Is it Time to Revise your Employee Handbook?

Is it Time to Revise your Employee Handbook?

We recently blogged about the importance of having an employee handbook. Not only is the handbook a way for employers to protect themselves against lawsuits, it is also a way for them to showcase themselves to potential employees. Richard F. Griffin, Jr., General Counsel of the National Labor Relations Board (NLRB), issued a report on common employee handbook provisions. In the previous blog post, we suggested writing a custom employee handbook, but taking suggesting from the NLRB is definitely recommended for all of our business client.

This report specifically restricted employers from issuing policies or rules that “inhibit employees from engaging in activities protected by the act, such as discussing wages, criticizing management, publicly communicating about working conditions and discussing unionization.” Many employers have confidentiality policies that may be well-intentioned, but can be seen by the NLRB as over-intrusive and illegal. Although the NLRB report was lengthy and detailed, there were some clear “DON’Ts” that emerged from the documents:

  • Do not prohibit employees from discussing “employee information.”
  • Do not prohibit disclosure of “another’s confidential information.”
  • Do not prohibit disclosure of “details about the employer.”
  • DO not prohibit disclosure of all categories of “non-public information.”

Some of the things listed above may not specifically prohibit employees from taking collective action or freely expressing themselves, but the NLRB is concerned about anything that may dissuade an employee from acting. However, the NLRB is also aware of the rights of employers and how most employers are concerned about doing their best to protect their businesses. Due to this, there are confidentiality provisions that the NLRB has deemed legal:

  • No unauthorized disclosure of “business ‘secrets’ or other confidential information.”
  • “Misuse or unauthorized disclosure of confidential information not otherwise available to persons or firms outside [the Employer] is cause for disciplinary action, including termination.”
  • “Do not disclose confidential financial data, or other non-public proprietary company information. Do not share confidential information regarding business partners, vendors or customers.”

One of the most important takeaways from the NLRB’s report is that employers have to be careful in what they imply with their words. There are some rules that are nested among others and may be seen as unnecessary or too prohibitive by an employee. However, the NLRB also understands an employer’s position. Therefore, an employers best bet is to steer clear of vague instructions in an employee handbook. We would recommend our business clients to stay up-to-date with the NLRB and update their employee handbooks accordingly.

Source referenced: Labor Sphere

 

Think Twice Before Flying Your Drone

Think Twice Before Flying Your Drone

The State of California has always been very concerned about its citizens privacy and has done its best to protect it. In the 21st century, the biggest threat to someone’s privacy is a camera drone. California is tackling this problem with Assembly Bill No. 2306. This law makes it both illegal and costly for anybody seeking to invade someone else’s privacy by taking photos of them with a camera drone. Many people say this law applies to paparazzi, but this is not entirely true. Drone sales have been increasing and many people buy drones for personal use. This can lead to concerns over where they  can legally fly their drone in certain areas. As a rule of thumb, a drone should not fly anywhere someone would have a reasonable expectation of privacy. An example would be your neighbor’s backyard.

The bill is an attempt to “expand a person’s potential liability for constructive invasion of privacy  by removing the limitation that the person use a visual or auditory enhancing device, and would instead make the person liable when using any device…to engage in illegal activity.” California lawmakers felt that existing laws on invasion of privacy did not cover drones and adding Assembly  Bill No. 2306 would better protect people’s privacy. The full act can be read at the link specified below.

Past laws on privacy said that a person was liable

"for 'constructive invasion of privacy' for attempting to capture, in a 
manner highly offensive to a reasonable person, any type of visual image, 
sound recording, or other physical impression of another person engaging 
in a personal or familial activity under circumstances in which the  
plaintiff had a reasonable expectation of privacy, through the use of a 
visual or auditory enhancing device."

Assembly Bill No. 2306 removes the statutory tort of “constructive invasion of privacy,” which required that device used to invade someone’s privacy either enhance the video or audio. Removing this part of the bill allows drones to fit the requirement.

The civil punishments for this act are very expensive and should serve as a deterrent for possible criminals. The act says any “person who comes within the description of this subdivision is also subject to a civil fine of not less than five thousand dollars ($5,000) and not more than fifty thousand dollars ($50,000).” In addition, anyone in violation of this law would be liable for up to three times the amount of any general, special damages, or punitive damages. In the case of paparazzi or anyone else invading someone’s privacy for commercial gain, all profits from the invasion will be given to the victim.

