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“We Built It”

 You may have noticed the banner hanging on our façade which states: "WE BUILT IT". You may have seen it in other businesses as well.

By way of explanation, the message is our rejection of the President's allegations that somehow Government is responsible for individual effort and success or failure. In particular, these are his remarks from a speech in Roanoke, Virginia:

Look, if you've been successful, you didn't get there on your own. You didn't get there on your own. I'm always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something — there are a whole bunch of hardworking people out there.

If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you've got a business — you didn't build that. Somebody else made that happen.

We reject Mr. Obama's accusations. We do not believe anybody other than the people who invest in this firm, work for this firm, and make the daily decisions that guide this firm are the people who built this firm. We do not owe our success or failure to any Administration – it rests solely upon the effort, intellect, and ingenuity of the people who own and work for this business. And we believe that is the case for almost any small business, including many small business owners who are our clients.

Furthermore, the notion that government or some other State-owned entity built roads, schools, bridges, and other infrastructure on its own is in and of itself ludicrous. Roads, schools, bridges and post offices – while in existence before our firm – were nonetheless ALSO built by other businesses and people who paid taxes. Roads and bridges don't just appear out of nowhere as a result of the largesse of government. Roads and bridges are themselves constructed by businesses and taxpayers and paid for by other businesses/taxpayers who preceded us.

It is for these reasons that we reject Mr. Obama's premise and assert that We Built This business.
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Business are people, and we are the solution, not the problem

 Excerpted from Job Creators Alliance, July 25, 2012, by Michael Leven and Richard Jackson

Lately, it seems that the only form of acceptable hate speech left in America is hostile invective heaped upon entrepreunuers and innovators by a vocal minority of pundits, and increasingly, political leaders who should know better. At the core of the great American experiment is the fundamental belief that the freedom to create and build businesses serves us all. The greatest of our founding fathers, George Washington, once wrote, "A people who are possessed of the spirit of commerce, who see, and who will pursue their advantages, may achieve almost anything." If there is a secret to America's success, it is this.

Alarmingly, the great ideas of our founders are being forgotten by some of our nation's most prominent leaders. Throughout American history, the enterprise of commerce, and those who practice it, have been celebrated as the engines of prosperity. Yet in today's national dialogue, they are too often vilified as the source of our ills. For those of us who have taken risks, put our family's financial well-being on the line, lived in near-poverty during the hard times so that our employees would be paid, or toiled on the frightening brink of failure fueled only by the hope of someday creating something great, this all comes as a painful slap in the face.
A case in point was Elizabeth Warren's introductory speech at a fundraiser for President Obama in Boston. "Corporations are NOT people," she pronounced. "People have hearts. They have kids. They get jobs. They get sick. They love and they cry and they dance. They live and they die. Learn the difference."

The audience ate it up.

Perhaps President Obama, a Harvard Law School graduate and former constitutional law professor who well knows the legal case for corporate personhood, would clear up Warren's condescending attack. But he didn't. And recently, he added to the insult, telling an audience in Roanoke, VA, "if you've got a business, you didn't build that. Somebody else made that happen."

The idea that businesses are people isn't a new concept. Indeed, it's been around for almost two hundred years as a matter of law.

As far back as 1819, in Dartmouth College v Woodward, the US Supreme Court has recognized corporations as having the same rights as every other American citizen to enter into and enforce contracts secured under the Fourteenth Amendment to the U.S. Constitution. Years later in a separate case, The Supreme Court returned to the corporate personhood well again, saying this:
"Under the designation of 'person' there is no doubt that a private corporation is included [in the Fourteenth Amendment]. Such corporations are merely associations of individuals united for a special purpose and permitted to do business under a particular name and have a succession of members without dissolution."

But the concept of personhood for corporations isn't merely established law. It's common sense.

Who starts a corporation but people? Who started Apple and IBM and McDonalds and Dominos Pizza and Facebook but people. And who starts the local auto body shop and the local Italian restaurant and the local charitable organization or church but people.

Corporations hire people, and feed families, they do charity work and community service. Of course corporations are people.

So why did Warren say what she said? Is it inexperience? Is it a lack of substantive contact with American business? Or a deliberate attempt to somehow strip corporations of their humanity?
Any why didn't our President clear the air, and the record?

