Making It Legal:

Did you know that yesterday was Law Day? I suppose that for many of you, the day passed with nary a whiff of the incredible celebrations to be had. Parades in the street! Inspirational speeches! Revelry! Bar associations around the country use it as a day to celebrate community and the importance that law plays in it.

50 years ago, May 1 was designated by a joint resolution of Congress as the official date for celebrating Law Day. Originally established by President Dwight D. Eisenhower (by proclamation), Law Day is a national day set aside to celebrate the rule of law and how the legal process contributes to the freedoms that all Americans share.

Before you start to tear your hair out about the ways that laws have complicated your life, take a moment to think about the ways that law has made our society great. People from all over the world risk life and limb, and leave their families behind, to come here. Laws contribute to this being the “land of opportunity.”

Law Day is not just a day to make lawyers feel good about themselves–if you think about what the world was like in 1958, when Law Day was first established, we had emerged from the ashes of World War II, seen two wars in the Middle East, gone in and out of Korea and watched the French get defeated in Vietnam. The U.S. Supreme Court case Brown v. Board of Education (”separate does not mean equal”) had been decided only a few years before and opened the door to significant social change in this country. Law was (and can still be) a way of righting a terrible imbalance of tyranny and unfairness.

We may debate whether laws are wise, necessary or fair, but few would dispense with them altogether. We use laws both to provide our freedoms and to protect our freedoms.

And now, I’m free to get off my soapbox and enjoy the rest of the day!

You may have had these nasty tidbits enter your inbox: e-mails that seem to come from reputable companies (I got a host of them from “Citibank”) that tout the anti-hacking and identity-theft measures they’re taking. “In order to ensure your security, we need you to verify your contact information by clicking on the link below… etc.” The logo seems in order; it’s written in that “I want to be friendlybut I’m too stiff because my legal and compliance departments were-all over this letter” tone. You are (or at least think you were, at some point), a customer. Makes sense that you should receive it. So you click.

Sadly, all too many people and companies find that, upon doing so, they’ve been “phished.” “Phishing” (according to Webopedia) is a term that means “the act of sending an e-mail to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.” The U.S. Senate has recognized the problem, and Sen. Olympia Snowe (R-ME) recently introduced legislation to provide the Federal Trade Commission with authority to enforce the prohibition against phishing (Of course, whether it authorizes the funding to pay for the enforcement is another matter). (See S. 2661 in the 110th Congress, 2nd session).

Highlights of the Anti-Phishing Consumer Protection Act of 2008 include:

• Prohibiting deceptive domain names (this means using a name like “Citidank” and posing as a banking institution);
• Prohibiting domain name registrars from interfering with efforts to discover the identity of “phishers” who have obtained deceptive domain names;
• Allowing all state attorneys general, aggrieved trademark holders and affected internet service providers to bring lawsuits against the culprits (note, though, individual lawsuits are not expressly permitted, and it would probably be too costly for an individual to investigate and bring a lawsuit against a “phisher”); and
• Restricting damages from exceeding $2 million (except in special circumstances).

The moral of the story: Don’t click on everything you see. Confirm all requests for private information by telephone–and do not use the number you see in that e-mail (it, too, could be a scam). Ask that the request be sent to you by “snail” mail.

Whatever I may want to say about the current occupant of the Oval Office and those seeking to sit in his chair, I wouldn’t want the job. Not for a million squillion dollars. Whether it’s brass balls or sheer insanity that makes people want the post, I’ll tip my hat to them for tenacity and courage. My life couldn’t withstand such intense scrutiny (thank God there was no Facebook when I was in college!).

So, in honor of the day, and the people who have served (and will serve) in the office of president of the United States (POTUS), here are some tidbits about the job and how it works:

• Who were all the presidents?
• Qualifications for the office
• The executive branch and Cabinet
• Duties and powers
• The Electoral College
• History of the White House and video tours (with the president as tour guide!)

As reported in the San Francisco Sentinel, the U.S. government will suspend its legal defense of a new rule issued in August to penalize employers who hire illegal immigrants, according to government papers filed late Friday in federal court. Court papers asked the judge to delay the case until March 24 or until a new program is ready.

Instead, the administration plans to revise the rule to try to meet concerns raised by a federal judge and issue it again by late March, hoping to pass court scrutiny on the second try. The rule would have forced employers to fire workers within 90 days if their Social Security information could not be verified.

The government’s proposal was a response to an indefinite delay to the rule ordered Oct. 10 by the judge, Charles R. Breyer of U.S. District Court in San Francisco. Judge Breyer found that the government had failed to follow proper procedures in issuing the rule and that it should have completed a survey of its impact on small business. As noted in the Seattle Times, his ruling effectively barred the government from mailing Social Security “no-match” letters to 140,000 U.S. employers, citing serious legal questions about requiring companies to resolve questions about their employees’ identities, fire them within 90 days or face potential fines and criminal prosecution.

