LiLaw Inc.

Developing an employee handbook

2020-09-04T04:23:37Z

Every start-up experiences growing pains. The process of hiring more employees and increasing your size carries with it headaches that most entrepreneurs would rather avoid.

One of these is developing an employee handbook. That’s very unfortunate, because the purpose of this document is to prevent problems in the future. A small investment in time and effort today can help prevent misunderstandings, bad feelings, and even lawsuits in the future.

The basics

The most important thing to remember about an employee handbook is that it is not a contract, but a guide. It is important to state very clearly what is expected of each employee in terms of safety, workplace demeanor, and other procedures which have to be followed exactly.

Much of this is standard, and can be copied from other companies of similar size in the same industry. It is critical that all company policies be outlined as well as expectations under the law. You may well want to keep it brief and manageable, but it does have to be complete. It should also be reviewed and updated at least every two to three years.

Updating an existing employee handbook

There have been some important changes in employment law for 2018, particularly here in California. If you have an existing employee handbook, or are planning to primarily copy one from another start-up, you do have to be aware of these updates. They include:

Policies prohibiting discrimination against LGBT employees
Policies regarding recreational marijuana, alcohol, and related
Recent court decisions on family and medical leave act (FMLA) situations
Changes to the definition of “reasonable accommodation” under the Americans with Disabilities Act (ADA)
Legal requirements for sexual harassment reporting, documentation, and related policies
New regulations relating to contractors, especially regarding the number of hours they can work

Harmonious workplace

The main reason to have an employee handbook is to be sure that everyone is aware of the applicable employment laws and company policies in advance. This should be a part of promoting a happy and harmonious workplace, not a strict regime of “dos and don’ts.”

If you need assistance in preparing an employee handbook, you should contact an experienced employment law attorney for guidance. You may have not felt the need to have one in place, but as your start-up grows it becomes more important all the time. Don’t think of it as a headache, but as a good way of preventing problems in the future.

Protect your trade secrets with these 7 steps

2020-09-04T04:23:43Z

The movies have conditioned us that stolen trade secrets are the result of an eastern-Europe originated cyber breach or the result of a daring break-in where the Tom Cruise-looking spy navigates through your maze of lasers security system to hack into your data center. And before you know it, your trade secrets are gone. But is that really how trade secret theft happens? Let’s be real here, you don’t even have a laser maze security system. And a statistical study of trade secret theft shows that it’s far more likely your own employee will be the one stealing your trade secrets. It’s who you know State and federal studies show that most intellectual property (IP) misappropriations will come from someone you know. One state study found that over 90 percent of the thefts were committed by someone the business owner knew: an employee, business partner or vendor. 67 percent of employees who took confidential company information did so to help them get or perform at a new job. How to protect your trade secrets Protecting your trade secrets is protecting your business, and to do that properly, you will need to involve your entire staff. Studies show that the majority of IP thieves had signed an IP agreement—which indicates that prevention efforts require multiple steps. You can’t just rely on the IP agreement to do the job. Here are seven steps that can help protect your trade secrets:

Identify your trade secrets: It is difficult to make a case supporting trade secret theft without first identifying the information deemed to be confidential. Any confidential business information which provides your business a competitive edge may be considered a trade secret. Examples include customer and supplier lists, source code, pricing and margins, formulas, processes and other methods of operation. If this information could help your competition, then it should be classified as a trade secret.
Control access and compartmentalize: If your secret is kept digitally, it should be on a secure server with limited access. If the secret is on paper, mark it confidential and keep in a locked file (think of the Colonel’s secret herb and spices recipe locked in a vault somewhere). Only the right people should have access to your trade secrets.
Put a trade secret team in place: Best practices suggest establishing a cross-functional team to ensure that trade secret protection policies are being followed. The team could consist of representatives from HR, information security, physical security, legal and others.
Educate and train staff: Make employees—and vendors—aware of the importance of your company’s trade secrets. Discuss the warning signs of IP theft and how to report suspicious behavior. Make this a part of your employee on-boarding process and have new employees sign an intellectual property agreement. Use periodic reminders and follow-up training to keep the issue current with your employees. Use the opportunity to have staff re-sign IP agreements.
Hire properly: Check backgrounds of all potential new hires. If a recruit offers to bring competitive intelligence from their former employer—what you would consider a trade secret—walk away. If they would do that to their former employer, you can be confident they will do it to you as well. There is also a legal risk to your business if competitor trade secrets come to your company.
Understand legal protections: California has trade secret laws adopted from the Uniform Trade Secrets Act, which provides trade secret owners a procedure to file civil lawsuits in federal court. Unlike other types of intellectual property, such as patents, copyrights and trademarks, the law does not provide for registration to obtain legal protections for trade secrets.
Prosecute violators: If you suspect your intellectual property is being used or you have uncovered the theft of your trade secrets, consult with an experienced intellectual property attorney right away. A cease and desist letter is often the first step, but your attorney will help determine the most prudent course of action.

