Take the case of “The Jumping Toy” a/k/a the “SkyDriver”. The inventor, Will Isaksson, entered into an oral royalty sharing agreement with marketer, Craig Nadel and his company, Design O Matic, to market a toy known as “the Modified Kenner Car”. The parties to the oral contract agreed to evenly split any royalties. However, because they failed to commit their agreement to writing, the parties soon crashed into a costly and protracted lawsuit concerning several important contract terms.
As luck would have it, Isaksson altered the design of the Modified Kenner Car by adding a fin. This fin made the toy jump. Isaksson naturally called the toy “the Jumping Toy”, and he presented it to Nadel for possible marketing. Isaksson wanted the toy marketed to Hasbro, but Nadel suggested a smaller company. This disagreement drove Isaksson to go direct to Hasbro with the toy. Hasbro agreed to sell the toy under the name “SkyDriver”, and the toy generated approximately $535,000.00 in royalties.
As you might expect, Nadel demanded 50% of the royalties from the SkyDriver and Isaksson refused. For his part, Isaksson alleged that the oral agreement with Nadel was limited to the Modified Kenner Car and any royalties generated by it. Nadel meanwhile alleged that the oral agreement covered any toy that arose out of the design underlying the Modified Kenner Car.
In April 1998, the parties wheeled their dispute into the United States District Court for resolution. In December 1999, nearly 20 months later, the case was tried to a jury and Nadel won. The jury decided that the SkyDriver was not a new toy but merely a modification of the Modified Kenner Car, and therefore covered by the oral royalty sharing contract. The jury awarded Nadel his share of the royalties. But this toy story did not end there…
The case was appealed by Isaksson. And, in February 2003 nearly five years after the lawsuit was filed, the Appellate Court decided the appeal. The Appeals Court accepted the jury’s determination that the SkyDriver was not a new toy. However, the Appeals Court also ruled that there was another critical question that the jury needed to answer before deciding the case. The Appeals Court sent the case back to the trial court and the jury to decide whether or not Nadel earned his share of the royalties under the oral contract. The specific questions that the Appeals Court required the jury to answer – (1) what performance the Modified Kenner Car agreement required of Nadel for him to earn a share of the royalties, and (2) whether Nadel fulfilled those performance obligations?
The parties ended up resolving this dispute in a confidential settlement before returning to the jury for answers to these additional questions. However, neither party could take a victory lap in this case, having spent too many years fighting and thousands upon thousands of dollars on lawyers. This dispute could have been avoided with a well-crafted contract.
Do you want to lower your risk of a contract dispute and avoid Court? We can help!
You can reach us at 508.548.4888 or firstname.lastname@example.org
© Foley & Foley, PC 2017
THE DOJ AND THE EEOC CANNOT AGREE WHETHER TITLE VII PROTECTS SEXUAL ORIENTATION DISCRIMINATION
In a case that takes parents fighting in front of the kids to new heights, the Department of Justice claims that Title VII does not cover discrimination on the basis of sexual orientation, the opposite position taken by the Equal Employment Opportunity Commission. In fact, the EEOC had filed an amicus brief on the same Second Circuit case last month (Melissa Zarda et al. v. Altitude Express dba Skydive Long Island et al) which stated that sexual orientation discrimination is inextricably linked to gender, involves gender-based discrimination regarding whom a person associates with, and is linked to gender stereotypes and non-conformity.
Huh? The EEOC has been out in front on this issue for some time. Sexual orientation discrimination claims are working their way through several appeals courts and may soon be at the U.S. Supreme Court. As we reported in April, https://workplacelawhelp.com/2017/04/ the Eleventh Circuit in mid-March issued a decision counter to the Seventh Circuit’s Hively ruling, affirming dismissal of a lesbian hospital security guard’s claim she was fired because of her sexual orientation while letting her replead a gender nonconformity claim. Her lawyers have said they would take the case to the high court.
Treating sexual orientation like gender under discrimination laws is the best course unless and until the DOJ can persuade the US Supremes otherwise. We will keep you posted.
GRILLING AND CHILLING
Spice-rubbed carrots: Roll peeled carrots in cumin, salt, pepper and brown sugar. Char, then move them away from direct heat and cover the grill until carrots are tender.
Grilled Chicken Parm: Pound breast thin (key), top one side with sliced tomato, mozzarella and Parmesan; fold in half, seal with a toothpick or skewer and grill for a few minutes on each side.
Bon apetit! (recipes by Mark Bittman, tested by Foley & Foley)
Well, we knew this day would come. Despite the fact that marijuana remains a Schedule I Controlled Substance under Federal law (defined as a drug or other substance that has no currently accepted medical use in treatment in the United States), the Massachusetts Supreme Judicial Court just held that marijuana is per se a reasonable accommodation for disability. In other words, employers in Massachusetts that test for marijuana need to immediately amend their policies and procedures to allow for the possibility of accommodating an applicant or employee’s medical marijuana use. Deep breaths.
