EEOC wins latest battle against employers using background checks in hiring.

Posted by Edward Sharkey on Fri, 10/24/2014 - 04:00

Chalk one up for the EEOC in its campaign to target employers for using background checks in hiring - all while the EEOC uses background checks to hire its own employees. In the latest case, the EEOC sued BMW for using criminal background checks to make hiring decisions. BMW sought discovery into the EEOC’s use of background checks on the theory that what the EEOC does in hiring should be evidence of what is reasonable. The magistrate judge overseeing discovery rejected BMW’s motion to compel.

Fed-Ex Case Highlights Risks of Classifying Workers as Independent Contractors

Posted by Edward Sharkey on Thu, 09/25/2014 - 04:00

A federal court in California recently rejected the independent contractor model that Fed-Ex has been using to employ about 2300 drivers in the state for years. Fed-Ex classified them as independent contractors. The drivers all agreed when they signed up. No matter. In every jurisdiction, the terms of the relationship determine the status, not the parties - even if everyone agrees.

The consequence? Fed-Ex is exposed to multiple millions of dollars of liability for all sorts of costs associated with having employees - overtime, health care, retirement benefits, workers comp, paid time off. Could it all have been avoided? The answer is complicated.

Can I Put Website Terms of Use In a Browse-wrap Agreement?

Posted by Edward Sharkey on Wed, 09/17/2014 - 04:00

Businesses may want to consider reviewing their website terms of use in light of a Ninth Circuit court ruling about browse-wrap agreements. In the case, the defendant retailer tried to compel a complaining consumer to arbitrate his claim according to the applicable website terms of use. The court refused to grant the motion because there was no evidence the plaintiff read or agreed to the terms of use.

Why Does Hershey Care if a State Politician Mimics Its Candy Wrapper in Ads?

Posted by Edward Sharkey on Fri, 09/12/2014 - 04:00

A lawsuit recently filed in federal court in Maryland highlights one of the largest burdens faced by trademark owners: protecting the mark. The Hershey Company filed the suit, alleging that campaign materials used by Senator Stephen S. Hershey, Jr., a candidate for state office, too closely mimic the famous chocolate maker’s candy bar packaging. Senator Hershey’s logo, like that of the chocolate bar, uses the word “Hershey” in white capital letters on a brown rectangular background. Beneath that, the candidate’s materials contain the text “state senate” in lieu of the candy’s “milk chocolate.”

The dispute dates back to 2002 when the Senator used campaign materials with a similar logo in a run for county commissioner. Back then, the Hershey Company asked the Senator to stop using the materials, and he did so. In 2010, he renewed use of the logo during a campaign for state delegate. The Hershey Company again asked the Senator to stop and, this time, he promised to change the font and color in the future. The newest incarnation of the Senator’s logo, the one at issue in the lawsuit, has a two-tone brown background in the pattern of the state flag underneath the “Hershey” imprint.

Early Detection and Response Plans Are Essential Elements of Cybersecurity Policies

Posted by Jeanine Gagliardi on Tue, 09/09/2014 - 04:00

If you read the news, you are probably accustomed to hearing about customer data being stolen by hackers. In 2008, hackers accessed Wyndham Worldwide Corporation’s computer system through a single computer that an employee in a franchised hotel had connected to the Internet. Just before Christmas 2013, hackers obtained the payment card data of tens of millions of Target shoppers. At the start of the New Year, craft store Michaels discovered that its customer data had been stolen.

Although businesses are required to take reasonable steps to protect the data in their control, most experts concur that breaches are unavoidable. Thus, the key elements of every cybersecurity policy should be protocols to detect and respond to breaches once they occur. If they had implemented or followed such protocols, Wyndham, Target, and Michaels could have avoided at least some of the harm resulting from their breaches. Follow the jump to read how.

The Fight to Expose Defamatory Online Reviews

Posted by Jeanine Gagliardi on Fri, 08/29/2014 - 04:00

It is easy for customers to post negative or even false reviews on the internet. Businesses that are criticized often wonder whether they can take legal action for defamatory online reviews. Unfortunately, it is not so easy. One of the biggest difficulties is learning the identity of anonymous online posters.

We recently wrote about different legal standards courts use when assessing the right of internet posters to remain anonymous. The standards are being defined currently, and the case we previously reported on is still being contested in Virginia’s highest court. Continue reading for the latest . . .

ADA: Is Lack of an Ability the Same as a Disability

Posted by Edward Sharkey on Fri, 06/27/2014 - 04:00

We’ve often posted about employers’ struggles with issues related to the Americans with Disabilities Act (“ADA”). One challenge businesses sometimes face is figuring out whether a particular employee should be deemed disabled.

Court Rules that General Liability Policy Does Not Cover Data Breach

Posted by Edward Sharkey on Mon, 06/16/2014 - 04:00

Insurance companies and businesses continue to battle over the scope of coverage for data breaches afforded by general liability policies. Insurance companies recently got a big win in litigation in New York.

The litigation arose out of a data breach suffered by Sony. A third party hacked into Sony’s PlayStation network and stole more than 50 million users’ personally identifying information, including credit card numbers. Potentially affected users filed more than 50 class action lawsuits against Sony.

Novel Social Media Campaign, Meet Some Old-School Federal Regulators.

Posted by Edward Sharkey on Wed, 06/04/2014 - 04:00

Many businesses use social media to advertise their product or service in creative ways. It can be cost-effective, and it can circumvent consumers’ learned resistance to traditional advertising. As the most inventive among us cross these communication frontiers, however, it is important to remember that some old fashioned government regulation still applies – even on the internet.

The Federal Trade Commission Act (“FTCA”) prohibits unfair and deceptive practices. It applies to traditional forms of advertising (like radio and print ads) as well as online marketing campaigns. A recent letter from the FTC to the shoe company, Cole Haan, concerning the company’s “Wandering Sole” Pinterest campaign made a lot of appreciative marketers say “neat”, and then “wait a minute; what?”

Clickwrap Non-Compete Agreement May be Enforceable.

Posted by Jeanine Gagliardi on Thu, 05/15/2014 - 04:00

As the internet grew and took over commerce, businesses and lawyers wrestled with how to make a contract without paper documents and signatures. Turns out, the law was very adaptable to new technology. You need to establish that both parties assent to the terms. But people can show their assent by virtually any means. A signed piece of paper was merely a customary way.

As paper has become less used, other means of showing assent have become more common. Terms of use posted on a website comprise a contract imposed on users. Users show their assent by continuing to use the website after some notice of the terms. This kind of contract is called a “browsewrap” agreement. Another type of contract is a “clickwrap” agreement. A clickwrap agreement requires some form of affirmative action by the user, such as clicking a button titled "I Agree".

A question that arises at the intersection of the law governing non-compete agreements and the law governing contracts is whether a clickwrap non-compete agreement is enforceable. A Delaware court recently held that it is.

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