By Allison Yau
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Business owners with employees working in San Francisco, take note: effective January 1, 2012, the San Francisco minimum wage and Health Care Security Ordinance (“HCSO”) Expenditure Rate will increase from their respective 2011 rates. New HCSO regulations will also be implemented at that time.
The San Francisco Health Care Security Ordinance (“HCSO”) requires that covered employers (employers with more than 20 employees and non-profit organizations with 50 or more employees) spend a minimum amount on health care benefits for each of their covered employees. Generally, covered employees are those who work at least eight hours per week in San Francisco and have been employed for more than 90 days. The HCSO Expenditure Rate indicates the minimum amount that an employer must spend for each hour worked by each covered employee. Available options to employers seeking to comply with the HCSO include providing medical, dental, and/or vision insurance; reimbursing employees for their health expenses; various types of medical spending accounts; and the “City Option,” which offers the Healthy San Francisco program (provides affordable health care to uninsured San Francisco residents) and the Medical Reimbursement Account program (allows employees to use their employer’s HCSO contributions toward reimbursements for out of pocket medical expenses).
Minimum Wage Will Be $10.24 Per Hour
The new 2012 minimum wage for all employees performing work in San Francisco, minor or adult, will be $10.24 per hour. This includes temporary and part-time employees who work two or more hours per week. The City of San Francisco adjusts the minimum wage every year to accommodate increases in the regional consumer price index, which “is a measure of the average change over time in the prices paid by urban consumers for a market basket of consumer goods and services” in a particular region. (United States Department of Labor, Bureau of Labor Statistics). The new 2012 Minimum Wage poster, which must be posted in a visible area for employees to easily read, can be found at: http://sfgsa.org/modules/showdocument.aspx?documentid=8171
HCSO Expenditure Rates Will Be $2.20 or $1.46 Per Hour
The mandated HCSO Expenditure Rates will increase in 2012 for both large and medium sized employers. Large-sized employers (employers with 100 or more employees), will be required to spend $2.20 for each hour worked by each covered employee. Medium-sized employers (employers with 20-99 employees), will be required to spend $1.46 for each hour worked by each covered employee. Small-sized employers (employers with less than 19 employees), are exempt from this provision.
New HCSO Regulations
The new HCSO regulations include new posting requirements, as well as changes to requirements for reimbursement accounts (“HRAs”) and requirements for businesses imposing a surcharge on customers to cover the costs of the HCSO spending. First, all covered employers must post at every workplace or jobsite the Official Notice from the Office of Labor Standards Enforcement (“OLSE”) regarding the HCSO. This notice can be found at: http://sfgsa.org/modules/showdocument.aspx?documentid=8221
Second, for businesses which utilize HRAs to satisfy, in whole or in part, the HCSO spending requirement, the following criteria must be met for those contributions to count as health care expenditures:
1. Any HRA funds available at the end of 2011 must roll-over to 2012;
2. The contributions must be reasonably calculated to benefit the employee;
3. The contributions must remain available to the employee for a minimum of twenty-four months from the date of the contribution;
4. The employee must receive a written summary of the contribution within 15 days of the date of the contribution; and
5. Upon separation, employees must be provided with a written summary of their account within 3 days, and the funds must remain available for a minimum of 90 days.
Third, for employers imposing a surcharge on customers to cover, in whole or in part, the costs of the HCSO expenditure requirement, they:
1. […] will be required to report two pieces of data to the OLSE during the annual reporting process: 1) the amount of money collected from the surcharge for employee health care and 2) the amount of money spent on employee health care.
2. If the amount collected from the surcharge is greater than the amount spent on employee health care, [those employers] must irrevocably pay or designate an amount equal to that difference for health care expenditures for [their] employees.
If you are a business owner with employees working in San Francisco, these new updates are especially important for compliance with San Francisco Labor Laws in the New Year. For more information on this topic, feel free to contact Ronnie Gipson at (415) 692-6523 or by email at Gipson@higagipsonllp.com.
Monday, December 19, 2011
Tuesday, December 6, 2011
FAA Reinstates BARR Program
Written By Allison Yau
A December 1, 2011 notice by the Federal Aviation Administration (FAA) to reinstate the Block Aircraft Registration Request (BARR) program to its original reach should have general aviation aircraft owners and operators cheering: all owners and operators, and not just those with a Certified Security Concern, can once again block from public release private data about their plane’s activity. Originally enabled by Congress in 2000, the BARR program allows participants upon request to the FAA to block their N number (an aircraft’s unique registration number) when flying IFR (instrument flight rules: the rules and regulations established by the FAA to govern flight that depends on reference to instruments and electronic signals as opposed to outside visual reference), effectively also blocking any associated data with that number. Associated information includes the aircraft’s altitude, airspeed, destination, and estimated time of arrival.
This reinstatement follows the FAA’s initial proposal on March 4, 2011, to limit the use of the BARR program only to owners and operators providing a Certified Security Concern, established by showing a “Valid Security Concern” or a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m). The proposal defined a “Valid Security Concern” as “a verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against a company.” Qualifying aircraft owners and operators would have been required to annually submit written certification of the continued security concern.
Amidst opposition by the National Business Aviation Association (NBAA), the Aircraft Owners and Pilots Association (AOPA), and other pro-aviation interests, the proposal nevertheless went into effect on August 2, 2011. Chief among the proponents’ objections was that these limitations invaded privacy, posed security risks to those on-board the subject aircrafts, and threatened the United States’ ability to compete in business. In their August 29, 2011, opening brief in the action against the FAA, the NBAA and AOPA argued that the revisions made to the BARR program were unlawful and should be invalidated.
President Obama’s signing of the Transportation, Housing and Urban Development appropriations bill on November 18, 2011, contained a provision to reinstate the BARR program. Following suit, the FAA officially reinstated the program to its original reach. In a letter dated December 1, 2011, from the Department of Justice to the court clerk in the NBAA and AOPA action, the FAA stated that “[e]ffective immediately,” it would “no longer require an owner or operator of general aviation aircraft or of an on-demand air charter aircraft (operating under 14 CFR Part 135) to submit a Certified Security Concern to block that owner or operator’s” N number and associated flight information, excepting data made available to the government.
The FAA is currently developing a permanent policy which will be consistent with the provisions of the recently signed appropriations bill. Meanwhile, in the interim, aircraft owners and operators may submit block requests to the FAA, and the FAA will also continue to block the N numbers of those who have already submitted Certified Safety Concerns. If you are an aircraft owner or operator, it would serve you well to look out for the FAA’s announcement of the permanent policy on the BARR program in the near future.
For more information on this topic, feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 692-6523 or by email at Gipson@higagipsonllp.com. Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.
A December 1, 2011 notice by the Federal Aviation Administration (FAA) to reinstate the Block Aircraft Registration Request (BARR) program to its original reach should have general aviation aircraft owners and operators cheering: all owners and operators, and not just those with a Certified Security Concern, can once again block from public release private data about their plane’s activity. Originally enabled by Congress in 2000, the BARR program allows participants upon request to the FAA to block their N number (an aircraft’s unique registration number) when flying IFR (instrument flight rules: the rules and regulations established by the FAA to govern flight that depends on reference to instruments and electronic signals as opposed to outside visual reference), effectively also blocking any associated data with that number. Associated information includes the aircraft’s altitude, airspeed, destination, and estimated time of arrival.
This reinstatement follows the FAA’s initial proposal on March 4, 2011, to limit the use of the BARR program only to owners and operators providing a Certified Security Concern, established by showing a “Valid Security Concern” or a bona fide business-oriented security concern under Treasury Regulation 1.132-5(m). The proposal defined a “Valid Security Concern” as “a verifiable threat to person, property or company, including a threat of death, kidnapping or serious bodily harm against an individual, a recent history of violent terrorist activity in the geographic area in which the transportation is provided, or a threat against a company.” Qualifying aircraft owners and operators would have been required to annually submit written certification of the continued security concern.
