I’m a store owner and someone approached me recently about putting a donation box near my register for holiday donations. Am I responsible for protecting a food or toy box’s contents from theft or damage? I want to help, but don’t want liability for a charitable act.

Placing a donation box by the cash register is an easy way to engage your customers in supporting popular community causes. Donation boxes and their eventual contents belong to the nonprofit receiving the donations.

Make sure that the organization’s bin is fire- and weather-proof, and difficult to move. I would insist that the nonprofit provide documentation proving that the bin is insured, and would ask for a liability waiver as well.

You should not incur any expenses to host a donation box. Be wary of anyone who asks you to pay maintenance fees for the bin.

Find out from the nonprofit how often someone will come around to check the container. Boxes should be emptied frequently to discourage theft, and food boxes should be emptied at least once a day to discourage vermin. At least two people should be present when counting money.

I can’t imagine someone depraved enough to steal a toy from a child, food from the hungry, or money from the poor, but it does happen. If you have a donation bin in your store and you think someone has stolen from it, immediately contact the police, and then notify the box’s owner.

For many, the holiday season means the return of the Salvation Army red kettles and their classic bell-ringing. Unfortunately, every year a few kettles are stolen.

Who is liable for the money if a kettle is stolen? The Salvation Army has to pay about $300 to replace the kettle, but the real liability is felt by the needy families, seniors and the homeless of our community, who rely on those donations.

Don’t forget that tons of food and groceries are wasted each year, and the Napa Food Bank always welcomes donations. The Bill Emerson Good Samaritan Food Donation Act protects you from liability when you donate food to a nonprofit organization, even if what you donated in good faith later causes harm to the needy recipient.

December is a great time to embrace the holiday spirit and give to our neighbors in need. If you are planning to make a charitable donation, be sure that it’s to a reputable charity and that your donation will actually reach its recipient. Only donations to charities on the IRS list of qualified charities are tax-deductible.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

As an employer, am I required to pay my employees wages if a natural disaster temporarily disrupts my business? Do I still have to pay wages if my business is flooded and employees can’t work?

The lawyer answer is, of course, “It depends.” Whether you are required to pay employees during a temporary closure due to natural disaster varies based on whether your employees are exempt or non-exempt.

The Federal Labor Standards Act (FLSA) is a federal law governing wages and hours of work. For employees covered by FLSA, it requires employers to pay non-exempt employees no less than the federal minimum wage for each hour actually worked, and overtime at one and one-half times an employee’s regular rate of pay for hours worked in excess of 40 per week. FLSA requirements are not waived during a natural disaster.

The key to FLSA is the phrase “hours actually worked.” If you are unable to provide work to employees, you are not required to pay non-exempt employees for the hours they would have otherwise worked.

Exempt employees are treated slightly differently. The FLSA implies that exempt employees should be paid even if there is a temporary closure. If an exempt employee is ready, willing, and able to work, you can’t make deductions from their pay, even if work is not available.

In California, the Division of Labor Standards Enforcement (DLSE) doesn’t distinguish between exempt and non-exempt in its Interpretations Manual. However, while the DLSE created the manual to assist with interpreting law, it is not itself a law. Since it’s not completely clear, I recommend following the federal law.

If you have a labor contract with your employees or labor union, check your contract to see if you are required to pay employees during natural disasters or other temporary closures.

Now here’s an interesting twist — what if your business floods and the water destroys your business records? How will you calculate your employees’ wages?

The law requires that employers pay at least the full minimum wage and overtime compensation due for covered employees for hours that the employee worked. You may have to allow your employee to recreate their timesheet and pay accordingly.

Electronic record-keeping and a good backup system for financial and tax records may help mitigate risks that arise during a disaster. We recommend that businesses create backup copies of electronic files, store them in a safe place, and include a cloud-based system as part of that strategy. Remember, keeping copies of your business records at home won’t help if both your home and business are inaccessible.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

I own a restaurant and I’m not sure what to do with the tips that my servers receive. Do I need to keep track of their tips? If a customer uses a credit card, can I subtract the credit card processing fee from the tip? What about tip pooling?

Money that customers pay, give or leave for an employee, over the amount actually owed for the goods or service, is considered a tip (or gratuity) and it is the sole property of the employee to whom it was given.

In California, owners and managers are prohibited from sharing in or keeping any portion of gratuity that customers give to employees. You may not make wage deductions from gratuities, or use gratuities as a credit against wages, since tips are voluntarily left by the customer and never belong to the employer. Employees must be paid the minimum wage, on top of any tips they may receive.

A service charge, unlike a tip, is an amount that an establishment charges customers as part of the service contract. Interestingly, employers need not share any portion of the service charge with employees.

Employers who fail to keep accurate records of all gratuities can be charged with a misdemeanor, punishable by a fine not exceeding $1,000, or by imprisonment for not longer than 60 days, or both.

If you run a large food or beverage establishment, use IRS Form 8027 (Employer’s Annual Information Return of Tip Income and Allocated Tips) to file an annual return of receipts for food or beverage operations and tips reported by employees.

When a customer uses a credit card to pay their bill and adds a tip, you are required to pay your employee the tip in full, no later than the next regular payday following the transaction. You may not deduct credit card processing fees or costs from a tip.

You may require your employees to share tips (tip pooling) with other staff that provide service, as long as you don’t keep any tips yourself. In a restaurant, this would include employees who provide direct table service, such as waiters and waitresses, busboys, bartenders and hosts or hostesses. Owners, managers and supervisors may not receive compensation from the tip pool.

Violation of any of these rules could end with a wage claim before the Department of Labor Standards Enforcement (DLSE), a civil lawsuit for unpaid wages, or both. The DLSE treats underpayment and nonpayment the same and regularly seeks waiting time penalties and liquidated damages in both situations.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

Dear Mary, I’d like to start a new business, but I need money. I don’t know any big investors, but I have a lot of friends who believe in my idea and can invest a little. Is there a way for me to have a lot of little investors, instead of a few big ones?

