Archive for the ‘Employee Agreements’ Category

What’s Happening Now – Technology, Small Business, Contracts – June 2013

June 9, 2013

Technology News

Health Care, Privacy and Mobile Apps. New smartphone apps make it easier to collect more and more personal information from consumers, including health care related data. The National Telecommunications and Information Agency (“NTIA”), which is part of the Department of Commerce, has started a process to develop a “code of conduct” related to mobile application transparency to protect personal data privacy. According to a recent Mobile Privacy Report, the FTC recommends that app developers have a privacy policy which is easily accessible through app stores. In addition, a bill was introduced by The Honorable Hank Johnson of Georgia on May 9, 2013, entitled the “Application Privacy, Protection & Security Act of 2013” or “APPS Act of 2013” which is intended “[t]o Provide for greater transparency in and user control over the treatment of data collected by mobile applications and to enhance the security of such data” and is now being considered in Congress. The bill’s discussion draft recommends that if an app collects personal data, the user must agree to the product’s terms and conditions. Specifically, “[b]efore a mobile application collects personal data about a user of the application, the developer of the application shall – (A) provide the user with notice of the terms and conditions governing the collection, use, storage, and sharing of the personal data; and (B) obtain the consent of the user to such terms and conditions.” Rep. Johnson has demonstrated a keen interest in privacy. Please see his press release regarding the National Security Agency’s telephone surveillance program.

Gayton Law can help you develop a privacy policy, whether you are an app developer or otherwise collect personal information from customers through your website.

Small Business News

Employee Benefits and the Affordable Care Act. Employers have until October 1, 2013 to notify employees about health care coverage options available through the “Health Insurance Marketplace” established under the Patient Protection and Affordable Care Act commonly called the “Affordable Care Act.” The new Fair Labor Standards Act (“FLSA”) Section 18B requires such notice. The requirements are detailed, but in general, the notice to employees must at minimum inform the employee of 1) the existence of the Marketplace; 2) whether the employer plan’s share of the total allowed benefit costs provided under the plan is less than 60% of such costs which may make the employee eligible for a premium tax credit if the employee purchases a qualified health plan through the Marketplace; and 3) the possibility that the employee may lose the employer contribution to any health benefits plan offered by the employer if the employee purchases a qualified health plan through the Marketplace.

Please note that the law requires that the notice “must be provided in writing in a manner calculated to be understood by the average employee.” Gayton Law can help you draft an appropriate notice in compliance with the law.

Contracting News

Employment Applications. The Americans with Disabilities Act says that employers are not permitted to ask an applicant medical questions until the employer has offered a conditional offer of employment. In a recent case, decided on March 29, 2013, a 3rd Circuit Court said that because an employee made false statements on an employment application regarding drug use, an employer had legitimate and non-discriminatory grounds to fire the employee. Reilly v. Lehigh Valley Hospital, No. 12-2078, (3rd Cir. March 29, 2013). In this case, the former employee, Robert Reilly, brought a lawsuit against his former employer, Lehigh Valley Hospital (“LVH”) asserting that it violated the ADA by disclosing his medical records to the human resources (“HR”) department. Reilly was employed by LVH as a part-time Security Officer. When he was offered the job, he completed and signed an employee health information form as part of the hiring process. The form included two alcoholism and drug addiction questions. In addition to answering “no” to these questions, there was a note on the form indicating that Reilly denied drug/alcohol addiction. The form also said that falsifying information “could result in withdrawal of the employment offer or if subsequently discovered termination of [his] employment.” When Reilly was admitted to the hospital to receive treatment for a work-related injury, he disclosed to the treating doctor that he had a history of drug use and that he was a recovering drug addict. This information was included in a clinical report which was submitted to LVH’s HR department. He was fired for falsifying his employment form. Reilly brought a lawsuit against LVH for violating the ADA and a corresponding Pennsylvania law. The District Court granted summary judgment in favor of LVH regarding Reilly’s claims that LVH’s firing was discriminatory. The District Court determined that LVH’s decision to terminate Reilly was founded on a non-discriminatory reason – falsifying information on the employment form – and, and therefore, permissible. Reilly appealed the District Court’s decision to the United States Court of Appeals for the Third Circuit claiming that the District Court erred in its decision. The Third Circuit determined that the District Court did not err and affirmed its decision.

This case was decided in the Third Circuit and would not be applicable in any other jurisdiction. However, this case is instructive for purposes of advising employers that they should ensure that their employment-related forms are not discriminatory or in violation of the ADA. Please contact Gayton Law with any questions about employment application forms and employee-related documents.

Recent Publications

The “Guide to Creating and Protecting Fictional Characters” by Cynthia Gayton was released in May 2013 and is now available on Kindle. Here is an excerpt:

“This is an exciting time to be a creative in any enterprise. You can develop stories, illustrate and publish your work with great speed and minimal expense. Doing things on your own is both liberating and inhibiting. Yes, you can do it all – from start to finish, the product, distribution, display, advertising and promotion are all controlled by you. On the other hand, it could be a problem that all these things are controlled by you. Do you have the skills necessary to bring your product to market, including the knowledge to protect your creations?”

