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Under a federal law that requires employers to inform job applicants that they may obtain their credit reports as part of the application process, an employer cannot make applicants sign a release from liability before procuring the report. (Sarmad Syed v. M-I, LLC, No. 14-17186 (9th Cir. 2017).  In a case of first impression in the federal circuit, the Ninth Circuit Court of Appeals held that a prospective employer violates the Fair Credit Reporting Act (FCRA) when it procures a job applicant’s consumer report after including a liability waiver in the same document as the disclosure to the applicant.

In amending FCRA in 1996 to require employer disclosure, “Congress was specifically concerned that … employers were obtaining and using consumer reports in a manner that violated job applicants’ privacy rights,” the panel wrote, especially in light of inaccurate information often contained in reports.  The law requires an employer to disclose that it may obtain an applicant’s credit report and enables the applicant to withhold authorization or to warn the employer that the report might contain errors. Continue reading ›

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They say imitation is the highest form of flattery, but Louis Vuitton doesn’t seem to think so.

The luxury brand has filed numerous trademark infringement lawsuits against small companies that parody the designer bags in some way. The lawsuits have been so far fetched as to have been called “bullying” and one judge even laughed out loud at some of the claims Louis Vuitton was making.

The latest such lawsuit to gain media attention was filed against a small company called My Other Bag that made inexpensively, canvas bags with “My Other Bag” printed on one side and a parody of a well-known luxury bag printed on the other side. In the case of Louis Vuitton, the print evoked the famous Vuitton bag design, but the LV emblem was replaced by MOB. My Other Bag also sells canvas bags that include parody prints of other luxury bags, but Louis Vuitton was the only one to file a lawsuit.

Trademark infringements like this one are generally considered to be a bullying tactic because they involve a giant company filing a practically baseless lawsuit against a much smaller company that’s not even operating in the same market. While the canvas bags have been promoted as great for things like carrying groceries and going to the beach, true Louis Vuitton bags are more likely to be used by women carrying around their personal effects to high-end shops, restaurants, and entertainment venues. They’re the kinds of bags to be shown off, whereas the canvas bags are clearly meant to be fun and practical and used in more casual settings. Continue reading ›

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Peoples’ worst sides often come out on social media and online comments sections because there’s a sense of anonymity and unaccountability – even if that sense is misleading. Often people post whatever comes to mind without worrying about any consequences, but as one North Carolina woman recently found out the hard way, sometimes there are legal and financial consequences to what you allegedly say online.

According to a recent lawsuit filed in Asheville, NC, by Davyne Dial, Jacquelyn Hammond allegedly posted a Facebook comment, referring to Dial, that said, “I didn’t get drunk and kill my kid.”

Dial’s son had, in fact, been killed in an accidental shooting back in 1976, when the boy was eleven years old. Dial was not involved in the accident, but Hammond’s words hit her hard.

In her complaint, Dial alleged this was not the first defamatory comment Hammond had made about her online, but it was allegedly the last straw. Not only was it extremely painful, but it allegedly amounted to Hammond accusing Dial of committing manslaughter, which is a federal offense. Continue reading ›

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The Society for Human Resource Management recently published an interesting article discussing the use of non-compete agreements by businesses throughout the country and a White House paper on the issues raised by non-compete agreements.  The article states in part:

Noncompetes may be unpopular among employees, but they’re becoming more common, according to Michael Elkon, an attorney with Fisher Phillips in Atlanta.

As a practical matter, most courts won’t enforce them against lower-level employees, he noted, but their more widespread use is attracting political attention.

The White House paper criticized the growing use of noncompetes, saying that they impact nearly one-fifth of U.S. workers. It cited a 2013 study commissioned by The Wall Street Journalthat found a 61 percent rise from 2002 to 2013 in the number of employees getting sued by former companies for breach of noncompete agreements.

Approximately 14 percent of workers earning less than $40,000 are subject to noncompete clauses, including fast-food employees, warehouse workers and camp counselors, the White House said.

Noncompetes are even prevalent in California, where courts do not enforce them; 19 percent of workers in California report signing a noncompete. Many workers are not aware of the lack of enforcement in California when they sign the agreements, the report noted.

Several states ban noncompete agreements for certain sectors, occupations and time periods. Hawaii banned noncompetes for technology jobs, and New Mexico banned them for health care jobs. Oregon banned noncompete agreements that last longer than 18 months, while Utah has limited them to a year.

Delaware, Illinois, Massachusetts, Tennessee and Texas do not enforce noncompetes against physicians, the White House report noted.

However, some state courts strike offensive clauses from noncompetes if doing so renders the remaining language enforceable under the state’s law. Meanwhile, other courts, most recently the Nevada Supreme Court, reject this so-called blue penciling of noncompetes.

You can view the full article by clicking here. Continue reading ›

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Although various people and organizations can put together estimates of the number of sexual assaults that take place in a given time frame, it is extremely difficult to come up with an accurate number. Because so many incidents go unreported, it is common for different sources to come up with wildly different estimates and it’s nearly impossible to tell whose estimates are more accurate.

According to a recent lawsuit filed against Baylor University, more than three dozen football players for the university committed at least 52 rapes in a four-year period.

These numbers are much higher than Baylor’s version of events, which currently recognizes 19 players involved in 17 reports of alleged physical attacks since 2011.

