Legal

Trademarks: Identifiers of Source

A trademark is any distinctive symbol that is used to identify and distinguish a good or service of one seller or provider from the goods and services of others.  In short, trademarks are identifiers of source.  Although the primary legal justification for trademark rights is to protect consumers from source confusion, the recognition of trademark […]

A trademark is any distinctive symbol that is used to identify and distinguish a good or service of one seller or provider from the goods and services of others.  In short, trademarks are identifiers of source.  Although the primary legal justification for trademark rights is to protect consumers from source confusion, the recognition of trademark rights also serves the secondary economic benefit of permitting providers of goods and services to develop value in their brands.

Trademark rights and registration

In the United States, trademark rights are developed through appropriate use, even in the absence of a trademark registration issued by an individual state or the United States Patent and Trademark Office (“USPTO”).  These unregistered, “common law” rights are generally enforceable against “junior” third-party marks with which there is a likelihood of consumer confusion as to source, at a minimum within those geographic regions of the country in which the trademark owner has appropriately used the mark.

However, there are many benefits associated with obtaining a registration of a trademark from the USPTO, including but not limited to: nationwide rights and recognition of the mark; shifting of the burden of proof to a potential infringer on such issues as ownership, distinctiveness, and first use dates; having a record of the registration appear in the USPTO’s publicly-searchable database, making it more likely that a later-comer will discover the prior rights and refrain from adopting a mark that would be confusingly similar with the registered mark; and the right to use the registered trademark symbol ®, which often discourages others from adopting a too-similar mark.

Subject to some caveats, so long as a mark is used continuously, legal protection for that mark will not expire.  In fact, there are marks registered with the USPTO in the 19th Century that remain in force today.  Conversely, failure to properly use a mark for a period of time—typically three years—can lead to loss of rights in that mark and leave any trademark registration vulnerable to a cancellation proceeding.  A mark owner must also take reasonable steps to “police” confusingly-similar mark usage by a third party, or else the mark owner’s legal rights may be jeopardized.

Trademark searching and selection

Every consumer is aware of the ability of a word, logo, or slogan to serve as a source identifier, but trademark rights can also result—under appropriate circumstances—from distinctive and non-functional uses of sounds, colors, packaging, product configurations, and/or a good or service’s overall “look and feel.”  In theory, any perceptible symbol that is distinctive and non-functional with respect to an associated good or service can develop trademark rights as a source identifier if properly used.

Mark selection is a critical element of any brand development strategy.  To be registrable, a mark must first be distinctive, in that it is capable of distinguishing the good or service of one party from those of other parties.  Said another way, a mark is distinctive if the “likelihood of consumer confusion” question can be answered in the negative.  A registrable mark must also be devoid of any terms that might deceive consumers with respect to the geographic origin or other qualities of the associated good or service.  Last, but certainly not least, to be registrable a mark must not be “merely descriptive” or generic of the associated good or service or any characteristic thereof.  For example, the word “Apple” may not be able to function as a mark for apple juice or an apple orchard, but is capable of functioning as a strong mark for computers and smartphones.

Although there is no legal requirement to search the availability of a mark prior to its adoption in connection with a good or service, it is invariably sound business strategy to do so.  Trademark searches typically focus on two inquiries: (1) clearance, i.e., whether a mark can be adopted in connection with a particular good or service without subjecting a business to an accusation of infringement; and (2) registrability, i.e., the likelihood that a party will be able to obtain a registration for a mark in connection with a particular good or service, taking into consideration not only third-party trademark properties but also the distinctive nature of the selected mark.  A qualified professional may be necessary to help you confidently interpret the findings of any trademark search.

 


 

James J. Aquilina is an attorney and business counselor with extensive experience in all aspects of U.S. intellectual property law, including utility and design patent, trademark, and copyright law, with emphases on rights procurement, IP portfolio development and management, rights enforcement, and licensing.  He is a graduate of Rutgers University School of Engineering and the University of Pennsylvania Law School.  He can be reached by e-mail at jamesaquilina@designip.com.

The contents of this article are solely for educational purposes and do not constitute legal advice.  Any opinion provided in this article is solely that of the author and not that of his employer or any client thereof.

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Effective Estate Planning: A New Era

Truth be told, effective estate planning for individuals is not all about the Will, and in current times, rarely has been. The variety of personal and business assets owned by individuals, advancements in medical science resulting in longer lives, the ease of global travel and ownership of multiple homes, and noteworthy changes in tax law, […]

Truth be told, effective estate planning for individuals is not all about the Will, and in current times, rarely has been.

The variety of personal and business assets owned by individuals, advancements in medical science resulting in longer lives, the ease of global travel and ownership of multiple homes, and noteworthy changes in tax law, require greater attention to detail and more careful planning by the attorney and the client in the estate planning process.

