Do you deserve overtime pay for that email???

How many times have you answered an email after hours?  Is there such thing as “after hours”?  In today’s mobile society, the blessing and curse of smartphones and email is the level of accessibility. Employers are able to capitalize on this accessibility and reach new heights of productivity. When the amount of time an employee is inaccessible is decreased to maybe the time they are sleeping, companies experience increased productivity and near 24/7 operation.  Why not take full advantage?

Great for them not necessarily for us. Now that this level of accessibility is the norm, it is hard to set limits on when you can and cannot be reached without potentially limiting your upward mobility within the company. In this hyper competitive job market, we all know that the smallest things can make the largest difference. No one can afford to lose their competitive edge because they refused to answer an email after 6pm.

Sgt. Jeffrey Allen is suing the City of Chicago for answering his “required to use” department Blackberry when he’s off-duty.  And he’s not the first. Jason Swart and Justin Foley, officers in Yorktown Police Department’s K-9 Unit, have sued the Town of Yorktown for additional overtime incurred while caring for their police dogs.

These suits bring up an interesting conundrum that we often face because the law is always significantly behind technology.  Employment & labor laws do address this kind of issue. One email should not qualify for overtime especially if it is a brief and easy response; but at what point does responding to emails and phone calls outside of working hours violate the rights of employees? How do you quantify the number of emails that result in an hour of overtime or the depth of thought necessary when responding? Can an employee charge for every tenth of an hour used or should they wait until they’ve done at least 30 minutes of outside work?  And what will be the response of employers? Is the chance for overtime worth sacrificing a salary and likely having your base pay cut to account for potential overtime?  If you begin to nickel and dime your employer, will they adopt the same approach? How will that manifest itself? Decreased flexibility? Strict time requirements for assignments? Less incentives?

This could become a hot button issue as technology continues to penetrate the lives of employees and as employers seek to control such use both inside and outside the office.

What do you think?


Could a Senate Bill Mean Trouble for the Budget Conscious Fashionista and the “Trickle Down Trend”??

Designers have been vying for a way to protect the creativity and innovation reflected in their collections each season. The recent Louboutin v. YSL case is a great example. However, many designers are not so lucky.

BUT, do we as the consumer want them to be successful??? Don’t we want the looks shown on the runway?  But how many of us can afford them until they’ve been copied and changed slightly to appear at department stores and trendy stores?  Well that might be a new concern for the fashionista on a budget.

On September 20, the Senate Judiciary Committee approved Senator Chuck Schumer’s Innovative Design Protection Act., (the “IDPA”), sending the law to the Senate floor for consideration.

Fashion:District The Show
Fashion:District The Show (Photo credit: TPWP)

The IDPA would allow a fashion design to be protected for 3 years if it includes original elements of an article of clothing or accessory (such as a bag or eyewear), or an original arrangement of elements.  U.S. designers would be able to enforce their rights against a “substantially identical” design.  Will this eliminate the “trickle down trends” we all enjoy (I am copyrighting this term lol)??

While the definitions of these terms still leave a lot of room for interpretation, there are some clear parameters in place.  The provision would not protect colors (though some protection is available under trademark law) or graphics on fabric (though traditional copyright protection is available there).  Partial elements of an article, such as a sleeve, are outside the protection, since the legislation only protects the article as a whole.  Other exemptions are made for items that are the subject of independent creation; for copying of the design for home use; and by carve-outs for retailers, consumers, and third parties such as ISPs and search engines.  The IDPA would not extend protection to anything created prior to the enactment of the law.

The bill has garnered the support of the American Apparel and Footwear Association and the Council of Fashion Designers of America, but the California Fashion Association is still opposed to the initiative.  But how do you feel? I am extremely conflicted. As an attorney and a business woman I understand and support the desire to reward and promote innovation by providing protections for those spending their time and using their talents to create new items. However, as a fashionista and consumer I wonder how the industry will adapt. The “new hot thing” each season is just that because traces of it appear in most if not all new collections for the season. So that leads me to believe (or maybe I’m just hoping) that this will not be used as much as we fear or at least won’t be successful enough to deter or hinder the trickle down trend. It will really be beneficial to that stand out item that breaks the mold. Is three years too long to wait for its cheaper sister?

Fashionistas there is hope! We may not have to worry about how this will play out and affect our wardrobes just yet… Congress is busy and time is running short! Federal spending, revenues, the deficit and the national debt are presumably the issues which will garner the limited time and attention likely to be available between now and the end of the session.

Lets watch this one…

Let me know what you think!

Protecting the Mobile App Space

Mobile apps are the new frontier.  With every new terrain comes a lot of risks and eventually regulation.  About 8% of Android apps are vulnerable to attacks as a result of weak SSL implementations, according to a new computer security study. SSL/TLS are cryptographic protocols used to secure online communications. According to Information Week Security “Security researchers in Germany analyzed 13,500 free Android apps from Google Play and found that 1,074–about 8%–contain SSL/TLS code that could potentially make them vulnerable to what’s known as a Man-in-the-Middle (MITM) attack.”

