Scope Of Federal Jurisdiction - October 11, 2010
Ed. Note: The relatively recent passage of the health care act has focused attention on how far Congress can go to regulate local activities through the interstate commerce clause. Perhaps the broadest application of this clause is the Fair Labor Standards Act (FLSA) which extends...
New Mass Employee Records Law Requires Notice - September 27, 2010
How enforceable the change will be is open to question because employees cannot sue employers who violate the notification requirement. Others complain the law is burdensome, unclear and could cause undue labor relationship issues by exacerbating minor performance...
Where Things Are Going In Employment Law - September 21, 2010
Ed. Note: As you know, we ll occasionally look at where the law is going in other jurisdictions for hints on where the law may be going in the United States. This is especially true in the area of employment law where international unions are frequently pressing for changes...
New Mass Law Affects Construction Contracts - September 13, 2010
The "prompt pay bill" goes into effect in November and changes the payment responsibilities of parties in most largescale commercial and residential construction projects. The law severely restricts the ability of owners and general contractors to use a payifpaid clause to withhold...
Mcad Guideline Overturned Others May Be Questionable - September 6, 2010
As most employers are aware, practically all state and federal agencies responsible for administering and enforcing employment discrimination laws have the authority to issue regulations and guidelines. Generally, courts routinely enforce regulations and guidelines as......more
Employment Credit Check Prohibitions Expanding - August 25, 2010
Some employers are exempt, including banks, insurance companies, law enforcement and government agencies that require the use of credit history. The law also exempts job positions where a credit history is a bona fide occupational requirement, such as where...
Employer Liability For Employee Drinking Not Expanded - August 18, 2010
A recent Massachusetts Supreme Court decision reaffirms Massachusetts employers are not required to monitor the offsite conduct of workers. The court held a nursing home could not be held responsible for injuries sustained by a pedestrian struck by the...
American Recovery And Reinvestment Act Of 2009 (Arra) - June 16, 2009
The IRS released a fact sheet that outlines key incentives contained in the American Recovery and Reinvestment Act of 2009 that may impact businesses. Here is what it says: ARRA provides a number of tax incentives for businesses. Most of the tax ...more
Overbroad Confidentiality Rule Violates Nlra - June 11, 2009
Most people believe the National Labor Relations Act only deals with unions. That is not true. While it is true that most of the provisions of this law deal with unions, it also gives employees certain core rights that do not depend upon their ...more
Employee Privacy Development - May 25, 2009
A 9th Circuit ruling that employees given pagers by their employer had a reasonable expectation of privacy in text messages stored on a third party server raises new questions about employer policies on electronic communications. It held the ...more
Google Keyword Development - April 30, 2009
Many of you they recall that we have for several years following report on developments with regard to the Google Ad Word Program and its relationship to possible trademark infringement. Slowly, courts have been closing in on a conclusion that use ...more
Employee Discrimination Reporting In Response To Inquiry Protected - April 27, 2009
Under Title VIIs opposition clause, it is unlawful for an employer to discriminate against any of his employees because he has opposed anything made an unlawful employment practice by the law, or because he has participated in any manner in an ...more
Family Responsibility Discrimination Case - April 13, 2009
Ed. Note: Several months ago we issued a memorandum noting that discrimination cases based upon family responsibilities were increasing. One of the principal bases for the suits is stereotyping. We report here on a recent decision by the First ...more
Irs Issues Cobra Guidance - April 7, 2009
The Internal Revenue Service has issued a issued guidance on the COBRA changes enacted in the American Recovery and Reinvestment Act of 2009. The Act required employers for the first time to pay a subsidy for former employees use of COBRA. ...more
New Executive Orders Affect Government Contractors - April 6, 2009
President Obama has issued several Executive Orders concerning employees of government contractors. On January 30, he issued Executive Order 13494 that governs allowable costs regarding union activity and Executive Order 13496 that requires notice ...more
Cobra Changes - March 24, 2009
For the first time, employers are required to pay a subsidy for former employee use of COBRA.The changes to the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) were included as part of the American Recovery and Reinvestment Act of ...more