An attentive and experienced estate planning attorney will rely on financial and other information provided by you in drafting appropriate estate planning documents for the client.  At a minimum, these documents should include a Will, Financial Power of Attorney, Health Care Power of Attorney, and Advance Directive/Living Will.  They might also include one or more desired trusts or other strategic tax planning or wealth transfer documents.  Everyone who seeks an estate plan that carries out his or her wishes and minimizes tax should focus on the following considerations.

  1. Income Tax Planning is the new Estate Planning.  The Tax Cuts and Jobs Act (TCAJA) effective this year includes not only a historic increase of the Federal Estate and Gift Tax exemption to $11.18 million per person in 2018 but also notable changes to the income treatment of certain business and personal income and limitations on the availability of longstanding deductions.  These changes warrant careful consideration of current and projected income tax planning opportunities in the course of planning for one’s estate.
  2. Complete and accurate financial and other information provided by you is the basis for your Estate Planning Attorney’s advice and documents.  An experienced Estate Planning Attorney will typically ask you to complete a comprehensive financial and personal questionnaire prior to your meeting and will carefully review your completed document with you.  Your information is both critical to the tax and legal advice rendered and forms the basis for the advice and estate planning and other documents that follow.
  3. View your Estate Planning Attorney, Accountant, and Financial Advisor as a team.  Certain issues arising in the estate planning process warrant communication and analysis among your trusted advisors.
  4. Pay careful attention to the beneficiary designations you have in place for your Qualified Retirement Plans, IRAs, and Annuities.  A common misconception in estate planning is that qualified retirement plans, IRAs, and annuities are governed by one’s Will, rather than by one’s signed beneficiary designation form filed with the account custodian.  There is no substitute for your scrupulous recordkeeping and careful tax and legal analysis with your Attorney when planning for tax-qualified retirement plans and IRAs.
  5. Similarly, pay careful attention to understanding and updating the ownership and beneficiary designations of your Life Insurance policies.   Understand the tax and other consequences of such planning.  Careful planning can prevent unintended tax or other consequences. 
  6. Consider your current and future gifting objectives as to your family and charitable organizations when planning your estate.  Your estate planning attorney can provide strategic and tax recommendations as to the timing of certain gifts during your lifetime as opposed to after your death.  Careful planning in light of the TCAJA is critical.
  7. Plan for the proper treatment of Digital Assets in your Estate Plan.  A good estate plan should clearly address your wishes as to your intended beneficiaries of assets such as the files of the hard drive on your computer, photographs stored in the cloud or posted to social media sites, cryptocurrencies, popular digital storefronts such as eBay™ pages, and valuable web domains, for example.
  8.  Devote appropriate attention to your and your beneficiaries’ citizenship and residency status and planning for your out-of-state and international assets.  These assets might include interests in real estate or other non-liquid investments and bank accounts.  Review these with your attorney to understand not only the tax implications and residency issues that might accompany these assets, but also the planning and any tax saving opportunities available to you.
  9. Plan for and communicate your wishes as to your funeral or other disposition of your remains, and other special arrangements that might include religious or other specific services, memorials, or celebrations.  Your estate planning attorney will advise you as to applicable law in this area and how to ensure that your wishes will be honored.
  10. Understand the best practices of recordkeeping for you, your family, and your business.  An adept estate planning attorney will guide you and your family with practical and useful information to maintain that information necessary to support your estate and tax planning objectives.

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An Ounce of Prevention: A Plaintiff Employment Lawyer’s Sincere Advice to HR

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future. Human resources issues are highly prevalent in the business […]

For over 25 years Attorney Kounoupis has represented employees and sued most of the Fortune 500 corporations, insurance companies, as well as federal, state and county governments. If your top managers and executives have not yet secretly consulted with him, they probably will in the future.

Human resources issues are highly prevalent in the business environment, and thus there is a steady barrage of HR seminars and conferences. Knowledge of the laws and regulations is easier than ever with such consultants and online resources. However longer, wisdom in the area of HR is harder to acquire.

In this vein, therefore, allow me some general observations gained from a valuable perspective: that of a 30-year plaintiff employment lawyer-for practical purposes the “adversary” (although we should all be interested solely in obtaining fairness and justice in the workplace).

We can begin with the question of who comes to see me? Employees, of all ranks, come to see me, “chiefs, cooks, and bottle washers” and in all protected categories: age, gender, race, ethnicity, religion, disability, sexual preference, whistleblowers, etc.… As varied as they may be, they all mainly have one unifying characteristic: They feel disrespected. You can spot the employee who will cause “a problem” by seeing who feels profoundly disrespected.

