Updates

  • Workplace Drug Policies: Is Yours Up to Snuff?

    By on February 7, 2017

    Workplace Drug Policies: Is Yours Up to Snuff?

    by Eric Taylor, Attorney, EagerLaw PC

    If you’re an employer, you’ve probably thought about implementing a workplace drug and alcohol policy but may not be sure what you can and cannot require of employees. Laws surrounding marijuana in Oregon continue to evolve, leaving you and many other Oregon employers with even more questions.  While all employers should strongly consider their goals and individual circumstances before creating a policy, fortunately, some basic guidelines do exist. In this update, I’ll shed some light on those guidelines to help you clarify your thinking around your workplace drug and alcohol use policy.

    Make Your Policy Clear and Use Objective Factors for Testing

    You may be surprised to know that in Oregon no law specifically prescribes what a drug and alcohol policy must contain. Even so, there can be consequences for poorly drafted policies. In looking for some guidance employers can turn to the Oregon Employment Department, which prescribes guidelines for drug and alcohol policies in regard to determining unemployment benefits. It boils down to this: In determining eligibility for unemployment benefits, the Employment Department must find that the policy applied was reasonable.

    In general, to be considered reasonable, your workplace drug and alcohol policy must be in writing and prohibit the use, sale, possession or effects of drugs in the workplace, and you must consistently follow your policy. The policy should also outline the disciplinary actions that may be taken if an employee violates the policy. As an employer, if you want to test an employee for drugs or alcohol, you must either have probable cause for the test or conduct random testing. The definition of “probable cause” becomes very important, because any testing conducted without it would likely be considered unreasonable.

    Probable cause generally requires that an employer have a reasonable basis to suspect drugs or alcohol in the workplace, which includes observations such as bizarre behavior, changes in productivity, repeated tardiness or absences, or behavior which causes an on-the-job injury or substantial damage to property. An employer may also base this determination on credible information about the effects of drugs and alcohol in the workplace.

    The Oregon Employment Department’s requirements do an excellent job of laying out the basic framework of a drug and alcohol policy. It provides a good starting place for your policy and gives it some teeth by providing a basis in reasoned rulemaking surrounding these issues. You will need to decide where to go from here based on your particular circumstances and goals, but this framework provides a good start.

    Give Employees Advance Notice and Confirm in Writing

    Before implementing any policy, it’s advised that you give the policy to employees 30 days prior to the date you begin implementing and applying the policy. We also suggest requiring employees to confirm in writing the date they received and reviewed the policy. This is designed to shoot down any objections from employees that they didn’t know about the policy or claims that it was unreasonable to immediately apply the policy.

    Apply the Policy Equally

    In implementing your workplace drug and alcohol policy, you’ll need to be sure that you apply it consistently and uniformly to all employees. Employment discrimination claims are among the biggest concerns for any employer. Anti-discrimination statutes provide some of the strongest protections to employees and are often the basis for lawsuits. So if, for example, the application of your drug and alcohol policy resulted in the exclusive drug testing of Hispanic pregnant women, the affected employees would have a good basis to claim that your policy had a disparate impact on them. Such a claim would be extremely costly for your company and could easily have been avoided by simply applying the policy equally to all employees across the board.

    Take Pause if an Employee is or may be Disabled

    Be on the lookout for issues that may arise with disabled employees, including employees who may be alcoholics or those taking prescription drugs. The Americans with Disabilities Act (“ADA”) provides protections to employees with disabilities and requires employers to make reasonable accommodations to those employees. If an employee may be disabled, which can include being an alcoholic, you as an employer have certain duties under the ADA. If you simply fired the person for not complying with the drug and alcohol policy, then you would likely forego your obligations under the ADA and be liable under that statute. The take-away here is this: If you think an employee may be disabled, tread lightly in the application of a drug and alcohol policy and seek outside counsel before proceeding.

    Termination for Marijuana Use or Possession

    Currently, if an employee is subjected to a drug test pursuant to a drug and alcohol policy, the employer can take action under the policy if marijuana is detected. However, one of the biggest issues here is the limitation of testing for marijuana. Most tests can tell you whether or not it’s present, but they can’t give a very good idea of when the drug was taken, or if the person was impaired by it in the workplace. Though as the employer you can take action if there is any amount present, it’s really your judgment call in how you draft and implement your drug and alcohol policy. Many employers are only interested in whether the employee was impaired at work, and if that is the case for you, you’ll want to carefully draft the policy to reflect this.

