Employers shouldn’t wait until a disgruntled employee sues them before figuring out a legal defense strategy.  There are preventive measures that can be implemented before an employee is even hired that can serve to protect an employer from litigation.  A recent New Jersey Appellate Division decision highlighted this point in dismissing a plaintiff’s complaint based solely on language found in the employment application the plaintiff employee had signed before being hired.  Written in bold, capital letters immediately above where Sergio Rodriguez signed the application in 2007 was a statement in which he effectively waived the usual two-year statute of limitations that applies to bringing a claim against an employer.  The period to which he agreed by signing that "applicant’s statement" was six months; therefore, when he ultimately attempted to file a wrongful-termination suit against Raymour & Flanigan nine months after he was let go as part of a company-wide workforce reduction, he had already missed his window of opportunity.  Rodriguez had recently returned from a workers’ compensation leave of absence and felt that his termination was retaliatory and discriminatory due to his disability, and not a result of poor performance, as claimed by his employer.  Unfortunately for the applicant, this became irrelevant due to the fact that he filed his complaint too late.

The judge’s ruling in favor of the employer in this case is slightly uncharacteristic for New Jersey, where courts are usually known to be sympathetic to employee rights.  Rodriguez has appealed the decision to the NJ Supreme Court, so this decision could be reversed.  Still, it is an important reminder to employers that things like effective documentation practices and harassment training are not always sufficient safeguards against potential lawsuits.  Something as simple as thoughtfully handling the job application process can limit or even preempt prolonged legal action.  Just as the employer did in the aforementioned case, stating the waiver language simply, clearly, and boldly on the application—preferably in a prominent place above the signature line—and making sure that the time limit is within reason will all help ensure that a waiver will be enforced in case of eventual litigation.  (Thus far, six months is the shortest time period deemed reasonable by courts and Congress.)  If a company’s pool of applicants is not comprised of native English–speakers, it may be beneficial to translate the job application and any subsequent contracts into a candidate’s native tongue so as to avoid any misunderstanding or future claims of language barrier as grounds for a legal claim.  Allowing someone to review the document at home gives them sufficient time to review it and return with any questions or concerns, further reinforcing the voluntariness of their acceptance of the application's terms.  Lastly, while one might think it extraneous, it is important to include language specifically instructing job candidates to read the application carefully before signing.  Adhering to these simple guidelines and ensuring that all parties know their rights and responsibilities in the initial phases of the employment relationship can help prevent disputes down the road.

Believe it or not, many of the characteristics stereotypically associated with Sherlock Holmes were not actually significant elements in most—or even any—of the 60 stories written by Sir Arthur Conan Doyle about the now-iconic fictional detective.  Holmes’ magnifying glass, for example, appeared occasionally in the novels and short stories, while the distinctive, curved calabash pipe did not feature at all, but became a part of the Holmes persona over time, as people interpreted the character on stage, in films, and in illustrations.  The instantly-recognizable double-brimmed deerstalker hat, while not mentioned by name in the Sherlock Holmes canon, was represented in the original commissioned illustrations that accompanied the first publications of Conan Doyle’s stories in The Strand Magazine in the late 19th century.  Since then, there have been numerous adaptations and reinterpretations of the famous sleuth and his adventures with trusted sidekick, Dr. Watson.  Many of these adaptations, however, were produced only with the blessing of (and payment of licensing fees to) the late British author’s estate, even though only a handful of the stories from the Sherlock Holmes catalog of work were still under copyright. 

California-based lawyer and author Leslie Klinger—who, according to his website, is “one of the world's foremost authorities on Sherlock Holmes”—agreed to the Conan Doyle estate’s demand of purchasing a $5,000 copyright license before publishing his 2011 anthology entitled “Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon.”  When the estate learned that Klinger was working on a sequel a few years later, they demanded his publisher halt publication until he would agree to obtain another license.  Instead of capitulating, Klinger sued the estate on the grounds that his work was only drawing from stories that were already in the public domain under copyright law, and thus, did not require a license for use.  Under US law, works published before 1923 are now considered to be in the public domain; this includes the 50 Sherlock Holmes stories published between 1887 and 1922.  But the 10 most recently-published stories are still under copyright protection, since they were published after 1923.  The Conan Doyle estate argued that the dynamic development of the two main characters was not fully complete until those final 10 stories were published, and hence, Holmes and Watson should not yet be freely used in the public domain, as elements of the characters themselves were still copyrighted.

A federal appeals court in Chicago disagreed with the Conan Doyle estate and the Conan Doyle estate has petitioned the Supreme Court to review this case.  If this court decision stands, the enigmatic residents of the fictitious 221B Baker Street will finally enter the public domain in their entirety and may be used freely in new creative works without having to seek permission from the author’s descendants.