Mary Siceloff, Author at Weintraub Tobin

Sexual Orientation Discrimination Not Recognized Under Title VII

Published: March 28, 2017

by Lukas Clary
The Labor & Employment Law Blog

Federal law has long prohibited discrimination based on a person’s sex. In recent years, several courts have held that discrimination based on failure to conform to a gender stereotype is a form of prohibited sex-based discrimination. But courts across the country have been more divided about whether those same laws preclude discrimination based on one’s sexual orientation. According to a federal court in Georgia, the answer is no. In a decision handed down on March 10, 2017, the Eleventh Circuit Court of Appeals upheld the dismissal of a former Georgia hospital worker’s claim that she was fired because of her sexual orientation. In Evans v. Georgia Regional Hospital, the court held that Title VII does not cover such claims.

To read the case, please visit the HRUSA Blog at http://blog.hrusa.com/blog/sexual-orientation-discrimination-not-recognized-under-title-vii/.

Weintraub Appellate Specialist, Brendan Begley, Quoted in Article Regarding Sexually Hostile Work Environment

Published: March 24, 2017

Weintraub Tobin’s own Brendan Begley was recently quoted in a news article about an appellate court’s ruling that hugs and kisses in the workplace may create a sexually hostile environment. The article, titled “Sheriff discovers that work-hugs can lead to litigation“ by Laura Halleman, was published on Legal NewsLine. To read the full article, click here.

Brendan spearheads the firm’s Appeals and Writs group and is a member of the firm’s labor and employment, litigation, and trust, probate and elder abuse litigation groups. He is an Appellate Law Specialist certified by the State Bar of California Board of Legal Specialization.

U.S. Supreme Court Limits Laches Defense in Patent Cases

Published: March 23, 2017

by Eric Caligiuri

In SCA Hygiene Products AB et al. v. First Quality Baby Products LLC et al., the United States Supreme Court held that laches cannot be invoked as a defense against a claim for patent infringement damages brought within U.S.C §286’s 6-year limitations period. The U.S. Court of Appeals for the Federal Circuit had previously held in a 6-5 en banc decision that laches should apply in patent cases because U.S.C. §282 of the Patent Act passed in 1952 codified a pre-1952 practice of permitting laches to be asserted against damages claims. However, in a 2014 copyright decision, Petrella v. Metro-Goldwyn-Mayer Inc., the Supreme Court had previously held that laches cannot be used as a defense in a copyright infringement action brought within the Copyright Act’s three-year statute of limitations period. Thus, prior to the Supreme Court’s SCA Hygiene Products decision there had been a variation between copyright and patent laws in terms of the availability of a copyright defense.

The patent-in-suit in SCA Hygiene Products is U.S. Patent Number 6,375,646, entitled “Absorbent pants-type diaper,” and relates an absorbent pants-type diaper intended for one-time use which lies sealingly against and shape conformingly to the wearer’s body, while enabling the diapers to support an absorbent pad even when the pad is full of liquid. In 2004, plaintiff SCA sought reexamination of its patent in light of defendant First Quality’s patent, and in 2007, the Patent and Trademark Office confirmed the SCA patent’s validity. SCA then sued First Quality for patent infringement in 2010. The District Court granted summary judgment to First Quality on the grounds of equitable estoppel and laches based on the six year delay in filing suit from 2004 to 2010. The Federal Circuit later affirmed the holding en banc, even in light of the Supreme Court’s Petrella’s laches holding for copyright law. The Supreme Court then took the case on appeal.

In considering the issue, the Supreme Court first stated laches is “a defense developed by courts of equity” to protect defendants against “unreasonable, prejudicial delay in commencing suit.” The “principal application” of laches “was, and remains, to claims of an equitable cast for which the Legislature has provided no fixed time limitation.” Laches “is a gap-filling doctrine, and where there is a statute of limitations, there is no gap to fill.”

Moving to Section 286 of the Patent Act the Supreme Court noted the Statute provides: “Except as otherwise provided by law, no recovery shall be had for any infringement committed more than six years prior to the filing of the complaint or counterclaim for infringement in the action.” Applying Petrella, the Court “infer[ed] that this provision represents a judgment by Congress that a patentee may recover damages for any infringement committed within six years of the filing of the claim.” The Court continued reasoning “the enactment of a statute of limitations necessarily reflects a congressional decision that the timeliness of covered claims is better judged on the basis of a generally hard and fast rule rather than the sort of case-specific judicial determination that occurs when a laches defense is asserted. Therefore, applying laches within a limitations period specified by Congress would give judges a legislation-overriding role that is beyond the judiciary’s power.” Thus, the Court held “laches cannot be interposed as a defense against damages where the infringement occurred within the period prescribed by §286.”

