When a data leak occurs, the company has to be prepared for the aftermath and work quickly to resolve any complications a data breach might’ve caused. While your first priority might be stopping the breach, and keeping the issue from further harming clients or the company itself, notifications are still mandatory. If you fail to adhere to the notification requirements, you could face penalties and be held liable.

What is Protected Information?

First, you need to understand what is included as protected information. It has to be the individual’s name and a combination of one or more of these elements:

• Driver’s license number
• Social Security number
• Debit card number and PIN
• Credit card number
• Password
• Access codes
• Account number

This information is not limited to just D.C. residents either.

Data Breaches in Washington, D.C. 

In Washington, D.C., data breach laws are covered under D.C. Code Sections 28-3851 to 28-3853. If you have a business in D.C., keep computerized data or other electronic data that includes clients’ personal information, and have a breach in security of your system, you must notify any D.C. resident whose personal information was included in the breach. The notification should be made through mail or email, and it needs to occur in an expedient manner and without any unreasonable delays in alignment with the needs of law enforcement. In addition, the business must determine the amount of data affected and work on restoring security to the system. This requirement is also applicable to anyone who handles, possesses, or maintains electronic and computerized data.

The only case in which notification under the statute might be delayed is if and when a law enforcement agency feels notifying people would hinder a criminal investigation. The business is required to notify affected parties as soon as law enforcement decides the notification will not put the investigation at risk.

In the event you suffer a breach and more than 1,000 people are affected, you must notify all consumer-reporting agencies. If the breach affects more than 100,000 people, or the cost of notification exceeds $50,000, businesses are allowed to notify parties through public service announcements. If you fail to notify individuals as required, your business can be fined up to $100 per record.

Retaining a Washington, DC Attorney

It’s important you speak with a Washington, DC business litigation attorney to understand what the potential risks are and what potential liability your company could be facing in the event of a breach. If you need to learn how to safeguard your company from a data breach, or you are being sued for an alleged breach, the team at Tobin O’Connor Concino P.C. has years of experience in business litigation. Contact us on our website or call our office at 202-362-5900 to schedule a consultation.

Resource:

code.dccouncil.us/dc/council/code/sections/28-3852.html

The duration of the non-compete clause can vary, lasting anywhere from a few months to several years. Because of the limiting nature of a non-compete agreement, many employers are no longer using them. However, there are some instances where they might apply to your business in Washington, DC, so it’s good to familiarize yourself with the basics.

General Law 

The District of Columbia doesn’t have a specific statute that addresses non-compete agreements, but DC Code Section 28-4502 does prohibit any contractual agreement that unreasonably restrains trade. Courts may enforce the restrictions on competition if the restraint is reasonable and related to the employee-employer relationship. It must be necessary to protect the employer company’s interests, and it can’t be wider in scope or longer in duration than necessary, and you cannot have anything in the agreement that goes against public policy. Lastly, there has to be some type of consideration.

What to Focus on in Drafting a Non-Compete Agreement

The law puts the burden of proof on the employer, who must prove that the non-compete agreement doesn’t unreasonably restrict trade. If you feel it’s necessary to draft one, then it’s important to focus on key areas to maximize your chances of it being enforceable in court. Also, having a Washington, DC business law attorney draft the non-compete agreement is important to ensure it hits all the important topics while not violating any public policy.

The four areas the non-compete agreement should focus on include:

• Purpose — Why is the non-compete agreement necessary? What are the employer’s interests and concerns, and are they legitimate?
• Benefit — What is the benefit for the employee who signs this? It can vary based on what point in the employment process the agreement is drafted. At the start, it might be the job offer, or at the end of employment, it might be a severance package.
• Scope — The scope of the agreement needs to be defined. This might include a requirement to keep proprietary information private, describe the type of competitors the employee is not allowed to work for or the type of work he or she is forbidden to do, etc.
• Enforcement — It’s important to look over the agreement to ascertain whether a court might enforce it or whether it’s unreasonably restrictive.
  