This is going to create a giant mess, you say. You are not wrong, but at least the SJC outlined places where employers can demonstrate undue burden when they get sued.
But it does not necessarily mean that the employee will prevail in proving handicap discrimination…For instance, an employer might prove that the continued use of medical marijuana would impair the employee’s performance of her work or pose an “unacceptably significant” safety risk to the public, the employee, or her fellow employees. …Alternatively, an undue hardship might be shown if the employer can prove that the use of marijuana by an employee would violate an employer’s contractual or statutory obligation, and thereby jeopardize its ability to perform its business. We recognize that transportation employers are subject to regulations promulgated by the United States Department of Transportation that prohibit any safety‐sensitive employee subject to drug testing under the department’s drug testing regulations from using marijuana…In addition, we recognize that Federal government contractors and the recipients of Federal grants are obligated to comply with the Drug Free Workplace Act, 41 U.S.C. §§ 8102(a), 8103(a) (2012), which requires them to make “a good faith effort . . . to maintain a drug-free workplace,” and prohibits any employee from using a controlled substance in the workplace.
As I said, deep breaths. All is not lost, and compliance is possible.
As a reminder, both Massachusetts and federal law require employers to engage in an interactive dialogue with qualified disabled employees who request reasonable accommodation. Indeed, it was Advantage Sales and Marketing’s refusal to engage with Christina Barbuto, rather than their drug testing practices that the Supreme Judicial Court appears to take issue with. MCAD Guidelines, § VII.C advise that once a handicapped employee notifies the employer of need for accommodation to perform essential functions of job, “the employer should initiate an informal interactive process” with the employee to “identify the precise limitation resulting from the handicap and potential reasonable accommodations that could overcome those limitations”). The SJC makes clear that marijuana use may cause undue hardship for some employers, but employers cannot make that determination unless or until they engage with the employee to determine whether a qualifying disability exists, and whether factual circumstances surrounding the employee’s request would impose an undue hardship on the employer.
There are a few things to keep in mind:
So what steps should an employer take if an employee notifies them that the employee is a medical marijuana user?
Engage with the employee to determine the nature of the employee’s impairment, the nature of the accommodation the employee is requesting (is the employee asking to use marijuana at work, or merely notifying the employer that he or she will fail a drug test?), and whether there are alternative accommodations that will allow the employee to perform the essential functions of the job. This process should be clearly documented, and in many cases will include the employee’s healthcare provider. Depending on the employee’s requested use or the nature of the employee’s position, the request to use marijuana may not be reasonable or it may impose an undue hardship on the employer. However, the employer cannot come to this determination unless or until they engage with the employee.
And, it wouldn’t hurt to update your drug use and drug testing policies.
Think fast, the California Labor Commissioner just released a new notice regarding rights for victims of domestic violence, sexual assault, and stalking. Employers must begin providing this notice to new hires – well, now. It must also be provided to other employees upon request. The Labor Commissioner’s Notice is here: http://www.dir.ca.gov/dlse/Victims_of_Domestic_Violence_Leave_Notice.pdf
Employers also have the option of creating their own notice. That’s right, time to update your handbooks.
Last week, Washington joined California, New York, New Jersey, and Rhode Island in guaranteeing paid family leave. Washington’s law is perhaps the most generous of the bunch, and the first to pay for the program without tacking it onto a state run disability program. The District of Columbia also approved a paid family leave law that will take effect in July 2020.
Washington State’s law will also take effect in 2020 and will offer eligible workers 12 weeks of paid time off for the birth or adoption of a child or for the serious health condition of the worker or the worker’s family member and an additional two weeks of leave for complicated pregnancies.
Washington’s paid family and medical leave will be funded through weekly paycheck contributions made by both employers and employees, similar to health insurance. Lower wage earners and their employers will contribute less than higher wage earners and their employers. Employers with less than 50 employees will have no obligation to contribute, although their employees will still contribute. Finally, self-employed workers in Washington will also be eligible to participate.
While employers in Washington have some time to prepare for this new law, this law stands as further proof that the big employment law changes are taking place at the state level. Employers with employees in multiple states should be ready to update their handbooks to include changes to state laws. Additionally, Washington employers do not have to wait until 2020 for a big change, as paid sick time is coming to the state in 2018.
The statewide Paid Sick Leave law is largely modeled after Seattle’s Paid Sick and Safe Time Ordinance that took effect in 2012. While both the Seattle and the proposed state law provide paid leave for the same reasons—an employee’s own or a family member’s illness, injury or medical care, a public health emergency, or qualifying reason under the state’s Domestic Violence Leave Act—they also have differences. It is important for employers to understand that where the state and local paid sick leave rules differ, employers will have to provide the benefit that is most generous to the employee. This will create complex compliance challenges, and we recommend working with an employment attorney to create and administer policies that satisfy both state and local laws. L&I is in the process of developing proposed rules for the new sick leave law, which will include opportunities for public comment, including public hearings. If you are interested in taking part, you can sign up for updates: http://www.lni.wa.gov/Main/Listservs/WRWageHour.asp.