Although not a new problem, attackers are increasingly using a simple method for finding flaws in websites and applications: They Google them. Using Google code search, hackers can identify crucial vulnerabilities in application code strings, providing the entry point they need to break through application security. In Information Week Security’s report, Using Google To Find Vulnerabilities In Your IT Environment, we outline methods for using search engines such as Google and Bing to identify vulnerabilities in your applications, systems and services–and to fix them before they can be exploited.

In light of these attacks, privacy and security are increasing concerns. In response to these issues California has implemented the California Online Privacy Protection Act — a.k.a. CalOPPA. Under this act, California is set to begin fining mobile app developers that release apps that lack a clear and easily accessible privacy policy. Attorney General Kamala D. Harris started notifying businesses this week that their apps did not have easily accessible privacy policies, as required by the state’s Online Privacy Protection Act. The warnings affect as many as 100 apps.

Violators will face fines of up to $2,500 for every non-compliant app that gets downloaded. Businesses that received the state’s privacy-warning letters this week included the airlines Delta and United Continental, as well as OpenTable, reported Bloomberg.

Earlier this year, Harris helped create an agreement among the seven leading mobile and social app platforms to improve privacy protections for those who use apps on their smartphones, tablets, and other electronic devices. According to her release, these companies – Amazon, Apple, Facebook, Google, Hewlett-Packard, Microsoft, and Research in Motion – agreed to privacy principles designed to bring the industry in line with California law requiring mobile apps that collect personal information to have a privacy policy.

The agreement allows consumers the opportunity to review an app’s privacy policy before they download the app rather than after, and offers consumers a consistent location for an app’s privacy policy on the application-download screen in the platform store.

“Smartphones are in my opinion the greatest threat to loss of intellectual property and concern about privacy,” said Darren Hayes, an assistant professor and expert in computer forensics at Pace University. “There are mobile apps that are masked as legitimate games which compromise other data on your phone. More aggressive privacy laws may mitigate some of the risk.”

A lot of apps would have to be updated to include the privacy notice. I hope 30 days is sufficient to make the necessary changes for affected applications.

Mobile security experts and vendors said the crackdown was good for the industry, because it would boost California consumers’ confidence. California is one of the most aggressive states in the nation on privacy protection.

This could be the catalyst necessary to make other states demand greater privacy protection. The problem is always in balancing protecting privacy with limiting speech. This is only the beginning….


Censorship or Prevention? University Social Media Policies for Athletes

The University of Michigan athletic department has “formalized its social media practices,” following a “national trend of colleges tightening their grip on student athletes’ social media practices,” according to Kellie Woodhouse of

In the past year, two University of Michigan football players earned their team secondary NCAA violations by inadvertently tweeting at a recruit; a third-string Ohio State quarterback became infamous when he tweeted that classes are “pointless;” and a top-rated recruit lost his chance to play with the Wolverines after he authored sexually and racially charged tweets.

The Univ. of Michigan policy is straightforward, advising students not to post when they’re emotional, not to use offensive language or slurs and not to tweet during class. If athletes violate the policy they can be reprimanded or, worse, face suspension.

Some colleges go much further than Michigan, forcing athletes to allow school officials access to their private accounts, banning players from using a long list of words on Twitter (such as University of Kentucky), or forbidding the students from using Twitter altogether. Many schools have hired third-party companies to monitor athletes’ posts around the clock.

Read the current agreement: University of Michigan social media agreement for athletes.pdf

Read the guidelines: University of Michigan social media guidelines for athletes.pdf

Are universities crossing the line?

These actions being taken by universities have already begun to see kick back by state legislatures such as California and Delaware. Social media is a new forum for speech that everyone is struggling to understand how to control. Everyone seeking to limit the reach and use of social media need to remember that social media is an avenue for protected speech. Users must also remember they will be held accountable for their actions and opinions. It seems universities have taken it upon themselves to protect their investment and make sure that athletes are aware of the power of their words.

So the question is, “Is it proper for universities to limit the speech of athletes by putting parameters on their social media use?”

This is an over-excerise of authority and I think universities will continue to see increasing backlash for these kinds of activities. Athletes voicing their opinions via social media is protected speech under the first amendment and should be protected accordingly. Therefore, athletes should have the right to voice opinions as they see fit but they need to be prepared to deal with the consequences that follow. I do think its a concern that athletes and students alike are posting recklessly. However, universities should invest their resources into training athletes about appropriate social media use as opposed to instituting rigid policies.

Although universities are not bound by the National Labor Relations Act as it relates to their athletes they should use the National Labor Relations Board‘s guidelines and rulings as guidance when adopting a social media policy.

A Lesson for Students

Students should take a lesson from these policies. Your social media use matters and can be the difference between success and failure. Not only is it important to athletes who find themselves in the public eye but to the job or internship-seeker who will be throughly searched online. Although you should retain the right to post whatever you want, make sure you are careful with what you post and the privacy settings you use. Your online reputation always proceeds you make sure you put your best foot forward.

Business Owners Trademark Your Brand!: New Law Helps Unregistered Tradmark Owners in the Fight to Protect Their Brand

Get your mark trademarked!! A lot of start-up companies wait to trademark their brand name and/ or logo for monetary reasons or out of sheer ignorance. When trouble arises they hope that state common law protections will be sufficient to protect the time, money and energy invested into creating a recognizable brand. This is true to an extent but the protections are not as clear-cut nor as strong for trademarks not federally registered.

What happens if someone else tries to use your mark or something very similar to it? Well, if they get a federal trademark before you, you might be in some trouble.

Section 43(c)(6) of the Lanham Act, 15 U.S.C. 1125(c)(6) included a complete bar for state dilution claims brought against federally registered marks. Which means that if someone federally registered your mark before you and you tried to do something about it based on a dilution claim (they are weakening the strength of your mark) you would have very hard time bringing a claim not to mention proving prior ownership if you get to a proceeding.

President Obama on October 5, 2012, signed legislation (H.R. 6215) that restores the limitation of the federal registration defense to trademark dilution claims based on state law only.  This will make it easier to bring a dilution claim against someone attempting to steal your mark or gain an advantage by confusing consumers using your mark.  The House Report (H. Rept. 112-647) for H.R. 6215 points out that Congress could not have intended that federal registration could serve to bar all dilution claims since that result would make it difficult to cancel a diluting mark that is registered. That would only encourage illegitimate mark holders to register diluting marks, and would force legitimate mark holders to expend greater resources monitoring registrations as well as other marks being used in commerce, the Report noted.

Signed Legislation

H.R. 6215 restores the intent of the House-passed version of 15 U.S.C. 1125(c)(6) as follows:

(c)(6) The ownership by a person of a valid registration … shall be a complete bar to an action against that person, with respect to that mark, that —

(A) is brought by another person under the common law or a statute of a State; and

(B) (i) seeks to prevent dilution by blurring or dilution by tarnishment; or

(ii) asserts any claim of actual or likely damage or harm to the distinctiveness or
reputation of a mark, label, or form of advertisement.’.

The need for this legislation was recently confirmed by a ruling of the Trademark Trial and Appeal Board in the cancellation action in Academy of Motion Picture Arts and Sciences v. Alliance of Professionals and Consultants, Inc., TTAB, Canc. No. 95055081, 9/24/2012.  The TTAB dismissed the action, finding that the language of the 2006 amendment barred a federal dilution claim against a federally registered mark.
Although this new law will help trademark owners without a federal registration protect their marks from infringers/illegitimate mark holders it does not mean that a legitimate trademark holder will be able to defend their mark. This only allows for a greater opportunity to appear in court. Then a legitimate mark holder must start the uphill battle to prove that they are the initial and legitimate mark holder. Trademark protections work better for entities or individuals who have proactively registered their mark(s) with the USPTO. I encourage every business owner, budding business owner, idealist, or individual with a cool mark to register your trademark. Protect your investment. Additionally, seek the help of a trademark attorney.  These applications seem easy but unless your mark is completely nonsensical and a new word you are likely to experience trouble registering the mark.

Social Media: Personal Expression or Supplement to Your Resume?

Can you imagine your employer or potential employer looking at those Facebook pictures you posted from last weekend’s night out with the girls…. Not a pleasant thought, right? You are not the only person upset or even outraged by the thought of employers and potential employers attempting to “learn more about you” by requesting social media passwords and sifting through your content.

New technology always brings new legal hurdles and protecting the privacy of employees who use social media is one such legal hurdle. When this phenomenon began employees and potential employees were unaware of whether this violated their rights and divulged the information. Whether or not this made a difference in their employment status, this intrusion int their privacy is absolutely unnecessary and crosses a line that seemingly becomes blurrier with each new phase of the technology boom.

Luckily, there have been a few state politicians that agree with need to protect the privacy rights of employees and have drafted legislation attempting to prevent this type of invasion. Right now, Maryland and Illinois and most recently California announced the passage of laws limiting and employer’s ability to request an employee’s social media password. California’s law is more comprehensive than that of its predecessors because it also protects the social media privacy of post-secondary students, similar to Delaware which has passed a law only protecting student social media privacy.

Over a dozen other states including Washington and New Jersey are still working on similar bans. Senators Chuck Schumer (D-NY) and Richard Blumenthal (D-Conn.) have requested the Department of Justice and the Equal Employment Opportunity Commission to investigate whether or not these social media password inquiries violated federal law.

Although only a few states have stepped up to address this issue, I encourage all employees and job-seekers to be aware that this is an invasion of your privacy and unless your employer or potential employer can show you just cause or legal standing as to why they should be provided your social media passwords, refuse. If your refusal is the difference between you getting or keeping that job you have to ask yourself, “do you want to work for a company that would seek to invade your privacy in such an obvious way.” It is almost like coming to your home and asking to do a search. Any information not made widely available is protected for a reason so if that company isn’t able to access the information open source, they need to understand that it is private.