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  • Posted on Tuesday, March 14, 2017

    NLRB Grants New Protection for Division I Football Players

    College athletes have long argued — for the most part unsuccessfully — to be treated as university employees. On January 31, 2017, NLRB General Counsel, Richard F. Griffin, Jr., delivered the most significant victory to date for a particular group of these athletes. In an official document, titled Memorandum GC 17-01, Griffin declared that all Division I FBS (Football Bowl Subdivision) athletes qualify as “employees under the [National Labor Relations read more

  • Posted on Monday, November 28, 2016

    New Overtime Changes on Hold… For Now

    Less than two weeks before the Department of Labor’s new federal overtime rule was scheduled to take effect on December 1, a federal judge in Texas issued a nationwide preliminary injunction postponing its implementation. The new rule would have raised the minimum salary threshold to qualify for overtime pay under the Fair Labor Standard Act’s white collar exemption from $23,660 to $47,476 per year, with automatic adjustments to the threshold read more

  • Posted on Wednesday, November 09, 2016

    What Clauses in Your Teaming Agreements Are Enforceable?

    If teaming agreements are not enforceable, are they worth the time and effort government contractors spend negotiating them? Ideally, every clause in a procurement staple like a teaming agreement should be enforceable in every courtroom in the country. That is not the case, however. Recently, a judge on the Fairfax County Circuit Court in Virginia refused to enforce a standard teaming agreement clause calling for post-award good faith negotiation of read more

  • Posted on Wednesday, September 21, 2016

    Builder “Silences” Noise Lawsuit Stemming from Alexandria Sale

    A homeowner’s fraud lawsuit against builder Pulte Home Corporation based on excessive noise in the homeowner’s unit was recently dismissed by the U.S. District Court for the Eastern District of Virginia, Alexandria Division. The case is Devine v. Pulte Home Corporation, Case No. 1:15-cv-1361 (E.D.Va. Dec. 4, 2015). U.S. District Court Judge James C. Cacheris granted Pulte’s motion for judgment on the pleadings and dismissed the homeowner’s lawsuit. The Plaintiff read more

  • Posted on Wednesday, September 21, 2016

    Two Big Legal Developments Hit the Construction Landscape

    Two major recent changes impact the enforceability of Virginia construction contracts. These changes make certain contractual waivers “null and void” as a matter of law. First, waivers of mechanic’s lien rights executed before work begins or materials are supplied by subcontractors or material suppliers are now null and void. This change is found in Virginia’s mechanic’s lien statute. Specifically, Section 43-3 of the Virginia Code is now amended with this read more

  • Posted on Wednesday, September 21, 2016

    Telecommuting Employees Can Pose Certain Legal Risks For Employers

    United Excel Corporation, a Kansas company in the hospital construction business, employed a sales representative to solicit business from hospitals throughout the country.  At some point, the sales representative asked to work out of his home, which was located in Massachusetts.  During the three years that he worked from his Massachusetts home for United Excel, the sales representative never closed any business with hospitals in that state. After closing a read more

  • Posted on Wednesday, September 21, 2016

    Virginia State Law to GOP Delegates: “Vote Trump or You’re Fired.”

    Donald Trump won the Virginia Republican presidential primary on March 1 with 34.7% of the vote, earning him 17 bound delegates of the state’s 49.  Carroll Correll, a Virginia delegate to this year’s Republican National Convention, has recently filed an action against the Virginia Attorney General challenging the constitutionality of Title 24.2 Section 545(D) of the Virginia Code requiring that “delegates and alternates shall be bound to vote on the read more

  • Posted on Monday, September 19, 2016

    Kindling Print’s Spirit: A Guide To E-Publishing

    Since the release of Amazon’s Kindle in 2008, e-publishing has slowly transformed from an indie alternative into a viable mainstream distribution outlet for both new and established authors.According to Fortune 500, e-book sales increased by a remarkable 1,260% between 2008 and 2010. With the emergence of this new market, multiple new e-publishing companies have materialized, allowing authors to self-publish their novels online and quickly share their work with the public. read more

  • Posted on Monday, September 19, 2016

    A Legal Marvel: The Stark Difference Between Copyrights and Trademarks

    Since Iron Man was released to rave reviews in 2008, Marvel has created the most successful film franchise in history and has amassed a global empire while simultaneously re-energizing the comic book genre. As you might expect, many overly ambitious citizens have attempted to take a cut of Marvel’s profit by any means necessary, leading to some interesting lawsuits against the comic book mogul in the past few years. In read more

  • Posted on Monday, September 12, 2016

    New Rules Create Opportunities for Government Contractors

    In the last several months, the government issued new regulations that can benefit all government contractors and especially small businesses. Berenzweig Leonard wanted to summarize them so government contractors can take advantage of these opportunities as well as be aware of the two “Cautions” we describe at the end.  NEW SBA RULES The SBA adopted new rules that (1) let a small business prime use the work of another small read more

  • Posted on Saturday, September 10, 2016

    SBA Opens $2 Billion Market to Expanded Mentor-Protégé Program

    An estimated $2 billion annual government contract market has been opened up to an estimated 2,000 small businesses, according to the SBA, as a result of its recently-expanded Mentor-Protégé program.All small businesses, and not just 8(a) firms, may now become protégés to joint venture with large businesses – and even other small businesses – competing for small business set-aside contracts as part of the SBA’s “all small business” Mentor-Protégé program. read more

  • Posted on Thursday, September 08, 2016

    Appeal of “Blurred Lines” Verdict Backed by Artists

    Roughly a year and a half after the highly controversial March 2015 jury verdict awarding Marvin Gaye’s children nearly $7.4 million in a copyright infringement lawsuit against Robin Thicke and Pharrell Williams, the “Blurred Lines” case is in the news again. Over two hundred songwriters, composers, musicians, and producers joined in the filing of an amicus brief in support of Thicke and Williams, who have appealed the verdict.Following a trial read more

  • Posted on Tuesday, July 05, 2016

    Virginia State Law to GOP Delegates: “Vote Trump or You’re Fired.”

    Donald Trump won the Virginia Republican presidential primary on March 1 with 34.7% of the vote, earning him 17 bound delegates of the state’s 49.  Carroll Correll, a Virginia delegate to this year’s Republican National Convention, has recently filed an action against the Virginia Attorney General challenging the constitutionality of Title 24.2 Section 545(D) of the Virginia Code requiring that “delegates and alternates shall be bound to vote on the read more

  • Posted on Wednesday, June 29, 2016

    Led Zeppelin’s Victory on the Stairway to Heaven

    Led Zeppelin emerged victorious in their recent copyright infringement lawsuit against the estate of founding Spirit guitarist, Randy Wolfe, proving once and for all that their smash hit, Stairway To Heaven, is a unique composition and arguably one of the most successful Rock and Roll songs of all time. But in addition to asserting Stairway’s dominance, this landmark decision could possibly change the music industry’s copyright infringement battle ground in read more

  • Posted on Monday, June 20, 2016

    Trial Underway in Stairway to Heaven Lawsuit

    Trial is underway in a U.S. District Court for the Central District of California, where the legendary British rock band Led Zeppelin has been sued for money damages and writer credits for the band’s iconic megahit “Stairway to Heaven.” In 2014, the estate of guitarist Randy California, a founding member of the band Spirit, filed a lawsuit claiming that Stairway’s iconic introduction was lifted directly from Spirit’s song “Taurus,” which read more

  • Posted on Tuesday, June 14, 2016

    New Laws May Not Impact Your Existing Contract

    Government contractors trying to cope with the current flood of new laws, executive orders, and regulations need to remember that these changes generally do not re-write their existing government contracts. Although the President may sign new Executive Orders and federal agencies may adopt new regulations, the terms and conditions of an existing contract do not automatically change. A “deal is a deal” even with the government.This stability may seem strange read more

  • Posted on Monday, May 16, 2016

    “The Most Interesting Man in the World” Gets His Counterclaim Tossed

    Last fall, Jonathan Goldsmith, known as the “most interesting man in the world” of Dos Equis advertisement fame, was sued for breach of contract by his former talent agency after allegedly withholding commissions owed to the agency. Goldsmith, who began portraying the “most interesting man in the world” in 2006, earns approximately $1 million per year and is required by contract to pay a 10% commission to his talent agency. read more

  • Posted on Wednesday, May 11, 2016

    Congress Creates a New Cause of Action for Trade Secret Theft

    On April 27, 2016, in a move lauded as the most significant expansion of federal intellectual property law in the last half-century, Congress passed the Defend Trade Secrets Act of 2016 (“DTSA”) and established the first civil remedy for trade secret misappropriation under federal law.   The bill was passed as an amendment to the Economic Espionage Act, 18 USCA § 1832, which currently permits the Attorney General to enjoin read more

  • Posted on Wednesday, May 11, 2016

    What Employers Need to Know About the New Defend Trade Secrets Act

    Trade secret issues arise daily in the workplace with nearly every employment decision, from employee hiring and firing, to every contract that contains a non-disclosure or confidentiality provision. President Obama today signed the Defend Trade Secrets Act (“DTSA” or the “Act”), with huge implications for employers, companies, and other trade secret owners. For the first time, the Act offers trade secret owners greater access to federal court, as well as read more

  • Posted on Thursday, May 05, 2016

    Two Big Legal Developments Hit the Construction Landscape

    Two major recent changes impact the enforceability of Virginia construction contracts. These changes make certain contractual waivers “null and void” as a matter of law.First, waivers of mechanic’s lien rights executed before work begins or materials are supplied by subcontractors or material suppliers are now null and void. This change is found in Virginia’s mechanic’s lien statute. Specifically, Section 43-3 of the Virginia Code is now amended with this italicized read more

  • Posted on Monday, April 18, 2016

    Reports of New Balance’s “Bribe” Claim Are Off Balance

    As government contractors are well aware, media efforts to accurately report government procurement issues are often unsuccessful. A Washington Post article inaccurately reported in 2013 that “Fewer than 15” GAO  protests, about 1% of the roughly 1600 GAO protests filed in 2010, resulted in the protester winning the contract. However, detailed studies by government contract experts put the number much higher at approximately 20-29%.This week, several media reports have suggested read more

  • Posted on Friday, April 15, 2016

    If an Agency Does Not Answer Your Questions, Keep Asking

    If used wisely and persistently, the Q & A part of the solicitation process can mitigate numerous contractor risks. One of those risks is the risk of winning a contract with a vague statement of work that exposes a contractor to overruns; another is the risk of losing a contract because a bidder misinterpreted ambiguous solicitation instructions to bidders.As a recent GAO decision shows, it pays for a bidder to read more

  • Posted on Tuesday, April 05, 2016

    Stairway to Heaven Lawsuit Trial Date Set

    If you work in or around the music industry, you’re probably well aware of the fact that Led Zeppelin, one of the most popular bands of all time, has been embroiled in litigation over the writer credits for the band’s iconic megahit “Stairway to Heaven.” In 2014, the estate of guitarist Randy California, a founding member of the band Spirit, as well as another band member, sued Led Zeppelin in read more

  • Posted on Monday, March 28, 2016

    Don’t Hedge Your Bets on a Fixed-Price Bid

    Because a firm fixed-price contract commits a contractor to paying for overruns and unexpected performance costs, a bidder might be tempted to hedge its bets when submitting a bid for a fixed-price contract. For example, a bidder might “reserve all rights” to a future equitable adjustment if some costly, unexpected event occurs.Doing so, however, can be fatal to winning the contract. A bidder trying to hedge its bets can end read more

  • Posted on Tuesday, March 22, 2016

    What Is the Real Reason the FBI Canceled the Apple Hearing?

