Make Employee Performance Appraisals Valuable to the Employee and Employer

Performance appraisals can blow morale and productivity. Employees get fearful.  Managers are fearful to deliver bad reports.  To reduce these negative effects and make appraisals more valuable to both employee and employer, appraisal contents should never be a surprise.

A performance appraisal may simply record manager and peer feedback that employees are receiving on a regular basis, rather than just a list of accomplishments and “measures to improve”.   Consider a review that collects feedback from peers, supervisors, subordinates, and even customers for multiple perspectives on an employee’s overall performance. 

 

All employees will be joined in the evaluation process.  An employee evaluated in this environment is more likely to both accept and act on employer appraisals.

 

Preparing to Hire an Invention Promoter

Many companies are out there looking to take advantage of your eagerness to bring your invention market.  If you are planning to use an invention promoter, you need to understand how to tell the difference between a legitimate invention promoter from a swindle. 

Legally, the firm must disclose specific information to you regarding their past business practices in a mandatory disclosure form before an invention promotion contract may be established between you and the firm.  To quote the law, “an invention promoter shall have a duty to disclose the following information to a customer in writing, prior to entering into a contract for invention promotion services: 

(1)  the total number of inventions evaluated by the invention promoter for commercial potential in the past 5 years, as well as the number of those inventions that received positive evaluations, and the number of those inventions that received negative  evaluations;

(2)  the total number of customers who have contracted with the invention promoter in the past 5 years, not including customers who have purchased trade show services, research, advertising, or other nonmarketing services from the invention promoter, or who have defaulted in their payment to the invention promoter;

(3)  the total number of customers known by the invention promoter to have received a net financial profit as a direct result of the invention promotion services provided by such invention promoter;

(4)  the total number of customers known by the invention promoter to have received license agreements for their inventions as a direct result of the invention promotion services provided by such invention promoter; and

(5)  the names and addresses of all previous invention promotion companies with which the invention promoter or its officers have collectively or individually been affiliated in the previous 10 years."  

Research the reputation of invention promoters before making any commitments.  If it sounds too good to be true, it probably is.  Be wary of any firm that promises too much and/or costs too much.  Ask for references from their current clients and research the firm’s reputation.

Adapted from “Eye on IP” - Sheldon Mak & Anderson, Vol. No. 2013, October 25, 2013, www.usip.com/Publications/EyeonIP/131025.html

 

California Supreme Court Clarifies “Commissioned Inside Salespersons Exemption"

The California Supreme Court just ruled that an employer satisfies the minimum earnings requirement for the "commissioned inside salespersons exemption" only if the employer actually pays the required minimum earnings of 1.5 times the minimum wage during each pay period.  An employer may not allocate wages paid in one pay period to a prior pay period to cure a shortfall.

Important Job Application Procedures To Reduce Risk

Job applications and your interview notes should only hold job performance related information and should document only the valid relevant job performance reasons for selecting or rejecting applicants.

Require signed applications from all candidates to avoid future claims for primarily discrimination and other potential grounds, such as privacy and defamation.

Include the following in your job applications and have job applicants initial each:

• State that either employee or employer may terminate employment at any time and for any reason, other than an illegal reason.

• State that applicant’s signature is an authorization to check references.

• State that applicant’s signature means that a drug test, if your policy requires same, will be required to be taken as a condition to hiring.

• State that applicant’s signature means that an arbitration agreement, if your policy requires same, will be required to be signed as a condition to hiring.

• State that applicant’s signature means that all of his or her information is true, and that any omission or false information will be grounds for rejection of the application or grounds for later termination if applicant is hired.

 

Internet Copyright Infringement Is Now More Clear

In American Broadcasting Cos., Inc. v. Aereo, Inc., the US Supreme Court ruled that Aereo's transmission of over-the-air broadcasts to its network of paid subscribers constituted a public performance of copyrighted works owned by ABC within the meaning of the Copyright Act’s “Transmit Clause” (17 U.S.C. § 101), thereby infringing ABC’s exclusive right to perform its copyrighted works publicly. 

This ruling infers that the transmission of any other copyrighted materials (articles, images, songs…) over the Internet to paid subscribers would constitute infringement of the copyright owner's rights.

