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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.

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.

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.

As a business owner, you protect your most precious brands and assets through copyright and trademark. These legal safeguards are part of the success of some of the world’s most well-known products and services. These products can become so well-known that their name could be used interchangeably with other products; for example, you might say Kleenex to mean tissue or Band-Aid to mean bandage. Now, one of the world’s most popular events could suffer from the overuse of its name. Protection forever? Believe it or not, a brand can lose its trademark and copyright protection because the name or product becomes too generic. When this happens, it can be devastating to a business and will almost always result in litigation, which will require knowledgeable legal representation. To register and maintain a trademark or copyright, the petitioning person or company must prove to the government that their brand or product is distinguishable and has unique market value in its industry. A company can lose its utility patent protection after 20 years, which why we have generic medication like penicillin and the like. However, a company can keep its trademarks for as long as it is used in commerce or is defended by its holder, according to the International Trade Administration. However, just because a company can forever keep its trademark, in theory, that doesn’t always happen. Brand genericide The San Diego Comic-Con could fall as the latest victim to what industry experts call brand “genericide.” The ever-popular comic book, superheroes, and technology event attracts more than 160,000 people annually, according to the organization’s website. Its popularity has attracted spin-off events in other locations around the world, but the use of the name Comic-Con at other events has not always won the favor of the non-profit organization that puts on the event in San Diego. Now, the organization is engaged in a legal battle to protect the use of its name. The organization is arguing that the unfettered billing of “Comic-Con” at other events could harm the reputation and attendance of their flagship event in San Diego. A judge appears to be favoring the organization’s need for protection of the name “Comic-Con,” but 80 percent of consumers surveyed in a poll said they believe the name to be generic. Although Comic-Con focuses on the fantasy of superheroes and science fiction, the threat of losing a trademark can have real-life consequences for an organization.

In a recent post (read in full here), we discussed proposed Federal legislation that would affect California commercial transportation companies by extending the deadline to comply with an electronic logging device (“ELD”) mandate. The amendment to delay compliance until 2018 was rejected in a House vote last week. In other words, instead of having until September 2018 to comply with the mandate, trucking companies will still be required to do so by December 18, 2017. Unless you are exempt from this mandate, you need to be sure that you understand and comply with the requirements under the ELD mandate. This means that the vehicles in your fleet should be equipped with certified, registered ELD’s. You should have user accounts set up, and your drivers should understand the types of supporting documents they need to keep. If these and the other elements required under the ELD mandate are not in place yet, you need to take swift action so that you meet the December 18 deadline. The ELD mandate was put in place to address concerns that drivers were on the road too long and subjected to harassment or job termination if they took necessary breaks. The mandate is an attempt to make the roads safer for everyone. However, as discussed in our previous post which can be read in full here, compliance will be costly, particular carriers with large fleets. Considering how much money is on the line and the consequences of non-compliance, carriers would be wise to avoid any missteps by consulting an attorney who understands industry regulations and has experience navigating the legal system on behalf of transportation and logistics companies.

In some cases, these factors cannot legally be used as a reason to hire or not hire someone; in other cases, they can. For instance, as discussed in this article, hiring a person because he or she is attractive falls into something of a legal gray area. When hiring good-looking employees may be lawful Certain industries recognize appearance standards, especially in the entertainment industry here in California. Fashion, TV, film, advertising and similar industries often consider attractiveness as much of a qualification for a job as anything else when it is necessary for the role. In theory, it makes sense that a person can be hired based on physical attractiveness. When hiring good-looking employees may be unlawful This issue can get more complicated when putting it into practice. This is because an employer’s opinion of attractiveness could be discriminatory. Hiring someone based on their skin color, body type, age, gender or other elements of attraction can quickly cross the line into race, disability, age or gender discrimination. Talk to an attorney to know the difference Hiring and firing decisions can come under scrutiny when they are unpopular, unusual or seemingly unfair, which can lead to administrative agency complaints and lawsuits. Because of this, it can be critical for employers to consult an attorney experienced in counseling both small and large businesses in employment matters prior to making any potentially controversial or even illegal employment decisions – especially in California where workers’ rights are particularly protected and the damages and penalties to California employers can be extreme.

California trucking companies are wrestling with the impending “electronic logging device” mandate. On Dec. 18, 2017, compliance with the ELD mandate will be required for all truck driving companies, and for carriers with large fleets compliance will be prohibitively expensive. The Federal Motor Carrier Motor Safety Administration (“FMCSA”) issued this mandate in 2015. The devices are intended to electronically log the hours that the trucks are driven to prevent drivers from falsifying their logbooks. The FMCSA says that this will reduce accidents by keeping fatigued drivers off the road, and claims this will save the industry $1.6 billion per year in record-keeping costs. Trucking companies have argued that the mandate will severely increase the costs of compliance. The devices are estimated to cost between $199 and $2,200 per truck, plus monthly service fees of $20 to $60 per truck. For large carriers that have 10,000 trucks, for example, the cost will be in the tens of millions of dollars. Even independent operators are arguing against the mandate because they are unable to receive financing for the devices and already operate with thin profit margins. National carriers with large fleets may face annual compliance costs ranging from $2.4 million to $7.2 million not counting the initial installation cost of the devices in each truck. Companies might benefit by getting advice from business litigation lawyers about regulatory compliance issues. Attorneys might help their clients with understanding how to comply with the requirements, and they might litigate issues on their behalf in court. If the companies are cited for violating regulatory requirements, the attorneys may defend them in court and before regulatory agencies. The ELD mandate is likely to be a big headache for carriers nationwide, and experienced lawyers may help their clients with making smoother transitions with the installation of the devices.

Californians are no strangers to wine. Whether you drink it or not, you know wine is a massive industry that continues to grow. This growth may satiate wine lovers across the U.S. who thirst for more options, but it creates a problem for wineries who are finding it tougher and tougher to distinguish themselves in the marketplace. This is especially evident when it comes to the naming and labeling of wines. This is illustrated by a current case involving Bogle Vineyards and Next Wine LLC, — competing California wine makers who are locked in a dispute regarding use of the word “essential” on their labels. Although Bogle had been branding their wines for many years with the phrase “Essential Red” wine, they never applied for or obtained a trademark for the phrase. In 2013, Next Wine secured a trademark on the phrase “My Essential Red.” Shortly after, Bogle applied for a trademark on “Essential Red” wine, but the U.S. Patent and Trademark Office denied the request citing a likelihood of confusion. Although the labels look nothing alike, and the use and location of the “essential” element are very different between the brands, the parties attempted to work out an agreement that allowed them to coexist. Reaching an agreement was problematic, though, as Bogle demanded that Next Wine secure preapproval from Bogle regarding any future label designs. Considering that Next Wine holds the trademark and is in a much stronger legal and bargaining position, it is not surprising it turned down Bogle’s demand. Next Wine filed a lawsuit against Bogle calling its behavior, among other things, bullying, so they’re battling it out in court. Despite being in the early stages of litigation, the case is instructive that securing a trademark as early as practicable to protect intellectual property is important, especially in rapidly growing industries; otherwise, like a bad bottle of wine you may be left with a bitter taste in your mouth. Any business owner or executive with questions or concerns about trademarks or other means of protecting your company’s intellectual property would be wise to seek legal counsel to consider your options. There can be a lot on the line in these cases, from money to your company’s branding which may determine the success of your business.