State Reveals Its Template for Notice to All Newly Hired Employees
Balancing Worker Privacy with an Employer’s Rights to Protect Safety
Effective January 1, 2015 in California, private arbitration companies, including the American Arbitration Association (AAA) and Judicial Arbitration and Mediation Services (JAMS), must publicly post certain previously-confidential information about their arbitrations. (Assembly Bill [AB] 802).
AB 802 amends California Code of Civil Procedure section 1281.96 to require AAA, JAMS and their competitors to publish detailed profiles on all consumer arbitrations, including employment-related matters. The legislation effectively eradicates confidentiality, previously one of the key advantages of arbitration over court proceedings.
The publicly available information must include:
1) Whether the arbitration was demanded pursuant to a written agreement and, if so, whether the agreement designated that particular company to administer the arbitration;
2) The employer’s business name and whether it was the initiating or responding party;
3) The nature of the dispute (e.g. employment) and the amount of the employee’s annual wages;
4) Whether the employer or employee was the prevailing party;
5) The total number of occasions the employer has been involved in mediations or arbitrations administered by that company;
6) Whether the employee was represented by an attorney and, if so, the attorney’s name;
7) The dates of the demand for arbitration, of the arbitrator’s appointment, and of the arbitrator’s disposition (decision);
8) The type of disposition (i.e., withdrawal, abandonment, settlement, monetary award, or dismissal without hearing);
9) The amounts of the claim, any monetary award, any attorney’s fees awarded, and details on any other relief granted; and
10) The arbitrator’s name and his or her fee amount.
These case-by-case disclosures must be made at least quarterly on the arbitrator’s website in a searchable format from a conspicuously displayed “consumer case information” link.
For more information about this recent development and how it might affect your workplace policies and practices, please contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-one else already has rights that would trump your own, you may be in for a very expensive mistake.
Witness the nearly 30 years of legal actions (1978 – 2007) between Apple Records (aka the Beatles’ label) and Apple Computer, in part over the supposed confusion between the music company’s whole green Granny Smith apple logo and the computer company’s iTunes cartoon apple with a bite taken. Apple Records prevailed in some of the cases and there were some settlements. Apple Computer then prevailed in the last court battle over whether its establishment of iTunes violated the earlier settlement, citing another case decision to argue that “even a moron in a hurry could not be mistaken about” the distinction between the two marks. The parties then settled, with Beatles music available on iTunes. Of course, if you don’t have the kind of money these two entities could devote to the fight, you should avoid such disputes in the first place.
Some of the steps involved in picking a good trademark are:
1. Find out if anyone else is using the mark you want to use or something similar. The research can and should be done on various levels, for example, search of the USPTO (United States Patent and Trademark Office) website; with state trademark registrars; online search for others using the mark; other searches of business forums and publications.
2. Determine if any such similar or identical marks are being used to identify products or services that are the same or related to what you are looking to identify with your potential mark.
3. In the event of such conflicts, continue the selection and research process until you have a potential mark that you believe will not be too close to someone else’s and the goods or service it is used to identify.
Some potential conflicts are obvious. An individual seeking to use “Nike,” “Nikey,” or even “NighKeigh” to identify a shoe company is clearly a bad idea. In addition to marks that are identical or similar in appearance or spelling, sounding the same can be enough to rule it out.
Another less-evident factor can cause problems. Some people do not register their established marks with the U.S. or other national government or with any state. Thus, even a fairly thorough search will not find them. Yet, even without government registration, a use in commerce (between states or with a foreign country) or even on a local level, may give its owner the right to block you from using the same or a similar mark for the same or similar products or services. Thus well-planned research beyond the standard government data bases should be part of the due diligence.
Maximizing your protections should include hiring a trademark specialist attorney who can get a search done for you. While you can of course order a search yourself, you would not then receive the attorney’s analysis on potentials for conflict and invitations for trouble. “Penny wise and pound/dollar foolish” comes to mind. Skipping the relatively small investment of a close search may buy a new business the much greater expense of dealing with a “cease and desist” letter from a rival. Such a letter typically presents an assortment of bad alternatives: (a) stop using the mark to avoid a losing legal battle and incur the expense of having to switch to a new, non-conflicting mark; (b) fight the challenger in court, with virtually guaranteed high legal fees and similarly guaranteed uncertainty of outcome; or (c) ignore the letter and hope they will go away.