Theft of trade secrets can cripple a company. Consider working with an experienced intellectual property attorney before problems arise. Your attorney can guide you through the steps to take to protect your trade secrets and help you keep your competitive edge.

Litigation results in $2 million verdict

2020-09-04T04:23:47Z

Most people in California simply want to go to their jobs and perform their job-related tasks to the best of their abilities. Unfortunately, the actions of others can make this a difficult task. While sexual harassment is illegal, victims should at the least be able to expect that their employers will help them take appropriate action to resolve such treatment. If help does not come, victims may have no choice but to turn to litigation. Such was the case for a woman in another state. In a lawsuit filed against a company focused on funeral services, she claims she was the victim of sexual harassment. Court papers indicate that another co-worker touched her inappropriately and made offensive comments to her, among other allegations. The plaintiff in the case argues that she made it clear to him that his behavior was not wanted. Although she claims she reported her concerns to her supervisors, no action was taken against the man. However, she states that she faced retaliation as a result of discussing her concerns in the form of untrue statements about her work and a ban on her working from home. While the company denied her allegations, a jury recently ruled in her favor, awarding her over $2 million. All employees have the right to feel safe in their workplaces. If they do not, there should be procedures in place that can attempt to correct concerning, and often illegal, behavior. However, if a victim of sexual harassment is unable to get the help he or she needs from his or her supervisors or other relevant personnel, litigation may be the only path to justice. A California attorney with experience with such cases can help these victims fully understand their options and seek the most appropriate action. Source: timesnews.net, "Plaintiff awarded $2 million in East Lawn Funeral Home lawsuit", Matthew Lane, Feb. 12, 2018

Litigation over alleged pregnancy discrimination

2020-09-04T04:23:52Z

The way that expectant mothers are viewed in the workplace has changed dramatically over the course of the last several decades. In fact, the Pregnancy Discrimination Act made discrimination based on medical conditions related to pregnancy and childbirth illegal. Further protections were added in 2008. Though most employers in California are willing to provide the accommodations required by law, there are still those who violate law and discriminate against pregnant workers. Unfortunately, Walmart may be facing litigation over allegations that it discriminated against a pregnant worker who claims she was seeking reasonable accommodations. The woman claims that she began to feel nauseated due to her pregnancy while at work as a packer at a distribution center for Walmart. When she informed her supervisor, he told her she would have to bring in a note from her doctor to get another break. She returned with a note stating that she needed to avoid heavy lifting. The supervisor reportedly informed her to take the note to human resources. Human resources informed her that she was a liability to the company and that she would need to request unpaid leave. If she did not request leave, she could lose her job altogether. As it would with most people, unpaid leave left the expectant mother in a precarious financial situation. After realizing that the treatment she received may have been illegal, she began working with other organizations who filed a complaint with the Equal Employment Opportunity Commission. A representative for Walmart claims that there was no other position available that would accommodate the woman's conditions and asserted that the company was willing to work with her over the issue. While many employers in California and across the country are willing to go to great lengths to do what is in the best interest of their employees, there are still those who resist laws ordering them to make reasonable accommodations under certain circumstances. Unfortunately, workers often feel helpless and unsure of their possibilities. However, litigation often makes companies rethink their policies and do what is right, both legally and morally. Source: CNN, "Fired for being pregnant: Another kind of discrimination women face at work", Elissa Strauss, Feb. 1, 2018

