Legal

3 04, 2019

Special Legal Considerations for Home Services Franchisees

2019-04-03T15:39:03+00:00April 3rd, 2019|Tags: , , , , , |

Special Legal Considerations for Home Services Franchisees

By Jonathan Barber

If you plan to operate a home-services franchise, you’ve got some “legal-ish” things to look into. Cleaning, decorating, landscaping, moving and storing, renovating, repairing, and restoration franchisees work in and on customers’ homes, which probably means that specific insurance policies and state licenses will be necessary.

Getting these requirements squared away—as well as hiring trustworthy employees—can take a lot of time and money, which could affect your choice of franchise. Following are some areas you should examine in detail from the very beginning of your decision-making process.

Licensing Requirements

Does your state require a license to perform the tasks involved with a particular franchise? For example, state laws for general contractors vary widely. In some states, anyone who performs work costing a certain amount or more is considered a general contractor and must be licensed to perform that work. If you aren’t licensed, you could face serious consequences, including fines.

The first step in navigating this issue is to ask the franchisor what licensing is required for this particular business. The second step is to look into your state’s licensing requirements. If reading statutes isn’t your thing, find a local attorney who can give you some guidance on whether you need to be licensed. If licensing is required, you should factor the cost of acquiring it and the time involved into your franchise decision. You won’t be making money while you’re waiting on a license.

Insurance Requirements

States also may require certain types and amounts of insurance. Your franchise disclosure document should outline the franchisor’s insurance requirements. The franchise agreement should explain the insurance requirements in further detail.

You should speak with an independent insurance broker in your state to find out whether your state requires additional insurance — beyond what the franchisor specifies—for the type of business you’ll operate.

Employment Contracts

Today, most franchisors will not provide you with sample employment contracts because they try to avoid what’s called “joint-employer liability.” In other words, they don’t want to be considered an employer of your employees so they stay out of your hiring process as much as possible.

Make sure that your employment contracts are buttoned up because liability increases when your employees work at your customers’ homes. It’s best to follow the advice of a local attorney in getting your employment contracts in place.

You also should perform background checks on every employee. Obtain the employee’s written consent before performing a background check. Your customers and their property should be your No. 1 priority. One bad experience could really hurt your home-services franchise.

Choosing Your Franchise

The home-services market may seem to be so loaded with franchises that it’s difficult to select one. But great brands distinguish themselves from the competition by doing just one thing and doing it very well. So I suggest you consider a franchise that operates in a niche area with strong brand recognition and solid systems that are efficient and support you in every way. I’ve always said it’s better to be a Jack-of-one trade and master of it than to be a Jack-of-all-trades and master of none. (That’s why our firm handles only franchise law—no family law, real estate, estate planning, or criminal defense.) Doing one thing, and doing it well, is a terrific formula for success.

Jonathan BarberJonathan Barber exclusively practices franchise law as a partner at Barber Power Law Group, in Charlotte, North Carolina. He has assisted hundreds of clients world-wide with their FDDs and franchise purchases. Barber also represents emerging and established franchisors. Contact Barber at 980-202-5679 or jonathan@franchise.law

2 03, 2019

An add-on franchise can boost the profits of an existing business

2019-03-12T12:04:59+00:00March 2nd, 2019|Tags: , , , , , |

Man Fixing Roof

An add-on franchise can boost the profits of an existing business

By Jason Power

Many people have been bitten by the entrepreneurial bug and have started businesses rather than buying into a franchise. Many of those same people later realize they’re missing out on a huge opportunity to reach additional customers through the addition of extra products or services. This is where franchising can lend a hand through an add-on franchise.

So what is an add-on franchise and how does it work?

Many businesses are seasonal or offer services that can be easily complemented with related services. In these cases, a business owner can take the existing business model and add extra products or services offered by a franchise system.

Some examples of this model include:

  • Lawn maintenance companies that add tree-trimming services.
  • Convenience stores that add gasoline or fast-food options.
  • Roofing companies that add fire, smoke, water, and mold-remediation services.

