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of the Supreme Court case is likely to affect the legal case of the Washington Redskins, whose trademark registration was revoked in 2014 under the same disparagement clause.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