Category Archives: Business Law

The Hiring Process

The Hiring Process

No matter what kind of business you run, your success or failure depends largely on the quality of your staff. The hiring process, including everything from writing a job description to conducting interviews and choosing the best candidates, should always be done with careful attention to detail. There are a host of laws that an employer must follow during the hiring process. In this section, you can also find information about what distinguishes an employee from an independent contractor, and the consequences of misclassifying a worker.

Federal Hiring Laws

There are various hiring laws that employers must comply with, both on a federal level and state level. Many of the federal laws are in place to prevent discriminatory practices in both hiring and during the course of employment. Federal laws prevent discrimination based on various factors including age, race, color, national origin, sex, religion, and genetic information. Federal law also requires that men and women who perform substantially the same work, in the same or similar positions (at the same company) must be paid equally. The federal government also requires employers to verify that a person is legally eligible to work in the United States within three days of an employee’s start date. It’s important that your business has interview questions that are in line with federal laws, and that they do not come across as discriminatory toward any group.

Independent Contractors vs. Employees

It’s very important to classify your workers correctly because failure to do so can land you in hot water, particularly with the Internal Revenue Service (IRS). Classifying a worker takes more than just giving him or her a job title. In fact, the job title doesn’t matter; it’s the core of the relationship between the worker and the business that defines a person’s status as either an employee or an independent contractor. There are several factors used to determine the status of a worker, but the root of the issue is the degree of control an employer has over the worker. Basically, the more control the employer has, the more likely it is that the worker is an employee.

The classification of a worker matters for both the employer and the worker. Employers are required to perform certain actions on behalf of employees. These include withholding a portion of an employee’s paycheck and paying employment taxes. Employers are also required to comply with federal laws related to family and medical leave when it comes to employees. Independent contractors, on the other hand, have to pay their own employment taxes and do not receive the benefit of federal family and medical leave laws.

Hiring an Attorney

It’s important that your business has hiring policies and practices that comply with all federal and state laws. If you would like help setting up sound policies and practices – or would like the policies and practices you have in place reviewed by a professional – you should consult with a local employment law attorney.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Monitoring Employees

Monitoring Employees
Monitoring Employees

Technology has made monitoring employees easier than ever now that almost every mode of communication has gone digital. As many as three out of four companies reported that they monitored their employees to some extent, with the most commonly monitored activities being internet use and email.

Employers understandably don’t want employees surfing inappropriate websites, trading stocks, or playing poker while on the clock. More important to many companies, however, is that employees aren’t engaging in corporate espionage, selling trade secrets, or using workplace computers to harass other coworkers.

As an employer, the law generally allows you to monitor your employees’ communications while on the job and within reason. The major exception to this is if the monitoring runs afoul of an employee’s right to privacy. Each form of monitoring has its own rules and exceptions, so it’s important to know how the law treats each type of monitoring.

Monitoring Internet Use

Monitoring general internet use is probably the least restricted form of monitoring. Employers are allowed almost without exception to keep track of internet sites that their employees visit. Employees generally have no right to privacy regarding their viewing history, and many companies install software that either severely limits what websites may be viewed or how much time employees can spend on non-approved sites.

Monitoring Emails

Emails are the modern form of letters and correspondence and accordingly have more protection based on precedent than something like general internet viewing habits. However, courts have generally sided with employers and allowed them to read the email of their employees unless the employer has indicated that emails will be private or confidential. This policy can be communicated to employees explicitly, by telling employees that emails are confidential, or indirectly, by giving employees unique passwords that only they know.

To be careful, as an employer you should try to always have an established reason for viewing employee emails, such as a policy justification or a record of an incident which prompted the monitoring. Courts have rarely denied an employer the right to read employee email if there was a justification in place before the employer read the employee’s email (such as reports of harassment).

Monitoring Phone Calls

Phone calls are the most protected form of employee communication and employers should be especially careful when monitoring phone calls. Almost all states allow an employer to monitor or record employee conversations with customers for quality assurance purposes. Although only a few states require that you announce that the call is being recorded, it is a good business practice to let customers know they are being recorded.

The major exception to monitoring rules for phone calls is when the employee makes a personal call. Although federal law allows employers to monitor calls without warning or announcement, once the employer realizes that it is a personal call, the employer must stop monitoring the call. The only caveat to this is that if the employee has explicitly been told not to make personal calls from the particular phone, then the employer may be allowed to continue monitoring the call.

Monitoring Voice Mail

Voice mail is a gray area of the law and it is likely that the rules in place for other forms of monitoring apply here. Employers are likely able to access an employee’s voice mail, provided that the employer hasn’t given employees the impression that their voice mail is private. The best practice is to have a good work-related justification established before monitoring an employee’s voice mail.