Amidst opposition by the National Business Aviation Association (NBAA), the Aircraft Owners and Pilots Association (AOPA), and other pro-aviation interests, the proposal nevertheless went into effect on August 2, 2011. Chief among the proponents’ objections was that these limitations invaded privacy, posed security risks to those on-board the subject aircrafts, and threatened the United States’ ability to compete in business. In their August 29, 2011, opening brief in the action against the FAA, the NBAA and AOPA argued that the revisions made to the BARR program were unlawful and should be invalidated.
President Obama’s signing of the Transportation, Housing and Urban Development appropriations bill on November 18, 2011, contained a provision to reinstate the BARR program. Following suit, the FAA officially reinstated the program to its original reach. In a letter dated December 1, 2011, from the Department of Justice to the court clerk in the NBAA and AOPA action, the FAA stated that “[e]ffective immediately,” it would “no longer require an owner or operator of general aviation aircraft or of an on-demand air charter aircraft (operating under 14 CFR Part 135) to submit a Certified Security Concern to block that owner or operator’s” N number and associated flight information, excepting data made available to the government.
The FAA is currently developing a permanent policy which will be consistent with the provisions of the recently signed appropriations bill. Meanwhile, in the interim, aircraft owners and operators may submit block requests to the FAA, and the FAA will also continue to block the N numbers of those who have already submitted Certified Safety Concerns. If you are an aircraft owner or operator, it would serve you well to look out for the FAA’s announcement of the permanent policy on the BARR program in the near future.
For more information on this topic, feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 692-6523 or by email at Gipson@higagipsonllp.com. Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.
Monday, December 5, 2011
Payroll Taxes & S-Corporations
As the end of the year quickly approaches, business owners’ thoughts will also turn toward end of the year taxes. To assist with preparations for the upcoming tax filings, this month we have a guest blogger, Fiona Doyle from Paychex. Ms. Doyle’s comments below provide useful insights and suggestions that assist S-Corp. owners to properly plan for tax administration and compliance.
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S‐corps are the most common business entity in the United States, with 61.9% of all U.S. corporations electing federal tax treatment under subchapter S. An S-Corporation is a type of business entity that allows income to flow through the corporation without being taxed until it is claimed as income by the shareholder(s). An S-Corporation Shareholder/Owner may take a portion of their income as a distribution, which is subject only to personal income taxes (federal & state withholdings). The remainder of the shareholder’s income must be classified as a “fair and reasonable salary.” This income is subject to all applicable payroll taxes. A shareholder should discuss what amount of their income should be distribution and what amount should be salary with their CPA. If an S-Corp owner reports dividends with no payroll income, the IRS may audit and reclassify distributions as “reasonable compensation,” so it is important that a shareholder seek the advice of tax professional. The monies that are reclassified are subject to FICA and FUTA - plus penalties for late deposits. The IRS may also assess penalties and interest for not filing the appropriate payroll tax returns in a timely manner. With year-end quickly approaching, now is the right time to evaluate whether or not your income has been properly accounted for in 2011. Before the year closes, speak with your tax professional to determine if you need to appropriate any income you’ve taken as salary. If you do, then you will need to process a year-end payroll.
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Thank you to Fiona Doyle for her comments on payroll tax compliance. If you would like to learn more, then please reach out to Fiona Doyle Kelley at 650-624-0777, ext. 54006 or fdoyle@paychex.com.
Whenever, I assist with the formation of a business entity, one of the components that we address is payroll administration. I strongly advise my clients to consider using a payroll service so that they can focus their time on running their business instead of navigating the myriad of ever-changing payroll regulations. If you need assistance with business entity formation, then contact Ronnie Gipson at (415) 692-6523 or Gipson@higagipsonllp.com.
***
S‐corps are the most common business entity in the United States, with 61.9% of all U.S. corporations electing federal tax treatment under subchapter S. An S-Corporation is a type of business entity that allows income to flow through the corporation without being taxed until it is claimed as income by the shareholder(s). An S-Corporation Shareholder/Owner may take a portion of their income as a distribution, which is subject only to personal income taxes (federal & state withholdings). The remainder of the shareholder’s income must be classified as a “fair and reasonable salary.” This income is subject to all applicable payroll taxes. A shareholder should discuss what amount of their income should be distribution and what amount should be salary with their CPA. If an S-Corp owner reports dividends with no payroll income, the IRS may audit and reclassify distributions as “reasonable compensation,” so it is important that a shareholder seek the advice of tax professional. The monies that are reclassified are subject to FICA and FUTA - plus penalties for late deposits. The IRS may also assess penalties and interest for not filing the appropriate payroll tax returns in a timely manner. With year-end quickly approaching, now is the right time to evaluate whether or not your income has been properly accounted for in 2011. Before the year closes, speak with your tax professional to determine if you need to appropriate any income you’ve taken as salary. If you do, then you will need to process a year-end payroll.
***
Thank you to Fiona Doyle for her comments on payroll tax compliance. If you would like to learn more, then please reach out to Fiona Doyle Kelley at 650-624-0777, ext. 54006 or fdoyle@paychex.com.
Whenever, I assist with the formation of a business entity, one of the components that we address is payroll administration. I strongly advise my clients to consider using a payroll service so that they can focus their time on running their business instead of navigating the myriad of ever-changing payroll regulations. If you need assistance with business entity formation, then contact Ronnie Gipson at (415) 692-6523 or Gipson@higagipsonllp.com.
Wednesday, November 9, 2011
Geography & Trademark Law
Some trademark owners who wish to use geographical terms in their marks may meet some registration hurdles, as well as resistance from other trademark holders with the same idea. Using geographical terms is tightly regulated by the U.S. Patent & Trademark Office, and can only be done in certain circumstances.
You are most likely to be able to use a geographical term in a trademark if it is considered a geographical indicator. This term is used to designate products that have special characteristics due to the place they are from. Fine food enthusiasts refer to these location-specific characteristics as terroir. Producers of such products as Champagne from the Champagne region of France, oranges from Florida, apples from Washington state, and blue cheese from Roquefort, France, want you to believe that their products are special because of the special conditions where they are produced. Despite whether or not you believe this to be true, there does exist protection for these geographical indicators. France’s AOC (Appellation d’Origine Contrôlée) system is one of the most familiar. Producers in geographical areas who wish to obtain AOC-eligible products must meet rigorous production standards. The French model has led to the creation of similar systems in other countries such as Spain (Demonación de Origen), the United States (American Viticultural Areas), and, on a broader scale, Protected Geographical Status in the European Union.
In the United States, Geographical Indicators receive the same amount of protection as trademarks, and are administrated by the U.S. Patent & Trademark Office.
If you are a business owner and you want to use a geographical term such as your city, or even an exotic place you’ve never been to, then be cautious. The U.S. Patent & Trademark Office will refuse a trademark application it finds is geographically descriptive or geographically misdescriptive. Geographically descriptive marks, which merely state the origin of a product without alluding to any link between the quality of the product and the place, are refused to allow other parties to use the same geographical location in their marks. Geographically misdescriptive marks indicate a location other than the origin of the goods. The U.S. Patent & Trademark finds these types of marks could confuse consumers into believing the goods do come from the stated location.
You are most likely to be able to use a geographical term in a trademark if it is considered a geographical indicator. This term is used to designate products that have special characteristics due to the place they are from. Fine food enthusiasts refer to these location-specific characteristics as terroir. Producers of such products as Champagne from the Champagne region of France, oranges from Florida, apples from Washington state, and blue cheese from Roquefort, France, want you to believe that their products are special because of the special conditions where they are produced. Despite whether or not you believe this to be true, there does exist protection for these geographical indicators. France’s AOC (Appellation d’Origine Contrôlée) system is one of the most familiar. Producers in geographical areas who wish to obtain AOC-eligible products must meet rigorous production standards. The French model has led to the creation of similar systems in other countries such as Spain (Demonación de Origen), the United States (American Viticultural Areas), and, on a broader scale, Protected Geographical Status in the European Union.
In the United States, Geographical Indicators receive the same amount of protection as trademarks, and are administrated by the U.S. Patent & Trademark Office.