In reaching its holding, the Court considered and rejected a number of arguments put forth by defendant First Quality, and some of the reasoning the Federal Circuit had previously used. First, the Court rejected First Quality’s argument that §286 of the Patent Act is not a true statute of limitations because §286 “runs backward from the time of suit.” The Court reasoned “Petrella cannot be dismissed as applicable only to what First Quality regards as true statutes of limitations.” While some claims are subject to a “discovery rule” under which the limitations period begins when the plaintiff discovers or should have discovered the injury giving rise to the claim, that is not a universal feature of statutes of limitations. Instead, “[a] claim ordinarily accrues when [a] plaintiff has a complete and present cause of action.”

Next, the Court considered the Federal Circuit’s reasoning that §282 creates an exception to §286 by codifying laches as a defense to all patent infringement claims, including claims for damages suffered within §286’s 6-year period. However, the Court again rejected this position, reasoning §282 on its face does not specifically codify a laches defense. Regardless, the Court continued, “it does not necessarily follow that [a laches] defense may be invoked to bar a claim for damages incurred within the period set out in” a different section of the Statute. Moreover, the Court reasoned “it would be exceedingly unusual, if not unprecedented” to include both a statute of limitation for damages and a laches defense, and no single federal statute has been identified “that provides such dual protection against untimely claims.”

The Court then moved to the Federal Circuit’s conclusion, and similar argument put forth by First Quality, that by 1952 there was a well established practice of applying laches to such damages claims and that Congress, in adopting §282, must have chosen to codify such a defense. The Court again rejected this position, finding the case law insufficient to support the suggested interpretation of the Patent Act. Instead, the Court found the case law stood for “the well-established general rule, often repeated by this Court, that laches cannot be invoked to bar a claim for damages incurred within a limitations period specified by Congress.”

In a lone dissent, Justice Stephen Breyer disagreed, arguing the case law “shows with crystal clarity that Congress intended the statute to keep laches as a defense” and that the language of the statute suggests that as well. The dissent was concerned that without a laches defense available “a patentee has considerable incentive to delay suit until the costs of switching—and accordingly the settlement value of a claim—are high.” Justice Breyer also added that he “believe[s] that Petrella too was wrongly decided,” and that this case helps illustrate why he thinks “that Petrella started [the Court] down the wrong track.”

Changing Overtime Policy May Constitute Retaliation

Published: March 22, 2017

by Brendan J. Begley
The Labor & Employment Law Blog

They say that everything is bigger in Texas. That now may be true for the risk that an employer’s change to its overtime policies will result in a claim filed by an employee alleging retaliation in violation of the Fair Labor Standards Act (“FLSA”). That increased risk stems from a ruling by the Texas Court of Appeals for the Fourteenth District in January 2017. In that case, Tooker v. Alief Independent School District, the appellate court ruled that a change in the employer’s stated overtime policy constituted a materially adverse employment action.

To read the full article, visit the HRUSA Blog at: http://blog.hrusa.com/blog/changing-overtime-policy-may-constitute-retaliation/

Are Your Exempt Employees Properly Classified? – It’s Not Just Based on Salary

When: Apr 20, 2017
Where: Weintraub Tobin Office

Time: 9:30 a.m. – 11:30 p.m.

Summary of Program

With the ever increasing number of claims filed with the Department of Labor and California Labor Commissioner for unpaid overtime, and the increasing number of wage and hour class action lawsuits, the importance of correctly classifying employees as exempt or non-exempt is clear. This seminar is designed to help employers and HR professionals gain a more thorough understanding of the various exemptions available under California law and learn how to conduct an exemption analysis in order to reduce potential liability.

Program Highlights

A discussion of the exemptions available.
Checklists for determining if your employees are exempt.
How to conduct a self-audit to ensure that employees are properly classified.
What to do if your employees have been misclassified.
What are the courts saying – highlights of recent decisions regarding wage and hour issues in California.

