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Ask a Lawyer // October 2016 // Contract Language and Other Legal Musings

Written by
Matthew S. Johnston
Published
October 5, 2016
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Ask a Lawyer is a monthly informative column brought to you by AIGA Blue Ridge chapter member, Matthew S. Johnston, Esq. Attorney. Sign-up for our monthly e-newsletter to receive the latest column delivered directly to your inbox.

Have a question or topic that you’d like Matt to tackle in an upcoming Ask a Lawyer? Shoot us an email at info@aigablueridge.org.


This month I have lots going on, both personally and professionally, so I don’t have an in depth column, but a couple of ideas that have been rattling around in my head that I thought should be shared with everyone that have legal relevance.

Getting a Little Meta on Contracts. How many designers and design clients have a website or company brochure that talks about putting the customer first, about working to make the customer happy or similar notions? How many times do business expound on a “flexible” approach to dealing with clients? Then you see the customer contract and it reads like a torture device, complete with provisions that penalize the customer for the slightest nfraction and overly favors the company.

What kind of message does that send? How to account for the discrepancy in the language of your marketing and the language of your contract? How can you profess to be customer friendly with one document and customer phobic with the other document?

Here is a notion: think of your contract as a marketing document as much as it is a legal document. Be fair and reasonable to your customers. Make sure there is flexibility built into the contract so that you and the customer can accommodate changing circumstances because a business relationship is, at its core, a human relationship. Make the contract understandable to the customer. Make the contract reflect the values your company considers important. A contract that is understandable and as fair to the customer as it is to your company will get to a signature faster and may close more business for you.

New Maryland Law on Equal Pay. On October 1, 2016 the Maryland Equal Pay law will have some additional provisions that will take effect. First, the Equal Pay Act now makes it illegal to discriminate with regard to pay for employees on the basis of gender identity. This is a step past the usual discrimination on the basis of sex (which essentially recognized only male-female genders). This step is in keeping with the general trend of laws regarding discrimination. Here is a link to a brief FAQ prepared by the Maryland Department of Labor, Licensing, and Regulation: http://www.dllr.state.md.us/labor/wages/equalpay.shtml.

The Equal Pay Act also now includes a provision that affects employers in a different way. A new section has been added to the Maryland Code Labor & Employment which relates to the discussion of pay by employees. Generally, the National Labor Relations Act forbids employers from prohibiting workers from discussion pay and working conditions (yes is applies to nonunion employers). In theory, at least, the NLRA applies only to employers engaged in interstate commerce. The new Maryland law extends a similar protection to Maryland workers, but with a wrinkle. Employers may be asked by employees to give a rationale for the pay decisions affecting that employee. Employers are obligated to give a rationale (and not retaliate because of the request). The risk to employers with this law is that if an employee is upset about the pay rationale, and has spoken to other employees about pay conditions, you can expect complaints.

The quick takeaway, don’t discriminate on pay decisions and have a rationale, explainable pay structure for employees and be prepared to share that pay structure with employees along with an explanation of why certain employees are paid what they are paid.

Winter is Coming…for Overtime Pay. No, Game of Thrones is not back, but December 1 is rapidly approaching. December 1 is the date in which the new Department of Labor rules regarding overtime for white collar workers will take effect. There is still time to assess your employment situation and to develop policies and processes for dealing with how your creative employees are managed and compensated. Remember, the key number is $47,476 per year. Any less that amount then you worker is going to be eligible for overtime for any hours worked in excess of 40 in a given workweek.

Please contact counsel to address the overtime issue, the liability risk is significant. While enforcement probably won’t start right away, I believe that when enforcement begins in earnest starting January or February 2017, there will be a fair amount of scrutiny paid to firms in the creative and computer realms because it is an area ripe for potential violations. You can also be sure that employment law plaintiff’s attorneys will be advertising and advising” heavily to workers looking for violations even if the government is a little slow on its investigations.


BIO Disclaimer

MATT JOHNSTON IS A SOLO ATTORNEY WITH A FOCUS ON SMALL BUSINESS REPRESENTATION, COPYRIGHT AND TRADEMARK LAW, AND DISPUTE RESOLUTION. MANY OF MATT’S CLIENTS ARE DESIGNERS AND CREATIVE PROFESSIONALS WHOSE CONCERNS OVERLAPPING MATT’S PRACTICE AREAS. MATT CONCENTRATES ON DRAFTING CLEAR CONTRACTS OF ALL TYPES AND HELPING DESIGNERS WITH THE LEGAL SIDE OF THE DESIGN BUSINESS. AS A BENEFIT TO AIGA MEMBERS, MATT OFFERS A 10% DISCOUNT ON ALL CONSULTATION APPOINTMENTS, FLAT FEE PROJECTS, AND HOURLY FEES.

THE CONTENT OF THIS COLUMN IS FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE APPLICABLE IN ANY SPECIFIC SITUATION. NO ATTORNEY-CLIENT RELATIONSHIP IS CREATED THROUGH THIS COLUMN. IF YOU NEED CONFIDENTIAL LEGAL ADVICE, MATT IS AVAILABLE FOR PRIVATE AND PRIVILEGED CONSULTATIONS. CONTACT MATT IF YOU HAVE SPECIFIC CONCERNS.

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Flux is a nationwide student design competition presented annually by AIGA Blue Ridge. Entries are selected by a jury of leading design professionals and showcased in a gallery exhibition as well as online. Entry deadline has been extended until November 18, 2016.
October 7, 2016
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