When do employees come to see me? It is useful to note that they often come when they are threatened, disciplined, fearful, angry- long before they are fired. Accordingly, in such cases, HR managers should be mindful that there is a high chance of a retaliation or hostile work environment case being filed since behind the employee’s interactions there is the watchful eye of counsel and counsel’s guidance.

he best advice in my experience is holistic. It comes from understanding that for most employees a job is not just a paycheck but also a source of dignity and self-esteem. They must be able to go home and look their family in the eye. Most long-time, employees feel they have provided loyalty and claim a deep sense of betrayal when disrespected, treated unfairly or bullied. (“I missed my kids’ birthdays for this!”). In my view, the best and most effective HR manager does not focus only on what is legal but humanizes the workplace. This type of HR professional is very valuable and a formidable opponent to the Plaintiffs lawyer in litigation and in front of the jury. Such an HR professional has avoided the pitfalls of threats, bullying, and abuse of power and has acted with sensitivity and respect for the human element. Rather than using organizational power to beat down and intimidate employees, there is a use of such power sparingly to raise consciousness and bring out the better natures of employees.

A sensitivity to the human element also picks up problems early. In most cases, potential victims signal their dissatisfaction early, and harassment will frequently test their boundaries before committing a violative act.

On a more practical level, of course, HR managers cannot get by solely by humanizing the workplace- they must also know the law. They must know how to communicate their knowledge of the workplace law as it applies to real life situations. They must know how to conduct a timely and reasonable investigation. For example, some concepts, such as when is “offensive to a reasonable woman” can most effectively be taught by skits and real-life vignettes and examples of such situations.

In terms of HR, most commonly observed pitfalls I would mention: lying, covering up, bullying, exaggerating discipline and not understanding what retaliation is, improperly applied “PIP’s.” Common legal errors and misconceptions include: not realizing how to jointly apply ADA/FMLA; not understanding ADA’s interactive process or “regarded as” ADA violations; not understanding gender discrimination vs. sexual harassment; thinking severe and persuasive for hostile work environment rather than or; not understanding the “reasonable woman” standard; not understanding the scope of circumstantial evidence of causation in such cases; not understanding stereotype evidence; not understanding how sexual preference cases can be brought- and other numerous areas of confusion.

Ultimately, if things degenerate to the worst conclusion potentially for all, what resonates with juries are three themes in employment cases: respect, responsibility, and use or abuse of power. In conclusion, human beings do not evolve at the same rate as technology, and so there will be continuing conflicts in the workplace caused by emotions and human weaknesses, ego, desires, prejudices, and lusts. Complex HR issues and conflicts will persist in the workplace where adults spend a great part of their life, and as a result, great care sensitivity and training is required.

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Why You Need a Will

We tend to place seemingly non-urgent tasks on the backburner. Most of us have a lengthy list of undesirable tasks that “collect dust” in the back of our minds. We promise we will organize the garage next month and convince ourselves we will start our diets as soon as the New Year commences. In reality, […]

We tend to place seemingly non-urgent tasks on the backburner. Most of us have a lengthy list of undesirable tasks that “collect dust” in the back of our minds. We promise we will organize the garage next month and convince ourselves we will start our diets as soon as the New Year commences. In reality, it often takes us years to complete these less-imperative tasks. We are guilty of reserving them for that ever-ambiguous “not today” when we consider them daunting or unappealing.

According to a 2014 study, almost 64% of Americans don’t have a will. Perhaps this unwillingness to create a plan for our deaths is threefold: thinking about death is unpleasant, we naturally ignore our mortality while going about our day-to-day business, and many of us hold a misconstrued belief that wills are only necessary for the wealthy. However, regardless of our financial or marital status, we all deserve the confidence of knowing all our wishes will be honored once we pass. The only way to ensure this is by preparing a will. Consider the following as you contemplate yours:

  1. Determine who will raise your minor children
    Nobody knows your children better than you; therefore, appointing a loved and trusted individual to care for them is imperative. The only way to appoint a guardian for them if you and your spouse pass is to name them in a will. Without one, a judge who has never met you or your children will decide who will raise them. I know from over thirty years of experience that deciding on a guardian is very difficult and may cause conflict between spouses, but a knowledgeable attorney should be able to help you make this complicated decision.
  1. Decide how your property will be distributed
    Having a will enables you to ensure that your property will be distributed according to your wishes. If you pass away without a will that that specifies how you’d like your property distributed, a judge will decide who receives it; this determination may not only go against your wishes but will cause disputes among your family members. In order to ensure your property ends up with whom you want when you die, it is essential to name your beneficiaries in a will.
  1. Protect your spouse
    Many people believe that if you die, your surviving spouse will gain ownership of all your property; however, this is false. Your spouse will only inherit half of your estate while your children inherit the other half. This will certainly be even more of a burden if your children are minors and your spouse will have to be named trustee by a court. This could amount to a lot of extra stress and cost to your spouse.
  1. Appoint an executor
    An executor handles your remaining financial responsibilities after you pass away. Not having an individual designated to this position in writing means a judge will name someone instead after you die.
  1. Facilitate the grieving process for your loved ones
    Losing a loved one is heartbreaking and financially burdensome. Years-long arguments between family members and lawyers about who will receive your assets can provoke a stressful, costly situation that exacerbates the grieving process and strains relationships. Providing your family with objective, clear-cut instructions on how you’d like your possessions allocated when you pass will lessen confusion as well as prevent intervention from the courts and permanent damage to your family.

