Four Retailers Agree to Stop Sale and Voluntarily Recall Nap Nanny Recliners Due to Five Infant Deaths

The U.S. Consumer Product Safety Commission (CPSC) and four major retailers are announcing a voluntary recall to consumers who own Nap Nanny® recliners made by Baby Matters, LLC of Berwyn, Pa.  These products could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Retailers currently participating include Amazon.com, Buy Buy Baby, Diapers.com and Toys R Us/Babies R Us. At the request of the CPSC, these retailers have agreed to voluntarily participate because the manufacturer is unable or unwilling to participate in the recall. CPSC is warning parents and caregivers that these baby recliners contain defects in the design, warnings and instructions, which pose a substantial risk of injury and death to infants. This recall includes the Nap Nanny Generations One and Two, and the Chill™ model infant recliners. In July 2010, CPSC and Baby Matters, LLC issued a joint recall news release that offered a discount coupon to Generation One owners toward the purchase of a newer model Nap Nanny, and improved instructions and warnings to consumers who owned the Generation Two model of Nap Nanny recliners. At the time of the 2010 recall, CPSC was aware of one death that had occurred in a Nap Nanny recliner and 22 reports of infants hanging or falling out over the side of the Nap Nanny, even though most of the infants had been placed in the harness. Subsequently, despite the improvements to the warnings and instructions, additional deaths using the Nap Nanny recliners were reported, including one in a Chill model. Since the 2010 recall, CPSC has received an additional 70 reports of children nearly falling out of the product. The Nap Nanny is a portable infant recliner designed for sleeping, resting and playing. The recliner includes a bucket seat shaped foam base and a fitted fabric cover with a three point harness. Five thousand Nap Nanny Generation One and 50,000 Generation Two models were sold between 2009 and early 2012 and have been discontinued. One hundred thousand Chill Models have been sold since January 2011. The recalled Nap Nanny recliners were sold at toy and children’s retail stores nationwide and online, including at http://www.napnanny.com. All models were priced around $130.

Nap Nanny Generation Two model

For more information, consumers should review the return policy of the individual retailer from which they purchased a Nap Nanny recliner. If the product was purchased at one of the retailers below, see the link or call for instructions on returns:

• Amazon.com: http://www.amazon.com
• Buy Buy Baby: Toll-free at (877) 328-9222,
  http://www.buybuybaby.com/productRecalls.asp
• Diapers.com: (800) 342-7377,
  http://www.diapers.com
• Toys R Us/Babies R Us: (800) 869-7787,
  http://www.toysrusinc.com/safety/recalls

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13083.html

How Can Your Employer Sue Thee? Let Me Count The Ways

When people hear the term “employment law, ” they frequently think of employee claims against employers.  But employers can also sue their employees for various civil wrongs in a type of claim that’s more like a business practices or contract law claim.  Here are some of the more common examples of employer claims against employees:

1.  Theft of money, property, ideas, etc.  That should be obvious.  Steal from your employer, and beside a criminal prosecution you could also face a civil lawsuit seeking reimbursement for the stolen property and punitive damages.

2.   Stealing or soliciting your employer’s customers after you leaving your employment, especially if you start a directly competing business.  Solicitation of customers can be unlawful even absent a formal nonsolicitation agreement.  That could also be considered tortious interference with contracts or prospective business relationships.

3.   Encouraging customers to go to a direct competitor while you’re still working for your employer.  Same concept as “2” above, except you’re still working for the people you’re funneling business from.  That’s always a great idea and a good way to make long-term friends in your business. Also a surefire way to get fired if your employer catches you doing this.

4.  Directly competing against your employer after you leave employment, either while working for a competitor or after starting your own business.  Competition can sometimes be unlawful even absent a noncompete agreement.

5.  Negligence.  Yup, when you agree to work for your employer you impliedly represent that you have the requisite minimum skills and competency to adequately fulfill your job responsibilities.  I wonder if a fast food restaurant owner would ever consider suing one of its sixteen year-old grill workers for not properly flipping the burgers?

