ORACLE PREVAILS OVER GOOGLE ON COPYRIGHT CLAIMS

As a follow up to an earlier blog post on this topic, a jury found that Google infringed Oracle’s Java copyrights in creating the Android operating system, but it did not violate Oracle’s Java documentation copyrights. The jury could not reach a unanimous verdict on whether Google’s use of Oracle’s APIs was defensible as fair… Continue reading »

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Wal-Mart Gets Caught in FCPA Disaster

Just a few weeks ago, we hosted a webinar with an expert panel and discussed the increased enforcement and risk of anti-bribery laws. Well, we predicted we would see increased FCPA activity in 2012 and we didn’t have to wait long. Wal-Mart may be the new FCPA poster company this year. Earlier this week, the… Continue reading »

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CA Supreme Court Decides Brinker Case

Yeah! As we predicted in our Annual Legal Update in January, the California Supreme Court issued its long awaited decision yesterday and held that employers just need to provide meal and rest periods and not ensure that they’re taken. Click here for the official Supreme Court press release. Given the explosion of class action litigation… Continue reading »

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ORACLE PREVAILS OVER GOOGLE ON COPYRIGHT CLAIMS Wal-Mart Gets Caught in FCPA Disaster CA Supreme Court Decides Brinker Case

May
11

ORACLE PREVAILS OVER GOOGLE ON COPYRIGHT CLAIMS

by Janine Yancey

As a follow up to an earlier blog post on this topic, a jury found that Google infringed Oracle’s Java copyrights in creating the Android operating system, but it did not violate Oracle’s Java documentation copyrights. The jury could not reach a unanimous verdict on whether Google’s use of Oracle’s APIs was defensible as fair use. Whether infringement is permissible as fair use or not depends on several factors: the purpose of the copying, the creativity of the copied work, the quality and quantity of copying, as well as how the copy affects the original on the market. In response to the mixed and incomplete verdict of the jury, Google moved for a mistrial and Judge William Alsup indicated he will consider Google’s argument after briefing.

If employees within your company write code . . . or anything else for that matter, you may want to consider launching a short course on copyright law so those employees can “issue spot” and avoid problems, or at least refrain from discussing the risks and problems in an email like the google employees did.

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Apr
25

Wal-Mart Gets Caught in FCPA Disaster

by Janine Yancey

Just a few weeks ago, we hosted a webinar with an expert panel and discussed the increased enforcement and risk of anti-bribery laws. Well, we predicted we would see increased FCPA activity in 2012 and we didn’t have to wait long. Wal-Mart may be the new FCPA poster company this year.

Earlier this week, the New York Times published the results of its anti-bribery investigation regarding Wal-Mart’s Mexican subsidiary – Wal–Mart de Mexico. The Times investigators spent many hours with several former executives, including Sergio Cicero, who resigned from Wal-Mart de Mexico in 2004 after nearly a decade in the company’s real estate department. In interviews, Mr. Cicero recounted how he had helped organize years of payoffs . . . approximately $25 million dollars worth. He described personally dispatching two trusted outside lawyers to deliver envelopes of cash to government officials. They targeted mayors and city council members, obscure urban planners, low-level bureaucrats who issued permits — anyone with the power to thwart Wal-Mart’s growth. The bribes, he said, bought zoning approvals, reductions in environmental impact fees and the allegiance of neighborhood leaders. The bribery removed any obstacles to growth and Wal-Mart quickly became the dominant retailer in Mexico. In 2005, Mr. Cicero reported the bribery to Wal-Mart International’s General Counsel. However, Wal-Mart’s most senior executives, including its current CEO, allegedly decided to quickly squash the complaint and cover it up.

Now Wal-Mart faces hundreds of millions of dollars in possible fines, criminal charges, shareholder suits, competitors’ antitrust suits, potential action by the Securities and Exchange Commission and a drop in stock price, almost 5% at last check. FCPA and the UK Bribery Act are serious and should not be ignored. If you’re in compliance, take a few minutes to review our recorded webinar and/or our business compliance checklist. You can access either by clicking here.

Also, we promise we did not have any inside information when we shot our most recent anti-bribery workplace video, but it is interesting to watch in light of Wal-Mart. Click here to view it.

