Theft of Confidential Information: Pfizer’s Wiser, Are You?

trade secret2Did she really think she’d get away with misappropriating 600 files from her former employer by surreptitiously downloading them onto a USB drive?  That’s what a former global marketing executive for Pfizer recently did just before she resigned.  Oh, and she apparently also sent to her personal email account a few dozen emails containing Pfizer’s trade secrets and other confidential information such as strategic marketing plans, sales information, marketing budget data and market research.  As you can imagine, Pfizer didn’t take kindly to her actions.  The company sought and obtained, within 24 hours, an ex parte temporary restraining order from a federal court enjoining the employee from using or destroying Pfizer’s confidential information.  Employee theft of confidential information is a serious issue and employees continue to do it, perhaps unaware they often leave behind their digital fingerprints.  So what’s a company to do to protect itself? Here are a few practical tips. Continue Reading

Just Who is Using All those H-1B Visas?

shutterstock_133290101As we approach another H-1B filing season this April, we thought it would be interesting to look at the types of occupations and employers that take advantage of both the H-1B visa and permanent residence process.  The U.S. Department of Labor (DOL) recently released data shedding light on who is taking advantage of our lawful immigration process.

To hire an H-1B employee, a company must promise the DOL, in a labor condition application, that it will pay the H-1B employee wages that will not undercut the wages of U.S. workers.   The labor condition application identifies the name of the employer, the work location, and the occupation in question.

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Employer’s Honest Mistake Bests FMLA Retaliation Claim

shutterstock_337312496 (1)We all know that honesty is the best policy but what about an honest mistake?  Can an honest mistake save you from liability in a retaliation lawsuit under the Family and Medical Leave Act (FMLA)? Just last month, federal appeals court in Pennsylvania said – Yes.

In Capps v. Mondelez Global, LLC, the federal 3rd Circuit Court of Appeals noted Fredrick Capps suffered from arthritis in his hips and periodically took FMLA leave.  He called out on February 12 and 14 due to leg pain.  On the night of February 14, Capps met some friends at a local pub for dinner because his wife was out of town and he did not know how to cook.  He had three beers and three shots.

On his drive home, Capps was stopped by the police and arrested for having a blood alcohol reading four times the legal limit.  The police released him the next morning, and he called out for his 1 p.m. shift because of leg pain.  Capps returned to work on his next scheduled shift.

About a year later, Mondelez, the employer, learned of the incident. The HR department investigated whether any of Capps’ absences occurred during the time of his arrest and subsequent conviction for DUI.  The HR department believed that Capps had several FMLA absences that corresponded with his arrest and court proceedings.

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Ambushed by Public Records Act Trolls: The Risk of Exposure for Private Companies

public recordsIt’s Friday, nearly 5 o’clock and you’re getting ready to go home. A stranger appears at your office waiving a copy of the Florida Public Records Act, demanding to see your company’s records. You explain that “this is a private company and not subject to the Public Records Act”. You send him away.

The following week, you are served with a lawsuit alleging that you violated the Public Records Act and seeking fees and costs. After your attorney explains how and why you are subject to the Act, you produce the requested records – no harm, no foul, right? WRONG!

The court will still hold a hearing to determine whether you unlawfully refused to produce the records (even though the records have now been produced). If your initial refusal is found unlawful, you will have to pay the requestor’s attorney’s fees and costs for the suit. Under current law, the award of fees and costs – which can be thousands of dollars (not including your own defense costs) – is mandatory. For example, a public records custodian was ordered to pay a requestor’s fees and costs, even though the custodian produced the requested records prior to the Public Records Act hearing and even though the custodian delayed the production because it thought it had a good faith basis to withhold the documents. Continue Reading

Employee Smart Phones: Smile, Your Meeting is Streaming Live and In Color

facebook phoneLet’s go back to happier times … for Pittsburgh Steelers fans, that is. On January 15, 2017, the Steelers won the AFC Divisional playoff, moving the team to the AFC Championship game against the New England Patriots the following Sunday. (Cue the “Boos”).  The players were elated.  The post-game speech in the locker room from Coach Mike Tomlin was rousing, sprinkled with some “colorful” comments about the Patriots. He also directed the players to keep a “low profile” and their mouths shut, and to focus on preparing for the next game.  An unidentified person added, “Keep cool on social media – this is about us, nobody else.”

So how do I know about this? Steelers Wide Receiver Antonio Brown captured it all on Facebook Live as the events occurred from the locker room. Now for the technologically challenged, Facebook Live is a live streaming app that allows the user to broadcast audio and video of a live event; essentially a personal television channel.  While many players knew that Brown was live streaming and performed for the “camera” (i.e., Brown’s cell phone), others clearly did not (that perhaps explains, the one player seen on video without a towel).  Most importantly, Coach Tomlin did not know that Brown was broadcasting what he thought was a “team only” event.  Brown’s video had 1.1 million views and 20,000 shares. Continue Reading

Super Bowl 51: A Time To Review Attendance And Tardiness Policies

superbowlThe stage is set. Super Bowl 51 will arrive in less than two weeks.  But will your employees?

