Insights On: Law

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STEPHANIE DILLON,

PHR, SHRM-CP

HR Advisor, Catapult

Business owners and executives must decide when to get legal advice or other counsel. In this section, three industry leaders give recommendations on specific HR, legal and PR issues and when to seek assistance.

RUSSELL NUGENT Attorney at Law, The Humphries Law Firm, P.C.

WOODY WHITE Attorney, Woody White Law PLLC

MOST FREQUENTLY ASKED HUMAN RESOURCE QUESTIONS

STEPHANIE DILLON, PHR, SHRM-CP HR Advisor, Catapult Stephanie Dillon is a Catapult HR Advisor. Stephanie has partnered with businesses to provide subject matter expertise on Employee Relations and HR Compliance topics, including, but not limited to: EEO/ Discrimination, Wage & Hour, FMLA, ADA, OSHA, Workers’ Compensation, NLRA, FCRA, Immigration, and Unemployment Benefits. She coaches business leaders on Employee Relations, Performance Management, Development, Organizational Effectiveness, and Employee Engagement. She also conducts HR analysis and handbook reviews, as well as providing public speaking on various HR topics.

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s an employer’s association, one of Catapult’s most used Member services is our HR Advice Line. While most calls are unique and require special attention from our experts, often the same or similar situations are experienced by numerous organizations. Here are a few frequently asked questions from Member companies to keep on-hand.

Q: WHAT IS “EMPLOYMENT AT-WILL”?

Without a contract of employment, employers have the right to terminate an employee for any reason in accordance with all local, state and federal A:

laws. Likewise, employees have the right to resign at any time, for any reason. To protect against implied contracts that could negate at-will, employers should have well-worded policies.

Eliminate references to permanent or steady employees and “just cause” terminations. Because of all the varying employment laws and regulations, employment at-will should never be a basis for termination!

Q: MUST I PAY OUT PTO WHEN AN EMPLOYEE LEAVES?

In NC and SC, you must pay out accrued, but unused, paid time off when an employee leaves your company, regardless of the reason, unless you have a clearly communicated written forfeiture policy. Nothing in the policy can be left up for interpretation. Here’s some suggested language: Any accrued, but unused, paid time off will be paid to you upon resignation of employment, provided you offer to work a two-week notice, as outlined in our Resignation Policy.

Failure to provide a notice will result in the forfeiture of accrued, unused paid time off. This paid time off payout will be less any money owed the company, as authorized by law. If you involuntarily separate from the company for any reason, other than a reduction in force, you will not be paid your accrued, unused paid time off.

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one or more employees with the same level of responsibility regardless of where it occurred. This is also true regardless of who else is involved, including people who don’t work for you.

Q: IS THERE A FEDERAL OR NC/SC LAW THAT REQUIRES EMPLOYERS TO PROVIDE A BREAK OR MEAL PERIOD TO EMPLOYEES?

No, but we recommend one to be considered an employer of choice and to better retain your talent. Plus, depending on the nature of a person’s job, you’ll want to consider the OSHA general duty clause for safety practices.

If you provide breaks, the Fair Labor Standards Act provides pay guidelines.

The past year has resulted in many significant changes to employment law.

Ensure you’re ahead of the curve and join us for the 2022 Employment and Labor Law Update! During the May 19 and 20 event, attorneys will deep-dive into the latest need-to-know topics, including what current legal land mines to avoid and compliance best practices.

Year round, Catapult Members also have access to employment law attorneys who advise you in making sound business decisions. As a Catapult Member, a wealth of knowledge is just a phone call away!

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Q: IS MY COMPANY’S LIABILITY FOR HARASSMENT IN THE WORKPLACE LIMITED TO SITUATIONS THAT OCCUR AT WORK?

No. The company is obligated to treat harassment situations involving A:

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WHAT IS IN A NAME?

RUSSELL NUGENT Attorney at Law, The Humphries Law Firm, P.C. Russell is a native of Wilmington, North Carolina and has been practicing law in Eastern North Carolina since 2004. Russell helps individuals and businesses protect their innovations, creations and business information using strategies based in patent, trademark, copyright and trade secret law.

His work includes both strategic planning and dispute resolution. He assists clients who want to buy and sell businesses, register trademarks and patents, and license or transfer their intellectual property assets.

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lot of companies use a person’s name as part of their company name and advertising with the assumption that if it is their name, then they should be able to use it to promote their goods and services.

However, protecting and registering a personal name as a trademark is not always that simple.

First, it is important to distinguish between a personal name and a surname or last name. U.S. Trademark law prohibits registering a trademark that is “primarily merely a surname,” i.e. a name that is generally thought to function primarily as a person’s last name such as Smith. In trademark law, a personal name is a person’s first and last name.

Courts have generally recognized

a right for a person to use their own name as part of their company name and brand identity. On the other hand, personal names can be difficult to register as trademarks because they are treated as descriptive trademarks.

