Take 5: Views You Can Use – March 2010

This March 2010 issue of "Take 5" was written by James P. Flynn, a Member of the Firm in EBG's Newark, New Jersey office. His practice focuses on intellectual property and employment litigation and counseling.

1. "Audit" Be Done? Your Company's IP Assets  
As the traditional April 15th tax filing deadline approaches, some may forget that an "audit" can describe more than an unpleasant experience with the IRS. Many corporate managers still overlook the reality that an intellectual property (IP) asset can be as valuable to a business as a tangible or real property asset. In addition to allowing your company to better understand the true value of its business and the steps it should take to document and protect those assets, an IP audit can help determine the best deductions, credits and other tax incentives that your company can take concerning IP assets and expenses and how to structure IP transactions in the most favorable way. So, this April, if the question of an IP audit comes up, the answer is "yes, it ought to be done."
2. Blossoming Concerns: Dealing with Social Media
Spring is a time when your company should consider how best to deal with the blossoming of social media as an economic and workplace issue. From both an employment perspective  and an intellectual property/business information perspective, it is vital that your company decides what role social media will and should play in its business. With the financial services industry recently issuing social media guidelines, the FDA recently holding hearings concerning how the use of social media will be regulated in the pharmaceutical/medical device area and many employers trying to use these platforms while protecting confidential information and employee privacy, companies have to control how their employees and brands will be seen in the "new media" world of Twitter®, Facebook®, MySpace® and the like.
3. Covering Your Bases: Understanding Non-compete/Work for Hire/Confidentiality/Invention Assignment Agreements
People sometimes forget that these four concepts can be included in one agreement, but they are not synonymous. It is important to understand that a state that may not enforce a non-compete may, nevertheless, enforce a confidentiality agreement, and an invention assignment agreement may not necessarily accord a company copyright ownership of a work of authorship created by an independent contractor. Making sure that your company has all four of these bases in its agreements as it enters that spring-training time of year is a good way to stay ahead of the game, and to make sure nothing slips through the infield.
4. Spring Cleaning: Reviewing Job Descriptions
Employees evolve, and jobs change, but somehow written job descriptions remain static. Written job descriptions should be checked annually to make sure that they correspond to what is actually being done and who is actually doing it. The descriptions may need to be changed to reflect what your company is doing or wants to do with each position. Otherwise, problems can arise when the time comes to make choices during downsizings, respond to requests for accommodations or deal with evaluation and performance issues.
5.  Fall Back — Spring Ahead: Employees' Access to Technology Can Complicate Time Keeping
Desktop computers, BlackBerry devices, Smart Phones, laptops and remote access are wonders of the modern world, and they are supposed to make life easier for employers and employees alike. But your company must be careful when allowing hourly, non-exempt or unionized employees to use or check email, or do work, outside of some traditionally defined, set work hours. Otherwise, wage and hour problems and other record-keeping issues can arise, and employees can be considered "on the clock" and entitled to compensation for their "work" from remote locations or by using such technology.