Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80/news/devatashrm102017 Pamela Devata quoted in SHRM http://www.seyfarth.com:80/news/devatashrm102017 Fri, 20 Oct 2017 00:00:00 -0400 <p> Pamela Devata was quoted in an October 20 story from SHRM, &quot;Employers Should Share All Background Check Reports Before Revoking Job Offers.&quot; on how a federal judge ruled an employer did not comply with requirements of the Fair Credit Reporting Act (FCRA) when it failed to send a rejected candidate a final background check report and required notices. Devata said that the court&#39;s ruling does not equate to a blanket requirement that an employer provide all copies of background reports to rejected job applicants or terminated employees. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/applicants-background-checks-fcra-adverse-action.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/hoffmanbloomberg102017 Valerie Hoffman quoted in Bloomberg http://www.seyfarth.com:80/news/hoffmanbloomberg102017 Fri, 20 Oct 2017 00:00:00 -0400 <p> Valerie Hoffman was quoted in an October 20 story from Bloomberg, &quot;Weinstein Saga Has Business Leaders Calling Their Lawyers,&quot; on how the Weinstein case is a prime example of how corporate culture can keep bad behavior, especially by big names, under the radar. Hoffman said that most boards take very seriously their role as stewards of the organization and the need for them to have an independent view of issues that arise in the course of the business. You can read the <a href="https://biglawbusiness.com/weinstein-saga-has-business-leaders-calling-their-lawyers/">full article here</a>.</p> http://www.seyfarth.com:80/publications/PEG102017 "Naming and Shaming” Bill is Dead: California Governor Rejects Gender Pay Posting Requirement http://www.seyfarth.com:80/publications/PEG102017 Fri, 20 Oct 2017 00:00:00 -0400 <p> <em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"><strong>Seyfarth Synopsis:</strong></em><span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">&nbsp;</span><em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">California&rsquo;s governor recently vetoed the Gender Pay Gap Transparency Act (AB 1209), which would have required California employers to produce pay data, without consideration of legitimate reasons for differences in pay, to the Secretary of State, who then would have publicly published the data on the internet.<em>&nbsp;</em></em></p> <p> <em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"><strong>To view the full post,&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102017-LE.pdf" style="text-decoration-line: none; color: rgb(0, 164, 228); cursor: pointer;">click here.</a></strong></em></p> http://www.seyfarth.com:80/publications/MA102017-LE If Pain, Yes Gain—Part XXXVII: NYC Set to Expand Earned Sick Time Act http://www.seyfarth.com:80/publications/MA102017-LE Fri, 20 Oct 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> On October 17, 2017, the New York City Council passed an amendment to the city&rsquo;s Earned Sick Time Act that, if signed by Mayor Bill de Blasio as expected, would allow eligible employees to use paid sick time for &ldquo;Safe Time&rdquo; reasons related to family offense matters, sexual offenses, stalking, or human trafficking, as well as expand the Act&rsquo;s definition of covered &ldquo;family member.&rdquo;</em></p> <p> Earlier this week, the New York City Council passed an amendment (Int. No. 1313-A) to the city&rsquo;s Earned Sick Time Act (&ldquo;ESTA&rdquo;) that would align ESTA with many of the country&rsquo;s other existing state and local paid sick leave laws by allowing eligible employees to use paid sick time for &ldquo;safe time&rdquo; reasons.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; In particular, eligible employees would be entitled to use paid sick time for absences related to their own or a covered family member&rsquo;s status as a victim of a family offense matter, sexual offense, stalking, or human trafficking. New York City Mayor Bill de Blasio is expected to sign the amendment in the coming days.</p> <p> ESTA has been in effect since April 2014. Over the last three and half years, New York City employers have dealt with a number of substantive updates to the Act, whether through amended paid sick leave rules, FAQs or other administrative guidance.&nbsp; Despite these multiple and seemingly regular updates to employers&rsquo; ESTA obligations, the current ESTA amendment would impose an additional array of substantive burdens on employers.&nbsp; The amendment will become effective 180 days after it is signed into law.</p> <p> As a reminder, ESTA allows eligible employees to accrue one hour of paid sick leave for every 30 hours that they work, up to 40 hours of paid sick leave per year. Under an accrual system, up to 40 hours of accrued, unused paid sick leave carries over at year-end. However, regardless of carryover balances, employers are only required to allow employees to use a maximum of 40 hours of paid sick time in a given year. For more information on ESTA, please see our earlier posts <a href="http://www.seyfarth.com/publications/MA022316-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM011216-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM011215-LE">here </a>and <a href="http://www.seyfarth.com/publications/MA0303LE">here</a>.</p> <p> Here are the highlights of the impending ESTA amendment:</p> <p> <strong>&ldquo;Safe Time&rdquo;</strong></p> <p> As stated above, the most notable amendment to ESTA is the introduction of &ldquo;safe time.&rdquo; In fact, assuming the amendment goes into effect as expected, the title of New York City&rsquo;s paid sick leave ordinance will change to the &ldquo;Earned Safe and Sick Time Act&rdquo; or &ldquo;ESSTA.&rdquo;</p> <p> The amendment would allow ESTA paid time to be used for the following &ldquo;safe time&rdquo; reasons for employees or their covered family members (see below for updates on ESTA&rsquo;s definition of covered &ldquo;family member&rdquo;) who are victims of a family offense matter, sexual offense, stalking, or human trafficking:</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee&rsquo;s family members from future family offense matters, sexual offenses, stalking, or human trafficking;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to file a complaint or domestic incident report with law enforcement;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to meet with a district attorney&rsquo;s office;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to enroll children in a new school; or</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee&rsquo;s family member or to protect those who associate or work with the employee.</p> <p> The amendment includes several new definitions related to &ldquo;safe time,&rdquo; including definitions of &ldquo;family offense matter,&rdquo; &ldquo;human trafficking,&rdquo; &ldquo;sexual offense,&rdquo; and &ldquo;stalking.&rdquo;&nbsp; The &ldquo;family offense matter&rdquo; definition is considerably broad and covers a wealth of acts or threats that may constitute any one of the following &ldquo;between spouses or former spouses, [ ] parent and child or [ ] members of the same family or household&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a>:</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; disorderly conduct;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; harassment in the first or second degree, or aggravated harassment in the second degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; sexual misconduct, forcible touching, or sexual abuse in the second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; stalking in the first, second, third or fourth degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; criminal mischief, or menacing in the second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; reckless endangerment;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; strangulation in the first or second degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; criminal obstruction of breathing or blood circulation;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; assault in the second or third degree, or an attempted assault;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; identity theft in the first, second or third degree;</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; grand larceny in the third or fourth degree; or</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; coercion in the second degree as set forth in subdivisions 1, 2 and 3 of section 135.60 of the penal law.</p> <p> As noted above in Footnote 1, a majority of other existing paid sick leave laws also contain some form of &ldquo;safe time&rdquo; protected absences. However, the scope of &ldquo;safe time&rdquo; under the ESTA amendment is more detailed and cumbersome than the &ldquo;safe time&rdquo; provisions under most other paid sick leave laws. Accordingly, New York City employers with standalone ESTA policies or paid sick leave policies that cover ESTA and additional sick leave laws and ordinances would be wise to review their policies in the coming months to ensure compliance with ESSTA&rsquo;s new &ldquo;safe time&rdquo; component.</p> <p> <strong>Covered Family Members</strong></p> <p> Another significant development that employers must be aware of is that the ESTA amendment would expand the definition of covered &ldquo;family member&rdquo; for both sick and safe time. &nbsp;In particular, the expanded definition of &ldquo;family member&rdquo; not only includes the current list of (a) child, (b) spouse, (c) domestic partner, (d) parent, (e) sibling, (f) grandchild, (g) grandparent, and (h) the child or parent of an employee&rsquo;s spouse or domestic partner, but it also includes <strong><em>(i) any other individual related by blood to the employee, and (j) any other individual whose close association with the employee is the equivalent of a family relationship</em></strong>. The term &ldquo;equivalent of a family relationship&rdquo; is not defined by the amendment.</p> <p> This amendment is noteworthy because it goes beyond just &ldquo;safe time&rdquo; and expands the coverage for the use of sick time as well. Specifically, when eligible employees use paid sick leave under ESSTA for non-safe time reasons (i.e., the original reasons for use under ESTA, such as to care for a family member who needs medical diagnosis, care or treatment of a mental or physical illness, injury or health condition or who needs preventive medical care), they will now be able to use the leave to care for any blood relative and anyone who the employee claims has a close enough relationship with the employee such that they are like family.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> <strong>Reasonable Documentation</strong></p> <p> As with uses of ESTA leave for &ldquo;sick time&rdquo; reasons, the ESTA amendment would allow employers to require reasonable documentation that the use of safe time was for a permitted purpose when an employee has been absent for more than three consecutive work days.&nbsp;</p> <p> Reasonable documentation for purposes of &ldquo;safe time&rdquo; would include: (a) documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider from whom the employee or that employee&rsquo;s family member has sought assistance related to the absence; (b) a police or court record; or (c) a notarized letter from the employee explaining the need for such time.</p> <p> Additionally, the ESTA amendment expressly prohibits employers from requiring that any such documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.</p> <p> <strong>Notice Requirement</strong></p> <p> The City will create an updated model notice addressing &ldquo;safe time&rdquo; for employers to use in satisfying their notice obligations under ESSTA.&nbsp; Employees hired on or after the effective date of ESSTA (again, 180 days after the amendment is signed into law) must be provided a notice that, among other things, informs them of their right to &ldquo;safe time&rdquo; under ESSTA.&nbsp; Furthermore, the amendment requires employers to give existing employees an updated ESSTA notice about their right to &ldquo;safe time&rdquo; within 30 days of the amendment going into effect.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> New York City employers should track whether the ESTA amendment is formally signed into law, as expected, and once confirmed take steps to ensure that they will be able to achieve full compliance by the amendment&rsquo;s effective date, likely in mid-Spring 2018.&nbsp; These are among the specific actions to consider:</p> <ul> <li style="margin-left: 0.5in;"> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the ESTA amendment.</li> <li style="margin-left: 0.5in;"> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the ESTA amendment.</li> <li style="margin-left: 0.5in;"> Monitor the New York City Department of Consumer Affairs website for information on the amendment, including proposed and final regulations.</li> <li style="margin-left: 0.5in;"> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> There currently are eight states with paid sick leave laws that are either in effect or scheduled to go into effect in the coming months&mdash;Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, Washington and Rhode Island. There also are paid sick leave requirements for certain federal contractors and subcontractors. In addition, there are more than 30 municipalities that have passed paid sick leave ordinances, including San Francisco, Washington DC, Seattle, Philadelphia, Los Angeles, Chicago, San Diego, and Minneapolis.&nbsp; Of the 44 existing paid sick leave laws and ordinances (some cities have multiple sick leave ordinances),&nbsp;30 of them either explicitly or through a more generous state law permit employees to use paid sick leave for some form of &ldquo;safe time.&rdquo;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The ESTA amendment also includes a definition of &ldquo;member of the same family or household.&rdquo; Notably, this term is defined to cover an extensive list of individuals, such as (i) persons related by consanguinity or affinity, (ii) persons legally married to or in a domestic partnership with one another, (iii) persons formerly married to or in a domestic partnership with one another regardless of whether they still reside in the same household, (iv) persons who have a child in common, regardless of whether such persons have been married or domestic partners or have lived together at any time, and (v) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Several recently passed paid sick leave laws and ordinances, including the laws in Arizona, Chicago and Los Angeles, contain similar &ldquo;blood or close association&rdquo; family member definitions.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/rodriguezmcgurnbna101917 Leon Rodriguez and Kristin McGurn authored an article in Bloomberg BNA Health Law Reporter http://www.seyfarth.com:80/publications/rodriguezmcgurnbna101917 Thu, 19 Oct 2017 00:00:00 -0400 <p> Leon Rodriguez and Kristin McGurn authored an October 19 article in Bloomberg BNA Health Law Reporter, &quot;Immigration Enforcement Activity at Hospitals and Other Health-Care Facilities: How Much Protection Does the DHS Sensitive Locations Policy Offer?&quot; The article encourages healthcare providers to prepare for possible enforcement activity, and outlines best practices. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Rodriguez_McGurn_BNA_101917.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberg101917 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg101917 Thu, 19 Oct 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an October 19 story from Bloomberg, &quot;Who&#39;s the Boss? Union Organizers Target Private Equity Owners.&quot; Babson said that it&rsquo;s a calculus on both sides for pensions and private equity firms. He said that the private equity funds are not going to thumb their noses at these pension funds. However, Babson said, the high returns private equity can generate make pensions hesitant to actually cut ties. You can read the <a href="https://www.bloomberg.com/news/articles/2017-10-19/who-s-the-boss-union-organizers-target-private-equity-owners">full article here</a>.</p> http://www.seyfarth.com:80/news/hendricksonap101917 Christine Hendrickson quoted in the Associated Press http://www.seyfarth.com:80/news/hendricksonap101917 Thu, 19 Oct 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in an October 19 story from the Associated Press, &quot;California makes it illegal for employers to ask about salary history,&quot; on Assembly Bill 168 which will go into effect January 1, 2018 banning employers in California from asking applicants for their previous salaries and benefits. Hendrickson said that she would not be surprised if we see other states and cities consider it. You can read the <a href="http://www.foxla.com/news/local-news/california-makes-it-illegal-for-employers-to-ask-about-salary-history">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM101817-LE Trump’s Third Travel Ban Suspended In Part http://www.seyfarth.com:80/publications/OMM101817-LE Wed, 18 Oct 2017 00:00:00 -0400 <p class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong> Federal judges in Hawaii and Maryland have issued orders blocking major portions of President Trump&rsquo;s September 24, 2017 Presidential Proclamation.</em><o:p></o:p></p> <p class="BodySingle"> The Presidential Proclamation is the third in a series of executive actions ostensibly aimed at protecting the U.S. from terrorism and other national security threats through barring or limiting U.S. travel for nationals of eight countries.&nbsp; The first such action, published on January 27, 2017, was revoked in the wake of several successful legal challenges.&nbsp; It was replaced on March 6, 2017 with a more narrowly tailored version.&nbsp; Challenges to this second version prevailed in Hawaii Federal District Court and also before the Ninth Circuit, and they are now being considered at the Supreme Court.<o:p></o:p></p> <p class="BodySingle"> On October 17, 2017, just one day before the Presidential Proclamation was set to take effect, a federal judge in Hawaii called into question the Trump administration&rsquo;s claim that it will enhance national security.&nbsp; The judge accordingly ruled that the plaintiffs&rsquo; challenge to the Proclamation will likely prevail.&nbsp; He further found that, unless enjoined, the Proclamation will cause the plaintiffs to suffer irreparable harm in the form of familial separation, loss of access to potential foreign students who would attend schools in Hawaii, and diminished vibrancy at Muslim religious associations within the state.<o:p></o:p></p> <p class="BodySingle"> In the early morning hours of October 18, 2017, a federal judge in Maryland also ruled that the plaintiffs are likely to prevail, would suffer irreparable harm, and further opined that the Proclamation amounted to an unconstitutional Muslim ban.&nbsp; The judge pointed to several of President Trump&rsquo;s disparaging campaign speeches and tweets concerning Muslim immigrants to support his conclusion. <o:p></o:p></p> <p class="BodySingle"> As a result of the rulings in Hawaii and Maryland, &nbsp;all U.S. travel restrictions imposed against nationals of Iran, Libya, Yemen, Chad, Somalia, and Syria have been lifted.&nbsp; However, as the restrictions applicable to nationals of Venezuela and North Korea were not challenged in either Hawaii or Maryland, they remain intact.<o:p></o:p></p> <p class="BodySingle"> The Trump administration has signaled that it will challenge these decisions and further developments will likely emerge rapidly.&nbsp; Individuals from restricted countries who are considering travel to or from the U.S. should exercise caution and should anticipate increased screenings, potential delays, or even refusal of admission.<o:p></o:p></p> http://www.seyfarth.com:80/publications/CDL101817 Spoliation and Southern Rock http://www.seyfarth.com:80/publications/CDL101817 Wed, 18 Oct 2017 00:00:00 -0400 <p> A trial court opinion involving allegations of spoliation of text messages on a mobile phone in the Southern District of New York has gotten attention because of the application of legal preservation standards. Ronnie Van Zant, Inc. v. Pyle 2017 BL 3018, S.D.N.Y. 17 Civ. 3360 (RWS), 8/23/17) is an interesting read, not just because it involves odd characters, intrigue and drama surrounding one of the greatest Southern Rock bands of all time. It also includes some instructive information about the application of the &ldquo;practical ability&rdquo; test for preservation, and the uphill battle for witnesses who lose credibility in testimony about what they did and did not do in a preservation effort.<br /> <br /> <a href="http://www.carpedatumlaw.com/2017/10/spoliation-southern-rock/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA101717-LE Workers’ Compensation Ruling Given Preclusive Effect In Discrimination Lawsuit http://www.seyfarth.com:80/publications/MA101717-LE Tue, 17 Oct 2017 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i></b>: <i>In</i> <i>Ly v. County of Fresno,</i> <i>the Court of Appeal held that correctional officers&rsquo; claims for race, ethnicity, and national origin discrimination were barred because the claims had been previously denied in workers&#39; compensation proceedings.</i></p> <p class="BodySingle"> <b>The Facts</b><o:p></o:p></p> <p class="BodySingle"> Three Laotian correctional officers&mdash;Va Ly, Travis Herr, and Pao Yang&mdash;alleged racial and national origin discrimination, harassment, and retaliation by their employer, the County of Fresno.&nbsp; <o:p></o:p></p> <p class="BodySingle"> The officers sued the County under the Fair Employment and Housing Act (FEHA) while also pursuing workers&rsquo; compensation remedies through the Workers&rsquo; Compensation Appeals Board (WCAB). In the WCAB proceedings, administrative law judges denied the officers&rsquo; claims upon finding that the County&rsquo;s actions were non-discriminatory, good faith, personnel decisions. Then, in the FEHA action, the County moved for summary judgment, arguing that the WCAB rulings were binding. <o:p></o:p></p> <p class="BodySingle"> The trial court granted summary judgment, ruling that the FEHA claims were barred. The officers appealed.<o:p></o:p></p> <p class="BodySingle"> <b>The Court of Appeal&rsquo;s Decision<o:p></o:p></b></p> <p class="BodySingle"> A result in one case can be binding in another, under the doctrine of res judicata (claim preclusion). The doctrine applies if (1) a decision in a former proceeding is final and on the merits, (2) the present proceeding is based on the same cause of action as the former proceeding, and, (3) the parties in both the former and present proceeding are the same. To see if the same cause of action is involved in both cases, courts look to the primary right theory: violation of a right to be free from a particular injury gives rise to a single cause of action.<o:p></o:p></p> <p class="BodySingle"> Here, the Court of Appeal first considered whether both cases (the WCAB proceeding and the FEHA lawsuit) implicated the same primary right: The workers&rsquo; compensation cases sought redress for employment actions allegedly caused by unlawful discrimination, harassment, and retaliation, while the FEHA case alleged the same injuries&mdash;psychiatric injuries caused by discriminatory, harassing, and retaliatory workplace acts. Because the effect of the employment actions on the officers&rsquo; mental states was at the heart of both cases, the harm suffered was identical and, therefore, the same primary right was implicated.<o:p></o:p></p> <p class="BodySingle"> Next, the Court of Appeal considered whether the primary rights in the two proceedings differed on the ground that the primary right in the WCAB was compensation for work-related injuries regardless of fault, while the primary right in the FEHA action was to be free of employment discrimination. The Court of Appeal held that in both proceedings the officers sought to vindicate one primary right: the right to work in an environment free of discrimination, harassment, and retaliation. <o:p></o:p></p> <p class="BodySingle"> The Court of Appeal concluded by noting that the differing burdens of proof required in the WCAB and under FEHA are immaterial, because the County actually disproved unlawful discrimination in the WCAB proceedings. <o:p></o:p></p> <p class="BodySingle"> <b>What <i>Ly</i> Means for Employers<o:p></o:p></b></p> <p class="BodySingle"> Employers should know that when two tribunals have jurisdiction over the same claims, and neither party objects to jurisdiction, then the first final judgment from one tribunals can bind the parties in the second tribunal. This prospect should affect how employers choose to adjudicate the two matters.<o:p></o:p></p> http://www.seyfarth.com:80/news/dulik101717 Seyfarth Adds Construction Litigator Gregg Dulik in San Francisco http://www.seyfarth.com:80/news/dulik101717 Tue, 17 Oct 2017 00:00:00 -0400 <p> SAN FRANCISCO (October 17, 2017) -- Seyfarth Shaw LLP announced today that Gregg Dulik has joined the firm&rsquo;s Litigation department and Construction practice group as a partner in San Francisco. Dulik comes from Sedgwick LLP, where he served as a partner in its Construction practice group in San Francisco.</p> <p> For 30 years, Dulik&rsquo;s practice has focused on construction law. He has successfully litigated complex matters facing owners, contractors and designers in all aspects of the public and private construction process. He has unparalleled experience handling bid protests, addressing licensing issues, and drafting and negotiating construction and design contract documents.</p> <p> &ldquo;Gregg is a talented multi-faceted construction lawyer and very skilled litigator, having achieved tremendous results for his clients in numerous jury trials, arbitrations and mediations,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;We are thrilled to welcome Gregg as we continue to expand our Construction practice nationally.&rdquo;</p> <p> Dulik has handled litigation on a wide range of construction projects, including commercial buildings, multi-unit housing developments, power plants, hospitals, hotels, schools, parking structures, military installations, sports stadiums, jails, corporate campuses, bridges, highways, tunnels, high-end private residences, and manufacturing and processing facilities. Dulik began his career at preeminent construction law firm Thelen LLP, where he practiced for over 20 years.</p> <p> &ldquo;Gregg is an outstanding lawyer who is well-known to the construction industry on the West Coast,&rdquo; said Christian Rowley, managing partner of Seyfarth&rsquo;s San Francisco office. &ldquo;He adds great depth to our Construction practice in San Francisco, and we&rsquo;re excited to see his practice thrive on the firm&rsquo;s national platform.&rdquo;</p> <p> A frequent writer and speaker on construction topics, Dulik received his J.D. from Boston University Law School and earned a B.A., with honors, from the University of California, Berkeley. He is a member of the Legal Advisory Committee of the Associated General Contractors of California.</p> <p> With more than 30 attorneys, Seyfarth&rsquo;s Construction practice group is one of the largest and most experienced in the United States. The team represents clients&mdash;developers, contractors, owners, architects, engineers, subcontractors and lenders&mdash;in all phases of construction projects, from inception to completion, domestically and abroad. The collaborative group includes LEED certified professionals, licensed architects and engineers, as well as attorneys adept at BIM tools and public contracting.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> <strong>Contacts: </strong></p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/bartlettyoungdr101717 Brett Bartlett and Kevin Young quoted in the Daily Report http://www.seyfarth.com:80/news/bartlettyoungdr101717 Tue, 17 Oct 2017 00:00:00 -0400 <p> Brett Bartlett and Kevin Young were quoted in an October 17 story from the Daily Report, &quot;GSU Law Starts Big Data Lab as Industry Girds for Disruption,&quot; on how the lab is already attracting interest from Seyfarth. Bartlett sees mining the lab&rsquo;s database of federal employment cases for predictive patterns as a high-tech way to help clients mitigate risk. Young said the list of what the firm might dig into is endless, adding that the data could help the firm advise clients on litigation tactics.</p> http://www.seyfarth.com:80/publications/CP101617 2017 Labor & Employment Legislative Update: It’s Finally Over! (For Now…) http://www.seyfarth.com:80/publications/CP101617 Mon, 16 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: New statutory obligations for California employers in 2018 will include prohibitions on inquiries into applicants&rsquo; salary and conviction histories, expanding CFRA to employees of smaller employers, expansion of mandatory harassment training to include content on gender identity, gender expression, and sexual orientation, and new immigration-related restrictions and obligations.<br /> <br /> <a href="http://www.calpeculiarities.com/2017/10/16/2017-labor-employment-legislative-update-its-finally-over-for-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS101617 Supreme Court Refuses to Hear Password-Sharing Case, Leaving Scope of Criminal Liability Under Computer Fraud and Abuse Act Unclear http://www.seyfarth.com:80/publications/TS101617 Mon, 16 Oct 2017 00:00:00 -0400 <p> On Tuesday, October 10, 2017, the United States Supreme Court denied certiorari in Nosal v. United States, 16-1344. Nosal asked the Court to determine whether a person violates the Computer Fraud and Abuse Act&rsquo;s prohibition of accessing a computer &ldquo;without authorization&rdquo; when using someone else&rsquo;s credentials (with that other user&rsquo;s permission) after the owner of the computer expressly revoked the first person&rsquo;s own access rights. In denying certiorari, the Court effectively killed the petitioner&rsquo;s legal challenge to his conviction in a long-running case that we have extensively covered here, here, here, here, here, here, and here (among other places). The denial of certiorari leaves further development of the scope of the CFAA in the hands of the lower courts.<br /> <br /> <a href="http://www.tradesecretslaw.com/2017/10/articles/computer-fraud-and-abuse-act/supreme-court-refuses-to-hear-password-sharing-case-leaving-scope-of-criminal-liability-under-computer-fraud-and-abuse-act-unclear/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM101617-LE Third Time’s The Charm For California Salary History Ban Legislation http://www.seyfarth.com:80/publications/OMM101617-LE Mon, 16 Oct 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp; After <a href="http://www.calpeculiarities.com/2017/04/18/2017-california-labor-and-employment-legislative-update-what-to-watch/" rel="noopener noreferrer" target="_blank">two previous failed attempts</a>, California joins seven other U.S. jurisdictions to prohibit inquiries into an applicant&rsquo;s salary history.&nbsp; Read on for a recap of the new law.</em></p> <p> With Governor Jerry Brown signing <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB168" rel="noopener noreferrer" target="_blank">AB 168</a> into law today, California joins <a href="http://www.seyfarth.com/publications/OMM062317-LE" rel="noopener noreferrer" target="_blank">Delaware</a>, Puerto Rico, <a href="http://www.seyfarth.com/publications/OMM060817-LE2" rel="noopener noreferrer" target="_blank">Oregon</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2" rel="noopener noreferrer" target="_blank">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM040617-LE2" rel="noopener noreferrer" target="_blank">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM062317-LE" rel="noopener noreferrer" target="_blank">Philadelphia (currently pending legal challenge)</a>, and its own city of <a href="http://www.seyfarth.com/publications/OMM071317-LE" rel="noopener noreferrer" target="_blank">San Francisco</a> in prohibiting employers from asking job applicants for &ldquo;salary history information.&rdquo; This term includes both compensation and benefits.</p> <p> AB 168 will add section 432.3 to the California Labor Code. While Section 432.3 will prohibit employers from asking about or relying on prior salary information in deciding whether to offer a job and in deciding how much to pay, Section 432.3 will give employers a pass when an applicant, &ldquo;voluntarily and without prompting,&rdquo; discloses salary history information. In that case, Section 432.3 will not prohibit the employer from relying upon the volunteered information in setting the applicant&rsquo;s starting salary. But note that the California Fair Pay Act (Lab. Code &sect; 1197.5(a)(2)) forbids employers to rely on prior salary, by itself, to justify any disparity in pay.</p> <p> Section 432.3 will also make California the first jurisdiction in the country to require that employers provide applicants with the pay scale for a position, upon &ldquo;reasonable request.&rdquo;</p> <p> Section 432.3 will apply to &ldquo;all employers&rdquo;&mdash;both private and public&mdash;and will become effective January 1, 2018.</p> http://www.seyfarth.com:80/publications/HCRMA-101317 Issue 113: Are Reports of ObamaCare's Death Greatly Exaggerated? http://www.seyfarth.com:80/publications/HCRMA-101317 Fri, 13 Oct 2017 00:00:00 -0400 <div> <div> <em>This is the one hundred and thirteenth issue in our series of alerts for employers on selected topics on health care reform. (<a href="http://www.seyfarth.com/publications/A-Summary-of-Health-Reform">Click here</a> to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> The Republicans made a last ditch effort to repeal the Affordable Care Act (ACA) the last week of September when they floated the latest iteration of proposed legislation under the Graham-Cassidy bill. Sens. Lindsey Graham (SC) and Bill Cassidy (LA) introduced a bill that would have altered federal funding by eliminating the ACA&rsquo;s subsidized insurance coverage and Medicaid expansion, and instead give states fewer funds in the form of block grants. However, the September 30th deadline to pass legislation with a simple majority came and went without the bill being called for a vote after too many Republican senators came out against it.&nbsp;</div> <div> &nbsp;</div> <div> That left many wondering if the health care reform efforts were dead with the attention of Congress turning to the long-promised tax reform. However, the Trump administration has been fairly active in doing what it can to cut back on the ACA, with rule changes and executive orders that change the ACA landscape.&nbsp;</div> <div> &nbsp;</div> <h2> Contraceptive Mandate</h2> <div> &nbsp;</div> <div> The ACA mandates that health plans cover contraceptive care at 100% as a preventive service. Religious employers, non-profits with religious affiliations and certain closely-held corporations with sincerely held religious beliefs can opt-out of the coverage mandate. Click here to see our Alert on this topic. However, up until now, most for profit employers had to comply.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On October 6th, the Departments of Health and Human Services, Treasury, and Labor issued interim final rules that significantly broaden the scope of employers who can claim an exemption to the contraceptive mandate. Interestingly, the agencies skipped over the step of providing &ldquo;proposed&rdquo; rules, which would be subject to public comment, and went right to issuing interim final rules. (The government equivalent to the breach of etiquette created by skipping the triple dare and going right to the triple-dog dare.)&nbsp;</div> <div> &nbsp;</div> <div> The interim final rules now expand the types of employers who can claim an exemption from the contraceptive mandate to include other non-profits as well as for profit companies, including publicly-traded companies and institutions of higher learning who have either sincerely-held religious beliefs or a moral conviction (not based in any particular religious belief).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The agencies noted that other preventive services are not impacted by the new rules, and emphasized their belief that only 200 entities (who filed lawsuits challenging the contraceptive mandate) will be impacted. Therefore, they conclude that 99.9% of women will not lose their contraceptive coverage as a result of the new rules.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Almost immediately several lawsuits were filed challenging the new rules and alleging violations of the First Amendment by favoring certain religious views, discrimination against women, and issuance without following proper government procedures.