Retaining a District of Columbia Business Law Attorney

If you need a non-compete agreement drafted, you need to retain a District of Columbia business law attorney who has experience with employment law as well. The team at Tobin O’Connor Concino P.C. is skilled at all aspects of business and employment law. Contact our office online or call us 202-362-5900 to schedule a consultation.

C Corporation vs. S Corporation

When you incorporate, the default corporation type is the traditional C corp. Becoming an S corporation is a special election done through the IRS and is subject to strict guidelines. Not everyone will be eligible for S corporation status.

Both have some similarities in the way they handle ownership, liability, capital, and governance. And, they are both corporations, just one is a separate status that applies to some variations in taxation and ownership.

Similarities Between C and S Corporations

At the end of the day, there are probably more similarities than differences when you compare the two corporation types. The following attributes are found in both S and C corporations:

• Corporate Structure: Corporations have a specific structure that must be followed with shareholders, officers, and directors. Directors handle major decisions and elect officers who handle the day-to-day operations. Shareholders are the owners who elect the board of directors.
• Liability: In general, shareholders are not personally liable for the company’s debts and liabilities. However, there are certain circumstances that can open the door for personal liability if the corporation doesn’t operate in compliance with regulations.
• Compliance: Both corporation types are expected to file certain documents with their governing state, like the Articles of Incorporation. There are other similar activities like stock issuance, enacting bylaws, holding director and shareholder meetings, and more.

Differences Between S and C Corporations

The biggest differences between a traditional C corporation and an S corporation revolve around ownership and taxation:

• Ownership: C corporations have no cap on the number of allowed shareholders, whereas S corporations are capped at 100, and all of them must be US citizens. S corporations cannot have other corporations, LLCs, or trusts as shareholders whereas C corporations can. S corporations are also limited to the type of shareholders they have. C corporations can have different levels of shareholders where votes can count with different weighting. S corporations are restricted to one type of stock only.
• Taxation: For both corporation types, shareholders pay personal income tax on dividends and from salaries drawn from the corporation. The big difference here is C corporations are also taxed at the corporate level. S corporations are treated like pass-through entities, thereby eliminating the “double taxation” issue often noted with C corporations.

Determining Which Type of Corporation is Right for You

Once again, there is not one corporation type that works best for all businesses. It really comes down to your long-term business goals, among other things. If you’re preparing to incorporate, contact the attorneys at Tobin O’Connor Concino P.C. to schedule a consultation. Let one of our skilled business organization attorneys help you decide which business organization type is best for you.

What is a Trade Name?

A trade name is essentially any name that you use in your business operations that differs from the full legal name of the business. This involves filing a trade name that shows a DBA, which stands for “doing business as.”

When do you need a Trade Name?

If you use any business name that deviates from your legal name, you’ll need to register it as a DBA. For example, if your name is Mary Richards and you want to do business with any variation of that, such as Mary Richards’ Marketing Agency, then you’ll need to file that trade name so people know you’re doing business under this fictitious name.

The need for a trade name doesn’t just apply to sole practitioners either. If you have a corporation or LLC and you want to do business under another name, you’ll need to register a DBA as well.

Is a Trademark the same as a Trade Name?

No. Some people mix these up; however, they are entirely different things. As explained herein, the trade name is an official name that a company conducts business under. It does not afford any brand protection or allow for unlimited usage rights. A trademark is what you file to protect your brand name, and is often linked to your trade name. Trademarks can protect more than a name; it can be used for slogans, symbols, and logos as well.

If you haven’t filed for a trademark and the usage of your brand name is perceived as a trademark, you may in fact be infringing on someone else’s existing trademark.

Important Items to Keep in Mind When Choosing a Trade Name?

When you’re choosing a trade name, there are a few important things to keep in mind when filing a DBA in Washington, DC.