Lilly Ledbetter Fair Pay Act Of 2009 - February 11, 2009
On Jan. 29, 2009 President Obama signed Ledbetter Act into law. It dramatically changes the law of pay discrimination claims. It: Resets the statute of limitations for filing a wage claim each time an employee gets a paycheck, benefits, or other ...more
Sponsored Link Cases - December 4, 2008
Many are familiar with the fact that you can buy adwords from entities like Google or others. When someone types in a search using an adword you have bought, the search engine generally displays a link to the site you have registered for that ...more
Hippa & Lawyer Communications - November 22, 2008
The Georgia Supreme Court has ruled that HIPAA overrides state law when it comes to communications between lawyers for parties in a case seeking information and medical providers providing medical information.In the case at issue, counsel for the ...more
Preparing For The New Administration - November 5, 2008
You remember the old saying forewarned is forearmed. Based on information available to us through our professional associations and other contacts, here is our estimate of areas where businesses need to pay attention for the next wave of legal ...more
All Massachusetts Employers Subjected To Discrimination Cases - May 3, 2008
The Massachusetts Supreme Court has ruled that the Massachusetts Equal Rights Act, a law passed in 1989 makes all employers in the Commonwealth subject to being sued for discrimination regardless of the size of the business. The actual ...more
Mass Law Does Not Assume Contracting Party Indemnification - February 27, 2008
Where an engineering firm that designed a milliongallon water tank was sued by the manufacturer of the tank after it incurred substantial costs to remedy damage to the tank, the engineering firm counterclaimed, contending that any liability on its ...more
Trade Secret Liability Does Not Require Understanding - January 1, 2008
The US District Court for Utah has ruled the Uniform Trade Secrets Act (UTSA), the statute that is the basis of trade secret law in most US states, does not require understanding a trade secret to be liable for stealing it.Engineers develop ...more
Liability For Sold Used Equipment - October 25, 2007
The Oregon Supreme Court has found that the former owner of a used tractortrailer could be sued for negligent maintenance of the vehicle even though the accident happened about one year after the tractortrailer had been sold.The company had bought ...more
Employment References In Connecticut - October 23, 2007
The Connecticut Supreme Court has ruled that a qualified privilege applies to employment references to which an employee has provided consent. This adds Connecticut to a long list of states that have adopted this rule. The court said that the ...more
Eu Court Denies Privilege To Documents For Legal Advice - October 18, 2007
The European Court of First Instance has reaffirmed that communications sent to or by company inhouse counsel are not protected by the attorneyclient privilege. The court also ruled that documents reflecting information collected by a general ...more
Noncompete Agreement Enforceability - October 10, 2007
As we have frequently noted, the enforceability of a noncompete agreement depends upon the courts view of the reasonableness of the length, geographic area covered, fairness of protection to the employer, restraint on the employees opportunity to ...more
Mass Supreme Court Revises Liquidated Damages Rule - October 4, 2007
d. Note: The case recounted here revises a rule of Massachusetts contract law that has existed for more than 60 years. Although this particular case of arises out of a commercial lease, the rule announced here applies to all contracts subject to ...more
Family Responsibility Discrimination - July 26, 2007
here is a new trend building in discrimination cases. Based largely on sex and age cases, these new cases deal with the disparate treatment of workers based on their family or caregiving responsibilities.Generally speaking, these cases argue the ...more
Acquisition Considerations - July 13, 2007
Is now the right time to grow the business by acquiring another company? Many business owners are asking themselves this question, particularly given the availability of acquisition financing. The following are practical points to consider: Take ...more
Noncooperative Employee Cannot Claim Discrimination - June 12, 2007
An employee fired after refusing to cooperate with her employers reasonable efforts to resolve her harassment complaints cannot hold the employer liable for discrimination, the 11th Circuit has ruled.A marketing representative claimed a hostile ...more
Repackaging With Disclosure Requires No License To Use Mark - June 8, 2007
Farouk makes beauty products, including a line of hair care products sold under the BioSilk and Silk Therapy marks. PCB is an independent distributor that purchases and resells hair care goods to retailers. Target purchases Farouk hair care ...more
Osha Fines Ruling - June 1, 2007
