What Every Business Owner Should Know About the Termination of Employees

Unfortunately, employee termination is often a necessary part of running a successful business. Recent statistics show that the federal government collected $350,000,000.00 in fines in one calendar year for employment law violations and that the average settlement payment to a disgruntled employee in a wrongful termination suit was $25,000.00.
Business owners should familiarize themselves with the applicable laws and consult an attorney prior to any employee termination. This will reduce exposure to time consuming and costly litigation and allow business owners to continue doing what they do best: running and managing their business.

Generally, employees without an employment contract are considered at will. Employees at will can be fired by an employer at any time, for any reason or for no reason at all with no resulting liability. Conversely, these “at will” employees are free to end their employment at any time and for any reason.
To prevent subjecting yourself and your business to litigation regarding an employee termination, it is crucial that employers accurately and objectively document each employees performance issue that arises in the course of the employment. Employers should keep a personnel file on every employee and maintain documents concerning employee issues, problems, and discipline.
The failure to property document employee issues, problems, and discipline may subject the owner of a business to unexpected liability.

 

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the business community including business transitions, sales, real estate transactions, lease agreements, employment law and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit  www.obermanlaw.com
If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

VETERINARY ADVERTISING

Veterinarians have a right to promote their practices through advertisements. However, there are ethical advertising standards each veterinarian must follow.

Principles of Veterinary Medical Ethics of the AVMA:

“Advertising by veterinarians is ethical when there are no false, deceptive, or misleading statements or claims. A false, deceptive, or misleading statement or claim is one which communicates false information or is intended, through a material omission, to leave a false impression.” [AVMA Ethics Guidelines]

Honest, nondeceptive advertisements help owners make informed decisions regarding their pet’s care.

For an advertisement to be truthful, there must be evidence to back up each assertion. An advertisement is nondeceptive if it is not likely to mislead a reasonable consumer and does not omit any necessary information for the consumer to make an informed decision. Further, all material information must be disclosed in a manner that a reasonable consumer could understand.

Obviously, truthful advertising is important to both the American Veterinary Medical Association and to the Federal Trade Commission. All states have laws prohibiting false and deceptive advertising. Although every veterinarian must comply with the Federal Trade Commission, each veterinarian should be aware of their state’s laws regarding advertising.

Veterinarians should make a point to understand the law through veterinary associations and, if necessary, with the help of legal counsel. Advertisements are a great resource for veterinary practitioners. As long as veterinarians comply with state and federal law, advertising may go a long way in building mutual trust.

 

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the veterinary profession including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, veterinary board complaints, employment law, and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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Cyber Breaches in Businesses – The New Frontier

Cyber security in a business is becoming more and more complicated. In fact, most businesses have little or no cyber security measures.

Hackers like to target small businesses because they know that a small business owner typically does not have the resources for more sophisticated (and more expensive) security defenses.
How can a business owner secure patient data in a digital world?

 

1. Set up and enforce a strict computer and Internet use policy that restricts employees from reading and downloading personal email while using an office computer.

2. Hire an experienced IT company to set up a strict firewall on your office network. If your business uses wireless, have the IT company hide your wireless network from public view.

3. Train your employees on how viruses infect computers with common user habits such as forwarding personal email messages and downloading computer wallpapers.

4. Keep all anti-virus and anti-malware software updated along with computer operating systems.

5. Always create strong passwords of more than 8 characters that use mixed-case letters and include numbers and symbols.

6. Keep business and home computing separate. Don’t use a laptop at home for fun and then bring it into the office for use on the business network. Business computers should strictly be used for business.

 

 

With the proliferation of cyber breaches in businesses, data security is no longer an option.

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Stuart J. Oberman, Esq. handles a wide range of legal issues for the business community including business transitions, sales, real estate transactions, lease agreements, employment law and entity formation.
For questions or comments regarding this article please call (770) 554-1400 or visit  www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

 

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Work for Hire: Protecting Your Intellectual Property Rights

Many dentists hire independent consultants to develop their website or to perform marketing services to brand their dental office.  However, most dentists are unaware that without a written contract that includes certain specific provisions, the independent consultant may retain the ownership of the intellectual property created.  Because the consultant’s ownership of the intellectual property is not common knowledge, this can create problems for dental offices that do not adequately protect their rights.