If you are a business owner and you want to use a geographical term such as your city, or even an exotic place you’ve never been to, then be cautious. The U.S. Patent & Trademark Office will refuse a trademark application it finds is geographically descriptive or geographically misdescriptive. Geographically descriptive marks, which merely state the origin of a product without alluding to any link between the quality of the product and the place, are refused to allow other parties to use the same geographical location in their marks. Geographically misdescriptive marks indicate a location other than the origin of the goods. The U.S. Patent & Trademark finds these types of marks could confuse consumers into believing the goods do come from the stated location.
If you have a question related to trademark applications with or without geographic names, then please contact Special Counsel, Veronique Kherian at vkherian@higagipsonllp.com or at (415) 692-6520 Ext. 109.
Thursday, November 3, 2011
Copyright Infringement & The Fair Use Defense
Many of us have heard of the term “fair use” with regard to copyright protections. Take the Obama 2008 presidential campaign. In that case, artist Shepard Fairey created the famous “HOPE” poster, featuring a painted version of an Associated-Press (AP) photograph of Barak Obama. After the AP made requests for compensation based on Fairey’s use of the photograph, Fairey sought a court finding that his work was protected by fair use, which would free him from obligations to the AP. That case was settled out of court. A fair use defense can be raised in a variety of settings, from technology cases, to music, to fine art, to news stories. Fair use is even what may shelter Google from certain copyright infringement claims when it creates thumbnail images of our search results. Perfect 10 v. Google, Inc., 416 F. Supp. 2d 828 (2006).
In practice, fair use is a defense that can be raised in the event of alleged copyright infringement. Claiming fair use will not prevent a lawsuit from being filed or from going to court, but it can save a defendant from a finding of infringement. What makes fair use so difficult to define? Each fair use analysis is fact-specific, so guidelines are not universal. When looking at facts, though, courts will look at the following elements, found in Title 17, Section 107 of the Copyright Act:
*The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. A finding that the new work is for commercial use will not necessarily lead to a finding against fair use. Courts will look at all of the circumstances surrounding a dispute to determine if fair use can be a successful defense.
*The amount and substantiality of the portion used in relation to the copyrighted work as a whole. What elements of the original work are being copied? Is the entire work copied? That the entire work is copied may not spell the death of your project, under certain circumstances. For instance, in the famous Betamax case, a device that enabled “time-shifting,” or, copying television programs to watch at home at a later time was considered to constitute fair use. Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984). It is more important to look at the amount of the copyrighted work copied in relation to the totality of the new work.
California courts also look at how much the new work has transformed the original work. Taking from a defamation lawsuit, which incorporates some fair use analysis, a comic book that redrew two live-action musicians into half-human, half-worm villains was found to be transformative and included enough original content to warrant protection. Winter v. DC Comics, 69 P.3d 473 (Cal. 2003).
*The nature of the copyrighted work. Is the copyrighted work the kind of work that copyright law intends to protect? A creative copyrighted work may be considered entitled to more protection than news commentary, for instance.
*The effect of the use upon the potential market for, or value of, the copyrighted work. This doesn’t have to relate to the original work in its original form. This part of the analysis can include a market for derivative works—for instance, mugs and t-shirts featuring a movie still. For instance, would a hip-hop take of the classic Roy Orbison song Pretty Woman endanger any of the original song’s market share? The U.S. Supreme Court found that it would not. Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994).
In Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (2006), the court brought in an extra element for consideration—public interest. To determine public interest, the court balances the interests of copyright holders with the interests of the public and the interests of the defendant. However; in the Perfect 10 case, the court instructed the parties to work out such an agreement on their own, and did not provide a framework for deciding the issue.
What does this mean for your particular case? It depends on a number of factors. Fair use has been inconsistently applied in court decisions, and it can be very difficult to assess whether one particular work will be protected by fair use or not. If you do have a question about the fair use defense, then contact Special Counsel Veronique Kherian at (415) 692-6520 ext. 109, or by email at vkherian@higagipsonllp.com.
In practice, fair use is a defense that can be raised in the event of alleged copyright infringement. Claiming fair use will not prevent a lawsuit from being filed or from going to court, but it can save a defendant from a finding of infringement. What makes fair use so difficult to define? Each fair use analysis is fact-specific, so guidelines are not universal. When looking at facts, though, courts will look at the following elements, found in Title 17, Section 107 of the Copyright Act:
*The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes. A finding that the new work is for commercial use will not necessarily lead to a finding against fair use. Courts will look at all of the circumstances surrounding a dispute to determine if fair use can be a successful defense.
*The amount and substantiality of the portion used in relation to the copyrighted work as a whole. What elements of the original work are being copied? Is the entire work copied? That the entire work is copied may not spell the death of your project, under certain circumstances. For instance, in the famous Betamax case, a device that enabled “time-shifting,” or, copying television programs to watch at home at a later time was considered to constitute fair use. Sony Corp. of America v. Universal City Studios, Inc., 464 US 417 (1984). It is more important to look at the amount of the copyrighted work copied in relation to the totality of the new work.
California courts also look at how much the new work has transformed the original work. Taking from a defamation lawsuit, which incorporates some fair use analysis, a comic book that redrew two live-action musicians into half-human, half-worm villains was found to be transformative and included enough original content to warrant protection. Winter v. DC Comics, 69 P.3d 473 (Cal. 2003).
*The nature of the copyrighted work. Is the copyrighted work the kind of work that copyright law intends to protect? A creative copyrighted work may be considered entitled to more protection than news commentary, for instance.
*The effect of the use upon the potential market for, or value of, the copyrighted work. This doesn’t have to relate to the original work in its original form. This part of the analysis can include a market for derivative works—for instance, mugs and t-shirts featuring a movie still. For instance, would a hip-hop take of the classic Roy Orbison song Pretty Woman endanger any of the original song’s market share? The U.S. Supreme Court found that it would not. Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994).
In Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (2006), the court brought in an extra element for consideration—public interest. To determine public interest, the court balances the interests of copyright holders with the interests of the public and the interests of the defendant. However; in the Perfect 10 case, the court instructed the parties to work out such an agreement on their own, and did not provide a framework for deciding the issue.
What does this mean for your particular case? It depends on a number of factors. Fair use has been inconsistently applied in court decisions, and it can be very difficult to assess whether one particular work will be protected by fair use or not. If you do have a question about the fair use defense, then contact Special Counsel Veronique Kherian at (415) 692-6520 ext. 109, or by email at vkherian@higagipsonllp.com.
Tuesday, November 1, 2011
Search Engine Optimization Can Cause Trademark Infringement
Scrutinize Search Engine Optimization Submissions to Avoid Trademark Infringement
A trademark is a word, name, symbol, or device that a business uses to identify its goods or services and to distinguish those goods or services from those offered by others. Accordingly, the owner of a trademark has the exclusive right to use that mark in interstate commerce. Infringement occurs when a party uses a mark identical to or confusingly similar to a trademark owned by another party. The penalties for trademark infringement are not dependent on the intent of the infringer; trademark infringement is categorized as strict liability. In the United States, trademark infringement is pursued under the Lanham Act. Accordingly, a party found liable for trademark infringement may be subject to the following:
• trademark owner’s lost profits;
• costs of court action;
• trademark owner’s attorney’s fees;
• statutory penalties of three times (3X) actual damages; and/or
• infringer’s goods subject to injunction.
Note that Federal law protections apply regardless of whether the owner of the mark registered the mark with the US Patent & Trademark Office.
Armed with this knowledge, most present day business owners refrain from creating marks that are identical to a competitor’s mark or one that is confusingly similar to a competitor’s mark. A problem arises; however, when an examination of a company’s website reveals that the website uses metatags containing trademarks of competitors. Back in 1999, the Ninth Circuit Court of Appeals held that using a competitor’s mark in your company’s metatags may lead to initial interest confusion, which in turn can amount to trademark infringement.