These are just a few of the business models that can leverage their existing customer bases by selling additional products or services. By adding the complementary franchise, these business owners can enhance their existing companies by leveraging the buying power of the franchise, its brand recognition, and the support system offered by the franchisor.

What about the pros and cons of adding a franchise to an existing business?

With every business, pros and cons must be considered. The obvious benefit to this add-on model is the new profit center derived from the addition of complementary services along with the reduced workload of creating the new product or service offering from scratch. Although the profit potential is great, the business owner must also consider the costs associated with buying into the franchise model, the restrictions that will be imposed by the franchisor, and the long-term commitment that comes with buying a franchise.

What are the legal considerations?

As with most franchise agreements, the business owner will be expected to sign personal guaranty, non-competition, and confidentiality agreements. These agreements should be reviewed carefully to prevent undue hardship for the business owner’s existing business model. If the business owner leaves the franchise, by mutual agreement or otherwise, the business owner must ensure from the beginning that he or she can continue operating the existing business without interruption.

The franchise add-on model can be a great way to add profit to an existing business by leveraging existing space and current customers. By knowing how the franchise add-on model works, understanding the pros and cons, and speaking with an attorney who focuses on helping franchisees, business owners are equipped to take their businesses to the next level.

Jason Power exclusively practices franchise law as a partner at Barber Power Law Group in Charlotte, North Carolina. He has assisted hundreds of franchisees with their FDDs and buying into franchises all over the country. Power also represents emerging and established franchisors. Contact Power at jason@franchise.law or by calling 980-202-5679. Visit www.barberpowerlaw.com.

1 12, 2018

How Game-Changer Franchises Handle Legal Issues

2019-03-12T12:08:11+00:00December 1st, 2018|Tags: , , , , , , , |

Casual business meeting

How Game-Changer Franchises Handle Legal Issues

By Jonathan Barber

Game-changer franchises are filling niches, raising the bar on service, helping communities, building cult followings, creating opportunities for others, and generally turning heads everywhere. Aside from growing their franchises, game changers are truly interested in their franchisees’ well-being, and so they’re also rethinking how they view—and handle—legal issues.

Instead of dropping the hammer and collecting, game-changer franchisors are electing to help franchisees get past hurdles. Here, we’ll show you a few ways franchisors are changing the game and looking out for their franchisees on the legal front. Incidentally, this strategy is great for business because when the system works together, the brand takes off.

The Franchisee-Friendly Franchise Disclosure Document

We all know that the franchise disclosure document (FDD) is flat-out hard to read. Even though the federal franchise rules require FDDs to be “written in plain English,” lawyers just have a field day typing up run-on sentences chock full of four-syllable words. At the end of the drafting process, the franchisor has a 200-to-300-page document that they don’t fully understand.

Fortunately, there is a growing movement, particularly among younger, more entrepreneurial franchisors, to keep FDDs short, sweet, and to the point. My firm has recently drafted a few that, including the franchise agreement and all exhibits and addendum, come in at (or under) 100 pages. While the FDD and franchise agreement are at the heart of the franchisor/franchisee relationship, there is so much more that goes into running a successful franchise. The FDD shouldn’t be something that scares away prospective franchisees. In fact, it’s the franchisor’s biggest sales piece, and it should be drafted and treated like that.

Handling Franchisee Problems

A “default” occurs when a franchisee breaches the terms of his franchise agreement. Traditionally, when a franchisor caught wind of a franchisee doing something wrong, the franchisor would send a Notice of Default and then, if warranted, terminate that franchisee’s franchise agreement. Now, however, there is a growing trend among newer, younger franchises, in which the franchisor is more willing to work with franchisees to fix things.

A great example of this is when a franchisee gives a franchisor notice that the franchisee will not be able to meet its financial obligations for one reason or another. The franchisee may have cash-flow issues, staffing problems, or even personal things going on that could lead to this problem.

