Alexis Merbach

Understanding Intellectual Property

Intellectual Property (IP) is commonly defined as a group of legal rights that provide protection over things people create or invent. It might sound straightforward, but there is a lot of confusion over what can actually be protected and what can not.

Who needs to be concerned with IP Protections?

We’ve all heard the phrase, “hindsight is 20/20”. That’s especially true when it comes to IP protections. So often companies or individuals do not realize a new creation or innovation should be protected until it is too late. If you are creating or developing within your space, you need to have an IP strategy to avoid any unintentional disclosure missteps. And, when you are creating, be careful to:

  • Make records. They should be accurate, dated and corroborated.
  • Research the competitive landscape early and identify both opportunities for protection and risks of infringement.
  • Use a non-disclosure agreement or contract before collaborating with another business.
What are some of the biggest IP challenges business owners and employers need to overcome?

The goal for your IP strategy needs to be: Identify, Protect, Monetize.  The question business owners need to answer is how they can most effectively achieve this. The first step is understanding the applicable IP types and the protection gained.

Intellectual Property Type The Value
 

Trade Secret

No registration fees or costs. Goes into effect upon creation and can last forever.
 

Non-Disclosure Agreement/Contract

Very affordable and flexible. But, it only binds the contracting parties.
 

Copyright

 

Free and automatic upon creation.
 

Trademark/Service

Commercial differentiation and price enhancement. Low cost and can last forever, but must police others’ misuse.
 How can an IP strategy affect your bottom line?

It’s important to understand there is no “one-size fits all” approach to IP. The correct IP strategy must be tailored to your unique business. While some companies may be overspending on a scattered approach to protecting IP, other companies may not be investing enough and potential losing out on what could have been an important revenue stream.

The best way to right-size your strategy is to sit down with an experienced IP attorney. Protecting your intellectual property estate can be a daunting task. You’ll need someone with expertise to help guide you through the process and identify opportunities and risks you may have overlooked.

To learn more about how Epiphany Law can help with your company’s IP needs, check out our upcoming webinar. You can register here.

Do you have questions about IP? Contact us here

 

PPP loans; What Business Owners Need to Know

New PPP Updates: What Business Owners and Employers Need to Know

On June 5, 2020, the PPP Flexibility Act was signed into law. The Flexibility Act expanded on certain provisions of the original CARES Act regarding the Paycheck Protection Program (“PPP”). First, the term of PPP loan has been extended. Originally the loan term for the PPP was for one year and now it has been extended to 5 years. The extended repayment period applies only to PPP loans made after June 5, 2020, but lenders and borrowers can renegotiate the maturity of any previously existing PPP loans.

Secondly, the PPP was meant to cover 8 weeks of payroll and the funds needed to be used within 8 weeks after the date of the origination loan.  The time to use the loan proceeds has now been extended to 24 weeks from the date of the loan or until December 31, 2020, whichever occurs first. If a business received PPP funds as of June 5, 2020, they can now choose to extend the eight-week period to 24 weeks, or they can keep the original eight-week period. New PPP borrowers will automatically have a 24-week period, but not beyond December 31, 2020.

Additionally, a business now may not receive a reduction in forgiveness amount for having a reduced in the number of employees if the business in good faith can document an inability to rehire individuals who were employees on 2/15/2020 and an inability to hire similarly qualified employees for unfilled positions on or before December 31, 2020.

OR

Can document an inability to return to the same level of business activity as such business was operating at before 2/15/2020 due to compliance with requirement established/guidance issued by CDC OSHA or Health and Human Services during period of March 1, 2020 and ending on 12/31/2020 related to maintenance of standards for sanitation, social distancing or other safety requirement.

Also, loan recipients now only have to use 60% of the loan for payroll costs and can use 40% for other approved expenses. Loan recipients will also now have their loans deferred for 10 months versus the original 6-month loan deferment.

Lastly, under the original CARES Act,  a business was allowed to delay payment of employer payroll taxes through December 31, 2020 and the payments payable over the next two years.  The caveat to this was that if a business took the PPP loan, they were ineligible for this benefit. The new law now allows for any PPP borrower to delay payment of its payroll taxes like other businesses.

Then it comes to the different COVID-19 Federal Stimulus Packages, there’s a lot for employers and business owners to know. It’s important to understand all your options and develop a strategy to maximize the benefits. Epiphany Law attorneys are able to partner with you and create a plan that will help your business achieve your desired results. You can call us at 920-996-1000 or contact us here. 

Data Privacy

5 Data Privacy Tips for Business Owners

Essential tips for cyber security and managing associated legal risks

Having information about clients and customers is important to the health of any business. More important, however, is how businesses ensure that private information remains secure. Technology can be a business owner’s best friend, especially in today’s ever evolving digital world. It can help streamline processes, better collect and store data, and improve customer service efforts. Although this technology greatly aids businesses, it also increases the size of the target on their back for hackers and cyber attacks.