&nbsp;</div> <div> &nbsp;</div> <h2> Health Insurance Rules&nbsp;</h2> <div> &nbsp;</div> <div> On October 12, 2017, President Trump signed an Executive Order directing regulatory agencies to rewrite rules in several areas of health care previously regulated by the ACA. The nature and scope of these intended changes will not be clear until the agencies issue such guidance (which is expected within 60&ndash;120 days), but they appear to direct the agencies to create greater flexibility primarily in the individual and small group insurance market. Specifically the Executive Order addresses three areas:</div> <div> &nbsp;</div> <h3> Association Health Plans&nbsp;&nbsp;</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> Many of the ACA&rsquo;s reforms only impacted insured policies in the individual and small group markets (typically, the small group market includes employers with under 50 employees). These regulations, including community rating standards (requiring healthier populations to pay more to subsidize sicker populations), and the essential health benefits mandate (requiring all policies to cover certain core benefits) drove up the cost of insurance in what was previously an under-regulated market in many states. It also created a disconnect between small group policies, on one hand, and large group policies and self-funded plans, on the other, that were exempt from these standards and had more flexibility in plan design.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs the regulatory agencies to interpret ERISA more broadly to permit individuals and small employers to band together to form Association Health Plans (AHPs). While the executive order contained few details, we presume that regulatory guidance will address a few key elements:</div> <div> &nbsp;</div> <ul> <li> Current federal guidelines impose restrictions and reporting obligations on risk-pooling for unrelated employers and individuals (Multiple Employer Welfare Arrangements, or &ldquo;MEWAs&rdquo;). Notably, ERISA does not exempt MEWAs from state insurance regulations and many states prohibit MEWAs or more heavily regulate their activity. Presumably, regulatory guidance will create an opportunity for employers or individuals in a bona fide association to pool their risk in an insured (and potentially self-funded) arrangement while maintaining preemption from state insurance regulation.&nbsp; &nbsp;&nbsp;</li> <li> It also appears the order would exempt these AHPs from insurance mandates that otherwise apply in the small group market, including the community rating and essential health benefit mandates.&nbsp;&nbsp;</li> <li> Finally, the Executive Order suggests the agencies will permit employers to &ldquo;join together across State lines to offer coverage.&rdquo; It&rsquo;s unclear whether this directive is intended to simply permit unrelated employers in multiple different states to form a self-insured collective risk pool or to actually influence state insurance regulations that typically attach on a state-by-state basis.&nbsp; &nbsp;</li> </ul> <div> &nbsp;</div> <h3> Short-Term Limited Duration Health Insurance</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> ACA regulations had significantly limited the exemption allowing short-term, limited-duration health plans to avoid many ACA mandates (e.g., prohibition on dollar limits and preventive services mandate). The exemption was intended to provide greater flexibility for these types of policies, which generally served to bridge gaps between health insurance enrollments, such as when transitioning from one job to another. But regulators had become concerned that these policies were being marketed and used as long-term health insurance solutions (only without the otherwise applicable ACA protections). See Issue 100 in our alert series for more information on ACA rules relating to these benefits.&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs agencies to consider expanding coverage under these short-term insurance policies. It&rsquo;s unclear exactly how the agencies would interpret this directive, but one possibility is that the agencies could revert to pre-ACA guidelines (permitting enrollment in these policies for up to 12 months and renewal under certain circumstances).</div> <div> &nbsp;</div> <h3> Expanded Use of Health Reimbursement Accounts</h3> <div> &nbsp;</div> <div> <em><strong>Background:</strong></em> In 2013, the regulatory agencies issued guidance essentially prohibiting employers from reimbursing employees (on a pre-tax basis or otherwise) for individual insurance policies. As we described in Issue 73, the agencies viewed these stand-alone health reimbursement arrangements (HRAs) as health plans that contain prohibited annual dollar limits (i.e., the HRA balance). As we described in Issue 103, Congress later created a limited exemption permitting use of stand-alone HRAs, but only for small employers that met certain strict requirements.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Executive Order Response:</strong></em> The Executive Order directs the agencies to consider changes to HRAs so employers can make better use of them for their employees. Presumably, the Administration intends to direct agencies to broaden the already applicable small employer exemption to apply to larger employers and to ease existing limits on the amount that can be reimbursed through HRAs (currently, $4,950 for self-only coverage or $10,000 for family coverage). Depending on the scope of these new guidelines, this could potentially create an opportunity for employers to offer so-called &ldquo;defined contribution health plans&rdquo; in which the employer provides employees with a set amount of money to be used to buy an individual insurance policy (where the employer carries&nbsp;</div> <div> no risk).</div> <div> &nbsp;</div> <div> The breadth of this Executive Order leaves many unanswered questions including how far the agencies will attempt to go with these regulations and whether the Executive Order is within the scope of the Administration&rsquo;s executive authority. Further, this proposal has already created concern among insurance carriers and state insurance commissioners that it has the potential to dilute/sicken the insurance market risk pool and raise costs for the federal government (which subsidizes the state Marketplaces). Specifically, the AHP and short-term, limited duration guidelines could serve to lure healthier populations (with less upside risk) out of the insurance market. Further, the HRA guidelines could encourage employers with sick populations to shift those groups to the individual insurance market while limiting the employer&rsquo;s risk to a defined pot of money.</div> <div> &nbsp;</div> <h2> Cost-Sharing Subsidies</h2> <div> &nbsp;</div> <div> Taking further action to fulfill his promise to let ObamaCare fail, late on October 12th, President Trump finally acted on his long-standing threat to cease funding the cost-sharing subsidies on the public Marketplaces. While the ACA had directed these payments, it relied on Congress to appropriate the monies. When Democrats lost control of Congress during the Obama Administration, the Republican led Congress declined to allocate the funding, leaving the Obama Administration to do so through executive action. It was unclear whether the Obama Administration had the authority to do so, which was the stated basis for the Trump Administration cutting off these funds (i.e., it is the responsibility of Congress, not the President, to allocate these monies).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This action was taken in the face of both parties in Congress urging the administration to continue the payments to stabilize the markets in the near term. Insurance providers on the Marketplaces were already skittish about the continuation of the payments, which help cover the cost of those lower-income enrollees facing more costly health conditions. This was seen as a large reason for the rate hikes announced for 2018. The latest action could cause more insurers to pull out of the Marketplaces all together. Further, it&rsquo;s expected that some carriers will sue the Administration for the funding, which was promised (but not funded) by the ACA. More than half of the enrollees on the Marketplaces qualified for the cost-sharing payments this year, which are expected to cost about $7 billion. Further, earlier Congressional Budget Office scoring indicated it will actually cost the government significant amounts to cut the funding, because it will cause carriers to increase premiums significantly (which are subsidized by the government and for which funding has been allocated).&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> This latest Administration action could accelerate bipartisan discussions to allocate funding, although it comes during a busy time when Congress is attempting to move forward tax reform (with budget and debt ceilings fights looming in December).&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> We will continue to monitor these developments and Congressional action (if any) and keep you apprised of any further movement.&nbsp;</div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WC101317 Ongoing Debate Over Scope Of Workplace Bias Law http://www.seyfarth.com:80/publications/WC101317 Fri, 13 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: On October 5, 2017, U.S. Attorney General Jeff Sessions issued an agency memorandum stating that the language contained in Title VII of the Civil Rights Act of 1964, &ldquo;does not prohibit discrimination based on gender identity per se, including transgender status.&rdquo; It represented a head-snapping pivot of the position of the U.S. Department of Justice. In this video, Jerry Maatman of Seyfarth Shaw, LLP gives blog readers an overview of the recent history regarding legal interpretation of Title VII. Jerry discusses potentially conflicting statutes and court rulings, as well as the ways in which this Department of Justice memorandum could affect businesses and those who litigate under Title VII.<br /> <br /> <a href="http://www.workplaceclassaction.com/2017/10/ongoing-debate-over-scope-of-workplace-bias-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/schwartzfenwickworkforce101317 Sam Schwartz-Fenwick quoted in Workforce http://www.seyfarth.com:80/news/schwartzfenwickworkforce101317 Fri, 13 Oct 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an October 13 story from Workforce, &quot;Jeff Sessions Reverses Civil Rights Law&rsquo;s Transgender Protection,&quot; on the Attorney General declaring that the federal civil rights law does not protect transgender people from workplace discrimination. Schwartz-Fenwick said that whenever the federal government reverses a stance it makes it challenging for the employers and the employer community to know what the law requires. You can read the <a href="http://www.workforce.com/2017/10/13/jeff-sessions-reverses-civil-rights-laws-transgender-protection/">full article here</a>.</p> http://www.seyfarth.com:80/news/meierlaw360101317 Steve Meier quoted in Law360 http://www.seyfarth.com:80/news/meierlaw360101317 Fri, 13 Oct 2017 00:00:00 -0400 <p> Steve Meier was quoted in an October 13 story from Law360, &quot;IRS To Take Deeper Look At Tax-Free Distributions,&quot; on the Internal Revenue Service announcing it will increase its scrutiny of certain stock distributions, mergers and liquidations and has begun reconsidering related issues that the agency has ruled favorably on in the past. Meier said that the announcement seems consistent with the pilot program the agency launched in September under which taxpayers can request letter rulings that interpret and apply tax laws to their specific set of facts regarding Section 355 distributions.</p> http://www.seyfarth.com:80/news/hendricksonlaw360101317 Christine Hendrickson quoted in Law360 http://www.seyfarth.com:80/news/hendricksonlaw360101317 Fri, 13 Oct 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in an October 13 story from Law360, &quot;4 Things For Employers To Know As Pay Inquiry Bans Crop Up.&quot; Hendrickson said that employers may not notice that these questions are included in their phone screen scripts, or may turn up applicants&rsquo; pay histories during background checks.</p> http://www.seyfarth.com:80/news/grossenbacherccr101217 Karla Grossenbacher quoted in the Cook County Record http://www.seyfarth.com:80/news/grossenbacherccr101217 Thu, 12 Oct 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in an October 12 story from the Cook County Record, &quot;Spike in IL lawsuits vs employers over fingerprints, other biometric data may be just the beginning.&quot; Grossenbacher said that businesses should look for more and more of these lawsuits in coming days thanks to a unique facet of Illinois&#39; law. She said one reason that there has been a recent rise in the number of lawsuits regarding the collection of physiological data is because the practice has become more commonly used by businesses today. You can read the <a href="https://cookcountyrecord.com/stories/511242064-spike-in-il-lawsuits-vs-employers-over-fingerprints-other-biometric-data-may-be-just-the-beginning">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP101217 Third Time’s The Charm For California Salary History Ban Legislation http://www.seyfarth.com:80/publications/CP101217 Thu, 12 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: After two previous failed attempts, California joins seven other U.S. jurisdictions to prohibit inquiries into an applicant&rsquo;s salary history. Read on for a recap of the new law.<br /> <br /> <a href="http://www.calpeculiarities.com/2017/10/12/third-times-the-charm-for-california-salary-history-ban-legislation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL101217a UPDATE: New York City Commission on Human Rights Releases Additional Guidance and FAQs on the New York City Salary History Law http://www.seyfarth.com:80/publications/EL101217a Thu, 12 Oct 2017 00:00:00 -0400 <p> <strong>Seyfarth Synopsis</strong>: The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) recently issued additional guidance in the form of &ldquo;Frequently Asked Questions&rdquo; on the Salary History Law that goes into effect on October 31, 2017.&nbsp;&nbsp;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/update-new-york-city-commission-on-human-rights-releases-additional-guidance-and-faqs-on-the-new-york-city-salary-history-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL101217 The Ongoing Battle Between LGBTQ+ Rights And Claims Of Religious Liberty http://www.seyfarth.com:80/publications/EL101217 Thu, 12 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: The Department of Justice has reversed the previous Administration&rsquo;s position on employment protections for transgender individuals, and issued a memorandum that will likely be relied on by private employers seeking who wish to use their religious faith to engage in otherwise prohibited discriminatory conduct.<br /> <br /> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/the-ongoing-battle-between-lgbtq-rights-and-claims-of-religious-liberty/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/eckbna101217 William Eck authored an article in Bloomberg BNA Health Care Fraud Report http://www.seyfarth.com:80/publications/eckbna101217 Thu, 12 Oct 2017 00:00:00 -0400 <p> William Eck authored an October 12 article in Bloomberg BNA Health Care Fraud Report, &quot;Escobar One Year Later: Implied Certification and Materiality Under the False Claims Act.&quot; The article reviews how Courts have elaborated and applied materiality inthe context of FCA implied certification since the Escobar decision. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Eck_BNA_101217.pdf">full aritcle here</a>.</p> http://www.seyfarth.com:80/publications/TBT101217 The Week in Weed: October 13, 2017 http://www.seyfarth.com:80/publications/TBT101217 Thu, 12 Oct 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="http://www.blunttruthlaw.com/2017/10/the-week-in-weed-october-13-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA101217-LE UPDATE: New York City Commission on Human Rights Releases Additional Guidance and FAQs on the New York City Salary History Law http://www.seyfarth.com:80/publications/MA101217-LE Thu, 12 Oct 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) recently issued additional guidance in the form of &ldquo;Frequently Asked Questions&rdquo; on the Salary History Law that goes into effect on October 31, 2017.&nbsp;&nbsp;</em></p> <p> New York City&rsquo;s Salary History Law goes into effect on October 31, 2017.&nbsp; It will prohibit covered employers from inquiring about a candidate&rsquo;s salary history, or relying on the salary history of candidates when determining their salary, benefits, or other compensation. &nbsp;For more information regarding the law, see our prior alerts <a href="http://www.seyfarth.com/publications/OMM040617-LE2">here</a>, <a href="http://www.seyfarth.com/publications/OMM050617-LE">here</a>, and <a href="http://www.seyfarth.com/publications/MA091517-LE">here</a>.&nbsp;&nbsp;</p> <p> With the Halloween deadline fast approaching, many employers are revising their hiring practices to comply with the law. &nbsp;Recently, the Commission issued guidance, which can be found on its website in a section entitled: &ldquo;Frequently Asked Questions,&rdquo; and <a href="http://www1.nyc.gov/site/cchr/media/salary-history-frequently-asked-questions.page">here</a>. The FAQs respond to some key concerns employers have about the law.</p> <p> <strong>Key Takeaways</strong></p> <ul> <li> The FAQs provide guidance regarding deferred compensation and unvested equity. They clarify that, as part of a discussion about compensation <em>expectations</em>, employers can ask about the value and structure of deferred compensation or equity that would be forfeited.</li> <li> The Commission takes an expansive view regarding the geographic scope of the law&rsquo;s coverage, and will apply the law to job applicants that live in New York City and interview in New York City, even if they apply for a job outside of New York City.&nbsp;</li> <li> The FAQs state that employers and consumer reporting agencies must comply with the law&rsquo;s requirements even when running a background check, and suggest that it is a best practice to redact or exclude salary history from such reports.</li> <li> Employers should remove all requests for current or prior salary on their job applications, particularly where it might be sent to a candidate for a job in New York City.</li> <li> The Commission will conduct a case-by-case analysis regarding inquiries about the salary history of independent contractors and whether the employer may consider salary history when determining compensation for an offer of permanent employment in the same position or a comparable position. The Commission will primarily consider whether the temporary employee or subcontractor qualifies as an applicant for a new position or for internal transfer or promotion.&nbsp;</li> </ul> <p> <strong>General Scope of Coverage </strong></p> <p> There were no big surprises on the scope of coverage.</p> <ul> <li> The FAQs reaffirm that the law covers applicants for jobs in New York City.&nbsp; The Commission acknowledges that the law will not apply where an applicant simply resides in New York City, but is interviewed and will work outside of New York City.&nbsp; However, the FAQs indicate that the Commission is taking the position that if the employer asks a candidate about salary history during a job interview that occurs in New York City, even for a job based outside of the City, the law may apply.&nbsp; Here, the Commission relies on the theory that the impact of the discriminatory conduct occurred in New York City. &nbsp;Courts may take a narrower view when analyzing the locus of the impact of the challenged conduct and if the law applies in this situation.&nbsp; Nonetheless, even employers without operations in New York City should exercise caution, particularly when interviewing in or considering applicants from New York City.</li> <li> The law generally will not apply to former employers who disclose information about salary history to the hiring employer.&nbsp; However, the Commission noted that others can be held liable if they intentionally aid and abet a violation of the law.</li> <li> Applicants for internal transfer or promotion are not protected by the Salary History Law.</li> <li> The salary history protections will go into effect on October 31, 2017, but they will not be retroactive to cover inquiries made prior to that date. &nbsp;Nonetheless, employers should exercise caution if they are formulating or communicating offers after October 31st based on salary history obtained prior to that date.&nbsp; Even if the information was lawfully obtained before the law went into effect, the law independently prohibits reliance on salary history in determining a candidate&rsquo;s compensation, including the negotiation of a contract.</li> </ul> <p> <strong>What Employers Can and Cannot Do to Learn About Applicants&rsquo; Salary Expectations</strong></p> <ul> <li> The Commission confirmed that a job application can ask an applicant to state his or her compensation expectations, as long as it does not request salary history.</li> <li> Employers should review and revise their job applications, particularly where one might be sent to a candidate applying for a job in New York City, to remove all requests for current or prior salary. &nbsp;Retaining or including a question on a job application that asks for salary history may violate the law.&nbsp; Employers who use an application that requests salary history cannot avoid liability simply by adding a disclaimer stating that individuals in New York City or applying for jobs in New York City need not answer the application&rsquo;s question about current or prior salary.</li> <li> Inquiries made to a candidate&rsquo;s current or former employers, or searching public records, for the purpose of learning an applicant&rsquo;s salary history, are prohibited.&nbsp; However, in cases of accidental discovery if, for example, an employer stumbles upon a candidate&rsquo;s salary history while searching publicly available information for another purpose, the employer would not have violated the Salary History Law.&nbsp; In such a situation, however, the employer may not rely on that accidentally discovered salary history to formulate the compensation details of an offer.</li> <li> If an applicant volunteers information about his or her salary history without being prompted to do so, the employer may discuss and inquire about the applicant&rsquo;s salary history, verify the applicant&rsquo;s representations, and rely on the applicant&rsquo;s salary history in determining an offer.</li> <li> A voluntary disclosure of salary history is &ldquo;without prompting&rdquo; if the average job applicant would not think that the employer encouraged the disclosure based on the overall context and the employer&rsquo;s words or actions.&nbsp; While the Commission is articulating an objective &ldquo;reasonable person&rdquo; test, rather than a subjective standard, this &ldquo;voluntary and without prompting&rdquo; safe harbor remains vague.&nbsp; Employers should exercise caution and train hiring managers and recruiting professionals not to prompt disclosure of salary history.</li> </ul> <p> <strong>Background Checks and the Implications of the Credit Reporting Laws</strong></p> <ul> <li> In circumstances where an employer is legally permitted to perform a background check before a conditional offer has been made, or runs a background check after a conditional offer, the Commission recommends that employers specify to reporting agencies that information about salary history be excluded from the report.&nbsp; Inquiries into salary history would violate the law regardless of whether such inquiries are made before or after a conditional offer, unless the employer makes the inquiry to verify information the applicant disclosed voluntarily and without prompting.&nbsp;</li> <li> Consumer Reporting Agencies (&ldquo;CRA&rdquo;) should consider no longer verifying salary information for applicants in New York City or applicants for jobs in New York City.&nbsp; In addition, where CRAs collect W-2 or other tax reporting forms from candidates, they should redact salary history.</li> </ul> <p> <strong>Broad Definition of &ldquo;Compensation&rdquo;</strong></p> <ul> <li> The Commission has defined &ldquo;salary&rdquo; broadly.&nbsp; The same is true of &ldquo;benefits&rdquo; and &ldquo;other compensation,&rdquo; which extend to various forms of remuneration, including, but not limited to, a car allowance, retirement plan, or bonus. &nbsp;This also includes commissions an applicant earned.</li> <li> An employer is allowed to ask about objective indicators of performance such as a book of business, or the volume, production, value, or frequency of sales.&nbsp; However, an employer should not ask about an applicant&rsquo;s current or former profit percentages, or information from which it can determine the applicant&rsquo;s compensation earned on production or commissions (unless the applicant volunteered that information without prompting).</li> <li> Employers may ask about the value of a counter offer or competing offer that the candidate might also be considering, because it is not &ldquo;current or prior&rdquo; salary.</li> </ul> <p> <strong>Deferred Compensation</strong></p> <ul> <li> One of the most significant pieces of guidance contained in the FAQs concerns deferred compensation.&nbsp; In September, the Commission&rsquo;s policy counsel represented to us that it would take the position that employers should not affirmatively ask candidates whether they have deferred compensation or would forfeit deferred compensation.&nbsp; The Commission stated that if the candidate offers information about deferred compensation as part of a discussion about compensation <em>expectations</em>, the employer can verify the value of the deferred compensation that would be forfeited, either with the prior employer or with the candidate. &nbsp;However, when the Commission issued Fact Sheets in September, they were silent on deferred compensation.</li> <li> The FAQs now state clearly that, in the context of a discussion with candidates to learn about their compensation <em>expectations</em>, employers may ask whether an applicant will have to forfeit deferred compensation or unvested equity upon resignation from his or her current employer, and may ask about the value and structure of the deferred compensation or unvested equity that would be forfeited.&nbsp; Employers may request documentation to verify the applicant&rsquo;s representations, and consider such information in making an offer.</li> </ul> <p> <strong>Exemptions to the Law</strong></p> <ul> <li> There is no specific exemption in the law for actions taken by an employer pursuant to foreign or international law that specifically authorizes the disclosure or verification of salary history or requires knowledge of salary history.</li> <li> Private positions for which compensation is set pursuant to procedures established by collective bargaining are not exempt. The only exemption in this area applies to public employees where compensation is set pursuant to a collective bargaining agreement.</li> <li> Headhunters are not exempt.&nbsp; Headhunters who qualify as employers, employment agencies, or agents of an employer may be liable under a direct or aiding and abetting discrimination theory.&nbsp; The Commission recommends that headhunters obtain written confirmation from job candidates that they consent to disclosure of their salary history.&nbsp; Employers working with headhunters should also obtain a copy of the applicant&rsquo;s written consent before relying on a headhunter&rsquo;s representations about an applicant&rsquo;s salary history.</li> <li> The Commission did little to clarify the debate surrounding independent contractors.&nbsp; The law does apply to independent contractors.&nbsp; However, the Commission hedged on whether an employer may consider the salary history of a temporary employee or a subcontractor in determining compensation for an offer of permanent employment in the same position or a comparable position. &nbsp;The Commission stated that this must be assessed on a case-by-case basis. The Commission will consider whether the temporary employee or subcontractor qualifies as an applicant for a new position or for internal transfer or promotion. &nbsp;The Commission suggests that if the employer is willing to concede that it is a joint employer of the subcontractor or temporary employee, then the application may be one for internal transfer or promotion, which would not be covered by the law.</li> </ul> <p> <strong>Corporate Acquisitions</strong></p> <ul> <li> A company seeking to acquire another company may obtain salary information about the employees of the target company as part of the due diligence process because the employees of the target company are not &ldquo;job applicants&rdquo; under the law.</li> <li> However, despite this corporate acquisition exemption, the FAQs explain that if employees of the target company are being asked to interview for new positions in the acquiring company, the law may apply.&nbsp; Accordingly, in those circumstances, the Commission recommends that any salary information that may have been shared in the due diligence process not be shared with hiring managers making decisions about compensation.&nbsp; Employers considering a corporate acquisition should assess the law&rsquo;s potential applicability.</li> </ul> <p> <strong>Best Practices</strong></p> <p> The Commission recommends as a best practice:</p> <ul> <li> During the hiring process, focus questions on applicants&rsquo; salary demands, skills, and qualifications.</li> <li> Employers and hiring managers change the tenor of the conversation around salary discussions in interviews, to move away from what the applicant is currently making, and instead focus on his or her salary demand. The Commission believes this is an important change to prevent current salary from being based on prior salary, which may be artificially depressed.</li> <li> Ensure that job applications and other forms do not include questions about applicants&rsquo; salary history, even if such questions are framed as &ldquo;voluntary.&rdquo;</li> <li> Modify written policies and educate interviewers and hiring staff to prohibit inquiries about applicants&rsquo; salary history.</li> </ul> <p> Unintentional violations of the law may lead to imposition of civil penalties of up to $125,000, and the Commission may impose a penalty of up to $250,000 for a willful and malicious violation. Individual applicants may also file claims under the New York City Human Rights Law for violation of the Salary History Law, and seek compensatory damages and other relief including punitive damages and attorneys&rsquo; fees.</p> <p> As always, we are available to answer any questions employers may have regarding the Salary History Law.&nbsp; If they have not done so already, employers should evaluate and reassess their practices and procedures with respect to recruiting and hiring in light of this new law and guidance.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely. We will keep you updated regarding any developments. &nbsp;For information on how this law might affect your company, contact any member of Seyfarth&rsquo;s Pay Equity Group, Cameron A. Smith at <a href="mailto:casmith@seyfarth.com">casmith@seyfarth.com</a>, Christine Hendrickson at <a href="mailto:chendrickson@seyfarth.com">chendrickson@seyfarth.com</a>, Courtney Stieber at <a href="mailto:cstieber@seyfarth.com">cstieber@seyfarth.com</a>, or Lisa Savadjian at <a href="mailto:lsavadjian@seyfarth.com">lsavadjian@seyfarth.com</a></p> http://www.seyfarth.com:80/news/adanyt101117 Seyfarth's ADA data referenced in the New York Times http://www.seyfarth.com:80/news/adanyt101117 Wed, 11 Oct 2017 00:00:00 -0400 <p> Seyfarth&#39;s ADA data was referenced in an October 11 story from the New York Times, &quot;College Websites Must Accomodate Disabled, Lawsuits Say.&quot; According to Seyfarth&#39;s ADA Title III Blog, at least 751 website accessibility lawsuits have been filed and the vast majority have focused on retailers and restaurants. You can read the <a href="https://www.nytimes.com/2017/10/11/nyregion/college-websites-disabled.html?_r=0">full article here</a>.</p> http://www.seyfarth.com:80/news/beyersdut101017 Justin Beyer quoted in the San Diego Union Tribune http://www.seyfarth.com:80/news/beyersdut101017 Tue, 10 Oct 2017 00:00:00 -0400 <p> Justin Beyer was quoted in an October 10 story from the San Diego Union Tribune, &quot;NuVasive sues its former vice chairman,&quot; on the case Ascension Ins. Holdings, LLC v. Underwood, where the Delaware Chancery Court declined to enforce a non-compete agreement a company had with a California resident and former employee. Beyer said that case should give pause to choice of law decisions of Delaware corporations with multi-jurisdictional work forces and operations in states other than Delaware. You can read the <a href="http://www.sandiegouniontribune.com/business/biotech/sd-me-nuvasive-miles-20171010-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/meierpoliticopro101017 Steven Meier quoted in PoliticoPro http://www.seyfarth.com:80/news/meierpoliticopro101017 Tue, 10 Oct 2017 00:00:00 -0400 <p> Steven Meier was quoted in an October 10 story from PoliticoPro, &quot;Changes In Estate Tax Could Have Effect On Lower-Income Filers.&quot; Meier said that both sides of the estate tax repeal fight are highly energized and the concept of the estate tax means a lot politically to both of them.</p> http://www.seyfarth.com:80/publications/EL101017 Court Holds that Receiving an Updated Background Report May Require a Second Pre-Adverse Action Notice http://www.seyfarth.com:80/publications/EL101017 Tue, 10 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: In the last three years, employers have seen a sharp increase in the number of employment class actions under the Fair Credit Reporting Act (FCRA). Most of the reported cases involve challenges to the employer&rsquo;s procedures before ordering a background report. More recently, however, we are seeing more cases against employers alleging a failure to follow the FCRA&rsquo;s adverse action requirements, which must be followed any time an employer intends to take &ldquo;adverse action&rdquo; (revoking a job offer or terminating employment) against a job applicant or a current employee based, in whole or in part, on information contained in their background report.<br /> <br /> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/court-holds-that-receiving-an-updated-background-report-may-require-a-second-pre-adverse-action-notice/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM101017 Targeted ICE Investigations – In It For The Long Haul With Record $95 Million Plea Deal For I-9 Violations http://www.seyfarth.com:80/publications/IMM101017 Tue, 10 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government&rsquo;s unwavering commitment to investigating and enforcing of immigration laws. A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance. If nothing else a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).<br /> <br /> <a href="http://www.bigimmigrationlawblog.com/2017/10/targeted-ice-investigations-in-it-for-the-long-haul-with-record-95-million-plea-deal-for-i-9-violations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS101017 Big Brown v. PowerPoint Pilferers in Trade Secret Spat http://www.seyfarth.com:80/publications/TS101017 Tue, 10 Oct 2017 00:00:00 -0400 <p> Earlier this week, the United Parcel Service, Inc. (&ldquo;UPS&rdquo;) filed a lawsuit in the Northern District of Georgia, Atlanta Division, against several unidentified UPS pilots, who are referred to in the complaint as &ldquo;John Does 1-5.&rdquo; The lawsuit alleges that &ldquo;[i]n August 2017, certain UPS employees developed strategic plans regarding the Company&rsquo;s aircraft. These plans were developed for, among other things, reporting to senior executives of the Company in late August 2017 so that they could make certain strategic business and financial decisions. Portions of these plans were included in a PowerPoint presentation created by this limited group of UPS employees (the &ldquo;PowerPoint&rdquo;). In preparation for the meeting, a very limited number of UPS employees had access to the PowerPoint for the purpose of its drafting and editing.&rdquo; (Complaint, &para; 7.) The lawsuit goes on to allege that the PowerPoint contained highly confidential and trade secret information. (Id. at &para;&para; 9-10.)