In House - The FindLaw Corporate Counsel Blog

August 2016 Archives

An aggressive confidentiality policy could find you on the wrong side of a host of laws. An employment agreement that limits what information employees can share with investigators may constitute unlawful "pretaliation," according to the SEC. Even severance agreements that explicitly allow for certain disclosures can violate Dodd-Frank's whistleblowing rules.

And that's not all. According to a recent article in Inside Counsel, your company's confidentiality rules could also be unlawful under the National Labor Relations Act if they limit workers' ability to talk to each other about internal investigations -- even if your workplace is not unionized.

Your company's overzealous protection of its secrets could put it on the wrong side of Dodd-Frank. The Dodd-Frank Act Wall Street Reform and Consumer Protection Act, passed in 2010, sought to make it much easier for employees to report corporate wrong doing. And the SEC has made it clear that company confidentiality agreements that impede whistleblowing can violate that law. Just last spring, the SEC settled one of its first confidentiality-based enforcement actions, claiming that a corporate confidentiality agreement was unlawful "pretaliation."

Now, the SEC has severance agreements in its sights as well. The Commission recently took action against two companies whose pretty standard severance agreements the SEC felt violated Dodd-Frank. It might be time to redo your standard severance agreements before the SEC comes your way, too.

Proposed IRS Regulations Go After the Family Limited Partnership

If your client operates a business through a Family Limited Partnership, professional responsibility requires that you apprise them of possible changes on the horizon that could substantially affect these entities' tax exposure.

This is big news for high net-worth families who have successfully utilized the Minority Interest Discount to reduce estate taxes for the next generation. But how do you break the news to your rich clients?

Can the corporate law department transform the legal profession? Yes. And it is. In-house law departments are leading the change in legal technological innovation, reimagining how legal services are delivered, and even reshaping the face of the legal industry itself.

To celebrate those efforts, ALM and Inside Counsel have recently named the recipients of the seventh annual Transformative Leadership Awards, recognizing "pioneers in the economic empowerment of women in corporate law."

Hotels Accuse Expedia, Orbitz of Deceit, 'Bait and Switch'

A small hotel has brought a suit against travel company Expedia alleging that it used underhanded tactics in order to siphon booking business to its partner hotels instead.

The case is currently in the courts being reviewed for class action certification. Causes of action include false advertising, unfair competition and -- of course -- "bait and switch" business tactics.

In-House Lawyer's Intro to Trade Secrets

When it comes to intellectual property, everyone talks patents. Trademarks, copyrights, and other bits of intellectual property are scattered about. Even attorneys can sometimes fall into the trap of knowing just enough to be dangerous to themselves.

Less known is the trade secret. Trade secret law mostly gets invoked in the context of employment law. Almost everyone has signed a lengthy employment contract that stipulates in prolix language that the employee will not divulge valuable trade secret information to third parties. But what key factors should in-house lawyers be aware of when it comes to this lesser known aspect of intellectual property?

Univision, the Spanish-language broadcast company, won the auction to buy Gawker Media yesterday, for an offer of $135 million. Univision will take over Gawker after outbidding the digital media company Ziff Davis, by $45 million, according to the Los Angeles Times.

Gawker Media, whose network of websites pioneered the gossipy, confessional medium of blogging, declared bankruptcy last month, after the former professional wrestler Hulk Hogan won a $140 million invasion of privacy lawsuit against them. The sale should be approved by a bankruptcy judge sometime this week.

Zika Virus in the Workplace: Legal Considerations for Employers

By now you've heard: Zika is in the United States and it's spreading.

As with anything, this too shall pass. Not to say that a national dialogue and public diligence is a bad thing, but people tend to get caught up in irrational panic when a new disease threatens the public. Remember swine flu?

A few employers are wondering how the virus will implicate employer and workplace laws. Today, we'll step into the weeds and give our take on this issue.