Take the first step in eliminating “write a will” from your to-do list by calling your lawyer today.

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What Might Be Lurking In Your Real Estate Title? – The Importance of Title Insurance

If you have purchased real estate in Pennsylvania, chances are you purchased a title insurance policy.  But what is title insurance and what does it insure? A title insurance policy insures that land acquired (or mortgaged) is free of all defects, liens, and encumbrances.  While ownership itself may seem very straightforward, a buyer’s rights to […]

If you have purchased real estate in Pennsylvania, chances are you purchased a title insurance policy.  But what is title insurance and what does it insure?

A title insurance policy insures that land acquired (or mortgaged) is free of all defects, liens, and encumbrances.  While ownership itself may seem very straightforward, a buyer’s rights to enjoy the real estate purchased isn’t always clear.  There are many ways in which the ownership (title) of real estate can be in jeopardy.  Title insurance helps to reduce the possibility that title issues will arise by examining the status of title and proactively addressing potential issues, with the policy issued protecting against a loss if a buyer’s ownership rights are challenged.

Title insurance is substantially different than other types of insurance coverage.  Most other forms of insurance cover unforeseen future events, such as an accident, by pooling the risk of unanticipated losses.  Title insurance protects a property owner from events that may have occurred in the past, emphasizing risk prevention rather than risk assumption.  To prevent risk, a title search is performed and evaluated to identify possible risks in the chain of title.  Prior to issuance of the title insurance policy, risks are resolved to reduce or eliminate future risk, often unbeknownst to the property owner.

There are two forms of title insurance policies – owner’s policies and lender’s policies.  An owner’s policy protects the owner’s interest in the property while the lender’s policy protects the lender’s security interest in the real estate.  The most common owner’s policy insures ownership in the land, though other interests in land, such as leases, easements, and life estates can also be insured.

The owner’s policy is typically issued in the amount of the purchase price.  The policy is effective as long as the owner retains its interest in the land.  Although a title search is completed and examined in great detail, a hidden risk may still materialize after closing, causing the property owner great expense to defend its title to the property.  Title insurance provides protection against the hidden risks.  Examples of such hidden risks are:

  • A deed completed with a forged signature, which would mean the “transfer” evidenced by the deed never occurred;
  • Unknown heir[s] of a previous owner who claims ownership of the property;
  • Documents signed under an expired or a fabricated power of attorney;
  • Defective acknowledgments due to improper or expired notarization;
  • Corporate franchise taxes and liens on corporate real estate assets; and
  • Gaps in the chain of title.

In addition to identifying and resolving these potential title issues before the purchase is completed, an owner’s policy will pay valid claims and all defense costs against attacks on the title.

The buyer selects the title insurance company and typically pays the premium, though the party responsible for paying is negotiable.  Title insurance is regulated by the Pennsylvania Insurance Commission which sets the rates for title insurance.  Therefore, the premium for identical levels of coverage will the same regardless of the title insurance company selected.

A lender’s policy is issued to ensure the security interest held by a lender in real estate, securing the payment of a debt.  The loan policy assures the lender of the validity, priority, and enforceability of its lien (mortgage). A loan policy is issued in the amount of the loan.  Lenders commonly require that the borrower/owner obtain a policy benefitting the lender to insure its interest in the collateral.  (A lender’s title insurance policy does not protect the owner’s interest, though the owner’s policy can be issued for the same level of coverage without any additional cost to the owner.)

With this primer, you now have a better understanding of the title insurance policy that protects one of your most important assets.

 

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The 21st Century Litigator: You’re Only as Good as Your Technology

I often joke to younger attorneys that when I was a brand-new associate way back in 1989, it was a big deal to receive a fax – at that time, a piece of shiny paper cut from a roll in uneven sheets, and only used for emergencies. We still did most of our research in […]

I often joke to younger attorneys that when I was a brand-new associate way back in 1989, it was a big deal to receive a fax – at that time, a piece of shiny paper cut from a roll in uneven sheets, and only used for emergencies. We still did most of our research in a paper library using West Digests and actual books, and because Westlaw and Lexis were so expensive, we only used them if we had no other options.

By the time I left the practice of law to raise my kids five years later, I had managed to wangle a PC that the Word Processing Department (we actually had a Word Processing Department!) had deemed too slow and out-of-date; eight years later, when I returned to the practice of law, email was sort of a thing, and desktop legal research was common.

Nowadays, most of us use email for much of our correspondence; e-filing is now either optional or mandatory in many courts; large firms have implemented document management systems that put your entire case file at your digital fingertips; paralegals spend much of their time online compiling medical records and investigating cases; and most administrative tasks (scheduling, matter diary or “tickler” systems, and time entry, for example) are done via computer – or on a smartphone. The bottom line? Nowadays, there is no room in the law for Luddites – in fact, those who refuse to embrace technology may risk ethical sanctions and malpractice claims.