6.  Lying to or concealing information from your employer about something important.  For example, you fail to close the big sale your employer’s counting on and paying you to close.  You don’t tell your employer that the deal fell through.  Maybe worse yet, you lead your employer to believe that the deal’s in its final stages and about to be done.  Some people might call that fraud.  Some employers will sue employees for pulling a stunt like that.

7.  Not acting in good faith and in your employer’s best interests at all times.  Using the fast food analogy above, this might be as simple as visibly chowing down on a Burger King Whopper while ringing customers out at the McDonald’s that employs you.  You could go even farther and tell said customers that you have no doubt that the Quarter Pounder they just ordered will never taste as good as your Whopper and that you’re sorry that they weren’t able to drive an extra two blocks to the nearest Burger King for a quality burger.

8.  Disloyalty or acting in a manner that conflicts with your employer’s best interests.  See “7.”

Not only can these claims result in money damages, but many of them also come with the possibility of injuctive relief.  For example, an employer may seek a court order enjoining a former employee from soliciting customers, operating a competing business, or using stolen ideas.

Another very interesting type of relief against a misbehaving employee is “disgorgement.”  That’s when an employer literally demands its money (wages paid) back from the employee for a job not well done.  Courts do have the power to order that remedy, although it rarely happens.  The best candidates for disgorgement would be cases in which the employee was starting or helping a competing business while still working for the employer.  In that instance, it seems most clear that the employer has an argument that the employee should not be allowed to keep the employee’s wages given that the employee’s first focus was not where it should have been — on the employer’s business.

On a final note, you may have noticed that many of these claims are similar to that available against employees in other contexts, such as noncompete agreements or intellectual property law.  And those are the primary areas of litigation against former employees.  The point of my comments here is that there are some other areas of employee liability (loyalty and conflicts of interest, for example), that people may not necessarily think of.  Regular employees do not get a pass from these types of obligations merely because they’re not board members, officers, or management.

CPSC Sues Star Networks USA Over Hazardous, High-Powered Magnetic Balls and Cubes

In an effort to prevent children from suffering further personal injuries or death due to product liability., U.S. Consumer Product Safety Commission (CPSC) staff filed an administrative complaint on December 17, 2012 against Star Networks USA, LLC, of Fairfield, N.J., alleging that their Magnicube Magnet Balls and Magnet Cubes contain defects in their design, packaging, warnings and instructions, which pose a substantial risk of injury to the public. The Commission voted 2-1 to approve the filing of the complaint, which seeks, among other things, an order that the firm stop selling Star Networks Magnicube Magnet Balls and Magnet Cubes, notify the public of the defect, and offer consumers a full refund.

The Commission staff filed the administrative complaint against Star Networks after discussions with the company and its representatives failed to result in a voluntary recall plan that CPSC staff considered to be adequate and the company resumed sale of these products in November.

Magnicube Magnet Balls and Magnet Cubes sets contain from 125 to 1,027 high-powered rare earth magnets, manufactured in China. The complaint estimates about 22,000 sets were sold, priced from $20 to $80.

In response to a request from CPSC staff in July 2012, 11 firms, including Star Networks, voluntarily agreed to stop selling similar products. CPSC staff called upon these firms to cease the manufacture, importation, distribution, and sale of high-powered, manipulative magnetic products after young children and teenagers swallowed multiple magnets, which connected inside their gastrointestinal tracts and caused internal injuries requiring surgery.

The staff’s complaint alleges that CPSC has received dozens of reports of ingestions of high-powered small magnets identical in form, substance and content to Magnicube Magnet Balls and Magnet Cubes. The reports include ingestions of magnets by toddlers who placed similar magnets in their mouths and ingested them, as well as older children and teenagers who accidentally ingested this type of products while using it to mimic piercings of the tongue, lip, or cheek.

