Loading...

Follow Free Enterprise - FindLaw Small Business Law Blog on Feedspot

Continue with Google
Continue with Facebook
or

Valid

"Because obesity qualifies as an impairment under the plain language of our statute," reasoned the Washington State Supreme Court last week, "it is illegal for employers in Washington to refuse to hire qualified potential employees because the employer perceives them to be obese." The decision means that it is now illegal for employers in the state to refuse to hire otherwise qualified job candidates because they are obese.

Do employers have any other additional obligations when it comes to hiring or accommodating obese employees? Here's a look.

Washington State

Washington's Law Against Discrimination (WLAD) prohibits employers from discriminating against an employee because the employee has a disability. The question in this case was whether obesity qualifies as a disability. State law also says that an employee has a disability if they have an "impairment" that "[i]s medically cognizable or diagnosable," "[e]xists as a record or history," or "[i]s perceived to exist whether or not it exists in fact."

"We answer that obesity always qualifies as an impairment under the plain language of [the statute] because it is recognized by the medical community as a "physiological disorder, or condition" that affects multiple body systems listed in the statute," the court ruled. "Therefore, if an employer refuses to hire someone because the employer perceives the applicant to have obesity, and the applicant is able to properly perform the job in question, the employer violates this section of the WLAD."

State of the Law

This ruling could have an impact beyond Washington's borders. It comes in a federal lawsuit and is currently being considered by the Ninth Circuit Court of Appeals, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, and Oregon as well. However, the court pointed out that Washington's Law Against Discrimination is broader than the federal Americans with Disabilities Act (ADA), and several courts have determined that obesity does not, alone, qualify as a disability under the ADA. For instance, the Department of Labor has only considered obesity as a disabling impairment in rare circumstances, like when an employee or applicant also suffers from a corresponding physiological disorder causing them to be obese.

Given the split between state and federal courts interpreting anti-discrimination statutes and the ADA, employers are better off not making hiring or firing decisions based on a person's size and/or weight. To find out how local courts have ruled on ADA claims based on obesity that might affect your small business, contact an experienced employment law attorney.

Related Resources:
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Your state just legalized it. You want in on the billion-dollar cannabiz boom. And you've got a particular strain of that sticky icky that you think will set your marijuana startup ablaze. (In a good way.) But how do you protect your intellectual property in a burgeoning yet quasi-legal industry?

After all, the federal government still lists marijuana as a Schedule I illegal narcotic, and it's that same federal government that issues patents, trademarks, and copyright protections. Is filing for a patent on your exclusive Purple Urkle-Zombie Killer-Schnazzleberry hybrid just asking for trouble with the DEA? Here's a look:

Have No Fear ...

While there's no general prohibition on patenting potentially illegal products, weed trademarks may be met with additional scrutiny. "Applications for trademarks used on regulated products (e.g. cannabis, drug paraphernalia, ivory, whalebone) and activities (e.g. gambling and wagering, retail stores featuring controlled substances) are subject to additional review," according to the U.S. Patent and Trademark Office. "The USPTO may inquire about your compliance with federal law before issuing a registration. If your goods, services, or trademark violate federal law, we will issue a refusal."

That doesn't sound like great news. But the PTO has been issuing an increasing amount of pot-related patents the past few years, new plant varieties may be patented under federal law, and the government just issued new guidance for trademarks for cannabis and cannabis-derived goods and for services involving cannabis and cannabis production in light of the 2018 Farm Bill which legalized hemp. This is all a long-winded way of giving you the most accurate answer to any legal question: "It depends."

Weed Patents Are Here?

If you're getting into the weed biz, you already know that overlapping -- and at times conflicting -- federal laws, state statutes, and local ordinances can create a legal quagmire. But that's what good lawyers are for. So rather than risk someone stealing your proprietary marijuana strain, or potentially infringing on a competitor's patent or trademark yourself, contact an experienced intellectual property attorney in your state.

Related Resources:
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

For many of us working stiffs, thinking about an afternoon or evening happy hour with friends, family, or coworkers helps us get through the work day. That first sip tastes like victory in the daily battle against the monotony of office life.

And for us lucky enough to live and work near a variety of watering holes, we can tailor our daily choices based on which bars and restaurants have the best specials.

But not so for Virginians! Well, you see, they could enjoy happy hour, they just could not know which drinking establishments had the best specials. Until this month, that is.

Now on Tap: Thirsty Thursdays and Sunday Fundays, Etc.