    You may be thinking, but what about medical marijuana? Isn’t that like taking a prescription? That’s a great question, and luckily the Oregon Supreme Court has examined it. In the case of Emerald Steel Fabricators, Inc. v. Bureau of Labor and Instries, the court looked to see if disability statutes provided protection for employees taking medical marijuana. Disability statues do provide protections for employees taking prescription drugs, and thus the court looked at how medical marijuana fit in. The issue came down to the tension between Oregon’s legalization of the drug for medical purposes and the criminalization of the drug federally. The court ultimately found that the federal law preempted the state law and that users of medical marijuana do not receive protection under the disability statutes. With this, medical marijuana users do not have protection if terminated under a reasonable drug and alcohol policy. This would almost certainly change if the federal law is altered, but until then Emerald Steel tells us that there’s no protection.

    What’s Next?

    There are numerous other considerations that may arise in drafting your drug and alcohol policy that we simply do not have time to cover here. Each employer’s stance on drugs and alcohol is different, and what works for one business often won’t work for another. If you are considering revising or implementing a drug and alcohol policy, we suggest that you contact an attorney to receive advice on your specific circumstances in order to have an effective drug and alcohol policy. We at EagerLaw PC are of course happy to help.

     

    Eric Taylor is a business attorney with EagerLaw PC. He regularly represents business in a wide range of issues including formation, dissolution, real estate transactions, and employment law issues. Call him at (541) 323-5851. Stay up to date on all Bend business matters with EagerLaw PC on Facebook.

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  • Goat Hair Doll Wigs and Other Small Business Successes

    Taylor’s Tales, Vol. 1: What Goat Hair Doll Wigs Taught Me About Small Business

    By on December 29, 2016

    Goat Hair Doll Wigs and Other Small Business Successes

    Goat Hair Doll Wigs (and Other Small Business Successes)

    by Eric Taylor, Attorney, EagerLaw PC

    Business ideas can come from anywhere, anytime

    That’s something I learned growing up with an entrepreneurial family. One unique idea came after my grandfather retired from a successful career as an apartment developer based out of San Francisco, and my grandparents moved to the Sierra foothills.

    My grandmother had seen lambs on neighboring properties and thought they were cute. One day she stopped into the local knitting store and began speaking with the owner about various things. One thing led to another, and it turned out that the owner’s husband had around 50 Angora goats. My grandmother was invited to the property to check out the animals and thought that a couple of them would be great to have at home.

    While watching the goats roam the property, my grandmother began to think that she could turn the hair from the goats into a marketable product. These being Angora goats, their hair was very desirable for making wigs for high-end porcelain dolls. Knowing that, my grandmother purchased two goats and set to work having the goats sheared, cleaning the hair, and turning the cleaned hair into a wig.

    Though the hair took hours of hard work to clean, she succeeded and developed a wig for her Father Christmas dolls. Based on this initial success, she packaged the materials as a do-it-yourself kit. She returned to the yarn shop with the product, and the owner placed an order right away. This order set in motion what would become the family business I grew up around.

    The booming business of goat hair

    While all this was going on, my uncle had been selling baby bibs as a work-at-home kit. The idea was that, for a fee, he supplied you with a kit including the raw material, and then you did your best to complete the kit. If you succeeded in completing it, you sent it back to my uncle for inspection and he would hire you if the product passed inspection. My grandfather melded the two ideas together and began selling small work-at-home wig kits to people across the country.

    He wrote all the marketing materials and spent hours on the phone with potential customers and work-at-home contractors. People in high rise apartments in the city began hanging goat hair out to dry on their balconies and filled their bathtubs with it.

    Eventually my parents purchased the business due to its great success. From there, things continued to grow and grow and grow. As a child I went to numerous trade shows where my mother worked tireless weekends selling the finished products, while my dad took me and my sister on adventures. It was a lot of fun for us. Eventually they tired of this business model and transitioned to a retail toy store, which they owned until 2015.

    When I look back on all of this, it seems quite normal to me

    Doesn’t everyone’s family talk about cleaning goat hair? All kidding aside, this experience meant that I grew up around regular discussions about new and exciting business ideas, some of which seemed completely crazy, as well as the hardships that come along with running a small, unique business. This vocabulary was bred into me at a young age and has made small business a big part of my life. Many times it’s hard for me to remember that not everyone grew up like this.

    As a business lawyer, I really enjoy the opportunity to help small businesses navigate legal issues. It’s fun to come along for the ride with a business as it grows. My small business background allows me to help clients in a unique way as the issues they are dealing with are familiar to me, and I understand the impact that they have on their business. Who knew that a couple of dirty goats could end up helping me define my career?


