Employment Law (in Plain English)

Leonard D. DuBoff, Kenneth A. Perea, Christopher Perea, Lauren Barnes

• Publisher: Allworth
• Year: 2021
• ISBN:
  9781621537687
• Topic: Business
• Subtopic: Business Law
• Index: Business

Employment Law (in Plain English)® provides both employers and employees the information they need in order to understand the law as it relates to their working relationship. This helpful guide will enable readers to identify and prevent many of the issues which can and do occur in the employment context, thus saving everyone valuable time and money and establishing a stronger workforce. While this book is not intended to replace the reader's employment lawyer, it will provide the ability to assist one's lawyer in litigation should the need arise. Chapters discuss a variety of topics including:

• Advertising for new positions and vacancies
• Interviewing, hiring, and other pre-employment considerations
• Employment contracts
• Union shops
• Collective bargaining agreements
• Employee handbooks
• First day on the job
• Wages hours and other terms and conditions of employment
• On-the-job rights and responsibilities
• Employee dignity, privacy, and reputation
• Ownership of work created by employees
• Private employment versus public employment
• Internet concerns
• Virtual offices
• Employees versus independent contractor statutes
• Discipline and termination of the employment relationship
• Dispute resolution
• Fringe benefits
• How to find a lawyer

In easy-to-understand terms and with plenty of examples, this essential handbook supplies readers with invaluable insights on the legal nature of their working relationships.

CHAPTER 1

Advertising

A host of different issues arise in the context of advertising. When preparing an advertising program, it is essential for you to take care not to violate the rights of other businesses or individuals. Care should be taken to work with an attorney skilled in employment law in order to be assured of having an effective program that will enable you to advertise employment opportunities without exposing your business to potential liability. A poorly drafted employment advertisement is likely to result in problems for the advertiser. This chapter covers several important legal considerations that may arise when advertising for employment opportunities, whether the ad is for an individual to replace an employee or for a newly created position. We will provide information for both employers who prepare the ads and for individuals whom the ads are attempting to attract.

GOVERNMENT REGULATIONS

To begin with, a business may always tout the qualities of its products or services, but those representations must be true. If there are any misrepresentations contained in ads or promotions, the state or federal government may file a lawsuit to redress this wrong.

Most states have consumer protection laws that, among other things, impose fines and other legal sanctions on businesses that engage in misleading advertising. The state attorney general can cause an offending advertisement to be withdrawn and may even require corrective advertising. Similarly, the Federal Trade Commission (FTC) is involved in policing businesses that are engaged in interstate commerce. If your business activity extends beyond your state boundaries and either touches or affects another state, then the Federal Trade Commission has jurisdiction over your company. This is also true if you advertise over the web. Indeed, advertising online may subject your advertising to regulation throughout the world, and the laws of other countries may be quite different than those in the United States.

PUBLICITY AND PRIVACY

A company may use a celebrity to endorse its product, provided the celebrity consents to the endorsement. If not, the company may be liable to the celebrity for violating their right of publicity. This right is granted by the majority of states in the United States to those who commercially exploit their names, voices, or images, such as actors or singers. The use of a look-alike for commercial purposes may also be actionable. Thus, when manufacturers used look-alikes for Jackie Onassis, Woody Allen, and the rap group the Fat Boys, liability was imposed.

People who have not achieved notoriety because of their commercial activities may have a right of privacy and, thus, may have a claim if their names or likenesses are used in an advertisement without their permission. This applies even to employees. They must grant permission for their names, voices, or likenesses to be used for advertising purposes.

If an individual’s photograph is not the focal point of the ad, but rather is merely an incidental part, such as a head in a crowd or a member of an audience, then an individual’s permission may not be essential for the photograph to be used commercially.

Even though you may not be required to have permission from an individual before using their photograph, it is a good idea to get a signed photo release whenever possible. The release should be worded in such a way as to give your business permission to use the name and likeness or, where relevant, the person’s voice, for any and all purposes, including advertising your business. This will protect you if, for example, the individual ultimately becomes popular and you wish to use the photos you obtained at an earlier date before the individual became a celebrity.

