New California Sexual Harassment Training Guidelines Released
Last year California passed legislation that requires employers with 50 or more employees to train their managers and supervisors on sexual harassment. Because some felt that the law was too broad and general, the California Fair Employment and Housing Commission has drafted more detailed guidelines to help California employers. “Commission provides definitive guidelines for sexual harassment training,” San Diego Daily Transcript as reported in www.yahoo.news (Aug. 15, 2006).
The guidelines, which may go into effect as soon as three months, include these points:
The trainer must possess a certain level of expertise – either a law degree or practical experience in prevention training and knowledge of California law;
Online training must be interactive so that a trainee can pose a question and receive an answer within two days;
All live training must be interactive presumably permitting questions and answers;
Employers must keep a training record for each individual supervisor; and
Employers must distribute their harassment policies and incorporate these policies into the training.
Commentary
The proposed guidelines eliminate from consideration any training where a trainee sits and watches a video without a trainer or person present to answer questions. It also eliminates any training where an employer simply reads from a training manual without any form of interaction.
Employers that utilize online training should make certain that the training allows trainees to ask questions and that the training records participation for each individual trainee. California employers should also make certain that employees acknowledge reading and understanding their sexual harassment policy just prior to taking any training and that they are provided the name of a person to ask questions about their policy.
Live training requires that employers do their homework to make certain that the trainer is qualified and that the materials can pass muster if questioned.
Tuesday, August 29, 2006
Thursday, August 24, 2006
Offline Media versus Online Media Coverage
Most of the combined tech/media/eBusiness forms in the market limit their media liability coverage to “online” media. That is, they limit the coverage to liability arising out of the content on a Web site or used to run a Web site or other of the company’s operations (e.g., software) and content sent via the Internet (like e-mails). But more and more insurers are willing to add endorsements to their forms to extend such coverage to offline media—e.g., traditional forms of advertising, publishing, broadcasting, etc.
So, one of the questions that insureds and brokers alike should ask themselves when reviewing a quote for a combined tech/media/eBusiness policy is whether they want coverage for offline media activities. If so, they also need to understand what issues to look for when negotiating the various endorsements that insurers use for offering offline media coverage; as one might imagine, not all endorsements are created equal. Some of those issues are discussed below.
Interplay with CGL “Personal and Advertising Injury” Coverage
One of the issues that might drive an insured’s decision regarding the need to pursue offline media coverage is how the insured’s general liability program is structured. By “general liability” we mean commercial general liability, foreign general liability, and umbrella liability. These policies provide coverage for “bodily injury,” “property damage,” “personal injury,” and “advertising injury” (with newer forms combining the latter two coverages into “personal and advertising injury” coverage).
Several general liability insurers will put endorsements on their programs that bar all “personal injury” and “advertising injury” coverage from the program, because they don’t want any part of that risk, and know that the insured is buying separate coverage for “media liability” in some fashion or another. If an insured’s general liability program contains such an exclusion, then the insured should seriously consider seeking coverage for offline media in the insured’s combined tech/media/eBusiness insurance program. Also, care must be taken when doing this, because the tech/media/eBusiness policy, even when endorsed to
address offline media, might not cover all risks typically covered by the “personal injury” coverage of a general liability program. Accordingly, an insured might need to approach its general liability insurers and ask them to amend their “personal injury/advertising injury” exclusions so as to minimize gaps in coverage.
So, one of the questions that insureds and brokers alike should ask themselves when reviewing a quote for a combined tech/media/eBusiness policy is whether they want coverage for offline media activities. If so, they also need to understand what issues to look for when negotiating the various endorsements that insurers use for offering offline media coverage; as one might imagine, not all endorsements are created equal. Some of those issues are discussed below.
Interplay with CGL “Personal and Advertising Injury” Coverage
One of the issues that might drive an insured’s decision regarding the need to pursue offline media coverage is how the insured’s general liability program is structured. By “general liability” we mean commercial general liability, foreign general liability, and umbrella liability. These policies provide coverage for “bodily injury,” “property damage,” “personal injury,” and “advertising injury” (with newer forms combining the latter two coverages into “personal and advertising injury” coverage).
