Austin TX Business Law Blog

Should my business include non-compete provisions in its employment agreement?

Many businesses rely on non-compete provisions in employment agreements to prevent job changing employees from taking proprietary information to competitors. These provisions allow trade secrets and other sensitive information to be shared with insiders while minimizing the risk that the information will be misappropriated.  In light of a recent report by the White House, however, the use and effects of non-competes are being questioned.

Some employment law observers argue that these provisions unfairly restrict employees' mobility and their ability to advance in their field. Moreover, state and federal regulators are becoming increasingly concerned that these provisions are being used inappropriately for low wage workers who do not have access to sensitive information.

Why is intellectual property important to my career?

All aspects of intellectual property (IP), including patents, copyrights, trademarks, and trade secrets  have become central to moving ahead in nearly all professions. While in the past intellectual property was normally the purview of only research and development teams, inventors, and lawyers specializing in the field, today IP is often the focal point of business, and even science, the arts, and other professions. This is because in a world moving forward at exponentially increasing speed, new ideas and innovations, rather than labor, raw materials or capital investment, are the driving economic force.

Reasons IP Is Crucial

There are several reasons you should consider IP as central to your business.

What is the state of the medical marijuana industry in Texas?

For some time it has been known that marijuana has many medicinal uses. Over the past couple of years there has been huge support for legalizing marijuana for medical use. Legislators finally listened and many states have passed laws that make it legal to use certain forms of the drug in these instances. So what are the business implications of legalizing pot? We can get a good idea by examining the happenings in our Southern most state.

One state that has recently passed a

Can the government make you keep your invention a secret without paying you?

When presented with a matter related to patents,it is always advisable to consult with an experienced patent attorney to clarify issues and pursue options. The world of patents can be a strange one, especially if you trespass into the realm of military inventions. This became very clear to Jim Geer when he filed a patent application in 2000 for an innovative technique for tracking stealth aircraft.

Start-ups based in Austin, Texas have faced some headwinds in the past year, with reports showing a decline in new venture capital investment. In the first quarter of 2016, Austin start-ups suffered a 49% decline in investment. Experts say venture capitalists lost enthusiasm because of economic unease and high valuations on untested start-ups.

But there has been at least one bright spot: the food and beverage industry. Start-ups offering consumer packaged goods ranging from healthy snacks to gourmet cider have attracted new investment interest even as others have suffered setbacks.

What is the Defend Trade Secrets Act?

Now that Congress has passed the Defend Trade Secrets Act (DTSA), it will almost certainly be signed into law. This new legislation is innovative in that it will allow businesses to file claims under federal law against those who misappropriate their confidential information. This will be beneficial to U.S. companies in several ways.

What basic mistakes should entrepreneurs avoid when seeking investors?

A recent case decided in a Dallas, Texas courtroom shows that YouTube videos can be big business — and that traditional legal rules still apply to an area of the web that may seem like a free-for-all. The losing parties' response to the case also suggests that conduct that is commonplace online may not play well in court.

Avoid making unrealistic contractual commitments

The litigation centered on a partnership between two outside investors, David T. Moss and Brandon Keating, and YouTube channel owner/operators Brian Martin and Marko Princip, who were seeking funding for their videogaming channel. The outside investors signed a contract agreeing to put up $1500 in exchange for 30% ownership and 30% of the profits of the partnership for each of them.

Does the song "We Shall Overcome" now belong to the world?

Recently, the copyright of "We Shall Overcome," the theme song of the civil rights movement and one of the most emotionally powerful songs of more than one generation, has been called into question. A lawsuit filed by the nonprofit group known as the We Shall Overcome Foundation is seeking a judgment claiming that the song in not under copyright and belongs in the public domain. The suit, filed on behalf of a group that works with orphans and the poor, was filed at Federal District Court in Manhattan and seeks class-action status.

What is the status of The Defend Trade Secrets Act?

American companies have been faced with a wave of infiltration by domestic and foreign industrial spies who steal valuable trade secrets and leak them to competitors. Now lawmakers on Capitol Hill are taking steps to enhance the protection of trade secrets. The Senate Judiciary Committee recently voted in favor of The Defend Trade Secrets Act (DTSA). The proposed law is designed to fight trade-secret theft by creating a harmonized, uniform, federal standard to protect

Why are businesses owned by women and minorities trailing in earnings and in size?

