Limited liability business forms are generally created by the government. Given this fact, to what extent is it appropriate for the government to interfere in the operations of such a limited liability entity?

During this holiday week, I was doing my best to balance my study and my job. Fortunately, "the power of habits" helps. I always write down a to-do list for myself to understand all the necessary tasks and things I have to do. "The Power of Habits" is also a name of a bestselling book. Due to the help of habits, we lower the tasks of our prefrontal cortex and boost our productivity. In addition, thank you for all your contribution, without your kindness, the world will be darker than it use to be. 

Limited liability business forms are generally created by the government. Given this fact, to what extent is it appropriate for the government to interfere in the operations of such a limited liability entity?

First of all, I learned that a limited liability company (LLC) is a business structure in the U.S. that protects its owners from personal responsibility for its debts or liabilities, although in some cases, if a fraud is detected or if a company fails to meet its legal and reporting requirements, creditors may be able to reach the members' assets. An LLC is easier to set up than a corporation and provides more flexibility and protection for its investors. Entities such as Alphabet, the parent company of Google, and Exxon Mobil Corp, are both LLCs. The primary reason business owners opt to register their businesses as LLCs is to limit the personal liability of themselves and their members or investors, and the flexibility of taxation options since it prevents its owners from being held personally responsible for the debts of the company, and also allows all profits to be passed directly to those owners to be taxed as personal income. That avoids double taxation of both the company and its individual owners. 

I think from the government's perspective, more business and companies probably means more income from taxation if they are thriving. Most governments don't want business owners to be out of their control to do unethical things such as fraud, breaking the law, or even tax evasion, which would be shooting on their own feet. And, instead of interfering in the operations of such a limited liability entity, I reckon that governments can treat those entities as part of their assets. They can bring you tax incomes, provide jobs, produce useful goods, and more. However, if one of the assets starts to lose its functions or even hurt others like a virus, consuming the nutrient of its host, the governments must do something to stop and block it. Some regulatory agencies such as Consumer Product Safety Commission, Environmental Protection Agency, Equal Employment Opportunity Commission, Federal Deposit Insurance Corporation, Federal Trade Commission, Securities and Exchange Commission, and more, work together like the immune system inside the human body. Like an army that protects its people against possible danger, I believe what the governments should do is to monitor as anti-virus software, rather than to over interfere what do people use laptops for.

Reference

Fernando, J. (2021, December 7). How a limited liability company (LLC) works. Investopedia. Retrieved December 28, 2021, from https://www.investopedia.com/terms/l/llc.asp 

The requirements for starting a corporation in the United States, India, and China

Introduction

While the businesses world is so wide in breadth and diversity, it can be a confusing task for entrepreneurs who try to start a new business entity. Although there is no single solution for choosing what forms of the entity, there are some tips for it. We must consider the cost to create it, how difficult it is, how to convert it or transfer it in the future, how to raise the capital, how to control and manage it, how to pay effectively pay taxes, and most importantly, to limit your risk by creating a limited liability entity.

Since corporations have multiple advantages such as a separate legal entity, continuity, relatively easy to raise capital, teamwork, and of course, limited liability, many entrepreneurs eventually incorporate it to create their empire. When you consider forming a corporation, you must register your business to make it a distinct legal entity. How and where you need to register depends on your business structure and business location. Depending on the state in the US or other countries when you form a corporation, you must take many essential steps to form a corporation properly.

Requirements for Starting A LLC

Normally, to start a new LLC, you have to file the articles of incorporation to legally register it to be a legally separate entity. You can form it all by yourself or hire a service to do it for you, an LLC formation service, such as ZenBusiness will form your LLC and act as your registered agent. Notice that the registration requirements for Non-US Citizens and Non-US companies are different, so don't pick a formation package that includes an EIN. Either way, you still have to consider first what kind of business organization you want to form. Here are the steps and tips for informing a corporation in the United States, India, and China.

In the United States

Forming a US company is a good way of expanding your business into the US if you’re not a US citizen or operate a foreign company. The best business structure to use when forming a business in the USA is a Limited Liability Company(LLC) and then convert it to a corporation. Anyone can form an LLC in the USA; you do not need to be a US citizen or a US company. The most major factor you must consider before forming your US LLC is your ability to obtain visas to travel to the US from your country to open a bank account for your US LLC. Forming an LLC in the US does not grant you any visas to work in the USA. Opening a US bank account will make it easier to do business with other US businesses. After that, choose your LLC’s state, form the LLC, get an Employer Identification Number (EIN), and have a physical US mailing address. 

What Are The Steps To Form A US LLC?

Let's look at each step to form a Foreigner-Owned LLC:

i. Select a State

It is usually advisable to form an LLC in a state without state taxes, so you only have to handle US Federal Taxes. But, depending on the purpose of your business, if you need to open offices, have a physical store, physical office, employees, or a job site in a particular state, you will need to form an LLC in that state. Wyoming, Delaware, and Nevada are the states you should consider first. Wyoming has foreigner-friendly laws, lower filing and annual fees, and no state, personal, corporate, or capital gains taxes.

ii. Name Your LLC

Every state has its own rules about what kinds of names are allowed for LLCs. Typically, you must observe the guidelines such as it must include phrases like "limited liability company", LLC, or L.L.C. And, it cannot include words such as FBI, Treasury, State Department, etc, confusing your LLC with a government agency is not allowed. Some specific words such as Bank, Attorney, or University, are restricted. Those words require additional paperwork like licenses, hiring a specific professional, or other legal documents to be approved. After considering all these factors, you can try to come up with the best brand name for your business, then follow the naming rules for your business structure, and check if the name is available.

