201710.260

New Washington State Supreme Court Case: Updated Standard for Discrimination Claims and A Warning That Policies Can Modify At-Will Employment

From Helsell Fetterman On October 19, 2017, the Washington State Supreme Court entered its opinion in the matter of Mikkelsen v. Public Utility District No. 1 of Kittias County, et al.  In Mikkelsen, the female plaintiff sued her former employer (a utility district) for wrongful discharge based on gender and age discrimination, and failure to follow the…

201710.250

Wine Damage During Bottling Underscores Importance of Insurance

From Helsell Fetterman Wine is a very fragile product that can be damaged by heat, light, physical damage to bottles, or even during the bottling process itself.  The damage suffered by a Washington cult winery during bottling underscores the importance of obtaining proper insurance. Cayuse Vineyards recently sent an email to its customers informing them…

201709.130

Pro Tennis Player’s Outburst Provides Employment At-Will Lesson

Posted by Kenneth N. Winkler on September 5, 2017 Italian professional tennis player Fabio Fognini was suspended from the U.S. Open this week after he committed three separate unsportsmanlike incidents during his first–round loss. The most egregious outburst was cursing at the chair umpire and calling her a whore in Italian. I do not know…

201709.130

Federal Judge Strikes Down FLSA White-Collar Exemption Salary Test

THURSDAY, AUGUST 31, 2017 BREAKING: federal judge strikes down FLSA white-collar exemption salary test Ding, dong, the DOL’s salary test for white collar exemptions is dead (sort of). A Texas federal judge has held that the Department of Labor improperly used a salary-level test to determine which white-collar workers are exempt from overtime compensation. In…

201709.130

Court of Appeals Blocks Uber, Lyft and Other For-Hire Drivers from Unionizing

By Onik’a Gilliam / August 31, 2017 On August 29, 2017, the U.S. Court of Appeals for the Ninth Circuit temporarily blocked implementation of a City of Seattle ordinance that would allow Uber and Lyft and other for-hire drivers to unionize and negotiate contract terms.  The injunction follows a district court judge’s order dismissing one…

201708.310

Top 3 Considerations when Volunteering your Company’s Drones

From Berman Fink Van Horn During an emergency, such as hurricane Harvey in Texas, the Federal Aviation Administration (FAA) puts Temporary Flight Restrictions (TFR’s) in place that prohibit flights of drones (manned or unmanned aircraft) within the geographic boundaries designated in the TFR.  Only specially authorized flights can take place within the area covered by the TFR, and…

201708.290

An Attendance Love Story

From Meyers, Roman, Friedberg & Lewis 14 years ago today, my wife and I married. The ceremony started at 11 am, and by 10:55 I was nervous. Not your normal, “I’m about to get married,” nervous, but the, “What the hell, we start in 5 minutes and my bride-to-be isn’t here yet” nervous. It was…

201708.290

State Law Claims Against Beneficiaries Not Barred by ERISA Preemption

From Berman Fink Van Horn A participant in an employee benefit plan, including a retirement plan or employer provided life insurance program, ordinarily has the right to designate a beneficiary of their account (or policy). It is reasonable to expect that the participant’s intent as to the beneficiary would be honored. However, uncertainty may arise…

201708.230

Be Proactive: What to Look for in Cyber Insurance

From Berman Fink Van Horn At Berman Fink Van Horn P.C. we just completed a full-scale review of our Cyber Insurance Policy. We have had Cyber Insurance for a few years but our recent full-scale review was in part based on a meeting I attended at which Suzanne E. Spaulding spoke about cyber security. Suzanne is the…

201708.230

NLRB Offers Rare Win for Employer Confidentiality Policy

From Meyers, Roman, Friedberg & Lewis It’s been a rough few years for workplace policies at the NLRB. From communication policies, to social media policies, to conduct policies, to confidentiality policies, the NLRB has, time and again, struck down facially neutral, garden variety employer policies as overly restrictive of employees’ section 7 rights to engage in protected concerted activity under the National Labor…

201708.180

Do I Really Need a Survey?

From Berman Fink Van Horn “Do I really need a survey?” is a question I hear from time to time from clients purchasing commercial real estate, most often in the context of the purchase of operating space they are leasing or from first-time purchasers of commercial property. Generally, these clients believe that they either know…

201708.160

HIRING A BROKER: TERMS OF THE ENGAGEMENT

From Berman Fink Van Horn In prior posts, I highlighted general concepts associated with retaining a real estate broker professional, and described different types of engagements.  Now, let’s review some of the features often present in a broker engagement agreement. Duration:  How long is your Broker being hired to represent you in the purchase, sale,…

201708.160

How much wasted work-time is too much?