Technology is everywhere, and we rely upon our digital systems for everything from e-filing to medical records retrieval to trial presentations. Consider these innovations that may make the litigation lawyer’s job easier:

 

In the Office

  • Document management systems theoretically make it possible to go paperless by integrating digital communications and filings, internally-created documents, and “snail mail” documents into a database that can be accessed electronically from anywhere there is wifi access.
  • Document database products for e-discovery/document analysis and production make it possible to search huge volumes of documents using Boolean or keyword searches, thus identifying and coding documents quickly for production or internal use.
  • Document manipulation/editing solutions such as Nuance make document productions fast and easy by converting pleadings, photographs, medical records, or other documents into a PDF document that can be redacted, Bates-stamped, and marked with comments.

 

At Deposition

  • Real-time streaming services allow you to read testimony as it is being spoken and recorded by the court reporter.
  • Online deposition and exhibit databases provide paperless transcripts and exhibits any time, day or night, through the court reporting service portal – great for when the paper copy gets lost, or you’re working remotely and do not have access to a document management system.
  • Native evidence transfer lets you record a witness’s manipulation or annotation of a document.

 

In the Courtroom

  • Depending upon the courtroom, and your comfort level, all you need to try a case these days is an iPad and a video screen. There are a variety of trial presentation software programs that permit you to download documents and call them up via barcode scanner, keyword search, or Bates number.
  • For those who don’t want to be tied to their computer, there is a whole industry of trial technology vendors who will do the same thing (and organize your documents in binders, if you like), but at considerable expense, of course.

 

Smartphone Technology

  • Time entry apps let you enter your time wherever you are, eliminating the need to keep a written log you might lose or forget your time altogether.
  • Expense report apps allow you to submit invoices and receipts at the touch of a button for quick and easy reimbursement.
  • On-the-go legal research (Lexis and Westlaw) are both available for iPhone and Android.
  • Dropbox – if it’s saved to your computer, you can access it from your smartphone.
  • Apps such as CamScanner turn your iPhone or Android into a scanner – helpful when there’s only one copy of a document and no photocopier available.
  • There’s even a Black’s Law Dictionary app!

 

On the Horizon

It’s been suggested that in the future, jury trials may be done virtually with some or all jurors, attorneys, and witnesses participating digitally. For non-litigators, it may soon become possible to utilize artificial intelligence (AI) assistance in contract and corporate document review. AI products, such as Premonition and ROSS, analyze legal authority as applied to a particular set of facts to predict outcomes. Also, in development are software programs that skim and interpret large quantities of documents in order to pinpoint which are relevant and critical to a particular case.

However, you use technology in your practice, of course, make sure you have a good IT department – if the wifi is down, the server on the fritz, or the bandwidth at a snail’s pace, you need good people to back you up.  Learn how to make technology work for you!

 

Wendy R.S. O’Connor is a shareholder in the Allentown office of Marshall Dennehey Warner Coleman & Goggin where she represents clients in a wide variety of casualty and healthcare-related matters. She may be reached at wroconnor@mdwcg.com.

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Morality Clauses & Divorce: What You Need to Know

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children. Previously in the most recent edition of […]

When couples divorce, often the most difficult part is how the children are affected by the process and the behavior of the divorcing parents.  No one wants someone else raising their children.  However, that can be a very harsh reality to face for divorced people with minor children.

Previously in the most recent edition of Network, we looked at employment contracts for executives and high visibility employees or representatives, and how a company can manage the risk of illegal or otherwise improper behavior of those key persons.  With some foresight and smart contractual drafting, the company can protect itself from bad behavior through morality clauses.

Surprisingly, this very same issue – guarding against the poor judgment of others – appears in many, many divorce cases, particularly when there are minor children and custody issues involved. These issues can have a profound impact on many people, regardless of social status, wealth, religion or any other demographic category.

Even the most amicable divorce matter can be psychologically and emotionally challenging at times.  More often than not, those challenges can become extreme when mixed with the financial pressures that divorcing couples also face.  Add to that the difficulty of navigating custody issues, and the parties’ differing perceptions of what is in the child’s best interest, and you have a powder keg waiting for ignition.  Eventually, more often than not, this issue explodes into conflict.

When negotiating a custody agreement, invariably the parties have to confront a very real issue that all divorced people with minor children hate thinking about.  At what point can your ex-spouse introduce the children to a new person the ex-spouse is dating?  At what point can that new person stay overnight in the same house as the children?

While those two issues are related, they are totally separate issues to think about for your Marital Settlement Agreement.  The introduction and the first overnight stay (one would hope) are separate events.  What recourse do you have if the ex-spouse is doing something you think is risky or ill-advised?  What if your ex-spouse takes up with the very next person that comes along without knowing much about them?  It happens far more often than one would think.

The answer is that you do have an opportunity to try and mitigate this risk when negotiating the terms of the Marital Settlement Agreement that will control the conduct of both parties going forward.  This is the only point in the divorce process where you will have an opportunity to address this.  Once the Marital Settlement Agreement is signed, this door closes.

