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Does Constructive Discharge Bar an Employer's Defense?
In last month's Employment Law Strategist, we explored the background to a growing conflict among the circuit courts regarding the availability of the so-called Ellerth/Faragher affirmative defense in constructive discharge cases. We began with an analysis of Suders v. Easton, 325 F.3d 432 (3d Cir. 2003), in which the Third Circuit held that holding an employer strictly liable for a constructive discharge resulting from the actionable harassment of its supervisors more faithfully adheres to the policy objectives set forth in Ellerth and Faragher. Granting certiorari to consider the Third Circuit's ruling, the U.S. Supreme Court has now undertaken to resolve the discord among the circuits.
Conflict Among the Courts of Appeals
The Ellerth/Faragher defense allows an employer to avoid liability for unlawful harassment where the employer has an effective anti-harassment policy in place, but despite that, a harassed employee who knows about the policy fails to take advantage of it. However, the defense depends on the absence of a “tangible employment action.” Where an employee is terminated, for instance — thus giving an employee a chance to complain of an adverse “tangible employment action” rather than of a hostile work environment — an employer cannot take advantage of the defense and can be held strictly liable for the acts of its employees.
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Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?