    The FBI canceled the March 22 court hearing scheduled to take place in California that was aiming to force Apple to create code for unlocking an iPhone.  The FBI suddenly changed course and notified the judge, and Apple, that an unknown source may be able to crack the security encryption feature on the San Bernadino terrorist’s iPhone, without Apple’s help.  If that holds true, the government’s case could be withdrawn read more

  • Posted on Thursday, March 10, 2016

    The Best Way to Negotiate a Fair Profit on Equitable Adjustments

    When the government changes a contractor’s work, the contractor is entitled to an equitable adjustment under the Changes clause for not only any increased costs but also for profit on those costs. Negotiating a fair profit presents a problem. The typical contractor is reluctant to harm its relationship with its customer, particularly in this time of dwindling agency budgets. The result is often that the contractor agrees to profit being read more

  • Posted on Wednesday, March 02, 2016

    Judge Was Not Amused By Supervisor’s Smiley Face Emoticon

    An executive secretary at insurance company Munich Re in New Jersey took extended leave under the federal Family and Medical Leave Act (FMLA) citing her asthma condition.  The company became suspicious that the employee was not really too sick to work, and hired a private investigator to follow her and videotape her public activities.  The investigator captured the asthmatic employee on video shopping at a mall and carrying boxes as read more

  • Posted on Wednesday, March 02, 2016

    Telecommuting Employees Can Pose Certain Legal Risks For Employers

    United Excel Corporation, a Kansas company in the hospital construction business, employed a sales representative to solicit business from hospitals throughout the country.  At some point, the sales representative asked to work out of his home, which was located in Massachusetts.  During the three years that he worked from his Massachusetts home for United Excel, the sales representative never closed any business with hospitals in that state.After closing a big read more

  • Posted on Tuesday, January 26, 2016

    Builder “Silences” Noise Lawsuit Stemming from Alexandria Sale

    A homeowner’s fraud lawsuit against builder Pulte Home Corporation based on excessive noise in the homeowner’s unit was recently dismissed by the U.S. District Court for the Eastern District of Virginia, Alexandria Division. The case is Devine v. Pulte Home Corporation, Case No. 1:15-cv-1361 (E.D.Va. Dec. 4, 2015). U.S. District Court Judge James C. Cacheris granted Pulte’s motion for judgment on the pleadings and dismissed the homeowner’s lawsuit.The Plaintiff homeowner read more

  • Posted on Tuesday, January 26, 2016

    Builder “Silences” Noise Lawsuit Stemming from Alexandria Sale

    A homeowner’s fraud lawsuit against builder Pulte Home Corporation based on excessive noise in the homeowner’s unit was recently dismissed by the U.S. District Court for the Eastern District of Virginia, Alexandria Division. The case is Devine v. Pulte Home Corporation, Case No. 1:15-cv-1361 (E.D.Va. Dec. 4, 2015). U.S. District Court Judge James C. Cacheris granted Pulte’s motion for judgment on the pleadings and dismissed the homeowner’s lawsuit.The Plaintiff homeowner read more

  • Posted on Wednesday, December 30, 2015

    ‘Big Bang Theory’ Producers Sued in “Soft Kitty” Copyright Case

    Producers of the hit TV show The Big Bang Theory got a legal ‘bazinga’ in a new lawsuit contesting the show’s allegedly unauthorized use of nursery rhyme lyrics written eight decades ago by a New Hampshire school teacher.  The lawsuit, filed in New York federal court by the daughters of Edith Newlin on behalf of their late mother’s estate, asserts that Ms. Newlin held the lyrical copyright, and that the read more

  • Posted on Tuesday, December 29, 2015

    Company and CEO Held Jointly Liable for Minimum Wage Violations

    A federal district court in Pennsylvania has held American Future Systems, Inc., and its CEO jointly liable for Fair Labor Standards Act (“FLSA”) violations arising from the company’s break policy. That policy required employees to log off of their computers and forgo compensation for all breaks, even short ones lasting fewer than 20 minutes. The CEO, as a 98% owner of American Future Systems and the “final authority” for compensation read more

  • Posted on Friday, December 18, 2015

    Internet Service Provider Held Responsible for Users’ Infringement in Landmark Decision

    BMG Rights Management, one of the world’s largest music publishers, has been awarded a $25 million verdict by a federal jury after Cox Communications was found to be liable for the copyright-infringing actions of its users.Following a week-long trial in the U.S. District Court for the Eastern District of Virginia, it was determined that Cox was on the hook for the actions of its users as a result of its read more

  • Posted on Friday, December 18, 2015

    Agencies Cannot Use Their Websites as Substitutes for FedBizOpps.gov Notices

    Although government contractors have a duty to keep alert for contracting opportunities, agencies have a duty to use FedBizOpps.gov, and not their own websites, to give contractors FAR-required notice of those opportunities. Posting notices of solicitations, amendments, and awards on internal websites like the DLA internet bid board system (DIBBS) or the Army Single Face to Industry (ASFI) website is not enough. Unless the agency has posted notices on FedBizOpps.gov, the agency has not given read more

  • Posted on Thursday, December 17, 2015

    Documents With Short Approval Deadlines Must Be Carefully Drafted

    Short deadlines leave little room for error. When the government gives a contractor a short document approval deadline, the contractor’s initial submission should strictly follow regulations because there may not be time for required revisions, as an 8(a) joint venture found out recently. In that case, the only remaining approval the JV needed to be awarded an 8(a) Army contract was the Small Business Administration (SBA)’s approval of the 8(a) JV Agreement. Unfortunately for read more

  • Posted on Monday, November 23, 2015

    Fantasy Sports Puts Its Cards on the Table for NY Court Hearing

    The two biggest daily fantasy sports (‘DFS’) operators and the NY Attorney General will be placing big bets Wednesday in a New York courtroom, when they ask Judge Mendez for an injunction which could lead to the rescue or destruction of fantasy sports in New York.  Since the hearing addresses whether daily fantasy sports is a game of skill or a game of chance, the results will also spill over read more

  • Posted on Thursday, November 05, 2015

    Poorly Drafted Subcontract “Work Share” Clauses Can Be Costly

    Work share – how much work a prime contractor is guaranteeing a subcontractor — is perhaps one of the most important clauses in a subcontract. It is a mistake, therefore, to draft this critical clause without considering the language of the other subcontract clauses. Language in a subcontract’s “Definitions” section can severely limit a subcontractor’s work share.After winning an Army contract for interpreter and translation services, a prime contractor in read more

  • Posted on Monday, October 19, 2015

    Does a Florida Company’s Internet Activity Subject it to a Lawsuit in Virginia?

    The Eastern District of Virginia recently addressed the effect of technology on the traditional requirements for a state court to exercise personal jurisdiction over a defendant, in DeCusati v. Reiss Engineering, Inc., 3:15-cv-204-JAG (July 30, 2015). Personal jurisdiction hangs on due process concerns. Since a plaintiff chooses where the suit is litigated, the defendant must have some connection to the state to ensure an equal footing and to be constitutionally read more

  • Posted on Friday, October 09, 2015

    How Government Contractors Can Escape Lawsuits – Derivative Sovereign Immunity

    The United States Government generally enjoys sovereign immunity from lawsuits unless that immunity is waived. Government contractors that perform “discretionary functions” under government contracts should be aware that they could be immune from suit under the doctrine of derivative sovereign immunity.This type of immunity generally protects government contractors performing delegated discretionary governmental acts when they are sued for taking those protected acts. To qualify for derivative sovereign immunity, a government read more

  • Posted on Tuesday, October 06, 2015

    The Fantasy Sports Business – A Real Bet or Fantasy Fraud?

    Just as daily fantasy sports (“DFS”) companies such as DraftKings and FanDuel have become huge multi-billion dollar businesses, breaking news has raised questions about whether fantasy sports is a soundly run responsible business or a clumsily disguised sham.  A recent scandal in the DFS industry arose when a DraftKings employee, Ethan Haskell, allegedly used sensitive betting information internally collected by his employer and utilizing it to his advantage, selected a read more

  • Posted on Tuesday, October 06, 2015

    Under Armour’s Enforcement Tactics: Heavy-Handed or Right on the Money?

    Under Armour recently filed a complaint against Armor & Glory, a Christian sportswear company in the District Court of Maryland for trademark infringement. The alleged infringement? Use of the word “Armor” in Armor & Glory’s name. Trademark infringement claims are based on the alleged unauthorized use of a unique identifier in connection with goods.  The identifier could be a word, a logo, or even a fictional character like Batman or Mickey Mouse.  In order for read more

  • Posted on Tuesday, October 06, 2015

    Recent Copyright Law Decisions Have the Industry Jammin’

    The entertainment industry is no stranger to copyright law, but three recent federal court decisions may just throw things for a loop.Earlier this summer, the Fourth Circuit clarified the “substantially similar” test, which is used to determine copyright infringement. David Copeland, a singer and songwriter, alleged that Justin Bieber and Usher’s song, Somebody to Love, was a ripoff of his own song. In considering whether the two works were “substantially read more

  • Posted on Monday, September 28, 2015

    Pay Transparency Final Rule Imposes New Obligations on Federal Contractors

    The Office of Federal Contract Compliance Programs (OFCCP) recently published a final rule imposing new obligations on federal contractors when it comes to pay transparency. This new rule, which according to the Administration seeks eliminate pay secrecy that can inhibit employees from exercising their rights to seek redress for discriminatory pay practices, is another in a line of several new labor obligations placed on federal contractors.The final rule issued by read more

  • Posted on Wednesday, September 23, 2015

    New SBA Rule Promotes Growth and Development of Women-Owned Small Businesses

    Women-owned small businesses are growing three times faster than their counterparts, yet they currently receive less than 5% of federal contracting dollars. The U.S. Small Business Administration (SBA) recently issued a final rule that is “a major step forward in leveling the playing field and supporting our country’s dynamic female entrepreneurs,” said SBA Administrator Maria Contreras-Sweet. This new rule encourages more women entrepreneurs to grow and start new businesses and read more

  • Posted on Tuesday, September 15, 2015

    “Don’t Ask, Don’t Tell:” New Virginia Law Limits Access to Employee’s Social Media Accounts