Facing a lawsuit from a local restaurateur, the Virginia General Assembly passed a law permitting a much-wider range of advertising for happy hours, including:

  • Special drink prices, drink types, and brands
  • Creative names for happy hour days
  • Happy hour durations
  • Promoting specials in all advertising

If you own a bar or restaurant in Virginia, you still cannot:

  • Hold happy hour between 9 p.m. and 2 a.m.
  • Offer two-for-one, three-for-one, bottomless, or related drink specials that involve giving away alcohol for free

According to the Pacific Legal Foundation, which represented chef Geoff Tracy in his lawsuit, he ran afoul of Virginia law by displaying menus outside of his restaurants that contained the special prices for ?Wine Down Wednesday? and ?Margarita Thursday.? Prior to July 1, Tracy could only use the terms ?happy hour? and ?drink specials? in any advertising.

A First Amendment Victory

At its core, the lawsuit was a free speech matter. Because Virginia law already allowed happy hour specials (unlike many other states), the government was essentially censoring truthful information from the public.

If you are a business owner, the ability to advertise your prices and specials allows you to remain competitive in the market. When the government prevents you from doing that, you have the ability to press your case.

Related Resources:
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

The Drug Enforcement Agency recently moved cannabidiol products with less than 0.1 percent THC from the Schedule 1 list of illegal drugs to the Schedule 5 list of legal medications. But that doesn't mean that all CBD is legal all the time. In particular, bars and restaurants seeking to serve CBD-infused products have faced increased scrutiny from the Food and Drug Administration.

Cities and states are stepping up as well. New York City's health department, for example, announced plans to start issuing violations -- and fines -- to restaurants selling CBD-laced food and drink products, beginning in October.

Unlawful Additions

"The U.S. Food and Drug Administration has advised that it is unlawful to add cannabidiol (CBD) to food or drink," a NYC health department spokesperson said to CNBC. "We are currently informing businesses in New York City that may sell food and drink about this regulation, and have implemented an educational period to help them achieve compliance." The FDA prohibits the addition of active ingredients that are drug products in foods and drinks, and CBD is the main ingredient in an FDA-approved drug Epidiolex, which treats severe childhood epilepsy.

Not only are NYC-based restaurants banned from serving CBD-infused products in the future, but as of July 1, the health department now requires businesses to return such products to the supplier or throw them away.

Laws, Rules, and Guidance

In cases like drug prohibition, federal law trumps, so states and cities ostensibly need to follow federal statutes. However, federal enforcement agencies have given states some leeway on marijuana legalization, and as Canna Law Blog notes, the FDA appears to be choosing the "guidance" route over binding rulemaking.

The FDA has taken a "not legal" position on hemp-CBD in consumables through its oft-cited FAQ and elsewhere. This FDA position is generally understood as "informal guidance" or a "statement of policy", or sometimes a "nonlegislative rule" or an "interpretive rule", which by any name does not have the force of law. FDA commonly issues informal guidance as its primary method of policy-making, which means that the agency does not undertake the Administrative Procedure Act (APA) process of "notice and comment" rulemaking in many cases. This has been FDA custom for a long time.

Navigating overlapping state and federal weed laws and local agency guidance can be a challenge, especially in an industry as highly regulated as the marijuana business. For help with your small cannabiz, talk to a local commercial attorney.

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

For start-ups, employee retention can be a big problem. In addition to having to recruit replacements that will believe in the company enough to accept stock options or future promises in lieu of a bigger salary, each employee that leaves the company could be leaving with important intellectual property and trade secret information that would be valuable to competitors.

Recently, Magic Leap, a company seeking to be a pioneer in the way people view AR computing, filed a lawsuit against competitor Nreal and the company's founder. The lawsuit alleges that a former employee stole Magic Leap?s ground-breaking intellectual property to start a competing Chinese company, allegedly utilizing Magic Leap?s tech.

Non-compete Clauses

Generally, if your company's intellectual property is properly protected, you can sue former employees who try to trade on that information, along with their new employers. Additionally, if your business utilized a non-compete in its employment agreements, then there might be another avenue to take legal action against a former employee who tries to leverage your business's information capital for their own purposes.

A business's non-compete clause should stay within the bounds of reasonableness to be considered enforceable. These bounds of reasonableness include prohibiting the use of company IP and trade-secrets, being for a reasonable amount of time, containing reasonable geographic restrictions and avoiding total bans on working within a trade or industry.

How to Avoid Suing Former Employees

While it may not sound like a popular opinion, avoiding lawsuits against former employees that violate non-compete agreements, or even steal IP, is usually preferable for your boardroom and business's bank account.. Consider alternatives, such as offering to settle the case with the former employee's new employer for a licensing deal or allowing them to continue to use your IP for a reasonable licensing fee. Alternatively, negotiating a deal pre-lawsuit to put an end to the use could also resolve the matter short of a litigation spending spree. Sometimes, there may be no option but to sue to stop the infringing conduct.