iii. Hire a Registered Agent

Most states require every LLC to nominate a registered agent. It is typically best to hire a registered agent service for your non-resident-owned business, as the service you hire will have a physical address in your business’s state, and will be open all required hours to accept service of process.

iv. File LLC with the State

Of course, to officially file an LLC, you will need to file your documents, the Articles of Organization, with the state.

v. LLC Operating Agreement

A comprehensive operating agreement ensures that all business owners are on the same page and reduces the risk of future conflict. Although typically an operating agreement is not required in most states, it's a good practice to have one. It is a legal document outlining the ownership and operating procedures of an LLC. It may look like this:

Source: https://howtostartanllc.com/free-operating-agreement-template

vi. Get an EIN(Employer Identification Number)

EIN is a tax ID for your LLC and also represents this entity is legal and trustworthy. You do not need either a US Social Security Number (SSN) or an Individual Tax Identification Number (ITIN), or a US mailing address to get an EIN. 

vii. Get a Physical US Mailing Address

You need a physical address in the state you choose since it is necessary to open a bank account in that state. You can establish a physical office in the state you’re going to form and do business in. However, if you do not need to open a physical office in the US, you will still need a US mailing address in your LLC’s state. Services such as Earth Class Mail or ANYTIME Mailbox can set you up with a real US Mailing address, which is required to register for a US bank account and is useful for other services.

viii. Open a US Bank Account

Obviously, opening a US Bank account for your LLC will be the most complicated part of the process due to US money laundering laws. But it will be done once you’ve formed the LLC, and received your EIN. This step may be the most challenging hurdle by far because it requires a trip to America to physically apply at a bank branch. Make sure you call the bank ahead of time because different banks may have different requirements, so you can prepare all of the required documents. New FinTech services such as PayPal can be a good option, depending on the nature of your business. Notice that your LLC’s bank account does not have to be opened in the state your LLC is formed in, but the bank must have a presence in that state.

To Form A US Corporation

After learning the steps to form a US LLC, let's look at a corporation because you probably want to convert your LLC to a corporation when it grows to reach a certain level. A corporation is a registered business treated as a separate legal entity from its owners, also known as shareholders, and guided by a board of directors. You can start a corporation for your small business by appointing an initial director and filing formation documents with your state's business division.

The steps are similar to LLC, with just a few differences. 

i. Choose a Business Name

Of course, it has to be started with a name. And, you'll probably need to include a word that identifies your business as a corporation such as "Incorporated" or "Limited" or "Corporation". Just like LLC, commonly restricted words include "Bank" and "Insurance." In addition, make sure your proposed corporate name doesn't infringe on any trademarks. So, do a trademark search to determine if there are pending trademark applications or active registered federal trademarks with the USPTO.

ii. Check Availability of Name

Ensure that the name is legally available. Check with your state's office of business and corporations to determine if a corporate name is available for use.

iii. Register a DBA Name

The DBA means "doing business as", refers to a plan on operating a business under a different name than the corporate name. The fictitious name has to be registered to be legally used.

iv. Appoint Directors

An owner can be a director, a director need not be an owner. The number of directors you will need to appoint will depend on state regulations.

v. File The Articles of Incorporation

You are required to file articles of incorporation with your state's Secretary of State office. 

vi. Write Corporate Bylaws

Bylaws set out the rules governing how your corporation will be run such as the stocks which the corporation is authorized to issue, the number of directors required, and procedures related to meetings and record-keeping.

vii. Draft a Shareholders' Agreement

A shareholders' agreement is a document you'll want on hand in the event of the death or retirement of an owner, or some other event that causes an owner to need to transfer the ownership. If you are not so sure about what you should do on this step, consulting with an experienced business attorney is a good option.

viii. Hold Initial Board of Directors Meeting

An initial board of directors meeting should be held to deal with matters such as the adoption of bylaws, the appointment of corporate officers, and the authorization to issue stock. 

ix. Issue Stock

If a corporation wants to issue stocks, it needs to be approved by the board of directors. Small corporations are likely to be exempt from the more onerous requirements of the Securities and Exchange Commission (SEC).

x. Licenses

Before your corporation can be open for business, you'll need to obtain business permits and licenses. Requirements will vary depending on your state and local government. 

xi. Register With the IRS and State and Local Tax Agencies 

The Internal Revenue Service(IRA) is the revenue service for the United States federal government, which is responsible for collecting taxes and administering the Internal Revenue Code, the main body of the federal statutory tax law. Corporations are separate taxpaying entities. Therefore, you will need to obtain tax ID numbers from the IRS and your state and local revenue agencies. 

xii. Open a Corporate Bank Account

Finally, just like LLC, your corporation must have a bank account that's separate from the bank accounts of its owners. Banks may require a corporate resolution or a copy of the articles of incorporation. Most banks also require a corporation's EIN.

In India

If you are willing to register a startup or a new company in India then you need to file in Indian official records Ministry of Corporate Affairs (MCA).

Steps for Processing to Setup Company in India: 

1. Company Name 

The name of the company should be so unique that there should not be any existing company with the same name and there should not be any trademark registered with that name. 

 

2. Digital Signature Certificate 

Digital signatures are signatures of an individual in electronic form. DSC is required at various stages in the process in the Setup company in India for directors and shareholders.

 

4. Registration Documents 

You must draft the Articles of Association & Memorandum of Association and other Relevant Form to Start Company in India. 

 

5. Signing and Notary of Documents  

These legal documents need to be signed in presence of the attorney and need to get attestation. However, investors in the US need to get a document notary and apostle, while investors of the UK need a notary only.