Be Careful Firing Employees For Screaming At You

MY CAVEAT: In view of the United States Supreme Court’s ruling of June 26, 2014 (National Labor Relations Board v. Noel Canning et al., the following may be suspect as precedent for future decisions.

 

Note to small-business owners: Be very careful firing employees for screaming at you.

The invaluable Overlawyered blog alerts us to two recent decisions by the National Labor Relations Board. The first involved a staff meeting at a car dealership in Yuma, Ariz., where a worker lost his cool and called his supervisors -- well, let's just say several variations of the f-bomb. He stood up, shoved his chair aside and told them they'd regret it if they fired him.

He was duly fired... but the NLRB found his termination "an unlawful violation of the employee's rights to engage in the protected concerted activity."

Meanwhile, a man trying to unionize four Starbucks in Manhattan told a manager to go, umm, have self-induced carnal knowledge. In front of customers, he said this. For which he was duly fired.

 

The Seattle Post-Intelligencer reports the NLRB ordered Starbucks to offer him his old job "or a substantially equivalent position, compensate him for any loss of earnings and other benefits and remove from its files any references to the unlawful firing."

We can only imagine how awkward that first day back might be...

Dave Gonigam, The 5 Min. Forecast, Agora Financial, June 25, 2014

 

One Less (NLRB) Poster!

The National Labor Relations Board (NLRB) has abandoned its rule which required private sector employers to post an “Employee Rights under the National Labor Relations Act” notice, which turned out to be an 11"x17" poster informing employees of their general rights under the National Labor Relations Act.  This results from the NLRB's decision not to seek US Supreme Court review of two US Court of Appeals decisions which invalidated this NLRB notice posting rule putting an end to the poster requirement.

Veterans Benefits and Eligibility Requirments

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Veterans benefits are perhaps the most misunderstood and underutilized resources available to millions of veterans and their families.  While it is commonly known that certain benefits are available for the brave men and women who served in our armed forces, many veterans (and their families) are unaware that they could be eligible for a wide range of benefits through the United States Department of Veterans Affairs even if they did not directly retire from the military or suffer injuries in the line of duty. Veterans Benefits offered to eligible beneficiaries include: Non-Service Connected Pension: Non-Service Connected Veterans Pension is a benefit paid to wartime veterans who have limited or no income, and who are age 65 or older, or, if under 65, who are permanently and totally disabled.  Certain veterans may qualify for an additional monthly benefit such as the Aid and Attendance or Housebound allowance.  These are benefits that are paid in addition to the basic pension rate. Death Pension: The VA Death Pension is a benefit paid to eligible dependents of deceased wartime veterans. Disability Compensation:  Certain military veterans with a service-related disability may qualify for regular monthly benefits. These benefits are generally tax-free and are paid to veterans who have injuries or diseases that occurred while on active duty, or were aggravated and made worse by active military service. It is also paid to certain veterans disabled as a result of care provided by VA medical facilities. Dependency and Indemnity Compensation: This is a monthly benefit paid to eligible survivors of certain deceased veterans. Parents DIC:  Parents' Dependency and Indemnity Compensation is an income-based monthly benefit for the qualifying parents of a military service member or veteran who has died. Special Monthly Compensation:  Special Monthly Compensation (SMC) is a monetary compensation (in addition to the regular VA Disability Compensation) to a veteran who, as a result of military service, incurred the loss of or the loss of use of specific organs or extremities. Loss, or loss of use, is described as either an amputation or having no effective remaining function of an extremity or organ. Burial and Memorial:  In exchange for the service that Veterans have selflessly given to the United States, the Department of Veterans Affairs and the Department of Defense provide several memorial and burial services for eligible active-duty, Reserve, Guard, retired and veteran members.  All Veterans and military family members should be aware of the memorial benefits offered by the Department of Veterans Affairs before they are actually needed. Employment andTraining: The Department of Veterans Affairs (VA), Department of Labor (DoL) and the Department of Education (DoE) all administer a number of employment, education, and training programs for veterans.  These programs include, but are not limited to The Montgomery G.I. Bill - Active Duty, The Montgomery G.I. Bill – Selected Reserve, Veterans’ Educational Assistance Program (VEAP), Veterans Upward Bound and Veterans’ Employment and Training. Survivor Benefits:  Surviving family members of veterans are entitled to certain benefits that can help ease their financial difficulties.  When a loved one dies, it can be emotionally difficult to look into available benefits, but this process should be done as soon as possible to prevent eligibility problems. Veterans Health Care:  The Veterans' Health Care Eligibility Reform Act was passed by Congress in October of 1996, paving the way for the Medical Benefits Package plan to be made available to all enrolled veterans. The Medical Benefits Package emphasizes preventive and primary care and offers a full range of inpatient and outpatient services.  In addition, combat veterans returning from active military service may be eligible to receive free health care services and nursing home care for up to two years, beginning on the date of separation from active military service. This benefit covers all illnesses and injuries except those clearly unrelated to military service.  Dental services are not included in this health care package. Veterans Life Insurance:  Service members' Group Life Insurance (SGLI) is a program which provides low cost group life insurance for service members on active duty, ready reservists, members of the National Guard, members of the Commissioned Corps of the National Oceanic and Atmospheric Administration and the Public Health Service, cadets and midshipmen of the four service academies and members of the Reserve Officer Training Corps. Unfortunately, many of the eligible beneficiaries are initially denied these benefits when a claim is filed.  Applicants should be aware that the decisions for these claims can be appealed by veterans and their eligible family members.  Once a claim has been filed and consequently denied, the veteran or other potentially eligible beneficiary has sixty days to file for an appeal with their regional office. Legislation was passed and came into effect on June 20, 2007 which provides veterans the option of retaining an attorney after the first denial by the Department of Veterans Affairs at the “Notice of Disagreement” (NOD) stage. The Department of Veterans Affairs benefits claims and appeals process can be complicated.  If a veteran or a veteran’s family members have received a denial of benefits to which they believe they are entitled, it is in their best interest to contact an attorney who is familiar with veterans benefits to assist them with the application and appeals process. Orange County attorney Bradley S. Erdosi is an Accredited Veterans Attorney and has counseled many veterans and their families in obtaining benefits, including the Aid and Attendance benefit. Courtesy of Bradley Erdosi ~ Please feel free to contact him...not me!

