October 18, 2010 in Business, Legal Articles by jferris

Know your employee status to file an unpaid overtime claim

If you worked overtime and want to claim payment, know your employee status. Check this before submitting a request for payment.

There is no question that if you work overtime, you should be paid for that overtime, no matter what some people think, say or feel. This is where the law comes in handy as a backup position. If you worked overtime, you should be paid and the law says so; so that’s in your favor. You should never be wrongfully denied compensation.

Having said this, you need to also understand that there are rarely etched in stone, immutable rules and regulations. There are usually exceptions to every rule. To know what those exceptions are, make it a point to consult with an experienced Dallas business lawyer. Better you know your rights and how to proceed with an overtime claim than to go ahead uninformed and do it the wrong way.

If you want to help yourself out, brush up on your labor law. It’s not complex, at least, not the things you would need to know. Check out the laws relating to overtime compensation. According to the Fair Labor Standards Act, workers are entitled to overtime remuneration at a rate of 1.5 times the regular rate, if a worker puts in more than a 40-hour workweek. This is the general rule.

However, some workers are not entitled to overtime. Those employees include computer employees, those who work in administration or those in executive positions. Only non-exempt employees qualify for overtime compensation. If you have all of your paperwork in order and have spoken to an experienced Dallas business lawyer, then make sure you have all the facts in writing before you file a lawsuit. If you wind up going to court, you need written documents for evidence. For example, you’ll need time sheets, payroll records and employment policies.

Don’t assume that just because the labor law says one thing right now, that it hasn’t changed and you may not know about it yet. Consult with a lawyer before you do anything and ask questions. The Dallas business lawyer will be able to brief you on any recent changes to the labor laws that may apply in your particular circumstances.

Do due diligence and check with your state’s Department of Labor, as you might want to fill out a complaint form, rather than going to court. If you do have a solid case, an investigator reviews your complaint and will help you in dealing with your employer.

Just make sure you have all the facts before proceeding with a complaint or lawsuit and things should work out well in the end.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

October 18, 2010 in Business, Legal Articles by jferris

Non-Solicitation Agreements Are A Good Defense

If you’re an employer and have invested in an employee for a long time, the last thing you want to happen is have that worker jump to a competitor.

After all, that employee has good insider knowledge and could help the competition swipe away some of your customers, employees, market share – and even trade secrets.

Usually, a non-competition agreement would take care of such problems by barring the former employee from working for competitors for a certain period of time. Yet there’s a big problem with that when it comes to California. The Golden State considers non-competition agreements unenforceable in just about every instance, according to a 2008 ruling by the state supreme court. Other states have some restrictions, but California is one of the first to take such a hardline stance on the matter.

So what is an employer to do in order to safeguard his or her business? Experts say the next best thing is to address this issue from the get-go by requiring a well-worded non-solicitation agreement be signed at the time of hiring. A non-solicitation agreement, in conjunction with a confidentiality agreement, will go a long way in protecting your bottom line and market share.

This step will restrict an employee from soliciting customers while they are with your company and, once they leave, from using trade secrets to solicit customers.

“It can be difficult to prove solicitation,” said Anthony Spotora, a Los Angeles-based business lawyer, “but a non-solicitation agreement can be your best offense in California when seeking to defend your business and your bottom line.”

It is important to note that the trade secrets component is the only enforceable component of a non-solicitation agreement. The same 2008 Supreme Court decision that found non-compete agreements to be unenforceable also found that non-solicitation agreements are only enforceable when they are limited to trade secrets, or intellectual property. This distinction must be clear in the employee agreement.

Trade secrets can encompass a wide range of information such as customer lists, technical information and computer programs, software, techniques and licensing.

As per California’s 2008 Edwards vs. Arthur Andersen decision affecting non-solicitation and non-compete contracts, this extends to employers both in and out of state.

To learn more, visit http://www.spotoralaw.com/

October 18, 2010 in Business, Legal Articles by jferris

Partnership Agreements Are A Safe Bet

There are a lot of challenges and unknowns when getting a new business venture off the ground. Am I ready for this launch? How long will it take me to recoup my capital? When will the customers begin rolling in?

If you are operating the business with a partner, one of the things that can save you a lot of headaches later on is putting together a partnership agreement. A partnership agreement clearly outlines each partner’s responsibilities and rights, therefore preventing disagreements in the future. It is not uncommon for disagreements between partners to sink new business ventures, destroy friendships and cause long, drawn-out legal battles.

A partnership agreement can be tailored to each venture’s specification, yet they all should include a section detailing each partner’s individual job duties. Consider life without a partnership agreement: If each party is under the impression that the other person is handling a particular task and it is not completed, the new business venture can crash before it has a chance to get off the ground.

“This legal document can minimize the number of risks that new business ventures face, creating a better chance for success,” said Anthony Spotora, a Los Angeles-based business and entertainment lawyer. “Included in the agreement are specifics on what authority each partner has when it comes to borrowing or lending money, buying supplies, executing lease agreements or entering other types of legal contracts.”