That is for others to decide.

But for the entrepreneurs who have built, run, and grown small businesses, we don't need more anti-corporate rhetoric these days. Instead, we need a better understanding from our nation's leaders of what makes businesses work and what doesn't. We need to recognize what inhibits growth and what stimulates it.
In the end, corporations – and the people who run them and work for them – are not the problem with our economy. We are the solution.
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583 Hits

Conservatorship

 In my previous blog I wrote about the problems that can occur for children and spouses of parents who die without a valid Will. Another issue that parents must address to protect their families in the event of such a tragedy is proper planning for their children who may be beneficiaries of life insurance policies, IRAs, 401(k)s, Certificates of Deposit, and other similar financial accounts.


Life insurance policies and many of the other types of accounts allow the policy or account owner(s) to designate primary and secondary beneficiaries to receive the funds in the event that the owner dies. Any funds traveling from such a policy or account do not pass through the owner's estate – and thus are not normally subject to attachment by creditors of the owner – but rather they are delivered directly to the beneficiary(s).

The intuitive decision for many individuals with young children is to designate their spouse as the primary beneficiary, and to name their child or children as secondary beneficiaries; however, this is an ill-advised strategy. For the reasons illustrated below, a nightmare scenario can occur if minor children become entitled to receive funds as beneficiaries of a life insurance policy or other account.


Georgia statute O.C.G.A. § 29-3-1, et. seq. requires that if a minor child inherits or otherwise receives any property – including cash money – in excess of $15,000.00 in value, the property must be delivered to an independent legal conservator who acts subject to the authority of the Probate Court. This is true even when one or both parents of the minor beneficiary are still alive, as could be the case for a child inheriting property from a grandparent or other friend or relative.

During the term of any such conservatorship, the Court will be the final authority on how conservatorship funds are managed. The procedures and hearings involved in appointing a conservator are time consuming and expensive, and they can substantially deplete the value of the property at issue. In addition, a court-appointed conservator charges fees and is often required to buy an insurance policy to guard against fraud – all costs that are charged to the money being held for the minor.

Perhaps the biggest problem of all is that by operation of law, when the child reaches eighteen (18) years of age the funds in a conservatorship will be delivered to the outright control of the child. Anyone who has ever spent any time with the average eighteen (18) year old knows that this is a "magic act" in the making, as a teenager has the supernatural ability to make money disappear in the blink of an eye.

To avoid these problems and bypass the risk that a conservatorship could be established for your child, you should establish a living trust that is separate from your Will to function as a beneficiary of life insurance policies, retirement accounts, and other financial accounts for the benefit of your child. A living trust empowers you to nominate a trustee to receive and control any funds intended for your child's benefit, and to hold and protect those funds while your child is too young to do so for him or herself.

Depending upon the terms and provisions that you incorporate into your trust, the trustee can have the discretion to spend the trust funds for the child's education, health, and welfare, and under Georgia law the trustee will always have a fiduciary obligation to act in the best interest of the child.

By establishing a trust, you can also select the age at which the child can acquire outright control of the trust funds. It does not have to be eighteen (18) years of age, but rather you are permitted to require that the funds remain in the trustee's control until the child reaches an older age as selected by you. The oldest age of distribution that I have personally been directed to draft into a trust was sixty-two (62) – which seemed a bit extreme – but it illustrates the point.

It is crucial that the trust for insurance policies, retirement accounts, and other financial account funds be separate from your testamentary trust and estate. You never want to make your estate the beneficiary of funds that would otherwise travel outside of your estate, e.g., life insurance, because that creates the risk that those funds would become subject to attachment by creditors of your estate. By establishing a separate trust and making its trustee the beneficiary of such policies and accounts you can protect the funds from creditors, avoid the mandatory conservatorship issues addressed above, and establish a plan of distribution that works for the best interest of your child.

Although death may be a depressing topic for many, the issues addressed in this blog are important for those parents with young children, and unfortunately, it has been my experience over the years that people have been misinformed about this area of the law.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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A letter on the law

 Parents – you need to execute a Last Will and Testament. I recently represented an unfortunate client whose husband unexpectedly died of a heart attack while he was getting dressed for work. He was survived by my client (his wife) and their two young children, and he did not have a will. I write that she was unfortunate, not only because her husband tragically passed away, but also because his untimely death left his widow with a real legal nightmare.


