Startup & Small Business Legal Checklist

Dear Founder,

Starting a business can be overwhelming, scary, and exciting. Welcome to the club. We know that you will be working hard to get your business launched. Maybe you just have an idea, a side gig, or you’ve taken a big leap to create your dream job. Ideally, you want to protect everything you have created to the best of your ability. Summit Law Solutions created this checklist to help you start on the right path with your legal affairs. This checklist is ideal for entrepreneurs, people forming a small company, or a new business venture where the ownership will be divided by no more than a few people.

This checklist is a starting point for beginning (or continuing) your new business. Your business is unique and it may require some additional legal advice. There are a lot of elements to starting a new business venture. Take it one step at a time. Please don’t freak out about how much information is on this checklist. Consider having a conversation with an attorney to prioritize and strategize on your goals.

This list is not exhaustive by any means, but it is a starting point on your business journey. You may also want to revisit many of these sections in this checklist because as your business evolves, what you need to do may change. Just like many things in life and business, in the legal world, there is no such thing as reaching the finish line.

This tool is meant to offer a helpful starting point. After all, who doesn’t love lists? Here’s to crossing off your to-do list.

Cheers,
Adrienne Fischer, Esq.

 

BEFORE STARTING A BUSINESS

Think about your goals for how you want things to end before you start your business. For example, do you want a family member to take it over when you’re gone? What happens when one partner or both want out of a partnership? Is your goal to sell the business for a profit, merge with a bigger company, grow to have employees? If you can identify, the answers to these questions before you begin – you will be ahead of the game.

Business Plan. Your business plan is your roadmap. Some banks and investors will want to see this, if you plan to raise capital, open a business bank account, etc. Your business plan holds the keys to your kingdom, so you don’t want it in the hands of competitors. If you need early reviews or assistance by people you don’t know well, get them to sign a Non-Disclosure agreement. (See below)

  • Pick a name. This is not only essential for marketing and branding, but it is also so VERY important to do an extensive name search before you start. I have seen too many businesses have to change all their signs, websites, marketing campaigns, and everything else because they didn’t do a thorough name search.

 

FORMING A BUSINESS

  1. Choosing Business Structure –There are many forms of legal structure you may choose for your business. Each legal structure offers organizational options with different tax and liability issues. You should research each legal structure thoroughly and consult a tax accountant and/or attorney prior to making your decision.

Select One:

  • Sole Proprietor
  • Partnership (Limited or General?)
  • LLC
  • Corporation
  • S-Corp

 

  1. Getting your paperwork in order:
    Once you have chosen an entity it’s time to comply with the state and federal requirements for that specific entity.

Sole Proprietorships: A sole proprietorship offers the least amount of complication in terms of start-up requirements for the different business organizations (i.e. corporation, partnership, etc.). But at the same time, sole proprietors are exposed to personal liability for debts and court judgments.

Business Insurance
Register your name (“DBA’s”)
Obtain business licenses and permits

Partnerships:

Partnership Agreement (Partnerships) – Some things to consider are: Who owns what? How much? Ending a partnerships and survivorship. How will you decide on new partners? What if there is an impasse?

  • Business Insurance
  • Obtain licenses and permits

 

Limited Liability Company (LLC):

  • Complete a thorough business name search of the web, Secretary of State website.
  • Register your LLC with the Secretary of State, if applicable. Note: in Colorado, the filing fee for a single member LLC is $50.
  • Create an Operating Agreement
  • Organizational Resolution
  • Create bylaws, if applicable (Corporations)
  • Identify an agent for service of process
  • Obtain an EIN number from the IRS
  • File S-Corp paperwork (IRS Form 2553) with IRS, if you want to be an LLC and treated as an S-Corp for tax purposes.

 

S-Corporation:

  • Complete a thorough business name search of the web, Secretary of State website.
  • Register your Corporation with the Secretary of State, if applicable.
  • Create an Operating Agreement
  • Organizational Resolution
  • Create bylaws, waivers, annual meetings, and offers to purchase stocks
  • Identify an agent for service of process
  • Obtain an EIN number from the IRS
  • File S-Corp paperwork (IRS Form 2553) with IRS, if you want to be an LLC and treated as an S-Corp for tax purposes.
  • Identify one class of stock
  • Have a discussion with your CPA to make sure you know what you need for tax time.
  • Contact the state tax board for information about state taxes and obtaining a state tax number
  • Issue Stock (make sure consideration paid)
  • Check securities compliance
  • Sign all documents and place in a minute book

 

C-Corporations

  • File Articles of Organization with the Secretary of State
  • Create bylaws, if applicable (Corporations)
  • Identify an agent for service of process
  • Obtain an EIN number from the IRS
  • Business Insurance (General liability, products and completed operations, “key man” or life insurance, board of directors, business interruption, worker’s compensation and property are some examples of insurance you may consider)
  • Obtain any necessary business licenses
  • Identify local rules and compliance issues
  • Keep all of your business documents together. You can use a binder for easy reference to these documents.
  • Incorporator’s Statement (Corp only)
  • Bank resolution (Corp only)
  • Stock Certificates
  • Corporate Seal
  • Stock Ledger
  • Complete bill of sale for publicly trades stock
  • Obtain necessary business licenses
  • Obtain a state identification number
  • Identify local rules and compliance issues
  • Business Insurance (General liability, products and completed operations, “key man” or life insurance, board of directors, business interruption, worker’s compensation and property are some examples of insurance you may consider)
  • Sales Tax Exemption Certificate, if you sell products.
  • Keep all of your business documents together. You can use a binder for easy reference to these documents.

