Free Enterprise - FindLaw Small Business Law Blog

Free Enterprise - The FindLaw Small Business Law Blog


Technology has revolutionized the world in so many ways, but with new tech comes new challenges for businesses. Currently, one of the ethical challenges facing businesses, both small and large, revolves around employee data collection and analytics. Because of the advances in both data collection and analytics, information can now be discovered easier than ever before.

For those unaware, many businesses have begun collecting and analyzing employee data for reasons other than fighting potential employee lawsuits. On the most innocent end of the spectrum, employers are using data analytics to improve overall employee morale. However, on the other end of this same spectrum, some employers are using employee data analytics to make discriminatory hiring decisions. When it comes to collecting and using employee data, where the line should be drawn has not been well established, either by law or societal standards.

When it comes to motivating employees to perform, businesses frequently need to look beyond direct compensation. While the wages being offered may be competitive, in the market, other factors such as benefits, and even those pesky intangibles, can be critical to attracting and retaining top talent.

Apart from high salaries, high quality health insurance, good retirement benefits, large bonuses, and consistent merit raises, some employers wonder: what else can I do to attract and retain top talent. Below, you'll find three of the top incentives employers can offer.

A large class action lawsuit against the ride-sharing company Lyft had the proposed $27 million settlement approved Thursday. The settlement however fails to address the elephant in the room: should Lyft's drivers be classified as employees or independent contractors?

While the settlement is expected to provide drivers with additional pay to compensate for expenses such as insurance, gas, mileage, and other items, the lack of resolution of the employee or contractor issue has garnered much attention. However, the lack of resolution means that it may still be litigated in the future. As many critics have noted, the lack of resolution of this issue is critical for Lyft's operations and funding, as categorizing all the drivers as employees would create a legal, financial, and practical nightmare for the company.

Forever 21, the popular clothing retailer, is going on the legal offensive against Adidas, the athletic clothing and shoe goliath, which they have accused of being a trademark bully. Forever 21 recently filed a federal lawsuit, seeking declaratory relief against Adidas, after receiving another letter threatening to sue them over a trademark dispute related to the famous three stripe Adidas pattern.

Last month, Adidas threatened to sue Forever 21 if the chain refused to stop making and selling a few particular garments that had four stripe patterns. Over the past several years, Adidas and Forever 21 have been involved in various disputes over the three stripe pattern, and Forever 21 has yielded to the demands made by Adidas in the past. However, when Forever 21 received that last threat of litigation, rather than acquiesce again, they decided to ask the court to intervene to put a stop to Adidas's pattern and practice of unreasonably attempting to enforce their rather ubiquitous trademark.

A recent report released by the Federal Reserve Bank of San Francisco found systematic discrimination against older job applicants, particularly women. Researchers sent some 40,000 applications and resumes in response to 13,000 job postings in 12 cities spread across 11 states and found that "older applicants -- those near the age of retirement -- experience more age discrimination."

The news was even worse for older female applicants, who experienced more age discrimination than their male counterparts.

When a business partner is stealing from the business, it may be incredibly difficult to detect. Business partners legally have access to business accounts, merchandise, and more. However, misappropriation of any business assets could be considered not just a violation of the partnership under civil law, but could also be criminal acts. Partners are considered fiduciaries for each other.

If you suspect that your business partner is stealing, or misappropriating assets, deciding on the correct course of action is not easy. At the first suspicion, you should contact a qualified business attorney to help guide your investigation, and advise you on whether, when, and how to contact law enforcement, and potentially how to end the partnership without ending the business.

Depending on your business, and what was stolen, how you proceed could be critical to ensuring your business's survival.

The Americans With Disabilities Act mandates that employers provide reasonable accommodations for disabled employees, and offers guidance on what conditions qualify as disabilities: physical or mental impairments that substantially limit a "major life activity." It's fair to say that alcoholism can substantially limit major life activities if not addressed properly, and alcoholics, so long as they are "qualified to perform the essential functions of the job," are covered under ADA protections.

So what counts as a reasonable accommodation for alcoholics in the workplace? Are they entitled to access to alcohol?

MedBox, the company that promised to bring biometric medical marijuana vending machines into existence, was recently busted by the SEC for some rather deceptive practices, which surprisingly doesn't involve the controversial substance. Rather, MedBox was busted for deceiving investors by using fake earnings generated by a secret affiliate and not MedBox to claim the company had substantial revenue and was a marijuana industry leader.

The founder of MedBox, and the company itself, have settled the claims made by the SEC by agreeing to disgorge profits and pay fines, totaling over $12 million, and by the founder agreeing to not be a corporate director or officer of any public companies, and for him not to participate in any penny stock offerings. Others involved, including former corporate directors and officers, are still being investigated and/or pursued by the SEC for their involvement, or complacency (which likely won't suffice as a defense).

Between customers and employees, there's a lot to keep an eye on at your business. And given recent advancements in technology, there are more ways than ever to monitor patrons and staff. One would imagine there are a whole lot of laws out there as well, governing how, when, and where you can monitor your employees and customers, and what you can do with that information.

But that's not always the case. Sometimes it takes the law a little bit to catch up with technology, and an eagle-eyed small business owner might have come up with something before the courts have. So questions remain about the legal limits of workplace surveillance -- here are some of those questions, and a few places to turn for answers.

President Trump has already shown an animosity to Obama-era business regulations. That animosity looks like it could extend to federal overtime rules rewritten by the Obama administration.

Those new rules have been on hold since November of last year, and may never go into effect now that Trump is in charge.