Working at Home during Family and Medical Leave (FMLA)

More employees who are physically unable to come to work are performing work for their employer from home.  Please note that performing work for the employer from home does not count against the 12-week leave allotment under FMLA.  It is therefore important both for the employee and the employer to document when and if the employee on FMLA leave is performing work tasks from home, as the hours spent performing those tasks should be deducted from any calculation of FMLA leave used.  Perhaps, if technology allows, the employee would have to work through the employer's network, which could track these hours, or at least the employee would contemporaneously record the time, subject matter, client, etc. of the work on the network.

Reminder of New Commission Law in California

Any employee hired to perform commission work in California, whether hired by a California company or not, must receive a written contract that includes the method for calculating and paying commissions.  Previously, this applied only to employers outside of California. 

Whether you are a California employer of California residents or not, there is the potential for wage and hour and independent contractor claims, and you might consult an attorney to get your standard commission contracts in proper order.

Employers May Not Sleuth Employees Personal Social Media in California

Under new California law, employers may no longer require or request employees or applicants to: (1) disclose a username or password to access their personal social media; (2) access their personal social media in an employer’s presence; or (3) divulge any personal social media. 

Employers now may not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with an employer’s request or demand that violates the above law.

New Regulations under Children's Online Privacy Protection Act

The Children's Online Privacy Protection Act (COPPA) became effective April 21, 2000 and applies to the online collection of personal information from children under 13. The law demands that sites aimed at children require parental approval in order for minors under the age of 13 to use them.

Sites can choose to ban minors altogether in order to avoid having to comply with the law, as does Facebook. The COPPA rules spell out what a commercial website operator must include in a privacy policy, when and how to seek verifiable consent from a parent and what responsibilities an operator has to protect children's privacy and safety online.

Mobile data, now included under the COPPA rule, was not commonly used or collected when COPPA was instituted. Starting July 1, 2013, the list of “personal information” that cannot be captured without parental consent will include geo-location information, photographs, audio files, and videos that contain a child’s image or voice, along with IP addresses and mobile device IDs.

Potential Liaility of Linking to other Websites

Linking, in and of itself, is not a copyright infringement since there is no actual copying involved.

However, linking can create potential liability, if the linking site creates a false impression about its relationship to the site linked, or if the link misrepresents the nature of the linked site or casts it in an unfavorable way.