• Your trade name cannot be the same as your corporate name.
• Your trade name must be different from any other organization name or another registered trade name.
• You cannot use LLC, LP, Corp, etc., in your trade name. The only exception is the word “company,” which is permitted.
• You can register additional trade names, as there is no limit.
• If you register your trade name in the District of Columbia, it is only valid for business conducted within Washington, DC. If you plan to do business in another jurisdiction, you’ll need to register the name there too.

Retaining a Small Business Attorney

If you’re starting a new business, retaining the services of a skilled Washington DC small business attorney can help you through the process. If you need assistance with setting up and registering your new business, want to apply for a trademark, or have another pressing legal matter, the attorneys at Tobin O’Connor Concino P.C. can help with all your small business needs. Call our office or use the contact form on our website to schedule an initial consultation.

Resources:

sba.gov/blogs/difference-between-trade-name-and-trademark-and-why-you-cant-overlook-either

dcra.dc.gov/service/register-trade-name

Business Disputes

It goes without saying that business disputes are nearly unavoidable, and even longtime, successful businesses run into issues at some point or another. Business disputes can take many forms, including issues stemming from complaints about product warranties or ambiguous contracts. Hiring a business lawyer doesn’t necessarily mean you’re headed for litigation. Let our specialists help facilitate a fair compromise where appropriate, and work towards salvaging valuable, long-running business relationships.

Business and Commercial Litigation

Business litigation involving disputes between companies is commonplace. Disputes can evolve from a number of issues, such as infringement of intellectual property rights or breach of contract. Disputes can also arise between members of the same company, known as intra-business disputes.

Commercial litigation can arise out of partnership or shareholder disputes, and can be extremely complex. You may find yourself on the receiving end of a legal claim from customers or former employees, requiring a business lawyer to mount an appropriate defense in the case. With companies operating on tight profit margins, commercial liability claims have the ability to become quite expensive to defend.

Corporate Governance and Corporate Tax

Scandals involving large companies that have abused corporate power have made all sorts of headlines over the years. One of the biggest examples in recent times was the collapse of Enron Corp. Our attorneys can provide skilled advice on corporate governance to all types of businesses, from small start-ups to high-powered international corporations. We can ensure you are in full compliance with laws like the Sarbanes-Oxley Act, which was passed in order to try and restore the public’s faith in corporate governance.

Another area of importance is corporate tax liability. You need a skilled business attorney to guide you through the nuances and complexities of corporate tax laws. We can help you set up your corporation, and help you decide whether to form a C or S corporation.  Proper tax planning advice is another important area of corporate tax law. You need to know the tax implications of transactions that involve mergers and acquisitions, or selling or terminating a business.

Hiring a Washington DC Business Lawyer

As technology evolves and laws change to keep up with these advances, you need a business lawyer who is skilled in e-discovery. The laws surrounding e-discovery, or electronic discovery, are complex. Gone are the days of sifting through mounds of paperwork, phone records, letters, and other pertinent materials. Many of these records are now stored on electronic databases, so you can run into problems if you don’t have an attorney who is properly collecting, managing, and reviewing the most recent changes in the law.

If you have any business law issues, contact the office of Tobin O’Connor Concino P.C. to set up a confidential consultation. Let us take care of all your business law needs so you can concentrate on what’s most important – successfully running your business.

Definition of Work Made for Hire

Section 101 of the Copyright Act defines what constitutes a “work made for hire.” It explains work made for hire as a work that is prepared by an employee in the scope of their employment; or a work ordered or commissioned for use as one of the following:

• Part of a movie or audiovisual work
• Contribution for collective work
• Translation
• Compilation
• Supplementary work prepared as secondary adjunct to a work for purpose of introducing, concluding, illustrating, revising, commenting upon, or assisting in the use of the other work
• Tests or answer material for a test
• Instructional text which can be literary, pictorial, or graphic work intended to be used in systematic instructional activities
• An atlas

If a work doesn’t fall under one of the categories above, it is still a work made for hire if there is an express written agreement signed by both parties indicating the work shall be considered a work made for hire.