Prevention of infringement claims is thus key. Clearing and properly protecting a mark are part of a business’s start-up costs or launch of a new product or service. Include those costs in your budget and you will save in the long run. Contact attorney Helena Kobrin if you need help selecting a legally protectable trademark.
Trademark can be confused with copyright. As we have explained in recent blogs, a copyright protects works that one creates. A trademark is a word, group of words, symbol or logo a person or company uses to distinguish their products from those of others. A word, symbol, etc. used to distinguish someone’s services from others is a service mark.
Trademarks and service marks are also commonly referred to as “brands.” “Coca-Cola” thus stands to distinguish one company’s cola beverage from those produced by others, including of course “Pepsi-Cola.” Cola connoisseur and average citizen alike can rightfully expect Coke’s and Pepsi’s distinctive trademarks to guide him or her to the preferred beverage. One associates a particular taste with one company and another taste with its competitor because both enterprises have spent millions over the years protecting respective brands to identify their respective products exclusively. The right to control such a brand gives its owner the power to bar anyone else from using that trademark to identify its own rival product.
Trademarks, along with other intellectual property, can be the most valuable assets your business will own. We will address in coming weeks the extent of trademark rights, how one acquires a trademark, how one protects it, and related issues. Contact Helena Kobrin of our office on such matters.
Newspaper delivery boys, Hartford, Connecticut – 4 March 1909
Class action suits challenging company-wide workplace practices and thus posing crippling damage amounts have become big business in California and across the country. See, e.g., our blogs “The Devil is in the Details: Employment Class Action Suits Can Hinge on a Court’s Choice of Definitions” and “Brinker Case Settles for $56 Million.”
One or a few workers suing for improper treatment can magnify the stakes of their claims dramatically if they can establish that their numerous fellow laborers should be included in the court action. Employment-related cases can become such “class actions” on the trial judge’s determination (“certification””) that including the group of persons subject to the alleged wrongdoing is more efficient than for one or more judges to separately handle each worker’s claims.
A finding of such “greater judicial efficiency” in handling employee claims as a group depends on numerous and often quite complicated factors. Among these are whether there are “predominant” common questions of law or fact between the employees purportedly affected, whether the named, proposed representative worker holds claims typical of the rest, and whether that representative worker can adequately represent the interests of the others.
A worker’s suit asserting a hiring company has erroneously labeled him or her as an independent contractor (as opposed to an employee) is common. A class action suit over the alleged improper classification of a larger group of workers as independent contractors would seem less likely since the higher courts have ruled the contractor-or-employee determination is a case-by-case proposition, dependent on numerous intersecting factors. Yet, the California Supreme Court has recently issued guidelines for certifying a class in such lawsuits. Ayala v. Antelope Valley Newspapers, 59 California Reports, fourth series (Cal.4th) 522 (June 30, 2014).
Defendant Antelope Valley publishes a daily. By standard form contract, it has retained independent carriers to deliver the paper to subscribers. Four of those carriers sued Antelope Valley in December, 2008, alleging the publisher should have classified them as employees and that it thus owed them overtime pay, reimbursement for expenses, and other standard California and federal benefits.
The four plaintiffs requested class certification, contending that form contracts and other factors made it more efficient to determine contractor or employee status all at once for the newspaper carriers Antelope Valley hired. Antelope Valley opposed certification, contending there were wide variations on how individual carriers performed their work, making a common decision for all such workers impossible.
The trial judge agreed with Antelope Valley and denied certification, concluding that resolving the carriers’ employee or contractor status would involve “highly individualized inquiries” and that the case-by-case issues predominated. 59 Cal.4th at 529.
The Supreme Court had a different view. California’s “common law” test focuses principally on “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” Emphasis supplied. The key is “whether the hirer ’retains all necessary control’ over its operations,” not whether the hirer actually asserts that control. 59 Cal.4th at 531. The Supreme Court concluded that Antelope Valley’s use of form contracts for retaining its carriers could allow the trial judge to decide whether the publisher’s “right to control” – whether great or small – was sufficiently uniform to permit a class wide assessment.
