Legal

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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What A Business Owner Should Expect From A Business Attorney

“Don’t just advise me.  Fix what needs fixing!” “Don’t just treat me as another client.  Invest yourself in my business as if it were your own!” These statements are likely to be heard from a business owner who recognizes the need of sound legal assistance, whether it be an owner of a fairly new business […]

“Don’t just advise me.  Fix what needs fixing!” “Don’t just treat me as another client.  Invest yourself in my business as if it were your own!”

These statements are likely to be heard from a business owner who recognizes the need of sound legal assistance, whether it be an owner of a fairly new business or a well-established company looking to grow.

A seasoned business law firm with attorneys and a business specialist on staff who possess first-hand knowledge of what it takes to start, build and run businesses, having experienced and learned from the failures that come from building successful enterprises, can bring that “something extra” to the table for business clients.

A business owner may simply need restructuring of the operations to maximize profits, or he/she may have inherited a company that has an antiquated culture resistant to change.  Even if the owner is aware of the issues, it is a challenge to make the changes needed to further the company while dealing with putting out the proverbial fires that occur daily.

What would a law firm with the credentials described above (“the Law Firm”) do to solve a business owner’s problem?

  • First, the Law Firm’s business specialist would thoroughly evaluate the structure of the organization, its cash flow status, personnel, operations, financial controls and tools, marketing, customer relations, vendor (IT) services, its advisors, and in-place employer-employee policies/agreements.

 

  • The business specialist would share such findings with the business attorneys on staff to develop a plan designed to address the specific needs of the business.  Depending on the size and age of the business, the plan could include a lifespan of anywhere from three to twelve months.

 

  • The proposed plan would then be presented to the business owner for a thorough review, as well as follow-up sessions to allow time for the owner to fully digest the recommendations and allow for modifications of the plan.  Upon approval of the plan, a Letter of Engagement would be formed to stipulate the services to be provided over the course of the plan.  The parties would agree to an initial retainer gauged for the work to be done in phases, with the understanding that the retainer would be replenished on an as needed and mutually agreed upon basis.

 

  • The business specialist of the Law Firm would then become a prominent advisor taking the lead on restructuring the business as well as ensuring the business owner has a strong grasp on the business by teaching him/her how to “know their numbers.”  This will allow the owner the ability to deploy new capital/structured debt to grow their business.

 

  • In a phased manner, the business attorneys of the Law Firm would address the relevant legal matters, serving as the quarterback to the client’s other advisors to integrate the services of all the company advisors into the plan’s implementation in a collaborative and cost-efficient manner.

 

  • Like any plan, changes will be required in both timing and substance due to the “reality on the ground.” Particular focus will be on the client’s cash flow and the reactions of the client and personnel to the significant changes in the company’s business culture that will be required to successfully implement the business plan.

 

The process described can be tailored to a myriad of business situations and challenges. It takes foresight and courage for any owner of a privately held business that needs the kind of help described in this article to agree to the expenditure required to underwrite this approach.  However, with the assistance of the Law Firm with the credentials described, such as Rust Law LLC, the business owner will realize that the cost of this service pales in comparison to the costs incurred prior to the plan’s implementation.  Moreover, he/she will know that the reorganized enterprise has staying power, capable of besting its competition for the foreseeable future.

Alicia E. Emili, Esq. – Mark Reese, Business Specialist – Robert N. Rust III, Esq.
RUST LAW LLC

If you are interested in discussing the contents of this article further, you are welcome to contact any of the co-authors at the offices of Rust Law, LLC at (610 821 0484).

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It’s a Trademark Because I Say It’s a Trademark

How do clients – current or prospective – separate messaging about your business’s products or services from those of your competitors?  Every marketing department, company executive, and entrepreneur knows that the answer is branding.  And so, the value of investment in brand marketing is abundantly clear.  But, what if you’re not Coca-Cola® or Nerf®?  What […]

How do clients – current or prospective – separate messaging about your business’s products or services from those of your competitors?  Every marketing department, company executive, and entrepreneur knows that the answer is branding.  And so, the value of investment in brand marketing is abundantly clear.  But, what if you’re not Coca-Cola® or Nerf®?  What if you’re Lehigh Valley Oats or Penn Machine Parts?

