircraft for up to 21 days for any purpose and remain exempt from the use tax. Alternatively, aircraft owners with newly purchased aircraft may visit Florida for an unlimited amount of time within six months of purchase, remaining exempt from the use tax, for the purpose of flight training, repairs, retrofitting, or modifications. The Aircraft Owners and Pilots' Association (AOPA) contends, "Allowing more aircraft to visit the state will facilitate growth in the aviation industry and improve aviation services at many local airports."
For more information on how the Florida Use-Tax exemption effects your flying, then contact Ronnie Gipson with Higa & Gipson, LLP at (415) 655-6820 or via e-mail at gipson@higagipsonllp.com.
Governor Charlie Crist signed Florida House Bill 173 into law on May 27, 2010. As a result, on July 1, 2010, a permanent exemption for the 6% use tax for visiting out-of-state aircraft goes into effect. The possibility of incurring a 6% use tax for visiting Florida in a recently purchased aircraft deterred pilots from California and all over the nation, from visiting Florida over the past few years. Now out-of-state aircraft owners will be able to visit Florida with newly purchased aircraft for up to 21 days for any purpose and remain exempt from the use tax. Alternatively, aircraft owners with newly purchased aircraft may visit Florida for an unlimited amount of time within six months of purchase, remaining exempt from the use tax, for the purpose of flight training, repairs, retrofitting, or modifications. The Aircraft Owners and Pilots' Association (AOPA) contends, "Allowing more aircraft to visit the state will facilitate growth in the aviation industry and improve aviation services at many local airports."
For more information on how the Florida Use-Tax exemption effects your flying, then contact Ronnie Gipson with Higa & Gipson, LLP at (415) 655-6820 or via e-mail at gipson@higagipsonllp.com.
Wednesday, March 17, 2010
Employer Tax Breaks for New Employees To Stimulate Economy
On February 24, 2010, the U.S. Senate passed its version of the Hiring Incentives to Restore Employment Act (HIRE), also known as the Jobs bill. On March 4, 2010, the U.S. House of Representatives passed the Jobs bill with an amendment. The Jobs bill now goes back to the Senate for a vote on the amended version before being passed on to the President for signature. The President is expected to sign the bill into law upon passage by the Senate.
The Jobs bill is a plan to stimulate the economy through the creation of jobs by providing tax breaks to companies who hire the unemployed. The Jobs bill is designed to work as described as follows. HIRE will exempt an employer from paying the employer’s portion of the Social Security tax of an employee’s wage for the remainder of the year, when the company hires a previously unemployed worker. The exemption applies, retroactively, to individuals hired after February 3, 2010, through December 31, 2010.
The 6.2% portion of the Social Security tax would be exempt for any qualified individual hired after February 3, 2010, and before January 1, 2011, for wages paid in 2010 up to the Social Security ceiling of $106,800. Qualified employers may begin claiming this exemption on the second quarter 2010 Form 941.
A business will qualify for the tax credit and exemption if the new employee meets the following requirements:
o The new employee begins employment with a qualified employer after February 3, 2010, but before January 1, 2011;
o The new employee has not been employed for more than 40 hours in the previous 60 days; and
o The new employee is not hired to replace another employee, unless the former employee was separated from employment for cause or voluntarily.
It is important to note that the Social Security tax exemption is not an option if the employer selects the Working Opportunity Tax Credit (WOTC).
If you have questions about how you can best position your company to take advantage of the Jobs bill or if you have employment issues pertaining to your business, then contact Ronnie Gipson at (415) 655-6820 or through the firm’s website at www.higagipsonllp.com.
The Jobs bill is a plan to stimulate the economy through the creation of jobs by providing tax breaks to companies who hire the unemployed. The Jobs bill is designed to work as described as follows. HIRE will exempt an employer from paying the employer’s portion of the Social Security tax of an employee’s wage for the remainder of the year, when the company hires a previously unemployed worker. The exemption applies, retroactively, to individuals hired after February 3, 2010, through December 31, 2010.
The 6.2% portion of the Social Security tax would be exempt for any qualified individual hired after February 3, 2010, and before January 1, 2011, for wages paid in 2010 up to the Social Security ceiling of $106,800. Qualified employers may begin claiming this exemption on the second quarter 2010 Form 941.
A business will qualify for the tax credit and exemption if the new employee meets the following requirements:
o The new employee begins employment with a qualified employer after February 3, 2010, but before January 1, 2011;
o The new employee has not been employed for more than 40 hours in the previous 60 days; and
o The new employee is not hired to replace another employee, unless the former employee was separated from employment for cause or voluntarily.
It is important to note that the Social Security tax exemption is not an option if the employer selects the Working Opportunity Tax Credit (WOTC).
If you have questions about how you can best position your company to take advantage of the Jobs bill or if you have employment issues pertaining to your business, then contact Ronnie Gipson at (415) 655-6820 or through the firm’s website at www.higagipsonllp.com.
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