DID YOU EVER wonder why in ™The Godfather∫ they couldn’t have done a better job of just getting along in managing the family business?
Business success or failure is more than luck. It can often hinge upon being strategic and establishing good business practices that span the test of time, and it often involves the lawyer, writes Brian Kensicki, an attorney at Winthrop & Weinstine.
A good business lawyer will encourage the business owner to use best practices in finance and operations, as well as all of the other important aspects of running a profitable company. Here are a few thoughts and recommendations for building a solid business and keeping the drama where it should be–in the movies.
Management team
It is rare to find a successful company established and managed over time by only one person or entrepreneur. In most cases, even with a founder in charge, that person quickly gathers a core of people in order to promote the business concept from its initial stages, writes Kensicki.
The composition of a management team from one company to another often varies, but generally includes, in addition to a CEO or president, people with expertise in the following:
Marketing and sales
There are many advantages to engaging a person with marketing experience in the development stages. Such a person can influence the direction of such development and can identify marketing opportunities concurrently with the development.
Managing people
This person’s function includes several activities, and key among them is making decisions with respect to staffing needs, recruiting and training the best employees, ensuring they are high performers, dealing with performance issues, and ensuring your personnel and management practices conform to various regulations.
Finance
This person is primarily responsible for managing the financial risks of the business or agency. This person is also responsible for financial planning and record-keeping, as well as financial reporting to higher management.
Outside advisers
An experienced outsider who can draw from historical successes to help build up the company and create the necessary connections in the industry is key. Such a person on the board of directors, or as an investor, is an invaluable asset.
A solid management team is also necessary if one of the goals of the company is to attract investors. Investors invest in people, so they need evidence that the company is in the hands of people who are knowledgeable and skillful and who can take the business to the next level.
Investors regard the management team as the greatest asset of a young company, and often prefer an excellent management team with an average idea over an average management team with an excellent idea.
If the investor is not satisfied with the company’s management team, the investor will oftentimes either not invest in the company or penalize it with a low valuation.
Standardized contracts
It is important to develop a standard form of agreement for the sale of products or services and to use it as often as possible. Not only does it make a company appear more organized and professional, but it may also provide the company with more favorable terms and allow the relationship to be finalized more quickly.
There is nothing more frustrating than thinking you’ve secured a new client or made a big sale only to be presented with a contract attempting to document the relationship that is disorganized, poorly drafted and one-sided. Why start from a disadvantage or delay finalizing a relationship when, with a little time and effort, you can develop a standard form of agreement that is well organized and fair to both parties?
Using a form agreement also provides for consistency among your agreements, so there is no guesswork.
It is also important to document the company’s relationship with its employees and contractors. For example, consider whether it is desirable to protect your company’s interests by requiring that the company’s employees and contractors sign noncompetition and confidentiality agreements.
If employees and contractors are required to sign these types of agreements, then it is imperative that they are presented as part of the offer and signed on the first day of work.
Developing a strong and trusting relationship with your lawyer may help advance your business. Although not all lawyers are alike, good business lawyers oftentimes share the following traits:
The ability to relay information to you in a clear and concise manner.
A willingness to be proactive and on the lookout for changes in the law, potential problems and opportunities that may affect your company both positively and negatively.
A habit of calling you from time to time to discuss your business needs and the challenges you’re facing, rather than always waiting for you to call first.
The ability to accept and respond to criticism to better serve your needs.
Access to a vast network of other professionals who can also help your business, such as accountants, bankers and other business professionals.
At the end of the day, you will want to know that you have done everything possible to position your company for success both now and in the future–and to keep the drama to a minimum.
When mental health Issues arise, here’s how to comply with the ADA
The Americans with Disabilities Act of 1990 (ADA) prohibits employers from discriminating against a ™qualified individual with a disability because of the disability.∫
The ADA also imposes upon employers the duty to reasonably accommodate known limitations of individuals with disabilities unless it can show the accommodation would impose an undue hardship on the employer.
Today, as more employees are being diagnosed and treated for mental health disabilities such as attention deficit hyperactivity disorder (ADHD) and autism, the practical application of the ADA can be difficult because, unlike physical disabilities, mental health disabilities are not visible or easily identifiable, writes Heidi Carpenter, an HR and employment law attorney with Fafinski Mark & Johnson in Eden Prairie.
Which impairments are covered?