    Eric Taylor is a business attorney with EagerLaw PC. He regularly represents business in a wide range of issues including formation, dissolution, real estate transactions, and employment law issues. Call him at (541) 323-5851. Stay up to date on all Bend business matters with EagerLaw PC on Facebook.

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  • Bend Businesses

    Three Tips for Bend Businesses to Win the Holiday Season

    By on November 29, 2016

    Bend BusinessesWith Thanksgiving in the rear-view mirror, Bend business owners now find themselves in the midst of the more than month-long holiday season that concludes on New Year’s Day. The holidays impact different Bend businesses differently. For some, like retail businesses and restaurants, this is one of the busiest times of year. Owners of these consumer-oriented businesses are most likely focused exclusively on day-to-day operational challenges – making hay while the sun shines (or snow falls).

    For Bend businesses that cater to other businesses (business to business, or B2B), the holiday season presents some challenges as well as opportunities.

    Sales opportunities can be few and far between during the holidays, as buyers are on vacation or focused on longer-term planning. Sometimes it can be difficult to get calls returned or orders placed this time of year.

    But the lull in activity also presents opportunities for Bend businesses to plan for a successful 2017 and beyond.

    Here are a few tips to leverage the holiday season for a more profitable future:

    1. Hold a staff retreat to plan for 2017 and build camaraderie. The EagerLaw PC team is holding a retreat in December to plan our activities for the coming year, and many other businesses do the same. We are holding our retreat on-site, with family-oriented social activities later in the day. A retreat doesn’t need to be expensive to be effective.
    2. Develop a marketing plan. It’s been said that a good marketing plan is the marketing plan you will stick to. Without a plan, it is difficult, if not impossible, to budget time and funds and measure results in the coming year. The holiday season is a good opportunity to reflect on what worked and what didn’t in 2016, and to adjust for 2017.
    3. Assess and revise nagging legal issues with your business. In the daily bustle of owning a business in Bend, it’s easy to overlook issues like whether your business entity (such as a limited liability company or corporation) is up-to-date, or whether your employee handbook is consistent with current, and always-changing, Oregon and federal employment law. Maybe your business is a sole proprietorship or partnership, and you’ve long intended to create an LLC or corporation to protect your personal assets. These are things we all put off “until we have time.” The holiday season may just be that time.

    Of course, our primary goal during the holidays is to spend time with family. By carving out some planning time – time to work on our businesses – Bend business owners can win the holiday season, and win 2017.

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  • Do you need an LLC for your Bend, Oregon business?

    Why Should Bend, Oregon Small Business Owners Form an LLC?

    By on November 15, 2016

    Starting a Business in Bend? Consider Forming an LLC

    By Eric Taylor, attorney, EagerLaw PC

    Do you need an LLC for your Bend, Oregon business?As a new Bend business owner, you’re faced with many considerations, from banking to insurance to an online presence, along with countless other activities and costs. Even for experienced entrepreneurs, the start-up process can be overwhelming: What needs to come first, and what can be pushed to the back burner? Today, we’ll look at the option of forming an LLC and examine how it can help you avoid some common pitfalls as you start your first (or next) Oregon business venture.

    What is an LLC?

    Most people have heard of an LLC, or limited liability company. You see it tagged onto the end of business names or hear people talk about forming LLCs. However, you may not know exactly what it is and whether it’s right for your business.

    An LLC is an entity that you register with the Oregon Secretary of State so you can have a distinct legal entity with which to conduct your business. Once you form the LLC, the business is no longer just you. You contract, employ staff, and conduct your day-to-day business under the name of the LLC.

    That’s an important distinction because, as the name implies, an LLC limits the liability of the individuals operating it. When a business is operated as either a sole proprietorship or a partnership, the parties operating the business are personally on the hook for the legal liabilities that come with running the business. That means if your business gets sued, your personal assets are fair game. But if someone sues your LLC, they can usually only get at the business’s assets. This is by far the biggest reason to form an LLC. Doing so could save you thousands of dollars, as well as your home, your car, and any other assets.

    Even small businesses can be sued

    You might think your business is too small to be at risk, or that you won’t be subject to a lawsuit because you treat people well and do the right thing. However, numerous legal technicalities and complicated laws nearly guarantee that no business is in full compliance. One of the largest issues I see relates to employment law. For example, in Oregon, employers are required to pay time and a half for overtime to all employees working beyond 40 hours a week. Many people know this law, but most of us don’t know about some of the complexities in how those hours are computed.

