New York Sexual Harassment Law Basics for New York City & State Employers

The #MeToo movement has motivated the State and City of New York to implement a battery of new sexual harassment laws applicable to all businesses in New York City and New York State.  The new New York laws should motivate employers in New York to update NY employment rules, NY employment agreements (if applicable), NY non-disclosure agreements and the New York company’s sexual harassment policies & education programs. Major Changes to New York Sexual Harassment Laws Notification via a Poster of Employees of the Sexual Harassment Policy of New York City  All New York City employers must prominently display an English and Spanish language poster notifying NY employees of their rights and obligations under NY law.  The poster was created by the New York City Commission on Human Rights and can be obtained from the Commission. Notification via a Fact Sheet of Sexual Harassment Facts  All employers in New York

Continue reading

Finding an Efficient New York Business Lawyer for your NY Business

We here at IPG obtain numerous emails and calls from potential clients in search of a New York business lawyer to act as part-time general counsel.  The majority of these intakes come from referrals from present clients, referrals from other lawyers and some trickle in via this New York Law Blog and the Korean Law Blog. From our contacts, we believe that many smaller businesses in New York are having serious difficulties in finding attorneys in New York that are NY business savvy, have the ability to efficiently work for the client and/or have an inability to handle the specific issues the client is dealing with. This dismal situation seems to stem, primarily, from the high cost of top-notch legal services in NY and the lack of many top-notch New York lawyers working in the startup and growing business space.  This reality is, only, partially true.  Many great lawyers work

Continue reading

Enforcement of Foreign Judgments in New York Courts: Collecting debts based on foreign judgments in New York

Enforcement of a foreign judgment in a New York court should first proceed based on the type of foreign judgment and how you obtained the foreign judgment. The procedure requires an understanding of not only New York Law, but international law and treatises.  The procedure should be performed by a New York attorney without experience in this area of law. If you are interested in enforcing a New York Judgment in a foreign court please see: Enforcement of New York Judgments Abroad.  If you are interested in enforcing a New York judgment in Korea please see our sister blog at: Enforcing of Foreign Judgments in Korea. Recognition of judgments of foreign courts is not automatic in New York, a procedure in place must be followed prior to recognition of a foreign judgment in a New York court. The foreign judgment must first be authenticated in accordance with an Act of

Continue reading

Buying or Selling A Business in New York? Do Your “Due Diligence”

Before buying or selling a New Yorkbusiness, make sure you understand how to perform a “due diligence” for the business. This is essential for all businesses whether you are the buyer or a seller. A good motivated seller of a business will, usually, receive a better deal if pre-due diligence work is performed in order to satisfy the potential requests of a buyer – in a timely fashion. We often see a buyer questioning documents produced when the documents are not produced in a timely manner. Recently, I was approached by a prospective client about selling a small business, and I asked if she knew what performing a “due diligence” was. The blank stare on her face was all the answer I needed. Many small business owners have heard the term, but know nothing about what it means to properly carry out the due diligence process. “Due diligence” is a

Continue reading

Draft A Clear Statement of Work in New York

When hiring a business or individual in connection with a project, it is important that all parties create and agree to a clear and precise Statement of Work. A Statement of Work (SOW) is a formal document entered into by parties involved in a project that specifies in clear understandable terms the work to be completed.  A SOW should captures and defines the specific work to be performed for a client, deliverables, and a timeline that a vendor or contractor must execute – at a bare minimum. A SOW needs to contain the material terms of what needs to be done in as definitive and precise of a manner as possible. Generally, these are the three major types of SOWs: Design Based SOW – This type of SOW tells the supplier how to do the work. The statement of work defines buyer requirements that control the processes of the supplier.

Continue reading

Understanding New York’s Business Judgment Rule

Officers and directors of start-up corporations are responsible for managing and directing the business’s affairs. As the business grows, so does the level of responsibility for officers and directors.  Under the “business judgment rule,” officers and directors of a corporation are immune from liability to the corporation for losses resulting from corporate decision making, within their authority, that were made in good faith and decided with reasonable skill and prudence. This is significant because the recovery of any successful claim against the company will be limited to the company’s assets only. Exceptions do exist. In my experience, matters where I would argue that the “business judgment rule” come up in the context of small businesses where there is a dispute between stakeholders and in homeowner’s associations and condominium/co-op boards where members dispute a decision. These kinds of cases turn on the facts of a case. So it is important that

Continue reading

New York Age Discrimination Protection Basics

As part of our ongoing series of posts intended to familiarize you with New York and Federal laws you must follow if you are running a business in New York, it is important to understand the way the New York law protects employees from age discrimination. Age discrimination is, in short, when an employer makes employment or management decisions based on an employee’s age and not on his or her job performance, skills or qualifications. Employees are protected via multiple layers of laws and administrative bodies.  Employees may be able to file an age discrimination suit at the U.S. federal, New York State and New York City level. Scope of New York Discrimination Claims New York age discrimination causes of action are not limited to hiring and firing. Claims for age discrimination can be based on age bias within the workplace (like passing over employees for promotion); failure to provide

