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Category: Business

Sexual Harassment

What Is It, How to Avoid It, and How the Courts Regard It

Sexual harassment has exploded into the public consciousness in a very short amount of time, especially as many celebrities have joined the lists of accused and accusers alike. But these types of situations are not new.  Despite the recent nature of the public outcry, sexual harassment has posed a potential threat whenever one worker has held power over another. If a business does not understand or recognize the concepts and definitions of sexual harassment, it could easily find itself embroiled in a major issue without even knowing what the alleged perpetrators did wrong. This post will examine the basics of sexual harassment, how your business can steer clear of it, and when you might need the services of legal counsel.

Workplaces provide ready environments for sexual harassment. Employers and employee-supervisors may attempt to leverage the security of their position to abuse their power over lower-ranking employees. Both federal laws and state laws govern claims of sexual harassment in Arizona. Title VII of the Civil Rights Act of 1964 generally governs the issue on a federal level, while generally the Arizona Civil Rights Act covers much of the same ground on the state level. According to these laws, sexual harassment may be defined as any sexually-oriented behavior by one person that the other person doesn’t want, including:

  • Inappropriate touching
  • Visual harassment tactics such as exposing oneself
  • Requests or demands for sexual contact
  • Unsolicited sexual discussion
  • Stalking
  • Bullying, threats, or bribes to obtain sexual acts

Sexual harassment is not limited strictly to employer-employee relationships. Any professional environment in which one person holds seniority or influence over the other can provide the setting for such transgressions, including teacher-student and doctor-patient relationships.   This definition has expanded to the degree that sexual harassment may be alleged even when there is no employer or supervisor relationship involved.  For example, co-workers who tell sexual jokes or stories that make their colleagues uncomfortable may be causing a form of harassment often referred to as a “hostile work environment.” Actual direct requests or demands for sex as a condition of job security are known as “quid pro quo” cases.  Neither does sexual harassment depend on the sex or gender of the individuals involved. A woman can sexually harass a man, a man may sexually harass a woman, or both parties may be of the same gender.

When does a situation reach the point where it would be considered sexual harassment? Definitions such as “inappropriate touching” may be open to interpretation, making such cases less cut-and-dried than one might think. In addition what one might view as sexual harassment may be considered by others to be completely innocent, non-sexual behavior.

To help clarify these issues and reduce the risk of frivolous accusations, the law applies something called a “reasonable person standard” to sexual harassment cases. This basically means that a reasonable person would conclude that the specific actions in the case constituted sexual harassment. For instance, say a group of employees regularly visited a local bar every Friday night, and one of the employees regularly asked another employee to come to this event. A reasonable person would probably see that as a normal social gesture, not a sexual overture. Hostile work environment cases, in which you must establish that an abusive work environment existed, can prove tougher to define than the more straightforward quid pro quo cases.  These cases require very fact-intensive inquiries that may vary greatly in each circumstance.

To prevent such difficult and troubling situations, businesses must have the correct policies in place to outline what is acceptable and unacceptable behavior. Even then, simply stating your stance on these issues is insufficient – the business must also select and implement the correct procedures to investigate and address any allegations of sexual harassment.

© 2018 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Happy Holidays—With Moderation

During this time of the year, I often have business clients ask what should and should not occur at work.   Specifically, what should happen at work-sponsored social events to celebrate the Holidays and a successful end of the year.   These concerns have increased in light of recent news headlines where parties and out-of-work interactions have been a source of allegations of improper conduct and claims of harassment.   I can understand a business leader’s concern.  It is often a balancing act between a company wanting to reward their employees and increase morale, but (at the same time) avoiding a situation where actions may lead to issues at the workplace and liability to the business.    Below are a few general suggestions that I provide to businesses sponsoring a work party or experience.

  1. Have the event away from the office: This is important for several reasons.   First, it separates the event from the business where an owner would be fully responsible to monitor the event and prevent incidents.   Second, it provides additional individuals outside of the business who would be responsible to monitor and make certain it is a safe environment.   Third, it provides a justifiable reason if employees do not want to participate in the event.

  1. Alcohol consumption should be monitored: Alcohol consumption is another important reason why I recommend an event away from the office.   If the event occurs at the business, and alcohol is served, the owners become solely responsible to monitor the consumption of alcohol by their employees and, in part, whether or not they are in a condition to drive home.   This can lead to serious issues for the business if an alcohol-related incident happens either at their business or as their employees and/or their guests travel home.   Holding the event at another location, with event personnel providing the alcohol and monitoring consumption (and cutting off those who have reached their limit) provides an added level of responsibility and protection to avoid a negative event.

  1. Limitation on alcohol consumption: The term “open bar” often brings out the worst in some people where, because it is free, they drink far in excess of what should occur.   Although I understand businesses do not want to appear to be cheap to their employees in the food and alcohol that is to be provided, I often recommend a reasonable maximum alcohol drink limit.   If no drink limit is established, I recommend that the business directly give the bartenders of the event the latitude to cut off any individual they believe has had too much.