    The use of social media has become pervasive in today’s workplace. As a result, employers have a strong interest in making sure employees are following company policies and preserving the confidentiality of company information while online, and in maintaining a positive public image on social media−while being careful not to interfere with employees’ rights under Section 7 of the National Labor Relations Act. In addition, employers have a responsibility to read more

  • Posted on Friday, August 21, 2015

    Construction Arbitrators Get New Powers

    On July 1, 2015, the American Arbitration Association (AAA) rolled out new rules for the construction industry. Construction arbitrators can now sanction parties and grant emergency relief, among other power expansions. Sanctions A construction arbitrator can order sanctions where a party fails to comply with AAA rules or an arbitrator’s order. The arbitrator can also order non-monetary sanctions, such as making an adverse determination against a party or limiting a party’s read more

  • Posted on Tuesday, August 18, 2015

    Employee Can Sue More Than One Employer For Discrimination

    For the first time, the U.S. Court of Appeals for the Fourth Circuit has expressly adopted the joint employment doctrine for Title VII cases.  Now, an employee can potentially go after more than just the company that pays her when bringing a claim for unlawful discrimination or harassment.  The Fourth Circuit joins the Second, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits in holding that more than one company can be read more

  • Posted on Wednesday, July 22, 2015

    Employee Who Could Not Get Along With Co-Workers Was Not Protected By Federal Disabilities Law

    Marissa Walz was a long-time employee of financial planning giant Ameriprise, and for most of her time there she received positive reviews.  But more recently, Walz began to engage in erratic and disruptive behavior due to a bipolar condition, which she did not disclose to Ameriprise.  She interrupted meetings, disturbed her co-workers, and disrespected her supervisor.  During one company meeting, Walz told a co-worker to “stop interrupting me, you don’t read more

  • Posted on Tuesday, July 21, 2015

    Independent Contractor or Employee? New DOL Guidance Concludes Most Independent Contractors are Misclassified.

    The U.S. Department of Labor (“DOL”) recently issued an Administrator’s Interpretation addressing the common misclassification of employees as independent contractors under the Fair Labor Standards Act (“FLSA”). The misclassification of employees as independent contractors may lead to those employees failing to receive certain workplace protections, such as minimum wage and overtime compensation under the FLSA. The DOL concludes that most workers qualify as employees under the FLSA’s definition.Employers often use read more

  • Posted on Monday, July 20, 2015

    Judge Modifies Verdict in “Blurred Lines” Lawsuit

    In March, a jury awarded Marvin Gaye’s children nearly $7.4 million after rendering a verdict that singers Robin Thicke and Pharrell Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013.Now, a federal judge has modified the verdict, trimming more than $2 million off the singers’ liability, but also giving Gaye’s family 50% of the song’s future royalties. Thicke read more

  • Posted on Friday, June 19, 2015

    AIG Bailout – Government Was Wrong But Shareholders Get No Damages

    The federal government’s 2008 loan of $85 billion bailing out insurance giant AIG during the financial crisis was illegal but literally “harmless,” according to a recent court decision. Although the government had the right to loan AIG money to keep AIG from certain bankruptcy, the government illegally demanded that AIG make the government a part-owner by acquiring 80% of AIG’s stock.  The court, however, awarded the AIG shareholders no damages, read more

  • Posted on Thursday, April 16, 2015

    Hadeed Carpet’s Subpeona Against Yelp Gets Swept Under the Rug

    The Virginia Supreme Court made it harder for businesses stung by anonymous social media postings to fight back and get information identifying the people who post online comments.  In Yelp v. Hadeed Carpet Cleaning, the court threw out a Virginia Subpoena and Contempt Order against Yelp after the social media giant refused to turn over documents identifying people who anonymously posted negative social media comments about Hadeed.In a decision that read more

  • Posted on Friday, April 10, 2015

    Lawyer not liable when his independent contractor process server was killed serving divorce papers

    A Virginia lawyer hired a process server as an independent contractor to personally serve legal papers on a husband in a tense divorce case.  The lawyer knew that the husband owned a gun and had expressed concern that the husband could potentially become violent, but he did not relay this information to the process server.  The process server tried a number of times to personally serve the husband without success. read more

  • Posted on Wednesday, March 25, 2015

    Heroes Held Hostage in Film: How Old Copyright Deals are Getting in the Way of Superhero Team-Ups

    In February 2015, the Walt Disney Company ‒ which owns Marvel Worldwide ‒ and Sony Corp. reached an agreement that will permit the enormously popular web-slinger, Spider-Man, to appear in upcoming Marvel superhero movies.  To many Marvel comics readers and Spidey fans, the need for this deal may be quite confusing, given that Spider-Man is a member of the Marvel superheroes team, the Avengers, and first appeared in a comic read more

  • Posted on Thursday, March 19, 2015

    Yelp Gets a Pass On Negative Social Media Post

    The Fourth Circuit Court of Appeals recently issued a decision having a big impact on how businesses must deal with disparaging commentary on social media.  In Westlake Legal Group v. Yelp, Inc., the court rejected a Virginia law firm’s claim against Yelp complaining about defamatory comments on the firm posted on Yelp’s website.  Yelp asserted that the case should be dismissed, arguing that federal law provided it and other social read more

  • Posted on Wednesday, March 11, 2015

    L.A. Jury Delivers $7.4 Million Verdict in “Blurred Lines” Lawsuit

    A jury has awarded Marvin Gaye’s children nearly $7.4 million after determining that celebrity singers Robin Thicke and Pharrell Williams plagiarized Gaye’s 1977 hit “Got to Give It Up” to create “Blurred Lines,” the longest-running number one single of 2013.Thicke and Williams, who each earned more than $7 million apiece on “Blurred Lines,” claim to have written the song independently, but Gaye’s estate argued that a number of distinct elements read more

  • Posted on Monday, March 02, 2015

    Cantankerous Employee With ADHD Not Considered Disabled

    A police officer in Oregon who had trouble getting along with his fellow officers was described in his performance reviews as “abrasive,” “intimidating,” and “overly aggressive.”  After a subordinate officer filed a grievance against him for poor treatment, the police officer was suspended.  During the ensuing investigation, the police officer provided a diagnosis from a clinical psychologist that he suffered from adult ADHD which led to his poor interpersonal skills. read more

  • Posted on Thursday, February 26, 2015

    Pick your Litigants Wisely When Filing Mechanic’s Lien Lawsuits

    The Supreme Court of Virginia recently held that a subcontractor, Synchronized Construction Services, Inc. (“Synchronized”), could proceed with its mechanic’s lien lawsuit against the project owner and bank, despite the absence of the general contractor on the hotel construction project, finding that the general contractor was not a necessary party. In Synchronized Construction Services, Inc. v. Prav Lodging, LLC, et al., 764 S.E.2d 61 (Va. 2014), the subcontractor sought project read more

  • Posted on Thursday, February 05, 2015

    A Cautionary Tale For Employers to Make Sure Your FMLA Policy Is Up-To-Date

    A recent case from the 6th Circuit shows just how important it is to make sure your Family and Medical Leave Act (“FMLA”) policy is up to snuff. In the case of Tilley v. Kalamazoo County Road Commission, an employee requested time off after a suspected heart attack. The company granted the request and sent the employee FMLA paperwork, representing that he was eligible for FMLA leave. Additionally, the company’s read more

  • Posted on Friday, January 30, 2015

    Big Verdict for Funk Legend Sly Stone Puts Royalties in the Spotlight

    Rock and Roll Hall of Famer Sly Stone has been awarded $5 million by a Los Angeles jury in a breach of contract case claiming that Stone’s former manager and business partners cheated Stone out of more than a decade’s worth of royalties. Stone is best known as the leader of the funk group Sly and the Family Stone, which he led to fame in the 1960s and 1970s with read more

  • Posted on Friday, January 23, 2015

    Could Rappers Face Jail Time Over Lyrics?

    San Diego-based rapper Tiny Doo, whose real name is Brandon Duncan, faces prosecution on nine counts of alleged criminal street gang conspiracy, which collectively carry a sentence of 25 years to life in prison. The charges arise from a rash of shootings in California that were allegedly carried out in 2013 by the Lincoln Park gang, of which prosecutors allege Duncan is a member. Duncan does not have a criminal read more

  • Posted on Wednesday, December 24, 2014

    A-List Artists Threaten YouTube With Billion-Dollar Lawsuit

    Music industry juggernaut Irving Azoff, who manages music licensing for some of the biggest artists in the business, including Pharrell Williams, the Eagles, Van Halen, Steely Dan, and the late John Lennon, has threatened YouTube with a $1 billion copyright infringement lawsuit unless over 20,000 songs are taken down. Azoff says that the infringing content was created by about 40 of his artists, and that YouTube has made them available read more

  • Posted on Thursday, December 18, 2014

    Major Supreme Court Decision Clarifies Compensation for Security Screening

    A recent decision from the U.S. Supreme Court could dramatically change the employment landscape on employee compensation for time spent going through security screening and could likely extend to other pre- and post-shift employee activities. The case of Integrity Staffing Solution, Inc., v. Busk involved warehouse employees working at storage and order-filling facilities for Amazon. A number of the company’s hourly paid workers sued Integrity under the Fair Labor Standards read more

  • Posted on Monday, December 01, 2014

    Have Contingency Plans in Place for Your Proposal Submissions

    Although a contractor in one recent case had a contingency plan that covered a variety of unforeseen events that would delay the delivery of its proposal to the Government, its plan did not account for the possibility that local flights could be grounded by severe weather. The result was that the contractor’s proposal was not submitted on time, and the Government rejected the proposal as untimely.Global Military Marketing, Inc. (“Global”) read more

  • Posted on Monday, November 17, 2014

    Will Jonathan Gruber’s Comments Impact the Supreme Court?

    Jonathan Gruber, the MIT professor who was paid by the government to consult on the creation of the Affordable Care Act, recently made headlines with his controversial ObamaCare comments about the “stupidity of the American voter.”  His other comments, however, deserve a second look.  One comment shows how the Chief Justice may have been misguided by the government in his tie-breaking vote to support the Affordable Care Act, while another read more

  • Posted on Thursday, November 06, 2014

    EEOC Suffers Defeat in Ongoing Attack on Separation Agreements

    The EEOC’s 2013-2016 Strategic Enforcement Plan identified as one of its top priorities the regulation of overly broad separation agreements that allegedly interfere with employees’ Title VII rights to file discrimination charges. Recently, the agency sued several employers for using what appear to be fairly standard separation agreements. The EEOC’s lawsuit against CVS, which has received the most attention, was dismissed last month when an Illinois federal court granted CVS’s read more

  • Posted on Thursday, November 06, 2014

    Adventures in Licensing, Part II: It’s Not Just About Live Music

    In an earlier article, we discussed the importance of getting a license from ASCAP, BMI, SESAC, or all three before presenting live music at your bar, restaurant, or other venue. Purchasing blanket licenses from one or all of those organizations allows you avoid harsh copyright infringement penalties. As we’ve seen, these penalties can find you no matter how far off the beaten path your restaurant is, how unknown the band read more

  • Posted on Wednesday, October 22, 2014

    Sandwich Secrets “They” Don’t Want You to Know About: Have Non-Competes Gone Too Far?