The Occupational Safety and Health Review Commission must issue a penalty for each violation in recording workers who are injured or ill, the 5th Circuit has ruled.The case concerned a steel manufacturing facility in Texas that was shared by two ...more
Iso Negligent Misrepresentation Liability - May 29, 2007
Awarding summary judgment on a former employees negligent misrepresentation claim was error as evidence existed supporting the employees allegation that the employer failed to inform him his stock options would expire three months after his ...more
Employee Blog Litigation - May 24, 2007
Litigation over employees blogging negatively about their jobs or bosses has been sparse. Most cases so far have come down for the employer.Yet observers predict that a proemployer trend wont stop the growth of legal fights over blogs. The ...more
Ada Does Not Necessarily Require Remote Work Location - May 21, 2007
manufacturer was not required under the ADA to accommodate an asthmatic employees request to work from company headquarters instead of in a manufacturing facility that aggravated his condition, the 1st Circuit has ruled in affirming a summary ...more
Pros & Cons Of Stapled Financing - April 3, 2007
Stapled financing is sometimes used in a company auction. The investment banker conducting the auction offers prospective buyers a package of financing they can use to do the deal.There are both positives and negatives to stapled financing. The ...more
Osha Revises Workplace Electrical Code - March 30, 2007
OSHA has issued a safety revision regarding the design and installation of electrical equipment in the workplace.The revision amends subpart S of OSHAs general industry electrical standard, which focuses on such safety measures as grounding ...more
Illegal Immigrant Contracting Crackdown - March 27, 2007
A growing crackdown on the use of illegal immigrants is already here and more is likely to come.Many have heard that Massachusetts issued an Executive Order on February 23, 2007 effective immediately, which requires employers who contract with the ...more
Option Backdating - March 23, 2007
Ed. Note: Many believe the option backdating issue only involves publicly traded corporations, probably because the headlines are full of SEC investigations which, of course, deal with those entities. This set of decisions by Chancellor William ...more
Mass Limits Freeze-Out Remedies - March 20, 2007
The widow of a small Massachusetts Corporations onethird shareholder inherited his shares. She later sued the two other shareholders claiming they had frozen her out of the company, refused her access to company information, and denied her any ...more
Sharp Dealing Kills Contract - March 13, 2007
A buyer sued for specific performance of a land sale agreement. The court denied it because there was a lack of consideration and a unilateral mistake on the defendants part the plaintiff knew or had reason to know about. The case is an example of ...more
Male Sex Harassment Claims Up - March 8, 2007
The EEOC reports men are coming forward more often with sexual harassment complaints. Anecdotal evidence suggests that many of these charges involve men alleging sexual harassment by other men.About 950 men nationwide filed sexual harassment ...more
Trust Property Damage Claims - March 5, 2007
In the case of property held in a trust, a waste claim requires proof of damages in the form of prejudice to the estate or to the interest of another. If there were waste damages, the measure would typically be either (1) the cost of restoration, ...more
Severance Pay Taxation - February 28, 2007
The United States Court of Federal Claims recently issued a decision where it concluded that separation payments made to electing employees under a forced transfer program are compensation for services subject to employment taxes. This illustrates ...more
The Ever Expanding Unjust Termination Right - February 24, 2007
A health club customer sued claiming to have been assaulted by a club employee. The health club and the employee were defaulted. The club employee has subsequently sued alleging her discharge was in retaliation for her hiring of her own lawyer in ...more
New China Franchising Regulation - February 20, 2007
China has issued a new set of regulations called the Commercial Franchise Administration Regulation that comes into effect on May 1, 2007.Among the changes from current regulations are: The regulation applies to anyone engaged in franchising ...more
Policy = Immunity - February 16, 2007
In a case of first impression a California district appellate court has ruled that a private company not itself in the business of providing Internet services is immune from prosecution under the Community Decency Act of 1996 which, in turn, made ...more
Personal Employment Action Liability Harder To Prove - January 25, 2007
ED. NOTE: Personal liability in employment actions is a growing trend. This case presents a set of circumstances most corporate managers would never think as creating personal liability. Generally, they think this only happens in discrimination ...more
Foreign Right To Oppose Marks Expanded - January 22, 2007