My client and her departed husband didn't know that under Georgia law, if you are married with minor children and you die without a will your spouse is not your sole legal beneficiary. Instead, your spouse becomes a joint heir with your children. Generally speaking, this is not a good thing.

Effectively, this means that the ownership in all of the property of the deceased is split amongst the widow and the children. To make matters worse, if those children are minors, the law requires that a conservatorship be set up through the Probate Court (above and beyond what is typically required to handle the deceased person's estate). In most cases, the conservatorship requires that the guardian of the children (who is appointed by the Probate Court) must purchase a surety bond and file annual returns with the Court. Whenever the surviving spouse wants to take action with regard to the property that he or she inherited from their partner – such as selling or refinancing the marital residence – he or she will have to get permission from the Judge of the Probate Court to do so. Filing the motions and attending the hearings to obtain such permission is time-consuming, expensive, and an emotionally draining exercise.


On the other hand, if a spouse with minor children dies with a valid will, the estate will be administered in accordance with the terms of the will, and the aforementioned steps are avoided. By simply executing a valid Last Will and Testament, parents can control the disposition of their estate and avoid all of the hassles that my unfortunate client has been forced to endure.

It does not matter where you go to get a Will. Wills are inexpensive, but they can be an invaluable form of "cheap insurance" against hassles and expenses for your surviving family should you die. As long as your will meets the requirements of Georgia law, your family is protected.

So please, do your family a favor. Protect them, even after you die, with a Will.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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579 Hits

“Don’t Tread On Me”

 Flint, Connolly & Walker, LLP, recently adorned the façade of its offices with a proud display of the U.S. Flag, the Georgia Flag, and the Gadsden Flag. While most members of our community are acquainted with all three banners, many do not know the precise history and meaning of the Gadsden Flag.


The Gadsden Flag depicts a coiled rattlesnake with thirteen rattles against a yellow background with the motto: "Don't Tread on Me". It was first commissioned by Navy Colonel Christopher Gadsden in 1775 who delivered it as a gift to Commodore Esek Hopkins, the Commander of the Continental Navy for the American colonies in the Revolutionary War. Shortly thereafter the flag flew on the mainmast during the Continental Navy's first mission against the British fleet, and it remained as the most prominent flag of the American colonies until the formal adoption of the Stars and Stripes.


As noted by one historical observer, "since the Revolution, the flag has been reintroduced as a symbol of American patriotism, disagreement with Government, or support for civil liberties." Its display at Flint, Connolly & Walker invokes our empathy with these concerns.

The rattlesnake itself was often used as a symbol of the American colonies during the Revolutionary era; however, its meaning was most succinctly described in an essay written by Benjamin Franklin – under the pseudonym of "the American Guesser" – in 1775:

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Georgia employers must act to protect themselves against allegations of workplace discrimination

 It is important for Georgia business owners to be familiar with federal employment regulations such as Title VII of the Civil Rights Act of 1964, the Equal Pay Act of 1963, The Age Discrimination Act of 1967, and Title I of the Americans with Disability Act of 1990.


Although business owners and managers may be familiar with the general requirements of these laws, which were originally designed under the auspices of limiting discrimination in the workplace, it is important to effectively institute workplace policies and procedures to avoid encountering unintended liabilities arising out of these and other state and federal regulations.


1. The Equal Employment Opportunity Commission

Created in 1965, the U.S. Equal Employment Opportunity Commission (EEOC) is the arm of the federal government primarily responsible for enforcing anti-discrimination laws and regulations in the workplace. Generally speaking, any employer who employees fifteen (15) or more employees is subject to EEOC enforcement.

The EEOC investigates allegations of discrimination by employees, and in certain instances it may institute civil proceedings and other sanctions against employers that it accuses of violating EEOC enforced laws or policy. In other instances, the EEOC may permit individual employees and their attorneys to seek damages from their employers – or former employers – by filing private lawsuits directly against the employer for alleged acts of discrimination.

2. Anti-Discrimination Policies in the Workplace

In order to avoid being subject to damaging allegations of workplace discrimination, it is important that employers adopt policies and procedures to deter discriminatory conduct within their business.

