Summary Week 6 Preparing the Proper Ethical
and Legal Foundation
Establishing a Strong Ethical Culture for a
Firm
One of the most important things the founders of an
entrepreneurial venture can do is establish a strong ethical culture for their firms.
The data regarding business ethics are both encouraging and discouraging. The
most recent version of the National Business Ethics Survey was published in
2013. According to the survey, 41 percent of the 6,420 employees surveyed
reported that they had observed misconduct or unethical behavior in the past
year. Of the employees who observed misconduct, 63 percent reported their
observation to a supervisor or another authority in their firm. While the
percentage of employees who have observed misconduct or unethical behavior (41
percent) is discouraging, it’s encouraging that 63 percent of employees
reported the behavior. Support, trust, and transparency also make a difference.
In analyzing the results of its survey, the Ethics Resource Center concluded
that the most important thing an organization can do to combat ethical
misconduct is to establish a strong ethical culture. But strong ethical
cultures don’t emerge by themselves. It takes entrepreneurs who make ethics a
priority and organizational policies and procedures that encourage ethical
behavior (and punish unethical behavior) to make it happen. The following are
specific steps that an entrepreneurial organization can take to build a strong
ethical culture.
Lead by Example
Leading by example
is the most important thing that any entrepreneur, manager, or supervisor can
do to build a strong ethical culture in their organization. In strong ethical
cultures, entrepreneurs, managers, and supervisors:
■ Communicate ethics as a priority
■ Set a good example of ethical conduct
■ Keep commitments
■ Provide information about what is going on
■ Support following organizational standards
Employees also
have responsibilities. The most important things that employees can do to
support a strong ethical culture in an organization are to:
■ Consider ethics in making decisions
■ Talk about ethics in the work (they) do
■ Set a good example of ethical conduct
■ Support following organizational standards
Establish a Code of Conduct
A code of
conduct (or code of ethics) is a formal statement of an organization’s
values on certain ethical and social issues. The advantage of having a code of
conduct is that it provides specific guidance to entrepreneurs, managers, and
employees regarding expectations of them in terms of ethical behavior. Other
codes of conduct set out more general principles about an organization’s
beliefs on issues such as product quality, respect for customers and employees,
and social responsibility. In all cases though, codes of conduct are intended
to influence people to behave in ways that are consistent with a firm’s ethical
orientation.
Implement an Ethics Training Program
Firms also use
ethics training programs to promote ethical behavior. Ethics training
program teach business ethics to help employees deal with ethical dilemmas
and improve their overall ethical conduct. An ethical dilemma is a
situation that involves doing something that is beneficial to oneself or the
organization, but may be unethical. Most employees confront ethical dilemmas at
some point during their careers. Ethics training programs can be provided by
outside vendors or can be developed in-house.
Dealing
Effectively with Legal Issues
Those leading
entrepreneurial ventures can also expect to encounter a number of important legal
issues when launching and then, at least initially, operating their firm.
Choosing an Attorney for a Firm
It is important
for an entrepreneur to select an attorney as early as possible when developing
a business venture. Selecting an attorney was instrumental in helping Tempered
Mind, the company profiled in the opening feature, establish a firm legal
foundation. It is critically important that the attorney be familiar with
start-up issues and that he or she has successfully shepherded entrepreneurs through
the start-up process before. It is not wise to select an attorney just because
she is a friend or because you were pleased with the way she prepared your
will.
Drafting a Founders’ Agreement
If two or more
people start a business, it is important that they have a founders’ (or
shareholders’) agreement. A founders agreement is a written document
that deals with issues such as the relative split of the equity among the
founders of the firm, how individual founders will be compensated for the cash
how long the founders will have to remain with the firm for their shares to
fully vest.
Avoiding Legal Disputes
Most legal
disputes are the result of misunderstandings, sloppiness, or a simple lack of
knowledge of the law. Getting bogged down in legal disputes is something that
an entrepreneur should work hard to avoid. It is important early in the
life of a new business to establish practices and procedures to help avoid
legal disputes. Legal snafus, particularly if they are coupled with management
mistakes, can be extremely damaging to a new firm. There are several steps
entrepreneurs can take to avoid legal disputes and complications :
Meet All Contractual Obligations
It is important to
meet all contractual obligations on time. This includes paying vendors,
contractors, and employees as agreed and delivering goods or services as
promised. If an obligation cannot be met on time, the problem should be
communicated to the affected parties as soon as possible.
Avoid Undercapitalization
If a new business
is starved for money, it is much more likely to experience financial problems
that will lead to litigation. A new business should raise the money it
needs to effectively conduct business or should stem its growth to conserve
cash.
Get Everything in Writing
Many business
disputes arise because of the lack of a written agreement or because poorly
prepared written agreements do not anticipate potential areas of dispute. Although
it is tempting to try to show business partners or employees that they are
“trusted” by downplaying the need for a written agreement, this approach is
usually a mistake. Disputes are much easier to resolve if the rights and
obligations of the parties involved are in writing.
Set Standards
Organizations
should also set standards that govern employees’ behavior beyond what can be
expressed via a code of conduct. When legal disputes do occur, they can often
be settled through negotiation or mediation, rather than more expensive and
potentially damaging litigation. Mediation is
a process in which an impartial third party (usually a professional mediator)
helps those involved in a dispute reach an agreement.
Obtaining
Business Licenses and Permits
Many businesses
require licenses and permits to operate. Depending on the nature of the business,
licenses and permits may be required at the federal, state, and/or local
levels. There are three ways for those leading a business to determine the
licenses and permits that are necessary. The first is to ask someone who is
running a similar business, and they will usually be able to point you in the
right direction. The second is to contact the secretary of state’s office in
the state where the business will be launched. The third is to use one of the
search tools available online. The following is an overview of the
licenses and permits that are required in the United States at the federal,
state, and local levels for business organizations.
Federal Licenses and Permits
Most businesses do
not require a federal license to operate, although some do. Seemingly simple
businesses sometimes require more licenses and permits than one might think.
State Licenses and Permits
In most states,
there are three different categories of licenses and permits that you may need
to operate a business. Most states have start-up guides that walk you through
the steps of setting up a business in the state.
Business Registration Requirements
Some states
require all new businesses to register with the state. For example, the State
of Oklahoma requires new businesses to complete a document titled “Oklahoma
Business Registration Application” prior to commencing business. The
purpose of the document is to (1) register the business, (2) place the business
on the radar screen of the tax authorities, and (3) make sure the business is
aware of and complies with certain regulations, such as the need to withhold
state and federal taxes from the paychecks of employees.
Sales Tax Permits
Most states and
communities require businesses that sell goods, and in some cases services, to
collect sales tax and submit the tax to the proper state authorities. If you’re
obligated to collect sales tax, you must get a permit from your state. Most
states have online portals that make it easy to obtain a sales tax permit.
Professional and Occupational Licenses and Permits
In all states,
there are laws that require people in certain professions to pass a state
examination and maintain a professional license to conduct business. Examples
include barbers, chiropractors, nurses, tattoo artists, land surveyors, and
real estate agents.
Local Licenses and Permits
On the local level, there are two
categories of licenses and permits that may be needed. The first is a permit to
operate a certain type of business. Examples include child care, barber shops
and salons, automotive repair, and hotels and motels. The second category is
permits for engaging in certain types of activities. Examples include the
following:
■ Building permit: Typically required if you are
constructing or modifying your place of business
■ Health permit: Normally required if you are involved
in preparing or selling food
■ Signage permit: May be required to erect a sign
■ Street vendor permit: May be required for anyone
wanting to sell food products or merchandise on a city street
■ Sidewalk cafĂ© permit: May be required if tables and
chairs are placed in a city right-of-way
■ Alarm permit: Sometimes required if you have
installed a burglar or fire alarm
■ Fire permit: May be required if a business sells or
stores highly flammable material or handles hazardous substances
Choosing a
Form of Business Organization
When a business is
launched, a form of legal entity must be chosen. Sole proprietorships,
partnerships, corporations, and limited liability companies are the most common
legal entities from which entrepreneurs make a choice. Choosing a legal entity
is not a one-time event. As a business grows and matures, it is necessary to
periodically review whether the current form of business organization remains
appropriate.
Sole Proprietorship
The simplest form
of business entity is the sole proprietorship. A sole proprietroship is
a form of business organization involving one person, and the person and the
business are essentially the same. Sole proprietorships are the most prevalent
form of business organization. The two most important advantages of a sole
proprietorship are that the owner maintains complete control over the business
and that business losses can be deducted against the owner’s personal tax
return.
Advantages of a Sole Proprietorship
■ Creating one is easy and inexpensive.
■ The owner maintains complete control of the business
and retains all the profits.
■ Business losses can be deducted against the sole
proprietor’s other sources of income.
■ It is not subject to double taxation (explained
later).
■ The business is easy to dissolve.
Disadvantages of a Sole Proprietorship
■ Liability on the owner’s part is unlimited.
■ The business relies on the skills and abilities of a
single owner to be successful. Of course, the owner can hire employees who have
additional skills and abilities.
