As we have previously discussed, the Bureau of Workers’ Compensation (BWC) has traditionally taken an aggressive position in finding that a business purchasing all or part of another business is responsible for the predecessor entity’s workers’ compensation risk, frequently resulting in an increase in premiums and penalties for the purchasing entity.
Continue Reading Ohio Supreme Court Again Reins In BWC On Successor Liability

As you might recall, in August we blogged on Martin v. Spring Break ’83 Productions, LLC, a case involving the blockbuster movie “Spring Break ’83” [stated with sarcasm], where the Fifth Circuit became the first federal appellate court to enforce a private FLSA settlement. In that blog, available here, we crossed our fingers and hoped the Fifth Circuit’s decision would come to a jurisdiction near you. Well, that hope is one step closer to reality as the plaintiffs/appellants – now the Petitioners – filed a Petition for Writ of Certiorari (the “Petition”) and asked the United States Supreme Court to review the case.
Continue Reading Martin v. Spring Break ’83 Productions, LLC … the Sequel or Part Deux? The Supreme Court is Asked to Review Whether a Private Settlement Agreement Dismissing FLSA Claims is Enforceable

The Supreme Court has issued its long awaited decision on the constitutionality of the Arizona Immigration law known as SB 1070. The case came before the Court following a decision by the lower courts to grant a preliminary injunction enjoining the application of four provisions of the Arizona law.
Continue Reading The Supreme Court Provides a Mixed Review of the Arizona Immigration Laws

The U.S. Supreme Court today issued its decision in NASA v. Nelson, a case that we previewed back in October.   As you will recall, the respondents in Nelson were a group of California Institute of Technology employees who worked under a contract with NASA at its Jet Propulsion Laboratory.  Pursuant to a Presidential directive, the Department of Commerce required all contract employees with long-term access to federal facilities to complete a standard background check by no later than October 2007.  NASA modified its contract with Cal Tech to reflect this requirement, but shortly before the deadline, the respondents filed their lawsuit.  

Respondents contended that two specific aspects of the background check process violated their constitutional right to “informational privacy.”  Specifically, they challenged a question asking them to state whether they had received treatment or counseling in the last year for illegal drug use and a questionnaire that would be sent to the employees’ references asking open-ended questions about their suitability for federal government employment.

In a unanimous decision (with Justice Kagan not participating), the Supreme Court assumed, without actually finding, that a constitutional right to informational privacy exists.  The Court then upheld the background checks as a reasonable exercise of  the government’s right to “reasonably investigate applicants and employees to aid in ensuring the security of its facilities and in employing a competent, reliable work force.”  Not only were the disputed background check inquiries reasonable, but the Court also found that the respondents’ rights were substantially protected against public disclosure by the federal Privacy Act.


Not surprisingly, the Court was swayed by the fact that the inquiries at issue are “similar to those (that) became mandatory for all candidates for the federal civil service in 1953” and are “part of a standard employment background check of the sort used by millions of private employers.”  With respect to the inquiry regarding treatment or counseling for the use of illegal drugs, the Court noted that it was a reasonable follow-up to the prior question about using, possessing, supplying or manufacturing drugs during the previous year and, importantly, that the government used the response to the “treatment or counseling” question as a mitigating factor.  Similarly, the Court held that the open-ended inquiries made to the employees’ references were “reasonably aimed at identifying capable employees who will faithfully conduct the Government’s business.” 


Continue Reading Supreme Court Upholds Constitutionality of Government Background Screens in NASA v. Nelson

On March 27, 2008, the Supreme Court released two opinions addressing discriminatory retaliation in the workplace. In the pair of opinions, the Court broadened the scope of potential claims for retaliatory conduct by holding that: (1) employees may bring a private action for discriminatory retaliation under §1981; and (2) the Age Discrimination in Employment Act (ADEA) prohibits retaliation against federal employees who complain of age discrimination.

In CBOCS West, Inc. v. Humphries, the Supreme Court held 7-2 that under 42 U.S.C. §1981, retaliation itself is a form of prohibited discrimination when contractual rights are at stake, even though §1981 does not include the word “retaliation.” Although this particular issue had been addressed by several appellate courts, the Supreme Court had never addressed the question squarely.

Continue Reading Two Supreme Court Decisions Expand Retaliation Claims

In a unanimous decision debunking the common misunderstanding that former employees can use information they retain through memory (as opposed to information contained in materials pilfered from former employers) without violating trade secret law, the Ohio Supreme Court ruled that a company’s confidential customer list is a protected trade secret even if a former employee accesses it strictly from memory.

In Al Minor & Assoc., Inc. v. Martin, 2008-Ohio-292, Martin, a pension analyst, signed neither a non-competition nor a non-solicitation agreement during his employment with Al Minor. When he resigned to establish a competing business, Martin contacted and successfully solicited 15 clients using information that he memorized while working for Al Minor. Al Minor sued Martin for misappropriating its trade secret client information. Following trial, Martin was ordered to pay nearly $26,000 in damages to Al Minor, representing lost earnings from former clients successfully solicited by Martin. Although Martin appealed, the Franklin County Court of Appeals upheld the trial court’s decision. Martin then appealed to the Ohio Supreme Court where his arguments in support of his actions were once more rejected.

Continue Reading A Case of Mind Control: Ohio Employers Can Stop Former Employees From Using Memory to Misappropriate Trade Secrets