Monthly Archives: May 2014

Trolling the Patent Trolls

By Michael Zoller, Esq.
mzoller@pashmanstein.com

A “patent troll” is an entity whose sole business is to collect and license patents.  When it cannot extort the license it wants, the troll is likely to file an infringement suit.  A troll does not create or do anything beneficial with the patents it owns.  Trolls are a major problem in the American patent system.  They clog court dockets with frivolous law suits and raise the cost of doing business for all patent owners.

When President Obama signed into law the America Invents Act in 2011, the new law made some substantial changes to the American patent filing system.  At the time the law was signed most people involved in the business of patents were happy with the changes, but some were still concerned that the new laws did not do enough to counteract the rise of patent trolls.  As of early 2013, all of the provisions of the America Invents Act are in effect and since they went into effect, the President has announced more changes that will be coming to address the concerns regarding trolls.

President Obama announced that seven proposals intended to contain and limit the effect of trolls are being submitted to Congress.  The proposals are aimed at: (1) increasing demand letter transparency; (2) fixing transparency; (3) expanding the Patent and Trademark Office’s transitional program for covered business method patents; (4) protecting end users; (5) changing the International Trade Commission standard for obtaining an injunction; (6) permitting more discretion in the awarding of fees to prevailing parties in patent cases; and (7) changing the rules for the ITC in hiring administrative law judges.  Of course, the downside to legislative proposals is that it cannot be known what form the proposals will be in when and if they finally pass through Congress.  Additionally, there is no way to know how long it will take for any of the proposals to actually pass through Congress.

As a way of addressing this uncertainly, President Obama also announced that the White House will be taking five executive actions.  The five executive actions are intended to (1) tighten functional claiming; (2) fix transparency; (3) empower downstream users; (4) expand outreach and study; and (5) strengthen the enforcement of exclusion orders.  As executive actions, the impact of moves made by the White House will be felt before those of the legislative proposals.

While the intentions of the President are good for the American patent system, only time will tell what impact they actually make on trolls.  If the President’s goal of limiting patent trolls is reached then all individuals and businesses who own patents will benefit.  Consequently, this is a developing area of law that patent owners will want to keep an eye on.

Employee Statements on Social Media Targeting Employment Issues Can Be Protected

By Eleanor Lipsky, Esq.
elipsky@pashmanstein.com

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act (“NLRA”), which protects the rights of employees to act together to address work conditions, with or without a union.   Under the NLRA, employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….”[1]   The NLRA’s protection extends to certain conversations or statements employees make on social media relating to their employment.  Employers should be aware of this law before reprimanding or terminating an employee, as this can be considered retaliation against union organizing and related concerted activities.

Many recent NLRB decisions have reviewed what is considered a protected concerted activity.  In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), an employee made a posting on Facebook that contained harsh expletives against the employer, along with a call to vote for forming a union.   The NLRB found that the employee’s posting constituted a protected concerted activity and was directly related to on-going union organizing.  Despite the name-calling, the NLRB noted that statements will only lose protection where they are “so violent or of such serious character as to render the employee unfit for further service.”[2]

In Kroger Co. of Michigan, No. 07-CA-098566 (NLRB, Apr. 21, 2014), the Administrative Law Judge found that a general restriction on employee speech concerning rumors, speculation, personnel matters, and employer’s business plans was also prohibited under the NLRA because it was overly broad.   In contrast, a policy prohibiting “harmful gossip” about managers, but without application to a specific topic that encompasses protected subjects, could be upheld.[3]   The line between prohibiting behavior that is harmful to the business and prohibitions that discourage communication about work conditions is a fine one for employers.

As the NLRB’s involvement and commentary on social media policies continues to grow, it is worth noting that there is often a level of subjectivity in their decisions.    Regardless, in consideration of these decisions, employers should be careful to not enact social media policies that prohibit employee discussions regarding wages or other employment terms.   Any restrictive policies should be limited to necessarily addressing potential violations such as discrimination, harassment, release of trade secret, confidentiality or privacy breaches. Employers should review any existing social media policies to take account of the NLRA’s protections and also keep in mind that these NLRB decisions apply to businesses regardless of whether their employees are represented by a union or not.


[1] 29 U.S.C. § 157.

[2] Pier Sixty, No. 02-CA-068612(NLRB, Apr. 18, 2013), citing St. Margaret Mercy Healthcare Centers, 350 NLRB 203, 204-205 (2007), enf’d 519 F.3d 373 (7th Cir. 2008), quoting Dreis & Krump Mfg. v. NLRB, 544 F.2d 320, 329 (7th Cir. 1976).

[3] See Hyundai American Shipping Agency, Inc., 357 NLRB No. 80 (2011).

What NYC Employers Should Know about Paid Sick Time Requirements

By CJ Griffin, Esq.
cgriffin@pashmanstein.com

Recently, the New York City Earned Sick Time Act went into effect and employers who have NYC locations or employees who perform work in NYC must now provide paid sick leave to their employees.

The Act requires that employers with five or more employees who perform work in New York City at least 80 hours during a calendar year must provide those employees with 40 hours of paid sick leave each calendar year.  Employers with fewer than five employees must offer at least 40 hours of unpaid sick leave each calendar year.  The Act allows the employer to define its calendar year, so long as employees are given the allotted sick time within a 12-month period.

The Act allows employees to carryover up to 40 hours of sick time to the next year, but employers are only required to allow the employee to use 40 hours of sick time per a year.  Employers can choose to compensate employees at their regular rate for unused sick time, but are not required to do so.  If employers do compensate the employee, then the employee is no longer entitled to carry that unused sick time over to the next year.

Finally, the Act prohibits an employer from making any threat, discipline, discharge, demotion, suspension, or reduction in an employee’s hours, or any other adverse employment action against an employee who exercises or attempts to exercise his or her right to sick time under the Act.

Employers must be aware that they are required to give written notice to their employees of their right to sick leave, including accrual and use of sick leave, the right to file a complaint, and the right to be free from retaliation. The written notice must be given to each employee on his or her first day of employment and must also be posted in the workplace.  The notice must state the employer’s calendar year, including start date and end date, and be given to employees in their primary language.  Employers can find sample notices available at http://www.nyc.gov/PaidSickLeave.