■ Raising capital can be difficult.
■ The business ends at the owner’s death or loss of
interest in the business.
■ The liquidity of the owner’s investment is low.
Partnerships
If two or more
people start a business, they must organize as a partnership, corporation, or
limited liability company. Partnerships are organized as either general or
limited partnerships.
General Partnerships
A general
partnership is a form of business organization where two or more people
pool their skills, abilities, and resources to run a business. The primary
advantage of a general partnership over a sole proprietorship is that the
business isn’t dependent on a single person for its survival and success.
Advantages of a General Partnership
■ Creating one is relatively easy and inexpensive
compared to a corporation or limited liability company.
■ The skills and abilities of more than one individual
are available to the firm.
■ Having more than one owner may make it easier to
raise funds.
■ Business losses can be deducted against the partners’
other sources of income.
■ It is not subject to double taxation (explained
later).
Disadvantages of a General Partnership
■ Liability on the part of each general partner is unlimited.
■ The business relies on the skills and abilities of a
fixed number of partners. Of course, similar to a sole proprietorship, the
partners can hire employees who have additional skills and abilities.
■ Raising capital can be difficult.
■ Because decision making among the partners is shared,
disagreements can occur.
■ The business ends at the death or withdrawal of one
partner unless otherwise stated in the partnership agreement.
■ The liquidity of each partner’s investment is low.
Limited Partnerships
A limited
partnership is a modified form of a general partnership. The major
difference between the two is that a limited partnership includes two classes
of owners: general partners and limited partners. There are no limits on the
number of general or limited partners permitted in a limited partnership.
Similar to general partnerships, most limited partnerships have partnership
agreements. A limited partnership agreement sets
forth the rights and duties of the general and limited partners, along with the
details of how the partnership will be managed and eventually dissolved.
Corporations
A corporations is
a separate legal entity organized under the authority of a state. Corporations
are organized as either C corporations or subchapter S corporations.
C Corporations
A C
corporation is a separate legal entity that, in the eyes of the law, is
separate from its owners. In most cases, the corporation shields its owners,
who are called shareholders, from personal liability for the debts and obligations
of the corporation. A corporation is governed by a board of directors, which is
elected by the shareholders. Most C corporations have two classes of stock:
common and preferred. Preferred stock is
typically issued to conservative investors who have preferential rights over
common stockholders in regard to dividends and to the assets of the corporation
in the event of liquidation. Common stock is
issued more broadly than preferred stock. The common stockholders have voting
rights and elect the board of directors of the firm. The common
stockholders are typically the last to get paid in the event of the
liquidation of the corporation; that is, after the creditors and the preferred
stockholders.
Advantages of a C Corporation
■ Owners are liable only for the debts and obligations
of the corporation up to the amount of their investment.
■ The mechanics of raising capital is easier.
■ No restrictions exist on the number of shareholders,
which differs from subchapter S corporations.
■ Stock is liquid if traded on a major stock exchange.
■ The ability to share stock with employees through
stock option or other incentive plans can be a powerful form of employee
motivation.
Disadvantages of a C Corporation
■ Setting up and maintaining one is more difficult than
for a sole proprietorship or a partnership.
■ Business losses cannot be deducted against the
shareholders’ other sources of income.
■ Income is subject to double taxation, meaning that it
is taxed at the corporate and the shareholder levels.
■ Small shareholders typically have little voice in the
management of the firm.
Subchapter S Corporation
A subchapter
S corporation combines the advantages of a partnership and a C
corporation. It is similar to a partnership in that the profits and losses of
the business are not subject to double taxation. The subchapter S corporation
does not pay taxes; instead, the profits or losses of the business are passed
through to the individual tax returns of the owners. An S corporation is
similar to a C corporation in that the owners are not subject to personal
liability for the behavior of the business. An additional advantage of the
subchapter S corporation pertains to self-employment tax. By electing the
subchapter S corporate status, only the earnings actually paid out as salary
are subject to payroll taxes. The ordinary income that is disbursed by the
business to the shareholders is not subject to payroll taxes or self-employment
tax.
Limited Liability Company
The limited
liability company (LLC) is a form of business organization that is rapidly
gaining popularity in the United States. As with partnerships and corporations,
the profits of an LLC flow through to the tax returns of the owners and are not
subject to double taxation. The main advantage of the LLC is that all partners
enjoy limited liability. This differs from regular and limited partnerships,
where at least one partner is liable for the debts of the partnership. The LLC
combines the limited liability advantage of the corporation with the tax advantages
of the partnership.
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