How to Keep Your Monitoring Legal

Employers generally have access to employee communications while on the job, but there are a few steps to always take before monitoring employee communications:
• Establish a Policy: Don’t let there be any confusion about whether a particular form of communication will be monitored or not. Create a clear policy that outlines what forms of communications are monitored, why they are monitored and under what circumstances they are monitored. To be extra careful, consider having employees sign a consent form acknowledging that they understand and agree that their workplace communications will be monitored.
• Have a Justification for Monitoring: Courts are far less likely to find you liable for violating an employee’s right to privacy if you had a good, work-related reason for monitoring communications. If you’ve had past experiences that prompted monitoring or have received complaints, these all qualify as perfectly good justifications for monitoring employee communications.
• Be Reasonable: Be smart about how and when you monitor employee communications. If you create a draconian atmosphere of surveillance or implement a system that seems excessive given the potential problems, a court is much more likely to find that you are violating employee privacy rights. Ensure that your monitoring system is proportional to any potential problems because overreaching is a good way to ensure a lawsuit from a disgruntled employee.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What You Should Keep In Your Employees’ Personnel Files

What You Should Keep In Your Employees' Personnel Files
What You Should Keep In Your Employees’ Personnel Files

In some circumstances, personnel files can become evidence in a lawsuit brought against your company by an unhappy former employee or employees. As a result, you should always ensure that certain documents are maintained and updated in your employees’ personnel files in order to protect yourself. For example, personnel files should always contain periodic employee evaluations, notices of raises, employee commendations, and any evidence of any disciplinary proceedings that were taken against the employee.

You should never keep documents or entries that do not relate to the employee’s job performance or qualifications. Many employers have gotten into trouble for keeping documents or notes that relate to an employee’s political views, private life, or unsubstantiated criticisms about an employee’s race, gender, or religion.

Include Everything Relating to Employee Performance in the Personnel Files

One good practice to get in the habit of is to periodically inspect and clean out all of your employee personnel files. You should set a time to do this at least once a year, perhaps at the same time you are conducting employee performance reviews. When you go through the personnel files, you should be looking to take out any documents that are not necessary. Here are some questions to keep in mind when performing this task:
• Does the employee personnel file that you are holding contain every written evaluation of that employee, to the best of your knowledge?
• Does the employee personnel file that you are holding contain every written document that pertains to all raises, promotions and commendations that the employee has received?
• Does the employee personnel file that you are holding contain all written documentation that pertains to all warnings or other disciplinary action taken against that employee?
• If your company has policies in place about removing documents regarding warnings and discipline after a certain period of time, have all documents meeting these criteria been removed from the personnel file?
• If your company engages in “performance plans” or “probationary periods” for struggling employees, are all files updated to reflect each employee’s current status?
• If you have updated your employee handbook since an employee has started working for you, do you have a written and signed acknowledgement of receipt of the new handbook from the employee?
• Does the employee personnel file you are holding contain copies of current contracts or other agreements between you and the employee?

You should keep these questions in mind when going through your personnel files. Updating and cleaning out personnel files is much like keeping a computer running smoothly by periodically removing unnecessary files — it is a chore, but it must be done.

Other Items to Keep in Your Personnel Files

You should always remember that employee personnel files are very important to your company. As such, most, but not all, documents relating to employment should be kept in your employees’ personnel files, including:
• A job description for the position that the employee holds;
• The job application and resume of the employee;
• Your offer of employment to the employee;
• The employee’s W-4 Form (Employee’s Withholding Allowance Certificate);
• A receipt or signed acknowledgement of receiving your company’s employee handbook;
• All performance evaluations;
• Any forms relating to benefits that your employee enjoys;
• Emergency contact and next of kin forms;
• Any written complaints from customers or co-workers;
• Awards or certificates of excellent performance on the job;
• Any documents pertaining to completed training programs;
• Records and notes of any disciplinary proceedings taken against the employee;
• Any notes or warnings on bad attendance or tardiness to work;
• Any employment contracts, written agreements, or acknowledgments between the employee and the employer (including, but not limited to, noncompete agreements, agreements about company vehicles…etc); and
• Any documents that relate to an employee leaving the company (such as an exit interview or a document that lays out clearly the reasons why an employee was terminated). In addition, this can include documents relating to continuing benefits (such as COBRA), or agreements about future filings for unemployment benefits.

It is always a good practice to start an employee personnel file for each employee at the time you hire him or her.

What You Should Not Keep in Your Personnel Files

There are some items that you should not keep in your personnel files, either for reasons relating to potential lawsuits, or because of state or federal laws. Here are some items that you should be careful with:
Employee Medical Records — If you employ someone that has a disability, you are required by the Americans with Disabilities Act (ADA) to keep that employee’s medical records in a separate file and limit the access to that file. Even if you plan on keeping medical records for employees without disabilities, you may not be allowed to keep their medical records in their personnel files.
• I-9 Forms — You will get Form I-9s from the United States Citizen and Immigration Services (USCIS). These forms are used for all employees to verify that you have checked their eligibility to be employed within the United States. Instead, you should keep all of these forms within a separate folder for the USCIS. The government maintains the right to inspect these forms. If the government does come to inspect the Form I-9s, you do not want the government seeing the other documents contained within your personnel files.
• Unneeded Records — Although there is not much that stops you from keeping other documents within your personnel files, you should try to keep a limit on what gets put in them. You should always keep in mind that, depending on your state, your employees may have the right to inspect their own personnel file.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews

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Procedures To Reduce The Risk Of Litigation And Liability For Employment Terminations

Procedures To Reduce The Risk Of Litigation And Liability For Employment Terminations
Procedures To Reduce The Risk Of Litigation And Liability For Employment Terminations

If you run a business, you will inevitably have to face the situation of discharging an employee. While terminating an employee may never be pleasant, sometimes it’s necessary. Before you terminate an employee, you’ll want to be sure you are following the law to ensure you don’t face a lawsuit later.

The following guidelines can help companies limit their liability with regard to employment termination decisions:
1. Carefully train supervisors about personnel matters and their obligations under the applicable laws governing the employment relationship.
2. Insist on thorough and complete documentation of supervisory decisions involving all personnel matters.
3. Review employee handbooks, work rules, job applications, and other forms of employee communications to delete or limit statements regarding fair treatment, progressive discipline, and permanent employment.
4. Review all employment handbooks and personnel policies at least annually. Appropriate disclaimers and legal safeguards should be incorporated as advised by counsel.
5. Use “at-will” language in both employee handbooks and employment applications.
6. Consider defining the employment relationship to clarify the employer’s right to exercise its sole discretion in implementing such actions as demotions, transfers, and changes in assignments, duties, responsibilities, and rate of pay. By contrast, consider not using a probationary period. If you use a probationary period, define its purpose and state that completion of the period does not increase the employee’s rights in his or her job.
7. Review what recruiters and interviewers, including supervisors, say to prospective employees. Avoid references to “the good future that exists here if you work hard.” Use standardized language in all interviews — and make certain interviewers stick to the script. Avoid references in recruiting to job tenure, partnership track, career path, security, permanent, the future.
8. Ensure that employee reviews are conducted on time, and are accurate and consistent with company policy and practice. Establish a system to review evaluation forms so that the evaluation correlates with the particular job the employee performs. Review completed evaluations to ensure that individuals are not being overrated. Consider using narrative rather than checklist evaluations, and generalizing the standards for evaluation.
9. Review all employment policies to ascertain what obligations they impose (for example, an obligation to consider alternate job placement when an individual demonstrates inadequate performance). Delete those obligations that are not usually followed, and follow those policies that remain.
10. Establish a system to review employee terminations when they involve individuals in protected classes or with long service.
11. Standardize the procedures used for communicating and implementing terminations. Do not deviate from the established method. Carefully monitor all statements made by the employer in describing the termination. And, consider offering reemployment immediately when you determine that a substantial exposure to liability exists or a material error has been made.
12. Consider providing an internal appeal procedure or mandatory arbitration.
13. Any time an employee leaves, consider using exit interviews.
14. Never provide a letter of reference that contains inaccurate statements (either positive or negative) regarding a terminated employee.
15. Consider obtaining a release and/or settlement agreement from certain terminated employees.

Supervisor’s Checklist for Personnel Decisions

Supervisors should carefully review the following considerations in making decisions affecting personnel:
• Consider whether the decision is based solely on the employee’s individual performance, or whether general assumptions have been made about an ethnic minority, women, persons who are 40 years of age or older, persons with disabilities, and so on.
• Are there solid business-related reasons for the decision? Document the reasons for the decision, giving specific examples. Ensure that the decision and its implementation are consistent with company policies.
• Consult with the personnel department regarding any inconsistency.
• If there is a performance problem, document your efforts to help the employee improve. The employee’s failure to respond to counseling should also be documented.
• Be accurate and straightforward in evaluating employees, both in praising and criticizing when warranted. Rate employees as satisfactory only when you really believe their work is satisfactory. Consult with the personnel department when you believe a problem is developing, before it gets out of hand.
• Ensure that the bases for the decision are consistent with the employee’s work record and what other supervisors have told the employee.
• Check that actions taken against this employee are consistent with treatment accorded other employees.
• Be complete and accurate in telling the employee the reasons for the discharge.

Insurance Coverage

Whether an employer’s liability insurer is responsible for defending or indemnifying the company against claims of intentional wrongful discharge will depend on the terms of the policy, and the facts involved in the case. Employers should review their insurance policies carefully should such a claim arise, and seek professional guidance on this issue. Consideration should be given in every case to tendering a complaint to the insurance carrier.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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What Happens If You Don’t File Taxes For 10 Years Or More?

What Happens If You Don't File Taxes For 10 Years Or More?
What Happens If You Don’t File Taxes For 10 Years Or More?

It’s not hard to get behind on your taxes. Perhaps there was a death in the family or you suffered a serious illness. Whatever the reason, once you haven’t filed for several years, it can be tempting to continue letting it go. However, not filing taxes for 10 years or more exposes you to steep penalties and a potential prison term.

