Tuesday, November 13, 2007

Changes to Arbitration Coming?

Congress is considering legislation that would dramatically change the ability of an employer to enter into a pre-dispute agreement with employees that calls for employment disputes to be arbitrated. Under the pending bill, known as "The Arbitration Fairness Act of 2007", arbitration agreements that are entered into before a dispute arises, and that are subject to the Federal Arbitration Act (FAA) would be deemed unenforceable. Employers would have to get employees to agree to arbitrate only after a claim arises.

Further, the bill would give additional oversight functions to a court of law. Existing law leans towards giving great deference to arbitration awards. Courts are very reluctant to overturn an arbitrator's decision unless it is manefestly unjust, obviously in contravention of existing law, or was rendered by fraud.

In addition, the US Supreme Court just heard a case that may judicially expand the role of a court in overseeing/enforcing arbitration awards. In Hall Street Associates v. Mattel, Inc., cert was granted in a case where the parties negotiated an arbitration agreement that expanded the role of the judiciary beyond that provided under the FAA. The dispute arose over a lease which did not contain an arbitration clause. The parties went to litigation. During litigation, they agreed to arbitrate the remaining issues, leaving the court to approve the arbitration agreement and allowing the court to review the arbitrator's findings and conclusions (include a finding of any error by the arbitrator). The arbitration agreement conflicts with the FAA in that the FAA does not allow review of an arbitrator's factual or legal findings.

After arbitrating, both sides appealed the award. The court vacated the award based on its finding of legal error by the arbitrator in applying state law. The arbitrator then revised his award per the court's interpretation of state law. Both parties again sought judicial review, but the court upheld the ruling.

The question for the US Supreme Court is whether a court can enforce a contractual provision that expands the standard of review of arbitration awards under the FAA. Stay tuned...

Tuesday, November 6, 2007

Managing Your Email Accounts

I just read a case from a federal court in Colorado that concerns lawyers and their obligations to stay informed with hearing dates and court appearances. In the case, Pace v. United Services Automobile Association, No. 05-cv-01562, 2007 WL 2022059 (D. Colo. July 9, 2007), a Magistrate Judge granted defendant’s motion for attorney fees for plaintiff’s and his attorneys’ failure to appear at a settlement conference. Plaintiff's counsel did not receive notice of the settlement conference, which the court sent via email. Plaintiff's counsel said that the notice was treated as SPAM as was filted into the "junk email" folder.

The Judge found that plaintiff’s counsel failed to show that his absence at the conference was “substantially justified” or “that other circumstances would make an award unjust.” The Court held that attorneys are responsible for establishing office procedures to ensure receipt of notices from the Court: “It is incumbent upon attorneys to adopt internal office procedures that ensure the court’s notices and orders are brought to their attention once they have been received.” The Court went on to indicate that it is the attorneys’ responsibility to monitor cases and that to treat electronic notices as a “functional equivalent of junk mail” is unacceptable.

This ruling could certainly be used to argue that an employer's failure to receive an email from an employee could be insufficient if it went into a junk email folder. By way of example, if an employee sent an email to human resources lodging a complaint of harassment and for some reason the HR person did not receive or respond to it because it got filtered, a court could hold that the employer's failure to take prompt remedial action violated Title VII.

What this ruling suggests is that it is simply not good enough to say that you never received an email and that it "must have gone into the SPAM folder". It may be that the employer's duty is to review junk emails to make sure that there aren't any non-SPAM items that require attention. Under this ruling, it may be negligent or irresponsible for members of management to communicate by email but not check the junk email folder.

Friday, November 2, 2007

Fake Email Alert

I have become aware of a recent email scam that is circulating. The email comes from what is purportedly the EEOC or FTC. The email claims that a customer has lodged a complaint against the recipient and asks to hit a link to review or respond to the complaint. In actuality, hitting the link will unleash a virus on your network or computer.

According go the FTC:

A bogus email is circulating that says it is from the Federal Trade Commission, referencing a “complaint” filed with the FTC against the email’s recipient. The email includes links and an attachment that download a virus. As with any suspicious email, the FTC warns recipients not to click on links within the email and not to open any attachments.

The spoof email includes a phony sender’s address, making it appear the email is from “frauddep@ftc.gov” and also spoofs the return-path and reply-to fields to hide the email’s true origin. While the email includes the FTC seal, it has grammatical errors, misspellings, and incorrect syntax. Recipients should forward the email to
spam@uce.gov and then delete it. Emails sent to that address are kept in the FTC’s spam database to assist with investigations.
Simply opening the email does not appear to cause harm. However, it is likely that anyone who has opened the email’s attachment or clicked on the links has downloaded the virus on their computer, and should run an anti-virus program. The virus appears to install a “key logger” that could potentially grab passwords and account numbers. More information about bogus emails, phishing, and virus protection is available at

The EEOC version of this scam is slightly different, but has the same effect (a virus). According to the EEOC:

The U.S. Equal Employment Opportunity Commission (EEOC) late today notified the business community and general public to a "phishing" e-mail circulating to companies that purports to be from the federal agency regarding a harassment complaint. The bogus e-mail contains a Trojan Horse Virus that is likely to harm a recipient's computer if the user clicks on the referenced web link and/or downloads the attached file.

The phony e-mail to employers -- being circulated under the subject "Harassment Complaint Update For"-- contains links where the respondent can allegedly access details of a fake discrimination claim. The EEOC has reported the issue to appropriate authorities.
The EEOC's policy is to notify an employer of the filing of a charge of employment discrimination using the U.S. Postal System. Because of security concerns, the EEOC does not notify employers of the filing of a charge of discrimination via e-mail. Consequently, if a company receives an e-mail notification which purports to advise the respondent of the filing of a charge of employment discrimination with the EEOC, the federal agency urges users to delete it immediately.
The contents of the phishing e-mail include an EEOC logo under the subject line and contain purported language from the EEOC under a subject heading, "Employer Liability for Harassment." Excerpts of the phishing e-mail are highlighted below:

FROM: Equal Employment Opportunity Commission
SUBJECT: "Harassment Complaint Update For"
This is an automated email that confirms the registration of harassment complaint #number...this harassment complaint can lead to law enforcement action. You can download and print a copy of this complaint to keep for your personal records here...Our staff will keep you updated regarding the status of our investigation...To check the status of your complaint access:

Be advised that it is not common for a Federal agency to contact a company with regard to a complaint via email. A formal letter is usually sent by mail. Further, most government communications will include a telephone number to contact the field office or investigator.

Rule of thumb: don't click on attachments if you don't know the sender. If it appears that you received an email from the government, your bank or credit card company, never provide personal or senstive information. Ask yourself: wouldn't my bank or credit card company have all of my contact information? Why would they need me to verify it?

Finally, you should have a spyware program and antivirus program installed on your computer. I don't know if there has been a fix or virus definitions update for this virus,but why take a chance?