<br /> <br /> <a href="http://www.tradesecretslaw.com/2017/10/articles/dtsa/big-brown-v-powerpoint-pilferers-in-trade-secret-spat/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM101017-LE Still Sleeping on the Job? NY DOL Says Home Healthcare Employees Not Entitled to 24 Hours Pay for Overnight Shifts http://www.seyfarth.com:80/publications/OMM101017-LE Tue, 10 Oct 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Effective October 6, 2017, the New York Department of Labor issued an emergency regulation amending the Miscellaneous Minimum Wage Order, which is designed to undermine two recent Appellate Division rulings that have held non-residential home healthcare workers must be paid for all 24 hours in a 24-hour shift.&nbsp; The Department of Labor&rsquo;s position on this issue has been, and plainly remains, that home healthcare employees need to be paid for 13 hours in a 24-hour shift, so long as specified uninterrupted meal and sleep periods are provided. &nbsp;The Department of Labor&rsquo;s interpretation on this issue is consistent with federal law.</em></p> <p> Effective October 6, 2017, the New York State Department of Labor (&ldquo;NYDOL&rdquo;) revised the Miscellaneous Minimum Wage Order (&ldquo;MWO&rdquo;) to reaffirm its position that non-residential home healthcare workers on overnight shifts need be paid for only 13 hours out of a 24-hour shift, as long as the proper meal and sleep periods are provided and are uninterrupted.&nbsp; This interpretation is consistent with federal Fair Labor Standards Act.&nbsp;</p> <p> The NYDOL has been following the rationale of its <a href="https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0169%20-%20Live-In%20Companions.pdf">2010 Opinion Letter</a>, which interpreted 12 NYCRR &sect; 142-2.1(b) as requiring live-in employees to be paid 13 hours per 24 hour period, provided they are afforded at least 8 hours for sleep, actually receive 5 hours of sleep, and are provided 3 hours for meals. &nbsp;As we&rsquo;ve previously reported, two recent Appellate Division decisions in the<a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/"> First</a> and <a href="http://www.seyfarth.com/publications/OMM091817-LE">Second </a>Departments held that this rationale was incorrect, and found that a &ldquo;non-residential&rdquo; home healthcare employee must be paid for all hours present at a client&rsquo;s home, including meal periods and time spent sleeping.&nbsp; Based on these decisions, employers in the industry faced an enormous financial burden and uncertainty, including the potential for retroactive application of the new line of case law.</p> <p> This week, the DOL took the unusual step to issue an emergency regulation revising the MWO.&nbsp;</p> <p> NYDOL regulations provide that minimum wage must be paid for each hour an employee is &ldquo;required to be available for work at a place prescribed by the employer&rdquo; except that a &ldquo;residential employee &mdash; one who lives on the premises of the employer&rdquo; need not be paid &ldquo;during his or her normal sleeping hours solely because he is required to be on call&rdquo; or &ldquo;at any other time when he or she is free to leave the place of employment.&rdquo;&nbsp;</p> <p> The NYDOL revised the <a href="https://www.labor.ny.gov/formsdocs/wp/CR142.pdf">MWO</a>, 12 NYCRR &sect; 142-2.1(b), to state:</p> <p style="margin-left:.5in;"> Notwithstanding the above, this subdivision shall not be construed to require that the minimum wage be paid for meal periods and sleep times that are excluded from hours worked under the Fair Labor Standards Act of 1938, as amended, in accordance with sections 785.19 and 785.22 of 29 C.F.R. for a home care aide who works a shift of 24 hours or more.</p> <p> The FLSA regulations cited in the MWO provide that an employee who is required to be duty on for 24 hours or more may agree to exclude <em>bona fide</em> meal periods and a <em>bona fide</em> regularly scheduled sleeping period of up to 8 hours, provided the employee is given adequate sleeping facilities and is actually provided with at least 5 hours of uninterrupted sleep and 3 hours of meal time.&nbsp; This provision requires an &ldquo;express or implied agreement&rdquo; or the 8 hours will be considered time worked.&nbsp;</p> <p> However, with the newly revised MWO, employers in the industry face even more uncertainty.&nbsp; The revision was issued in the form of an &ldquo;emergency&rdquo; regulation, which means it is enacted for a temporary basis of up to 90 days.&nbsp; Although it may be readopted at that point for an additional 60 days, it must ultimately go through the formal proposal process to be adopted as a permanent rule.&nbsp;&nbsp; The rule may be challenged on that basis. &nbsp;A potential challenge to the regulation may also mean that the rationale of the appellate courts will ultimately prevail, unless the Court of Appeals intercedes. &nbsp;The regulation is not retroactive, so it is unclear how courts will resolve complaints brought by workers about time worked prior to the effective date. We will continue tracking this issue closely.</p> http://www.seyfarth.com:80/publications/MA100917-LE Targeted ICE Investigations - In It For The Long Haul With Record $95 Million Plea Deal For I-9 Violations http://www.seyfarth.com:80/publications/MA100917-LE Mon, 09 Oct 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>With a record $95 million plea deal for I-9 immigration violations following a six year investigation, the outcome for a Pennsylvania company with operations nationwide serves as a reminder of the federal government&rsquo;s unwavering commitment to investigating and enforcing of immigration laws.&nbsp; A look at the facts behind the headlines helps us understand where, when and why company general counsel and the C-suite should take a proactive approach to immigration compliance.&nbsp; If nothing else a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple form, and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).&nbsp;</em></div> <div> &nbsp;</div> <div> Following a six year investigation, the U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI) unit issued a statement confirming a guilty plea on September 28, 2017 by Asplundh Tree Experts, Co. (Asplundh) for unlawfully employing undocumented workers.&nbsp; As part of the plea agreement, Asplundh received a sentence to pay a forfeiture money judgment in the amount of $80 million dollars, abide by an ICE HSI Administrative Compliance Agreement, and pay an additional $15 million dollars to satisfy civil claims arising out of their failure to comply with immigration law.&nbsp; Prior to this, the often touted &ldquo;record settlement&rdquo; included IFCO Systems North America Inc.&rsquo;s (IFCO) $20.7 million dollars from 2006.</div> <div> &nbsp;</div> <div> While the facts of this case reveal the company to be an egregious violator, there are parts of this story that may ring true for many companies.&nbsp; The story of Asplundh, similar to the stories of IFCO, Abercrombie and Fitch, Chipotle and many others, should serve as both an informative and cautionary tale. While each of these companies faced different challenges and immigration violations, the lessons in each should help general counsel and the C-suite at companies appreciate the importance of taking stock of their own practices and putting into motion an action plan designed to mitigate risks and liabilities where possible.&nbsp; If nothing else, a judgment of $95 million solidifies that the Form I-9 is not really &ldquo;just&rdquo; a simple a form and the government can and will use a variety of tactics to enforce compliance with the Immigration Reform and Control Act (IRCA).</div> <div> &nbsp;</div> <div> We also cannot bury our proverbial heads in the sand and ignore recent Executive Orders changing ICE&rsquo;s <a href="https://www.whitehouse.gov/the-press-office/2017/01/25/executive-order-border-security-and-immigration-enforcement-improvements">immigration priorities-</a>, and promoting &ldquo;<a href="https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american">Buy American, Hire American&rdquo; policies</a>. While we have not yet seen the worksite raids we experienced under the Bush Administration or widespread &ldquo;desk audits&rdquo; or &ldquo;silent raids&rdquo; of Forms I-9 under the Obama administration, ICE is here for the long haul and future worksite investigations, on-site visits and Form I-9 audits can be expected.&nbsp; This will be especially true as we see an increase in resources allocated to meet the current administration&rsquo;s priorities in this arena.&nbsp;</div> <div> &nbsp;</div> <div> <strong>The Story Behind Asplundh</strong></div> <div> &nbsp;</div> <div> Described as one of the largest privately-held companies in the United States, and headquartered in Willow Grove, Pennsylvania, Asplundh is now also known as the company that pled to the largest civil settlement agreement ever levied on an immigration case - how did they get here?</div> <div> &nbsp;</div> <div> ICE&rsquo;s six - year investigation found that Asplundh employed a scheme where employees were hired and re-hired even when lower level managers were aware of the fact that the employees were not authorized to work in the United States.&nbsp; But more importantly, the charges noted that &ldquo;<a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice">the highest levels of Asplundh management remained willfully blind</a>.&rdquo; Even before the September 28th announcement of the settlement agreement following the guilty plea, the Department of Justice (DOJ) U.S. Attorney&rsquo;s Office <a href="https://www.justice.gov/usao-edpa/pr/asplundh-tree-expert-co-charged-recruiting-hiring-and-employing-unauthorized-aliens#_ftnref1">announced on September 19, 2017</a> that three employees, including supervisors and a Vice- President, had already entered guilty pleas to felony counts of conspiracy to commit fraud and misuse visas&nbsp; in connection with this case, with each defendant facing prison time and fines.</div> <div> &nbsp;</div> <div> ICE Acting Director Thomas Homan stated in its <a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice#wcm-survey-target-id">September 28th announcement</a> that&nbsp; &ldquo;[t]oday&rsquo;s judgment sends a strong, clear message to employers who scheme to hire and retain a workforce of illegal immigrants: we will find you and hold you accountable. Violators who manipulate hiring laws are a pull factor for illegal immigration, and we will continue to take action to <strong>remove this magnet&rdquo;</strong> (emphasis added).</div> <div> &nbsp;</div> <div> The <a href="https://www.justice.gov/usao-edpa/pr/asplundh-tree-expert-co-charged-recruiting-hiring-and-employing-unauthorized-aliens#_ftnref1">charge</a> was for one count of unlawfully employing aliens. Statements from ICE and the (DOJ) U.S. Attorney&rsquo;s Office describe a company practice where a decentralized hiring practice reinforced and supported the acceptance of fraudulent documentation presented to company representatives by new hires and re-hires in regions across the United States.&nbsp; More specifically, as noted in<a href="https://www.ice.gov/news/releases/asplundh-tree-experts-co-pays-largest-civil-settlement-agreement-ever-levied-ice"> ICE&rsquo;s statement</a>, the six year investigation revealed that from 2010 to 2014, &ldquo;the company decentralized its hiring so Sponsors (the highest levels of management) could remain willfully blind while Supervisors and General Foremen (2nd and 3rd level supervisors) hired ineligible workers, including unauthorized aliens, in the field. Hiring was by word of mouth referrals rather than through any systematic application process. This manner of hiring enabled Supervisors and General Foremen to hire a work force that was readily available and at their disposal.&rdquo;&nbsp; The purported motivation for this national industry leader in tree trimming and brush clearance for power and gas lines - a motivated workforce willing and able to relocate at a national level as needed to respond to weather related events requiring Asplundh crews.</div> <div> &nbsp;</div> <div> While details of the Administrative Compliance Agreement have not yet been released, given the charges and facts disclosed it is likely the company will be required to take action on a number of fronts.&nbsp; As noted in the company&rsquo;s <a href="http://www.asplundh.com/wp-content/uploads/2017/09/Asplundh_091917.pdf">own statement</a>, Asplundh has already taken some corrective action, including:</div> <div> &nbsp;</div> <div> <ul> <li> Appointing a Compliance Specialist trained in fraudulent document identification in each Asplundh region nation-wide.</li> <li> Revising hiring procedures to verify each identification examination for every new hire.</li> <li> Investigating every complaint of potentially undocumented workers.</li> <li> Retaining a third party consultant to review actions and procedures.</li> <li> Presenting the company compliance program to ICE for review.</li> </ul> <div> &nbsp;</div> <div> These corrective actions are reminiscent of what we saw with IFCO and changes that <a href="https://www.ice.gov/news/releases/216-million-ifco-forfeiture-distributed-new-york-state-police">IFCO</a> made in 2006 as part of its agreement with ICE.&nbsp; Recent history has shown us ICE&rsquo;s unwavering commitment to its investigations and enforcement of immigration laws regardless of the name or party controlling the Oval Office.</div> <div> &nbsp;</div> <div> <strong>What Does This Mean for Your Operations?</strong></div> <div> &nbsp;</div> <div> <div> The key for all employers is to take all necessary and possible steps that will protect the company from a charge and a subsequent finding of knowingly or intentionally hiring undocumented workers. While all employers may not be able to guarantee full compliance, everyone can and should take steps that will provide an affirmative defense against charges and allegations of willfully employing undocumented workers or simply being careless to the point that a good faith defense cannot be made.&nbsp; &nbsp;From addressing proper form completion, document retention, remote hires, electronic I-9 vendors and detecting fraudulent documents, there are steps every company can and should take with minimal disruption to operations that can provide an affirmative defense in showing good-faith compliance with Form I-9 IRCA requirements.</div> <div> &nbsp;</div> <div> Compliance with Form I-9 requirements should be a priority - not an option - for any U.S. employer. All employers, regardless of industry or size, must make a concerted effort to understand the importance of compliance, and make strategic business decisions to limit liability.&nbsp; Investing the time and resources necessary to develop and implement proper immigration compliance policies and protocols should be on the agenda.&nbsp; Businesses can begin taking a proactive approach and action on the following fronts:&nbsp;</div> <div> &nbsp;</div> <div> <ul> <li> Preventative Audits - Guided internal audits of I-9 documents, processes and procedures. Do this sooner rather than later and with guidance from experienced immigration compliance counsel. Whether you choose to conduct the audit yourself or retain counsel, the results of the audit will go a long way toward assessing exposure and limiting liability either in a &ldquo;desk audit&rdquo; or a full on investigation. Remember, if the company has been audited once, you are on the government&rsquo;s radar with secondary inspections and active investigations a possibility.</li> <li> Train, Train, Train - Human Resource teams and their delegates need to consistently and accurately complete Form I-9s.&nbsp; Provide them with basic knowledge of the process and the tools to recognize fraudulent identity and work eligibility documents. To become and remain compliant with IRCA and other state and federal immigration regulations training and investment in the people responsible for this function is critical.</li> <li> Improve or develop policies and procedures - Often we see issues relating to immigration compliance handled ad hoc, with larger entities taking a more &ldquo;decentralized&rdquo; approach. Time and again we see that leaving immigration compliance at the lowest rung of priorities increases risks and liabilities.&nbsp; When the process is identifiable, then accountability can be, too.</li> <li> Manage compliance - Policies and procedures do not mean anything without proper implementation and monitoring. Lack of compliance where immigration and IRCA mandates are concerned carries fines and penalties that includes prison terms for individuals.&nbsp; For the company it can also mean a PR nightmare.&nbsp; Dedicating top management level resources to oversee a company&rsquo;s immigration compliance program should be a top consideration.&nbsp;&nbsp;</li> <li> Prepare for possible workplace disruptions - Whether the current Administration steps up enforcement actions is not really the motivating factor.&nbsp; As depicted in the excerpt below from the Department of Homeland Security &ndash; U.S. ICE Worksite Enforcement FY 2014 annual report, we have continually seen ICE conduct long, exhaustive investigations, with an increase in audits and related fines and penalties.&nbsp; The following table reflects the number of opened and closed worksite enforcement investigations, criminal and administrative employee and employer arrests and the assessed fines and collections for each fiscal year from the annual report.</li> </ul> </div> </div> </div> <div> &nbsp;</div> <div> <em><img alt="" src="http://www.seyfarth.com/dir_docs/publications/CA_Table.jpg " style="width: 500px; height: 191px;" /></em></div> <div> &nbsp;</div> <div> <div> For more than sixteen years, since the infamous worksite raids under the Bush administration, we have watched enforcement actions increase regardless&nbsp; of the party controlling the executive branch.&nbsp; Whether a paticular form of enforcement action becomes more prevalent or not, should your company be investigated, severe losses could occur and planning for potential impacts on workforce availability in advance can prove to be critical to limiting disruption to ongoing operations.</div> <div> &nbsp;</div> <div> As ICE investigations continue and potentially expand under Presidential Executive Orders or future Presidential Proclamations, it is more important than ever for employers to protect themselves by ensuring that proper immigration compliance policies are in place and in-house audits are conducted on a regular basis to detect potential issues and irregularities. As demonstrated in Asplundh, the stakes are high, employer responsibilities as well as liabilities under IRCA should be taken very seriously.&nbsp;&nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/weisswgn100917 Philippe Weiss interviewed on WGN-AM Radio http://www.seyfarth.com:80/news/weisswgn100917 Mon, 09 Oct 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed October 9th on WGN-AM Radio, &quot;Wintrust Business Lunch 10/9/17: Halloween At The Office.&quot; Weiss discussed how influential Halloween can be in the office environment. You can listen to the <a href="http://wgnradio.com/2017/10/09/wintrust-business-lunch-10917-600m-for-rxbars-halloween-at-the-office-plandid-camera/">full interview at Min. 12:40 here</a>.</p> http://www.seyfarth.com:80/news/schwartzfenwicklaw360100617 Sam Schwartz-Fenwick quoted in Law360 http://www.seyfarth.com:80/news/schwartzfenwicklaw360100617 Fri, 06 Oct 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in and October 6 story from Law360, &quot;5 Trump Policy Reversals That May Give Employers Whiplash,&quot; on how the U.S. Department of Justice yanked a 2014 memo that said gender-identity discrimination fell under Title VII&rsquo;s sex-discrimination umbrella. Schwartz-Fenwick said that the announcement is at odds with the majority of federal courts that have analyzed this question, and also at odds with the current position of the Equal Employment Opportunity Commission.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm100617 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm100617 Fri, 06 Oct 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an October 6 story from SHRM, &quot;Transgender Workplace Discrimination Not Prohibited Under Law, Attorney General Says.&quot; Schwartz-Fenwick said that until the Supreme Court weighs in on this hotly disputed issue, employers should consult with counsel to evaluate their internal policies, practices, and procedures with an eye toward transgender claims. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/Transgender-Workplace-Discrimination-Not-Prohibited-Under-Law-Attorney-General-Says.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/vickcdlb100617 Jordan Vick profiled in the Chicago Daily Law Bulletin http://www.seyfarth.com:80/news/vickcdlb100617 Fri, 06 Oct 2017 00:00:00 -0400 <p> Jordan Vick was profiled in an October 6 story from the Chicago Daily Law Bulletin, &quot;New bar head to lead during &lsquo;turbulent time&#39;.&quot; Vick was installed as president of the Federal Bar Association&rsquo;s Chicago chapter.</p> http://www.seyfarth.com:80/news/shermanwbj100617 Andrew Sherman quoted in the Washington Business Journal http://www.seyfarth.com:80/news/shermanwbj100617 Fri, 06 Oct 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in an October 6 story from the Washington Business Journal, &quot;ComScore&#39;s shareholder settlement could give Starboard control of the company.&quot; Sherman said that, in general, a heavy-handed settlement like this is in excess of what is normal - and it would be reasonable to expect management changes at the company in the future.</p> http://www.seyfarth.com:80/news/bodanskyhflcd Robert Bodansky quoted in Hedge Fund Legal & Compliance Digest http://www.seyfarth.com:80/news/bodanskyhflcd Fri, 06 Oct 2017 00:00:00 -0400 <p> Robert Bodansky was quoted in an October 6 story from Hedge Fund Legal &amp; Compliance Digest, &quot;Best Practices for Private Equity Managers Entering into Joint Ventures with Investors (Part Two of Three).&quot; Bodansky said that when structuring joint ventures as limited partnerships, investors need to carefully negotiate approval rights. You can read the <a href="http://www.hedgefundlcd.com/best-practices-for-private-equity-managers-entering-into-joint-ventures-with-investors-part-two-of-three/">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC100617 FY 2017 Litigation Scorecard For The EEOC – What Employer’s Should Know http://www.seyfarth.com:80/publications/WC100617 Fri, 06 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: With the EEOC&rsquo;s Fiscal Year ending on September 30, 2017, loyal blog readers know that our firm has been busy analyzing the major trends of FY 2017 on the EEOC litigation front. In this video, Jerry Maatman of Seyfarth Shaw, LLP provides an overview of the highlights from the EEOC&rsquo;s &ldquo;litigation scorecard&rdquo; for the 2017 Fiscal Year. Jerry touches on this year&rsquo;s overall filing trends, tracks the importance of Equal Pay claims filed, and lastly, gives our readers some ideas on possible implications for the future of the EEOC. Remember, if you are interested in the filing trends of the EEOC or in complex discrimination law in general, stay tuned for our full analysis of the 2017 EEOC Fiscal Year that comes out in late December.<br /> <br /> <a href="http://www.workplaceclassaction.com/2017/10/fy-2017-litigation-scorecard-for-the-eeoc-what-employers-should-know/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR100517a NLRB About-Face Highlights Lack of Reasoning on the Class Action “Right” It Seeks to Assert http://www.seyfarth.com:80/publications/LR100517a Thu, 05 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: The NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers&rsquo; mandatory arbitration programs.<br /> <br /> <a href="http://www.employerlaborrelations.com/2017/10/05/nlrb-about-face-highlights-lack-of-reasoning-on-the-class-action-right-it-seeks-to-assert/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE100517 Chipping Employees: The “Wave” of the Future? http://www.seyfarth.com:80/publications/FE100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> <em>This blog post is published on our Future Employer page <a href="https://www.futureemployer.com/blog/2017/10/5/chipping-employees-the-waive-of-the-future">here</a>.</em></p> <p> A key cinematic meme over the past 25 years is an electronic device implanted under your skin that tracks your movements, provides you access to restricted areas, or connects you to a larger virtual community.&nbsp; Think Arnold Schwarzenegger in &quot;Total Recall&quot; (1990), Will Smith in &quot;Enemy of the State&quot; (1998), or Keanu Reeves in &quot;The Matrix&quot; (1999). And while film will teach you that such devices are most often used for sinister purposes, employers are looking to these devices for more helpful reasons, with mixed reactions.</p> <p> The most recent application by employers is by Three Square Market, a technology company in Wisconsin.&nbsp; According to the&nbsp;<a href="https://www.nytimes.com/2017/07/25/technology/microchips-wisconsin-company-employees.html">New York Times</a>, Three Square recently offered to implant a microchip under its employees&#39; skin that will give them access to the building and the ability to pay for food in the cafeteria, all with the wave of a hand.&nbsp; And despite some initial misgivings, more than 50 out of 80 employees at Three Square&rsquo;s headquarters have volunteered.</p> <p> The technology is called Radio Frequency Identification, or RFID, and it is nothing new.&nbsp; The technology has been around since World War II, and it has been used in everything from parking permits to tracking newborns in hospital nurseries.[1]&nbsp; Implants were approved for living creatures in the 1990s, [2]&nbsp;and now &ldquo;microchipping&rdquo; pets has become widely adopted.[3]</p> <p> The big breakthrough, however, came in 2004, when the Food and Drug Administration approved the use of subdermal RFID implants in humans.[4]&nbsp; Since then, in 2006, an Ohio surveillance company, CityWatcher.com, announced that it had implanted RFID chips in some of its employees (with permission), allowing them to pass a detector and enter their facility.[5]&nbsp; Then, in 2007, the American Medical Association endorsed responsible use of implantable RFID for patient identification, and thousands across the globe have since undergone the process for various reasons. [6]</p> <p> Needless to say, the applications of this technology are only limited by our imagination.&nbsp; But with the advent of such invasive technology comes concerns about privacy and health.&nbsp; Critics of implanted RFID chips note that they have the potential to monitor all of a person&rsquo;s daily activities, making any sense of privacy or anonymity a thing of the past. [7]&nbsp; Others argue that the invasive nature of technologies with expansive surveillance capabilities can adversely affect employee morale, leading to greater stress in the workforce and decreased worker productivity. [8]&nbsp; Finally, some studies have shown a link between malignant tumors in animals with microchips, raising questions whether implants are safe for humans. [9]</p> <p> And, as is often the case, the law lags behind the technology, and the ubiquity of its potential application outpaces our cultural appreciation of its impact.&nbsp; As of this writing, only five states (including Wisconsin, home to Three Square) have passed statutes banning the mandatory implant of RFID devices.</p> <ul> <li> Cal. Civ. Code &sect;52.7 (West 2008) (prohibiting any person from requiring, coercing, or compelling any other individual to undergo the subcutaneous implanting of an identification device);</li> <li> Mo. Rev. Stat. &sect;285.035 (2008) (prohibiting employers from requiring an employee to have a personal identification microchip technology implanted for any reason);</li> <li> N.D. Cent. Code &sect;12.1-15-06 (2008) (prohibiting a person from requiring that an individual have inserted into that individual&#39;s body a microchip containing a radio frequency identification device);</li> <li> Wis. Stat. &sect;146.25 (2008) (prohibiting a person from requiring an individual to undergo the implanting of a microchip);</li> <li> Okla. Stat. &sect; 63-1-1430 (2008) (&ldquo;No person, state, county, or local governmental entity or corporate entity may require an individual to undergo the implanting of a microchip or permanent mark of any kind or nature upon the individual.&rdquo;)&nbsp; [10]</li> </ul> <p> None of these statutes, however, prohibit&nbsp;<strong><em>voluntary&nbsp;</em></strong>chipping, and when the alternative is being required to carry a key card or other badge you might lose, many employees (such as those at Three Square) are signing up.</p> <p> Some researchers predict RFID will become the most pervasive computer technology in history. [11]&nbsp; But at the end of the day, with the exception of the devices being right under your skin, how different is this type of tracking from what is already occurring with your smart phone?&nbsp; And let&rsquo;s face it, for most of us, our smartphones might as well be surgically implanted.</p> <div data-block-type="47" id="block-yui_3_17_2_1_1507219172106_33446" style="clear:both;"> <div> <hr /> </div> </div> <div data-block-type="2" id="block-yui_3_17_2_1_1507219172106_33507" style="clear:none;"> <div> <p> &nbsp;</p> <p> [1]&nbsp;Lara M. Ulatowski, Recent Developments in RFID Technology:&nbsp; Weighing Utility Against Potential Privacy Concerns, 3 I/S:&nbsp; J.L. &amp; Poly. for Info. Soc&rsquo;y 623 (2008).</p> <p> [2]&nbsp;Isaac v. Rosenberg, Involuntary Endogenous RFID Compliance Monitoring as a Condition of Supervised Release- Chips Ahoy?, 10 Yale L. J. 331 (2008).</p> <p> [3]&nbsp;Ulatowski at 1.</p> <p> [4]&nbsp;Rosenberg at 331.</p> <p> [5]&nbsp;13A N.Y. Prac. Employment Law in New York &sect;&nbsp;6:39 (2d. ed) (citing Richard Waters, &ldquo;US Group Implants Tags in Workers,&rdquo; Finacnial Times, February 12, 2006)</p> <p> [6]&nbsp;Rosenberg, at 331.</p> <p> [7]&nbsp;Ulatowski at 1.&nbsp;</p> <p> [8]&nbsp;William A. Herbert, The Impact of Emerging Technologies in the Workplace:&nbsp; Who&rsquo;s Watching the Man (Who&rsquo;s Watching Me)?, 25 Hofstra Lab. &amp; Emp. LJ. 355, 356 (Spring 2008).</p> <p> [9]&nbsp;Ulatowski, at 8.</p> <p> [10]&nbsp;See also &nbsp;<a href="http://www.ncsl.org/research/telecommunications-and-information-technology/radio-frequency-identification-rfid-privacy-laws.aspx">http://www.ncsl.org/research/telecommunications-and-information-technology/radio-frequency-identification-rfid-privacy-laws.aspx</a></p> <p> [11]&nbsp;Rosenberg at 331.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL100517 Class Waivers at the Divided Supreme Court: Employers Cautiously Optimistic http://www.seyfarth.com:80/publications/EL100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: Following oral argument, employers should be cautiously optimistic that the Supreme Court will allow mandatory arbitration programs containing waivers of the ability to bring collective and class actions.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0696d088bc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0696d088bc-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR100517 NLRB About-Face Highlights Lack of Reasoning on the Class Action “Right” It Seeks to Assert http://www.seyfarth.com:80/publications/LR100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis:&nbsp; The NLRB has withdrawn the significant concession it offered at oral argument on the nature of the NLRA rights it seeks to assert in the face of employers&rsquo; mandatory arbitration programs.</p> <p> <a href="http://www.employerlaborrelations.com/2017/10/05/nlrb-about-face-highlights-lack-of-reasoning-on-the-class-action-right-it-seeks-to-assert/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=009c9a38fe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-009c9a38fe-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT100517 The Week in Weed: October 6, 2017 http://www.seyfarth.com:80/publications/TBT100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <ul> <li> <a href="http://openalerts.ozmosys.com/oadev/oat.php?zg=121&amp;zt=45001823&amp;zu=http://www.insurancejournal.com/news/east/2017/10/04/466358.htm">Delaware Panel Continues to Eye Details of Legalizing Pot</a><br /> (Insurance Journal: News, 4 October 2017)</li> </ul> <p> <a href="http://www.blunttruthlaw.com/2017/10/the-week-in-weed-october-6-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=d6cec8aa03-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-d6cec8aa03-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/shrm100517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/shrm100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> Alex Passantino was quoted in an October 5 story from SHRM, &quot;Supreme Court to Reconsider Whether Car Service Advisors Are Exempt,&quot; on how guidance on how lower courts should interpret the FLSA is expected. Passantino said that, although the specific FLSA issue is narrow, the court may provide additional guidance on when courts should defer to statements of the Department of Labor (DOL), such as opinion letters, or the department&#39;s Field Operations Handbook. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/supreme-court-car-service-advisors.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/eeeocwapo100517 Christopher DeGroff, Gerald Maatman and Matthew Gagnon's blog post referenced in the Washington Post http://www.seyfarth.com:80/news/eeeocwapo100517 Thu, 05 Oct 2017 00:00:00 -0400 <p> Christopher DeGroff, Gerald Maatman and Matthew Gagnon&#39;s blog post was referenced in an October 5 story from the Washington Post, &quot;The Equal Employment Opportunity Commission has been busier than ever.&quot; According to their post, 2017 has seen a vigorous number of EEOC case filings, surpassing the last three fiscal years. You can read the <a href="https://www.washingtonpost.com/news/on-small-business/wp/2017/10/05/the-equal-employment-opportunity-commission-has-been-busier-than-ever/?utm_term=.cc13904f6ae5">full article here</a>.</p> http://www.seyfarth.com:80/news/launeysjm100417 Kristina Launey quoted in the San Jose Mercury News http://www.seyfarth.com:80/news/launeysjm100417 Wed, 04 Oct 2017 00:00:00 -0400 <p> Kristina Launey was quoted in an October 4 story from the San Jose Mercury News, &quot;Closing the gender pay gap: Bill would make salary questions off-limits to California employers,&quot; on AB 168 which is awaiting Gov. Jerry Brown&rsquo;s signature. Launey said that AB 168 could make it more difficult for companies to recruit talent. You can read the <a href="http://www.mercurynews.com/2017/10/04/closing-gender-pay-gap-bill-would-make-salary-questions-off-limits-ca-employers/">full article here</a>.</p> http://www.seyfarth.com:80/publications/ADA100417 Supreme Court Denies Review of Rules That Vending Machines Are Not Places of Public Accommodation http://www.seyfarth.com:80/publications/ADA100417 Wed, 04 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis:&nbsp; The Supreme Court declines to review a Fifth Circuit decision stating that a public accommodation covered by Title III of the ADA has to be a physical place and vending machines are not sales establishments covered by Title III of the ADA.</p> <p> <a href="http://www.adatitleiii.com/2017/10/supreme-court-denies-review-of-rules-that-vending-machines-are-not-places-of-public-accommodation/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=2ba79d920e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-2ba79d920e-73047125">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE100417 OSHA Adopts 30-Day “Phase-In” of Enforcement of Crystalline Silica Standard for Construction http://www.seyfarth.com:80/publications/WSE100417 Wed, 04 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA announced a thirty day phase-in for enforcement of the Crystalline Silica Standard for Construction under 29 CFR 1926.1153. The new rule will be fully effective by Monday, October 23, 2017.<br /> <br /> <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-adopts-30-day-phase-in-of-enforcement-of-crystalline-silica-standard-for-construction/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM100417-LE Premium Processing Resumes for All H-1B Petitions http://www.seyfarth.com:80/publications/OMM100417-LE Wed, 04 Oct 2017 00:00:00 -0400 <p class="BodySingle"> <em><strong>Seyfarth Synopsis</strong></em>: <em>On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for all H-1B petitions.</em><o:p></o:p></p> <p class="BodySingle"> USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.