    Litigation over non-compete provisions continues to make up a large segment of the lawsuits arising out of the employer-employee relationship, and that trend does not appear to be reversing itself any time soon. Some companies are relentless in their quest to gain an edge over the competition, and many are doing so in the name of protecting legitimate business interests by requiring all new employees—in some instances, even lower-level workers making read more

  • Posted on Wednesday, October 22, 2014

    Stairway to the Courthouse: Part II

    Led Zeppelin, one of the most popular bands of all time, has lost its first court battle in the lawsuit over iconic megahit “Stairway to Heaven,” brought by the estate of guitarist Randy California and profiled in one of our earlier blog posts.The lawsuit was filed in the U.S. District Court for the Eastern District of Pennsylvania by the trust of the late Randy California, a founding member of the read more

  • Posted on Thursday, October 16, 2014

    Handling Workplace Concerns Over the Ebola Crisis

    Concerns associated with the spread of Ebola are growing. The World Health Organization has declared the virus an “international health emergency” and the Centers for Disease Control confirmed that the U.S. has now experienced several cases of the virus. Although it’s still too early to deem this a major health crisis in the United States, concerns are growing and employers need to be prepared to address questions about the transmission read more

  • Posted on Thursday, October 16, 2014

    How Does a Construction Contractor Not Slip and Fall Over Its Own Contract?

    Ensuring that a construction contract clearly defines who is responsible for work-related injuries and related workers compensation benefits is critical, otherwise unanticipated statutory liability could surface, like a roofing contractor learned in Associated Aluminum Products and Builders Mutual Insurance Company v. Elvira-Menez et al., No. 2301-13-2 (Va. App. Sept. 16, 2014). In this recent case out of the Virginia Court of Appeals, the Court found that the prime contractor, Associated read more

  • Posted on Thursday, October 16, 2014

    Can You Fire An Employee for A Facebook “Like”?

    Since the arrival of social media sites such as Facebook and Twitter, employers have worried about protecting themselves from disparaging comments by their employees. Meanwhile, the National Labor Relations Board (NLRB) has intensified its scrutiny of employers’ social media policies and whether such policies prohibit employees from discussing the terms and conditions of their employment. The National Labor Relations Act (NLRA) gives employees the right to act together “to improve terms read more

  • Posted on Thursday, October 02, 2014

    Depressed Employee Wants Irregular Work Hours

    A budget analyst for the Department of Agriculture with a long history of severe depression asked the agency for permission to work irregular hours each day depending on how she was feeling on a given day.  On some days, the depressed employee woke up too sick to work until the afternoon, when her condition would improve and she could get her work done; on other days, she was able to read more

  • Posted on Thursday, August 21, 2014

    Does Fictional Hacking Software Used by Catwoman in The Dark Knight Rises Infringe on a Real-Life Trademark?

    The U.S. Court of Appeals for the 7th Circuit recently heard the appeal of a trademark infringement suit arising out of Christopher Nolan’s 2012 blockbuster film The Dark Knight Rises, the latest installment of films featuring Gotham City’s Caped Crusader known as Batman along with other characters from the DC Comics universe. One such character, Catwoman, is portrayed in The Dark Knight Rises as attempting to use sophisticated hacking software read more

  • Posted on Monday, August 18, 2014

    Court Weighs In On Validity of Liquidated Damages Clauses

    It is not uncommon for business contracts to contain a liquidated damages clause that provides a set amount to be paid in the event a party breaches the contract. However, a recent decision from the Fairfax County Circuit Court could significantly impact how companies structure liquidated damages provisions in their contracts. In Sagatov Builders LLC v. Christian Hunt, the Seller (Sagatov Builders) and Buyer (Christian Hunt) entered into a contract read more

  • Posted on Monday, August 18, 2014

    Company Cannot Prohibit Employees From Disclosing The Personal Contact Information Of Other Employees

    Tiffany & Company, the famed jewelry store, has a confidentiality policy that states, among other things, that its employees are prohibited from publicly disclosing other Tiffany employees’ contact information, including their names, addresses, telephone numbers, and e-mail addresses.  Though Tiffany is a non-union workplace, its policy recently came under scrutiny by the federal National Labor Relations Board (NLRB) after it received a complaint that the policy could interfere with an read more

  • Posted on Monday, August 18, 2014

    New Executive Order Will Require Contractors to Report Labor Law Violations

    On July 31, 2014, President Obama signed the “Fair Pay and Safe Workplaces Executive Order.” The primary purpose of this Executive Order ‒ which is expected to be implemented beginning in 2016 ‒ is to encourage federal contractors receiving taxpayer dollars to maintain lawful working conditions for their employees. It imposes significant new requirements for federal contractors to ensure their compliance with fourteen federal statutes, executive orders, and equivalent state read more

  • Posted on Monday, August 04, 2014

    New Construction Arbitration Rules Promise Cheaper and Faster Construction Arbitrations

    Companies involved in construction arbitration can now benefit from new rules which allow them to better predict time frames and costs to resolve disputes. The American Arbitration Association® developed new Supplementary Rules for Fixed Time and Cost Construction Arbitration effective June 15, 2014.Companies can benefit from the new Supplementary Rules, because: Reduced Discovery/Document Exchange: they are ideal for disputes with distinct issues, because these disputes benefit from reduced discovery and read more

  • Posted on Tuesday, July 29, 2014

    Do Not Read All FAR Clauses Literally

    A literal reading of some FAR clauses can cost you money. One such clause is the Changes clause (FAR 52.243-4) requiring the contractor to give the contracting officer written notice of suspected government changes within 30 days. Although a contracting officer or COTR might want to demand strict compliance with the clause, all government contractors need to know that courts do not require strict compliance. A contractor may be entitled read more

  • Posted on Friday, July 25, 2014

    FBI’s More Rigorous Physical Testing For Male Applicants Deemed Unlawful Gender Discrimination

    All new applicants for the FBI have to pass a physical fitness test in order to be hired as an agent.  Men have to do a minimum of 30 push-ups, while female applicants only have to do 14 push-ups.  A male applicant, who had been selected “leader” and “spokesperson” of his applicant class by his peers, passed all other tests to become an agent with the FBI.  But he could read more

  • Posted on Thursday, July 10, 2014

    To Sue, or Not to Sue: Strategic Responses to Intellectual Property Infringement

    You’ve finally done it.  Your book has gone to press, the reviews are good, and your friends tell everyone who will listen that they know a published author.  You’re hard at work on the sequel when you get a call from your publisher’s legal department.  Someone has published the first five chapters of your book on their blog without permission, and legal wants to talk with you about a response. read more

  • Posted on Wednesday, July 02, 2014

    Supreme Court Allows Closely-Held Corporations to Opt Out of Obamacare Birth Control Mandate

    On June 30, 2014, the Supreme Court ruled in a 5-4 decision that closely-held for-profit corporations may opt out of regulations issued under the Patient Protection and Affordable Care Act (ACA) mandating insurance plan coverage for certain contraceptive drugs. Three corporations brought the action under the Religious Freedom and Restoration Act of 1993 (RFRA), which prohibits the Government from substantially burdening a person’s exercise of religion unless the government shows read more

  • Posted on Wednesday, July 02, 2014

    Courts Embrace the Use of GPS Evidence

    We’ve all used GPS technology to make life easier. Whether in our cars or on our phones, Global Positioning System technology allows us to pinpoint our location on a map and track where we’ve been. Now, in addition to having already replaced maps, GPS may be replacing expert witnesses in some circumstances.In cases where a disputed fact concerns the location of a person or vehicle at a particular time, expert read more

  • Posted on Wednesday, June 11, 2014

    Employee’s Facebook Posting Not Enough To Put Her Employer On Notice Of Sexual Harassment

    A restaurant employee, who claimed she was groped and fondled by a fellow employee, posted her complaints about the poor working conditions at the restaurant on Facebook.  The Facebook page was one that had been set up by employees of the restaurant to communicate about scheduling issues, but it also contained posts on problems in the workplace.  The employee conceded that she did not directly inform management at the restaurant read more

  • Posted on Friday, June 06, 2014

    Virginia Orders Uber and Lyft to Pull Over

    In the latest conflict between technology and government regulation, Virginia’s DMV has issued a cease and desist order to Uber and Lyft, claiming that their businesses are illegal and cannot pick up passengers in Virginia.  Undeterred, Lyft has responded that it intends to continue operating there, stating in a press release that Virginia residents and others have embraced it “as an affordable and reliable transportation alternative.”  Lyft also points out read more

  • Posted on Friday, June 06, 2014

    5 Ways Construction Companies Can Avoid Copyright Risks

    Architectural copyright law gives judges the power to impose hefty damages for infringement. This area of copyright law covers architectural works, which broadly encompasses not only plans, but also buildings themselves. As a result, companies should take protective measures to avoid copyright risks. Below is a short checklist of actions that companies can take to insulate themselves from significant liability, and also protect their own intellectual property. Require Indemnification. If read more

  • Posted on Friday, June 06, 2014

    Virginia Courts Reject Fraud Claims Disguised as Breach of Contract Claims

    A Virginia federal court recently confirmed that fraud claims seeking breach of contract damages are not allowable under Virginia law. This principle is referred to as the economic loss rule, and mandates that parties cannot “double-dip” and allege tort damages for contractual breaches in the form of fraud claims, on top of their breach of contract claims.In other words, if you are choosing to accuse someone of fraud and breach read more

  • Posted on Tuesday, May 27, 2014

    Stairway to the Courthouse?

