In House

In House - The FindLaw Corporate Counsel Blog


We recently reported on the Alabama Supreme Court decision allowing brand-name drug manufacturers to be held liable for injuries sustained from generics. The decision has prompted a whole host of hand-wringing and a parade of horribles from places like The Wall Street Journal and Claims Journal. The three separate dissents in the case also insisted that the ruling was anti-business and would lead to more lawsuits.

If you're the GC of a drug company, should you be worried?

Independent contractor or actual employee? An employee gets Fair Labor Standards Act protections, including overtime and benefits. Independent contractors get, well, their salary. The appeal of contractors then, is obvious for big companies like FedEx.

Unfortunately, as FedEx just learned, often it's not the label that matters -- it's the substance of the relationship. The Ninth Circuit just held that FedEx drivers, which are labeled "independent contractors," aren't independent at all. FedEx determines their route, the color of their van, their uniform, and even their appearance -- a relationship that, in practice, looks a lot more like an employer-employee arrangement.

Section 7 of the National Labor Relations Act says employers can't prohibit employees from talking about unions, working conditions, or pay. Section 8 prevents employers from punishing employees for these activities.

Employees of Triple Play Sports Bar and Grille in Watertown, Connecticut, took to Facebook to complain that Triple Play's co-owner and accountant, Ralph DelBuono, incorrectly calculated the employees' state tax withholding, and as a result, they owed the state money. Two days later, all the employees who participated in the conversation were fired.

In a decision from the National Labor Relations Board, two panel members found that employees were engaging in protected activities and were wrongly terminated in violation of the Act.

Last week, Major League Baseball had its first protest upheld in more than two decades. The San Francisco Giants protested a called game, which the Chicago Cubs won 2-0 after five innings of play, thanks to a rain-out due to the Cubs' grounds crew's inability to pull the tarp over the field in time. (The Giants still lost, 2-1, when the rest of the game was made up.)

To television viewers, and the hometown Cubs fans who booed the grounds crew, it appeared that they were short-handed. And despite Major League Baseball itself stating that the tarp malfunction was caused by "the failure to properly wrap and spool the tarp after its last use," an alternate cause soon emerged after a local paper spoke with club insiders: Obamacare.

What happens when you learn about a potential whistleblower -- someone who's gone through an internal process to report wrongdoing? Do you tense up a little bit? Feel tempted to release the hounds? Want to circle the wagons?

Of course, you know that retaliating against a whistleblower can subject your company to penalties. Everybody does it, though. Ross Brooks, a partner with Sanford Heisler's whistleblower protection practice, told Inside Counsel that companies retaliate about nine times out of 10. Yet, there are ways to deal with whistleblowers that don't involve a pink slip.

Here are a few courses of action in-house counsel may want to consider:

Is your company engaging in false advertising? Are you sure? When was the last time someone from the marketing department walked through your door to make sure they were on the up-and-up?

Maybe it's time you checked. The Federal Trade Commission is investigating "outlet stores" -- those low-priced colonies of large clothing labels like Saks, J. Crew, Gap, and so on -- that live in outlying outlet malls around the nation.

Last year, in the wake of two well-known startups (Uber and Square) clashing with local laws and regulations, we asked who was at fault -- the disruptor or the disrupted, the startups or the state?

Both startups, but especially Uber, had run headfirst into local ordinances, regulations, and cartels bent on preserving the status quo, but also hadn't done their homework or made an effort to play the political game before entering the market and upsetting the (legal) status quo -- easier to get forgiveness than permission, we suppose.

Now, Uber has pulled a U-turn and hired a noted behind-the-scenes political figure to glad-hand politicians: David Plouffe, Obama's 2008 and 2012 campaign manager.

Earlier this week, the Ninth Circuit ruled that Barnes & Noble couldn't enforce an arbitration agreement against a customer. The only notice of the arbitration clause was buried in an agreement the user had to find by clicking a link to it on Barnes & Noble's website.

These agreements -- called "browsewrap" or "clickwrap" agreements -- are popular because they bury the lede in fine print -- which the Ninth Circuit said wasn't OK.

In order to protect the enforceability of your website terms of service, here are five alternatives to "clickwrap"/"browsewrap" agreements that should past the Ninth Circuit's muster:

Littler Mendelson, the largest global employment law practice, recently released a report in which it documents the "swelling tide" of class actions brought against employers under the Fair Credit Reporting Act (FCRA).

In the report, it discusses why the number of FCRA class actions is growing, and what your company can do to protect, or defend, itself from a class action. Here's a brief summary of the report, which you can read in full by clicking here.

Last week, we looked at a Gallup study that looked at the effects of "stay[ing] connected to the workplace outside of their normal working hours" and found that it was a "somewhat or strongly positive development," according to 79 percent of employees surveyed.

However, when the Harvard Business Review read those results in the context of an earlier Gallup report, "State of the American Workplace," HBR concluded that "workers will view their company's policy about mobile technology through the filter of their own engagement."

So that got us thinking, how can your company increase employee engagement? And, does it need a Chief Happiness Officer to effectuate that change? Let's find out.