&nbsp; Over the last few months, the agency incrementally reinstated the premium processing service for certain lower-volume H-1B filings. Yesterday, USCIS announced that premium processing is now available for all H-1B filings, including petitions requesting a change of employer and/or extension of stay.&nbsp; <o:p></o:p></p> <p class="BodySingle"> When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.&nbsp; This additional filing fee requires USCIS to adjudicate the petition within 15 calendar days of receiving the request.&nbsp; USCIS either approves the petition or issues a Request for Evidence (RFE) within that 15 calendar day time period.&nbsp; However, in the announcement, USCIS stated that if the agency did not meet the 15 calendar day processing deadline, it would refund the petitioner&rsquo;s premium processing service fee and continue with expedited processing of the petition.<o:p></o:p></p> <p class="BodySingle"> Premium processing requests can be filed with the initial filing of a petition, or at a later date by filing the premium processing request form (I-907) and the associated fee, referencing the petition&rsquo;s receipt number.&nbsp; Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for premium processing upgrades.&nbsp; It may be advisable to upgrade a petition to premium processing if, for example, an employee has imminent travel plans or cannot renew his or her drivers&rsquo; license due to an expiration of H-1B status.<o:p></o:p></p> http://www.seyfarth.com:80/publications/FE100317 Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat http://www.seyfarth.com:80/publications/FE100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> A string of recent class action lawsuits regarding businesses&rsquo; use of employees&rsquo; biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.</p> <p> <a href="https://www.futureemployer.com/blog/2017/10/3/hazards-ahead-uptick-in-biometric-privacy-laws-can-put-employers-in-hot-seat">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW092817 Cybersecurity Best Practices http://www.seyfarth.com:80/publications/GPW092817 Tue, 03 Oct 2017 00:00:00 -0400 <p> When you bring to mind someone &ldquo;hacking&rdquo; a computer one of the images that likely comes up is a screen of complex code designed to crack through your security technology.&nbsp; Whereas there is a technological element to every security incident, the issue usually starts with a simple mistake made by one person.&nbsp;&nbsp; Hackers understand that it is far easier to trick a person into providing a password, executing malicious software, or entering information into a fake website, than cracking an encrypted network &mdash; and hackers prey on the fact that you think &ldquo;nobody is targeting me.&rdquo;</p> <p> <a href="http://www.globalprivacywatch.com/2017/09/cybersecurity-best-practices/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=36db693cf4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-36db693cf4-73179561">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA100317-LE Active Shooter Response - Developing an Effective Policy http://www.seyfarth.com:80/publications/MA100317-LE Tue, 03 Oct 2017 00:00:00 -0400 <div> <p align="left"> <em><strong>Seyfarth Synopsis:</strong> Unfortunately,&nbsp; workplace violence&nbsp; is becoming an ever increasing liability in the workplace. Despite the presence of workplace violence prevention programs intended to avoid this hazard entirely within the workplace,&nbsp; it is becoming all to frequent that&nbsp; there may be an active shooter incident at the workplace. This Management Alert will provide a discussion of the elements&nbsp; of an effective active shooter policy as well as an example that can be used to develop an&nbsp; actual policy.&nbsp;&nbsp;</em></p> <p align="left"> <strong>INTRODUCTION</strong></p> <p> As the pace and emotional pressures of everyday life impact both employees at home and in the workplace, as well as unknown individuals (including terrorists), a distressing and tragic trend is occurring &mdash; employees and unknown individuals are unable to control their emotions at work or have ulterior criminal motives and violence erupts toward co-employees, customers or third parties.&nbsp; The unfortunate statistics show that homicide is the number one cause of death for women in the workplace and the third overall cause for men and women.&nbsp; In many cases, these acts of violence occur as employees face the prospect of lay-offs and corporate reorganizations in many industries.</p> <p> No employer wants such incidents to occur.&nbsp; Ironically, however, as employers struggle to avoid these potential legal liabilities through creation and enforcement of employment policies, they are met with a host of federal and state laws which may protect certain employee conduct.&nbsp; More importantly, since an employer has no objective &ldquo;litmus test&rdquo; for predicting which employee may become violent under particular triggering circumstances, there is no fool-proof way to effectively eliminate the hazard. Likewise, an employer cannot predict whether unknown individuals may decide to commit random acts of violence because of mental and emotional conditions or for misguided political or religious motivations.</p> <p align="left"> <strong>OSHA</strong></p> <p> Under OSHA&rsquo;s General Duty Clause, an employer is required to protect its employees against &ldquo;recognized hazards likely to cause serious injuries or death.&rdquo; As such, an employer should consider developing a workplace violence prevention and response policy.</p> <p> In developing its policy, the employer should, at minimum, include these elements:</p> <ul> <li style="margin-left: 1in;"> A stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;</li> <li style="margin-left: 1in;"> A statement that the employer has a &ldquo;zero tolerance&rdquo; policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;</li> <li style="margin-left: 1in;"> Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;</li> <li style="margin-left: 1in;"> Establish a means to promptly investigate all such threats or violent acts;</li> <li style="margin-left: 1in;"> Develop consistent, firm discipline for violations of the policy;</li> <li style="margin-left: 1in;"> Provide training to managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported to the employer;</li> <li style="margin-left: 1in;"> A non-retaliation policy for employees who report verbal and physical conduct to the employer which they reasonably believe represents a threat of potential workplace violence;</li> <li style="margin-left: 1in;"> Establish a team of qualified individuals (e.g. human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and</li> <li style="margin-left: 1in;"> Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.</li> </ul> <p align="left"> <strong>ACTIVE SHOOTER EMERGENCY RESPONSE POLICY</strong></p> <p> Unfortunately, despite the fact that many employers have developed workplace violence prevention and response policies, there have tragically been instances where an &ldquo;<strong>active shooter</strong>&rdquo;, an employee or an unknown individual, has come to the premises and utilized a firearm to attempt to kill employees and other persons who may be at the workplace. In anticipation of such a possibility, the employer should consider developing an active shooter emergency response policy to inform employees of the three courses of action to take in such instance,</p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>evacuate</strong></p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>hide out, or</strong></p> <p> &middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>self defense</strong></p> <p> and how to react when law enforcement arrives.</p> <p> The below policy sets out recommendations gathered from the Department of Homeland Security, the Federal Bureau of Investigation, other law enforcement agencies and recognized industry sources. Employer&rsquo;s should consider developing such a policy, utilizing the enclosure, while customizing it to the employer&rsquo;s worksite. We welcome comments on the policy. If an employer has an interest in receiving assistance in developing a policy or in conducting training the author and/or attorneys in the Firm&rsquo;s Workplace Safety and Environmental Group are available to provide such assistance.</p> </div> <p> <strong>ACTIVE SHOOTER EMERGENCY RESPONSE POLICY</strong></p> <p> <strong>PURPOSE</strong>:</p> <p> This policy is intended to provide guidance in the event an individual is actively shooting persons at the workplace and to comply with applicable regulations of the Occupational Safety and Health Administration (OSHA).</p> <p> <strong>POLICY</strong></p> <p> It is the policy of the Company to provide an active shooter emergency response plan to alert employees that an active shooter appears to be actively engaged in killing or attempting to kill people at the workplace.</p> <h4> DEFINITIONS:</h4> <p> For purposes of this Policy:&nbsp; An <strong>active shooter</strong> is defined as a person or persons who appear to be actively engaged in killing or attempting to kill people at the Company&rsquo;s premises. In most cases active shooters use a firearm(s) and display no pattern or method for selection of their victims. In some cases active shooters use other weapons and/or improvised explosive devices to cause additional victims and act as an impediment to police and emergency responders. These improvised explosive devices may detonate immediately, have delayed detonation fuses, or detonate on contact.</p> <h4> PROCEDURES:</h4> <p style="margin-left:.25in;"> 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The first employee to identify an active shooter situation:</p> <p style="margin-left:.5in;"> As soon as possible, should call the Company emergency number (_________________) and announce a prearranged code (e.g., &ldquo;Active Shooter&rdquo;) (with the location of the incident) and a physical description of the person(s) with the weapon, and type of weapon, if known.</p> <p style="margin-left:.25in;"> 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;The emergency operator upon notification will:</p> <p style="margin-left:.5in;"> Provide a public announcement &ldquo;Code __________ (and the location)&rdquo; on the public address system.</p> <p style="margin-left:.25in;"> 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The emergency operator or any employee who is at a location distant from the active shooter, such as in a different area or floor, will contact 911.</p> <p style="margin-left:.25in;"> 4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The phone call to 911 (from the area where the caller is safely concealed) should provide the following information to the police:</p> <p style="margin-left:.75in;"> a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Description of suspect and possible location.</p> <p style="margin-left:.75in;"> b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Number and types of weapons.</p> <p style="margin-left:.75in;"> c.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Suspect&rsquo;s direction of travel.</p> <p style="margin-left:.75in;"> d.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Location and condition of any victims</p> <p> <strong>POTENTIAL RESPONSES</strong></p> <p style="margin-left:.25in;"> In response to an active shooter event, there will be three potential courses of action 1) evacuate, 2) hide out, 3) self-defense. The following guidelines identify these courses of action:</p> <p> <strong>EVACUATE</strong></p> <p style="margin-left:.25in;"> If there is an accessible escape path, attempt to evacuate the premises, following these recommendations:</p> <ul> <li style="margin-left: 0.75in;"> Have an escape route and plan in mind</li> <li style="margin-left: 0.75in;"> Evacuate regardless of whether others agree to follow</li> <li style="margin-left: 0.75in;"> Leave your belongings behind</li> <li style="margin-left: 0.75in;"> Help others escape, if possible</li> <li style="margin-left: 0.75in;"> Prevent individuals from entering an area where the active shooter may be</li> <li style="margin-left: 0.75in;"> Keep your hands visible</li> <li style="margin-left: 0.75in;"> Follow the instructions of any police officers</li> <li style="margin-left: 0.75in;"> Do not attempt to move wounded people</li> <li style="margin-left: 0.75in;"> Call 911 when you are safe</li> </ul> <p style="margin-left: 0.25in; text-align: center;"> <strong>HID</strong><strong>E OUT</strong></p> <p style="margin-left:.25in;"> If evacuation is not possible, find a place to hide where the active shooter is less likely to find you, with these recommendations:</p> <p style="margin-left:.5in;"> The hiding place should:</p> <ul> <li style="margin-left: 1in;"> Be inconspicuous</li> <li style="margin-left: 1in;"> Be out of the active shooter&rsquo;s view</li> <li style="margin-left: 1in;"> Provide physical protection if shots are fired in your direction (e.g., locating into a bathroom and locking the door, staying as low to the floor as possible and remaining quiet and motionless)</li> <li style="margin-left: 1in;"> Not trap you or restrict your options for movement</li> </ul> <p style="margin-left:.5in;"> To prevent an active shooter from entering the hiding place:</p> <ul> <li style="margin-left: 1in;"> Lock the door</li> <li style="margin-left: 1in;"> Blockade the door with heavy furniture</li> </ul> <p style="margin-left:.25in;"> If the active shooter is nearby:</p> <ul> <li style="margin-left: 1in;"> Lock the door</li> <li style="margin-left: 1in;"> Silence cell phones and/or pagers</li> <li style="margin-left: 1in;"> Turn off any source of noise (i.e., radios, televisions)</li> <li style="margin-left: 1in;"> Hide behind large items (i.e., cabinets, desks)</li> <li style="margin-left: 1in;"> Remain quiet and motionless</li> </ul> <p style="text-align: center;"> <strong>SELF-DEFENSE</strong></p> <p style="margin-left:.5in;"> If it is not possible to evacuate or hide, then consider self-defense, with these recommendations:</p> <ul> <li style="margin-left: 1in;"> Remain calm</li> <li style="margin-left: 1in;"> Dial 911, if possible, to alert police to the active shooter&rsquo;s location</li> <li style="margin-left: 1in;"> If you cannot speak, leave the line open and allow the 911 dispatcher to listen</li> </ul> <p style="margin-left:.5in;"> Take action against the active shooter and only when you believe your life is in imminent danger, attempt to disrupt and/or incapacitate the active shooter as follows:</p> <ul> <li style="margin-left: 1in;"> Acting as aggressively as possible against him/her</li> <li style="margin-left: 1in;"> Throwing items and improvising weapons</li> <li style="margin-left: 1in;"> Yelling</li> <li style="margin-left: 1in;"> Commit yourself to defensive physical actions</li> </ul> <p style="text-align: center;"> <strong>LAW ENFORCEMENT RESPONSE</strong></p> <p> The police will arrive to respond to the emergency, follow these recommendations:</p> <p style="margin-left:.5in;"> 1. &nbsp; Comply with the police instructions. The first responding officers will be focused on stopping the active shooter and creating a safe environment for medical assistance to be brought in to aid the injured.</p> <p style="margin-left:.5in;"> 2.&nbsp;&nbsp; When the police arrive at your location:</p> <p style="margin-left:.75in;"> a)&nbsp;&nbsp; Remain calm, and follow officers&rsquo; instructions</p> <p style="margin-left:.75in;"> b)&nbsp;&nbsp; Put down any items in your hands (i.e., bags, jackets)</p> <p style="margin-left:.75in;"> c)&nbsp;&nbsp; Immediately raise your hands and spread your fingers</p> <p style="margin-left:.75in;"> d)&nbsp;&nbsp; Keep your hands visible at all times</p> <p style="margin-left:.75in;"> e)&nbsp;&nbsp; Avoid making quick movements toward officers such as attempting to hold on to them for safety</p> <p style="margin-left:.75in;"> f)&nbsp;&nbsp; Avoid pointing, screaming and/or yelling</p> <p style="margin-left:.75in;"> g)&nbsp;&nbsp; Do not stop to ask officers for help or direction when evacuating, just proceed in the direction from which officers are entering the area or to an area to which they direct you</p> <p style="margin-left:.75in;"> h)&nbsp;&nbsp; notify Company representatives that you have evacuated the premises</p> <p style="margin-left:.5in;"> 3.&nbsp;&nbsp; When the police arrive the following information should be available:</p> <p style="margin-left:.75in;"> a)&nbsp;&nbsp; Number of shooters</p> <p style="margin-left:.75in;"> b)&nbsp;&nbsp; Number of individual victims and any hostages</p> <p style="margin-left:.75in;"> c)&nbsp;&nbsp; The type of problem causing the situation</p> <p style="margin-left:.75in;"> d)&nbsp;&nbsp; Type and number of weapons possibly in the possession of the shooter</p> <p style="margin-left:.75in;"> e)&nbsp;&nbsp; All necessary Company representatives still in the area as part of the Company&rsquo;s emergency management response</p> <p style="margin-left:.75in;"> f)&nbsp;&nbsp; Identity and description of participants, if possible</p> <p style="margin-left:.75in;"> g)&nbsp;&nbsp; Keys to all involved areas as well as floor plans</p> <p style="margin-left:.75in;"> h)&nbsp;&nbsp; Locations and phone numbers in the affected area</p> <p style="margin-left: 0.25in; text-align: center;"> <strong>POST-INCIDENT ACTION</strong></p> <p> When the police have determined that the active shooter emergency is under control, the emergency operator will provide a public announcement that the emergency is over by using a prearranged Code (e.g., &ldquo;All Clear&rdquo;)</p> <p style="text-align: center;"> <strong>POLICE INVESTIGATION</strong></p> <p> After the police have secured the premises, the Company will arrange to have designated Management representatives participate in the law enforcement investigation of the incident, including identifying witnesses and providing requested documents.</p> <p style="text-align: center;"> <strong>MEDICAL ASSISTANCE</strong></p> <p> The Company will designate Management representatives who will engage with emergency responders who provide medical assistance to injured employees, including ensuring that all required medical benefit and insurance documentation is provided.</p> <p style="text-align: center;"> <strong>NOTIFICATION OF RELATIVES</strong></p> <p> The Company will designate Management representatives to notify relatives of any injured employees in a timely fashion.</p> <p style="text-align: center;"> <strong>OSHA</strong></p> <p> In the event that there is a fatality or one employee is hospitalized for treatment, OSHA must be notified. If there is a fatality, OSHA must be notified within eight (8) hours. In the event of a hospitalization of one employee for treatment, OSHA must be notified within twenty-four (24) hours. In addition, if the fatality or injury is work-related, the Company may have to record the incident on its OSHA 300 Log within seven (7) calendar days.</p> <p style="text-align: center;"> <strong>MEDIA</strong></p> <p> The Company will designate Management representatives who will respond to any media requests for information. Such representatives will carefully consider the nature of any such requests in order to avoid disclosing information about any person that is confidential and protected by Federal and state privacy and medical information laws and regulations and interfering with any ongoing police or internal Company investigation.</p> <p> <strong>REFERENCES:</strong></p> <p> US Department of Homeland Security Active Shooter-How to Respond, October 2008</p> <p> US Federal Bureau of Investigation Active Shooter Planning and Response in a Healthcare Setting, April 2015</p> <p> <strong>COORDINATION:</strong></p> <p> 1. This policy has been coordinated with the __________Police Department</p> <p style="margin-left:1.5in;"> &nbsp;</p> http://www.seyfarth.com:80/publications/WH100317 Class Waivers at the Divided Supreme Court: Employers Cautiously Optimistic http://www.seyfarth.com:80/publications/WH100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: Following oral argument, employers should be cautiously optimistic that the Supreme Court will allow mandatory arbitration programs containing waivers of the ability to bring collective and class actions.<br /> <br /> <a href="http://www.wagehourlitigation.com/arbitration-agreements/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL100317 Hazards Ahead: Uptick in Biometric Privacy Laws Can Put Employers in Hot Seat http://www.seyfarth.com:80/publications/EL100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis:&nbsp; A string of recent class action lawsuits regarding businesses&rsquo; use of employees&rsquo; biometric data should put employers on heightened alert regarding compliance with various state biometric privacy laws.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/10/hazards-ahead-uptick-in-biometric-privacy-laws-can-put-employers-in-hot-seat/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8c9297c052-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8c9297c052-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP100317 Future of Work III: Performance Management in Today’s Environment http://www.seyfarth.com:80/publications/CP100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> Seyfarth Synopsis: This post continues our blog series on the Future of Work, and discusses how, in California as elsewhere, performance management strategies continue to develop in response to the changing workplace. Access our prior Future of Work posts (on independent contractors in California and the effects of job automation) here and here.</p> <p> <a href="http://www.calpeculiarities.com/2017/10/03/future-of-work-iii-performance-management-in-todays-environment/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=66c9e9502e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-66c9e9502e-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/launeyshrm100317 Kristina Launey quoted in SHRM http://www.seyfarth.com:80/news/launeyshrm100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> Kristina Launey was quoted in an October 3 story from SHRM, &quot;Gender Pay Gap Transparency Act: A Push for Equality or a Waste of Time?,&quot; on pending legislation awaiting Gov. Jerry Brown&rsquo;s signature or veto. Launey said that the legislation gives plaintiffs&#39; attorneys a road map to sue and burdens businesses with the task of data collection. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-gender-pay-gap-transparency-act.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/reyesfra100317 Seyfarth Partner Juan Reyes Appointed Chief Counsel of Federal Railroad Administration http://www.seyfarth.com:80/news/reyesfra100317 Tue, 03 Oct 2017 00:00:00 -0400 <p> NEW YORK (October 3, 2017) - Seyfarth Shaw LLP announced today that Juan D. Reyes, partner from the firm&rsquo;s Real Estate department in New York, has been appointed as Chief Counsel of the Federal Railroad Administration (FRA), the agency within the U.S. Department of Transportation responsible for the development of the country&rsquo;s passenger and freight rail systems. As the principal legal advisor to the FRA, Reyes will manage a legal department of 50 attorneys and provide executive direction to its two other divisions, the general law division and the safety law division.</p> <p> The FRA is responsible for all safety regulations, legislation, research and development, as well grant and loan programs for both passenger and railroad infrastructure. As Chief Counsel, Reyes will assist the United States in upgrading its passenger and freight rail systems. This includes the $24 billion Northeast corridor improvement project, as well as high speed rail infrastructure projects in California and Texas. In addition, there are currently plans for the FRA to redevelop the railroad stations in six major U.S. markets, including Chicago, New York City, Philadelphia, Boston and Baltimore.</p> <p> Reyes will also play a critical role in reviewing and advising on Elon Musk&rsquo;s proposed &ldquo;Hyperloop,&rdquo; which envisions low-pressure passenger tubes that travel at speeds of up to 700 mph in markets like California and routes like New York to Washington, D.C., which would drastically reduce travel times.</p> <p> On Capitol Hill, Reyes will assist the Department of Transportation, Congress and the White House with a bipartisan infrastructure bill to modernize the United States and make it competitive with other developed countries. In this role, he will provide critical advice and counseling on public-private partnerships expected to range in the billions of dollars.</p> <p> At Seyfarth, Reyes concentrated his practice on land use, development, and permitting, with particular experience in zoning, planning, landmark and building code matters, and governmental approvals. He was also a leader in the firm&rsquo;s Public-Private Partnerships (P3) practice.</p> <p> &ldquo;Juan has been an outstanding partner and colleague, and he brings tremendous skill and experience to his new post in the nation&rsquo;s capital,&rdquo; said Paul Mattingly, chair of Seyfarth&rsquo;s Real Estate department. &ldquo;He possesses the energy, insight and leadership to carefully guide the FRA legal department in support of its important mission.&rdquo;</p> <p> &ldquo;We are proud that Juan has the opportunity to serve and shape the future of the country&rsquo;s storied rail system,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office. &ldquo;He&rsquo;s a dynamic and talented lawyer who will serve the country well.&rdquo;</p> <p> &ldquo;Juan is one of the most accomplished lawyers in the country for managing the complexities of large projects, and he will serve the FRA and USDOT well as chief counsel,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> Prior to joining Seyfarth, Reyes held a variety of government roles during his career. He served as general counsel to the New York City Board of Standards and Appeals. He also served as counsel to the New York City Loft Board, Office of the Mayor, and served on the Association of the Bar of the City of New York&rsquo;s Zoning Committee and Housing and Urban Development Committee.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/maechtlen100217 Seyfarth Appoints Laura Maechtlen as Chair of Labor & Employment Department http://www.seyfarth.com:80/news/maechtlen100217 Mon, 02 Oct 2017 00:00:00 -0400 <p> SAN FRANCISCO (October 2, 2017) -- Seyfarth Shaw LLP today announced that Laura Maechtlen has been named chair of the firm&rsquo;s Labor &amp; Employment department, after serving as vice-chair since January 2016.</p> <p> With more than 425 lawyers across the country, Seyfarth&rsquo;s Labor &amp; Employment department is the firm&rsquo;s largest, representing companies of all sizes in today&rsquo;s most complex and strategic workplace legal matters.</p> <p> A partner in the San Francisco office and seasoned employment litigator, Maechtlen focuses her practice on employment litigation, including the defense of class, collective and multi-plaintiff actions.</p> <p> &ldquo;It&rsquo;s a tremendous honor and privilege to serve the firm and my colleagues,&rdquo; said Maechtlen. &ldquo;I look forward to upholding our longstanding reputation as the top employment law firm in the country, while also evolving our services to meet the demands of clients operating at the forefront of the future of work. It&rsquo;s an exciting time to be leading such a talented group of lawyers.&rdquo;</p> <p> Earlier this year, Maechtlen led the development of the firm&rsquo;s <a href="https://www.futureemployer.com/">Future Employer</a> initiative, launching a new collaborative community for the firm&rsquo;s clients where they can share new and emerging legal issues related to the future of work. She was previously named as one of five employment attorneys to <em>Law360&#39;s</em> &ldquo;Rising Stars&rdquo; list, as well as a &ldquo;Top 75 Employment Litigators&rdquo; and &ldquo;Top Leading Labor and Employment Lawyers In California&rdquo; by the <em>Daily Journal</em>.</p> <p> &ldquo;Laura is both a highly respected lawyer and leader who has proven herself through a variety of leadership roles inside the firm and out,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;As a firm dedicated to diversity and inclusion, we are proud to welcome an &lsquo;out&rsquo; woman of color to our leadership ranks. Laura is perfectly positioned to take our Labor &amp; Employment department to new heights. I congratulate her and look forward to her continued leadership.&rdquo;</p> <p> A well-recognized advocate and champion of diversity in the legal industry, Maechtlen was recently identified in <em>The Huffington Post</em> as one of the &ldquo;business world&rsquo;s own New Supermodels &mdash; out women in business who identify as LGBT+ and are kicking it.&rdquo; At Seyfarth, she serves as co-chair of its Diversity &amp; Inclusion Action Team. Outside the firm, she has served as the president of the national LGBT Bar Association, co-chair of the California Minority Counsel Program, and in leadership roles with the National Hispanic Bar Association. Maechtlen was also an inaugural Fellow of the Leadership Council for Legal Diversity.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/babsonlaw360100217 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360100217 Mon, 02 Oct 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an October 2 story from Law360, &quot;Supreme Court Seems Split As It Mulls Class Waiver Ban,&quot; on the U.S. Supreme Court tackling whether employment agreements forcing workers to sign away their rights to pursue class action claims are legal.</p> http://www.seyfarth.com:80/news/babsonbna100217 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna100217 Mon, 02 Oct 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an October 2 story from Bloomberg BNA, &quot;Class Action Waiver Disputes Get Their Day in High Court,&quot; on the U.S. Supreme Court hearing oral arguments on whether employers can enforce employment agreements that bar employees from pursuing employment-related claims in class or collective lawsuits or arbitrations. Babson said that, if employers are forced to allow employees to use a forum with class or collective action procedures, the cases will go into federal or state courts and there will be a flood of new cases pressing wage and hour claims and other issues.</p> http://www.seyfarth.com:80/publications/napolimeilmangli100217 John Napoli and Roy Meilman authored a chapter in Global Legal Insights http://www.seyfarth.com:80/publications/napolimeilmangli100217 Mon, 02 Oct 2017 00:00:00 -0400 <p> John Napoli and Roy Meilman authored a chapter in Global Legal Insights Commercial Real Estate 2018, &quot;U.S. tax aspects of foreign investment in U.S. real estate.&quot; You can read the <a href="https://www.globallegalinsights.com/practice-areas/real-estate-laws-and-regulations/usa/?socialmedia#chaptercontent1">full chapter here</a>.</p> http://www.seyfarth.com:80/publications/launeyhospitalitylaw100117 Kristina Launey authored an article in Hospitality Law http://www.seyfarth.com:80/publications/launeyhospitalitylaw100117 Sun, 01 Oct 2017 00:00:00 -0400 <p> Kristina Launey authored an October 1 article in Hospitality Law, &quot;New York judges refuse to dismiss website accessibility cases.&quot; The article discusses a recent suit against Five Guys restaurant that claims violations of the ADA.</p> http://www.seyfarth.com:80/publications/sotopeterspclr100117 Marjorie Clara Soto and Kristen Peters authored article in Privacy & Cybersecurity Law Report http://www.seyfarth.com:80/publications/sotopeterspclr100117 Sun, 01 Oct 2017 00:00:00 -0400 <p> Marjorie Clara Soto and Kristen Peters authored an October 1 article in Privacy &amp; Cybersecurity Law Report, &quot;Scary as Dinosaurs: California&rsquo;s Genetic Information Discrimination Code.&quot; The article discusses what employers can do to comply with the California Genetic Information Nondiscrimination Act. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Soto_Peters_Oct2017.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/wc093017 Tick, Tock….The EEOC Runs Out The Clock – Fiscal Year 2017 Marks A Last Minute Return To Frantic Filing http://www.seyfarth.com:80/publications/wc093017 Sat, 30 Sep 2017 00:00:00 -0400 <p> With uncertain times and profound changes anticipated for the EEOC, employers anxiously await what enforcement litigation the EEOC has in store. Although 2016 showed a marked decline in filings, fiscal year 2017 shows a return to vigorous enforcement filings, with a substantial number of filings in the waning days of the fiscal year.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/tick-tock-the-eeoc-runs-out-the-clock-fiscal-year-2017-marks-a-last-minute-return-to-frantic-filing/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=1b3e3c0b87-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-1b3e3c0b87-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA092917-LE2 If Pain, Yes Gain—Part XXXVI: Minnesota Court of Appeals Clarifies Minneapolis Paid Sick Leave Ordinance http://www.seyfarth.com:80/publications/MA092917-LE2 Fri, 29 Sep 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Last week, the Minnesota Court of Appeals upheld the Minneapolis Sick and Safe Time Ordinance, but ruled that it cannot be enforced against nonresident employers.&nbsp; Barring reversal on appeal to the Minnesota Supreme Court, this decision provides useful guidance for employers, at least until the case is heard on the merits.</em></p> <p> On September 18, 2017, the Minnesota Court of Appeals affirmed the Minnesota Hennepin County District Court&rsquo;s January 19, 2017 order, which granted in part and denied in part the Minnesota Chamber of Commerce&rsquo;s (the &ldquo;Chamber&rdquo;) motion for a temporary injunction against the enforcement of the Minneapolis Sick and Safe Time Ordinance (&ldquo;SSTO&rdquo;).&nbsp; By doing so, the Court of Appeals allowed the SSTO to remain in effect, finding that it is not preempted by existing state law, and maintained that the SSTO, at least temporarily, should not be enforced against nonresident employers, i.e., employers located outside of the Minneapolis geographic city boundaries.&nbsp; While the City of Minneapolis or the Chamber could appeal the decision to the Minnesota Supreme Court, the Court of Appeals&rsquo; decision serves as strong judicial guidance in interpreting the SSTO until any forthcoming hearing on the merits of the case. &nbsp;</p> <p> A key aspect of the Court of Appeals&rsquo; decision was affirming that the SSTO was not preempted by Minnesota&rsquo;s kin care law, Minn. Stat. &sect; 181.9413 (2016).&nbsp; The Minnesota kin care law requires employers with 21 or more employees to allow their employees to use the personal/sick leave benefits provided by the employer for safety leave and to care for certain relatives.&nbsp; In contrast, the SSTO requires that employers provide paid sick leave benefits to eligible employees if the employers have six or more employees.&nbsp;</p> <p> The Court of Appeals, in holding that the SSTO is not preempted by state law, rejected the Chamber&rsquo;s argument that the SSTO is irreconcilable with the state kin care law because it &ldquo;impliedly permits employers to decline to provide leave benefits to employees.&rdquo;&nbsp; The Court reasoned that the SSTO is not preempted because an employer would not violate the state kin care law by providing the leave benefits required by the SSTO.&nbsp; Accordingly, unless the court holds otherwise when deciding the case on the merits or the Court of Appeals decision is reversed on appeal, the SSTO is valid and enforceable. &nbsp;</p> <p> The Court of Appeals also upheld the District Court&rsquo;s holding that temporarily blocked enforcement of the SSTO against &ldquo;any employer resident outside&rdquo; the Minneapolis geographic boundaries.&nbsp; The Court viewed the SSTO&rsquo;s application to employers with at least one employee who works in Minneapolis for at least 80 hours in a year to be a provision with &ldquo;extraterritorial&rdquo; effects, at least at this stage of the litigation.&nbsp; The Court noted, citing supportive case law, that generally &ldquo;the power and jurisdiction of the city are confined to its own limits and to its own internal concerns.&rdquo;&nbsp; The District Court determined that if the SSTO were enforced against nonresident employers before a hearing on the merits of the case, employers would be harmed by &ldquo;expend[ing] substantial time and resources . . . in order to comply with [the Ordinance] mandates.&rdquo; Meanwhile, the city was unlikely to suffer &ldquo;substantial harm from a temporary injunction&rdquo; because the SSTO will not be rigorously enforced until July 1, 2018.