In House - The FindLaw Corporate Counsel Blog

January 2013 Archives

How Do You Address Sexual Harassment Complaints?

When an employee at your company complains about sexual harassment -- and yes, it will eventually happen -- it's important to take swift action to investigate and address the claim. By doing so, you may be able to avoid or at least limit liability. If you ignore the situation, get ready to pay out the big bucks in a judgment or court settlement.

Let's look at two examples that demonstrate the wrong way and the right way to handle these situations. We'll start with what not to do.

Three Human Resources Polices to Revise for 2013

Twenty-five years ago, there was no social media. We were all saying “no to drugs.” Recognition of same-sex marriage was an issue outside of the national consciousness. And Flashdance was charming its way into our hearts.

Now, we’ve got Facebook and Nicki Minaj. President Obama has come out in favor of gay marriage. Just in the past decade, medical marijuana has spread to a smattering of states across the nation and legalized recreational use took hold in two states - Federal law notwithstanding.

We know “the times they are a-changin’” is a bit of a cliché, but in this case, it rings true. The question for you is: are your workplace policies changing along with them?

What Does the Recess Appointment Ruling Mean for Your Company?

Has your company been involved in a National Labor Relations Board (NLRB) decision in the last year? If so, that ruling may be in jeopardy thanks to last week’s recess appointment ruling.

In the unlikely event that you haven’t heard, the D.C. Circuit Court of Appeals ruled on Friday that recess appointments are limited to intercession recesses. Because three members of the NLRB over the last year were improper recess appointments, the Board lacked the requisite quorum. Without a quorum, the Board’s decisions are invalid.

Let’s briefly review this situation from start to finish, so you can decide what steps your company should take next.

What to Do When Your Company Gets 'Subway-ed' by a Frivolous Suit

When you’re great - haters gonna hate. It’s a fact of life. Dominate global fast food sales and a documentary gets made about the effect of gluttony and fries. Become one of the word’s largest fast food chains, and people will measure the length of your baguette?

Apparently so. Some guy in Australia measured his “footlong” and it came up short. (That’s what she said.) He shared the shortcoming with the Internet. A strange response ensued - instead of inspiring the obvious dirty jokes, others measured their buns and Subway got sued.

Sued? Over an inch of bread?

4 of 5 Circuits Agree: Federal Common Law Controls in FAA

If your company prefers arbitration to litigation -- and what company doesn't? -- then you're probably well-versed in the ways of the the Federal Arbitration Act. And you probably know that the FAA doesn't include a definition for "arbitration."

Congress left the courts with dirty work of figuring out what "arbitration" is, and the courts have turned to the common law for answers.

But should the courts look to federal common law or state law? In a matter of first impression, the Second Circuit Court of Appeals ruled this week federal common law should control.

SCOTUS Equitable Tolling Ruling Means More Work for GCs

There is a limit to the government's patience after all.

Tuesday, the Supreme Court announced in Sebelius v. Auburn Regional Medical that hospitals can't rely on equitable tolling to extend the time limit for appealing Medicare reimbursements. Instead, they must discover and appeal federal underpayments within three years of receiving a Notice of Program Reimbursement (NPR).

In a unanimous decision, the Court held that the Secretary of the Department of Health and Human Services (HHS) could limit the time for a Provider Reimbursement Review Board (PRRB) appeal to three years. The Court also concluded that the presumption in favor of equitable tolling does not apply to administrative appeals of the kind here at issue.

That means that in house counsel for Medicare providers must act quickly to correct the government's errors.

Small Steps to Reduce Chances of a Data Debacle

More than half of all in house counsel cite data security as their top concern, according to Inside Counsel. It's not a wonder that lawyers are freaking out - with the increase in online everything and move towards cloud computing, data breaches are seemingly an everyday occurrence.

Inside Counsel cites hackers' breaching of 63 PIN pads at Barnes & Noble stores late last year, leading to discontinuance of the use of PIN pads in 700 stores and even worse, a major PR hit.

Best Buy Bust: Why Counsel Should Review Everything You Do ... Ever

Hear the one about Best Buy? Someone drafted a Best Buy coupon offering $50 off of a purchase of $100 or more using a MasterCard. Exclusions included Sony stereos and a few other overly-specific items.

You know what wasn't included? Gift cards. Savvy shoppers flocked to the store and purchased hundreds of dollars in Amazon gift cards for half price, reports the Consumerist. Best Buy will presumably eat the loss.

Corporate Counsel or Corporate Conscience? Making the Distinction

As corporate counsel, you might occasionally find yourself in the role of corporate conscience. Like Jiminy Cricket with a J.D.