Descriptive trademarks describe some ingredient, quality or characteristic of the product or service being sold under the trademark. For example, a consumer seeing the name Joe Smith’s Hardware Store may well conclude that they have encountered a hardware store that is run by someone named Joe Smith. If that is the case, the name is not functioning as a trademark.

As a result, personal names are not considered to be inherently distinctive and are only protectable when the trademark owner can demonstrate “secondary meaning” which is to say that consumers have to understand that the name refers to a particular service or product. That requires the trademark to be in use long enough that consumers will perceive the name as a brand name instead of a description of the business’s products or services.

There are three basic ways to demonstrate acquired distinctiveness.

First, the Applicant can demonstrate they own one or more prior registrations for the same trademark in connection with similar goods and services. Second, they can file an affidavit indicating the trademark has become distinctive of the Applicant’s goods or services through “substantially exclusive and continuous use” of that trademark in commerce for a period of five years. Third, the Applicant can provide other evidence that consumers have come to recognize their name as a source identifier

including the following:

1. Advertising and promotional materials showing the trademark used as a brand identifier; 2. Financial data showing extensive advertising promoting the trademark; 3. Statements from consumers and dealers indicating their recognition of the trademark as a brand; 4. Survey evidence from consumers showing their recognition of the trademark; and 5. Any other evidence that shows consumers recognize the trademark as a trademark for the goods which it is used.

If a trademark owner wants to prevent others from registering a similar name for a similar service before their trademark has acquired distinctiveness, then they can register them on the Supplemental Register. While doing so does not carry with it the same rights as a registration on the principal register, it does (1) prevent the USPTO from allowing someone to register a similar name for a similar product or service and (2) allows the trademark owner to use the ® designation.

While a business owner generally has a right to use their personal name in their advertising, protecting the name can require some planning and strategizing.

HumphriesFirm.Law 910.332.0721

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BAD THINGS HAPPEN. GOOD RESULTS TAKE A SKILLED & EXPERIENCED ATTORNEY WHAT SHOULD INDIVIDUALS AND BUSINESSES DO WITHIN 24 HOURS WHEN AN UNEXPECTED LEGAL ISSUE ARISES?

Before taking a step in any direction, you must first determine what it is that is around you – what are the legal issues involved? Where is the cliff or the pitfall ahead, and how can it be avoided? Who can I trust to navigate this situation? No matter how fearful or intimidated one may be, the best decision, at the earliest stages of any crisis or legal issue, is to engage an experienced professional who can see clearly through the smoke and give good advice about a path forward.

HOW DOES YOUR EXPERIENCE AS A PUBLIC OFFICIAL HELP YOUR CLIENTS DEAL WITH DIFFICULT SITUATIONS?

Over my 8 years in public office, I saw the inner workings of government at every level – and learned firsthand how a crisis is managed, how decisions are made, and how to achieve great outcomes. Finding the right path forward does not happen by accident.

It is the result of good communication, an innate ability to obtain and sift through needed information, and then knowing how best to communicate your desired outcome. These important skills are necessary, and you want an experienced, proven leader on your side when facing a crisis.

IN WHAT WAYS DOES YOUR FIRM WORK WITH COMPANIES AND BUSINESS ATTORNEYS?

In my 26 year career, I have helped dozens of other attorneys and business professionals with problems that have

grown too large for them to solve alone. Can litigation or prosecution be avoided? If not, what will that process look like, and how can it be managed? Not every business or legal practitioner is equipped for a fight. But if you find yourself in one, winning is always the preferred outcome. Find someone that can help you win the fight.

WHAT IS PUBLIC RELATIONS CRISIS MANAGEMENT AND WHEN SHOULD YOU OR YOUR BUSINESS CONSIDER IT?

If you are asking yourself if you may need public relations assistance, then the answer is yes — at least for a consultation. It could be for a personal issue for you or a family member, an employee gone rogue or maybe a call from law enforcement.

These are all potential PR crisis situations that need plans in place for containment and management.

Often individuals, businesses and government bodies are halfway through a public relations crisis before they start to address it. Proactively taking steps at the first sign of a potential crisis gives you the chance to manage — or hopefully avoid — a significant issue. This often means taking action in how you handle employee wrongdoing or selfreporting an issue to the proper authorities or regulators.

These situations can escalate quickly so an early assessment and a containment plan can make all the difference. Pick up the phone so you can get advice when it matters most and you give yourself the best chance for a win-win resolution.

WOODY WHITE Attorney, Woody White Law PLLC Woody White has over 28 years of experience as an attorney. He’s a native and longtime resident of southeastern North Carolina, serving clients in a variety of cases and our community as a public official.

A board-certified specialist in criminal law by the North Carolina State Bar in both federal and state law, Woody has been recognized as a top attorney by numerous groups, including Business North Carolina’s Legal Elite.

Woody White Law Firm can help if you need skilled, experienced advocacy in a criminal case, serious injury law, or in the event you are facing a personal or professional crisis.

910.338.4900 WoodyWhiteLaw.com