Health Information Privacy After Death

If you've ever visited a physician's office, you are aware of the federal HIPPA (Health Insurance Portability and Accountability Act) regulations, which protect the privacy of personally identifiable health information.

The HIPPA Privacy Rule extends to protect a deceased individual's information for 50 years after death. But how can a family member can obtain the private information of a deceased individual?

First, a health care provider may - but is not required to - disclose the information to an individual (such as a surviving spouse) if 1) the individual was involved in the deceased's health care or payment for the health care and 2) the deceased did not express a preference to keep the information from the individual.  Information shared must be related to the individual's involvement in care or payment.  If the entity knows that the deceased did not want information shared with the requester, it should not do so.

Second, the provider is required to release personal health information if requested by the decedent's personal representative (such as an executor named in a will or an adminstrator appointed by a probate court).    In this case, the legal representative steps into the shoes of the decedent.  Even if the decedent expressed a preference to keep that information from the representative, the entity must release the information.

More background information on the Privacy Rule's application to the health information of decedents is available from the U.S. Department of Health and Human Services.

Tax Reform Could Distinguish Between Pass-Through Businesses

In April, the Trump Administration announced a broad outline for tax reform which included proposals to cut the top individual tax rate to 35% and reduce the top business tax rate to 15%.   This reduced business rate would also apply to "pass-through businesses" - the majority of U.S. businesses who report income on their owners' tax returns rather than paying corporate income taxes.

However, Treasury Secretary Steven Mnuchin recently indicated that the reduced pass-through rate may not be available to service companies.

From the Wall Street Journal:

The idea is to create a special tax rate that is equal to or higher than the corporate tax rate but lower than the tax rate that applies to wages. That new rate would apply to pass-through business income but with boundaries to prevent it from being used by people whose income from service businesses closely resembles wages. 

...

Under a system like the one Mr. Mnuchin described, the owners of an accounting partnership would pay the individual tax rate on both their salaries and their partnership distributions. But the owners of a manufacturing partnership would pay the individual tax rate on their salaries and the special, lower rate on their profits.
...

It could be a challenge to define which companies get the lower tax rate Republicans are planning and which owners of companies would continue paying higher individual tax rates on their business income. Creating that distinction would cut against another Republican goal for the tax code: simplification. Possibly affected industries include law, engineering, medicine, finance, architecture and consulting.

Although many details are still lacking from the proposal, such a distinction - if included in the proposed legislation - could have a major impact on closely held businesses. The White House and Republican congressional leaders hope to reveal the full tax reform plan by the end of September.

OSU vs. OSU

Instead of facing off on the athletic fields, Ohio State University and Oklahoma State University are currently engaged in a different contest - a trademark dispute before the United States Patent and Trademark Office.  Earlier this year, Oklahoma State signaled its objection to Ohio State's trademark application seeking to protect the use of the mark "OSU" on shirts, hats, and baseball caps.

From the Columbus Dispatch:

Ohio State University, which already owns a host of trademarks, filed an application in February with the U.S. Patent and Trademark Office, seeking to trademark “OSU,” specifically on clothing and apparel.

But another university that holds the acronym near and dear is stepping in.

Oklahoma State University filed for an extension with the U.S. Patent and Trademark Office, indicating it plans to file a notice of opposition to the trademark request. The office approved that request, granting Oklahoma State until the end of August to file its objection.

These actions are a normal part of the trademark application process. The application timeline includes a period of public notice designed to permit other parties who believe they may have a claim to the mark to object to the mark's registration. 

When an objection is filed, the parties often try to resolve the matter informally through a shared use agreement.  In this case, the universities are expected to reach an settlement which is mutually acceptable to both OSUs.

Trademarks that Disparage, Part II

A previous blog post discussed the United States Supreme Court's consideration of Lee v. Tam, a case involving whether an Asian-American rock band was permitted to register a potentially offensive trademark.  In a 7-0 decision this week, the Court sided with the band.

More from NPR News:

Members of the rock band The Slants have the right to call themselves by a disparaging name, the Supreme Court says, in a ruling that could have broad impact on how the First Amendment is applied in other trademark cases.

The Slants' leader Simon Tam filed a lawsuit after the Patent and Trademark Office kept the band from registering its name and rejected its appeal, citing the Lanham Act, which prohibits any trademark that could "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead," as the court states.

After a federal court agreed with Tam and his bands, the Patent and Trademark Office sued the band to avoid being compelled to register its name as a trademark. On Monday, the Supreme Court sided with The Slants.