Also, linking to the content from another site within a frame that contains banner ads as well as site specific content belonging to the linking site could lead to liability for selling advertising on the linking site when viewers were actually viewing the content of the linked site instead.

The New Trademark Clearinghouse

With the huge increase in number of generic Top-Level Domain Names, trademark owners should consider recording their registered trademarks with the new Trademark Clearinghouse to be launched by The Internet Corporation for Assigned Names and Numbers (ICANN). Beginning March 26, 2013, trademark owners may submit trademark information to the Trademark Clearinghouse to protect their online brands. Otherwise, brand owners may have to force transfer of domain names that incorporate the owners' trademarks.


As additional services, the Trademark Clearinghouse will notify trademark owners when someone else seeks to secure a domain name that matches their registered trademark, plus trademark owners may also secure second level domain names that correspond with their registered trademarks before the general public can do so.

Whistle Blower Protections "Expanded"

California employees who "blow the whistle" are protected from retaliation by Labor Code § 1102.5(b) which provides that "an employer may not retaliate against an employee for disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation or noncompliance with a state or federal rule or regulation.”  The California Court of Appeal just held that this section “protects employee reports of unlawful activity by third parties such as contractors and employees, as well [as] unlawful activity by an employer.”

We Lost a Great Soul...In Memoriam...Huell Howser

“We operate on the premise that TV isn’t brain surgery. People’s stories are what it’s all about,” says Howser. “If you have a good story, it doesn’t have to be overproduced. I want our stories to reveal the wonders of the human spirit and the richness of life in California, including its history, people, culture and natural wonders.”

Huell Howser
"That's amazing!"

It is time to post your new employment posters

It is time to post your new employment posters for the new laws for 2013.  Here is the best, easiest, cheapest, and California focused way to do so:

http://www.calchamber.com/Store/Products/Pages/compliance-posters.aspx?PC=K2NE&cid=K2NE&sp_rid=MTU2NjQ0OTcxMzUS1&sp_mid=40772997&spMailingID=40772997&spUserID=MTU2NjQ0OTcxMzUS1&spJobID=172792031&spReportId=MTcyNzkyMDMxS0

New Employment Laws in California

New employment laws could affect California businesses' day-to-day operations and company policies in 2013.  Download CalChamber's white paper "An Overview of New 2013 Laws Affecting California Employers" from the link below for an overview of the changes in the law and how each of these California laws could affect your business. 
http://www.calchamber.com/hr-california/Pages/new-laws-2013.aspx?

Infinite Copyrights....

Here is an allegory that very simply and graphically describes the essence of copyrights and a defense to copyright infringement: "...An infinite number of monkeys typing out an infinite number of the same work will have an infinite number of copyrights for essentially the same work (provided the monkeys weren’t looking over each other’s shoulders)." Rick Sanders, August 1, 2012

International Copyright Enforcement

The good news: Due to treaties, you can be fairly assured of protection for your copyrighted materials in foreign jurisdictions. The bad news: Enforcement by suit in foreign jurisdictions in foreign languages and under foreign laws is not exactly attractive. Fortunately, there are the following US enforcement tools:

First, you should place the copyright notice on all published materials, although not strictly necessary for protection of your copyright. Then, you should register the copyright with the USPTO to place the world on notice of your right to stop infringers who would otherwise act in good faith.

Second, expressly cover in any licensing agreements with foreigners your limits on copying and distribution of your copyrighted materials, especially including provisions that bind them to your US law and US courts.

Even without the above, you may file suit under US law in a US court, if your copyrighted materials are being imported into the US without permission. This also applies to copies of your copyrighted materials made outside the US and imported into the US. And, exporting your copyrighted materials from the US and selling same without your permission is unlawful under US law and you may sue in the US under US law.

Important Proviso: The above material does not constitute legal advice and should not be relied on. It does not create an attorney-client relationship. Each locality has differing laws. A legal matter cannot be satisfactorily resolved without a comprehensive review and analysis of all the unique facts and laws at issue by an able attorney. Your matter may result in a loss of rights if you do not timely retain such an attorney.

Contact: If you would like to discuss this matter further in a more private forum, please feel free to contact me directly at the email address provided through my firm’s website located at http://www.BealBusinessLaw.com.