OSHA Issues Final Ergonomics Rule. Despite the controversy, and while we were looking the other way, President Clinton has adopted OSHA's Final Rule requiring businesses to deal with the repetitive stress and other ergonomic injuries of their workers. With few exceptions, the Final Rule applies to all businesses covered by the Occupational Safety and Health Act, and takes effect on January 16, 2001. Every business covered by the Rule must disseminate basic information to its employees about Musculoskeletal Disorders (MSDs), the risk factors of work activities, the signs and symptoms of an MSD, a description of OSHA's standard, and instructions about how to report an MSD. No further action is required unless an employee reports an MSD. Employers must begin to disseminate information to employees by October 14, 2001. See especially the FAQs, and Information Kit, listing the Rule's exceptions for small businesses.
The Internet I: ICANN Approves New TLDs, Including ".pro" for Lawyers. ICANN, the Internet Corporation for the Assignment of Names and Numbers, this month announced the designation of new Top Level Domains (TLDs). Of the many proposed TLDs, ICANN approved only these: .aero (air-transport industry), .biz (businesses), .coop (non-profit cooperatives), .info (unrestricted use), .museum (museums), .name (for use by individuals), and .pro (for use by accountants, lawyers and physicians. The price to register a ".pro" domain has not been set, but reportedly, the cost to register a ".biz" name is $2,000.00, plus a $150 annual maintenance fee. The new TLDs are not expected to be operational until the second quarter of 2001, but you can contact the registrars for each of the new domains from: http://www.icann.org/tlds/ No early registrations, though.
Internet II: Ailing Internet Suffering From Access Restrictions, Net Jurisdiction Disputes, UK Spying, and Breakaway Countries.
Access Restrictions: A French Court has held US-based Yahoo accountable for failing to block the content of its auction materials to Internet surfers located in France, and has threatened fines in excess of 100,000 francs (US$12,853) per day unless Yahoo installs a keyword-based blocking system that prevents French citizens from seeing the offending Yahoo sites. Aside from the impracticality of implementing such a system on a wide scale, the ruling also sets a dangerous precedent by seeking to impose an obligation on every Internet business to comply with the laws of every country in which a viewer may see its websites. If allowed to stand, the decision would change the Internet as we know it.
Net Jurisdiction: The European Commission is expected shortly to announce a decision mandating that e-commerce complaints be heard in the Courts of the consumer's country, rather than in the courts of the vendor's country. The ruling is expected to increase the insurance costs of doing business for e-commerce retailers, to defend out-of-country actions.
UK Spying: Britain's police and intelligence services have jointly asked for legislation permitting them to monitor every email message, telephone call and internet connection within or to the United Kingdom (UK), and store it in a database for 7 years. Roger Gaspar, Deputy Director of the National Criminal Intelligence Service (NCIS) says the request is "proportional and necessary."
Breakaway Countries: Stung by ICANN's request for higher fees, and protesting that they have no input into the process, Germany (.de), the United Kingdom (.uk), and others are considering moving their domains from ICANN's root servers, and taking several million internet users out of the Domain Name Server system.
Intellectual Property: No Software Patents in Europe - Not yet. Although the European Patent Office favors software patents, every European country except for Austria, Liechtenstein and Switzerland voted to keep Europe's law at status quo, forbidding software patents. Expect the debate to continue.
Change in Computer Insurance Policies Follows Decision in Ingram Micro. As reported in our June, 2000 issue, an Arizona Federal District Judge has held that loss of computer access, use and functionality constitute "physical damage" as that term is used in a property damage insurance policy. In so ruling, Judge Marquez found that restricting the policy's language to the meaning proposed by the insurer would be "archaic," and granted partial summary judgment to Ingram Micro, Inc. and against American Guarantee & Liability Insurance Co. This remains the only decision of its kind nationwide. To see a copy of the Order granting partial Summary Judgment, go to our website at www.PerfectlyLegalPubs.com. The case is set for trial in 2001. However, insurers are reportedly offering new products as a result of the decision in Ingram Micro decision, particularly for Internet and e-commerce businesses. Computer Technology Law Report.