What are metatags? If a consumer searching for a good or service does not know the company’s domain name, then the consumer will use a search engine such as Yahoo® or Internet Explorer® by typing in keywords to look for the target company’s website. When keywords are entered, the search engine processes those words through a self-created index of websites to generate a list of websites relating to the entered keywords. Each search engine uses its own algorithm to arrange indexed materials in sequence, so the list of websites that any particular set of keywords will bring up differs depending on the search engine used. Search engines look for keywords in domain names, actual text on the web page, and in metatags. Metatags are HTML code intended to describe the contents of the web site. Description metatags describe the web site. Keyword metatags contain keywords relating to the contents of the web site.
With this basic understanding of Internet search engines, there exists the possibility for a company to commit trademark infringement in its efforts to drive consumer traffic to its site. With the growth of the Internet, there is an accompanying growth in the number of firms offering Search Engine Optimization services where a company will revamp a company’s website by expanding the keywords used as metatags to boost the company to the top of the search engine’s list when a search is conducted by a consumer. For example, suppose that a company creates a website to market and sell a new soft drink. The website itself and the text on the web pages that make up the website make no reference to its competitors’ mark or products. However, the SEO firm hired by the company to market the new soft drink set up an entire page of metatags designed to hoist the company’s website to the top of searches for soft drinks. On this hypothetical metatags description page, the following terms appear: Pepsi, Coca-Cola, Gatorade, Lipton, and Starbucks among a host of other descriptive terms. The SEO firm inadvertently exposed the soft drink company to at least 4 separate trademark infringement claims. Why? Taking a moment to consider the circumstances reveals the error.
The soft drink company’s competitors have spent a lot of time and money building their respective brands. Yet, by listing the competitors’ trademarks in its metatags, the new soft drink company effectively usurps its competitors’ trademarks as descriptors for its new product. The result will be that a consumer searching for Coca-Cola would be directed to the new soft drink company’s website instead as a result of the search. The new soft drink company is using the fruits of another competitor’s labor and brand building to capture market share. In essence, this redirection of a consumer by using another’s mark amounts to initial interest confusion which could rise to the level of trademark infringement in the wrong circumstances.
The prudent course of action is to closely scrutinize the keywords and descriptors being used to describe your company’s goods or services when the website is initially set up or when a SEO firm is hired to boost traffic to your company’s website. In a trademark infringement action, the owner of the website would be the primary infringer and would be liable for any resulting damages. It is important to note that liability may or may not run to the SEO firm depending on the contractual terms between the parties. In any event, the new soft drink company would be clearly identified as the infringer.
If your company is creating a website or hiring a SEO firm to overhaul your company’s website, then be aware that the use of competitors’ marks in the metatags exposes your company to liability for a trademark infringement claim. The best practice is to eliminate any keywords as metatags that could create initial interest confusion between your products or services and a competitor’s goods or services. For more information on this topic, then contact either Ronnie Gipson at (415) 692-6523, email at gipson@higagipsonllp.com; or Veronique Kherian at (415) 692-6520, email at vkherian@higagipsonllp.com.
A trademark is a word, name, symbol, or device that a business uses to identify its goods or services and to distinguish those goods or services from those offered by others. Accordingly, the owner of a trademark has the exclusive right to use that mark in interstate commerce. Infringement occurs when a party uses a mark identical to or confusingly similar to a trademark owned by another party. The penalties for trademark infringement are not dependent on the intent of the infringer; trademark infringement is categorized as strict liability. In the United States, trademark infringement is pursued under the Lanham Act. Accordingly, a party found liable for trademark infringement may be subject to the following:
• trademark owner’s lost profits;
• costs of court action;
• trademark owner’s attorney’s fees;
• statutory penalties of three times (3X) actual damages; and/or
• infringer’s goods subject to injunction.
Note that Federal law protections apply regardless of whether the owner of the mark registered the mark with the US Patent & Trademark Office.
Armed with this knowledge, most present day business owners refrain from creating marks that are identical to a competitor’s mark or one that is confusingly similar to a competitor’s mark. A problem arises; however, when an examination of a company’s website reveals that the website uses metatags containing trademarks of competitors. Back in 1999, the Ninth Circuit Court of Appeals held that using a competitor’s mark in your company’s metatags may lead to initial interest confusion, which in turn can amount to trademark infringement.
What are metatags? If a consumer searching for a good or service does not know the company’s domain name, then the consumer will use a search engine such as Yahoo® or Internet Explorer® by typing in keywords to look for the target company’s website. When keywords are entered, the search engine processes those words through a self-created index of websites to generate a list of websites relating to the entered keywords. Each search engine uses its own algorithm to arrange indexed materials in sequence, so the list of websites that any particular set of keywords will bring up differs depending on the search engine used. Search engines look for keywords in domain names, actual text on the web page, and in metatags. Metatags are HTML code intended to describe the contents of the web site. Description metatags describe the web site. Keyword metatags contain keywords relating to the contents of the web site.
With this basic understanding of Internet search engines, there exists the possibility for a company to commit trademark infringement in its efforts to drive consumer traffic to its site. With the growth of the Internet, there is an accompanying growth in the number of firms offering Search Engine Optimization services where a company will revamp a company’s website by expanding the keywords used as metatags to boost the company to the top of the search engine’s list when a search is conducted by a consumer. For example, suppose that a company creates a website to market and sell a new soft drink. The website itself and the text on the web pages that make up the website make no reference to its competitors’ mark or products. However, the SEO firm hired by the company to market the new soft drink set up an entire page of metatags designed to hoist the company’s website to the top of searches for soft drinks. On this hypothetical metatags description page, the following terms appear: Pepsi, Coca-Cola, Gatorade, Lipton, and Starbucks among a host of other descriptive terms. The SEO firm inadvertently exposed the soft drink company to at least 4 separate trademark infringement claims. Why? Taking a moment to consider the circumstances reveals the error.
The soft drink company’s competitors have spent a lot of time and money building their respective brands. Yet, by listing the competitors’ trademarks in its metatags, the new soft drink company effectively usurps its competitors’ trademarks as descriptors for its new product. The result will be that a consumer searching for Coca-Cola would be directed to the new soft drink company’s website instead as a result of the search. The new soft drink company is using the fruits of another competitor’s labor and brand building to capture market share. In essence, this redirection of a consumer by using another’s mark amounts to initial interest confusion which could rise to the level of trademark infringement in the wrong circumstances.
The prudent course of action is to closely scrutinize the keywords and descriptors being used to describe your company’s goods or services when the website is initially set up or when a SEO firm is hired to boost traffic to your company’s website. In a trademark infringement action, the owner of the website would be the primary infringer and would be liable for any resulting damages. It is important to note that liability may or may not run to the SEO firm depending on the contractual terms between the parties. In any event, the new soft drink company would be clearly identified as the infringer.
If your company is creating a website or hiring a SEO firm to overhaul your company’s website, then be aware that the use of competitors’ marks in the metatags exposes your company to liability for a trademark infringement claim. The best practice is to eliminate any keywords as metatags that could create initial interest confusion between your products or services and a competitor’s goods or services. For more information on this topic, then contact either Ronnie Gipson at (415) 692-6523, email at gipson@higagipsonllp.com; or Veronique Kherian at (415) 692-6520, email at vkherian@higagipsonllp.com.
Thursday, July 21, 2011
Bringing Your Pet to Work is Not Always A Good Idea
What if you’re out shopping at the local Penny Pinchers, immersed in the fugue of commerce, when all of a sudden, you’re shocked back into a bewildered consciousness by the ominous and rapidly approaching footsteps of a ferocious animal bearing down on you? As you struggle to orient yourself, you begin to recognize the vicious beast’s malevolent growl rising in volume, competing only with the sound of your rapidly exploding heart which is beating a drum in your ears. Bewildered, you arrive at the moment when reason departs and instinct prevails, and you suddenly find yourself sprinting in the opposite direction of your defiant stalker. After running for what felt like miles, you anxiously turn to see if you’ve managed to escape your predator. Just before the animal comes into view …WHAM!!!…you’ve slammed into a freezer at the end of the aisle. At least you still have your sense of humor when you come to realize that you were the prey of a four-pound dachshund named Sophie.
