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The hiring process is a nervous time for both the prospective employees who apply for the open position, and the employer that is trying to hire the most talented applicant available. There are many things to consider on both sides, but today we want to focus on the employer and what they must do in order to ensure a successful and litigation-free hiring. The first thing to realize about the hiring process is that there are many different questions that the interviewer is not allowed to ask the applicant. For example, they can’t ask if the applicant is considering having a child. They can’t ask about the race, religion, age, or sexual preference of the applicant. And they can’t ask about the disability or citizenship status of the applicant. Another factor of the hiring process is that there are a lot of administrative steps that need to be completed. The employer must get a federal identification number for any new hire, as well as register the new hire for tax purposes. Workers’ compensation insurance and other benefits must be considered too, as well as aiding the new employee with registering for these benefits. Last but not least, any employer should refrain from making any promises to a prospective employee during the interviews and discussions they have with applicants. This is because those promises become an “implied contract,” and if the situation changes with your hiring process and another applicant is actually selected as opposed to the one your promised something to, then you could have a legal mess on your hands.

Efficiency and meeting deadlines are the top priorities for any transportation or logistics company. In an effort to meet these priorities and compete in a highly competitive industry, some business owners take risks others may not be willing (or able) to take. For instance, some of the largest logistics and transportation companies in North America are spending tens and even hundreds of thousands of dollars to reserve heavy-duty electric trucks from Tesla. The benefits and potential risks of electric trucks If everything that electric truck makers like Tesla promise occurs, then companies that utilize electric vehicles in their fleet could expect to save considerable amounts of money in fuel and operating costs. According to reports, Tesla models could be roughly 20 percent less expensive than diesel fuel trucks. However, that is assuming that the trucks perform as expected, which remains to be seen. Further, there could be issues to consider if the trucks are able to travel as far as expected in terms of complying with federal regulations, including equipment inspection as well as Hours of Service. Recently released details on the Tesla electric model note that the vehicle does not have space for sleeping. Having said all this, the potential benefits of the trucks currently seem to far outweigh the potential risks, and some of the largest companies are eager to put their money on the future of electric fleets. What readers can take away from this As logistics and transportation companies increasingly invest in new technologies to gain a competitive edge, it can be crucial that they consistently assess their impact on the business and avoid costly mistakes. Innovative tools and solutions are certainly exciting, but they can also lead to unforeseen challenges and consequences with regard to compliance, employment, and contractual obligations. As such, it can be wise to seek legal counsel when operations, resources, and procedures change.

Can you imagine if every soda company on the planet had access to Coca-Cola’s recipe? Or if every fast food chain knew the secret spices that went into Kentucky Fried Chicken’s meals? If either of those things were true, then every soda company would make Coca-Cola and every fast food restaurant would make KFC chicken. The secrets that these companies have are valuable because of the secrecy behind their products. If their trade secrets were public knowledge, there would be no reason not to copy them. It is for this reason that companies must protect their trade secrets. They hold immense value and they allow you to differentiate your service or product from other companies. So how do you go about securing your trade secrets? In order to protect your trade secrets, you need to identify them and then label the information accordingly (whether this is in the form of physical documents or electronic files). Then you need to properly store them and secure them. Utilizing passwords and keys is obviously important, but you would also want to make sure that there isn’t a particularly largely group of people that even have access to those passwords and/or keys. Regardless, you will want to train and educate your employees on this matter. Having security measures for your trade secrets is also a plus — and again, whether it is a physical document or an electronic file, you can find effective security measures to protect your trade secret.