Who is an Employee

The courts often have to determine what is a work made for hire as there isn’t an all-encompassing legal definition that fits all scenarios. The first step is to determine whether the individual is an employee or independent contractor. If it’s determined to be an employee, the first section that references work created by an employee will apply. Independent contractors typically fall under the second section, and their work can only be determined to be a work for hire if it falls under one of the categories and there is a written agreement that specifies the work is a work made for hire.

To determine the employer-employee relationship, courts look at factors like how much control the employer has over the employee’s work, how much control the employer has over the employee itself, and conduct of the employer. Conduct of the employer deals with things like does the company provide benefits to the employee or withhold taxes from payments, etc.

Copyright Term and Termination of Rights

Works made for hire are protected for 95 years from publication date or 120 years from the creation date, whichever one comes first. To compare against regular copyrights, a standard non-work made for hire is protected for the life of the creator plus 70 years.

In standard copyrights, the law provides certain grants of the rights which can be terminated 35 to 40 years after the grant was made or after publication, depending on some circumstances. In the case of works made for hire, copyright law termination provisions don’t apply.

Retaining a Washington D.C. Business Lawyer

If you are concerned about copyright issues or are potentially facing the issue of a work made for hire, it’s important you have a good Washington D.C. business lawyer. Contact the team at Tobin O’Connor Concino P.C. at 202-362-5900 to schedule a consultation with one of our knowledgeable business litigation attorneys.

Resource:

copyright.gov/circs/circ09.pdf

Need to Disclose Relationships

One of the biggest rules set forth by the FTC is the need to disclose relationships between brands and influencers. The guidelines state that if there is a “material connection” between an endorser and an advertiser, it must be disclosed in whatever is being disseminated online. This may run the gamut from a blog post to a Facebook or Instagram post, a Tweet, or an online video. A “material connection” is defined as a business or family relationship, monetary payment, or the gift of a free product. And, while we’re discussing the FTC guidelines as they relate to online influencers, it also extends to marketers and marketing agencies.

FTC Endorsement Guidelines

The Federal Trade Commission published the guide to help promote truth in advertising. They represent administrative interpretations of laws enforced by the FTC. Specifically, they address Section 5 of the FTC Act (15 U.S.C. 45) and the use of endorsements and testimonials in advertising. Failure to abide by these voluntary rules could result in corrective action by the Commission or a lawsuit from a misled consumer. If you’re an online influencer and run a digital media business, it’s important to hire a knowledgeable Washington D.C. business law firm to represent your interests and ensure you are not running afoul of these or any other laws governing online businesses.

What are Endorsements under FTC Guidelines

Under the FTC guidelines, an advertising message could be verbal statements, demonstrations, or depictions of the name, signature, likeness, or other identifying personal characteristics of an individual or name of an organization that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than sponsoring advertiser. The party who is making these statements is deemed the endorser and could be a person, group, or the business itself.

Tips and Examples from the FTC

The FTC website is a great starting point to get a general idea of what the guidelines cover and tips to ensure you aren’t violating these disclosure rules. Some important tips include:

• Don’t assume people automatically know you have a relationship with the advertiser or that you have received any consideration for your endorsement.
• Although some social media platforms, like Instagram, are starting to offer tools to disclose, don’t solely rely on those tools.
• Don’t use ambiguous hashtags like #spon, #sp, or #ambassador
• Don’t place disclosures after the “click more” link or far down in a post.

Retaining a Washington D.C. Business Lawyer

If you run a digital media business, it’s important you have a good business lawyer in Washington D.C. Contact the team at Tobin O’Connor Concino P.C. at 202-362-5900 to schedule a consultation to ensure you and your business are adequately protected. Our knowledgeable team has experience in everything from business contracts to intellectual property matters.

Resource:

ftc.gov/news-events/blogs/business-blog/2017/09/three-ftc-actions-interest-influencers

In the meantime, here’s a basic introduction to the different ways you can define and categorize your business.

Sole Proprietorship

Sole proprietorships are one of the most common types of small business organizations. This is when there is a sole owner who maintains all the assets and carries on the business individually and not through a separate entity. There doesn’t need to be a formal charter from the state and the business is treated like a personal extension of the owner itself.