From Meyers, Roman, Friedberg & Lewis According to a recent survey conducted by OfficeTeam, on average, employees spend 8 hours per workweek on non-work activities. What does this non-work time look like? Personal emails: 30 percent Social networks: 28 percent Sports sites: 8 percent Mobile games: 6 percent Online shopping: 5 percent Entertainment sites: 3 percent Moreover,…

201708.150

ETHICS OF ADJUSTING YOUR ASSETS TO QUALIFY FOR MEDICAID

From Tuesley Hall Konopa Whenever I tell people that I’m an elder law attorney, I usually get asked one question – “How is it ethical for people to take advantage of loopholes in the rules and protect their assets while qualifying for Medicaid to pay for nursing home care costs? Recently, I was asked this…

201708.150

Does a LinkedIn request violate a non-solicitation agreement?

From Meyers, Roman, Friedberg & Lewis In Bankers Life and Casualty Company v. American Senior Benefits (Ill. Ct. App. 8/7/17), Bankers Life sued a former sales manager, Gregory Gelineau, for violating the following non-solicitation agreement after he jumped ship to American Senior Benefits, a competitor: During the term of this Contract and for 24 months thereafter, within the…

201708.150

Destroying Evidence: Taylor Swift Says “Shake it Off”

From Berman Fink Van Horn This blog has periodically highlighted the consequences of destroying evidence and the role forensics play in litigation.  Last week’s blog entry discussed the contours of third parties’ obligations to preserve relevant evidence. For this week’s spoliation lesson, we turn to a dispute involving pop culture icon Taylor Swift. Taylor Swift had bad blood with a…

201708.140

When you discover that you employ a Nazi

From Meyers, Roman, Friedberg & Lewis In the wake of Friday and Saturday’s horrific, evil events in Charlottesville, the the twitter account YesYoureRacist posted many riot photos and identified many of the rioters. And, as a result, some have lost their jobs. Question: Does one participating in a Nazi rally enjoy any job protections from said participation? Answer: Absolutely…

201708.100

Supplement to Arizona Employee Earned Paid Sick Time

From Margrave Clemins On July 7, 2017, the Industrial Commission issued a Notice of Supplemental Proposed Rulemakings. Such Notice states that employers who “front load” employee earned paid sick time (EPST) are not required to carry-over unused EPST each year. Front loading is when an employer provides its employees with immediate use at the beginning…

201708.100

Apparently the labor rights of strikers trump the non-harassment rights of employees

From Meyers, Roman, Friedberg & Lewis There exists only one workplace environment in which a white employee can keep his job after yelling the following at a group of African-American employees. “Hey, did you bring enough KFC for everyone?” “Go back to Africa, you bunch of f***ing losers.” “Hey anybody smell that? I smell fried…

201708.090

Turning to a 3rd party for evidence in a lawsuit? Ensure it’s available

From Berman Fink Van Horn Whether a matter involves divorce, criminal matters, contracts or anything in-between, the strength of a case or defense is largely dependent on the evidence presented by each party.  Yet, in some situations, a party does not possess the evidence it needs and must rely on a third-party to ensure that…

201708.020

Is Joint Employment the Issue That Unites our Divided Government?

From Meyers, Roman, Friedberg & Lewis I cannot recall a time when our government has been more divided across ideological and party lines. (I don’t count the early 1860s, because that’s not a time a can remember.) Thankfully, an issue has come along to build a peace bridge over the streets and through the halls…

201708.010

Don’t Get Caught With Incomplete Terms of Use

From Berman Fink Van Horn A recent unpublished decision by the Eleventh Circuit Court of Appeals serves as a strong reminder of the importance of clear and complete terms of use for digital services, and presenting those terms to users early and often. In EarthCam, Inc. v. OxBlue Corp., et al., 2017 WL 3188453 (11th Cir. 2017),…

201707.280

Business Judgment Rule in Georgia Strengthened By New Law

From Berman Fink Van Horn On July 1, 2017, a new Georgia law, which amends both the Georgia Business Corporation Code and the Financial Institutions Code of Georgia, came into effect. The new law strengthens the business judgment rule applicable to officers and directors of Georgia corporations, including officers and directors of financial institutions. The…

201707.270

Treat harassment by non-employees no differently than harassment by employees

From Meyers, Roman, Friedberg & Lewis Consider the following lawsuit the EEOC filed against a California senior-care provider: The civil rights agency found that Rashon Sturdivant, an experienced care provider, faced daily harassment, including racially offensive remarks about “brown sugar” and “black butts,” requests to perform sexual acts, and lewd comments about her body. The client also…

201707.250

What’s the statute of limitations on a breach of fiduciary duty claim?

From Berman Fink Van Horn Under Georgia law, certain relationships give rise to fiduciary duties on the part of individuals.  An individual with a fiduciary duty must exercise loyalty and utmost good faith towards the person to whom the duty is owed.  Certain employees and officers can owe fiduciary duties.  Georgia courts have held that employees vested…

201707.250

Trade Secrets: What Are They And How Do You Protect Them?