To avoid such liability, an employer must first be conscious of what types of conduct are prohibited. The EEOC prohibits discrimination based upon a person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also prohibits discrimination against individuals who have complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

It is critical that all employers adopt and implement policies prohibiting discriminatory conduct. A company should conduct regular training of its managers and employees concerning their rights and obligations arising under anti-discrimination laws and the remedies that are available to any individual who believes they have been subjected to discrimination in the workplace. Likewise, an employer is well-advised to adopt internal procedures by which employees may report alleged acts of discrimination to management and/or ownership, and have those allegations properly investigated and addressed.

3. The Employee Handbook

As a general rule, an Employee Handbook is an important tool for employers to establish requirements, privileges, and expectations of workplace conduct for their employees. It is vital for any employer to have a well-drafted employee handbook to confront a host of potential work-related liabilities that can arise between employers and employees.

In the context of establishing EEOC compliant anti-discrimination policies, it is critical for owners and management to promulgate Employee Handbooks which advise managers and employees about a company's anti-discrimination policies and the remedies available to employees who believe they have been subjected to improper treatment. These handbooks operate as an indispensible first line of defense for any employer who is faced with an EEOC investigation.

Any Georgia business owner who does not already utilize a professionally drafted employee handbook is well-advised to consult with a qualified attorney to ensure that his or her company has exercised all available means to protect itself against EEOC scrutiny and charges of discrimination.

David L. Walker, Jr., is a partner in the law firm of Flint, Connolly & Walker, LLP in Canton, Georgia, where he represents businesses and individuals in various legal matters.
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DUI Considerations

"First the man takes a drink, Then the drink takes a drink, Then the drink takes the man."

EDWARD R. SILL

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More on the subject of “Independent Contractors vs. Employees?” (using FLSA criteria)

 My previous article dealt with the standards used by the Internal Revenue Service at making a determination about the status of a worker as an employee versus an independent contractor. These standards are not, however, the only ones that apply to this critical question. The federal Fair Labor Standards Act (FLSA) also affects all employers and compliance with this sweeping law is essential to every employer.

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Independent contractor vs. employee?

 For the unwary business owner, the terms "independent contractor" and "employee" may seem to be a question of whether the business owner or manager elects to issue a W-2 or 1099 to the worker in question. However, these words represent important distinctions that have been specifically defined by the Internal Revenue Service. A business owner who fails to properly classify its workers can suffer significant penalties and financial detriment.

Whether someone who works for you is an employee or an independent contractor is an important question. The answer determines your liability to pay and withhold Federal income tax, Social Security and Medicare taxes, and Federal unemployment tax. In general, someone who performs services for you is your employee if you can control what will be done and how it will be done.

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984 Hits

Georgia materialmen liens

 It is no secret that the past four years have been tumultuous, if not devastating, for the construction industry in Georgia. Commercial and residential contractors alike have suffered tremendous losses as the nationwide economic collapse brought projects to a literal halt across the State.

Recently, however, I have begun to hear encouraging news from several of my clients who work in the construction industry, who tell me that the building market is beginning to show signs of life. Although we are still months, if not years, away from a major recovery, many owners and developers are working hard to breathe life into this previously stagnate industry.

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1072 Hits

Primary Issues in Divorce

Divorce is and should be a difficult decision. But, too often this difficulty has led many divorcing spouses to try to move through the process as fast as possible without properly considering all of the issues and pitfalls that must be addressed. The process to end a marriage is much more difficult than the one that began it. If divorce is where you must go, then you must carefully consider, among other things:

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Letter to the Editor

 Published in the Cherokee Tribune, November 27, 2010

BUSINESS OWNERS AND EMPLOYEES MUST CONSIDER THE RAMIFICATIONS OF NEWLY ENACTED HB 173

On November 2, 2010 a political sea change swept the nation as voters resoundingly rejected the brand of "hope and change" that had been previously marketed by their political representatives. While most election coverage focused on the Republican takeover of the U.S. House of Representatives and that party's dominance in Georgia's state elections, relatively little attention was paid to the revolutionary changes in the laws that govern non-compete, non-disclosure, and non-solicitation (collectively referred to as "restrictive covenants") provisions in Georgia employment contracts; however, a firm understanding of the new laws is critical for all Georgia business owners and employees.

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