 

6. Filling of Registration Application

This process can be done by Company Secretary or Chartered Accountant Registered in India, as in this process one certification from Company Secretary or Chartered Accountant is required. 

 

7. Certificate of Incorporation 

If all documents are in order and approved, you will be allotted Certificate of incorporation, PAN-Permanent Account Number, TAN- Tax Account Number, and DIN- Director Identification Number.

 

8. Corporate Bank Account 

To be more professional, opening a corporate bank account is necessary. International banks such as Citibank, HSBC, or Standard Chartered Bank, may be useful for a foreigner.

9. GST Registration (Goods and Services Tax) 

Once you opened the bank account, you will need to get GST Registration using the Same DSC. 

10. Registered Office

Your Indian company must have a registered office, which must be a physical address in India. Usually, there are service providers to seek for.

11. Indian Company Directors

Your Indian company requires just two directors and one of them should be an Indian Citizen. 

12. Indian Company Shareholders

Corporations or individuals of any Nationality can be Shareholders of an Indian Company. So being a foreigner you can hold 100% ownership of your Indian Company.

13. Share Capital

The minimum share capital required is INR 100,000. For a Private Limited Company, it is INR 1,00,000.

14. The Paperwork

To start a company in India require the director's full name, date of birth, address, and nationality(Copy of passport & Any Utility Bill), shareholder's full name, and address(Copy of passport & Any Utility Bill).

Process for Company Set Up in China

China is being considered one of the big potential markets in the world. As a foreign investor, starting a business in China is not an easy thing considering the difference in politics, language, culture, and more. Company formation in China is quite complex and time-consuming as it involves a lot of formal documentation that could take months to be completed by foreign investors. Moreover, maintaining corporate operations in China is also not an easy task. Therefore, many foreign investors engage a local service provider who can assist them in handling the corporate formations along with dealing with the tax & accounting issues since they are not familiar with the local policy. It is very important to know that while many foreign investors might think of closing their company just after a few months of operation due to company losses, closing down business in China is not so easy as simply stopping all the operations and abandoning the company. If you are interested in selling your products directly in China, you can then consider setting up a company in the country. Depending on the purpose of your entity, there are five types of entities you can consider to form in China. They are Wholly owned Foreign Enterprise (WFOE), Representative Office (RO), Contractual or Cooperative Joint Venture (CJV), Equity Joint Venture (EJV), Foreign Invested Partnership Enterprise (FIPE).

The Steps for Starting A Business in China:

1. Apply for name approval and registration
2. Rent office space as necessary
3. Online registration via MOFCOM(MINISTRY OF COMMERCE, PEOPLE'S REPUBLIC OF CHINA).
4. Apply for a “5 in 1” business license from the local Administration of Industry and Commerce (AIC)
5. Carving chops for the new company
6. Opening bank accounts
7. Register under tax authority
8. Further registrations with local authorities. Special licenses are required to obtain before doing business in specific industries
9. Open company social insurance and housing fund account
10. Issue contracts and complete the necessary registration for employees.

Is The Process Easy Or Difficult for Each Country? 

Overall, due to the politics, language, and culture, I think it is relatively harder to form a corporation in China. The US is the most painless one since the requirements are not so hard to reach. India is somewhat in the middle because it requires Digital Signature Certificate and many identification numbers. 

How Do You Think The ease or Difficulty of Forming A Corporation Affects The Economic Efficiency of Each Country? 

I reckon that the ease or difficulty of forming a corporation did affect the economic efficiency of each country, because a country where it is difficult for a merchant, whether local or foreign, to acquire the permits, licenses, and registration of their business. Also, a country with a bureaucracy in the processes to create companies is obviously not working efficiently in favor of its economy. Countries with more flexibility in the processes are generally those where the economy is strong because it welcomes talented entrepreneurs who want to start their businesses. For example, starting a corporation in India can be hard due to its bureaucracy. They are too bureaucratic and culturally they have a different way of seeing things, putting obstacles. To start doing a business in India, you must first like the country and you must find at least two trusted local partners that belong to different religious or cultural communities. In China, doing business is much harder if you are not allied with its government. 

Reference

Belle Wong, J. D. (2021, October 21). How to form a corporation. How to Start a Corporation. Retrieved December 27, 2021, from https://www.legalzoom.com/articles/how-to-form-a-corporation 

Home. (n.d.). Retrieved December 27, 2021, from https://www.mca.gov.in/content/mca/global/en/home.html 

TRUiC. (2021, December 8). How to open a company in the USA. howtostartanllc.com. Retrieved December 26, 2021, from https://howtostartanllc.com/open-a-company-in-the-usa 

The ultimate guide on starting a business in China. FDI China. (2021, October 19). Retrieved December 27, 2021, from https://www.fdichina.com/blog/starting-business-in-china/ 

Sometimes companies move their corporate headquarters out of their home countries to countries with more favorable tax treatment. Which duty do you believe is higher, the duty of corporations to pay tax to the government or the duty of corporations to pay dividends to shareholders?

 Sometimes companies move their corporate headquarters out of their home countries to countries with more favorable tax treatment. Which duty do you believe is higher, the duty of corporations to pay tax to the government or the duty of corporations to pay dividends to shareholders? 

Actually, I think it is not sometimes, it usually, especially big companies move their corporate headquarters out of their home countries to countries with more favorable tax treatment. In fact, six of Silicon Valley’s biggest companies had a combined tax gap of more than $100 billion this decade, according to a new analysis(Taylor, 2019). The research analyzed Facebook, Apple, Amazon, Netflix, Google, and Microsoft between 2010 and 2019 with their 10-K filings, which are financial forms submitted by businesses to the U.S. government. It also claimed that those profits continued to be shifted to tax havens such as Bermuda, Ireland, and Luxembourg. 

