Business Law Archives - Page 10 of 11

E-Mails Can Modify Contracts

08/17/202007/26/2009 by Report from Counsel

We send e-mails so casually and with such informality, even in the business environment, that it is easy to forget that they may carry significant legal consequences. It is only prudent to bear in mind that even e-mails written in the most conversational style may create legal obligations no less binding than a more conventional written agreement laden with legalese and signed with all formalities.

If a business wants to entirely avoid the possibility of having e-mails treated as binding amendments to existing contracts, the best approach is to be as clear and direct as possible on the subject by including language in contracts to the effect that e-mails do not count as signed writings for purposes of any contract amendments.

Employer Forced to Pay Unapproved Overtime

03/31/201604/06/2009 by Report from Counsel

An enforcement action by the U.S. Department of Labor resulted in a ruling that nurses were employees, not independent contractors, of a staffing agency that provided them on a temporary basis to hospitals. After this ruling, the agency took action to attempt to deter unauthorized overtime by the nurses and to avoid having to pay time and a half for such hours. It adopted a policy, printed on all of the nurses’ time sheets, stating that the nurses had to notify the agency in advance of any hours exceeding 40 hours a week. If they did not, the notice stated that the nurses would be paid for such time only at their regular rate.When nurses who had worked overtime hours at hospitals without notifying the agency ahead of time sought to recover pay at the overtime rate, they prevailed despite not having followed the employer’s policy. A federal court ruled that the agency had not done enough to meet its duty under the federal Fair Labor Standards Act to “make every effort” to prevent performance of unauthorized overtime work of which it had knowledge. The agency’s knowledge was present, albeit after the fact, as was evidenced by the nurses’ time sheets showing the unauthorized overtime that was worked.
Suggestions from the Court

Age Discrimination in Employment

03/24/201312/13/2008 by Report from Counsel

When the federal government required one of its defense contractors to reduce its workforce, the contractor first evaluated its employees based on the criteria of “performance,” “flexibility,” and “critical skills.” After adding points to scores for years of service, the employer arrived at a list of 31 employees to be laid off. On their face, … Read more

Protection for Parodies

08/17/202008/31/2008 by Report from Counsel

It is the very nature of parody to present two opposing messages: that the parody is, in fact, the genuine article that is being parodied, and that it is not the original, but is instead just a parody. When used to promote a product, the parody may transgress federal trademark law if it succeeds in the first objective but not in the second. In that case, the parody will have created customer confusion, which is a critical element for a claim of trademark infringement.There was a recent victory for parody in the marketplace when a federal court rejected claims of trademark infringement and trademark dilution brought against the imitator. On one side was Louis Vuitton Malletier (LVM), the maker of luxury handbags, luggage, and even some pricey pet accessories. Some of LVM’s trademarks go back to the 19th century.

Distinctly at the other end of the spectrum was the upstart defendant Haute Diggity Dog (HDD), purveyor of dog toys and beds which play on the names of luxury items. Among HDD’s offerings were “Chewnel No. 5” and “Dog Perignonn.” You get the idea.

Is it "Work" to Dress for Work?

03/31/201603/15/2008 by Report from Counsel

Six times a day, for 6 to 10 minutes each time, workers at a chicken processing plant were required to put on, take off, and clean safety and sanitary clothing that they had to wear while on the job. The special gear consisted of smocks, hairnets, gloves, earplugs, and safety glasses. When a dispute arose between the workers and their employer over whether the employees were entitled to be paid during this time, the workers claimed a right to compensation under the federal Fair Labor Standards Act (FLSA).

Baseball Strikes out on Stats

08/17/202003/11/2008 by Report from Counsel

Millions of sports fans participate in fantasy sports games in which the participants “draft” the names of real professional athletes and compete against other teams based on the actual statistical performances of the athletes during their seasons. In the case of baseball, until several years ago a fantasy sports company licensed the use of the names and information about big league players from the Players Association for Major League Baseball (MLB). When that deal expired, the Association instead gave an exclusive license to an online arm of the MLB, which operated its own fantasy baseball business.

Misconceptions about FDIC Insurance

08/17/202002/15/2008 by Report from Counsel

Misconceptions about the nature and extent of deposit insurance from the Federal Deposit Insurance Corporation (FDIC) can be risky. Especially to be avoided is a depositor’s false impression that all of his funds in a bank are insured when, in fact, some of the money is over the insurance limits, thus exposing it to loss … Read more

LLC Owner Liable for Employment Taxes

09/23/202002/01/2008 by Report from Counsel

Sean was the sole owner of an accounting firm that was set up as a limited liability company (LLC) under state law. When the firm went out of business, it had not paid any payroll taxes for the preceding 18 months. Perhaps thinking that an accounting business, of all things, should have stayed current in its payment of payroll taxes, the IRS went after Sean personally for the $65,000 in unpaid taxes. A federal court upheld a judgment against him.

Small Business – Maintaining a Safe Workplace

03/31/201601/01/2008 by Report from Counsel

In theory, and often in practice, the safety of the workplace is a top priority for any business. But while large companies may have personnel devoted exclusively to the subject, safety is but one of many responsibilities for the owners of small businesses. In some cases, the matter of keeping workers safe slips down the list of priorities. There to make sure the issue is not neglected is the federal Occupational Safety and Health Administration (OSHA).

Can You Trademark a Flavor?

08/17/202010/31/2007 by Report from Counsel

When a pharmaceutical company filed an application with the U.S. Patent and Trademark Office (PTO) for a trademark for the orange flavor used in its antidepressant tablets, it was trying to break new ground. Certainly, there are precedents for trademarks apart from the traditional forms consisting of words and logos. There are trademarks derived from the use of certain colors–think of the familiar pink fiberglass insulation or an orange home improvement store. There are even some trademarks associated with certain smells and sounds, such as sewing thread with a floral fragrance, strawberry-scented lubricants, and the familiar chimes used by one of the major television networks. But the attempt to trademark a flavor ran into obstacles that the company was unable to surmount.