Earlier this month, the Mississippi Court of Appeals ruled in favor of a local outlet of Penny Pinchers, a regional discount grocery chain, in a case where a patron alleged the exacerbation of a pre-existing hip condition which occurred when…you guessed it…she ran from a dog in the store and collided with a freezer display at the end of an aisle. The plaintiff claimed that the puppy constituted a dangerous condition on the property, and that, as such, Penny Pinchers negligently failed to maintain the store in a safe condition by not properly restraining the wiener dog or warning customers of his fearsome presence.
In finding against the plaintiff, the Mississippi Court of Appeals overturned the lower court’s decision that Sophie created a dangerous condition at Penny Pinchers which made them liable for her injuries. In their ruling, the Court of Appeals stated Penny Pinchers had no duty to warn of the perils of the four-pound puppy because Sophie’s presence did not amount to a dangerous condition on the property about which Penny Pinchers knew or should have known. Sophie had never barked at or chased any other customers, and, thus, it was not reasonably foreseeable that she was likely to “attack” anyone.
However, another interesting question is what role the plaintiff’s pre-existing condition and irrational fear of dogs would have played if the appellate court had upheld the trial court’s decision. As a matter of common sense and intuition, it may seem outrageous that a person’s irrational fear of a rat-sized dog could cause her to take off running—only to injure herself when she runs into a large, unyielding appliance on display in a discount store. It may also seem outrageous that the same person would be legally entitled to compensation for the exacerbation of a pre-existing hip condition with origins entirely unrelated to the dog/freezer episode.
Well, California law does not specifically articulate a doctrine dealing with the pre-existing medical conditions of tort plaintiffs—there are no jury instructions discussing the law-school classic “eggshell plaintiff” doctrine or no statutes codifying the sentiment of “taking plaintiffs as you find them.” Instead, California law builds the “eggshell plaintiff” doctrine into the essential elements of a negligent tort claim by identifying it as question of causation.
California law employs the “substantial factor” test to determine causation in negligent tort actions. The “substantial factor” test asks whether or not a defendant’s negligent act was a substantial factor in causing a plaintiff’s particular harm. Further, California law also recognizes that if a tort defendant’s negligent act constitutes a “substantial factor:” in causing the plaintiff’s harm, that defendant cannot avoid responsibility simply because some other condition was also a substantial factor in causing the plaintiff’s harm.
Accordingly, while California does not specifically articulate an “eggshell plaintiff” doctrine or a “pre-existing medical condition” doctrine, California law does honor those principles through its use of the “substantial factor” test for causation. Moreover, the internal logic of the “substantial factor” doctrine may also be argued to take into account even this plaintiff’s irrational fear of dogs.
What’s the lesson to be learned? If you do not want to be exposed to the potential damages supported by the “substantial factor” doctrine, make sure you examine your property for all dangerous or even potentially dangerous conditions. You do not want to end up paying for someone’s trick knee (or hip) just because you wanted to bring your dog to the office every day. If you have questions, or if you are a business owner who needs to defend a premises liability suit, then contact James Higa at (415) 655-6820 or by email at higa@higagipsonllp.com.
Earlier this month, the Mississippi Court of Appeals ruled in favor of a local outlet of Penny Pinchers, a regional discount grocery chain, in a case where a patron alleged the exacerbation of a pre-existing hip condition which occurred when…you guessed it…she ran from a dog in the store and collided with a freezer display at the end of an aisle. The plaintiff claimed that the puppy constituted a dangerous condition on the property, and that, as such, Penny Pinchers negligently failed to maintain the store in a safe condition by not properly restraining the wiener dog or warning customers of his fearsome presence.
In finding against the plaintiff, the Mississippi Court of Appeals overturned the lower court’s decision that Sophie created a dangerous condition at Penny Pinchers which made them liable for her injuries. In their ruling, the Court of Appeals stated Penny Pinchers had no duty to warn of the perils of the four-pound puppy because Sophie’s presence did not amount to a dangerous condition on the property about which Penny Pinchers knew or should have known. Sophie had never barked at or chased any other customers, and, thus, it was not reasonably foreseeable that she was likely to “attack” anyone.
However, another interesting question is what role the plaintiff’s pre-existing condition and irrational fear of dogs would have played if the appellate court had upheld the trial court’s decision. As a matter of common sense and intuition, it may seem outrageous that a person’s irrational fear of a rat-sized dog could cause her to take off running—only to injure herself when she runs into a large, unyielding appliance on display in a discount store. It may also seem outrageous that the same person would be legally entitled to compensation for the exacerbation of a pre-existing hip condition with origins entirely unrelated to the dog/freezer episode.
Well, California law does not specifically articulate a doctrine dealing with the pre-existing medical conditions of tort plaintiffs—there are no jury instructions discussing the law-school classic “eggshell plaintiff” doctrine or no statutes codifying the sentiment of “taking plaintiffs as you find them.” Instead, California law builds the “eggshell plaintiff” doctrine into the essential elements of a negligent tort claim by identifying it as question of causation.
California law employs the “substantial factor” test to determine causation in negligent tort actions. The “substantial factor” test asks whether or not a defendant’s negligent act was a substantial factor in causing a plaintiff’s particular harm. Further, California law also recognizes that if a tort defendant’s negligent act constitutes a “substantial factor:” in causing the plaintiff’s harm, that defendant cannot avoid responsibility simply because some other condition was also a substantial factor in causing the plaintiff’s harm.
Accordingly, while California does not specifically articulate an “eggshell plaintiff” doctrine or a “pre-existing medical condition” doctrine, California law does honor those principles through its use of the “substantial factor” test for causation. Moreover, the internal logic of the “substantial factor” doctrine may also be argued to take into account even this plaintiff’s irrational fear of dogs.
What’s the lesson to be learned? If you do not want to be exposed to the potential damages supported by the “substantial factor” doctrine, make sure you examine your property for all dangerous or even potentially dangerous conditions. You do not want to end up paying for someone’s trick knee (or hip) just because you wanted to bring your dog to the office every day. If you have questions, or if you are a business owner who needs to defend a premises liability suit, then contact James Higa at (415) 655-6820 or by email at higa@higagipsonllp.com.
Tuesday, July 12, 2011
Aviation Fuel Suppliers and Retailers Come Under Fire From California Environmental Group
On May 12, 2011, the Center for Environmental Health (CEH) notified approximately 50 aviation gasoline (AVGAS) suppliers and retailers in California that it intends to sue them for violating the Safe Drinking Water & Toxic Enforcement Act of 1986 (“the Act”). The Act prohibits a business from releasing toxins that can make their way into drinkable water sources. The Act specifically identifies lead as a toxin. The Act provides for civil penalties for violations of the act up to $2,500 per day for each violation. The Act contains a “bounty hunter” provision which authorizes private civil suits and allows the litigants to recoup up to 25% of all civil and criminal penalties collected.
There are important exceptions to the Act’s reach. For instance, if a business has 10 employees or less then that business is exempt. Next, in order for a private lawsuit to proceed under the Act, the private litigant must first give notice and allow 60 days to pass. During this 60 day waiting period, if neither the State Attorney General nor the local District/City Attorney prosecutes an action, then the private litigant may file their lawsuit.
In response to the notification by CEH, the General Aviation Manufacturers Association (GAMA) released a statement highlighting the fact that the regulation of all aviation related activities is within the purview of the Federal government, namely the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). The statement includes the following sentence: “The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.” The points raised by GAMA in its statement segue nicely into a solid argument against CEH’s use of the Act against AVGAS suppliers and retailers based on the Commerce Clause.
Under Article I, Section 8 of the United States Constitution, Congress is given the exclusive power to regulate commerce among the states. This provision is known as the Commerce Clause. The purpose of the Commerce Clause is to prevent the individual states from imposing barriers and obstacles to interstate trade. State legislation that targets the channels of interstate commerce (i.e. the roads, rail lines, telephone lines, or airways); the instrumentalities of interstate commerce (i.e. railroad cars, buses, trucks, and airplanes); or that has a substantial relationship to interstate commerce is prohibited under the Commerce Clause. Piston powered aircraft taking on AVGAS in California travel from state to state in interstate commerce. Without question, CEH’s attempt to regulate AVGAS via the Act runs afoul of the Constitution's Commerce Clause. The legal analysis shows that the actions being challenged by CEH fall squarely into the ambit of protection of the Commerce Clause and the Federal Government. Put another way, the Commerce Clause will not allow the Act to be used as a sword in this way against AVGAS suppliers. As GAMA indicated in its press release, change in this area must come from the Federal Government through agencies such as the FAA and the EPA.
The 60 day notice period that began on May 12, 2011, ended on July 11, 2011. Presumably, CEH will file its lawsuit and serve copies of the complaint on the previously notified parties. If your business is named as a party to the suit by CEH, then you must take action to protect your legal rights by contacting an attorney. If you have more questions or concerns, then feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 655-6820 or by email at Gipson@higagipsonllp.com.
Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.
There are important exceptions to the Act’s reach. For instance, if a business has 10 employees or less then that business is exempt. Next, in order for a private lawsuit to proceed under the Act, the private litigant must first give notice and allow 60 days to pass. During this 60 day waiting period, if neither the State Attorney General nor the local District/City Attorney prosecutes an action, then the private litigant may file their lawsuit.
In response to the notification by CEH, the General Aviation Manufacturers Association (GAMA) released a statement highlighting the fact that the regulation of all aviation related activities is within the purview of the Federal government, namely the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). The statement includes the following sentence: “The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.” The points raised by GAMA in its statement segue nicely into a solid argument against CEH’s use of the Act against AVGAS suppliers and retailers based on the Commerce Clause.
Under Article I, Section 8 of the United States Constitution, Congress is given the exclusive power to regulate commerce among the states. This provision is known as the Commerce Clause. The purpose of the Commerce Clause is to prevent the individual states from imposing barriers and obstacles to interstate trade. State legislation that targets the channels of interstate commerce (i.e. the roads, rail lines, telephone lines, or airways); the instrumentalities of interstate commerce (i.e. railroad cars, buses, trucks, and airplanes); or that has a substantial relationship to interstate commerce is prohibited under the Commerce Clause. Piston powered aircraft taking on AVGAS in California travel from state to state in interstate commerce. Without question, CEH’s attempt to regulate AVGAS via the Act runs afoul of the Constitution's Commerce Clause. The legal analysis shows that the actions being challenged by CEH fall squarely into the ambit of protection of the Commerce Clause and the Federal Government. Put another way, the Commerce Clause will not allow the Act to be used as a sword in this way against AVGAS suppliers. As GAMA indicated in its press release, change in this area must come from the Federal Government through agencies such as the FAA and the EPA.
The 60 day notice period that began on May 12, 2011, ended on July 11, 2011. Presumably, CEH will file its lawsuit and serve copies of the complaint on the previously notified parties. If your business is named as a party to the suit by CEH, then you must take action to protect your legal rights by contacting an attorney. If you have more questions or concerns, then feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 655-6820 or by email at Gipson@higagipsonllp.com.
Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.
Tuesday, June 7, 2011
The Supreme Court's Recent Ruling on the "Legal Arizona Workers Act" & its Impact on California Employers
Individual states that have passed laws aimed at preventing undocumented illegal aliens from obtaining employment within the state is a hot political topic. The Supreme Court recently upheld a decision by the Ninth Circuit Court of Appeals that legitimized a state’s law imposing harsh penalties for businesses in the state that knowingly and willingly violate the Federal law. California is one of the states in the Ninth circuit, thus it behooves business owners to be aware that California could implement a similar statute that would survive judicial scrutiny and significantly impact a company’s bottom line and operational capability if intentional violations occur.
Arizona Law
In 2007, Arizona passed into law the Legal Arizona Workers Act (“LAWA”), which provides that where an employer knowingly or intentionally employs an unauthorized alien, Arizona courts are authorized to suspend or revoke those licenses necessary to do business in the State of Arizona. As with the federal law addressing this issue, good faith I-9 compliance by an employer provides that employer with an affirmative defense to an alleged violation of this statute.
Under the Arizona law, various sanctions are imposed depending on the extent of the violation. When the employer has had one instance of “knowingly employing an unauthorized alien,” the licensing law requires that the court order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of three years, as well as “order the appropriate agencies to suspend all licenses . . . that are held by the employer for” not more than ten business days. A second violation requires the court to “permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work.”
Supreme Court Ruling
In the case of Chamber of Commerce of the United States of America, et al., v. Michael B. Whiting, et al., decided by the Supreme Court of the US, the Court held that the Arizona licensing law imposing penalties on employers knowingly or intentionally employing unauthorized aliens was not expressly or impliedly preempted by the Immigration Reform and Control Act (“IRCA”) provisions prohibiting States from imposing additional sanctions under the Act. The Court found that the Arizona licensing law fell under IRCA’s reservation of States’ rights through a savings clause to impose sanctions “through licensing and similar laws.” The licensing laws fell under this savings clause, thus they were upheld and found to be valid. Furthermore as an additional basis for its holding, the Supreme Court did not find an indication of implied or express preemption by Congress in the IRCA for the Arizona licensing law.
Current Impact on California Employers
California currently does not have any similar law likened to the Arizona licensing law; therefore, this recent ruling by the Supreme Court does not have any immediate impact on California employers. Rather, only compliance with the current federal scheme- the Immigration Reform and Control Act is required with respect to documentation of new workers. Compliance with the federal law requires that all employers must review certain documents establishing an employee’s eligibility for employment. Eligibility may be confirmed by review of the potential employee’s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by review of a combination of documents prescribed in 8 U.S.C. § 1324a. Further, the employer “must attest, under penalty of perjury and on a form designated by the Attorney General by regulation, [the Supreme Court names the I-9 as this designated form,] that the employer has verified that the individual is not an unauthorized alien by examining” the requisite documents. Several other states have similar licensing provisions to Arizona. Support from this recent ruling may have the effect of encouraging similar more stringent employment procedures by other states looking to preserve jobs for legal citizens.
In addition to Arizona, three states-Utah, Mississippi, and Virginia, have passed statutes mandating the use of E-Verify, but California is not one of them. (E-Verify is a voluntary Internet based system that allows an employer to verify an employee’s work authorization status through the submission of a request to the E-Verify system about a potential employee. The employer receives either a confirmation of the employee’s authorization to work or a non-confirmation indication from the system.) While the recent Court decision allowing Arizona to mandate use of the E-Verify system is significant, it marks no significant change for California employers in its use of E-Verify. In California, an employer’s use of the E-Verify system remains optional. Though the recent U.S. Supreme Court ruling regarding Arizona law does not have an immediate bearing on California employers, this decision still may affect California employers to the extent that it encourages similar legislation in California. As a business owner, if you require guidance with employee verification requirements for new employees in compliance with the federal immigration laws referenced above, then contact Ronnie Gipson at (415) 655-6820 or by email at info@higagipsonllp.com.
Arizona Law
In 2007, Arizona passed into law the Legal Arizona Workers Act (“LAWA”), which provides that where an employer knowingly or intentionally employs an unauthorized alien, Arizona courts are authorized to suspend or revoke those licenses necessary to do business in the State of Arizona. As with the federal law addressing this issue, good faith I-9 compliance by an employer provides that employer with an affirmative defense to an alleged violation of this statute.
Under the Arizona law, various sanctions are imposed depending on the extent of the violation. When the employer has had one instance of “knowingly employing an unauthorized alien,” the licensing law requires that the court order the employer to terminate the employment of all unauthorized aliens and file quarterly reports on all new hires for a probationary period of three years, as well as “order the appropriate agencies to suspend all licenses . . . that are held by the employer for” not more than ten business days. A second violation requires the court to “permanently revoke all licenses that are held by the employer specific to the business location where the unauthorized alien performed work.”