A trademark is any word, name, symbol, or device, or any combination thereof that a business uses to uniquely identify or distinguish its products or services from those of its competitors and to indicate the source of the goods or services.  Federal trademark laws permit the owner of a trademark to stop competitors from labeling or advertising their products in any way that is likely to cause a reasonable consumer to be confused as to the source of those products, as it may lead the consumer to incorrectly associate the products with the rightful trademark owner. But, generally speaking, federal registration of a trademark is not available if the elements of the mark merely describe the goods or services, or their characteristics, including their geographic origin.

Consider the advantage conferred upon a lightbulb business permitted to register the trademark in the word BRIGHT.  As a shopper perused the teeming lightbulb aisle of a big box home improvement warehouse, what if one lightbulb could claim the exclusive right to display that descriptive word – BRIGHT – upon its packaging?  BRIGHT – the word that tells the consumer all she needs to know.  This is the bulb she wants to provide the bright light she seeks.  She knows it is because it says so.  She also knows that none of the other bulbs says it is bright.

The Lanham Act – the United States’ federal trademark law – permits registration of an otherwise descriptive mark if the owner of the mark can prove that it has “acquired distinctiveness.”  The legal history around the Lanham Act also refers to this as “secondary meaning.”  If an applicant for federal trademark registration can offer proof that it has used the trademark for more than five years and that the primary significance of the mark in the minds of the consuming public is not the product but the producer, the US Patent and Trademark Office must permit registration of the mark.

The power of acquired distinctiveness has benefited local companies with names like the fictitious examples above.  Consider Bethlehem Steel and Lehigh Valley Dairy Farms® (a registered trademark of Dean Foods Company).  But, while the rights of distinctiveness accrue over time, they need not accrue by chance.

In addition to permitting registration of trademarks, the Lanham Act affords protection of common law trademarks.  That is trademarks that are not registered but indicate source because the business uses them in a manner that causes them to indicate the source.  The Lanham Act also permits registration of descriptive marks that have not yet acquired secondary meaning on the Supplemental Register of the USPTO.  By leveraging the legal rights afforded under these sections of the law, in combination with legally strategic usage of otherwise descriptive marks, businesses may pave their own way to acquired distinctiveness in as little as five years.  That is, businesses may use their five-year plan to capture broad, valuable identity in trademarks that immediately convey to consumers the quality, characteristics, advantages, and value of their products.  Moreover, a business that is successful in this regard may also preclude competitors from using those terms or terms likely to cause confusion with respect to the source of the products or services.

Organizations working together through: their executives – with strategic planning; their Marcom department – executing brand marketing; and their legal advisers – guiding best practices for forming legal foundations for distinctiveness claims – can potentially grow the company’s ownership of highly advantageous, meaningful terms that become suggestive of the company’s goods and the goodwill they carry.

Douglas Panzer, Esq.
Of Counsel For Intellectual Property

Fitzpatrick Lentz & Bubba

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Enforceability of Prenuptial Agreements

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one. Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language […]

When contemplating marriage, there is nothing more romantic than a prenuptial agreement right? Acknowledging that discussing a prenuptial agreement with your potential spouse may not be the most comfortable topic of conversions, it certainly is an important one.

Both parties to a prenuptial agreement should be exceedingly careful when entering into the agreement. The language that is crafted at the time of execution will be enforced explicitly if a divorce is filed. Accordingly, all the heavy lifting with regard to the agreement is done while the couple is likely quite happy and not anticipating any of the problems that may arise.

A prenuptial agreement will only be tested if a couple is considering divorce. Until that time, it is likely that neither party has revisited the document. There could easily be decades between when the pre-nuptial agreement was crafted, and when it will be enforced.

