Adopting remote and hybrid work models has become increasingly common, especially after the global pandemic. While these arrangements offer flexibility and other benefits, they also present unique legal challenges that employers must be prepared to handle. Understanding and addressing these issues proactively is key to avoiding complications and ensuring a smooth operation. The case of Joseph Mobley vs. St. Luke’s Health System, Inc. serves as an instructive example in this regard.

Background of the Case

In this landmark case, Joseph Mobley, an employee diagnosed with multiple sclerosis, requested accommodations to telecommute during flare-ups of his condition. St. Luke’s Health System, his employer, denied these requests, leading to a lawsuit under the Americans with Disabilities Act (ADA) and the Missouri Human Rights Act (MHRA). In this case, the Eighth Circuit Court’s decision offers several critical takeaways for employers managing remote or hybrid workforces.

Key Takeaways for Employers

1. Challenges in Denying ADA Accommodations for Additional Telework: If you already offer a hybrid schedule that includes telework, denying an ADA accommodation request for additional telework may be challenging. In Mobley’s case, the court scrutinized the employer’s refusal to provide additional telework as an accommodation, even though some level of telework was already part of the job. This implies that employers should carefully consider and justify any refusal of additional telework accommodations under the ADA.
2. Documenting the Essential Nature of Onsite Work: In cases where telework is denied on the basis that onsite work is essential, it’s crucial to document the specific reasons why onsite presence is necessary. This documentation should detail how certain tasks or responsibilities require physical presence in the workplace. In Mobley’s situation, the court examined whether he could perform his job’s essential functions through his proposed accommodation of teleworking during MS flare-ups.
3. Incorporating Essential Job Functions in Job Descriptions: Planning ahead by clearly documenting the essential nature of onsite work in job descriptions can be invaluable. This not only sets clear expectations for prospective and current employees but also provides a solid foundation for decision-making regarding accommodation.
4. Managing Provisional Telework Accommodation: If an employer provides provisional telework accommodation, it’s important to document that this arrangement is temporary and may involve excusing some essential job functions. Moreover, this context should be clearly communicated in performance reviews to avoid misunderstandings or disputes.
5. Engaging in Good Faith in the Interactive Process: The Mobley case underscores the importance of engaging in good faith in the interactive process when considering accommodation requests. Employers should document their efforts to work with employees in finding suitable accommodation and be prepared to demonstrate these efforts if challenged.

Conclusion

The Mobley vs. St. Luke’s Health System case serves as an example of the complexities and legal nuances in managing remote and hybrid workforces, particularly in the context of ADA accommodations. As organizations navigate these uncharted waters, it is essential to approach telework policies and accommodation requests with a comprehensive understanding of legal obligations and practical considerations. Proactively addressing these issues, thoroughly documenting decisions and processes, and engaging constructively with employees are critical steps in minimizing legal risks.

However, navigating these legal intricacies can be challenging, especially for businesses without a dedicated legal department. This is where outsourcing legal service becomes invaluable. Hiring a firm like Catalyst Legal provides expertise in navigating the complexities of employment law in remote and hybrid work settings. We can help you develop compliant policies, handle accommodation requests effectively, and ensure that all employment practices adhere to current legal standards.

Performance reviews are a crucial element of employee management, serving as a barometer for productivity, engagement, and fit within a company. A performance review that glosses over issues or inflates achievements does a disservice to everyone involved. It can mislead an employee regarding their standing in the company and can leave an employer vulnerable to costly legal challenges, potentially ranging from $5,000 to upwards of $100,000. Therefore, it’s imperative that managers document both performance triumphs and troubles with equal rigor in reviews and written warnings.

Be Smart About What You Document

Adopt the CAP method (Conduct, Attendance, Performance) as a framework for documentation. These three pillars provide a clear structure to evaluate and record an employee’s work life.

• Conduct: Note any incidents of misconduct, their context, and any corrective actions taken.
• Attendance: Keep accurate records of absenteeism or lateness, which can affect performance evaluations.
• Performance: Detail how well the employee meets job responsibilities and performance goals.

Remember, if it’s not in writing, it didn’t happen. This mantra underscores the need for a written trail for all performance-related interactions. Verbal warnings or coaching sessions should always be followed up with a written note to the employee’s file.

Best Practices: Roadmap of Discipline to Discharge

Upon Hiring: Set clear expectations from the outset by providing a detailed job description outlining the duties and performance goals.

