These claims are often brought forth to assert liability against an employer or skate around a statutory damage awards cap. According to the American Bar Association, the most common employment torts are: intentional infliction of emotional distress, defamation, invasion of privacy, assault and battery, intentional interference with employment contracts, and negligent hiring, training, and retention.

Intentional Infliction of Emotional Distress

This is sometimes referred to as the “tort of outrage,” and claimants must suffer severe emotional distress through someone else’s “extreme and outrageous” conduct. Constantly criticizing someone’s job performance, unjustified reprimands, unwarranted negative evaluations, and unfairly opposing unemployment are some of the scenarios that typically do not fall under intentional infliction of emotional distress claims, but they may in very limited instances. The plaintiff must show the employer knew about the conduct, know it was a tort in nature, and failed to take any steps to remedy the situation.

Invasion of Privacy

These types of claims are often the subject of a bigger issue — sexual harassment. When bringing a claim of alleged sexual harassment, there is an unreasonable intrusion theory that accompanies it. Invasion of privacy can occur when an employer publishes personal facts about an employee and there is no connected legitimate business need.

Defamation of Character

Defamation claims center around either spoken (slander) or written (libel) words that cause damages to the claimant. It can be untrue falsehoods about the employee’s character or when a former employer reveals the reason an employee was terminated or disciplined to any third party.

Intentional Interference with the Employment Contract

If someone intentionally interferes with a contract between other parties, they can be held liable. Interference in an employment situation may be giving someone an unfavorable job reference or where a manager interferes with a worker’s job such that the person winds up being terminated.

Negligent Supervision, Training, and Retention

To prove this, the claimant has to show the employer knew, or have should’ve known, that one employee’s behavior was dangerous and there was a propensity for damage, and given that knowledge, the employer still retained or failed to supervise the employee in question. These types of claims often accompany sexual harassment claims as well, usually when it’s a second-time offender. There’s certainly a case to be made when an employer keeps an employee on board knowing they already harassed someone before.

Assault and Battery

If an employee makes unwanted, non-consensual contact, or there is a fear of contact, then the recipient may have a cause of action. These claims can center around physical altercations or sexual harassment, or they can extend to other situations that might surprise you. Some employees have brought lawsuits for assault and battery related to drug testing, polygraphs, or even exposure to a toxic substance.

Retaining a Small Business Lawyer

If you’re starting a new business or already running a company, it’s important to retain a Washington DC small business attorney who is also skilled at employment and labor law compliance. The attorneys at Tobin O’Connor Concino P.C. have years of experience handling legal issues that are important to small business owners. Contact our office to schedule a consultation and let us help with all your small business needs.

Resource:

americanbar.org/content/dam/aba/administrative/labor_law/meetings/2009/ac2009/108.authcheckdam.pdf

How to Transfer a Copyright

In order to transfer exclusive rights to the copyright, the transfer must be in writing and signed by the original copyright owner to be deemed valid. An authorized agent of the copyright owner, like an attorney or business associate, can also sign the document. If the copyright owner is intending to transfer non-exclusive rights, a written agreement is not necessary.

How to Transfer a Copyright

The Copyright Office doesn’t necessarily have forms to initiate a copyright transfer. However, it does keep records of all transfers, as long as they are submitted to the office. There is no need for notarization or certificates of acknowledgement; but the Copyright Act does note that an acknowledgement can serve as prima facie evidence of the execution of a transfer of copyright ownership if either one of these two conditions is met:

• In the case of a transfer executed in the US, the certificate was issued by someone who is legally authorized to administer oaths in the country; or
• If the case of a transfer executed in a foreign country, the certificate was issued by a diplomatic or consular officer of the US, or by a person authorized to administer oaths who has authority proven by the certificate of such an officer.

Advantages to Recording the Transfer of Copyright Ownership

While recording is not mandatory, there are several benefits that make it worthwhile. These include:

• Recordation may establish legal priority between conflicting transfers or between a transfer and non-exclusive license in certain cases.
• Recordation establishes a public record.
• Some courts have held that a security interest in a registered work must be recorded with the Copyright Office to protect the creditor’s interest.

Recording the document may provide “constructive notice.” Constructive notice means that the public is deemed to have knowledge of the transfer and can’t claim otherwise. In order to qualify as constructive notice, two conditions must be met.

• The document, or material attached, must specifically identify the work to which it pertains, so after the document is recorded, it can be searchable under the title or registration number of the work; and
• Registration has been made for the work.

Retaining a Small Business Attorney in Washington DC

The Copyright Office doesn’t enforce agreements, nor does it determine whether documents satisfy legal requirements necessary for them to be legally enforceable. This is why you need a skilled Washington DC small business lawyer to help ensure your copyrights are protected, and you’re still protected in the event you need to transfer rights to an existing copyright. Contact the team at Tobin O’Connor Concino P.C. today to schedule a consultation.

