Maryland Business Law Blog

Employers Take Note: EEOC Announces New Priorities

Posted by Edward Sharkey on Mon, 12/03/2012 - 06:41

The Equal Employment Opportunity Commission (“EEOC”) calls itself “the nation’s…chief promoter of equal employment opportunity.” It is a law enforcement body with statutory authority to enforce anti-discrimination laws, including the Civil Rights Act of 1964 and the Americans with Disabilities Act. With a few exceptions, the anti-discrimination laws enforced by the EEOC generally apply to businesses with 15 or more employees. The EEOC periodically gives guidance on where it expects to direct its focus going forward. The guidance is helpful to businesses in managing their affairs.

The EEOC recently issued a draft Strategic Enforcement Plan for fiscal years 2012-2016. Congress requires entities like the EEOC to periodically develop and publicize strategic plans. The purpose of the EEOC's strategic plan is to establish the Commission’s priorities for the succeeding four years.

Although it recognizes that regional nuances, such as differences in population demographics, may present unique issues for each of its 53 field offices around the country, the EEOC identified five Nationwide Priorities in the plan. These priorities are:

1) Eliminating systemic barriers in recruitment and hiring;

2) Protecting immigrant, migrant and other vulnerable workers;

3) Addressing emerging issues, including disability bias claims, accommodations for pregnant women who are forced to take unpaid leave, and protection for lesbian, gay, bisexual and transgendered individuals;

4) Preserving access to the legal system; and

5) Combating harassment.

The EEOC established these priorities based on several criteria, including the number of employees and employers affected by each issue. The Commission intends to use several strategies, among them education, outreach, conciliation and litigation, to address the priorities.

The EEOC is expected to revise and publish a final strategic enforcement plan within the next few months. Employers should stay tuned for developments, as the EEOC’s priorities will offer insight into the conduct which would most likely expose employers to EEOC enforcement actions.

New Case Protects Businesses’ Copyrights in Employee-Generated Content

Posted by Edward Sharkey on Mon, 11/26/2012 - 05:00

A lot of businesses create content that they want to protect by copyright. This includes designers, architects, software developers, consultants, retailers, and publishers. In a recent decision issued by the 9th Circuit Court of Appeals, the court was asked to rule on complicated questions regarding the ownership of copyrights to software created by a business's employee.

In an opinion favorable to business, the court held that, under the Copyright Act, “absent a written agreement to the contrary, the employer is the author of a work made for hire.”

In 2001, a computer programmer was hired by a fledgling auto parts website. He added a new feature to a software program he created prior to his employment. The new feature facilitated “drop-shipping,” which was instrumental in the website’s growth.

In 2006, a larger auto parts company purchased the site, including its intellectual property and software. After the sale, the computer programmer, along with most of the other employees of the original website, took a job at the new parent company, where he made more modifications to his software.

The programmer left the company in 2008, and later wrote a similar program for use by a new, competing site. The parent company sued, arguing that it owned the copyright to the modified software.

The 9th Circuit ruled that the modifications to the software belong to the parent company if they were made “within the scope of [the programmer’s] employment.” The 9th Circuit adopted a three-part test – already in place in the 4th Circuit, of which Maryland is a part – to make this determination. Under this test, work is made within the scope of employment if it:

• is of the kind the employee is employed to perform;
• occurs substantially within the authorized time and space limits; and
• is actuated, at least in part, by a purpose to serve the employer.

This case will be sent back to the trial court for more proceedings to determine whether the facts of the case satisfy this test.

Of course, businesses can protect themselves from this uncertainty by drafting employment contracts stating that they own the copyright to work created by their employees. This case serves as a reminder that businesses should do so, especially when the copyright is important to their success.

Netflix Settles Website Accessibility Case

Posted by Jeanine Gagliardi on Tue, 11/06/2012 - 05:00

We recently posted about a discrimination case proceeding against Netflix in Massachusetts. The plaintiffs claimed that Netflix violated the Americans with Disabilities Act by failing to provide closed captioning for all of the content on its video streaming web site. Netflix recently settled the case without a trial, precluding judicial resolution of important issues that could have clarified the application of the ADA to websites.

The ADA requires places of public accommodation to comply with accessibility requirements and provide equal access to individuals with disabilities. As we discussed in the previous post, in ruling on a motion before trial, the U.S. District Court for the District of Massachusetts held that a web site like Netflix’s could be a place of public accommodation covered by Title III.

Netflix recently settled the Massachusetts case without a trial. In the settlement, Netflix agreed to, among other things:

(1) provide closed captioning for all of its streaming content by 2014;

(2) pay $755,000 for the plaintiffs’ attorneys’ fees; and

(3) by 2016, caption new content within 7 days.

As a result of the settlement, the court will not have the opportunity to decide the merits of the case. In addition, the government has still not issued guidance to businesses that operate solely online. This means that the state of the law concerning online business and the ADA remains unsettled, and entities that operate on the Internet should remain wary of maintaining sites that are not accessible to individuals with disabilities.

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