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Apr
13

CA Supreme Court Decides Brinker Case

by Janine Yancey

Yeah! As we predicted in our Annual Legal Update in January, the California Supreme Court issued its long awaited decision yesterday and held that employers just need to provide meal and rest periods and not ensure that they’re taken. Click here for the official Supreme Court press release. Given the explosion of class action litigation over meal and rest breaks, the California Supreme Court handed employers a nice defensive weapon to combat claims. Employers just need to be very clear in their policies and make sure they have documented proof of training non-exempt employees regarding those policies. We’re not the only ones that are espousing documented training on important HR policies.

We’ve tried to make this very easy for you. So, click here for a Sample Wage & Hour Policy (but please tailor it for your own operation) and click here to request a Complimentary Policy Mini-Course so you can train employees on your Wage & Hour policy without incurring any expense. Happy Friday!

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Apr
11

US Labor Department Launches New Enforcement Initiative on CA Restaurants

by Janine Yancey

If you’re in food and service or the hospitality industries and you operate in California . . . watch out this year! The DOL just announced a new enforcement initiative to scout out wage and hour violations and misclassification issues within the industry. So far, 71% of the employers investigated are found to be in violation. Those aren’t good odds for you. If you haven’t done it yet, spend some time reviewing your Wage & Hour policies and training your District and General Managers on Wage & Hour laws. We have a course in our Essentials Library on the topic. Further, we’re creating a Complimentary Learning Snippet that everyone can use to train the entire workforce on your specific policy on how to track hours worked and when to take lunch, breaks, etc. Check your Dashboard by May for the Complimentary Learning Snippet.

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Apr
06

Whistleblower Protection Likely To Increase Corruption Claims and Enforcement

by Janine Yancey

On Wednesday, emTRAiN hosted a very informative webinar on the dramatic increase in the U.S. government’s enforcement efforts relating to Insider Trading, Foreign Corrupt Practices Act (FCPA) violations and other corruption violations. Paul Friedman, a Partner at Morrison & Foerster indicated that the relatively new Frank-Dodd Act will significantly increase the dangers posed to companies and individuals. The law contains a provision that will reward whistleblowers who voluntarily provide information leading to the successful enforcement of U.S. securities laws, including the FCPA, with between 10% and 30% of any recovery over $1,000,000. The whistleblower must provide “original” information, not already known to the SEC and not merely derived from existing investigations, audits, or reports.

What does that mean? It means your employees may get up to a 30% cut (similar to plaintiffs’ lawyers by the way) for reporting any ethical breaches within your company to the U.S. Government. The SEC is already reporting an increase in the number of reports.

As always, we’re trying to help our valued clients protect themselves and manage their risk. So, click here to get a complimentary Business Compliance Checklist and/or listen to the recorded webinar.

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Apr
04

Using Facebook to Review Candidate Backgrounds is a No No.

by Janine Yancey

Last week, Facebook posted this note regarding the increasing trend of employers and managers asking applicants for Facebook passwords to check them out online before making a hiring decision. Just because technology changes doesn’t mean the rules of the game change. A pretty basic rule on interviewing and hiring is that you may not consider or evaluate candidate information that is not closely connected with the business needs of the particular position. So, what clubs they belong to; which bars or restaurants they frequent; how they spend their nights and weekends . . . all of that is irrelevant to business needs and should not be evaluated. To the extent you do evaluate that information, you’re opening yourself up to a discrimination claim. Perhaps its time to launch emTRAiN’s Hiring Skills and Restrictions course?

See the Facebook note by clicking here.

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Mar
21

More States Join DOL Misclassification Initiative

by Janine Yancey

The Department of Labor (DOL) continues to expand the number of state agencies with which it is coordinating for its Misclassification Initiative, meaning the misclassification of employees as independent contractors. The most recent additions are the Colorado Department of Labor and Employment and the Louisiana Workforce Commission.

The list of those with whom the DOL is coordinating include:

  • California, Connecticut, Maryland, Massachusetts, Minnesota, Missouri, Utah, and Washington,
  • State labor officials in Hawaii, Illinois, and Montana,
  • and New York’s Attorney General.

