Oregon Supreme Court recognizes law firm "in house" privilege

By Lori Irish Bauman
June 6, 2014

The Oregon Supreme Court held last week that the attorney-client privilege applies to communications  between a law firm's lawyers and the firm's in-house counsel.  In Crimson Trace Corp. v. Davis Wright Tremaine LLP, plaintiff sued its lawyers for malpractice, and sought discovery of communications between the defendant lawyers and a group of firm lawyers designated as in-house counsel.  Those internal communications had occurred when a potential conflict of interest arose between the client and its lawyers.

The trial court held that the communications were discoverable and were not subject to the attorney-client privilege, adopting a "fiduciary exception" to Oregon Evidence Code 503, which sets out the scope of the privilege.  According to the fiduciary exception, a law firm's fiduciary obligations to its clients prevent it from invoking the privilege to protect its lawyers' communications with in-house counsel.  Justice Landau, writing for the Supreme Court, concluded that the fiduciary exception is not supported by the plain language of Rule 503, and that the internal law firm communications in that case were protected by the privilege.

Angencies continue to attack restrictions on employee speech: Part 3 -- Lessons for employers

By Stacey Mark
May 27, 2014

As discussed in our earlier posts (Part 1 and Part 2), the EEOC and NLRB have in recent years targeted employers who impose restrictions on employee speech and conduct that could chill employees' exercise of their rights under the NLRA and Title VII.  Whether the courts will agree to invalidate restrictions on employee speech and conduct in the context of settlement agreements is an open question and a matter of concern for employers.

Such restrictions are common in agreements resolving employment disputes.  Indeed, many companies would not think of entering into a settlement in which they were not assured that the affected employee(s) would comply with the company’s confidentiality policy, maintain confidentiality of the fact and/or terms of the settlement, and refrain from disparaging the company.   While policy considerations associated with settlements are arguably different from those associated with other employment practices attacked by the agencies, the employment rights at issue are largely the same.  If the courts embrace the positions held by the EEOC and NLRB, employers may start to see both current and former employees challenge undesirable settlement terms by filing suit or administrative charges, or raising the issue as a defense to enforcement.  Either way, if the courts invalidate such terms, employers will have a lot less incentive to settle.

Given the likelihood that agencies will continue to scrutinize both employment policies and settlement terms, employers should review all of their policies and agreements that may impact employees’ exercise of employment rights under the NLRA and Title VII.  These can include policies addressing confidentiality, use of the Internet, email, and social media, disparagement, and general conduct policies (e.g., no gossip and professionalism policies) that purport regulate employee speech.  Employers will need to balance the risks and benefits of including such terms going forward.

Agencies continue to attack restrictions on employee speech: Part 2 -- NLRB

By Stacey Mark
May 25, 2014

The EEOC’s recent lawsuits against employers described in Part 1 follow the NLRB’s similar attempts in recent years to rein in employer restrictions that could impact employee speech and other employment rights under federal labor law.  

The focus of the NLRB and the EEOC has been primarily on invalidating employment policies that might have a tendency to chill employee rights under Section 7 of the NLRA and Title VII, such as broadly-worded confidentiality and social media policies.  Section 7 entitles employees to form and join a union, and to engage in organizing, collective bargaining, and other concerted activities for mutual aid and protection.  Section 8 of the NLRA prohibits employers from interfering with employees’ exercise of their rights under Section 7.

One such ruling by the NLRB was recently upheld by the Fifth Circuit, which invalidated a fairly standard confidentiality policy.  The policy at issue defined “Confidential Information” as including information related to customers, suppliers, distributors; the employer’s management and marketing processes, plans and ideas, processes and plans, financial information, including costs, prices; current and future business plans, computer and software systems and processes; personnel information and documents, and the company’s logos and art work.  The policy prohibited employees from sharing Confidential Information outside the organization, or from removing or making copies of any company records, reports or documents without prior management approval.  The policy also provided that disclosure of Confidential Information could lead to termination and possible legal action.  Although the company’s policy said nothing specific about wages, the Fifth Circuit found that the policy violated Section 8 of the NLRA because employees could interpret the policy as precluding discussions about wages.  Thus, it appears that the NLRB’s expansive reading of Section 7 rights may be gaining traction in the courts, at least with respect to employer confidentiality policies.   

Our prior coverage of these issues is available here and here.  

In our next post we will address the practical implications of federal agency efforts to limit restrictions on employee speech.

Agencies continue to attack restrictions on employer speech: Part 1 - EEOC

By Stacey Mark
May 23, 2014

The EEOC and NLRB continue to target employers who restrict employee speech and conduct, especially when those restrictions could impact employees’ rights under labor and employment laws.

