If you hire employees in Indiana, you need to read this article. On July 1, 2013, a new law came into effect in Indiana regarding the expungment of arrest and conviction records in Indiana. This new law was aimed at allowing people who have been arrested but not convicted and those who have been convicted of certain classes of crimes to have their records expunged and sealed by the Court.
This law affects businesses that hire employees in Indiana in two different ways.

First, the law makes it very clear that employers now have to change the questions they ask on employment applications and in interviews.

Indiana Code § 35-38-9-10 (a) states that it is unlawful discrimination to refuse to employ a person because of conviction or arrest record that has been expunged or sealed under Indiana law. This means that an employer cannot refuse to hire someone due to an arrest or conviction if that arrest or conviction has been expunged or sealed.

Does that mean an employer can still ask about that conviction so long as the employer does not discriminate against them because of it? Well, no… The law goes on to state that, “[i]n any application for employment, a license, or other right or privilege, a person may be questioned about a previous criminal record only in terms that exclude expunged convictions or arrests, such as ‘Have you ever been arrested for or convicted for a crime that has not been expunged by a court?’” See Indiana Code § 35-38-9-10 (c).

Therefore not only can an employer not fire a person for the expunged conviction, they also cannot even ask about the expunged conviction when they hire a person. If an employer is deemed to have discriminated against a person due to an arrest or conviction that has been expunged, that employer commits a class C infraction and can be held in contempt of Court for that action. Further the employer can be enjoined for committing such discrimination. A Class C infraction is punishable by a fine up to $500.00.

Although the law does not state it is an infraction to have the wrong question in the application or during an interview, the statute is clear that the employer cannot discriminate and goes on to state the exact question that may be asked by employers. Therefore a Court will not have to take much of a leap to find that by having the wrong question in the application the employer is discriminating against the person seeking employment. It is strongly advised that employers change their employment application and the questions they ask during interviews to comply with the statute.

The second way employers are affected by this new Indiana law involves with what can admitted as evidence if the employer is sued by a third party for negligence or other fault. The new Indiana law states that in an action for negligent hiring the conviction that has been expunged CANNOT be used as evidence against a person or entity. Here is an example of that situation:

XYZ Property Management Company hires Joe Doe. Joe Doe had a theft conviction on his record but that conviction was expunged. Therefore, when XYZ Property Management hired Joe, Joe did not have to disclose the conviction. One day Joe goes into one of the properties managed by XYZ Property Management and steals jewelry from the occupant. After Joe is caught the owner of the jewelry sues XYZ Property Management alleging negligent hiring of Joe. In that situation the evidence of the expunged conviction CANNOT be admitted as evidence against XYZ Property Management to support the contention that XYZ Property Management was negligent in their hiring of Joe Doe.

The new Indiana law also states that if there is a judicial or administrative proceeding alleging negligence or other fault against an employer, then the order of expungment CAN be introduced by that employer to show that an employer exercised due care hiring or retaining a person who had their record expunged. Here is an example of how this could work:

XYZ Property Management Company hires Joe Doe. Joe Doe previously had a theft conviction on his record but that conviction was expunged. Therefore, when XYZ Property Management hired Joe, Joe did not have to disclose the conviction. One day Joe goes into one of the properties managed by XYZ and steals jewelry from the occupant. After Joe is caught the owner of the jewelry sues XYZ Property Management alleging that XYZ Property Management was negligent in hiring Joe. XYZ Property Management could introduce the expungment to show that they had no reason to know of the conviction.

The bottom line is that this law makes the hiring process a bit more difficult in that employers now have to make sure not to request any information about expunged convictions or arrests. It should be noted that this article is geared toward employers, but the prohibition against discrimination applies in any decision to suspend; expel; refuse to admit; refuse to grant or renew a license, permit or certificate necessary to engage in any activity, occupation or profession; and any other type of discrimination against a person because of an expunged or sealed conviction or arrest record. Therefore the prohibitions against discrimination apply in rental and school applications too.