    Led Zeppelin’s 1971 hit “Stairway to Heaven” is one of the most popular and recognizable rock songs of all time. With a re-release of the original Led Zeppelin albums planned for this summer, however, a Philadelphia attorney has expressed his intention to bring a copyright infringement lawsuit against the band over the true origin of Stairway’s iconic introduction. That attorney represents the trust of the late Randy California, formerly the read more

  • Posted on Tuesday, May 20, 2014

    DOL Debars Contractor for Wage and Hour Violations

    The Department of Labor (“DOL”) recently debarred Garcia Forest Service LLC (“Garcia”) and its president for three years for violating the McNamara-O’Hara Service Contract Act (“SCA”) and the Contract Work Hours and Safety Standards Act (“CWHSSA”). The SCA requires that contractors performing services on covered federal contracts pay their service workers no less than the wages and fringe benefits prevailing in the locality. Garcia violated the law by paying its read more

  • Posted on Monday, May 19, 2014

    Company Facing Age Discrimination Claim after Offering Conflicting Reasons for Terminating Employee

    James Pierson worked at the Tennessee plant of a large national printing company for nearly forty years, when he was suddenly laid off at the age of 62. The company initially told Pierson that his layoff was due to a company-wide cost-cutting move, and that others were also being laid off to save the company money. But a human resource manager at Pierson’s plant prepared a document in support of read more

  • Posted on Monday, May 12, 2014

    Winning Attorneys’ Fees in Patent Trolling Cases Just Got Easier

    Patent trolling, the latest abuse of the laws enacted to protect intellectual property, occurs when a “patent troll” (sometimes euphemistically called a “patent assertion entity” or “non-practicing entity”) tries to generate revenue by enforcing patent rights against accused infringers, but does not manufacture products or provide services based on the patents it holds. Because patent trolls try to take advantage of businesses, an increased ability to recoup fees in litigation read more

  • Posted on Friday, May 02, 2014

    Major Court Ruling Protects Subcontractors’ Right to Get Paid

    The right of subcontractors to get paid on federal projects is more iron-clad thanks to a recent decision out of the Ninth Circuit Court of Appeals, handed down on April 29, 2014. The decision explains that state law cannot frustrate the federal statute providing subcontractors and other companies an avenue to payment for their work.  The federal law that provides companies and persons with such a remedy is the Miller read more

  • Posted on Friday, May 02, 2014

    Holy Dollar Signs! Legal Considerations for Comics Creators

    Comics are big business.  AMC’s hit reality show Comic Book Men was recently renewed for a fourth season, and comics-related content continues to dominate both in theaters and on television.  Amazon just announced that it would be acquiring comiXology, the leading platform for digital comics, and both businesses and individuals are constantly finding new ways to use webcomics to market their models, provide information to customers, and monetize their art. read more

  • Posted on Thursday, April 17, 2014

    Are You Pirating Music Without Realizing It?

    To most people, music piracy means illegally streaming or downloading a copyrighted work without payment to its creator. In other words, there is a realization that each and every illegal download of a song deprives the creator of payments he or she would have otherwise received through legitimate sales. This type of music piracy is obvious, because perpetrators are aware they’re getting something for nothing. But what about lyrics? If read more

  • Posted on Thursday, April 10, 2014

    360 Deals: It Depends on How You Splice Them

    Some things never change. It is true that the American music industry looks nothing like it did at the dawn of the new millennium, but major industry executives (and smaller, independent players) still have one central goal when signing new talent: high yield with low risk. With traditional streams of revenue, such as album sales and even digital downloads, waning more and more each year, labels are extremely motivated to read more

  • Posted on Tuesday, April 08, 2014

    Daughter’s Facebook Post Reveals Father’s Breach of Settlement, Costing Dad $80,000

    Confidentiality clauses are typical in settlement, severance, and separation agreements, as employers typically want to avoid a situation where a former employee openly discloses the amount of a settlement or severance payment. Employers often offer significant monetary consideration in exchange for, among other things, the employee’s discretion. Recently, a Florida appeals court found that a former school headmaster violated the terms of a confidential age discrimination settlement with the school, read more

  • Posted on Tuesday, April 08, 2014

    Cautionary Tale: When Contemplating Live Music at Your Venue, Get a License

    Last summer, a small band performed at a bar called 69 Taps in Medina, Ohio, near Cleveland. That evening, the band covered a number of popular songs that the mostly middle-aged audience had grown up listening to. The bar had not asked for a set list, nor had the band provided one. The band took requests, playing hits like “Brown Eyed Girl” and “Freebird” for a small audience. The problem? read more

  • Posted on Wednesday, April 02, 2014

    EEOC Takes Aggressive Position On Severance Agreements

    The Equal Employment Opportunity Commission (“EEOC”) recently filed a lawsuit against one of the nation’s largest pharmacy chains, CVS, claiming its separation agreements violate Title VII of the Civil Rights Act. This action by the EEOC is surprising and significant, since the targeted provisions are ones that are commonly found in severance agreements. According to the lawsuit, the EEOC claims that CVS conditioned payment of severance benefits on execution of read more

  • Posted on Wednesday, April 02, 2014

    Cautionary Tale: When Contemplating Live Music at Your Venue, Get a License

    Last summer, a small band performed at a bar called 69 Taps in Medina, Ohio, near Cleveland. That evening, the band covered a number of popular songs that the mostly middle-aged audience had grown up listening to. The bar had not asked for a set list, nor had the band provided one. The band took requests, playing hits like “Brown Eyed Girl” and “Freebird” for a small audience. The problem? read more

  • Posted on Friday, March 28, 2014

    Selling Your Company? Make Sure Your Deal Protects Privileged Communications.

    The Delaware Court of Chancery, one of the most sophisticated and influential venues for the resolution of corporate disputes, has held that when one company acquires another, privileged communications between the acquired company and its attorneys are not protected during subsequent litigation between the companies unless the merger agreement contained a term providing otherwise. While the acquired company holds the privilege as long as it remains a separate entity, control read more

  • Posted on Friday, March 28, 2014

    NLRB Continues the March Madness by Recognizing College-Athletes as Employees

    Yesterday, the Chicago regional office of the National Labor Relations Board (“NLRB”) issued a decision that could dramatically change the landscape of college athletics as we know it today. The Regional Director for the NLRB found that scholarship football players at Northwestern University are considered employees within the meaning of the National Labor Relations Act (“NLRA”), and therefore, eligible for union representation. This drastic departure from the traditional notion of read more

  • Posted on Thursday, March 06, 2014

    SCA Contract Bids Must Account for Applicable CBA Wages and Benefits

    Service employees working on a federal contract subject the Service Contract Act must be paid wages and fringe benefits not less than the prevailing wage determination or the wage rates and fringe benefits contained in a predecessor contractor’s Collective Bargaining Agreement (“CBA”). Because an existing CBA sets the floor for wages and benefits on follow-on contracts, offerors need a copy of the CBA to be able to adequately price their read more

  • Posted on Tuesday, March 04, 2014

    Are You Committing Data Theft at Work Without Even Realizing It?

    Violating the Virginia Uniform Trade Secrets Act (VUTSA) is easier than you might think. A federal court recently held that an employee downloading company information to an external storage device or emailing it to a personal email address may be liable for trade secret theft regardless of whether that information is actually used in an improper way. Something as casual or seemingly innocuous as using a flash drive to bring read more

  • Posted on Wednesday, February 26, 2014

    Did Boss’s Shoulder Touching and Suggestive Comment Constitute Sexual Harassment?

    A female sales manager for an office furniture company alleged that on two separate occasions, her male supervisor acted inappropriately while driving her back to her hotel after company-sponsored training sessions. In the first instance, the pair had been at dinner with a group of co-workers when the supervisor insisted on driving the female employee back to the hotel. During this drive, the supervisor reached his arm around the female read more

  • Posted on Monday, February 24, 2014

    It’s Your Birthday and You Can Sue If You Want To

    If you are one of the handful of people who loved the short-lived Aaron Sorkin show Sports Night, you might remember the scene where Dan (played by Josh Charles) gets called to the network lawyer’s office because the network has been billed $2,500 by the representatives of Mildred and Patty Hill. The bill came because Dan sang Happy Birthday to You to his co-anchor on the air. Dan is surprised read more

  • Posted on Monday, February 17, 2014

    What’s the Real Impact of the New Federal Contractor Minimum Wage Increase?

    On February 12, 2014, President Obama signed an Executive Order raising the minimum wage to $10.10 per hour for federal contractors, starting January 1, 2015. Although the Administration has stated that the increase will apply only to new federal contracts, in reality it may end up applying to some existing federal contracts as well. The immediate impact of the minimum wage increase will vary depending on job and locality, but there are potential long-term implications of read more

  • Posted on Monday, February 10, 2014

    A New Reason to Think Twice Before Representing Yourself in Litigation

    If you have ever considered representing yourself in litigation (proceeding “pro se,” in legal parlance) as a cost-saving measure, a recent decision by the U.S. Court of Appeals for the Third Circuit might give you a reason to hesitate. Although pro se litigants typically enjoy leniency from the courts, the case of Baldinger v. Ferri is illustrative of why parties to a lawsuit should secure representation by counsel. Many pro read more

  • Posted on Tuesday, January 28, 2014

    The President’s Minimum Wage Announcement Ignores Current Rates

    President Obama recently announced his intent to sign an Executive Order which would unilaterally increase the minimum wage for certain workers on federal projects. The current federal minimum wage rate is $7.25 an hour, and President Obama is looking to raise it to $10.10 per hour. At first glance, one may think that such an increase will have a widespread impact on the Washington, DC metro area, given its large read more

  • Posted on Monday, January 27, 2014

    Companies Can Now Fight Back Against Anonymous Online Criticism

    It is every company’s worst nightmare: An anonymous poster goes online and makes negative and disparaging statements about the company.  In the social media age we are in, this unfortunate scenario has played out countless times on such sites as Yelp, Rip-Off Report, and other online review sites.  Companies faced with this situation have largely felt powerless to counteract anonymous posters or even find out who the posters are.  But read more

  • Posted on Monday, January 27, 2014

    Know How to Enforce Your Rights For Winning Task Orders

    Although task order contracts are common, the rights contractors have to win one are complex and vary widely depending on whether the task orders are under FAR Part 8, the GSA Federal Supply Schedule (FSS) or FAR Part 16, Government-wide Acquisition Contracts (GWAC). It is important, therefore, to know exactly what your rights are under your specific contract – FSS contract or a GWAC – and  how to enforce them, read more

  • Posted on Monday, January 27, 2014

    A Contractor Makes a Dangerous Gamble When Its Bid Price Assumes the Approval of Local Permitting Authorities

    Should a federal government construction contractor assume that its permit request for a construction project will be approved by local state authorities? Absolutely not, according to the United States Court of Appeals for the Federal Circuit. The Federal Circuit found that the plain language of FAR’s Permits and Responsibilities Clause, which was incorporated into a Federal Bureau of Prisons contract, allocated any financial cost associated with permitting solely on the contractor.  Bell/Heery was awarded a design-build read more

  • Posted on Friday, January 24, 2014

    Venue Selection Clauses Give Companies Leverage in Litigation

    Many contracts, especially those between sophisticated parties, contain clauses specifying the state in which disputes arising out of the agreement must be litigated.  For instance, a company headquartered in Virginia would want to specify that all disputes be litigated in a predetermined county or federal court in Virginia. While many courts have historically enforced forum selection clauses as written, others have been reluctant to enforce the provisions where doing so read more

  • Posted on Friday, January 17, 2014

    Avoiding Careless Proposal Preparation Can Help Save Business

    In a recent and instructive case, a company that had successfully performed contracts at Camp Pendleton for almost a decade lost a recent contract because it carelessly prepared its proposal. It failed to follow precisely the proposal instructions, relying instead on two wrong assumptions. First, it assumed that its good record would let the government overlook short-comings in its proposal. Second, these “short-comings” involved failing to fill in all the read more