Seminar Program
9:00 am – 9:30 am – Registration & Breakfast
9:30 am – 11:30 pm – Seminar

Location

Weintraub Tobin Office
400 Capitol Mall, 11th Floor | Sacramento, CA 95814

Parking Validation provided. Please park in the Wells Fargo parking garage, entrances on 4th and 5th Street. Please bring your ticket with you to the 11th floor for validation.
There is no cost for this seminar

Webinar
This seminar is also available via webinar. Please indicate in your RSVP if you will be attending via webinar.

Approved for two (2) hours MCLE. This program will be submitted to the HR Certification Institute for review. Certificates will be provided upon verification of attendance for the entirety of the webcast.

*This seminar will be limited to 75 in-person attendees

Word to the Wise: Commission Paid Employees

Published: March 17, 2017

by Charles L. Post
The Labor & Employment Law Blog

For several years, California law has required that whenever an employer hires an employee and “the contemplated method of payment of the employee involves commissions … the contract shall be in writing and shall set forth the method by which the commission shall be computed and paid.

Let me rant a bit. I will say it again. Any written commission agreement must simply and clearly express the terms of the commission. It is a long established rule in California that ambiguities in employer drafted documents will be construed against the employer and in favor of the employee. Chuck-Post-07_web

Because commission plans can serve as an effective means of incentivizing employees to succeed, employers have become expert at creating specific incentives for the specific behaviors. For example, Joe works for XYZ Company. He is great at selling XYZ’s low profit margin products but the company wants to create an incentive for Joe to upsell XYZ’s more profitable products. So, it drills down and creates a commission plan that increases Joe’s earnings if: (1) the company is paid for the order within 10 days of delivery; and (2) provides increasingly higher commissions on a sliding scale based on the size of the employer’s profit. Also included are means for refunds and deductions based upon return of goods or client utilization of post-sale services from XYZ. The employer also makes clear that no commission is earned until payment is received and that the commissions are only due and payable when funds are received while the employee is still employed by the company.

A first draft of the commission plan reflecting all these details can look like a physics equation or something written in Sanskrit. The fact that you or your employee understands the commission arrangement at the time it is written is less important than it probably should be. A commission plan is a contract and the terms of that contract will be construed and understood by a later court by the same rules as any other contract. If any word or phrase can be interpreted in two legitimate way, the interpretation more favorable to the employee will almost certainly be used. This can be an expensive lesson to learn.

Takeaways?

Ensure all commission plans are in writing, signed by the worker.
Use clarifying examples to demonstrate how particular abstract terms within a commission plan will actually be applied.
Expressly state when the commission is “earned” and when earned commissions shall be paid. Clearly state when commissions top accruing or being earned (upon termination of employment, for example).
Have the commission arrangement reviewed by strangers to your business. If you find yourself defending the instrument in court, neither the judge nor jury is likely to be experienced with the way your business operates.

Is Marilyn Monroe Too Generic to Be Registered as a Trademark?

Published: March 16, 2017

The IP Law Blog

I’ve written on numerous occasions in the past about celebrities who registered their own names as trademarks with the United States Patent and Trademark Office. Just the other week, I wrote about how UFC superstar Conor McGregor had filed an application to register his name as a trademark, and in that same article, I mentioned that undefeated Floyd “Money” Mayweather also has his name registered with the USPTO. Other celebrities who have trademarked their monikers include rapper 50 Cent, pop queen Kylie Minogue (whose trademark KYLIE resulted in Kylie Jenner being unable to register the mark herself), and reality television star Kim Kardashian West. It’s hardly uncommon for celebrities to protect their own names as intellectual property these days. With that said, a federal district court judge’s recent order on a motion to dismiss involving the Estate of Marilyn Monroe has sparked some panic in the media.

On Monday, March 13, 2017, Judge Katherine Polk Failla of the United States District Court for the Southern District of New York issued a ruling on the Estate of Marilyn Monroe’s motion to dismiss the counterclaim of AVELA (short for Art & Vintage Entertainment Licensing Agency) which attempts, in part, to cancel the Estate’s trademark rights in MARILYN MONROE. In issuing its ruling and permitting AVELA’s attempt to cancel the MARILYN MONROE trademark on the ground that it is generic, Judge Failla stated “To be clear, the court harbors serious doubts that V. International will be able to establish that the contested marks are generic….Reaching that conclusion at this state, however, would be premature.” Since Judge Failla issued this ruling, the web has been buzzing with articles and posts claiming that Judge Failla has left open the possibility that a celebrity name is too generic to register or enforce as a trademark. Unfortunately, while these articles may make for an interesting read, they fail to adequately explain the significance of the case’s procedural posture.