When a customer or client has a legal beef with your company, you have to start the process of resolving that conflict. On one hand, you want to do right by your customers. On the other hand, you have to consider the broader implications. Businesses may get a bad wrap for their laser-like focus on the bottom line, but they can also run into trouble when they are too eager to do the right thing.

Don't Let Interoffice Relationships Lead to Lawsuits

Do your company's policies on interoffice relationships effectively protect it from a nepotism or workplace harassment lawsuit? More importantly, how well do employees know and respect those policies?

When it comes to the workplace, nepotism and harassment are realities for any sufficiently large company. For example, employees mingle, they go to happy hour, maybe they go on some dates, and maybe those dates turn into a relationship.

The love story is cute, but the reality could be a bit problematic for your company. You're going to want to address that if you want to avoid a potential lawsuit.

Crafting a Social Media Policy for Your Workplace

By some measures, in-house counsel have got it rough. You've got to be masters of all trades, plus you have to keep up with all of the latest trends in each field of law that's relevant for your company.

For example, did you hear about last year's NLRB decisions regarding workplace social media policies?

5 Different Personalities That Come in Handy for GCs

As general counsel, you will need to wear a lot of different hats. And in taking on your different roles, you may have noticed that different moods and even different personality types can have varying degrees of effectiveness.

For example, sometimes it may make sense to be silent and remain behind the scenes advising your company. While at other times, you may want to be vocal and take the lead in discussions.

Inside Counsel recently took a look at seven types of GCs. Here's our take on the five of the more common GC personality types, and when they may be most effective:

Don't Let Employee Email Get You Sued

Based on the recent Apple-Samsung lawsuit and CIA Director General David Petraeus' dismissal, employee email isn't as private as we'd like to believe.

There's a lot you can do to protect employee email messages from being leaked to the media or to competitors. But in the case of a trial, email between employees are rarely considered privileged. That means a lot of private information could potentially be discoverable.

It doesn't help that eDiscovery plays a significant role in many trials and that email is an increasingly important piece of evidence. There's no better time to help your company by updating the corporate email policy.

Rite Aid Settlement: A Lesson in FLSA Overtime Laws

Rite Aid has reached a $20.9 settlement over a FLSA wage and hour class-action lawsuit.

The settlement effectively ends 14 of the 15 lawsuits the company faced for allegedly misclassifying its assistant managers as exempt employees, reports The Patriot-News.

Plaintiffs argued that the assistant managers performed the work of non-exempt employees. So despite their titles, the managers should have been classified as non-exempt and entitled to benefits like overtime pay.

Is it time for your company to address mass shootings? Does your workforce need training on how to escape, or how to avoid violent confrontations?

Several states like Alabama and Washington, believe so, and are encouraging employers to come up with training to address and prevent mass shootings.

In fact, some companies have even produced (corny) training videos that simulate what happens during an attack and what to do to protect yourself. The Alabama Department of Homeland Security's video is called "Run, Hide, Fight," while others bear titles such as "It Only Takes a Second," "Will You Be Here Tomorrow," and "Shake Hands With Danger," The Daily Beast reports.

But before you run out and hire a video production crew for your company, you should carefully consider whether your workplace needs to address this issue in the first place, and which type of training would be most effective.

The No. 1 Tip to Avoid Being Deposed: Easier Said Than Done?

With news of general counsel being deposed and even being held personally liable for their actions on the job, you may be wondering how to insulate yourself from legal liability and specifically how to avoid being deposed.

The law firm Reed Smith is tackling this exact issue in a series of articles on how in-house counsel can avoid being called as witnesses in employment cases.

In its first article, the firm provides its No. 1 tip for GCs to avoid depositions: Don't play a role in the decision-making process. But isn't this easier said than done?

Will the Term 'App Store' Get Your Company Sued?

When Apple sued Amazon for naming its mobile application marketplace the "Appstore," it created an open question about how much power Apple's trademark had.

Thankfully for Amazon and other companies that sell mobile apps, it looks like the answer to that question is "not much" -- at least when it comes to the term "app store." U.S. District Judge Phyllis Hamilton has granted summary judgment on one count of Apple's claim.

The lawsuit will go forward with respect to several other claims related to trademark infringement. But Judge Hamilton's ruling suggests that they won't be very successful.

3 New Year's Resolutions for GCs in 2013

It's the start of the year and just as you may have New Year's resolutions for your personal life, you may also want resolutions for your role as general counsel.

While there were plenty of corporate legal lessons to be learned in 2012, now is the time to look forward to the new year. In fact, just this week, there were plenty of new laws that went into effect that may impact your company.

So without further ado, here are three resolutions you may want to incorporate for the new year: