With
start-up companies, the process of finding and procuring funding as well as
obtaining clients and keeping said clients can be difficult, but what can also
be just as difficult is being able to pay employees while still keeping
afloat. According to the Department of
Labor, the Fair Labor Standards Act of 1938 is what “establishes standards for
minimum wages, overtime pay, record keeping, and child labor.” (Wage and Hour Division, 2009) The Department of
Labor also states that it applies to businesses that "incur more than $500,000
in annual income"; however, it also states that “the Act
covers domestic service workers, such as day workers, housekeepers, chauffeurs,
cooks, or full‑time babysitters, if they receive at least $1,700 in 2009 in cash
wages from one employer in a calendar year, or if they work a total of more than eight
hours a week for one or more employers.” (Wage and Hour Division, 2009)
So those who
are working for you now have to get paid, but do you pay them as an employee or
an independent contractor? “The more control the
principal has over an agent, the more likely that the agent will be considered
an employee. Therefore, when determining if agents are employees or independent
contractors, courts consider whether:
•
The principal supervises details of the work.
•
The principal supplies the tools and place of work.
•
The agents work full time for the principal.
•
The agents receive a salary or hourly wages, not a fixed price for the job.
•
The work is part of the regular business of the principal.
•
The principal and agents believe they have an employer-employee relationship.
•
The principal is in business.” (Beatty & Samuelson, 2012)
Start-up
companies don’t always start in a commercial space. Sometimes they end up starting at the owner’s
home. Now when would the employer be
responsible for incidents that happen in his/her home where the business is also
located? The employer would only be
liable for "incidents that happen within the scope of employment." For example, “If an
employee leaves a pool of water on the floor of a store and a customer slips
and falls, the employer is liable. But if the same employee leaves water on his
own kitchen floor and a friend falls, the employer is not liable because the
employee is not acting within the scope of employment.” (Beatty & Samuelson, 2012) So what does that
mean? Scope of employment is a blanket term that covers any job.
Now you have
a business but you want to protect the name and logo, anything that distinguishes
your business from others. Trademarks do
just that. In short, a Trademark is a brand name. You are not required to have it federally
registered based on legitimate use of the mark but it does give you some
definite advantages, “including the following:
·
Constructive notice to the public of the registrant's claim of
ownership of the mark;
·
A legal presumption of the registrant's ownership of the mark and
the registrant's exclusive right to use the mark nationwide on or in connection
with the goods and/or services listed in the registration;
·
The ability to bring an action concerning the mark in Federal court;
·
The use of the U.S. registration as a basis to obtain registration
in foreign countries; and
·
The ability to file the U.S. registration with U.S. Customs and
Border Protection to prevent importation of infringing foreign goods.” (STOPfakes.gov)
To be able
to use the Trademark markings, all you have to do is use TM after but if you
have it registered federally you can use the ®
symbol.
This is all about keeping your intellectual property safe from others using it
without your approval. What happens if
you end up with a case of Trademark infringement? There are 2 steps, the first being fairly
simple; you send out a cease and desist letter to the infringer. The next step is only taken when your letter
is ignored. This step is much more
complicated, and can in and of itself contain many steps. The second step is to file a lawsuit. “Trademarks are a federal subject matter, and accordingly
trademark infringement cases will often be filed in federal court. Most states
also have trademark laws, however, so for local disputes you may be able to
file your lawsuit in state court as well.” (FindLaw)
As a company, there will be customers/clients and when you sell them
some form of product, you create a form of contract, but what exactly is a
contract and what does it entail? There are multiple elements of a
contract. In general a contract is “a promise that the law will enforce.” (Beatty & Samuelson, 2012) For a contract to be
able to be enforced by the law, it must contain seven traits, "offer,
acceptance, consideration, legality, capacity, consent, and writing." You may be thinking, a verbal agreement is
often times considered a contract but there are times when it is required to be
written in order for it to be enforceable. “Agreements
concerning a sale of goods valued at more than $500 must be in writing.” (Beatty & Samuelson, 2012)
When working for any company, what you do when you are off reflects not
only yourself but also the company you work for. “More than half of
the states have passed statutes prohibiting job bans on smokers. Indeed, some
states have passed laws that protect the right of employees to engage in any
lawful activity when off duty, including smoking, drinking socially, having
high cholesterol, being overweight, or engaging in dangerous hobbies—bungee
jumping or rollerblading, for instance. In the absence of such a statute,
however, an employer does have the right to fire an employee for off-duty
conduct.” (Beatty & Samuelson, 2012) So if you are
engaging in acts that start promoting a bad image for your employer, they have
the right to terminate your employment.
Now you are working for a company, and you have been asked to do some
sort of cleaning. The chemicals that you
use for cleaning are most likely hazardous in some way and that means the company
needs to have it posted. The Occupational Safety & Health Administration,
OSHA, came out with what is called the hazard communication standard, which “is designed to ensure that employers and employees know about
hazardous chemicals in the workplace and how to protect themselves. Employers with employees who may be exposed
to hazardous chemicals in the workplace must prepare and implement a written
Hazard Communication Program and comply with other requirements of the
standard.” (OSHA)
These laws
are all available but knowing the difference between the types can help in
figuring it all out. The first source is
from the Constitution and the other is statutory law. A statute is “a law
passed by Congress or by a state legislature” (Beatty & Samuelson, 2012) and can cover pretty
much any topic; however, they can not violate the Constitution.
Now we know
the source and the type but do they affect how we deal with issue that may
require some form of dispute resolution?
There are three different ways to deal with this, “Litigation: the process of resolving disputes in court.
Alternative
dispute resolution: resolving disputes out of court, through formal or informal
processes.
Mediation:
a form of ADR in which a neutral third party guides the disputing parties
toward a voluntary settlement.” (Beatty & Samuelson, 2012)
Works Cited
(n.d.). Retrieved from STOPfakes.gov:
http://www.stopfakes.gov/learn-about-ip/trademarks/how-do-i-register
(n.d.). Retrieved from OSHA:
https://www.osha.gov/dcsp/compliance_assistance/quickstarts/general_industry/gi_step1.html
(n.d.). Retrieved from FindLaw:
http://smallbusiness.findlaw.com/intellectual-property/protect-your-trademark-from-infringement.html
Beatty, J. F., & Samuelson, S. S. (2012). Introduction
to Business Law. South-Western College Pub.
Wage and Hour Division. (2009, July). Retrieved from Department of Labor:
http://www.dol.gov/whd/regs/compliance/whdfs14.htm
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