&nbsp; Therefore, until a decision is reached on the merits of the case, and barring reversal of the Court of Appeals decision, the City of Minneapolis cannot enforce the SSTO against nonresident employers. &nbsp;</p> <p> The SSTO, which took effect on July 1, 2017, requires employers with six or more full-time, part-time, or temporary employees to provide employees with paid sick time.&nbsp; Eligible employees accrue paid sick time at the rate of one hour of leave for every 30 hours worked, up to a maximum of 48 hours per year.&nbsp; Employers following an accrual system must allow employees to carry-over their accrued, unused paid sick time to the following year.&nbsp; The SSTO, however, permits employers to limit the total amount of unused paid sick time in an employee&rsquo;s bank to 80 hours.&nbsp; Employees may use the paid sick time for their or their family members&rsquo; needs relating to physical or mental health, certain absences related to domestic abuse, sexual assault, and stalking, and certain school and workplace closings.&nbsp; For more information on the Minneapolis SSTO, see our earlier post <a href="http://www.seyfarth.com/publications/MA060716-LE">here</a>.&nbsp; &nbsp;</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.&nbsp; With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/MA092917-LE Paltry Prerequisites for PAGA Penalty Paystub Plaintiffs http://www.seyfarth.com:80/publications/MA092917-LE Fri, 29 Sep 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>California employees who are denied adequate wage statements (&ldquo;paystubs&rdquo;) can sue for penalties. Paystub penalty plaintiffs generally must prove they suffered an &ldquo;injury&rdquo; caused by the employer&rsquo;s &ldquo;knowing and intentional failure&rdquo; to provide an adequate paystub. But now the Court of Appeal, Lopez v. Friant&nbsp; &amp; Associates, LLC, holds that penalty-seeking employees can circumvent these proof requirements by suing for paystub penalties under PAGA. It remains unclear if PAGA plaintiffs are entitled to the default penalties that PAGA provides or instead must be satisfied with certain pre-existing civil penalties. </em></p> <p> <strong>PAGA Background</strong></p> <p> The California Legislature, with its extremely dour view of employers, has promulgated hundreds of Labor Code provisions that closely regulate virtually every aspect of the employment relationship, all with the stated goal of protecting employees against abusive employers. And, convinced that too many employers get away with too much, the Legislature has assigned a large civil penalty for virtually every Labor Code violation. To induce employer compliance, the Legislature, in the Labor Code Private Attorneys General Act of 2004 (&ldquo;PAGA&rdquo;), assigned a default penalty for each Labor Code violation for which a civil penalty was not already provided.</p> <p> At the same time, convinced that the California Labor Commissioner lacked enough resources to prosecute Labor Code violations vigorously, the Legislature deputized &ldquo;aggrieved&rdquo; employees to sue in the Labor Commissioner&rsquo;s stead. A PAGA plaintiff can sue an employer for the civil penalty previously provided or can sue for the PAGA default civil penalty of $100 per aggrieved employee per pay period (or $200 per employee per pay period for repeat offenders).</p> <p> <strong>The <em>Lopez </em>Case</strong></p> <p> Labor Code section 226(a) specifies nine ways employers may violate their duty to provide itemized paystubs. Section 226(e)(1) provides that an employee &ldquo;suffering injury&rdquo; as a result of an employer&rsquo;s &ldquo;knowing and intentional failure&rdquo; to comply with Section 226(a) can recover the greater of actual damages or $50 for the first pay period in which the violation occurs and $100 for each further pay period, up to a maximum &ldquo;aggregate penalty&rdquo; of $4,000 per employee.</p> <p> Meanwhile, Labor Code section 226.3 provides for a &ldquo;civil penalty&rdquo; for violations of Section 226(a): $250 per employee per violation for an initial citation, and $1,000 per employee for each violation in a further citation.</p> <p> Eduardo Lopez claimed that his employer, Friant &amp; Associates, LLC, violated Section 226 by failing to include his Social Security Number or his employee identification number on his itemized wage statements. Friant acknowledged that it had inadvertently issued wage statements without such a number, and promptly resolved the problem.</p> <p> That was not enough for Lopez. He sought penalties. He pursued a claim solely under PAGA, rather than seeking penalties under Section 226(e). The trial court granted Friant&rsquo;s motion for summary judgment because Lopez failed to show the &ldquo;knowing and intentional&rdquo; violation that Section 226(e)(1) requires.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> On appeal, Lopez argued that Section 226(e)&rsquo;s proof prerequisites do not apply in a PAGA action, and the Court of Appeal agreed. The Court of Appeal reasoned that Section 226(e) describes a claim for damages and &ldquo;statutory penalties,&rdquo; while Lopez was suing under PAGA for &ldquo;civil penalties.&rdquo; Because Lopez was making a &ldquo;civil penalty&rdquo; claim distinct from a Section 226(e) &ldquo;statutory penalty&rdquo; claim, he did not have to prove he &ldquo;suffer[ed] injury&rdquo; because of Friant&rsquo;s &ldquo;knowing and intentional failure&rdquo; to provide a compliant wage statement. To buttress its point, the Court of Appeal observed that the Labor Code, in discussing the procedural requirements for a PAGA suit, does not refer to Section 226(e) but does refer to Section 226(a). The Court of Appeal thus concluded that Lopez can sue for PAGA penalties without establishing the &ldquo;injury&rdquo; and &ldquo;knowing and intentional&rdquo; elements of a Section 226(e) claim.</p> <p> <strong>What <em>Lopez</em> Means For Employers </strong></p> <p> <em>Lopez </em>makes worse what was bad enough already. Employers already were subject to draconian penalties for trivial imperfections in paystubs that often are inadvertent and cause no real harm to anyone. Now &ldquo;aggrieved employees,&rdquo; under PAGA, can seek penalties even while admitting they have suffered no injury at all, and even while admitting that the employer&rsquo;s technical mistake was neither knowing nor intentional. <em>Lopez</em>, if not corrected by the Legislature or the California Supreme Court, will doubtless inspire even more paystub suits, achieving no real benefit while simply benefiting opportunistic plaintiffs&rsquo; attorneys.</p> <p> An issue that<em> Lopez </em>leaves open is whether successful PAGA paystub plaintiffs recover the default PAGA penalty ($100 or $200 per employee per pay period) or the pre-existing civil penalty that Section 226.3 provides for paystub violations. In either event, the employer would be deprived of the $4,000 per-employee cap of Section 226(e).</p> <p> Meanwhile, <em>Lopez </em>obviously reinforces the need to regularly review wage statements to ensure that they fully comply with Section 226(a).</p> http://www.seyfarth.com:80/news/boutrosapp092917 Andrew Boutros quoted in the Asbury Park Press http://www.seyfarth.com:80/news/boutrosapp092917 Fri, 29 Sep 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in a September 29 story from the Asbury Park Press, &quot;Sex on campus: Schools want students to say &#39;Yes&#39;.&quot; As chairman of the American Bar Association&#39;s Criminal Justice Section Task Force on College Due Process Rights and Victim Protections, Boutros said the federal guidelines that told schools how to handle cases of alleged sexual misconduct was a process that was frankly broken, broken on both sides. You can read the <a href="http://www.app.com/story/news/education/education-trends/2017/09/29/saying-yes-sex-college-reports-sex-crimes-up-nj-schools/549688001/">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberg092917 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg092917 Fri, 29 Sep 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a September 29 story from Bloomberg, &quot;California Helps Workers Sue Their Bosses. New York Has Noticed, &quot; on how the U.S. Supreme Court will consider whether employees have the right to bring class actions against their bosses. Babson said that the court may decide to treat PAGA claims the same way as other suits filed by employees. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-29/california-helps-workers-sue-their-bosses-new-york-has-noticed">full article here</a>.</p> http://www.seyfarth.com:80/news/stevensshrm092817 Michael Stevens quoted in SHRM http://www.seyfarth.com:80/news/stevensshrm092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> Michael Stevens was quoted in a September 28 story from SHRM, &quot;Calif. Harassment Training May Add Gender Identity and Sexual Orientation,&quot; on ho state lawmakers sent S.B. 396 to the governor for signature or veto. Stevens said that S.B. 396 would add a requirement for employers to provide practical training to supervisors to prevent harassment of lesbian, gay, bisexual and transgender (LGBT) employees&mdash;as well as those who are perceived as LGBT. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/california-sexual-harassment-training-lgbt.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360092817 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a September 28 story from Law360, &quot;What GCs Should Know About The Latest Travel Ban,&quot; on how the President&#39;s newest travel ban, which places restrictions on immigrants and visitors to the United States from eight countries, could limit hiring, promoting, business-related trips and other travel for companies that employ individuals around the world. Paparelli said that companies should ensure all required recording keeping is maintained in a way that it can be turned over to the government if requested.</p> http://www.seyfarth.com:80/news/passantinoshrm092817 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a September 28 story from SHRM, &quot;SHRM: Exempt Overtime Threshold Should Be Nearly $32,000,&quot; on how SHRM says the 2004 overtime regulation methodology should be used again. Passantino authored the Partnership to Protect Workplace Opportunity&#39;s (PPWO) comments which seek to inform the department&#39;s efforts to set a new salary threshold in an economically responsible way. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-rfi-shrm-comments.aspx?widget=mostpopular1">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezbna092817 Leon Rodriguez quoted in Bloomberg BNA http://www.seyfarth.com:80/news/rodriguezbna092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 28 story from Bloomberg BNA, &quot;Want a Green Card? New Interview Process Could Create Headaches,&quot; on how immigrants seeking employment-based green cards from within the U.S. will soon have to appear for an in-person interview. Rodriguez said that he was a little bit mystified as to why the employment-based green card is the first place they went for interviews and said this group of immigrants has never been a particularly high-risk segment of the immigration world.</p> http://www.seyfarth.com:80/publications/ERISA092817 Penn Succeeds in Dismissing Retirement Plan Proposed Class Action http://www.seyfarth.com:80/publications/ERISA092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> On September 21, 2017, the Eastern District of Pennsylvania ruled in favor of the University of Pennsylvania on every count in a proposed class action, which challenged the school&rsquo;s retirement plan fees, investment lineup, and use of multiple plan record keepers. The proposed class action specifically alleged that both Penn and the administrator of its defined contribution retirement plan breached their fiduciary duty by &ldquo;locking in&rdquo; participants&rsquo; options to two investment companies, allowed the plan to pay too much in administrative fees, and charged excessive investment fees for access to an underperforming portfolio.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/09/28/penn-succeeds-in-dismissing-retirement-plan-proposed-class-action/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=6b8f733086-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-6b8f733086-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wse092817 Time is Running Out to Plan for Your Company’s Compliance With New ISO 14001 EMS Standards http://www.seyfarth.com:80/publications/wse092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> The new ISO standard brings significant change that will require considerable time and thought to implement. Due to the timing, the strategy should focus on implementing the EMS to address the greatest &ldquo;gaps&rdquo; and developing the &ldquo;hard proof&rdquo; of its effectiveness within your organization.</p> <p> <a href="http://www.environmentalsafetyupdate.com/environmental-compliance/time-is-running-out-to-plan-for-your-companys-compliance-with-new-iso-14001-ems-standards/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=b23219124f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-b23219124f-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR092817 NLRB Rounding Into Shape http://www.seyfarth.com:80/publications/LR092817 Thu, 28 Sep 2017 00:00:00 -0400 <p> The National Labor Relations Board took another big step away from the Obama-era Board composition earlier this week as William J. Emanuel gained Senate approval and was subsequently sworn in as the fifth and final (for now) Board member.&nbsp; Mr. Emanuel brings extensive management-side experience to the Board, and he will be the third Republican member on the Board, giving Republicans a 3-2 majority over Democrats for the first time in over a decade.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/28/nlrb-rounding-into-shape/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=77c8e18385-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-77c8e18385-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL082817 Sleeping On the Job… Again? Second New York Appellate Court Finds Home Healthcare Employees Entitled to Pay for all 24 Hours on an Overnight Shift http://www.seyfarth.com:80/publications/EL082817 Thu, 28 Sep 2017 00:00:00 -0400 <p> Seyfarth Synopsis: The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (&ldquo;Second Department&rdquo;) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client&rsquo;s home, including sleeping and meal periods.&nbsp; With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/sleeping-on-the-job-again-second-new-york-appellate-court-finds-home-healthcare-employees-entitled-to-pay-for-all-24-hours-on-an-overnight-shift/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=54d484b9df-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-54d484b9df-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT092917 The Week in Weed: September 29, 2017 http://www.seyfarth.com:80/publications/TBT092917 Thu, 28 Sep 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <ul> <li> <a href="http://openalerts.ozmosys.com/oadev/oat.php?zg=121&amp;zt=44764933&amp;zu=http://www.newsweek.com/marijuana-los-angeles-california-legalization-weed-671171">L.A. Approves Marijuana Rules for Recreational Dispensaries</a><br /> (Newsweek: All News, 26 September 2017)</li> </ul> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-29-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=cf194892ee-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-cf194892ee-73179537">Read the full blog post</a></p> http://www.seyfarth.com:80/publications/wse092717 Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know http://www.seyfarth.com:80/publications/wse092717 Wed, 27 Sep 2017 00:00:00 -0400 <p> A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost. The after-action report offers some lessons learned.</p> <p> <a href="http://www.environmentalsafetyupdate.com/workplace-violence/airport-active-shooter-incident-what-can-happen-in-just-15-seconds-and-what-business-needs-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=b23219124f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-b23219124f-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM092717-EB "It all sounds very reasonable..." New SEC Guidance Emphasizes Reasonableness and Flexibility in CEO Pay Ratio Disclosure http://www.seyfarth.com:80/publications/OMM092717-EB Wed, 27 Sep 2017 00:00:00 -0400 <div> On September 21, 2017, the Securities and Exchange Commission (the &ldquo;SEC&rdquo;) published an <a href="https://www.sec.gov/news/press-release/2017-172">interpretative release and related compliance and disclosure interpretations (&ldquo;C&amp;DIs&rdquo;)</a> for registrants regarding the CEO pay ratio disclosure rule, one of the widely publicized (and much maligned) requirements of the Dodd-Frank Wall Street Reform and Consumer Protection Act (&ldquo;Dodd-Frank&rdquo;). The SEC&rsquo;s overarching message in this interpretive guidance and staff guidance is &ldquo;Be reasonable,&rdquo; accompanied by the acknowledgment of some &ldquo;degree of imprecision&rdquo; in ascertaining pay ratios.&nbsp;</div> <div> &nbsp;</div> <div> The pay ratio disclosure rule, which was added to Item 402(u) of Regulation S-K by Section 953(b) of Dodd-Frank, requires a registrant to disclose the ratio of its principal executive officer&rsquo;s compensation to its median employee&rsquo;s compensation. Expounding on its <a href="http://www.seyfarth.com/publications/MA082815-CORP">August 2015 instructions and release accompanying the final pay ratio disclosure rule</a>, the SEC&rsquo;s recently published interpretive release, C&amp;DIs, and staff guidance underscores registrants&rsquo; flexibility in identifying the median employee and calculating that employee&rsquo;s compensation for the year, so long as any assumptions are based on reasonable foundations consistent with the final rule and made in good faith.&nbsp;</div> <div> &nbsp;</div> <div> Specifically, registrants can use reasonable beliefs, estimates, assumptions, methodologies and statistical sampling in determining median employee compensation, including:</div> <div> &nbsp;</div> <ul> <li> Using existing internal records that are reasonably reflective of annual compensation, such as payroll or tax records, to determine median compensation (even if the records do not account for all aspects of compensation), as well as to determine if its non-US population is de minimis (5% or less of total employees) and thus excludable.&nbsp;</li> <li> Ascertaining whether an individual is an independent contractor according to another &ldquo;widely recognized test&rdquo; (e.g., the 20-factor test commonly used by the IRS)&mdash;despite the fact that Item 402(u) contains its own definition of &ldquo;employees&rdquo; who must be taken into account for purposes of determining the median employee.&nbsp;</li> </ul> <div> &nbsp;</div> <div> In its staff guidance released at the same time as the interpretive guidance, the SEC&rsquo;s Division of Corporation Finance offers questions and examples to illustrate how a registrant can use estimates, statistical sampling and other reasonable methodologies (alone or in combination) to identify its median employee and to calculate that employee&rsquo;s annual total compensation for purposes of determining the ratio to be disclosed. The SEC notes that the pay ratio disclosure rule does not mandate any particular technique to determine the population of employees from which a registrant must identify the median employee. For example, a registrant may consider statistical methods such as making distributional assumptions (e.g., assuming a lognormal distribution), as well as methods to impute or adjust for missing data and to account for outlying data points. The new guidance emphasizes that if a company does not use annual total compensation to identify its median employee, that any alternative measure must be consistently applied and reasonably reflect the annual compensation of employees.</div> <div> &nbsp;</div> <div> <em>Note that the CEO pay ratio disclosure is required in proxies for fiscal years beginning on or after January 1, 2017. Despite a commitment by the SEC to revisit prior guidance related to this disclosure requirement, as well as ongoing Congressional attempts to repeal the associated section of Dodd-Frank, registrants should now be strategizing on how to comply with the new requirement, including the options for navigating disclosure challenges.</em></div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WC092717 EEOC Ordered To Pay $1.9 Million For Frivolous Claims Against Trucking Company http://www.seyfarth.com:80/publications/WC092717 Wed, 27 Sep 2017 00:00:00 -0400 <p> In the latest chapter of the ongoing legal battle between the EEOC and delivery company CRST Van Expedited regarding the agency&rsquo;s sexual harassment claims, a federal district court ordered the EEOC to pay $1.9 million in attorneys&rsquo; fees to the company for pursuing claims that it knew or should have known were frivolous.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/eeoc-ordered-to-pay-1-9-million-for-frivolous-claims-against-trucking-company/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/shermancnbc092717 Andrew Sherman quoted in CNBC.com http://www.seyfarth.com:80/news/shermancnbc092717 Wed, 27 Sep 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in a September 27 story from CNBC.com, &quot;Before tax reform: 1 in 5 small-business owners don&#39;t even know their tax rate,&quot; on how small-business owners will be digging into details of the tax-reform plan that GOP leaders and the President will officially announce. Sherman said that knowing the tax code and tax credits, both at a federal or local level, is important for business owners who want to be rewarded for following IRS guidance. You can read the <a href="https://www.cnbc.com/2017/09/27/irs-audit-alert-1-in-5-business-owners-doesnt-know-tax-rate.html">full article here</a>.</p> http://www.seyfarth.com:80/news/livingstonbloomberg092617 Brad Livingston quoted in Bloomberg http://www.seyfarth.com:80/news/livingstonbloomberg092617 Tue, 26 Sep 2017 00:00:00 -0400 <p> Brad Livingston was quoted in a September 26 story from Bloomberg, &quot;Fire NFL Players for Protesting? Union Deals Make That Unlikely.&quot; Livingston said that if owners wanted to crack down on unionized athletes protesting during the national anthem, they would need to show some concrete way it was hurting them. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-26/fire-nfl-players-for-protesting-union-deals-make-that-unlikely">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthlaw360092617 Seyfarth's comments published in Law360 http://www.seyfarth.com:80/news/seyfarthlaw360092617 Tue, 26 Sep 2017 00:00:00 -0400 <p> Seyfarth&#39;s comments were published in a September 26 story from Law360, &quot;OT Rule Comments Show Sharp Divide On Salary Threshold.&quot; Seyfarth said that establishing different salary levels based on geographic area, employer size or industry would also require the DOL to set rules for assessing when an employer or employee is working in a particular geographic area or industry, or how employer size should be determined.</p> http://www.seyfarth.com:80/news/devata092617 Pam Devata quoted in Legal Newsline http://www.seyfarth.com:80/news/devata092617 Tue, 26 Sep 2017 00:00:00 -0400 <p> Pam Devata was quoted in a September 26 story from Legal Newsline, &quot;Spokeo case may return to U.S. Supreme Court after Ninth Circuit ruling about concrete harm, attorney says.&quot; Devata said that there is a high possibility that an FCRA case dealing with concrete harm will likely go to the Supreme Court. You can read the <a href="http://legalnewsline.com/stories/511228404-spokeo-case-may-return-to-u-s-supreme-court-after-ninth-circuit-ruling-about-concrete-harm-attorney-says">full article here</a>.</p> http://www.seyfarth.com:80/news/maechtlenhpc092617 Laura Maechtlen profiled in High Performance Counsel http://www.seyfarth.com:80/news/maechtlenhpc092617 Tue, 26 Sep 2017 00:00:00 -0400 <p> Laura Maechtlen was profiled in a September 26 story from High Performance Counsel, &quot;Laura Maechtlen &ndash; Partner at Seyfarth Shaw LLP &ndash; In Interview For The #BakersDozen.&quot; You can read the <a href="https://highperformancecounsel.com/laura-maechtlen-partner-seyfarth-shaw-llp-interview-bakersdozen/?utm_source=dlvr.it&amp;utm_medium=twitter">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezwsj092617 Leon Rodriguez quoted in the Wall Street Journal http://www.seyfarth.com:80/news/rodriguezwsj092617 Tue, 26 Sep 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 26 story from the Wall Street Journal, &quot;White House Plans to Set Refugee Cap at 45,000 for Next Fiscal Year,&quot; on how the refugee cap would be the lowest since at least 1980. Rodriguez said that it was a false choice to pit asylum applicants against refugees and that there is enough money at DHS to do both. You can read the <a href="https://www.wsj.com/articles/white-house-plans-to-set-refugee-cap-at-45-000-for-next-fiscal-year-1506447484">full article here</a>.</p> http://www.seyfarth.com:80/publications/CEL092617 China and Spain Signed Bilateral Social Security Agreement http://www.seyfarth.com:80/publications/CEL092617 Tue, 26 Sep 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Bilateral social security agreements between countries play an important role in facilitating the cross-border movement of employees, as they reduce exposure to the simultaneous application of the relevant countries&rsquo; social security programs to a cross-border employee.&nbsp; In what seems to be a continuing trend for the PRC government, it concluded a bilateral social security agreement with the Spanish government (the &ldquo;<strong>Sino-Spain Agreement</strong>&rdquo;) during the G20 Labor and Employment Ministers&rsquo; Meeting in Germany earlier this year.</em></div> <div> &nbsp;</div> <div> The PRC and Spanish governments signed the Sino-Spain Agreement on May 19, 2017.&nbsp; Negotiations on the Sino-Spain Agreement began in 2011, and it will come into force after each country completes their respective domestic legal procedures.&nbsp; Under the Sino-Spain Agreement, Chinese employees assigned to work in Spain, and their employers, will be exempt from certain compulsory social security insurance programs in Spain, such as pension and unemployment insurance. Reciprocally, Spanish employees working in China and their employers will be entitled to a similar exemption.&nbsp; Details about the reciprocal exemptions are expected before the Agreement&rsquo;s effective date and, as is the case with all bilateral social security agreements, a number of conditions are expected to be placed on the exemptions.</div> <div> &nbsp;</div> <div> As of today, the PRC government has signed bilateral social security agreements with eight other countries (Germany, Korea, Denmark, Finland, Canada, Switzerland, Holland and France) and is negotiating with more countries (e.g. Japan) on similar agreements.</div> <div> &nbsp;</div> <div> With the continued increase of foreign expatriates working in China and Chinese citizens working overseas, bilateral social security agreements will benefit both employers and their employees by avoiding double-payment obligations with respect to social security programs, thus lowering labor costs for foreign expatriates.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Bilateral social security agreements typically set out mandatory administrative and substantive requirements in order to claim exemptions under them.&nbsp; Before hiring foreign expatriates in China, or dispatching their Chinese employees to work overseas, multinational employers should check the availability of, and requirements for, such exemptions under any relevant bilateral agreements.&nbsp;</div> <div> &nbsp;</div> <div> If you would like further information with respect to any bilateral agreements that China has with any country, or how to apply for exemptions under them, please contact <a href="http://www.seyfarth.com/WanLi">Wan Li</a> at <a href="mailto:LWan@seyfarth.com">LWan@seyfarth.com</a>, <a href="http://www.seyfarth.com/DarrenGardner">Darren Gardner</a> at <a href="mailto:DGardner@seyfarth.com">DGardner@seyfarth.com</a> or any member of our <a href="http://www.seyfarth.com/International-Employment-Law">International Employment Law Team</a>.</div> http://www.seyfarth.com:80/publications/MA092517-LE Will the Supreme Court Finally Remove Doubt That an Employer Can Mandate That Employees Enter into Arbitration Agreements with Class Waivers? http://www.seyfarth.com:80/publications/MA092517-LE Mon, 25 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: In the first argument of the first day of its new term, the U.S. Supreme Court will hear oral argument in three cases presenting the issue of whether an employer may require employees to enter into arbitration agreements containing a waiver of the ability to join a class or collective action. The Court&rsquo;s decision -- expected in early 2018 -- could significantly alter the landscape of multi-claimant employment litigation more than any other development in recent memory. Employers should start preparing now.</em></p> <p> Whether for claims of discrimination, ERISA violations, or, most frequently, wage-hour violations, employers have faced an increasing number of employment lawsuits brought as class or collective actions, and have spent more and more to defend and settle them. As a result, some employers have enacted mandatory arbitration programs for their employees, with a key feature of the arbitration program being a waiver of the ability to participate in a class or collective action.</p> <p> <strong>The Supreme Court&rsquo;s Embrace of the Federal Arbitration Act</strong></p> <p> Enforcing arbitration agreements with class waivers has been successful for the most part in recent years, at least with respect to arbitration programs that are carefully drafted to avoid state contract defenses such as claims of lack of consideration or procedural unconscionability. This is largely due to the U.S. Supreme Court steadily removing the most significant hurdles to enforcement of class waivers in arbitration agreements.</p> <p> At first, many argued that a class waiver violates public policy. But in 2011, the Supreme Court made clear in <em>AT&amp;T Mobility v. Concepcion</em> that California&rsquo;s <em>Discover</em> <em>Bank</em> rule that effectively barred enforcement of class action waivers in consumer arbitration contracts is preempted by the Federal Arbitration Act (&ldquo;FAA&rdquo;). Then, some tried to distinguish <em>Concepcion</em> by arguing that it merely elevated the federal FAA above state law, and that a class waiver of a federal claim cannot be enforced. But the Supreme Court rejected that argument in 2012 in <em>CompuCredit Corp. v. Greenwood</em> and held that arbitration agreements must be enforced according to their terms &ldquo;even when federal statutory claims are at issue.&rdquo; Next, some argued that class waivers should not be enforced because if small claims cannot be pooled together in a class or collective action, then there is no way effectively to vindicate rights, especially where the costs to pursue individual claims exceeds the potential recovery. The Supreme Court rejected that theory too, in 2013, in <em>American Express Co. v. Italian Colors Restaurant.</em></p> <p> The net effect of these favorable rulings could have caused most employers to adopt arbitration programs with class waivers. Many held back, however. One reason is that, in the employment context, a significant hurdle remained to the enforcement of class waivers in arbitration agreements: the National Labor Relations Board (&ldquo;NLRB&rdquo;) and its <em>D.R. Horton </em>decision in 2012.</p> <br clear="all" /> <p> &nbsp;</p> <h2> <strong>The NLRB -- and Some Circuit Courts -- Fight Back</strong></h2> <p> The NLRB&rsquo;s theory, first articulated in <em>D.R. Horton</em>, is that the pursuit of class or collective actions constitutes protected concerted activity under Section 7 of the National Labor Relations Act (&ldquo;NLRA&rdquo;). &nbsp;Just as Section 7 protects the right to form a union, picket, strike or engage in other concerted activities for mutual aid or protection, it also protects the right of employees to band together to participate in a class or collective action, or so has said the NLRB. The Fifth Circuit, however, refused to enforce the NRLB&rsquo;s decision, and shortly thereafter, the Second and Eighth Circuits rejected similar arguments premised on the NLRB&rsquo;s theory. Similarly, all but a handful of district courts rejected the <em>D.R. Horton</em> theory even while the NLRB continued to espouse it.</p> <p> That changed in May 2016 when the Seventh Circuit issued its decision in <em>Lewis v. Epic Systems Corp. </em>There, the Seventh Circuit endorsed the theory that bringing a class or collective action (Lewis brought both) is a form of protected concerted activity under the NLRA, and that because of that, an arbitration agreement that requires a class waiver is illegal. Accordingly, said the Seventh Circuit panel, the arbitration agreement cannot be enforced under the saving clause of the FAA (the &ldquo;saving clause&rdquo; provides that arbitration agreements &ldquo;shall be valid, irrevocable, and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract&rdquo;).<a href="#_ftn1" name="_ftnref1" title="">[1]</a> A few months later, in May 2016, the Ninth Circuit followed the Seventh in <em>Morris v. Ernst &amp; Young</em> (as did the Sixth Circuit a year later in May 2017 in <em>NLRB v. Alternative Entertainment, Inc.</em>).</p> <p> <strong>The Supreme Court Steps In to Tackle the Most Significant Employment Case in Years</strong></p> <p> Due to the circuit split, the Supreme Court granted <em>cert</em> to three case presenting the issue of whether an employer may require its employees to arbitrate all claims against it on an individual (<em>i.e., </em>non-class) basis, despite the provisions of the NLRA: <em>Epic Systems Corp. v. Lewis</em> from the Seventh Circuit, <em>Ernst &amp; Young v. Morris</em> from the Ninth Circuit, and <em>NLRB v. Murphy Oil Co.</em> out of the Fifth Circuit.</p> <p> Oral argument will take place on October 2, the first day of the Supreme Court&rsquo;s term. Indeed, the three cases constitute the first matter the Court will take up that day. The Court does not announce when opinions will be issued, but it is expected that the decisions in these cases likely will be issued in January or February 2018.</p> <p> A decision in favor of the plaintiffs and the NLRB likely would preclude enforcement of class waivers as to the vast majority of employment claims and would allow to continue, if not further amplify, the wave of collective and class actions that have plagued employers. Those groups of employees not covered by the NLRA, including supervisors and independent contractors, likely could be compelled to enter into class waivers, but all other employees would remain free to lead or participate in class or collective proceedings.</p> <p> A decision in favor of the companies, however, probably would clear the last foreseeable hurdle to the enforcement of arbitration agreements containing a waiver of the ability to participate in a collective or class action. It is even possible that the Court&rsquo;s reasoning could allow for class waivers outside of an arbitration agreement, as the Fifth Circuit held earlier this year in <em>&nbsp;Convergys Corp. v. NLRB.&nbsp; </em></p> <p> A green light for class waivers in arbitration agreements thus likely would cause many employers to adopt arbitration&nbsp; programs with class waivers. Those waivers likely would be enforced by courts under a favorable Supreme Court decision, provided the waivers and the arbitration agreements are carefully drafted to comport with state contract laws. &nbsp;&nbsp;</p> <p> There are some narrow exceptions for certain claims or employees that would not be covered. &nbsp;For example, claims under California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;) cannot be compelled to arbitration, and certain transportation workers are exempt from the FAA (though arbitration agreements potentially could be enforced as to them under state arbitration acts). &nbsp;Also, employees must remain free to file administrative charges, and lawsuits initiated by the EEOC or Department of Labor would be unaffected by arbitration agreements with class waivers. There also could be multi-claimant actions brought in different ways, such as the assertion of serial arbitration demands on behalf of dozens of employees at a time. But on the whole, a favorable Supreme Court decision could enable employers to largely avoid the employment class action epidemic.