Employment Law Bits

Trademarks and service marks – how to best protect yours

If you own a business that provides goods or services, you may want to protect the marks representing your brand. Obtaining protection for your marks allows you to build a reputation and allow consumers to associate your mark with your particular goods and services. This protection also prevents competitors from using your mark or similar ones that could potentially damage your reputation or confuse consumers.

If you want to register a trademark, you must first ensure that your mark is distinctive and not merely descriptive of your product or service. Next, conduct a search with the U.S Patent and Trademark Office. This will alert you of marks that are already registered. You next need to use the mark in commerce so that the consuming public will recognize your mark as a source identifier.

If you have not yet begun to use a mark, you may file an “intent to use” application. This will allow you to preserve your right to a mark before its use. However, you must make an effort to establish and use the mark within 6 months of registering its intent to use.
Registration will give you nationwide priority over anyone else that adopts a similar mark, but it will not give you protection against people that have been using similar marks prior to your registration.

If you are unable to establish the mark within 6 months, there are extensions available. Once you establish it, you must still file for registration within six months.

Sex Discrimination: Employers can be held liable for terminating an employee based on an angry co-worker’s intent on revenge

Employers can be liable for discrimination under Title VII of the Civil Rights Act even if another co-worker is responsible for the discrimination. The First Circuit recently held that an employer can face liability when it terminates an employee whose job performance has been slandered by an angry co-worker’s intent on revenge. That co-worker does not have to be a supervisor of the employee.

In this case, the employer terminated an employee after receiving poor job performance reviews by that employee’s co-worker. That co-worker allegedly threatened to undercut the employee’s work and get him fired if he did not engage in a sexual relationship with her. The employer was also aware of the entire situation, and still chose to fire the employee.

The court prescribes a test with three factors to determine when an employer will face liability in this type of situation.

1. The coworker must have acted, for discriminatory reasons, with the intent to cause the plaintiff's firing. 
2. The co-worker’s actions must have been the proximate cause of the plaintiff’s firing.
3. The employer allowed the co-worker's acts to achieve their desired effect though it knew (or reasonably should have known) of the discriminatory motivation.

If you are an employer and need more advice on legally terminating an employee involved with an angry revenge-seeking co-worker, please contact an employment law attorney.

Image credit: peeps3354 Under Creative Commons license

ERISA – plan administrators' conflicted duties

The Employee Retirement Income Security Act (ERISA) requires all plan fiduciaries to discharge their duties with respect to a plan solely in the interest of the participants and beneficiaries. A problem arises when what’s best for all participants is not best for a select few beneficiaries.

This situation will generally arise when the fund for a plan is in financial danger. In response, the plan fiduciaries decide to check the eligibility requirements of all those receiving pensions and cancel the benefits of those beneficiaries who were never entitled to a pension in the first place. This is a mechanism applied to help the fund stay financially afloat. It is needed so participants who are not yet entitled to a pension will one day be able to apply for one. However, the plan fiduciaries also have a duty to those already receiving pensions, and by canceling those pensions, they would not be acting in the interest of those beneficiaries.

Courts in general will be more lenient regarding plan fiduciary decisions when they are made to maintain the fund’s actuarial soundness. However, those decisions cannot be arbitrary or capricious, meaning that plan policies cannot be amended for the sole purpose of canceling beneficiary pensions. As a side note, all amended policies must be published so all participants and beneficiaries have the opportunity to protect themselves.

If you are a plan administrator and have a dilemma involving conflicted participant/beneficiary interests please contact an employment law attorney.

Employing youth ages 14 & 15 in restaurants and quick-service establishments

The U.S. Department of Labor produces fact sheets to help make people aware of certain Federal standards. In fact sheet 2a the Fair Labor Standards Act (FLSA) provides important information regarding the employment of youth in restaurants and quick-service establishments. These provisions under the FLSA ensure that when young people work, the work does not jeopardize their health, well-being, or educational opportunities.

If the worker is 14 or 15 years old, there are a few requirements that must be met:

Hours:

• Must work outside school hours
• Cannot work more than 3 hours on a school day, including Friday
• Cannot work no more than 8 hours on a non-school day
• Cannot work no more than 18 hours during a week when school is in session
• Cannot work no more than 40 hours during a week when school is not in session
• May work between 7 a.m. and 7 p.m. between June 1 and Labor day the evening hour is extended to 9 p.m.

14 and 15 year old workers may:

• Perform cashiering, table service and “busing,” and clean-up work including use of vacuum cleaners and floor waxers
• Perform kitchen work involved in the preparation of food and beverages including the operation of devices such as dishwashers, toasters, milk shake blenders, warming lamps, and coffee grinders
• Perform limited cooking duties involving:
• Electric or gas grills as long as they do not entail cooking over an open flame
• Deep fat fryers that are equipped with and utilize devices that automatically raise and lower baskets into and out of the hot grease or oil
• Dispense food from cafeteria lines and steam tables
• Heat food in microwave ovens that do not have a capacity to heat food over 140°F
• Clean kitchen surfaces and non-power driven equipment, and filter, transport and dispose of cooking oil, but only when the temperature does not exceed 100°F

14 and 15 year old workers may NOT:

• Operate NEICO broilers, rotisseries, pressure cookers, fryolators, high-speed ovens, or rapid toasters
• Perform any baking activities
• Operate, clean, set up, adjust, repair, or oil power driven machines including food slicers, grinders, processors, or mixers
• Operate power-driven lawn mowers or cutters, or load or unload goods to or from trucks or conveyors
• Work in freezers or meat coolers, but may occasionally enter a freezer to momentarily retrieve items
• Work with any equipment deemed to be hazardous

If you have any questions regarding the employment of 14 and 15 year olds in a restaurant or quick-service establishment, please refer to Regulations 29 CFR Part 570 or contact an employment law lawyer.