How do MD Businesses Prepare for the New Norm: Less Federal Spending

Baltimore Inner HarborTim Robbins opined that there were two types of people: Those who, upon hearing that a storm is coming, simply pray that it passes them by, and those who prepare for it. The Shawshank Redemption

It’s no secret what the smart Maryland businesses should be doing.

A recent Baltimore Sun article expresses the view that it’s no time to panic, that Maryland enjoyed a surge of federal spending of late and that the cuts explored thus far are just returning us to 2007 levels – hardly a wholesale slaughter. However, I think that’s a small consolation to businesses who’ve hired over the past 4+ years to keep up with the workload. It sure isn’t any consolation to the families of employees who may be on the chopping block.

I think businesses need to do more than just console themselves.

Businesses need to retool – position themselves for work in the private sector or even overseas and it must be the business of the State of Maryland and our own community of entrepreneurs and educational institutions to help them.

And in contemplating that, my mind naturally turns to…healthcare.

We all know that healthcare costs have soared out of control; technology, an endless line of specialists for any given ailment, medication, malpractice insurance…all of it. But in all of this, there has been one radical change of perspective that has been dramatically successful in reducing costs – wellness visits; the thought that the medical profession should emphasize prevention rather than just react to problems.

I’d write the same prescription for Maryland businesses. Now is the time for the City, State, and Maryland’s private businesses to implement programs to help businesses reposition themselves for a different kind of competition, for a different kind of customer. 

I’m not urging the State or City to come out with financial incentives – the businesses already have a big one. But, I am urging the State and City to play a leadership role. The risk of doing nothing, in the path of the oncoming storm, is that we’ll look around at the wreckage of higher unemployment and a diminishing tax base and wonder why we didn’t better prepare.

How should we prepare?

The Baltimore Grand Prix and The Branding of a Great City

Baltimore Grand Prix LogoUnlike many, I don’t see the Baltimore Grand Prix as defined by a few races and the Labor Day weekend. The Baltimore Grand Prix, if we are determined to do it right, is about the branding of a still great city. It is a step in taking back our image from Homicide and the Wire. And the success or failure of the Baltimore Grand Prix will not be determined by a tally of weekend hotel stays and restaurant tabs. It will be determined by follow up.

Much has been written about the downsides. We’ve heard from disgruntled residents, people worried about the noise, the perceived misdirection of funds, and the diversion of government from “what it should be doing.”

I get all those things…and I respectfully disagree.

Government is about larger things; and larger things do not get accomplished without ruffled feathers. But it’s more than that. Thanks to HBO, Baltimore has become known as a place where exciting things happen…but most of them are unsolved. That’s not how it should be.

The Mayor has to be Baltimore’s champion – not just its steward. And it takes more than slogans on repainted benches. It takes some excitement – something eye-catching.

Now I know that there are people out there anxious to report the verdict on the Grand Prix first thing Tuesday morning. Those people remind me of folks who step on the scale after one workout expecting to see a measurable difference. You can’t. You get results by continuous effort over a long period. And you begin to notice results in little ways. A looser collar here, a bit more energy there. Not risking collapse by walking up the steps to the third floor. 

Similarly, the Grand Prix is (or should be) part of an effort to showcase the city as a destination. A place where businesses should be. Anyone with any understanding of marketing knows that one initiative does not establish an identity – not for a company and not for a city. 

I applaud the Mayor for taking a chance; for giving Baltimore a shot to be known for something beyond the headlines.

There is an old saying that sports headlines trumpet man’s successes while news headlines only trumpet his failures. 

 

If that’s the case, can anyone argue that Baltimore needs more sports?

 

The Quest for Something Beyond Profit

Not long ago, I released a Podcast exploring employee motivation beyond money. In his book, Drive, Daniel Pink asserted that, given fair compensation, what really motivates employees is:

  • Autonomy
  • Opportunity for Mastery
  • Purpose

 And it is these motivational elements that decrease turnover, increase productivity, and have a direct impact on customer satisfaction.

Last year, Maryland’s legislature turned its collective attention to the notion of corporate purpose. In 2010, Maryland became the first state in the nation to recognize Benefit Corporations, or so-called “B-Corporations” as a new corporate structure category for mission-based, for-profit organizations.  In other types of for-profit business organizations, officers and directors could potentially be held liable for taking actions which did not directly relate to maximized shareholder value. Organization as a B-Corporation protects officers and directors from such shareholder actions and lays the groundwork for companies to “do well by doing some good.”

In 1996, I joined a law firm in which one of the four partners viewed it as his mission to mentor minority, primarily African American, lawyers. We discussed this when we formed the firm. He wanted to actively seek out opportunities to hire people he did not feel were given a fair shot by the majority of law firms in town. In many ways, we felt at the time that profit was secondary. Sure, we wanted to earn money, but we also bought into my partner’s sense of mission. Had the structure existed, we might well have registered as a B Corporation.

The commitment to registering as a B Corporation is not something done lightly. Nor is registration an easy or streamlined process. In order to gain B Corporation status in Maryland, organizations must first register as a Benefit Corporation and report their stakeholder impact according to a third party standard such as the non-profit charity B Lab. Only after certification is awarded will the structure be recognized. 

The reward, however, exemplifies the concept of a “win-win.” The community wins through the impact envisioned by the B Corporation – whether it is hiring the disadvantaged or positively impacting community infrastructure in some way. The company wins…and not just spiritually.   When an employee arrives at a B Corporation, s/he is already pre-screened for mission. In other words, the average job applicant is not just looking for a job, but is someone who already buys into the mission. Right out of the gate, the employee is committed to the company. This stands in stark contrast to the often indifferent workforce which populates many “ordinary” for-profit companies. 

Productivity is higher.

Customer satisfaction is higher.

Turnover falls through the floor.

Win-win

 

Should your company be acting as B-Corporation? Do you know of a successful B-Corporation?

 Raise it for discussion on Twitter, Facebook, or LinkedIn.

The Cost of Infidelity

In my post on February 1, 2011, I wrote about the benefits of dating before one gets married. I was writing specifically to warn against the danger of inviting someone into your company as shareholder or director based solely on hope or expectation. My strong recommendation was (and always has been) to work with the person, see how s/he:

  • Reacts under pressure
  • Interacts with company personnel
  • Affects the general work environment
  • Works on a day-to-day basis
  • Actually performs the job you s/he has been brought on to do.

