Hotline
February 01, 2004
Recent developments of interest to corporate counsel.
Employment Law Update: Recent Developments in the Supreme Court and Congress
February 01, 2004
The U.S. Supreme Court continues to keep employers on their toes by dealing with cases involving employment issues this term. During the first week of December, the Court issued its decision in <i>Raytheon Co. v. Hernandez</i>, No. 02-749, ___ S. Ct. ___ (2003), an ADA case involving the legality of an employer policy prohibiting the rehire of individuals fired for violating the employer's drug use policy. Also, the Court agreed to consider two other employment cases. First, in <i>Pennsylvania State Police v. Suders</i>, the Court will decide whether constructive discharge is a "tangible employment action" for purposes of sexual harassment claims. Second, in <i>Central Laborers' Pension Fund v. Heinz</i>, the Court will tackle an issue involving ERISA's anti-cutback rule for pension benefits.
New European Law on 'Works Councils' Demands HQ Strategy
February 01, 2004
A new European Union law coming online next year will force multinationals operating in Europe to set up in-house, shop-level worker groups that, to an American, look a lot like independent unions. The new law threatens to tie a multinational's hands whenever it decides, in the future, to change anything in its European operations. The good news is that the new law offers substantial freedom to structure worker groups in as business-friendly a way as you want. The catch: You can't delegate the "works councils" problem down to your local European HR, and you have to implement your headquarters-driven strategy this year, during a special window period. This article summarizes the new law, and then explains the "best practices" strategy of creating a works councils network template that takes advantage of the law's window-period that grandfathers-in works councils structured before tough regulations get issued later.
Avoid These Mistakes in Your Company's Employee Handbook
February 01, 2004
Employee handbooks continue to provide disgruntled employees with ammunition for lawsuits for breach of contract, violations of statutes and opportunities to recover punitive damages on discrimination claims. This article identifies mistakes commonly made by employers and discusses methods for eliminating those deficiencies.
Fighting Retaliation Under Sarbanes-Oxley
January 01, 2004
In order to restore public confidence in the financial market, and to reduce the likelihood of future crises by ensuring that the public receives more information about possible corporate fraud, Congress enacted the Corporate and Criminal Fraud Accountability Act of 2002, otherwise known as Title VIII of the Sarbanes-Oxley Act of 2002 (the Act). To achieve its intended purpose, Congress included protection for employees of publicly traded companies who "blow the whistle" on their employers. Because the procedures, time limitations and standards of proof governing Sarbanes-Oxley Act retaliation claims are substantially different than those under state and federal anti-discrimination statutes that many companies are quite familiar with, companies and their counsel need to become aware of the differences.
A Records Retention Policy in the Electronic Era
January 01, 2004
Every company should have a records retention policy. Due to increased use of e-mail, this policy must address the changing business world by including a clear directive on the retention and destruction of electronic records. (Companies tend to use the term "document retention policy." However, due to the proliferation of e-mail and other electronic data, "records retention policy" is more appropriate.) Most importantly, the policy must provide a directive that ensures that, when the threat of litigation arises, whether civil or criminal, all relevant documents are preserved.
Hotline
January 01, 2004
Recent developments of interest to corporate counsel.
Are You COBRA-Ready?
January 01, 2004
Early last year, the U.S. Department of Labor (DOL) published proposed regulations updating the notice and disclosure requirements applicable to health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA). These proposed regulations update model notices, give disclosure guidance, and establish two new required COBRA notices. The proposed regulations were originally effective for plan years beginning on or after January 1, 2004. However, in September, the DOL announced a delayed effective date in order to allow employers and plan administrators time to comply with the new requirements. The effective date is now 6 months after the DOL's adoption of the final rules to implement the administrative changes required by the new rules. The DOL expects to issue final rules in early 2004.
The Early Warning Signals of a Potential Media Crisis
January 01, 2004
Sixty-two percent of Americans equate "no comment" with "we're guilty", and the numbers have only gone up since Enron. A legal media strategy based on "no comment" is increasingly likely to lead to danger. An increasingly sensitive legal profession is confronting the same challenge on an almost daily basis: "I understand I need to be more vigilant about helping my client, and my own firm, navigate the landmines of high-profile cases. I know I need the skills to work with media professionals once the case goes public, but is there anything I can do before a problem gets dumped on my lap? How do I recognize the early warning signs of a potential crisis now, not when the reporters start calling?"
Demonstrating the True Burden of e-Evidence
December 01, 2003
Approximately 3 years ago in <i>Danis v. USN Communications</i>, Magistrate Judge Schenkier stated: "At some point, a party and/or its attorneys must be held responsible for knowing what documents are discoverable and where to find them." He prefaced this statement by reasoning that we cannot create a loophole in the discovery rules by allowing counsel to argue: "Judge, we just didn't know those tapes existed." <BR>Case law in the past 3 years, most notably in <i>Zubulake v. UBS Warburg</i>, decision, has expanded a corporate counselor's Danis duty to "know thy e-data." <i>See also Zubulake v. UBS Warburg</i>. Counsel representing today's 21st century companies need to know more than simply where electronic evidence resides; they also have a duty to know if that data is accessible (<i>ie</i>, how easily it can be restored and produced) and how much the whole process is going to cost.