Disproportionate Layoffs Plus EEOC's Reasonable Cause Findings Plus Supervisor's Anti-Age Quote Do Not Equal Age Discrimination. Despite a showing that older workers were laid off disproportionately to their numbers, despite the Equal Employment Opportunity Commission's (EEOC) "reasonable cause" findings, and despite an executive's statement that Plaintiffs were not "young and promotable," Plaintiffs' claims failed, as these factors were not sufficient to establish pre-textual age discrimination. In addition, Plaintiffs established a prime-facie case of disparate treatment, but sought to pursue claims of disparate impact, without amending their pleadings. Coleman vs. The Quaker Oats Company, No 99-15885 (9th Cir.) November 20, 2000).
"No Union" Speech Loses Successor Employer the Right to Set Terms Unilaterally: NLRB. Although a successor employer hiring employees terminated by predecessor has the right to set the initial terms of employment unilaterally, that right is lost when the future employer announces to the employees of its unionized predecessor that there will be no union at the new company. The Board's award of back pay and benefits was reversed and remanded, however, to determine what the effects of successor employer's negotiation with the union might have been. National Labor Relations Board v. International Union,
No 97-71047 (9th Cir., November 22, 2000).
Damage to "Individuals" Under Federal Computer Fraud and Abuse Act Includes Corporations. A disgruntled former employee's manipulation of his former employer's computer system could not be defended on the grounds that the Act only prohibited damage to "individuals." Although the Federal Computer Fraud and Abuse Act, 18 U.S.C.1030, provides that damages may be recovered by "individuals," that term was construed broadly enough to encompass corporations. United States v. Middleton, U.S. Ct. App., 9th Cir., No. 99-10518, 11/16/00). Incidentally, this statute was cited by Judge Marquez in his decision in favor of Ingram Micro, Inc., reported in item 5 above.
Physician's Non-Competition Agreement Held Void and Unenforceable. Drawing parallels between Rule 5.6 of the Rules of Professional Conduct applying to Illinois lawyers and Section 9.2 of the Opinions of the Council on Ethical and Judicial Affairs of the American Medical Association, the Illinois Appellate Court has held as void and unenforceable a physician's non-competition agreement. Finding that the restrictive covenant was an unreasonable restraint of trade and contrary to public policy, the Court declined to follow a contrary decision of the 4th District Appellate court in Prairie Eye Center, Ltd. vs. Butler, 305 Ill.App.3d 442, 713 N.E.2d 610 (1999). Shields, infra, also held as void and unenforceable the employment contract between Plaintiff and the successor employer to whom it had been assigned, noting that the successor employer did not fall under the narrow exception to the corporate practice of medicine doctrine, which was created for hospitals, and therefore declared the contract void and unassignable. Shields vs. Alton Health Institute, No. 5-99-0359, 5th Dist., (November 3, 2000). An appeal is expected.
How to Make Those Email Trails Disappear. For businesses that become involved in litigation, a "smoking gun" is often found in the emails stored on the company's computers, since even after an email is "deleted" it can be recovered from a computer's hard drive. But what's worse is that copies of the message are everywhere: the sender's and recipient's hard drive, the hard drives of third parties to whom it was forwarded, back-up tapes and files, and on every one of the servers the message has passed through. How do you delete all of those copies, no matter where they are? Try San Francisco's Disappearing, Inc., which provides a service that encrypts the mail and assigns a unique key that resides on the company's server. The message remains encrypted on every server it passes through, as well as on the sender's and the recipient's hard drives -- and on all backup copies. At some time determined either by the sender or by company policy, which can be hours, days or weeks, the key is automatically deleted and all the messages become unreadable. For a free trial copy of the software, go to www.disappearing.com .