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In previous posts, we have talked about the various tools business owners can utilize to protect their intellectual property: non-disclosure agreements, patents and copyrights among them. These measures can protect the originality of the work in question and help prevent others from unauthorized use. However, understand that people may still try to copy or recreate your product or service. To more fully protect your product, the author of this Forbes article suggests you try to steal your own work. Designing around protections When it comes to a product you invented, expect there to be competition if the product is successful, the author notes. And that competition may invest a hefty amount of resources in figuring out your product, reverse engineer it and determine what makes it work. This investment can include hiring workers who can work around or recreate a product without using patented materials or designs, for instance. This allows another party to create a similar – but not the same – product without violating any legal protections you have in place. Stepping back to protect more However, if you step back from your product and look at ways other people might recreate or redesign it, you can identify additional points to protect. For instance, you might have the exact product you want, but others might change the shape, color or materials and then sell a similar item without violating your patents. If you also patent those materials, uses and processes, you can give yourself an even greater head start. Keeping it all in check Keep in mind that owning more intellectual property takes more resources and effort. Not only must you figure out what to protect, you should also navigate the systems and applications to secure those protections. You will also have more to protect, which, again, requires resources and effort when enforcing ownership rights. To keep everything in line with the best interests of your business, it can be wise to work with a legal professional skilled in protecting intellectual property. With this type of support, you won’t have to manage the legal details of your intellectual property rights alone, allowing you to focus on other elements of your business.

Parking may not seem like a serious issue to most motorists. At most, it can be an infrequent, sometimes expensive, headache. However, for those in the trucking and transportation industry, parking is among the most stressful parts of a driver’s job. It is also creating considerable challenges with regard to complying with federal regulations and avoiding financial waste, according to a recent report. Why is parking such a problem? Commercial truckers must stop driving after a certain number of hours on the road to sleep and rest. These limits are established in the Hours of Service regulations. When they stop, drivers typically look for safe, authorized parking spots. However, there are not enough of these spots available. As such, drivers can spend at least an hour per trip looking for a place to park safely, which is stressful and results in wasted fuel and lost productivity. Drivers who cannot find a space may continue driving in excess of HOS regulations, or park in an unsafe location like an exit ramp. These decisions can result in hefty fines and possible accidents that lead to catastrophic damages. Unfortunately, there are no easy solutions. Consequently, truckers and trucking companies can struggle to comply with regulations and may be faced with fines and liability issues that could jeopardize jobs and their business. Should these matters arise, resolving them quickly, typically with the assistance of competent counsel, can help minimize the damage. An attorney may be able to help minimize penalties associated with fines or offenses.

Transportation plays a critical role in today’s workforce, whether people work in the transportation industry or travelling is just a part of their job. As an employer, you probably have in place specific policies related to traveling, from approving expenses to tracking work hours away from the office. These policies can prevent disputes with employees and lawsuits, so it is critical to have them. And it is important that they address the full range of travel-related behaviors, including driving habits of your employees who drive either their own vehicle or a company vehicle as part of their job-duties in the course and scope of their employment. For instance, did you know that your company could be responsible for an accident caused by an employee who was distracted by a phone? The big problem with distracted driving Driving while distracted is something that countless drivers do every day, despite laws in place to deter such behavior. In the interest of either efficiency or boredom, workers while driving check emails, texts, and speak on the phone (as well as other types of distracted driving such as petting their dog, looking for an address, applying make-up). If an accident result due to the worker’s conduct, the victim may pursue compensation from the driver, the owner of the vehicle and the worker’s employer. Employers: protect yourself and others To prevent distracted driving accidents and to shield your business from an unfortunate legal battle, employers should have in place clear, consistently-enforced policies on safe driving. Employers might have a policy that they do not expect an immediate response to work-related correspondence while a person is on the road, and that there is no requirement for drivers to answer their phones or call anyone back unless they can do so safely. As this article notes, it can also be wise to limit employment opportunities that involve driving to workers with a good driving record. Requiring drivers to complete driving classes can also be an option worth considering. Having solid policies in place and helping employees practice safe driving habits can be wise decisions for employers to avoid both serious car accidents and costly litigation.

