The story provides inspiration and idea for how to face a situation that may seem dire, but with hard work and ingenuity, can end up having a good ending.

However, what is usual in this case is that rather than giving in, as most small companies do when faced with a cease and desist or any legal threat by a big name like P&G, Willa decided to fight. So far, the company has racked up approximately $750,000 in legal bills but intends to fight to the bitter end what it sees as its right to use the name Willa.

The NY Times Small Business Blog had an interesting take on the fight, claiming that although the legal fees might seem overwhelming for a new company and enough to send it under, a fight like this (especially when featured in the NY Times) can be a blessing in disguise. Americans love to root for the underdog and other companies that have been in a similar position have come out ahead as the publicity brings them more business than they ever would have had without the legal suit.

Trademark law prohibits a company from using the same or a similar name to describe goods or services in the same industry from one that is already used in commerce and/or registered with the US Patent and Trade Mark Office. The test is whether the names are confusingly similar. The author of the Small Business Blog, Tom Szaky, believes that Willa and Wella are confusingly similar. The founder of Willa alleges that the names aren’t confusingly similar, as Wella is only for hair-care products while the Willa line is for skin-care products.

What do you think? Is this trademark bullying?

• Access to one of our Minnesota business and employment attorneys, ranging from 2 hours per month to unlimited
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However, we aren’t the only ones who offer these services. For those businesses in California and in particular in the San Diego area, Top Floor Legal offers the same convenient service of a monthly retainer. Go to the home page and see the great video that Nasir Pasha, the owner of Top Floor Legal, has created. Like us, Top Floor Legal stresses the convenience and predicatability of working with a firm on a retainer or fixed-fee arrangement.

Another provision that can’t help but catch your attention is the state’s definition of disability. In almost all other states (including Minnesota) a disability is defined as a “physical or mental impairment that substantially (or materially in Minnesota’s Human Rights Act) limits a major life activity. In contrast, California defined a disability as an impairment that “limits” a major life activity, or that limits the “achievement” of a major life activity. This is a much more expansive and easy to reach standard than those imposed on employees in so many other states and under the federal law, the Americans with Disabilities Act.

Finally, the California FEHA has a list of conditions that are per se disabilities, like the EEOC has proposed in its recently released proposed regulations. These conditions include HIV/AIDS, hepatisis, epilelsy, seizure disorder, diabetes, clinical depression, bipolar disorder, multiple sclerosis, and heart disease. Including a list of per se disabilities is the best way to ensure that defendants/employers don’t try to play the game of arguing that a disabled employee isn’t disabled, as happened in this disability discrimination case involving Abercrombie & Fitch.

It is hard to go to a restaurant, coffee shop or bar without seeing a tip jar. For anyone who has saved their spare change, you know how quickly those nickels and dimes (and even dollar bills) can add up to signficant money. For employees in these establishments, a tip jar can be an easy and non-confrontational way to increase their income. But what about Minnesota state employment law? Are they violated when businesses put out tip jars and when the employees split the tips?

Minnesota law states that pooling or sharing of gratuities “may not be a condition of employment.” Minnesota courts have stated that tips belong to the employee who earned it and for this reason, he or she can’t be forced to share the money. Thus, an employer cannot require an employee who normally receives tips directly from customers (a “direct employee,” according to the law) to share his or her tips with other employees. Federal law, and some other states, do allow tip sharing to be mandatory. But Minnesota is different.

So going back to the tip jar. The first question would be whether baristas at coffee shops are those type of employees who normally receive tips. The answer would likely be yes. So in this case, the next issue is who has decided to start a tip jar. If it was the employer and if the employer is requiring it, that policy would be in violation of Minnesota law.

It has to be up to the employees to decide if and how they will share the tips. It would be difficult (but not impossible) to divide up the tips according to who earned them if an employee decided not to participate in the tip sharing. It would simply require vigilance to remove from the jar that person’s tip immediately after a customer deposited it in the jar. It is important to remember that each employee has the right to decide whether to participate or not and his or her refusal cannot be a reason to terminate employment.

Violations of this Minnesota law can lead to investigations by the Department of Labor and fines.

Another issue could be whether the employee who refuses is harasses by other employees and coerced to participate. Allowing such behavior to take place could lead to other liability for the employer. Click here to read more.

We are all trying to cut costs and reduce spending these days. For employers whose employees wear a uniform, requiring the employees to pay for them can seem like a simple, yet cost-effective way to cut down on costs. But adopting such a policy wouldn’t be much of a cost-saver if it were in violation of Minnesota law and would expose the employer to potential fines and fees down the road. What does Minnesota law say about this?

Minnesota Statute 181.79 is the law that we have to look at for the answer to this question. The law is clear: employers may not require their employees to pay for uniforms. The statute states that employers can deduct from an employee’s wages for faulty workmanship, loss, theft, damage to property or “other claimed indebtedness running from the employee to the employer.” It talks about a loss and about an employee reimbursing the employer for such loss. A uniform would not be considered a loss.

Furthermore, it is very important to note that deductions cannot be taken from an employee’s wages unless he or she has given written authorization to the employer to do so. The written authorization must be signed after the loss has taken place.

So in a nutshell, deducations can be made and an employee can be made to pay for things like:

• breaking company property
• stealing company property
• poor workmanship that cost the company money to replace or repair

BUT, the deductions can be made only if the employee authorizes the deductions in writing after the loss, damage or theft took place.