Several general liability insurers will put endorsements on their programs that bar all “personal injury” and “advertising injury” coverage from the program, because they don’t want any part of that risk, and know that the insured is buying separate coverage for “media liability” in some fashion or another. If an insured’s general liability program contains such an exclusion, then the insured should seriously consider seeking coverage for offline media in the insured’s combined tech/media/eBusiness insurance program. Also, care must be taken when doing this, because the tech/media/eBusiness policy, even when endorsed to
address offline media, might not cover all risks typically covered by the “personal injury” coverage of a general liability program. Accordingly, an insured might need to approach its general liability insurers and ask them to amend their “personal injury/advertising injury” exclusions so as to minimize gaps in coverage.
Tuesday, August 22, 2006
Watch What You Write
In a recent survey, 24% of the employers responding reported receiving subpoenas for emails that were stored in their company records. At times the content of existing emails led to legal troubles, and other times the destruction of emails led to other adverse legal consequences. Eric J. Sinrod, “Why employers are cracking down on email,” www.news.com (July 26, 2006).
According to the survey conducted by the American Management Association and the ePolicy Institute, emails written at work have led to litigation for 15% of the companies surveyed.
Commentary and Checklist:
Employees write and respond to hundreds if not thousands of emails each year. For an employer to monitor every email is impossible. This means that managers and supervisors need to monitor themselves when writing emails and monitor their subordinates.
Here are some rules when writing emails:
Write every email with the understanding that people other than the recipient may read what you have written.
Don’t write anything that you wouldn’t state verbally to the recipient in a business conversation.
Don’t write emails when you are angry or upset. If angry or upset, take some time to cool down first and write a few drafts before sending.
Avoid using abbreviations and slang. These informalities can lead to a wrong interpretation from readers.
Skip attempts at humor especially when writing about a serious subject. Humor has little value in a courtroom.
Be clear and concise in your language.
Avoid sending long emails. If a matter requires a lengthy explanation, make your explanation in a formal memorandum attached to an email.
If you discover that subordinates are writing improper emails, especially emails that harass or threaten other employees, move quickly to stop the problem.
Counsel your employees on why they should take the time to follow these rules.
According to the survey conducted by the American Management Association and the ePolicy Institute, emails written at work have led to litigation for 15% of the companies surveyed.
Commentary and Checklist:
Employees write and respond to hundreds if not thousands of emails each year. For an employer to monitor every email is impossible. This means that managers and supervisors need to monitor themselves when writing emails and monitor their subordinates.
Here are some rules when writing emails:
Write every email with the understanding that people other than the recipient may read what you have written.
Don’t write anything that you wouldn’t state verbally to the recipient in a business conversation.
Don’t write emails when you are angry or upset. If angry or upset, take some time to cool down first and write a few drafts before sending.
Avoid using abbreviations and slang. These informalities can lead to a wrong interpretation from readers.
Skip attempts at humor especially when writing about a serious subject. Humor has little value in a courtroom.
Be clear and concise in your language.
Avoid sending long emails. If a matter requires a lengthy explanation, make your explanation in a formal memorandum attached to an email.
If you discover that subordinates are writing improper emails, especially emails that harass or threaten other employees, move quickly to stop the problem.
Counsel your employees on why they should take the time to follow these rules.
Friday, August 18, 2006
Using Materials From The Internet
Overview of Copyright Law
Copyright law protects original works of authorship ranging from literary works to sound recordings. Rights accrue the moment that the content is “fixed” in a tangible medium of expression. This means that works written on paper, programmed onto a webpage or recorded on a digital tape have been fixed in a medium and are protected by copyright laws. To receive full federal rights and remedies, the work must be registered with the Copyright Office. The rights of registration include statutory damages and attorney’s fees.
Much of what is posted on the Internet is protected by federal copyright law, despite the fact that it is available free of charge and/or does not contain a © copyright symbol or notice. A good rule of thumb is to always attribute your sources and obtain permission from the copyright owner before posting an article or provide a link from your Web site to the article.
Frequently Asked Questions
1. What material is subject to copyright laws? The safest assumption is that all materials available on the Internet are subject to copyright laws. This includes photographs, charts and other graphics.
2. When is Permission required? Re-posting or republishing an article in its entirety always requires permission from the copyright holder, unless the original posting specifically indicates to the contrary. Permission may not be required when using small excerpts from a copyrighted source under the Fair Use Exception. See question number seven (7) below. Linking to an article, rather than re-posting may also avoid the permission issue.
3. How do I obtain Permission? You may contact the publisher or the author of the materials to obtain permission directly. Another option that may be more efficient for those regularly obtaining copyright owners’ permissions is to go through a licensing agency such the Copyright Clearance Center. Their website is located at www.copyright.com.