Only after “dating” can a business owner be even reasonably certain of the advisability of a long-term relationship. 

But that’s not the end of the company-as-marriage analogy. There is still infidelity to deal with.

When one participates in a company, as an owner, officer, director, or even some other variety of “managing agent,” the laws of most states impose certain duties on that person. Chief among them is the “duty of loyalty.” One would think, just as with marriage vows, that one would only breach the duty of loyalty at one’s own peril.

In life, there are always temptations. In business, that temptation takes the form of the desire to take more (or all) of a good deal for oneself rather than sharing the proceeds with others. Sometimes, the thought occurs with the possibility of landing a large, new contract or upon hearing of a tremendous sales opportunity. 

“Maybe,” the thought goes, “I could set this one up outside the company and triple what I would otherwise get in commission or draw.”

Possible. Sometimes, to be sure. But what of those left on the outside looking in? 

Maryland Law, like that of most other states, has made actionable what is known as a “breach of corporate opportunity.” This means, in effect, that one may be held liable to compensate the corporation for the improper taking (some would say “theft”) of a business opportunity that rightfully belonged to the company. 

Let’s assume that Susan Smith was a shareholder and vice president of ABC Janitorial Corporation. Upon seeing an opportunity for a large contract on the horizon, Susan set up a new company with her husband called DEF Cleaning. DEF then snared the contract for itself. In so doing, it wrongfully claimed one of ABC’s opportunities for itself. 

The long and short of it is that Susan, as a co-owner and officer of ABC, owed ABC something better than just her full-time, physical presence. She owed ABC her loyalty. When she decided to deprive ABC of an opportunity that rightfully belonged to it, she committed the corporate equivalent of adultery. 

 And in business, just like in marriage, there is usually a price to pay.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

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Lions & Tigers & Bears

Guest Blogger: Michael J. Lentz, Esquire

Last October, CNN ran a story about a Pennsylvania woman mauled by a pet bear that she kept in her backyard. When I saw this story, my first thought was “well, that was a headline waiting to happen.” CNN also reported that, in addition to the 350-lb. black bear, the woman kept a Bengal tiger and an African lion. Apparently, she had the necessary permits from the Commonwealth, and “the property routinely passed inspection and had no violations.” Even doing everything right, the poor woman was obviously still at risk. After all, the bear, even in a cage in a Pennsylvania neighborhood, was still a bear. 

Of course, almost all small businesses have bears in their backyards, too. Whether it’s a client or customer who persistently fails to pay, or an employee who shows up late, leaves early, and habitually fails to produce, or a vendor that consistently fails to deliver as promised, business owners often accept, and even seem to welcome these rascals. Despite well-honed instincts warning of potential problems, many business owners disregard these instincts, for a variety of reasons, some sound and some not. With proper care and feeding, the delinquent customer, incorrigible employee, or unreliable supplier may, for a while, appear pleasant to have around and a worthwhile addition to the business. 

Eventually, though, damage to the business is inevitable. The customer will abandon the business with an enormous receivable, the employee will disappoint a significant client in a critical situation, or the supplier will fail to deliver vital materials. 

Bottom Line: Trust your instincts, and remember that the things that threaten your business now will threaten it as long as you welcome them, even if they appear to be under control for a while. 


Michael graduated from Georgetown University Law Center in 1998. After spending five years with large Baltimore firms and three years as a solo and small firm practitioner, Michael joined Wagonheim Law in 2006, where he continues to utilize his extensive experience in commercial, bankruptcy, and appellate litigation to work with companies throughout the mid-Atlantic region.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

 

A Sense of Entitlement

I have this very clear memory of standing with parents and incredibly excited children on the sideline of a windswept soccer field.  The last game had just ended.  Our team, that is to say my 6 year old son’s team, The Green Goblins, lost 6-0.  We had won one game that season – a gripping 7-6 contest in which the excitement of the win for all but the coach was still easily overshadowed by the arrival of the snack parent.


But here we were, after the final game of the season, and something even more exciting than snack distribution was about to happen.  It was trophy time.


As each name was called, the child of the moment would walk up, grab the trophy, slap high-five with the coach and grin.  Parents clapped, occasionally yelled (“YEAH, JUSTIN!!!), pictures were taken, and the next trophy was pulled out of the box.  And even as I clapped and cheered for my son, and my wife angled for just the right shot at the precise moment David received his trophy, it still bothered me.


We have raised a whole generation of people accustomed to receiving  trophies for losing.

Beginning somewhere around the late 1980’s to early 1990’s, they stopped keeping score.  We were told that everyone’s a winner, just for having participated.  There were no losers.  
And, truth to tell, maybe there was something to that.  I’m no psychologist, and I’ll allow for the possibility that eliminating the label of “winners” and “losers” from early sports or extracurricular involvement (they also stopped giving out blue ribbons at the science fairs) prevented the destruction of the egos and self-esteem of a generation.


Yet even with this as a possibility, the more sober among us has long realized that everything comes at a cost.  The cost of this self-esteem saving strategy, it seems to me, is that we are now welcoming into the ranks of the newly employed young, vital, talented, and knowledgeable twenty-somethings with a pronounced sense of entitlement.


As
Don Rheem, principal and co-founder of Engagient, one of the country’s leading employee performance and engagement consulting firms, describes millenials as people who:

  • Go to work at GE and, within a week of having been there, send an e-mail to the CEO and expect an immediate response;
  • Have a pronounced need for immediate feedback, praise, and recognition;
  • Are constantly motivated (often into impulsive action) by a need to discover what else is out there

The challenge for companies across all industries, therefore, is how to keep these people – “millenials” they’ve been called – fully engaged and fully committed to the organization without: (1) disenfranchising more established workers; or (2) losing focus on the business at hand.


Now, upon reaching this point in the article, you may think that I would take the easy way out and point to “innumerable” solutions to this problem posited by countless experts.  There are countless experts, to be sure, but the studies, articles, and anecdotal evidence points to only one answer.


