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Being Performance-Managed Out To Pasture

It seems performance regimes are being misused in order to bypass age discrimination laws and to put the ‘oldies’ out to pasture. Under the Human Rights Act 1993, it is unlawful to discriminate on the basis of age.

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It seems performance regimes are being misused in order to bypass age discrimination laws and to put the ‘oldies’ out to pasture.

Under the Human Rights Act 1993, it is unlawful to discriminate on the basis of age. The Employment Relations Act 2000 also prohibits age discrimination in relation to employment, by specifying certain types of conduct that will be discriminatory if done on the grounds of age, such as dismissal, detrimental treatment and refusal to provide the same terms / conditions of employment as other employees.

But despite this legislation, age discrimination is quickly becoming the most common form of discrimination and the decision of McAlister v Air New Zealand Ltd 2009 is just one of many cases to illustrate this. In what has been labelled a “landmark age discrimination decision” (NZ Herald, 28 July 2009), the Supreme Court found Air New Zealand had discriminated against Mr McAlister on the grounds of age, when they told the 60 year old he was too old to be a pilot-in-command. Air New Zealand is now facing a multimillion-dollar law suit for unlawfully demoting eight former captains when they turned 60; the case is currently awaiting trial.

In New Zealand, compulsory retirement is direct age discrimination and is therefore also unlawful. It has been said that “the absence of a compulsory retirement age leaves employers with a quandary” and “employers are left in a position where they have no option but to actively performance-manage employees” (Business Day, 29 March 2011). The author of this article tends to be suggesting that staff who are ‘past their used-by date’ should be performance-managed out in order to “attract young people” who will apparently “innovate and evolve the business”. Performance regimes should not be misused in order to rid of older employees; employers must manage performance concerns for older staff in the same way as they do for all other employees.

A decline in performance is not necessarily an age-related issue – there may be many reasons for an employee’s performance to drop, at any age, for example, the tools for performing their job may have changed without sufficient training or there may be external factors which are affecting performance. In the March 2011 article, the author states that “inevitably, most of us slow down, and become less adaptable to new situations and technology”. It is important to note that one of the requirements of managing performance is to provide assistant to help the employee improve – and this may be in the form of ‘technology training’. It is also important to note that the cost of re-training an employee will also be substantially lower than that of a retirement package.

The assumptions behind age discrimination are largely false – older worker are not less adaptable. In fact, older workers have a lot to offer: they show more dedication to the workplace, by providing longer and more reliable service to their employees; have less time off; tend to be more accurate and make better decisions in the first instance; have fewer accidents; and often possess rare and complex intellectual capital. Sure, human brains slow down as we age, but they also amass experience and wisdom.

Age discrimination is unlawful and therefore it is discriminatory to performance-manage an employee out merely because they reach a certain age. As George Curtis, an American writer, once said, “age is a matter of feeling, not of years” – an adage that all people should adhere too.

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Legal

What Does It Cost To Register a Trademark?

signing contract

The services needed to register your trademark will depend on what your situation requires. You can only assess the cost when you know what steps you need to take to register your intellectual property.

You can use the following figures as a guide.

Fees are based on IP Australia’s government charges and the rate quoted by a professional assisting you with the application. You can realistically look at a total cost of $627 (ex GST) when you register a trademark. This is for a single class of goods or services and assumes there are no objections or other complications.

The professional service included in this total cost should consist of a trademark search before you file your application. You need to confirm that your product or service does not already ‘belong’ to another entity.

A factor that could affect the professional fee is the number of services or goods that you lodge in your application. Once you’ve filed, you can’t expand the scope of the trademark when you have a new product or service on offer. A request for an additional class could cost you an extra $200 (ex GST) in IPA Australia fees and professional fees.

The next step is the advertisement. If your application has been accepted, it will be advertised to determine if there is anyone who has the right to oppose it. This will happen about five months after you file. If there are no objections within 7.5 months of filing, your trademark will be registered automatically. There are no professional or other costs in this process.

If you need to request a time extension to respond to an opposing report (filed before or after the deadline) or more time to pay the registration fee or late renewal fees, you will be charged a government fee of $297 (ex GST).

If you encounter a situation where your trademark registration is opposed, or you want to take legal action against someone infringing your rights, you can expect to pay the following government fees. You may need to pay for additional professional help too.

