VRP Law Group, P.C.

A Boutique Business, Employment and Intellectual Property Law Firm

Archive for the ‘Employment Law Publication’ Category

Information Technology and Intellectual Property Audits: What are they? Why do we need them? What do we need lawyers for?

Tuesday, November 11th, 2014

Information Technology (IT) and Intellectual Property (IP) Audits are more and more common place and necessary for today’s trusted advisers and professionals. The more effort you take to make sure that you protect your client’s confidentiality, intellectual property, personal information, banking information, tax information, business strategy and marketing plans, is protected the better of you will be. VRP Law Group’s IT Audits consist of the following: 1) Review of your Technology Service Agreements; 2) Reviewing and Identifying Gaps if any, in any ISP or network security settings; 3) Making sure that there is an immediate and prompt investigation that identifies vulnerabilities, breaches in data security, documents and preserves the investigation and the evidence gathered during the investigation; 4) providing good terms of use and privacy policies for use of your client’s websites or your own website; 5) Creating good internal controls to protect extremely sensitive information, intellectual property and vital trade secrets; and 6) having effective IT communication policies, password protection means, and effective training and communication of such policies to your employees and IT vendors.

Moreover, making sure that you use trusted IT vendors and manage any change in network and internet service providers to ensure that proper security protocols and change management procedures are followed by your employees, your current and future trusted vendors. Without having someone like VRP Law Group that can oversee the process and/or identify the gaps, vulnerabilities, and coordinate an effective investigation and response the change management procedures may be ineffective in addressing data security issues. These data security issues can lead to liabilities for identity fraud or theft, breach of client’s confidentiality, misappropriation of your trade secrets, vital research and development memos, confidential consulting opinions, freedom to operate opinions, willful infringement opinions, patentability analysis, prior art search analysis, fraud upon the USPTO, US Copyright or Trademark Office, or many sometimes unforeseeable problems, until a lawsuit is filed.

Empowering yourself, your employees to deal with these problems without the worry of irrational fears and implementing the necessary change management procedures is a challenging endeavor. VRP Law Group is here to help you see and identify the foreseeable and legitimate risks without heading down the wrong path or becoming an individual that is unable to see anything, but impending doom in terms of managing its assets, confidential information, intellectual property and other vital competitive advantages that may be a lure for any hacker. Using our IT and IP audits will enable you to make sure that you work closely with experienced technology counsel, cyber Law, data privacy law, and intellectual property counsel. This is always a team endeavor to make sure that you focus your clients, entrepreneurs, small or large companies’ resources on the right breach or vulnerabilities to document and preserve the corrective measures and ensure that future or repeated incidents are minimized.

Your clients and you will sleep a bit easier at night with having VRP Law Group’s IT and IP Audit professionals looking after you, your clients, your intellectual property, your change management procedures, and related information technology matters. For more go to: www.vrplawgroup.com, www.bipeblawg.com, www.eebrunchclub.com

Impact of the Definition of a Judicial Entity and the Principles of Corporate Citizenship on the Internet!

Tuesday, September 9th, 2014

The most important part of any inquiry into corporate citizenship and a foreign national’s international business of any enterprise is determining, which, laws will apply. It is extremely difficult for any international company to plan for expansion into new countries without considering the impact of the citizenship of each of its Members. Limited Liability Companies and C-Corporations are the most preferred type of structures for purposes of corporate expansion and acquisition of corporate funding. Unfortunately, it is very difficult to determine the citizenship of each Member or Transferee and ensure that the Operating and Membership Agreement has the proper restrictions to ensure that you do not run afoul of the LLC’s corporate Citizenship rules.

If a foreign national is doing business in the US, then its ability to take advantage of local laws and tax regulations will be subject to the citizenship of each Member. For purposes of diversity jurisdiction, each individual’s citizenship will be considered for purpose of subject matter jurisdiction. Thus, if, you have an individual from China or Brazil, the first, inquiry, is whether or not the entity will be recognized as a US citizen, corporation or partnership. Once, this is determined based on the citizenship of each individual member and at least, one individual is a US Citizen, the Corporation will qualify for US Citizenship or legal entity status of a Judicial Entity for purposes of being able to take advantage of local laws.

However, when you have international citizens that conduct business in the US or reside in the US this raises a bit of a concern about the potential conflict between corporate citizenship rules the regulations relating to taxation of the individual. Each country has an incentive to ensure that their local tax revenues are maintained; thus, this issues is particularly, important for online companies and foreign nationals looking to do business in the US. The U.S. has entered into a tax treaty with most major countries to avoid double taxation of income to the LLC or Corporation. The idea being that if, you have paid taxes overseas, then you are not required to pay more taxes on the funds that are brought into the U.S. However, with respect to individuals that live in international countries, but stay in the U.S. for less than 180 days, they are able to avoid having to pay income taxes in the U.S.

For more go to: www.corporateacquisitionsattorney.com, www.bipeblawg.com, www.iptrialattorney.com or www.chicagobusinesscounsel.com

The Fair Labor Standards Act-Overtime, Administrative Professional’s Exemption-The Employer Awarded Summary Judgment on Overtime claims!

Tuesday, December 10th, 2013

In a recent case involving claims for overtime wages by an employee, the S. Dist. Ct. of IL awarded a summary judgment to the employer dismissing the case. The employee was assisting sales professionals sell different products, but did not actually make sales him or herself. The employee exercised independent professional judgment and was not required to work with his supervisor daily.