The most recent lawsuit, filed by a plaintiff whose name is only give as “Elizabeth Doe,” is just one of at least five such lawsuits filed against the university by women who were allegedly attacked and who claim the school did nothing to protect them or respond to their complaints. Continue reading ›

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Under the federal Fair Labor Standards Act (FLSA), all hourly, non-exempt employees are entitled to one and one-half times their normal hourly rate for all the overtime they spend working. It sounds simple enough, and for most workers it is, but employers need to make sure they’re including all the compensation earned by workers when calculating their overtime rate.

An overtime class action lawsuit against the U.S. division of Weatherford PLC alleges, among other things, that the oil company failed to properly calculate employees’ overtime rates. According to the wage and hour lawsuit, the company did not take into account certain bonuses (called “wellness bonuses”) that employees had earned when calculating the premium overtime compensation they should be paid when working more than eight hours a day or forty hours a week.

The class action lawsuit, which was filed in California in 2014, also alleges that Weatherford illegally denied workers compensation for the meal breaks they worked through.

Although the FLSA does not require employers to provide their workers with breaks throughout the workday, some state labor laws do, including California. Under California labor law, all hourly, nonexempt workers are entitled to one, paid, uninterrupted rest break of at least ten minutes for every four hours they spend working. For every five hours worked, employees are entitled to one, unpaid, uninterrupted meal break lasting at least half an hour. For every day an employee does not take one of these breaks, for any reason, that employee is entitled to one hour’s worth of pay, in addition to all other wages, bonuses, tips, etc. earned that day. Continue reading ›

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For the past few years, many of the large employers across the country have had to face the possibility of redefining what they consider to be “work.” The federal Fair Labor Standards Act (FLSA) does not provide a definition of “work,” although the U.S. Department of Labor (DOL) does define a “workday” as beginning with the first “principal activity” the employee performs and ending with the last “principal activity” they perform. But what can and cannot be considered a “principal activity” has long been debated between employers and their workers.

In general, anything that is required by the employer and provides a direct benefit to the employer qualifies as a “principal activity,” but the courts continue to go back and forth about the kinds of activities that meet this requirement. For example, many employees argue that the time they spend putting on protective gear when they’re required to wear it while performing their jobs constitutes a principal activity, and as such, they should be paid for that time. Not every employer agrees with that assertion and the DOL itself has gone back and forth on whether employees should be paid for that time. Continue reading ›

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Business relationships are often just as complicated as personal relationships, and the longer the relationship, the messier the breakup can be. In a perfect world, people would be able to accept that things change and allow both their loved ones and their coworkers to move on when the time comes. Unfortunately, the pain and sense of betrayal felt by those left behind often makes them do inadvisable things.

One person who allegedly couldn’t let it go was Garrett Patten, the owner of Patten Industries, a Caterpillar heavy equipment dealer located in DuPage County of Illinois. According to a recent defamation lawsuit filed against both Patten Industries and its owner, Garrett Patten allegedly retaliated by seeking to destroy a former employee’s reputation after he left the company to work for a competitor.

Michael Jaworski started working for Patten Industries in 2001 and worked his way up to sales manager. In 2013 he allegedly notified his superiors that he had received a job offer from a competitor, but had turned it down, even though he was not entirely happy working for Patten Industries. According to Jaworski’s lawsuit Garrett Patten allegedly threatened Jaworski, comparing it to an ugly divorce if Jaworski ever did quit. Continue reading ›

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Class action and collective action lawsuits are both important tools for plaintiffs with common complaints against the same defendant. Both types of lawsuits allow plaintiffs to do essentially the same thing in terms of the rights they can win for plaintiffs, but with one distinct difference.

In class actions, all the potential plaintiffs that can be identified are automatically included in the class unless they opt out. By contrast, collective actions require potential class members to submit a valid claim in order for them to be included in the lawsuit. Each type of lawsuit has its own procedural rules but, according to the Eleventh Circuit Court, the filing of one type of lawsuit does not invalidate a lawsuit of the other kind, even if both were filed by the same plaintiffs.

Four sheriff’s deputies in Lee County, Florida filed a collective action against their sheriff, Michael Scott, for allegedly requiring them to work overtime without properly compensating them for the extra hours they worked. The collective action alleges Scott violated the federal Fair Labor Standards Act (FLSA) by refusing to pay the proper overtime compensation of one and one-half times their normal hourly rate when they worked more than 40 hours a week. Continue reading ›

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We live in a world in which everyone constantly feels like they don’t have enough time, which is why most of us hate to feel like anyone is wasting our time. That feeling only gets worse when we don’t have any control over it, such as when our employer keeps us waiting.

According to a recent wage and hour lawsuit filed against Labor Ready, a temp agency, the company allegedly kept its temporary workers waiting to receive assignments without paying them for the time they spent waiting. The company also allegedly refused to pay them for the time they spent traveling to their assignments and also allegedly charged them a fee to cash their paychecks.

Most workers don’t think of the time they spend traveling to and from work as time they should be paid for, but there are certain instances in which that time is compensable. For those who work at the same location every day and simply commute between home and work, no payment for that time is required. On the other hand, some workers who are required to travel between different work sites in the course of a day should be paid for the time they spend traveling between sites.

The same goes for those who need to check in at one location before traveling to another site to perform their actual tasks for the day. This can sometimes be the case for those working for temp agencies when they’re technically employed by the temp agency, but the work they’re actually doing is for the agency’s client, usually at a separate location. Continue reading ›

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