iphone photoUnbeknownst to most software users, many of the world’s largest software companies have relatively complicated software license terms in the event of a user’s death. This can present an emotional and unnecessary complication at a loved one’s passing.

An illustrative and all too commonplace example of this can be found in the terms and conditions of Apple’s iCloud platform. One section of the terms of service of Apple’s iCloud software (as of the publication date) entitled “No Right of Survivorship” which provides that:

Unless otherwise required by law, You agree that your Account is non-transferable and that any rights to your Apple ID or Content within your Account terminate upon your death. Upon receipt of a copy of a death certificate your Account may be terminated and all Content within your Account deleted. Contact iCloud Support at https://support.apple.com/icloud for further assistance.”

In other words, Apple has a right to terminate an iCloud account and delete all the data stored in that account upon a user’s death. Many companies structure software licenses in this manner in order to avoid potential contractual liability in the event of a dispute over access to a deceased user’s account.

Legal Rights to Access Digital Content

Continue Reading Digital Intellectual Property: What rights does Apple have over digital photos upon death of a user?

webinar photoKeeping up with the employment law changes under the Biden Administration can be a challenge. Members of Henderson, Franklin, Starnes & Holt, P.A. and Marks Gray, P.A.’s legal teams will host a virtual one-hour session to help business owners, human resource professionals, and in-house counsel understand what these changes mean for employers now, and how to prepare for what might be on the horizon. Click here to download the program brochure.

Program Overview

Guest speaker Giselle Carson, an immigration and compliance attorney with the Marks Gray law firm in Jacksonville, will kick-off the session. She will provide an update on H1B caps, travel bans and consulate processing, as well as I-9 flexibility.

Next, Employee Benefits Attorney David Ledermann will provide an overview on COBRA changes. These include the new federal COBRA subsidy under the American Rescue Plan Act and related notice requirements, interaction with the extended time periods previously granted relating to the pandemic-related national emergency, potential subsequent availability of special enrollment rights in the Health Insurance Marketplace, and considerations relative to Florida’s mini-COBRA law.

Continue Reading 100 Days In: Update on Biden Employment Policies

photo of HR Policies and ProceduresAs the nation begins the slow recovery from the COVID pandemic, businesses will start to return to some level of “normalcy.” But that normalcy will be in a vastly different governmental environment. During the Trump years, businesses benefited from the administration’s pro-business attitude. The Biden administration has made it clear it intends to adopt a pro-employee, pro-union stance. In its first 100 days, the administration has begun to set the pieces for its long-term goals.

What impact will the Equality Act, if passed, have on employers?

One of the more visible areas of change is coming in the civil rights arena. President Biden fired the Equal Employment Opportunity Commission’s general counsel in March when she refused to resign. The EEOC general counsel, who sets the tone for the number and types of cases the Commission pursues, had been relatively modest in her enforcement efforts during the Trump administration. That should be changing. One area that will likely be a red flag issue with the Biden-era EEOC is LGBTQ+ rights.

Continue Reading Employers need to pay attention to sexual orientation and gender identity protection policies

Governor Ron Desantis issued an executive order prohibiting COVID-19 “vaccine passports” in Florida. The order prevents government entities from issuing “vaccine passports” or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccine status to a third party.

How does this order impact Florida business owners?

Further, this order prohibits businesses in Florida from requiring patrons to provide documentation certifying that the individual had a COVID-19 vaccination. Businesses still, however, can employ COVID-19 screening protocols and measures, such as requiring the use of a mask.

Continue Reading No COVID-19 “Vaccine Passports” for Florida

Effective today, April 1, 2021, the United States Coast Guard (“USCG”) requires operators of recreational vessels less than 26 feet in length to use an engine cut off switch (ECOS) and associated ECOS link (ECOSL) when operating in federal waters. The purpose of the new regulation is to prevent runaway vessels and the danger they pose. An ECOSL attaches the vessel operator to a switch that shuts off the engine if the operator is displaced from control of the vessel, such as when they may fall or be thrown overboard.

Since 2018, the USCG has required all manufacturers of covered recreational boats to equip the vessels with an ECOS. Most vessels are equipped with an ECOS Link. The new provision requires individuals operating recreational vessels with an ECOS Link to use them. Exceptions would include when the boat is idling or docking.

Continue Reading Maritime Law: If you boat in federal waters, take note of a new federal law effective today

The Florida House of Representatives passed S.B. 72 in a decisive 83-31 vote, a bill that would give businesses and health care providers a legal safe harbor from COVID-19 injury and wrongful death lawsuits. Governor Ron DeSantis signed the bill into law this afternoon. The law retroactively applies to causes of actions that have accrued but does not apply in a civil action which is commenced before the effective date of the law (March 29).

The new law provides civil immunity to corporations, nursing homes, hospitals, schools, and houses of worship. The exception to the law would be a showing of gross negligence or intentional misconduct, both of which are very difficult standards to prove. The bill had its opponents, of course, namely, the plaintiff bar, as it creates significant legal hurdles for plaintiffs who wish to file lawsuits over coronavirus-related injuries.

