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Category: Client Alerts

California Adopts New Test for Determining Independent Contractor Classifications

By Hoge Fenton | 05.8.2018 | Client Alerts

On April 30, 2018, the California Supreme Court issued a decision that establishes a new three-part test for determining whether a worker can be classified as an independent contractor. While the new test provides greater guidance and is more definitive than the prior multi-factor balancing test, the new test makes it far more difficult for businesses to classify workers as independent contractors, and it creates substantial risk for companies that currently classify any workers as independent contractors. The California Supreme Court case, Dynamex Operations West, Inc. v. Superior Court, involved a class-action lawsuit by delivery drivers against Dynamex, a same-day courier and delivery service. Workers sued Dynamex after the company restructured its business, reclassifying drivers from employees to independent contractors. The workers alleged that they were misclassified and that Dynamex was required to comply with various Labor Code and Wage Order requirements applicable to employees (e.g. meal and rest breaks, overtime). Instead of applying the balancing test historically used to evaluate independent contractor classifications, the Court adopted and applied the “ABC test” – under this test, an individual is an independent contractor only if each of the following is true: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or […]

Client Alert: Stop the Madness. Do you really need to comply with the GDPR?

The new European General Data Protection Regulation, or “GDPR” has created a lot of buzz and confusion about what companies that collect or handle personal data from the EU should do to protect their data. With the May 25, 2018 deadline fast approaching, many of these companies are asking their existing service providers and business partners to sign new Data Protection Agreements or “DPAs”. Those who sign would be contractually bound to comply with provisions of the GDPR. In some cases, large multinational corporations will send out hundreds or even thousands of these template DPAs. Given the complexity of the GDPR, though, many of these large companies simply send the DPA to all their service providers without much thought as to whether those service providers are actually processing any EU data at all. Just because you’ve been asked to sign a DPA doesn’t mean that your operations or services are necessarily under the purview of the GDPR. Before you sign that DPA, stop and think whether your company actually handles any personal data from the EU, or whether you will ever have such data in the first place. For example, a payroll provider based in the US that provides payroll services exclusively for US-based companies is unlikely to ever handle personal data from the EU. Why should this company be forced to comply with the burdensome requirements of the GDPR? The answer is that they may not have to. Compare that payroll provider to a small US-based IT Help Desk […]

Raise Your Right Hand and Register: Two Significant Changes in Trademark Use Requirements

By Dana Brody-Brown | 06.8.2017 | Client Alerts

Have you filed a trademark application, statement or declaration of use, or renewal recently? If so, you may have noticed that your verified statements supporting a submission in the trademark registration process look a little different! 1) As of January 1, the United States Patent and Trademark Office (USPTO) has changed its forms to emphasize that trademark registrants submit their affidavits or declarations under penalty of perjury. It has always been the case that any untruths or concealment of relevant facts carry consequences, including the imperilment of your registration or application. Penalties for perjury may also apply, such as a fine, imprisonment for up to five years, or some combination of both.[1] To stress the seriousness of the document and avoid the “too long; didn’t read” signature practice, the USPTO now requires registrants to check the box next to each relevant provision as an extra acknowledgement. KEY TAKEAWAY: We recommend you review these statements carefully for accuracy—especially statements regarding use of marks.   2) In addition to these formatting changes, the USPTO has instituted a more substantive measure to “clean up” the Register and ensure its integrity. Effective this past March 23, approximately 10% of renewal filings will be randomly chosen to undergo a specimen audit. As part of the audit, the USPTO will check whether the specimens submitted demonstrate that the registrant’s mark is being used with all the goods and services enumerated in the registration’s identification of goods and services.[2] If the specimens do not adequately support use of the mark with each […]

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