Deducting for anything else, such as uniforms, and doing so without written authorization, can leave you open to investigations by the Department of Labor, fines and attorney’s fees. Any questions about what you can or can’t do? Give us a call.

We have all heard a lot about bullying lately, especially in the context of school bullying. Although we might not hear about it as often, workplace bullying is also a problem. In 2010, the Workplace Bullying Institute found that 35% of all American workers have experienced first-hand bullying in the workplace, while 15% have witnessed it.

I wrote this post about tip sharing, stressing that Minnesota law prohibits employers from requiring employees to take part in a tip sharing arrangement. However, when talking with an employee of a local restaurant the other day and when explaining this law to him, he asked me this: What about if the other employees harass an employee who doesn’t want to share his tips? Then what? What choice does the employee have?”

That a good question and indeed, what should an employer do if this is going on? First, the employer needs to be aware of what is happening amongst employees. This means establishing clear and open communication so that an employee who is being harassed feels that he can come forward, complain and be protected. It also means having open eyes and open ears to catch on to what is happening. Furthermore, it means educating your employees about the law, conducting trainings and reminding employees about what they can and can’t do.

If an employee is bullied by co-workers for not taking part in a tip sharing pool, an employer could be liable for the behavior of those employees. Employers are required to provide a safe and secure place to work. This duty extends not only to the public, but also to employees. This means not only repairing and maintaining equipment, but also making sure that harassment and bullying doesn’t take place and keeping violence out of the workplace.

If an employer who does not take reasonable steps to protect an employee and if the employee suffers harm as a result of the bullying, the employer could be liable for what is called negligent hiring or supervision. This means that the employer didn’t act reasonably in hiring or supervising an employee and that injuries were suffered.

The moral of the story: Train your employees. Don’t tolerate violence or bullying. Inform employees about what the law allows and doesn’t.

Employees have a right to be paid for the work they perform. It doesn’t matter whether the company is low on money, has no money or needs to pay off other debts. Employees must be paid and must be paid on a regular basis (weekly, bi-weekly or monthly) at least once every 31 days according to Minnesota law. These are obligations that can’t be altered.

A similar Minnesota law states that terminated employees must be paid immediately at the time of discharge. If the wages aren’t paid and the employee makes a demand for them, the employer then has 24 hours to pay the unpaid wages or risks a penalty equivalent of a day’s wages, up to 15 days.

For more information about your rights and obligations under Minnesota employment laws, as either an employer or employee, contact Attenza Law.

Americans with Disabilities Act: The ADA requires employers to make reasonable accommodations to a disabled individual who can perform the essential functions of the job that he or she seeks or is performing. Thus, it is extremely important to define the “essential functions” of a specific job to determine whether or not an accommodation can and should be offered. For example, is a regular presence required at the place of business? If not, telecommuting might be a reasonable accommodation. Physical requirements such as lifting, bending or standing for long periods of time are other essential functions that could be included in a job description and could be relevant in the discussion of a reasonable accommodation.

Fair Labor Standards Act: Both the federal and state FLSA require employers to pay non-exempt employees overtime when they work more than 40 or 48 hours per week (for further information about whether you should pay according to state or federal FLSA. Whether the job duties fall into one of the exempt exceptions under the FLSA, meaning that the employee is not entitled to overtime, will depend in large part on the job descriptions. Does the employee exercise independent judgment? Does she have authority to hire, fire and discipline other employees? Does she do office or nonmanual work? If so, the job is likely exempt, and having a written job description in place will make it easier to prove if it is ever challenged.

When employees and employers have written job descriptions, it will be easier for you as a manager to identify when employees are not meeting expectations, and to provide specific feedback on the employee’s missteps.

The exception is known as piercing the corporate veil. This mean that under certain circumstances, courts will allow the imposition of personal liability on owners for the obligations of their corporations. Most often, parties try to pierce the corporate veil by showing improper conduct such as fraud, demonstrating that there was a disregard for the corporate entity and for corporate formalities.

These are other important factors that courts consider when determining if the corporate veil should be pierced:

1. a failure to adhere to corporate formalities,
2. inadequate capitalization,
3. commingling of assets and
4. use of corporate funds for personal use.

And those factors bring us to the message behind this posting and why a good September activity is to update corporate records. While insufficient on its own to pierce the corporate veil, the failure to adhere to corporate formalities (which includes maintaining regular meetings or drafting minutes in lieu of meetings and amending the articles of organization or the member control agreement) is an argument that has been successfully used along with other factors to pierce the corporate veil. Thus, it is a good reason to update your business records and make sure that everything is up to date.

If you are mixing your business and your personal assets by writing checks for your dry cleaning or your personal vacations out of your business accounts, the fact that is another factor that courts consider when deciding to pierce the corporate veil is reason enough to stop immediately.

The September lesson and activity for you: take your surge of autumn energy to draft up minutes for the last years, memorializing any changes such as loans taken out or changes in management or the board of governors, and updating the articles of organization to reflect your business today, not when it was started. If you don’t have any corporate records, talk to a business attorney and get some drafted. It is an investment in the stability of your business and personal life. Finally, get your financials in order if they are not. Get the bookkeeping up to date and become vigilant about keeping business and personal separate.