I will repeat that.  There is only one way to keep millenials fully engaged in and loyal to your company.  And the millenials are not alone.  This one rule applies as the single solution for client loyalty and the retention of older or more established workers.

The key to employee retention, client loyalty and a strong marriage is the ability to develop and sustain a relationship at an emotional level.  In other words, there must be a deeper connection between the employees and the business than just salary, perqs and a holiday bonus.  There must be a belief in the purpose of the enterprise and the employee’s place in it.  Each employee must be able to answer the key question “why do I keep coming to work?” with something more than just a reference to salary.


In addition to fair (if not downright attractive) salary and benefits, the organization must have a vision beyond just an increase of profits for the owner.  There must be buy-in – meaning everyone, including those crucial (and temperamental) millenials – must be on board the bus.

The company must work to establish trust, rather than just assume it’s there.  
There must be feedback well beyond just an annual review.
The company must create traditions, events or other visual touchstones to keep employees anchored to its vision.  

In essence, a company coming to terms with the challenges of keeping today’s workforce fully engaged has no choice but to take its cue from those non-scoring, participation-trophy games by providing approval, feedback and a connection – not just to the actual activity, but to the overall value that comes with being part of the team.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

To Tweet or Not to Tweet? Larger Lessons in Business from Twitter

Guest Blogger: Michael J. Lentz, Esquire

I’ll admit it – I used to be profoundly annoyed by, and more than a little bit uncomfortable with, the notion that Twitter could be a useful tool in the development of my commercial litigation practice. I envisioned Twitter as the latest unwelcome step in the drive-thru-ification of America, where fast and easy often replace, and are often deified at the expense of, thorough and thoughtful. I viewed Twitter as nothing more than one of many ways for the self-absorbed to tell the rest of the world about their lives - it seemed unnecessary at best, and shallow and self-aggrandizing at worst. 

Last week, though, I attended an excellent webinar on the use of Twitter for client development, presented by Kevin O’Keefe, the founder of LexBlog (full disclosure: LexBlog hosts this blog). I’m not going to attempt to reiterate Kevin’s points here – you can follow his blog or follow him on Twitter. At the start of the webinar, I was largely Twitter illiterate – I didn’t know a hashtag from a hash brown. More to the point, I literally could not fathom that Twitter could be useful to me, so I didn’t see any reason to attempt to become literate. 

An hour later, though, I had specific examples of ways in which Twitter might be useful to a busy litigator trying to develop a practice. Certainly, some of the suggestions were inapposite. Others were sensible in theory, but might be difficult for me to put in to practice, given a finite amount of time to devote to the effort. There were other suggestions, though, that made sense immediately, and that I knew I could put into place immediately. Receiving fairly simple, concrete examples of what Twitter can do for me made me change the way I thought about Twitter. I’m still not convinced that it’s the eighth wonder of the world, as some of its advocates seem to believe, and I’ll probably never use it as fully as Kevin and others like him do, but I am convinced that it has its place. 

This epiphany reminded me of an important marketing lesson: when you’re marketing, whether verbally or in writing, and whether your audience is an enormous group or a single individual, make the presentation not merely about you, and your skills and talents, but about what you can do for your audience. Leave your audience with simple, concrete examples of how your business, product or service can help them.  No matter how good your business is at what it does, prospective customers and clients will not become actual clients and customers unless and until you can explain, simply and completely, how your business will benefit them. 


Michael graduated from Georgetown University Law Center in 1998. After spending five years with large Baltimore firms and three years as a solo and small firm practitioner, Michael joined Wagonheim Law in 2006, where he continues to utilize his extensive experience in commercial, bankruptcy, and appellate litigation to work with companies throughout the mid-Atlantic region.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

 

Getting Married Before You Date

Yesterday at 5:00, I found myself sitting in our conference room across from a very interesting gentleman. He was in his upper fifties, maybe 60, and carried himself as a professional. He explained that he had been in business for upwards of 40 years – that he had made some big mistakes, learned from them, moved on, and built a fairly successful business. 

He told me that the business that he had started had run its course and he wanted to start a new one, having learned from the mistakes of the old. In order to start the company, he decided to bring in 3 additional people. These people were friends of his, experienced in his industry, and possessed of the skill sets necessary to make the new venture run. My visitor had decided to divide 40% of the stock among them, retaining 60% for himself – enough, he felt, to keep control of the company.

He was convinced that giving out shares of the company was the only way to keep the group motivated, absent money to pay each person’s going rate. My visitor was wrong.

Recently, I wrote a piece in our e-mail series discussing the mistake of offering partnership at the outset of a business relationship. And whether the discussion concerns true partnership or co-ownership of a corporation or LLC, the fact of the matter is that co-ownership is a business marriage. And make no mistake, just like the real thing, a business divorce can be expensive and emotionally draining. 

For his part, my prospective client was asking his friends to invest their time and skill in a new business for little or no compensation. What he wanted was a way to show his friends that they would reap the benefits of their investment.   We explored a number of possible solutions, but what we decided upon was offering stock options.

People, you see, are unpredictable. Some may be highly skilled and great friends, but start working together and it’s a trainwreck. Different business philosophies, work ethic, or personalities can destroy a team that could not possibly look better on paper.   Stock options and a vesting schedule are two ways to put together an arrangement now which takes effect later

In this case, we could commit to an option to purchase stock in the company beginning in 3 years, discounted for each year the person had been with the company. Moreover, as incentives, other discounts to the purchase price could also apply, provided we took care not to trigger any unwanted tax consequences.

In other words, my prospective client could date before he got married. And in my experience, that’s a pretty good plan.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

For more information on our free e-mail series, click here.

Fraud Happens

Guest Blogger: Joel Charkatz, CPA, CVA, CFE

 

In my prior post I discussed the importance of internal controls as a safeguard of a business’s assets and provided a real life scenario. The case discussed was an excellent example of how a few minutes per month would have saved the company penalties and interest payments to the IRS, untold headaches, and a trip to the precipice of disaster, from which they luckily returned.

I also reported the most recent study performed by the Association of Certified Fraud Examiners indicated the median fraud loss in small business (less than 100 employees) was double the loss in large business. While there may be many reasons for this discrepancy, my experience indicates lack of internal controls is a significant cause of this anomaly.