Litigation over train engineer’s termination

2020-09-04T04:23:56Z

Multiple jobs in California and other areas of the country require employers to make split-second decisions. In some cases, the worker is torn between potentially preventing a serious incident or causing damage to company property in an attempt to avoid an incident. A man in another state is now turning to litigation after he claims he was wrongfully terminated after he avoided a potentially serious accident. The man began working for BNSF Railway Company, the defendant in the lawsuit, in 2002 and remained with BNSF until he was terminated in Aug. 2015. The month before his termination, he claims he was controlling a locomotive as he attempted to move several freight cars between yards. Unfortunately, he explains that when he applied an independent brake, nothing happened. Because he knew that tanks filled with hazardous material were at the bottom of the yard, he says he was forced to make a decision to avoid an accident. He claims he threw the train in reverse, avoiding an accident but damaging the locomotive. His actions were sparked by concerns that an accident would have caused a significant explosion. However, he argues that he was terminated the next month because he failed to "safely operate a train." He further states that he later learned that there had been issues with the locomotive's maintenance that had only been given "band-aid fixes." People in California and across the country want to be treated according to their performance at work. In many situations, an attempt to avoid a major incident would be rewarded rather punished. If a worker feels he or she is a victim of wrongful termination, litigation may be the best option to correct the injustice. Source: king5.com, "Ex-BNSF engineer raises safety concerns, claims wrongful termination", Natalie Swaby, Jan. 25, 2018

Grumpy Cat litigation leads to $710,000 award

2020-09-04T04:24:01Z

When it comes to social media, it may be difficult to predict what exactly will attract attention and become a viral sensation. When such fame comes, however, many people in California must work hard to protect their property. For example, the owner of a cat -- known as Grumpy Cat -- turned to litigation after she claimed a company infringed on her copyright. The cat, whose name is Tarder Sauce, began showing up in a variety of different places after she became famous on social media. Her pictures could be found on book of cat philosophy as well as calendars. In fact, she was included on the Forbes list of Top Influences. At one point, her owner created an agreement with the father-son owners of Grenade Beverage. The cat owner received $150,000 upfront to use the cat's likeness in the marketing of iced coffee. However, the lawsuit claims that Grenade Beverage when beyond the original agreement, also using the cat to market coffee grounds and T-shirts. The owners of Grenade then countersued, claiming that Grumpy Cat Ltd. had not fulfilled its agreed-upon duties to market and support the line. In fact, they argue that the plaintiff's brother posted a picture of one of the company's products before they were prepared to launch and that a discussed movie involving well-known comedians never materialized. A jury recently ruled in favor of the cat and her owner, awarding them $710,000 for trademark and copyright infringement. While litigation may seem like an extreme option to some, often it is the only option to protect a person's livelihood. Seeking relief in court may be the best way for people in California to seek justice should they fall victim to copyright infringement or breach of contract. Source: NPR, "Grumpy Cat Awarded $710,000 In Copyright Infringement Suit", Scott Neumann, Jan. 25, 2018

Litigation: Man awarded $1.2 million for wrongful termination

2020-09-04T04:24:07Z

People in California often have a path in life. For many, this includes going to work and doing the best they can while employed. Fortunately, should something unexpected occur -- such as an illness or injury -- they should be able to trust that their employers will make reasonable accommodations for them, including allowing them to take medical leave. If such accommodations are not allowed, workers have the option of seeking recourse through litigation under certain circumstances. One man in another state chose to do so. He was reportedly employed as a data resources manager from 2004 to 2015. Unfortunately, in 2013 he experienced tumors in the nerves of his feet, leaving him in severe pain. After therapy failed, he underwent surgery. He notified his employer that he would need medical leave from work while he underwent and recovered from surgery; he claims that he notified his employer at the time that he would be spending part of his leave in Mexico as his family had already planned a trip. When he returned to work at the Massachusetts Water Resources Authority, he was reportedly told that the trip to Mexico violated the rules of the "salary continuation program." Although the man denied a violation occurred and explained that he had notified his employer of the trip in advance, he was terminated. In Dec. 2015, he filed a complaint, claiming that he was wrongfully fired; a jury recently agreed, awarding him $1.2 million. While there are laws in place to protect workers who need medical leave under certain circumstances, workers in California and across the country often fall victim to unlawful treatment. Often, the best way to rectify such a wrong is through litigation. By taking such action, these victims are often able to prevent others from being treated in a similar fashion. Source: The Boston Globe, "Jury awards former MWRA worker $1.2 million for wrongful termination," Danny McDonald, Jan. 19, 2018