UNAUTHORIZED USE OF TRADEMARK

An advertiser may be permitted to use the name or logo of another business in its ad as long as there is no likelihood that the average viewer would believe that the ad was sponsored by the company whose name or logo you are using. For example, it would be permissible for you to have an ad for a baseball team contain a photo of individuals incidentally holding a distinctively shaped Coca-Cola bottle, as long as it is clear from the advertisement that the soft drink manufacturer is not sponsoring the ad. Similarly, an individual in your ad may be shown wearing Nike running shoes so long as it is clear that Nike is not involved in the ad.

UNAUTHORIZED USE OF COPYRIGHTED MATERIAL

An advertiser may not use copyrighted work of another without obtaining permission from the owner for that use, unless the use is a “fair use” under the copyright law. To begin with you should determine whether the item you wish to use in the ad is protected by copyright. Copyrighted material includes photos, pictures of all kinds, literature, music, phrases, animation, and every form of pictorial, graphic, and sculptural works.

IN PLAIN ENGLISH

The copyright law states that in order to determine whether a use would be considered a “fair use” it is necessary to consider at least the following four factors:

1. The nature of the use, that is whether the use is going to create something new.

2. The nature of the work, that is whether the work was intended to be copied. For example, quotes from a book of quotable quotes.

3. The extent of copying, that is whether all of the work is copied or only a small portion is used.

4. The effect the copying will have on a copyright owner’s market—that is, will your use of the copy deprive the copyright owner of a sale?

In order to be protected by copyright, the item must also be original, creative, and not merely functional. Generally, material that is protected by copyright is identified by the word copyright, its abbreviation, or the symbol ©. Unfortunately, this is no longer a requirement under US law and it is not required by the laws of many other countries throughout the world. For this reason, it is not always clear whether the work is protected by copyright and, under the American copyright statute. If an individual relies on good faith on the fact that no copyright notice appears on a work, then that individual’s use of that work without obtaining appropriate permission is defined as an innocent infringement. Innocent infringers may be permitted to continue using the work without permission and if liable for damages would be required to pay no more than $200. It is very likely that an innocent infringer would not wind up in litigation because the cost of a copyright lawsuit would likely exceed the amount the copyright owner could recover.

IN PLAIN ENGLISH

The term “liable for damages” means that if a lawsuit is filed, and it is ultimately completed by a trial, that a party to that lawsuit may be awarded some money, referred to as damages. In addition, if permitted by law, or contract, then the winner of the lawsuit may also be awarded reimbursement of the amount spent on attorney’s fees. In the United States, the winner of a lawsuit is only permitted to recover the attorneys’ fees incurred if the law involved in the lawsuit states that attorneys’ fees are available or if the contract in dispute states that attorneys’ fees are available.

If you desire to use material that might be protected by copyright, you should either obtain written permission to use that item from the copyright owner or the owner’s representative. If you are not able to obtain permission, then you should consult an attorney in order to determine whether there is a possibility that your use would be considered “fair use.”

One of the most complex areas of copyright law involves music. If you intend to use music in your ad then you should definitely consult your attorney before using music or lyrics from a song.

USE OF THE NAMES OR IMAGES OF PEOPLE IN ADVERTISEMENTS

If you desire to use the name or image of an individual in your ad, then you should obtain written permission from the individual for such use. Every individual has the right to protect the individual’s name and likeness for the individual’s entire life. Of course, if the individual’s name is a common name such as Jones or Smith, then the individual would not be entitled to prevent the use of that name unless the individual can prove that the name used actually identifies that person.

If the individual is famous, such as an actor, sports figure, or politician, then the individual’s name and likeness are protected for the individual’s life and, in most states, for a significant period after the individual dies. Because the use of names and likenesses in advertisements can be complex, and because the rules in the United States differ from the rules in other countries, if your advertisement is online you should definitely consult with an experienced attorney before using any names or likenesses in your advertisements.

