Religion in the Workplace: Where is the Line?

“Merry Christmas” and “Happy Hanukah” are phrases commonly used during the holiday season, but could the use of such a phrase in your workplace get you into trouble for proselytizing? While it might be hard for someone to claim that you were sharing your faith by simply saying “Merry Christmas” or “Happy Hanukah,” it is important to know if or when proselytizing can put your job in jeopardy. Employees in the private workforce are protected by the Free Speech Clause, but this right can be restricted.

photo credit: www.bbc.co.uk

photo credit: http://www.bbc.co.uk

The Free Speech Clause of the First Amendment protects employees who want to share their faith, but this does not mean that they can talk about their faith without restrictions. The First Amendment says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” It protects employees in the workplace who wish to speak about religious topics, and prevents companies from treating them differently based on faith alone.

However, a company has the right to limit religious expression in three instances: (1) if it imposes undue hardship on the operation of business and/or (2) if it causes or would cause customers or co-workers to reasonably believe that proselytizing actions express the company’s own message or (3) where the speech in question is harassing or disruptive. Furthermore, while evangelism is generally allowed, the person proselytizing must stop if the listener asks them to or makes it clear that such an act is unwelcome. For example, if a receptionist decorates the office with religious artifacts, the company is allowed to ask for them to be taken down because people could reasonably believe that the company was endorsing a certain religion.

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Categories: Uncategorized

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.
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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

The Sneeze: Guide to Avoiding Illegitimate Investments

photo credit: iStockphoto

photo credit: iStockphoto

Elaine and George Butcher, a couple in their late 60s, live outside of Spokane, Washington. Elaine is a retired teacher and her husband George, a retired principal. When George is diagnosed with terminal cancer he suddenly realizes he doesn’t have enough money to provide for Elaine after his death.

During his weekly chemotherapy treatments he confides in his doctor that his investments are not making enough money to leave behind anything substantial for his wife.  Dr. Lewis mentions he is investing in a company called Resource Development International (“RDI”) that is providing guaranteed returns of 6% per month. Desperate to increase his nest egg, George jumps at the opportunity.  The doctor says he will have his broker give him a call.

The next evening, Gary Roberts, an insurance broker in Spokane, meets the Butchers at their home. They sit around the kitchen table and Gary says he offers only his most affluent and aggressive investors the chance to invest in RDI.  He says the minimum investment is $100,000 and interest is guaranteed at 6% per month.  Gary hands the Butchers a booklet about the investment and elaborately and confusingly explains their investment will be pooled with other investments until $12 million is raised and that $12 million will be deposited into foreign banks and transferred between banks as collateral for various loans that will generate enough interest to pay investors the guaranteed return.

This discussion makes Elaine very nervous.  The minimum investment of $100,000 is nearly half of their entire savings and the process is too complicated for her to understand.  She prays for a sign they should make the investment. Just then the broker lets out a huge sneeze. This was the sign!

With the affirming sneeze from Gary, the Butchers invest $100,000 in RDI. One month later the Butchers receive a check from RDI for $6,000 and a statement showing their principal investment of $100,000. George and Elaine celebrate their good fortune. Continue reading

Categories: Fraud, Ponzi schemes

Alabama Judge Rules Show Must Go On for Tommy Tuberville

College football practice is apparently not a great reason for a continuance. Alabama U.S. District Court Judge Myron H. Tompson has ruled that a civil securities fraud suit against former Texas Tech (and current Cincinnati) head football coach Tommy Tuberville will start in early August, as previously scheduled.

According to Scheef & Stone Partner J. Mitchell Little, Coach Tommy Tuberville faces a variety of very serious obstacles. “When your business partner faces criminal charges and gets sued by the CFTC for fraud, he has problems. When your business partner pleads the 5th Amendment in your civil case and refuses to show up for his deposition, you have problems,” Little said. In civil cases, when a witness pleads the 5th Amendment, an adverse inference

Tommy Tuberville coaching Texas Tech. Photo courtesy of awfulannouncing.com

Photo courtesy of awfulannouncing.com

arises. “In a civil lawsuit, pleading the 5th Amendment forces the Court to view your response in the most negative light possible toward your case. When a defendant’s business partner does so, it tends to spread the blame.”

There are also a variety of evidentiary issues that are likely to impinge upon Tuberville’s ability to defend himself in the $1.7 million investor lawsuit arising from the collapse of TS Capital Partners. “Tuberville was the ‘T’ and Stroud was the ‘S” in TS Capital. How will Tuberville’s counsel avoid being painted with the same brush as his partner Stroud, especially if he is convicted next month of crimes related to these sales? Will the Court allow the jury to hear about Stroud’s potential conviction, the CFTC lawsuit, and his refusal to testify? It’s extremely problematic for Coach Tuberville,” explained Little.

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Categories: Fraud, Securities litigation

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