First 90 Days: Hold a check-in meeting to confirm that the employee understands their role and is performing adequately.

Regular Oversight: Offer consistent coaching and support to guide the employee toward success.

At the First Sign of a Serious Problem:

• Immediate Discussion: Have a talk with the employee about the issue, documenting the conversation afterward.
• Escalate to HR if Needed: Depending on the severity, involve HR early to help facilitate a resolution.
• Implement Discipline as Necessary: For persistent issues, consider written warnings or other disciplinary actions.

Annual Performance Review: Conduct a comprehensive and truthful review, making sure to document any performance problems and previous corrective actions taken.

If Problem Persist: Implement a structured disciplinary process, which might include a last-chance warning, clearly outlining:

• Nature of the Problem: Describe the specific issues affecting performance.
• Remedial Action: Explain how the employee can correct the problem.
• Timeframe: Set a clear deadline for improvement.
• Consequences: State the potential outcomes if the problem isn’t rectified, including possible discharge.

Trigger Event for Discharge: Establish a clear event or time after which termination will be considered if there’s no improvement.

HR Involvement: Ensure consistency across the organization by involving HR in the process. They can help maintain an objective perspective and ensure that all steps are documented.

Documenting Termination: When termination becomes necessary, document the rationale succinctly, clearly, and without unnecessary elaboration. Record:

• All Reasons for Discharge: List the justification for the decision.
• Avoid Overstatement: Present the facts without exaggeration.

Remember, the documentation will likely become “Exhibit A” in any legal dispute, so precision and factual accuracy are paramount.

What If I Need Help?

Thorough and honest documentation of performance issues is not just a best practice; it’s a shield against potential legal challenges and a crucial factor in fostering a culture of accountability and improvement. By consulting with legal experts from Catalyst Legal, you can fortify this shield with robust legal insights, ensuring that your documentation practices are not only compliant but also strategically sound.

In the diverse landscape of today’s workforce, it is essential for both employers and employees to be crystal clear about the type of employment relationship in place. Three common categories often arise in this context: independent contractors (ICs), at-will employees, and contract workers.

Independent Contractors (ICs)

Definition: Independent contractors are individuals or entities hired to perform specific tasks or projects for a company. They are not considered employees and work as separate business entities.

Characteristics of Independent Contractors:

• Autonomy: ICs have a high degree of autonomy over how and when they perform their work. They are responsible for their own work processes and tools.
• Tax Responsibility: ICs are responsible for their own taxes, including self-employment tax. Employers do not withhold taxes or provide benefits.
• No Employment Benefits: ICs are not eligible for employee benefits such as health insurance, retirement plans, or paid time off.
• Contractual Agreements: The relationship between the company and ICs is typically outlined in a contract that specifies the scope of work, payment terms, and other details.
• Limited Job Security: ICs are not protected by employment laws related to job security, such as wrongful termination laws.

At-Will Employees

Definition: At-will employees are individuals employed by a company without a specific employment contract. Employment is presumed to be voluntary, and either the employer or employee can terminate the relationship at any time for any legal reason.

Characteristics of At-Will Employees:

• Flexibility: Employers can change terms of employment, roles, or compensation if they comply with labor laws.
• Termination Rights: Employers can terminate at-will employees without cause, and employees can resign without cause.
• Employment Benefits: At-will employees are typically eligible for company-provided benefits such as health insurance, paid time-off, and retirement plans.
• Tax Withholding: Employers withhold income and payroll taxes from at-will employees’ paychecks.

Contract Workers

Definition: Contract workers are individuals hired for a specific period or project under the terms of a written contract. They differ from independent contractors in that they are treated as employees for the duration of the contract.

Characteristics of Contract Workers:

• Contractual Agreement: The terms of employment for contract workers are outlined in a contract, specifying the duration of employment, duties, compensation, and other details.
• Temporary Employment: Contract workers are typically brought in for temporary assignments or specific projects.
• Employee Benefits: During the contract period, contract workers may be eligible for some employment benefits provided by the hiring company.
• Tax Withholding: Employers withhold taxes from contract workers’ paychecks.
• Limited Job Security: Contract workers are often hired with the understanding that their employment will end upon completion of the contract.

Why Clarity Matters?