The mechanism you use is called a morality clause (sometimes more elegantly called a paramour clause).  This is a flexible term, and you can use this mechanism to address when the first co-habitation with the children in the house would occur.

What a morality clause does in this context is to prohibit overnight romantic guests of your ex-spouse while your ex-spouse has physical custody of the children. You don’t have to care what the ex-spouse does in their free time, but you should care what the ex-spouse does when the children are present.

For example, the following is typical of language you would use in an agreement regarding overnight stays: “no party shall have overnight guests of the opposite sex to whom they are not married or related by blood or marriage while the minor children are in the home during periods of physical custody and/or parenting time.”  As a drafting point, it should be noted that the preceding provision assumes a heterosexual couple, but the language can easily be modified when same-sex parents are involved.

Often, the terms and conditions of the Marital Settlement Agreement can be incorporated into a court order in the divorce litigation.  That significantly changes the means of enforcement. Once the terms of a Marital Settlement Agreement are incorporated into a court order, any breach of that Agreement potentially exposes the party to contempt proceedings.  It is an extreme position, but it is one that litigants in a divorce matter are willing to invoke at the drop of a hat.

 

Bryan Tuk is an attorney, author, and musician. His recent book: risk, create, change: a survival guide for startups and creators, is available on Amazon. You can find out more about Bryans writings at http://riskcreatechange.com

 

Tuk Law Offices represents clients throughout Pennsylvania and New Jersey, focused on startups, entrepreneurs, arts & entertainment law matters, copyrights, trademarks and nonprofit organizations. You can learn about Bryans law practice at http://tuklaw.com.

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Mandatory Flu Shots In The Workplace: What Can An Employer Legally Require

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get […]

Case study:  George Costanza’s employer implements a new policy which requires all employees to obtain an influenza vaccine prior to the upcoming flu season.  The policy permits employees to be excluded from the required vaccination if they can establish a medical or religious basis for the request.  Costanza informs his employer that he cannot get the vaccination due to his religious beliefs.  Specifically, Costanza’s religion of Festivus not only includes a metal pole, the airing of grievances, and feats of strength but also prohibits the use of vaccinations.  Costanza’s employer does not believe that this is a real religion and terminates his employment.  Costanza’s attorney subsequently files a lawsuit claiming religious discrimination in violation of state and federal laws.  Did the employer do anything wrong in this instance?

Analysis:  As an initial matter, under Title VII, the federal law which prohibits discrimination on the basis of religion, employers are required to provide reasonable accommodations for an employee’s sincerely-held religious beliefs.  Title VII does not contain a list of acceptable religions and includes more than just the traditional recognized and organized religions.  As such, in order to be protected under Title VII, an employee must merely show that he or she holds a sincere religious belief, which was the basis for the adverse employment action.

The Third Circuit has recently addressed what constitutes a sincerely-held religious belief in accordance with Title VII.  In Fallon v. Mercy Catholic Medical Center, the plaintiff, Fallon, claimed that his employer terminated him after he refused to get the required flu vaccine.  Fallon did not belong to any organized religious organization but held a strong personal and medical belief opposing the flu vaccine because he believed it might harm his body.  After Fallon informed his employer of his belief, the employer requested a letter from a clergy member to support his request.  Fallon could not provide such a letter to support his request.  As such, his employment was terminated.

Fallon sued his employer and claimed it had discriminated against him on the basis of his religion.  Fallon’s complaint was initially dismissed by the federal District Court in Pennsylvania because Fallon’s beliefs were not based upon any sincerely-held religious belief and, as such, not protected by Title VII.

The dismissal of Fallon’s claim was upheld by the Third Circuit Appellate Court, which conducted a specific analysis into whether Fallon’s beliefs with regard to the flu vaccine were in any way based upon religion.  The Court found that Fallon’s beliefs were not religious in nature due to the fact that they did not “address fundamental and ultimate questions having to do with deep and imponderable matters.”  Conversely, Fallon was concerned about the health effects of the flu vaccine.   Fallon merely did not believe that it was harmless to most people and desired to avoid taking the vaccine.  As such, the Court determined that Fallon’s request was not religious in nature, and therefore, not protected by law.

Turning back to Costanza, his employer should be concerned about the claim.  Contrary to the plaintiff in Fallon, Costanza has clearly articulated a religious belief to his employer, not one of a personal nature.  Under both state and federal law, once an employee articulates a sincerely held religious belief, an employer is required to provide a reasonable accommodation unless the employer can establish an undue hardship.  In this instance, it would be difficult to establish an undue burden considering the employer had carved exceptions into the policy itself.

Employers should also be mindful of how much they question an employee’s sincerely-held religious beliefs.  In this regard, the Court in Fallon specifically stated that asking for a “letter from the clergy” may be a violation of the law.  If an employee articulates a sincerely-held religious belief and can state the reasons for such a belief and the reasons for the accommodation request, the employer’s follow-up inquiry should be limited to determine if the accommodation can be provided.  Employers should not, generally, force employees to document their religious beliefs in order to obtain an accommodation.  As with Costanza, not all religions are organized or established and need not be so in order to be afforded protections under the law.