The employee worked alone largely and was responsible for helping the employer’s sales staff sell financial products. However, the employee did not personally sell any financial products. The employee only, met his supervisor once, per year. The employee exercised his own professional judgment and often, advised his supervisor on financial products sold by the employer. Thus, there really was a lot of discretion that the employee had in performing his tasks, monitoring his own hours and schedule. However, the employee was clearly, not a sales professional or sales employee.
Consequently, the Employer was able to raise the Administrative Professionals Exemption provided by the Federal and Illinois Fair Labors and Standards Act (FLSA).

The Administrative Professionals Exemption to the requirement of having to pay overtime to an employee that works more than forty (40) hours per week. The Administrative Professional’s Exemption is an affirmative defense that an employer can raise to claims of violations of the FLSA. Generally, employees that work more than forty (40) hours per week are entitled to receive one and half times their regular hourly wages. However, the employee is only, required to pay overtime if, an employee works more than forty (40) hours in a single work week. The work week is generally, something that is defined by the employer, but it has to be a somewhat consistent work schedule or week for the employee.

However, if the individual is an Administrative Professional and makes more than $500 per week, then the Employer may have a good faith belief that the employee is not entitled to overtime wages or time and half times his or her hourly wage. Based on the Employer’s Summary Judgment Motion, the S. Dist. of IL found that the Employer had a good faith belief about the employee being an Administrative Professional under the Federal and IL FLSA. Thus, the District Court granted the motion for summary judgment and dismissed the employee’s claim for overtime wages under the Federal and IL FLSA.

For additional info: FLSA ER Awarded SJ on GF belief about Admin Professional Exemption If you have any concerns or questions about the FLSA, then please do not hesitate in contacting us.

Enforcement of Non-Competition and Non-solicitation became even more challenging for Employers!

Monday, July 1st, 2013

In a recent ruling the First District Court of Appeals made it even harder for Employers to enforce restrictive covenants. Prior to Fifield v. Premier Dealer Services Ruling, there was no bright line rule for the requirement for adequate consideration to support either, a non-solicitation and/or non-competition covenants.

In Fifield, the First District Court of Appeals made it clear that at least two years of employment is required to amount to adequate consideration for the enforcement of restrictive covenants, such as, non-solicitation and non-competition agreements. The Fifield Ruling has a immediate impact on your ability to protect your customer, employee, and vendor relationships.

There is also concern about protecting the use of confidential or trade secret information by former employees to operate competing enterprises. However, it is unclear, if, the Employer provided additional consideration, such as, bonuses, benefits, job titles, vacation time, job assistance, or other similar consideration, if it will be enough. The Fifield Ruling has an immediate impact on your corporate, employment, intellectual property (IP) and business strategies to maintain your competitive advantage.

Moreover, the drafting of an employee’s non-solicitation and non-competition provisions or agreements, must be altered to either, comply with Fifield’s duration of employment based analysis for adequate consideration or another means for demonstrating sufficient consideration to enforce restrictive covenants.

Attached is a copy of the Fifield Ruling for your review and consideration. If you have any concerns or questions, then please feel free to contact us or consult a business, corporate, employment, or IP law attorney.

See: Fifield Ruling

Executive Compensation Agreements and Negotiating a Compensation Package you Deserve!

Monday, April 29th, 2013

Unfortunately, all too often, I see very bright, talented and hardworking individuals make the mistake of negotiating their own executive compensation agreement or separation package. You should always consult an employment attorney before finalizing your executive compensation agreement or separation package. If you are an Accountant, Financial Advisor, Commercial Banker, Doctor, Lawyer, CFO, CEO, President, Vice President, Assistant Vice President, Manager, or other high level employee, then you should understand the value of working with a specialist that can provide insight that you do not possess. After all, that is what other individuals expect from you to help them make decisions.

However, because you are so used to relying on and trusting your own judgment, you fail to consider even routine or common issue such as the following: a) a neutral reference is almost standard in most industries; b) acquiring compensation for assisting in transfer of intellectual property is not uncommon; c) retaining IP rights to creations or inventions during personal time is a must; d) ensuring proper payment of bonuses, deferred compensation, profit sharing can be tricky; e) notice and cause requirements are subject to different interpretations by different courts; f) benefits are protected for older workers more than other workers; g) non-competition agreements may be unenforceable and you may be allowed to maintain some client relationships; and h) many other issues that you simply may not know you are entitled to receive. Therefore, it is vital to work with a good employment lawyer for you to get what you are entitled to under the law.

Often times, there are post-employment or ancillary modifications by employers that may not be enforceable for lack of consideration. Many times, releases or executed separations agreements may be revoked or cancelled to protect your benefits. Sometimes, there may be issues relating ambiguities in the severance, benefits, or salary provisions that allow you to claim more than what your employer believes is fair. However, unless you are familiar with how Courts interpret various ambiguities you may be inclined to accept the interpretation offered by your employer, even though it may be the wrong interpretation. Most of the times, if you negotiate on your own you are likely to leave compensation, benefits, and intangible job or career related rights on the table.

If you have any concerns or questions regarding negotiation of a good Separation Agreement or an Executive Compensation Agreement, then please feel free to contact us.