</p> <p> <strong>&ldquo;So Should Our Company Have One of These Arbitration Agreements?&rdquo;</strong></p> <p> Because of the potential significance of the Court&rsquo;s ruling, the October 2 oral argument is likely to receive a lot of media attention over the next few weeks. Company executives are likely to ask their in-house lawyers and&nbsp; human resource professionals some variant of the following question:&nbsp; &ldquo;I just read about this case about arbitration agreements and class waivers. &nbsp;Do we have that? Should we have that?&rdquo;</p> <p> The answer to that question, in the short term, probably is to wait and see how the Court rules, which should be within a few months. &nbsp;But if the Court rules in favor of employers, the answer still will vary from company to company, as an arbitration program may not be right for every employer even though it may free a company from the burdens of an expensive class or collection action.&nbsp;&nbsp; There are several other advantages to consider, but also several disadvantages.&nbsp;</p> <p> On the one hand, companies that implement such an agreement could avoid runaway jury verdicts, reach decisions on the merits more quickly than is typical in court, and likely count on greater confidentiality given the non-public nature of arbitration proceedings.&nbsp; On the other hand, an arbitration agreement means that, for covered claims, employment disputes are before an arbitrator rather than a judge. &nbsp;Arbitrators often are less predictable than judges, usually disfavor motions to dismiss or summary judgment motions, and issue binding decisions from which there is often limited opportunity for appeal.&nbsp; Arbitrations also can be more expensive:&nbsp; arbitrator fees can be high and generally must be borne by the employer.&nbsp; Also, arbitrations more typically result in an evidentiary hearing (rather than ending by a dispositive motion), meaning that attorneys&rsquo; fees for arbitrations may be higher as well.&nbsp; Finally, many companies are concerned that employees may perceive an arbitration program with a class waiver to be a takeaway, potentially leading to a drop in employee morale or even giving a boost to a union organizing effort.</p> <p> In addition to the above considerations, drafting and implementing an arbitration agreement requires great care. For example, employers need to ensure that they not give a court any basis on which to find that the provisions of an arbitration agreement could be unconscionable. Thought must be given to what claims are covered (<em>e.g.</em>, should the agreement cover wage-hour claims but not discrimination claims?). Questions often arise about whether a mutual exchange of promises to arbitrate constitutes sufficient consideration, or whether consideration beyond continued employment must be provided in some states.&nbsp; Above all, a thoughtful communications plan must be prepared to minimize employee relations risks.</p> <p> Although a ruling in these cases is not likely until early 2018, it is not too early to start thinking of next steps. Please join us for a webinar on October 4, 2017 at 1:00 p.m. Eastern, during which we will provide our analysis of the Court&rsquo;s oral argument, predict what employers may expect from the Court&rsquo;s ruling, and whether, when, and how employers should enact or modify their arbitration programs. &nbsp;<a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cY0-9yZsG4k2KIGepya_8Jlq2kCNJdgoOAKWoFl46qYO&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cUkiL_opDsyuC6_wIHRMSsgJ-qU2Xbmf44ETrT1t3afJ&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cUkiL_opDsyuC6_wIHRMSsgJ-qU2Xbmf44ETrT1t3afJ">Click here</a> to register.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Seyfarth Shaw LLP is counsel for Epic in the <em>Lewis </em>case at the district court, was counsel for Epic in the appellate court, and is co-counsel for Epic at the Supreme Court.&nbsp; The views expressed in this article are Seyfarth Shaw&rsquo;s and not necessarily those of Epic.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM092517-LE Presidential Proclamation Sets New Restrictions on Travel to the United States http://www.seyfarth.com:80/publications/OMM092517-LE Mon, 25 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Country-specific travel restrictions will impact nationals of Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela.</em></p> <p> Immediately preceding the expiration of <a href="https://www.whitehouse.gov/the-press-office/2017/03/06/executive-order-protecting-nation-foreign-terrorist-entry-united-states">Executive Order 13780</a>, President Trump signed a <a href="https://www.whitehouse.gov/the-press-office/2017/09/24/enhancing-vetting-capabilities-and-processes-detecting-attempted-entry">presidential proclamation</a> maintaining, modifying, or easing country-specific travel restrictions for nationals of eight countries. According to the White House, following a worldwide review of information-sharing practices, the Secretary of Homeland Security, in consultation with interagency stakeholders, made her final recommendation to the President on foreign nationals who should be subject to travel restrictions due to deficiencies in identity management or information sharing, and/or risk factors in the designated countries.</p> <p> As of 3:30 PM EDT on September 24th, the proclamation applies to nationals of the designated countries applying for a U.S. visa who lack a bona fide connection to a person or entity in the U.S., consistent with the entry restrictions under Executive Order 13780. Travel restrictions for all other nationals designated under this proclamation will take effect on October 18, 2017.&nbsp;&nbsp;</p> <p> The country specific restrictions are as follows:</p> <table border="1" cellpadding="0" cellspacing="0"> <tbody> <tr> <td style="width:319px;"> <p> North Korea, Syria</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for all immigrants and nonimmigrants</p> </td> </tr> <tr> <td style="width:319px;"> <p> Iran</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for all immigrants and nonimmigrants, except for travelers with valid student (F or M) or exchange visitor (J) visas</p> </td> </tr> <tr> <td style="width:319px;"> <p> Somalia</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for immigrants; Nonimmigrants traveling to the U.S. subject to enhanced screening and vetting requirements</p> </td> </tr> <tr> <td style="width:319px;"> <p> Chad, Libya, Yemen</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for immigrants and nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.</p> </td> </tr> <tr> <td style="width:319px;"> <p> Venezuela</p> </td> <td style="width:319px;"> <p> Entry to the U.S. suspended for certain government officials and their immediate family members as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas</p> </td> </tr> </tbody> </table> <p> <br /> The U.S. lifted restrictions on Sudan. While no formal entry restrictions and limitations have been placed on nationals ofIraq, Iraqi nationals who seek to enter the U.S. will be subject to &ldquo;additional scrutiny to determine if they pose risks to the national security or public safety of the U.S.&rdquo;</p> <p> Currently valid visas will not be revoked and suspension of entry does not apply to the following individuals:</p> <ol> <li> Any Lawful Permanent Resident (LPR), also known as a green card holder, of the U.S.;</li> <li> Any foreign national who is admitted to or paroled into the U.S. after the effective date of the proclamation;</li> <li> Any foreign national who possesses a valid travel document, other than a visa, that permits him or her to travel to the U.S. and seek entry or admission (for example, an advance parole document);</li> <li> Any dual national of a country designated under this proclamation who travels on a passport issued by a non-designated country;</li> <li> Any national traveling on a diplomatic or diplomatic-type visa, North Atlantic Treaty Organization visa, C-2 visa for travel to the United Nations, or G-1, G-2, G-3, or G-4 visa; and,</li> <li> Any national who has been granted asylum or refugee status in the U.S. or has been granted withholding of removal, advance parole, or protection under the Convention Against Torture.</li> </ol> <p> Seyfarth Shaw will continue to monitor these developments closely, and will publish updated information accordingly.</p> http://www.seyfarth.com:80/publications/arnoldilo092517 Edward Arnold authored an article in International Law Office http://www.seyfarth.com:80/publications/arnoldilo092517 Mon, 25 Sep 2017 00:00:00 -0400 <p> Edward Arnold authored a September 25 article in International Law Office, &quot;Batten down the hatches: tips for owners and contractors affected by Hurricanes Harvey and Irma.&quot; The article discusses how owners and contractors of existing projects &ndash; whether in Houston, Florida or other parts of the country &ndash; as well as those involved in new projects to rebuild, must take steps to assess the affects and identify their contractual rights and obligations. You can read the <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/Batten-down-the-hatches-tips-for-owners-and-contractors-affected-by-Hurricanes-Harvey-and-Irma?utm_source=Twitter&amp;utm_medium=Tweet&amp;utm_content=Newsletter-36221&amp;utm_campaign=Twitter-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL092517 A Shocker from the Heartland: A Long Term Leave of Absence is NOT A Reasonable Accommodation Under the ADA http://www.seyfarth.com:80/publications/EL092517 Mon, 25 Sep 2017 00:00:00 -0400 <p> To the surprise of many observers, and undoubtedly the EEOC, the Seventh Circuit held last week in Severson v. Heartland Woodcraft, Inc., &mdash; F. 3d &mdash; Case No. 14-cv-1141 (7th Cir. Sept. 20, 2017) that &ldquo;a long-term leave of absence cannot be a reasonable accommodation&rdquo; under the ADA. Id. at 7. Judge Sykes, on behalf of a power panel that included Chief Judge Wood and Judge Easterbrook, analyzed the language of the ADA and concluded that it &ldquo;is an antidiscrimination statute, not a medical-leave entitlement.&rdquo; Id. at 2.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/a-shocker-from-the-heartland-a-long-term-leave-of-absence-is-not-a-reasonable-accommodation-under-the-ada/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0afae7dee3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0afae7dee3-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/lucanommg092417 Andrew Lucano authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/lucanommg092417 Sun, 24 Sep 2017 00:00:00 -0400 <p> Andrew Lucano authored a September 24 article in Middle Market Growth, &quot;Let the Seller Beware.&quot; The article discusses why fraud carve-outs in M&amp;A deals can spell trouble. You can read the <a href="https://issuu.com/middlemarketgrowth/docs/1710_mmg_septoct/50">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc092317 Andrew Boutros interviewed by CBC News Network http://www.seyfarth.com:80/news/boutroscbc092317 Sat, 23 Sep 2017 00:00:00 -0400 <p> Andrew Boutros was interviewed September 23rd on CBC News Network, &quot;Special Prosecutor Robert Mueller requests more documents.&quot; Boutros spoke with the CBC&#39;s John Northcott as the Russia probe intensifies. You can watch the <a href="http://www.cbc.ca/player/play/1053767747517">full interview here</a>.</p> http://www.seyfarth.com:80/news/rodriguezbloomberg092217 Leon Rodriguez quoted in Bloomberg http://www.seyfarth.com:80/news/rodriguezbloomberg092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 22 story from Bloomberg, &quot;Trump&rsquo;s Travel Ban Decision Could Set Off New Wave of Turmoil.&quot; Rodriguez said that there could be many, many countries that end up on this list which absolutely will open up more lawsuits. You can read the <a href="https://www.bloomberg.com/news/articles/2017-09-22/trump-s-travel-ban-decision-could-set-off-new-wave-of-turmoil">full article here</a>.</p> http://www.seyfarth.com:80/news/bodanskyhflcd092217 Robert Bodansky quoted by Hedge Fund Legal & Compliance Digest http://www.seyfarth.com:80/news/bodanskyhflcd092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> Robert Bodansky was quoted in a September 22 story from Hedge Fund Legal &amp; Compliance Digest, &quot;Best Practices for Private Equity Fund Managers Entering Into Joint Ventures With Investors (Part One of Three).&quot; Bodansky said that despite the increase in the number of joint ventures, there&rsquo;s a fairly limited pool of investors that have the sophistication, resources and board approval to participate. You can read the <a href="http://www.hedgefundlcd.com/best-practices-for-private-equity-fund-managers-entering-into-joint-ventures-with-investors-part-one-of-three/">full article here</a>.</p> http://www.seyfarth.com:80/news/boutrosbuzzfeed092217 Andrew Boutros quoted by BuzzFeed http://www.seyfarth.com:80/news/boutrosbuzzfeed092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in a September 22 story from BuzzFeed, &quot;Can They Get Along?,&quot; on how a group of lawyers, activists, and families from both sides of the explosive Title IX debate found middle ground last spring. Boutros, who chaired the American Bar Association task force on campus sexual assault, said that in order for the task force to really have any kind of appeal, they knew they couldn&#39;t emerge out of the process broken and divided. You can read the <a href="https://www.buzzfeed.com/tylerkingkade/title-ix-changes-are-coming-can-the-sides-find-common-ground?utm_term=.rpNyaVVg0#.vkZeP88yg">full article here</a>.</p> http://www.seyfarth.com:80/publications/WLS092217 LinkedIn – in whose professional interest? http://www.seyfarth.com:80/publications/WLS092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> LinkedIn is the biggest online network of professionals in the world. Many employers encourage staff to use LinkedIn to promote their organisation.</p> <p> While employees may share content relating to their organisation, they tend to think of their profile as personal to them, like a resume, which is available to recruiters, colleagues and clients.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/09/linkedin-in-whose-professional-interest/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=cb007370b4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-cb007370b4-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR092217 Trump Nominates Peter Robb as the General Counsel for the NLRB http://www.seyfarth.com:80/publications/LR092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> After being reportedly close to nominating retired Jones Day partner Roger King for the role, the White House announced last Friday that President Donald Trump will nominate Peter Robb, a management-side labor and employment attorney from Vermont, as the new NLRB General Counsel. If confirmed, he will replace former President Barack Obama&rsquo;s current appointee, Richard F. Griffin, Jr., whose term expires this November.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/22/trump-nominates-peter-robb-as-the-general-counsel-for-the-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=ae1db73911-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-ae1db73911-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIG092217 Seyfarth Shaw Partner Leon Rodriguez Files Supreme Court Amicus Brief in Travel Ban Case http://www.seyfarth.com:80/publications/BIG092217 Fri, 22 Sep 2017 00:00:00 -0400 <p> On September 15, 2017, Seyfarth Shaw partner and former U.S. Citizenship and Immigration Services director Leon Rodriguez, joined other former Department of Homeland Security Officials in filing an amicus brief in support of the State of Hawaii and other plaintiffs challenging the travel ban.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/seyfarth-shaw-partner-leon-rodriguez-files-supreme-court-amicus-brief-in-travel-ban-case/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=d276a3e894-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-d276a3e894-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT092117 The Week in Weed: September 22, 2017 http://www.seyfarth.com:80/publications/TBT092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Attorney General Sessions says marijuana still illegal</p> <p> (Reuters: Health, 21 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-22-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=260f36f330-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-260f36f330-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/maatmanmarreselaw360092117 Gerald Maatman and John Marrese authored an article in Law360 http://www.seyfarth.com:80/publications/maatmanmarreselaw360092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Gerald Maatman and John Marrese authored a September 21 article in Law360, &quot;Why A Subway Sandwich Class Settlement Didn&#39;t Measure Up.&quot; The article discusses a case in which the U.S. Court of Appeals for the Seventh Circuit overturned a district court&rsquo;s approval of a class action settlement involving Subway sandwich purchasers who sued for alleged consumer fraud. The Seventh Circuit called the settlement &ldquo;worthless&rdquo; in terms of alleged relief to the class.</p> http://www.seyfarth.com:80/publications/CP092117 Another Case of Paid Sick Leave: BERKELEY Symptoms Begin Soon http://www.seyfarth.com:80/publications/CP092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> A little over a year ago, on August 31, 2016, the City of Berkeley, California enacted the &ldquo;Paid Sick Leave Ordinance.&rdquo; Berkeley will be the eighth California city with such an ordinance.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/21/another-case-of-paid-sick-leave-berkeley-symptoms-begin-soon/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA092117-LE If Pain, Yes Gain – Part XXXV: Rhode Island Legislature Approves Statewide Paid Sick Time Bill http://www.seyfarth.com:80/publications/MA092117-LE Thu, 21 Sep 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: <span id="cke_bm_241S" style="display: none;">&nbsp;</span></em></strong><span style="display: none;">&nbsp;</span><em>After Rhode Island&rsquo;s legislative efforts to pass a statewide paid sick time bill stalled in the Spring, the bill was resuscitated by state lawmakers Tuesday evening. Rhode Island is now poised to become the 8<sup>th</sup> state in the country to pass a statewide mandatory paid sick leave law. <span id="cke_bm_241E" style="display: none;">&nbsp;</span></em><span style="display: none;">&nbsp;</span></p> <p> On September 19, 2017, the Rhode Island legislature passed the Healthy and Safe Families and Workplaces Act (the &ldquo;Act&rdquo;), which, if signed by state Governor Gina Raimondo, as expected, would make Rhode Island the eighth state in the country to impose paid sick leave obligations on employers.<a href="#_ftn1" name="_ftnref1" title=""><sup><sup>[1]</sup></sup></a>&nbsp; The legislature passed the Act after efforts earlier this year to pass a paid sick leave bill floundered in the final days of the spring legislative session.</p> <p> As discussed in greater detail below, some of the primary requirements imposed by the Act include:</p> <ul> <li> Employers with 18 or more employees <em>in Rhode Island</em> must provide employees with one hour of <em>paid</em> sick and safe leave (&ldquo;PSSL&rdquo;) for every 35 hours worked up to a maximum of 24 hours in 2018, 32 hours in 2019, and 40 hours per year thereafter.&nbsp; Smaller employers will be required to provide their employees with the same amounts of protected, <em>unpaid</em> sick and safe leave.</li> <li> Employers that provide the above amounts of PSSL (or other paid leave that can be used for the reasons set forth under the Act) at the beginning of each benefit year most likely do <em>not</em> need to track accrual, allow any year-end carryover of unused time, or payout any unused time at year-end (see below for more information).</li> <li> The Act allows employees to use PSSL to care for various covered family members, including members of the employee&rsquo;s household.</li> <li> Employers must comply with express written policy requirements regarding employee notice to the company and documentation.</li> </ul> <p> Assuming the Act is formally enacted, it will go into effect on July 1, 2018.&nbsp; Significantly, and unlike certain other statewide paid sick leave laws, the Act explicitly states that no municipality shall establish, mandate, or otherwise require an employer to provide paid sick leave benefits in excess of those required under the Act.</p> <p> <strong>Which Employers Are Covered Under the Act?</strong></p> <p> The Act defines &ldquo;employer&rdquo; as &ldquo;any individual or entity that includes any individual, partnership, association, corporation, business trust, or any person or group of persons acting directly or indirectly in the interest of an employer, in relation to an employee.&rdquo;</p> <p> Furthermore, the Act expressly states that employers who afford their employees the correct amount of paid leave in 2018, 2019 and thereafter, under either a paid time off or other paid leave policy, are exempt from the Act&rsquo;s accrual and carryover requirements.</p> <p> <strong>Which Employees Are Covered by the Act?</strong></p> <p> The Act defines &ldquo;employee&rdquo; broadly.&nbsp; Specifically, the Act would cover &ldquo;any person suffered or permitted to work by an employer,&rdquo; with several exceptions.&nbsp; The Act expressly excludes the following from coverage -- independent contractors, subcontractors, work study participants, apprenticeships, interns, employees of the state or a municipality, and certain individuals licensed to practice nursing.</p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover?</strong></p> <p> Employees would begin accruing PSSL on July 1, 2018 or their commencement of employment, whichever is later.&nbsp; However, most employees would not be entitled to begin using accrued PSSL until they have worked for the employer for at least 90 days.</p> <p> The Act includes two exceptions to the above usage waiting period.&nbsp; First, the Act states that employers do not need to allow temporary employees<a href="#_ftn2" name="_ftnref2" title=""><sup><sup>[2]</sup></sup></a> to begin using accrued PSSL until the 180th calendar day following commencement of their employment.&nbsp; Second, the Act states that employers do not need to allow seasonal employees to use accrued PSSL until the 150th calendar day following commencement of their employment.</p> <p> As noted above, employers with 18 or more employees in Rhode Island must allow employees to accrue one hour of <em>paid</em> sick and safe leave for every 35 hours worked up to a maximum of 24 hours in 2018, 32 hours in 2019, and 40 hours per year thereafter.&nbsp; Smaller employers will be required to allow their employees to accrue the same amounts of protected, <em>unpaid</em> sick and safe leave.&nbsp; The Act expressly allows employers to assume that exempt employees work a maximum of 40 hours per week for purposes of sick leave accrual.</p> <p> The Act states that accrued, unused PSSL shall carry over at year-end. However, regardless of carryover balances, employers are only required to allow employees to use 24 hours of PSSL in 2018, 32 hours in 2019, and 40 hours each year thereafter. In addition, the Act notes that employers may set a four hour minimum increment of using PSSL, as long as such an increment is reasonable under the circumstances.</p> <p> The Act also appears to offer two alternatives to year-end carryover. First, the Act notes that employers can avoid year-end carryover if they (a) pay an employee for unused PSSL at the end of a benefit year <em>and</em> (b) frontload the employee a sufficient amount of PSSL, i.e., 24, 32 or 40 hours, at the start of the subsequent year and make that time immediately available for use.</p> <p> Second, and potentially in contradiction with the first alternative described in the preceding paragraph, the Act states that employers can avoid carryover, as well as accrual and year-end payout of unused sick time, if they provide their employees with at least 24 hours of PSSL during calendar year 2018, 32 hours during calendar year 2019, and 40 hours per calendar year thereafter that can be used for the purposes consistent with the Act at the beginning of each benefit year.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave?</strong></p> <p> An employee may use PSSL earned under the Act for any of the following reasons:</p> <ul> <li> The employee&rsquo;s or a covered family member&rsquo;s mental or physical illness, injury or health condition, need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition, or preventive medical care;</li> <li> Closure of the employee&#39;s place of business by order of a public official due to a public health emergency or an employee&#39;s need to care for a child whose school or place of care has been closed by order of a public official due to a public health emergency;</li> <li> Care for oneself or a covered family member when it has been determined by the health authorities having jurisdiction or by a health care provider that the employee&rsquo;s or family member&rsquo;s presence in the community may jeopardize the health of others because of their exposure to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease; or</li> <li> Time off needed when the employee or a covered family member is a victim of domestic violence, sexual assault or stalking.</li> </ul> <p> The Act defines &ldquo;family member&rdquo; to include child, parent, spouse, mother-in-law, father-in-law, grandparents, grandchildren, domestic partner, sibling, care recipient, or member of the employee&rsquo;s household.</p> <p> <strong>What Notice Must Employees Provide When Using Sick Leave?</strong></p> <p> The Act expressly states that employers must provide PSSL to an employee upon his or her request, and that such request can be made orally, in writing, by electronic means or by any other means acceptable to the employer. Employers can require employees&rsquo; requests to include, if possible, the expected duration of the absence.</p> <p> When an employee&rsquo;s need for PSSL is foreseeable, employers can require that the employee provide notice of the need for such time in advance of the absence and that the employee make a reasonable effort to schedule the use of PSSL in a manner that does not unduly disrupt the operations of the employer.</p> <p> If an employer also will require employees to provide notice of their intent to use PSSL for unforeseeable absences, the employer must provide a written policy that contains procedures for the employees to follow in providing the notice. Failure to maintain and distribute a written policy with this information will prohibit an employer from denying PSSL to an employee based on non-compliance with such a policy.</p> <p> <strong>Can Employers Require Employees to Provide a Medical or Other Documentation?</strong></p> <p> When an employee&rsquo;s PSSL absence spans more than three consecutive work days, an employer may require the employee to provide reasonable documentation that the absence was for a covered purpose.&nbsp; However, employers can only take advantage of this provision if they have notified their employees in writing of the requirement in advance of the employee&#39;s use of PSSL.</p> <p> Notably, the Act states that the above more than three consecutive work days requirement for documentation does not apply when the employee&rsquo;s use of PSSL occurs within two weeks prior to an employee&rsquo;s final scheduled day of work before termination of employment</p> <p> <strong>What Notice Must Employers Provide?</strong></p> <p> The Act is silent on any notice or posting requirements that employers must follow. We expect this information to be included in forthcoming regulations released by the state in advance of the July 1, 2018 effective date.</p> <p> <strong>What Records Must Employers Maintain?</strong></p> <p> The Act is silent on any recordkeeping requirements that employers must follow. We expect this information to be included in forthcoming regulations released by the state in advance of the July 1, 2018 effective date.</p> <p> <strong>What Can Employers Do if They Suspect Employee Abuse of Their Sick Leave Rights?</strong></p> <p> If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for PSSL, an employer may discipline the employee, up to and including termination of employment for misuse of sick leave.&nbsp; In addition, if an employee is exhibiting a clear pattern of taking PSSL on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of PSSL, unless the employee provides reasonable documentation that the leave has been used for a proper purpose. The Act relatedly states that PSSL cannot be used as an excuse to be late for work without an authorized purpose.</p> <p> <strong>Must Unused Sick Time Be Paid Upon Employment Separation?</strong></p> <p> No, employers are not required to pay employees for earned, unused sick and safe leave upon termination or other separation of employment. However, when there is a separation from employment and the employee is rehired within 135 days of separation by the same employer, previously accrued, unused PSSL must be reinstated.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> Rhode Island employers should take steps now to ensure that they will be able to achieve full compliance with the Act by its near certain July 1, 2018 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the Act.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Act.</li> <li> Monitor the Rhode Island Department of Labor and Training website for information on the Act, including proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The seven other states with mandatory paid sick leave laws are <a href="http://www.calpeculiarities.com/2015/06/10/what-the-doctor-ordered-ab-304s-cure-for-sick-pay-law/">California</a>, <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>, <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>, <a href="http://www.seyfarth.com/publications/MA062917-LE2">Arizona</a>, <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont </a>and <a href="http://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave-part-ii/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1742b5ae3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1742b5ae3e-71256185">Washington</a>. The Washington paid sick leave law goes into effect on January 1, 2018. The other six laws are currently in effect. Links to our prior alerts on each of these laws are included in the preceding sentences.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The Act defines &ldquo;temporary employee&rdquo; as any person working for, or obtaining employment pursuant to an agreement with any employment agency, placement service, or training school or center.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/rodriguezwf092117 Leon Rodriguez quoted in Workforce http://www.seyfarth.com:80/news/rodriguezwf092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a September 21 story from Workforce, &quot;Hiring and the H-1B Visa,&quot; on how uncertainty about the visa program could push employers toward the gig economy to hire independent contractors. Rodriguez said that other recent attempts to pass H-1B reform laws have gone nowhere, and it&rsquo;s a toss-up whether a Congress that&rsquo;s been preoccupied with repealing and replacing the Affordable Care Act and other issues will get to it this term. You can read the <a href="http://www.workforce.com/2017/09/21/hiring-h-1b-visa/">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinohre092117 Alex Passantino interviewed in Human Resource Executive http://www.seyfarth.com:80/news/passantinohre092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Alex Passantino was interviewed in a September 21 Q&amp;A with Human Resource Executive, &quot;The OT Rule: Now What?.&quot; Passantino discussed how HR leaders should proceed after a federal court judge struck down the Obama-era overtime rule. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534363054&amp;">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/news/woodwardcc092117 Theodore Woodward quoted in Corporate Counsel http://www.seyfarth.com:80/news/woodwardcc092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Theodore Woodward was quoted in a September 21 story from Corporate Counsel, &quot;Here&#39;s What&#39;s Next for Toys R Us Counsel After Filing Chapter 11,&quot; on real estate lease negotiations during bankruptcy. Woodward said that, typically, the negotiations between the landlord and tenant center around lowering rent but could include talks of reducing a tenant&#39;s square footage.</p> http://www.seyfarth.com:80/news/casciarishrm092117 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm092117 Thu, 21 Sep 2017 00:00:00 -0400 <p> Joan Casciari was quoted in a September 21 story from SHRM, &quot;How to Create a Robust Reasonable Accommodation Process,&quot; on 7 steps to help manage ADA accommodation requests, mitigate risk and support an inclusive workplace. Casciari said that accommodating employees in the workplace should actually save employers money because the alternative, in many cases, is putting the employee on leave, and many employers have short-term disability policies. You can read the <a href="https://www.shrm.org/hr-today/news/hr-magazine/1017/pages/how-to-create-a-robust-reasonable-accommodation-process.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/shermangfm092017 Andrew Sherman authored an article in Global Franchise Magazine http://www.seyfarth.com:80/publications/shermangfm092017 Wed, 20 Sep 2017 00:00:00 -0400 <p> Andrew Sherman authored a September 20 article in Global Franchise Magazine, &quot;Could Your Brand Fail in America?&quot; Sherman offers strategies for penetrating the US market as an overseas franchisor. You can read the <a href="http://www.globalfranchisemagazine.com/advice/could-your-brand-fail-in-america">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC091917 Interference On The Defense? Tenth Circuit Reinstates EEOC’s Formerly Dismissed Claim http://www.seyfarth.com:80/publications/WC091917 Tue, 19 Sep 2017 00:00:00 -0400 <p> After a federal district court dismissed the EEOC&rsquo;s unlawful-interference claim against a private college that had sued a former employee for allegedly breaching a settlement agreement by filing an EEOC charge, the Tenth Circuit reversed the dismissal of the EEOC&rsquo;s unlawful-interference claim, citing the employer&rsquo;s introduction of a new case theory relative to the EEOC&rsquo;s still-pending retaliation claim.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/interference-on-the-defense-tenth-circuit-reinstates-eeocs-formerly-dismissed-claim/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc091917a Interference On The Defense? Tenth Circuit Reinstates EEOC’s Formerly Dismissed Claim http://www.seyfarth.com:80/publications/wc091917a Tue, 19 Sep 2017 00:00:00 -0400 <p> After CollegeAmerica resolved a dispute with a former employee by entering into a settlement agreement, upon belief that the employee breached the settlement agreement, CollegeAmerica sued the employee in state court.&nbsp; <em>Id. </em>at *1-2.&nbsp; Thereafter, the EEOC sued CollegeAmerica in federal court alleging that CollegeAmerica&rsquo;s interpretation and enforcement of the settlement agreement was unlawfully interfering with statutory rights of the former employee and the EEOC.&nbsp; Following the U.S. District Court for the District of Colorado&rsquo;s dismissal of the EEOC&rsquo;s claim for unlawful-interference with statutory rights, on appeal in <em>EEOC v. CollegeAmerica Denver Inc.</em>, No. 16-1340, 2017 U.S. App. LEXIS 17094 (10th Cir. Sept. 5, 2017), the Tenth Circuit <a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/09/EEOC-v.-CollegeAmerica-Denver-Inc.-Case-No.-16-1340-10th-Cir.-Decis....pdf">reversed</a>&nbsp;the dismissal, holding that the EEOC&rsquo;s unlawful-interference claim should not have been dismissed as moot in light of a new theory asserted by CollegeAmerica prior to its trial regarding the EEOC&rsquo;s pending retaliation claim.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/interference-on-the-defense-tenth-circuit-reinstates-eeocs-formerly-dismissed-claim/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=1b44e12206-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-1b44e12206-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL091917 Words Matter: The Third Circuit Clarifies That a Single Racial Slur in the Workplace May Be Enough to State a Hostile Work Environment Claim. http://www.seyfarth.com:80/publications/EL091917 Tue, 19 Sep 2017 00:00:00 -0400 <p> The Third Circuit recently held that a single word or incident, if severe enough, may create an actionable hostile work environment claim. The Court clarified that in hostile work environment cases, the proper legal standard is not whether the objectionable conduct in question is &ldquo;pervasive and regular,&rdquo; but rather whether it is &ldquo;severe or pervasive.