California employers are struggling to create and maintain a safe, healthy and productive workplace. It involves hiring the right people, establishing an appropriate culture and balancing legal compliance with the cost of instituting the necessary safeguards. Indeed, despite all the work that employers might put into creating a positive workplace for employees, it can all be overshadowed by alleged sexual harassment or sexual abuse. In situations where an employee or employees are reporting harassment, there are some crucial steps employers should take to respond to a harassment claim. 1. Take the Complaint Seriously. Every employer, supervisor and manager should know to take complaints seriously. Dismissing or minimizing them out of hand can ultimately lead to a lawsuit. You should speak with the alleged victim and assure them that they will not face retaliation and that you will investigate to make sure all your employees are in a safe environment. 2. Investigate the Claim. Make an earnest effort to immediately investigate the complaint. This typically involves interviews with the alleged harasser and witnesses. The investigation should be thorough and unbiased. If you don’t feel you can conduct such an investigation yourself, or if it involves you or someone close to you, there are law firms, investigation companies and human resource companies who perform this type of investigation. 3. Take Appropriate Action. Depending on the results of the investigation, take appropriate action. The action you take should be lawful and reasonable to avoid additional complaints and possible legal claims. Options could include adjusting work assignments or settings, disciplining and possibly terminating the harasser. NOTE: This, too, must be done in a legally permissible manner to avoid a wrongful termination claim by the alleged wrongdoer. 4. Fully Document the Investigation & Remedial Action Taken. Keep track of all emails, notes and other documentation you generated and collected throughout the course of the investigation. This can provide critical protection to the company should future claims arise, and it can serve as evidence of your efforts if anyone challenges the actions you took or did not take.

Negotiating a partnership, commercial lease, settlement or other type of agreement in California can be a tedious process. However, as difficult as these negotiations are, they can become even more challenging when the parties attempt to memorialize the agreement in writing – particularly if one party attempts to employ bad faith tactics. A recent article from the New York Law Journal describes how such efforts can sabotage good faith negotiations, so it is helpful to understand what these tactics are. Below are some examples of what these might look like. Negotiating without an interest in reaching an agreement In these situations, false negotiators are typically only interested in collecting information about the other party. There is no real intention of entering into an agreement. In these cases, be wary of excessive delays, refusal to answer questions directly and dealing with individuals who are not authorized to make decisions. Last-minute demands If parties have reached an agreement on material terms, they should not change those terms or try to leverage those terms for additional concessions without good reason or fair compensation. Hiding significant material facts This is not only in bad faith, but possibly fraudulent, depending on what facts are concealed. To protect against this possibility, your attorney will typically include a provision in the written agreement in which the parties warranty their representations and sets forth a remedy to the aggrieved party in the event any such material representations are false. How to deal with bad faith negotiations Heading into any business negotiation warrants support and careful preparations. Whether you trust the other party or not, you will want to be cautious and protect yourself. Make sure you have a competent attorney represent you and be wary of bad faith tactics. If you’re negotiating a deal that you have no obligation to complete – such as a partnership agreement – and you are confronted with these types of tactics, you may wish to take it as an omen to come and withdraw from the deal before it’s too late.

Construction disputes are not uncommon across California, whether parties clash over construction defects, enforcing the terms of a contract or liability issues. Often, there are several parties involved in a single project, which means there are plenty of opportunities for arguments, oversights and errors, which can and do lead to legal disputes. Unfortunately, as a recent report from Arcadis shows, these disputes are not getting any easier to resolve. More time, less at stake The report notes that in North America, the average time it takes to resolve a construction dispute stretched out to 17.7 months in 2017. This is two months longer than the average time it took in 2016. And it is nearly three months longer than the global average. Not only are the disputes taking longer to resolve in North America, but the value of the disputes is decreasing. In 2016, the average value of a construction dispute was $21 million; in 2017, it dropped to an average of $19 million. Globally, the 2017 average value of construction disputes were up to $43.4 million. Reasons behind the disputes The report goes on to say that contract disputes are the most common triggers of legal disputes. Globally, failure to administer a contract properly was the most common cause of disputes. In North America, omissions or errors in the contract were the leading cause of construction disputes. What we can learn from these numbers What we can take away from this report is a powerful reminder that properly creating and reviewing a contract is vital, particularly when it comes to complex or large projects. Readers can also be reminded of the fact that resolving contract disputes can be a lengthy, complicated process. And with so much at stake, having qualified legal counsel throughout the process, from creating a contract to finalizing a project, will be critical in preventing and resolving costly disputes.

Leasing commercial space is vital for business owners across California. They want to find the right space for the right price in the right neighborhood. Once they find such a location, holding on to it can be a top priority. However, that might be easier said than done when a commercial tenant and landlord get into a dispute. In these situations, not only could landlords and tenants be facing financial losses, but customers could also suffer consequences. A battle between landlord and tenant For instance, recently a California landlord and a beer garden tenant clashed over the landlord’s decision to evict the beer garden once their lease ends next month. The two parties have had a strained relationship, which was evidently caused by the beer garden owner’s decision to pay the rent late every month. The owner said he did so purposefully because their agreement stated no penalties for late payments. While the beer garden owner says he would be willing to pay the landlords more money if they let him stay, the landlords maintain they have no plans to renew the lease. Loyal customers caught in the middle If the lease is not renewed, the space could sit vacant for at least two years, which is when the landlords hope a new project for retail and restaurant spaces will open. Or, the landlord might continue operating a beer garden in the space, considering the loyal customer base in the area. Ultimately, though, the disputes between the landlord and the beer garden owner puts customers in an unfortunate position. Lessons to learn If you are leasing commercial space, either as a tenant or a landlord, know that you can prevent similar disputes from hurting your business or contractual agreements. One option is to ensure your contract is comprehensive and specific. It should include details about financial expectations and penalties, grounds for terminating the agreement and terms for renewal. It can also be important to work through a landlord-tenant dispute with the help of an attorney, rather than try to navigate a complicated situation alone. This can help people avoid making decisions based solely on emotion, which can work against them in a professional – and tenuous – relationship.