GEOGRAPHIC LOCATIONS

Geographic locations may also be used in advertisements without obtaining the owner’s consent. It would be permissible for a company to advertise its product by having someone stand in front of a famous building, such as the Empire State Building or the Sears Tower, now known as the Willis Tower. Similarly, an automobile advertisement may show its vehicle streaking through a metropolitan area and passing several famous businesses.

This is so because items of utility are not copyrightable. Buildings, parks, and other landmarks may incidentally be used in advertising programs without the owner’s permission. (However, it was held that a building that was architecturally unique, identifiable, and famous could enjoy the protection of the trade dress laws when it was prominently featured on a poster.)

ADVERTISING FOR NEWLY CREATED POSITIONS

If the position you are advertising to fill is newly created, then you should define the job to be performed to the best of your abilities and the requirements you believe are important for an individual to have in order to perform that job.

The ad should be as clear and unambiguous as possible. If special licensing requirements are necessary—for example if you are advertising for a medical doctor, accountant, lawyer, or professional engineer—then you should state that requirement in the ad, because you would not want to waste your time and that of applicants in reviewing applications from unqualified individuals.

Rarely, if ever, should an ad contain the salary being offered, because that is something that should be discussed at the initial interview. You should also specify whether the position in full-time or part-time.

If there are any other special requirements that you believe are necessary for the newly created position, then those requirements should be spelled out in the ad as well. If you do not feel comfortable preparing an ad, then there are companies that specialize in creating advertisements, though they generally charge a significant fee for their services. You can find such companies with a Google search.

ADVERTISING FOR REPLACEMENT OF EXISTING EMPLOYEES

An ad for replacement of an existing employee is very similar to an ad for a newly created position. Though in this situation you should have a better understanding of the work to be performed and the qualifications necessary to do that job. It should therefore be easier to prepare this ad, because you will likely know the type of person who can do the job and you should be able to prepare this ad a lot faster. You may also have a copy of the ad you or your business used when advertising for the person you are trying to replace. If so, you can merely update that advertisement.

WHERE TO ADVERTISE

Historically, businesses advertised for positions in newspapers and magazines. The newspaper ads were customarily in local newspapers so that individuals residing near the business would be attracted by those ads. In addition, advertising in professional publications would also attract applications from individuals in the desired profession.

Word of mouth in a particular location or profession has always been a method by which individuals could learn about an available position. This form of advertising will always be available, because individuals will always spread the word that a job in a particular field or with a particular business is available.

Today, virtually everything occurs online, and advertising for a job opening is no exception. The fact that advertising online is inexpensive, easy to accomplish, and available worldwide makes it the ideal way to advertise.

Virtually every business has its own website, and placing an ad on that website is an excellent starting point for finding an employee. Your business’s website should have a section devoted to job availability so that individuals who are interested in working for your business will be able to periodically check that section in order to determine when a position is available.

In addition to having the advertisement on your businesses website, you may also wish to have it appear on other sites so that the ad reaches a greater number of possible applicants. Most local newspapers and professional journals have an online presence. Of course, there will likely be a charge for using those sites, so you should determine which of them will best serve your business’s needs in order to obtain the maximum exposure for your ad while keeping costs down. Because there are a huge number of possible sites for your ad, you should determine which ones will provide you with the best opportunity to obtain the applicants you are interested in interviewing, while spending the least amount of money on the advertisements.

WORKING WITH EMPLOYMENT AGENCIES AND HEADHUNTERS

If your business is not equipped to advertise for new employees on its own, or if it urgently needs those employees, then it can work with an employment agency. In addition, employment agencies generally screen potential employees so that your business will not have to spend the time and devote resources to that portion of the interview process.

There is a cost involved in working with employment agencies. If, however, the agency advertises for the position, screens prospective applicants, and merely provides your business with a group of qualified applicants, the cost may be lower than what your business would spend conducting the same procedure.

Agencies frequently guarantee that if the applicant they provide is hired and within a prescribed peri...