If you're concerned about employees jumping ship to your competitors, or have other concerns about your business's intellectual property and trade secrets, reach out to a local attorney to learn more about your rights as a business owner.

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

"There is only one thing in the world worse than being talked about," Oscar Wilde once wrote, "and that is not being talked about." Entrepreneurs and business owners often take this sentiment to heart, pushing PR buttons with edgy or controversial brand and product names. But can you push it too far?

The Patent and Trademark Office denied Erik Brunetti a trademark application for his streetwear brand FUCT, citing a federal provision that prohibits registration of trademarks that consist of or comprise immoral or scandalous matter. Brunetti challenged the decision on First Amendment grounds, and won. The Supreme Court just ruled that the "immoral or scandalous" bar to trademark applications is invalid. So Brunetti's brand is not FUCT after all.

Only Half of the Story

The biggest issue for the Court, and opinion author Justice Elena Kagan, was the First Amendment's prohibition on viewpoint discrimination. In other words, the government can't allow speech on one side of a debate while restricting it on the other. In this case, Kagan determined that the Lanham Act's ban on immoral and scandalous trademarks fell into this category:

It is viewpoint-based. The meanings of "immoral" and "scandalous" are not mysterious, but resort to some dictionaries still helps to lay bare the problem. When is expressive material "immoral"? According to a standard definition, when it is "inconsistent with rectitude, purity, or good morals"; "wicked"; or "vicious." Or again, when it is "opposed to or violating morality"; or "morally evil." So the Lanham Act permits registration of marks that champion society's sense of rectitude and morality, but not marks that denigrate those concepts. And when is such material "scandalous"? Says a typical definition, when it "giv[es] offense to the conscience or moral feelings"; "excite[s] reprobation"; or "call[s] out condemnation." Or again, when it is "shocking to the sense of truth, decency, or propriety"; "disgraceful"; "offensive"; or "disreputable." So the Lanham Act allows registration of marks when their messages accord with, but not when their messages defy, society's sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. The statute favors the former, and disfavors the latter. "Love rules"? ?Always be good"? Registration follows. "Hate rules"? "Always be cruel"? Not according to the Lanham Act's "immoral or scandalous" bar.

FUCT and Freedom of Speech

With that bar removed, small businesses are free to name themselves and their products just about anything, unless their names violate other Lanham Act prohibitions on marks that are deceptive, "falsely suggest a connection with persons, living or dead," or use wine regions other than where the wine came from.

While small business owners have more freedom to make sure they are being talked about, trademark law can still remain tricky. Contact an experienced intellectual property attorney or help filing trademarks for your small biz.

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Business owners know the old advertising adage "sex sells," but are often hesitant to use sex appeal in their own advertising. Well, maybe not magazine advertisers.

However, a recent lawsuit filed by a sex toy company against New York?s MTA over the agency's decision to reject the company's ads raises a good question for business owners and advertisers: How sexy can ads be before they won't get approved, or break a law, or result in consumer backlash?

Government Approval

If you're trying to advertise on buses or trains, in another government regulated industry, or with a government agency, there may very well be strict restrictions on the types of content you may display, and you will likely need to get approval.

In the case of the sex toy company versus the NY MTA, the ads seemed rather tasteful, a little funny, and not that provocative. Nevertheless, the MTA cited its ban on advertising sex toys in its rejection. The company's lawsuit explains that many other companies have used much sexier ads and been approved, and that the MTA's rejection is motivated by sexism.

Legally Speaking, or Showing

Under the law, advertising has quite a bit of leeway, so long as it is not out in public. Public ads, such as TV, billboards, and benches, must adhere to local and state obscenity laws, which may even prohibit the display of suggestive conduct or words. So, if you're planning to publicly display something racy, you might want to get a local lawyer?s opinion first to make sure you don't wind up paying for an ad buy that goes nowhere.

Consumer Backlash

While sex certainly does still sell (just ask the coffee addicts in the Northwest), when it is done in poor taste or belies the current social mores of acceptable sexual conduct, the consumer backlash might not be worth the risk of running that "sexy" ad.

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

For small business owners and independent contractors, estimated taxes can be a real thorn in the bank account. However, if you owe estimated taxes and fail to pay quarterly, the penalty for failing to do so can make you wish you had.

Fortunately, if you're reading this blog then you probably are trying to figure out what you have to do to get out from under the estimated tax monster, and that's a good thing. The sooner you realize that you are not exempt from paying estimated taxes, the better, because the penalty will only get worse (that is, more expensive).

Below, you can get a few tips on paying estimated taxes.

Do It Now

If you forgot to make a payment and are only now realizing it, go ahead and make the late payment now and pay whatever penalty you have to If you don't know how much you need to pay, find your previous year's taxes and go to the IRS calculator. Generally, you have to pay 90% of your tax liability in estimated taxes, split quarterly.