Continue reading

Firing an Employee in NY? Exceptions to NY “At Will” Employee Law

If your New York business hires employees in NY, then it is essential that you know what hiring someone as an employee “at will” in New York is and what rights and protections at-will employees are afforded under New York At-Will Employment Law. New York is generally considered an “employment at will” state.  This means that a private sector employer can hire and fire an employee at will (as the company pleases).  The discharged NY employee will usually have little to no legal recourse and even when the firing is facially unreasonable.  In short, the employee may be fired for any or even no reason (with the exceptions noted below). Exceptions to General New York At-Will Employment Rule Union Contract If the employee is a union member and employed under a union contract, then s/he is entitled to the protections written into the respective contract and/or collective bargaining agreement. Employee

Continue reading

Starting A Nonprofit Corporation in New York

Here is a not-so-quick introduction of how to start a nonprofit corporation in New York. A 501(c)(3) organization, which are formed for religious, charitable, scientific, literary or educational purposes, is eligible for federal and New York state tax exemption.  But before you can have a tax exempt organization, you need to create a non-profit organization in New York.  Here is what you need to do to create a non-profit organization in New York. Creating a Non-profit Organization in New York Choose Directors Choose 3 initial directors over the age of 18, preferably people who live in New York. Select a Name Choose the name of your non-profit corporation that is distinguishable from the name of any other corporation.  To assist you, New York’s Department of State has a business name search database of New York businesses to determine whether your name is available. Select the Address Determine the address and location

Continue reading

NY State and Federal Tax Exemption for your New York Nonprofit

Now that you created your New York nonprofit,  let’s discuss how your New York nonprofit can apply for state and federal tax exemption. After your New York nonprofit has held its first organizing meeting, you will need the continued assistance of an experienced attorney to file documents with the federal government and New York State. By this point, you should have already consulted an attorney about the formation of your organization and hopefully the attorney made sure that you have created an entity that the IRS will find qualifies for tax exemption. IRS Form 1023 (Federal Nonprofit) For the federal government, you will need to complete and file IRS Form 1023, which is a long and detailed form that asks for extensive information about your New York nonprofit’s organization, history, finances, structure, governance policies, operations and more. The IRS Form 1023 should be accompanied by appropriate supporting documents that your

Continue reading

New York Shareholder, Member and Partnership Business Disputes In NY: New York Business Disputes & Litigation Basics

New York Business Disputes We handle numerous shareholder and member disputes.  The main reasons for these disputes are because of the lack of an adequate Shareholder, Operations or Partnership Agreement, the lack of due diligence or nefarious acts by a member, shareholder or controlling directors.  Analyzing whether to file a lawsuit is, often, a matter of economics. A civil law suit at the court of first instance may take over a year.  Your attorney in New York will need to file a complaint to in a NY court, file a reply to the defendant, depose witnesses, file pre-trial requests and make numerous appearances in court and at pre-trial conferences.  The process is cumbersome, time consuming and of course will not be cheap. Thus, we, always, sit down with our clients and do a detailed cost-benefit analyses.  Many New York law firms push to file a lawsuit for obvious reasons, however,

Continue reading

Winding Up Your New York Business: Essential Steps to Business Closure in New York

If you are looking to close your New York business, these are some of the many essential steps you should take.  In most cases you shall require a New York Bankruptcy lawyers to assist in the windup process: Vote to Close the New York Business No matter what form your NY business has taken, you must get all owners’ approval to close the business.  In some forms, it is easier to do than others.  For example, if your New York business is a sole proprietorship, you simply make the decision on your own.  If it is a New York limited liability company or partnership, you and your partners must agree to dissolve the business based upon the rules set out in your organizing documents and the laws of the State of New York. Dissolve your Business with the New York Government If your New York business filed documents with any

Continue reading

Frustration of Purpose as a Tool to Avoid Contracts in New York: The BREXIT Fallout

We have clients that are supplying products to UK companies and UK companies that are being supplied products by U.S. companies. With the surprising outcome of the Brexit vote, the purpose of these agreements are now frustrated because, often, these products are used in finished products assembled in EU nations. This situation often arises in complex products. For example, a U.S. business has a piece of technology that is integrated into a British component. The British component is then further integrated into a finished product manufactured in Germany. The situation is not as rare as you think. We suggest an immediate review of your contracts. With the potential for UK companies to have decreases in sales, a fixed supply contact may be invalidated based on the Frustration of Purpose principle. Obviously, the opposite may also be true. A UK company may be unable to provide products (Impossibility Principle) or provide

Continue reading

Validity and Enforceability of Electronic Signatures in New York

Federal law governs, in most cases in New York, when the use of an electronic signature is valid and enforceable.  The U.S. Electronic Signatures in Global and National Commerce Act (also called ESIGN Act) defines an electronic signature as “an electronic sound, symbol, or process attached to or logically associated with an electronic record and executed or adopted by a person with intent to sign the record.” This definition covers a broad scope, as businesses use different means, methods and technologies that create electronic signatures, including: Check boxes or buttons that state you agree to certain terms and conditions; PIN numbers or passwords; Signing an electronic keypad; or A graphical representation, image or a scan of a handwritten signature. The ESIGN Act protects the validity and enforceability of signatures made electronically, including: A signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or

