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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.

When you hire a new employee, you have them sign a non-compete agreement to protect your company’s trade secrets from competitors. But one of your former employees just resigned and started immediately working for your leading competitor. What legal action can you take against your past-employee for breaking their agreement? Recommended legal advisement California’s business laws are complex, and misunderstanding the laws can greatly compromise your business. Before you make any decisions based on legal principles, contact an attorney who can inform you of your rights and ensure that you are acting within the law. California and non-compete agreements Along with a handful of other states, California does not enforce non-compete agreements. You cannot lawfully prevent your employees from working any job after they leave your employment. Even if your company is headquartered in a state that recognizes non-compete agreements, you cannot enforce agreements with your California employees. This may seem incredibly unfair. After all, you trained your employees in the industry, and shared company secrets with them. But California is protecting the employee’s best interest, not yours. They want to keep California residents gainfully employed. Unfortunately, this allows your employees to learn all they can from you and immediately turn to your competitors, or start a competing business of their own. Significant exemptions California’s non-compete ban applies to almost all situations, but there are a few notable exceptions: 1) The non-compete ban does not extend to current employees. You are able to prevent current employees from taking a second job within the industry or with a competitor. 2) Once a business owner sells his ownership to a new owner, they cannot compete with the business in a way that would harm its value. 3) Business partners and members of a LLC can mutually agree that they will not compete after they leave their business. Remember, California’s courts will almost always side with past employees in regards to non-compete agreements. Speak with your attorney to learn your rights as an employer, and work with them to determine the best ways to protect your company’s property and privacy.