23 Pa.C.S.A. §3106 is the Pennsylvania law that addresses pre-nuptial agreements. The law does not focus on what must be included in a pre-nuptial agreement but sets out what you must show if you want the Court to declare the agreement is not enforceable. The Court will always start from the assumption that the pre-nuptial agreement is valid and enforceable. As such, the spouse who is unhappy with the terms and wishes to discard the agreement has the burden to show, by clear and convincing evidence, that the agreement should not be enforceable.

There are limited ways in which a spouse can argue that a pre-nuptial agreement is unenforceable.

(1) A spouse can argue that they did not execute the agreement voluntarily. This is very difficult to do. A pre-nuptial agreement will generally have a provision in it stating that both parties are entering into the agreement knowingly and voluntarily. On occasion, a spouse will argue that they signed the pre-nuptial agreement under duress, so the agreement was not voluntary. Duress in this situation is nearly impossible to prove. This is because in Pennsylvania, duress must generally include a threat of physical violence. (Think gun to your head.) A threat from one spouse to the other threatening to take custody of the couple’s children or not follow through with the wedding are not threats that rise to level of legal duress. If you are a competent adult, who can read the pre-nuptial agreement in the language it is drafted in and you agree to sign it, then you have voluntarily agreed to the terms as far as the Court is considered. This is true even if you did not read the document but chose to sign.

(2) The other way a spouse can argue a pre-nuptial agreement is not enforceable is to show that when the agreement was drafted and signed, there was not full and fair disclosure of assets between the parties. This is the conventional argument made by a spouse seeking to discredit a pre-nuptial agreement, and generally the more successful one. The idea behind a pre-nuptial agreement is that both parties have laid all of their cards on the table so to speak. Both parties agree to disclose all of their assets, so the final agreement is a fair distribution of the total assets. If a party is unaware of an offshore bank account because that fact was not disclosed when drafting the pre-nuptial agreement, you may argue the agreement should not be enforced due to fraud or misrepresentation. At that point, you could take the matter before the Court, have the pre-nuptial agreement invalided and negotiate a completely new agreement.

Of note is that the terms of a pre-nuptial agreement are not required to be fair. The Courts will allow parties to enter into bad deals. In fact, Courts have found that parties are bound by the agreement, even if it was not read or fully understood. The duty to read the agreement or seek legal counsel before signing is on the parties. If a party blindly enters into a pre-nuptial agreement with the romantic notation that their prospective spouse would have their best interest at heart, they will be bound by that agreement unless one of the above-limited exceptions applies.

Attorney Kellie Rahl-Heffner of Gross McGinley LLP provides guidance to individuals in divorce matters, child custody, child support and protection from abuse cases. For more information, contact her at krahl-heffner@grossmcginley.com or 484-224-2802.

By: Attorney Kellie Rahl-Heffner of Gross McGinley LLP

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The Role of Intellectual Property and Human Capital in Succession Planning

Succession planning refers to the sale or other transfer of a privately-owned business to the next generation of a family business, an employee manager or management team, or an outside purchaser. A good succession plan facilitates the successful transition of the business and ensures its continued viability, in addition to providing a return on the […]

Succession planning refers to the sale or other transfer of a privately-owned business to the next generation of a family business, an employee manager or management team, or an outside purchaser. A good succession plan facilitates the successful transition of the business and ensures its continued viability, in addition to providing a return on the investment of the current owner. However, studies by the Small Business Administration show that less than 30% of the small businesses who are likely to experience a change in ownership over the next ten years have written succession plans and contingencies. One key element to any good succession plan is determining and monitoring the value of the business. Accounting professionals and valuation experts can help you establish this value, based on cash flow and liquid assets, profits, taxes, liabilities, fixed assets, such as real estate and equipment, and intangible assets. While EBITDA gets a lot of play in the business world, human capital, or the value of knowledge and experience in your employees, and intellectual property (“IP”) are just as important. If not expertly cultivated, both classes of assets can depreciate, and your business succession plan can fail before it gets off the ground.

