LEGAL
Employers should train their managers to avoid any conduct seen as interfering with an employee's right to FMLA leave.
In Gordon v. United States Capitol Police, the DC Circuit reversed the district court's dismissal of the action and allowed an employee's FMLA interference and retaliation claims to proceed, even though the employee was not prevented from taking leave.
Employers should avoid any behavior that arguably chills employees' FMLA leave rights and train managers to respond appropriately to all leave requests. Specifically, managers should not:
Whenever possible, leave requests should be referred to the human resources department or other trained leave administrators.
For more information on the requirements for FMLA leave, see FMLA Employee Notice and Employer Response Checklist.
For companies offering price discount programs, a recent Sixth Circuit decision highlights how a differential pricing policy can constitute unlawful tying if the policy lowers the discounted product's price below cost. Differential pricing occurs when a company offers one product at a higher price if the customer does not buy an additional tied product.
In Collins Inkjet Corp. v. Eastman Kodak Co., the Sixth Circuit, in upholding a preliminary injunction issued by the district court, found that Kodak's differential pricing policy may constitute unlawful tying. Under the policy, customers purchasing both Kodak's refurbished printer components (the tying product) and its Versamark ink (the tied product) received a discount, whereas prices were higher for customers purchasing only components and no ink. Collins, Kodak's competitor in the Versamark ink market, alleged that Kodak was using the policy and its 100% market share in the refurbished printer components market to:
Differential pricing can constitute coercive, unlawful tying if the discount allows the tied product to be sold below cost, and selling the tied product below cost makes it unreasonable for a customer to buy the tying product without also buying the tied product. The Sixth Circuit held that Collins could likely prove that Kodak's pricing policy was unlawful tying because:
For more information on below-cost pricing, see Practice Note, Customer Loyalty Programs in the US.
U.S. companies that own or control 10% or more of the voting stock of a foreign business enterprise (making it a "foreign affiliate") must file a BE-10 Benchmark Survey, as required by the U.S. Department of Commerce's Bureau of Economic Analysis (BEA). Companies should review their compliance programs to ensure timely completion and filing of the surveys.
The BEA prepares official economic statistics to gauge the performance of the U.S. economy and the role of the U.S. in the global economy through mandatory quarterly, annual, and benchmark surveys. The BE-10 Benchmark Survey is the most comprehensive survey of U.S. direct investment abroad and must be completed every five years. Companies must provide information on transactions with their foreign affiliates, including:
The deadline to file for companies with 50 or more foreign affiliates is June 30, 2015, while the deadline for those with less than 50 foreign affiliates was May 29, 2015. Civil fines for failing to file can range up to $32,500 and criminal penalties can include fines up to $10,000 and up to one year imprisonment.
For resources to assist counsel in complying with U.S. international trade laws, see International Trade Toolkit.
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