In the current business climate, many businesses have pared employment rolls, leaving fewer personnel to perform the same or more tasks. As a result, internal controls have taken a back seat to servicing the customer. Even where good solid internal controls were once in place, I generally find the change in personnel has not been accompanied by an evaluation of its impact on the controls of the business.

What can be done? For starters, there are a few simple controls which can be accomplished with very little effort. And whether your business has three or ninety three employees, they will work very effectively.

The first procedure is the simplest – the monthly bank statement(s) should be given to a responsible party, unopened. A responsible party is the owner, owner’s wife or other family member, or someone in the organization that has nothing to do with finance. Typically, we find the owner to be the most credible person for this task. Mr. (or Ms.) stockholder opens the bank statement and looks at each check making sure:

  • the payee is legitimate
  • the amount is not out of character for the payee
  • there are no erasures or other apparent changes on the document
  • the authorized person’s signature is legitimate
  • the endorsement on the back appears correct
  • the address the payment was mailed to is where the vendor is located
  • everything else on the document appears to be correct

An additional function would be to compare the check payee and amount directly into the company’s disbursement system to make sure the payee and amount are recorded in sync with the document. This procedure is generally only performed when a question arises, but it is a good idea to spot check, on an occasional basis, a few disbursements.

The key to protecting any business’s assets is internal controls. While small business may see this as a challenge, the fact is the smaller the operation, the easier it is to exert control over the assets.

 

Joel Charkatz, a Shareholder with KatzAbosch, has served the Maryland business community for more than 40 years. He is Chairperson of the firm’s Business Valuations & Litigation Support Group and a member of the Medical Practice Services Group.  He is also the past Chairperson of the Maryland Association of Certified Public Accountant’s Business Valuation, Litigation, Fraud and Forensics Group. Mr. Charkatz provides a full range of accounting and tax services for clients including business valuation, forensic accounting, litigation support/expert witness, real estate development, management advisory services to closely-held businesses and tax planning.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

If I Had Only Looked

Guest Blogger: Joel Charkatz, CPA, CVA, CFE

We hear this phrase over and over. Why? Because it is almost inevitable that when we are called in to investigate an employee embezzlement case, the entire venture could have been caught very early. Once we begin to probe, and determine the fraud was easily discoverable, management sighs and says “If I had only looked.”

 

Statistics from the Association of Certified Fraud Examiners reflect small business is more vulnerable than large business when it comes to fraud. Why? Because big business “looks” more than small business. The median loss in small business (less than 100 employees) was reported to be $200,000, while the median loss in large business was just $97,000. Because they look.

Really large businesses many times have a Loss Prevention Department. This area’s responsibility is to catch and stop fraud and embezzlement in the company. While they may interface with the internal auditors, they are usually not accountants. Most likely the personnel in this department have investigative backgrounds – either in police work, insurance loss investigation, criminal work, etc. As a result, these folks have a mindset that is much different from an internal auditor, and very much different from the company’s outside CPA firm.

Depending on the size of a business, there are several very simple procedures that can be performed, usually only taking minutes per month. These procedures will uncover most employee embezzlement at or near the outset.

A good example is the fraud we investigated where the bookkeeper embezzled hundreds of thousands of dollars over a period of several years. She was able to cover up the theft by not paying payroll taxes the company owed for its employee withholdings. Of course, when a non-payment notice was received in the mail from the IRS, the mail clerk would give the IRS notice to Sally (not her real name) because it was “tax stuff and Sally gets all that mail.”  The tax notice was hidden from everyone, and the fraud continued.  This resulted in a significant loss to the company, and once discovered, were required to pay taxes, late payment penalties, and interest to the IRS. It almost put them out of business.

This type of employee action would have been discovered almost at the outset except for one mitigating factor. Sally had been with the company for many years and was a trusted employee. Consequently, there were very few controls in place on her position. Were the owner to, once a month, simply receive the bank statements unopened, and peruse the canceled checks, he would have seen the checks payable to his bookkeeper, and discovered the embezzlement in the very early stages. If only he had looked.

One final word….trust is not a control. Just because an employee is trusted does not mean common sense (read internal controls) can be suspended.

 

Joel Charkatz, a Shareholder with KatzAbosch, has served the Maryland business community for more than 40 years. He is Chairperson of the firm’s Business Valuations & Litigation Support Group and a member of the Medical Practice Services Group.  He is also the past Chairperson of the Maryland Association of Certified Public Accountant’s Business Valuation, Litigation, Fraud and Forensics Group. Mr. Charkatz provides a full range of accounting and tax services for clients including business valuation, forensic accounting, litigation support/expert witness, real estate development, management advisory services to closely-held businesses and tax planning.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

 

 

Experience Doesn't Always Come with the Sunrise

“There is a difference,” I was taught, “between ten years of experience and one year of experience repeated ten times.”   I thought about this the other day as I contemplated the calendar change to 2011 and the fact that next year will mark my 25th year in practice. 

Everyday it seems like I see too many examples of companies celebrating survival, rather than progress. We regularly receive letters adorned with “our 10th anniversary” ribbon stickers and see businesses using the phrase “since 1956” or some such instead of an actual message.   When I was a young attorney (maybe for ego’s sake I should say “younger” attorney), I was hoping to be made partner when the management committee told me instead “we’ve decided that you have to wait 3 more years before we extend an offer of partnership.” 

Now, granted I was young – younger than any of the partners by a long shot – but I had just as many clients and generated more revenue than most.   “Why,” I asked, “does it matter how many more sunrises I see between now and an offer of partnership?” I urged them to give me something different such as a revenue, performance, or even billable hour target to hit. But no, to them it was time. To me, this made no sense.

One of the real values of seeing another sunrise is the ability to leave behind the mistakes and absurdities that had, no doubt, been a part of your yesterday. But equally as important, with the sunrise comes the opportunity to build on yesterday’s lessons. Sometimes that’s painful in business.

Print out your customer list. Not a list of your most active or largest. Print out a list of all of them. Don’t just read the names, ponder them. As to each, are they enthusiastic about your work or did you make a cringe inducing mistake? Were you late? Were you, perhaps, a bit less responsive than you should have been? Are they loyal to you or are they casting a wandering eye across the business landscape wondering if they can do better? 