So, which duty is higher? The duty of corporations to pay tax to the government or the duty of corporations to pay dividends to shareholders? I believe for corporations the duty of corporations to pay dividends to shareholders is somewhat higher than the duty of corporations to pay tax to the government. Essentially, the basic function of a business is to make a profit for its owners. In a capitalist market-driven economy, a business that fails to make a profit ultimately ceases to exist and ultimately affects the property of its shareholders. If corporations reward their employees with their shares, it also provides incentives to be creative, innovative, and productive. Moreover, it is much easier to seek funding and grow business quickly, which leads to an increase in labor demand and eventually increases the income per household. Higher salaries mean households and individuals have more money to spend and it also means higher income taxes they have to pay. It is a positive circulation for the economy. In addition, many countries have one common problem, corrupt bureaucrats. We are not so sure the taxes we pay are all effectively used in our society or the public good.

However, it does not mean paying taxes to the government is always a bad thing. Governments need resources and funds to keep their basic functions such as infrastructure, roads, parks, airports, electricity, water, and more. These infrastructures are vital elements for operating businesses. Legislative make laws, rules, and regulations to settle disputes between business owners. We also need many authorities to make public policies. A government is a body of people that work to effectively and successfully guide a unit or community. One thing government does is set and administer policy. They use customs, laws, and institutions to exercise political, executive, and sovereign power with the intent of managing a state of wellbeing that benefits all aspects of the community or unit.

To summarize, I reckon that although for corporations the duty of corporations to pay dividends to shareholders is somewhat higher than the duty of corporations to pay tax to the government, paying taxes to the governments is still necessary since they provide some basic elements of conducting businesses. Of course, it's not a major duty, but it's must be part of the duties.

Should the concerns of stakeholders other than shareholders be taken into account by corporations?

First of all, shareholders are one of the stakeholders in a corporation, but stakeholders are not always shareholders. A shareholder owns part of a public company through shares of stock, while a stakeholder has an interest in the performance of a company for reasons other than stock performance or appreciation. A shareholder can be an individual, company, or institution that owns at least one share of a company. Stakeholders, on the other hand, can be owners and shareholders, employees of the company, creditors, customers who may rely on the company to provide a particular good or service, its suppliers, and more. The key difference is that shareholders can trade the stocks and may not have a long-term need for the company, while stakeholders are bound to the company for a long-term period and for reasons of greater need. For example, if a company is performing poorly financially, its employees, who are stakeholders and rely on it for income, might lose their jobs. Due to these reasons, the stakeholder has a greater need for the company to succeed over a longer-term, and therefore, I believe the concerns of stakeholders other than shareholders must be taken into account by corporations.

 

Why are taxes often more of an issue with corporations than with other business entities?

In the US, it’s because other business entities like partnerships, most LLCs, and small businesses are generally pass-through entities where the incidence of taxation passes directly through to the individual owners, while corporations are separate legal entities. Because it is an independent entity, its decision is made by teams, and its taxes payments are affecting directly its net income, corporations' decision-makers tend to use its tax advantages to pay taxes as little as possible.

Reference

Taylor, C. (2019, December 3). Silicon Valley Giants accused of avoiding over $100 billion in taxes over the last decade. CNBC. Retrieved December 24, 2021, from https://www.cnbc.com/2019/12/02/silicon-valley-giants-accused-of-avoiding-100-billion-in-taxes.html 

What should be the extent of rights for employees?

 What should be the extent of rights for employees? 

According to the U.S. Equal Employment Opportunity Commission, employees have a right to not be treated less favorably because of race, color, religion, sex, national origin, disability, age, or genetic information, receive equal pay for equal work. Although corporations may gain some challenges due to these regulations, this is also an opportunity to increase their efficiency and production. How? Why? Remember that CSR(corporate social responsibility) benefits entrepreneurs in multiple ways. If we consider the extent of rights for employees as a kind of CSR, it may have many advantages that can apply to any business, regardless of its size includes better brand recognition, positive business reputation, increased sales and customer loyalty, better financial performance, and most importantly, greater ability to attract talent and retain staff which connects directly to the extent of rights for employees. Being a responsible, sustainable business may make it easier to recruit new employees or retain existing ones. Employees may be motivated to stay longer, thus reducing the costs and disruption of recruitment and retraining.

Should an employer be able to terminate an employee at will? 

This question is about balance and freedom. Most employers think they should have the freedom to fire anyone for any reason. However, if we put the laws and the regulations aside, business owners are still liable to take good care of their employees. Why? Because good relationships with employees will make an enterprise even stronger. What Google learned from Goodwill, is that be a good boss and you will attract and keep good workers. Therefore, I reckon that an employer should not terminate an employee at will unless it is necessary. An excellent organization is the result of joint efforts and is also responsible for many families since it provides income. If someone tends to hold it back, it affects and harms those families. So, sometimes it is considered a necessary decision rather than at will. Just like many regulations are for the public good, many people still have to switch their jobs to what they can do best. The environment is changing quickly, changing your skills to adopt it is unavoidable.

What are some potential employer abuses the government should protect employees from?

Most of the abuses that employees could suffer caused by their employers include rejection of a job, being fired or getting your shifts reduced, deny promotion, and not being paid equally. Although the Equal Employment Opportunity Commission (EEOC) enforces federal laws banning discrimination in the hiring, firing, salaries, and benefits of job applicants and employees in several work circumstances, employees are less willing to report those issues since they are on the higher side of the scale. So, if governments truly want to protect employees from abuses, it is not enough to only set up regulations. For example, I am pretty sure hiring and firing are both can be "reasonably managed", right? We have seen many unfortunate cases. Rather than just make statements and laws, governments must build a reward system to trigger businesses to actively provide a good working environment and continually keep CSR in the heart of their corporate culture.