    Under Oregon law, if an employee works over 40 hours a week you must pay time and a half, period. What this means is that even if you tell the employee not to work overtime, but they come in and do so anyway, you are required to pay them time and a half for the additional hours. This is counter-intuitive and frustrating for many employers and could subject them to a lawsuit from a vindictive employee. Oregon law also does not allow employers to use comp time to satisfy overtime requirements. If an employee works 45 hours in one week, he or she is required to receive five hours’ overtime pay for that week. If you only have the employee work 35 hours in the next week, you are certainly being a generous employer—but you are not complying with the law unless you pay the previous week’s overtime.

    Like many small business owners in Bend, you might be unaware of these twists on the law, but it is exactly this type of small distinction that could subject you to a wage and hour claim by the employee. While the actual amount the employee is owed could be small—just five hours at time and a half in the above example—the cost of defending a lawsuit, even if it is baseless, can easily get up into the $10,000 range before you really get going. On top of that, Oregon law allows for the employee’s attorney fees to be paid if they prevail, which would astronomically increase the cost of the suit. All of these costs are borne by the business, not you personally, if you have an LLC.

    No employees? There are other risk areas

    Another area of exposure includes potential injuries to customers from your products or services.  Suppose you are an auto mechanic and you complete an extensive repair on a customer’s vehicle. While driving down Highway 97, the customer is injured because a part you installed comes loose and causes an accident. If the injured party sues you and wins, then you are personally liable to pay if you don’t have an LLC or other business entity. If you cannot afford to pay, the prevailing party could foreclose your home or sell off your other assets.  With an LLC, on the other hand, the business will usually be responsible for the debt.

    LLC: Flexible protection for Bend businesses

    Overall, I hope these examples help illustrate the usefulness of an LLC, even for a very small business in Central Oregon. Operating as an LLC adds a great deal of peace of mind and protection for the business owner. The LLC has also gained in popularity, as it’s a very flexible entity and allows flexibility in how its income is taxed. Simply put, the LLC offers Bend businesses significant legal protection without adding a lot of cost or complication.

    Want to start an LLC? The Oregon Secretary of State’s website provides information if you wish to do so on your own. If you’d rather not worry about the details of forming a business entity in Oregon, the seasoned Bend business attorneys at EagerLaw PC, via the firm’s LLC Bend service, will make sure you’re off to the best start possible with an affordable flat-fee, customized set-up tailored to your business. We’ll even give you a free half-hour consultation so you can see if LLC Bend is a good fit for your company. Call or click today to schedule: (541) 323-9726.


    Eric Taylor is a business attorney with EagerLaw PC. He regularly represents business in a wide range of issues including formation, dissolution, real estate transactions, and employment law issues. Call him at (541) 323-5851. Stay up to date on all Bend business matters with EagerLaw PC on Facebook.

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  • LLC Bend: Less Legal Complexity

    LLC Bend: Easy Legal for Bend Entrepreneurs

    By on September 26, 2016

    LLC Bend: Less Legal ComplexityWe get it. As an entrepreneur, you don’t want to spend your all-too-limited time dealing with lawyers, especially when you’re just starting out. Law firms’ traditional billing practice sometimes leaves clients in the dark about how much a project will cost, and we believe you’ve got enough uncertainty when you’re starting a business.

    But we also know that setting up a business legally, with a business entity such as an LLC, getting an EIN, and registering for the Bend business license from the get-go saves time, money and stress.

    Today, EagerLaw PC is unveiling a new offering, LLC BendLLC Bend is a one-stop, fixed-fee legal service for business owners to get set up quickly and simply. Meet face-to-face with a Bend attorney who understands what it takes to get your business properly set up in our beautiful, entrepreneurial city.

    We’re offering a free consultation to business owners who don’t yet have a business entity in place. Click here to request a consultation. If you already have a legal business entity but know of someone who could benefit from LLC Bend, we would appreciate your referral.

    In addition to LLC Bend, EagerLaw PC continues to offer our full range of business law services, including buying and selling businesses and assets, real property, and employment law.

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  • Special Announcement

    By on May 4, 2016

    I started EagerLaw PC to focus on serving Bend businesses and am committed to helping those who have taken on the risk of business ownership.

    For additional support, I brought on another attorney, Eric Taylor. Eric grew up around a small business, so he is uniquely qualified to appreciate the direct impact business issues have on families. He has diverse experience in both litigation and transactional work, including proven success at trial. His experience allows him to quickly and effectively spot potential legal issues and keep his clients away from legal headaches.

    Eric regularly represents clients in the formation and dissolution of business, choice of entity, employment agreements, severance and release agreements, real property transactions, commercial leases, contract disputes, and various other legal matters.

    Please join me in welcoming Eric to the team.

    Thank you,
    Jeff

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