There’s No Time Limit on the Collection of Taxes

If you have old, unfiled tax returns, it may be tempting to believe that the IRS or state tax agency has forgotten about you. However, you may still be on the hook 10 or 20 years later. If you don’t file and owe taxes, the IRS has no time limit on collecting taxes, penalties and interest for each year you did not file.
It’s only after you file your taxes that the IRS has a 10-year time limit to collect monies owed. State tax agency have their own rule and many have more time to collect. For example, California has up to 20 years after you file to collect.

You Could be Charged with a Crime

The IRS recognizes several crimes related to evading the assessment and payment of taxes. Penalties can be as high as 5 years in prison and $250,000 in fines. However, the government has a time limit to file criminal charges against you. If the IRS wants to pursue tax evasion or related charges, it must do this within six years from the date the unfiled return was due. Non-filers who voluntarily file their missing returns are rarely charged.

Determine If the IRS Filed a Substitute Return

Just because you didn’t file your return doesn’t mean the IRS won’t file one for you. The IRS may file a Substitution for Return or SFR on your behalf. Don’t think of this as a complementary tax filing service. The IRS won’t give you any of the exemptions or deductions that rightfully belong to you.

Once an SFR is filed, you will be sent a notice to accept the tax liability as filed in this alternate return. If you don’t respond, the IRS will issue a notice of deficiency. At this point the tax is consider owed by you and the IRS can begin the collection process. To encourage payment, a levy can be placed on your wages or bank accounts. A federal tax lien may also be placed against your real property.

If a SFR was filed, you don’t have to accept the outcome. You can go back and refile those years and include any available deductions. Chances are you can decrease the tax owed, as well as the interest and penalties.

File Your Missing Returns

You may want to file your old returns before a demand is made. There’s no time limit for submitting a previously unfiled return. However, if you’d like to claim your refund, you have up to three years from the due date of the return. It may be a good idea to speak with an experienced tax attorney or CPA before filing old returns. But, here’s some benefits of getting missing tax returns filed:
• Protect you Social Security benefits: If you’re self-employed and don’t file, you won’t receive credits toward Social Security retirement or disability benefits.
• Avoid issues obtaining loans: Loan may be denied or delayed if you cannot prove income by providing tax returns or reportable income.
• Not having to worry about your unfiled taxes: Once your tax issue is resolved, it will free up your time for more enjoyable pursuits.

Negotiate Your Tax Bill

If you tax assessment is too high, you may be able to negotiate a better deal. Penalties may represent 15 to 20 percent of what you owe to the IRS. Getting these removed can make a real difference. File Form 843 to request an abatement of taxes, interest, penalties, fees, and additions to tax.

If your debt is more than $10,000, you might consider a Partial Payment Installment Agreement (PPIC) where the IRS agrees to accept less than the total you owe. The IRS will only agree to a PPIC if it’s clear that the monthly payments you can make will not cover your total taxes due for many years.

An offer in compromise (OIC) is an agreement between a taxpayer and the IRS that settles a taxpayer’s tax liabilities for less than the full amount owed. If you can fully pay your liability through an installment agreement or other means, won’t generally qualify for an OIC.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Performing An Employee Background Check

Performing An Employee Background Check
Performing An Employee Background Check

Employee background checks are a vital way for an employer to learn more about the applicant, but can also be a source of potential liability. The Internet has made it much easier to obtain both personal and professional information about job applicants, but it pays to be careful about where you look, which information you trust, and which questions you ask.

Make Your Employee Background Check Reasonable

Here are some things to keep in mind when performing an employee background check:
• Be reasonable: The best advice for an employer running a background check is to keep such an investigation reasonable. Running a credit report and checking up on references makes a lot of sense, but combing court records, interviewing neighbors and requiring physicals for all of your applicants may not make much sense and may get you in trouble.
• Make your investigation business-related: Part of being reasonable is ensuring that your background check is really business-related. If you are hiring a security guard, then digging heavily into a person’s criminal background may be extremely relevant and justified. If you are hiring a part-time janitor, you may not need to go to such lengths. In order to avoid being sued, make sure to tie what you’re asking for directly to the job at hand.
• Get the applicant’s consent: Another way to avoid liability in general is to get the applicant’s consent before accessing potentially sensitive information. Some things, like credit checks, expressly require you to get the applicant’s consent, but even if you might otherwise have access to sensitive information, it pays to be careful and get the applicant’s consent in writing. The easiest way to do this is to simply ask for the consent on a job application.

Records an Employer Can Likely Consider when Performing an Employee Background Check

Some of the records below, such as credit reports, drug tests and driving records, require the consent of the applicant, but are still considered routine records to be used when performing a background check. As discussed above, regardless of the record type, always make sure that such an inquiry is related to the job.
Here’s a list of the types of records routinely involved in an employee background check:
• Credit reports
• Drug tests
• Driving records
• Social Security number
• Court records
• Character references
• Property ownership records
• State licensing records
• Past employers
• Personal references
• Sex offender lists

Finally, if you decide not to hire someone based on his or her credit report, you must provide the applicant with a copy of the report and advise the applicant of his or her right to challenge it. Also be aware that several states have even stricter rules limiting the use of credit reports, so check your state’s laws before turning down an applicant based on their credit.