Resource:

copyright.gov/circs/circ12.pdf

Trademark registration can take months, in some cases over a year. This means doing your due diligence prior to applying is key so you don’t prolong the process by choosing trademarks that get rejected. Also, hiring a knowledgeable Washington DC small business lawyer to help you through the process can help you avoid this list of potential pitfalls.

Don’t Be Generic

Using generic words and terms is a surefire way to get your trademark rejected. As generic words or terms are not distinctive or easily linked to a brand, they generally won’t hold up in court.

Not Registering Your Trademark

Some people say using the “TM” symbol is the common-law trademark, but it is very limited. You should protect your trademark by registering it with the US Patent and Trademark Office. Once the application is granted, you can use the ® symbol.

Not Using it in Commerce

Before you apply for your trademark, you must use it in commerce. The process won’t begin until you’ve started using it in the stream of commerce. You can file an intent to use it, but you only have 36 months to file a statement of use, so it’s best if you start using your intended trademark as soon as possible.

Failure to Do Thorough Search

Digging deep in the USPTO database is essential. And, don’t limit your search to active trademarks, look for exact or similar ones that have been abandoned or canceled. Think outside the box and look for names that may be similar, like cat and kat. Thorough searching up front can help save legal issues down the line if someone comes back and claims you’re using their trademark.

Don’t Forget Your Tagline

Don’t forget about your brand’s tagline. If you have a great tagline, why wouldn’t you want to trademark that too? Remember, in some cases, a tagline can become more of a brand identifier than the logo or name itself!

Failure to Monitor Your Application

Be sure to monitor the status of your application. The Trademark Status and Retrieval system lets users track the status of their application. If the USPTO needs you to respond, you’ll have about six months to respond, otherwise USPTO will cancel your  trademark  or declare it abandoned. From there, you’ll have to pay additional fees to reinstate the application.

Don’t Overestimate the Trademark

Some people assume that if you file a trademark, it covers everything and anything. That’s not the case. Trademark ownership in one class will not give you the right to use it and enforce your brand against someone with a similar trademark in a completely different class of goods.

Small Business Attorney in Washington DC

If you’re in the process of setting up your small business, rely on the team of Tobin O’Connor Concino P.C.; we have years of experience with everything from deciding on the best type of business and drafting all the paperwork through handling legal disputes that arise in the course of day-to-day business. Contact our office today to schedule a consultation.

Resource:

uspto.gov/trademarks-getting-started/trademark-basics/trademark-patent-or-copyright

What is Vicarious Liability?

In essence, vicarious liability is when one  person is held responsible for the acts of or omissions of someone else. As it relates to employer and employee relationships, the employer can be held legally liable for the actions or omissions of its workers, provided the other side can show the act in question took place while in the “course and scope” of their employment duties.

The legal theory of respondeat superior is based on a Latin phrase that translates to “let the master answer.” It is a very old aspect of the law that transfers vicarious liability to someone who had control or the duty to control the actions of someone else. In the case of employer and employee relationships, the employer can be held liable if it had the right and duty to control the individual who caused damages and injuries to someone else.

Examples of Employer Liability

If you have employees who drive your vehicles, make deliveries, or run any sort of errand that is part of their job, you may be liable for any accidents they get into. If they deviated from what they were supposed to be doing and made a side trip for something completely unrelated to work, and you had no knowledge, then you may not be liable for their actions.

Another situation could be a salesperson who works for you. If that person does door to door sales as a representative of your company and subsequently runs off with a customer’s money after making a sale on your behalf, you may be liable. There are even instances where independent contractors may be viewed as a direct employee under the theory of vicarious liability.

In partnership agreements, a partner may be held vicariously liable for any negligent acts by another partner, and there are scenarios with corporations as well. The corporation’s directors and officers are performing duties on behalf of the company, therefore some situations may lead to an allegation of vicarious liability.

Retaining a Small Business Attorney

Depending on the type of small business you have, there may be coverage under a general liability policy for some of the aforementioned examples. It’s important that when you are setting up your company you seek assistance from a skilled Washington DC small business lawyer. Our skilled team can assist with all facets of business litigation, both plaintiff and defense. In the event you find yourself facing a lawsuit that alleges wrongdoing by your employees or business partners, it’s imperative you contact a good defense lawyer immediately. The attorneys at the office of Tobin O’Connor Concino P.C. have years of experience in setting up businesses, ensuring labor compliance, and settling business disputes, including partnership and shareholder disputes. Please contact us at 202-362-5900 today for a confidential consultation.

