Mark Miller to Present How to Properly Conduct an Internal Investigation

On April 16, 2015, Bowers Harrison attorney, Mark E. Miller, will present on How to Properly Conduct an Internal Investigation. The seminar is sponsored by the Evansville-Area Human Resource Association and will provide employers with information on relevant issues and practical tips on how to investigate complaints of discrimination, harassment, and requests for accommodation.

 

For registration information, please contact Mark E. Miller or visit the Evansville-Area Human Resource Association website.

Are LinkedIn Contacts Protectable Trade Secrets?

Many professionals maintain robust social media accounts to raise their public profile and generate business – often at the encouragement of their employers. As just one example, LinkedIn, with its more than 347 million users, proclaims itself as the “World’s Largest Professional Network” and the leader among those social networks aimed at professionals. However, an employee’s LinkedIn contact list can be a valuable asset generated while on the job, from which competitors can gave insider information. Protecting that information is now the subject of a federal court case in Los Angeles, California.

In Cellular Accessories for Less, Inc. v. Trinitas LLC, No. 12-06736 DDP SHX, 2014 WL 4627090, (C.D. Cal., Sept. 16, 2014), Cellular Accessories for Less, Inc. (“Cellular”) sued its former employee and his new employer in California federal court, alleging that they violated various trade secret protections, including by continuing to use the former employee’s LinkedIn contacts and related data developed while he was an employee of Cellular. Cellular argued that the former employee had signed agreements that contained nondisclosure, noncompetition, and confidentiality provisions protecting “proprietary information” and trade secrets of Cellular, including the LinkedIn contacts and related data. The former employee argued that the LinkedIn contacts were not trade secrets, because they could be viewable by the public.

In its opinion, the court stated it could not decide the issue without a trial for two reasons. First, the court needed to know “to what degree the former employee’s LinkedIn contacts were indeed made public”, acknowledging that different LinkedIn users have different privacy settings managing what is “public”. Second, the court needed to know that if the former employee’s contacts were in fact public, “whether it was done with Cellular’s explicit or implicit permission.”

Commentary:

When a business is asked about protecting its proprietary and trade secret information, it often is quick to point to its “blackbook” of existing client/customer and potential leads as information that must be protected. However, businesses should understand that their employees’ LinkedIn profiles often provide the same information to competitors. Just as businesses adapt, the legal system must recognize those changes and allow businesses to protect the electronic age’s version of the blackbook (i.e., social media contact lists). The California federal court’s ruling suggests a business may claim its employees’ LinkedIn contact lists are proprietary information and trade secrets and forbid the use of those lists by a former employee and/or competitor if the employer 1) explicitly forbids its employees from allowing the public to view those LinkedIn contacts and 2) has a strong nondisclosure, noncompetition, and confidentiality agreement with employees.

For information on protecting your business’ proprietary and trade secret information, including client and pricing lists, please contact us.

Changes to Southern District of Indiana Local Rules

Effective January 1, 2015, the United States District Court for the Southern District of Indiana adopted a number of amendments to the Local Rules (see the red-lined changes here). One major change relates to Local Rule 5-11 – Filing Papers Under Seal, which was deleted in its entirety and replaced with a new Local Rule.

Under the new 5-11(a), a party must still file a motion requesting that the court seal the case at or before the time the party files its initial pleading. Under the old rule, if the judge later denied the motion to seal, the case was immediately unsealed. Under the new rule, “[i]f the court denies the motion, the clerk will unseal the case 14 days after service of the order, absent a Fed.R.Civ.P. 72(a) objection; motion to reconsider; or notice by a party of intent to file an interlocutory appeal.” S.D. Ind. L.R. 5-11(a) (emphasis added). Under the old rules, a party had no notice of the court’s decision until after the papers were made public, and therefore, if a party was successful in appealing the judge’s order or the judge reconsidered his or her ruling, the papers were most likely already in the public sphere (e.g., http://www.justia.com/). Under the new rule, a party may fully exhaust its remedies of a court’s denial of a motion to seal before the papers are made available to the public.

Under the new 5-11(c), a procedure now exists that allows parties to redact “confidential information in a document [if it] is irrelevant or immaterial to resolution of the matter at issue.” S.D. Ind. L.R. 5-11(c). In circumstances of documents redacted pursuant to Federal Rule of Civil Procedure 5.2 (e.g., birthdates, social security numbers, or account information), such documents “must not be filed under seal.” Id. However, if a party files “such a redacted document [that party] must serve an unredacted and complete version of the document upon all counsel and pro se parties.” Id. The intent of this particular rule change is to provide explicit guidance to counsel that the limited resources of the court should not be spent reviewing motions to seal documents that are only seeking to protect information that is not germane to the case or issue.