Records You May Not be Able to Consider when Performing an Employee Background Check

• Criminal records: Whether employers can access criminal records varies greatly between states, but in many states such records can only be used by certain employers such as public utilities, law enforcement, security guard firms, and child care facilities. Even if employers cannot access criminal records, whether employers can ask about past criminal activity also varies greatly between states, but some states allow employers to ask about a criminal past even if they won’t allow employers to access criminal records. This is probably a potential employer’s biggest area of liability and it is highly recommended that you consult a lawyer to find out the rules applicable in your particular state.
• Bankruptcies: Although bankruptcies are a matter of public record, employers generally cannot discriminate against applicants because they have filed for bankruptcy.
• Worker’s compensation: When a person files a worker’s compensation claim, the case becomes a public record. An employer may usually only use this information if the injury might interfere with the applicant’s ability to perform the work required by the job, however.
• Medical Records: Medical records are confidential and generally cannot be released without an applicant’s knowledge or authorization. Employers can require a physical examination for the job if it makes sense, however, in which case the employer will have access to those results.
• Military Records: Under the federal Privacy Act, military records are confidential and can only be released in very limited circumstances
• Educational Records: Generally, transcripts, recommendations, discipline records, and financial information are confidential and cannot be released without consent. If the applicant gives their consent and it makes sense for the job, however, transcripts can be, and often are, requested.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


Recent Posts

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Writing Effective Job Descriptions

Business Lawyers

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Ascent Law St. George Utah Office

Ascent Law Ogden Utah Office

Writing Effective Job Descriptions

Writing Effective Job Descriptions
Writing Effective Job Descriptions

A job description describes the major areas of an employee’s job or position. A good job description begins with a careful analysis of the important facts about the job — such as the individual tasks involved, the methods used to complete the tasks, the purpose and responsibilities of the job, the relationship of the job to other jobs, and the qualifications needed for the job.

It’s important to make a job description practical by keeping it dynamic, functional, current, and legal. A well-written, practical job description will help you avoid hearing a refusal to carry out a relevant assignment because “it isn’t in my job description,” while helping you hire the right people.

This article focuses on how to write an effective job description, whether it’s for a job listing or to help define an existing employee’s job duties and expectations.

Make Sure Your Job Description is Flexible

Realistically speaking, many jobs are subject to change, due either to personal growth, organizational development and/or the evolution of new technologies. Flexible job descriptions will encourage your employees to grow within their positions and learn how to make larger contributions to your company. For example: Is your office manager stuck “routinely ordering office supplies for the company and keeping the storage closet well stocked,” or is she/he “developing and implementing a system of ordering office supplies that promotes cost savings and efficiency within the organization?”

When writing a job description, keep in mind that the job description will serve as a major basis for outlining job training or conducting future job evaluations. And remember, job descriptions may change with time.

Main Components of a Job Description

The first component of any job description is the title. Job titles vary widely from one employer to the next, although certain job titles suggest a certain level within the company (such as “Vice President”) or require certain certifications.

The title is closely followed by the main objective or overall purpose statement. Generally, this is a summary designed to orient the reader to the general nature, level, purpose, and objective of the job. The summary should describe the broad function and scope of the position and be no longer than three to four sentences.

Every job description must also include a list of principal duties, continuing responsibilities, and accountability of the occupant of the position. The list should contain each and every essential job duty or responsibility that is critical to the successful performance of the job, beginning with the most important functional and relational responsibilities and continuing down in order of significance. Each duty or responsibility that comprises at least 5 percent of the incumbent’s time should be included in the list.

Another important element is a description of the relationships and roles the occupant of the position holds within the company, including any supervisory positions, subordinating roles, and other working relationships. For instance, it may state that you will be managing employees or that you will report to a certain individual.

Job Descriptions for Recruiting Purposes

If you are in the process of recruiting an employee, you need to clearly state the job specifications, standards, and requirements. These are generally the minimum qualifications needed to perform the essential functions of the job, such as education, experience, knowledge, and skills. Any critical skills and expertise needed for the job also should be included.

A receptionist — for example — might need to possess: (1.) a professional and courteous telephone manner; (2.) legible hand-writing if messages are to be taken; (3.) the ability to handle a multiple-lined phone system for a number of staff members; and (4.) the patience and endurance to sit behind a desk all day.

