In House - The FindLaw Corporate Counsel Blog

October 2014 Archives

What Can GCs Learn from the EEOC's Live Twitter Chat?

Earlier this week, as part of National Disability Employment Awareness Month, the EEOC held a "live Twitter chat" where members of the public could ask questions about disabilities and employment that would be answered on Twitter by EEOC Chair Jenny Yang and Commissioner Chai Feldblum.

So what did we learn from this event? Here are a few takeaways:

EEOC Wins Suit on Behalf of a One-Armed Security Guard

"The company is a joke. You sent me a one-armed security guard."

The complaint, from a community association that had hired Florida Commercial Security Services to provide it with a security guard, led to the removal of Alberto Tarud-Saieh from an $8-an-hour security guard position. (Tarud-Saieh lost his right arm in a car accident.) The company failed to reassign him to another post, effectively terminating his employment.

His former employer is now learning a very important lesson, courtesy of a lawsuit brought by the Equal Employment Opportunity Commission: The customer isn't always right.

An Unusual Incentive: Company Offers Beer for Timesheets

Does this sound like a weird incentive to you?

A company has an issue with people not turning in their timesheets on time. Its response? Build a custom "kegerator" that dispenses beer when an employee, whose timesheet has been submitted, swipes his or her keycard.

Out here, in Silicon Valley, free keg beer at work isn't that usual -- startups offer all sorts of weird incentives to keep employees glued to their desks. Alas, here at FindLaw, we only have coffee. But should we (or you) offer such an incentive?

Who's the Biggest Player in the Patent Fast-Track Game? Google

Last year, we blogged about the new "fast track" (Track One Prioritized Examination) system for patent applications. The idea is simple: Pay more upfront, do less work, and get your patent faster.

By many accounts, the new fast track was definitely faster than older expedited methods (an average of 184 days from filing to allowance), and was cheaper too -- research published on the Patently-O blog said that despite the higher upfront cost, fast-tracked patents would actually save money in the long run.

Who's hopped on to the fast-track train since then? No surprise that it's a tech company -- namely, Google.

FCC's 1st Data Security Fine: $10M Sought for Breach

It seems like every month we wake up to another story about some giant company getting hacked -- or worse, negligently storing user data out in the open where anyone can get to it.

In the wake of data privacy breach after data privacy breach, the FCC is finally doing something other than worrying about Janet Jackson's wardrobe malfunction. On Friday, the FCC proposed a fine of $10 million against TerraCom and YourTel America for data privacy breaches.

How does this affect general counsel?

Silicon Valley Company Paid Temp Workers $1.21 an Hour: DOL

The U.S. Department of Labor has settled allegations that a Silicon Valley company, Electronics for Imaging, paid temp workers from India as little as $1.21 an hour to install networking infrastructure at its new headquarters in Fremont, California.

EFI, which makes digital printing software and hardware, apparently flew network technicians from Bangalore, India, to the San Francisco Bay Area in late 2013, working them as many as 122 hours a week and paying them in Indian rupees.

EA's 'Puffery' Means Partial Victory in Battlefield 4 Fraud Case

We covered the train wreck that was the launch of Battlefield 4 by gaming company Electronic Arts last year: Despite loads of hype and a ton of pre-release awards at the E3 industry tradeshow, the game's release was an unmitigated disaster. Servers crashed, the game was plagued with glitches, online play was nearly unplayable. The issues weren't sorted out for months, other projects were delayed as a result, and sales across the board suffered.

A lawsuit was unsurprising, but the issue wasn't the glitchy game (at least not directly). Instead, stockholders sued over the company's allegedly misleading statements, claiming that EA defrauded investors while insiders sold off their shares of company stock. Unfortunately for the current plaintiffs, their case was as inadequate as Battlefield 4 was.

However, it's not game over yet: An amended complaint could revive some of the claims.

In-House Salaries Set to Rise in 2015: Robert Half Legal

Robert Half Legal is known for a lot of things, including an interesting survey on what lawyers think about our declining wardrobe standards. (Hint: Stuffy lawyers want to dress like they're stuffy.) But this survey might be even more interesting, at least for in-house counselors: It talks about compensation forecasts for 2015.

The Robert Half Legal 2015 Salary Guide was just released earlier this month (H/T to Bloomberg) and it has nothing but good news all around. Here's the key finding: Robert Half projects that salaries for in-house positions will increase in 2015 for attorneys at all sizes of companies and of all experience levels. Everybody's getting paid!