A disability is defined as ™a physical or mental impairment that substantially limits one or more of the major life activities of an individual.∫ In 2008, Congress amended the act, making it easier for an individual seeking protection under the ADA to establish that he or she is disabled under the ADA.
As a result, mental health disorders that may have not been considered disabilities under the ADA prior to 2008 are now protected even if medication mitigates the condition. The amended act specifically provides the following examples of a disability: an intellectual disability, autism, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder and schizophrenia.
An employer is legally required to provide a reasonable accommodation for known physical or mental limitations of an employee. Thus, if an employer is not aware of the disability, it is not expected to accommodate. Employers are not permitted to ask employees if they are disabled or require disclosure of any physical or mental conditions.
Under the ADA, an employee must communicate his or her required accommodations as a result of a disability to the employer. This communication does not have to be in writing or reference an accommodation or the ADA.
In many cases, an employee verbally and informally discloses a physical or mental condition to a supervisor or manager as an explanation for failing to satisfactorily perform or failing to comply with a company policy. This disclosure may constitute a reasonable accommodation request. For this reason, supervisors and managers need to receive ADA training or directives to notify human resources of such disclosures.
Upon receipt of a disclosure and determination that a request for accommodation is necessary, an employer should verify the condition and determine whether it is a ™disability∫ under the ADA. An employee can do this by obtaining as much information as possible about the employee’s condition and the basis for the accommodation request.
An employer should send a written request to the employee’s physician to provide: 1, a diagnosis of the condition; 2, a description of the nature and severity of the symptoms; 3, the course of treatment; 4, limitations or restrictions of the employee, 5, an opinion as to whether the employee’s condition precludes him or her from performing any of the essential functions of the job and, if so, an opinion as to the nature and duration of such limitations; and 6, any accommodations required to perform the essential functions of the job. However, if an employee’s need for an accommodation is obvious, his or her employer may not require documentation.
The central issue
The ADA only protects qualified individuals with a disability. An employer is not required to hire or retain an employee who is not qualified to perform the duties of the job. This analysis requires a determination of whether: 1, the employee possesses the prerequisites for the position (such as the required education, work experience, training, skills, and licenses) and 2, is able to perform the essential functions of the job that are the fundamental job duties of the position. The second part of this analysis is usually the central issue in cases involving mental health issues, writes Carpenter.
As an example, consider that an essential function of a customer service position is the ability to work with others and receive criticism on behalf of the company. An individual who suffers from depressive disorders or anxiety disorders and who finds it difficult to work with others or handle criticism would not be considered a ™qualified∫ individual for a customer service position because this person cannot perform the essential functions of the job. As a result, his or her employer would not be required to develop a reasonable accommodation for the individual for this position.
If it is determined that an individual is qualified with a disability, his or her employer must next determine whether a reasonable accommodation is available that would enable the disabled employee to perform the essential functions of the job. A reasonable accommodation is defined under the ADA as any change in the work environment or in the way things are customarily done that enables the employee with a disability to enjoy equal employment opportunity. Accommodations should be determined on a case-by-case basis, taking into account employee disability, limitations, essential functions of the job, and any undue hardships on the company.
Employers should note they are not legally obligated to provide the specific accommodation requested by the employee if other accommodations would also allow the employee to perform the essential functions of the job.
Some accommodations aren’t obvious
Unlike many physical disabilities, accommodations for mental health disabilities may not be obvious. The following are examples of types of accommodations that may apply to employees with mental health disabilities:
- Scheduling with flexibility: changing work hours, providing more breaks, allowing a part-time schedule, providing additional sick leave, allowing time off for therapy appointments.
- Offering extra training: providing longer training and probation periods with one-on-one assistance.
- Modifying job duties: eliminating or re-allocating minor job duties.
- Altering leave policy: permitting use of sick leave for mental health reasons; allowing extended, unpaid leave for hospitalization or medication stabilization.
- Changing communication policies and work environment: delivering all instructions and new tasks in writing, modifying the way feedback is given, installing wall partitions to minimize distractions, permitting ear plugs or head phones, providing extra supervision hours, permitting remote working.
As an employee’s circumstances change, his or her employer has an ongoing responsibility to consider additional or alternative accommodations, Carpenter writes. Therefore, if an employee asks for a different accommodation or additional accommodations after the employer has already provided an effective accommodation, the employer must resume dialogue with the employee concerning his or her condition and request. A request for further medical documentation may be necessary.