In March 2012, Kendall-Hunt publishers released the 9th edition of Legal Aspects of Engineering by Cynthia Gayton. This book is used in several engineering courses and is a useful reference for anyone interested in contracting, intellectual property, engineering practice, and other general legal issues.

Thank you for reading!

The information contained in this post is for general guidance on matters of general interest only. The application and impact of laws can vary widely based on specific facts. The information contained in this newsletter should not be construed as a substitute for consultation with professional advisors. Certain links in this post connect to other websites maintained by third parties over whom Gayton Law has no control. Gayton Law makes no representations as to the accuracy or any other aspect of information contained in other websites.

© 2013 Gayton Law

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Year End Tips for You and Your Business

November 20, 2012

Greetings!

It may seem to be a little early to think about 2013, but if you are anything like me, the weeks after Thanksgiving are full of hustle and bustle and finding time to organize paperwork and consider the coming year are not at the top of my preparation list. However, thinking about 2013 now will put you ahead of the curve, so here are five things to consider before you become overwhelmed with the holiday season.

1. Get your paperwork and documents in order early for taxes

At least twice a year, I conduct a seminar for creatives and small businesses on taxes. While I do not hold myself out as a tax expert, I can identify several tax issues that daunt creatives and other entrepreneurs. Paperwork is unavoidable, even in this digital age. Even more so as many, if not most, transactions are conducted online and physical receipts are becoming rare.

But an organized approach to your documents can save you money and time. Many creatives and other small businesses ask me about the likelihood of an audit. In my experience, it is hard to make an accurate prediction, but I can say with certainty that having the right documents to support your tax filing can save you a lot of grief even if you are audited.

Gayton law can help you decide which business entity is right for you. Please ask about our Business Entity Selection table.

2. Look for money on the table

You are busy. You have ordered supplies, hired contractors, made sales, etc., but have you gone back to check whether you have received all the services for which you paid? How about royalties? If you were offered a discount on a purchase, did you receive that discount? On the flip side, have you fulfilled all your obligations to a customer? In either circumstance, money may be left on the table waiting for you to pick up. If you were promised a discount or service, go back and review your agreements to see if you received these things. If you provide services or offer discounts, this is an opportunity to build better customer relationships by contacting them to see if your service met expectations and perhaps get more business.

If you are concerned about whether you have received the services requested at the price you paid, contact Gayton Law to conduct a contract audit for your business. If you have contracts that need to be revised to better reflect your business services, Gayton Law can help you update your contracts and make suggestions to improve your contractual relationships.

3. Update your media policies

Even a one person operation should have in place an information and document retention plan, especially when so much of this information is in virtual as well as physical form. Maintaining and keeping old and outdated documents not only clutters your hard drives, cloud drives and desk drawers, but unmanaged documentation may create legal vulnerabilities for your business. Creating policies about document retention which apply to both physical and virtual documentation, as well as email and social media communication is a crucial business practice.

Gayton Law can prepare document retention policies for your business.

4. Employees and Independent Contractor Agreements

Now may be the time to review your employee and independent contractor agreements, especially if existing contracts (even oral ones!) are several years old. Good agreements protect the business as well as your employees and independent contractors.

Gayton Law can review your current agreements and provide advice about whether an update will be advantageous to you and better protect your interests.

5. Annual Business Meetings and Corporate Governance

Even small businesses should take a moment to assess the previous year. Whether you are an LLC, corporation, partnership or a sole proprietor, there is value in setting aside a day or even a few days to look over your accomplishments and start outlining future goals. For those of you with LLCs, corporations and partnerships, your business documents typically require annual meetings. Although everything may be well, getting into the habit of holding annual meetings is a useful way to maintain good businessrecords, which will assist you in the future.

Gayton Law can prepare the documents you need for a small business enterprise, including bylaws and operating agreements as well as assist with corporate governance processes.

Knowledge Asset and Governance Management

For those of you investigating whether knowledge asset and governance management practices are in your future, any knowledge management (KM) plan should incorporate all of the above considerations. Please contact Gayton Law for information about how to include these practices into your KM plan.

Recent Publications

In March 2012, Kendall-Hunt publishers released the 9th edition of Legal Aspects of Engineering by Cynthia Gayton. This book is used in several engineering courses and is a useful reference for anyone interested in contracting, intellectual property, engineering practice, and other general legal issues.

Thank you for reading. Have a great holiday season!

The information contained in this website is for general guidance on matters of interest only. The application and impact of laws can vary widely based on specific facts. The information contained in this newsletter should not be construed as a substitute for consultation with professional advisors. Certain links in this newsletter connect to other websites maintained by third parties over whom Gayton Law has no control. Gayton Law makes no representations as to the accuracy or any other aspect of information contained in other websites.