Today Is National Flex Day: Why Your Company Should Be On Board

National Flex Day: It has (nearly) nothing to do with fitness.

What is National Flex Day? It's a day meant to encourage employers to recognize and consider flexible working arrangements, such as telecommuting, flex time (instead of 9-to-5, employees choose their own start and end times), or compressed work weeks (more hours per day, but fewer days).

Why is flex important? And why should your company encourage it?

Weird 'Comcast Got Me Fired' Dispute Turns Into a Lawsuit

When the story of the guy who was fired from PricewaterhouseCoopers (PwC) after complaining about his Comcast service first broke, his finger-pointing at the cable company sounded to me like insane rambling paranoia. It might be, but not only has Conal O'Rourke provided a lot of documentation to the media to back his claims, but he's now filed suit against Comcast.

True or false, we may know soon: The conversations seem to have been recorded, reports Ars Technica, and while Comcast is keeping them under wraps because of the ongoing litigation, this should be a fun case to watch.

Unique Benefit: Apple, Facebook Cover Egg-Freezing for Employees

What's the weirdest employee perk you can think of? Tech companies are known for them: keg parties, entire cafeterias, day trips to wineries, on-site laundry, and more. But freezing a female employee's eggs for purposes of future fertility is a new one. According to NBC News, Apple and Facebook are the first two major employers to offer this perk for non-medical reasons.

But the perk isn't without controversy. While some might see companies doing what they can to empower women to choose to have a high-powered career now, and a family later than what otherwise might be possible naturally, others see an ulterior motive: squeezing more work out of women now, while providing a fertility treatment that may or may not work down the line.

Nike Sues 31 Companies Over Converse All Star Knockoffs

You remember the circular patch with the star, the canvas, the white rubber, the white stitching? They're Chuck Taylors, right? Except when they're not -- and that's the problem. Nike, which owns Converse, is suing companies like Walmart, Kmart, and Sketchers, alleging infringement on the trademarks it claims in Converse's iconic Chuck Taylor All Star shoes.

How bad could it be? The Huffington Post provided screen shots of Walmart and H&M websites selling "sneakers" or "canvas lace" shoes that look eerily (maybe illegally) similar to Chucks. In all, 31 companies are being accused of trademark infringement in the United States and globally in a separate complaint with the International Trade Commission.

Is Your Noncompete Agreement as 'Oppressive' as Jimmy John's?

Your mom may want you to eat at Jimmy John's, but would she want you to work there? The Huffington Post recently reported on a Jimmy John's franchisee's "oppressive" noncompetition agreement, which was disclosed as part of a lawsuit by employees. (For the uninitiated, Jimmy John's is a national chain of bro-tastic sub sandwich shops, usually found in college towns.)

The Content of the Noncompete Clause

The Jimmy John's franchisee's noncompetition agreement purports to bind the employee for two years after his termination "for any reason," and forbids the employee from having any interest or providing any services for any business that derives more than 10 percent of its revenues from sub sandwiches within 3 miles of any Jimmy John's sandwich shop. It also prevents an employee from being affiliated with any other Jimmy John's for a year after termination "for any reason."

According to Kathleen Chavez, who's representing the plaintiffs in the class action suit, "the effective blackout area for a former Jimmy John's worker would cover 6,000 square miles in 44 states and the District of Columbia."

EEOC Sues FedEx for Discriminating Against Deaf Employees

FedEx is quickly becoming the go-to company when a labor law complaint absolutely, positively has to be written about overnight. Great for those of us who have to write about it, not so good for FedEx.

This time, the Equal Employment Opportunity Commission is going after FedEx for "discriminating against a large class of deaf and hard-of-hearing package handlers and job applicants for years," according to an EEOC press release.

Is Medical Device Patent Trolling on the Rise?

Here's an interesting statistic: According to a 2013 study by the Open Technology Institute, 75 percent of VCs and 20 percent of venture-backed startups had been affected by patent trolls. In the biotech/pharmacy/medical device industries, only 13 percent were affected.

But according to a recent article by Inside Counsel, that may be changing: Patent trolling against the medical device industry is on the rise, spurred in part by the higher royalties, damages awards, and nuisance settlements.

Amazon's SCOTUS Case: Pay Employees in Line for Security Check?