Tim McGraw, Faith Hill, Ed Sheeran part of copyright litigation

2020-09-04T04:24:11Z

Musicians and writers in California and across the world work hard to create original works. Once they have done so, they typically want to ensure that their works are protected from copyright infringements. To do so, people must sometimes turn to litigation in order to protect their intellectual property. In fact, two songwriters have recently filed a lawsuit as a result of a duet sung by Tim McGraw and Faith Hill. The plaintiffs claim that the song "The Rest of Our Life" blatantly copies a song written by them called "When I Found You." The lawsuit asks for $5 million -- or more -- in damages in addition to an injunction. Court papers claim that "The Rest of Our Life" copies the plaintiff's song verbatim in some instances and includes copying of their original musical elements. The lawsuit names the McGraw-Hill song's writers, including Ed Sheeran. The plaintiffs further claim that employees of Sony were aware of the similarities between the two songs and may have even provided Sheeran and other writers with "When I Found You." The writers decided to take legal action after a fan posted on social media about similarities between the two. Songwriters have a right to protect their original work when it's unlawfully copied. On the other hand, others facing litigation must defend themselves of accusations of copyright infringement. In either instance, it is beneficial for those in California involved in such legal action to have someone with experience at their side to guide them through their cases. Source: foxnews.com, "Tim McGraw and Faith Hill sued for copyright infringement," Morgan M. Evans, Jan. 12, 2018

PTSD diagnosis at center of pending lawsuit

2020-09-04T04:24:16Z

Those who have a job related to public safety often have highly stressful positions. Even workers who answer 911 calls and dispatch emergency responders spend a great deal of their job hearing -- and sometimes experiencing trauma -- on calls. Unfortunately, a pending lawsuit claims that a city wrongfully terminated a woman who allegedly developed post-traumatic stress disorder after a particularly disturbing call. The woman reportedly began working for the city as a public safety call taker in Feb. 2005. After briefly leaving the position in May 2010, she returned a year later, staying until March 2016 when she claims she was forced to resign. The lawsuit she filed in late Dec. 2017 alleges that while working as a dispatcher, she received a call from a man who admitted to shooting someone; during the call, she realized that the victim was her brother. The caller then took his own life. Her brother was seriously injured, and soon after she was diagnosed with PTSD, which resulted in missed time from work. Although she requested a transfer to an administrative position, the lawsuit claims her request was denied. She further states that supervisors told her co-workers about her diagnosis who then harassed her. She claims that she was ultimately forced to resign. Her lawsuit requests damages between $200,000 to $1 million. Her former employer declined to comment on the pending lawsuit. Unfortunately, employees in California and across the country also face discrimination and a failure to provide appropriate accommodations for a disability. Because this treatment is unlawful, victims of such treatment often choose to seek recompense. An attorney with experience regarding such cases can help evaluate the merit of a claim and take appropriate action. Source: elpasoinc.com, "911 dispatcher sues city for wrongful termination," Aaron Montes, Jan. 8, 2018

Are your California company’s valued trade secrets really secret?

2020-09-04T04:24:22Z

There is an obvious point attached to trade secrets in the commercial world.

And that is this: They're supposed to be, well, confidential.

That's the reason you take mighty strides to spotlight your critically important intellectual property and safeguard it against unlawful misappropriation, right? You know that your entrepreneurial instincts as a business professional in the Bay Area demand that you do so.

Why is trade secret protection such a big deal?

The reasons why are many. The benefits from years of toil and brainstorming can be wiped out in an instant when a former employee hands over your confidential business plans to a competitor. Rivals can intrude on your market share following the unlawful disclosure of a customer list. Devastating consequences can flow from the sharing of technical processes and know-how with upstart commercial challengers.

That is why sharp and focused business principals routinely make strong efforts to ensure that their most precious internal information and data are identified and legally protected to the maximum extent possible.

Can you really do much to safeguard your trade secrets?

Stories abound that highlight the pilfering of key information. Those are sobering, but should never be construed as suggesting that a careful business owner can't protect a company's most vital know-how.

In fact, there is a lot that can be done to guard against downsides. Employers can implement the following measures and other strategies recommended by an attorney who routinely works with diverse clientele on intellectual property-related matters:

Execute strong employee contracts addressing confidential information, and keep them timely updated
Implement protective electronic measures to safeguard proprietary intellectual property (e.g, firewalls, limited-access protocols and search-tracking tools)
Consistently interact with employees to spotlight concerns and underscore their duties regarding secrecy (including at hiring and exit interviews)
Maintain a high degree of legal readiness to respond to concerns and outright company emergencies

That latter point merits these few additional words. The due care employed by an employer rightly seeking to protect trade secrets and other confidential data can be rendered quickly pointless without a truly comprehensive plan to respond to unlawful misappropriation.

The prescription for a higher probability of success dealing with trade secret violations at every stage is proactivity.

Has your business fully considered that?