Reference

Employee rights. U.S. Equal Employment Opportunity Commission. (n.d.). Retrieved December 18, 2021, from https://www.eeoc.gov/employers/small-business/employee-rights 

What are the comparative advantages and disadvantages of contract employment versus at-will employment for an employer and employee?

 What are the comparative advantages and disadvantages of contract employment versus at-will employment for an employer and employee? 

It is necessary to understand different types of employment while doing business since employment is one of the essential parts of doing business. In today’s changing workforce, the use of contract employment has become more and more common. Many companies may frequently hire part-time or full-time staff for budgetary concerns or the need for specialized skills. Contract employment refers to hiring a person for a specific job under particular terms for a fixed period of time. The employment contract for a contract employee summarizes the services to be provided, any reporting requirements, confidentiality clauses, payment terms, how intellectual property will be treated, employment terms, and termination clauses. It is typically accompanied by a statement of work that clearly describes what is to be done, how, when and to what quality standards. An employment contract is a legal document which means it is legally enforceable if it is valid. Therefore, employers must ensure they use contracts that have been prepared or reviewed by a lawyer. On the other hand, at-will employment is an employer's ability to dismiss an employee for any reason and without warning, as long as the reason is not illegal. When an employer engages an employee without a contractual commitment, it is considered employment-at-will, which means the employee can quit anytime, for any reason.

At-Will Employment - The Advantages

For Employers, at-will employment gives companies the flexibility to later adjust their terms and policies rather than bound into a contract. It is also a faster, easier termination process. Firing employees who are under contract with your business typically involves multiple discussions, complicated negotiations, and delays. Hiring at-will is especially helpful in quickly getting rid of employees who are causing serious difficulties. 

For Employees, at-will at-will employment also gives workers the flexibility to switch or change their decisions. However, it offers zero protection to the employees as either party can decide to disengage or change the employment routine, terms, or structure. 

At-Will Employment - The Disadvantages

For employers, at-will employment, employees may unexpectedly quit without notice. Employers will then find themselves scrambling to find their replacement. It is also remarkably difficult to attract top talent since they are likely to choose a more stable job.

For employees, at-will employment involves high uncertainty since there is no contract to protect both of the two parties. And, employers can fire employees due to any lawful reasons. Moreover, if there is an employee who is not able to perform up to the mark then he can be terminated instantly without any reason or cause. Oftentimes, employees may get fired because of an unauthentic reason. 

Contract Employment - The Advantages

For Employers, contract employment is much more stable as both parties are bound in the agreed terms of work such as employees can not move to a better job without completing the contract or void or as agreed on the contract project. Moreover, it is an opportunity to hang onto your best employees. Limit the reasons that an employee can use to leave your company. Also, confidentiality clauses in your contract will prevent employees from disclosing your trade secrets or client lists. Noncompete clause in an employment contract that will prevent former employees from competing with your company for a certain amount of time after their employment ends.

For Employees, the future income is more stable as their employers are bound in the agreed terms of work to pay for their work. Many job seekers get excited that they’ve been hired for a full-time position, until they realize that they hate the job, their employer, or the industry they’re in. By accepting contract employment, employees can try out a sample of jobs and companies to find out what they are good at and where they want to be in the future. 

Contract Employment - The Disadvantages

For employers, sometimes contract employment has some inconsistencies because contracted employees have no solid loyalty to the business and motivation for their job. In addition, if an employee does not turn out how you want, or if the needs of your business change, you will have to renegotiate the employment contract.

For employees in contract employment, they can not move to a better job without completing the contract or void or as agreed on the contract project. So, it is an opportunity cost.

Is it appropriate for governments to interfere with private businesses to prevent discrimination? In what situations do you believe the government should intervene to prevent discrimination? 

Fighting discrimination requires setting standards for both individual and collective behavior, ultimately creating some consequence for violating them. Typically, the governments provide critical pathways to participation in setting such standards, as well as to recourses when they are not met. Without these systems, employees would have to rely on the good intentions of employers within the private sector who are largely unaware of their biases. 

I reckon it is appropriate for governments to interfere with private businesses to prevent discrimination. If the purpose is for the public good and fair, then it is necessary. However, the question is, HOW? It is like a chess game. The rules are set to play fairly to produce a winner. The time for the government to interfere is when some parties break the laws or like the game when one party tries to win it unfairly and breaks the rule. The governments' position is like, "we don't want to limit the ideas of how to win the game, we just trying to ensure everyone's victory is legal and fair.

Why do you think many governments guarantee a right to collective bargaining and the right to strike? Are there appropriate limits that should be placed on these rights?

Section 7 of the National Labor Relations Act states in part, “Employees shall have the right. . . to engage in other concerted activities for collective bargaining or other mutual aid or protection.” Strikes are included among the concerted activities protected for employees by this section. Section 13 also concerns the right to strike(The right to strike). Collective bargaining refers to the negotiation process between an employer and a union comprised of workers to create an agreement that will govern the terms and conditions of the workers' employment. The result of collective bargaining procedures is a collective agreement, governed by federal and state statutory laws and administrative agency regulations.

I think if the governments do not guarantee a right to collective bargaining and the right to strike, employers, therefore, do not have the liabilities to conduct ethically and eventually harm the country and the society as a whole. In addition, the right to strike is like the right to freedom. If you are unfairly treated or even tortured, absolutely you have the right not to work for such a flaming company. Most of the time, employees are considered to be the frail side of the bargain with their employers. Therefore, they desire the governments to be with them since providing safety is one of the most important functions of governments.