In January 2016, the Workforce Institute conducted a survey to assess the impact of the Super Bowl on worker productivity the next day. According to the study, 77% of Americans planned on watching the Super Bowl. The same study estimated that 1 in 10 U.S. workers (approximately 16.5 million employed adults in 2016) would miss work the day after the Super Bowl. Of those 16.5 million, nearly 10.5 million requested the day off in advance.  Those figures did not account for the estimated 7.5 million employees who arrived to work late.

No offense to the Denver Broncos or Carolina Panthers, but 2016 was nothing special. Employment consultants estimate that each year, the productivity drop the day after the Super Bowl costs employers hundreds of millions of dollars. After all, it seems like everyone will want to share their thoughts on the final play or on the best commercials. Continue Reading

Class Action Waivers: Will The Supreme Court Successfully Realign The Litigation Galaxy?

SCOTUS Supreme CourtFinally. The wait is almost over. The U.S. Supreme Court will decide whether an employer may enforce a mandatory arbitration agreement that contains a class action or collective action waiver.

Last Friday, the Supreme Court agreed to hear 3 cases stemming from the NLRB’s 2012 decision in D.R. Horton, in which the NLRB held that class action waivers violate employees’ Section 7 rights to engage in protected, concerted activity. D.R. Horton created uncertainty whether, for example, an employer, through an arbitration agreement, may force an employee to waive his or her right to pursue a class action minimum wage or overtime claim, or a Title VII discrimination claim, in an arbitration proceeding. Continue Reading

What’s in YOUR COBRA Notice? Insufficiencies Could Drain Your Wallet

drain wallet-money

SunTrust Banks learned an expensive lesson about COBRA compliance recently. It was sued for failure to send proper COBRA election notices after employees terminated employment. SunTrust’s agent for COBRA notice purposes, Xerox HR Solutions, actually sent timely COBRA notices to the former employees.  But two former employees/plaintiffs claimed that the notices were legally insufficient and, as a result, “misleading and confusing.”  The notice directed them to a website to elect COBRA coverage but they apparently could not figure out how to actually make the COBRA election. As a result, the two former employees did not obtain COBRA coverage. 

The two former employees filed a lawsuit seeking “class action” status to include other former employees to make their lawsuit more meaningful to SunTrust.  They alleged the SunTrust COBRA notice was deficient because it did not adequately address two of the 14 content requirements of the Department of Labor’s COBRA notice regulations.  Specifically, they said the notice: (1) failed to state the name and address of the party responsible for administration of COBRA benefits and (2) failed to provide the COBRA election procedures or election forms. Continue Reading

Florida’s Medical Marijuana Constitutional Amendment Takes Effect Today

medical marijuanaThe Florida Medical Marijuana Legislative Initiative (also known as Amendment 2), passed with 71% of the popular vote on November 8, 2016.  Amendment 2 allows the medical use of marijuana for individuals with certain debilitating medical conditions as determined by a licensed Florida physician.  Because Amendment 2 is silent as to its effective date, under Florida law it becomes effective “the first Tuesday after the first Monday in January following the election.”  If you’re still on your holiday high (pun intended), that means – today.  Continue Reading

The EEOC Rings Out 2016 with End of the Year Stats

2016 review

We all love factoids-right? So if you are heading out to a New Year’s Eve Party this weekend and need a few icebreakers to get the conversation going, the U.S. Equal Employment Opportunity Commission (“EEOC”) has come to the rescue.

The EEOC recently provided a brief review of its fiscal year which ended September 30. Feel free to use any of the highlighted stats below:

  • 91,503 charges were received by the EEOC this fiscal year and 97, 443 were resolved;
  • pending EEOC charges were reduced by 3.8 percent to 73,508, which is the lowest pending charge workload in the last three years;
  • 15,800 charges were settled by the EEOC pre-litigation;
  • The EEOC filed 86 lawsuits alleging discrimination (58 involved individual suits and 29 involved multiple victims or discriminatory policies)––the number of suits filed is lower than in prior years;
  • The EEOC ended the year with 165 cases that it was still actively prosecuting (of which 47 (28.5 percent) involve challenges to systemic discrimination and an additional 32 (19.4 percent) are multiple-victim cases)––the number of suits pending is also lower than in prior years;
  • The EEOC secured more than $482 million for victims of discrimination in private, state and local government, and federal workplaces (It took the EEOC’s annual budget of over $364 million to do this.);
  • $82 million dollars that was secured went to federal employees and applicants who claimed discrimination by the U.S. Government; and
  • The EEOC launched four digital services, including the EEOC’s Respondent Portal, which allows employers to receive digital notices of charges and to submit online responses. Additionally, members of the public can now make online requests for information under the Freedom of Information Act (“FOIA”).

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