Actual or Constructive Knowledge

News & Analysis as of

Reasonable, Not Perfect, Efforts Required to Avoid Having Constructive Knowledge of an Employee's Disability

What happened? Under the Equality Act 2010, employers are required to make reasonable adjustments where they know, or "ought reasonably to know", that an employee has a disability. This is commonly referred to as actual or...more

Employment Appeal Tribunal gives guidance on what constitutes sufficient knowledge of a disability to give rise to a duty to make...

In Donelien v Liberata, the Employment Appeal Tribunal (“EAT”) has held that an employer did not have constructive knowledge of an employee’s disability, even though further steps could have been taken to investigate her...more

I Falsified My Time Records … But I’m Still Suing You for Overtime

Employers sometimes rely on equitable arguments, such as “unclean hands” (which asserts that it would not be fair to hold an employer liable when the employee’s actions caused or contributed to his own injury or damages). But...more

Florida Appeals Court Holds Contractor and Engineering Firm Entitled to Summary Judgment on Personal Injury Claim Where Owner...

The Florida Department of Transportation (“DOT”) hired Transportation Engineering, Inc. (“TEI”) to design, and D.A.B. Constructors, Inc. (“DAB”) to install, median guardrails along the Florida Turnpike. After the...more

West Virginia Legislature May Put the "Deliberate" Back In Deliberate Intent Claims

House Bill 2011 was introduced in the West Virginia legislature by the new Republican majority on the first day of the legislative session. This same bill was introduced in the Senate as Senate Bill No. 11. The purpose of HB...more

Second Circuit Clarifies a Heightened Standard for Insider Trading Convictions

The US Court of Appeals for the Second Circuit recently held that, in order to convict a tippee for insider trading under Section 10(b) of the Securities Act of 1934 and Rule 10b-5, the government must prove beyond a...more

Court Limits the Enforceability of "Browsewrap" Terms of Use—Best Practices in Online Contracting

In an important decision regarding the viability of so-called "browsewrap" agreements, the United States Court of Appeals for the Ninth Circuit—which covers California, among other states—recently affirmed a district court's...more

Secretly Working Off The Clock—You Don’t Get Paid For That!

Following principles that federal courts have applied in similar cases under the Fair Labor Standards Act, a California appellate court recently confirmed that employers are not liable under the California Labor Code for...more

Think Third Party Harassment Can’t Harm You? Think Again

On April 29, 2014, the United States Court of Appeals for the Fourth Circuit’s ruling of Freeman v. Dal-Tile Corp., No. 13-1481, 2014 WL 1678422 (4th Cir. Apr. 29, 2014) addressed third-party harassment. The Court held...more

Conflict In Fla. Regarding Premises Liability Law

On Feb. 26, 2014, Florida’s Fourth District Court of Appeal (West Palm Beach) certified a conflict with the Third District Court of Appeal (Miami) regarding whether Florida Statute § 768.0755, which governs premises liability...more

Horses The Next Pit Bulls? Connecticut Supreme Court Finds That Horses Are Inclined To Be Mischievous, But They Are Not Presumed...

In a matter of first impression, the Connecticut Supreme Court ruled that horses belong to a “species naturally inclined to do mischief or be vicious.” The Court did not go so far, however, as to rule that horses are...more

Knowledge Of Executor’s Attorney Imputed To Executor For Claims Act Liability

Two individuals were appointed as co-executors of an estate. The decedent had not filed income taxes for a number of years. The attorneys prepared tax returns for the missing years, and the IRS assessed taxes against the...more

SEC Issues No-Action Letter Expanding Interpretation of the Definition of “Knowledgeable Employee”

The staff of the Division of Investment Management of the U.S. Securities and Exchange Commission (the “Staff”) has issued a no-action letter in response to a request by the Managed Funds Association (the “MFA Letter”),...more

SEC Issues No-Action Letter on the Definition of Knowledgeable Employee

On February 7, 2014 the staff of the Division of Investment Management of the Securities and Exchange Commission (the “SEC”) issued a no-action letter to the Managed Funds Association (the “No-Action Letter”), providing...more

Florida’s Third DCA Limits Scope Of Discovery In Premises Liability Cases

In cases where a plaintiff is injured due to a slip and fall in a business establishment, the plaintiff may seek discovery related to other slip and falls that occurred on the same premises. Such requests are generally made...more

Eleventh Circuit Declines to Impute Supervisor's Knowledge of Misconduct to the Employer

On July 24, 2013, the Eleventh Circuit joined several other courts of appeal in declining to allow the Secretary of Labor to lay blame for a supervisor's knowledge of his own misconduct to his employer in establishing a prima...more

Does Oprah Winfrey Own Your Power?

The phrase “Own Your Power” is plastered on Oprah Winfrey’s website, discussed at length in O, The Oprah Magazine, and widely publicized through corporate sponsored events. But there is one small problem—Winfrey may not...more

Florida Statute 768.0755: Changes to Premises Liability

Barbara Horn slipped and fell on the wet floors of a medical center in Lakeland. She suffered knee problems and underwent several surgical procedures, culminating in total knee replacements of both knees....more

Guide to Compliance with the Amended COPPA Rule

What Is COPPA? •Children’s Online Privacy Protection Act, enacted by Congress in 1998 •Congress directed the Federal Trade Commission (FTC), the nation’s consumer protection agency, to issue and enforce regulations...more

Mobile Apps and Websites Face New COPPA Requirements Starting July 1

In one month, on July 1, 2013, the Federal Trade Commission’s most recent amendments to its Children’s Online Privacy Protection Act Rule (“COPPA Rule”) will go into effect. These changes include a variety of requirements...more

Florida’s Third District Court of Appeal Holds Statute Establishing Standard of Proof in Slip-and-Fall Cases Is Retroactive

In Kenz v. Miami-Dade County and Unicco Service Co., 2013 (Fla. 3d DCA April 24, 2013), Florida’s Third DCA ruled that § 768.0755, Fla. Stat. (2010) must be applied retroactively to incidents that occurred before the statute...more

IP/Entertainment Law Weekly Case Update for Motion Picture Studios and Television Networks -- February 6, 2013

In This Issue: - Lenz v. Universal Music Corporation, USDC N.D. California, January 24, 2013. District court denies parties’ motions for cross summary judgment on plaintiff's claim of misrepresentation under the...more

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