"The disparagement clause violates the First Amendment's Free Speech Clause," Justice Samuel Alito wrote in his opinion for the court. Contrary to the Government's contention, trademarks are private, not government speech."

The decision is likely to have an impact on other pending disputes, including challenges to the marks held by the Washington Redskins.

Creativity in Employment Contracts

Seattle Seahawks football player Eddie Lacy recently received a $55,000 employment bonus - not for his performance on the field, but for weighing a required weight at the beginning of training camp.

ESPN.com reported on this and other clauses in the employment contracts of professional athletes, including:

• why Michael Jordan's "love for the game" clause specifically allowing him to play basketball anytime, anywhere;
  
• why Baseball Hall of Famer Rollie Fingers was paid a bonus to grow his famous mustache; and
  
• why English footballer Stefan Schwarz was prohibited from traveling into space.

The takeaway from these unique clauses: when drafting your employment contracts, don't be afraid to think outside the box.  A creative contract may be just what is needed to attract or retain a talented employee. 

Packing Up A Business Entity

New business owners often have an understanding that certain legal formalities must be taken when a business opens - but they may not know that similar formalities apply if and when the business closes. In fact, if a limited liability company ("LLC") or other business entity has ceased operations, it must be formally terminated through a process called dissolution. 

Under Ohio law, a limited liability company ("LLC") must be dissolved if it has fulfilled its purpose or there is a unanimous agreement amongst the members to dissolve the company. A court may also instruct the LLC to wind up its business. As a final step after its affairs are concluded, the LLC and/or member must file a Certificate of Dissolution with the Ohio Secretary of State. 

Depending on the type and purpose of the entity, other actions may need to be taken at the time of dissolution. For example, businesses which are closing may also have certain federal or state tax responsibilities to fulfill before the company is officially out of business.

All You Need is .... A Trademark?

From the U.S. Patent & Trademark Office:

Are you a solo performer?  A member of a band?  Do you want nationwide protection for your name?

As your music grows in popularity, so does your need to help consumers identify you as the source of your unique sound.  One way to do that is by registering your name as a trademark with the United States Patent and Trademark Office.  Federal registration provides nationwide benefits that you can use to enforce your trademark rights.

The U.S. Patent & Trademark Office provides the answers to many frequently asked questions regarding musical trademarks, such as:

• What happens to a trademark if the band's drummer, Pete is replaced by a new drummer, Ringo?  
• Can you object if a proposed mark is likely to cause confusion with your protected mark? 
• Which goods or services are used in connection with your mark?

In addition to obtaining trademarks, musical artists should consider forming a limited liability company to protect their assets or filing federal copyright applications to preserve rights in individual works.  Contact our office today if we can be of assistance with these or other legal matters related to your music.

Opening Day Read: Baseball Mascots and the Law

Just in time for Opening Day 2017, Attorney Christian H. Brill and Prof. Howard W. Brill have published a comprehensive examination of legal disputes involving mascots and America's national pastime.

"Baseball Mascots and the Law" discusses a variety of legal questions involving mascots, such as:

• Can a Dayton Dragons fan sue if she was distracted by a mascot’s performance when she was injured by a foul ball?
• Do the actions of an “unofficial mascot” tarnish the protected trademarks of the Chicago Cubs?
• Can a Pittsburgh Pirates mascot be fired for disparaging comments posted on social media?
• Does the arrest of protestors burning a Cleveland Indians mascot effigy violate free speech rights?

Originally presented at the 27th Cooperstown Symposium on Baseball and American Culture at the National Baseball Hall of Fame and Museum in Cooperstown, New York, the article covers such areas of law as tort law, intellectual property law, and employment law.

The entire article is available from the Kansas Law Review.

Protecting Yourself from Online Fraud

Over the last several weeks, our office has received numerous calls from victims of a fraudulent email scam.  The email purports to originate from an attorney at our address and falsely promises to provide the recipient millions of dollars from a long-lost relative who shares the same last name:

Good Day,

This is a personal email directed to you and I implore that it be treated as such. I must solicit your Consent and assure you that I am contacting you in good faith and this proposal will be of mutual benefit. I Conall Malory, Counselor. I represented the late __________  until death, hereinafter referred to as my client who worked as an oil explorer in East London, He died in a car crash with his immediate family in London United Kingdom on the 15th of March 2013.    

. . . 
    