If you have questions on this issue or any other litigation issue and how it may affect your business, please contact us.

Bowers Harrison Partner Greg Granger Elected Warrick County Circuit Court Judge

Bowers Harrison Partner Greg Granger has been elected Warrick County Circuit Court Judge. He won his bid Tuesday night earning nearly 60% of the ballots cast.

Greg, a lifelong Indiana resident, has been an attorney dedicated to his clients for more than 30 years, representing a variety of local residents and businesses in criminal, business, immigration, and sports law matters. He has also served as attorney for the Warrick County Council since 2001.

“The attorneys and staff at Bowers Harrison have been like a second family to me since I moved to the Evansville area more than 28 years ago,” said Greg. “Throughout this period I have had the pleasure of working with many dedicated and extremely talented individuals. As I prepare to commence a new journey in my legal career I will always cherish the friendships and adventures I have experienced during my time at Bowers Harrison.”

Upon hearing the news of Greg’s election, Bower Harrison Partner David Gray had this to say:

“It has been my pleasure to work with Greg for many years. He is an excellent attorney and a good and honorable man. I and everyone else at Bowers Harrison will miss him, but the sting of our loss will be lessened by the knowledge that the good people of Warrick County will be gaining yet another dedicated and capable judge.”

Greg will continue to practice law and represent his clients at Bowers Harrison for the remainder of 2014 as he transitions into his new role as Warrick County Circuit Court Judge beginning January 2015.

Mark Miller to Present on Diversity, LGBT, and Religious Issues Affecting Employers

On November 13, 2014, Bowers Harrison, LLP attorney Mark E. Miller will give presentations on New HR Developments for Diversity, Religion, and LGBT matters. The seminar is sponsored by the Evansville-Area Human Resource Association and will provide employers with information on relevant issues and practical tips on how to promote diversity and handle common questions relating to accommodating religion and LGBT matters in the workplace.

Please contact Mark E. Miller or visit New HR Developments for Diversity, Religion, and LGBT matters for registration information.

Does An Employer Have to Give Light-Duty Jobs To A Disabled Worker As A Reasonable Accommodation?

On June 27, 2014 a Federal District Court Judge, Catherine C. Eagles, in Greensboro North Carolina, granted summary judgment for the employer in the case of EEOC v Womble Carlyle Sandridge & Rice, LLP (M.D.N.C, June 26, 2014) holding that the employer did not have to create a light-duty job as a reasonable accommodation in an Americans With Disabilities Act (ADA) case. Thereby, the judge rejected the Equal Employment Opportunity Commission’s (EEOC) claims.

Facts

Ms. Jennings was an office support services assistant (“SSA) for the law firm of Womble Carlyle located in Winston-Salem, North Carolina.  She was diagnosed with breast cancer during her employment. Her job description required her to lift or move items weighing up to seventy-five (75) pounds.  After a number of years, in 2008, Ms. Jennings developed a cancer-related condition that impaired her circulatory and immune systems.  As a result she was unable to lift more than ten (10) pounds at first.  Later a medical restriction prohibited her from lifting more than twenty (20) pounds.  However her job required her, as a condition of employment, to lift up to at least seventy-five (75) pounds.

After a number of layoffs, the SSA staff was light, requiring the remaining employees who were SSA’s to work independently.  For a time, Ms. Jennings was able to perform some of her duties, while avoiding the really heavy lifting and by modifying her lifting techniques. However, she could not perform many of her SSA job duties, as she simply could not work alone. The problem was that many of her job duties required the lifting of heavy files.

In February, 2011, Womble Carlyle placed Ms. Jennings on medical leave, as “she could not lift seventy-five pounds.”  After six months with no improvement, the law firm terminated Jennings’ employment.

The EEOC brought a lawsuit for Ms. Jennings claiming that the law firm failed to accommodate her disability in violation of the ADA.

Summary Judgment Decision

Womble, Carlyle moved for summary judgment asking the Court to dismiss the case on the basis that the employee could not perform the essential functions of her job without a reasonable accommodation and that she was not a qualified individual under the ADA..  The Court agreed.

