Jeanine Gagliardi's blog

Another Court Disagrees with FedEx Classification of Drivers as Independent Contractors

Posted by Jeanine Gagliardi on Mon, 02/23/2015 - 16:27

We previously wrote about a decision by a U.S. Court of Appeals holding that FedEx misclassified its California drivers as independent contractors rather than employees. The decision surprised some because, when they signed on with FedEx, the drivers agreed that they were independent contractors.

The Kansas Supreme Court recently reached the same conclusion in a similar case. Like the federal court, the Kansas court was considering drivers’ claims that, because it improperly treated them as independent contractors rather than employees, FedEx failed to meet wage and leave requirements.

Court sets back EEOC in fight over use of background checks

Posted by Jeanine Gagliardi on Wed, 01/07/2015 - 05:00

We posted about a development that occurred in the EEOC’s suit against BMW arising out of BMW’s use of criminal background checks in the hiring process. BMW sought discovery concerning the EEOC’s use of criminal background checks in its own hiring. A magistrate judge overseeing discovery held that the EEOC did not have to disclose whether and what it does to check backgrounds in hiring. That decision did not stand long.

Early Detection and Response Plans Are Essential Elements of Cybersecurity Policies

Posted by Jeanine Gagliardi on Tue, 09/09/2014 - 04:00

If you read the news, you are probably accustomed to hearing about customer data being stolen by hackers. In 2008, hackers accessed Wyndham Worldwide Corporation’s computer system through a single computer that an employee in a franchised hotel had connected to the Internet. Just before Christmas 2013, hackers obtained the payment card data of tens of millions of Target shoppers. At the start of the New Year, craft store Michaels discovered that its customer data had been stolen.

Although businesses are required to take reasonable steps to protect the data in their control, most experts concur that breaches are unavoidable. Thus, the key elements of every cybersecurity policy should be protocols to detect and respond to breaches once they occur. If they had implemented or followed such protocols, Wyndham, Target, and Michaels could have avoided at least some of the harm resulting from their breaches. Follow the jump to read how.

The Fight to Expose Defamatory Online Reviews

Posted by Jeanine Gagliardi on Fri, 08/29/2014 - 04:00

It is easy for customers to post negative or even false reviews on the internet. Businesses that are criticized often wonder whether they can take legal action for defamatory online reviews. Unfortunately, it is not so easy. One of the biggest difficulties is learning the identity of anonymous online posters.

We recently wrote about different legal standards courts use when assessing the right of internet posters to remain anonymous. The standards are being defined currently, and the case we previously reported on is still being contested in Virginia’s highest court. Continue reading for the latest . . .

Clickwrap Non-Compete Agreement May be Enforceable.

Posted by Jeanine Gagliardi on Thu, 05/15/2014 - 04:00

As the internet grew and took over commerce, businesses and lawyers wrestled with how to make a contract without paper documents and signatures. Turns out, the law was very adaptable to new technology. You need to establish that both parties assent to the terms. But people can show their assent by virtually any means. A signed piece of paper was merely a customary way.

As paper has become less used, other means of showing assent have become more common. Terms of use posted on a website comprise a contract imposed on users. Users show their assent by continuing to use the website after some notice of the terms. This kind of contract is called a “browsewrap” agreement. Another type of contract is a “clickwrap” agreement. A clickwrap agreement requires some form of affirmative action by the user, such as clicking a button titled "I Agree".

A question that arises at the intersection of the law governing non-compete agreements and the law governing contracts is whether a clickwrap non-compete agreement is enforceable. A Delaware court recently held that it is.

Employers Get Another Victory Litigating Use of Background Checks in the Hiring Process

Posted by Jeanine Gagliardi on Wed, 05/07/2014 - 04:00

The EEOC’s aggression toward employers that use background checks in the hiring process has resulted in a lot of litigation against businesses. We recently posted about a big win for employers in the federal trial court in Maryland. The EEOC’s appeal of that decision is still pending.

In the meantime, the U.S. Court of Appeals for the Sixth Circuit issued an opinion in another case concerning the same issue. Some experts believe that the new Sixth Circuit opinion foreshadows what will happen in the appeal of the Maryland case.

EEOC Guide Fails to Give Constructive Guidance Regarding Use of Background Checks

Posted by Jeanine Gagliardi on Thu, 04/24/2014 - 04:00

We previously cautioned businesses to take care when using background checks in the hiring process. The EEOC, the agency tasked with enforcing federal employment discrimination laws, has been aggressive in suing employers to try to stop what it perceives as discriminatory use of background checks.

Why Can't Google Register "Glass" as a Trademark

Posted by Jeanine Gagliardi on Thu, 04/10/2014 - 04:00

Google’s recent difficulty registering “Glass” as a trademark for its Google Glass product is a good reminder of what to consider when selecting a name. Google Glass is a computer that is wearable like eyeglasses. Google applied to register “Glass,” in a stylized font, as a trademark for the product. The U.S. Patent and Trademark Office rejected the application because, among other reasons, “Glass” is “merely descriptive.”

To serve as a trademark, a name must be distinctive, or capable of identifying the source of a particular good or service. To determine their distinctiveness, names are grouped into four categories based on their relationship with the underlying product or service.

New MD Ruling: Federal Act Ineffectual to Combat Employee Data Theft

Posted by Jeanine Gagliardi on Thu, 04/03/2014 - 04:00

What can an employer do when an employee takes data he is authorized to have for his job and misuses it for another purpose - maybe his own or someone else's business? We previously posted about a split in the law concerning the scope of a federal law intended to combat hackers - the Computer Fraud and Abuse Act (“CFAA”). The CFAA, primarily a criminal statute, also creates a civil cause of action against a person who accesses a computer system without proper authorization.

The split concerns how courts define "unauthorized access." Some courts interpret it to mean hacking into a computer system. Others allow that it includes misusing data from a computer system, even if the offender was technically authorized to access the data. Employers have tried to use the act to combat employees who take and then misuse company trade secrets. A new ruling from the Court of Appeals for the 4th Circuit, which includes Maryland and Virginia, establishes the law in those jurisdictions.

An Employee May Be Liable for Stealing Company Data, Even if She Does Not Use It

Posted by Jeanine Gagliardi on Wed, 02/26/2014 - 05:00

One legal tool available in most states for employers to address employee theft of company data is the Uniform Trade Secrets Act (“Act”). Maryland, Virginia, and the District of Columbia are among the jurisdictions that have adopted the Act. The Act creates a cause of action against a person who misappropriates another’s trade secret. Under the Act, a trade secret can be misappropriated in two ways:

(1) improperly acquiring the trade secret, such as by theft, misrepresentation, or espionage; or

(2) disclosing or using the trade secret.

A recent case decided by a federal court in Virginia highlights one reason why employers like the Act.

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