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According to recent reports, approximately 220,000 reservists and National Guard members are on active duty. With the first phase of the Iraqi war nearing an end, many of these individuals may soon return home. This article answers some of the most frequently-asked questions by employers concerning their obligations to employees both while such employees are on military leave as well as when they return to work as civilians. An employer's obligations with respect to these issues is governed by the Uniformed Services and Reemployment Rights Act (USERRA).
Many corporate and litigation counsel know that oral settlement agreements may be enforceable. However, such counsel should be aware that terms discussed as mere possibilities during settlement negotiations may be mistakenly or knowingly misconstrued by an opposing party as an actual settlement agreement or an offer to settle. The former, or acceptance of the latter, could lead to two undesirable results if opposing counsel seeks enforcement by the court. First, the court could require an unwanted lengthy and expensive evidentiary proceeding to determine whether or not such an agreement occurred ' an outcome which would be based solely on the credibility of the witnesses involved. Second, and even worse, the court could enforce an unintended settlement agreement. In fact, if the underlying lawsuit is pending in federal court, such unintended and unwanted results could occur even if the otherwise applicable state law has a writing requirement.
Features
A French acquaintance recently commented that my job is very '' la mode.' She was not referring to ice cream; rather, she was suggesting that the role of the corporate governance officer is very trendy. There certainly has been a lot of media buzz about corporate governance in recent months, including reports that a growing number of public companies have designated governance officers. However, neither corporate governance nor the role of the corporate governance officer should be viewed as a fad that will soon pass from the scene. The effort to achieve and maintain good governance is here to stay; there is much evidence that the corporate and investment establishments are creating permanent infrastructures to develop, evaluate and continuously improve governance practices.
Features
The Sarbanes-Oxley Act creates a number of new requirements for publicly traded companies that are intended to improve corporate governance and avoid another WorldCom or Enron. While many organizations have focused on the immediate requirements, more needs to be done to help create a corporate culture that both promotes legal and ethical business practices and provides employees with an effective tool to report fraud or accounting irregularities.
Features
The U.S. Supreme Court recently issued its first decision interpreting the Federal Trademark Dilution Act of 1995 (FTDA) in Moseley v. V Secret Catalogue, Inc. In an opinion that corporate counsel were eagerly awaiting, the unanimous Court held that proof of actual dilution was required to succeed on a claim of trademark dilution under the FTDA. This decision effectively raises the bar for trademark owners and their counsel to prove a claim of actual dilution.
Features
The SEC recently issued new rules regulating the conduct of attorneys practicing before it. The SEC has also proposed a new rule ' open for a 60-day comment period ' that would create an 8-K public reporting requirement by the board of directors, to be triggered by a lawyer's mandatory withdrawal from the representation in the event of uncorrected client actions.
Most sophisticated employers are aware that the Fair Labor Standards Act (FLSA) requires that employees be paid overtime when they have worked more than 40 hours per week. Most employers also know that the FLSA contains certain exemptions from that rule. Those exemptions include what are commonly known as the 'white collar' exemptions. The white collar exemptions apply to those employees 'employed in a bona fide executive, administrative, or professional capacity.' When those exemptions apply, they may save significant overtime costs and ' often more importantly ' provide employers with useful flexibility for scheduling employees. Unfortunately, many employers in various industries are classifying employees as exempt who do not qualify for the exemption.
Features
Recent developments of interest to corporate counsel.
The concept of value-based fees for legal services is generating a steady buzz in the legal marketplace. Debate, discussion, reports and articles abound as attorneys and their law firms try to figure out if there is a better compensation model than the billable hour.
Features
This is part three of a three-part series on technology-related issues of importance to General Counsel. The increasing pressure to produce electronic data and documents in native formats puts in-house counsel on the front lines during, and even prior to, the electronic discovery phase of litigation. The basic obligations in-house counsel have prior to potential litigation include developing a corporate strategy for electronic data preservation and retrieval, implementing the plan, documenting policies and procedures in writing, and disseminating the policies and procedures to appropriate internal parties. Missteps in any of these areas can and has led to various sanctions ranging from fines to default judgments.