  1. Provide an option for travel from the event: If alcohol is being served with the knowledge that employees then have return home afterward, an owner wants to avoid employees driving under the influence and causing an accident, which can potentially expose the business to liability.   The employer offering the use (paid for by the business) of a taxi, shuttle service or similar travel option decreases the odds of an employee driving under the influence.

  1. Make certain that proper releases are signed: A recent trend for these events is for the business to have a team building activity instead of a typical party.   These activities have included such activities as hot air ballooning, bungee jumping, ziplining, a waterpark, or a similar activity that could lead to potential injury or other issues.   If this type of activity is to occur, businesses need to make certain that their employees know the risks and sign the proper release forms for the activities—whether provided by the venue or created by the business.    In addition, they should allow for employees who do not want to participate because of a physical or other limitation to fully participate in the event with co-workers in other ways.   That way, it prevents the appearance of segregating employees or discrimination because of a physical or mental limitation.

  1. Remind employees that their conduct at this event is the same conduct required in the office: Employees need to be reminded that their actions impact the business at all times.   Negative actions that would not be tolerated at the office (such as sexual harassment or committing a crime) are not allowed at a party.   A reminder to behave appropriately in the event invitation or in a company-wide e-mail is appropriate.

Businesses want to reward their employees at the end of the year for their hard work and dedication.   The primary goal is to reward employees in such a way where they both have a good time, feel appreciated yet are not put into a negative situation or scenario.    A few basic guidelines established by the business beforehand go a long way to avoiding potential future legal pitfalls.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

INTELLECTUAL PROPERTY AND BUSINESS ASSETS

A Basic Review of Intellectual Property Use by Businesses

Often when a business evaluates their assets, their primary analysis concentrates on bank accounts, inventory, real property, receivables, and similar assets.   These types of assets are often easy calculated and characterized.   However, most businesses also possess more intangible assets that may be more difficult to value, but have significant value nonetheless.   In fact, these assets may have more value than the easily-calculated bank accounts or real property.  One of these areas of assets is intellectual property.   In this article, I will provide the top three areas of intellectual property, how they are typically defined, and what protection they may receive.

Patents

Patents are typically divided into two categories.   The first category is a utility patent.  Utility patents cover methods, processes, devices, machines, manufactured items, or chemical compounds.   For a business, these patents protect what has been invented and created by the business for practical application and use.   Most “inventions” people typically envision (i.e, the toaster, air conditioning equipment, or pharmaceutical product) are what is protected.  These include those inventions that revolutionized society to others that went nowhere.

The second category is referred to as design patents.   Design patents protect the ornamental design of a functional item.  In this situation, it is the design that is different and not the function and use of the product.   A good example of a design patent is the one issued for the Coca-Cola bottle.   There are many glass bottles that serve the purpose and are utilized to hold soda.   What makes the Coca-Cola bottle different is the special contour shape and curves that make it unique from any other soda bottle and can be protected by its patent.

To obtain patent protection, the inventor must file a patent application with the U.S. Patent and Trademark Office (the “PTO”).   If the PTO determines that that invention is patentable, the inventor will be awarded U.S. patent, with a unique patent number, giving the holder unique use and rights to what is protected.  Patents can be bought, sold, traded, or inherited.  This is accomplished by the original patent holder assigning their rights in writing to another person or entity.   This assignment is then recorded with the PTO.

Trademarks

Trademark rights protect words, names, symbols, devices, or any combination thereof.  See 15 U.S.C. § 1127.   There are three general categories of trademarks:

  1. Trademarks: These are marks that assist a consumer to be able to differentiate between one protect in the marketplace from another. Famous trademarks that are often observed daily are the BMW propeller emblem, the Nike swoosh, and the multicolor apple for Apple Computers.
  2. Service Marks: These marks do not advertise a tangible product.   Instead, they are utilized to advertise a service or event.   For example, the Amazon logo with the swooping arrow and name advertises their internet shipping and retail business.
  1. Trade Dress: These are distinctive identifying features that form a trademark or service mark.  For example, trade dress may be the unique store design of a company.   You often see this in food and beverage establishments that always have the same layout, colors, floor design, and employee uniforms.    For example, an In-N-Out Burger location, 7-11 store, and McDonalds restaurant building appear almost identical no matter the city, state, or foreign location in which you may be.

Trademarks can also be registered through the PTO.   These rights can be assigned to another entity during the lifetime of the holder of the mark.   Any assignment or change of ownership needs to be recorded with the PTO.

Copyrights

Copyrights protect original literary works, music (both music and lyrics), dramas, choreography, graphics, photographs, movies and other audiovisual works, sound recordings, paintings, and sculptures.   See 17 U.S.C. §§102-103.   The Copyright Act identifies the creators of these works under the general term “authors.” 

Although authors do not need to register their works with the U.S. Copyright Office, doing so can strengthen their rights.  It can also be a factor in a determination of ownership and creation if there is a dispute between two authors of the same material.   Like patents and trademarks, copyrights can be sold, transferred, licensed, and provided as part of an author’s estate or business succession plan.