Although drones are available to buy in many big box stores and on several online sites, we recommend everyone to be careful when flying their drones. Many experts recommend flying drones in rural areas and far from residential areas. The fines and penalties for violating this law are very expensive, so we highly encourage everyone to strongly consider the purpose behind flying their drone and taking all necessary precautions.

Source referenced:

  1. PetaPixel
  2. Assembly Bill No. 2306
  3. Assembly Bill No. 2306 Analysis

 

 

Why You Should Stop Carrying Cash

Why You Should Stop Carrying Cash

What is Venmo?

If you have ever visited a restaurant or bar with your friends and got stuck with paying the entire bill or tab, you know the struggle of asking them to pay you back. Asking your friends to reimburse you can be a never-ending struggle, but not anymore. Enter Venmo, a mobile app you can connect to your bank account and social media accounts to exchange money. The app allows users to have a digital wallet connected to the money in their bank account. Using Venmo does not cost anything, unless you decide to use a credit card. If you use a credit card, you are required to cover the 3% transaction fee. The app, used mostly by millennials, eliminates the need to use an ATM or wait around for checks to be deposited. While some youngsters were hesitant to start using the app because it seemed “sketchy,” they regularly use the app now.

Venmo as a Social Media

Not only does Venmo serve as a digital wallet, it doubles as a social network. Every time a user makes a payment to a friend, they can summarize what the reimbursement was for and post it on Facebook, Twitter, or any other social media sites. This allows Venmo to be more communicable for its users. Many users say they enjoy seeing what’s going on with their friends. One user said, “I wouldn’t scroll through Venmo just for kicks. But when I’m there, making a charge or a pay request, I like to check out what’s going on. People are kind of entertaining. Everyone wants to be creative and sarcastic. It can be pretty funny.” More and more people across America are turning to Venmo to settle their payments. While Venmo did not want to disclose the number of users they had, they did say that the company processed $700 million in payment in the third quarter of 2014. This number is only expected to rise as more people are asking their friends to “Venmo them” instead of paying them in cash.

venmo-app

The History of Venmo

Venmo was founded by two friends, Andrew Kortina and Iqram Magdon-Ismail, both graduates of the University of Pennsylvania. After college, both friends worked at startup companies, but knew they eventually wanted to start their own business. Venmo was born when Magdon-Ismail went to New York to visit Kortina and forgot his wallet. By the end of the trip, Magdon-Ismail owed Kortina $200. Both friends knew there had to be a better way for Magon-Ismail to pay Kortina back without the hassle of depositing checks. This is when Venmo was born. In the early stages of Venmo, users were able to use text messaging to send payments and write a short message. However, the founders knew they wanted to switch to a mobile app. The startup raised over $5 million in its first years and was successful until it had its first major crisis. Many of Venmo’s early users were using their credit cards to make payments and Venmo was covering the 3% transaction fee. This was costing the company too much money and profit. When Venmo made users pay the fee, their sales plummeted. With cashing running low, the founders decided to go to Braintree for help. Braintree ended up acquiring Venmo for $26.2 million. Venmo now makes money by charging merchants, who pay a fee every time a Venmo user complete a purchase order.

The Rise of Mobile Payments

Many futurists have been predicting the end of cash, credit cards, and checkbooks. A 2013 study predicted that Americans would use mobile payments to spend about $90 billion in 2017. Due to Venmo and the rise of mobile payment, this number has increased to $12.8 billion. Mobile payments are becoming the mainstream and merchants are attempting to get in on the action. There are more than 1,400 digital-payments-related startups. Apple Pay, Android Pay, and Snapcash are just a few examples. Venmo believes their app is a great way to get consumers comfortable with using their phones to make payments. The future of mobile payments seems to be very bright.

Source referenced: Bloomberg Businessweek

Trade Names vs. Trademarks vs. Domain Names

Trade Names vs. Trademarks vs. Domain Names

When we speak informally, we tend to think a company’s legal name, the name under which it is registered with the government, and the domain name it uses to communicate online are the same thing. Legally, this is not true. There is a difference between trade names, trademarks, and domain names. Knowing the difference between these three and knowing about the three different worlds they operate in can make all the difference for your business.

Trade Names

Under our legal system, a business is treated as a separate entity. A business is essentially considered a person. Each business is registered both with a state government and the IRS. A trade name is the name a business uses on contracts and other legal documents. This is also the name you would search for on Google or Yahoo if you are looking to get more information on a business.