However, the law not only guarantees the right of employees to strike but also places limitations and qualifications on them. For example, the lawfulness of a strike may depend on the object, or purpose, of the strike, on its timing, or on the conduct of the strikers. A strike in support of a union unfair labor practice, or one that would cause an employer to commit an unfair labor practice, might be a strike for an unlawful object. Moreover, a strike that violates a no-strike provision of a contract is not protected by the law, and the striking employees can be terminated or otherwise disciplined unless the strike is called to protest certain kinds of unfair labor practices committed by the employer. 

CASE IN POINT

Finally, I want to mention the case of Amazon's new CEO. After Jeff Bezos quit his job as the CEO of Amazon, the board plans to award the new CEO, Andy Jassy 61,000 Amazon shares in extra stock, which will pay out over 10 years, the company said in a regulatory filing. The award’s exact value will depend on how the shares are trading when they pay out in future years, encouraging Jassy to grow the company even more than it is today. Jassy’s base salary has been $US175,000, according to the filings. As we can see that it was a good example of contract employment. The prize in shares is also a great example of how to provide an incentive to work harder for both the employees and employers.

Reference

Dastin, J. (2021, July 4). Amazon to grant new CEO more than $US200 million in stock. The Sydney Morning Herald. Retrieved December 17, 2021, from https://www.smh.com.au/business/companies/amazon-to-grant-new-ceo-jassy-more-than-us200-million-in-stock-20210705-p586st.html 

The Pros and cons of hiring at-will employees. Business News Daily. (n.d.). Retrieved December 17, 2021, from https://www.businessnewsdaily.com/15833-hire-at-will-employees.html 

The right to strike. The Right to Strike | National Labor Relations Board. (n.d.). Retrieved December 17, 2021, from https://www.nlrb.gov/strikes 

THE AGE DISCRIMINATION

 THE AGE DISCRIMINATION

WHAT IS THE AGE DISCRIMINATION?

Age discrimination can take many forms. It can include an employer refusing to hire older workers in the first place, or firing employees once they reach a certain age. It involves treating an applicant or employee less favorably because of their age. The Age Discrimination in Employment Act (ADEA) prohibits age discrimination against people who are age 40 or older but does not include workers under the age of 40. However, it is not illegal for an employer to favor an older worker over a younger one, even if both workers are age 40 or older. Discrimination may also occur when the victim and the person who inflicted the discrimination are both over 40. The law prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment(U.S. Equal Employment Opportunity Commission, Age discrimination). 

COVERAGE OF THE ACT

Depending on the type of employer and the kind of discrimination alleged, the coverage requirements for private employers, the States and local governments, the Federal government agencies, employment agencies, and the Labor unions or Joint Apprenticeship Committees. If an employer is included in the list of the required number of employees, the employee, the job applicant, the former employee, the applicant, and the participant in a training or apprenticeship program are protected by the anti-discrimination laws. Moreover, American workers employed by U.S. companies overseas are also protected by the anti-discrimination laws.

APPROPRIATE SITUATION TO DISCRIMINATE BASED ON AGE

Is it ever appropriate to discriminate based on age? Yes, sometimes, many hiring decisions are based on age. But, it depends on the circumstances and it has to be very careful and fair. These circumstances must be based on reasonable factors. Normally, employers are not allowed to purely consider an applicant's age when making hiring decisions. However, there are limited exceptions to this rule. For instance, a film Company may decide to hire an aged man to play Ichirō Yashida in The Wolverine or a young lady to play Beth Harmon in The Queen's Gambit. Some age discrimination was even in the federal regulations. An airline company cannot hire a 65-year-old applicant for a commercial passenger pilot job simply because the U.S. Federal Aviation Administration imposes a mandatory retirement age of 65 for these positions.

INAPPROPRIATE SITUATION TO DISCRIMINATE BASED ON AGE

Federal law does not prohibit employers from asking an applicant's age or date of birth. However, employers should ensure that they ask about age only for a lawful purpose. As we know that, in general, companies can not consider an applicant's age when making hiring decisions. Most employers often assume that an older candidate is less healthy than a younger candidate, believing older workers are less healthy in general or even less productive and less innovative. However, it is just a bias and discrimination. For instance, is a CEO like Elon Musk less productive and less innovative than young people because he is over 50? The answer is absolutely not. Suppose you are in your 40s and try to work for STARBUCKS as a barista, can STARBUCKS refuse to hire you purely based on your age? No. However, the interviewer may require you to pass a test associated with the position that can be difficult for you to legally and implicitly deny your claim.

OLDER PEOPLE ARE PROTECTED AS A CLASS? 

Race and color were the earliest protected classes, according to The Civil Rights Act of 1866, Section 1981 of the Act barred discrimination in the making of contracts on the basis of race and color, which is understood to include employment contracts. So, when does a person fall into a protected class that the law recognizes? Under federal law, employers cannot discriminate on the basis of race, color, national origin, religion, sex, age, or disability. Therefore, employers may consider membership in a protected class when making employment decisions if there is a business necessity for doing so, or if membership in a protected class is a bona fide occupational qualification. Under the law, the protected class for age is people aged 40 and older, not "older people". 

HOW THE LAWS PROTECTING OLDER PEOPLE FROM DISCRIMINATION WORK? 