Perhaps certain business transactions can only take place with the consent of both partners. Perhaps Person A exclusively handles the purchasing of supplies while Person B exclusively handles the hiring of new employees. Whatever the arrangement, it is important to make the rules of the game clear to all.

The partnership agreement might also want to include procedures if one partner wants to leave or passes on, how profits will be shared, how an additional partner would be added, management responsibilities, how each partner contributes cash flow, management restrictions and other decision-making protocol.

Each state has a uniform business partnership law, but a partnership agreement can override this law to suit your particular needs. A partnership agreement is a small investment in time and resources that can often mean the difference between success and failure.

There is a lot to consider when putting together a partnership agreement so it is best to consult an attorney with experience in such matters.

To learn more, visit http://www.spotoralaw.com/

October 17, 2010 in Business, Legal Articles by jferris

Keyword Advertising A Tricky Situation

Does the buying of keyword advertising trigger trademark infringement lawsuits?

The short answer is “yes, it can.” But while there have been many instances of such matters being aired in court, judges across the country have struggled to keep current with the matter and have issued less than uniform guidance. To understand the keyword advertising dilemma, it is important to first understand what keyword advertising is.

Keyword advertising, a multibillion-dollar business, refers to paid advertising on the Internet that links specific keywords or groups of keywords. If you have ever used the Internet search engine Google, you know that typing a phrase such as “sporting goods” into the search area would produce advertising links for sporting goods providers on the side of the screen.

Companies pay for the right to certain words so that customers click on the advertisements that lead to their Web sites. Often, companies pay for each “click-through” that is generated. But the controversy with this type of advertising occurs when companies buy a keyword that is part of a competitor’s trademark, bringing into play the Lanham Act.

In part, the Lanham Act is meant to protect the holder against those who “without the consent of the registrant, use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive.”

To establish that keyword advertising violates the Lanham Act, it has to be proven that the trademark was actually used and that the general public would be confused about who is offering the goods or services in question.

Second Circuit courts have often found that the use of a keyword on its own is not a violation of the Lanham Act. Yet outside the Second Circuit, courts have often found the opposite to be true.

For example, in April 2008, the Eleventh Circuit ruled against a company who used a competitor’s trademarks within its invisible meta tags of its website. The court ruled that such practices were in fact trademark infringement.

Microsoft, Google and Yahoo! all sell keyword advertising and have been dragged into some Lanham Act court cases.

When it comes to companies protecting themselves against competitors misusing keyword advertising, it is important to track how your trademarks are being used on the Web. When a violation is suspected to have taken place, one should complain to a search engine, many of who often have their own complaint procedures in place. Experts also recommend that companies make sure they are the highest bidder for their advertising keywords that represent their trademarks to prevent others from using them.

To learn more, visit http://www.spotoralaw.com/.

October 14, 2010 in Business, Legal Articles by jferris

Is reverse engineering misappropriation of a trade secret?

Despite the fact that trade secrets don’t have a formal registration process, they are protected.

You’d think if a company had a trade secret they wanted to hold close to their chest, they’d have a process where they could register that secret to keep it undisclosed. There is no such process. Despite that, trade secrets are protected – at least that is the intent of the Uniform Trade Secret Act.

What happens when trade secrets are stolen or misappropriated? There are any number of ways in which a trade secret can be swiped. The best legal jargon used to describe one method is referred to as a “defendant using improper means of acquisition.” In slightly less polite terms, someone may have ripped off a trade secret from the place they were working, as a means of retaliation or making money by selling it to the competition. This type of information misappropriation can be completed via bribery, theft, spying (yes, spying is quite common in many industries) or misrepresentation.

There are several ways in which one could acquire a trade secret “properly.” These would include independent invention, licensing from the owner, acquiring it in a public forum if it is displayed or sold or through reverse engineering. Reverse engineering is an interesting process, as it means taking apart the original item or product and discovering how it is made.

It is quite the process and you need to be fairly determined to find out what makes something the success that it is. Think the secret recipe for Kentucky Fried Chicken; a trade secret people have been trying to reverse engineer for years, usually without a great deal of success. There have been some near hits, but apparently, the secret is still safe.

When it comes to trade secret disputes, most of them tend to be between an employer and employee. While that may sound pretty straightforward, it usually isn’t, as there are a great number of gray areas in these kinds of relationships. Most often the main problem is the fact that the agreement to keep the “secret” a secret is not as clear as it should be or there is no agreement dealing with keeping trade secrets. Obviously, this would create some difficulties when such a dispute came to a head, hence the need for a well seasoned Dallas business lawyer.

Let’s take a quick look at an example dealing with trade secrets that a company develops and a trade secret that an employee develops. John Doe works for a company that develops drugs. His job is to create them by working with various chemical formulas. He gets fed up with his current job and leaves to go to the competition. He will most likely be told he has to protect the first company’s trade secrets and not reveal them to his new employer.