1. Legal Compliance: Understanding the type of employment relationship is crucial for legal compliance. Misclassifying workers can lead to legal consequences and penalties.
2. Tax Implications: Properly classifying workers impacts tax responsibilities for both employers and employees. Misclassification can result in tax disputes and financial penalties.
3. Benefits Eligibility: It determines whether workers are eligible for employee benefits such as health insurance, retirement plans, and paid time off.
4. Termination Rights: Knowing the employment type is essential for understanding the rights and responsibilities regarding termination and job security.

Work Arrangements: The type of employment relationship can also affect work arrangements, including work schedules, responsibilities, and flexibility.

Why Worry?

Why should business owners worry about differentiating between independent contractors, at-will employees, and contract workers? Because misclassification can be costly and can lead to severe legal and financial repercussions. For instance, California Attorney General Jerry Brown recently secured a $13 million judgment against two companies that misclassified 300 janitors. In Illinois, the Department of Labor imposed penalty fees totaling $328,500 on a home improvement company that misclassified 18 of its workers.

It is of utmost importance for employers to seek guidance and consultation from legal professionals in the matter of classifying workers. By doing so, they can ensure that their work arrangements align correctly with the appropriate employment category and adhere to pertinent labor laws and regulations. Beyond mere compliance, this clarity in employment relationships plays a pivotal role in building trust and fostering transparency in today's evolving workforce landscape. Consulting legal experts such as Catalyst Legal is not only prudent but also essential to navigate the complex legal terrain of employment classifications.

On October 11, 2022, the Department of Labor (DOL) proposed a significant update to the guidelines governing the classification of workers as independent contractors. These proposed guidelines are viewed as more favorable to workers and will make it more challenging for employers to maintain the contractor classification.

Understanding the DOL’s Proposed Independent Contractor Guidelines

The DOL enforces the Fair Labor Standards Act (FLSA), which establishes federal laws governing minimum wage and overtime pay for non-exempt employees. Consequently, the DOL has taken a keen interest in addressing misclassifications of workers as independent contractors. Over the years, various tests and criteria have been provided by the DOL to analyze whether a worker should be classified as an employee or an independent contractor.

The crux of the 2022 proposed rule revolves around the concept of “economic independence.” According to the DOL, the ultimate inquiry in determining proper worker classification is whether the worker is economically independent, meaning they are in business for themselves rather than solely relying on a single employer for income. This shift in focus signifies a significant change from the previous guidelines.

While the proposed rule emphasizes economic independence, other factors considered by the DOL will still be considered. These include:

1. Degree of Control: The extent to which the employer controls the worker’s tasks, schedules, and work conditions.
2. Skills Required: Whether the work demands specialized skills or training.
3. Permanence of the Working Relationship: Whether the working relationship is of a short-term or long-term nature.
4. Integral Nature of Work: Whether the worker’s tasks are integral to the core business operations of the company.
5. Opportunity for Profit or Loss: Whether the worker has the potential to make a profit or incur losses based on their own efforts and investments.

Key Considerations for Employers

The DOL’s proposed guidelines signify a heightened scrutiny of worker classifications. Employers must pay close attention to several factors when distinguishing between 1099 and W-2 employees:

1. Economic Independence: Under the proposed rule, this is the paramount consideration. Employers should assess whether the worker operates as an independent business entity with the ability to make business decisions that impact profit or loss.
2. Contracts and Agreements: The terms and conditions outlined in contracts or agreements with workers should align with the intended classification. Ensure that these agreements reflect the worker’s independence and autonomy if they are classified as independent contractors.
3. Control and Supervision: Employers should review the level of control and supervision exercised over workers. It is vital to avoid micromanaging independent contractors, as this ca be viewed as exerting undue control.
4. Documentation: Keep meticulous records of payments, contracts, and communications with workers. Clear and comprehensive documentation can support the intended classification in the event of an audit.
5. Legal Counsel: Seek legal counsel or consult with employment law experts to ensure compliance with the proposed rule and other relevant labor laws. Their expertise can help navigate the complexities of worker classification.

Your Partner in Compliance

Given the shifting landscape of worker classification and the increased scrutiny by the DOL, employers must exercise due diligence in determining worker status. It is crucial to remain in compliance with the latest guidelines and regulations to avoid potential legal issues and penalties.

