Archive for the ‘Frequently Asked Questions’ Category

Alternative Dispute Resolution – Resolving Disputes and Getting Back to Business

Wednesday, January 5th, 2011

Conflicts and disputes arise in business relations and organizations just as they do throughout all human endeavors. Most business people will tell you that there is no shortage of litigation these days. The roots of many of these lawsuits are conflicts, accidents, misunderstandings, deprivation, mistreatment are not going to disappear. Trying to avoid litigation by simply hoping a conflict will go away rarely works. There is, however, an effective tool for businesses to resolve disputes without going to court is the use of an Alternative Dispute Resolution process or “ADR.”

As a business person, why should you consider alterative methods of dispute resolution? The reasons people turn to ADR include: (1) saving both time and money in resolving disputes; (2) providing broader options and possibilities for available outcomes, including more potential for a win-win solution than court can provide; (3) increasing the parties’ control of the dispute; (4) insuring greater privacy to the parties; and (5) improving long-term business relationships by avoiding hostilities and conflicts almost always associated with lawsuits. Next time you or your business becomes embroiled in a dispute, you should consider ADR.

ADR is being used in many circumstances to serve businesses’ conflict resolution needs while at the same time minimizing businesses’ application of human and financial resources to litigation. ADR allows your resources to remain focused on doing business, instead of defending lawsuits ADR encompasses a broad spectrum of alternative dispute resolution processes. Two of the most common forms of ADR are mediation and arbitration. Mediation is where neutral third party assists the participants in problem solving, and ultimately in reaching a resolution. Arbitration is where a neutral third party acts a s a private judge or jury and decides the outcome of the dispute. It can be very much like a trial, and can save both time and money. So the next time you or your business becomes embroiled in a dispute, it makes good business sense to consider ADR.

The Author, Jay E. Fernandez is an attorney and shareholder of the Fernandez Law Firm, PC. The Fernandez Law Firm is an established full service law firm offering high quality cost effective legal services to Colorado’s businesses, professionals, and individuals.
728 Coffman Street,
Longmont, CO 80501.
Telephone: 303.772.8900.

http://fernandezlaw.biz

DISCLAIMER: The above article is intended for informational purposes only, is not intended to be legal advice, and does not create an attorney-client relationship with the reader.

Non-Compete Agreements with Employees

Wednesday, December 15th, 2010

When employees leave your business, they take with them all the know how you gave them. They can go to work for your competitor or start a competing business. The same is true for the former owner of your business. This exodus of information can cause your business significant harm. You can protect yourself from this type of unfair competition by requiring that your employees and former owners enter into non-compete agreements with you.

A non-compete agreement is a contract in which a person agrees not to engage in a designated type of business for a certain length of time within a defined geographic area. In Colorado, all non-compete agreements are invalid unless they fall within one of several categories, and are reasonable in their duration and geographic scope.

Non-compete agreements can be used to prevent your executives, management and professional staff from leaving and going into competition with your business. However, a non-compete agreement cannot be used to stop other types of employees from going to work for your competitors.

A non-compete agreement that is part of a contract to buy a business can be used to stop a former owner of your business from competing with you. Such an agreement is valid if it is necessary to preserve the good will and value of the business. The right to enforce such an agreement, however, ends when the purchased business is terminated or abandoned.

Nondisclosure and confidentiality agreements can be used to protect your business= trade secrets from falling to the hands of your competitor. (A trade secret is any information relating to your business that is secret and of value that is not known by competitors or is not readily ascertainable elsewhere.) These agreements must be narrowly tailored to protect only the trade secret information acquired by an employee or former owner during their course of employment. They cannot be used to protect general knowledge of your business operations.

Non-compete agreements can play an important role in protecting a business from unfair competition and help retain key employees. However, to make sure you have an agreement that will be enforced when you need it, be sure that your non-compete agreements are drafted by someone knowledgeable and experienced in this area.

The Author, Jay E. Fernandez is an attorney and shareholder of the Fernandez Law Firm, PC. The Fernandez Law Firm is an established full service law firm offering high quality cost effective legal services to Colorado’s businesses, professionals, and individuals.
728 Coffman Street, Longmont, CO 80501. Telephone: 303.772.8900.

http://fernandezlaw.biz

DISCLAIMER: The above article is intended for informational purposes only, is not intended to be legal advice, and does not create an attorney-client relationship with the reader.