If you would like more information about the new expungment law or would like to see if your employment application is in compliance with the law, please contact Laura Conway at 317-686-4773 or Conway@indiana-attorneys.com.

There is an old saying that an ounce of prevention is worth a pound of cure. This saying is sometimes forgotten by business owner – especially when looking at the cost of hiring an attorney.

Attorneys are a necessity in today’s business environment. No business would operate without insurance. But many businesses choose to operate without obtaining the advice of an attorney. It is only when something happens, such as a lawsuit, notice that the business has violated some regulation or the other party to a contract fails to keep up their end of the deal that the lawyer is called. By that time though, it is usually too late to prevent the problem and the lawyer comes in at a point where they are required to cure the issue. Attorneys are like insurance in that they know the various issues that can arise with a business and can help a business owner prevent a problem.

Every business is regulated by some law, whether it is a local, state or federal law. The laws and regulations govern everything from how your pay your employees to how your dispose of any hazardous materials. No business is immune from government intervention. Attorneys can help a business navigate the various laws and regulations and come up with a plan to prevent the various penalties that can come from a violation of those laws and regulations.

Contracts are also part of every business. These contracts can range from one year cell phone contracts to ten year leases for offices space to the invoices that the business sends to its customers. Though not all contracts require attorney review, each business owner should consult with their attorney to determine what kinds of contract should be reviewed by an attorney.

Though the list is endless, here are just a few areas that could pose trouble for business owners:

• Employee relations
• Collections
• Rental/Purchase of space

Employee relations

Various issues can develop with employees, including, but not limited to, discrimination claims, workers compensation claims, unlawful firing claims, and wage disputes.

Have a good employee manual and keeping good records of matters regarding your employees are two measures that will go a long way in preventing and/or helping with problems that may occur.

The employee manual serves two main purposes.

First, it serves as a guideline for new and existing employees as to the expectations for their behavior and as to the businesses policies. Employees will not have the ability to claim they did not know what the rules were when the rules are printed in an employee manual that each employee is required to review and sign. Second, the employee manual serves as evidence of the businesses policies if there is a later claim for discrimination or unlawful firing.

Good record keeping helps in preventing and defending against claims of discrimination and unlawful firing. Having a record of when an employee was disciplined and the result of the discipline conversion will go a long way in preventing a claim for discrimination or unlawful firing. Records as to the hours of your employees will help in a defense against a wage claim by both the government and by an ex-employee.

An attorney can help a business owner develop the employee manual and guide the business as to what kinds of records to keep regarding employee matters.

Collections

Finding the customers is only half the battle with a business. The second half is collecting the money that is owed by the customers. Given the nature of some businesses and today’s economy, sometimes a business does not have the ability to collect all the funds for their goods or services up front.

Unless a business collects all its funds up front, it needs to have a solid contract that allows for the collection of interest and attorneys fees in the event the customer does not pay what is owed after the goods or services are provided Also helpful is having consistent collection practices; including credit checks before providing credit to customers, taking deposits on orders over a certain amount, requiring guaranties from individuals when the customer is a business and refusing future orders until past due invoices are paid. Not every strategy will work for every business, therefore, these and other collection strategies should be discussed with an attorney.

When a business does have to collect past due amounts from its customers, having information such as the bank account and social security or EIN numbers is important.  The information will make it easier to collect on any judgment obtained.

Have a lawyer review the contracts and provide guidance as to the information is needed from customers is critical in allowing a business to stay on top of its receivables.

Rental/Purchase of Space

Every business needs space to function, whether it be the owners extra bedroom, an office suite, or a standalone manufacturing facility with multiple buildings and acreage. Whatever space the business is in, it needs to have its attorney review any lease or purchase agreement it enters into with third parties.

For leases, the attorneys’ job is to make sure the business understands the lease it is entering into and the various areas of the lease that may cause trouble for the businesses, such as business hour requirements and extra costs that may be due to the landlord.

If the business is purchasing or selling a building, one of the attorneys’ roles is to make sure the liability of the business is limited in the event there is an issue with the property at a later date. The attorney can also help the business owner determine what inspections and other items are necessary.

