Forming an LLC in Idaho: Is programming professional? I'm forming an LLC in Idaho for a software development / consulting business. I'm planning to go directly through the Secretary of State. I see two different forms: A "Certificate of Organization Limited Liability Company" and a "Certificate of Organization Professional Limited Liability Company" The "professional" one has this description: “Professions shall be held to include the practices of architecture, chiropractic, dentistry, engineering, landscape architecture, law, medicine, nursing, occupational therapy, optometry, physical therapy, podiatry, professional geology, psychology, certified or licensed public accountancy, social work, surveying and veterinary medicine, and no others.” [30-6-102, Idaho Code] I'm not sure if programming / software development would fall under this - would it be "engineering"? Idaho Code 30-6-102 doesn't shed much light on the subject. Although I didn't read the whole thing, it has the exact same paragraph under definition 20. Which should I use to file for my LLC? Why?
The threshold question is if you have a state license for your work. That is why a software developer/consultant is not an engineer. Take a look at paragraph 19: "Professional company" means a limited liability company organized under the provisions of this chapter for the sole and specific purpose of rendering professional services, allied professional services, and services ancillary to the professional services and which has as its members only: (a) natural persons who themselves are duly licensed or otherwise legally authorized to render one (1) or more of the same professional services as the professional company; and/or (b) professional corporations, partnerships or limited liability companies, all of whose shareholders, partners or members are duly licensed or otherwise legally authorized to render one (1) or more of the same professional services as the professional company.
Am I correct to infer that content/data created by a US city have an open license (public domain if created by US city employees or open license if created by a contractor)? No. For example, Larimer County, Colorado created election administration software in-house rather than using an outside contractor to do so, and it would be lawful for it to license that software to other governments in a manner that helps recover its development costs. There is an issue over whether a city or state can copyright its municipal ordinances or statutes or regulations in a legally enforceable way when people have a legal duty to comply with them. Some courts have held that state statutes that are binding upon people can't be protected in that manner. Efforts of the West Corporation to protect its page numbering system that was widely used by courts to refer to public domain case opinions were mostly invalidated in litigation. An open question is that most municipal governments incorporate by reference in their ordinances Uniform Building Codes that are subject to private copyrights and are not terribly cheap to obtain copies of. Yet, every person doing construction work is bound to follow the enacted ordinance including the parts incorporated by reference.
As a native English speaker I would read this as requiring the DPO to monitor all the things listed (i.e. you are correct). Furthermore it would be ridiculous for the DPO to be personally responsible for doing all of these things. If you were supposed to perform "assignment of responsibilities" yourself that would pretty much make you the Chief Operations Officer. If you are only required to monitor job assignments for compliance then by the same logic you are only required to monitor training. Having said that, there is an established principle in the safety industry that compliance should have an independent reporting line up to the top management, and I think its the same for financial regulations too. You cannot be an effective DPO if you are just watching from the sidelines. So I would expect a DPO to have: Line responsibility for audits and routine compliance work such as privacy impact assessments, with a dedicated team of people if necessary. This ensures that there is an independent reporting line from everyday work up to the DPO. Do not accept a situation where data protection work is carried out by the project and then handed to you to file once it is complete, because it never will be. Project managers have a lot of competing priorities and they are extremely good at avoiding anything that sits between them and project completion. You MUST have your own people in the project to see what is happening and the power to stop a project if it is not compliant. If they won't give you that, turn down the job. Budget responsibility for training (with the work actually done by specialist contractors or the company in-house training department) Notification of job assignments where data protection is part of the responsibility.
In the US, code that you write in the course of employment is the property of your employer. Otherwise, anything that you create is your property. The gray area is things that you write during your employment but not in the course of your employment (hence the terms of the employment contract are vital). Something that you write before becoming an employee is not &quot;in the course of employment&quot;. However, if you use that code in the in the course of employment, you invite the argument that in fact the code was written in the course of employment. That argument can be squelched if you have an agreement with the employer that acknowledges that you are licensing your code to the employer in exchange for ... some consideration. It could be $1, or a similar unit of currency.