The EEOC recently filed suit attacking the use of certain terms in employer settlement agreements, this time against CollegeAmerica, a private college based in Salt Lake City.  The EEOC alleges that CollegeAmerica conditioned an employee’s separation benefits, among other things, on her promise not to file a complaint or grievance with any government agency or to disparage CollegeAmerica.  When the employee filed a charge against CollegeAmerica with the EEOC alleging discrimination and retaliation, College America promptly filed an action against the employee in state court for breach of the agreement. 

The EEOC claims that the agreement violates the employee’s right to file charges with the EEOC and that CollegeAmerica’s filed its lawsuit in retaliation for the employee’s filing of the EEOC charge.  The EEOC is seeking to recover the employee’s attorney fees incurred in defending the state court action, and for injunctive relief to invalidate the employee’s separation agreement and prevent CollegeAmerica from using the offending terms in its form settlement agreements. 

This follows a lawsuit that the EEOC filed in February against CVS Pharmacy, seeking to invalidate settlement terms including confidentiality and non-disparagement clauses, a general release, and a covenant not to sue, among other things.  See our earlier coverage of the CVS case here.

Our next post will address similar actions against employers by the NLRB.

Direct competition not required to assert Lanham Act false advertising claim

By Dan Larsen
April 2, 2014

There is little debate that the Lanham Act, 15 USC 1125(a), entitles direct competitors to sue each other for false advertising, while consumers (including business consumers) lack standing to sue under the Act.  For parties that are neither competitors nor consumers, however, the landscape has been far from clear.  In Lexmark International v. Static Control Components, Inc., the United States Supreme Court last week clarified that the class of plaintiffs entitled to assert a false advertising claim under the Lanham Act includes any party that suffers injury to a commerical interest in reputation or sales flowing directly from the deception.   

Lexmark manufactures and sells laser printers, including the toner cartridges for those printers.  Static Control does not sell printers or toner catridges but it manufactures a microchip that remanufacturers may use to refurbish Lexmark toner catridges.  Although Lexmark and Static Control are not direct competitors, Static Control sells its microchips to Lexmark's competitors.  Lexmark allegedly informed consumers that it was illegal to use Static Control's microchips to refurbish Lexmark toner catridges, and then sued Static Control for copyright infringement.  Static Control countersued Lexmark under the Lanham Act for false advertising.  The District Court dismissed Static Control's counterclaim on the ground that only a direct competitor has standing to sue. 

The Supreme Court ruled that direct competition is not required to assert a Lanham Act false advertising claim, and that Static Control stated a claim for relief against Lexmark where Lexmark disparaged Static Control and its products, thereby causing injury to Static Control's reputation.     

Target of social media criticism can sue for defamation, Oregon Court of Appeals holds

By Lori Irish Bauman
March 31, 2014

The Oregon Court of Appeals recently held that a business owner can pursue a defamation claim against an individual who posted a negative on-line review.  In Neumann v. Liles, plaintiff, who operates a wedding venue, was the target of a review on google.com calling her, among other things, "two faced, crooked, and . . . rude."  She sued the author of the review, who had been a guest at a wedding hosted at plaintiff's venue.

The on-line critic in response filed a "special motion to strike" under Oregon's SLAPP statute.  SLAPP stands for "strategic lawsuit against public participation," and the anti-SLAPP statute creates a procedure for dismissing at an early stage an unfounded lawsuit designed to quash speech or activism on issues of public interest.  While the statute protects certain speech-related activities, it does not shield defendants who engage in defamatory speech. 

According to the Court of Appeals, the trial court should not have granted the anti-SLAPP motion to strike the complaint because plaintiff had offered sufficient evidence that the review was in fact defamatory.  While defendant claimed that the review represented his opinion and was merely "figurative, rhetorical, or hyperbolic," the Court of Appeals concluded that most of the post was "nonrhetorical and factual" and contained specific, potentially defamatory, statements about plaintiff's honesty and business ethics.  Accordingly, the trial court should have allowed the case to proceed to trial.

Oregon Supreme Court addresses seller's UCC remedies

By Lori Irish Bauman
March 28, 2014

When a party refuses to perform its contract to purchase goods, the Uniform Commercial Code entitles the aggrieved seller to sell the goods to another buyer and recover damages from the defaulting party.  Often the seller must sell at less than the contract price and then recover as damages the different between the unpaid contract price and the resale price.  The UCC offers as an alternative measure of damages the difference between the contract price and the market price for the goods.

What the UCC does not make clear is whether the seller may recover the difference between the unpaid contract price and the market price in circumstances where the market price damages would exceed resale price damages.  Last week the Oregon Supreme Court held that the jilted seller may in fact recover market price damages, even if those damages would cause the seller to recover more than the actual loss suffered. 

In Peace River Seed Co-operative, Ltd. v. Proseeds Marketing, Inc., the court considered the relevant text, context and legislative history to conclude that "an aggrieved seller can seek [market price] damages even if the seller has resold the goods and market price damages exceed resale price damages."  The court noted that a fixed price contract always requires the parties to bear the risk of market price fluctuations.  Subjecting the buyer to damages based on market price is consistent with that risk. 

