Online Legal Help? Five Reasons To Avoid It

That adage about spending dollars to save pennies applies to many things, including the choice to refuse to hire a lawyer to help you with legal work. With so many inexpensive and fast options available on the internet to do-it-yourself when it comes to legal work, it can be alluring to hop online and just get started.

But, very often, the dirty little secret about online legal help is that you are only getting half of the story. Sometimes, those pennies that you think you are saving can end up costing you more than if you just hired the right legal professional to help you in the first place. 

If you are thinking about using a do-it-yourself program to handle your legal work, it is critical that you understand why that might not be the best route and how consulting a lawyer could end up costing you way less in the long-run.

1. You can create a more significant problem for yourself

If you try to complete legal documents on your own without hiring a lawyer to help, you can create a much bigger mess than you know or intended. Failing to have the correct paperwork in order, mistakenly filing something, or just flat-out missing an important provision in an agreement or document can all turn out to be huge mistakes.

Courts (as well as government document processing systems) don’t consider ignorance an excuse if you do something wrong. If you don’t know how to do something – don’t do it! Or, expect to create significant and costly legal problems for yourself.

2. You don’t know how the law applies

There are reasons that lawyers have to go to school to join the profession. There is nothing simple about the law. It is an ever-changing and evolving industry. In order to do things right, you have to know how a law applies, then apply it properly.

If you aren’t certain that what you are drafting or preparing for yourself follows the law, from both a state and federal perspective, you could be inadvertently cutting corners that open you, your company, or both up to potential legal liability. 

3. It can be more expensive to “undo” what you tried to do yourself

You probably wouldn’t consider building your home from scratch alone. Chances are, unless you’re a building professional, the foundation you lay would be insufficient to support your house. And once you build it, there is virtually no way to undo what you have done without considerable cost.

The same is true when you are creating a business and you are laying your business’ legal foundation. Whatever you do wrong from a legal standpoint can be extremely harmful to your bottom line. It is way more expensive to try to go back and undo what you did than to do it right the first time.

4. You can create areas of unnecessary exposure when using online legal help

When you don’t have proper documentation, policies, and legal work in order, you are exposing yourself to potential litigation. Not understanding the law means you are far less likely to have crossed all your T’s and dotted all your I’s, which undoubtedly leaves holes in your legal protection.

There is no reason to leave you or your business open to legal issues when you don’t have to. A good business attorney will help identify potential problem areas and help you evaluate the risk associates with those problem areas, so you can make good, solid business decisions. 

5. You can miss crucial things you think are “small” at the time

Those things that seem small tend to take on a life of their own. When you are bootstrapping your start-up, it is easy to write-off certain issues like contracts, hiring documents, and formal partnership agreements as “unimportant,” because everything is working now when the business is small. But, just as you expect your business to grow, you can also expect those “small” issues will also grow with your business, leaving you a legal mess and a potential big bill to have a lawyer fix those problems late in the game. 

Although there are a vast number of options which allow you to online legal help when it comes to the law, most lawyers don’t recommend doing it yourself. Even simply consulting with a lawyer to help you identify areas of risk that you did not consider is likely to help you more than simply relying on a search engine to give you the answer.

Legal issues are almost always specific to your particular set of facts. Lawyers are trained to apply those laws to the facts to decide how the law will shake out.  Don’t leave your company or yourself, vulnerable to problems down the road because you didn’t know the whole story. 

If you are considering using online legal help, but want to discuss your intentions with an attorney, contact our lawyers at Trestle Law today to help you identify and roadmap your business’ legal issues. We are licensed in California. Nothing herein constitutes legal advice and should not be relied upon as such. We are not your attorneys until an engagement letter has been executed. 

Stolen Internet Content…Take These Three Steps!

In the age of social media platforms like Instagram, Twitter, Facebook, LinkedIn, and Pinterest, we are more connected than ever. Smart people have leveraged this connectivity to make themselves highly visible and build incredibly successful businesses. But even smart people are subject to stolen internet content!

But what usually starts as a hobby can quickly turn into someone’s sole source of income. That makes the content that they create even more valuable. So what do if someone steals your internet content?

 First: Identify the Content 

I can’t tell you how many times I hear people talk about trademark infringement in connection with a photograph, or wanting to copyright a brand name. In order to protect your intellectual property (and that’s what all of this is), first you have to know what you’re protecting.

 A copyright is a form of legal protection that applies to “original works of authorship, fixed in a tangible medium.” Technically, copyright protection is a bundle of rights that does apply to works whether they are registered or unregistered. 

However, registering your copyrighted material will give you a number of benefits like statutory damages and being able to enforce your rights directly in federal court. Items like literary works, paintings, live performances, movies, software, photographs, and e-books are all protectable by copyright.