Continue reading

Should I Purchase a Franchise Or Start My Own Business in New York: Six Factors For Your Consideration

Choosing between franchise or starting your own business in New York is an important choice that can have a major impact on your future.  The choice may, ultimately come down to your personality. Weighing the pros and cons of purchasing a franchise against starting a non-franchised business begins with some self-reflection.  If you are an independent person that likes to experiment or wants to blaze your own trail, a franchise with rigorous systems and proscribed rules is probably not for you.  If you want to run a business, but do not know where to begin, a franchise with its own established processes and IP may be the right choice for you.  Of course, your initial budget is another factor to weigh. Beyond the above introspection, the pros and cons of a franchised business versus a non-franchised business in terms of both investment and goals for starting a business should be

Continue reading

Obtaining A New York Liquor License

Qualifying for a liquor license in New York State may seem straightforward, but will get complicated if you do not know the basics. The application process starts with choosing your business’s location in New York, because it can impact your license application.  A New York business selling alcoholic beverages must be 200 feet from schools and religious buildings. Generally, you must also consider that a license for on-premises liquor consumption may be granted for any premise within 500 feet of three or more existing premises licensed and operating with an on-premises liquor license. This rule can be waived by the New York State Liquor Authority if it determines that the license would be “in the public interest” after consulting with the local Community Board and holding a public hearing commonly referred to as “The 500-Foot Hearing.” Additionally, only qualified persons can obtain a New York State liquor license.  The personal

Continue reading

Private Placement Memos Get Start-Ups Moving

Recently, I wrote about the two tools available to small businesses to stir interest and investment – the business plan and the private placement memorandum.  Let’s focus on the private placement memorandum. A Private Placement Memorandum (or PPM for short) is a legal document that organized businesses provide to prospective private investors who may be interested in buying stock or some other kind of security in your business in some kind of private transaction. The PPM will put all of your cards on the table: 1.  Your company’s basics:  Who you are, what you are looking to accomplish and the nature of your business.  This can also include the description of your company and management structure. 2. Your terms:  First and foremost, you will need to identify the rights, restrictions and class of your securities.  This section includes the capitalization of your company before and after offering the securities or

Continue reading

Registering Your New York Nonprofit For Fundraising Purpopses

If your New York nonprofit is fundraising in New York, then you may likely need to register with the New York Attorney General’s office. Before soliciting contributions from individuals, foundations, corporations or government agencies within New York, a New York nonprofit must register with the NY Attorney General’s General Charities Bureau, unless it falls within one of the many exceptions: Exceptions to the New York Nonprofit Filing Requirements Religious organizations or other organizations with a religious purpose (i.e., a religious school); Educational institutions that solicit contributions only from alumni, the student body, faculty, trustees and their families, and other educational organizations that report to or are chartered by the Board of Regents of the State University of New York are exempt; PTAs (Parent-Teacher Associations); Fraternal, patriotic, social or alumni membership organizations that limit their solicitations to its membership; Law enforcement support groups, veterans organizations, and volunteer firefighter/volunteer ambulance service organizations; Any

Continue reading

Terminating A Franchise Agreement In New York: NY Franchise Law Basics

The termination or cancellation of a New York franchise relationship requires planning, a thorough understanding of your particular New York franchise agreement and procedural formalities.  Typically, it is advisable to consult with your franchise lawyer. New York Franchise Terminations (Franchisee Considerations) For example, preparation should begin before signing a franchise agreement by a New York franchisee.  Before signing, a would-be franchisee should consider the written terms outlining the right to terminate the franchise agreement.  Other clauses, of course, should be reviewed.  This post, only, addresses one issue of many that a franchisee should consider. Typically, a franchisor shall lay out several conditions it would consider to be breaches of the franchise agreement that trigger termination.  These conditions will not afford an opportunity for either party to cure or correct the specific condition.  These incurable breaches are, typically, material breaches of franchise agreement and, often, New York law.  In some cases, a

Continue reading

Enforcement of Liquidated Damages Clauses in NY?

When NY businesses contract with others, and those contracts include a clause for liquidated damages, be careful that your New York liquidated damage clause is enforceable in New York and not a mere penalty, or you may have negotiated your way into a New York court. In New York, parties generally are free to set the terms of their own contracts and may agree on the damages for breach in certain circumstances. Specifically, parties are free to agree to liquidated damages, which is damage calculation, typically, used when: damages are difficult or impossible to calculate; and where the amount agreed upon bears a reasonable relationship to the probable loss. Our New York law office drafts, has enforced and has challenged liquidated damage clauses in numerous industries including real estate, service agreements, supply agreements and vendor agreements. When damages resulting from a breach are readily calculable or where the agreed upon

Continue reading