  • Posted on Thursday, January 16, 2014

    Decision 4. Bring an FSS Dispute to the One Contracting Officer Who Can Resolve It

    Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. We began by describing in two blog articles the problems a government contractor can get into as a result of “apparent authority”, a one-sided legal concept that does not apply to the government but that does apply to a  government contractor and can be costly if not closely monitored. Later, we dealt with the two most read more

  • Posted on Wednesday, January 15, 2014

    Decision 3. Deal with the Contracting Officer and Get the Decision in Writing

    Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. We began by describing in two blog articles the problems a government contractor can get into as a result of “apparent authority”, a one-sided legal concept that does not apply to the government but that does apply to a government contractor and can be costly if not closely monitored.   Today we deal read more

  • Posted on Tuesday, January 14, 2014

    Decision 2. Corporate Liability for Employee Kickbacks

    Berenzweig Leonard is beginning the New Year with a summary of four important government contract legal decisions handed down in 2013. A previous blog article discussed the one-sided legal concept of “apparent authority” that applies to a government contractor but not to the government. Today we discuss another problem presented by “apparent authority”: how the management of a government contractor could be liable for kickbacks company employees receive. Decision 2. Corporate Liability for Employee read more

  • Posted on Monday, January 13, 2014

    Decision 1. Do Not Create “Apparent Authority”

    With so many government contract legal decisions handed down during any year, it’s helpful at the start of the New Year to summarize those handed down the previous year that impact a government contractor’s bottom line. Over the next four days, we will provide a summary of an important decision from last year, typically one that serves as a reminder of the costly consequences of ignoring the often-obscure rules of government contracting. Today, we read more

  • Posted on Monday, January 13, 2014

    Is It Time to Pop the Hood and Update Your Social Media Policy?

    You’ve sat down with your lawyer, put together a stellar social media policy for your business, and made sure that all your employees are aware of the rules. At this point, you might think that you’ve reached a safe harbor and can put the issue of social media to bed for the next few years. In reality, though, because people are continuing to find new and unexpected ways to make read more

  • Posted on Saturday, January 11, 2014

    Companies Can Now Fight Back Against Anonymous Online Criticism

    It is every company’s worst nightmare: An anonymous poster goes online and makes negative and disparaging statements about the company.  In the social media age we are in, this unfortunate scenario has played out countless times on such sites as Yelp, Rip-Off Report, and other online review sites.  Companies faced with this situation have largely felt powerless to counteract anonymous posters or even find out who the posters are.  But read more

  • Posted on Thursday, January 09, 2014

    Supervisor’s Comment About Employee Was Not Evidence Of Age Discrimination

    An IBM employee with a spotty performance record claimed his firing was the result of age discrimination.  As evidence, he produced a text message between two HR managers at IBM in which one asked about the employee’s “shelf life.”  The fired employee also claimed that an employee retention program at IBM called “Project Blue” was an allusion to blue rinses used by older people.  After being sued, IBM denied the read more

  • Posted on Wednesday, January 08, 2014

    Is Your Business’s E-mail Marketing Compliant?

    In today’s economy, most businesses do a substantial part of their marketing on the Internet, and use e-mail marketing to advertise their products and services. In an attempt to stem the flow of unwanted, unsolicited junk e-mail (“spam”), Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing Act, known as the “CAN-SPAM” Act, 15 U.S. Code Sec. 7701. Despite its name, the CAN-SPAM Act does not just apply read more

  • Posted on Wednesday, January 08, 2014

    EEOC’s Policy On Employee Criminal Records Scrutinized

    The Equal Employment Opportunity Commission (EEOC) announced last year a new enforcement guidance under Title VII of the Civil Rights Act of 1964 to employers regarding the use of arrest and convictionrecords in employment decisions. Though there is no federal law prohibiting an employer from asking about arrest and/or conviction records, this recent guidance informed employers that even a neutral and uniformly applied “policy (e.g., excluding applicants from employment based on certain criminal conduct) read more

  • Posted on Tuesday, December 03, 2013

    Contractors Should Beware of Broad Assignments

    Government contractors often assign government contract payments to banks in exchange for loans to finance the contract. This is sometimes also known as “factoring.” Recently, a broadly worded assignment was interpreted to include not only payments under the original contract, but also payments under a sole-source bridge contract during a protest of the follow-on contract. Tiger Enterprises, Inc. agreed to assign payments under a 2007 Air Force contract to Chain read more

  • Posted on Wednesday, November 27, 2013

    Intern or Employee? Don’t Find Out the Hard Way

    Unpaid internships have become a prevailing part of the corporate landscape.  They serve as a means for students and recent graduates to gain experience in their chosen fields and give businesses the opportunity to develop relationships with new talent.  What many do not realize, though, is that the intern-business relationship is governed by a network of state and federal laws that, if ignored, can lead to very expensive consequences. Recently, read more

  • Posted on Tuesday, November 26, 2013

    Do You Have an Enforceable Forum Selection Clause?

    For companies that do business in multiple states, a forum selection clause can minimize the risks and expenses associated with being hailed into a distant and unfamiliar court. A forum selection clause in a contract allows the parties to agree that any litigation resulting from that contract will be initiated in a particular court in a certain state. Generally speaking, state and federal courts will consider a forum selection clause to be reasonable as read more

  • Posted on Thursday, October 17, 2013

    Is It Negligent for a Company to Hire Someone Who Turns Out to be a Thief?

    An administrator for a Vienna law firm was accused of stealing over half a million dollars from a client.  The client had hired the law firm to pursue a specific type of immigration visa that entailed making a commercial investment of $500,000.  The employee directed the client to deposit this money in a bank account that he controlled, and the employee later absconded with the money instead of using it read more

  • Posted on Thursday, October 17, 2013

    Which Contracting Officer Resolves Disputes Involving Agency Purchases from the GSA Federal Supply Schedule?

    A recurring issue faced by vendors on the Federal Supply Schedule (FSS) is which the vendor must deal with when it gets into a disagreement with an ordering agency during the performance of a delivery order – the ordering contracting officer or the GSA contracting officer. The Federal Circuit recently addressed this issue in Sharp Electronics Corp. v. McHugh, 707 F.3d 1367 (Fed. Cir. 2013). The Federal Circuit interpreted FAR read more

  • Posted on Tuesday, October 15, 2013

    Using Phantom Stock Plans to Retain Top Talent

    Every successful business prioritizes the retention of its most valuable employees.  Many such businesses show their willingness to retain top talent through the use of one or another of a variety of employee incentive plans.  Whether it’s the stock option plan typically offered to corporate executives, or the annual cash bonus linked to individual performance that is commonly found in sales-oriented industries, many of these plans involve ceding equity interests read more

  • Posted on Tuesday, October 15, 2013

    Government Contractor Can Be Penalized for Kickbacks Employees Receive Even If the Company Has No Knowledge of the Kickbacks

    Mandatory Anti-Kickback Act procedures will not protect a government contractor from paying civil penalties for kickbacks given by subcontractors to company employees, under the Anti-Kickback Act (AKA), 41 U.S.C. 8701-07. A company is liable for kickbacks its employees receive regardless of whether the company was aware of or profited from the kickbacks. The decision shows the need for government contractors to closely monitor their employees’ compliance with company AKA procedures read more

  • Posted on Tuesday, October 15, 2013

    The Government Shutdown’s Impact on Payment to Contractors

    All companies contracting with the Federal Government should ensure that they are doing everything they can to protect themselves and maximize their chances of payment once the government shutdown ends. Congress has approved back pay for federal workers once the shutdown is over, and President Obama recently signed a bill requiring the DoD to continue paying civilian Federal Government employees and contractors that provide support to the armed services.  Government read more

  • Posted on Thursday, September 26, 2013

    How do Courts Determine Enforcement of a Non-Compete?

    The Virginia Supreme Court recently addressed this issue in an interesting non-compete case that arose in Fairfax County.  The non-compete agreement that an employee signed with a computer company prohibited him from engaging in certain competitive actions for “twelve (12) after the date of termination.”  Based on other language in the contract, it appears the employer intended it to run for 12 months after termination, but the word “months” was read more

  • Posted on Thursday, September 12, 2013

    How Can Employers Protect Their Intellectual Property?

    In this technological age, intellectual property issues often arise in employment, including questions regarding the ownership of intellectual property developed or created by an employee and disputes with departing employees over trade secrets and other confidential business information. As a matter of general practice, and especially when the intellectual property created is essential to the long-term growth potential of the business, well-drafted employment agreements which fully address an employee’s rights read more

  • Posted on Thursday, August 29, 2013

    How Important Is It To Stay Awake At Work?

    A manufacturing engineer employee for a Roanoke lighting company suffered from sleep deprivation caused by his fibromyalgia, and would periodically fall asleep while on the job.  In response to counseling by his employer that it would not tolerate his sleeping on the job, the engineer told his supervisor that he could ably perform his job if the company accommodated him by waking him up when he fell asleep.  The next read more

  • Posted on Thursday, August 29, 2013

    Virginia Creates a New Type of Corporation

    On July 1, 2011, Virginia began allowing the creation of benefit corporations. This benefit corporation classification allows companies to focus their efforts toward non-financial benefits, such as community and societal considerations and the corporation’s impact on the environment. Within the past three years, approximately 20 states have passed benefit corporation legislation. Maryland was the first state to approve the benefit corporation classification. Eight other states, including West Virginia and North read more

  • Posted on Friday, July 26, 2013

    Sexual Harassment of Female Employee Not Considered Severe Enough Under Title VII

    A female employee of Staples in the Roanoke, Virginia area complained after a male co-worker on multiple occasions stripped down to his boxers and changed into his work uniform in front of her in the employee break room, rather than changing in the men’s bathroom.  Some of these changing incidents were witnessed by other Staples employees, both male and female. On the final occasion of witnessing the male employee changing, read more

  • Posted on Monday, June 17, 2013

    Understanding Workplace Pregnancy Leave for Moms and Dads

    Yahoo has recently announced a new parental leave policy, in which both moms and dads will receive the same eight weeks of paid leave following the birth of a child, including through adoption.  But moms who give birth are given an additional eight weeks of paid leave following childbirth, while men and moms who adopt are not granted this additional eight weeks paid leave. Some observers have questioned the propriety read more

  • Posted on Wednesday, June 05, 2013

    Are Employee’s Social Media Discussions Protected?

    As we’ve reported, the National Labor Relations Board (“NLRB”) continues to take an aggressive stance on regulating employment decisions based on employee social media postings. Contrary to the recent trend of broadly construing employee social media postings as covered under protected activity, the NLRB reversed course and recently ruled in favor of an employer after terminating an employee based upon what it believed was an improper Facebook group message post.  In the case, an employee read more

  • Posted on Wednesday, May 29, 2013

    Is an Unsigned Contract Still Enforceable?

