Dear Mary, I recently found out that a customer left a bad review of my company on a review website. Is there anything I can do about it?

As a business owner, it can be daunting to know that customers can post reviews of your business at any time, with very little oversight by the host website.

Word of mouth continues to be the best, most cost-effective advertising any business can use. With the growth of online review sites such as Yelp, word of mouth has become even more popular and people are rating everything from their plumber to their dentist. Many people are skipping the Yellow Pages and heading straight for the Internet.

But what if a rogue customer gives you a critical or hostile review, or worse — a review with false content?

If you can prove that a malicious review contains untrue statements, your first step should be to contact the review site and ask them to remove the posting.

Unfortunately, review sites are very wary of removing postings. As an alternative, several sites, such as Yelp, allow business owners to respond to reviews directly.

If you read that someone has had a bad experience with your business, and you don’t believe that the review is false, you may want to contact that reviewer directly and offer amends. An apology and a gift certificate, discount, or invitation to try the business again can go a long way.

On the other side of the coin, you may also want to thank reviewers who have given you great reviews. Use their generous words on your website, brochures and other marketing materials.

Contrary to what you might think, buying advertising on a review website will not affect the content of your reviews. However, encouraging your customers or clients to review your products or services can be extremely beneficial. One bad rating won’t affect you as much if you have a dozen or more high ratings. And don’t underestimate having the highest rating among your type of business in your geographic area.

People will post reviews of your business whether you want them to or not. Try not to take it too personally, and understand that you can’t please everyone. Google yourself regularly to find out what people are saying about your business and make sure review sites have your correct information.

Online review websites offer a huge potential for you to update the way you promote and market your business. The instant feedback on these sites is also an opportunity for you to listen to your customers and improve your services or products.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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,

Lately, I’ve been cracking down on employees goofing off at work. Is it OK for me to ban text messaging at the office? What if I use a cellphone jammer?

I understand your concern that text messaging may be harming the productivity of your company’s employees. Still, have you considered the repercussions of a texting ban?

Nowadays, people rely very heavily on their cellphones as a primary means of communication. Many people also depend on cellphones for text “check-ins” from their families. These morale boosters can affect your productivity in a good way.

If it’s one particular staff person who is texting half the day, you could talk to them about their responsibilities to the company and remind them how important it is that they focus on their work. Some people don’t even realize how much time they spend on their cellphones. If it’s just one person doing the texting, it might not be fair to punish everyone.

On the other hand, if it’s a bigger problem or you own a larger company, consider implementing a texting policy. What that policy looks like will depend on your workplace, how many employees you have, what your industry is, and how productive your employees are.

If your employees often have to meet with clients, then you should probably discourage them from texting during client meetings, even if the texting is for business purposes. Similarly, if your employees are required to drive as part of their job, then obviously you should prohibit them from using their phones while driving.

A policy is only as good as your willingness to enforce it. There’s no point in drafting a policy and then looking the other way when your employees break the rules.

If you ban text messaging or otherwise limit personal phone usage, you need to be clear on how to handle an emergency in which your employees are able to reach family members by text message. In most cases I would not recommend a companywide ban against texting, since there are so many justifiable reasons for needing to text, and because it’s convenient and discreet. Consider your employees’ needs as well as the productivity of your business.

Under no circumstances should you use a cellphone jammer, which is a device that blocks cellphone data and voice service. Interfering with radio communications with a jammer is against the law in the United States, as well as many other countries. Cellphone jamming is considered property theft and is a safety hazard.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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, My business partner and I can’t seem to agree, and he’s threatening to sue me. How much does going to court cost and how long does it take?

Reader, I have a better prospect for you to consider.

It’s not that I don’t enjoy litigation, but I can almost guarantee that you won’t enjoy it. The California court system has seen a rise in congestion over the past few years, and like everyone else, they’re doing more with less. With court resources being cut daily, the cost of litigation is increasing.

What if I told you that you could probably work out your issues with your partner without going to court? Save the $100,000 or more that litigating in public would cost your business and think about Alternative Dispute Resolution.

Alternative Dispute Resolution is usually quicker and cheaper than litigation. Alternative Dispute Resolution includes several different types of resolution, including contractually bound negotiation, mediation, arbitration and reference.

The first step in deciding how to resolve your issues is to look at any agreement you may have with your partner. If your partnership agreement requires arbitration, then the decision is made for you. If you don’t have an agreement that specifies how disputes are resolved, then assess your needs and resources to select a method that might actually preserve your relationship instead of destroy it.