In the various cooperation agreements, the state agency and the DOL typically pledge to:

  • Conduct joint investigations periodically,
  • Coordinate enforcement activities and provide mutual assistance,
  • Refer potential violations of statutes enforced by the other,
  • Develop “methodologies” for exchanging leads and complaints, and
  • Otherwise share information “as appropriate.”

Also, keep in mind that the DOL has a similar cooperation agreement with the IRS. Companies and other organizations would be safe to assume that experiencing any audit or investigation by any agency, will trigger the scrutiny of other government agencies. Given the current landscape, it would be wise for every organization to conduct a risk assessment with respect to the contingent workforce and whether there is any vulnerability to a claim of misclassification. If so, now is the time to address it.

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Mar
10

DOJ and SEC Increase Anti-Corruption Enforcement

by Janine Yancey

In the last few years, the DOJ and SEC have increased their staff and budgets in order to better track down corporate bribery violations.

In January, the Justice Department announced a $54.6 million settlement in the Marubeni case, involving bribery of Nigerian officials to gain engineering and construction contracts. In February, the Justice Department announced a $16.8 million settlement with Smith & Nephew as part of an investigation into bribery by medical device companies of physicians employed by government institutions.

2012 could be a record year for the Justice Department in terms of collecting settlements and may exceed their record 2010 year of $16 billion collected in settlements. Further, there are a number of investigations close to resolution, particularly in the pharmaceutical and medical device industries.

Do you understand your risk? The government is interpreting “foreign official” and “payment” very broadly, and you may have risk you’re not aware of. Also, the government is targeting pharmaceuticals, medical device, biotech, technology, defense contractors, and telecommunication companies, among others.

If you want a concise overview of the enforcement landscape and how to avoid or minimize your risk, join our panel of experts on April 4th at 11:00 PST. Click here to access our registration page.

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Feb
24

DOL Issues New Rules On H-2B Visas: U.S. Workers Get More Protection

by Janine Yancey

The Department of Labor (DOL) has issued new rules governing the H-2B visa program which allows foreign, non-agricultural workers to obtain temporary visas for which qualified U.S. workers are 1) not available and 2) where their employment would not adversely affect U.S workers’ wages or working conditions.

The new rules go into effect on April 23, 2012 and will:

• create a national registry for all H-2B job postings and an increase in the amount of time during which U.S. workers must be recruited.
• require employers to rehire former employees where possible.
• extend H-2B program benefits, such as transportation costs and wages, to U.S. workers performing substantially the same work as guest workers.

For additional information, see the DOL’s website at www.dol.gov.

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Feb
10

Private Sector Bias Charges Hit All Time High in 2011

by Janine Yancey

In FY 2011, the EEOC helped 5.4 million workers, obtained more than $450 million dollars in settlements and forced millions of employers to implement very specific training programs and report training activities back to the EEOC. Moreover, the EEOC wanted to see all training documentation.

Many employers ask us if EEO and harassment training are statutorily required. Implicit in the question is the idea that if it isn’t required, they won’t do it. Here’s the deal. A few states have an actual training law on the books. Most do not. But, if you get any claim asserted against you, the first question you’ll get is to hand over your training documentation and proof that you trained everyone in your workforce.

Just this week, I met with a large staffing firm that told me the following story. One of their clients terminated a contractor because she was pregnant. The staffing firm was sued along with their client. The state agency asked for all EEO training documentation and proof of training. While the staffing firm conducts an annual 20 minute awareness training, they don’t have it in a format where they can quickly produce a training script and database records of learner participation in the training. In short, their awareness training didn’t stop the questions of the EEO investigators and instead prompted more questions such as, how long does each person spend in the training? do they need to get the questions correct to proceed? what case studies are included in the training? Ideally, you should be able to produce a course transcript and litigation training record that tells the whole training story from the face of the document. After looking at your training “evidence”, there shouldn’t be any further questions . . . Which is one of the first things you learn as a litigation attorney. . . If you have to explain and walk people through your evidence, then it’s not great evidence. Same concept applies to training. The more you need to explain your training documentation, then its not great documentation and it won’t help you in a claim.

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