To help combat cyber attacks and ensure data privacy for customers, it is crucial for businesses to have basic security measures in place and abide by a set of cybersecurity best practices. Here are five tips for protecting your business and ensuring data privacy:

1. If you collect it, protect it.

Follow reasonable security measures to ensure that customers’ and employees’ personal information is protected from inappropriate and unauthorized access. Invest in the most current security software, operating systems, and web browsers to defend against malicious hacks. Outdated programs are easier to infiltrate, so regularly updating a system strengthens its defenses against malware and viruses. More importantly, have in-house accountability. Putting up-to-date procedures in place for maintaining the security of the company’s network and software is key. Should a security breach occur, existence of such procedures can make a difference in the company’s liability.

2. Know what you’re collecting and don’t collect what you don’t need.

When collecting client and consumer information, be aware of all the personal information you have, where you are storing it, how you are using it, and who has access to it. Understand the kind of assets you have and why a hacker might pursue them. The more valuable information you have, the bigger a target you might be. Avoid using social security numbers or other personal information for customer identification. Opt instead for log in identification and passwords. More layers of identification help keep attackers from being able to simulate users. Ask consumers only for information needed for the delivery of the company’s service or product and consider deleting personal information that you don’t really need.

3. Have a strong privacy policy.

Whether you are an online or brick-and-mortar business, customers need to know that you are protecting their information. Make sure you have a policy they can refer to explaining how you are keeping personal information safe. Make sure you are straightforward with customers about the consumer data you collect and what you do with it. Being honest with them will help you build consumer trust and show you value their data and are working to protect it.

4. Educate employees.

Employees are often the handlers of customer data. To best protect themselves, businesses must ensure their employees know about the latest threats so they do not unwittingly hand over consumer information. Regularly communicating with employees about best practices and implementing in-house data handing procedures and policies can protect consumer privacy. Best practices can interrupt phishing schemes and ransomware attacks, among other threats.

5. Check the Security of Service Providers.

A business can implement and abide by the best data and security practices and hackers can still compromise consumer privacy if the business works with service providers who do not take reasonable safety precautions. Should this happen, the business would be held accountable. Therefore, companies must carefully vet who handles their consumer data and ensure their practices follow the highest safety standards.

If you would like to learn more about how you can protect your business, you can contact us here or call our office at 920-996-0000.

Protecting Your Business with an Employee Handbook

An employee handbook serves as a guide for employees and employers. The handbook is a tool that defines ground rules and explains what is and is not considered acceptable behavior. Done properly, an employee handbook is a great first line of defense for a variety of legal issues.

However, if an employee handbook is done improperly, it can lead to confusion, anger and lawsuits. The sections contained in the handbook need to be carefully worded in order to avoid those pitfalls.  Generally, laws regarding employees and employees are drafted in favor of the employee so without the protections offered in an employee handbook, the employer is open to more risk.

Although some federal regulations such as Title VII and the Americans with Disabilities Act do not go into effect until you have 15 or more employees, a business of any size can be sued for other employment related issues.

To minimize your risks, it is important to have a relationship with an employment law attorney who will update you of any federal or state required changes.

Other ways to minimize risks include an annual handbook review. As the world changes, you may need to create new policies that reflect the changes in the law and your employee handbook should reflect those changes.  For example, think of the changes to the workplace over the past few years like health care reform, employees working from home more frequently, working parents and the balance between home and work life, the use of personal mobile devices and so many others.

In addition, the handbook should be reviewed to make sure the documented polices that are included in the book are consistently followed and are a reflection of the culture of your work environment.  If the policies in the handbook are not followed and not a reflection of your work environment, you will have a weak defense if a dispute arises.

Remember, it’s not enough just to update the handbook.  Clearly communicating any change or policy update to all employees is also required.

 

Compliance with the Fair Labor Standards Act is Good Business

Have you heard about the Department of Labor’s latest rule change? In this week’s blog, Epiphany Law attorney Sarah Coenen breaks down what the Fair Labor Standards Act means for your business.

Q: Can a salaried employee be entitled to overtime pay?

A: In general, regardless of whether an employee is paid an hourly or salary rate, he or she may be entitled to overtime pay. The Department of Labor (“DOL”), however, created an exemption under the Fair Labor Standards Act (“FLSA”) allowing certain employees to be exempt from receiving overtime pay.

Q: How do you know if an employee is qualified for the exemption?

A: To qualify for this exemption, the employee must:

  1. be salaried, meaning that he or she is paid a predetermined and fixed salary not subject to reduction because of variations in the quality or quantity of the work performed;
  2. be paid at least a specified weekly salary level; and
  3. primarily perform executive, administrative, or professional duties, as defined in DOL regulations.

Q: How will the Department of Labor’s 2019 update affect the rule?

A: The update raises the annual standard salary level from $23,660 to $35,568. This equates to the weekly rate increasing from $455 to $684. Therefore, an employee must have an annual salary level above $35,568, to be exempt from receiving overtime pay.