When two or more magnets are swallowed, they can pinch or trap the intestinal walls or other digestive tissue between them, resulting in acute and long term health consequences. Magnets that attract through the walls of intestines result in progressive tissue injury. Such conditions can lead to infection, sepsis, and possibly death. Medical professionals may not be aware of the dangers posed by ingestion and the corresponding need for immediate medical intervention in such cases, exacerbating the life-threatening injuries.

Zen Magnets, importer of Zen Magnets™ Rare Earth Magnet Balls, Maxfield & Oberton, importer of Buckyballs® and Buckycubes™, and now Star Networks, which reversed its earlier withdrawal of the product, are the only companies to date that have refused to comply with the staff’s request.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13077.html

Toyota Agrees To Fine For Failing To Report Probems With Lexus

The federal government has reported that Toyota failed to disclose in a timely manner a safety defect related to its floor mats with the Lexus RX 350 crossover vehicle that could trap the vehicle’s accelerator pedal and cause unwanted acceleration. The National Highway Traffic Safety Administration (NHTSA) began noticing the problem in vehicle owner questionnaires and in May it questioned Toyota on the issue.

A month later Toyota advised NHTSA that it was aware of 63 alleged incidents since 2009 involving the floor mat in model year 2010 Lexus RX 350s. In June Toyota announced a recall of just over 150,000 of both the gas and hybrid versions of the vehicle.

In 2010, Toyota paid a total of $48.8 million as a result of three separate investigations into pedals being caught in floor mats, sticky pedals and steering relay rod problems. Those recalls caused Toyota to briefly stop selling many models as it addressed problems, and its sales plunged in the wake of the negative publicity about the safety issues.

Toyota issued a statement about the NHTSA fine, saying it did not admit to any wrongdoing as part of the settlement.

“We agreed to this settlement in order to avoid a time-consuming dispute and to focus fully on our shared commitment with NHTSA to keep drivers safe,” said Ray Tanguay, chief quality officer of Toyota North America, in the company’s statement.

NHTSA said that Toyota has agreed to make internal changes to their quality assurance and perform a review of safety-related issues as part of the latest settlement.

Source:  http://money.cnn.com/2012/12/18/news/companies/toyota-safety-fine/

Mattresses Recalled by Easy-Rest Due to Violation of Federal Mattress Flammability Standard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Classic by Easy-Rest Foam Core Mattresses

Units: About 3,800

Importer: Easy-Rest Inc., of Portland, Ore.

Hazard: The mattresses fail to meet the mandatory federal open flame standard for mattresses, posing a fire hazard to consumers.

Incidents/Injuries: None reported

Description: This recall involves Easy-Rest “Classic” model mattresses sold in twin (model CL533) and in full size (model CL546). Some mattresses were also sold with a foundation. The mattresses have a red, zippered fabric cover over a five-inch foam core. “Classic 5,” the model number and the date of manufacture are printed on the federal label attached to the mattress. The lot number is printed at the bottom of the state label attached to the mattress. “Easy-Rest Inc.” is printed on both tags.

Mattress	Model Number	Lot Numbers
Classic Twin	CL533	151, 152, 156, 161, 164, 167, 169, 171, 172, 179, 181, 183, 186, 1004, 1005 SE001, SE102, SE103, SE104 2001, 2002, 2003, 31112
Classic Full	CL546

Sold at: Mattress and furniture stores in Ariz., Ark., Calif., Colo., Fla., Idaho, Ill., Ohio, Ore., Utah and Wash. from September 2011 through September 2012 for between $100 and $200.

Manufactured in: China

Remedy: Consumers should immediately contact the retailer or Easy-Rest to receive a free zippered mattress liner to be placed over the foam core and under the existing mattress cover.