Protection of Trade Secrets

Friday, December 10th, 2010

Your company owns certain confidential information and intellectual property that gives it a competitive edge in the market place. This information can include customer lists, marketing methods, business models, pricing structures, contracts in place, manuals, procedures, and technical know-how. While some of these can be protected by copyright and patent law, many cannot. However, a Colorado employer can protect it’s confidential and proprietary information through the use of Colorado’s Colorado Uniform Trade Secrets Act .

Colorado courts determine whether certain business information can be considered to be a protectable trade secret. An employer will not know whether the information it seeks to protect will be legally regarded as a trade secret until the matter is tried in a court. Not all information an employer asserts is a trade secret will be accepted by the courts as a protectable trade secret. Information that is common knowledge or easily accessible within an industry cannot be protected, nor are the experience, skills, or abilities an employee brings to, or acquires on, the job.

In order for confidential and proprietary business information to be protected from disclosure or unauthorized use under the information must be:
(1) Secret;
(2) Of value because it is secret; and
(3) The employer must have taken reasonable steps to keep the information confidential.
(4) The extent to which the information is known outside the business;
(5) The extent to which it is known to those inside the business;
(6) The precautions taken by the holder of the trade secret to guard the secrecy of the information, such as keeping information in locked files, marking it “confidential,” and restricting access to the information to those individuals in the organization who need the information to perform their duties;
(7) The saving effected and the value to the holder in having the information as against competitors;
(8) The amount of effort or money expended in obtaining and developing the information; and
(9) The amount of time and expense it would take for others to acquire and duplicate the information.

Colorado courts have been divided on what types of information may constitute a trade secret. Some courts have held that a) lists of customers a former employee actually contacted while employed, b) marketing strategies, c) research and development information, d) candidates for job placement by a job placement agency, and e) a policy manual for a franchise were trade secrets. Other courts have held that a) a company’s pricing and bidding structure for commercial services, b) customers not actually contacted by an employee during employment, and c) customer lists, price lists, and product formulas, for which no steps had been taken to maintain their secrecy, were not trade secrets.

The Author, Jay E. Fernandez is an attorney and shareholder of the Fernandez Law Firm, PC. The Fernandez Law Firm is an established full service law firm offering high quality cost effective legal services to Colorado’s businesses, professionals, and individuals. 728 Coffman Street, Longmont, CO 80501. Telephone: 303.772.8900.

http://fernandezlaw.biz

DISCLAIMER: The above article is intended for informational purposes only, is not intended to be legal advice, and does not create an attorney-client relationship with the reader.

MMJ in the employment setting

Monday, May 10th, 2010

MEDICAL MARIJUANA AND EMPLOYMENT IN COLORADO

In November 2000 Colorado voters added an amendment to Colorado’s Constitution that permits the use of marijuana for a list of medical conditions upon recommendation by a physician.

One provision of the amendment states: “Nothing in this section shall require an employer to accommodate the medical use of marijuana in any work place.” Despite the amendment, there are questions about what an employer should do when an employee is found to be using marijuana on the job. Legislation Colorado may adopt this year will not answer the questions.

Currently, if a physician recommends that a patient could benefit from medical marijuana, the patient registers as a patient with the Colorado Department of Public Health and Environment (CDPHE). The patient receives a registration card allowing the person to produce his or her own medical marijuana or obtain it from a marijuana grower, usually through a dispensary.

If an employee (or independent contractor) has a valid registration card from CDPHE, this does not mean the employee has the constitutional right to use marijuana (medicinal or otherwise) at the employee’s workplace or to be under the influence of marijuana on the work premises. Use and possession of medicinal marijuana are still federal crimes despite the October 2009 statements from the U.S. Department of Justice (DOJ) that the federal government will not focus its resources on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the use of medical marijuana.” The U.S. Department of Transportation (DOT) has stated its regulated drug testing program will not be changed based upon the DOJ statement. Thus persons who must be licensed or permitted by DOT, such as truck drivers, school bus drivers, and pilots, must continue to test negative for controlled substances. Likewise, where a “drug free workplace” is required to be maintained by federal statutes,
regulations, a contract to receive federal funds, or being a federal contractor, the “drug free workplace” needs to be maintained despite Colorado’s Constitution.