Back in 2015 and 2016, the DOL issued extensive regulatory guidance on independent contractors and joint employment that were essentially broad announcements of the agency’s changing (and much more employee friendly) views on the topics. Many employers greeted this guidance unfavorably, and felt the DOL was attempting to skirt the traditional regulatory process.
Today, in perhaps the first concrete sign of the new administration’s more business friendly posture, the DOL announced the withdrawal of that guidance (Administrator’s Interpretations No. 2015-01 (July 15, 2015, on independent contractors) and No. 2016-01 (Jan. 20, 2016, on joint employment)).
Whether Trump’s DOL intends to take concrete steps to undue the prior administration’s labor related agendas remains to be seen, but this is certainly a sign of a changing tide.
Clients often receive pressing, official-looking notices urging the purchase of mandatory employment law postings. While you do have to post, you do not have to buy. Although some states also try to sell posters
which is really cheap, all required postings are available free of charge (keep scrolling). Please see the links below, from the federal government and states where we practice:
New Hampshire: https://www.nh.gov/labor/forms/mandatory-posters.htm
North Carolina: http://www.nclabor.com/posters/posters.htm
As always, should you have any questions including information for additional state postings, please contact us. We can help. Mike@foleylawpractice.com or 508-548-4888
Happy Memorial Day! For many, this is a day to honor fallen soldiers and also a time to get ready for summer.
Have you done the following?
If you answered “No” to any one of these questions, we can help! Read on.
It is outside our wheelhouse but we do like to be helpful. See the latest list from Consumer Reports. http://www.consumerreports.org/sun-protection/get-the-best-sun-protection/
In 2016 alone, California, New York, Nebraska, Maryland and Massachusetts passed aggressive equal pay legislation. If you are not in this group, the EEOC’s proposed expansion to the EEO-1 reports means more pay data will be required from federal contractors and employers with more than 100 employees.
Do I Need to Buy More Software?
Absolutely not. By now you may have seen software solicitations touting the importance of statistical analysis to comply with pay equity. Beware. Sizes matters: unless an employer has a significant number of employees performing the same role and a statistically significant amount are women, a statistical analysis will not produce reliable results. Most of our clients should perform a cohort analysis, which better compares the factors affecting pay.
Why Should I Use Your Pay Equity Audit?
By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential. Moreover, in Massachusetts you create a rolling affirmative defense by conducting an evaluation of pay practices if it is completed within three years prior to the commencement of a wage discrimination claim. We have developed an effective and painless Pay Equity Audit to achieve compliance and create an affirmative defense.
The effective date of the MA Pay Equity Law is July 1, 2018. Many of you are planning for 2018 in your budgets and hiring. Include Pay Equity in that list to be compliant and create the rolling affirmative defense against any future claims.
Software slamming aside, Bill Gates is a pretty smart guy. His summer reading list looks terrific. Check it out! https://www.gatesnotes.com/About-Bill-Gates/Summer-Books-2017?WT.mc_id=05_22_2017_10_SummerBooks2017_BG-media_&WT.tsrc=BGmedia
MIDYEAR HANDBOOK AND DIAGNOSTIC AUDIT
Probably not high on your reading list but terribly important is your employee handbook. When is the last time you read it? We recommend that you review and update your handbook on an annual basis. Now is a particularly good time given the many local and state law updates. Marijuana, equal pay, paid family leave, sick leave—many changes have taken place that are probably not properly addressed in your handbook.
Why Worry about the Handbook?
A well-crafted handbook serves many valuable purposes:
Your Handbook are a valuable tool for you and an important resource for employees.
What is the Diagnostic Audit?
The Risk Management Diagnostic Audit is a tool we have developed to allow you to identify and respond to the compliance risks at your workplace. This audit targets your organization’s unique vulnerability and provides action items to put you on the path to compliance. Please check out our website or call 508-548-4888 for the steps and timelines for this popular service. http://www.foleylawpractice.com/diagnostic-compliance-audit.html
Enjoy the long weekend!
Contact us at 508-548-4888 or email@example.com
On May 4, 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty. Could this order allow discrimination against LGBTQ individuals and women, as feared? Will this impact the workplace? No. Here is the line to remember: Existing laws cannot be overturned by Executive Orders.
Let’s take a look at this Order as a good example. The portion of the Order that pertains to Federal law is:
_Sec_. _4_. _Religious Liberty Guidance_. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.
Attorney General Jeff Sessions can issue guidance until the cows come home: The US Equal Employment Opportunity Commission (EEOC) does not answer to him. The EEOC is an independent federal agency charged with enforcing federal laws against illegal discrimination in the workplace. Laws like the ADA, ADEA, FLSA, FMLA and Title VII are under the purview of the EEOC for enforcement and guidance. Congress may make changes to the laws and the courts can overrule, clarify or uphold the laws.
Executive Orders might be good optics but cannot impact the rule of federal. state or local law in the workplace.