 

HIRING EMPLOYEES OR INDEPENDENT CONTRACTORS

Did you know there are many factors to determine whether you’re actually hiring an independent contractor or an employee? The earlier you decide which path you plan to take, the better. Many business owners accidently misclassify their employees as independent contractors. This can result in some pretty serious financial consequences. If you’re going to hire someone, make sure you’ve covered your bases. Your accountant will thank you later.

  1. Interns
  • Decide paid or unpaid (When choosing an unpaid intern, be mindful that there are certain criteria your business must meet to hire unpaid interns. Businesses can face fines or issues if using unpaid interns for the wrong reasons. Consider hiring interns through your local university. Most universities suggest at least minimum wage.)
  • Make sure you comply with any and all university rules plus federal and state laws
  • Check to see if there are applicable withholding taxes
  • Intern Agreement

 

  1. Independent Contractors

An independent contractor must meet certain criteria to not be misclassified as an employee. There are many factors that vary from state to state and the IRS has its own set of factors too. Check out the Department of Labor in your state for more information.

  • W-9
  • Independent Contractor Contract
  • Verify work-status
  • Non-Compete Agreement
  • Non-Disclosure Agreement

 

  1. Employees
  • Assess tax consequences
  • Employee Insurance
  • Worker’s Compensation
  • Payroll (Quickbooks, Accountant or Professional Employers Organization (PEO)
  • Interviewing procedures and protocols (What can I legally ask a potential employee?)
  • Verify employee eligibility (Check social security cards, e-verify, comply with IRCA)
  • Employment contract
  • Non-compete Agreement
  • Non-disclosure Agreement
  • Arbitration and mediation agreement signed by employees
  • Comply with Health and Safety Code (OSHA policies)
  • Develop the following policies:
  • Performance Assessment Plan
  • Non-discrimination policies
  • Vacation and sick leave
  • Sexual harassment
  • Employee handbook

 

CONTRACTS

Some people still try to operate on a handshake. In the legal world, he who has the stuff written down wins. Always get it in writing. I know you’ve known this person since kindergarten, but just write it down. Please.

  • Are all of company’s contracts in writing? (Engagement letters, vendor agreements, service agreements, etc.)
  • Do the contracts provide for disputes to be settled in or out of court in the state where the company’s principle place of business is located. Do not let this point slide in your contract negotiations. You will want to have the “Governing Law” to be in the county of your business headquarters.
  • Non-Disclosure Agreements (Used when speaking to perspective vendors, employees, business partners or anyone that you are disclosing proprietary or business information.

 

INTELLECTUAL PROPERTY CONSIDERATIONS

Intellectual Property for Startups encompasses patents, trademarks, copyrights and more. A large portion of your competitive advantage and your potential value to investors is the size and clarity of your intellectual property startup portfolio. Be sure to address these IP portfolio items before you start looking for funding.

  1. IP Strategy Basics
  • Company name. The company name becomes your intellectual property at the moment you incorporate your startup as a LLC or a Corporation. Sole proprietorships need to trademark the name to protect it. Select it well – marketers will tell you that you will be selling your name, more than your products.
  • Internet domain name. This name is just as critical as the company name, and the two should match as nearly as possible.
  • Social media accounts. Immediately go to relevant social media sites (Facebook, Twitter, Instagram) and grab the same name, even if you never plan to use the accounts. These days, every business needs a blog, so sign up your domain names accounts on TypePad, WordPress, and Blogger, or all of the above, before someone starts blogging in your name.
  • Trade secrets-Customer or consumer profiles, pricing data, business plans, financial data and forecasts, manufacturing techniques, design manuals, survey and research data, employee knowledge, and source code.

 

  1. Trademarks

Trademarks are words, symbols, logos, slogans or product packaging and design that identify the source of goods or services. The Coca-Cola logo is one of the more famous trademarks. Trademarks serve to build brand awareness and business goodwill. Make sure you do a trademark search with your business name so the name you choose doesn’t end up infringing.

  • Conduct extensive trademark search
  • File for a trademark with the USPTO
  • File a trademark at the state level, if necessary

 

  1. Copyrights

Copyrights apply to things like written materials, photographs, illustrations, computer software, music, film/video, and website content.

  • Copyright Registration necessary materials with the U.S. Copyright Office

 

  1. Patents

Remember that ideas cannot be patented, only novel implementations. But the application or provisional application has to be registered before you disclose the details to investors or consumers, or the implementation will be deemed un-patentable.

  • Obtain necessary patents.

 

WEBSITE CONSIDERATIONS

Do you have a website for your business? Some of the most important documents you can create are privacy policies, disclaimers, and Term of Service. Without these three you could find yourself facing some serious lawsuits that could have easily been prevented.Essentially, what these are, are documents that dictate the relationship between your business and consumers. It serves to limit any of your responsibility if something goes wrong when using one of your products or services. These documents should be easy to locate on your website. If you’ve got a website then you need to create an agreement that outlines the responsibilities of the consumer once they start using your website. Trust us on this, taking these precautionary measures can save you a world of hurt.

  • Terms of Service
  • Privacy policy
  • Disclaimers

 

MAINTENANCE

These are just some things to consider as you’re are going along in your business.

  • Maintain separate bank accounts for your business and personal matters.
  • Consider getting a credit card in your business’ name
  • File Statements of Information with the Secretary of State annually
  • Review policies, procedures, and organization structure once a year.
  • File taxes for your business
  • Maintain ledgers with all transfer of stock
  • Check compliance with securities laws
  • Annual meeting requirements vary state to state
  • Anything else that will keep you in good standing with Secretary of State

 

Disclosure: This checklist does not create an attorney-client relationship between you and Summit Law Solutions, and does not offer this as legal advice. It’s provided for informational and educational purposes, that will enable you to get started on some basic business protocols that are necessary to achieve your goals. It is recommended that you do your own legal research, and/or seek advice of counsel.

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