I seek your consent to present you as the next of kin of the deceased since you have the same last name giving you the advantage so that the proceeds of his account can be transfered to you and then both of us can come to an agreement on how we can share the money when the tranfer of the fund to you is completed. I know there might be other persons out there with the same last name as my late client but my instinct tells me that I can trust you. Can I trust you for us to do this? I shall assemble all the necessary documents that will be used to back up your claim.

    

----

This "next of kin" email is a fraud, designed to scam recipients into paying the sender an advance fee.  Our office has no connection with or knowledge of the fraud.  Mallory Law Office, LLC has no attorney with the first name Conall; Conall Mallory is in fact a Lecturer at a British law school; and the fictitious last name "Malory" is spelled differently than "Mallory".

If you have received a similar email, you should not respond.  Before deleting the message, you may wish to open to the email, click the arrow near the reply icon, and click "report phishing" to notify GMail.

The false email above is a type of scam known as "phishing" - when criminals impersonate a legitimate business in order to trick you into providing money or personal or financial information. The Federal Trade Commission has some helpful tips on responding to phishing scams - most importantly, delete messages that ask you for personal information (such as bank account numbers or Social Security numbers.)  You can also forward phishing emails to the Federal Trade Commission at spam@uce.gov.

Most importantly, remember the old truism: If it sounds too good to be true, it probably is.

Property Tax Reductions Available for Ohio Farmers

Under Ohio's Current Agricultural Use Value (CAUV) program, "land devoted exclusively to commercial agriculture" is valued based on the agricultural use of the land rather than its "highest and best probable legal use." A CAUV valuation often results in a significant reduction in property taxes.

In order to qualify for the CAUV program, property larger than 10 acres must be devoted exclusively to commercial agriculture (such as animal husbandry, field crops, or commercial timber).  If the property devoted exclusively to commercial agriculture is smaller than 10 acres, it must generate a gross average income of $2,500.

An initial CAUV application must be filed with the county auditor prior to the first Monday of March.  Renewal applications must be filed each year.  The auditor's office annually inspects each property to determine if the property qualifies for the CAUV program.

If CAUV land is converted to a non-agricultural use, the property is removed from the CAUV program and the property owner is assessed a recoupment charge equivalent to the tax savings over the previous three years.

For more information about the CAUV program, visit the Ohio Department of Taxation or the Ohio State Bar Association.

Most Small Businesses Unprepared for Disaster

Is your business prepared to survive a natural disaster?  Two-thirds of small businesses do not have a disaster recovery plan, often because owners believe developing a plan is a low priority or would be expensive. 

From the Columbus Dispatch:

Two-thirds of small-business owners don't have a formal disaster-recovery plan, even though about half say it would take at least three months for their business to recover from a natural disaster, according to a Nationwide survey released Tuesday.
. . . 
Formal plans can ensure everything from the safety of employees to having enough insurance coverage to keep a business in operation until it is back on its feet.

Nationwide's survey, for example, found that 71 percent of those surveyed don't have insurance coverage for lost revenue during a recovery period. Studies have found that 25 percent of businesses never reopen after a major disaster.
. . .
Although many businesses lack a formal plan, many have taken at least some steps to prepare for a disaster, the Nationwide survey showed, Many, for example, are able to work remotely in case of a disaster and have duplicated and stored vital records off-site.

Trademarks that Disparage

The United States Supreme Court recently heard oral arguments in Lee v. Tam, a case involving the denial of a trademark registration for an Asian American band called The Slants. The U.S. Patent & Trademark Office ("USPTO") determined that the mark would violate the Lanham Act, which prohibits registration of trademarks "which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute."

From the Washington Post:

The [USPTO] said the name was likely to disparage a significant number of Asian Americans. But founder Simon Tam said the point of the band’s name is just the opposite: an attempt to reclaim a slur and use it “as a badge of pride.” 

Tam lost in the first legal rounds. But then a majority of the U.S. Court of Appeals for the Federal Circuit said the law violates the First Amendment’s guarantee of free speech. The government may not “penalize private speech merely because it disapproves of the message it conveys,” a majority of the court found. 

The outcome of the Supreme Court case is likely to affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause. 

Justices questioned how the Lanham Act's restrictions on negative marks should be balanced with constitutional guarantees of free speech, and what limits should be placed on the USPTO when presented with potentially offensive marks.

A decision is expected later this year.

Super Bowl (TM) LI

Ever wondered why references to this week's football game between the Atlanta Falcons and the New England Patriots avoid certain words?