In the face of rising productivity and affluence, older workers find themselves disadvantaged in their efforts to retain employment, and especially to regain employment when displaced from jobs. Moreover, the setting of arbitrary age limits regardless of potential for job performance has become a common practice, and certain otherwise desirable practices may work to the disadvantage of older persons(U.S. Equal Employment Opportunity Commission, Age discrimination). The purpose of such Acts is to promote employment of older persons based on their ability rather than age and to prohibit arbitrary age discrimination in employment. It also helps employers and workers find ways of meeting problems arising from the impact of age on employment. 

In the employer practices, it is unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual concerning his compensation, terms, conditions, or privileges of employment, because of age. To limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's age are also prohibited.

In the labor organization practices, it is unlawful for a labor organization to exclude its membership, or otherwise to discriminate against, any individual because of his age. And, to limit, segregate, or classify its membership, or refuse to hire any individual and tend to deprive any individual of employ­ment opportunities because of such individual's age are all prohibited. In addition, attempt to cause an employer to discriminate against an individual in violation of this section is also an unlawful practice. Employment agencies to cause to be printed or published, any notice or advertisement relating to employment by such an employer or membership in or any referral for employment by such a labor organi­zation based on age are strictly prohibited.

Additionally, it is also unlawful for any employment agency or labor organization to take any action otherwise prohibited where age is a bona fide occupational qualification reasonably necessary to the normal operation of the par­ticu­lar business. Such practices involve an employee in a workplace in a foreign country, and compliance with such subsections would cause such employer, or a corporation controlled by such employer, to violate the laws of the country in which such workplace is located and permit the involuntary retirement of any individual specified by the age.

In the practices of foreign corporations controlled by American employers, employee pension benefit plans, distribution of benefits after attainment of normal retirement age, it shall be unlawful for an employer, an employment agency to establish or maintain an employee pension benefit plan which requires or permits in the case of a defined benefit plan, the cessation of an employee's benefit accrual, or the reduction of the rate of an employee's benefit accrual, because of age.

In the case of any employee who, as of the end of any plan year under a defined benefit plan, has attained normal retirement age under such plan if distribution of benefits under such plan with respect to such employee has commenced as of the end of such plan year, then any requirement of this subsection for continued accrual of benefits under such plan associate with such employee during such plan year shall be treated as satisfied to the extent of the actuarial equivalent of in-service distribution of benefits.

Finally, whoever shall forcibly resist, oppose, impede, intimidate or interfere with a duly authorized representative of the Equal Employment Opportunity Commission while it is engaged in the performance of duties under this chapter shall be punished by a fine of not more than $500 or by imprisonment for not more than one year, or by both: Provided, however, That no person shall be imprisoned under this section except when there has been a prior conviction hereunder. In the case of an alleged unlawful practice occurring in a State which has a law banning discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated. If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based.

REFERENCE

U.S. Equal Employment Opportunity Commission (Ed.). (n.d.). Age discrimination. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/age-discrimination 

U.S. Equal Employment Opportunity Commission (Ed.). (n.d.). Hiring decisions based on age. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/employers/small-business/hiring-decisions-based-age 

U.S. Equal Employment Opportunity Commission. (n.d.). Coverage. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/employers/coverage-0 

U.S. Equal Employment Opportunity Commission. (n.d.). The age discrimination in employment act of 1967. U.S. Equal Employment Opportunity Commission. Retrieved December 18, 2021, from https://www.eeoc.gov/statutes/age-discrimination-employment-act-1967 

Patenting Oranisms

 INTRODUCTION

Nowadays, scientists have isolated genes that cause particular diseases and modified genes that alter organisms for particular reasons. The technology has been manipulated to allow scientists to alter DNA by adding to or changing targeted sections. By doing so, scientists hope to eliminate genetic diseases. The mention of gene editing may invoke up images of rampaging dinosaurs in the film, Jurassic World, but this image is far from the truth. The closest to the truth about the rampaging dinosaurs is watching the endless Jurassic Park franchise. In general, the predominating opinion is that it is almost impossible to patent a living being. This pre-conceived notion is often based on grounds such as the lack of novelty, how can you patent something that already exists in nature, or unsurprisingly, the ethical impediments. However, whether it is possible to patent a living being, depends on the type of living being and the territory in which protection is to be obtained. Putting the ethical quagmire of human gene editing to one side, the realities of animal gene editing through the CRISPR technology is debated in terms of de-extinction and conservation. On October 18, 2016, a biopharmaceutical company called CRISPR Therapeutics AG that focused on translating CRISPR/Cas9 gene-editing technology into transformative medicines, announced the pricing of its IPO. It is a type of technology based on the natural functioning of bacteria called Clustered Regularly Interspaced Short Palindromic Repeats, abbreviation as CRISPR. the CRISPR/Cas9 edits genes by precisely cutting DNA and then letting natural DNA repair processes to take over. The system consists of two parts: the Cas9 enzyme and a guide RNA. The technology applied in modified bacteria to defend against invading viruses by remembering the genetic codes of previous invaders. If attacked again, the remembered code allows the bacteria to target the viruses’ DNA and disable the virus. Ethically sensitive and scientifically thrilling, CRISPR technology is sparking international debates that aren’t likely to be readily resolved. Whether the answer is to bring back extinct species or focus on those currently under threat, scientists are delving into gene editing as a way of repairing a damaged world. 

The CRISPR PATENT DISPUTE

As we learned above, much has been written about the power of CRISPR, the genetic-editing system first elucidated in 2012. But there has also been extensive interest in the variety of intellectual property issues surrounding CRISPR. While the intellectual property disputes concerning CRISPR are far from over, new characters central to the dispute continue to materialize five years of hindsight has given some perspective on their ethical, legal, and social implications. Since the first U.S. patent applications were filed for an engineerable CRISPR system in 2012, the IP landscape has become significantly more crowded, with several researchers controlling a few significant battlements. 