    Actions must speak louder than unsigned contract, says Virginia Federal Court. The failure to obtain a fully signed agreement is not always fatal to a breach of contract claim. However, a recent Virginia federal court case reminds us of the need to ensure signed written agreements are in place as early as possible in a business relationship. At the same time, businesses should be aware that their conduct may demonstrate that read more

  • Posted on Monday, May 20, 2013

    Is a Code of Business Ethics and Conduct Required?

    Must a federal government contractor have a Code of Business Ethics and Conduct?   Yes!   All federal government contractors must have a Code of Business Ethics and Conduct.  In addition, unless the contractor is a small business or the contract is for the acquisition of commercial items (as defined by FAR 2.101), the contractor must also have a “business ethics awareness and compliance program” and an “internal control system” read more

  • Posted on Wednesday, May 15, 2013

    Teaming Agreement’s Promise of Future Subcontract Was Not Enforceable

    Enforcing vague provisions in a Virginia teaming agreement is difficult. Courts continue to consider some teaming agreement provisions to be an unenforceable “agreement to agree” as seen in a recent decision of the Federal District Court in Alexandria. Although finding the teaming agreement’s promise of a subcontract was unenforceable, the court did honor the teaming agreement’s choice of law provision. Thus, not all teaming agreement provisions are automatically unenforceable. To the read more

  • Posted on Wednesday, April 17, 2013

    Maryland’s New “Rain Tax” – Believe It Or Not, Here It Comes

    On July 1st, ten of Maryland’s largest counties will impose a new “rain tax.”  Dubbed a “storm management fee,” residents and businesses will be forced to pay a new tax based on the amount of property surface area that does not absorb water, multiplied by the amount of rainfall causing “runoff” into the Chesapeake Bay.  The source of this controversial fee began when the Obama Administration’s EPA ordered Maryland to read more

  • Posted on Thursday, April 11, 2013

    National Origin Employment Discrimination Covers Europeans

    Recently, a federal judge in Virginia was presented with the novel legal issue of whether someone of European descent is covered under the national origin protections of Title VII of the federal Civil Rights Act. A Caucasian professor with a Ph.D. from Harvard applied for several different teaching positions at Northern Virginia Community College.  Each time a minority candidate was selected over him: first, a native of India; second, a read more

  • Posted on Monday, March 11, 2013

    Can Contractors Ask the Government for More Price Information?

    With budget cuts making price more important in winning government contracts, contractors should know that the government is allowed to provide more helpful information during price discussions than the standard “sharpen your pencil” refrain.  FAR 15.306 (e)(3) lets the government “inform an offeror that its price is considered by the Government to be too high, or too low, and reveal the results of the analysis supporting that conclusion. It is also read more

  • Posted on Monday, March 04, 2013

    Can a Nurse Refuse CPR to Follow “Company Policy” While a Woman Dies?

    The nation is abuzz about an incredible situation at a California assisted living facility.  A video clip with the discussion of this breaking news is attached below. A nurse at the facility called 911 for medical assistance when a female resident had difficulty breathing.  The dispatcher on the 911 tape pleaded with the nurse to administer CPR, but the nurse refused saying it was against company policy.  In a tragic read more

  • Posted on Thursday, February 14, 2013

    What Are Common Bid Errors to Avoid?

    The procurement process is fraught with many procedures and regulations, and therefore submitting a flawless solicitation is a difficult task.  But there are some errors committed with enough frequency that contractors can readily learn from the mistakes of others. Recent protest decisions of the Government Accountability Office (GAO) show good examples of common errors that government contractors make in submitting proposals for a contract or task order.  Here are five common proposal errors for all contractors read more

  • Posted on Friday, February 08, 2013

    House Bill if Passed Would Affirmatively Require Employers to Pay Employees for Jury Duty

    On December 6, 2012, the Virginia House of Representatives introduced HB1368, which if passed will significantly change Virginia employment law. Currently, Virginia law does not require employers to pay employees for days missed due to jury duty, although employers are prohibited from requiring employees to use vacation or sick leave for jury duty, cannot take adverse employment action against employees for jury duty absences, and cannot require shift workers to read more

  • Posted on Thursday, February 07, 2013

    Can’t Always Pick Employees Based On The Interview

    Can a company give a job to a less qualified male candidate just because he did better in the job interview than the female candidate?  That was the issue facing a federal judge in Virginia recently. On paper, the female candidate was far superior to the male candidate.  The posting stated a preference for a college degree, which the female candidate had but the male candidate did not.  The female read more

  • Posted on Friday, January 11, 2013

    The Implied Duty of Good Faith and Fair Dealing: What Does it Mean for Virginia’s Businesses?

    The duty of good faith and fair dealing has its roots in the Uniform Commercial Code (“UCC”), which applies to sales and other commercial transactions, and is now recognized at common law in some form in most jurisdictions. Numerous Virginia state and federal courts have held that the implied duty governs all contracts at common law. However, as the common law continues to evolve, it appears that Virginia courts have read more

  • Posted on Wednesday, January 09, 2013

    Bidders Must Not Delay Protesting Solicitation Amendments

    Filing a protest before the agency even awards a contract can be a very difficult business decision because it seems like you are suing your potential customer to get the order. But sometimes that difficult decision must be made and, as we will see, might not be a bad business decision at all. Recently, the U.S. Court of Appeals for the Federal Circuit (CAFC) set a firm timeliness rule for read more

  • Posted on Wednesday, December 12, 2012

    Equal Justice Under Law?

    “Equal Justice Under Law.” Those words are engraved above the entrance to the United States Supreme Court building. They express an aspirational goal rarely achieved. The dispensing of “justice” is, more often than not, unequal. It is no secret that in litigation rich people have a great advantage over the less affluent. Or to put it in contemporary terms, the one percent has a big advantage over the ninety-nine percent. Just read more

  • Posted on Tuesday, November 27, 2012

    Government Contractor’s Non-Compete Deemed Enforceable

    The Virginia Supreme Court recently sent a strong message in favor of enforcing narrowly-drawn non-compete clauses in subcontracts between government primes and subs. Preferred Systems Solutions, Inc. (PSS) was on a team led by Accenture that won a Blanket Purchase Agreement to support a Defense Logistics Agency (DLA) program called the Business Systems Modernization (BSM) Program. PSS had a subcontract with GP Consulting Services (GP) for the services of a GP read more

  • Posted on Wednesday, November 14, 2012

    Can Employers Refuse to Hire Someone Because They Are Unemployed?

    In this challenging economy, unemployed individuals are looking for any way to find suitable employment. However, in a recent article posted on AOL Jobs, employers across the country explained that they tend to stray away from hiring the unemployed citing reasons such as not knowing why an unemployed worker lost his or her job.  Even though employers may have a preference to avoid hiring the unemployed, the question arises, is read more

  • Posted on Monday, October 22, 2012

    Termination for Convenience Can Be Tricky

    A recent Washington Post article pointed out that the government is increasingly terminating government contracts for convenience in order to stockpile agency funds in anticipation of severe budget cuts in FY 2013. According to the Post, terminations for convenience have doubled in just over several years. Unfortunately for government contractors, getting fairly paid for terminations for convenience can be a significant problem because the specific termination for convenience clause in read more

  • Posted on Monday, October 22, 2012

    Small Business Subcontractors: Accelerated Payments

    The Office of Management and Budget has told federal agencies that they should accelerate their payments to prime contractors in order for the primes to pay their subcontractors sooner.  Instead of paying primes 23-30 days after they submit an invoice as is typical, agencies should now pay the prime’s invoices 15 days after submission and the primes are “required …to the maximum extent practicable” to make accelerated payments to their subcontractors. read more

  • Posted on Monday, October 15, 2012

    Debarment Under the “Catch-All” Regulation

    Government contractors do not like to think about debarment . . . and with good reason.  For a government contractor, debarment is like dreaded terminal illness.  It is unpleasant to contemplate.  Nonetheless, as unpleasant as it is, government contractors need to know a few basics about debarment: one of which is the “catch-all” regulation. Probably, most contractors know that if a contractor is convicted of a crime related to federal procurement, read more

  • Posted on Monday, October 15, 2012

    Government Continues to Scrutinize Workplace Social Media Policies

    Concerned about its image and the protection of its employees, retail giant Costco enacted a policy restricting employees from making statements on social media sites such as Facebook or Twitter that: “. . . damage the company, defame any individuals or damage any person’s reputation.”   The Federal Government caught wind of Costco’s social media policy, and brought an action to stop it on the ground that the policy interfered read more

  • Posted on Monday, October 15, 2012

    Teaming Agreement Was Enforceable Contract

    The most important decision parties drafting a teaming agreement need to make is whether they want to make the teaming agreement an enforceable contract. The terms of the teaming agreement and the conduct of the team members can make a generally unenforceable teaming agreement enforceable in a breach of contract lawsuit. After Cyberlock Consulting, Inc. performed a subcontract for Information Experts (IE) on a contract with the Federal Office of Personnel read more

  • Posted on Monday, October 15, 2012

    Should 8(a) Contractors Be Worried About An “Unconstitutional” 8(a) Solicitation?

    In a decision that will surely be appealed and take years to resolve, a Federal District Court in Washington, DC has concluded that the Small Business Administration’s 8(a) program for small disadvantaged businesses is unconstitutional when the Navy tried to use it in a procurement involving the flight simulator and training industry. Specifically, the Navy violated a small business’s rights under the 5th Amendment to the U.S. Constitution that guarantees read more

  • Posted on Monday, October 15, 2012

    Virginia Court Dissolution of $200 Million Dollar Business is Landmark Victory for Minority Shareholders

    There is usually little or no secondary securities market on which to sell or buy close corporation stock, making investments in close corporations difficult to liquidate. Consequently, minority shareholders can find themselves in a vulnerable position. Many jurisdictions, including Virginia, have developed standards by which to identify minority shareholder oppression and afford mistreated shareholders a remedy. The Virginia Stock Corporation Act, however, allows for frequent deference to the business judgment read more

  • Posted on Monday, October 08, 2012

    To Warn or Not to Warn? – That’s the Hot Question

    Sequestration is one of the hot issues in DC, thanks to huge budget cuts that are due to hit soon under the Budget Control Act, triggering across-the-board cuts that will eliminate many jobs in the federal government contract arena.  An important issue has now arisen under the Workers Adjustment and Retraining Notification (‘WARN’) Act, which provides that employers with 100 or more employees anticipating a significant layoff must provide at least read more

  • Posted on Monday, October 01, 2012

    Government Contractors Entitled to Attorneys’ Fees for Work Changes

    Contractors doing changed work under a government contract are entitled to attorneys’ fees according to a recent appeals court decision re-affirming the availability of attorneys’ fees as part of an equitable adjustment for changed work. When the government ordered Tip Top Construction to change the kind of air conditioner the government had originally wanted to be installed in a Postal Service facility in the Virgin Islands, the company hired a read more