From Margrave Celmins Every business has some trade secrets, right? But what are they and are they being properly protected are key questions that every business owner must recognize and face. Sometimes, the results are not quite what was expected, much to the dismay of the business owner. Arizona is a party to and has…

201707.190

The (high) times they are a changin’: medical marijuana and disability discrimination

From Meyers, Roman, Friedberg & Lewis In what is believed to be the first decision of its kind, the Massachusetts Supreme Judicial Court has allowed an employee to pursue a disability discrimination claim based on the use of medical marijuana. Christine Barbuto suffered from Crohn’s Disease, and legally used medically prescribed marijuana in the evening…

201707.190

Employers & Wimbledon:5 Must Do’s to Protect your Company’s Reputation

From Berman Fink Van Horn As a Roger Federer fan, it is hard to claim a bigger story at Wimbledon 2017 than his feat of winning his record breaking 8th men’s singles title. But from a human resources standpoint, I was intrigued by the drama surrounding Australian professional tennis player Bernard Tomic’s meltdown.  Corporate sponsor, HEAD…

201707.190

COMPULSORY ARBITRATION – PART IV: PREDICTIONS & AWARDS

From Margrave Celmins Despite the automatic right to appeal any arbitration ruling, compulsory arbitration does have its uses.  In reasonably common cases involving minor injuries, car crashes and the like, arbitration can be useful, particularly when an insurance company has accepted the defense of the case.  Insurance companies defend so many cases, and so many…

201707.140

Personal Injury and Property Damage with Drones

Although drones (aka unmanned aircraft systems) can come in small sizes (e.g., https://www.indiegogo.com/projects/micro-drone-3-0-flight-in-the-palm-of-your-hand-drones-gadgets–4#/), the propellers on drones and flying drone parts can inflict serious, sometimes irreparable damage.  The eyes seem particularly vulnerable. Below is a list of some known injuries and the legal consequences.

201707.140

Is an Invitation to Connect on LinkedIn a Solicitation?

We recently discussed the unsettled area of customer non-solicitation covenants in the age of social media, but what happens when an employer alleges that a former employee used social media specifically to target and recruit ex-colleagues?

201706.300

New Power of Attorney Requirements in Georgia Take Effect July 1, 2017

On July 1, 2017, Georgia’s Uniform Power of Attorney Act (“UPOAA”) will become effective. Any power of attorney executed before July 1, 2017, will remain in effect and need not comply with the UPOAA. A power of attorney executed on or after July 1, 2017, must comply with all the requirements of the UPOAA. Unless…

201703.140

Inclement weather policies should prioritize safety over productivity

Snow day! Norah went to bed with PJs on backwards last night (and received her wish; now please use your time wisely to work on homework). Donovan is going to be pissed because tonight’s Mathmagic night at school (which he was really looking forward to) will be cancelled. And me? I’m enjoying some flexibility by working from the comfort of my kitchen island. If the storm forecast holds as predicted, however, I’ll be giving myself lots of extra travel time tomorrow morning for a court appearance. #lawyerlife

201703.140

PROBATE, ESTATE PLANNING AND GUARDIANSHIP

The 2017 federal exemption against estate and gift taxes is $5,490,000 per person. The current federal estate tax rate 40% for estates which exceed the exemption amount. The federal gift tax annual exclusion remains $14,000 per person per donor. The federal generation-skipping transfer tax exemption was also increased to $5,490,000 per person.  The State of…

201703.130

NO PUNITIVES UNDER GCSPA

The Georgia Supreme Court recently held that the Georgia Computer Systems Protection Act (“GCSPA”) does not authorize an award of punitive damages. The GCSPA is a criminal statute that also allows for civil remedies for computer theft, computer trespass and other computer related misconduct. In Lyman v. Cellchem International, Inc., 2017 WL 279514 (2017), the Georgia Supreme…

201703.130

MOTION FOR SUMMARY JUDGMENT – PART XII: OFFER OF JUDGMENT

If you receive an Offer of judgment and you are not inclined to accept it, what should you do?  It is important that you timely object, if there are any grounds to object.  This will allow the Court to deny a motion to sanction you in the event the final award after trial is less…

201703.130

Beware Trademark Registration and Fee Scans

While mail scams are not a new issue for businesses, more and more of our business and individual clients with federally registered trademarks have been asking us for advice on how to handle the numerous unsolicited letters and/or emails they have been receiving lately regarding their marks.  If you or your business owns a federally…

201703.130

SCOTUS to review NLRB ban on class-action waivers

One of the biggest issues on the NLRB’s hit list over the past few years has been class-action waivers. In D.R. Horton, a 3-2 majority of the Board held that an arbitration agreement which requires employees to waive their right to collectively pursue employment-related claims in all forums (i.e., by giving up their right to file or join class or collective actions) violates employees’ rights under the National Labor Relations Act to engage in protected concerted activity.