The New York Times further pointed out that Breyer found that the Social Security database the government would use to verify workers’ status was full of errors, so the rule could lead to the dismissal of many thousands of workers who are American citizens or legal immigrants.

It’s never easy being a small business.  It’s hard enough to qualify for venture capital funding . . . and yet receiving it could disqualify you from other small business incentives through the Small Business Administration and other government programs.  It’s a “damned-if-you-do-damned-if-you-don’t” conundrum.

According to a recent report in the New York Times, Jason Altmire, a member of the U.S. House of Representatives (D-PA) proposed the Small Business Expansion Act of 2007  to enable small businesses to qualify for federal research grants without being penalized for accepting venture capital money.  VC funds are crucial for companies in the biotechnology arena, for example, that typically take years to generate revenues, which means they often have difficulty getting bank loans.   Venture capital can mean the difference between survival and failure.  

The White House and the Small Business Administration are critical of the bill.  They cite the concern that the legislation will give VC firms “them the potential to masquerade as small firms and tap into billions of dollars in federal research grants and contracts” — which are supposed to be set aside for “true” small businesses.

The legislation passed the House of Representatives at the end of September.  It has been sent to the Senate, where it was referred to the Committee on Small Business and Entrepreneurship — which (go figure) has both a Democrat site and a Republican site (don’t get me started on why the American taxpayer needs to pay for two sites to the same committee).

Billions of dollars in small federal contracts could be opened to small businesses if the Small Business Administration (SBA) prevails in a dispute with the General Services Administration (GSA).  According to a report on Associated Content, the SBA has ruled that, under the Small Business Act, the GSA needs to set aside contracts valued between $3,000 and $100,000 for small businesses.  A copy of the decision can be found at http://www.fitnet.net/FPA/Press/SBA%20Opinion.pdf.  Not surprisingly, the GSA disagrees.    According to a report from the Washington Bureau of Bizjournal.com, the GSA contends that if all orders under $100,000 have to be set aside for small businesses, medium-sized businesses and large businesses effectively would be eliminated from the program. “Not only would this reduce competition and increase costs to agencies, it would also negatively impact those small businesses who are part of large business subcontracting plans or who participate in teaming arrangements with large and medium-size businesses,” GSA wrote in response to SBA’s opinion. The founder of the Fairness in Procurement Alliance, small business advocate Raul Espinoza, disagrees.  He thinks all exemptions from small set-aside requirements should be eliminated from federal contracting.  “The exemptions are directly responsible for having excluded, illegally, $640 billion in federal contracts over the last decade from small and minority businesses,” he said. 

Do you have (or want) to do business with the federal government?  Are you thinking of merging your company with another?  If so, check out the new U.S. Small Business Administration (SBA) rules on small business size that went into effect on June 30th. 

As reported in Law.com, to ensure that a certain percentage of federal contracts go to “smallâ€? businesses, the federal government has (not surprisingly) a veritable thicket of rules and regulations on what constitutes “small.â€?  Unfortunately, the answer depends on the federal program — it’s not the same or straightforward answer every time. 

And now the rules have changed, so that companies that have long-term prime federal contracts (not subcontracts) in place will need to recertify their “smallness� within 4 months of the end of the fith year of their contract.  Obviouly, a merger with another company could move your business from small to “too large to qualify for this contract.� 

Subcontractors beware:  the rule doesn’t yet apply to you, but it could, soon.  The SBA has indicated it may issue a separate rule imposing recertification requirements for subcontractors. Visit the Federal Register’s website for the recertification regulation. 

If you’re at all interested in doing business with government entites, don’t go it alone.  It’s a potentially lucrative, but paperwork-heavy area.  Seek assistance from certification providers like the National Women’s Business Owner Council, and organizations like the SBA so that you’re sure you do it right!

There are so many reasons not to smoke:  it’s bad for your lung health, bad for your brain activity, socially undesirable, a danger to others . . . and, it’s largely illegal in the workplace. In many states and counties around the country, smoking is banned in the workplace.  And the fines are not insignificant for small businesses:  sometimes as high as $1000 per day, plus ongoing fines for each day that the violation coninues.   In addition, while there used to be a “you-can-do-it-if-your-office-door-is-closed” loophole in some laws, that loophole is slowly closing . . . around smoker’s necks.  As people become more aware of the effects of second-hand smoke, and as they realize that smoke — like air itself — is not hermetically sealed behind a closed door, the closed door rationale no longer holds weight. So, the next time you’re tempted to light up in your workplace, think of your employees, and do the math:One pack of Marlboro Gold (f/k/a Marlboro Lights) — $7.00