Almost every business, no matter how small, has valuable IP upon which it relies, and most businesses will have IP in each category, determinable through an IP audit. Copyright law protects Web sites, catalogs, software, textual and digital content. Typically, copyrightable materials are protected from use by third-parties for the life of the creator plus another 70 years. For content created by the employees of a business, AKA “works-for-hire,” the owner of the content (hopefully, the owner of the business and her/his successor-owners) can exclude others from using the content for 120 years from the date it was created or 95 years from the date it is published, posted, or distributed (whichever comes first).  Trademark law covers business names, logos, and product packaging. Service and trademarks registered with the U.S. Patent & Trademark Office (the “USPTO”) will live forever, as long as they are continuously used in commerce, maintained with the USPTO via periodic confirmations of use and payment of fees, and protected against infringement. Inventions, processes, improvements, and formulations fall under the patent law which protects the innovation developed by you or your employees. Patents in the U.S. are granted by the USPTO and last 20 years if maintained through periodic payments to the USPTO. Design patents, which protect ornamental elements of functional items, are also issued by the USPTO and last 15 years from the date they are granted. Federal and state trade secret laws have evolved to give business owners a perpetual and powerful option to protect proprietary information and trade secrets, such as detailed processes that cannot be reverse engineered, valuable research results and data, business plans, and databases of information regarding products, services, customers, and/or prospects. Trade secrets can be maintained and enforced forever as long as the information has demonstrable commercial value, derives value from being maintained as a secret, and maintains its secret status by virtue of reasonable measures taken by the owner of the information.

Similarly, key executives and employees can represent immense value to an on-going business, through their exceptional performance, leadership or importance to the culture of the company. Business owners looking to identify the future leaders of their company and the foundation for its future success should identify these key individuals, as well as the most critical roles and positions. Determine ways to keep talented individuals on board, as well as potential successors for the various positions and systems in place to ensure success for those roles and departments. As noted above, despite the fact that many business owners lack the time and/or courage to face the prospect of retirement or an unexpected need to hand over the reins to their business, a succession plan can be the best chance of success and survival for small businesses. Family businesses (and the families themselves) run the risk of disruption and self-destruction without a clear-cut succession plan, in addition to potentially deleterious effects of poor estate and income tax planning. Finally, succession plans guarantee a secure retirement for the current owner(s)/leader(s) of the company while providing a level of control over the process. The thrill of creation, creativity, and control is likely what led you to take the risk of starting your own business; don’t cede this power now for fear of facing the future.

By: Nicole J. O’Hara, Esq
Saul Ewing Arnstein & Lehr, LLP

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Morality Clauses & Employment Agreements: What Employers Need to Know

 Employers take risks every day with the people that the company hires – including top level managers and CEOs.  So, do brands and sports teams when they hire spokespeople or athletes on multi-year, multi-million-dollar contracts.  Anytime there are significant dollars committed to a single person over a long period of time, real risk exists. One […]

 Employers take risks every day with the people that the company hires – including top level managers and CEOs.  So, do brands and sports teams when they hire spokespeople or athletes on multi-year, multi-million-dollar contracts.  Anytime there are significant dollars committed to a single person over a long period of time, real risk exists.

One of the most impactful traits of the people you hire is their moral character.  This is especially true when the person you hire is your spokesperson, or your chief executive, or otherwise is the face of your organization.  One of the most impactful tools you have to control your contractual relationships is called morality clauses.

Long-term, multi-million-dollar employment contracts are a double-edged sword.  They can be a sign of your company’s financial health and purchasing power for star talent.  If, however, the company finds itself embroiled in a star employee’s misconduct, that same contract can become a massive liability if it is not structured properly.

Before we delve into the details of the application of a morality clause, consider this hypothetical example:

The Star Employee in a Regional and Growing Business:  Imagine that you are on the board of directors of a high-profile company.  You have hired a star performer to be your Chief Executive Officer.  He is personally responsible for generating 30-40% of the company’s annual revenue.  This continues for years. Suddenly, one day the city newspaper published a thorough, well sourced and researched story alleging the CEO was involved in multiple incidents of sexually inappropriate conduct both inside and outside the workplace with other employees.  The Board of Directors now needs an exit from the CEO’s multi-year employment contract.