Q: Does the DOL update affect highly compensated employees (HCEs)?

A: Yes, the rule also increases the total annual compensation level for highly compensated employees (“HCEs”) from $100,000 to $107,432. HCEs are employees whose primary duty includes office/non-manual work and who customarily/regularly perform one or more of the exempt duties of an executive, administrative, or professional employee. For example, an employee may qualify as an HCE if he or she customarily and regularly directs the work of two or more other employees, even though he or she does not meet all of the other requirements in the standard exemption test.

Q: Are employers allowed to use commissions and incentive pay toward the employee’s salary?

A: Yes, the rule allows employers to use nondiscretionary bonuses and incentive pay (including commissions) to satisfy no more than 10 percent of an employee’s salary in order to qualify that employee under the exemption.

Q: What happens if the employee has not earned enough in nondiscretionary bonuses and incentive payments to retain his or her exempt status?

A: Then, the rule allows for the employer to have a “catch-up” payment at the end of the 52-week period. If the employer does not make up the “shortfall” during that one pay period, the employee is entitled to any overtime pay earned during the previous 52-week period.

Q: When does the new rule go into effect?

A: The new rule goes into effect on January 1, 2020.

Q: Why does this matter for me?

A: If you have any employees who are receiving a salary rate, you will need to re-evaluate those employee classifications to ensure that your business is in compliance with the new Fair Labor Standards Act rules by January 1, 2020.

Epiphany Law attorney’s can help you make sure your business is protected. For more information, contact us here.

 

The Importance of the Employee Handbook & 2021 Updates

An employee handbook serves as a guide for employees and employers. The handbook is a tool to provide clear expectations and rules.  It defines ground rules and explains what is and is not considered acceptable behavior. Done properly, an employee handbook is a great first line of defense for a variety of legal issues.

However, if an employee handbook is done improperly, it can lead to confusion, anger and lawsuits. The sections contained in the handbook need to be carefully worded in order to avoid those pitfalls.  Generally, laws regarding employees and employees are drafted in favor of the employee so without the protections offered in an employee handbook, the employer is open to more risk.

Although some federal regulations such as Title VII and the Americans with Disabilities Act do not go into effect until you have 15 or more employees, a business of any size can be sued for other employment-related issues.

To minimize your risks, it is important to have a relationship with an employment law attorney who will update you of any federal or state required changes.

Other ways to minimize risks include an annual handbook review. As the world changes, you may need to create new policies that reflect the changes in the law and your employee handbook should reflect those changes.  For example, think of the changes to the workplace over the past few years like health care reform, more employees are able to work from home, working parents and the balance between home and work life, the use of personal mobile devices and so many others.

In addition, the handbook should be reviewed to make sure the documented polices that are included in the book are consistently followed and are a reflection of the culture of your work environment.  If the policies in the handbook are not followed and not a reflection of your work environment, you will have a weak defense if a dispute arises.

Remember–keeping current with employment legislation is essential to protecting your business. 2020 was a big year in employment law.

 

  1. Remote work policies: If your employee handbook didn’t address this topic before, it most likely does now. As COVID-19 stretches into 2021, your company’s remote work policy should be revised to better reflect the guidelines and expectations while an employee is conducting work at home. The provision should also incorporate data security measures and expectations for all remote workers.
  2. New Protections: In June of 2021, the U.S. Supreme Court ruled that employers cannot fire workers for being LGBTQ+.  If your company has not already done so, you will need to make sure this provision is included with existing anti-discrimination policies.
  3. Employment Leave Requirements: As of January 1, 2021 the Family First Coronavirus Response Act (FFCRA) will no longer require covered employers to provide 80 hours of emergency paid sick leave nor up to 12 weeks of partially paid emergency Family and Medical Leave Act (FMLA) under the EFMLEA provisions. However, your company may voluntarily provide FFCRA leave and claim a corresponding tax credit until March 31, 2021.

 

Remember, it’s not enough just to update the handbook.  Clearly communicating any change or policy update to all employees is also required. To ensure you are compliant with all federal and state requirements, you’ll want to contact an experienced business attorney to review your specific situation.

Protect Your Business with a Business “Prenup”

If your business has two or more owners, you need a Buy-Sell Agreement.

A buy-sell agreement is simply a contract between two or more business owners that formally documents contingency plans if a life changing event occurs.  Some people refer to these agreements as “prenups” for business owners. In the agreement, the business owners agree upon what happens to the ownership structure of the company in the event of one owner’s death, divorce, disability, retirement or other life changing events.

Many business owners don’t realize until it is too late the importance of a buy-sell agreement.  For example, if an owner gets divorced, the business may become hostage to the marital dispute. Or if an owner dies, the surviving business owner(s) may inherit heirs for business partners, who care little about whether the business survives.

Without a buy-sell in place, you are opening yourself and your business up for unknown risks.  Protect yourself and your business from the unknown future with a buy-sell agreement. Ensuring that critical events are properly covered is essential to the long-term survival of your business.