Women and minorities may have come a long way as business owners, but it is clear that they still have a long way to go. According to the Pew Research Center's analysis of Census data, while minority women are the fastest-growing group of entrepreneurs in the nation, the businesses they own bring in far less revenue than firms with non-minority or male owners. Minority owners don't fare much better. The land of opportunity still seems to be on unevenly weighted in favor of white males.

The Statistics

When the research was completed in 2012, women owned 36.2 percent of U.S. businesses, but earned only 11.3 percent of the nation's business income. Part of this may be attributed to the types of businesses women go into (or are permitted to enter), but the discrepancy in revenue continues even when the focus is on female-dominated industries, such as healthcare and social assistance. As evidence, in 2012, women owned 64.5 percent of the two industries mentioned, but still received only 19.9 percent of those industries' total revenue of $703.5 billion, or approximately $140 billion.

The category of minority-owned businesses is defined as companies owned by anyone who is not white. This includes businesses owned by blacks, Asians, and Hispanics (who may be of any race). Such businesses, at the time of the study, made up 28.6 percent of businesses in the country. Nonetheless, these firms made up only 10.4 percent of the nation's revenue. Perhaps proving that the playing field is uneven, companies owned by women and minorities are centered on particular industries. In 2012, when the study took place, almost 20 percent of healthcare and social assistance firms were owned by blacks, while almost 19 percent of accommodation and food services were owned by Asians.

Differences in Business Size

For reasons not fully explained, the businesses owned by females and minorities tend to be smaller than those owned by white males. This is demonstrated by the fact that, in companies with employees, those owned by women averaged 8.5 employees in 2012 as opposed to the average of 13.5 employees in companies owned by men. Firms owned by minorities fared almost the same, with an average of 8.4 employees compared to an average of 12.6 employees in non-minority-owned companies.

Lack of Investors behind Size Differential

According to a fact sheet distributed by the White House, only 3 percent of venture capital backed women's start-up companies and only 1 percent invested in companies owned by African-Americans.  The Department of Commerce also reports that women are more likely to start businesses without outside investors and both women and minority owners create startups with less capital than their white male counterparts. Oddly, these discrepancies continue even though the statistics show that investors in diverse companies see greater returns on their investments than those who businesses owned by white men.

If you are contemplating starting a business, or have already started one, whether you are a woman,  member of a minority, or a white male, you would be well-advised to consult with an experienced and talented business attorney.

According to the Small Business Administration, what topics should employee handbooks cover?

While it is not legally required that every small business have an employee handbook, it is highly recommended for companies with more than a few employees. Employee handbooks work to standardize expectations for both employers and employees, and offer the company legal protection. Since employee handbooks set forth company policies clearly in black and white, they can help to keep friction and disputes to a minimum.

What Your Employee Handbook Should Cover

So that everyone understands the rules of the road from the first day of employment, employee handbooks typically cover standards that must be met by both employees and employers, including:

• Non-disclosure agreements (NDAs) and statements concerning conflict of interest
• Anti-discrimination policies: compliance with equal opportunity laws, including the Americans with Disabilities Act; information about discrimination and harassment
• Compensation information: wages, overtime, performance reviews, raises, time-keeping records, breaks, bonuses and workers' compensation
• Employee Benefits: including health insurance, retirement plans, wellness programs
• Work schedules: work hours, attendance, punctuality, flexible hours and telecommuting
• Leave Policies: vacation, sick leave, holiday, bereavement, family medical leave, jury duty, military leave, leave for voting and court cases
• Conduct standards: code of dress, legal obligations, ethical behavior (avoiding harassment), privacy rules, particularly in activities under government regulation

In addition, employee handbooks should provide employees with an overview of the business and its general policies, including:

• Hiring practices:  job postings and employment eligibility
• Referrals, probationary periods, transfers, relocations, union information
• Resignation and termination procedures

As the owner of the company, you are responsible for creating a safe and secure workplace for your employees, meaning the premises should comply with Occupational Safety and Health Administration (OSHA) laws. Your employee handbook, therefore, should state clearly that all accidents, injuries, safety hazards and safety suggestions should be promptly reported to management.

In addition, the employee handbook should make abundantly clear that employees also have a responsibility to maintain a safe and secure work environment -- keeping pathways unobstructed, turning off appliances when not in use, and being committed to securing electronic information on their computers.

If you are starting up a new business or taking over an established one, you should consult with a firm of skilled and experienced business attorneys to make sure that you proceed in a legal, ethical, and efficient manner.