  • Posted on Monday, September 24, 2012

    Debarment: A Potentially Deadly Problem for Small Government Contractors

    A few years ago, a government official made a startling statement about debarment from government contracting.  The statement was startling not because of its content, but because it was made at all, considering the natural tendency of people, including government officials to spin the facts to put themselves and their agencies in the best light.  The government official said: “If you are a small contractor and you do something wrong, we read more

  • Posted on Monday, September 10, 2012

    Whistleblowing Sounds Again

    The Department of Justice recently joined a whistleblower’s lawsuit alleging that The Gallup Organization (Gallup) violated the Truth in Negotiations Act (“TINA”), 10 U.S.C. §2306a, in United States ex rel. Lindley v. Gallup, DCDC No. 1:09cv01985. TINA provides that (in most cases), before the government awards a sole source contract, the contractor must submit and certify “cost and pricing data” on which the contractor bases its estimated cost of providing read more

  • Posted on Monday, September 10, 2012

    Handling of Trade Secrets

    Businesses often store proprietary information in automated systems, and it is much easier to pilfer proprietary information.  It can be done with a few keystrokes.  In a commendable burst of foresight, in 1986 Congress saw this problem looming on the horizon and enacted the Computer Fraud and Abuse Act (“CFAA”), 18 USC §1030.  The CFAA was designed principally to prevent outsiders from hacking into computer systems and not to prevent read more

  • Posted on Monday, September 10, 2012

    Make It Easier To Do Business With The Government

    Although vendors can give the government a “proposal acceptance period” after which the vendor’s prices are no longer valid, the government can ask vendors to extend that period so the government can have more time to evaluate offers. When asked to extend, it’s risky to refuse because reviving an expired bid, although possible, is by no means a sure thing. In a recent case, Global Automotive, Inc. agreed to several extensions read more

  • Posted on Monday, September 10, 2012

    A License to Libel: Virginia Federal Court Extends Immunity under Communications Decency Act

    Today, every business knows how important its online reputation is when it comes to attracting new customers.  With businesses becoming increasingly impacted by online review sites, many have taken to the courts in an effort to protect themselves against negative internet postings. One such advertising company, Directory Assistants, Inc. (DAI) sued its competitor, SuperMedia, LLC, two of its sales representatives, and a district sales manager, for allegedly emailing prospective customers read more

  • Posted on Monday, September 10, 2012

    Are Small Business Set Asides Now Illegal?

    In a recent legal decision that could have a big impact on contractors, the D.C. federal court has ruled that awarding contracts to minority owned companies under the government’s  Section 8(a) Program may be unconstitutional.  The 8(a) Program was designed to remedy past effects of discrimination against minority businesses by providing preferential award of certain contracts. DynaLantic Corporation sued the Defense Department alleging that a DoD contract award to a read more

  • Posted on Monday, September 10, 2012

    Does a Previous Equitable Adjustment Guarantee Another Under Similar Circumstances?

    Although the government can be flexible and agree to pay an equitable adjustment for extra work on a fixed-price government contract instead of fighting a claim, doing so just once does not create a “course of dealing” that guarantees the government must always do so in the future. In a recent decision, although the IRS had paid a snow removal contractor an extra $109,000 for removing 3 times the expected read more

  • Posted on Monday, September 10, 2012

    Are Child Care Duties Protected Under Federal Workplace Laws?

    A recent case from the Alexandria, Virginia Federal Court addressed the issue of whether an employee’s child care responsibilities were protected under federal discrimination laws.  A male pharmaceutical sales rep was supposed to start work each day at 8:00 a.m.  Under an arrangement he had with his working wife, however, he needed to drop his child off at school at 8:30 a.m. four days a week, and therefore he could not read more

  • Posted on Tuesday, August 21, 2012

    Trend Toward Enforcing FLSA Settlements

    The general rule regarding out-of-court settlements for claims brought under the Fair Labor Standards Act (“FLSA”) is that in order to be enforceable, the settlement agreement must be approved by the Department of Labor or by a court. This rule has long posed a burden on employers because unlike many other employment-related claims that could be resolved through a private settlement agreement, settlement agreements in FLSA claims need to be read more

  • Posted on Tuesday, August 21, 2012

    Employee’s Access of Company Computers Was Not Unauthorized

    In the case of WEC Carolina Energy Solutions LLC v. Miller, employee Miller had access to his employer WEC’s computer files.  Miller accessed WEC’s files using his valid log-in rights, but then downloaded information in order to help another company compete against WEC.  WEC found out what Miller did and sued him for, among other claims, violation of the federal Computer Fraud and Abuse Act (CFAA). The CFAA is often invoked read more

  • Posted on Tuesday, August 21, 2012

    False Bidding Estimates = Fraud

    Extreme competition among government contractors for ever-increasing federal dollars has sparked a wave of “how low can you go” bidding wars among contractors.  Although a bidder may want to submit low bid prices to win a cost-reimbursement contract, the bids must be the actual prices and must have the facts to support  them. A recent federal court case involving a large government contractor confirms that purposefully bidding prices lower than the read more

  • Posted on Monday, August 20, 2012

    The Federal Government Encourages Contractors to Adopt Policies Against Texting While Driving

    The dangers associated with texting while driving are well known. Today, thirty-nine states, D.C., Guam and the Virgin Islands ban text messaging for all drivers.   On August 4, 2011, the FAR was amended to include Clause 52.223-18, Encouraging Contractor Policies To Ban Text Messaging While Driving. This rule was published in response to Executive Order 13513, entitled “Federal Leadership on Reducing Text Messaging while Driving,” which requires each Federal read more

  • Posted on Monday, August 13, 2012

    Not All Employee Insults Are Defamatory

    A surgeon at Inova Fairfax Hospital claimed that the hospital and several of its staff members defamed him by making a number of statements challenging his abilities as a doctor.  Among the allegedly defamatory statements the doctor claimed the staff made were the following: That he was “incompetent and unqualified.” That he was “a bad surgeon who had poor technique.” That he was “a foreigner with a bad accent and read more

  • Posted on Tuesday, August 07, 2012

    Pay Attention to Payment Clauses in Contracts

    Under a Labor Hour contract, a government contractor can legally be paid for 50 hours of work performed by a salaried employee in one week, even though that employee does not receive more than what his salary pays based on 40 hours per week. Although the government claimed that this would let a contractor “pocket undue windfall profits at taxpayer expense,” the Armed Services Board of Contract Appeals (ASBCA) concluded read more

  • Posted on Tuesday, August 07, 2012

    Social Media Policies Under Scrutiny by the Government

    Social media is everywhere.  Most people are interacting through social media outlets such as Facebook, Twitter and LinkedIn.  The ability to interact with friends, family and colleagues in real-time is unprecedented in modern day society.  However, given the transparent nature of social media outlets, privacy issues can be problematic, especially in the employment context. Recently, the National Labor Relations Board (“NLRB”) has taken an aggressive stance on analyzing employee social read more

  • Posted on Thursday, August 02, 2012

    Disciplinary actions and racial discrimination

    A new case out of Charlottesville looks at whether employers can be held liable for discrimination if they discipline an employee of one race for an infraction but not an employee of another race. A Caucasian employee for the Department of the Army noticed a dirty coffee cup and spoon left in the sink in the workplace kitchen for several days, and she finally threw them in the garbage.  The items belonged to read more

  • Posted on Friday, July 20, 2012

    Be Safe: Interpret “Should” In An RFP To Mean “Shall”

    Although the English language clearly distinguishes the words “should” and “may” from the word “shall,” GAO does not. Recently, an RFP from the CIA required offerors to provide resumes for all personnel. KPMG submitted resumes for all personnel to be used not only for the initial performance period but also for the out years despite a letter from the agency during discussions that it “should” do so. Based perhaps on an read more

  • Posted on Friday, July 20, 2012

    Supreme Court Narrowly Upholds Affordable Care Act – What’s Next for Employers?

    In its recent landmark decision, the Supreme Court upheld nearly all of the Patient Protection and Affordable Care Act. While having a significant business law impact, legal scholars continue to debate the Act’s merits, and presumptive Republican presidential candidate Romney has vowed to repeal it if elected, the law remains intact for now. Employers must prepare to take the necessary steps to comply with the Act’s sweeping changes. The provisions read more

  • Posted on Friday, June 22, 2012

    Courts start considering injuries caused while texting

    Can businesses be exposed to liability just because their employees are texting while driving, even during lunch or on their way home at night?  In view of recent trends reflected in various parts of the United States, the answer is arguably yes.  A couple of years ago, a Virginia court upheld an injured parties’ right to sue a law firm when its employee was distracted while driving home, because she read more

  • Posted on Friday, June 22, 2012

    Consider a CTA to Increase Your Profits

    Government contractors may be missing out on new business opportunities available under the GSA Federal Supply Schedule (FSS). A recent decision shows how to take advantage of a teaming opportunity unique to the GSA Federal Supply Schedule: the GSA FSS CTA. Although teaming in government contracting is common among vendors, it can take a variety of forms. FAR Subpart 9.6, covering “Contractor Team Arrangements,” describes partnerships, joint ventures, and prime-subcontractor read more

  • Posted on Friday, June 22, 2012

    Contracting Options and Rights Expand

    A recent Board of Contract Appeals case highlights that government contractors may be missing out on new business opportunities available under the GSA Federal Supply Schedule (FSS) by not taking advantage of a direct teaming opportunity unique to the GSA FSS. Although teaming in government contracting is common among vendors, it can take a variety of forms.  FAR 9.601 describes some of them, including a “contractor team arrangement” (CTA).  This read more

  • Posted on Friday, June 22, 2012

    Shoving or Discrimination?

    A male supervisor who was offended at a comment made by a female employee during a meeting, shoved the female employee on her arm.  The female employee sought treatment for the alleged pain from the altercation, and she also claimed to have suffered headaches, nightmares, and high blood pressure as a result of the incident.  The female employee eventually sued the company, claiming that her experience there constituted both harassment read more

  • Posted on Friday, June 22, 2012

    Non-Compete Agreements: Overly Broad and Unenforceable?

    An employee for Virginia-based Paramount Pest Control Company left to go work for a competing pest control company, and once there, he actively solicited Paramount’s customers.  The employee had signed a non-compete agreement with Paramount, which prohibited him for a period of two years from working in any capacity with a competing pest control company in any city or county where Paramount operated.  Paramount’s exact non-compete language had previously been read more

  • Posted on Friday, June 22, 2012

    Facebook and Employee Grievances

    A salesperson for a BMW dealership posted mocking comments and pictures on his Facebook page about the food the dealership served at a promotional “Ultimate Driving Event” held to introduce clients to the new BMW Series 5.  The salesperson was disappointed that his dealership chose to serve hot dogs, bags of Doritos, cookies, and mini water bottles purchased from the local Sam’s Club at an event where the dealership should read more