Trademarks

A trademark can be the same as a company’s trade name, but it does not need to be the same. Sometimes a company uses different trade names and trademarks because they think one of them is easier for the customer to use and remember. Trademarks can be seen as the company’s “official” title. Let’s take Amazon for an example. Everyone knows Amazon.com as an online retailer, but may not know that the online retailer also operates under different legal entities. For example, they have Amazon.com Baby Inc., Amazon Payment Inc., and Amazon Overseas Holdings, Inc. A trademark would ideally be registered with the US Patent and Trademark Office and at the national trademark offices of  every countries where you do business.

Domain Names

Domain names are the internet protocol addresses associated with your website. For example, insidecounsel.com converts to 184.73.162.106 and domain names are managed by private companies. However, owning a certain domain name does not give you any trademark rights. While trademarks are only registered for specific goods and services, domain names are not. Any person in the world can own any domain name, regardless of if they are selling a service or product. Due to this, Delta Airlines had a lot of trouble obtaining delta.com as their domain name. If you are selling a good or service and you know someone has taken your domain name in bad faith (to divert customers from your business or to resell the domain to make a profit), having trademark rights over the name may help your case.

We hope knowing the difference between trade names, trademarks, and domain names has been helpful to our business clients. Thoroughly understanding the difference between these three can help your business avoid mistake and will help you properly protect your intellectual property rights.

Does GPS Tracking Count as a Search? Yes.

Does GPS Tracking Count as a Search? Yes.

Law enforcement agencies have become more aware of how technological advances can help them monitor and track suspects and criminals. The Supreme Court, however, has put a limit on what exactly counts as a “search” and how far authorities can go in tracking repeat offenders. Torrey Dale Grady, a repeat sex offender, was told he must wear a GPS ankle bracelet 24 hours a day so that he can be monitored by the North Carolina police. Grady said that since the device needed to be charged, he was required to sit next to a wall outlet for at least 4 to 6 hours per day. Grady unsuccessfully battled the ankle bracelet in North Carolina courts, but eventually made his way to the US Supreme Court. Grady claimed that the GPS ankle bracelet would be the equivalent of an unreasonable search and seizure, therefore violating his 4th Amendment rights. The Supreme Court was  interested in answering this question for once and for all.

In a unanimous decision, the Supreme Court agreed with Grady and said that if the government attaches anything to your body or your property, it counts as a search. Although the North Carolina Supreme Court had sided with its police authorities and said the ankle bracelet was perfectly legal, the Supreme Court sent the case back to the state’s highest court to be heard once again. Siding with Grady, the Supreme Court also mentioned precedents. One of the cited cases was US v. Jones, in which the Supreme Court had ruled that installing GPS devices in a suspect’s vehicle fell under the 4th Amendment search.

The Fourth Amendment and advances in technology seem to be in contradiction. It is expected that the Supreme Court will soon have to deal with the issue of whether geolocations from our phones are also protected under the Fourth Amendment. We will have to wait and see when such a case makes its way to the nation’s highest court. The concern about technology and surveillance is growing as more and more Americans purchase smartphones. This ruling will force lower courts to consider whether attaching a GPS tracker to someone is a violation of their constitutional rights. North Carolina was not alone in requiring repeat sex offenders to wear ankle bracelet. Wisconsin did the same thing, but both of these states and others will now be forced to reconsider their method of monitoring criminals.

 

Source referenced:

  1. Naked Security
  2. The Atlantic
Why you should have an Employee Handbook

Why you should have an Employee Handbook

A Double-edged Sword

There was a time when employers avoided having an employee handbook. It was a common misconception that having an employee handbook protected employees, but not employers. This is definitely not the case. While an employee handbook can protect employees, it can also help employers with legal matters. An employee handbook can be a double-edged sword, but it is recommended that every business have one. The type of business or the number of employees working should not determine whether or not an employer has a handbook. In addition to protecting both employers and employees, a handbook can encourage employees to behave in a more appropriate fashion, make sure all employees are treated the same way, and help win unemployment lawsuits. We provide more reasons for having an employee handbook below.

Establishing Expectations

While an employee handbook does not need to be an instruction manual on how to perform a specific job or duty, it can provide some baseline expectations for a new employee. It can include anything from dress codes to information on how to request a day off. An employee handbook can also include information on filing a complaint about harassment, keeping a time record, and complying with the law while on the job. Adding this information to your employee handbook can come in handy in case of a lawsuit or any legal trouble.