Medical marijuana use is not protected by the Americans with Disabilities Act (ADA) although a State Court of Appeals in Oregon said the ADA did apply to medical marijuana patients. That decision has been appealed to the Oregon Supreme Court. Courts in California and the State of Washington have upheld the employer’s right not to accommodate medical marijuana use. It is unknown at this time whether Colorado’s Unlawful Prohibition of Legal Activities statute prohibits any kind of policy of an employer that could be construed as prohibiting a Colorado person’s right to access and possess marijuana for medicinal purposes.

This entire subject area is filled with “probablies” and “probably nots” and “no one knows.” Does Colorado’s Constitution prohibit an employer from maintaining a “drug free workplace”?
(Probably not. Many Colorado employers have followed the federal rules for creating a “drug free workplace” through employment policies.) Can a Colorado employer continue to use policies that would create a “drug free workplace”? (Probably. The amendment specifically says an employer will not be required to accommodate the medical use of marijuana in any work place. An employer with a “drug free workplace” policy may be able to rely on the policy to combat charges by employees of wrongful termination for drug use.)

Currently most analysts believe an employer may prohibit the use of “controlled substances” at the workplace by all employees. “Controlled substances” under federal law include marijuana. An employer may require that employees not be under the influence of or be engaging in the “illegal” use of drugs in the workplace. Of course, the last comment begs the question when you have, as we do in Colorado, marijuana that is illegal for some purposes but legal as medicine for others and where it is uniformly illegal under federal law. There may, however, be some requirement for an employer to try to accommodate an employee who has a medical condition for which the employee is entitled to use medical marijuana under Colorado law if the condition is one for which the employer could provide accommodation outside of medical marijuana use.

Employers can take some steps:
1. Publish a drug policy that is clear and includes a policy regarding medical marijuana;

2. Include in the policy information on how medical marijuana use will be treated as part of an overall drug and alcohol testing program;

3. Notify all employees and applicants about the policy;

4. Avoid using “generic” employment policy manuals; rather use materials that fit Colorado’s particular requirements;

5. Understand that although an employer may not be required to accommodate medical
marijuana use, the employer may have a responsibility to engage with its employees in
interactive discussions about any medical limitations an employee has that may require
accommodation under the ADA or Colorado law;

6. Be consistent at all times in application of drug and alcohol policies.

Other questions that do not have answers at this time include (a) Can an employee be fired for use of medical marijuana on the job? (Probably, but the answer is not entirely clear especially if the employer does not have a clear policy regarding medical marijuana in the work place.) (b) Is an employer liable for injuries caused by an employee while on the job after using medical marijuana? (It depends on the facts and circumstances, but probably.) (c) How do the medical information privacy rules of HIPPA interrelate to any information an employer has regarding an employee’s use of medical marijuana? (They probably apply to the condition but not to the holding of a registration card for medical marijuana.) (d) Can an employer ask an employee or a prospective employee if the person has a medical marijuana registration card? (Probably not.) (e) If an employer knows an employee has a medical marijuana card, would this be grounds for “reasonable suspicion” about drug use that would justify a drug test for that employee? (Probably
not on invasion of privacy grounds.)

Many questions will need to be answered by the courts. To a large degree, on this subject an employer operates at risk until answers emerge in the future, but it is likely clear policies established by employers will be helpful.

Are those cheap on-line corporations and LLC’s worth the money?

Friday, March 19th, 2010

In short, you get what you pay for. The on-line products are: (1) not specifically tailored to the user’s needs; (2) are generic and may not work in every state; and (3) often not appropriate for the user’s circumstances. Additionally, the on-line products do not provide the user with enough information to enable them to understand the documents. This could lead to serious legal and tax problems. I would always advise that you should get help from an attorney so that you get products tailored to your specific needs and you have someone who can explain the documents to you. Knowledge is power, ignorance is expensive.

The lawyers and attorneys in the Fernandez Law Firm, PC have the experience, knowledge and expertise to help you achieve your goals.

Contact the Fernandez Law Firm at 728 Coffman St., Longmont, Colorado 303.772.8900 jay@fernnandezlaw.biz

Welcome to the new Fernandez Law Blog

Monday, March 1st, 2010

Greetings, and welcome to the blog. Coming soon will be answers to our clients most frequently asked questions, and other interesting topics. In the mean time, you’re welcome to check out the main website at http://www.fernandezlaw.biz/ and also check out my Bio at: http://www.fernandezlaw.biz/bio.htm