Here is the question: When entering into a large or high-profile contract with an employee that has high visibility on your company or brand, how do you leave room to exit the deal if your star employee engages in conduct that the company finds socially or morally unacceptable?

This is where a well-drafted morality clause comes in useful.  A morality clause will enable an employer to unilaterally terminate an employment agreement if the employee engages in certain defined types of behavior.  The actual language of morality clauses can vary greatly from industry to industry.

Here is a sample morality clause:

If Employee commits any act, which is an offense involving moral turpitude under federal, state or local laws, or which might tend to bring Employee to public disrepute, contempt, scandal or ridicule, or which may embarrass, offend, insult or denigrate individuals or groups, or that may shock, insult or offend the community or the Company’s workforce or public morals or decency or prejudice Company, or which results in actual or threatened claims against Company, Company shall have the right to unilaterally terminate this Agreement without liability for the unpaid portion of any compensation due hereunder upon written notice to Employee.

 As you can see, there is quite a bit of subjectivity involved in the above language.  This is necessary because it gives the Employer more latitude to act when necessary because, at the time the contract is signed, future events and future employee behavior are completely unpredictable.

The balancing act involved is that Employers must be cautious to not throw due process out the window.  However, in today’s social media, a full-fledged existential scandal can erupt and spread within hours.  An employer that is slow to react (or is perceived to be slow to react) can find itself in the crosshairs of an angry online mob because of the misdeeds of one of its employees.  Engagement, timing, and speed are crucial.

If your employment contracts have due process provisions which require a degree of investigation before taking disciplinary action, you must ensure that the due process clauses work coherently with the morality clauses.  An independent investigation by an outside firm can take weeks or months to complete.

It is extremely important to note that morality clauses are also routinely used in family law matters.  Typically, morality clauses are part of custody agreements or a divorce settlement agreement also.  We’ll dive into that in the next article.

By: Bryan Tuk, Esq., Tuk Law Offices

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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A Lesson Before Dying

What to Do Now to Make Things Easier for your Loved Ones Later None of us wants to think about our mortality.  But the reality is we were born to die.  More likely than not, the personal representative of your estate will be a loved one.  Upon your passing, that individual will undoubtedly be struck […]

What to Do Now to Make Things Easier for your Loved Ones Later

None of us wants to think about our mortality.  But the reality is we were born to die.  More likely than not, the personal representative of your estate will be a loved one.  Upon your passing, that individual will undoubtedly be struck with grief and everything else that accompanies the mourning process.  Unlike the profound work written by Earnest J. Gaines, this “Lesson Before Dying”, will provide you with an overview of what to do now to make things easier for your loved ones later.
Your personal representative will need to locate your debts and assets.  You should maintain a current list of the existence and location of bank and investment accounts, retirement accounts, life insurance policies, autopay and auto deposit accounts, credit cards, personal and business contacts (including email addresses), and medical information (primary care physician, specialists, hospitals, treatment centers, etc.).
Gathering most of this information can prove difficult as most of it may be hidden with passwords and firewalls on your electronic devices.  It would be helpful to maintain a current inventory of digital assets, account numbers, and other pertinent information for easy access.  In addition, you should keep an up to date list of usernames and passwords, along with detailed instruction of how to gain access to the accounts (e.g., answers to security questions, PIN code, etc.).  Understanding the sensitive nature of this data, it is imperative that you keep the information safe but accessible.  It may be helpful to inform your personal representative of the location of this information for when the time arises.
Once the assets have been located, your personal representative will then be responsible for the distribution of your property in accordance with your Last Will and Testament, including payment of debts and expenses.  This requires that your Will be presented to the Register of Wills for probate.  Your personal representative must prove the validity of your Will, which requires that the two subscribing witnesses must testify that the Will is genuine.  The personal representative then takes an oath to faithfully carry out the instructions of your Will.  The Register of Wills then issues Letters of Testamentary and a Short Certificate to your named personal representative of your Estate.  These documents will be necessary to access your funds that may be held in banks, stocks, etc.  They are also necessary for the transfer of titles to vehicles, property, and so forth.
Once your Estate’s debts and expenses have been paid, your personal representative will be responsible for payment of the remainder of funds to your beneficiaries.  Your representative may wish to simply write checks to each and end the administration process in its entirety; however, that would be a mistake.  Prior to issuing those checks, it is important that the individual seek protection from potential liability resulting from the management of your Estate.  One of the ways that this can be accomplished is by obtaining a Family Settlement Agreement.  This Agreement is signed by the beneficiaries to your Will and attests that they are all aware of the funds held by the Estate, the debts, and expenses that were paid from your Estate and the amount that remains for final distribution.  Their signature represents their intent not to hold your personal representative liable for any mistakes that may have occurred during the administration of your Estate.   If the beneficiaries cannot agree, the individual may file an accounting with the Orphans’ Court and obtain an order of the court approving the proposed final distribution.