On the other hand, if that same employee was not originally hired to do product development or product research, and during his tenure of employment developed a trade secret on his own using his own skills and knowledge base, there may be some dispute as to who owns it. This is yet another situation where hiring the services of a skilled Dallas business lawyer makes sense.

In situations like this, it’s usually best if the parties execute an employee agreement that specifically addresses the issue of confidentiality with regard to trade secrets and non-compete agreements.

Ty Gomez writes for the Gomez Law Group, a Dallas employment lawyer and Dallas business lawyer. To learn more, visit Gomezlawyers.com.

October 14, 2010 in Business, Criminal Defense, Legal News, Personal Injury by jferris

Emergency call negligence may result in wrongful death

Wrongful death happens when someone dies as a result of another’s negligence. Unfortunately, this happens more often than we think.

Wrongful death is a bit of an unusual term, because there is no such thing as a death that is right. As awkward as it may seem, to understand what wrongful death is, you have to look at the bigger picture. When someone dies as the result of the negligence or inaction of another person or an entity, this is called wrongful death. It may sound simple on the surface, but it rarely is, as any Atlanta personal injury lawyer will tell you.

For those who have died at the hands of another, there may be fairly large damage awards for the deceased’s loved ones. Wrongful death has no particular niche. It strikes at anytime, anywhere and may be the result of a car accident, medical malpractice or even not maintaining property to ensure it is safe for others to visit. Another form of wrongful death may happen when a 911 call for help is not handled properly or promptly.

An improperly handled 911 call would involve the dispatcher handling the call in a negligent manner or being careless about the information he or she gathered and sent out. If someone dies as a result of those errors, the operator may be held liable for the wrongful death. One enormous oversight made by 911 dispatchers is not getting enough information from the caller.

For example, not getting the right address or all the details of the emergency situation may result in emergency responders going to the wrong location or not sending the right kind of emergency personnel to the scene. Not having a complete understanding of the severity of a situation a caller is describing may also result in an untimely and unnecessary death.

Take the case of the baby who had stopped breathing in a small town. The family called the dispatch center six times over a 15-minute period but the calls went unanswered. For some reason they were not going through to the dispatch center, either due to operator error or a technical glitch. Finally, the last call for help was answered by an operator in the next county. Unfortunately, the baby died while help was on the way. While there are several facets of this case to be delved into, the result was a wrongful death.

If you have any questions about how a wrongful death lawsuit is handled in your state, make sure you call and ask a skilled personal injury lawyer. While every state has a wrongful death statute, each state also has slightly different rules and regulations. If you live in Georgia, make that call to an Atlanta personal injury lawyer.

Robert Webb is an Atlanta personal injury lawyer with Webb & D’Orazio, a law firm specializing in Atlanta personal injury, malpractice, criminal defense, and business law. Learn more at Webbdorazio.com.

October 14, 2010 in Business, Legal Articles, Personal Injury by jferris

Recession tactics for businesses

In a recession, businesses need to get streamlined. Restructuring is a good approach to surviving tough times.

Usually when the economy takes a turn for the worse, many businesses are forced to slash prices and push advertisements and flyers that say all stock is on sale and they’re closing out. What if a business could be restructured in such a way that tough economic times don’t bother them as much, and they may even able to ride out a recession?

This doesn’t necessarily mean restructuring legally, but instead, restructuring by being innovative and going with the flow. Instead of giving in to a recession, fight back by polling employees for their ideas to keep the doors open. Being innovative means using all avenues open to you, and that includes technology, employees and finding others with lots of experience with riding out rough spots to share their hard fought wisdom with you. It may also ultimately mean restructuring the company with the help of an Atlanta business law firm, but that is a detail you can attend to later.

What kinds of ideas would you need? Ideally, you want the drive and the will to make it through the rocky spots, and that means employees with ideas and innovations that are simpler, faster, shorter and more cost effective than what you presently have. Just because a business does things one way “because they always have done it that way,” doesn’t mean that way can’t be changed and stripped down to work better.

Certainly, it’s not just ideas that will allow a business to survive a recession, it’s also expansion. While that may seem surprising and counterintuitive, think about it for a minute. Take advantage of what is currently selling and improve upon it and expand it.

For instance: let’s say you have a dog training business that does basic obedience work. It’s popular, but you need a boost. You expand your services to include grooming, homemade dog biscuits, nail clipping, ear cleaning and pet sitting. You get the idea. Add services to what people already buy – a spinoff effect, if you will – and watch the revenue come in.

Above all else, be flexible with what you offer in terms of services and products. Partner with other businesses to offer customers an even greater level of service and spread the coin around. If you structure your business so that all your eggs are not in one basket, but each portion of your overall business can stand alone on its own, you have the recipe for success during a recession. It’s certainly worth trying.

Robert Webb is an Atlanta personal injury lawyer with Webb & D’Orazio, a law firm specializing in Atlanta personal injury, malpractice, criminal defense, and business law. Learn more at Webbdorazio.com.