“Selling” the Benefits You Offer

When a new employee is considering his or her options for employment, providing them with your employee handbook can definitely be beneficial to you. In the handbook, you can highlight all the resources you provide for your employees and why your business is the best place to work. You can even include Worker’s Compensation and Medical Insurance benefits.

Lawsuits

If your business ever faces a lawsuit from an employee, an employee handbook can serve as your first defense. For example, if you terminated an employee you will need proof that the employee was on notice for his actions. It would be extremely helpful if you have outlined your procedure for terminating employees in your handbook, as it would serve as the proof you need. If the employee signed the employee handbook, it becomes an even stronger defense.

Some additional considerations about employee handbooks are that they must comply with state and federal laws. While you do not need to spell out each law in the handbook, none of your policies should be conflicting with the law. In addition, your handbook should be tailored to the needs of your business. This means you should write your own handbook as a business owner. Getting the handbook published and checked for typos is also a good idea. Lastly, making sure your employee handbook is up-to-date is crucial. There is no point in having a handbook that focuses on laws from the past. We advise all of our business clients to either write or revise their handbooks based on the advise found here. More information on how to perfect your employee handbook can be found at the link below.

Source referenced: JD Supra

What to Know Before Using DIY Legal Sites

What to Know Before Using DIY Legal Sites

Perhaps in an attempt to save some time and money, some businesses are turning to DIY Legal Sites to fulfill their legal needs. These sites, like everything else on the internet, are readily available and are fairly easy to figure out. Not only are these sites cheap, they provide click-download-and-print legal forms for your business needs. However, before you use one of these sites for your business, we will highlight a few things you should consider if you plan on becoming an amateur attorney from the comfort of your couch.

One size does not fit all: In this case, one form does not fit all cases. While the site may lead you to one specific form for your needs, there is no guarantee that the form will actually work for you. At the end of the day, you get what you pay for. You pay for a form and simple instructions on how to fill it out. You did not pay for an attorney to walk you through the problem and help you find the one form that can fulfill your needs. Online forms are designed for the masses, but your attorney can find the specific form you need.

What you don’t know can hurt you: While attorneys with years of experience will be able to easily catch the smallest details in forms and contracts, the same cannot be said about an online form. Attorneys know the kind of loopholes and information they are looking for, but the online forms and legal services do not have any experience with this.

Forming a relationship with your attorney: Your attorney, by knowing you and your business, will always be able to recommend the best path forward for your company. If you have worked with the same lawyer for a number of years, he or she can help you avoid unnecessary hurdles and keep potential issues from turning into problems. A DIY legal site may be able to solve the problem at hand, but will not be able to advise you for the future.

If you look closely at these DIY legal sites, they explicitly say their services are not a substitute for a licensed attorney. This alone should serve as a warning to businesses using these sites instead of consulting their attorneys. While attorneys can be costly, their expertise does not match up to a legal site designed for the masses. In addition, you should weigh the risks and rewards of the situation. If hiring an attorney helps you avoid legal complications in the future, avoiding DIY legal sites may be your best plan. We hope this post has provided valuable information for our business clients.

Source referenced: Entrepreneur

Investing Spare Change with Lawnmower

Investing Spare Change with Lawnmower

What is the one thing young professionals spend the majority of their time using? You guessed it, their smartphone. What is something young professionals today might have a problem doing? You may have guessed it, saving money. With this knowledge, an app called Lawnmower was launched in 2014. The app tracks its users credit card and bank transactions and rounds each one up to the next dollar. The spare change is invested into buying Bitcoin. If you buy a book for $4.70, Lawnmower will round your purchase up to $5 and invest the extra 30 cents into buying Bitcoin. The goal of the app is that the spare change will add up over time and become a way for today’s generation to save money.

More and more apps are being designed to help young professionals accumulate their wealth. Another app, Digit, automatically sends small amounts of money from a checking account to a savings account. Acorns, similar to Lawnmower, automatically invests spare change into exchange traded funds. Mint is another app that helps people understand their spending and increase their savings. A trend among all these apps is that they charge little or no fees for their services. Lawnmower does not currently charge anything, but users may still pay a fee for using Bitcoin. Lawnmower plans to offer premium services to its users to generate revenue.