Employers who have union employees and are subject to collective bargaining agreements have additional concerns.  The National Labor Relations Board, which interprets and enforces the National Labor Relations Act, has stated that flu policies are subjects of mandatory bargaining.  As such, unless a “Management Rights” provision in the collective bargaining agreement permits an employer to unilaterally implement such a policy, the employer is required to sit at a table with the union and agree, generally, to the terms to be included in the policy.

Employers must be mindful of their legal requirements generally if an employee requests a religious accommodation and specifically if it is done in response to a mandatory influenza vaccine policy.  While the Fallon employer was lucky in that the employee’s belief was not “religious” in nature, that is not always the case and is rare for a court to find in such a manner.  Employers should not generally question an employee’s beliefs, but instead, determine if they can accommodate the request.  Additionally, employers should ensure that all policies, including an influenza vaccination policy, are handled in a consistent and uniform manner.  Doing so will hopefully avoid being subject to a lawsuit or being on the receiving side of the airing of grievances at Festivus.

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A Stain on American Jurisprudence – Korematsu v. United States

Years later, almost everyone would agree that the Executive Order was wrong: racially motivated, falsely justified as essential to national security, and supported by a mix of lies and misrepresentations. The legislation that followed permitted racial discrimination by the government. The deprivation of the Constitutional rights of American citizens because of their race, ethnicity, and […]

Years later, almost everyone would agree that the Executive Order was wrong: racially motivated, falsely justified as essential to national security, and supported by a mix of lies and misrepresentations. The legislation that followed permitted racial discrimination by the government. The deprivation of the Constitutional rights of American citizens because of their race, ethnicity, and religion was sanctioned by all three branches of the federal government. A majority of the United States Supreme Court approved the systematic racial discrimination against a minority group whose ethnicity made them enemies in the eyes of some. A vocal segment of the media, supporting the Executive Order, agitated the population with stories and opinion pieces designed to divide the nation and demonize the minority groups.

Facts were hidden from the public.  Outright lies were presented in court to rationalize the programs. The President justified his actions as a matter of military urgency. He ignored his own intelligence community and suppressed their findings that no threat to national security excused his actions.

Contemporaneous opponents of the Executive Order and legislation were few. Many years later they would be vindicated by political leaders on all sides. However, when they pointed out that the policies fell “into the ugly abyss of racism,” they were ignored. They were the dissenting minority when they pointed out that “racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life.”

What followed was the implementation of a policy to demean, degrade, demonize, and disenfranchise a vulnerable minority population, including tens of thousands of American citizens. The policy was not based on evidence of misconduct, but solely upon an individual’s ethnicity.  Years later, almost everyone would agree that it was wrong. It took many years, but the agreement was nearly unanimous and overwhelmingly bipartisan.

Forty years later, a Congressional report would call the Supreme Court decision upholding the Executive Order a “Stain on American Jurisprudence.” The bipartisan legislation would attribute the policies to “race prejudice, war hysteria, and a failure of political leadership.” Forty-six years later a new law would be signed by a Republican President authorizing the payment of reparations to those who suffered under the policies. A formal apology followed from the next Republican President two years later.

Sixty-seven years after the fact, the Solicitor General of the United States would publicly correct the lies used to support the policies. He would acknowledge that his predecessor in office withheld a report by the relevant intelligence agencies that found no military threat existed and no national security interests were served by the Executive Order. Finally, some seventy-four years after the Supreme Court affirmed the discrimination, the sitting Chief Justice of the United States Supreme Court admitted that the earlier decision was “gravely wrong” and its holding “has no place in law under the Constitution.”

An American citizen convicted under the laws enacting the Executive Order finally had his conviction overturned forty years after the Supreme Court had upheld it. The difference was that forty years later, the misconduct of the government had come to light and the arguments about military necessity and national security were proven to be lies. Long hidden documents demonstrating the racist motivations behind Executive Order Number 9066 were revealed.  It took many political leaders decades to acknowledge the enormity of the wrongness of the racist policies and to speak out against them.

Fred Korematsu, an American citizen, was convicted in 1942 of violating the Executive Order and the laws enacting it which called for the exclusion and internment of Japanese-Americans. His conviction was upheld by the United States Supreme Court in a 1944 decision that many see as historically shameful as the Dred Scott decision and Plessy v. Ferguson.

Years later, almost everyone would agree that the Executive Order, the legislation, and the Supreme Court decision represent a stain on American jurisprudence. When President Gerald Ford officially terminated the Executive Order in 1976, he said, “We know now what we should have known then; it was wrong.”

