Blogposts

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How NOT to use an Oklahoma nondisclosure agreement

I have written about Oklahoma nondisclosure agreements and how businesses can and should use nondisclosure agreements with employees to protect confidential information.  The goal, in my opinion, is for a non-disclosure agreement to allow an Oklahoma business to protect information that gives it a competitive advantage over it competitors.

There is another use of nondisclosure agreements that morally wrong and legally perilous:  Using a nondisclosure agreement to cover up illegal or immoral actions.  An example is how formerly famous and now infamous movie producer Harvey Weinstein used nondisclosure agreements: 

To silence people who he had harassed and to silence people who knew about Weinstein’s harassment, essentially covering up his evil acts. 

Essentially, Weinstein used a proper legal tool-the nondisclosure agreement, to cover up his illegal and immoral conduct, allowing the conduct to continue for years unchallenged.

Mr. Weinstein’s gross misuse of the nondisclosure agreement is detailed by PBS in its Frontline series in What Happens If Someone Breaks a Non-Disclosure Agreement?

“We were not allowed to speak to anybody obviously, friends, family, press, public, private, about the alleged behavior, but also about our time at Miramax,” Zelda Perkins, a former assistant to Weinstein, said in an interview for the FRONTLINE documentary Weinstein. “This wasn’t a normal confidentiality agreement. This wasn’t us saying that we weren’t gonna, you know, give away corporate secrets. This was a deeply, personally binding agreement.”

Nicole Einbinder did excellent work demonstrating how one can misuse a tool that I recommend Oklahoma employers use for legitimate purposes.  You can check out the Frontline episode here:

WEINSTEIN

 

 

 

Posted by Shawn Roberts in Blogposts, Oklahoma non-compete

Can an Oklahoma Notary notarize a relative’s signature?

Oklahoma Notaries play a key role in finalizing many Oklahoma documents such as last wills and testaments, powers of attorney, deeds and real estate purchase contracts to name only a few examples. 

The Oklahoma Notary provides the certification that the person who signed the document is indeed that person.  An Oklahoma Notary Public is handy to have in most law offices and many business offices to notarize the signatures required by legal documents.

With the notary seal being so helpful, you might imagine there may be some issues created by a notary’s helpfulness and convenience.  One of those issues is whether an Oklahoma Notary Public can notarize the signature of a relative.  My instinct on this one, before researching the question, was that “no” a notary cannot notarize a relative’s signature, the same as a witness to a last will and testament cannot be related to the person making the last will and testament.  And, my instinct was mostly wrong.

According to the Oklahoma Secretary of State Oklahoma law allows a notary to notarize a relative’s signature:

A notary is an impartial witness. The law does not forbid notaries from notarizing the signatures of relatives. However, if the notarized document was ever the subject of a court suit, a judge might determine the notary was not an impartial witness.

With that in mind, my thought is that if there is someone else that can provide the notary seal for a relative, by all means, do not use the related notary to notarize a relative’s signature.

 

Posted by Shawn Roberts in Blogposts, Business Law

What business licenses are required to do business in Oklahoma City?

I believe that Oklahoma is perceived as a state with a relatively small amount of business regulations (a relaxed regulatory environment so to speak).  However, even in Oklahoma’s relatively regulation-lite environment, there are still regulations to consider if you are in business.

One example is if you are doing business within the Oklahoma City limits there are a number of occupational or business licenses you must have to be legally compliant.  Below is a list of most of the required occupational licenses and if you are looking for more information consider visiting the City of Oklahoma City’s website.

One more thing to know: The city limits of Oklahoma City are expansive and amorphous indeed the OKC City Limits are large enough to hold the cities of Philadelphia, Boston, Washington, D.C., Pittsburgh, Manhattan, San Francisco, and Miami!

Advertising License Alcoholic Beverage License
Auction Sales License Coin ­Operated Device License
Day Care And Day Camp License Dry Cleaning License
Food Service Establishment License Gasoline And Oil License
Hotel/Motel License Kennel License
Low Point Beer License Massage Establishment License
Mobile Home Park License Outdoor Sellers
Pawnbroker License Used Auto Dealer & Salvage License
Used Merchandise License Vehicle Food Sales
Vehicle Frozen Dessert Sales License  

 

Posted by Shawn Roberts in Blogposts, Business Law

What is arbitration?

When you have a legal dispute with someone, there are at least two procedures for resolving the dispute:  File a lawsuit in the tax-payer funded court system or submit to binding arbitration.