California business owners should be aware of a recent announcement by Gov. Jerry Brown. According to a law he signed last week, California will be the first state in the U.S. to require certain types of companies to have female representation on their boards of directors. Currently, the measure applies only to publicly traded companies headquartered in California. However, it sends a message to every current and prospective entrepreneur that the business environment in this state is changing. The reason behind the legislation Currently, gender equality in the workplace is a highly visible and divisive topic. Debates regarding equal pay and sexual harassment have dominated news cycles; female representation in traditionally male-dominated industries like politics and S.T.E.M. continue to lag, though there has been progress. These shifts and obstacles prompted legislators to propose and support the bill to require large companies in this state to have at least one female director on their boards. Supporters say that doing so is in the best interests of businesses and their customers. What does this mean for business owners? The actual impact of the legislation remains to be seen. However, it is possible that we will see appeals challenging the laws, as well as pushback from the one-quarter of California companies that will have to add at least one female to their boards. We could also see companies embracing the measure. Instead of fighting it, there could very well be corporations that see it as an opportunity to expand leadership opportunities to deserving – but discriminated against – candidates. Whether you agree with the legislation or not, it could very well affect your business. Even if your business is a small- or medium-sized entity, you may want to consider your own leadership structure and representation. Are you promoting diversity in your business? Are you giving every person equal opportunities for advancement? Are you considering all options for reducing harassment and discrimination in the workplace? This legislation could present legal challenges to business owners in terms of complying with state regulations and avoiding the appearance of discrimination. Should any issues or disputes regarding these matters arise, legal guidance could become necessary.

A business’s intellectual property is one of its most important aspects. Intellectual property (“IP”) is an original idea or product created by your business. In today’s information age, it can be easier than ever to find yourself entrenched in a legal battle over IP. That’s why it’s more important than ever to defend a new business idea as soon as it is created. It may seem like an unnecessary step, after all you don’t expect a new idea to be poached before you can act on it. Unfortunately, that’s exactly what can happen. Companies need to be aggressive in defending their intellectual property. This can include creating a comprehensive plan for copyrights, trademarks and licensing agreements. It’s easy now for someone to steal an idea or business plan. Information is readily accessible and careless internet habits or unprotected email passwords can expose company secrets. Risk can also come from an internal threat. Consequently, it’s important to be proactive with new intellectual property. These steps can help your business defend a new IP: Create a plan Understand what aspects of the new idea need to be protected. Is there a state or federal license you need to procure? Should you protect it as a trade secret? Does it have copyright protections? All of these require different approaches and different protections. You need to either research what protections are available for your specific circumstances, or retain a law firm with expertise in IP law. Anticipate duplicates It’s much easier to defend a protected piece of intellectual property than to take steps to defend after the fact. Even though IP laws can be confusing, it’s much better to take steps to defend a new idea before facing any issues. Create and enforce strong non-disclosure agreements A strong non-disclosure agreement doesn’t mean you don’t trust your employees. Instead, it’s a proactive step taken to protect a new idea. Employees change positions and jobs all the time, and they can take confidential information with them. Don’t let another company benefit from your hard work. These are just a few steps a company can take to protect new intellectual property. A forward-thinking approach is always better than having to react to attacks on business ideas. If you’re considering taking steps to protect your intellectual property, an aggressive business attorney can help determine the best course of action.