From our 2015 blog:

Sunday's football game ... will bring many references to "The Big Game", "The Professional Football Championship Game", "The Be All End All of Football Games", and even "The Superb Owl". But why?

The answer comes from trademark law and the aggressive actions taken by the National Football League to protect its rights to the phrase "Super Bowl".  For example, in 2015, the league opposed a trademark application for the phrase "Souper Bowl" which was to apply to certain drinkable soups.  

Our recommendation to businesses remains the same:

The bottom line to remember? Don't imply that you have any official connection to, endorsement by, or license to use the National Football League's trademark for "Super Bowl." 

iPhones and Overtime, Part II

From a French law limiting employees' responsibility for after-hours emails to a federal court ruling placing new federal overtime rules on hold, employment law governing overtime pay continues to adapt.

A previous post on this blog discussed a lawsuit in which Chicago police officers alleged that they were issued smartphones and required to use them while off duty, but were not paid overtime. Since that original post, a federal magistrate ruled in favor of the city of Chicago. The court determined that the city did not know that the plaintiffs were working overtime without compensation, in part because other officers did document their overtime use of smartphones and were compensated accordingly.

Wage & Hour Insights has a detailed analysis of the court's ruling:

In short, the rule is simple: employers must make a good-faith, reasonable effort to track all work time for non-exempt employees and pay employees accordingly. The law doesn’t mandate perfection, nor will it hold employers liable for employees who fail to report their time through no fault of the employer. 

An appeal is pending.  In the meantime, the takeaways for employers remain the same (whether considering the future of overtime regulations or employee smartphone usage): establish clear written policies, keep detailed records, and train employees accordingly.

New Law Permits French Employees to Ignore Late-Night Work Emails

French employees now have the right to ignore work-related emails outside working hours after a new law became effective on January 1, 2017.

From the Washington Post:

The new employment law requires French companies with more than 50 employees to begin drawing up policies with their workers about limiting work-related technology usage outside the office, the newspaper reported.

The motivation behind the legislation is to stem work-related stress that increasingly leaks into people's personal time — and hopefully prevent employee burnout, French officials said.

“Employees physically leave the office, but they do not leave their work. They remain attached by a kind of electronic leash, like a dog,” Benoit Hamon, Socialist member of Parliament and former French education minister, told the BBC in May. “The texts, the messages, the emails: They colonize the life of the individual to the point where he or she eventually breaks down.

The "right to disconnect" law is part of a series of reforms designed to relax France's employment regulations.

NHL Expansion Team Faces Trademark Fight

The newest National Hockey League team - the Vegas Golden Knights - is facing a legal battle before its first puck even drops on the ice.  The U.S. Patent and Trademark Office recently issued an Office Action refusing the team's trademark registration, citing a likelihood of confusion with the College of Saint Rose Golden Knights,

The franchise (which is already selling merchandise with its name and logo) has six months to respond to the Office Action and does not plan to change its name.

From ESPN.com:

"We consider this a routine matter and it is not our intention to reconsider the name or logo of this franchise," NHL deputy commissioner Bill Daly said in a statement Thursday. "We fully intend to proceed as originally planned, relying on our common law trademark rights as well as our state trademark registrations while we work through the process of addressing the question raised in the federal applications."

The United States Army has also signaled its opposition to the "Golden Knights" moniker.  The Army's demonstration parachute team has been known as the Golden Knights since 1962, but the name was never protected by federal trademark law.

From the Washington Post:

“For us, the bottom line is the (perceived) connection between the Army and the professional sports team,” [Army spokesperson Alison] Bettencourt said, declining to answer whether the Army will ask the Vegas Golden Knights to change their name before the military’s review is completed.
 
“Our interest in this announcement is meant to protect the proud history of the Army’s Golden Knights and their vital role in telling the Army story and connecting America with their Army,” Bettencourt told the [Fayetteville] Observer.

For comparison, the Columbus Blue Jackets own numerous trademarks, including registrations for CBJ, Blue Jackets, Let Fandom Ring, We Are The 5th Line and a team logo featuring a cannon.

Nine to Five? The Uncertainty of Federal Overtime Regulations

On November 22, 2016, a federal judge in Texas granted a nationwide injunction to prevent implementation of new federal overtime regulations doubling the minimum salary of exempt employees.The ruling, which was issued only days before the rule was to become effective, has created uncertainty for many businesses.

First, it is important to note that this preliminary injunction is only a temporary hold on the overtime rule. The regulation may be implemented in the future, but given potential appeals by the Labor Department, as well as possible changes under the incoming Trump Administration, it is impossible to know when, if ever, the rule may become effective.