 

Copyright law protects work from the time it is created.  The general rule under the Copyright Act states that a person who creates the work is the author of that work, unless the work is designated as “work made for hire.”

 

For example, if a dental office hires a graphic design company to create its’ company logo and a “work made for hire agreement” was not signed before the logo was created, the graphic design company may own all of the right, title and interest to the dental office’s logo.  The graphic design company would be free to license or sell the logo and dilute the market place with similar images.  The dental office would have no control over its own logo.

 

There is, however, an exception to this principle: “works made for hire”.  This doctrine allows for an employer to be considered the author of the work even if an employee created the work. If an employee creates intellectual property for an employer, the employer will own the exclusive rights to work created, if the work was created within the scope of the employee’s employment.  However, although work created by an employee is considered to be “work for hire” and is owned by the employer, the more cautious dental practice owner will still have their employees sign an employment agreement that transfers ownership of work, ideas and inventions to the employer.  Because many employees often work from home or at odd hours, it can be unclear if a concept or idea was created during the course of employment.

 

If an independent contractor is performing the services for a dental practice, the contractor is the lawful owner of the work unless the “works made for hire” requirements are met.  The “work made for hire” doctrine requires that three [3] conditions must be satisfied in order for the hiring business to own the original work.

 

  • First, prior to the commencement of the work, the parties must agree in writing that the work shall be considered “work for hire”.
  • Second, the work must have been “specially ordered” or “commissioned” by the hiring party.
  • Finally, the work must fall within at least one of the nine [9] statutorily mandated categories of commissioned works listed in the Copyright Act. A “work made for hire” is defined in the Copyright Act (15 U.S.C. § 101) as “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas.

 

These requirements necessitate that the parties have a written agreement in place with specific work-for-hire provisions. And since it is not always clear whether the work product falls into one of the nine [9] specified categories authorized by statute, a well-drafted independent contractor agreement should always include language assigning all of the intellectual property rights associated with the work created to the dental practice contracting for the work.

 

Since more and more dental offices hire independent contractors and consultants rather than hiring full-time or part-time employees, the question of ownership regarding intellectual property rights has created a substantial amount of litigation.  The consequences of failing to take the necessary steps in order to protect your dental office’s intellectual property rights can be very problematic, particularly if there is a dispute over payment or the quality of work with the independent contractor or consultant.

 

In today’s digital and knowledge based business world, dental offices are not always careful in protecting their “work made for hire”.  Intellectual property rights associated with work created by employees and independent contractors can be the source of expensive litigation if a dental office becomes successful.  Intellectual property is also an important subject of review during any due diligence period that may be conducted for the purposes of financing and selling a business.  As a matter of general practice, and especially when the intellectual property being created is crucial to the long-term growth of the practice, well-drafted employment and/or independent contractor agreements must be in place.

 

 

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Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.

 

For questions or comments regarding this article please call (770) 554-1400 or visit    www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com).

 

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Responding to OSHA Requests

Initial informal phone calls are becoming more and more frequent from OSHA. First and foremost, you must have a plan in place, if you ever receive such a call from OSHA.

 

 

Letters from OSHA

Typically, when OSHA receives a non-formal complaint, its first investigative step is usually to send a letter to the owner of a practice.

 

 

Telephone Calls From OSHA

When investigating a non-formal complaint, OSHA may also call a practice, in addition to sending an investigatory letter. Responding to an OSHA telephone inquiry poses several unique risks for practice owners.

 

 

Developing an Office Protocol

To avoid potential and unintended problems, practice owners should create a risk management plan for responding to telephone calls from OSHA inspectors. Once formulated, the office protocol should be clearly explained to and followed by all office staff.

 

 

By formulating an office protocol in order to handle OSHA investigations, practice owners can take steps to adequately protect themselves during the investigation process. It is crucial that practice owners plan for OSHA investigation inquiries. In addition, it is also critical that all employees are aware of office protocol regarding OSHA inquiries, in order to avoid unintended consequences.

 

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Stuart J. Oberman, Esq. handles a wide range of legal issues including employment law, practice sales, real estate transactions, lease agreements, OSHA compliance, board complaints, employment law, and entity formation.

 

 

For questions or comments regarding this article please call (770) 554-1400 or visit   www.obermanlaw.com

If you would like Stuart J. Oberman, Esq. to speak at an event to your organization, please contact Katharine Drum, Marketing Coordinator (kath@obermanlaw.com)

 

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