Staying competitive in the market is crucial for any business owner, whether you operate a small logistics company or a large tech business. Part of being competitive involves protecting the tools, solutions, and products that give you an edge over other companies. Whether you do this with patents, trademarks, copyrights or trade secrets, you should be prepared to take action in the event another party uses or accesses protected information without authorization. One way to do this is through mediation. Why mediation? Mediation is an alternative method for resolving disputes that keep the case out of the courts. Instead of making a case in front of a judge or jury, parties work together to come up with a resolution. A neutral mediator – usually a retired judge or an attorney with specific experience in intellectual property — assists in the process, helping conversations progress and offering solutions that the disputing parties may not have considered. There are various benefits to mediation including: Protecting confidential information Getting faster results Incurring fewer legal expenses Potentially preserving relationships Maintaining more control over the resolution What are the other options? As much as a party or parties might want to pursue mediation in the event of a dispute, it may not always be a good option. For instance, if parties have tried to come to an agreement outside of court and failed, then it may be necessary for the courts to decide the matter. If the arguments are too divisive or one of the parties refuses to participate, then mediation may not be the appropriate option, either. Assessing your dispute resolution options with an attorney The stakes of intellectual property disputes can be quite high, so it is important to take them seriously and work diligently to secure a fair resolution. Whether this is through mediation, litigation or another method of dispute resolution, you would be wise to work with an attorney to identify the best options and pursue a satisfactory outcome.

The holiday season is the most important time of year for many California business owners, as it can be the final push to maximize profits. With all that is on the line, any issue that jeopardizes business can be catastrophic. One such issue is construction work. Construction work is often necessary to the safety and/or success for one business, but it can interfere with another’s business. In these situations, there are a few ways to resolve construction disputes that can arise. Know the rules Commercial leases often provide guidelines and protections regarding construction work. It should address when landlords must notify tenants of construction projects, what restrictions are in place to prevent interference with other businesses and whether rent reductions may be available. If you are proposing construction work or if construction work on another site is infringing on your business (noise, mess or obstructing access to the customer), then you should review your lease to assess what options and protections may be in place to address the issue. Make adjustments Business owners should examine their options to adjust to the disturbance. That may mean securing signage from the contractors to alert customers that you are still open or work with landlords and other business owners in the area to develop parking solutions, promotions, and other strategies to attract customers during the disruption. Take legal action When these efforts fail or are not feasible, then legal action may be the only way to resolve a construction dispute.

Accuracy, clarity, and specificity are crucial when it comes to drafting (or signing) a contract. Failure to prioritize these elements can lead to confusion and, in many cases, costly litigation. Recently, issues stemming from contract language and inaccuracies spurred a dispute between the operators of a stadium and a security company they hired to work events for 14 months. According to reports, the company hired to run the stadium accused the security company of overbilling and fraud. Among other violations, the security company allegedly submitted invoices listing workers who had been terminated, workers who worked more than 24 hours in a day and workers who appeared twice on the same list. Problematic contract terms In that case, the security company defended the claims based on a contract provision that the contract gave the stadium the opportunity to audit their performance, but the stadium chose not to do so and thereby waived claims of over-billing. Skillfully drafting a contract that includes specific language for auditing performance and billing can be valuable protection for your business. Dispute resolution In that case, the security company also expressed dissatisfaction that the stadium publicized its allegations of over-billing rather than bring the complaints privately to them. Again, including appropriate dispute resolution methods in that contract would have avoided the public embarrassment and, even though the security company prevailed, they lost business due to the bad publicity. What California business owners can take away from this case Situations like this one are not uncommon, but they can be prevented. Businesses should always retain an experienced attorney to examine or draft an agreement that is clear, accurate and specific, with your company’s best interest in mind.

Every aspect of starting a business takes time and energy. Owners expect their investment into the business to reciprocate — to pay back and prosper. When a competitor uses similar language or imagery, it creates brand confusion, a loss of customers and a loss of income. Trademarks provide security for your intellectual property. A trademark protects the fundamental concepts that define your business: your brand, your logo, and your design. While most are familiar with protecting logos, slogans, and unique aesthetic designs, it is possible to trademark additional elements that set you apart. The Play-Doh smell Hasbro, Inc. has filed a trademark application for the smell of their iconic toy, Play-Doh. Describing the sculpting dough’s smell in detail in their application, the company argues that its unique aroma sets it apart from competitor molding clays in a proprietary fashion. Trademark law acknowledges that a scent can be trademarked, but only if it is non-functional and distinct. This means the aroma must be essential to setting Play-Doh apart, but the smell must not affect how the toy functions. In other words, it has to be part of the brand experience, but without restricting another company’s ability to create honest competition. Legal Considerations The main component to trademarking an aroma is its distinction versus its application. Does the aroma truly set a product apart from its peers without overlapping onto its functionality? Legal website Above The Law notes three primary points for any business considering an aroma trademark. Scent trademarks are unique and only apply to very distinct brands. If the scent has a role in the product’s function, it cannot be trademarked. Consumers need to identify the scent as unique. The producers cannot make that decision. What is the right time to act? It is possible to trademark a scent, but it is not an easy trademark to pursue. For the right brand in the right situation, though, the smell of a product is part of the brand’s image. The complexity of this matter reflects the challenge most businesses face when deciphering the United States Patent and Trademark Office policy. Intellectual property and trademarks are essential to a business’s success but can be difficult to manage. A consultation with an experienced trademark attorney can help identify which aspects set your brand apart and also qualify for legal protection from the competition.