What should employers do in the meantime?  At least three general recommendations are in order:

1. Continue to comply with the existing overtime regulations.  Because the new regulation is not in effect, employers are not required to pay overtime wages as provided under the new rule.
   
2. Assume that the new regulation will be implemented in some form, and begin planning accordingly. For instance, our recommendation is that all employers keep detailed records of employees’ hours, whether those individuals work full-time, part-time, or volunteer. Likewise, it is a good time to update employee job descriptions, company policies, and employee handbooks to include specific procedures and guidelines for working overtime (even including such issues as smartphone usage).
   
3. If a business has already advised employees about the salary increase or has actually implemented the increase to keep up with the new federal regulation, it may be best to uphold those changes. Although businesses are not required to do so, honoring such a commitment encourages a relationship of good will between employer and employee. In these cases, employers may wish to consider a written agreement in which the employer will pay overtime wages to those employees who would have been eligible under the new regulation for a limited time period in the discretion of the employer.  

More suggestions are available at The Ohio Employer's Law Blog or The Employer Law Report.

If I Only Had the Words: Billy Joel's Relevance to Attorneys

Too often, the legal profession relies on specialized language (think of terms like jurisdiction, quitclaim, and fiduciary) without considering that such terms may confuse and discourage clients or other non-professionals. Whether addressing a court or a layperson, it is essential for attorneys to communicate well.

This weekend, attorney Christian Brill will discuss this important issue using an unlikely source - the music of Billy Joel. The presentation is part of “It’s Still Rock and Roll to Me”: The Music and Lyrics of Billy Joel, a scholarly symposium to discuss the impact of the Piano Man.

Brill's presentation will discuss the need for effective legal communication and how the lyrics of Billy Joel have been used in legal writing and opinions to interest, persuade, and illuminate readers. For example, judges have incorporated Joel lyrics into opinions on such varied matters as child support (“I Go To Extremes”) and arson (“We Didn’t Start The Fire”).

Changes to Public Records Laws Take Effect Sept. 28

Under Ohio's Public Records Law, any Ohioan may request copies of public records from a public office.  If a proper request for records is denied, the citizen can petition a court to order the release of the records.

However, new legislation passed by the General Assembly - the first of its kind in the country - now gives Ohioans a more streamlined and cost-effective way to obtain these records in case of a denial.

From the Columbus Dispatch:

On Sept. 28, the Ohio Court of Claims will begin accepting complaints on the refusal to release records by government at all levels, from townships to the state.

The law, the product of legislation from Senate President Keith Faber, R-Celina, will send complaints to a mediator who will work with citizens and government officials in an attempt to reach a resolution.

If no agreement is reached, a special master will rule within seven days whether government was legally correct in denying a records request or broke the law and must hand over the records.

In order to file an appeal, a citizen must file a complaint form and copies of the records requests and governmental denials, along with a filing fee of $25, with the county court of common pleas. 

The 2016 Ohio Sunshine Laws Manual, published by the Public Records unit of the Ohio Attorney General's office, provides an excellent overview of Ohio's public records laws.

Faith-Based Discrimination in Hiring

Can a faith-based organization refuse to hire employees who do not share its faith?

Section 702 of the Civil Rights Act of 1964 (42 U.S.C.S. § 2000e) exempts religious organizations from the prohibition against discrimination in employment on the basis of religion. (Ohio has a similar statute.) Therefore, if an organization is religious for purposes of the statute, it can restrict employment to those of a certain religion in order to carry out its activities.

In order to qualify for the exemption, the organization must be primarily religious.  The definition is not included in the statute but has been explored by the courts.  For example, a 2010 federal case involving the relief and development organization World Vision examined if the organization is 1) organized for a self-identified religious purpose; 2) engaged in activity that is consistent with and furthers that purpose; and 3) holding itself out to the public as religious.

This exemption also extends to permit a religious organization to discriminate in hiring for its nonprofit secular activities, even if the employment is not primarily religious.  For example, in 1987, the Supreme Court ruled that the Church of Jesus Christ of Latter-Day Saints were permitted to terminate a non-Mormon employee of a nonprofit gymnasium which it controlled.

Religious organizations should be sure that all documents (from employment agreements to corporate articles) consistently reflect the organization's nature as religious and emphasize that all its activities are designed to further the organization's purpose.

More information regarding religious discrimination in the workplace is available from the U.S. Equal Employment Opportunity Commission.