  • Cost of filing a notice of intention to oppose removal of registration for non-use: none
  • Cost of filing a notice of opposition to a time extension or amend application: $250
  • Cost of extending time to file a notice of intention to oppose or submit a statement or file a notice of intention to defend: $150 a month
  • Cost of applying for removal of a trademark for non-use: $250
  • The cost to request or attend a hearing as the opposition ($600), or as other ($400)
  • Cost of filing written submissions when not attending a required hearing: none.

A trademark renewal fee has to be paid every ten years. The government costs are $400 for single classes and the same for additional classes. The professional fees will be about $297.

When registering a trademark internationally, there are also professional and government fees, but they’ll vary according to the number of territories that you submit applications. The costs will also vary depending on the trademark professional that you work with and if you apply through the individual country’s office or apply through an international treaty.

The fees involved in registering your intellectual property and maintaining your trademark is costly, but you are investing in the reputation of your business as well as protecting it legally. If your product or service is not trademarked, it can be used by a trader that’s not authorised to do so. If your mark is not protected and another entity files and can prove extended use, trademark law recognises their rights over yours. This means any legal action will be at your cost.

To get started, perform a free trademark search here.

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Legal

Which entity is right for your US business startup?

Boston

Before you can start a business you need an idea, a business plan, and the necessary financial backing. But, that’s just enough to get you started.

The next big question you’ll need to tackle before you start trading is which entity is right for your US business startup?

It’s a good idea to get some professional guidance on this as it’s essential to know the right entity to use; it will make a difference to the paperwork you’re required to keep as well as your personal liability.

The Main Types Of Business Entities

Here’s a quick guide to the different options available to you:

Sole Proprietorship

In effect you’re a one-person operation, you are the company. Your business will operate in your name, you’ll be liable for all income, expenditure, and taxes.

This is the simplest arrangement and ensures you have complete control of your business.

Partnership

If there is more than one of you investing in your business, this can be financial, via available resources, or just for experience; then you’re a partnership. You can’t be a sole trader if there is more than one person running the business.

You’ll need a proper agreement between the partners, this will establish responsibilities. However, all the partners will still remain liable for the debts of the business; the line between personal and business finances is still blurred.

Limited Partnership

This is similar to a partnership but it is permissible to have partners that don’t have the financial liability for the business. This keeps your personal assets safer, limiting any loss to the amount of a partner’s investment.

Limited Liability Company (LLC)

At this stage, your business is going to become more formalized. Limited liability companies are effectively separate structures to the business founders. Any funds you invest in the business will be seen as a loan that needs to be repaid and you’ll have no personal liability.

However, the paperwork side of things will dramatically increase when you have this type of business. You can also issue shares to each investor and classify the shares, allowing you to pay different dividend rates.

This is a good option if your developmental and looking to attract investors who want you to make a loss to help their tax declarations!

Corporation

At this stage, you’ll have the option to float on the stock market and offer shares to the general public. This is generally an option for much larger companies that are well-established and may need venture capitalist help.

However, you should note that there are two types of corporation; C class and S class. Both will require you to do more filing and record minutes of annual meetings. But, there are also crucial differences that you should speak to a professional about first.

The great news is that you can change the entity of your business, this is commonly done as the business grows and improves; allowing you to benefit from the different entity types, helping your business to become successful.

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Legal

Six Ways to Protect Your Company in 2019

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A new business has enough to worry about without the addition of legal trouble. With how complicated the legal system is, and how many branches of it affect businesses today, it can be a real challenge to stay within the law without inadvertently breaching it.

Not only are there plenty of laws to follow, but they also change. One year you might be well within the legal system, the next you’re breaching it because they have made a change to how you’ve been running your business for the last five, ten, or even twenty years.

Adapting with the times is a sign of a successful business, and to help you improve your company’s adaptability you will want to follow this guide:

1.    Have a Legal Team of Experts on Hand

Legal advice is invaluable, which, of course, is why it can be so expensive. For new businesses, small businesses, and those who have a narrow profit margin, this can mean a difficult period can be incredibly difficult to budget for.

A great way to avoid the unexpected legal fees, however, is to subscribe to them. That way you can budget appropriately and have a professional financial lawyer on your side as you need to. If your allocated hours run up, you will then benefit from an 80% discount for extra hours until the next month.

2.    Create an Anti-Harassment Policy

Discrimination and harassment laws should never be taken lightly. In the States, discrimination laws usually don’t come into effect until you have more than 15 employees working for you, but this changes from state to state. Assuming is your enemy, so always check up on what you are legally entitled to do and go one step beyond.