Most intellectual property assets of a business fall into one of these three areas.   In subsequent articles, I will discuss the steps that should occur to protect these assets and how they can be valued.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

SLOW BURN HIGH RETURN

 

IMPORTANCE OF MAINTAINING A LONG-TERM PERSPECTIVE

As a business attorney, one of the errors I often see a fledgling business commit is to focus their entire business model on achieving instant success.   In other words, the business becomes too focused on the one large client, opportunity, product, or other action that will lead to quick success and profitability.   Very similar to a gambler, the business is constantly looking for the “big payday.”   Also, very similar to a gambler, that big payday for the business rarely comes.    Instead, the business languishes and eventually fails.

From my practical experience, I rarely have seen a business be able to survive in the long-term with the instant success perspective.   Instead, most businesses arrive at success and survivability through a series of small actions taken over time.   This is a more organic approach where small actions slowly build up a critical mass that acts as a catalyst for sustained success.   It is what is often called the “slow burn, high return” approach.

“Overnight success” never occurs overnight.   Instead, it is long-term planning, preparation, and work that leads to success.  New businesses often miss the opportunities that come from this long-term approach.   In fact, the business often loses out on long term relationships with clients, customers, or others because its leaders are looking for quick success.   As such, they are losing out on long-term profitability.

My suggestion to individuals starting a new business is to look for potential business relationships that will foster a long-term approach.   For example, it may be a potential client, customer, or business partner that does not immediately need your product or services.   Instead of parting ways never to communicate with each other again, agree to stay in touch.   These communications over time, will often lead to a change of circumstances where you will be able to assist this potential client, customer, or business partner at some future date.   Oftentimes, it may be a referral by this individual or entity that does not need what you can offer, but a relationship has developed sufficiently over time where an entity is comfortable in its recommendation of your business.

Just as a business should foster these long-term relationships, business owners need to keep in mind that they will often be approached by individuals or businesses looking for that big payday.    Avoid relationships with these individuals or businesses because, like a traveling salesperson of old, it could be here today, but gone tomorrow.    You do not want to be the individual holding the bag when the dust settles.

Long-term success is more of a marathon than a sprint.   A successful business must focus its primary attention on the long-term approach.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.

Unnecessary Sacrifices

 

In the current fast-paced world of business where communication is nearly instantaneous with the push of a button and where decisions need to be made quickly, I have often observed businesses languishing on the sidelines.   The businesses are not languishing because they have a poor product, non-competitive pricing structure, bad employees, or any of the other typical reasons why businesses cannot compete and succeed.   Instead, it is because they are not making the right decisions fast enough in today’s market environment.

When I have spoken to businesses and their respective owners, especially those who are languishing on a decision to be made, I often use the quote “you are sacrificing ‘very good’ and ‘great’ on the altar of ‘perfection.’”

What is the intent of this quote?   It is to place in the forefront what I have often observed.   There are many businesses and individuals with great ideas that could lead to success.    However, the idea makers are unwilling to commit to and move forward with their idea because it is not “perfect.”  As such, they then spend an inordinate amount of time and resources (financial, mental, labor etc. . . ) attempting to “perfect” the idea.  Consequently, their idea often never reaches the level of perfection they envision.   In their attempt to find  perfection from their perspective, the great idea is lost or delayed to the point where it is no longer useful.   A great idea that would have led to success, profitability, and increased business which could have continued to revise as circumstances dictated has now become worthless.   This scenario is a form of indecisiveness or “analysis paralysis” that I have discussed in previous articles.

One example of this situation I observed as a college student.   I had a classmate that I often interacted with because we had similar class schedules due to our respective majors.   He was very smart, achieved high grades, and was full of ideas.   One “idea” for a business concept that he discussed on a regular basis was creating a company where businesses use this new thing called the “Internet” to have a platform to perform software and other functions that a business would not have the ability or resources to organize themselves.   Essentially, almost 25 years ago, he was describing businesses utilizing a cloud network to provide software services.

It was a brilliant idea.   He talked about it regularly.   Unfortunately, it went nowhere past talk.    Why did it stall?   One reason why is that he was unable to get past the talk stage.   For example, when he would discuss this concept, he would often talk about developing a “mission statement” that he wanted his company to follow.   He believed this mission statement would be the catalyst to lead the company, and the employees, to success.   He spent a considerable amount of time developing this statement.   From semester to semester when I would review his statement there would be little change–a different word choice here, minor punctuation change somewhere else.   Unfortunately, at the end the day, his idea never moved beyond his search for the perfect mission statement.

Businesses and their respective leaders need to avoid the perpetual search for perfection which leads to nothing of value.   Do not delay and sacrifice potentially successful ideas in the elusive pursuit of perfection.  Sometimes having only an idea that is “good enough” is exactly that–good enough to be successful.

© 2017 Matthew W. Harrison and Harrison Law, PLLC All Rights Reserved

This website and article have been prepared by Harrison Law, PLLC for informational purposes only and does not, and is not intended to, constitute legal or financial advice. The information is not provided in the course of an attorney-client relationship and is not intended to substitute for legal advice from an attorney licensed in your jurisdiction.