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Entries in records retention (2)

Monday
Jan122015

Bay Area Blues: San Francisco's Employers/Franchisees Face Retail Workers Bill of Rights

 

by Bryan H. Clements

Doing business in San Francisco can be difficult, to say the least. At $10.74/hour, the city already had the highest minimum wage in the country at the end of 2014. On January 1, 2015, San Francisco employers began shelling out $11.05/hour; on May 1, 2015, they will begin paying $12.25/hour; and on January 1, 2018, they will pay $15/hour (a 39.6 percent increase over three years).

Franchise Employers CaliforniaNevertheless, franchisors, franchisees and other multi-unit business owners doing business in San Francisco, referred to as “Formula Retail Establishments,” will soon see their resolve to continue doing business in the city further tested.

On November 25, 2014, San Francisco's Board of Supervisors (BOS) unanimously approved two ordinances, collectively referred to as the “Retail Workers Bill of Rights.”  These ordinances are the first of their kind in the United States and are being added to the Police Code.

Formula Retail Establishments Defined

The Retail Workers Bill of Rights applies to employers with 20 or more employees and with 20 or more locations worldwide – if one or more of their locations operates in San Francisco. Formula retailers include companies with at least two of the following: 

  • A Standard Array of Merchandise

  • Standard Facades or Interior Designs

  • Standard Signage

  • Use of  Common Trademarks/Servicemarks

  • Standard Uniforms 

San Francisco’s definition of formula retail businesses includes retail trade businesses, movie theatres, hotel chains, food service businesses (including restaurants and bars) and banks. It also includes businesses providing professional, financial (accountancies, insurers, etc.), repair (plumbing, closet installation, oil change, etc.) and cleaning and janitorial services.

Franchised businesses will typically fall within the definition of a formula retail business, so franchisees can expect to be disproportionately impacted.

Groups advocating for franchise companies have attacked the ordinances claiming they unfairly target franchised businesses. For example, the day following the BOS’s vote, Robert Cresanti, Executive Vice President, Government Relations & Public Policy of the International Franchise Association, the nation’s most powerful lobbying group for franchisors, penned a sharp letter to the Mayor of San Francisco urging him to veto the ordinances.

Despite these protests however, the Mayor neither signed nor vetoed the ordinances, and they became law.

Employer Compliance with SF's Retail Bill of Rights

California Business Lawyer

The Retail Workers Bill of Rights will affect employers in many ways. To comply, formula retailers must: 

  1. Additional Hours: Offer additional hours to part-time employees before hiring new employees or engaging temporary workers.

  2. 90 for 90: If the company is sold, successor employers must retain all current employees who have been with the company for at least 90 days, for a period of 90 days.

  3. Predictability Pay: Excepting certain circumstances, employers must provide employees with two weeks’ advance notice of their schedule. Employers providing less than seven days' notice must pay one hour of extra pay per changed shift; and two hours of extra pay for less than 24 hours' notice, per changed shift.

  4. On-Call Predictability:  Employers must give employees at least 24 hours' notice before cancelling or rescheduling an on-call shift.

  5. No Part-Time Prejudice: Part-time employees will start at the same hourly wage as full time employees, and be provided with the same opportunities to advance.

  6. Retain Records: Employers must retain written records pertaining to written offers of employment, offers of additional hours, employees retained during a change of control, and work schedules for three years. Failure to preserve records will be deemed to be a failure to comply. 

Disclaimer:

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Tuesday
Jan062015

Show Me the License: Is Your Company Ready?

 

Business Litigation Attorney EncinoBusiness Litigation Attorney

 

by David Gurnick
818.907.3285

 

Good record-keeping is a burden. But doing so is important. Here is an example of why it is important to keep good records of all software licenses.

Business Software Licensing LawThe Business Software Alliance is a consortium of large software and tech companies like Adobe, Intel and Microsoft. One of BSA’s missions is to stop software piracy.

BSA advertises, asking the public to report piracy. BSA’s ads encourage workers to report their employers for potential unauthorized software, via a toll free number or webform. BSA offers cash rewards. Their website notes that in a recent year, they investigated over 15,000 piracy reports. Many of the reports are from disgruntled ex-employees, seeking revenge for real or perceived grievances.

BSA contacts businesses suspected of using unauthorized software and often demands that the company do a self-audit and inform BSA of all unlicensed software in use. BSA then negotiates settlements, typically a multiple of the license fees that would have been charged. BSA claims the multiplier is essential to deter piracy. The multiplier also generates more revenue for BSA.

Company self-audits might identify typical uses of software programs, for example Adobe Photoshop, Microsoft Office, or other programs. Sometimes a company will respond pointing out that the software was purchased properly and is being used legitimately. One of BSA’s possible responses: “Show us the licenses.”   

Software Licenses: What Does the Law Say?

What if the software was legitimately purchased many years ago? Who keeps copies of old licenses and purchase receipts? 

Most record retention policies allow destruction of documents after four, five or seven years. Many companies continue to use software for a decade or more. Even a retention policy of 10 years would not produce software licenses or purchase receipts for software purchased that long ago. 

Having no proof of purchase and no copies of licenses could potentially result in financial penalties for many companies.  Because, under the law, a software maker like Adobe, Microsoft or BSA as their representative, can prove infringement by showing just two facts: 

  1. That it owns the copyright for the software (easy for Adobe to prove with regard to Photoshop, and for Microsoft to prove with regard to Windows, Word or Excel); 

  2. The company used the software (also easy to prove, especially when the defendant acknowledges using these programs). 

Under the law, the company’s response – that the software was legitimately purchased, and is used under a proper license – is a legal defense.

The law says it is the company’s burden to prove it has a license from the copyright owner. The proof is a copy of the license or proof of purchase. A company that cannot produce a license or proof of purchase may be found liable and labeled a “pirate.”

For a company that cannot readily find such records, there might be secondary methods to prove software was licensed. 

A company might ask the supplier of the software if it still has records of the original sale. The software maker might have records showing the original software purchase was registered by a warranty registration. A software consultant or technology officer may have other records proving the purchase, based on requests for assistance or consultation with the maker over the years.  Old billing and payment records might be unearthed, to see if they reflect the original purchase. But often such records are difficult, or impossible to find.

For most companies, the message is clear: Keep the purchase records and licenses for all software, permanently.

Because copyright ownership can last over a hundred years, and it is always the user’s burden to prove proper licensing, these records may be essential, even many years after the software was first purchased. It is easy to take a photo or screen shot and save these in electronic files. Then, if you are contacted by BSA or someone else demanding that you prove your software is authorized, you will be readily able to do so.

With BSA asking potentially disgruntled employees to report, this is a relatively simple step for proving you're licensed to use.

David Gurnick is a business litigation, franchising and licensing attorney. Contact him directly for more information at 818.907.3285 or email: dgurnick@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

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