General Partnership

A general partnership is when two or more people affiliate for the purpose of creating and operating a business for profit. General partnerships are governed under the Uniform Partnership Act, and the term person can include individuals, partnerships, a corporation, or other entity.  Entities such as charitable, fraternal, and religious organizations are excluded since the requirement for a general partnership is to operate a “for profit” business model. Like a sole proprietorship, members have personal liability to creditors.

Limited Liability Company

Limited liability companies, or LLCs, may vary slightly from state to state, but in general they combine the best of both worlds – limited liability of a corporation and the income “pass through” of a partnership for tax purposes. This means the LLC itself does not pay income taxes.  The profits and losses of the LLC are passed through to each member based on his or her proportionate ownership and reported on each member’s individual tax return. An LLC is formed by filing a certification of organization with the state, and it is defined by having members rather than shareholders or partners.

Corporations

Corporations can be the most complex as they have more strict guidelines and rules. This is because a corporation is essentially an artificial person that is created to do business that is entirely separate from its investors, creators, and owners. The corporation has liability for corporate obligations, but owners’ liability is limited to the amount of their investment.

There are different types of corporations as well. Public corporations are those created by a government entity to administer government business. Examples would be federal corporations like the Federal Mortgage Association. Private corporations are those created by private persons for private purposes. They are then classified as for-profit or non-profit corporations.

There is also the publicly held corporation which is owned by shareholders whose stock is traded, which means bought and sold on the open market. If you’re confused by public corporations versus publicly held, remember public corporations are those formed by the government whereas a publicly held corporation means it’s a private corporation owned by non-government entities, but they sell stock so anyone who purchases stock can “own” a percentage of the company.

What We Can Do For You

The experienced business law team at Tobin O’Connor Concino P.C. in Washington D.C. is here to help get your business up and running. We have experience setting up partnerships and corporations as well as handling corporate dissolutions and business disputes. Contact us at 202-362-5900 and let us help you ensure your new business venture is thoroughly protected.

While a company should always prepare itself for the worst through things such as proper insurance and crisis management protocols, prevention is still what you want. Strive to prevent such incidents from occurring in the first place.

OSHA Rules and Regulations

OSHA, which stands for the Occupational Safety and Health Administration, is a federal agency that was organized back in the 1970s. It comes up with rules that are meant to create and maintain safe working conditions. Different states may have their own versions of this agency as well. In addition to creating rules, however, OSHA and the similar state agencies have the power to enforce the rules. For instance, just recently, OSHA proposed a fine of more than $200,000 against a Massachusetts health facility for failing to correct a rule violation.

Since OSHA was formed to create safe workplaces, following OSHA rules is a great first step to prevent incidents from occurring. While there are many rules and regulations to follow and it could be overwhelming, an attorney experienced in the area is a great person to connect with to find out where to begin.

Go Above and Beyond

Yet, depending upon your situation, your company, and your company’s needs, simply following OSHA rules is just the base level of what you can and should do. A company can always try to go above and beyond by implementing safety policies of its own and furthering the safety education of its employees along with others who interact with its employees and business, such as its contractors, repairmen, and custodial companies.

In addition, incentivizing employees to adhere to safety standards—e.g. wearing proper protective gear, using correct equipment pieces—with needed or wanted rewards can go a long way. Going above and beyond OSHA requirements and what the law says that you have to do requires you to not only think about more policies, but also management techniques.

What Can We Do for You?

The Washington, D.C. business law attorneys here at Tobin O’Connor Concino P.C. are here to help you out with your incident prevention strategies, interactions with workplace safety agencies, policy drafting, and related matters. We are here ready to help you.

Resources:

washingtonpost.com/local/public-safety/construction-worker-dies-after-fall-in-dc/2017/08/24/14febf60-8923-11e7-bf6f-85492789e0aa_story.html?utm_term=.648c8e9713c5

insurancejournal.com/news/east/2017/08/16/461258.htm