Consumer Contact: Easy-Rest Inc.; collect at (602) 442-6609 from 9 a.m. to 5 p.m. PT Monday through Friday, online at http://www.easyrestinc.com under “Important Recall Notice” or email at easyrestinfo@gmail.com for more information.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13069.html

Fu San Machinery Recalls Low Lead Ball Valves Installed in Flammable Gas Lines Due to Fire and Explosion Hazards

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Low Lead Ball Valve/Shut-Off Gas Valves

Units: About 163,000

Importer/Distributor: Aqualine, of Corona, Calif.; AY McDonald Manufacturing Co., of Dubuque, Iowa; FNW, of Portland, Ore.; Hodes Co., of Kansas City, Mo.; Legend, of Auburn Hills, Mich; Leonard Valve, of Cranston, R.I. and Mueller of Memphis, Tenn.

Manufacturer: Fu San Machinery Co. Ltd., of Taiwan

Hazard: The valves can crack and cause gas to leak. This poses fire and explosion hazards.

Incidents/Injuries: None reported.

Description: This recall involves seven brands of sweat and threaded, low lead ball valves used in flammable gas piping systems used in commercial or residential settings. They are brass shut-off valves assembled with pipe lines of 3/4 inch and 1 inch and have a date code 1103 through 1112, in YYMM format, where YY is the year and MM is the month. The date code is located under the valve handle. The pipe size is marked on the body of the valve. Fu San’s logo and the “O” marking designated for low lead valves are marked on the valves’ neck under where the handle assembles. The word “Taiwan” appears on the handle as a country of origin marking. The valves were sold under the following brand names and model numbers:

Brand Name	Model Number	Valve Dimensions/ Sweat or Threaded Valves
Aqualine	BBV-075-LF	3/4 inch/Threaded
	BBV-075S-LF	3/4 inch/Sweat
	BBV-100-LF	1 inch/Threaded
	BBV-100S-LF	1 inch/Sweat
AY McDonald	72032S	3/4 inch/Sweat
	72032T	3/4 inch/Threaded
FNW	FNWX410AF	3/4 inch/Threaded
	FNWX410AG	1 inch/Threaded
	FNWX411F	3/4 inch/Sweat
	FNWX411G	1 inch/Sweat
Hodes Co.	40-642	1 inch/Threaded
	40-662	1 inch /Threaded
	40-677	3/4 inch/Sweat
	40-687	3/4 inch/Sweat
	40-678	1 inch/Sweat
	40-688	1 inch/Sweat
Legend	T1002NL	1 inch/Threaded
Leonard Valve	83503	3/4 inch/Sweat
	83504	1 inch/Sweat
	83538	3/4 inch/Threaded
	83539	1 inch/Threaded
Mueller	107-844NL	3/4 inch/Sweat

Sold by: Fu San Machinery directly to seven distributors nationwide from April 2011 through January 2012 for between $13 and $20.

Manufactured in: Taiwan

Remedy: Consumers should turn off the gas supply until a replacement gas valve has been professionally installed. Consumers should contact Danville Sales which, on behalf of Fu San Machinery, will provide compensation of $300 to reimburse customers for costs incurred to remove and return the valve and for purchasing and installing a replacement valve. The affected valve should be returned to the Danville Sales Office for Fu San Machinery with a photo depicting the valve in the gas line before removal and showing the date code on the valve, along with the address and details of the location where the valve was installed. The requested information, the recalled valve, and the consumer name and address should be sent to the address in the Consumer Contact paragraph. Upon receipt, Fu San will reimburse customers in the amount of $300.

Consumer Contact: Danville Sales Office for Fu San Machinery, 1101 N. Kings Hwy, Cherry Hill, NJ 08034; toll-free at (855) 779-9200, from 9 a.m. to 5 p.m. ET Monday through Friday, or online at www.fsvalve.com.tw, then click on the Safety Recall Notice button for more information.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13064.html

Dream On Me Recalls Bath Seats Due to Drowning Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed. It is illegal to resell or attempt to resell a recalled consumer product.

Name of Product: Dream On Me Bath Seats

Units: About 50,000

Importer: Dream On Me Inc., of South Plainfield, N.J.