Many Californians prefer to work in non-traditional workplaces or under a non-traditional work structure. As such, there has been a dramatic increase in so-called “gig economy” jobs, or jobs on a freelance or short-term basis. However, these environments come with some issues in terms of worker classification. Are workers in these non-traditional occupations employees, independent contractors or something else? This is the question at the root of numerous “wage and lawsuits” and administrative proceedings in recent years, and it is one that you would be wise to address as an employer. Why proper classification is so important Employees receive benefits, wage protection and other employment-related rights that independent contractors and freelancers do not enjoy. Classification also influences if and how taxes are taken out of a person’s pay. Because of this, it is crucial that you properly classify workers to avoid accusations that you are not providing benefits or protections that you should be providing. So are they employees or contractors? In order to distinguish between employees and independent contractors, which are commonly miscategorized, employers can use the Borrello test. The test includes a list of factors that should help an employer determine whether a person is an employee or contractor. The factors include: How much control an employer has over the worker, the work done and how it is done Whether the person can work for other companies Whether the work performed is standard and/or part of regular business Whether the work demands special skills How long the job will last Whether the person is paid by time or by project Addressing these and other factors should help an employer determine into which category a worker falls. Doubts and mistakes can still arise This test is not perfect, especially when it comes to gig economy jobs that already do not fit the traditional workplace model. As such, disputes and disagreements can still arise involving employee misclassification. If you are an employer with questions about how to categorize your workers, or if someone has accused you of misclassification, it can be vital that consult an attorney about your options as soon as possible to avoid or minimize costly consequences.

In the course of operating a business in California, situations may arise in which another party tries to use your protected materials without permission. This is not uncommon, especially here in California where so many businesses thrive based on inventions, creations and other highly protected products and services. When this situation arises, it is important for a business owner to take deliberate, effective actions to protect the business and the work in question. In many cases, this can include sending a cease and desist letter. However, before you send anything, you should consider a few things: What do you want your letter to do? A cease and desist letter formally informs someone to stop certain behaviors, like using trademarked or copyrighted materials. It isn’t the same thing as a lawsuit, and it may not necessarily change behaviors of someone who ignores the demand or believes you are not in a position to back-up your demand with legal action. Write your letter as if a judge will read it. As this article on policing trademarks discusses, we live in a world run by social media and this allows consumers and clients to reach a massive audience with the click of a button. They could easily share your letter online, so it is important that you think carefully about not just what you are saying, but also how you say it. Make sure you own the rights which are the subject of your letter. Is it possible that you could actually be infringing on someone ELD’s ownership of the material? Is the work in question actually being misused or does it fall under a category like “legitimate fair use?” These are just a few critical things to consider before you send any cease and desist letter. It is, of course, important for business owners to enforce their ownership of intellectual property and other materials, but it is also necessary to consider your ownership rights, leverage, and delivery of the message. Talking to an attorney about cease and desist letters and other tools to avoid or address possible conflicts can be a wise decision. With legal guidance, you can work to protect your company, your clients and your reputation, while minimizing the potential of anything backfiring.