&rdquo;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/09/words-matter-the-third-circuit-clarifies-that-a-single-racial-slur-in-the-workplace-may-be-enough-to-state-a-hostile-work-environment-claim/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=756eef0b5c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-756eef0b5c-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIG091917 Premium Processing Resumes for Fiscal Year 2018 H-1B Cap Petitions http://www.seyfarth.com:80/publications/BIG091917 Tue, 19 Sep 2017 00:00:00 -0400 <p> On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/premium-processing-resumes-for-fiscal-year-2018-h-1b-cap-petitions/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=ed930231f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-ed930231f9-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP091917 2017 Labor & Employment Legislative Update: The End is Near! http://www.seyfarth.com:80/publications/CP091917 Tue, 19 Sep 2017 00:00:00 -0400 <p> Governor Jerry Brown has till October 15 to approve bills the Legislature sent to his desk by its Friday, September 15, deadline, including bills that would require employers to &rdquo;show us the money&rdquo; for certain employees and to make &ldquo;mum be the word&rdquo; for an applicant&rsquo;s past conviction history.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/19/2017-labor-employment-legislative-update-the-end-is-near/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=b60c6b2f58-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-b60c6b2f58-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR091817 Board Blows the Whistle on Independent Contractor Status for NBA Video Production Crew http://www.seyfarth.com:80/publications/LR091817 Mon, 18 Sep 2017 00:00:00 -0400 <p> With the NBA season opener just over a month away, at least one team could be getting an unexpected influx of free agents. In Minnesota Timberwolves Basketball, LP, 365 NLRB No. 124 (2017), the Board recently held that the production crew responsible for operating the Timberwolves&rsquo; center court video display were employees under the National Labor Relations Act and could form a bargaining unit to negotiate the terms and conditions of their employment.</p> <p> <a href="http://www.employerlaborrelations.com/2017/09/18/board-blows-the-whistle-on-independent-contractor-status-for-nba-video-production-crew/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=0095ebff9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-0095ebff9a-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM091817-LE Sleeping On the Job… Again? Second New York Appellate Court Finds Home Healthcare Employees Entitled to Pay for all 24 Hours on an Overnight Shift http://www.seyfarth.com:80/publications/OMM091817-LE Mon, 18 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Supreme Court of the State of New York, Appellate Division, Second Judicial Department (&ldquo;Second Department&rdquo;) joined the First Department in finding that home healthcare employees who work 24-hour shifts are entitled to pay for all hours present in a client&rsquo;s home, including sleeping and meal periods.&nbsp; With this holding, the Second Department became the second appellate court in New York to reject the previously accepted interpretation of New York law, consistent with federal law, that allowed employers to pay home health care employees for 13 hours out of a 24-hour shift, so long as specified meal and sleep periods were provided.&nbsp; </em></p> <p> We previously wrote about the New York appeals court decision in <a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/"><em>Tokhtaman v. Human Care, LLC</em></a>, in which the New York State Supreme Court, Appellate Division, First Judicial Department (Manhattan and the Bronx), held that a &ldquo;non-residential&rdquo; home healthcare employee must be paid for all hours present at a client&rsquo;s home, including meal periods and time spent sleeping.&nbsp; The First Department opined that &ldquo;non-residential&rdquo; employees are those employees who, like the plaintiff in <em>Tokhtaman</em>, &ldquo;maintain[] [thei]r own residence, and d[o] not live in the homes of [] client&rsquo;s.&rdquo;</p> <p> On September 13, 2017, the Second Judicial Department (Dutchess, Kings, Nassau, Orange, Putnam, Richmond, Rockland, Suffolk, and Westchester) issued two decisions in line with <em>Tokhtaman</em>, holding that non-residential home healthcare employees must be paid for all 24 hours in a 24-hour shift, regardless of meal and sleep periods. &nbsp;The Second Department did not provide any further clarity as to what constitutes a &ldquo;residential&rdquo; home healthcare employee.&nbsp;</p> <p> These decisions reflect a departure from the rationale set forth in a <a href="https://labor.ny.gov/legal/counsel/pdf/Other/RO-09-0169%20-%20Live-In%20Companions.pdf">2010 New York Department of Labor (&ldquo;DOL&rdquo;) Opinion Letter</a>, which interpreted the DOL Regulation 12 NYCRR &sect; 142-2.1(b) to allow &ldquo;live-in employees&rdquo; -- whether or not they are residential employees -- to be paid for 13 hours for a 24-hour shift so long as the employee was afforded at least 8 hours for sleep (and actually received 5 hours of uninterrupted sleep), and 3 hours for meals.&nbsp;</p> <p> With both the First and Second Departments in agreement on the issue, however, employers in New York should be aware of these changing and increasingly onerous pay obligations for employees working 24-hour shifts.</p> http://www.seyfarth.com:80/publications/OMM091817-LE2 Premium Processing Resumes for Fiscal Year 2018 H-1B Cap Petitions http://www.seyfarth.com:80/publications/OMM091817-LE2 Mon, 18 Sep 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.</em></p> <p> USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated goal of addressing significant backlogs in case processing.&nbsp; Over the last few months, the agency incrementally reinstated premium processing service for lower-volume filings including certain H-1B petitions that are not subject to the H-1B cap as well as H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program.&nbsp; On September 18, 2017, the agency reinstated and will immediately accept premium processing requests for pending H-1B petitions that were filed under the Fiscal Year 2018 cap.&nbsp; This includes H-1B petitions filed under the annual quota of 20,000 U.S. Master&rsquo;s degree petitions as well as those filed under the general H-1B cap of 65,000 petitions.&nbsp; Unfortunately, premium processing service remains suspended for H-1B petitions that are filed to extend an employee&rsquo;s status or change employers.</p> <p> When a petition is filed under premium processing, the petitioner includes an additional filing fee of $1,225.&nbsp; This additional filing fee requires USCIS to adjudicate the petition within 15 days of receiving the request.&nbsp; Petitions are either approved or a Request for Evidence (RFE) is issued by USCIS within that 15-day time period.&nbsp; Premium processing requests can be filed with the initial filing of a petition, or at a later date by referencing the petition&rsquo;s receipt number.&nbsp; Since the quota of H-1B cap petitions has already been reached, this service is only available to currently pending H-1B cap cases for FY 2018.&nbsp;</p> <p> With the reinstatement of this service, Employers should carefully review their pending H-1B cap lists and strongly consider submitting a premium processing request for any pending FY 2018 cap cases in which the beneficiary has an expired F-1 Optional Practical Training (OPT) employment authorization card and is relying on &ldquo;Cap Gap&rdquo; for work authorization through September 30, 2017.&nbsp; Any beneficiary relying on &ldquo;Cap Gap&rdquo; whose H-1B petition is still pending on October 1, 2017 will lose employment authorization until his or her H-1B petition is approved.&nbsp; Employers should also consider prioritizing premium processing requests for employees in a different status who are facing imminent expirations of work authorization as well as those with upcoming international travel plans that require an H-1B visa stamp for reentry.</p> <p> <strong>Summary</strong></p> <p> Premium processing of FY 2018 cap H-1B petitions has resumed.&nbsp; Your contacts at Seyfarth Shaw LLP will work with you to determine which cases should be considered for immediate premium processing upgrades.&nbsp; In addition, we will continue to monitor USCIS announcements with regard to reinstatement of premium processing for other types of H-1B petitions.</p> http://www.seyfarth.com:80/news/steinerthre091817 Eric Steinert quoted in Human Resource Executive http://www.seyfarth.com:80/news/steinerthre091817 Mon, 18 Sep 2017 00:00:00 -0400 <p> Eric Steinert was quoted in a September 18 story from Human Resource Executive, &quot;Bringing Predictability to Scheduling,&quot; on how Oregon became the first state to pass &quot;fair workweek&quot; legislation, seeking to protect workers from unpredictable scheduling practices. Steinert said that you will definitely see the industry push back on this, because they are not going to be able to meet these unpredictable changes in customer demand and they are going to lose business as a result. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362977">full article here</a>.</p> http://www.seyfarth.com:80/publications/CDL091717 Seyfarth’s GDPR Webinar Series http://www.seyfarth.com:80/publications/CDL091717 Sun, 17 Sep 2017 00:00:00 -0400 <p> On May 25, 2018, the EU General Data Protection Regulation (&ldquo;GDPR&rdquo;) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to &euro;20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?</p> <p> <a href="http://www.carpedatumlaw.com/2017/09/seyfarths-gdpr-webinar-series/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=029e565931-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-029e565931-73179541">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC091517 New Class Action Litigation Risks – What Businesses Need To Know http://www.seyfarth.com:80/publications/WC091517 Fri, 15 Sep 2017 00:00:00 -0400 <p> The plaintiffs&rsquo; bar has recently brought a flurry of class action lawsuits against businesses under the Illinois Biometric Information Privacy Act, commonly known as &ldquo;BIPA.&rdquo; &nbsp;In this Vlog, Seyfarth Shaw Associate Alex Karasik sits down with esteemed class action litigator, Partner Jerry Maatman, to discuss this emerging legal trend, and to provide employers guidance on how to prevent and defend against BIPA class actions.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/new-class-action-litigation-risks-what-businesses-need-to-know/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA091517-LE UPDATE: New York City Commission on Human Rights Issues Fact Sheets Regarding the NYC Salary History Ban http://www.seyfarth.com:80/publications/MA091517-LE Fri, 15 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On September 12, 2017, the New York City Commission on Human Rights released two eagerly-awaited Fact Sheets to aid in the interpretation of the NYC salary history ban, which goes into effect on October 31, 2017.&nbsp; Seyfarth also obtained additional guidance from the Commission on its interpretation of this law.</em></p> <p> On May 4, 2017, New York City Mayor Bill De Blasio <a href="http://www.seyfarth.com/publications/OMM050617-LE">signed into law the legislation</a> that bans New York City employers from inquiring about or seeking the salary history of job candidates. &nbsp;Just as many employers are revising their hiring processes and forms, the Commission issued the additional guidance.</p> <p> The Commission issued two Fact Sheets, <a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SalaryHistory_KYO.pdf">one for Employers</a> and one for <a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SalaryHistory_KYR.pdf">Job Applicants</a>. The Commission has advised us that it does not plan to issue any other formal Enforcement Guidance.&nbsp;&nbsp;</p> <p> <strong>What Do the Fact Sheets Say?</strong></p> <p> Although there were no big surprises, the Fact Sheets confirm the Commission&rsquo;s interpretation of several components of the salary history law as noted below.</p> <p> <em>The Coverage is Broad but a Key Question Remains Unanswered</em></p> <p> The Fact Sheets suggest that the Commission intends the law to cover &ldquo;most applicants&rdquo; for jobs that are based in NYC, regardless of whether the position is full-time, part-time, or an internship. The law applies to any employer with at least one employee in NYC.</p> <p> The Fact Sheets do not clarify whether the law will extend to NYC residents who apply to jobs outside of NYC.&nbsp; New York Courts generally apply the &ldquo;impact test&rdquo; when considering the geographic reach of the NYC Human Rights law, which focuses on where the impact of the discriminatory conduct occurs.&nbsp; While a candidates&rsquo; NYC residency alone is unlikely to be sufficient to trigger application of the law, the Commission or the Courts may take the position that the law extends to employers outside of NYC who, for example, interview NYC residents in NYC, even if the role they are filling is outside NYC.&nbsp;</p> <p> The Fact Sheets clarify that the law will extend to independent contractors.&nbsp; Candidates for internal transfer or promotion with their current employer and candidates with public employers for which compensation is set pursuant to a collective bargaining agreement are, however, excluded from the law.</p> <p> <em>No Surprises on Prohibited Conduct </em></p> <p> In the Fact Sheets, the Commission provides a variety of examples of prohibited conduct:</p> <ul> <li> It is unlawful to ask applicants questions about or make statements intended to solicit information about the candidates&rsquo; current or prior earnings or benefits.</li> <li> It is unlawful to ask candidates&rsquo; current or former employers about candidates&rsquo; current or prior earnings or benefits.</li> <li> It is unlawful to search public records to learn about candidates&rsquo; current or prior earnings or benefits.</li> </ul> <p> <em>The Fact Sheets Discuss Permissible Conduct Without Clarifying Deferred Compensation</em></p> <p> The Fact Sheets state that employers can:</p> <ul> <li> Make statements about the anticipated salary, salary range, bonus, and benefits for a position;</li> <li> Ask about objective indicators of work productivity in the candidate&rsquo;s current or prior job, such as revenue or profits generated, sales, production reports, or books of business;</li> <li> Make inquiries to a candidate&rsquo;s current or former employers or search online to verify non-salary information, such as work history, responsibilities, or achievements.&nbsp; The Fact Sheets, like the law, note that if current or prior earnings or benefits are accidentally discovered during such a review, the employer cannot rely on this information in making salary or benefits decisions;</li> <li> Make inquiries about a candidate&rsquo;s current or prior earnings or benefits that are authorized or required by federal, state, or local law;</li> <li> Verify and consider current or prior earnings or benefits if this information is offered voluntarily and without prompting by the candidate during interview process.</li> </ul> <p> Unlike the text of the law itself, the Fact Sheets do not discuss deferred compensation.&nbsp; The law provides that &ldquo;without inquiring about salary history,&rdquo; an employer can &ldquo;engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation, <em>including but not limited to unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant&rsquo;s resignation from their current employer</em>.&rdquo; &nbsp;(Emphasis added.) &nbsp;As the salary expectations carve-out is in a separate section of the law&#39;s text than the carve-out that allows an employer to consider compensation history when a candidate provides the information voluntarily and without prompting, this suggests that employers may engage in a discussion about unvested equity or deferred compensation in connection with the discussion about the candidate&rsquo;s salary expectations and, if the candidate provides information about deferred compensation that may be cancelled or forfeited upon resignation, the employer can verify those amounts.&nbsp; The Fact Sheets provide only that employers can &ldquo;inquire about applicants&rsquo; expectations or requirements for salary, benefits, bonus, or commission.&rdquo; The Commission has clarified to us that the list of permissible conduct noted above is not exhaustive. The law is, however,&nbsp; not a model of clarity and employers should be careful in how these questions are asked to candidates. However, the Commission has provided further information about this point as noted below.</p> <p> <strong>Seyfarth&rsquo;s Discussions with the Commission</strong></p> <p> Despite this welcome guidance from the Commission, some aspects of the law remain ambiguous. Seyfarth Shaw spoke with Policy Counsel at the Commission to obtain clarification regarding other aspects of the law.</p> <p> <em>Deferred Compensation</em></p> <p> Though not addressed by the Fact Sheets, the Commission&rsquo;s working interpretation of how employers should deal with verifying deferred compensation that is cancelled or forfeited when a candidate resigns his or her current employment is that employers cannot affirmatively ask candidates whether they have deferred compensation or would forfeit deferred compensation. However, if the candidate offers information about deferred compensation as part of a discussion about <em><u>compensation expectations</u></em>, the employer <em>can</em> verify the value of the deferred compensation that would be forfeited, either with the prior employer or with the candidate. The Commission will take the same position regarding other aspects of prior compensation such as benefits, perks, and salary.&nbsp;</p> <p> The Commission also confirmed that asking for a candidate&rsquo;s salary expectations is permissible, and that as a &ldquo;best practice,&rdquo; an employer can quote the law itself. &nbsp;For example, in an application or interview seeking such information, an employer could quote the law as follows: &ldquo;without inquiring into your salary history, please inform us of your expectations with respect to salary, benefits and other compensation, including but not limited to unvested equity or deferred compensation that you would forfeit or have cancelled by virtue of your resignation from your current employer.&rdquo;</p> <p> The Commission also suggested notifying candidates that such information may be subject to verification with language such as &ldquo;Please note that replacement awards, if applicable, for cancelled or forfeited deferred compensation will be subject to verification.&rdquo;</p> <p> <em>Counter Offers</em></p> <p> The Commission has taken the position that the law does not extend to competing counter offers by other potential employers the candidate is also considering. &nbsp;The Commission does not view a counter offer as &ldquo;current or prior wages&rdquo; as defined in the law.</p> <p> <em>Bid Backs </em></p> <p> Though the Commission advised that it had not yet fully considered bid backs, it compared them to counter offers and stated the Commission&rsquo;s preliminary view that the law does not apply to bid backs.&nbsp; For example, if an employee currently works at Company A, interviews with Company B and receives an offer, and Company A then makes an offer to retain the employee, the law would not prohibit Company A from asking how much Company B offered the employee.&nbsp; Like counter offers, bid backs do not implicate &ldquo;current or prior&rdquo; salary, but rather, are offers to increase the employee&rsquo;s compensation at Company A if the employee rejects Company B&rsquo;s competing offer.</p> <p> <em>Definition of &ldquo;Without Prompting&rdquo;</em></p> <p> The law currently allows an employer to verify and consider a candidate&rsquo;s salary history if it is disclosed &ldquo;voluntarily and without prompting.&rdquo; &nbsp;This undefined and broad phrase provides little comfort to employers looking for clarity on the scope of such a safe harbor. The Commission said that it intends to adopt an &ldquo;objective test&rdquo; to determine whether a violation has occurred, and stated its view that &ldquo;if the average candidate would not think that the employer encouraged the disclosure,&rdquo; the disclosure of salary history is &ldquo;without prompting.&rdquo;</p> <p> <em>No Recordkeeping Requirement</em></p> <p> The Commission does not plan to advise companies on a best practice for documenting when a candidate volunteers salary information. There will be no record keeping requirement or number of years employers must maintain any record of a voluntary disclosure, as there is with the Fair Chance Act.</p> http://www.seyfarth.com:80/publications/MA091517-LE2 Unpaid Volunteers Are Not Covered By New Jersey’s Whistleblower Law http://www.seyfarth.com:80/publications/MA091517-LE2 Fri, 15 Sep 2017 00:00:00 -0400 <p class="BodySingle" style="text-align:justify"> <i><strong>Seyfarth Synopsis:</strong> New Jersey&rsquo;s Appellate Division upheld summary judgment dismissing a claim of whistleblower retaliation under the Conscientious Employee Protection Act (&ldquo;CEPA&rdquo;), finding that plaintiff, an unpaid volunteer firefighter, was not a protected &ldquo;employee&rdquo; as defined by the statute.&nbsp;</i></p> <p class="BodySingle" style="text-align:justify"> In <a href="http://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/published/a0354-15.pdf"><em>Sauter v. Colts Neck Volunteer Fire Company No. 2</em></a>, a published opinion issued on September 13, 2017, a three-judge panel of the Appellate Division of New Jersey held that a plaintiff&rsquo;s CEPA retaliation claim was properly dismissed in light of the fact that plaintiff was an unpaid volunteer firefighter, and not a covered &ldquo;employee&rdquo; as defined by CEPA.</p> <p> The plaintiff was a full-time employee of the Monmouth County Sheriff&rsquo;s Office, and also served as a volunteer member of Colts Neck Volunteer Fire Company No. 2.&nbsp; For his volunteer services, the plaintiff did not receive any pay, but was eligible to participate in the fire company&rsquo;s Emergency Services Volunteer Length of Service Award Program (&ldquo;LOSAP&rdquo;).&nbsp; Under LOSAP, the plaintiff was entitled to receive deferred compensation benefits, and had accumulated $5,871.71 in his LOSAP account over his twenty-plus year career, which he would be eligible to receive as of age fifty-five.&nbsp;</p> <p> Plaintiff had been a volunteer with the fire company for over twenty years when his membership was terminated after several of his fellow volunteer firefighters, including his own brother, lodged a formal complaint against him.&nbsp; The complaint stemmed from a series of actions the plaintiff took after finding out that he would not receive compensation for attorneys&rsquo; fees in a prior lawsuit he brought against the fire company.&nbsp; Indeed, the fire company considered reimbursing him, but learned that doing so could jeopardize their 501(c)(3) status and declined to take the risk.&nbsp; Soon after learning he would not be reimbursed, he wrote to the fire company&rsquo;s insurance carrier challenging a recent claim as fraudulent.&nbsp; He also reported to the fire company that a number of volunteers used a fire company dumpster for their own personal trash, and demanded the fire company obtain a formal legal opinion whether using the dumpster would also risk the fire company&rsquo;s 501(c)(3) status.&nbsp; The plaintiff&rsquo;s fellow volunteers accused him of going &ldquo;out on his own to sabotage the company&rsquo;s insurance claim&hellip;falsely claiming that the company intentionally attempted to defraud the insurance company&hellip;[and making] a frivolous charge&rdquo; regarding the use of the dumpsters.&nbsp; As a result of the complaint, and after an investigation, the plaintiff was terminated and the general membership of the fire company declined to reinstate him.</p> <p> So, the plaintiff sued the fire company, alleging violations of the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;), CEPA, and defamation.&nbsp; &nbsp;During argument, the plaintiff withdrew his LAD claim and the trial judge dismissed the defamation and CEPA claims, finding that he was not an employee under the law.&nbsp; The plaintiff appealed.</p> <p> The question before the Appellate Division was whether the trial judge correctly concluded that unpaid volunteers are not employees for purposes of CEPA.&nbsp;</p> <p> The Appellate Division checked the statutory text, and found that CEPA explicitly defines a protected &ldquo;employee&rdquo; as &ldquo;any individual who performs services for and under the control and direction of an employer for wages or other remuneration.&rdquo;</p> <p> According to the Court, there was no question that the plaintiff performed services for and under the control of the fire company.&nbsp; But, had he done so &ldquo;for wages or other remuneration?&rdquo;&nbsp;</p> <p> The plaintiff argued that his participation in LOSAP sufficed as &ldquo;remuneration,&rdquo; but the Court disagreed.&nbsp; It described the benefits as an &ldquo;award,&rdquo; and found that the LOSAP benefits were &ldquo;not [] sufficient compensation to change the voluntary nature of the services themselves.&rdquo;&nbsp;</p> <p> Being thorough, the Court even reviewed the legislative intent and purpose underlying the passage of CEPA.&nbsp; The Court highlighted that CEPA was designed to &ldquo;protect those &lsquo;employees&rsquo; who risk their livelihoods in reporting illegal activities in the workplace.&rdquo;&nbsp; Despite the broad definition of employee under CEPA, which courts have found to include independent contractors, &ldquo;the Court has never suggested that an employer-employee relationship, the <em>sine qua non</em> to establishing liability under the statute&hellip;could be found in the absence of compensation for services.&rdquo;&nbsp; Further, &ldquo;None of plaintiff&rsquo;s alleged &lsquo;whistleblowing&rsquo; activities posed the least threat to his livelihood for the simple reason that he was not &lsquo;employed&rsquo; as a volunteer firefighter.&rdquo;</p> <p> <em>Sauter</em> demonstrates that courts looking to determine the scope of statutory protections are well-guided by the statutory text, and are willing to decline invitations of parties looking to expand protections in the name of broad remedial legislation.&nbsp; The text still matters.&nbsp; Thus, certain individuals simply might not be entitled to protections under state laws designed to regulate employer-employee relationships.&nbsp; In New Jersey, for purposes of CEPA, the line is drawn to include those individuals who receive wages or other remuneration, and unpaid volunteerism does not suffice simply because some type of work is performed. &nbsp;</p> <p class="BodySingle" style="text-align:justify"> <i><o:p></o:p></i></p> http://www.seyfarth.com:80/news/maechtlenhuffpo091517 Laura Maechtlen featured in the Huffington Post http://www.seyfarth.com:80/news/maechtlenhuffpo091517 Fri, 15 Sep 2017 00:00:00 -0400 <p> Laura Maechtlen featured in a September 15 story from the Huffington Post, &quot;The New Supermodels 2.0,&quot; on high-achieving business leaders who are breakout role models, providing one particularly silo&rsquo;d, often sidelined, and half-closeted cohort &mdash; LGBT+ women in business &mdash; examples of what success looks like. Maechtlen was described as an advocate for LGBT+ rights, who also co-chairs Seyfarth&#39;s Diversity &amp; Inclusion Action Team and is an active member of Lambda Legal. You can read the <a href="http://www.huffingtonpost.com/entry/the-new-supermodels-20_us_59b7efede4b0678066213e87">full article here</a>.</p> http://www.seyfarth.com:80/news/greensteincoop091417 Dennis Greenstein quoted in The Cooperator http://www.seyfarth.com:80/news/greensteincoop091417 Thu, 14 Sep 2017 00:00:00 -0400 <p> Dennis Greenstein was quoted in a September 14 story from The Cooperator, &quot;Getting the Young to Serve on the Board,&quot; on whether boards are age averse when it comes to recruiting younger owners. Greenstein said that most boards welcome young candidates who have backgrounds that will add a helpful point of view and expertise. You can view the<a href="https://cooperator.com/article/getting-the-young-to-serve-on-the-board/full"> full article here</a>.</p> http://www.seyfarth.com:80/publications/bestlawyers091417 Lynn Kappelman and Dawn Solowey authored an article in Best Lawyers http://www.seyfarth.com:80/publications/bestlawyers091417 Thu, 14 Sep 2017 00:00:00 -0400 <p> Lynn Kappelman and Dawn Solowey authored a September 14 article in Best Lawyers, &quot;Combating Punitive Damages Awards on Appeal.&quot; The article discusses the importance of picking a top-notch appellate team and moving quickly on a strategic action plan for post-trial motions and appeal when confronting a large punitive damages verdict in an employment case. You can read the <a href="https://www.bestlawyers.com/article/combating-punitive-damages-awards-on-appeal/1594">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT091417 The Week in Weed: September 15, 2017 http://www.seyfarth.com:80/publications/TBT091417 Thu, 14 Sep 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> &lsquo;Impossible&rsquo;: Senior police officials tell MPs they won&rsquo;t be ready for legal cannabis</p> <p> (CBC: Top Stories, 12 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-15-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=69f329ebda-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-69f329ebda-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP091317 With EEO-1 Pay Report Gone, California Moves to Fill the Gap http://www.seyfarth.com:80/publications/CP091317 Wed, 13 Sep 2017 00:00:00 -0400 <p> In face of last month&rsquo;s suspended implementation of &ldquo;Component 2&rdquo; of the Revised EEO-1 Report, which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information, California moves forward with its own pay data transparency initiative.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/13/with-eeo-1-pay-report-gone-california-moves-to-fill-the-gap/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=21a7d101ba-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-21a7d101ba-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts091317 Upcoming Webinar! Protecting Trade Secrets in the Social Media Age http://www.seyfarth.com:80/publications/ts091317 Wed, 13 Sep 2017 00:00:00 -0400 <p> Social media and related issues in the workplace can be a headache for employers. There is no denying that social media has transformed the way that companies conduct business. In light of the rapid evolution of social media, companies today face significant legal challenges on a variety of issues, ranging from employee privacy and protected activity to data practices, identity theft, cybersecurity, and protection of intellectual property.</p> <p> <a href="http://www.tradesecretslaw.com/2017/09/articles/social-media-2/upcoming-webinar-protecting-trade-secrets-in-the-social-media-age/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=8591a43966-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-8591a43966-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/babsonlaw360091317 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360091317 Wed, 13 Sep 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a September 13 story from Law360, &quot;Weingarten Memo Highlights NLRB&rsquo;s Willingness To Flip-Flop,&quot; on a recent advice memorandum that called for the board to return to a position it previously held, that workers in nonunion workplaces have the right to a co-worker representative during investigatory interviews. Babson said that the memo underscores a larger, age-old problem with the NLRB&rsquo;s decision-making process: the board&rsquo;s constant reversal of positions on important issues.</p> http://www.seyfarth.com:80/news/boutrosduke091317 Andrew Boutros quoted in the Duke Chronicle http://www.seyfarth.com:80/news/boutrosduke091317 Wed, 13 Sep 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in a September 13 story from the Duke Chronicle, &quot;Duke&#39;s top lawyer on task force that formed recent Title IX policy recommendations,&quot; on the American Bar Association task force Boutros chaired that studied misconduct policies and produced a document outlining guidelines to ensure due process rights in sexual misconduct cases. Boutros said that it&rsquo;s important to point out that their recommendations were unanimous and bipartisan and reflect the sign-off of victim advocate groups and defense advocate groups. You can read the <a href="http://www.dukechronicle.com/article/2017/09/dukes-top-lawyer-on-task-force-that-formed-recent-title-ix-policy-recommendations">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360091117 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360091117 Mon, 11 Sep 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a September 11 story from Law360, &quot;Attys Sound The Alarm Over Advance Parole Denials,&quot; on how the government is allegedly denying requests for &ldquo;advance parole,&rdquo; a key document that allows foreign nationals to enter the U.S. if they leave the country. Paparelli said that green card applicants who have valid advance parole papers, but then apply for renewals of their advance parole and leave the U.S., will get a notice from USCIS that the request has been denied due to abandonment.</p> http://www.seyfarth.com:80/publications/OMM091117-LE One Stop Guide for Employer Response to Hurricanes Harvey and Irma: Advice on Legal Compliance and Options to Help Affected Employees http://www.seyfarth.com:80/publications/OMM091117-LE Mon, 11 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>This past weekend Hurricane Irma made land fall, displacing millions throughout Florida and the Caribbean, and causing devastating damage to life and property. Our thoughts go out to our colleagues, clients, and friends affected by this natural disaster.&nbsp; We are thinking of you during this difficult and trying time.</em></p> <p> We have compiled below alerts and blogs to assist employers as they begin to pick up the pieces following Hurricane Irma, and as recovery efforts continue in Texas following Hurricane Harvey. These materials cover numerous relevant topics, including wage-hour and leave issues during office closures and emergency evacuations, emergency response plans and employee safety issues as business resumes, practical options like streamlined 401(k) loans and PTO donations to assist affected employees, and much more. While these materials were prepared prior to Hurricane Irma, much of the advice will also apply to employers in Florida and surrounding states.&nbsp; Click on each link below to learn more.</p> <p> <a href="http://www.seyfarth.com/publications/MA090617-EB"><strong>IRS Allows Employees to Donate the Value of PTO for Hurricane Harvey Victims</strong></a><br /> By: <a href="http://www.seyfarth.com/DurwardGehring">Jim Gehring</a></p> <p> <a href="http://www.seyfarth.com/publications/MA090117-EB"><strong>IRS and DOL Provide Relief for Plan Sponsors and Participants Affected by Hurricane Harvey</strong></a><br /> By: <a href="http://www.seyfarth.com/JakeDowning">Jake Downing</a>, <a href="http://www.seyfarth.com/RandellMontellaro">Randell Montellaro</a> and <a href="http://www.seyfarth.com/KellyPointer">Kelly Pointer</a><strong> </strong></p> <p> <a href="http://www.seyfarth.com/publications/MA083171-LE"><strong>After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey</strong></a><br /> By: <a href="http://www.seyfarth.com/MarkLiesII">Mark A. Lies II</a>, <a href="http://www.seyfarth.com/AdamYoung">Adam R. Young</a>, <a href="http://www.seyfarth.com/JamesCurtis">James L. Curtis</a>, and <a href="http://www.seyfarth.com/BenjaminBriggs">Benjamin D. Briggs</a></p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/practical-advice-for-weathering-pay-and-leave-issues-following-hurricane-harvey/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=4b512d3a0a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-4b512d3a0a-70404145"><strong>Practical Advice for Weathering Pay and Leave Issues Following Hurricane Harvey</strong></a><br /> By: <u><a href="http://laborandemploymentlawcounsel.us6.list-manage1.com/track/click?u=1684e2d964bfa9b5d101ab1dc&amp;id=49c259ce81&amp;e=e19c6fdd8a">Steve Shardonofsky</a></u>&nbsp;and <u><a href="http://laborandemploymentlawcounsel.us6.list-manage.com/track/click?u=1684e2d964bfa9b5d101ab1dc&amp;id=a1f0ffa615&amp;e=e19c6fdd8a">Kevin A. Fritz</a></u></p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WH091117 Ninth Circuit Cooks Up Rejection of Servers’ Claims and Sends DOL’s 20% Tip Credit Rule Back to the Kitchen, Creating Circuit Split http://www.seyfarth.com:80/publications/WH091117 Mon, 11 Sep 2017 00:00:00 -0400 <p> The Ninth Circuit Court of Appeals issued an important and restaurant-friendly decision rejecting the Department of Labor&rsquo;s interpretation of FLSA regulations on the use of the tip credit when paying regularly tipped employees.