Snapchat, the self-destructing-photo sharing and messaging app, is buying up the search startup Vurb, for a cool $110 million, according to the Information. The deal will be 75 percent stock and 25 percent cash, with Snapchat paying almost as much in retention payouts to Vurb's current employees, bringing the total price to nearly $200. Devoting 50 percent of the deal's cost to retention, Business Insider notes, is "an unusually high proportion."

So, what's behind the buy?

Religion in the Workplace: A Primer for In-House Lawyers

There are a number of things that should not be discussed casually at the office: politics, compensation, and of course, religion. Employees will inevitable bumble into these topics, which is usually okay. But things start getting dicey when the employer starts making decisions based on the political information he or she learned over the water cooler.

In-house counsel should be equipped with a solid understanding of religious discrimination in the workplace in order to best advise their corporate clients.

Forget weapons trafficking or illegal hacking. When it comes to crime, illegal logging ranks near the top. "Illegal logging is the most lucrative environmental crime and one of the most profitable organized criminal activities, alongside narcotics trafficking, counterfeiting, and human trafficking," according to a new white paper by Thomson Reuters. (Disclosure: Thomson Reuters is FindLaw's parent company.)

Deforestation, ecosystem disruption, and damage to the climate are some of the obvious effects of illegal logging, but its consequences aren't just environmental. Illegal logging's consequences can include significant impacts on human life and well-being, and, if illegal logging taints your supply chain, significant legal headaches.

Is Obesity a Protected Disability Under the ADA?

As America's waistline has gotten bigger, so too have the number of lawsuits that have asked the very important question: is obesity a qualifying disability under the Americans with Disabilities Act? Well, the short answer is no, but the more lawyerly answer is "yes, practically."

Below we get into the weeds of obesity and its relationship with the Americans with Disabilities Act.

Will Passage of Prop 64 Affect CA Employers' Drug Policies?

California voters will get a chance to finally legalize the adult possession and consumption of marijuana within this state, joining the ranks of D.C., Oregon, Washington, and a few other jurisdictions this coming November 8th. This, despite marijuana still being listed as a banned substance under the federal Controlled Substances Act.

You may be wondering how the passage of Prop 64 will affect California employers' rights to vigilantly control drug policies. Likely, not much.

Employee Theft Is Rampant: 5 Signs It's Happening

By some accounts, about 75 percent of employees steal from their employers. As in-house counsel, you might find yourself in the uncomfortable position of having to advise your client as to why some numbers aren't matching up. Could it be that someone in the company is walking out with the goods? Could be.

How to Avoid Workplace Background Check Violations

You've likely heard about big-time companies that have felt the sting of the FCRA knife. Workplace background check violations are serious issues employers shouldn't ignore.

Below, we provide a quick overview of The Fair Credit Reporting Act. We also cover some steps you can take as in-house counsel to best protect your company from the new federal cloud passing over corporate clients.

OSHA's Multi-Employer Citation Policy: Intro for In-House Lawyers

In-house attorneys are generally aware that workplace safety can be one of the most pressing concerns for a business client, but they might be less familiar with the implications of OSHA's Multi-Employer Citation Policy.

If you're wondering, what is OSHA's Multi-Employer Citation Policy? Then you're in luck. This quick overview is for you.

How the General Counsel and CFO Should Work Together

These days, being the GC of a company isn't quite the cush job everyone imagined it to be. As commerce has gotten increasingly global, legal teams that operate on the company dime are finding themselves busier than they had ever anticipated. The world waits for no one.

That means that in-house counsel should really leverage power at the top. And since the CEO is often gone or aloof, the next best buddy a general counsel can have is the CFO.

Roger Ailes isn't the only (alleged) sexual harasser in corporate America. Ailes stepped down as head of Fox News recently, following a harassment lawsuit by former Fox star Gretchen Carlson and an internal investigation that "sealed his fate." And he's got company. The EEOC alone took nearly 40,000 sexual harassment enforcement and litigation actions in 2014.

Those sexual harassment claims can expose businesses to significant liability, even when all the proper policies are in place. Thankfully, there are a few steps companies can take to mitigate their liability, should a member of the company, be it a CEO or janitor, be accused of harassment.