3.    Get Your Business Model Written Down

You want your company’s business model, including partner agreements, to be written down and formalized. If they aren’t this could spell trouble in the future when your partner tries to take more than his share, but you don’t have a legal document stating he can’t.

4.    Get Your Company Trademarked

Another way to protect your company is to get it trademarked. Not every brand name can be, of course, but if you have a unique name it is best to get it trademarked so that there will never be any doubt as to which company a customer is trying to deal with.

5.    Get the Necessary Copyright (When Applicable)

On top of trademarking your brand your will also want to apply for patents and copyright when applicable. New products that have a unique or distinctive design can be patented and trademarked and therefore protected from copycats.

6.    Keep Your Books in Order

Last but not least, you will always want to keep your accounts in order. Not having this information can make it difficult to acquire tax discounts, but more importantly it can be a huge disadvantage if your company is audited or money goes missing from your account.

By keeping up to date with your finances you better protect yourself and can work on how to budget better.

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Legal

What Do Trade Secrets Protect?

book

According to the United States Patent and Trademark Office, a trade secret is “information (that) can include a formula, pattern, compilation, program, device, method, technique or process.”

At first glance, you may think that a trade secret looks very similar to a utility patent, but as you will see, they are very different. For starters, a utility patent is something that is filed and approved through a rigorous process, whereas a trade secret is only granted limited protection in certain cases.

A trade secret aka ‘confidential information’ is non-patented information that provides a company with a competitive advantage in their industry. This could be anything from a marketing strategy to a recipe for award-winning cookies, and at their core, they enable a company to keep an edge on their competition.

As everything comes down to ‘interpretation’, and even lawyers interpret the law in a way that works for their client.  Disclaimer: Don’t get caught out in a way your competitors can steal your information. A patent attorney in Orlando recommends always seeking legal advice.  Startups are particularly vulnerable to the prying eyes of competitors.  The options for protecting your intellectual capital or business trade secret include non-disclosure agreements (NDA), and of course if deemed the appropriate strategy, applying for a patent.

Read more below about what types of protections you are granted in the United States for a trade secret.

What is a Trade Secret?

A trade secret is anything that gives you a competitive edge in your industry, whether it is a process, recipe, or simply a method of doing something. In some cases, trade secrets are eligible for patents; in other cases, a trade secret must simply be protected by ensuring this information is not leaked.

Trade secrets are not protected like a patent – instead, they only protect against unauthorized disclosure. This means that if a contractor were to leak your trade secret to a competitor, you may be able to seek damages from the contractor, royalties from the competitor, and possibly have a court force the competitor to keep the trade secret from leaking further.

However, there is nothing that bars a competitor from independently discovering the same secret. In a patent, your invention is clearly laid out by the USPTO. Since a trade secret is not disclosed in the same nature, you can not take up legal actions against a third party who has come across the same information under their own labors.

How Does a Trade Secret Work?

Since trade secrets include such a wide variety of things, they vary slightly depending on the information in question. One good example of a trade secret is a simple customer pricing list for a sales organization.

If this list were to be leaked to the competition, there is little stopping competitors from simply offering better rates to steal these clients. One way that this list can be handled is through the use of a non-disclosure agreement, otherwise known as an NDA. In the NDA, the company can indicate all information that is not to be released or shared outside of the company, and in many cases, can not be shared within the company either.

If a trade secret is shared or discovered by misappropriation, a court may force the entity to take measures to keep the information from going any further, as well as forcing royalty payments, legal fee reimbursement, and more.

Remember though: if your competition independently discovers the same information as your trade secret, you are not granted any legal protection. If you are concerned about this and believe that your trade secret is truly unique and useful, explore your options for getting it patented in order to enjoy complete protection.

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Legal

What’s in a Name: How to Choose & Legally Protect Your Business Name

name

When starting out on a new business, one of the most exciting parts of getting set up is choosing the perfect business name. We want something witty that sticks in people’s minds, and perfectly sums up exactly what it is that we do. Brainstorming the perfect business name can be hard, and it is made harder by the fact that just because we think we have come up with the perfect business name does not mean that we can use it.

Before we start doing anything with our amazing new business name, we need to make sure that we are actually allowed to use it. We don’t want to find ourselves with a great new website and fancy business cards only to have another business come in and stop us from using our new name, and even potentially request damages. We can save ourselves a lot of time and stress by taking the time to properly confirm whether our chosen business name is available for us to use.

Trademark Law

Business names are regulated under Trademark Law. Regulations are in place to prevent businesses from using a business name that is likely to lead them to be confused with a competing business. If a business is found to be infringing on the trademark of another business, it can be forced to change its name, which can be a costly setback, and sometimes forced to pay damages.

It is not always prohibited to use a business name that is already in use. If the business that is already using the name is relatively small, and provides drastically different services to you, you may still be able to use the name. The same applies if the business is located a significant distance from where you are and only serves a limited community, which your business is unlikely to serve.

Research your Business Name

Once you have come up with an appropriate business name, there are a number of searches to conduct in order to ensure that it is available to use. While a federal database of registered trademarks exists, it is not sufficient to just search here. Some companies with a local focus will only register their trademark on the state level, and under United States law, a business can lay claim to a trademark by using it, without registration.

As well as searching the federal database of registered trademarks, which includes every trademark registered by the United States Patent and Trademark Office, also do a state level search for your state, and neighbouring states if you think that your business will be active there.

The next place to search is the world wide web. In fact, it is probably worth doing a basic internet search before investing time and effort in trademark searches as most companies have a web presence, so this is a fast way to eliminate names.

As well as searching for companies using your exact name, look out for companies using a similar name that are active in a similar field. If there is too much crossover in your brand and service, these companies may also be able to prevent you from using your selected name under trademark law.

This type of internet search also helps you make sure that your selected business name is available as a domain name for when it comes to establishing your own web presence. Check with different abbreviations and hyphens as well as alternative top-level domains (such as .com or .net). While you may legally be able to use a business name, you may still want to avoid it if another company is already using your preferred web domain, or a very similar domain.

Conduct Business Entity Search

Finally, you need to check if the business name is available in your state.This search has to done on a state level. Each state maintains a database of all corporations, limited liability companies (LLCs) and limited partnerships registered in the state. Each state will also have a fictitious name database, which is a list of all registered business names in the state regardless of whether they have registered a trademark or registered as a corporation with the state. This is the final search that will show up unregistered companies without a web presence.

Register your Trademark

Once you have found a business name that you can use, it is a good idea to think about registering. While it is not legally required to register a trademark to start using it, registering your trademark can be useful if you do ever find that you need to defend your trademark in court. Plus, it may help reduce the risk of others using your name, as it will be easier for them to locate your business when they do their own new business trademark search.

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Legal

Brexit Unknown Makes UK Businesses Nervous

brexit

Brexit is certainly making businesses nervous right now, and there are many reasons for that. Despite almost three years having passed since the original vote, things are no clearer as to what the impact will be on business or what kind of trading relationships the UK will have with the EU going forward. Therefore, some nervousness is to be expected.

UK Businesses Rely on EU Workers

UK businesses of all kinds and in all industries employ EU workers. The question that remains unanswered is how those working relationships will function after Brexit has properly occurred.

There are guarantees in place that workers currently residing in the UK will be able to carry on living here, but it’s not at all clear whether more EU workers will be able to move here with ease after Brexit, and most indications suggest that won’t be the case. This will certainly have a big impact on businesses in many sectors.  See this article on: Solicitors talk Brexit.

All Types of Workers Are Required for the UK Economy to Function

One idea that has been floated by the UK government is the idea of an income threshold, meaning only those earning more than a certain amount of money will be allowed to live and work in the UK. This would mean that highly skilled workers would find it much easier to work in the UK than low skilled workers would.

However, the UK economy relies on both skilled and low skill labour in order to function properly. If that supply of low income workers was cut off after Brexit, more businesses would struggle.

Contingency Planning Might Not be Enough for Small Businesses

For big businesses, contingency plans are already being put in place. This is expensive and time-consuming for large companies, but it will mean that they’re able to protect themselves against the upheaval brought about by Brexit. On the other hand, small businesses don’t always have that option because they don’t have the resources to put adequate contingency plans in place. It’s those small businesses, therefore, that are likely to be hit hardest.

It’s clear that small businesses are not opening at the rate they previously were because of Brexit uncertainty too. This denies the UK economy future growth prospects as well as depriving society of potentially successful ideas and businesses.

What Can Business Do to Prepare?

In terms of what businesses should be doing now, it’s best to seek professional legal advice about the situation, what you can expect and where your business and its staff stand. You should also analyse your supply chain and think about how that could change in the future under various Brexit scenarios. It might also be a good idea to look at existing contracts with EU companies and seek clarifications regarding those.

The Brexit situation is constantly in a state of flux, so things can change very quickly in one direction or the other. Therefore, it’s important for businesses to be watching and listening so that they can work out what their next move should be in order to prepare properly and minimise risk.

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