Other details that should be in a job description used for recruiting purposes include the following:
• Job Location: Where the work will be performed.
• Equipment to be used in the performance of the job: For example, does your company’s computers run in a Apple MacIntosh or PC Windows environment?
• Collective Bargaining Agreements: agreements and terms that relate to job functions, if applicable, such as when your company’s employees are members of a union.
• Non-Essential Functions: functions which are not essential to the position or any marginal tasks performed by the incumbent of the position.
• Salary Range: range of pay for the position. Keep each statement in the job description crisp and clear.
• Structure your sentences in classic verb/object and explanatory phrases: Since the occupant of the job is your sentences’ implied subject, it may be eliminated. For example, a sentence pertaining to the description of a receptionist position might read: “Greets office visitors and personnel in a friendly and sincere manner.” Omit any unnecessary articles such as “a”, “an”, “the” or other words for an easy to understand, to the point description.
• Use un-biased terminology: For example, use the “he/she” approach or construct sentences in such as way that gender pronouns are not required.
• Avoid using words which are subject to differing interpretations: Try not to use words such as “frequently,” “some,” “complex,” “occasional,” and “several.”

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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The Small Business Lawyer And Product Liability

The Small Business Lawyer And Product Liability
What is unlawful business in utah

Defective or dangerous products are the cause of thousands of injuries every year in the U.S. “Product liability law,” the legal rules concerning who is responsible for defective or dangerous products, is different from ordinary injury law, and this set of rules sometimes makes it easier for an injured person to recover damages.

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of a consumer. Responsibility for a product defect that causes injury lies with all sellers of the product who are in the distribution chain. Potentially liable parties include:
• The product manufacturer
• A manufacturer of component parts
• The wholesaler
• The retail store that sold the product to the consumer

When a small business owner opens his or her doors to the public, potential liability for a product liability claim also opens up. Following is an overview of product liability, including a look at personal injury cases arising from defective or dangerous products.

What Is a Product Liability Claim?

The law requires that a product meet the ordinary expectations of the consumer. When a product has an unexpected defect or danger, the product cannot be said to meet the ordinary expectations of the consumer. There is no federal product liability law. Typically, product liability claims are based on state laws, and brought under the theories of negligence, strict liability, or breach of warranty. In addition, a set of commercial statutes in each state, modeled on the Uniform Commercial Code, will contain warranty rules affecting product liability.

Responsible Parties

For product liability to arise, at some point the product must have been sold in the marketplace. The injured person does not have to be the purchaser of the product in order to recover. Any person who foreseeably could have been injured by a defective product can recover for his or her injuries, as long as the product was sold to someone.

Types of Product Defects

Under any theory of liability, a plaintiff in a product liability case must prove that the product that caused injury was defective, and that the defect made the product unreasonably dangerous. There are three types of defects that might cause injury and give rise to manufacturer or supplier liability: design defects, manufacturing defects, and marketing defects.

Design Defects

A design defect is some flaw in the intentional design of a product that makes it unreasonably dangerous. Thus, a design defect exists in a product from its inception. For example, a chair that is designed with only three legs might be considered defectively designed because it tips over too easily. Design defect claims often require a showing of negligence. However, strict liability may be imposed for an unreasonably dangerous design if the plaintiff can present evidence that there was a cost-effective alternative design that would have prevented the risk of injury. In some cases, if a product was so unreasonably dangerous that it never should have been manufactured, the availability of a safer design might not be required to hold the designer liable.

Manufacturing Defects

A product has a manufacturing defect when the product does not conform to the designer’s or manufacturer’s own specifications. Manufacturing defect cases are often the easiest to prove, because the manufacturer’s own design or marketing standards can be used to show that the product was defective. But proving how or why the flaw or defect occurred can be difficult, so the law applies two special doctrines in product liability cases to help plaintiffs recover even if they cannot prove a manufacturer was negligent.

Res Ipsa Loquitur

The first doctrine, known as “res ipsa loquitur,” shifts the burden of proof in some product liability cases to the defendant. It indicates that the defect at issue would not exist unless someone was negligent. If the doctrine is successfully invoked, the plaintiff is no longer required to prove how the defendant was negligent; rather, the defendant is required to prove that it was not negligent.

Strict Liability

The second rule that helps plaintiffs in product liability cases is that of strict liability. If strict liability applies, the plaintiff does not need to prove that a manufacturer was negligent, but only that the product was defective. By eliminating the issue of manufacturer fault, the concept of no-fault, or “strict” liability allows plaintiffs to recover where they otherwise might not.

Marketing Defects

Marketing defects include improper labeling of products, insufficient instructions, or the failure to warn consumers of a product’s hidden dangers. A negligent or intentional misrepresentation regarding a product may also give rise to a product liability claim.

Unavoidably Unsafe Products

By their nature, some products simply cannot be made safer without losing their usefulness. For example, an electric knife that is too dull to injure anyone would also be useless for its intended purpose. It is generally believed that, as to such products, users and consumers are the best equipped to minimize risk.

Thus, while a product might not be deemed unreasonably dangerous, manufacturers and suppliers of unavoidably unsafe products must give proper warnings of the dangers and risks of their products so that consumers can make informed decisions regarding whether to use them.