In almost every situation, the money spent by a business in having the attorney help it prior to there being a problem will be paid back in the peace of mind gained and the issues that will be prevented in the future.

The attorneys at Thrasher Buschmann & Voelkel, P.C. provide the services discussed in this article as well as well as defense of various claims, collection of past due amounts, and defense against governmental claims.

Asset Protection Planning is not hiding assets or planning to perpetrate a fraud on your creditors.  It is designed to work with full disclosure to your creditors.  It is intended to be a professional, ethical and legal means to decrease the likelihood that your assets could be placed at risk of loss. Asset Protection Planning relies on the laws of Indiana, other states, the United States and sometimes foreign jurisdictions to lawfully provide these protections.  And it is also a part of your overall integrated estate plan.  Asset Protection Planning is generally tax neutral, meaning that when properly implemented it will neither save nor cost you income taxes.

Regardless what you may have heard or read, no Asset Protection Plan is foolproof, and it is unlikely to protect all of your assets from every type of risk. Instead, each technique offers varying degrees of protection.  What a good Asset Protection Plan does is provide you with significantly more protection than you had before you created a plan.

Asset Protection Planning is often accomplished by transferring assets from a less protected form of ownership to a more protected form of ownership.  As a common example, business owners and investors typically own businesses and property through corporations or limited liability companies offering limited liability to the owner, thus protecting the owner from the liabilities of the entity.

Asset Protection Planning is not new and generally is not exotic.  It entails developing strategies and structures uniquely designed to a particular situation and type of risk exposure, often including some of the following techniques:

• Risk Shifting/Avoidance in Contractual Matters
• Insurance (general liability, products liability, premises liability, malpractice, etc.)
• Limited Liability Entities
• Protected Retirement Plans
• Charging Order Protections Offered by LLCs
• Equity Stripping
• For Couples in Indiana, Holding Real Estate as Tenancy by the Entirety
• Domestic and Foreign Limited Liability Companies
• Foreign and Domestic Asset Protection Trusts
• Exemption Planning
• Gifting
• Premarital Agreements
• Certain Types of Trusts Used in Estate Planning

Asset Protection Planning is a vaccine, not a cure.  In other words, in order for most types of Asset Protection Planning to work, the plan must be implemented before a creditor asserts a claim against you.  Once a creditor asserts a claim against you, it is generally too late to implement an Asset Protection Plan.  It is also essential to remember that a generic off-the-shelf solution rarely works, and often do more harm than good.  Instead, the plan should be custom designed to integrate into your business, investments and other circumstances.

If you are interested in learning more about how Asset Protection Planning could benefit you and your family, please do not hesitate to contact Dennis Voelkel, Esq.  at voelkel@indiana-attorneys.com.

Risk is part of everyday life.  In both your business and personal life, you evaluate risk in any relevant decision you make.  Is this car safe?  Is this food healthy?  Will I lose money on this investment?  These are examples of how we analyze risk in our day to day lives.  For the small business owner, there may be less insulation between risk and possible loss than for a peer whose earnings come in the form of a salary paid by a larger corporation.  Hence, considering risk and ways to limit it should be part of the business owners’ regular review of the health and stability of their enterprise.

Marketing and advertising can help a small business focus on growth by finding more clients and creating either a broader or more profound presence in the marketplace.  However, a natural consequence of growth is increased risk exposure.  New clients or customers bring the possibility of financial rewards through serving their needs and sending those clients out to act as future referral sources.  But, that same new customer also represents an additional point of exposure to risk, as does a new vendor, new employee, new business partner, and so on.   A dishonest partner or sloppy employee can destroy a business in a fraction of the time it took to build it.  So, as you think about marketing and growth strategies, it is also important that you balance it with risk management strategies, as well.

Books on the topic of ‘risk management’ fill several shelves at the local bookstore or library.  However, even with all of the available analysis on the topic, good risk management can be accomplished using a basic three-part method; forming and operating a limited liability entity, using third-party insurance, and implementing sound business practices.  While there is no way to eliminate risk associated with running a business, implementing this three-part method will reduce significantly an owner’s personal liability for claims arising against the business.  What follows is a brief analysis of how each part works on its own and together.