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Is My Auto Insurance Coverage Any Good?

“I have auto insurance.  But I’ve never actually looked at it, and I have no idea what it covers.”  If this sounds familiar, you are not alone. As personal injury lawyers, we can appreciate the importance of adequate insurance.  It often is the most critical piece to resolving a case.  That is because even where […]

“I have auto insurance.  But I’ve never actually looked at it, and I have no idea what it covers.”  If this sounds familiar, you are not alone.

As personal injury lawyers, we can appreciate the importance of adequate insurance.  It often is the most critical piece to resolving a case.  That is because even where a monetary judgment is obtained in court, Pennsylvania debt collection law makes it no easy task to actually obtain the money from that judgment.  As the cliché goes, without insurance, your judgment is often worth only as much as the piece of paper it’s written on.

Auto insurance is no exception.  Thus, when we meet with new clients who have been injured in a car accident, one of the first things we do with them is review their automobile insurance coverage, which generally is found on the “Declarations Page” of their policy.  Sadly, very few of our clients ever review their Declarations Page before getting into a car accident.  Needless to say, it is too late at that point.  That’s why it is critical to understand today what exactly is covered by your auto insurance.  Outlined below is an explanation of some of the more important coverages you will likely encounter when reviewing your auto insurance. *

Full Tort vs. Limited Tort

Under Pennsylvania law, insureds may choose a “Limited Tort” option, which saves them a small percentage on their premiums each month. In exchange, those individuals are entitled only to receive compensation for economic loss arising from their personal injury following a car accident (e.g., unpaid medical expenses, wage loss, etc.).  With some exception, unless the person who selects Limited Tort sustains serious injury from a car accident, that individual is precluded from maintaining a claim for any noneconomic damages (e.g., pain and suffering, loss of life’s enjoyment, etc.).

First Party Medical Benefits

Pennsylvania is a “no-fault” state when it comes to medical coverage for auto accidents.  That means even if someone else is at fault and causes you injury from a car accident, your own auto insurance company will cover the expenses for your medical treatment (up to a pre-selected maximum amount and so long as the treatment is considered reasonable, necessary, and related to the car accident).  Pennsylvania law requires a minimum of $5,000 per person in medical coverage, but most insurance companies offer additional protection up to $100,000.

Liability Protection and Uninsured / Underinsured Motorists Protection

Liability protection refers to the amount of coverage you have if someone else brings a personal injury claim against you following a car accident.  Under Pennsylvania law, the minimal amount of liability coverage required to operate a vehicle is $15,000 per person.  That means if someone with a “minimal limits” policy hits you with their vehicle, the most amount of insurance available to collect from that person for personal injury compensation is $15,000.

Where an at-fault driver has inadequate or no insurance, an injured victim would normally be left with no recourse for compensation except trying to seize personal assets (which, as mentioned before, is easier said than done).  Fortunately, in Pennsylvania, auto insurance companies offer protection known as Uninsured and Underinsured Motorists Coverage (“UM/UIM”), which represents the maximum amount your auto insurance company will pay if there is inadequate or no insurance coverage from the driver who hit you.

