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Chamber members learn how to protect businesses

By Maria Jose Subiria

msubiria@news-daily.com

Follow the rules, and be thorough, in order to protect and maintain a successful business, members of the Clayton County Chamber of Commerce were told Monday.

Winston Denmark, an attorney at Fincher Denmark & Williams LLC, who spoke during the Chamber's IBM Southeast Employees' Federal Credit Union Business to Business Luncheon, told attendees they must stay on the right path to ensure that both their personal and business assets are kept safe from partners and employees -- or former partners and former employees -- who have grievances against them or seek to compete against them. Denmark said employers should protect themselves, and their businesses, especially now, during a severe economic recession.

His remarks were made at Kaiser Permanente, 2400 Mt. Zion Parkway, Jonesboro. The event's topic was: "Effective Payroll Strategies: Creating New Opportunities for Your Business."

"If you're in business right now, there are people looking to sue you," he said. "Your corporate assets are not the only thing they'll go after. Personal assets, college-fund assets for your kids, and anything you have" can be a target, he advised.

For Denmark, it is important for a small business owner to organize his or her business correctly. It is critical, he said, that many busiensses be Limited Liability Corporations, or LLCs. The LLC guards the business owner from personal liability in the corporation's debts.

When filing for a LLC, an employer deals with the Georgia Office of the Secretary of State, he said, and is required to file a number of forms. According to Denmark, the Secretary of State's office asks an individual to generate numerous documents, such as articles of organization. As a result, he said, some people find it useful to have an attorney assistant them in that process.

Denmark said, after LLC status is obtained, the business owner generally opens business bank accounts, and makes sure all leases and contracts are in the company's name, not the individual's.

"The goal is that a company is fully separate from the individual," he said.

Another factor employers need to be aware of, is when to hire someone as a contractor or as a permanent employee. When choosing to hire a contracted employee, he said, one must have in mind a specified term of employment, or a specified task. "A regular employee is hired permanently, and there are no limits to time," he said. "They fill out W2 forms. A contractor fills out a 1099 form, and is an independent employee. It's very fact sensitive."

According to Denmark, Georgia employees have few rights under at-will employment status, though there are plenty of employers in the United States who offer their employees protection.

"They can be wrong for firing you, it doesn't' matter," Denmark said. "They can't, [however], fire you under federal [protective] laws, such as on ethnicity, race or sexual origin [gender]."

Business owners can also protect their assets and business dealings from a hired, contract employee to prevent that employee from competing against them. According to Denmark, it is essential that an employer has Noncompete, and Nondisclosure agreements with contracted employees. This, he said, prevents the employer from losing its employee to its business partner or client. It also protects the employer from having valuable information disclosed to its client by the contractor.

Denmark said employers can modify the at-will employment status by specifying the cause of termination in a contract or similar form. If an employer wishes to keep the at-will employment status, he or she must be careful on the wording used.

"You can do this [Noncompete and Nondisclosure agreement] at any point during the employment," said Denmark. "You can make them stop working with your client, if they deny signing the Noncompete agreement."

Denmark has been with Fincher Denmark & Williams LLC since 2004, and according to the law firm's web site, has worked with, and provided advise to, government officials on several levels.