If you are still lost or are newly self-employed, you'll want to pay very close attention to the next tip.

Hire a Professional

If you are absolutely lost when it comes to your taxes and finances in general, or if you are new to small business ownership or self-employment, hiring a tax professional to help will be well worth the money. You'll likely end up saving money due to the tax savings they'll help you find, not to mention the money you'd likely end up spending on tax penalties for the mistakes and late payments that most new business owners who try to handle their own taxes end up facing.

Review and Pay Every Quarter

Once you have your estimated taxes figured out, the best thing you can do is to review and pay them yourself quarterly. Set up a calendar alert for the 10th of every April, June, September, and January. Estimated taxes are due on the 15th of each of these months, and must be paid online or by phone or postmarked by that date. It is worth it to pay your accountant or tax lawyer to teach you how to do this if you need extra help with the process.

Each quarter, when paying your estimated taxes, use the time to review the business's finances generally. Review your accounts receivables, your payroll, your operations account, and any other financial accounts to ensure that everything looks correct and that you have the capital to get you through to the next quarter.

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

If you haven't heard of the latest Uber driver scandal, you might want to think twice before hailing a ride-share at the airport or after a big event if you see that there is "surge" pricing in effect.

A recent report details how some Uber drivers across the country have been gaming the Uber system to create artificial surge pricing at airports and special events. Basically, a group of drivers will all simultaneously turn off their apps outside airports or large events and wait for prices to increase before turning their apps back on and then accepting rides at higher rates.

Many riders, and drivers, might be wondering whether this behavior is legal.

Is It Legal?

While the drivers might just be "gaming" the system to eke out a bit more pay (which is reportedly miserable), the end result sounds like a conspiracy to engage in anticompetitive behavior, which seems likely to be a crime. In short, the ride-share drivers who do this are price-fixing, and the victims are the consumers who end up having to pay more for services. It's one thing for drivers to turn the app off and back on of their own accord, to see if surge pricing goes into effect. It's another thing entirely when they coordinate with others to manipulate the system to the paying customer's disadvantage.

Potential criminal violations would likely be very difficult to prove short of a news expose revealing drivers engaged in the practice or Uber keeping detailed records of drivers' locations and how they use the app. However, the drivers are also likely violating Uber's terms and conditions. In response, Uber commented that drivers found to be doing this could be removed.

What Can Consumers Do?

Consumers can always respond to surge pricing by using an alternative app, or even by trying to take a traditional taxi. Or, you can try just closing the app and restarting it a couple times over the next 10 or 15 minutes. 

Related Resources:

  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

"It is unlawful for any employer in this State to fail or refuse to hire a prospective employee because the prospective employee submitted to a screening test and the results of the screening test indicate the presence of marijuana."

That's quite the job protection statute. Even states that have legalized recreational marijuana haven't gone so far as to ensure lawful pot smokers aren't fired (or not hired) for toking up. But Nevada isn't like most states. And starting next year, most employers in Nevada will be barred from refusing to hire someone�just because they tested positive for weed.

New Law

The new law, set to go into effect January 1, 2020, does have some exceptions. The protections to do not apply to applicants seeking a job:

  • As a firefighter;
  • As an emergency medical technician;
  • That requires an employee to operate a motor vehicle and for which federal or state law requires the employee to submit to screening tests; or
  • That, in the determination of the employer, could adversely affect the safety of others.

"As our legal cannabis industry continues to flourish, it's important to ensure that the door of economic opportunity remains open for all Nevadans," Nevada Governor Steve Sisolak said. "That's why I was proud to sign AB132 into law, which contains common-sense exceptions for public safety and transportation professionals."

Old Ground

As noted above, Nevada's law is the first of its kind after the state legalized recreational marijuana in 2016. Notably, Colorado was one of the first states to legalize it, and yet the Colorado Supreme Court ruled that an employer could�fire an employee for testing positive for pot, even if they were never high at work and only used medical marijuana to treat violent muscle spasms. And this is despite a state law that specifically states: "It shall be a discriminatory or unfair employment practice for an employer to terminate the employment of any employee due to that employee's engaging in any lawful activity off the premises of the employer during nonworking hours." So, Nevada's employee protection law is certainly an outlier.

Of course, small business employers could always go the opposite direction, and be more friendly to weed smoking employees�than state law requires. When setting your own office marijuana policy, work with an experienced local employment attorney to make sure it complies with state and federal statutes.

Related Resources:

Read for later

Articles marked as Favorite are saved for later viewing.
close
  • Show original
  • .
  • Share
  • .
  • Favorite
  • .
  • Email
  • .
  • Add Tags 

Separate tags by commas
To access this feature, please upgrade your account.
Start your free month
Free Preview