EEOC files suit challenging employer's standard settlement terms

By Stacey Mark
February 19, 2014

The EEOC has filed suit in Chicago against pharmacy giant CVS to stop it from using certain terms in its settlement agreements with employees.  The EEOC claims that the company unlawfully violated employees' rights to communicate with the EEOC and to file discrimination charges, in violation of Section 707 of the Civil Rights Act of 1964.

According to the EEOC, CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print.  The agreement purportedly interferes with employees' right to file discrimination charges and/or communicate and cooperate with the EEOC.  The terms objectionable to the EEOC include the following:

    1.     A cooperation clause that requires employees to notify CVS' general counsel upon receipt of a subpoena, deposition notice, or inquiry in connection with a suit or proceeding, including an administrative investigation;

    2.    A non-disparagement clause prohibiting employees from making statements that disparage the business or reputation of the company, its directors, officers, or employees; 

    3.    A confidentiality clause prohibiting the disclosure of Confidential Information, including personnel data revealing the skills, abilities or duties of employees, wage and benefits structures, succession plans, and information pertaining to affirmative action plans and planning;  

    4.    A general release of claims; and

    5.    A covenant not to sue that encompasses any claims, actions or proceedings and requires the employees to reimburse the company for any attorney fees incurred as the result of a breach of the agreement.  The covenant not to sue contains a qualification explaining that it is not intended to interfere with an employee's right to cooperate with or participate in a state or federal agency proceeding to enforce discrimination laws.

CVS reportedly used the foregoing terms in more than 650 agreements in 2012 alone.  All of the foregoing types of clauses are common in employment-related separation agreements, and often provide much of the incentive for employers to enter into such agreements.  Consequently, the EEOC's case against CVS is one that employers will want to monitor closely.  

 A copy of the EEOC complaint is available here.

NLRB Abandons Controversial Posting Rule

By Stacey Mark
January 9, 2014

The National Labor Relations Board (NLRB) announced this week that it will not seek U.S. Supreme Court review of two Court of Appeals decisions invalidating its controversial posting rule.  The rule required most private sector employers to post a notice advising employees of their rights under the National Labor Relations Act, including the right to:

  • Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment;
  • Form, join or assist a union;
  • Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions;
  • Discuss terms and conditions of employment or union organizing with co-workers or a union;
  • Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions; and
  • Choose not to do any of these activities, including joining or remaining a member of a union.

Since the initial injunction barring the NLRB from enforcing the posting requirement, the NLRB has increased its scrutiny of employer rules and policies that could be interpreted as chilling employees' rights to engage in concerted activity.  The policies and rules that tend to be problematic are those that could be construed as limiting employee communication about working conditions and terms of employment, including social media, confidentiality, and non-disparagement policies.  Such policies routinely come under review when the NLRB receives a charge alleging an unfair labor practice (ULP), even when the ULP does not implicate the particular rule or policy.   Given the NLRB's decision to abandon the posting rule, its scrutiny of employer policies is likely to continue in 2014. 

Oregon Court of Appeals Adopts Broad Definition of "Employee" for Minimum Wage Statute

By Shemia Fagan
January 6, 2014

Last month, in Cejas Commercial Interiors, Inc., v. Torres-Lizama, the Oregon Court of Appeals adopted the “economic realities test” for determining whether an individual is an employee under Oregon's minimum wage statute.  The statute, ORS 653.025, provides that “no employer shall employ * * * any employee” at a wage lower than the “Oregon minimum wage.”  A challenge for courts is to determine whether a worker is an employee of the purported employer.

Before last month’s ruling, trial courts in Oregon applied two different tests to determine whether an individual is an “employee” for purposes of the minimum wage statute.  One test, called the “right-to-control test,” looks at whether the presumed employer has formal control over the individual workers. A second test, the one adopted by the Court of Appeals, focuses more broadly on whether “an entity has functional control over workers even in the absence of the formal control.”  The goal of the economic-realities test is to determine whether, “as a matter of economic reality,” the worker is dependent on the alleged employer.

In Cejas Commercial Interiors, Inc., v. Torres-Lizama, the workers alleged that Cejas, a drywall contractor, was their employer while they did drywall work that Cejas had subcontracted to Viewpoint Construction, LLC. The workers sought compensation from Cejas when Viewpoint disappeared without paying them, claiming that Cejas and not Viewpoint was their employer.  The Court of Appeals agreed with the trial court that, even applying the broader economic-realities test, the workers were not “employees” of Cejas, and therefore Cejas did not owe them minimum wages.  The court found that Cejas “neither formally nor functionally controlled the terms and conditions of employment.”  Further, the court found that the workers were not economically dependent on Cejas and Cejas was a “mere business partner” of the workers' direct employer, Viewpoint.