I have yet to find a business owner who, in his heart of hearts, can honestly say that he did right by 100% of his customers 100% of the time. 

So here are the questions: What are you going to do about the failures? Are you committed to learning? Have you created a company culture open to improvement? Can you begin a lasting and productive dialogue about your failures? Have you ever conducted a bloodless autopsy – one with a mission of education rather than the identification of a scapegoat?

In other words, in 2011, what will you have learned by the sunrise?

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

Is Nothing Sacred?

There is no such thing as privacy. You would know that if you were inclined to take even a casual glance at Sports Illustrated as 2010 ran down. The sports world was consumed with stories about Brett Favre’s alleged texts to Jets sideline reporter, Jenn Sterger and now two massage therapists as asserted in recent court filings. Not to be outdone, Jets head coach, Rex Ryan, found himself on the sidelines while all of New York seemingly became obsessed about his wife’s internet persona

Now, a Michigan court is preparing to weigh in on the subject of online privacy. According to the ABA Journal, a Michigan man is facing felony charges for reading his wife’s e-mail in an effort to determine whether or not she was having an affair. He was charged under a statute intended to apply to computer hacking, but is read to apply to a circumstance in which someone uses another person’s password, without permission, to, in this case, do a little investigative research.

Given the prevalence of online activities in our society, the issue of online privacy has almost universal ramifications.   A week doesn’t go by when we do not hear a question from one of our clients involving employees texting, using Facebook accounts, or simply shooting e-mails around the office. The legal issues can run the gamut from unauthorized use of equipment to sexual harassment and the creation of a hostile work environment.

But what are the employer’s rights?

There are three statutes which have to be considered when an employer contemplates monitoring the employee’s use of e-mail, telephone or the internet: (1) the Electronic Communications Privacy Act of 1986; (2) the Maryland Wiretap Act; and (3) the Maryland Stored Communications Act.   Maryland courts have consistently explained that the purposes of Maryland law on the subject is to prevent the unauthorized interceptions of conversations where one party has a reasonable expectation of privacy. 

If asked, many employers would maintain that no employee has a reasonable expectation of privacy if company equipment is being used for the communication. But that is not always the case. The question can turn on the type of monitoring at issue and the employer’s goals in taking the offending actions. For example, videotaping employees is different than recording their phone conversations or perusing their e-mail after they have left for the day.

In each case, there may be a legitimate business purpose behind the company’s actions. We’ve all heard the recorded message that “calls may be monitored for quality assurance.” Another reason for monitoring, this time relating to e-mail, is that companies can be sued for copyright infringement or even sexual harassment, depending upon information downloaded by employees onto company systems. 

By far, the best policy for any business where monitoring will take place or even where employees have access to e-mail and the internet is to create and distribute a written policy explaining the company’s right to engage in the specific type of monitoring anticipated by the company. The warning alone, if well drafted and universally distributed, will serve to limit or eliminate the employee’s expectation of privacy. And in the end, that’s what it comes down to – fair warning, reasonableness, and the question of what a normally intelligent person’s privacy expectations should have been.

We’ll just have to see how the court defines “reasonable expectation of privacy” where Brett Favre and the Michigan husband are concerned.

Questions? Comments? Concerns? Raise it for discussion on FacebookTwitter, or LinkedIn.

The Branding Effect

Guest Blogger: Adam Schechtman, VP of Business Development & Marketing, Eye Catching Creative

To brand or not to brand? That is the question so many small and mid-sized businesses tend to overlook in the early phases of their development. The problem is there’s a tendency to keep shuffling this linchpin of marketing success to the dark corners of the priority list. Then one day, we read an article or hear someone talking about a competitor and cringe in uneasiness because they did something we didn’t…built a solid brand.

Like marketing in general, branding is easy to lose focus on, especially when we have experienced some degree of success. If you agree that today’s markets have changed and the way businesses DO business has changed, then it’s time to recalibrate some of your own marketing efforts. That means its back to basics! Like the “butterfly effect,” small improvements in your branding strategy can have a tremendous impact on growth over time.

We know from marketing 101 that your brand is your identity. Beyond the visual or physical makeup… name, logo, advertising, a brand is quite simply the psychological impact you have on customers. Branding is so important because people buy emotionally and then logic steps in to support their buying decision. Your brand is essentially a part of the ongoing relationship you have with customers. It is a compilation of messages that differentiate (or don’t differentiate) your business, product or service from everyone else who plays in the same space as you do. Take a second look at the competition of today. If someone stands out, why do they stand out? Who doesn’t stand out? Which category does your company fall into and who might be able to help you to improve on that position?

From your email address to your website, to how the phone is answered to the relevance of your marketing materials, your brand must be professional, consistent and CURRENT.  What the company stands for and what you’re offering should be different and clear. When is the last time you really dissected how you are perceived in the market and what your market position truly is? One easy way is to run a survey using existing customers or even some customers that you lost. Resources like SurveyMonkey.com are fantastic, free, e-survey questionnaire tools that are easy to use and easy on the budget.  So let me ask you… what perception do your customers have of your business? What does your presence in the market “feel” like to customers and professional peers (aka competitors) and more importantly… are you being felt?

 

Adam Schechtman is an entrepreneur and co-owner of Eye Catching Creative, providing virtual, on-call design, advertising and marketing solutions to budget-conscious small and mid-sized businesses. With more than 15 years in marketing, business development and sales, he is also the former owner of Achieve Senior Home Care and former co-owner/franchiser of Advance Realty Solutions. Adam holds an MBA in marketing from Johns Hopkins University. Visit www.eyecatchingcreative.com for more information.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

Hongate 2010-11

If you are from or have any ties to Baltimore, you almost surely hold the word "hon" near and dear to your heart.  It has become a part of charm city's history and culture.  By now you've most likely heard that the owner of Cafe Hon, a landmark restaurant Hampden, has trademarked the word "hon".  What began as a strategy to protect a brand she claims to have built has turned into a scandalous "hontroversy" that has rocked Baltimoreans to their core.  Eliot Wagonheim gave Fox news his take on the matter December 10, 2010.  Almost a month later, "hongate" is still a hot topic. Eliot served as a guest on Midday with Dan Rodricks today to discuss whether or not the Hon trademark would survive the legal test.