In sum, it pays to review your auto insurance coverage.  While you may wind up paying a few extra dollars in premiums per month, the additional coverage can mean the difference between being fully compensated for your personal injuries and not.

*Communication of information by, in, to or through this article and your receipt or use of it (1) is not provided in the course of and does not create or constitute an attorney-client relationship, (2) is not intended as a solicitation, (3) is not intended to convey or constitute legal advice, and (4) is not a substitute for obtaining legal advice from a qualified attorney. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.

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Harassment in the Workplace: It’s Not Just for Hollywood

Harvey Weinstein, Louis C.K. Matt Lauer, Marshall Faulk, James Franco, Mario Batali, Charlie Rose, Ryan Seacrest…who’s next up to the plate? One year ago, this would have been a list of successful and famous men. Today, it’s a list of people who have been accused of harassment by female co-workers. It seems like every day […]

Harvey Weinstein, Louis C.K. Matt Lauer, Marshall Faulk, James Franco, Mario Batali, Charlie Rose, Ryan Seacrest…who’s next up to the plate? One year ago, this would have been a list of successful and famous men. Today, it’s a list of people who have been accused of harassment by female co-workers. It seems like every day another name pops up into the newsfeed with allegations of harassment. As a result, employers are scrambling to try to take steps to prevent their name from being the next one in the news. What, exactly, can employers do to prevent or, at worst, remedy any such claims? The answer is not always easy, but there are some steps an employer can take to place it in a position to eliminate harassment or defend against claims that are brought against it.
As an initial matter, it is important to understand what unlawful harassment is. Many people believe that unlawful harassment is anything that makes the workplace “hostile.” In this regard, employees claim they have been subject to harassment because their boss is mean to them or co-workers are not as friendly as they would like them to be. To be clear, the law does not protect employees from general issues at work or require the workplace to be a friendly and wonderful place. Unlawful harassment is a specific term of law which requires certain factors to be present which are as follows: there must be unwelcome conduct (which could be basically anything), which is based upon an individual’s protected classification (age, race, gender, religion, national origin, gender identity, sexual orientation, disability, etc.), the conduct must be subjectively and objectively offensive, and it must be severe or pervasive.
The main difference between merely a mean boss and a harassment claim is that the conduct is based upon an individual’s protected classification. If the behavior is not based on a person’s protected classification, what they have is not an ideal work setting, but not a claim for harassment.
Now that there is an understanding of what is “harassment,” employers need to determine what they can do to prevent claims or defend against claims that are brought. The first thing employers need to do is develop an effective harassment policy. A harassment policy must have certain provisions in order to be effective which include a statement of what is protected (hint: it is not just sexual harassment!), examples of harassment, a multi-tiered complaint mechanism (meaning the complaint procedure should not start and end with a person’s supervisor), a provision addressing confidentiality issues, anti-retaliation language, and language which addresses disciplinary issues.
While all of the previous provisions are important, the most significant requirement is that the policy has a multi-tiered complaint mechanism. If the complaint mechanism is limited to an individual’s supervisor, what is that person to do if the supervisor is the one engaging in the harassing behavior? If that is not addressed in a policy, it is not going to be deemed effective and is not worth the paper it is written on.
Having a policy is great. However, it is not sufficient to prevent and defend claims of harassment. If an employer has a policy, but no one knows what it is, it might as well not exist in the first place. As such, employers must provide regular harassment training to its employees. With regard to such training, the Equal Employment Opportunity Commission (the “EEOC”), the federal agency responsible for handling claims of harassment and discrimination, indicated in a 2017 report that harassment training should be in-person (not merely pushing a button online) and interactive and that there needs to be different training for supervisors and non-supervisory employees.
In this regard, supervisors need to be trained on how to protect, eliminate, and respond to complaints of harassment. Supervisors also need to be trained on how to document issues and the liability concerns which arise if they merely “do nothing” when in the presence of potential harassment. Training must also address proper and appropriate measures which employers should take in response to claims of harassment to remedy and eliminate any such issues.
Ultimately, most harassment claims come down to issues of common sense. It should be common sense not to end an interview with an invitation to a hotel room. It should be common sense not to take revealing pictures of yourself and send them to co-workers. It should be common sense that employees should not send inappropriate e-mails to each other. The problem, however, is that in many instances common sense is lacking and whether someone intended to offend the other person is irrelevant. Employers must, therefore, take steps to educate their employees and prepare for any potential claims that may arise so that they are not in the next headline.