My sense with the term “arbitration” is that people who don’t spend time working with the law, probably hear the term often but do not have a clear understanding of what it means and how it is different from a lawsuit in a court.  The American Arbitration Association, one of the largest administrators of arbitration proceedings, defines arbitration as “the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (the arbitrator)—is faster and more cost effective than litigation.”

Below is a table that highlights some of the basic differences between a “court case” and an “arbitration.”  Both processes are used to resolve legal disputes between individuals and businesses.

  Court Case Arbitration
Who can find out about it Public Private
Who decides the winner Jury or Judge 1 or 3 arbitrators (usually attorneys) from a roster of neutral arbitrators
Selection of decision-maker Jury selected or elected judge makes decision parties select the arbitrator(s)
Where the case happens County Courthouse Private location arranged by the parties to the dispute
Length of the case 8 months to 2 years 5 months to 1 year
Punitive Damages Maybe Usually not available
Evidence allowed Relevant evidence per evidence code  Limited evidence
How it gets started File a Petition with the court File demand for arbitration
Winner entitled to attorney fees? Sometimes Usually
Costs court fees, attorney fees fees for arbitrator(s), attorney fees
Posted by Shawn Roberts in Blogposts, Business Law

What is an Oklahoma employer required to tell its employees about the Family and Medical Leave Act?

If you are an Oklahoma business with 50 or more employees, you have probably heard of the Family and Medical Leave Act (“FMLA”). IMG_0407

If you have not heard of it, it is probably a good idea to learn a little bit about the FMLA.  Employers have obligations to tell employee certain details about the FMLA and the document below provides an outline of the details an employer (who is, of course, a covered employer under the FMLA) is required to provide to its employees:

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Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

The tools an Oklahoma Employer can use to protect itself when employees leave

From Flickr user Alan Levine

If you have read my blog even a little bit, you are probably aware that pure non-compete agreements are not allowed by Oklahoma except in two limited situations (see this post for the exceptions).

A pure non-compete is one that restricts an employee from working in their chosen field or industry.

While Oklahoma has decided it will generally not do non-competes, it doesn’t ignore the legitimate needs of Oklahoma employers to protect their companies. Oklahoma law provides employers several mechanisms to request employees to agree to reasonable limits on how they can use what they learn and see when they move on to a new employer.  These are tools all Oklahoma employers need to utilize as reasonable, value-protecting methods to protect what makes a company unique and provides an advantage over the competitions:

Non-Solicitation of Customers
A non-solicitation restriction is indeed what it sounds like – a promise by an employee to not solicit the employer’s established customers after the employee leaves employment and either joins a competing company or starts the employee’s own competing company. A non-solicitation restriction in an employment contract would look something like this:

7.2 For a period of one (1) year after cessation of Employee’s employment with Company, Employee shall not directly, or indirectly knowingly solicit any of the accounts, clients, or contractors of Company that were directly or indirectly serviced by Employee while an employee of Company.

Oklahoma law typically requires the time period for the non-solicitation restriction to be “reasonable” a term that has interpreted by Oklahoma courts to run somewhere between 1 and 3 years.

Non-Solicitation of Employees
While the non-solicitation restriction discussed above relates to customers, there is also another non-solicitation restriction that relates to employees. Customers are the lifeblood of a business and employees are a component of operating a business that serves customers well, convincing customers to stay customers.

When an employee departs either to a new employer or starts her own company, there is usually a temptation to ask other employees to join her. There is nothing mysterious or sinister about this – people find other people to work with through relationships. The former employee often finds people to hire by talking to people she used to work with.

While this is natural, Oklahoma law allows an employer to ask an employee to agree to not use those relationships with other employees to take the employees away from the employer. This is accomplished with a non-solicitation of employees restriction that often reads like this:

7.1 For a period of one (1) year after cessation of Employee’s employment with Company, Employee shall not directly or indirectly solicit the employment of, or hire any person employed by Company as of the cessation of Employee’s employment with Company, or cause any person employed by Company to terminate such employee’s relationship with Company without the prior written approval of Company.

From Flickr User Kim Siever

Non-Disclosure of Information
Again, Oklahoma’s non-disclosure restrictions (sometimes confusingly referred to as “confidentiality”) is what it purports to be: A restriction that prevents a former employee from sharing the private and proprietary information of the former employer.

Non-disclosure provisions are a critical component in an employment agreement because the non-disclosure provision establishes that the employer has a basic expectation that its private business information must be protected. Non-disclosure restrictions typically look something like the blurb below:

6.1 Confidential Information. “Confidential Information” means proprietary business information, Trade secrets and/or confidential Information regarding the business of Company or its clients. The confidential information is to include Company’s legal, financial, methods of operations, software developments, submission and proposal procedures, client lists, or any other information pertaining to the business of Company. Employee acknowledges and agrees that the business and good will of Company depends upon the protection of any adherence to the keeping of Confidential information confidential.

6.2 Non-Disclosure. Except when directed in writing to do otherwise by Company, and except as required by law, court order, or subpoena, Employee shall keep confidential and shall not divulge to any other person or entity, during the time of the agreement any confidential information. In any case where Employee is compelled by law, court order, or subpoena to disclose any confidential information to a third party, Employee shall advise Company in advance of such requirement and shall permit Company to object, contest, intervene, and/or obtain appropriate protection of such information prior to disclosure to any person unless commanded by law officials or advised against doing so by legal counsel representing Employee.

The Takeaway for Employers

The takeaway is, Oklahoma employers, know the legitimate legal tools you can use to protect your business when employees leave and use them.

Postscript

When I first considered this blog post I thought it might be titled “How an Oklahoma employer can weaponize to protect itself from departing employees”. However, those words do not convey the intent of this post. My intent is to share some mechanisms employers can use to protect their business from employees who might choose to not compete fairly after leaving.

Posted by Shawn Roberts in Blogposts, Oklahoma non-compete

What does the IRS say about Oklahoma limited liability companies?

From my recent experience I can tell you that when people are considering what type of entity to create, Oklahoma limited liability companies are vastly outpacing Oklahoma corporations.  With the limited liability companies the most common form of entity I see, it seems like a prudent idea to provide some additional material about the limited liability company.  The Internal Revenue Service is helpful with this idea in that the IRS provides a basic description of how it classifies entities. 

Below is a diagram I created summarizing the IRS’s characterization of a limited liability company:

 

Posted by Shawn Roberts in Blogposts, Oklahoma Employment Law

What does promissory estoppel mean under Oklahoma law?

The law is full of terms of art, legal ease, Latin and a variety of other terms that make it hard for anyone other than lawyers (and hard even for some lawyers) to comprehend.

One such term is promissory estoppel.  This is a term that comes up an Oklahoma lawsuit when a person is trying to enforce an agreement but the agreement doesn’t quite meet the legal definition of an enforceable “contract.”

Recently, in a court case in Okmulgee County, Oklahoma, the attorneys representing one of the parties provided an excellent definition and explanation of the term promissory estoppel:

Jedson's MPSJ Against CP Kelco 3.11

 

Here is a link that will take you to the full document (it is a large document, give it some time to load) and to the court case from which the document came.

Posted by Shawn Roberts in Blogposts, Oklahoma Contract Law

The two primary uses of an Oklahoma Revocable Trust Trust

The Oklahoma revocable living trust is a fairly common estate planning tool.

I have written about using a trust to protect and plan for your family several times such as here, here and over there. The more I have worked with Oklahoma trusts and seen how my clients use them, I have come to see primarily used to accomplish two things:

The Probate avoidance Trust

The goal of the probate avoidance trust is to get all your property into it, then when you pass away, the trust passes all of your property to your heirs with no strings attached, without your heirs being required to file a probate case in court. Instead, the trust distributes your property to the people you choose.  When all the property has been distributed by the trust, the trust reaches the end of its life and is terminated. The Oklahoma probate-avoidance trust functions similar to an Oklahoma last will and testament, except with the trust, your heirs avoid the court-supervised probate case.

The Legacy Trust

The goal of what I call the legacy trust is to get all your property into your trust and when you pass away distribute all of your property to your heirs, over an extended period of time and possibly with some qualifying instructions (Note:  If this type of trust is properly created and managed, it to should help your heirs avoid probate). The legacy trust typically continues on for a lengthy period of time after you pass away doing things such as:

  • Providing for your children’s education
  • Protecting your children’s inheritance from their creditors
  • Gradually providing financial assistance on terms you design

 

The right trust for you and indeed even IF a trust is right for you is something I am happy to talk with you about.

Posted by Shawn Roberts in Blogposts, Oklahoma Estate Planning