Businesses Need Not Accommodate An Employee Who Cannot Perform "Essential Functions" of Their Job

Posted by Edward Sharkey on Thu, 06/06/2013 - 04:00

Businesses continue to struggle with issues relating to the Americans with Disabilities Act (the "ADA"). One very gray area is whether the parts of a job that a disabled employee cannot perform are "essential functions" of the job. If a disabled employee cannot perform the essential functions of a job, an employer does not have to retain or accommodate him.

In a recent case brought under the ADA, the 8th Circuit Court of Appeals reiterated one of the most important protections for employers under the act: in order to succeed on a discrimination claim under the ADA, an employee must prove, among other things, that she can perform the “essential functions” of the job.

The Government Says a Food Allergy May be a "Disability"

Posted by Edward Sharkey on Thu, 05/23/2013 - 04:00

Under some circumstances, food allergies may rise to the level of a disability for purposes of the Americans with Disabilities Act (the "ADA"). This was the holding in a recent case involving the U.S. Department of Justice and Lesley University, a private school with campuses in Boston and Cambridge, Massachusetts. The dispute came about after a group of students with Celiac disease (a disorder which can be triggered by the consumption of gluten) made a complaint to the DOJ in 2009.

Could a Business be Liable for a Data Breach Even if There is No Harm?

Posted by Edward Sharkey on Tue, 05/14/2013 - 04:00

When a company stores its customers’ personally identifiable information (“PII”) in an electronic database, the company has a duty to guard that information with reasonable care. PII can be a name, address, phone number, Social Security number, or other information by which an individual may be identified or contacted. Businesses have been sued when the inadvertent dissemination of customers’ PII has led to identity theft.

In any lawsuit, the plaintiff must prove causation and damages. That is, the data breach must be proven to be the cause of some harm suffered by the plaintiff. Courts have dismissed data breach lawsuits when the plaintiff can allege no more than that identity theft occurred shortly after the data breach. A new case in the 11th Circuit, however, has shown plaintiffs a novel way to pursue data breach lawsuits, even if they cannot prove damages.

Does the ADA Require Employers to Reassign Employees with Disabilities to Different Jobs?

Posted by Jeanine Gagliardi on Sun, 05/05/2013 - 04:00

In some circumstances, the ADA compels a business to reasonably accommodate an employee with a disability. It can be difficult for a business to determine whether a requested accommodation is "reasonable." For example, we recently posted about a dispute concerning the reasonableness of a request for medical leave.

Another request an employer may have to consider is one for reassignment to a vacant position that would otherwise be filled by a competitive hiring process. Unfortunately, the courts have not yet given employers consistent guidance on how to respond to such requests.

Crowdfunding Law Update

Posted by Edward Sharkey on Mon, 04/22/2013 - 04:00

Last week marked the one-year anniversary of the passage of the JOBS Act, which contained provisions intended to legalize equity crowdfunding in the United States. The celebration was blemished by the fact that the SEC’s rules are more than three months late, and until they are issued, equity crowdfunding remains illegal.

Wednesday morning, in perhaps the biggest development in equity crowdfunding since the JOBS Act, Mary Jo White was sworn in as the newest Chairwoman of the SEC. This is good news for crowdfunding advocates, small businesses, and startups.

Employer May Be Liable for Auto Accident Caused by Employee On Cell Phone

Posted by Jeanine Gagliardi on Wed, 04/17/2013 - 04:00

As the use of cell phones has become commonplace, so has the knowledge that it is dangerous to use a cell phone while driving. In many states, including Maryland, it is illegal to use a hand-held cell phone while driving. Maryland, like most other states, also made it illegal for drivers to text message. Although aware of the danger of cell phone use while driving, most employers have no policy against doing it while on the job. A verdict recently returned by a jury in Texas shows that such a failure exposes employers to liability.

Is My Logo Too Similar to My Competitor's?

Posted by Edward Sharkey on Tue, 04/09/2013 - 04:00

For the past 30 years, Ralph Lauren and the U.S. Polo Association (“USPA”) have been fighting over the logo of a polo player. In 1984, USPA won a judgment giving it the right to sell merchandise with a “double horsemen” logo. The logo is similar, but not identical, to Ralph Lauren’s trademarked polo player logo. In that case, the judge ruled that the word “polo” was generic enough for use by competitors, as long as USPA did not emphasize it in its marketing or design. He also ruled that USPA’s logo was distinct enough from Ralph Lauren’s that it would not cause confusion as to the source of the product or service offered.

Without Litigation Hold, A Business Can Be Sanctioned Even Without Loss of Data

Posted by Edward Sharkey on Sun, 03/24/2013 - 04:00

The importance of implementing a proper litigation hold when a business has notice that a lawsuit is likely was highlighted again in a recent decision (pages 17-18) issued by a Federal District Court in New Jersey. In the case, the judge awarded expenses to the plaintiff because the defendant failed to properly implement a litigation hold once the lawsuit started. The defendant's errors included failing to disable the automatic delete function on its email server and not preserving copies of its backup tapes.

The ADA Does Not Require Businesses to Give Indefinite Leave

Posted by Jeanine Gagliardi on Mon, 03/18/2013 - 04:00

In some circumstances, federal law requires an employer to reasonably accommodate an employee with a disability. It can be difficult for an employer to determine what "reasonable" means. The United States District Court for the District of Maryland recently opined that an indefinite period of medical leave is not a reasonable accommodation. Accordingly, the ADA does not require an employer to grant an employee with a disability an indefinite period of leave.

Crowdfunding for Startups: SEC Rules Hopefully Coming Soon

Posted by Edward Sharkey on Fri, 03/08/2013 - 05:00

When Congress legalized equity crowdfunding for startups and small businesses in the 2012 JOBS Act, it intended to give small businesses access to new investors and a viable substitute for debt financing. In addition to the excitement the law created in small businesses and startups, it sparked a lot of public commentary.

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