Contracts, case law and common sense require the parties to formally consult with each other before initiating litigation or arbitration. Contractual terms that define the dispute resolution process may require the parties to substantiate their claim(s) in writing, or it might require a meeting to discuss the issues. As you can imagine, this kind of negotiation often turns into a conflict. If you could have resolved it, you probably would have.

Mediation looks like negotiation, but it involves an impartial third person who acts as a facilitator to help the parties reach resolution. There are two important requirements: 1) the mediator must be completely impartial, and 2) the mediator must facilitate, not make decisions.

In arbitration, parties attempt to resolve their dispute before an “arbitrator,” who hears and considers the evidence and then renders a final, and sometimes binding, decision. Arbitration is often more efficient than regular litigation.

The reference procedure is a mix between arbitration and litigation. The parties have the court appoint a referee to try some or all parts of a dispute. This kind of procedure is usually quick, but you can still appeal the decision.

To learn more about Alternative Dispute Resolution, call an attorney or visit the court’s self-help center.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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 recently fired an employee and received a notice from EDD that he is claiming unemployment. I don’t know if they are entitled to unemployment or not. What do I do?

To be eligible for unemployment benefits, an individual must be: out of work due to no fault of their own; physically able to work; actively seeking work; and ready to accept work. A part-time or short-term employee may file an unemployment claim if they meet all of the eligibility requirements.

The Employment Development Department (EDD) will notify the very last employer when an individual files an unemployment claim. This is true regardless of the length of time the employee worked for you.

If you receive a notice of unemployment claim, you have only 10 days to respond, so plan on gathering the necessary information and responding immediately. The most important facts you can provide the EDD involve whether the employee voluntarily quit or was discharged for reasons other than lack of work. If they quit or were fired for misconduct, then they don’t qualify.

If you have information about whether the person is unable to work, hasn’t been looking for work, or has refused work, let EDD know that as well. Review the claim carefully and verify that all of the statements are accurate and complete. The claim should list a reason for separation and the last date worked—make sure that information is correct and properly reflects your records.

You may receive a Notice of Determination (or Ruling) from EDD, which provides a decision on the employee’s eligibility for unemployment benefits. I often see determinations based on the reason the employee’s job ended. Whether or not a person was fired for misconduct can be a gray area.

If the employee’s eligibility for unemployment benefits is unclear, EDD typically conducts separate telephone interviews with the employee and the employer. If the issue is the reason the employee’s job ended, EDD will investigate the reasons why the individual quit or was fired. The employer has the burden of proof that the employee was fired for work-related misconduct.

Another big issue that often results in a telephone interview is whether an individual has refused an offer of work. EDD will try to determine if the work was suitable and if the person had good cause for refusing the work, as well as whether the claimant is able to work. To be eligible for unemployment, an individual must be available for work and willing to accept work when offered. Sometimes, an employer may offer an employee an alternative position. An unreasonable refusal of such an offer can seriously undermine an unemployment claim.

Telephone interviews are usually brief. Make sure that the person representing the employer is familiar with the employee and their separation. EDD questions should be answered with responses that are as detailed as possible. Do not be surprised if you end up receiving a notice of hearing from EDD to delve into the issues further.

There are several things you can do as an employer to avoid conflicts: keep good employment records, give written warnings and evaluations, and conduct well-documented exit interviews and terminations. In addition to keeping good employment records, it’s equally important to keep those records secure and confidential.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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, My store is growing, and I’m currently advertising a position for a sales clerk. A regular job interview isn’t going to show me whether someone is a good match. Can I use “working interviews” instead? That way, I can see if they work well and get some free labor while I’m at it. It would also be good training for them to see what the job involves and what the job requires.

A working interview involves bringing in a job candidate to work for a few hours or a few days without actually hiring them. The idea is that instead of a regular job interview, candidates would have to prove themselves in a hands-on setting.

It sounds like a great idea, but unfortunately, working interviews do not exempt you from your obligations as an employer. You can’t ask someone to perform work for you without paying them minimum wage for those hours.

You can test an applicant’s typing or math skills, and you can ask them how they would handle various workplace situations, but having them actually perform productive work is off limits, unless you plan on compensating them and following California labor laws.