Judge Failla has issued her ruling in response to a motion to dismiss filed by the Estate of Marilyn Monroe. When such a motion is filed, the court is required to accept all properly pleaded facts as true. Then the court must ask itself, assuming all of the alleged facts are true, does the party state a claim to relief. Here, specifically, Judge Failla must ask herself if AVELA has stated an appropriate ground for cancellation of the Estate’s trademark assuming it can prove the facts it alleged. According to Judge Failla’s ruling, AVELA asserted a few facts to suggest that the Estate’s mark should be cancelled because it has become generic, and generic marks are never entitled to trademark protection. In order to be protectable as a trademark, a mark must have at least some level of distinctiveness. Thus, Judge Failla has permitted AVELA’s claim to go forward.

Now, what does this really mean? Not a lot. Although Judge Failla has stated that the possibility exists that the Estate’s mark has lost its distinctiveness, she was clear that the Court “harbors serious doubts” about AVELA’s ability to prove its claim, but that the law is clear that “whether a mark is, or has become, generic” is a decision for the finder of fact, and premature at this juncture. So, when you give the procedural aspect of this case due consideration, it is clear that Judge Failla’s ruling is not groundbreaking. It is highly unlikely that she will find the Estate’s mark to have lost its distinctiveness and enforceability, but the procedural posture and the fact that AVELA has stated facts that, if true, could result in a trier of fact declaring the mark generic and cancelling its registration, means that AVELA’s claim lives to fight another day. Beyond that, Judge Failla’s ruling does nothing more than refuse to prematurely foreclose AVELA’s claim. So, celebrities and their intellectual property consiglieres should not fear a shift in the law, their intellectual property rights are likely just as safe today as they ever have been.

Push Back On Local Minimum Wage And Paid Sick Leave

Published: March 14, 2017

The Labor & Employment Law Blog

By Michelle Covington

Over the past several years, many municipalities have taken labor and employment matters into their own hands, passing local laws requiring a higher minimum wage or paid sick leave beyond that required by the state or federal government. Florida and Pennsylvania are pushing back on these local laws.

On February 12, 2015, Philadelphia instituted an ordinance requiring employers with 10 or more employees to provide 40 hours of paid sick leave in a calendar year. Less than a year after its implementation, on December 30, 2016, two senators of the Pennsylvania state legislature issued a memorandum announcing their intent to propose a bill that would override municipal laws of this kind. The senators cited concerns of uniformity and the burden on local businesses as their motivation. On January 25, 2017, SB 128 was introduced in the Pennsylvania legislature.

Read what this bill would preclude municipalities from at http://blog.hrusa.com/blog/push-back-on-local-minimum-wage-and-paid-sick-leave/.

2016 Year In Review

Published: March 14, 2017

by Shauna N. Correia
The Labor & Employment Law Blog

Weintraub Tobin Chediak Coleman Grodin is proud to distribute our first annual Year In Review. Please click on the icon to make the book full screen. Press “Esc.” on your keyboard to leave full screen.

Trump Withdraws Transgender Bathroom Guidance

Published: March 13, 2017

by Shauna N. Correia
The Labor & Employment Law Blog

In May 2016, North Carolina governor Pat McCrory signed into law a bill (HB2) that required transgender people to use restrooms corresponding to their biological sex. On May 13, 2016, the Obama administration’s Justice Department and the Department of Education responded by sending letters to U.S. public school districts directing them to allow students to use the restrooms (and locker rooms) that matched their gender identity, even if it is different than their gender assigned at birth, and provided additional, detailed guidance on various issues including locker/bathrooms, overnight accommodations, correct gender pronouns, disclosures, and correction of records. (See https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf)

The letter advised school districts that it interpreted Title IX regulations to require that, when a school is notified that a “student will assert a gender identity that differs from previous records or representations, the school will begin treating the student consistent with the student’s gender identity” instead of their birth-gender. Title IX is the federal law that prohibits sex discrimination in education and education-related activities. Tying this guidance to Title IX was important because State and local rules cannot limit or override the requirements of Federal laws (34 C.F.R. § 106.6(b)) and a violation of Title IX implicates lawsuits and a threat of loss of federal aid. (34 C.F.R §§ 106.4 and 106.31(a).)

To read the full article, visit the HRUSA blog at: http://blog.hrusa.com/blog/trump-withdraws-transgender-bathroom-guidance/

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