Common Defenses to Product Liability Claims

A defense often raised in product liability cases is that the plaintiff has not sufficiently identified the supplier of the product that allegedly caused the injury. A plaintiff must be able to connect the product with the party(ies) responsible for manufacturing or supplying it. There is an exception to this rule, known as the “market share liability” exception, which applies in cases involving defective medications. Where a plaintiff cannot identify which of the pharmaceutical companies that supply a particular drug supplied the drug he/she took, each manufacturer will be held liable according to its percentage of sales in the area where the injury occurred.

Another defense a manufacturer might raise is that the plaintiff substantially altered the product after it left the manufacturer’s control, and this alteration caused the plaintiff’s injury. A related defense is that the plaintiff misused the product in an unforeseeable way, and that his/her misuse of the product cause the injuries alleged.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Monitoring Employees

Monitoring Employees

Technology has made monitoring employees easier than ever now that almost every mode of communication has gone digital. As many as three out of four companies reported that they monitored their employees to some extent, with the most commonly monitored activities being internet use and email.

Employers understandably don’t want employees surfing inappropriate websites, trading stocks, or playing poker while on the clock. More important to many companies, however, is that employees aren’t engaging in corporate espionage, selling trade secrets, or using workplace computers to harass other coworkers.

As an employer, the law generally allows you to monitor your employees’ communications while on the job and within reason. The major exception to this is if the monitoring runs afoul of an employee’s right to privacy. Each form of monitoring has its own rules and exceptions, so it’s important to know how the law treats each type of monitoring.

Monitoring Internet Use

Monitoring general internet use is probably the least restricted form of monitoring. Employers are allowed almost without exception to keep track of internet sites that their employees visit. Employees generally have no right to privacy regarding their viewing history, and many companies install software that either severely limits what websites may be viewed or how much time employees can spend on non-approved sites.

Monitoring Emails

Emails are the modern form of letters and correspondence and accordingly have more protection based on precedent than something like general internet viewing habits. However, courts have generally sided with employers and allowed them to read the email of their employees unless the employer has indicated that emails will be private or confidential. This policy can be communicated to employees explicitly, by telling employees that emails are confidential, or indirectly, by giving employees unique passwords that only they know.

To be careful, as an employer you should try to always have an established reason for viewing employee emails, such as a policy justification or a record of an incident which prompted the monitoring. Courts have rarely denied an employer the right to read employee email if there was a justification in place before the employer read the employee’s email (such as reports of harassment).

Monitoring Phone Calls

Phone calls are the most protected form of employee communication and employers should be especially careful when monitoring phone calls. Almost all states allow an employer to monitor or record employee conversations with customers for quality assurance purposes. Although only a few states require that you announce that the call is being recorded, it is a good business practice to let customers know they are being recorded.

The major exception to monitoring rules for phone calls is when the employee makes a personal call. Although federal law allows employers to monitor calls without warning or announcement, once the employer realizes that it is a personal call, the employer must stop monitoring the call. The only caveat to this is that if the employee has explicitly been told not to make personal calls from the particular phone, then the employer may be allowed to continue monitoring the call.

Monitoring Voice Mail

Voice mail is a gray area of the law and it is likely that the rules in place for other forms of monitoring apply here. Employers are likely able to access an employee’s voice mail, provided that the employer hasn’t given employees the impression that their voice mail is private. The best practice is to have a good work-related justification established before monitoring an employee’s voice mail.

How to Keep Your Monitoring Legal

Employers generally have access to employee communications while on the job, but there are a few steps to always take before monitoring employee communications:
• Establish a Policy: Don’t let there be any confusion about whether a particular form of communication will be monitored or not. Create a clear policy that outlines what forms of communications are monitored, why they are monitored and under what circumstances they are monitored. To be extra careful, consider having employees sign a consent form acknowledging that they understand and agree that their workplace communications will be monitored.
• Have a Justification for Monitoring: Courts are far less likely to find you liable for violating an employee’s right to privacy if you had a good, work-related reason for monitoring communications. If you’ve had past experiences that prompted monitoring or have received complaints, these all qualify as perfectly good justifications for monitoring employee communications.
• Be Reasonable: Be smart about how and when you monitor employee communications. If you create a draconian atmosphere of surveillance or implement a system that seems excessive given the potential problems, a court is much more likely to find that you are violating employee privacy rights. Ensure that your monitoring system is proportional to any potential problems because overreaching is a good way to ensure a lawsuit from a disgruntled employee.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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Invention Licensing Verses Manufacturing

Invention Licensing Verses Manufacturing

In most situations, inventors can make money off of their inventions in two different ways: Either license the rights to make, use, and sell their inventions to other manufacturers or manufacture and sell their inventions themselves. There are vast differences between these two options, both in terms of how you will make your money, and in terms of the financing needed to get started. Whichever you choose will depend on your means, skill level, and what level of involvement you want with your invention.