The trial judge’s error, the Court found, was in asking the wrong questions: whether Antelope Valley’s actual assertion of the right to control was adequately uniform with its carriers and whether the carriers as a whole experienced an actual pervasive control on the manner and means of delivering papers. Although that judge found “considerable variation” in the degree the publisher actually asserted control and that there was no actual pervasive control, the Supreme Court declared both conclusions were irrelevant to the class certification issue. 59 Cal.4th at 534.
Common law determination of employee or independent contractor status does not depend solely on whether the hiring person or entity has a right to control. The Court pointed out (59 Cal.4th at 532) there are numerous secondary factors, including:
● whether the one performing the services is engaged in a distinct occupation or business;
● the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the hiring party (principal) or by a specialist without supervision;
● the skill required in the particular occupation;
● whether the principal or worker supplies the instrumentalities, tools, and the place of work for the person doing the work;
● the length of time for which the services are to be performed;
● the method of payment, whether by the time or by the job;
● whether or not the work is a part of the regular business of the principal; and
● whether or not the parties believe they are creating the relationship of employer-employee.
While a certification decision on employee or independent contractor status would involve evaluation of whether each of the many factors could be assessed on a class wide basis, the Supreme Court suggested the trial judge might short-cut the process since, in previously published decisions, “the hirer’s right of control, ‘together with the skill which is required in the occupation, is often of almost conclusive weight.’” 59 Cal.4th at 539.
It will ultimately remain in the trial judge’s discretion to determine certification in this case, on whether common or individual factors “predominate.” That decision may ultimately turn on the relative effectiveness of the lawyers arguing for their clients’ opposing positions. However, there would seem a significant prospect of certification here as Antelope Valley used form agreements for its carriers and as the level of skill to perform newspaper delivery is low.
For assistance on independent contractor and employee classification issues, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
Ripley Cutting Carousel Anniversary Cake – 1977
“Fair Use” is the most prevalent defense against copyright infringement and possibly the most misunderstood. It is a subject all in itself.
Simply stated, if a use is “fair use,” it allows you to use someone else’s creation in a particular way without liability for copyright infringement. However, there is no shortage of misconceptions on when fair use applies. Even a long-time copyright lawyer will not always be able to make a definite determination.
The Copyright Act (section 107 of title 17 United States Code) states that: “the fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” It prescribes four principal elements that courts analyze in determining whether a fair use defense is valid or not:
“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work [including such issues as whether it is published or unpublished and whether it is creative or factual];
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.”
While these criteria may sound pretty straightforward, application is far from simple except in a truly obvious case. Courts have engaged in much discussion of what these factors mean and how they are to be interpreted. For example, the distinction between commercial and non-profit use is not clear-cut. Commercial use is not always “unfair” and non-profit use not always “fair.” The federal Ninth Circuit Court of Appeals once decided that an educational (classroom) use by one teacher of multiple pages from a cake decorating booklet created by another teacher for her classroom was not fair use. See Marcus v. Rowley, 695 F.2d 1171 (9th Cir. 1983). The Fifth Circuit Court of Appeals found that copying of articles from scientific journals for scholarly use by Texaco’s scientists also was not fair use, in American Geophysical Union V. Texaco Inc., 60 F.3d 913 (2nd Cir. 1994). In contrast, when 2 Live Crew took Roy Orbison’s famous song, “Pretty Woman,” changing the words and recording it as rap music – an undisputed commercial use – it was fair use as a parody. See Campbell v. Acuff-Rose Music (92-1292), 510 U.S. 569 (1994).
Unfortunately, some people decide they are engaged in fair use when they do not really know what it is. For example, one composer mistakenly thought it was fair use if you did not use more than four measures of music by someone else. This is why, in most instances, creative people are best off when they stick with what they know best – creation – and leave it to the legal experts to determine if they are on safe ground when they want to make use of someone else’s creation in their own. A copyright attorney can advise whether: (a) you are taking a large or small risk that you will receive a cease and desist letter from the copyright holder; (b) a fair use defense will or will not be viable; (c) you should forget the idea altogether; or (d) you should apply to the content owner for a license. On the other hand, if you think someone has infringed your copyright by using a portion in his or her own material, a copyright lawyer can tell you if you have a case or need to step back and take a deep breath.
For assistance with fair use analysis or other issues of copyright law, contact our Of Counsel attorney, Helena Kobrin.