Employers across California go to great lengths in terms of both time and money to hire loyal, competent employees. However, it can be a challenge to retain employees, particularly when a competing entity offers attractive benefits to try to get a worker to come work for them. In some states, employers prevent this by having employees sign non-compete agreements that prohibit them from working for certain companies until a certain amount of time has passed after their employment ends. Except in a few, very limited, circumstances to be discussed in a separate blog, a non-compete agreement that prevent employees from future gainful employment are void in California. Importantly, however, this ban only applies to non-competes that are designed to remain effective after the termination of employment; a company may – legally and for very legitimate reasons – prohibit its employees from moonlighting during the term of their employment, particularly when the moonlighting it performed for a competitor. In one of many maneuvers to attempt to jump this hurdle, some companies have so-called “no-poach” agreements across franchises or companies that can serve as a similar means of preventing workers from leaving one company for a competitor. However, attorneys general in 10 states – including California – are taking issue with these no-poach agreements. According to reports, the AGs have targeted eight fast-food chain restaurants and requested that they provide information on their no-poach agreements. In this industry, an estimated 80 percent of franchisors have no-poach provisions in their franchising agreement. The agreements evidently prohibit one franchise in a chain from hiring an employee from another franchise in the chain. As the AGs argue, no-poach provisions unfairly restrict an employee’s rights; they also make it possible for franchisers to keep wages low and prevent competition. By doing this, they create obstacles for employees looking for better positions or benefits at another location. Further, the AGs note that many employees have no awareness of these agreements between franchisors, creating confusion and complications when an employee seeks out new employment. The franchisors have until next month to provide the requested information. If you are an employer with questions about no-poach agreements and other types of employment contracts, it can be wise to consult an attorney right away. It is not always easy to understand how the laws treat these types of agreements, and failure to have legal guidance can leave you exposed to lawsuits, loss of workers and other consequences.

You’ve noticed a change in sales lately but can’t find a reasonable explanation to account for the losses. You don’t want to believe that one of your employees has been stealing money out from under you, but your suspicions are growing. You believe that someone in accounting may be to blame. However, before you confront an employee, you’ll want to know for certain that you’re confronting the right person and can provide evidence to back up your claim. What are the signs that an employee has been embezzling money? How can you confirm your suspicions and take legal action against them? The red flags of an embezzlement scheme Employees who steal are often egotistical enough to believe that they’ll never get caught, but there are subtle giveaways that can help to reveal their true identity. Whether they’re a longtime or new employee, embezzlers are eager to learn the ropes of the company so that they can eventually manipulate and exploit the processes. They may also appear to be “living the good life” or otherwise living outside of their means. You see their paychecks, so how can they afford to buy a new car and brand name clothing even you can’t afford? Things simply aren’t adding up. Embezzlers have no hesitations about lying so it comes to no surprise that they may abuse other company policies. This can include sneaking out of work early without permission and abusing the number of sick days that they can take. Lastly, do they have a motive to steal? If you have an employee who has expressed discontent about the way they’ve been treated, they may have felt the need to seek revenge against your company. How to conduct your own embezzlement investigation If you’ve noticed the behaviors above, you may want to do some investigating. Gather your business’s financial statements and start reviewing accounting documents. You may find that some documents are missing, which should immediately raise a red flag. When analyzing the documents, do you notice any unexplained expenses and reimbursements? Are there unauthorized vendors on accounts? An embezzler may also receive a customer’s payment, but then pocket the money. If an employee is doing this, you may notice an unusual amount of past-due accounts. After you’ve gathered enough information, it’s time to create a game plan to address the problem with them face-to-face. But this isn’t always a task you should take up alone and you may want to get a second opinion before doing so. You have the right to protect your business through termination and subsequent litigation. A dishonest and disloyal employee should be ousted for their actions and held accountable under the full extent of the law. Empowering yourself with your options can help you to take back control of your company and close in on opportunities for financial exploitation.

California employers have a lot to think about when it comes to hiring workers: the type of employee, whether to pay them on and hourly basis or salary, the rate of pay, the types of standards they to enforce, and many more issues. Unfortunately, these decisions aren’t always strictly in an employer’s hands. Sometimes, they depend on much larger factors, like the available workforce and the economy. For instance, trucking companies are struggling with a driver shortage that has taken a considerable toll on hiring prospects. As noted in a recent article on the trucker shortage, companies may be making hiring concessions they might prefer to avoid. A complicated situation The transportation industry is facing numerous challenges, from a historically low unemployment rate to rising costs and steadily high demand. This means that trucking companies are as important as ever, yet there are tens of thousands of positions open that they cannot fill. Finding solutions To begin with, companies are increasing wages and offering bonuses they had not offered before. Many companies are also relaxing the qualifications they are looking for in drivers. As the article noted, some are willing to hire anyone, as long as he or she can secure a Commercial Driver’s License and meet basic physical requirements. Solutions that also create problems Whether these efforts are successful in attracting new drivers remains to be seen. However, it is important to note that changes to hiring strategies like this can have considerable impact on a business in the short- and long-term. For instance, such shifts could result in wage demands that a company cannot maintain, issues with managing untrained or unfit employees and possibly an increased occurrence of regulatory violations. In other words, even if hiring solutions accomplish one goal, they can lead to other issues if employers do not consider the legal and long-term impact of their decisions. As such, it is crucial for trucking companies, and all employers, to discuss hiring practices and strategies with an attorney who is familiar with the unique challenges California and Federal law pose.