 On the other hand, trademarks are about source identification as it relates the particular goods and services. Very basically, trademarks apply to words, symbols, phrases, sounds, and sometimes even colors that uniquely identify the source of those goods/services. More simply put, trademarks protect brand names. An example of some famous trademarks are Nike, Google, and Apple. 

In the United States, trademarks do not have to be registered with the United States Patent and Trademark Office to be protected, but registration of your trademark is helpful from a legal standpoint, especially if you have a brand that is exposed on a larger scale. It will enhance your stolen internet content case.

 Second: Take the Path of Least Resistance to make a case for stolen internet content

 Once you’ve identified the content, figure out how you can get the person stealing from you to stop the fastest. Usually this involves reporting the misappropriated content to the proper social media platforms from which the information is stolen, if social media is where the theft occurred. 

These sites typically have forms for reporting infringement that look relatively straightforward. DIYers beware: If you don’t know how to put together the right complaint, or you don’t quite understand the underlying issue (i.e., copyright vs trademark), you could be setting yourself up to have your complaint denied. 

Certain content theft is more complicated than others, and the unskilled person may not have the know-how to craft an argument in the way the infringement divisions of the applicable platforms want to see.

Generally, when dealing with trademark matters, certain sites require registration when reporting infringement. It’s also important for some to show that the person committing the theft is truly “passing off” themselves for you to prove that it is a case of stolen internet content.

These sites are concerned about the balance between trademark owners’ rights and the right of users to engage in true competition. This usually requires that you show consumers are likely to be confused between the two accounts. 

In cases involving copyright, if the report to the social media sites is unsuccessful, you can also look to file a DMCA takedown notice, or try approaching the infringer via email first to see if they will be amenable to removing the offending content. Again, crafting the argument is the most important part in getting any infringement reported correctly and taken down swiftly. 

 Third: Get a Lawyer 

 I think it helps to have a solid intellectual property attorney on your team from the get-go. Sure, it costs a little more than doing everything yourself, but addressing infringement is crucial when it comes to protecting the integrity of your content and brand from stolen internet content. 

And let’s face it – that’s how most online social media influencers make their livings. Without good protection, you’re setting yourself up for a mess. 

 If you think that someone might have stolen property that legally belongs to you, it is recommended consult an attorney. Before you try to deal with a trademark or copyright issue on your own,  it is best to cover all your bases by consulting a professional to protect what is legally yours. Contact Trestlelaw.com today to discuss your situation.

Minimal Tasks Performed Supreme Court Ruling Not So Trivial For CA Employers

Douglas Troester’s suit against coffee giant Starbucks might have only been to recoup a small amount of money that he felt was due, but the implications of the suit’s ruling regarding minimal tasks performed by employees may have a significant impact on employers across California.

Douglas Troester’s claim was that Starbucks failed to compensate him for the time he spent closing the coffee store. During his 17-month employment, Starbucks allegedly failed to compensate him for the time he spent locking the doors after his shift, turning on the alarm, and when necessary, reopening the door when customers left their belongings behind. A class- action lawsuit was filed under the California Labor Code that totaled unpaid wages in the amount of $102.67.

Starbucks responded by filing a motion for summary judgment to dismiss the case due to the federal de minimis rule. Although the trial court ruled in Starbucks’ favor, the case was appealed in the California Supreme Court. Their subsequent decision is likely to have an impact on wage tracking requirements, the structuring of work hours for employees, and how businesses estimate the time it takes to perform tasks.

What is the de minimis rule?

The appellate court dismissed the case due to the federal de minimis doctrine. The de minimis doctrine is a defense to state and federal laws requiring that hourly workers track and be paid for all time worked. Under the Fair Labor Standards Act (FLSA), employers are able to defend themselves against claims for unpaid wages for small amounts of time that may be too impractical to track.

Federal courts had previously analyzed a variety of factors in determining whether an employer was warranted in disregarding the time as “de minimis.” Similarly, prior to the Troester case, certain federal courts in California had held that employers did not need to pay wages for minutes spent outside shifts that were not practical to track.

What the Supreme Court ruled

The Troester decision, however, rejected the de minimis federal application (and some prior California decisions), thereby requiring employers to compensate employees for small tasks performed when employees are technically “off the clock.” The new rule will likely create tracking difficulties for employers, especially now they are required to compensate employees for this time.

For example, the time that it takes an employee to walk to and from their car might come into question. If a person works in an event industry and they are required to park far away and walk to the venue, they might be able to demand compensation for their time walking.

And if these employees are required to be compensated, how much time are they required to be paid? Many factors can come into play to affect the amount of time that one employee takes over from another and how to fairly compensate them for that time. In the Troester case, the plaintiff was asked to “estimate” the amount of time it took him for minimal tasks performed. This does not provide employers with very clear guidelines, and could lead to a massive influx of class-action claims.

Why the California Supreme Court rejected the de minimis doctrine

The California Supreme Court contended that employers are in a better position to implement technology-based systems that can prevent failure to compensate employees for this additional time. However, they admitted that for specific industries, it can create an extremely challenging administrative burden.