To remain competitive in the marketplace, businesses often need to provide something special to consumers and clients. This might include faster service, a better product or unique solutions. In any of these cases, the information or method that gives your company its edge may be classified as a trade secret. Examples of trade secrets For instance, your company might create consumer profiles or develop advertising and marketing strategies that are unique to your business and not available to the public. You might also have customer lists, bid specifications or business plans that are valuable because they are a compilation of information not otherwise readily available to your competitors. Challenges with protecting trade secrets These resources can give you an advantage over your competitors, and because of this, it is important that you protect them from misappropriation. But this can be difficult to do without the requisite knowledge or experience. As an example, business owners can be confused about whether to patent a specific invention or protect it as a trade secret. Or they might assume something is protected as a trade secret but fail to take the necessary steps to confirm this. It is also possible that a company protects a trade secret but is unsure of how to enforce it properly. These types of issues are not uncommon. As the World Intellectual Property Organization notes, trade secrets and protection measures aren’t necessarily as concrete and well defined as a patent, for example. There is no formal registration process; there is no timeline for protection; they are often defined using broad terms. What business owners can do Recognizing the importance of protecting these unique assets, business owners, and administrators should seek the advice of an intellectual property attorney who can help you identify, protect and enforce your company’s trade secrets.

Fighting legal battles with employees and former employees can consume massive resources and put the future and success of a business in jeopardy. Because of this, California employers typically take steps to prevent disputes and avoid litigation when possible. One way to do this is to attempt to prohibit workers from filing class-action claims in an arbitration agreement. Group legal action can be especially costly for employers and is a major point of contention in workplaces across the U.S. In fact, the right to pursue class-action claims against an employer is one of the cases currently in front of the U.S. Supreme Court. The issue at a glance At issue is whether employers can prohibit workers from bringing a class-action claim with arbitration agreements. Often, class action claims are filed in response to wage violations, discrimination and other types of workplace misconduct. A growing number of employers have created and enforced these agreements in recent years. According to this Reuters article on the issue, estimates suggest that 25 million workers have already waived their option to file a class action lawsuit by signing arbitration agreements. It is important to note, however, that this year California courts have essentially struck down class action waivers. Those who support class action waivers say that such clauses should be permitted and that there are still options for workers to achieve the same benefits of a class action through other means. On the other hand, critics of efforts to prohibit class action claims argue that doing so violates employee rights to organize. Group legal action versus case-by-case resolutions There are pros and cons to group legal action, depending on whether you are a worker or an employer. From an employer’s perspective, it is generally preferable to avoid group legal claims and instead address each claim on a case-by-case basis. Doing so can result in fewer plaintiffs and smaller awards. What happens now? Conflicting rulings from the 5th Circuit, 7th Circuit, and 9th Circuits. In hearing these consolidated actions, the Supreme Court will decide whether arbitration agreements preventing collective and class actions violate the National Labor Relations Act.

If you own a business in Beverly Hills, you know that maintaining successful relationships with customers, contractors, vendors and other partners is crucial. You should also know that oftentimes, these relationships and the deals that come with them are defined in writing with a contract. In the event that a party breaches – or breaks – the terms of a contract, there are a few legal options available to provide relief to the non-breaching party. Performance of duty This means the breaching party will complete performance of the duties specified in a contract. For example, if the breaching party was supposed to sell a property, the courts can order it to sell the property. This is often the result of a contract breach when money is not an adequate remedy and when the work or duty in question is unique. Payment of damages Many cases involving a breach of contract will result in payment of damages. There are different types of damages that courts may award in cases of contract breach, including: Compensatory (money to cover the loss incurred by the non-breaching party) Punitive (money intended to punish a breaching party) Liquidated (damages established in a contractual clause in the event of a breach) There could also be restitution ordered, which is essentially paying back the non-breaching party. Cancellation of the contract Cancelling a contract can seem like the most desirable option in the event of a breach, but you must be careful about pursuing this option. In some cases, you may not have the option of canceling the contract and in other cases, canceling the contract can have consequences you may not expect. Seeking the appropriate remedy Before you sign any contract, it is wise to consult an attorney so you can be confident that you understand the terms and expectations in order to avoid a breach. If you are already involved in a contract dispute stemming from a breach, you can discuss the various remedies and methods of resolving the dispute with your attorney. Having legal guidance and support in either scenario can help you avoid costly mistakes that jeopardize your company, your relationships, and your legal options.