The founders of Lawnmower, Alex Sunnarborg, Pieter Gorsira, and Patrick Archambeau, hope that their app will be easier to use than Bitcoin, which can be overwhelming and complex for new users. The fact that Lawnmower’s success is completely dependent on the ongoing use of Bitcoin does not concern the three founders. As an entirely digital currency, Bitcoin has had its fair share of ups and downs. While there were days when the price point of Bitcoin hit over $1,000, there were also days in 2014 where it stood at a little over $200. Although not everyone is convinced that Bitcoin is the future of currency, Sunnarborg does not think Bitcoin’s success or failure with impact his users too much. This is because his user’s will only be jeopardizing spare change, not huge amounts of money. Sunnarborg makes a fair point, but one thing to keep in mind is that losing small amounts of spare change everyday can add up to a huge amount.

Source referenced: Fortune

Protecting Social Media Contacts

Protecting Social Media Contacts

In this age of technology and social media sites, a new question is beginning to arise: Who gets the professional social media contacts when one of your employees leaves? This issue is especially relevant to LinkedIn. There are many employers that encourage their employees to create LinkedIn accounts to stay connected with clients and form more business connections. However, what happens when these employees leave and start working for a competing business? Do they get to take all of your valuable social media contacts to that competitor? The answer is not yet clear.

LinkedIn, as a part of its user agreement, says “If you are using LinkedIn on behalf of a company or other legal entity, you are nevertheless individually bound by this Agreement even if your company has a separate agreement with us.” There are no official laws on what happens to contacts after an employee leaves or is terminated, but the courts seems to be siding with the employees. After an employer took over a Pennsylvania woman’s LinkedIn account, the court said the woman had the right to own her social media profile. This can serve as a warning for many business owners to protect themselves before any lawsuits set a precedent for all employers.

Advice for Business Owners

Since there are no laws on this issue and we expect similar problems to arise in the future, here are some recommendations for business owners who have employees using social media sites for work purposes:

  1. Spell out your expectations for the use of professional contacts.
  2. If an employee receives personal contact information for a professional client, you may want to tell them to enter that personal information into the company’s database. This depends on the type of personal information and the specific circumstances.
  3. You may want to require employees to “disconnect” from their contacts if they plan on leaving your company. This should definitely be done if you know the employee is taking another job at a competitor.

We hope these tips and the information shared above can help our business clients protect their valued professional contacts. Although our legal system has not yet formally ruled on this issue, it is better if we are cautious about the steps we take. The tips listed above can be part of an employee handbook and should be reviewed with all employees, even those that have worked at your business for years. Helping our business clients protect themselves is our priority and we hope this post will be of value to you.

Source referenced: Entrepreneur

Western Union vs. Bitcoin

Western Union vs. Bitcoin

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Western Union was not happy when Bitcoin “released” an advertisement comparing itself to Western Union. The image above shows the parody ad that was posted on Bitcoin’s Facebook page. Western Union filed a claim against Bitcoin under the Digital Millennium Copyright Act (DMCA) saying Bitcoin had infringed on its trademark of the image. However, DMCA only covers copyright material, not trademarks. Facebook removed the image from Bitcoin’s News Page immediately and the man who originally posted the image, Dave Aiello, wanted to charge Facebook for deleting his image. It is not clear whether Aiello was the one who originally created the image, but he was the one to post it on Facebook and later share it on reddit. Facebook told Aiello they would restore the image to Facebook, unless Western Union takes legal action within 10 to 14 days.

Parodies are usually considered “fair use” under DMCA. In addition, companies rarely take legal action based on images or content posted on social media sites. This raises the question of why Western Union was so fast to take action against Bitcoin. One reason could be that Western Union feels threatened by Bitcoin’s rise in popularity. Another reason could be that Western Union simply wanted attention. If this spoof had not surfaced on social media sites, Western Union would not have gotten the attention it received. If they decide to take further legal action against Bitcoin, it just brings more attention to the company.

While we may not know the exact reason Western Union is making such a big deal out of a parody advertisement, it will be interesting to see whether or not the DMCA holds that parodies fall under the “fair use” doctrine. In addition, DMCA does not cover trademarks, which is what Western Union wants to sue for. This controversy brought attention to Bitcoin and their services. It would be a win-win situation for both companies at the end of the day in terms of media exposure, especially if Western Union is not able to formally file against Bitcoin.

Sources referenced:

  1. ARS Technica
  2. Coin Desk