You are not alone. In fact, there are so many other entrepreneurs in similar circumstances that earlier this year, Congress passed a law to address your situation. The Jumpstart Our Business Startups (JOBS) Act of 2012 allows for a wider pool of small investors, known as “crowdfunding.”

You may have already heard of websites like Kickstarter.com, where people can support business ideas by making small donations in exchange for something of value. The difference between these websites and the crowdfunding concept boils down to whether you’re getting a T-shirt or equity in the supported company. Under the JOBS Act, you could invest in a company for a relatively small amount of money, and receive an ownership stake.

Why isn’t everyone doing it? Well, it’s not quite legal (yet). The Securities and Exchange Commission (SEC) has until the end of the year to draft the crowdfunding regulations, but they’ve already requested more time.

We don’t know exactly what the final rules will look like, but there are some things we’re pretty sure about. Crowdfunded offerings will be limited to $1 million.

Under the new rules, crowdfund investors won’t have to qualify as “accredited investors,” which will allow these investors to invest in “the next Facebook” (or neighborhood food truck) without satisfying the $200,000 income or $1 million net worth accredited investor tests.

Investors with less than $100,000 in net assets or annual income will likely be limited to investing the greater of $2,000 or 5 percent of their annual income.

One of the big unknowns is how the SEC will regulate “solicitation,” which really just means securities advertising. If the regulations are liberal, we may see television commercials for the “next big thing,” or magazine ads offering investment opportunities.

Crowdfunding is very exciting — for businesses as well as for people who just want to make small investments in innovative businesses and ideas. Potentially, it could open up the previously secretive venture capital markets and level the playing field.

Of course, any time we have a new regulation, there are people who will abuse it. As an investor, be on the lookout for potential scams. And as a business, remember that you may be held liable for fraudulent offers posted on a crowdfunding portal.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

In my last column, we discussed whether an employer must provide a current or former employee access to his or her personnel file and payroll records. This week, we’ll look at the specific information an employee may review.

The general rule is that a current or past employee has the right to inspect his or her personnel and payroll records, but what does that include?

Typically, you need to retain and provide his or her job application, payroll authorization form, wage garnishments, education or training certificates, performance appraisals and reviews, attendance records, and all employee action documents, including commendations, warnings, disciplinary actions, layoffs, leaves of absence, vacations and termination notices.

As with most laws, there are exceptions. You need not provide access to reference letters, nor are you required to provide access to records relating to a possible criminal offense. Employees have no right to access records obtained before the employee was hired.

If an employee or job applicant makes a request for any documents that they have signed relating to obtaining or keeping a job, you must provide them a copy, not just allow them to inspect.

The reference letter exception excludes not only pre-hire letters, but also responses from persons who were asked about the character or ability of the employee after the person was hired.

If there are reference letters in an employee’s file and you don’t want to share them or they’re confidential, you may choose to provide the former employee with the author’s name or a comprehensive summary of the contents.

If the file includes any third-party confidential communications, those people have a right to keep their names, addresses and telephone numbers confidential.

I’m not sure whether it applies to your particular business, but if your employees are exposed to potentially toxic materials or harmful physical agents, you must provide accurate records of that exposure.

Be careful with the timeline in allowing an inspection. If you receive a written or oral request from a current or former employee to inspect or copy his or her payroll records, you are required to comply as soon as possible, but no later than 21 calendar days from the request. If you don’t comply in time, the employee can recover a penalty from you.

It’s also a good idea to keep a record or log of employee inspection requests, including when the request was made, whether you allowed the inspection, and if so, when it took place.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.

Dear Mary, I have a new product that’s about to go on the market. I’ve noticed that some of my competitors have “TM” after the product name, or an “R” with a circle around it. What’s the difference? Do I need to add something after the name of my product?

There are several different designations for trademarks and service marks, and they each mean something different. A trademark is a word, phrase, symbol and/or design that helps consumers identify the source of a product and distinguish it from products owned by others. A service mark identifies the source of a service instead of a product. People often use “trademark” to mean both trademarks and service marks. Companies also sometimes try to protect sounds, smells, and even tastes as non-traditional trademarks, although registering source-identifying taste is nearly impossible.

A letter “R” with a circle around it signifies that the name is a registered trademark, meaning that the mark is registered with the U.S. Patent and Trademark Office, or another country’s trademark office. An owner of a mark can apply for federal registration, although it’s not required. Registration puts the public on what’s called “constructive” or “legal” notice that the owner claims an ownership interest in the mark. The ® symbol may be used only after an applicant receives approval for a registration, not while an application is pending.

The letters “TM,” often in superscript, typically means that the owner does not have federal registration of the mark, but is claiming either common law rights or a state registration. Anyone can use this symbol if they wish to claim a mark as their own. No paperwork or permission is necessary to use the TM symbol.

The letters “SM,” again often in superscript, are used just like the letters “TM,” except they refer to an unregistered service mark identifying services instead of goods.

In your case, if you do not want to register your trademark, but you would like to protect your mark and claim it as your own, I recommend putting “TM” next to it. Be sure that your mark truly is unique — if someone else is using the same or similar name you might be infringing on their trademark.

Registering your mark provides many advantages, including putting the public on notice of your ownership of the mark. There is a legal presumption that if your mark is registered, you have the exclusive right to use the mark. This can be extremely important later if someone tries to sell a product that looks or sounds like your mark.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached atmary@hudsonluros.com or 418-5118. The information provided here is not intended as legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information. In a perfect world we wouldn’t need disclaimers — or attorneys.