Supreme Court Ruling
In the case of Chamber of Commerce of the United States of America, et al., v. Michael B. Whiting, et al., decided by the Supreme Court of the US, the Court held that the Arizona licensing law imposing penalties on employers knowingly or intentionally employing unauthorized aliens was not expressly or impliedly preempted by the Immigration Reform and Control Act (“IRCA”) provisions prohibiting States from imposing additional sanctions under the Act. The Court found that the Arizona licensing law fell under IRCA’s reservation of States’ rights through a savings clause to impose sanctions “through licensing and similar laws.” The licensing laws fell under this savings clause, thus they were upheld and found to be valid. Furthermore as an additional basis for its holding, the Supreme Court did not find an indication of implied or express preemption by Congress in the IRCA for the Arizona licensing law.
Current Impact on California Employers
California currently does not have any similar law likened to the Arizona licensing law; therefore, this recent ruling by the Supreme Court does not have any immediate impact on California employers. Rather, only compliance with the current federal scheme- the Immigration Reform and Control Act is required with respect to documentation of new workers. Compliance with the federal law requires that all employers must review certain documents establishing an employee’s eligibility for employment. Eligibility may be confirmed by review of the potential employee’s United States passport, resident alien card, alien registration card, or other document approved by the Attorney General; or by review of a combination of documents prescribed in 8 U.S.C. § 1324a. Further, the employer “must attest, under penalty of perjury and on a form designated by the Attorney General by regulation, [the Supreme Court names the I-9 as this designated form,] that the employer has verified that the individual is not an unauthorized alien by examining” the requisite documents. Several other states have similar licensing provisions to Arizona. Support from this recent ruling may have the effect of encouraging similar more stringent employment procedures by other states looking to preserve jobs for legal citizens.
In addition to Arizona, three states-Utah, Mississippi, and Virginia, have passed statutes mandating the use of E-Verify, but California is not one of them. (E-Verify is a voluntary Internet based system that allows an employer to verify an employee’s work authorization status through the submission of a request to the E-Verify system about a potential employee. The employer receives either a confirmation of the employee’s authorization to work or a non-confirmation indication from the system.) While the recent Court decision allowing Arizona to mandate use of the E-Verify system is significant, it marks no significant change for California employers in its use of E-Verify. In California, an employer’s use of the E-Verify system remains optional. Though the recent U.S. Supreme Court ruling regarding Arizona law does not have an immediate bearing on California employers, this decision still may affect California employers to the extent that it encourages similar legislation in California. As a business owner, if you require guidance with employee verification requirements for new employees in compliance with the federal immigration laws referenced above, then contact Ronnie Gipson at (415) 655-6820 or by email at info@higagipsonllp.com.
Friday, March 11, 2011
The 2011 Stimulus Package Mandates that Employers Adjust Their Employees' Social Security Tax Contributions
In December 2010, President Obama signed a new tax bill, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010. Included in this tax bill was a stimulus measure for 2011, commonly referred to as the “Payroll Tax Holiday.” The Payroll Tax Holiday is a temporary one (1) year decrease in the employee’s portion of the social security tax that is deducted from the employee’s pay. Normally, an employee contributes 6.2% of his/her gross pay to Social Security. With the application of the Payroll Tax Holiday, the employee portion of the tax is reduced by 2.0% to 4.2%. Sadly, employers do not receive the same reduction. Thus, employers for 2011 continue to contribute 6.2% of the gross pay to Social Security. Because the tax law was passed with little time to implement changes before the start of 2011, the Internal Revenue Service advises employers to make adjustments to their employee’s paychecks “as soon as possible but not later than March 31st.”
Were you aware of the change in Social Security taxes for your employees? If your answer is “No”, then you are not alone. For more information or assistance with making your business compliant with this law, then contact Ronnie Gipson at (415) 655-6820 or via email at gipson@higagipsonllp.com.
The law firm of Higa & Gipson, LLP would like to extend its gratitude to Alison Heineman, with Keeping Your Balance- Bookkeeping, Tax & Payroll Services. Ms. Heineman provided the particulars of the new tax law’s implication for employers. Ms. Heineman can be reached at (415) 399-9844.
Were you aware of the change in Social Security taxes for your employees? If your answer is “No”, then you are not alone. For more information or assistance with making your business compliant with this law, then contact Ronnie Gipson at (415) 655-6820 or via email at gipson@higagipsonllp.com.
The law firm of Higa & Gipson, LLP would like to extend its gratitude to Alison Heineman, with Keeping Your Balance- Bookkeeping, Tax & Payroll Services. Ms. Heineman provided the particulars of the new tax law’s implication for employers. Ms. Heineman can be reached at (415) 399-9844.
Friday, February 11, 2011
The FAA’s Longtime Expunction Policy is Suspended
Since 1991, it has been the policy of the FAA to expunge, with some exceptions, an airmen’s record of an infraction after 5 years when the FAA has taken action in a civil penalty case or certificate action case. In August 2010, an amendment to the Pilot Records Improvement Act (PRIA), codified in 49 USCS 44703, quietly eliminated the FAA’s ability to continue this policy. The change to the law requires the FAA to create an electronic database that includes, “…summaries of legal enforcement actions resulting in a finding by the Administrator of a violation of this title or a regulation prescribed or order issued under this title that was not subsequently overturned.” Language appearing later in the text of the statute requires that the FAA maintain the entries in the electronic database until the FAA receives a notification that the Airmen is deceased. These two requirements taken together conflict with the FAA’s policy of expunging records of legal enforcement actions against individuals that resulted in a finding of a violation.
The aviation community was notified in a letter dated February 4, 2011, by the FAA’s Chief Counsel that the FAA suspended the expunction policy. The last expunction conducted by the FAA related to Airmen certificates occurred on November 1, 2010. It is important to note that administrative actions and cases with no enforcement action will continue to be expunged, as PRIA does not require the FAA to place these types of entries into the pilot record database. The full impact of the changes to the PRIA have not been determined. Once the FAA completes its analysis of the impact, the agency plans to amend the expunction policy accordingly and alert the aviation community through the Federal Register system. In the interim, if you have questions about the changes to the expunction policy and how it may impact your certificate, then contact Ronnie Gipson at (415) 655-6820 or by email at Gipson@higagipsonllp.com.
The aviation community was notified in a letter dated February 4, 2011, by the FAA’s Chief Counsel that the FAA suspended the expunction policy. The last expunction conducted by the FAA related to Airmen certificates occurred on November 1, 2010. It is important to note that administrative actions and cases with no enforcement action will continue to be expunged, as PRIA does not require the FAA to place these types of entries into the pilot record database. The full impact of the changes to the PRIA have not been determined. Once the FAA completes its analysis of the impact, the agency plans to amend the expunction policy accordingly and alert the aviation community through the Federal Register system. In the interim, if you have questions about the changes to the expunction policy and how it may impact your certificate, then contact Ronnie Gipson at (415) 655-6820 or by email at Gipson@higagipsonllp.com.
Thursday, February 10, 2011
Legal Issues to Consider Before You Launch a Website for Your Business
Today’s businesses often rely on the use of a website to market their services and/or products as well as convey information to consumers. The Internet has become so pervasive in our daily lives that consumers often turn to it before trying a new restaurant for the first time, to read reviews on a particular product, or to decide whether or not to purchase items from a company that is not a well-known big box retailer. Another advantage of the Internet is that it allows businesses to reach a consumer across the country or around the globe. As a result, businesses develop a niche and specialize in products/services that may not have been able to sustain their business if the company were restricted to a small geographic location.
Before you, as a business owner, take the plunge by setting up a website, you must protect your business from potential legal liability arising from the existence of a website. Such protection can be gained by having a Terms of Use Agreement and a Privacy Policy in place to minimize legal liability. A Terms of Use agreement (TUA) is a contract between the website user and your business that accomplishes the following tasks: (i) specifically describes the intended purpose and use of your website in conjunction with your business; (ii) identifies any pertinent, important contractual terms that are necessary as a result of the Internet relationship; and (iii) clearly identifies the proper forum and venue for resolving disputes arising from a consumer’s use of your company’s website. The TUA can be embedded in a pop-up notification that the consumer must read and affirmatively agree to prior to using the website. Alternatively, the TUA can take the form of a notice posted on the website that automatically binds all users of the website. The specific provisions that should be included in a TUA depend on your business and the purpose and content of the website. For example, if your website facilitates electronic transactions such as those involving the sale of items, the TUA must conform to the Uniform Computer Information Transactions Act.