Click here to listen a podcast of today's show.  Click here to join the discussion on twitter.

What Will You Do Differently in 2011?

“I got a phone call this morning from one of our oldest customers. He fired us. After 20 years, he fired us. Said he doesn’t know us anymore. I think I know why.” 

The speaker recounted his phone conversation to his account reps, saying “we used to do business with a handshake, face-to-face. Now it’s a phone call, a fax, ‘get back to you later,’ with another fax, probably.” 

This United Airlines commercial was originally aired before e-mail and the advent of social media. First aired twenty years ago, in 1990, it still resonates. So many businesses are started by an entrepreneur, skilled in the producing the product or service that spawned the company. Customers came because of the skill and stayed because of the attention. As the owner of a small business, the founder could track every project and knew every client. When someone was upset; he knew it.

Growth has a way of making that kind of personal attention obsolete. Time passes and a founder looks around to realize that whole projects are being performed for customers he never met.   And what about the ones he knew – the ones who built his business or who inspired him to go into business in the first place? Chances are, they’ve been delegated. Delegated to talented people, to be sure, but delegated just the same. 

Sooner or later, the thought has to occur to these customers – your old friends -- that if they mean little enough to your company that they can be delegated, your company means little enough to them that they can go elsewhere.  

Looking ahead to 2011, most business owners set targets for growth -- more revenue, more customers, bigger projects, better distribution. But how many set goals reflecting stronger relationships, customer retention, and expressions of gratitude? 

Many years ago, I read a book in which the author urged business owners to “pay attention to the ‘fine’s.’” He meant that people rarely voice their complaints. When asked about service or the particular product they purchased, even when dissatisfied, they’d normally respond that things were “fine.” Not every customer can be counted on for enthusiasm. After all, there isn’t an infinite amount of enthusiasm to go around. But the silence and the “fine’s” speak volumes to those with a keen enough ear and enough focus to notice. 

So what are you doing to focus on client retention, rather than just growth? Studies indicate that a new client is 7 times more expensive in terms of marketing and advertising dollars than existing clients. The point is that it is much cheaper and more efficient to keep the clients you have than spend every ounce of energy trying to bring new prospects in the door. 

If you do not already track trends in returning business, 2011 is an ideal time to start. After all, nothing speaks to customer satisfaction more than repeat business. Even more than tracking it, look for the things that increase the pace of returning business over time. 

Perhaps, like those executives in the United Airlines commercial, you can forgo e-mail, faxes and phone calls, and, just once in a while, put in the time to travel even great distances for a handshake.

 

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

No Wine Before Its Time

My wife is a product of Oregon.   So is her favorite beer, Bridgeport Coho Pacific Extra Pale Ale. Years ago, when she first made the move to join me in Maryland, I tried to surprise her with a case of Oregon’s finest. Unfortunately, the brewery did not ship product farther east than Colorado. It was not willing to make an exception in my case. 

Maryland law required that I first obtain a distributor’s license to facilitate the transaction. I did not qualify for one. I tried to get a few of our retail stores interested in serving as my proxy, but no one would bite. And as much as I revere Baltimore’s Natty Boh roots and tradition, the two products were hardly interchangeable. 

My memory of this failed gift came flooding back to me yesterday when I read Scott Calvert’s article in the Baltimore Sun reporting on the possible loosening of Maryland’s prohibition against direct shipment of alcoholic beverages. The Sun cited Maryland’s wine industry lobbyists as basing their opposition to direct-shipping on two arguments: (1) that direct shipment to consumers would make it easier for minors to obtain wine; and (2) aggressive out-of-state competition would imperil Maryland’s own wine retailing industry. 

We’ll leave the first argument by the wayside, saying only that on its face it makes no sense, given that how alcohol gets into the dining room liquor cabinet is much less significant an issue than the parentally-imposed controls over how it gets out.

It’s the second argument that attracted my attention.  According to the Sun, the Maryland wine industry lobby favors the existing statutory environment because it limits competition.   Now, I completely understand why an industry lobbying group would want to insulate its members from competition. In fact, I’m certain that there are very few businesses in the country that wouldn’t benefit from a little statutorily-imposed exclusivity.  

But that’s hardly the point.

The point is that a business in our economic system should be constructed to beat the competition, rather than rely on the law to do it for them. If a company is not able to articulate to its prospective customers at least one (and ideally three) clear benefits to doing business with it as opposed to its competition, then it deserves to lose those potential customers. Price, service, selection, trust, relationships, knowledgeable sales staff, value-added services, an expanded product line…something. These are the elements of successful competition – regardless of industry.

Friend of the firm, Mitch Pressman of Chesapeake Wine Company was exactly on point when he was quoted in the Sun article as saying that he welcomed the competition. He welcomed anything that would bring about an increased interest in his product. And it is precisely his confidence in his business, staff, selection, knowledge, etc., rather than a reliance on antiquated statutory protections, that positions him to overcome the competition. 

And that’s the way it should be.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

A Wolf in Sheep's Clothing - Are Your Shareholders Also Employees?

Guest Blogger: Michael J. Lentz, Esquire

Ordinarily, employment in Maryland is “at will,” meaning that in the absence of a contract that says otherwise, an employer can fire an employee at any time, for any (non-discriminatory) reason, or for no reason at all. Of course, a written employment contract will govern the relationship between the employer and its employee. 

However, in some circumstances, Maryland courts will interpret a shareholders’ agreement to be an employment contract. If a shareholder, who also happens to be an employee, enters into a shareholders’ agreement with the employing corporation, and the agreement includes the employee’s duties, compensation, and other employment related terms, the terms of the shareholders’ agreement will govern the employment of the employee-shareholder. A shareholder’s agreement that doesn’t speak to the issue will not change an employee’s at-will status, or provide post-termination benefits, but courts will enforce all written terms. Also, Maryland law requires all parties to a contract to deal with each other fairly and in good faith, even if no such requirements appear in the parties’ agreement. Since a shareholder’s agreement that addresses terms relating to employment will be construed as a an employment contract, this implied covenant of good faith and fair dealing will be implied in the parties’ employment relationship. 

