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Legal Update - March 2017 Newsletter

Yogi Patel - Wednesday, March 01, 2017

Dear valued clients and supporters: This month's newsletter will focus on: (1) changes to New York State wage and overtime laws; (2) an update in Trademark Law; and (3) intellectual property insurance.

New York State Wage and Overtime Update

While the implementation of the changes to the FLSA were stayed by a federal court late last year, Employer's in New York should be advised that the minimum wage and overtime exemption thresholds have increased under New York State law. Across New York, all employees are entitled to be paid at least $9.70 per hour and must be paid overtime if they earn less than $727.50 per week. However, in certain cities and counties, these figures are higher. In New York City, employers with 11 or more employees must pay their workers at least $11.00 per hour and grant overtime to anyone making less than $825 per week. For smaller NYC employers, these figures amount to $10.50 hourly and $787.50 weekly; in Long Island and Westchester they are $10.00 and $750.00, respectively. Employers and employees alike should be further aware that all of these thresholds are scheduled to increase again at the end of 2017.

Trademark Law Update

The United States Patent & Trademark Office (USPTO) will begin randomly auditing approximately ten percent of all "declarations of use" filed in connection with trademarks that are registered in one or more class as of March 21, 2017. A declaration of use is a document filed by the owner of a trademark stating that the that the mark is still being used in commerce as registered. The declaration of use is required to be filed between the 5th and 6th year after a mark is registered. While owners are generally only required to submit one specimen for each class under which their marks are registered, owners whose declarations are subjected to an audit by the USPTO will be required to provide additional evidence. Owners who supply insufficient evidence will find their marks subject to cancellation. As such, all trademark owners are encouraged to maintain records, including photographs, demonstrating a consistent use of their marks for all their registered purposes in order to best secure their rights in the event of an audit.

IP Insurance

Although intellectual property (trademarks, patents, and copyrights) may represent a significant source of value for a company, business owners often fail to property protect themselves in the event they are faced with an infringement lawsuit. Defensive measures, such as obtaining insurance to cover the cost of any such lawsuit, should be seen as a necessary precaution for any business that places significant value on its intellectual property. Generally, policies that are typically carried by businesses (Comprehensive General Liability or Commercial General Liability Insurance) may offer coverage for claims related to infringement, however, businesses are advised to understand whether their existing policies do in fact offer coverage related to IP infringement and are advised to seek explicit endorsements in the absence of clear language.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


 

September 2015 NEWSLETTER

Yogi Patel - Wednesday, September 09, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) the NLRB's restatement of the joint-employer standard, expanding the right to unionize; (2) the New York City ban on employers using or requesting credit information of employees and job applicants; and (3) Businesses' need to keep trade secrets safe, methods for protecting them, and actions to take when they are misappropriated.

NLRB Expands Right to Unionize 
Under the National Labor Relations Act, employees have the right to collectively bargain (unionize) only against their employer. The joint-employer doctrine recognizes that in circumstances where two separate entities each have the right to exercise a certain degree of control over a set of employees' working conditions, that both entities should be considered employers. In a recent decision, Browning-Ferris Indus., the NLRB "restated" its standard for evaluating the existence of a joint-employer relationship in a way that expanded its scope. The decision particularly impacts the franchise industry.  (FULL ARTICLE)
 

NYC Ban on Employer use of Credit Information 
As of September 3, 2015, NYC employers will be prohibited from using or requesting the consumer credit history of an applicant or employee pursuant to Local Law 37. Under the new law, it will be considered an unlawful discriminatory practice to ask applicants or employees about their credit information, such as their credit score, missed payments, and collections. Any use of such credit information with regard to hiring, compensation, or the terms, conditions, or privileges of employment will also be considered an unlawful discriminatory practice. Employees and applicants who suffer credit discrimination will be protected by New York City Human Rights Law, which allows them to file a claim against the employer and seek compensatory and punitive damages, as well as discretionary costs and attorney's fees. Employers should be aware of this development and work with their counsel to ensure their employment practices are not in violation of this new law.  (FULL ARTICLE)

Trade Secrets 
Trade Secrets are the key to many business's success, especially in the absence of a patent or other forms of intellectual property protections in place. Proprietary information that entities exclusively know and use is what allows them to compete in their industries. When trade secrets become publicly known or known to a competitor, an entire business may be at stake. That is why any business that operates in reliance upon trade secrets must take specific precautions to limit the number of people who access such information and to place restrictions on those with whom it is shared. Requiring employees to agree not to disclose trade secrets and to follow certain protocols when accessing or using trade secrets is vital to a business's security. When a business shares its secrets with potential investors or partners, the interaction should be subject to a non-disclosure agreement. Security measures are the front line defense against the leaking of trade secrets, and imposing affirmative obligations not to disclose or use trade secrets gives businesses specific remedies against those who misappropriate their proprietary information. (FULL ARTICLE) 

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on this and other issues throughout the month.


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