The Court reached its decision concerning whether Ms. Jennings was a “qualified individual” under the ADA by engaging in a two-part analysis:

1. Was lifting twenty (20) pounds an essential job function?

2. Can the employer reasonably accommodate this employee with regard to her lifting restrictions?

First, the Court found that lifting more than twenty (20) pounds was, in fact, an essential function of the SSA job based, in part, on the job description.

Second, the Court found that certain accommodations for Ms. Jennings would substantially modify and alter the job function to the extent that it was not reasonable for the employer as it would fundamentally change the SSA position. Specifically, the EEOC’s proposed solutions were contrary to the well-established principle that the ADA does not require an employer to either create a “modified light duty position” or “relocate essential functions” to another employee. The Court, therefore, held that the employer was not required to make such accommodations by modifying her job to create a light-duty job.

Editorial Comment:   This Court decision emphasizes the importance of creating job descriptions that are accurate and detailed in setting forth the essential functions of a job, especially in the areas of lifting, standing, every day attendance, shifts and other essential job functions needed to perform the job.

Also, in cases involving disabilities, an employer must be careful to have medical restrictions documented, while engaging in an “interactive process” to show that it determined if there were any reasonable, legally necessary accommodations that it did not consider.

Document Retention and Destruction in Indiana – Learning CDs and Manual Available

Bowers Harrison, LLP attorney Mark Miller presented a seminar entitled “Document Retention and Destruction in Indiana” on April 30, 2014. Topics included:

• Developing Document Retention and Destruction Policies and Procedures
• Understanding Business Records
• New Technologies and Cyber Security
• Business Record Management in Anticipation of Litigation
• Real-World Applications of Business Record Policies
• Best Practices – Balancing Organizational Needs and Litigation Risks

Educational materials from this seminar are now available for purchase through Lorman Education Services.

Bowers Harrison Attorney Mark Miller to Moderate Seminar: Employment Law Update

On October 15, 2014, Bowers Harrison, LLP attorney Mark E. Miller will be moderating a seminar entitled Employment Law Update. The seminar is sponsored by Lorman Education Services and will provide training for a better understanding of the latest legal developments in labor law. Program highlights include:

    • Hiring
    • Employment Agreements and Handbooks
    • Document Retention and Electronic Discovery
    • Performance Review
    • Responding to and Investigating Complaints of Harassment/Discrimination
    • FMLA, ADA and Workers’ Compensation Leave Overlap Issues
    • Labor Law Updates
    • Wage and Hour
    • Termination
    • What Is New on the Horizon

Please contact Mark E. Miller or visit Lorman Education Services for registration information.

Mark Miller to Present on Human Resource Law Impacting Indiana Employers

On August 13, 2014, Bowers Harrison, LLP attorney Mark E. Miller will give presentations on Human Resource Law: What You Need to Know Now. The seminar is sponsored by the National Business Institute and will provide guidance on current hot button issues and practical pointers on how to handle common problem areas from hiring to firing. Program highlights include:

– The Affordable Care Act and Other Developments in Employment Law (Federal and State)
– Hiring/Recruiting
– Is Your Employee Handbook Up to Date?: Essential Components and Sample Policies for Today’s Workplace
– Wage and Benefit Issues
– Discrimination and Harassment
– Employee Discipline and Termination
– Workplace Behavior and Privacy Issues

Please contact Mark E. Miller or the National Business Institute for registration information.

Bowers Harrison Partner Greg Granger Picked to Run for Warrick County Circuit Court Judge

Bowers Harrison Partner Greg Granger has been selected to fill the vacant Republican candidate position for Warrick Circuit Court Judge. Greg, a lifelong Indiana resident, has been an attorney dedicated to his clients for more than 30 years. He represents a variety of local residents, in both civil and criminal matters, business law, immigration, and sports law. He has also served as attorney for the Warrick County Council since 2001.

In running for the Warrick Circuit Court Judge, Greg said, “I am honored to have been selected by the Republican Party as its candidate for judge of the Warrick County Circuit Court. My campaign will be driven by my enthusiasm, determination and confidence in my ability to serve the residents of Warrick County. I’m incredibly blessed to live in Warrick County and would love to serve a community that has given so much to my family and me over the years. My promise is to use every ounce of my ability to decide each case with diligence and a firm commitment to the rule of law.”

Greg will continue to practice law and represent his clients at Bowers Harrison, while running for office. For more information, please view the Evansville Courier & Press article by clicking here.