As a practical matter, this means that if you have employee shareholders, their shareholder agreements should include either nothing relating to their employment or all pertinent terms of their employment.

Perhaps just as significantly, even in the absence of a written employment contract, shareholders in closely-held corporations may be entitled to rights similar to those found in employment contracts. This is because a shareholder who invests in a closely held corporation may, depending on the nature and size of his investment, expect to be involved in the management and day-to-day operations of the corporation. Maryland courts have held that a shareholder in a closely-held corporation is entitled to “reasonably expect that ownership in the corporation would entitle him to a job, a share of the corporate earnings, and a place in corporate management.”  

Corporations, and their majority shareholders, should take care to respect these reasonable expectations of minority shareholders. Maryland law suggests that courts have a wide variety of remedies available to them to ensure that the investment expectations of minority shareholders are protected, including the appointment of a receiver to run the corporation and, if no less drastic measure will protect the minority shareholder, the dissolution of the corporation. 

Bottom Line: In closely-held corporations, minority shareholders present challenges not faced by publicly-traded corporations and other corporations with large numbers of shareholders. The corporation, its majority shareholders, and any minority shareholders are well advised to reach explicit, concrete agreements regarding their expectations for the venture, and to commit those agreements to writing thoroughly and precisely. 


Michael graduated from Georgetown University Law Center in 1998. After spending five years with large Baltimore firms and three years as a solo and small firm practitioner, Michael joined Wagonheim Law in 2006, where he continues to utilize his extensive experience in commercial, bankruptcy, and appellate litigation to work with companies throughout the mid-Atlantic region.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

 

Quantum Physics & Employee Motivation

Newton’s First Law of Motion, though revolutionary in its day, is simple enough: An object in motion will stay in motion and an object at rest will stay at rest, unless acted on by an outside force. 

This Law has helped legions of students understand physics and has shaped the world view of generations of scientists. And it works, too, until one gets down to the subatomic world where quarks, fermions and baryons dwell. There, as Daniel Pink says in his revolutionary book Drive about employee motivation, “things get freaky.” In other words, things don’t work the way logic and history teach us they should.

Surprisingly, the same can be said for employee motivation. 

The quest for employee motivation is about control and the application of external force. Speaking as an employer myself, I am constantly thinking about what I can do to control the outcome I desire. I think: “What can I do to raise our revenue by increasing the rate at which files are opened or the efficiency with which work is performed.“  

My mindset, in other words, tends to reflect conventional wisdom of “pay more, get more.”  If you want more widgets produced, hours billed, or projects completed, create a bonus structure that rewards production.   When I took Introductory Economics at Duke in 1982, our textbook instructed us that in a world of perfect information, the parties will work toward a wealth-maximizing result. In other words, wealth was the determinative factor in human motivation. And if wealth is the determinative factor, business owners like me could manipulate wealth, thereby increasing motivation.

The problem is that it just doesn’t seem to work that way with anything but repetitive piecework. Where creative, problem-solving work is concerned, things tend to get freaky.

Time and time again, people leave lucrative positions to take lower paying jobs doing what they truly like. They’ll forgo a W-2 environment for the much riskier (and more work-intensive) entrepreneurial undertaking. They’ll spend hundreds of hours playing clarinet when they don’t have a hope of getting to the stage. They’ll spend hours on Sudoku or puzzles without any kind of incentive or reward. 

My brother-in-law has spent his career as a long-haul truck driver, now working for UPS. From his observation of several large, nationally known companies, he concluded that most people wanted to do a good job. But when companies began installing incentive programs, long-term productivity plummeted. In the short run, of course, the drivers worked to attain the bonuses. Then, as the company began raising the targets and installing more incentives to hit, people began to tie their motivation to the bonus(es) they hoped to achieve. Once they determined that an incentive was out of reach or unimportant, their productivity dropped off to a point far below pre-incentive levels. 

Pink comes to this same conclusion by traveling a different path. Pink refutes the historical incentive laden bonus structure by pointing out such seeming anomalies as the rise of open source products such as Firefox and Linux, the triumph of all-volunteer Wikipedia over the heavily funded Microsoft Encarta, and the pervasive presence of non-compensated, open resources offering everything from car repair advice to recipes. 

In 1999, thirty years after his groundbreaking work as a psychology graduate student at Carnegie Mellon University, Edward Deci, reviewed 128 separate sociological experiments and came to the conclusion that tangible rewards tend to have a substantially negative effect on intrinsic motivation.    Why? Because the creativity and sense of accomplishment that people once enjoyed had, when presented with productivity bonuses, suddenly become “work.” As Pink stated, “over and over again, they discovered that extrinsic rewards – in particular contingent, expected “if-then” rewards – snuffed out the third drive [of internal motivation].”

The challenge, therefore, is a daunting one. It is easy, after all, to figure out the results we want and provide a monetary reward based upon achievement. The challenge, however, is to create an environment that sparks each producer’s internal drive to succeed. 

As we approach the New Year and contemplate, as business people, what we can do to make our own enterprises better in 2011, nothing merits consideration more than the question of employee motivation. We have to determine:

  1. What outcomes do we want to inspire; and
  2. What can we do as managers to incentivize the outcome without snuffing out that all-important self-motivation?

I’ll write more on this subject in upcoming blogs. Please feel free to weigh in with your comments.

 

 

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

Why Your Company Won't Get Venture Capital Financing

A few weeks ago, I discussed several different methods of financing a new business or providing for the ongoing capital requirements of an existing business (click here to read the blog). I touched on the difficulties inherent in trying to get bank or venture capital (“VC”) financing, and promised to discuss those issues further in a future blog. Not one to break a promise, this is that blog.

Let’s start with bank financing before we get to VC financing.  I’ll be blunt: generally speaking, most start-ups aren’t bankable (meaning they’re not good candidates for a bank loan). Banks tend to require an operating history, several years of audited tax returns, net operating income at a specific multiple of the anticipated debt service, accounts receivable or hard assets that can be pledged as security, and spectacular credit scores by the principals. Not to mention personal guarantees. If your company (or you, as the case may be) isn’t/aren’t able to produce most or all of these things, guess whose house is going to be mortgaged as collateral on the loan (assuming you’ve got equity in your house)?

That said, there are certainly lending programs at most banks that are geared towards specific types of startup businesses. Dental and medical practices come to mind, which are bankable for a variety of reasons that are beyond the scope of this blog. However, most new businesses simply won’t qualify for bank financing, particularly in light of the new-found lending conservatism brought on by the latest recession. 

Which brings us to VC, and why your odds of getting VC financing are slim.

Venture capital financing is, for the most part, limited to Silicon Valley technology wonks whose companies can deliver scalable businesses, proprietary technology (i.e., patented or patentable), and a minimum 35% pro forma return on equity with an ironclad exit strategy in 5 years or less. In other words, unless you’ve got a biotech, software, or alternative energy company with a defensible patent (VCs hate competition), you’re unlikely to be attractive to a VC firm.

Additionally – and I can’t overemphasize this – VCs are looking for stellar management whom they trust implicitly. The way they get to trust you is by knowing you. And the way they get to know you is by being introduced to you by someone they already trust. So if you’ve got a couple Wharton MBAs and a Stanford electrical engineer with 4 fuel cell patents to his credit on your executive management team, and you know a guy who works for Draper Fisher Jurvetson, congratulations! You might actually stand a chance of getting a VC firm to actually read your business plan. Continuing the theme, it also wouldn’t hurt if you’ve run and successfully sold or gone public with a previous company. And made lots of money for your previous investors in the process.

Finally, it’s useful to recognize that most VC investments don’t occur at the startup phase, but rather in a later round of financing, and most often in an amount equal to several million or tens of millions of dollars. This means that even if you do eventually get VC financing, you’d still need to rely on the 3 F's in the earlier stages of financing your business. Now, I realize that the idea of getting an infusion of capital amounting to several million dollars from a VC would make the principals of most small to medium sized businesses salivate, but consider this: could you produce a realistic business plan and a full set of pro forma spreadsheets demonstrating to the VCs how you plan to turn an $8,000,000 investment in your construction framing business into a $4,000,000 profit, PLUS return of their initial investment, PLUS a successful IPO or sale of your company, all in 36 months? Probably not. 

The simple math of the matter is that very few people, or companies, will qualify for VC financing. Factor in the sheer volume of business plans and elevator pitches that the typical VC sees and hears in a given year, and the fact that the volume of all VC financing has been severely reduced as a result of the recession, and the odds of a successful VC investment in your company become slimmer still. Which is why I pointed out in my last blog that the most likely source of funds for your business is the 3 Fs.

Questions? Comments? Concerns? Raise it for discussion on Facebook, Twitter, or LinkedIn.

 

You're Observing Corporate Formalities, Aren't You?

 

The first response I usually get from most businesspeople when I mention “corporate formalities” is a puzzled look. Which is not surprising, since the term is rarely used except by lawyers.  The second response is invariably a request by my clients for another cup of my famous high-octane coffee, since the mere mention of “corporate formalities” usually results in the realization that the meeting isn’t over yet (the end of a meeting with me being the highlight of most of my clients’ days). Fortunately, high-octane coffee is plentiful around my office. In extreme cases, I can even produce a finger or two of single-malt scotch if I notice my client snoring and slumped over in their chair mid-discussion.

But I digress. “Corporate formalities” is a term with which you ought to become familiar if you intend to run, or are already responsible for running, a business.

The reason I even bring this arcane term of art up is because of an admonition I included in my last blog (which you can access by clicking here. In that blog, I suggested that even if you make proper filings with the appropriate State agencies to set up your company, you would still not be adequately protected from company liabilities if you failed to also adhere to “corporate formalities” and maintain proper corporate records. So, what did I mean by that?

Let’s discuss a major misconception about “incorporating” (which is a term I use to mean forming any corporate entity, whether an LLC, corporation, partnership, or something else).  The misconception is that all one need do to obtain the “magic bullet” of limited liability is to file a document with the proper State agency, and voila! -- instant “teflon” for the company’s owners.  But the reality is quite different.

You see, incorporating involves a trade-off between you and the State (you didn’t really think that the State was going to give you a freebie, did you?). In exchange for limited liability for the owners of a company, the State insists that the company adhere to certain laws, keep certain records, and adhere to certain procedures.  Those laws, records, and procedures include the following:

  • The company must keep a separate bank account, and cannot commingle its funds with its owners’ funds and bank accounts. (Note that this is more straightforward in theory than in practice. I’ve seen numerous businesses get tangled up in banking and segregation of funds issues that could potentially lead to loss of the owners’ limited liability).
  • The company must make certain information public, such as the identity of the owners, the address of its corporate headquarters, and the identity of its agent for service of process.
  • The company must carefully authorize and document all actions taken by the company, usually in the form of signed resolutions (this is one of the most frequently overlooked corporate formalities, and potentially one of the most serious if the company is ever sued by a shareholder, employee, or customer).
  • The company must not engage in activities that are extraneous to its corporate purpose, or that properly belong to the owner or owners (e.g., don’t have your company pay for your tickets to Tahiti, or take on any tasks related to your spouse’s widget factory).

The bottom line is that the failure of your company to adhere to corporate formalities can result in a “disregard” of the corporate form by a court if your company is ever sued. Legally, this is known as “piercing the corporate veil,” and it’s a disaster by any measure. How? Well, if the court awards damages to the person suing your company, it means that YOU, as an owner of the company, are personally liable for those damages. It could also result in fraud and shareholder actions being upheld against you, and the literal unraveling of your company. 

Finally, let’s take the example of a corporate acquisition: your company has been approached by a competitor with a buyout offer, or you decide that, after 15 years in business, you want out and you want to sell your company. As a mergers and acquisitions attorney, I can tell you that the first thing the lawyers on the other side are going to ask for are your corporate books and records. Because the acquirer wants to know what they’re acquiring, and they want to ensure that they’re not inheriting any potential liabilities that they don’t want to inherit. Inadequate books and records can quickly scuttle a potential deal.

Again, I would urge you to ask yourself the following question: Is the modest cost of keeping adequate corporate books and records worth the potential personal liability, or the risk of scuttling a potentially lucrative sale of the company? Only you, as the business owner, can answer this question.

Has your company properly adhered to corporate formalities? Need help getting your corporate house in order? Give me a call. 

 

 
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