At this point, a franchisor has two options. On one hand, the franchisor could put the franchisee in default and proceed with terminating their franchise agreement once the opportunity arises. Then the franchisor could legally go after the franchisee for past due royalties, liquidated damages, attorney’s fees, and other expenses through the franchisee’s personal guaranty. That could be devastating to an individual franchisee and his family. Nevertheless, this has happened many, many times in just about every franchise system out there.

On the other hand, the franchisor also has the option to work with the franchisee. The franchisor could waive, reduce, or defer royalties for a few months. He may even send some support staff to help the franchisee operate the business more efficiently. The franchisor could even facilitate the sale of the business to another franchisee or someone outside of the system. In certain cases, the franchisor may even opt to buy the business and take it on as a corporate or affiliate location. These options show that the franchisor puts the health of the overall franchise system and its individual franchisees above its own interests.

Jonathan Barber exclusively practices franchise law as a partner at Barber Power Law Group, in Charlotte, North Carolina. He has assisted hundreds of clients world-wide with their FDDs and franchise purchases. Barber also represents emerging and established franchisors. Contact Barber at 980-202-5679 or JBarber@barberpowerlaw.com. Visit www.barberpowerlaw.com.

27 07, 2018

Protect yourself: Form an Entity

2019-03-12T12:10:54+00:00July 27th, 2018|Tags: , , , , |

Signing Legal Documents

Protect Yourself: Form an Entity

By Jonathan Barber

If you’re buying into a franchise, you’re probably about to make one of the biggest investments of your life. You’re likely spending hundreds of thousands of dollars and taking a great leap of faith. Maybe you’re taking out a small business loan or rolling over your retirement funds.

Maybe you’re using your parents’ hard-earned money that you just inherited. Regardless of how much skin you’ve got in the game, you’re heavily invested in this new venture and there is a ton of risk involved. Forming an entity is one way to protect your personal assets and limit your risk.

Limit Your Liability

When John Smith signs a contract in his own name, John Smith is personally liable if things go south in that deal. However, if John Smith forms Smith Holdings, LLC, and signs a contract as Smith Holdings, LLC, he is generally not liable for the obligations of that contract. The limited liability company that John Smith formed is responsible for performing the terms within that contract. This scenario applies directly to franchising. Before you sign your franchise agreement, you could form a business entity such as a corporation or a limited liability company. Then, if you sign that franchise agreement on behalf of your entity, you have greatly limited your personal exposure.

Most franchise agreements require that the franchisee sign a personal guaranty. This isn’t a dealbreaker, it’s an industry standard. A personal guaranty will make you liable even if you sign the franchise agreement on behalf of an entity. Almost all franchisors require this, because they need to ensure their franchisees are all-in with the franchise. If a franchise doesn’t require franchisees to sign a personal guaranty, those franchisees could essentially walk away halfway through their terms with no consequences.

With an entity in place, however, you’re still largely protected. For instance, if a man slips and falls in your store, he most likely won’t be able to take your house and the clothes off your back if you have an entity in place. He could sue your entity for negligence, but as long as you didn’t do anything malicious, he will likely only be able to get to the entity’s assets. Likewise, if your entity enters into contracts with vendors or employees, those parties would really only have claims against your entity—not you individually. The “limited liability” aspect of corporations and LLCs literally limits the liability of an entity’s owner. Some states are different though, and you should consult with a business attorney within your state for further guidance.

By purchasing a franchise, you are putting your business and personal assets on the line, and it’s impossible to completely eliminate your risk. However, you can balance that level of risk against the potential reward your franchise offers. You can also limit your personal risk for non-franchise issues like personal injury and negligence by forming an entity—and the low cost of doing so is worth the personal protection.

Jonathan Barber exclusively practices franchise law as a partner at Barber Power Law Group in Charlotte, North Carolina. He has assisted hundreds of franchisees with their FDDs and buying into franchises all over the world. Barber also represents emerging and established franchisors.