This is a duck I might want this duck to work for me laying duck eggs (only not this duck because it's a boy duck). If I call this duck a chicken; it's still a duck. Similarly, the duck may call itself a chicken. It may even believe it's a chicken. It's still a duck. Now, I might want to call the duck a chicken because ducks have fewer workplace rights than chickens. Similarly, the duck might want to be a chicken because chickens can be more ... creative ... with their taxes; they might even be able to funnel their income through special C-corporations (C is for chicken). It's still a duck. The law doesn't care what you call your relationship or even what you think your relationship is - it cares about what it actually is. Is a freelance software developer a duck or a chicken? The actual law can be found here. Starting from the beginning: 2750.3. (a) (1) For purposes of the provisions of this code and the Unemployment Insurance Code, and for the wage orders of the Industrial Welfare Commission, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The person performs work that is outside the usual course of the hiring entity’s business. (C) The person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. So a freelance software developer who is working without their client's &quot;control and direction&quot; about when, where and how they do their work (obviously, direction on the final product is OK), for a client who doesn't normally develop that type of software (e.g. writing a website for a hairdresser or even writing accounting software for a computer game developer but not writing computer games for a computer game developer) and that there exists such a 'thing' as independent software developers (which there are) can be correctly classified as a contractor. A person who goes into a software house to work on their in-house code is an employee. So after the initial classification, there is a bundle of exemptions and exceptions. None of them are particularly relevant until we get to: (e) Subdivision (a) and the holding in Dynamex do not apply to a bona fide business-to-business contracting relationship, as defined below, under the following conditions: (1) If a business entity formed as a sole proprietorship, partnership, limited liability company, limited liability partnership, or corporation (“business service provider”) contracts to provide services to another such business (“contracting business”), the determination of employee or independent contractor status of the business services provider shall be governed by Borello, if the contracting business demonstrates that all of the following criteria are satisfied: (A) The business service provider is free from the control and direction of the contracting business entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. (B) The business service provider is providing services directly to the contracting business rather than to customers of the contracting business. (C) The contract with the business service provider is in writing. (D) If the work is performed in a jurisdiction that requires the business service provider to have a business license or business tax registration, the business service provider has the required business license or business tax registration. (E) The business service provider maintains a business location that is separate from the business or work location of the contracting business. (F) The business service provider is customarily engaged in an independently established business of the same nature as that involved in the work performed. (G) The business service provider actually contracts with other businesses to provide the same or similar services and maintains a clientele without restrictions from the hiring entity. (H) The business service provider advertises and holds itself out to the public as available to provide the same or similar services. (I) The business service provider provides its own tools, vehicles, and equipment to perform the services. (J) The business service provider can negotiate its own rates. (K) Consistent with the nature of the work, the business service provider can set its own hours and location of work. (L) The business service provider is not performing the type of work for which a license from the Contractor’s State License Board is required, pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code. Summarising this: if the freelance software developer is part of a bonafide business providing services to the 'public' and not just to this employer then they can be correctly classified as a contractor.
(IANAL, of course) My employer tells me that EVERY professional activity belongs to the company and for EVERY activity I mentioned before I need to get written permission, That's true for software (and inventions) that may be relevant for them, but not for other professional activities. which could be withdrawn at any moment. No, not in that very general sense. they can give the permission to publish possibly relevant pieces of code on SX, and they can withdraw that permission for the future. But they cannot take it back for the past. Once they tell you they don't want your invention, there's no way back from that decision (and there are legal deadlines for claiming relevance). Even if they require written permission for you to take a side job, they must give it unless they can show a valid reason against you taking the side job in question. And that would be a per-side-job decision. And it doesn't matter if I do it on my free time on my computer at home or not. That is indeed the case for copyright of software and for inventions. clause is to protect your employer from you helping anyone who is their competitor/you being their competitor while the employment lasts. This is pretty standard and, I believe, not only legal but would be the case also if they had not spelled out this to you. The lines between what is and what is not competition are sometimes a bit complicated* So, if your employer specializes in subway station surveillance systems and you work on face recognition and then help out your local pigeon breeder's association by implementing automatic door opening by camera + automated face recognition of the [unwinged] members that's close enough to touching the interests of your employer that I'd consider it off-limits unless you had talked to your employer and they are happy with this project (after all, they could be preparing similar products unknown to you). OTOH, overhauling the crappy Excel macros for the regional annual breeder's competition would be fine. And in general, the lower your position there and the further from the actual focus of the company, the more normal it is to have another job (think janitors, canteen