Many requests for businesses to take goods off Amazon or eBay fraudulent

It’s pretty common for businesses of all sizes to sell products on sites like Amazon or eBay.

So imagine one day receiving a “take-down notice” informing you that the site is taking down your listings because another party has demanded it under a federal law called the Digital Millennium Copyright Act (“DMCA”). According to the notice, the other party says your goods infringe its copyrights.

If you ever receive such a notice, be sure to look carefully into the matter. That’s because it’s become more common for these demands to have no valid copyright infringement claim to back them. Or worse yet, sometimes the demander doesn’t own any copyrights at all. [Read more…]

Injury and illness records may become public

Most businesses with 10 or more employees must keep records of serious work-related injuries and illnesses. This OSHA rule is intended to help businesses identify and address occupational hazards.

Under new OSHA rules, however, many businesses will also have to submit their records to OSHA itself, which apparently plans to make them public, at least in some form.

Businesses with 20 or more workers must begin submitting OSHA Form 300A starting July 1, 2017. In addition, businesses with 250 or more workers must begin submitting OSHA Forms 300 and 301 starting July 1, 2018. Starting in 2019, all information must be submitted by March 2. [Read more…]

Can you sue if a customer posts a bad online review?

For a business, a bad online review can help determine whether new clients flock in the door.

But if someone writes such a review on Yelp or any other website, you might be out of luck.

In a recent case in California, a federal appeals court decided that an angry business owner who got a one-star rating from a customer couldn’t sue Yelp. [Read more…]

Review your retaliation policies in light of EEOC guidance

It’s even easier for employees and former employees to sue businesses for retaliation under the Equal Employment Opportunity Commission’s new enforcement guidance.

For the first time since 1998, the agency has updated its guidance on the claim, which is already “asserted in nearly 45 percent of all charges … and is the most frequently alleged basis of discrimination,” it said.

Needless to say, preventing a claim is much better than defending one, and retaliation often occurs even when the underlying discrimination claim doesn’t have merit. So businesses must take action to avoid retaliation in the first place. [Read more…]

Could your business be facing a lawsuit over Internet search results?

Any business would jump at the chance to dictate the order of organic Internet search results that include its name. But that’s not so easy.

Still, a judge in Florida recently told a well-known, international company that it must find a way to do exactly that. And in the vast world of the web, it’s a cautionary tale for businesses of all sizes.

The case involves a Gainesville, Fla., company, Uber Promotions, which has a regional trademark that supersedes the more well-known ride-sharing service’s trademark. [Read more…]

‘Critical’ and ‘hostile’ work environment not the same thing

If you’re subject to pervasive harassment, intimidation and/or abuse and it’s so bad that you can’t work there anymore, you may be able to bring a “hostile environment” claim.

In some cases, these claims have resulted in employers paying significant damages.

However, employees need to clear a pretty high bar to establish a hostile environment. As a recent Pennsylvania case shows, just having a mean boss who maintains an unpleasant working environment isn’t necessarily enough. [Read more…]

Company burned in court for misleading job candidate

Competition is tight for highly skilled workers. And it’s understandable that as an employer, when you need to fill a position quickly you’re going to try and sell the position in the best light possible. But it’s a really bad idea to withhold important information from a job candidate, especially if the opportunity in question is less than secure.

Take for example a recent case out of Massachusetts. The employer, Boston-based Loomis, Sayles & Co., was planning to launch a new hedge fund. To staff the launch, Loomis set its sights on Vishal Bhammer, who was working in finance in Hong Kong. During the recruitment process, Loomis made numerous promises to Bhammer about its commitment to the launch and the resources it planned to dedicate to the fund.

Ultimately Bhammer accepted an offer. And relying on Loomis’s assurances that it was safe to do so, he gave notice to his employer and moved to Singapore as the position required. [Read more…]

RIF of worker on medical leave creates problems

Under the Family and Medical Leave Act, people who work for companies with more than 50 employees are generally entitled to take up to 12 weeks of unpaid leave per year in order to deal with a medical condition, care for a new baby or tend to a sick family member.

But can an employer lay off a worker on FMLA leave for economic reasons, like as part of a companywide “reduction in force” (RIF)?

In most cases, the answer is “Yes.” But employers still need to tread carefully, because if the employee can show evidence that his or her FMLA leave contributed to his or her inclusion in the layoffs, the employer could get hit with an FMLA retaliation claim. [Read more…]

Beware the ‘cat’s paw’ and investigate before you act

The oddly named “cat’s paw” theory (which comes from one of Aesop’s Fables) refers to a scenario where an employer disciplines or fires an employee for what it thinks are legitimate reasons, but does so based on information from a supervisor who had illegal motivations. In most cases, it means the supervisor who reported the worker for discipline was motivated by racial or religious prejudice or a desire to retaliate against the worker for asserting certain rights. In these situations, a court can still hold the employer responsible for unlawful discrimination or retaliation.

A recent decision from a federal appeals court suggests that the cat’s paw theory may be wider-reaching than many of us thought. In that case, a female employee complained to supervisors about an explicit photo sent to her by a co-worker. The co-worker then apparently manipulated text messages on his phone to make it look like the woman had willingly taken part in sexually charged conversations and that he had been a target of sexual harassment. Relying on the co-worker’s so-called evidence, the employer fired her. The employer also apparently conducted no investigation and rebuffed the woman’s offer to display her own phone to rebut the co-worker’s version of events.

She sued the company in federal court claiming she was fired in retaliation for complaining about sexual harassment. [Read more…]

Hot topics in the employment law world

Labor and employment law is a constantly changing area and it can be tough to keep up with the most recent developments that affect employers’ and employees’ rights in the workplace. To help you stay up to date, here are two areas where companies have been getting in trouble recently:

  • Disability, medical leave and privacy issues

Dealing with employee health issues can be a minefield for employers, as home-improvement retailer Lowe’s found out recently when it had to settle a disability discrimination claim brought by the Equal Employment Opportunity Commission for $8.6 million. The EEOC accused Lowe’s of violating the Americans with Disabilities Act (ADA) by firing workers who had been on medical leave longer than the limits the company had set. It seems Lowe’s made two mistakes here: It imposed an arbitrary medical leave limit that may have contradicted what employees were entitled to under the Family and Medical Leave Act (FMLA) and it apparently refused to accommodate workers with disabilities by allowing longer leaves that wouldn’t have imposed an unreasonable hardship on the company.

A case out of Pennsylvania also shows that employers must be careful when dealing with employees who need time off to deal with a medical situation. In that case, a worker took two months off to care for ailing parents. When she called to check in, she was told she would be fired if she didn’t resign on her own. Though it’s disputed as to whether the worker formally requested FMLA leave, a federal judge said it didn’t matter. It was enough that as soon as it was possible to do so she informed the employer of her need to take leave and told them why. [Read more…]