The Court of Appeals for the Federal Circuit has issued a decision that broadens the right of foreigners to file an opposition to a proposed trademark or servicemark registration at the United States Patent Trademark Office. The Court ruled that ...more
Independent Contractor Status - January 8, 2007
Ed. Note: We have previously reported that Massachusetts Law is very stringent on the subject of employee v. independent contractor. The Massachusetts Supreme Court has issued a new decision that shows how far this goes.Coverall sells franchises ...more
New Rules Compel Electronic Document Inventories - January 3, 2007
Companies will need to be able to track all emails, instant messages and other electronic documents generated by their employees thanks to new federal rules now in effect.The rules, approved by the Supreme Court in April, require companies and ...more
Cashing Fee Is Illegal Wage Deduction - December 26, 2006
Ed. Note: Although this decision is based upon New York law, the structure of labor laws regarding payment of wages and permissible deductions from wages is fairly uniform in most states. It is not likely that what has been found illegal here ...more
Telephone Tax Refund Business Formula - December 20, 2006
The Internal Revenue Service has announced a formula that will allow businesses to estimate their federal telephone excise tax refunds. The formula provides a less burdensome option than gathering up to 41 months of old phone records.In May 2006, ...more
Copyright Work Made For Hire Not Applicable - December 12, 2006
ED. NOTE: Here is an instance where the limited scope of the work made for hire doctrine in copyright law came back to bite the buyer. The only reason the buyer had any rights (limited) was the written agreement Paul Nicolai.Jerrytone purchased ...more
Bad License Kills Trademark - December 8, 2006
HML offers Internetrelated services, including email and web hosting. HML owns the registered Halo mark for electronic communication services and various online services. Interland, a provider of Internetbased services uses the domain name ...more
Employment Dispute Handling In Great Britain - December 5, 2006
Regulations in effect since 2004 in the United Kingdom send all workplace disciplinary and dismissal grievances to a threestep alternative dispute resolution process designed to promote internal settlements and reduce claims in the tribunal ...more
Fmla Leave Return Cannot Be Delayed - November 27, 2006
An employee said she was ready to return from FMLA leave on June 28. Because the employer was undergoing a model year change and her prior job had been done away with, the employer failed to return her to an equivalent position until July 31. The ...more
Pension Transfer Safe Harbor - November 21, 2006
Employers taking advantage of a final Labor Department rule are shielded from fiduciary liability when they transfer terminating employees small pension distributions to individual retirement accounts. The safe harbor rule stems from tax ...more
M&A And Erisa Plans - November 10, 2006
Halliburton Co. agreed in a 1998 merger agreement governing the merger of Dresser industries into a wholly owned subsidiary of Halliburton, to maintain the Dresser retiree medical plan except to the extent modifications were consistent with ...more
Trade Dress Can Prohibit Add-On Products - October 30, 2006
Gateway sells computers. By 1991, black and white cows and cow spots had become Gateways symbol. In 1992, Gateway registered a black and white cow spots design for computers and computer peripherals as its trademark. CPI sells stuffed animals that ...more
Punitive Damage Contract Limit Overridden - October 26, 2006
A federal appeals courts decision to uphold 6 million in punitive damages in an arbitration award raises substantial questions about the ability of parties to limit damages.The U.S. Court of Appeals for the Eight Circuit reinstated the award after ...more
Irs Announces Standard Amounts For Telephone Tax Refund - October 3, 2006
The Internal Revenue Service has announced the standard amounts that most longdistance customers can use to figure their telephone tax refund. These amounts, which range from 30 to 60, will enable millions of individual taxpayers to request the ...more
Trademark Counterfeit Hunting - September 30, 2006
A new breed of investigators and lawyers are aggressively pursuing product counterfeiters through lawsuits, often working handinhand with law enforcement to shut down suppliers.Some companies have inhouse departments to fight counterfeiting. What ...more
Mass Court Sets Wc Stress Standard - September 28, 2006
In an appeal from a decision of the Industrial Accident Reviewing Board, the Massachusetts Appeals Court has set the standard of causation for purposes of receiving benefits for mental or emotional injuries under the workers compensation act. The ...more
Llc Operating Agreement Ambiguity Opens Court Door - September 26, 2006
The Delaware Supreme Court affirmed a lower court interpretation of the scope of an arbitration clause in an LLC agreement. It agreed with the conclusion that provisions in the LLC agreement addressing injunctive relief and judicial dissolution ...more