staff of a software company as opposed to a janitor in a hire-a-janitor-service company) The general duty not be in competition with your employer also in general prevents you from being involved in a competitor business to the extent that you have noticable influence over that competitor. So the second part of clause 1 shouldn't be too surprising, neither. (update) OTOH, what may make this particular clause invalid is the requirement also for publicly traded shares that they cannot come with voting rights. I somehow suspect that thus prohibiting you from "normal person small scale ownership" of publicly traded stocks (not all of them even have non-voting shares) is undue and invalid (too broad a restriction). However, if that clause is invalid the legal default of "no competition to employer" still applies. Here's a (German language) web site of a lawyer that discusses these questions See also here https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Wettbewerbsverbot.html Unlike the 1st clause, this is AFAIK not a spelled out default of German employment law, but it may be a spelled out version of a Tarifvertrag (unionized group contract). In any case it is probably legal to have this clause in the contract. The point is that the employer can only forbid the side job if it is against their reasonable interests, a general "no side jobs whatsoever" would be invalid. Side note: they may even be of the opinion that employment law forces them to have some such clause: the employer has a legal responsibility to ensure that you are not working more than the number of hours allowed by law. I've had such a permission that stated the constraint that the permission is valid only as long as I ensure that I stay within those legal limits and my working ability for employer is not compromised. https://www.hensche.de/Rechtsanwalt_Arbeitsrecht_Handbuch_Nebentaetigkeit.html https://www.fachanwalt.de/ratgeber/nebentaetigkeit-als-arbeitnehmer-anmelden-zustimmung-und-muster-antrag https://www.haufe.de/personal/arbeitsrecht/top-thema-nebenbeschaeftigung/nebentaetigkeit-und-arbeitsrecht-was-erlaubt-ist_76_418602.html Copyright law for employees in Germany is somewhat difficult. the one exception is copyright of software where §69b UrhG transfers the transferrable rights automatically to the employer. Whether the software is written out of office and outside working hours is irrelevant, as long as it is done in "fulfillment of the employee's role or the employer's orders" (famous court case) so again, if at work you code facial recognition systems and in the evening the pigeon breeders accounting system, the latter is not related to your work. Your open source game is also OK unless you are employed as game developer. Also that not all code is subject to copyright. An obvious explanation on SX explaining a typical pattern would not be a creative work (though the full answer may very well be) in the first place. But for creative works other than software such as plans how to implement features, technical drawings, etc. working hours or not seems to be more important for assigning the rights and the rules seem to be more similar to employee invention law ArbnErfG): if it is outside working hours and possibly relevant for the employer, the employee has to offer it to the employer before trying to sell to someone else. The clause that employer must give permission to publication of content that is possibly relevant for them seems to me to be in line with these general rules. https://www.zeit.de/karriere/beruf/2011-06/arbeitsrecht-urheberrecht https://eventfaq.de/25510-urheberrechte-im-arbeitsverhaeltnis/ http://www.urheberrecht-leipzig.de/urheberrecht-nutzungsrechte-des-arbeitgebers-an-kreativen-leistungen-der-mitarbeiter.html * I've been advised in a situation where I still believe I was not competing, and even had a written permission, that this is the stuff that makes lawyers rich, and both employee and employer poor.... Take home message: even if you believe to legally have the right to publish on SX/contribute to an open source project, think again whether you'd want this to be the source of a conflict with your employer - or whether there isn't a win-win possibility that makes everyone happy instead. What is the most legal way to participate in public activities in such situation? I'd advise to be open about what public activities you'd like follow. Whatever the contract says, your employer can always give your more permissions. In the past, I've found the majority of employers being happy to see me contributing (some had similar clauses to yours and just wanted to know, some was happy about an open source project I brought, some like to be able to say where their employees volounteer, etc.). Although there was one who wasn't (and that did contribute to my decision to leave there). From that experience, I'd personally discuss this early on now: in case the employer turns out to be too intrusive (speak to Betriebsrat or lawyer or your union if you have one to make sure they really overstep their rights) for my liking, for me that would be a reason to cancel the contract which is easier &amp; faster during probation period.
Law (regardless of its type) supersedes contract, provided it has jurisdiction over the persons bound by that contract. Contract provisions that are counter to law are generally held to be void. State law has authority over an employer's policies or hand book. However, there may be exceptions in state law (so I would double check). A frequent exception (at least in California law, which I am most familiar with) is for very small businesses. Another exception, from C.R.S. § 8-4-101(5), is if you are considered a "contractor" rather than an employee, per the government's determination. It is possibly worth your time to let you employer know of this conflict before termination if possible, so that they can adjust their policies, rather than in an adversarial position after termination, if only to avoid the headache.
As to #1, the US Patent and Trademark Office has a patent practitioner search where you can verify if someone is a registered patent practitioner. If so, it means they passed a [registration process] that evaluates their &quot;legal, scientific, and technical qualifications, as well as good moral character and reputation&quot;, as well as a multiple-choice exam. I looked up a few of the attorneys listed on the firm's About Us page and they show up as registered. So this seems like a good indication that they are a &quot;real law firm&quot;. This does not address whether they are &quot;credible&quot; (I'm not sure what that means), or how to evaluate the firm's quality, and I will leave it to someone else to answer that.