Forming and Operating a Limited Liability Entity:

If you are operating a business that interacts with the public in any way, then your business has enough risk exposure to justify forming a limited liability entity.  Put simply, if you are operating a business, you should incorporate.  The primary benefit of forming a limited liability entity is that, when formed properly, state law recognizes that entity as a wholly separate legal ‘person’ distinct and separate from its owners and organizers.  The effect of this ‘legal fiction’ is that when the entity is properly formed, organized, and operated, the claims and liabilities arising against the entity will not pass through to the owners of the entity.  Those liabilities will be attributable to the entity alone.  While there are several forms of limited liability entities, such as S-Corporations, Limited Liability Companies, and Limited Liability Partnerships, each accomplishes the same basic purpose of shielding the personal assets of the entity’s owners from the creditors, judgments, or other obligations of the entity.

Third Party Insurance:

After forming a limited liability entity to shield a business owner against personal liability for business risk, the next step is to pool the business’s risk with other businesses and individuals.  This is done through purchasing insurance.  Buying insurance is the equivalent of purchasing admission into a club where all the other members are risk conscious businesses and individuals.  By agreement a portion of every members’ ‘admission’ is pooled to pay potential claims arising against the members.  If a limited liability entity is a shield protecting business owners from personal liability, third party insurance either funds the legal defense of the entity or pays claims that arise against it.  While limited liability entities protect business owners from losing their personal assets to business claims, third party insurance protects the business from losing business assets to claims.  Using an entity without insurance would make investment and growth of a business a moot point – while the owner’s home, car and personal funds would be shielded by the entity, only one major judgment against the business would wipe out all its assets without the backing of insurance.

Sound Business Practices:

Using sound business practices runs the gamut of sophistication for operating a business; from developing and refining detailed internal safety protocols to using good old-fashioned horse sense.  While incorporation and insurance are reactions to unseen risks, developing good business practices are proactive methods to steer clear of risks before they become liabilities.  So many business practices are industry-specific; it would be impossible to cover all of them for the purposes of this review.  However, some areas which affect almost all businesses are employees, premises, government, vendors, and customers.

For employees, some suggestions are using good screening and hiring practices, uniformly enforcing company employment policies, investing in training, and retention of quality workers.  For premises, some suggestions are complying with local licensing and permitting, keeping the premises safe for customers and employees, and developing a security or loss prevention plan.  Regarding government, know the regulations affecting your industry, especially in the area of taxation.  When dealing with vendors, know the markets for competitive prices, use good written contracts, and take the time to learn about your vendors to develop trust in their product, service and reputation.

Finally, and most importantly, for customers, use several of the previously mentioned techniques such as providing safe premises and using good written contracts where appropriate (or required by law).  But moreover, work to develop and maintain a reputation for excellent customer service.  In the most basic terms – happy customers don’t sue. Though it seems an oversimplification, customers, vendors and employees who are treated with professionalism, respect, patience, and fairness, even in the midst of serious disagreements, are less likely to turn to litigation (or violence!) to resolve the dispute.  While this is entirely within the control of a business owner, it is amazing how frequently it is overlooked.

If you are operating a business, even as a supplement to another job, or are otherwise self-employed and not using the techniques mentioned above, you could be compelled to pay the obligations of the business out of your personal bank account, with your car, a family heirloom, or even your home.  This should be sobering.  If you have employees, are you able to monitor them at all times?  If you are monitoring them at all times, why are you doing so?  The point of hiring others to assist you is to delegate responsibility so you can do other tasks.  Because you cannot be two places at once and may not be able to prevent an accident even if you could, you should implement these basic risk avoidance techniques.  Develop relationships with qualified insurance, accounting, and legal professionals.  Fortune 500 companies have insurance, accounting and legal departments; you should not act differently.   In doing so you will be on your way to minimizing risk, protecting personal assets, and improving your business’s chance for future success.  And you might find some peace of mind in the process.