Making Money on Your Invention: Two Choices

Choosing between licensing your invention to someone else and manufacturing and selling your invention on your own will depend much on your personality and what you like to do. Many inventors decide to license their inventions in order to make money because it does not require as much legwork or capital as does manufacturing an invention on one’s own. If you find that you have a passion for the world of business, then you may want to consider manufacturing and marketing your own invention.

It is not always just the personality of the inventor that will make the decision between licensing and manufacturing your invention, though. Sometimes the complexity of the invention will force the inventor’s hand.

Licensing Inventions

In its simplest form, a license is an agreement between you (the “licensor”) and another party (the “licensee”) allowing the licensee to make, use, and/or sell your invention. In exchange, the licensee often agrees to give the license-holder a license fee as well as royalty payments for every unit sold that uses the invention.

The biggest advantage of licensing is the lack of risk. Under a licensing agreement, the licensee will have to take on all expenses relating to marketing and all risks associated with the product itself. All the inventor has to do is to wait by his mailbox for the checks to arrive. Perhaps the biggest risk that inventors face when licensing is getting a license at all. According to at least one study, only 13 percent of all inventors that attempted to license their inventions were successful.

If you do decide to license your invention, you should first find the people would want to see inventions like yours, such as a convention involving your target industry. If your invention is physical in nature, you should try to get enough funding to build at least one working model (or prototype). But make sure you protect your invention while shopping it around, perhaps with a non-disclosure agreement.

Keep in mind that you have the option of licensing your invention to more than one party, as long as you don’t give exclusive rights to one party, which can increase your earning potential.

Assigning the Rights to Inventions

As an alternative to licensing your invention, you may decide to permanently assign the rights to your invention to another party in exchange for money. Unlike a license, an assignment is a permanent transfer of all rights you have to your invention. If you assign your invention, you become the “assignor,” while the person buying your invention becomes the “assignee.” You should think about assignment as analogous to selling your home — once you have sold it, you no longer have rights to it.

There are some circumstances in which a license will look like an assignment. For example, sometimes inventors grant indefinite, exclusive licenses. Under such a license, the licensee gets sole rights to the invention for an indefinite period of time. Understandably, this looks much like an assignment of rights; but an attorney can help you sort it out. Remember that once you assign your rights to your invention, you cannot (in most circumstances) get them back.

Entrepreneurial Inventor

For entrepreneurial inventors that have business skills in addition to their inventing skills, the risks and financial rewards associated with licensing their inventions don’t make the cut. Instead, these inventors will take the time and effort to form a company and produce and market their own inventions. However, these inventors will require much more capital than will the inventors that seek only to license or assign their inventions.

At least one study has found that close to half of the inventors that choose to make and market their own inventions turn out to be successful. Before you decide to market your own invention, though, you need to be aware of just how much time and effort it will take for you to succeed. If you feel that you do not have this drive, you may want to consider licensing your invention.

Perhaps that biggest argument for making and marketing your own invention is the higher financial rewards that are possible. However, starting a company to make and market your invention can be incredibly risky.

Different Finances for Different Choices

When it comes to the financial backing needed for licensing your invention versus marketing and selling your invention, the difference is staggering. You will need far fewer finances to license your invention than if you chose to start your own business.

If you choose to license or assign the right to your invention, you will generally need financing to:
• Create a prototype of your invention, or create presentation materials if your invention cannot be prototyped;
• Market your invention to potential licensees;
• Create molds and acquire tools to mass-produce;
• Mass-produce your invention;
• Distribute your product;
• Collect money from your buyers; and
• Enforce your patent rights.

In addition to these expenses, you may also choose to form a corporation or take on business partners in order to get the production of your invention off the ground.

Before Making the Decision, Analyze Your Personality

Many inventors are tempted by the riches that they see just over the horizon if they can just make, market, and sell their own inventions. But you really need to be sure that you have a strong entrepreneurial drive. To help you figure out whether this path is right for you, take the time to answer these questions:
• Are you a great salesperson?
• Can you manage people well?
• Can you transfer your inventiveness to the business world?
• Are you willing to take risks?

If you feel that you can answer all of the questions in the affirmative, then maybe taking your invention to market by yourself could make you a lot more money that you could get through licensing.

Patent Troll: A Last Option

There has been an ever increasing trend for people with patents to not take either option. These people do not want to license their inventions, nor do they want to enter the market. In the legal world, these people are called “non-practicing inventors” or, pejoratively, “patent trolls.” Much like the trolls that lurk under bridges in fairy tales, these patent holders wait for the right moment to jump out and assert their patent rights against those that they think have infringed.

These patent trolls sometimes make a lot of money in patent infringement lawsuits. However, the chances are very good that if you hold onto your patent without licensing it or entering the marketplace, the technology will pass you by well before you ever have the opportunity to bring a patent infringement lawsuit.

Free Initial Consultation with Lawyer

It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States

Telephone: (801) 676-5506
Ascent Law LLC

4.9 stars – based on 67 reviews


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