With the rapid growth of the Internet, privacy issues regarding the disclosure of a user’s personal information through the Internet and data collection practices are a hot topic in legal circles. Owners of websites become privy to consumers’ personal information either by request or by electronic tracking. For example, if the business operates a member-based website which requires a user to sign up for an account, then the business often requires the user to reveal personal information such as date of birth, an address, or credit card number for identity verification. In a face-to-face transaction, a savvy consumer would hesitate to reveal such personal information without the assurance of a Privacy Policy to protect the information from being sold or transmitted to third parties that may use the information maliciously. The same precautions must be in place with the use of a website that captures a consumer’s personal information.
California’s Online Privacy Protection Act requires commercial websites to display a Privacy Policy that includes specific provisions that detail the type of information that is gathered, what the business intends to do with such information, and a description of the process for communicating changes in the Privacy Policy to the consumer, among other things. As part of your website’s Privacy Policy, your business should design and implement security measures to prevent a breach in your website’s security and a procedure to be taken in case of such a breach. It is important that the Privacy Policy accurately reflects security measures and procedures that your business actually follows. If your website simply displays a Privacy Policy that sounds good to the consumer but is not an accurate reflection of your business’ procedures, this leaves your business open to a potential lawsuit.
As you can see from this brief article on website use, a business must take great care when it generates a presence on the Internet. If you have questions about whether your company’s website complies with the applicable laws, then you should contact Ronnie Gipson at (415) 655-6820 or by email at gipson@higagipsonllp.com.
Before you, as a business owner, take the plunge by setting up a website, you must protect your business from potential legal liability arising from the existence of a website. Such protection can be gained by having a Terms of Use Agreement and a Privacy Policy in place to minimize legal liability. A Terms of Use agreement (TUA) is a contract between the website user and your business that accomplishes the following tasks: (i) specifically describes the intended purpose and use of your website in conjunction with your business; (ii) identifies any pertinent, important contractual terms that are necessary as a result of the Internet relationship; and (iii) clearly identifies the proper forum and venue for resolving disputes arising from a consumer’s use of your company’s website. The TUA can be embedded in a pop-up notification that the consumer must read and affirmatively agree to prior to using the website. Alternatively, the TUA can take the form of a notice posted on the website that automatically binds all users of the website. The specific provisions that should be included in a TUA depend on your business and the purpose and content of the website. For example, if your website facilitates electronic transactions such as those involving the sale of items, the TUA must conform to the Uniform Computer Information Transactions Act.
With the rapid growth of the Internet, privacy issues regarding the disclosure of a user’s personal information through the Internet and data collection practices are a hot topic in legal circles. Owners of websites become privy to consumers’ personal information either by request or by electronic tracking. For example, if the business operates a member-based website which requires a user to sign up for an account, then the business often requires the user to reveal personal information such as date of birth, an address, or credit card number for identity verification. In a face-to-face transaction, a savvy consumer would hesitate to reveal such personal information without the assurance of a Privacy Policy to protect the information from being sold or transmitted to third parties that may use the information maliciously. The same precautions must be in place with the use of a website that captures a consumer’s personal information.
California’s Online Privacy Protection Act requires commercial websites to display a Privacy Policy that includes specific provisions that detail the type of information that is gathered, what the business intends to do with such information, and a description of the process for communicating changes in the Privacy Policy to the consumer, among other things. As part of your website’s Privacy Policy, your business should design and implement security measures to prevent a breach in your website’s security and a procedure to be taken in case of such a breach. It is important that the Privacy Policy accurately reflects security measures and procedures that your business actually follows. If your website simply displays a Privacy Policy that sounds good to the consumer but is not an accurate reflection of your business’ procedures, this leaves your business open to a potential lawsuit.
As you can see from this brief article on website use, a business must take great care when it generates a presence on the Internet. If you have questions about whether your company’s website complies with the applicable laws, then you should contact Ronnie Gipson at (415) 655-6820 or by email at gipson@higagipsonllp.com.
Tuesday, January 4, 2011
Comply with FAR 91.103 and Review the FAR/AIM 2011 Before Your Next Flight
The pilot in command of an aircraft carries huge responsibilities on his/her shoulders when operating an aircraft. The potential for catastrophic property damage and loss of life is inherent in air operations. Accordingly, FAR 91.103 provides in pertinent part, "Each pilot in command, shall before beginning a flight, become familiar with all available information concerning that flight."
Ask yourself this question, "How do the latest rule changes in the National Airspace System and operating regulations impact the way I conduct my flights?" If you fail to ardently strive to make yourself aware of changes, then the seeds for a chain of events leading to a busted regulation have already been planted. A great way to refresh your familiarity with the regulations and the changes is to review the FAR/AIM 2011 which is now available. Identifying changes to regulations and standard operating procedures is easily detected by the solid black bar that appears within the borders of the text in the FAR/AIM.
The FAR/AIM incorporates in one place all of the changes to rules and regulations affecting airmen since the last publication of the FAR/AIM in 2010. For instance, in February 2010, the FAA instituted a change that prohibits the operation of an aircraft under Parts 91, 125, and 135 with "polished frost" on the wings of stabilizer and control surfaces of the aircraft. If you missed the notification of this rule change, then a review of the FAR/AIM 2011 would alert you to the change.
To drive the point home, consider the legal impact. If an airmen operates an aircraft under Part 91 with the mistaken belief that polished frost is allowed, then the airmen has arguably failed to make himself/herself familiar with all available information prior to conducting the flight. While polished frost may not relate to your flying, it is a good bet that a handful of the other changes that appear in the FAR/AIM will impact the safety of your flying. As an airmen, the failure to make yourself aware of the changes could land you on the wrong side of an enforcement action resulting in separation from you with your hard earned cash at best, or with your certificate at worst.
The message is clear, utilize the resources available and take the time to review the newly updated FAR/AIM. The act will help you rediscover facts about safe operations that you may have forgotten and it is without question a necessary component for compliance with FAR 91.103. If you have questions about the points raised in this article, then contact Ronnie Gipson at gipson@higagipsonllp.com.
Ask yourself this question, "How do the latest rule changes in the National Airspace System and operating regulations impact the way I conduct my flights?" If you fail to ardently strive to make yourself aware of changes, then the seeds for a chain of events leading to a busted regulation have already been planted. A great way to refresh your familiarity with the regulations and the changes is to review the FAR/AIM 2011 which is now available. Identifying changes to regulations and standard operating procedures is easily detected by the solid black bar that appears within the borders of the text in the FAR/AIM.
The FAR/AIM incorporates in one place all of the changes to rules and regulations affecting airmen since the last publication of the FAR/AIM in 2010. For instance, in February 2010, the FAA instituted a change that prohibits the operation of an aircraft under Parts 91, 125, and 135 with "polished frost" on the wings of stabilizer and control surfaces of the aircraft. If you missed the notification of this rule change, then a review of the FAR/AIM 2011 would alert you to the change.
To drive the point home, consider the legal impact. If an airmen operates an aircraft under Part 91 with the mistaken belief that polished frost is allowed, then the airmen has arguably failed to make himself/herself familiar with all available information prior to conducting the flight. While polished frost may not relate to your flying, it is a good bet that a handful of the other changes that appear in the FAR/AIM will impact the safety of your flying. As an airmen, the failure to make yourself aware of the changes could land you on the wrong side of an enforcement action resulting in separation from you with your hard earned cash at best, or with your certificate at worst.
The message is clear, utilize the resources available and take the time to review the newly updated FAR/AIM. The act will help you rediscover facts about safe operations that you may have forgotten and it is without question a necessary component for compliance with FAR 91.103. If you have questions about the points raised in this article, then contact Ronnie Gipson at gipson@higagipsonllp.com.
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