However, most of the commentary on the CRISPR patents has been negative. But, aside from money, there are some significant social positives as well. Patents are not the only means of private governance to reign in ethically unruly technology. At their core, patents are rights to exclude others from practicing the claimed invention. The corollary to this axiom is that patents, therefore, allow their owners to dictate to the rest of the world how to use the inventors’ technology. Although the claimed technology raises ethical or social concerns, patent holders have the right to tell their technologies’ users to behave ethically and to provide access to downstream inventions. The patents, when used well, can function as a powerful form of private governance. Those scientists have proposed patenting the use of CRISPR-based gene drives to prevent others from using the technology without rigorous scientific and ethical controls. Rather than using patents to ethically restrict access to controversial technologies, patents can be used to ethically promote access to the same. That is, patent holders can demand licensees promise that they make their technology available to broad segments of society and on fair terms. And, patents could also be used to ensure research access to a variety of technologies. Patent holders can publicly commit to refuse to execute their patents against researchers or academic institutions. In addition, patent holders can also use open licensing systems to researchers interesting in developing and sharing the technology for the public good. 

One potentially inappropriate use of CRISPR is its use in gene drives, a daisy chain of genetic editing that essentially forces future generations to inherit and subsequently pass on only a single variant of a particular gene. The concern is that gene drives, because they are forcibly heritable, become difficult to control once put in place. If later research finds negative, unintended effects of the particular genetic variant driven through the population, it may be too late. The legal mechanics of enforcing patent protection in this manner leave some gaps that likely need to be addressed. Moreover, the overreliance on patents as vehicles promoting the ethical uses of technology may crowd out other equally effective and less restrictive forms of control. 

IN CONCLUSION

Despite claims that the CRISPR patent dispute is a unique event, there are some greater lessons to be learned about the ethical, legal, and social implications of intellectual property in research science. The CRISPR patent controversies teach us that patents, like kitchen knives, are simply tools, without a moral valence separate from their users. Patents, like the CRISPR patents, can be used in ways that impede further research, or they can be used to promote, if not demand, their ethical application. The patents themselves do not do these things. The outcomes depend entirely on who's wielding them. To that end, the CRISPR patent controversies should encourage researchers to think about how, and by whom, their inventions will ultimately be used.

CASE IN POINT - Diamond v. Chakrabarty, 447 U.S. 303 (1980)

Diamond v. Chakrabarty, 447 U.S. 303 (1980), was a United States Supreme Court case dealing with whether living organisms can be patented. Chief Justice Warren E. Burger held that human-made bacterium could be patented under the patent laws of the United States because such an invention constituted a kind of manufacture or composition of matter. However, other Justices argued that because Congress had not expressly authorized the patenting of biological organisms, the Court should not extend patent law to cover them. Diamond v. Chakrabarty was a significant legal case, particularly with respect to the patent laws and the biotechnology industry. 

The story began with a genetic engineer Ananda Mohan Chakrabarty who works for General Electric for developing a bacterium capable of breaking down crude oil, which he proposed to use in treating oil spills. General Electric filed a patent application for the bacterium in the United States, but it was rejected by a patent examiner. Because, under patent law at that time, living things were generally understood to not be a patentable subject matter. And, of course, they appealed.

The Congress intended for the patent laws to be given a broad scope that was not unlimited and laws of nature, physical phenomena, and abstract ideas were not patentable. However, the GE was not trying to patent a kind of natural phenomenon but rather a human-made bacterium he developed. But, the Supreme Court here held that Chakrabarty had not merely discovered the bacteria's existence, he created it by himself and adapted it to a particular purpose. 

To summarize the case, a live, human-made micro-organism is a patentable subject matter under the organism that constitutes a manufacture or composition of matter within that statute. While laws of nature, physical phenomena, and abstract ideas are not patentable, the respondent's claim is not to an unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter, a product of human ingenuity. Moreover, the passage of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection does not evidence congressional understanding that the terms manufacture or composition of matter. The U.S. Supreme Court reads the term manufacture in 35 U.S.C.S. § 101 in accordance with its dictionary definition to mean the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery. Eventually, the court found that the respondent had produced a new bacterium with markedly different characteristics from any found in nature and which had the potential for significant utility. The court held that the language of 35 U.S.C.S. § 101 embraced Chakrabarty's invention.

Reference

Academic.oup.com. (n.d.). Retrieved December 12, 2021, from https://academic.oup.com/jlb/article/4/3/565/4706243. 

Corral, M. (2021, July 7). Can living beings be patented? ABG IP. Retrieved December 12, 2021, from https://abg-ip.com/living-beings-patented/.

CRISPR therapeutics announces pricing of Initial Public Offering. CRISPR Therapeutics. (n.d.). Retrieved December 12, 2021, from http://ir.crisprtx.com/news-releases/news-release-details/crispr-therapeutics-announces-pricing-initial-public-offering/. 

Diamond v. Chakrabarty, 447 U.S. 303 (1980). Justia Law. (n.d.). Retrieved December 13, 2021, from https://supreme.justia.com/cases/federal/us/447/303/. 

Haven, A. (2019, June 24). Forget jurassic park – the realities of gene editing in the animal world. UX Connections. Retrieved December 12, 2021, from https://www.uxconnections.com/forget-jurassic-park-the-realities-of-gene-editing-in-the-animal-world/.

ScienceDaily. (2018, October 8). Genetic disease healed using genome editing. ScienceDaily. Retrieved December 12, 2021, from https://www.sciencedaily.com/releases/2018/10/181008183347.htm.