Gibbons Law Alert

Gibbons Law Alert Blog

Sixth Circuit Upends EEOC Victory in Telecommuting Case

On May 13, 2015

We previously reported on a decision by a panel of the United States Court of Appeals for the Sixth Circuit in Equal Opportunity Employment Commission v. Ford Motor Co., in which the panel held that the EEOC was entitled to a jury trial on its claim that Ford discharged an employee in violation of the Americans with Disabilities Act (“ADA”) after it denied her request to work from home 4 days per week as an accommodation for her irritable bowel syndrome (“IBS”). In an en banc decision the Sixth Circuit has now reversed the original panel’s decision, concluding that the district court properly granted Ford’s motion for summary judgment on the ADA claim. In so ruling, the Court credited Ford’s business judgment that the employee’s presence in the work place was an essential function of her job, and thus her request to telecommute four days per week was not a request for a reasonable accommodation to which Ford had to accede. The EEOC had heralded the original panel’s decision as a major victory. The Sixth Circuit’s en banc reversal of that decision should be cause for equal celebration by employers.

NYC Law Limiting Employer Use of Credit Checks Signed by Mayor

by Gibbons P.C.

Posted in Privacy and Data Security

On May 11, 2015

On May 6, 2015, New York City Mayor, Bill De Blasio, signed legislation proposed by the City of New York likely to limit an employer’s ability to use credit checks when making hiring and retention decisions. The law goes into effect 120 days from May 6, 2015, or on September 3, 2015. We analyzed the new law in detail in a recent blog.

Another Patent Reform Bill Targets Frivolous Demand Letters

by Gibbons P.C.

Posted in Patent / USPTO

On May 11, 2015

Last week, the House Energy and Commerce Committee approved yet another patent reform bill to curtail misleading and frivolous demand letters sent by patent assertion entities (also known as “patent trolls”). The legislation, approved by a vote of 30 to 20, is known as the Targeting Rogue and Opaque Letters Act, or TROL Act (H.R. 2045). This bill aims to protect businesses from frivolous demands while preserving the ability of patent holders to legitimately protect their intellectual property. The overall goal is to curtail “certain bad faith communications in connection with the assertion of a United States patent [that] are unfair or deceptive acts or practices, and for other purposes.”

NYC Law Expected To Change Employer Use of Credit Checks

by Gibbons P.C.

Posted in Privacy and Data Security

On May 7, 2015

The City of New York likely will tighten the reins on an employer’s ability to use credit checks when making hiring and retention decisions. The City Council approved a bill that would amend the New York City Human Rights Law, § 8-102 et seq. (“NYCHRL”) to prohibit an employer, labor organization, employment agency, or their agents from using an applicant’s or employee’s “consumer credit history” for employment purposes or to otherwise discriminate against an applicant or employee based on consumer credit history. If the legislation is signed by the Mayor – on whose desk the proposed bill now sits – it will go into effect within 120 days after the Mayor signs.

The Hurdles to Register a Scent as a Mark

by Paolo A. Strino

Posted in Trademarks

On May 6, 2015

Registrations of non-traditional trademarks are uncommon, and often discussed only among legal scholars and in academic papers. A recent Wall Street Journal article, however, called attention to a growing trend in trademark law: registration of scents and fragrances. The article describes the efforts of CESI Chemical, Inc., a producer of solvents for the fracking industry, which filed an application to register the orange scent imbued in its chemical additives for its hydraulic fracturing fluid.

Rule Amendments Update: U.S. Supreme Court Adopts Proposed Amendments

by Gibbons P.C.

Posted in E-Discovery: Legal Decisions and Court Rules

On May 5, 2015

On April 29, 2015, the United States Supreme Court adopted, without changes, the proposed amendments to the Federal Rules of Civil Procedure. (For background information on the proposed amendments, see our previous blog posts from September 25, 2014, June 19, 2014, May 27, 2014, February 10, 2014, and May 6, 2013. Absent action by the United States Congress, the proposed amendments will take effect on December 1, 2015.

U.S. Supreme Court Requires EEOC to Attempt Conciliation Before Suing

by Richard S. Zackin

Posted in Discrimination

On May 5, 2015

In Mach Mining LLC v. Equal Employment Opportunity Commission, the United States Supreme Court was presented with the issue of whether the EEOC must attempt to conciliate an employer’s alleged violation of Title VII of the Civil Rights Act of 1964 before initiating a lawsuit against the employer and, if so, to what extent a court may review those conciliation efforts. The Court concluded that the EEOC must attempt to engage in conciliation, but that the scope of a court’s review of the EEOC’s efforts is narrow. Post-Mach Mining, an employer that attempts to challenge a lawsuit brought by the EEOC on the grounds that the agency’s conciliation efforts were insufficient will be fighting an uphill battle.

NLRB General Counsel Issues Memorandum Regarding “Quickie” Election Rule

by Gibbons P.C.

Posted in Labor

On April 29, 2015

On April 14, 2015, the National Labor Relations Board’s “quickie” election rule took effect (despite pending lawsuits challenging the legality of the rule). Earlier this month, the Board’s general counsel issued a 36-page memorandum to provide guidance on the new rule, which we summarize in some detail below in an effort to help employers navigate these new waters. The memorandum serves as a reminder that non-union businesses should consider implementing a labor relations strategy now so they can effectively, lawfully, and quickly respond to a notice of petition for election if they receive one under the new rule. An in-depth discussion of the general counsel’s memorandum is provided. The highlights are as follows:

Senate Introduces STRONG Patents Act and Focused Patent Reform

by Christopher H. Strate

Posted in Patent / USPTO

On April 28, 2015

Recently, Senators Chris Coons, Dick Durbin, and Mazie Hirono introduced an alternative patent reform legislation to the Innovation Act of 2015. This bill, known as the as Support Technology and Research for Our Nations Grown Patents Act (“STRONG Patents Act”), aims to strengthen the rights of patent holders. According to Sen. Coons, “[t]he STRONG Patents Act includes targeted thoughtful reforms to combat abuse where it’s prevalent while ensuring our rich innovation ecosystem remains vibrant.” The goal is to “move past the false premise that the only way to deter ‘patent troll’ abuses is to enact sweeping reforms that weaken patent protections for everyone . . . . and [instead we aim] to narrowly target and deter abusive troll behavior while preserving the ability of legitimate patent holders to protect their innovation,” said Senator Durbin.

Third Circuit Holds Non-Signatories May Be Bound By Forum Selection Clause

by Gibbons P.C.

Posted in General Litigation

On April 22, 2015

In Carlyle Investment Management LLC v. Moonmouth Co., the United States Court of Appeals for the Third Circuit concluded that a non-signatory to an agreement can be bound by a forum selection clause where the forum selection clause is valid, the non-signatory is a third-party beneficiary of the agreement or closely related to the agreement, and the claim arises from the non-signatory’s status related to the agreement.