Before they leave for the day, Amazon's warehouse employees are required to go through a security screening -- basically to make sure they haven't stolen anything. In addition to presuming that their employees may be thieves, Amazon doesn't pay employees for the time they spend waiting to be searched.

The actual search is fairly brief, but employees spend up to 25 minutes waiting in line, and it's this waiting period that's at issue in Integrity Staffing Solutions v. Busk. On October 8, the Supreme Court heard oral arguments in the case.

AT&T Settles 'Cramming' Claim With FTC for $105 Million

Here's a lesson for companies: Trying to deceive customers into paying for bogus things they never ordered will cost you. First, the FTC said it would go after T-Mobile. Now, it's settled with AT&T for $105 million.

Cram It, AT&T

"Mobile cramming" is the practice of charging the customer for a service the customer didn't ask for, according to the FTC. Apparently, AT&T was incentivized to help the practice along, thanks to the 35 percent cut of the cramming charges it received from third parties that sent customers unwanted texts, ringtones, or other minutiae (referred to as "premium short message services" or PSMS).

Marriott Fined $600K: Jammed Guests' Wi-Fi in Favor of Own Service

Once in a while, you have to applaud the villain's genius. This alleged scheme by Marriott's Nashville Gaylord Opryland Hotel and Convention Center? Kind of genius.

According to the FCC, Marriott jammed convention-goers' personal Wi-Fi hotspot signals, while charging exorbitant fees for access to Marriott's own network. Marriott, which reportedly agreed to a $600,000 fine and a three-year consent decree, assured the public that they were merely protecting them.

Another Court Finds FedEx Drivers Are Employees, Not Contractors

Back in 2012, we wrote about a Seventh Circuit case in which FedEx drivers claimed they were entitled to the same benefits as non-drivers, but FedEx claimed they were independent contractors. The case encompassed different lawsuits in different states. The Seventh Circuit decided to certify a question to the Kansas Supreme Court.

In the meantime, the Ninth Circuit had independently determined that FedEx drivers were employees under either an Oregon test or a California test. Last week, the Kansas Supreme Court finally answered the Seventh Circuit's certified question -- FedEx drivers are employees.

Survey Confirms: In-House Spending Up, Outside Spending Down

We've known for a long time that companies are just exhausted from paying $500 an hour for a BigLaw firm they don't need so that senior partners can spend the day golfing. Now there are some numbers to back this up.

Inside Counsel recently reported on an HBR Consulting survey showing that, even as legal spending in total increased 2 percent over last year, inside spending increased 5 percent while outside counsel spending decreased by 2 percent.

Creepy: Email Scanning System Watches to Predict Data Theft

Data theft and breaches are always a hot topic around here. They are, after all, an in-house attorney's worst nightmare: Lawsuits, lost business, and a whole lot of legal fees will wreak havoc on your bottom line if you have a data leak. But what if there was a way to predict data theft before it happened, a la Tom Cruise's "Minority Report"? Sure, you'd have to worry about outside hackers ruining your day, but at least mutiny and sabotage would be covered.

That's what UBIC's Virtual Data Scientist promises. It has the ability to scan users' email to find common harbingers of data theft, such as complaints about how the company treats them or about one's financial problems, reports PC World. And while the program is currently Japanese-only, it may make it stateside in the near future.

Can Salary Transparency Pay Off for Your Company?

This discussion rears its head every now and then: Should companies let employees know how much money other employees make?

The question came up most recently in a Slate piece about the website Buffer. Apparently, Buffer posted a Google spreadsheet on its website disclosing the salary of everyone in the company. Is that a wise decision? Well, that depends on who's doing the asking.

NFL Responds Perfectly to Muslim Player Penalized for Praying

Full disclosure: I am a Kansas City Chiefs fan. So it was with constant, uninterrupted joy that I watched Monday's molly-whopping of the New England Patriots by my hometown team.

Uninterrupted, at least, until a wee little mistake by the referees in the fourth quarter. After the Chiefs' Husain Abdullah snagged an interception and ran it for a touchdown, he immediately slid to the ground and prayed to Allah. A yellow penalty flag flew, giving the Patriots 15 yards on the ensuing possession. The subsequent touchdown made no difference -- the final score was 41-14 -- but it was worrisome that a player was penalized for praying on both knees (as Muslims do) while Christian players often drop to a knee in prayer without penalty.

However, the National Football League did the right thing and rescinded the call Tuesday morning, the closest thing to an apology a player will get from the league.