This is where Catalyst Legal comes into play. We specialize in employment law and can provide comprehensive guidance on navigating the complexities of worker classification. We stay abreast of the latest developments in labor law, ensuring that our clients are informed and compliant with the ever-evolving regulatory landscape. With Catalyst Legal as your legal partner, you can navigate the worker classification changes confidently and safeguard your business against potential compliance issues.

There are several different types of intellectual property designed to protect your work and enforce your rights. Though the differences between each type can be confusing, understanding what each protection does can help protect your business from losing valuable proprietary information. Here, we’ll focus specifically on trade secrets, how they differ from other types of intellectual property, and general best practices to protect your business’ trade secrets from competitors.

What is a Trade Secret?

A trade secret is a type of intellectual property that consists of confidential or proprietary information that is not generally known or readily accessible to others. Trade secrets can include a wide range of information, such as formulas, processes, techniques, designs, patterns, software codes, customer lists, and business strategies.

Trade secrets are valuable assets to your company, as they provide a competitive advantage over other companies, and detail the specific know-hows and processes that make your business unique and successful. Unlike patents, which require disclosure of the invention in exchange for legal protection, trade secrets are kept confidential and can be protected indefinitely as long as the information remains confidential.

Trade secrets are protected under both federal and state law in the United States. Your business can take various measures to protect their trade secrets, such as requiring employees to sign confidentiality agreements and limiting access to sensitive information. In the event of a breach of a trade secret, your business can legal remedies, including injunctions and monetary damages. However, it’s best to proactively seek outsourced legal services in the early stages of your business to ensure that your trade secrets are protected.

How is a trade secret different than a trademark?

A trade secret and a trademark are two different types of intellectual property protections. A trade secret is confidential information that provides a business with a competitive advantage, such as a secret recipe or a confidential manufacturing process. A trademark, on the other hand, is a symbol, word, phrase, or design that identifies and distinguishes the source of goods or services of one company from those of another.

Trademarks can include logos, brand names, and slogans, and need to be registered with the United States Patent and Trademark Office (USPTO). By registering a trademark, the USPTO provides the owner with exclusive rights to use the trademark in connection with specific goods or services. Trademarks can be renewed indefinitely as long as the owner continues to use the mark.

Essentially, trade secrets are confidential information that provides a competitive advantage, while trademarks are distinctive symbols or words used to identify and distinguish the source of goods or services. Both should be protected to for your business to thrive.

How is a trade secret different than a copyright?

A copyright is another type of intellectual property protection and is granted to the creators of original works of authorship, such as literary works, music, movies, and software. Copyright protection gives the creator the exclusive right to reproduce, distribute, and display the work, as well as to create derivative works based on the original. Copyright protection is automatic upon creation of the work, and it lasts for the life of the creator, as well as a given number of years past the creator’s death.

Trade secrets generally apply to the current operation of a business, whereas a copyright is granted to a completed work.

How is a trade secret different than a patent?

A patent is a legal protection granted to inventors for novel inventions or new ways of doing something. A patent gives the inventor the exclusive right to make, use, and sell the invention for a limited period of time, typically 20 years from the date of filing. In exchange for this exclusive right, the inventor must publicly disclose the invention, which enables others to learn from it and build upon it after the patent expires.

Trade secrets are similar to patents, as they both protect innovations. However, trade secrets apply more to a business’ individual processes, information, data, or software rather than only inventions or innovations.

How Can You Protect Your Business’ Trade Secrets?

If your trade secrets fall into the hands of a competitor, it can cause your business to lose market share and allow competitors to capture some of your business. And, of course, a loss of trade secrets undermines the hard work it took to build your business in the first place. There are several strategies that your company can take to protect its trade secrets, discussed below. However, a good first step to take is to contract a fractional attorney that can identify the best procedures to protect your business’ trade secrets. An outsourced attorney can also develop a full-fledged plan to ensure each aspect of your business is safe through intellectual property protections.

Identify and classify trade secrets: You cannot protect your trade secrets unless you first know what they are! Conduct a comprehensive inventory of all of your company's confidential information and identify what information is critical to your business—and consequentially needs protection.

Implement physical and technological safeguards: Implement physical safeguards, such as locked cabinets, access control, and security cameras, and technological safeguards, such as password protection and encryption, to protect your company's confidential information.

Develop protective policies and procedures: Develop and implement policies and procedures for employees to follow when handling confidential information. This should include trainings, both during the onboarding period and annually, on the importance of protecting trade secrets and the consequences of disclosing them.

Use non-disclosure and confidentiality agreements: Require employees, contractors, and third-party vendors to sign non-disclosure and confidentiality agreements that prohibit them from disclosing or using your company's confidential information. An outsourced attorney can help you draft these agreements before you hire additional employees to work for your business.

Limit access: Limit access to your company's confidential information to those who have a need to know and ensure that they are aware of their responsibilities for protecting the information.

Monitor and enforce: Monitor access to confidential information and take swift action to enforce your company's policies and legal protections if there is any suspected or actual misuse or unauthorized disclosure of confidential information.

By taking these steps, your company can help to protect its trade secrets and prevent unauthorized disclosure or use of its confidential information. Once your trade secrets are legally protected, you can take legal action if any infringement occurs.

When creating a trademark for your brand or business, there are both design and legal aspects that you need to consider. A trademark, simply put, is any word, symbol, design, or phrase that identifies your brand, and is a type of intellectual property. Ideally, you should develop a trademark that:

• Has phrasing, colors, and graphics that accurately express your brand- Has phrasing, colors, and graphics that accurately express your brand
• Is easily identifiable
• Distinguishes your brand from competitors

Your trademark should evoke positive associations with clients and consumers, as well as accurately portray the message you want to put out into the market. However, with well-designed, thoughtful trademarks comes the potential risk of being infringed upon. Brands with great trademarks are often vulnerable to being stolen from by competitors that want to mimic the positive reputation associated with that trademark. Here, we’ll address some of the most important factors to consider when developing your trademark, as well as how to protect yourself from potential infringement.

Creating a Low-Risk Trademark

As you’re developing your own trademark, it can be helpful to search for existing trademarks within your industry or business type. This will give you an idea of similar trademarks that already exist that can prevent the use and registration of your own. An outsourced attorney can guide this process for you and provide their opinion on the likelihood and availability for registering your trademark—though it ultimately is up to the decision of the Trademark Office. Generally, your trademark should not:

• Be too visually or phonetically similar to other trademarks
• Coincide with legal precedents that could prevent your trademark from becoming registered
• Be too similar to other brands known for filing oppositions

It’s best to avoid being entirely descriptive of your brand, but rather create a trademark that is unique in its associated meaning within your industry. Trademarks are assigned different levels of protection based on their strength. Generic or overly descriptive trademarks are given the least level of protection—for example, BAKED BREAD CO. for a sliced bread company. On the other hand, trademarks that are apparently arbitrary, seemingly unassociated with the product or service, or especially distinct are given the strongest level of protection. Think, Apple for computers and iPhones, Shell gas stations, or Coach for luxury accessories. None of these trademarks inherently have to do with the goods that the company creates.

Developing a Long-Term Trademark

In addition to creating a trademark that will have strong legal protections and generate positive brand recognition, it’s important to consider whether or not your trademark will support the long-term goals of your company. If your trademark will be used to market your products and services, it should be broad enough to encompass any potential changes you make in the future. For example, if your current business is to screen print tote bags, you may have a trademark that only reflects tote bags. However, as the business grows, you may want to expand into screen printing t-shirts and other articles of clothing. The tote bag trademark won’t serve future endeavors. Taking your time and choosing a trademark that can grow with your business is highly advisable.

Protecting Your Trademark

Once you’ve settled on the right trademark for your brand, the next step is to register it with the United States Patent and Trademark Office (USTPO). This process can take between nine and twelve months if no objections are raised or oppositions filed. When approved, it’s important to protect your trademark from competitors. The most effective trademark strategy is one that ensures your business is the only benefactor of the positive reputation your trademark represents. To prevent trademark infringement, you should provide notice of your trademark rights every time you use it. This can be done by using an ® once your trademark is registered, or a “TM” if you’re still in the process.

Though the USPTO registers your trademark, they aren’t responsible for enforcing the exclusivity of your trademark’s usage. Be sure to assert your rights as the trademark holder. If you find instances of a competitor using a trademark too similar to your own, a cease-and-desist letter can dissuade the infringer from continuing to use the trademark. An outsourced attorney can help you take further legal action when necessary.

The trademarking process can be difficult and full of obstacles. The best course of action is to contract an outsourced attorney that can advise you throughout the process.