A Congressional report led to legislation in 1988 signed into law by Ronald Reagan granting reparations. Two years later, George H.W. Bush issued a formal apology and the first of the reparation payments. In 2011, the United States Solicitor General acknowledged that his predecessor in 1944 had withheld a report by the Office of Naval Intelligence that concluded Japanese-Americans did not pose a military threat and there was no evidence they were disloyal to the United States.

What everyone now knows to be wrong was, at the time, attributable to “race prejudice, war hysteria, and a failure of political leadership.” The United States suffers still from these shortcomings. We should not have to re-learn shameful lessons from our past.  We should not wait decades to confront and correct obvious acts of injustice.

Fred Korematsu made the point clear late in his life. “No one should ever be locked away simply because they share the same race, ethnicity, or religion as a spy or terrorist. If that principle was not learned from the internment of Japanese-Americans, then these are very dangerous times for our democracy.”

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What Employers Need to Know About Pennsylvania’s Medical Marijuana Law

In April 2016, Pennsylvania legalized medical marijuana, becoming the twenty-fourth state to do so. Although it has taken nearly two years for the Commonwealth’s regulatory system to be designed and implemented, medical marijuana is now readily available at a number of licensed dispensaries throughout the state. With tens of thousands of Pennsylvanians registered to become […]

In April 2016, Pennsylvania legalized medical marijuana, becoming the twenty-fourth state to do so. Although it has taken nearly two years for the Commonwealth’s regulatory system to be designed and implemented, medical marijuana is now readily available at a number of licensed dispensaries throughout the state. With tens of thousands of Pennsylvanians registered to become certified to use medical marijuana and more dispensaries set to open in the coming months, employers must be prepared to address new issues regarding medical marijuana in the workplace. This article will answer some of the most common questions that employers have asked in trying to navigate the haze of Pennsylvania’s Medical Marijuana Act (the “Act”).

  1. What Conditions Qualify an Employee for Medical Marijuana?

Under the Act, “medical marijuana” refers to marijuana obtained for certified medical use by a Pennsylvania resident with a “serious medical condition.” The Act provides an extensive list of qualifying “serious medical conditions,” including: ALS/Lou Gehrig’s disease, autism, cancer, Crohn’s disease, epilepsy, glaucoma, HIV/AIDS, Huntington’s disease, multiple sclerosis, Parkinson’s disease, post-traumatic stress disorder, sickle cell anemia, opioid abuse, or any terminal illness, neurodegenerative disease, or spinal cord damage.

  1. What Forms Can Medical Marijuana Take?

The Act limits “medical marijuana to the following forms: pills, oils, topical forms (e.g., gels, creams, or ointments), tinctures, liquids, or other forms appropriate for administration by vaporization or nebulization. Although dry leaves or whole plants are allowed for vaporization or nebulization, they cannot be smoked or used in edible form under the Act.

 

 

 

  1. Can Employees Use Medical Marijuana at Work?

No. The Act makes clear that employers are not required to accommodate the use of medical marijuana at work. The Act also allows an employer to discipline an employee for using medical marijuana at work or for working while under the influence of medical marijuana when his/her conduct falls below the standard of care normally accepted for that position. In addition, the Act provides that employers can prohibit employees from performing certain safety-sensitive tasks while under the influence of marijuana, such as operating or controlling certain chemicals or high-voltage electricity.

  1. What About the Americans With Disabilities Act?

Under the Americans with Disabilities Act (“ADA”), “qualified individuals with a disability” are generally entitled to reasonable accommodation in the workplace. However, a person who is currently engaging in the illegal use of drugs is not a “qualified individual with a disability” for ADA purposes. Although medical marijuana has been legalized in Pennsylvania (and a majority of states) and the possession of small amounts of marijuana has been decriminalized in several Pennsylvania municipalities, all forms of marijuana remain illegal under the federal Controlled Substance Act. Accordingly, Pennsylvania employers are not required to accommodate an employee’s use of medical marijuana under the ADA.

  1. What Employment Protections Does the Act Provide?

The Act prohibits employers from discharging, threatening, refusing to hire, discriminating against, or retaliating against an employee “solely on the basis of such employee’s status as an individual who is certified to use medical marijuana.” As this provision has not yet been fully litigated in Pennsylvania’s state or federal courts, it remains to be seen just how much workplace protection the Act affords to Pennsylvania employees in practice.

  1. What Should We Do Next?

There are several key measures that an employer can take to ensure that its workplace remains both drug-free and legally compliant. As an initial matter, an employer should review, revise, and disseminate its policies and handbook to ensure that employees are clearly notified that testing positive for an illegal drug, including medical marijuana, is a policy violation that allows the employer to take adverse action to the fullest extent permitted by law. An employer should also discuss with its vendors about how positive marijuana tests will be addressed and reported. Most importantly, an employer must enforce its policies consistently among all employees and ensure that all adverse employment actions are supported by timely and thorough documentation. With the right knowledge and preparation, Pennsylvania employers can ensure that their efforts to comply with state and federal law don’t go up in smoke!

By: John Buckley, Esquire, Norris McLaughlin & Marcus, P.A.

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