Continue Reading COVID-19 Legal Safe Harbor Signed into Florida Law

As we age, memories of family and friends become all the more treasured. Indeed, for many of us, our most valued possessions are those things which “captured” such memories – home videos of our children’s first steps, photo albums of family members, and so on.

Traditionally, making estate planning provisions for these items was relatively simple – memories were all “captured” in tangible “containers,” i.e., recording media, such as photograph paper, VHS tapes, CD’s and DVD’s.

More recently however, digitization has changed the way memories are stored. Gone are the days of physical “containers.” Photographs, videos and other media are now almost exclusively stored in digital format: whether on a physical device such as a laptop computer or “in the cloud” on platforms such as Gmail, Facebook, DropBox and iCloud.

This continuing digital revolution has changed the way we store intangible, electronic assets – or “digital intellectual property.” Ownership of a “container” is different than ownership of the underlying rights in the content stored in such a “container”: an important distinction to keep in mind when estate planning.

Digital Executor

First, select an executor. This person will carry out the will’s instructions and is a critical part of any estate planning. Often, executors are tasked with collecting, liquidating and distributing the assets of an estate to various named beneficiaries. Unfortunately, many executors are ill-prepared for the various challenges associated with the collection and distribution of digital assets.

Accordingly, estate planners may wish to consider appointing an additional, “digital executor” – a person who is technologically savvy and can help the primary executor with the various computer-related functions of managing digital intellectual property. This could be an independent professional (Henderson Franklin offers such service) or a computer-literate family member who can help secure and distribute digital IP in accordance with the terms of the will (e.g., ensuring that all the testator’s family and friends receive access to digital photographs, videos, etc.).

There are three primary guiding principles which estate planners should follow, namely:

  • maintaining physical access to hardware;
  • maintaining electronic access to hardware and digital access to software; and
  • proactively establishing a legal right for loved ones to access digital content.

Physical Access to Hardware

Continue Reading Protecting Your Digital Intellectual Property Through Estate Planning

You’re a business manager, or maybe even a business owner. You work hard: your work day rarely runs from only 9 to 5; your work week usually runs longer than Monday through Friday. The last thing you need is a subpoena: who wants to get dragged into court for someone else’s dispute?

But the business gods have different plans . . . .

Your office manager calls you to say a sheriff’s deputy just served your company with a subpoena and wants to do what needs to be done. As a savvy business manager or owner, you already know that a subpoena is a court paper requiring the recipient to appear or produce information, or both, so you’re already in a position to effectively address this situation.

First Things First

First, you thank your office manager for notifying you immediately (and congratulate yourself for hiring a stellar professional and providing good training). Second, you refer to your Subpoena Policy, which is your written game plan for this situation.

Continue Reading Our Office Manager Received A Subpoena—What Should My Company Do Now?

Americans and the rest of the world are hoping that in 2021 every-day life will begin normalizing. With the rolling-out of the Pfizer and Moderna vaccines, many feel they can see the light at the end of the tunnel.

However, even though the vaccine has reinstated hope in many, it still raises additional questions. Many have wondered whether employers can make COVID-19 vaccination mandatory for their employees. The answer appears to be yes.

A guidance issued by the U.S. Equal Employment Opportunity Commission indicated that employers can require employee vaccination to go to work. However, this does not necessarily mean that an employee would be automatically terminated. For example, the employee may be entitled to work remotely. Employers also may have to make exceptions for employees with religious objections and disabilities.

Employers should proceed with caution

Although employers can mandate a COVID-19 vaccination, the questions remains whether they will or whether they should. It will likely be challenging for employers to ensure their employees comply with the mandate. Employers requiring the vaccine may also receive some push-back.

Continue Reading Can Employers Require Employees to Receive the COVID-19 Vaccine?

Business relationships often lead to the exchange of sensitive information or access to highly confidential matter. When faced with this situation, is it enough to merely tell your business partner that something is confidential? Absolutely not.

Businesses should always protect their confidential information using a Non-Disclosure Agreement (NDA). NDAs are commonly used when businesses are contemplating or negotiating some sort of contractual relationship or deal. The NDA allows one party to share confidential and trade secret information with another and places restrictions on how the other party can use that information and obligates the other party keep such information confidential.

Under both the Federal Defend Trade Secrets Act and Florida’s Uniform Trade Secrets Act, trade secret owners must make reasonable efforts to maintain the secrecy of their confidential information. Using an NDA when disclosing confidential information demonstrates making reasonable efforts to protect that information.

However, some businesses do not have a standard form NDAs they can readily use. Also, many other businesses develop a general and broad NDA that they use over and over in all situations. Because it is good practice to have an NDA ready for situations where disclosure of confidential information is required, business should keep in mind the following issues to ensure they are adequately protected.

No Expiration Dates

Continue Reading 5 Simple Things to Keep in Mind with Non-Disclosure Agreements