The court did not say that the de minimis rule can never apply, but it strictly limited an employer’s ability to rely on it alone. Therefore, it appears the Supreme Court of California has left businesses to fend off class action suits on their own.

What are the implications for employers in California regarding minimal tasks performed?

What the rule means for employers in California is that they must compensate employees for all time, even after their shift, regardless of whether the task seems menial and relatively insignificant. Minimal tasks performed might no longer be minimal at all.

If you are an employer in the state of California, it is vital that you know how the new ruling will affect how you record, estimate, and pay for “off-hour” tasks, and if there is indeed such a thing as “off-hour” tasks at all. To ensure that the implications of this ruling won’t leave your company vulnerable to a class-action suit, contact Trestle Law today.

 

Thanks to a New Supreme Court Ruling, California Employers May Want to Think Twice Before Hiring Independent Contractors

Companies are always looking for ways to lower their bottom lines, particularly when it comes to their staffing. Similarly, more and more workers are looking for flexibility to pursue personal business ventures and alternative work avenues outside of the traditional nine-to-five. Freelancing, or working as an independent contractor, is an attractive option for both California employers and workers.

But for California employers, a recent Supreme Court of California decision has severely limited employers’ abilities to classify workers as independent contractors. Because of this recent decision, employers may now be unwittingly walking into a trap when hiring someone as an independent contractor.

Dynamex Operations West, Inc. v. Superior Court was based on a class-action lawsuit waged against Dynamex Operations West Inc, a document and package company with big-name clients such as Amazon. The suit alleged that Dynamex sought to misclassify its delivery drivers and label them as independent contractors instead of employees.

Affirming the Court of Appeals’ prior judgment, the California Supreme Court clarified the definition of  “independent contractor,” providing lower courts with more specific guidelines to follow when determining whether a worker is an  “employee” versus an “independent contractor.”

The Dynamex Three Part “ABC” Test:

Previously, classifying a worker as an independent contractor was set forth in a multi-factor “totality of the circumstances” test set forth in the case S.G. Borello & Sons, Inc. v. Department of Industrial Relations.

Although the determination regarding independent contractor vs. employee in Borello examined a multitude of factors, the most important factor was the level and degree of control the employer had over the worker.

Generally speaking, the more control the employer had over how, when, and where the work was performed, the more likely the worker was an employee. Thanks to the Dynamex decision, the California Supreme Court has substantially narrowed employers’ ability to deem a worker an independent contractor.

Under the Dynamex three part test, the business has the burden of proving that the worker meets all three of the factors in order to be considered an independent contractor:

  1. They must show the worker is independent from any control of the employer;
  2. The worker performs in a capacity that is outside the core business of the company; and
  3. The employee has an established trade, business, or occupation outside of their employment

Under the Dynamex test, it is difficult to see how any worker could ever be classified as an independent contractor. Consider the following example: A successful blogger enters into an independent contractor agreement with another blogger to write articles for his/her website from her home.

Under the new test, it is very likely the employer will fail at least parts A and B of the test. To some degree, the blogger will need to control when the articles are finished and how they are written. Not to mention, the services are most certainly a core part of the blogger’s business (article writing).

Implications and Penalties for California Employers:

It is clear that those hit hardest by the ruling will undoubtedly be California employers using independent contractors. Fines for misclassification of an independent contractor can be levied against the company both from the state as well as from the IRS.

These fines can range from $5,000-$15,000 per violation for state labor code violations to a minimum of 1.5% of the wages paid levied by the federal government. And there’s even more bad news for employers: some of the labor code violations are enforceable through the California Private Attorney General Act, meaning attorneys’ fees and costs are recoverable by the misclassified worker, thereby further exposing California employers.

Hiring an independent contractor is an attractive option to most employers, especially small businesses. It gives a company the opportunity to have someone work fewer hours without the heavy burden of paying employment taxes or any state/federal withholdings. It also alleviates the employer from being required to make certain retirement contributions it offers to employees.

Not only does hiring an independent contractor appeal to businesses, it also appeals to workers. Many people are bootstrapping their own businesses and do not want to be beholden to a company where they are required to work particular hours. Others want the flexibility of indicating whether they will accept certain work and/or projects from their employer.

However, with the imposition of the Dynamex ruling, it is difficult to see how the incredibly successful “gig” economy can survive.  

This ruling has many business owners concerned about the consequences of mislabeling someone as an independent contractor and being challenged. As a result, we may expect to see a slowdown in the hiring and creation of jobs, particularly in the small-business sector.

If you are an employer in the state of California and have independent contractors working for you, it is vital that you understand how misclassifying someone as an independent contractor versus as an employee can affect your bottom line. Contact Trestle Law today to discuss your businesses’ employment needs and how you can protect yourself.