Maryland Business Law Blog

Reminder: The Government Will Apply Its Old Rules to Your Modern Social Media Campaign

Posted by Edward Sharkey on Thu, 04/02/2015 - 04:00

We previously posted about the Federal Trade Commission’s effort to warn businesses that online marketing campaigns are subject to the same rules as traditional forms of advertising, like radio and print ads. Charges recently filed by the FTC against an advertising agency are a good reminder of this reality.

The charges arose out of the agency’s use of a hashtag to market its client’s product on Twitter. The agency was working for Sony to advertise the handheld game console PlayStation Vita. It ran television and radio ads that included #GAMECHANGER. The purpose of the hashtag was to induce consumers to read about the Vita on Twitter. The agency encouraged its employees to “generate buzz” about the Vita by tweeting about the product using #GAMECHANGER. Several employees did so from their personal Twitter accounts.

The FTC charged that the tweets were unlawfully deceptive because they did not contain a disclosure regarding the relationship between the employees and Sony. Without such a disclosure, the tweets falsely appeared to be independent reviews.

To resolve the charges, the advertising agency agreed to a consent order that requires it to, among other things, (a) remove the offending tweets, (b) for five years, make pertinent records available to the FTC for inspection, and (c) avoid posting additional tweets that do not contain a disclosure. The FTC is in the process of approving the proposed order. Once it becomes final, the agency would be subject to hefty monetary penalties for violations of it in the future.

Businesses need not be reticent to use online advertising. They need only be disclose the connection between themselves and their online campaigns. While this may hinder the ability to create viral buzz using social media, the government is interested that no one be misled. The FTC’s guidance for such disclosures is worth a read for any business that intends to use social media to market its products or services.

ADA Alert: Employers Continue to Struggle to Figure Out What Accommodations are Reasonable

Posted by Edward Sharkey on Wed, 03/18/2015 - 04:00

We frequently post about ADA lawsuits filed against businesses. Among the most commonly litigated issues is whether a particular employee’s request for an accommodation is reasonable. The issue is important because the law only requires “reasonable” accommodations for disabilities. In a recent opinion, a federal court reminds businesses that what is reasonable depends on fact-specific inquiries, not general rules.

This is not the first occasion on which a court emphasized that evaluating an accommodation is a fact-specific undertaking. Even so, the trial court in the D.C. case made its decision based upon a general rule rather than the actual circumstances of the matter before it.

The suit concerned a budget analyst suffering from depression, anxiety, and insomnia. As a result of these conditions, the analyst had difficulty maintaining the normal work schedule to which she was assigned, and she requested permission to work flexible hours. Despite the facts that (a) the analyst had informally worked a flexible schedule in the past and (b) a co-worker was permitted to work flexible hours, the employer denied the analyst’s request.

The analyst sued, claiming that the denial violated the Rehabilitation Act, the equivalent of the ADA in the context of federal employment. The trial court summarily rejected the analyst’s claim, holding that a flexible work schedule is never a reasonable accommodation.

The analyst successfully appealed. Contrary to a common perception among employers, workers, and even other courts that have decided similar issues in different contexts, the appellate court emphasized that whether a flexible work schedule is reasonable depends on the circumstances.

The fact-specific nature of the inquiry into whether an accommodation is reasonable is one of the reasons that employers have such difficulty avoiding ADA claims. Even though it will eventually be decided on the basis of its specific facts, the D.C. case does serve an important purpose for employers. It is a reminder that, each time an employee with a disability requests an accommodation, it is important to conduct a fact-specific inquiry into the reasonableness of the request.

Unpaid Interns Win Another Victory Against Employers

Posted by Edward Sharkey on Tue, 03/03/2015 - 05:00

We previously posted about the wave of litigation concerning the use of unpaid interns. It started with a lawsuit filed by individuals who interned on the set of the Fox Searchlight film “Black Swan.” In June 2013, a federal trial court in New York ruled in the interns’ favor, holding that they had been misclassified and were employees entitled to pay under federal law. Fox has appealed that ruling.

A month after the trial court’s decision in the “Black Swan” case, interns who worked on the set of NBC’s “Saturday Night Live” filed a similar claim for wages. In the most significant development since the June 2013 “Black Swan” decision, NBC has recently agreed to pay $6.4 million to settle those claims. As a result of the settlement, no court will have the opportunity to decide the merits of the NBC interns’ case.

Businesses continue to anxiously await a ruling in the “Black Swan” appeal. The appellate court is expected to decide whether courts assessing unpaid interns’ wage claims should defer to guidelines issued by the Department of Labor or apply some different standard. Although courts in jurisdictions other than New York will not be bound by the Fox appellate decision, and that decision would be subject to review by the Supreme Court, the pending decision will give valuable guidance to businesses.

In the meantime, the law concerning the use of unpaid interns continues to be unsettled, and businesses should remain wary of using them unless it is strictly in accord with the DOL guidelines.

Call Today (301) 657-8184

 Google+  View Edward Sharkey's profile on LinkedIn