Gibbons Law Alert
A Family and Medical Leave Act (“FMLA”) plaintiff’s leave was proven fraudulent through her Facebook postings, resulting in summary judgment for her employer, dismissing her complaint. The Federal District Court for the Eastern District of Michigan concluded that the employer’s reason for her termination was legitimate and unrelated to her exercise of FMLA rights.
In its recent decision in SBRMCOA, LLC v. Bayside Resort, Inc., the Third Circuit clarified when challenges to a contract containing an arbitration clause must be arbitrated and when they must be decided by a court. Emphasizing that the relevant distinction is between challenges to a contract’s validity, which are subject to arbitration, and challenges to a contract’s formation, which generally are not, the Court concluded that a claim that a contract was coerced must be arbitrated, but a claim that a contract was beyond a signatory’s authority or ultra vires requires judicial determination.
An Arizona federal court has determined that default judgment, an adverse instruction and monetary damages are proper remedies for in-house counsel’s failure to take the proper steps to preserve potentially relevant evidence after receiving notice of potential litigation. In Day v. LSI Corporation, Docket No. CIV-11-186-TUC-CKJ, the United States District Court for the District of Arizona granted, in part, the plaintiff-employee’s motion for entry of a default judgment and imposed additional sanctions against the defendant-employer, concluding that the employer’s in-house attorney had a “culpable mind” and acted willfully in failing to carry out the company’s preservation obligations.
David J. Freeman, a Director in the Gibbons Real Property & Environmental Department, will speak at the upcoming Strafford webinar, “New Developments in Brownfield Redevelopment,” on Tuesday, March 19, 2013. Recently, brownfield development has grown more complex, creating new challenges on top of the pre-existing federal, state and local legal and regulatory requirements and permitting approvals. Mr. Freeman and his fellow panelists will discuss “hot topics” in brownfield redevelopment, including: Bona Fide Purchaser Requirements After the Ashley II Decision; Vapor Intrusion; Brightfields; Changes in Land Use; Financing; Environmental Justice.
On February 7, 2013, the Trademark Trial and Appeal Board affirmed the refusal to register the mark, STOP THE ISLAMISATION OF AMERICA, for “providing information regarding understanding and preventing terrorism” on the basis that the mark “may disparage or bring into contempt or disrepute persons, institutions, beliefs or national symbols.” The registration of disparaging marks is explicitly prohibited by Section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a).
The Obama Administration recently released a report outlining a new strategy to combat the theft of U.S. trade secrets, by ramping up business, diplomatic, law enforcement and legislative efforts to protect this vital category of intellectual property. The “Administration Strategy on Mitigating the Theft of U.S. Trade Secrets” included inputs from the Departments of Commerce, Defense, Homeland Security, Justice, State, Treasury, the Office of the Director of National Intelligence and the Office of the United States Trade Representative.
Employee complaints concerning discrimination and harassment occur in nearly every workplace. Susan L. Nardone, a Director in the Gibbons Employment & Labor Law Department, will serve as a panelist for the upcoming NAWL webinar, “Avoiding the Pitfalls that Cost: Highlighting Best Practices in Labor and Employment Internal Investigations,” taking place on Wednesday, February 27, at 11:00 am. This webinar will focus on how to handle common, yet complex, issues likely to arise during the internal investigation of an employee complaint
In U.S. v. Hamilton, the United States Court of Appeals for the Fourth Circuit found that a husband who sent messages from his work email account to his wife, yet took no steps to protect the sanctity of those emails, waived the marital communications privilege, thus subjecting the emails to disclosure during discovery. This case serves as an important reminder that employees do not necessarily enjoy an expectation of privacy in the emails they send from their work accounts or while using their employers’ computers.
On February 6, 2013, the United States Department of Labor (DOL) published final regulations that amend the Family and Medical Leave Act’s (“FMLA”) military leave provisions and eligibility requirements for pilots and flight crews. Other changes impacting the minimum increments of time allowable for measuring FMLA leave and recordkeeping requirements are also part of the final regulations. The new regulations take effect on March 8, 2013, giving employers only a few weeks to ensure that their policies and forms are updated.
In addition to the controversial and much-litigated Individual Mandate, the Patient Protection and Affordable Care Act of 2010 (“ACA”) includes an equally controversial (though not quite as heavily litigated) “Employer Mandate.” The Employer Mandate can be found in new section 4980H of the Internal Revenue Code. Effective for plan years beginning in 2014, “applicable large employers” will face a choice. They must either (i) offer substantially all (at least 95%) of their full-time employees (employees working on average 30 or more hours per week) and their non-spousal dependants “affordable” health insurance providing “minimum essential coverage” and “minimum [actuarial] value” or face potential penalties. If such coverage is not offered penalties apply if any of their full-time employees qualify under the ACA for a premium tax credit or cost-sharing reduction in connection with the purchase of health insurance.