4. Why is there a hyperlink entitled “Terms of Use” on a webpage? Many websites will post a Terms of Use type of document as a link on the bottom of their home page. Reading this document will allow you to determine whether the site owners intended to grant you a license to copy or re-post or otherwise republish the material on their website. It may also indicate how to contact them to obtain permission to utilize their materials.
5. What is the difference between Linking and Deep Linking? This is a method by which you may direct your users to content on another site by providing a hypertext link, or hyperlink. This method of linking directs users to the website’s home page, not the specific page containing the article which you would like to share. The user must navigate the site to find the article in question. Deep linking is the use of a link that brings users directly to a specific page containing the desired article.
6. May I modify content? You may not edit or create another work based upon a copyrighted work without prior permission from the copyright holder. Since only an expression of an idea or fact is copyrightable, and not the idea or fact itself, you may use the information and credit the source.
7. What is fair use? The Fair Use doctrine is an exception to copyright law which permits one to copy segments of an otherwise protected work in certain circumstances. Four factors are used to evaluate whether a particular use is fair: (1) the purpose of the use; (2) the type of work being excerpted; (3) the amount being used as compared to the copyrighted work as a whole; and (4) the impact of the use upon the market for and value of the original work. See 17 U.S.C. 107.
Some examples of possible fair uses are as follows: using a paragraph from a copyrighted two page piece to report news of a piece of legislation; copying two sentences of an editorial for a critique; using a three-page chapter from a 350 page book to inform an audience about a topic. Fair use is a narrow exception and an attorney should be consulted prior to relying on it.
For more information, please visit the Federal Copyright Office’s website located at: www.copyright.gov.
Copyright law protects original works of authorship ranging from literary works to sound recordings. Rights accrue the moment that the content is “fixed” in a tangible medium of expression. This means that works written on paper, programmed onto a webpage or recorded on a digital tape have been fixed in a medium and are protected by copyright laws. To receive full federal rights and remedies, the work must be registered with the Copyright Office. The rights of registration include statutory damages and attorney’s fees.
Much of what is posted on the Internet is protected by federal copyright law, despite the fact that it is available free of charge and/or does not contain a © copyright symbol or notice. A good rule of thumb is to always attribute your sources and obtain permission from the copyright owner before posting an article or provide a link from your Web site to the article.
Frequently Asked Questions
1. What material is subject to copyright laws? The safest assumption is that all materials available on the Internet are subject to copyright laws. This includes photographs, charts and other graphics.
2. When is Permission required? Re-posting or republishing an article in its entirety always requires permission from the copyright holder, unless the original posting specifically indicates to the contrary. Permission may not be required when using small excerpts from a copyrighted source under the Fair Use Exception. See question number seven (7) below. Linking to an article, rather than re-posting may also avoid the permission issue.
3. How do I obtain Permission? You may contact the publisher or the author of the materials to obtain permission directly. Another option that may be more efficient for those regularly obtaining copyright owners’ permissions is to go through a licensing agency such the Copyright Clearance Center. Their website is located at www.copyright.com.
4. Why is there a hyperlink entitled “Terms of Use” on a webpage? Many websites will post a Terms of Use type of document as a link on the bottom of their home page. Reading this document will allow you to determine whether the site owners intended to grant you a license to copy or re-post or otherwise republish the material on their website. It may also indicate how to contact them to obtain permission to utilize their materials.
5. What is the difference between Linking and Deep Linking? This is a method by which you may direct your users to content on another site by providing a hypertext link, or hyperlink. This method of linking directs users to the website’s home page, not the specific page containing the article which you would like to share. The user must navigate the site to find the article in question. Deep linking is the use of a link that brings users directly to a specific page containing the desired article.
6. May I modify content? You may not edit or create another work based upon a copyrighted work without prior permission from the copyright holder. Since only an expression of an idea or fact is copyrightable, and not the idea or fact itself, you may use the information and credit the source.
7. What is fair use? The Fair Use doctrine is an exception to copyright law which permits one to copy segments of an otherwise protected work in certain circumstances. Four factors are used to evaluate whether a particular use is fair: (1) the purpose of the use; (2) the type of work being excerpted; (3) the amount being used as compared to the copyrighted work as a whole; and (4) the impact of the use upon the market for and value of the original work. See 17 U.S.C. 107.
Some examples of possible fair uses are as follows: using a paragraph from a copyrighted two page piece to report news of a piece of legislation; copying two sentences of an editorial for a critique; using a three-page chapter from a 350 page book to inform an audience about a topic. Fair use is a narrow exception and an attorney should be consulted prior to relying on it.