Hazard: The bath seats fail to meet federal safety standards, including the requirements for stability. Specifically, the bath seats can tip over, posing a risk of drowning to babies.

Incidents/Injuries: CPSC and Dream On Me have received five reports involving these bath seats, including a report of a near drowning involving a 12-month-old baby girl. The baby did not require medical treatment.

Description: The recall includes all Dream On Me bath seats. Some of the seats have a Dream On Me label under or on the rear of the bath seats. Model numbers are also printed underneath the bath seats and on the product packaging and include the following product models and colors:

Model Name	Model Number	Color
Baby Bath Seat	251B, 251O, 251P, 251Y	Green with orange tray, orange with beige tray or yellow with green tray
Ultra 2 in 1 Infant Bath Tub and Toddler Bath Seat	252B, 252P	Solid pink, blue or white body and a blue or pink bottom
Niagra Baby Bath Seat	253B, 253G, 253P, 253Y	White or blue body with a green, pink or orange insert

Sold at: Small retail stores and online retailers including Amazon.com and Wayfair.com from July 2012 through September 2012 for between $25 and $40.

Manufactured in: China

Remedy: Consumers should stop using the recalled bath seats immediately and contact Dream On Me to receive a free replacement bath tub.

Consumer Contact: Dream On Me toll-free at (877) 201-4317 from 9 a.m. to 5 p.m. ET Monday through Friday or online at www.dreamonme.com and click on Recalls for more information.

Source:  http://www.cpsc.gov/cpscpub/prerel/prhtml13/13061.html

Travel Time As “Working Time” Under The Fair Labor Standards Act

Nonexempt employees are entitled to overtime under federal law if they work more than forty hours in a given week.  Questions often arise concerning which activities count as working hours and which don’t.  One area of frequent dispute is “travel time,” or the time an employee spends getting from one place to another while working.

Daily time spent traveling from home to a single worksite, whether it’s a fixed worksite or one that changes daily, does not usually count as working time, as long as the employee returns home (or is done working and) by the end of the employee’s regular workday and doesn’t have to stay overnight somewhere else.  One exception to that rule is for employees who are called back to work for an emergency after they have returned home or finished working for the day.  Even if the employee doesn’t have to travel out of town for the emergency, emergency post-shift calls to respond to a situation for an employer’s customer (for example, plumbers and HVAC technicians) are considered working time.  If the employee simply has to return to the employee’s regular worksite to respond to the emergency, the employee won’t necessarily be able to claim that travel as working time.

Employees who stay in their hometown during the workday but travel from job site to job site are entitled to count the travel time between job sites as working time.  So employees who work in service or repairs and make calls at homes or businesses must be paid for their time spent going from assignment to assignment.  If employees first have to stop at a central location to pick up tools or receive assignments before going to their first assignment, the time spent going from the central location to the first assignment counts as working time, as does all travel between assignments after that.

This travel time question becomes more complicated when an employee is asked to travel out-of-town.  At the point, the employee will be spending more time traveling than simply going to work and back again.  For a one-day trip out of town, with no overnight stay, most of the time spent traveling from one city to another, and back again, would count as working time.  For example, an employee who works in Des Moines and is told to spend the day at an assignment in Cedar Rapids will be able to count much of the four-hour round-trip as working time.

Employees are also entitled to be paid for their travel time when traveling away from home.  “Away from home” means that the employee has to spend the night away from home because of work.  In that situation, any travel that occurs during normal working hours is considered working time and must be compensated.  Travel away from home that occurs outside the employee’s regular working hours does  not count as working time.  Also, if travel occurs on an extra day, say a Saturday, that the employee normally doesn’t work, all travel that occurs that day during the employee’s normal shift also counts as working time.  So if an employee who normally works a 9-5 shift Monday through Friday is asked to travel away from home on business, all travel time that occurs between 9-5 is compensable, even if travel is on a Saturday or Sunday, days that the employee normally wouldn’t work.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.