Monthly Archives: April 2013

Is Your Company’s Mandatory Retirement Policy Breaking the Law?

As a business owner, you want the best performance from your employees.  Many business owners are challenged with the balancing act of retaining knowledgeable and experienced employees while also recruiting younger, newer employees.  In 2010, according to the U.S. Bureau of Labor Statistics, 55 percent of U.S. employees were older than 40.  By 2018, the 55-to 75-year-old segment of the workforce will increase by 11 million, accounting for almost a quarter of the working population.

photo credit: slate.com

photo credit: slate.com

As baby boomers age, many businesses are forced to evaluate how to transition their aging employees, especially since statistics show that many senior citizens are choosing to remain in the workforce.[1]  Thus, for the sake of your business, you might believe that it is perfectly reasonable to enact a policy that requires an elderly employee to retire at a specific age – commonly known as “mandatory retirement.”

Mandatory retirement requires an employee to retire once the employee reaches a specified age, regardless of whether the employee wishes to continue working.  But did you know that courts consider mandatory retirement to be a violation of the law?

The Age Discrimination in Employment Act (ADEA) is intended to prevent private employers from favoring younger employees at the expense of older employees because of their age (and not because of their job abilities or job performance).  Thus, the ADEA specifically prohibits private employers from imposing mandatory retirement on employees over the age of 40, if the retirement is based on the employee’s age. Congress passed the ADEA in an effort to correct discriminatory practices by many employers based on unfair stereotypes of older workers.  For example, when compared with younger workers, older employees are commonly percieved to be less motivated, more resistant to change and more likely to experience health problems that affect their work. Continue reading

Categories: Uncategorized

Are Human Genes Patentable?

On April 15, 2013, the United States Supreme Court will hear arguments for Association of Molecular Pathology v. Myriad Genetics, Case No. 11-725.  The case involves U.S. patents issued to Myriad that concern isolated DNA gene sequences that could be used to predict cancer susceptibility in patients, as well as diagnostic methods using the sequences and screening therapeutics associated therewith.  
AMP is challenging the patents, claiming in part that the gene-sequence patents are basically patents relating to human DNA and thus are not patentable, and the diagnostic methods and screening protocols are merely “human thought” and add nothing to standard science. The trial court found the patent claims not patentable, ruling contrary to a long line of cases in which genetic mutations have been found patentable.

photo credit: iStockphoto/Martin McCarthy

photo credit: iStockphoto/Martin McCarthy

The Court of Appeals for the Federal Circuit (the court responsible for hearing appeals in patent litigation) reversed, ruling that DNA which does not exist in nature (i.e., isolated DNA sequences) along with the drug screening claims are, in fact, patentable (the appellate court held the diagnostic claims unpatentable).
 As with all patents, the proponents make the financial argument that patents incentivize investment for R&D, and unless processes can be patented, the financial incentive for conducting research and development is thwarted.  Here, Myriad adds to the financial argument an emotional, slippery-slope one: that we may have finally found a cure for cancer, and if the courts do not allow a patent, then the cure (and subsequent DNA-based cures) will be less likely to come about.

AMP and other opponents of patents in this area have their own arguments, primarily that issuing patents restricts research to only a few companies, keeps the technology a “secret,” and thus stifles innovation and the marketplace incentives that go along with it.  Of course, hiding within such arguments is the economics involved: if the opponents want to conduct such research, they can always obtain/pay for a license from the patent holder to allow them to do so.
Continue reading

Categories: Patent Law

Business Owners: Beware of the Second Notice Trap!

As a business owner, you have plenty to worry about. But did you know you may be violating the Workers’ Compensation Act without even realizing it?

photo credit: kootation.com

photo credit: kootation.com

Texas is the only state that does not mandate employer participation in the state’s workers’ compensation system. Unlike other states, an employer may participate in the workers’ compensation system or choose to forego workers’ compensation insurance altogether.  However, many employers are unaware that, even if the company elects to participate in the workers’ compensation system, the employee of a subscribing employer has the individual right to waive coverage at the time of hire.

The Texas Workers’ Compensation Act (the “Act”) allows an employee (or beneficiaries) to be compensated if the employee suffers from a work-related injury. It tends to attract employer participation because it places a significant limitation on the employer’s liability if an employee is injured on the job. This “limitation” on the employer’s liability is that the injured employee is only allowed one remedy – either workers’ compensation insurance or common law rights of action.

All Texas employers must comply with certain notice requirements imposed by the Act.  For employers who maintain workers’ compensation coverage, the employer must first notify employees in writing and by posting a notice that the workers’ compensation coverage exists.  However, employers have an additional notice responsibility after this first notice to the employee.

Under the Administrative Code (and NOT the Labor Code or Workers’ Compensation Act) employers are further required to give each new (or newly-insured) employee notice of the employee’s right to opt out of coverage.  The notice is required to include the following statement:

“You may elect to retain your common law right of action if, no later than five days after you begin employment or within five days after receiving written notice from the employer that the employer has obtained coverage, you notify your employer in writing that you wish to retain your common law right to recover damages for personal injury. If you elect to retain your common law right of action, you cannot obtain workers’ compensation income or medical benefits if you are injured.”[1] Continue reading

Categories: Employment Law, Workers' Compensation Act

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