The U.S Court of Appeals for the D.C. Circuit recently struck down the National Labor Relations Board's August 2011 Notice Posting Rule, which would have required employers to conspicuously display a notice informing employees of their right to unionize under the National Labor Relations Act (NLRB).

This decision is great news for employers.  The one-sided poster required employers to inform their employees of their rights to unionize without presenting the “other side of the story.”  In other words, the poster omitted information about the disadvantages of unionizing or the rights employees forfeit when unionizing. 

Attention Employers! If you have posted the NLRB poster, take it down!  You should especially scrutinize any pre-printed posters (those usually purchased from a third party) to ensure they do not include the NLRB notice. 

Note that pre-printed posters purchased by companies that specialize in creating and selling these posters are often outdated and/or more inclusive than required by law (which can be a very bad thing).  If you have any questions about your employer posting requirements, contact employment attorney Julie M. Young! 

The Impact of Workplace Dress and Personal Grooming Policies

Employers may lawfully enforce dress codes that restrict employees from displaying tattoos and piercings or wearing certain clothing and accessories. While these restrictions are okay, employers must consistently enforce these rules to avoid claims of discrimination or harassment. Read more about this workplace issue here...

The Women's Small Business Accelerator Inc. (WSBA) will soon debut their newest program, The Inspired, an intensive business course for serious entrepreneurs. To help with the WSBA's mission of supporting women business owners, Worley Law, LLC is excited to announce that we have donated a scholarship to the WSBA to cover half of one applicant's tuition!

If you are looking to start your own business or are currently in the stages of creating one, the WSBA's entry level intensive education course covers everything you need to know (and more) to develop a solid foundation for a successful enterprise.

Already a successful business owner? Consider joining Worley Law in offering a scholarship to a business owner in need! Contact Sharon for more information.

Program takeaways:

• Business plan and growth strategy
• Marketing plan
• Sales plans
• Credit repair plan
• The tools needed when seeking funding
• Professional personality test
• Books, workbook, and supplies

If this sounds like something your business could benefit from, learn more about this 6-month course and financing options by visiting WSBAohio.org or reading a recent feature article by The Metropreneur. The first meeting is Saturday, May 18th so apply now!

If your business has employees on either side of the staffing fence (you use workers from a staffing agency or provide employees to clients) it is important you understand your liability when it comes to discrimination, harassment, retaliation and other potential employment issues.

We'll give you a hint ... both companies are on the hook!

The use of staffing agencies is on the rise because their services can provide a huge value for their clients. Despite the relationship between staffing agencies and their clients, it is both the agency's and their client's responsibility to comply with fair employment practices and laws. 

It is not only the staffing agency’s (the employer of record) responsibility to prevent and correct discrimination, retaliation, harassment and other workplace issues, the agency’s client (the one for whom worker performs services) must also ensure that its facilities are free of those same unlawful practices. If not, both the agency and its client may be liable for any resulting damages an employee may incur. Staffing firms must take immediate action once learning about potential issues facing their employees and so must the agency’s client.

To learn more about how to be a proactive employer or staffing agency and to avoid potential employment issues, contact HR attorney Julie Young!

There are many common problems and misconceptions when it comes to employers and their employees' wages and overtime payment. Because Wage and Hour Law is so frequently violated, this has become one of the fastest growing subjects of lawsuits. It's important for business owners of all sizes and HR professionals to understand the many rules and regulations associated with the Fair Labor Standards Act (FLSA) also known as Wage and Hour Law.

Identifying and correcting misapplications of Wage and Hour law before they become a problem is your most cost effective and time-saving option. According to the US Department of Labor, here are the most common employer violations:

• Misapplying exempt status to non-exempt "salaried" employees.
• Employing underage minors in prohibited duties and/or beyond permitted hours.
• Not paying overtime to non-exempt salaried employees.
• Not paying employees for all hours permitted to work, including time spent taking inventory, cleaning up, completing paperwork, etc., beyond the normal work schedule.
• Not maintaining records on non-exempt salaried or piece rate employees.
• Granting compensatory time off in lieu of overtime pay.
• Considering certain employees to be "contract labor" or independent contractors but not treating them so.
• Illegal deductions or kickbacks for shortages, uniforms, errors, bad checks, etc., which reduce an employee's pay below minimum wage or required overtime pay.
• Not paying minimum wage and overtime to part time employees.
• Not recording all hours actually worked to include time spent working before or after the shift.
• Shortening of hours by using terms such as down time or rain delay.
• Not compensating for meal breaks where the employee is not completely relieved of all duties to enjoy uninterrupted time for the meal.
• Not combining the hours worked for overtime purposes by an employee in more than one job classification for the same employer within the same workweek.
• Not segregating and paying overtime hours on a workweek basis when employees are paid on a bi-weekly or semi-monthly basis.
• Not paying for travel from shop to work-site and back.

There are a lot of rules that employers need to follow in order to accurately abide by the FLSA. Need some additional support so you can breathe easy? Worley Law's monthly HR Lunch & Learns are a great source to learn more about the many challenges of being an employer or HR professional. May 2013's Lunch & Learn will help you learn ways to avoid Wage and Hour problems. If you have concerns now, our attorneys are available to help you with all of your employment law needs! Call us at 614.824.6200 or e-mail our HR attorney Julie M. Young.

Through the grapevine, you hear that one of your former employees is competing against you. Furthermore, you know that this person had access to your valuable business information (customer lists, price lists, etc.), and you also know that this person is using those things to help kick start their business.

If that former employee had been covered by an appropriately restrictive, written employment contract, you could find your remedy in there. But let's not make this too easy. Let's say you had no written employment contract with this employee. Let's also say that you terminated the employee. If this is the case, you aren't likely to find your remedy in contract or employment law. Now what?

Ohio, along with nearly every other state in the US, has enacted a substantially similar version of the Uniform Trade Secrets Act. The concept of a "trade secret" is very broad; much broader than that of a copyright or patent. Furthermore, while the government decides what qualifies as "copyrightable" or "patentable," you (largely) decide what constitutes a trade secret.

Trade secret protection can extend to essentially any "information," so long as that information meets the test for protection. Whether your information is covered depends on two things: if you treat that information as confidential (you protect it as such), and if the "secrecy" of that information is what makes it extra valuable.

Furthermore, trade secret protection extends to information whether or not you could copyright or patent that information. It even applies to information that you may not want to patent or copyright. Think about it: if you send something out for copyright or patent protection, you have to reveal it to the world. You may not want to do that, for obvious reasons. Additionally, if you are going to be changing your customer database every day, the copyright on your database from October 2010 is going to be pretty worthless. Most of the valuable information you use in your business on a day-to-day basis isn't going to be patentable or copyrightable. Even if it is, there won't be any value in obtaining that protection; therefore, most of the information you deem valuable in your organization is going to be best protected under trade secret law.

So if you take reasonable steps to keep your customer list secret (it is on stored on your server, which is password protected, for example), and it is clear that the list would be worth much less to you if all of your competitors had access to it, it is likely your customer list qualifies for trade secret protection. Returning to our example, your former employee is using your customer database to solicit new clients. While you might call this "theft," under Ohio law, this is called "misappropriation." There are quite a few different activities that constitute misappropriation, but in this example, the former employee was under a common law duty to you to maintain the secrecy of the information (or so you would argue). By taking that information with her after she left, she is now misappropriating it.

Your absolute first step is an injunction under O.R.C. 1333.62. This would stop the former employee from using the database. In certain circumstances, you may also be able to force the former employee to "take affirmative acts" to protect the information (i.e. returning or destroying all copies).

Depending on how much damage has been done, you may also sue for damages. Damages may include both the actual loss caused by misappropriation and certain damages for unjust enrichment (assuming your former employee has been raking in the dough by using your list). If it would be impossible to calculate these types of amounts, you have the opportunity to persuade a court to award you a reasonable "royalty" for the former employee's use of the information. That royalty would be calculated based on your loss, and/or the former employee's gain. This is kind of like requiring the employee to pay over the money that she made by using your list. In more egregious cases ("willful and malicious"), you might be entitled to punitive damages. You would have a stronger case for this type of claim if the employee had been syphoning your information for weeks before leaving, with the intention of using it to his own advantage after leaving.

You should also be aware that this law applies not just to employees, but also independent contractors, even your vendors and strategic partners.