For more information, please visit the Federal Copyright Office’s website located at: www.copyright.gov.
Wednesday, August 09, 2006
Disaster Planning: Ready for Implementation
Tropical Storm Chris was a reminder that a disaster can strike anytime, in any area. Perhaps you’ve already taken the time to sit down with employees to go over the steps they should take if a storm or other disaster occurs. The last thing to cover is how to implement the plan.
The following checklist is based on recommendations contained in ACT’s reports and is designed to assist agencies in updating their current disaster plans:
When a Foreseeable Disaster is Imminent
FedEx a tape of the latest database to the company system’s data center.
Consider e-mail and automatic call outs to customers with emergency contact information.
Staff should complete processing of all work that is outstanding, especially for Matters relating to a disaster.
Make sure all needed lists are updated in paper form as well as exported to a laptop and portable storage device. Tight security is imperative.
Make sure all employees know their assignments and have made clear how they can be reached in emergency.
If possible, load your company system application onto a laptop along with your latest data file for instant access. Take all security precautions to protect your data.
If you utilize an online data backup service, upload to them if possible.
Wrap and label all employee work to be done to protect it.
Take reasonable steps to protect all equipment.
Redirect your phone numbers before the disaster.
Disconnect all electrical equipment from the wall.
If destruction of file server is imminent, consider taking the server with you if you know how to disconnect it and handle it safely.
Shut off water and gas lines.
Have needed provisions on hand, including enough cash for a few weeks.
Needed Provisions
Fans, extension cords, batteries, flashlights, battery-powered lamps and radios and low heat, low-energy lighting available to use with your generator.
Sufficient bottled water to handle employees’ and customers’ needs for two weeks.
Canned or dry food goods that do not require refrigeration or cooking, as well as beverages and snacks for employees and customers.
Can openers, paper/plastic utensils, plates and cups, trash bags, bleach, paper towels and cleaning supplies, and hand wipes.
First aid supplies and blankets.
Matches, barbeque grill, fuel for grill.
Customers’ and Employees’ Special Needs in Disaster Aftermath
Be aware there will be significant emotional and psychological effects after major events.
Provide drinks and food.
Staff should caucus each day to adjust response as necessary.
Supplier Issues
Understand in advance each of your supplier's CAT plans, the local presence they will have and how they will permit you to contact them efficiently.
Seek draft authority or methods to provide customers with emergency funds immediately.
The following checklist is based on recommendations contained in ACT’s reports and is designed to assist agencies in updating their current disaster plans:
When a Foreseeable Disaster is Imminent
FedEx a tape of the latest database to the company system’s data center.
Consider e-mail and automatic call outs to customers with emergency contact information.
Staff should complete processing of all work that is outstanding, especially for Matters relating to a disaster.
Make sure all needed lists are updated in paper form as well as exported to a laptop and portable storage device. Tight security is imperative.
Make sure all employees know their assignments and have made clear how they can be reached in emergency.
If possible, load your company system application onto a laptop along with your latest data file for instant access. Take all security precautions to protect your data.
If you utilize an online data backup service, upload to them if possible.
Wrap and label all employee work to be done to protect it.
Take reasonable steps to protect all equipment.
Redirect your phone numbers before the disaster.
Disconnect all electrical equipment from the wall.
If destruction of file server is imminent, consider taking the server with you if you know how to disconnect it and handle it safely.
Shut off water and gas lines.
Have needed provisions on hand, including enough cash for a few weeks.
Needed Provisions
Fans, extension cords, batteries, flashlights, battery-powered lamps and radios and low heat, low-energy lighting available to use with your generator.
Sufficient bottled water to handle employees’ and customers’ needs for two weeks.
Canned or dry food goods that do not require refrigeration or cooking, as well as beverages and snacks for employees and customers.
Can openers, paper/plastic utensils, plates and cups, trash bags, bleach, paper towels and cleaning supplies, and hand wipes.
First aid supplies and blankets.
Matches, barbeque grill, fuel for grill.
Customers’ and Employees’ Special Needs in Disaster Aftermath
Be aware there will be significant emotional and psychological effects after major events.
Provide drinks and food.
Staff should caucus each day to adjust response as necessary.
Supplier Issues
Understand in advance each of your supplier's CAT plans, the local presence they will have and how they will permit you to contact them efficiently.
Seek draft authority or methods to provide customers with emergency funds immediately.
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