Temporary employment agencies popularized working interviews, which started the practice by offering “temps” to employers under a trial or probationary arrangement to determine if the applicant would work out. Employers cycle through these “temps” until they find one they like, and then hire them. This practice can be legal, because during this period the temp agency is compensating the applicant as an employee.

There’s no such thing as a free trial period when it comes to employment. If you want to give applicants a chance to prove themselves, you should consider hiring applicants for a trial or probationary period.

With an introductory period, the employer hires the applicant for a limited period of time, typically 90 days. During that period, the employee must prove their abilities and show that they are a good fit for the business. Until the introductory period is up, they are not entitled to certain benefits and they may be terminated at any time.

Employees must be paid no less than minimum wage, they are eligible for workman’s compensation, and you must withhold payroll taxes. You should follow your typical employment rules and perform a background check, give them a copy of the employee handbook, and have them sign your confidentiality agreement.

A good way to be clear about the probationary period is to put it in clear terms in an offer letter. Explain how long the trial period will last and how much compensation and benefits the employee will receive. Emphasize that this offer is not a promise of future employment.

Probationary periods can also be extended. This often occurs when there’s a change in supervisors, or when an employee takes a leave of absence. It can also occur when an employee’s attendance or performance causes concern. Make sure your employee receives clear performance standards and understands their job duties. Document any performance that is less than satisfactory and give your employee an opportunity to correct the problem through regular performance reviews.

Keep in mind that California is an “at-will” state; generally speaking, you can terminate an employee at any time, with or without cause. An employee who completes a probationary period has no guarantee of ongoing employment.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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, My business provides a somewhat dangerous service and I require everyone to sign a liability waiver before they participate. A friend recently told me that liability waivers aren’t worth the paper they’re written on. Is that true?

Liability waivers are signed releases in which people give up certain rights in exchange for the services provided by a business. The purpose is to limit or eliminate the liability of the business if someone gets hurt.

There are several problems with liability waivers. Consumers usually don’t think about what they’re giving up when they sign these kinds of forms. People either skip reading it because it’s long and full of obscure legalese, or they do read it and still don’t understand what they’re giving up.

The next time you park in a private garage, take a look at the back of your parking slip. California courts have held that these preprinted tickets with liability waivers on the back can give sufficient notice that the lot will not take responsibility for damage.

But what other option do you have if you want to participate? It’s not like you can park in the garage without “agreeing” to the waiver of liability.

The general rule in California is that releases and liability waivers can be enforced, as long as they are properly drafted and executed and are otherwise recognized as a valid agreement. That doesn’t necessarily mean that if you sign a waiver and are injured you completely give up your right to be compensated for injuries.

You may challenge a waiver of liability if it’s illegal in form or content. The content and form must be easy to read and it must be clear and explicit with regard to its scope and effect. A layperson should be able to understand it and also appreciate its significance.

Under California law, a release cannot extend to claims that a consumer doesn’t know about when they sign a release. The intent of this law is to prevent people from inadvertently waiving unknown claims merely by signing a general liability waiver. If you’re drafting a waiver, it should include a direct quote of this law, which is often called a “Section 1542 waiver.” I also recommend including a space for consumers to initial next to that language, indicating that they acknowledge the 1542 waiver.

Drafting a valid waiver is not an easy task. Courts have invalidated releases if the language is oversimplified, if a key word is in the title but not the text, and if the release is too lengthy or too general.

Like any other contract, waivers can be invalidated if they are obtained by fraud, deception, misrepresentation, duress, or undue influence. Fraudulently obtained releases can happen if the nature or contents of the document have been misrepresented, if the release was obtained without full disclosure of the relevant facts, or if the consumer was prevented from knowing about their claim.

Waivers can also be invalidated if you can prove that the other party was more than just negligent — what lawyers call “gross negligence” or “recklessness.” Gross negligence occurs when someone shows a completely willful disregard for safety and human life. For example, if the private parking garage from above has live electrical wires hanging from the ceiling.

Waivers do not prevent consumers from making products liability claims. Even if you’ve signed a waiver, you could still bring a claim against a manufacturer, distributor, or designer of a defective product.

The moral of the story is, if you’re a business, it doesn’t hurt to make your clients sign a liability waiver. If you’re a consumer, read what you sign! And if you’re injured and you’ve signed a liability waiver, contact an attorney for advice.

Mary Luros is a business law attorney with Hudson & Luros, LLP, in Napa, and can be reached at mary@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.