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Intellectual Property

Are My Bases Covered? Small- and medium-sized business often struggle knowing where to start to protect their intellectual property (“IP”). The following is intended to provide some high-level guidance for each of the major areas of IP. Securing Ownership Perhaps the most important step in protecting your company’s IP is to ensure that it owns […]

Are My Bases Covered?

Small- and medium-sized business often struggle knowing where to start to protect their intellectual property (“IP”). The following is intended to provide some high-level guidance for each of the major areas of IP.

Securing Ownership

Perhaps the most important step in protecting your company’s IP is to ensure that it owns all IP that arises out of the business. This means having a written contract with an IP assignment clause for each owner, employee and independent contractor who generates business-related IP. The company doesn’t automatically own all such rights simply because it paid for the project that generated the IP.

Trade Secrets

Protecting trade secrets (i.e., proprietary business information) means taking “reasonable efforts” to maintain secrecy. Generally, this means (a) having a contractual non-disclosure obligation for everyone who comes in contact with proprietary business information, (b) limiting access to the proprietary business information to authorized persons, (c) requiring passwords or biometric authentication for access to electronically-stored proprietary business information, and (d) requiring a key, passcode, or passkey to gain access to hard copies of documents, prototypes, proprietary equipment, and the like.

Patents

Whenever possible, seek advice from a patent attorney before you showing the invention to anyone outside of your company. Disclosing an invention to a third party prior to filing a patent application will result in a loss of the ability to obtain patent protection in many foreign countries. Failure to file a patent application within one year of the first public disclosure of an invention will, in most cases, result in a loss of the ability to seek a US patent.

Keep in mind that patents are business assets and should be sought only when the potential value of obtaining patent protection outweigh its costs. This is often difficult to quantify – but decision-making can be guided by the following questions. What is the likely revenue stream associated with the invention over the next five years? 20 years? How long will the invention have commercial value? What are the barriers to entry for potential competitors? How difficult will it be for competitors to design around the patent portfolio?

Before finalizing the design of a new product, evaluate the risk that an existing patent may cover that product and consider having a freedom to operate study conducted. If performed in a timely fashion, a such a study may enable you to make changes to the product that will avoid patent infringement without disrupting sales. If your competitors are aggressive patent filers, consider having a watch service set up to monitor their patent filings.

Trademarks and Branding

How do customers identify your products and services and distinguish them from those of your competitors? How do potential customers find you? Trademarks are the key —- your business name, logo, domain name, slogans, and product names. Protecting your company’s trademarks and avoiding situations in which you have to change a trademark due to a conflict with another existing trademark user is key to maintaining the strength of your brand – even for a small company.

Consider having trademark clearance investigations conducted and obtain US trademark registrations for your company name and for trademarks used with key products and services. A clearance investigation will reduce the risk that you will be forced to change the name of your company or a key product or service after you have established a strong connection with customers. Obtaining a US trademark registration will reduce the likelihood that another company in your industry will obtain rights to concurrently use trademarks similar to those being used by your company.

Copyright

Unlike patents, most rights associated with copyright do not require the owner to obtain a copyright registration. The most significant benefit associated with obtaining a registration is enhanced infringement damages.

The most important step to take with respect to copyright is to make sure that the company owns the rights to IP that arises out of the creation of copyrightable subject matter. As discussed above, this is accomplished through written contracts with IP assignment clauses.

Disclaimer: This article is provided for informational purposes only and not for the purpose of providing legal advice. Please contact an attorney to obtain advice with respect to any particular issue or problem.

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