Resource:

investopedia.com/terms/v/vicarious-liability.asp

In some cases, small businesses neglect the basics of intellectual property law, potentially losing out on protecting their creations, or worse, being sued for violating someone else’s intellectual property. If you’re a business owner, consider retaining the services of a knowledgeable Washington D.C. area small business lawyer to ensure your intellectual assets are protected.

Types of Intellectual Property

There are different types of intellectual property, but three of the most familiar categories are trademarks, copyrights, and patents.

• Trademarks: A sign that distinguishes goods and/or services of one business apart from those of other businesses.
• Copyrights: Legal term used to describe the rights creators have over their creations, which may include books, music, paintings, photos, films, computer programs, ads, technical drawings, and more. Only expressions are covered, not ideas, procedures, operation methods, etc.
• Patents: Exclusive right granted for an invention which provides the patent owner rights to decide how or if an invention can be used by others.

Protecting Your Intellectual Property

When it comes to copyrights, it’s generally agreed in most countries that copyright protection is automatic and doesn’t require registration or formal notice. This came about from the Berne Convention for the Protection of Literary and Artistic Works. There are some countries that do have systems in place to allow for voluntary registration, so it’s worth it to check on local requirements if you have specific business ties with another country. One benefit of a copyright is economic rights, which allows the rightful owner to receive financial benefits from the use of his works by others. Protection does have a time limit, which can vary based on law. Member countries of the Berne Convention typically hold that the time limit should be equal to or longer than 50 years after the creator’s death.

To protect a trademark, you’ll need to register and pay fees to the national/regional trademark office. If you’re looking for international protection, you can either file an application with each country you’re seeking protection in, or look into WIPO’s Madrid System, which lets you file a single application and pay one set of fees to receive protection in up to 116 countries. Protection of a trademark offers exclusive rights to the use of the registered trademark. The duration of registration can vary, but 10 years is a common timeframe. It can be renewed when more fees are paid.

Patents give the owner exclusive rights to prevent or stop others from benefiting commercially from your patented invention. This means that others cannot use, make, distribute, import, or sell your invention without your consent. Patents are typically only valid in the country or region where it was filed, and it’s only valid for a limited time, typically 20 years from the filing date.

Hiring a Small Business Lawyer

If you have questions on intellectual property or require other legal assistance, let the experienced team at Tobin O’Connor Concino P.C. in Washington D.C. handle all your small business needs. Contact us at 202-362-5900 to schedule a consultation.

Resource:

wipo.int/treaties/en/text.jsp?file_id=283698

Type of Entities

There are several entities to choose from when forming your business. The most common are sole proprietorships, variations of partnership, LLCs, and corporations. LLCs and corporations are preferred from a risk perspective. Generally speaking, they insulate the owners from liability that their businesses may encounter. Conversely, sole proprietorships and regular partnerships usually do not.

The location of incorporation or organization is also important. It is possible to claim your company’s jurisdiction of origin as the District of Columbia. However, it is also possible to incorporate or organize in another state and then register to do business in D.C. It all depends on the specific needs of your business.

Real Estate

If your company is like the florist shop mentioned above, then you will need to find a physical place to conduct business. Often, this requires leasing space from a building owner. You will have to determine which geographical area is best for your business, what type of space is available in that area,  and whether potential lease terms are favorable to you and your company.

Employees

If the company is one that will require several people for its operation, you will need to figure out whether those people will be owners, employees, contractors, or otherwise. Then you will want to make sure that they all respectively abide by the same company rules, whether those rules are written out in an organizing document, employee handbooks, or independent contractor agreements.

Insurance

Depending on the nature  of your business, you may have to purchase anything from general liability insurance to product liability insurance. Additionally, in today’s technologically advanced climate, your company might also want to invest in some cybersecurity insurance.

Permits and Licenses

Again, depending on the type of business your company conducts, there may be various business and professional licenses or permits that either the company or its workers must acquire. These can range from federal licenses or permits to ones that are only required by the local jurisdiction. You will want to make sure you obtain all of the ones that are relevant and necessary to your company.

Plan Now and Prevent Issues Down the Road

Running a business can be very fulfilling, and if the business is a small one, you will be rewarded with a challenging job while enjoying personal relationship with your customers,  your employees and your neighborhood. However, no matter the size of your business, you must still follow governmental rules and be aware of relevant laws. Start off right and contact the experienced business law attorneys at Tobin O’Connor Concino P.C. in Washington DC to help you out today.

Resources:

washingtonpost.com/business/this-dc-florists-secret-to-surviving-114-years-and-four-generations/2017/08/18/ee1a0152-836e-11e7-b359-15a3617c767b_story.html?utm_term=.31d5da6446f1

dcra.dc.gov/node/514522