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ninth-circuit-rejection-of-dols-20-tip-credit-rule/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8f26b6e045-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8f26b6e045-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/paparellisfc091017 Angelo Paparelli quoted in the San Francisco Chronicle http://www.seyfarth.com:80/news/paparellisfc091017 Sun, 10 Sep 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a September 10 story from the San Francisco Chronicle, &quot;&lsquo;Dreamers&rsquo; could lose more than their jobs if immigration program dies.&quot; Paparelli said that If their work authorization is temporary, employers cannot ask them to reverify it before it expires, although they can remind them that the expiration date is coming up. You can read the <a href="http://www.sfchronicle.com/business/networth/article/Dreamers-could-lose-more-than-their-jobs-if-12184622.php">full article here</a>.</p> http://www.seyfarth.com:80/news/fcra090817 At Forefront of FCRA, Seyfarth Sees Triple-Digit Growth http://www.seyfarth.com:80/news/fcra090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation team has experienced triple-digit revenue growth during the past year as one of the country&rsquo;s leading authorities on compliance issues under the Fair Credit Reporting Act (FCRA). The team comprises more than 35 lawyers across the country who regularly defend employers and background screening vendors in class action and single plaintiff cases governed by the FCRA and other statutes related to obtaining accurate information about prospective and current employees.</p> <p> &ldquo;As &lsquo;ban the box&rsquo; laws continue to modify at a rapid pace, our team is experiencing an amplified demand for FCRA services,&rdquo; said Pamela Devata, leader of Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Defense team. &ldquo;To meet this growing client need, the team has strategically assembled premier legal talent in the field.&rdquo;</p> <p> Seyfarth recently added top FCRA lawyer Jennifer L. Mora to its Labor &amp; Employment department in Los Angeles. Previously a shareholder at Littler Mendelson P.C., Mora&rsquo;s practice is focused on background check laws where she routinely counsels employers on both state and federal background check laws, including the FCRA and Title VII of the Civil Rights Act. A prolific writer and speaker on background screening issues, Mora is a member of the National Association of Professional Background Screeners. She earned her J.D., cum laude, from Seattle University and received a B.A. from California State University, Stanislaus.</p> <p> &ldquo;Jen is a highly respected FCRA legal mind and will be a valuable resource to employers tackling this complex area of employment law on the West Coast and nationally,&rdquo; said Devata.</p> <p> Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Defense team is comprised of lawyers across the country whose sole or primary focus is on FCRA compliance and litigation. They are considered national subject matter experts throughout the background screening community. The team is intimately familiar with the statutes, interpretive case law and FTC guidance on compliance issues and have counseled thousands of employers and represented hundreds of background screening providers. Notably, Seyfarth team members have testified before the Equal Employment Opportunity Commission (EEOC) about the use of credit checks as a screening tool for job applicants. Furthermore, the team has worked with the U.S. Chamber of Commerce and SHRM to reform and revise provisions of the FCRA that unintentionally restricted workplace investigations. These efforts were rewarded by amendments to the FCRA to change those provisions.</p> <p> To learn more about Seyfarth&rsquo;s Background Screening Compliance &amp; Litigation Team visit <a href="http://www.seyfarth.com/background-screening-compliance-litigation">here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations</p> <p> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager</p> <p> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/lorbereld090817 Larry Lorber quoted in Employment Law Daily http://www.seyfarth.com:80/news/lorbereld090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> Larry Lorber was quoted in a September 8 story from Employment Law Daily, &quot;While many specifics of proposed OFCCP merger into EEOC remain unclear, experts discuss range of issues presented.&quot; Lorber said that the significant differences in authority, procedures and enforcement processes, call into question what efficiencies and savings the merger would achieve if the current functions of both agencies are to remain. You can read the <a href="http://www.employmentlawdaily.com/index.php/2017/09/08/while-many-specifics-of-proposed-ofccp-merger-into-eeoc-remain-unclear-experts-discuss-range-of-issues-presented/">full article here</a>.</p> http://www.seyfarth.com:80/news/launeyccr090817 Kristina Launey quoted in the Cook County Record http://www.seyfarth.com:80/news/launeyccr090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> Kristina Launey was quoted in a September 8 story from the Cook County Record, &quot;Lawsuits over website accessibility for the blind, disabled on the rise nationwide.&quot; Launey said that these lawsuits are not limited to any one area of country. In light of the spike in these cases, Launey recommends that companies review their websites and hire outside counsel and consultants. You can read the <a href="http://cookcountyrecord.com/stories/511210237-lawsuits-over-website-accessibility-for-the-blind-disabled-on-the-rise-nationwide">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganalm090817 Robert Milligan quoted in ALM Legaltech News http://www.seyfarth.com:80/news/milliganalm090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> Robert Milligan was quoted in a September 8 story from ALM Legaltech News, &quot;Trade Secrets Confidentiality During E-discovery an Increasing Focus for Attorneys,&quot; on how the Defend Trade Secrets Act and the 2015 FRCP amendments have attorneys reevaluating how they look at and defend trade secrets. Milligan said that there is an inherent tension between protecting genuine trade secrets and the interest in having public access to the courts and court records.</p> http://www.seyfarth.com:80/publications/EL090817 EEOC Sues Estée Lauder Over Paid Parental Leave Policy http://www.seyfarth.com:80/publications/EL090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> Seyfarth Synopsis: If your company provides parental leave benefits beyond what is required by law, it is important that the company&rsquo;s policies and practices ensure male and female employees are being treated consistent with the prohibition of discrimination based on sex.<br /> <br /> To Read More Click <a href="http://www.laborandemploymentlawcounsel.com/2017/09/eeoc-sues-estee-lauder-over-paid-parental-leave-policy/">Here</a></p> http://www.seyfarth.com:80/publications/OMM090817-INTL UK Corporate Governance Reform - More Regulation, But Not as Bad as Feared! http://www.seyfarth.com:80/publications/OMM090817-INTL Fri, 08 Sep 2017 00:00:00 -0400 <p> Last week the UK Government published its formal response paper on UK corporate governance reform, describing the proposals as &quot;world-leading.&quot;&nbsp;The proposals follow an earlier green paper published by the Government in November 2016&nbsp;that aimed to identify changes to the UK corporate governance regime to create &quot;an economy that works for everyone.&quot; The unions and sections of the media have expressed disappointment and suggested the reforms do not go far enough. Unions were seeking a cap on CEO pay, employee representatives on boards and binding shareholder votes on pay (amongst other measures), but these have been ruled out, much to the relief of the business community. The proposals suggested by the Government include the following:</p> <ul> <li> <strong>Pay ratios</strong> - Quoted companies will be required to report annually on the ratio of&nbsp;their CEOs&#39;&nbsp;pay to the average UK workforce pay, together with an explanation of any change in that ratio from year to year and how the ratio relates to pay and conditions across the wider workforce.</li> <li> <strong>Shareholder opposition to executive pay</strong> -&nbsp;The Government has requested that the UK Investment Association establish a register of listed companies which encounter significant (20% or more) shareholder opposition to executive pay proposals and for the register to record what those companies do in response to such opposition, such as issuing a public response or subjecting the executive pay proposals to a shareholder vote. The Investment Association is expected to establish its register before the end of 2017.</li> <li> <strong>Enhanced stakeholder engagement </strong>- Section 172 of the UK <em>Companies Act</em> <em>2006 </em>obliges company directors to have regard to the interests of employees, customers, suppliers and other stakeholders. The Government now proposes that public and private companies of &quot;significant size&quot; must explain how their directors have complied with section 172. It is not yet clear what &quot;significant size&quot; means, but commentators believe it means those companies with greater than 1,000 employees.</li> <li> <strong>Employee board representation</strong> - The Government has asked the Financial Reporting Council (FRC) to revise the UK Corporate Governance Code to require companies to choose one of three models (suggested in the 2016 green paper) for involving employees in board decisions.&nbsp;The three models are: to designate a non-executive director to represent employees; to&nbsp;create a formal employee advisory council that the board would be required to consult; and, to&nbsp;appoint a director from the workforce.&nbsp;The Government has not proposed employee representation on remuneration committees.</li> <li> <strong>Governance of large private companies</strong> -&nbsp;The Government has asked the FRC to work with various industry bodies (including the Institute of Directors, the Confederation of British Industry and the British Venture Capital Association) to develop a voluntary set of corporate governance principles for private companies with more than 2,000 employees.&nbsp;Separately, all such companies will also be required to disclose their corporate governance arrangements in their directors&rsquo; reports and on their website and to indicate whether they follow a formal code.</li> </ul> <p> <br /> The Government intends to take forward its proposals by June 2018 and for the new requirements to apply to company reporting years commencing on or after that date. The changes are intended to be delivered not through primary legislation, but by changes to the UK Corporate Governance Code and other regulator-led reforms.&nbsp;The FRC has indicated that changes to the Code will be the subject of a consultation later in 2017.&nbsp;</p> <p> The real impact of the proposed changes to the corporate governance regime is yet to be seen, but it seems unlikely that the &quot;world-leading&quot; reforms will deliver fully on the Government&rsquo;s promise to create &quot;an economy that works for everyone.&quot;</p> http://www.seyfarth.com:80/publications/OMM090817-LIT Practical Tips for Owners and Contractors Impacted By Hurricanes Harvey and Irma http://www.seyfarth.com:80/publications/OMM090817-LIT Fri, 08 Sep 2017 00:00:00 -0400 <div> Anyone watching what has happened in Houston, and what is predicted to happen in Florida, immediately thinks about the safety and well-being of those affected by Hurricanes Harvey and Irma. Once the rain stops, the water recedes, and the aftermath of destruction is assessed, both areas and their residents will be looking at a long road to recovery, much in the same way as New Orleans in 2005 (Hurricane Katrina) and New York/New Jersey in 2012 (SuperStorm Sandy). Among the many challenges that lie ahead, owners and contractors of existing projects, whether in Houston, Florida, or in other parts of the country, as well as those involved in new projects to rebuild, must take steps to assess the impacts and identify their contractual rights and obligations. For those in Houston and Florida, this will no doubt mean working closely with their insurance carriers to recover project related losses. For those in other parts of the country, contracting parties need to assess the impact, if any, on the projects and ascertain their available remedies.&nbsp;</div> <div> &nbsp;</div> <h2> Potential Hurricane-Related Impacts</h2> <div> Hurricanes can cause supply side and demand side issues with raw materials, supplies, and equipment, especially at critical junctures such as ports and warehouses due to their location on or near the coast. Natural disasters often affect the construction industry in the form of price increases and material scarcity. For example, oil shortages during a hurricane can greatly affect commercial contractors who rely upon diesel-powered machinery. Similarly, natural gas shortages cause prices to spike, which increases the cost of producing asphalt, paints, and tires for heavy machinery.&nbsp;</div> <div> &nbsp;</div> <div> Hurricanes can also impact the timely flow of materials, supplies, and equipment. In 2005, Hurricane Katrina created shortages of resins produced from oil that manufacturers needed to create polyvinylchloride (PVC) and other vinyl products. Damage caused by Katrina in the Gulf of Mexico disrupted supplies of ethylene and natural gas during the second half of 2005. In the aftermath of Katrina, repair efforts along the Gulf Coast quickly consumed many building materials, creating short term shortages and further price hikes. If equipment, materials, and supplies, are coming from the impacted areas, projects run the risk of delay. Moreover, supplies, equipment, materials and labor may be diverted to Houston and Florida, which could further impact your project.&nbsp;</div> <div> &nbsp;</div> <h2> Remedies Contractors May Seek From Hurricane Impacts</h2> <div> The general rule under most construction contracts is that the contractor is required to perform and see the work through to completion, or else run the risk of default, termination, and/or damages. However, external events beyond anyone&rsquo;s control or anticipation often disrupt this contractual equilibrium. With that in mind, it is critical for owners and contractors to understand the impacts that flow from such events, as the fallout from these unforeseeable acts can greatly impact a contractor&rsquo;s ability to perform under its contract.</div> <div> &nbsp;</div> <div> To accommodate for the unknown, most contracts provide a force majeure clause to limit and allocate risk. Force majeure (which is French for &ldquo;greater force&rdquo;) refers to events that are beyond the control of the contractor and generally wreak havoc on jobsites in the form of physical damage, in addition to cost and time impacts. Force majeure events typically include most natural disasters&mdash;fire, flood, earthquake, hurricane, drought, and other &ldquo;Acts of God&rdquo;&mdash;each of which are characterized by their complete unforseeability at the time of contract drafting. Notably, many construction contracts do not even use the term &ldquo;force majeure,&rdquo; but rather employ broad language addressing a variety of causes beyond the control of the party seeking to invoke the provision. See, e.g., AIA A201-2007, &sect; 8.3.1 (&ldquo;If the contractor is delayed ... by ... other causes beyond contractor&rsquo;s control.&rdquo;).&nbsp;</div> <div> &nbsp;</div> <div> In most standard contracts, both the owner and contractor will generally share the risk of loss for force majeure events, where contractors are entitled to a time extension, but not compensation. Thus, a contractor can rely on the force majeure clause to seek a time extension and avoid an assessment of liquidated damages by the owner. While a contractor will likely be entitled to additional time, contractors (unless the contract expressly provides otherwise) will not be allowed to recover delay damages as a result of the unforeseen event. Thus, contractors need to assess whether their projects will be impacted by Harvey and Irma, and determine what remedies their contracts provide.&nbsp;</div> <div> &nbsp;</div> <div> As far as recovery for price escalation, most contracts place the risk of price escalation on the contractor. The AIA documents, for example, do not include an escalation clause. If a contract does contain such escalation clause, the clause will typically provide a time period after which the escalation applies.</div> <div> &nbsp;</div> <h2> Disaster Relief</h2> <div> Finally, the House of Representatives recently passed a $7.9 billion aid package for Hurricane Harvey victims, and the Senate has approved an overall package valued that adds $7.4 billion, for a total of $15.3 billion. Undoubtedly, money will be made available in Florida as well. Both House and Senate bills have $7.4 billion going to the Federal Emergency Management Agency&rsquo;s (&ldquo;FEMA&rdquo;) disaster relief fund. Because federal money is involved, those contractors coming to the aid of a disaster relief area need to be aware of issues arising out of federal contracts issued through FEMA. Contractors working primarily in the commercial world may not be aware of the multitude of regulations they are subject to under the Federal Acquisition Regulations (&ldquo;FAR&rdquo;) and should take steps to familiarize themselves with the rules. While most of the contracts would likely be firm-fixed price, contractors working under a cost reimbursement contract may not be familiar with the regulations surrounding time-keeping and accounting practices. Mistakes in this area could open up contractors to issues involving false claims. Contractors working with federal money would also be subject to Davis-Bacon Act requirements, which establish the requirement for paying the local prevailing wages on public works projects for laborers and mechanics. Prudent contractors should familiarize themselves with any red tape issues prior to pursuing or accepting contracts involving federal funds.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM090817-LE Office Marital Dispute Did Not Trigger Employer’s Duty to Investigate http://www.seyfarth.com:80/publications/OMM090817-LE Fri, 08 Sep 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>In Nakai v. Friendship House Association of American Indians, Inc., the California Court of Appeal considered whether marital disputes that spill into the workplace trigger FEHA&rsquo;s marital status protections and an employer&rsquo;s duty to investigate. First, the case reiterates that alleged misconduct arising from marital discord does not always implicate FEHA&mdash;particularly if one is married to the CEO&rsquo;s daughter. More importantly, the case confirms that not every complaint of alleged misconduct requires an investigation before disciplining an at-will employee.</em></p> <p> <strong>The Facts</strong></p> <p> For over twenty years, Orlando Nakai worked as a counselor at Friendship House, a drug and alcohol rehabilitation center in San Francisco. He married a co-worker whose mother happened to be Friendship House&rsquo;s CEO. Nakai, his wife, and his mother-in-law worked together for fourteen years.</p> <p> By 2016, though, the marriage was deteriorating. Nakai&rsquo;s wife called her mother (the CEO) to report that Nakai had a gun, was angry at their co-workers, and was dangerous. The next morning, Nakai&rsquo;s mother-in-law placed him on administrative leave and then, without investigating her daughter&rsquo;s allegations, terminated Nakai&rsquo;s employment.</p> <p> Nakai sued Friendship House for marital-status discrimination and for failing to investigate his wife&rsquo;s complaints, both in asserted violation of FEHA. The trial court granted summary judgment to Friendship House. Nakai&nbsp; appealed.&nbsp;</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> FEHA prohibits marital status discrimination. By way of example, employers cannot refuse to hire single people because they are single. But the Court of Appeal agreed with the trial judge that Friendship House did not fire Nakai because of his marital status. Rather, Friendship House ended Nakai&rsquo;s employment because of a trait unique to his spouse&mdash;her relationship with the CEO, which does not amount to marital status discrimination. Even if Friendship House had terminated Nakai&rsquo;s employment because he was married to the CEO&rsquo;s daughter, such an action would not be because of Nakai&rsquo;s marital status, and so the action would not support a claim of marital-status discrimination.</p> <p> Next, the Court of Appeal considered Friendship House&rsquo;s failure to investigate the claims made by Nakai&rsquo;s wife. The Court of Appeal explained that FEHA does not create contractual due process rights in connection with an alleged perpetrator&rsquo;s employment. Absent a contractual or statutory provision to the contrary, employers considering the plight of an employee accused of misconduct &ldquo;may act peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.&rdquo;&nbsp;</p> <p> While contracts requiring &ldquo;good cause&rdquo; for termination may, under some circumstances, create a reasonable investigation requirement, Nakai produced no such contract or even evidence of an implied agreement. His employment was at-will. Consequently, the Court of Appeal rejected his argument that he had a contractual right to have his employer investigate his wife&rsquo;s complaints.</p> <p> Nor was Nakai otherwise entitled to an investigation. The Court of Appeal held that any duty to investigate would apply only to complaints of conduct&mdash;such as unlawful discrimination or harassment&mdash;that FEHA prohibits. The complaints alleged against Nakai did not implicate prohibited conduct or protected status. &nbsp;</p> <p> The Court of Appeal concluded by considering whether, under FEHA, employers owe alleged perpetrators any duty to investigate the validity of complaints made against them. The Court of Appeal strongly suggested that, at least as to &ldquo;alleged threats of workplace violence,&rdquo; FEHA imposes no such duty. &nbsp;</p> <p> <strong>What <em>Friendship House</em> Means for Employers</strong></p> <p> <em>Friendship House</em> provides guidance to employers faced with workplace marital disputes. But its real value lies in the perspective it provides regarding employers&rsquo; duty to investigate misconduct complaints: unless there is a claim of prohibited conduct relating to protected status, there is no obligation to investigate. Nevertheless, employers should always consider investigating complaints before disciplining employees, as this may be a way to forestall future lawsuits or further acrimony among employees.&nbsp;</p> http://www.seyfarth.com:80/publications/MA090817-LIT A New and Important Development in Insider Trading Law http://www.seyfarth.com:80/publications/MA090817-LIT Fri, 08 Sep 2017 00:00:00 -0400 <div> In a case likely to have ongoing ramifications, the Second Circuit recently upheld the conviction of Matthew Martoma,<sup>1</sup> &nbsp;a former portfolio manager for Stephen Cohen&rsquo;s SAC Capital. In so doing, the court clarified, at least for now, the Second Circuit&rsquo;s view on an important open issue as to the law of insider trading. &nbsp;A divided court reversed its own 2015 opinion in <em>United States v. Newman</em>.<sup>2</sup> &nbsp;Newman held that a &ldquo;meaningfully close personal relationship&rdquo; between a tipper and a tippee, and an exchange of something &ldquo;pecuniary or similarly valuable in nature&rdquo; to the tipper was required to prove an insider trading violation.<sup>3</sup> &nbsp;<em>Newman</em> had a substantial impact on insider trading prosecutions in the Second Circuit because it extended the personal benefit test laid out in the seminal case of <em>Dirks v. SEC</em>.<sup>4</sup> &nbsp;In <em>Martoma</em>, the Second Circuit reversed course on the need for a close personal relationship requirement, noting that the recent Supreme Court decision in <em>Salman v. U.S.</em><sup>5</sup> &ldquo;abrogated&rdquo; the requirement and &ldquo;was no longer good law&rdquo;.<sup>6</sup> &nbsp;This Management Alert will provide the relevant history surrounding the issue, and offer some possible scenarios as to what may follow.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> <u>A. &nbsp;<em>Dirks</em></u></div> <div> &nbsp;</div> <div> Until <em>Dirks</em> the law relating to liability for insider trading by tippees was unclear. &nbsp;In <em>Dirks</em>, the Supreme Court addressed the applicability of insider trading law with respect to those who traded on confidential nonpublic information received from an insider. &nbsp;<em>Dirks</em> concluded that the appropriate test for determining whether or not there was a breach of the antifraud provisions of federal securities laws turned on whether an insider benefited by tipping the material nonpublic information to another non-insider. &nbsp;Thus, the test after <em>Dirks</em> was whether an insider breached a duty by tipping the information for his or her personal benefit, noting that &ldquo;absent some personal gain [to the insider] there has been no breach of duty to stockholders. &nbsp;And absent a breach by the insider there is no derivative breach [by the tippee].<sup>7</sup></div> <div> &nbsp;</div> <div> <u>B. &nbsp;<em>Newman</em></u></div> <div> &nbsp;</div> <div> Interpreting <em>Dirks</em>, <em>Newman&rsquo;s</em> requirement of a &ldquo;meaningfully close personal relationship&hellip; that generates an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable in nature&rdquo; set a high standard for the government to meet.<sup>8</sup> &nbsp;<em>Newman</em> also required the tippee to know not only of the insider&rsquo;s breach, but that the insider acted in order to receive a personal benefit.<sup>9</sup> &nbsp;As such, it significantly curtailed cases involving remote tippees, like the defendants in <em>Newman</em>, who knew neither the tipper nor the original tippee.</div> <div> &nbsp;</div> <div> With <em>certiorari</em> denied, <em>Newman</em> never made it to the United States Supreme Court -- but soon thereafter the Ninth Circuit case <em>Salman v. U.S.</em> did.<em>10</em></div> <div> &nbsp;</div> <div> <u>C. &nbsp;<em>Salman</em></u></div> <div> &nbsp;</div> <div> In <em>Salman</em>, the Supreme Court reaffirmed the personal benefit requirement set forth in <em>Dirks</em>, but clarified the standard by concluding that the tipper&rsquo;s personal benefit need not be pecuniary; the benefit may be inferred when an insider gifts information to a relative. &nbsp;Critically, the Court stated that, to the extent the Second Circuit, in <em>Newman</em> held that an insider must receive something &ldquo;pecuniary or similarly valuable in nature&rdquo; in exchange for the information, that requirement is inconsistent with the Supreme Court&rsquo;s holding in <em>Dirks</em>.<sup>11</sup> &nbsp;Thus, <em>Salman</em> put to rest that a tipper must receive a pecuniary or other tangible benefit, holding that gifting information to a trading relative or friend was a sufficient personal benefit in and of itself. &nbsp;Purposefully left open in <em>Salman</em>, however, remained the issue of how close a relationship must there be between a tipper and tippee outside the context of relatives or friends sufficient to satisfy the personal benefit requirement set forth in <em>Dirks</em>.<sup>12</sup></div> <div> &nbsp;</div> <div> However, although the Court declined to address more broadly the nature of what constituted a personal benefit, it rejected the Government&rsquo;s argument that disclosure of confidential information to anyone, as opposed to a relative, friend or one otherwise acquainted with the tipper, would constitute a personal benefit sufficient to satisfy <em>Dirks</em>. &nbsp;</div> <div> &nbsp;</div> <div> <u>D. &nbsp;<em>Martoma</em></u></div> <div> &nbsp;</div> <div> Turning now to <em>Martoma</em>. &nbsp;<em>Martoma</em> was convicted in February 2014 and sentenced to nine years in prison because he received and traded on inside information relating to poor results in a clinical trial for an Alzheimer drug, enabling SAC to generate profits and avoid losses totaling $275 million after the results became public. &nbsp;A doctor who had confidential information relating to the clinical trials provided the information to <em>Martoma</em>. &nbsp;<em>Martoma</em> argued on appeal that the evidence against him was insufficient under <em>Newman</em>, which opinion was issued while his appeal was pending. &nbsp;<em>Martoma</em> argued that under <em>Newman</em>, his conviction should be thrown out because the relevant physician was only a casual acquaintance, and, although routinely paid as a consultant to SAC, he was not paid for the two consulting meetings during which he delivered the tips and thus there was insufficient evidence the doctor received a personal benefit.&nbsp;</div> <div> &nbsp;</div> <div> The Second Circuit held that <em>Newman&rsquo;s</em> holding was overturned by <em>Salman</em>, which held that proving a pecuniary benefit is unnecessary if a tipper gifts information to a relative or friend because in such circumstances a benefit can be inferred. &nbsp;The Second Circuit also noted that, in any event, the doctor in question had received numerous consulting fees as a result of his relationship with <em>Martoma</em>, so he did receive a pecuniary gain from which a rational trier of fact could have found a quid pro quo in their consulting relationship.&nbsp;</div> <div> &nbsp;</div> <div> Importantly, as <em>Salman</em> involved trading between close family members, it did not address, let alone explicitly overrule, <em>Newman&rsquo;s</em> meaningful close personal relationship requirement. &nbsp;Indeed it did not foreclose the argument that giving a gift to a trading tippee with whom the tipper has only a casual relationship might still meet <em>Dirks</em> personal benefit requirement. &nbsp;The majority in <em>Martoma</em> addressed the issue head on, noting that &ldquo;it would ordinarily be neither appropriate nor possible for [a panel] to reverse an existing Circuit precedent, <em>Shipping Corp. of India v. Jaldhi Overseas Pte. Ltd.</em><sup>13</sup> &nbsp;but also noted that &ldquo;a three-judge panel may [do so]... where an intervening Supreme Court decision casts doubt on the prior ruling&rdquo;. &nbsp;<em>Doscher v. Sea Port Grp. Sec. LLC.</em><sup>14</sup>&nbsp;Thus, it concluded that it was proper for it to act because &ldquo;<em>Salman</em> fundamentally altered the analysis underlying <em>Newman&rsquo;s</em> meaningfully close personal relationship requirement rendering it &ldquo;no longer good law&rdquo;.<sup>15</sup></div> <div> &nbsp;</div> <div> <strong>The Dissent</strong></div> <div> &nbsp;</div> <div> In a strongly worded dissent, more lengthy than the majority opinion, Judge Rosemary Pooler argued that the majority had gone too far in limiting the personal benefit requirement set forth in <em>Dirks</em>, &ldquo;[t]he majority holds that an insider receives a personal benefit when the insider gives information as a &ldquo;gift&rdquo; to <em>any</em> person. &nbsp;In holding that someone who gives a gift <em>always</em> receives a personal benefit from doing so, the majority strips the long-standing personal benefit rule of its limiting power. &nbsp;What counts as a &ldquo;gift&rdquo; is vague and subjective. &nbsp;Juries, and, more dangerously prosecutors, can now seize on this vagueness and subjectivity. &nbsp;The result will be liability in many cases where it could not previously lie.&rdquo;<sup>16</sup> &nbsp;Further, and more importantly, Judge Pooler argued that while <em>Salman</em> overturned <em>Newman&rsquo;s</em> holding that a tipper receive something &ldquo;of a pecuniary or similarly valuable nature&rdquo; it also referenced <em>Newman&rsquo;s</em> holding that the inference of a personal benefit from a gift &ldquo;is impermissible in the absence of proof of a meaningfully close personal relationship.&rdquo;<sup>17</sup> &nbsp;Indeed Judge Pooler noted that the Supreme Court &ldquo;explicitly stated that it overruled Newman <em>&lsquo;only to the extent&rsquo; </em>that it required an insider to &ldquo;receive something of a pecuniary or similarly valuable nature as a result of giving a gift to a friend&rdquo;.<sup>18</sup> &nbsp;She concluded &nbsp;that &ldquo;the Supreme Court&rsquo;s statement showed no disapproval of the &lsquo;meaningfully close personal relationship&rsquo; language in <em>Newman</em>,&rdquo;<sup>19</sup> &nbsp; and &ldquo;had the Supreme Court discussed the &ldquo;meaningfully close personal relationship&rdquo; requirement of Newman -- which it did not -- that discussion would have been dicta.&rdquo;<sup>20</sup> &nbsp;Finally, Judge Pooler complained that the majority overruled the holding of Newman without convening the Court <em>en banc </em>and dissented on that independent basis. &nbsp;Her criticism invites the obvious question -- what is next?</div> <div> &nbsp;</div> <div> <strong>What Is Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> In light of the significance of the opinion and the length and strenuous objection set forth in the dissent, it would be surprising if <em>Martoma</em> did not ask for <em>en banc</em> review. &nbsp;A vote of the majority of the Second Circuit&rsquo;s eleven active judges is needed for that review to occur. &nbsp;Here, <em>Salman</em> did not overrule <em>Newman&rsquo;s</em> personal relationship requirement yet the majority expressly did so. &nbsp;Other Second Circuit Judges may view this as an abuse of that panel&rsquo;s authority on an important issue, and one which should not have been decided by less than the full Second &nbsp;Circuit. &nbsp;In addition to Judge Pooler, those judges who were part of the majority in <em>Newman</em>, for example, may have strong views on this issue, concurring in the need for an <em>en banc </em>review. &nbsp;In addition, should the Second Circuit decline to hear the case.<sup>21</sup> &nbsp;<em>Martoma</em> can also seek certiorari before the Supreme Court which, if it so chooses, can resolve the &ldquo;close personal relationship&rdquo; issue once and for all. &nbsp;One thing, however, is abundantly clear. &nbsp;The majority and dissenting opinions set forth in <em>Martoma</em> have carefully articulated their respective positions, and there is little doubt that those arguments will be advanced by prosecutors and defense counsel as insider-trading cases come before the Courts. &nbsp;Indeed, picking up on the Second Circuit sea-change between <em>Newman</em> and <em>Martoma</em> could mean that other Circuit Courts address the &ldquo;close personal relationship&rdquo; requirement as well. &nbsp;Should a split occur between the Circuits this would make Supreme Court review more likely, and perhaps inevitable.</div> <div> &nbsp;</div> <hr /> <div> 1 &nbsp;<em>U.S. v. Martoma</em>, No. 12 Cr. 973, 2014 WL 4384143 (S.D.N.Y. Sept. 4, 2014), <em>aff&rsquo;d</em>, No. 14-3599, 2017 WL 3611518 (2d Cir. Aug. 23, 2017).</div> <div> 2 &nbsp;<em>U.S. v. Newman</em>, 773 F.3d 438 (2d Cir. 2014), <em>reh&rsquo;g denied</em>, Nos. 13-1387, 13-1917, 2015 WL 1954058 (2d Cir. Apr. 3, 2015), <em>cert. denied</em>, 136 S.Ct. 242, 193 L.Ed.2d 133 (2015)</div> <div> 3 &nbsp;<em>Id</em>, at 452.</div> <div> 4 &nbsp;<em>Dirks v. SEC</em>, 463 U.S. 646 (1983).</div> <div> 5 &nbsp;<em>Salman v. U.S.</em>, 137 S.Ct. 420, 196 L.Ed.2d 351 (2016).</div> <div> 6 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *7, 19.</div> <div> 7 &nbsp;<em>Dirks</em>, 463 U.S. at 662.</div> <div> 8 &nbsp;<em>Newman</em>, 773 F.3d at 452.</div> <div> 9 &nbsp;<em>Id.</em> at 446.</div> <div> 10 &nbsp;<em>U.S. v. Salman</em>, 618 F. App&rsquo;x 886 (9th Cir. 2015).</div> <div> 11 &nbsp;<em>Newman</em>, 773 F.3d at 452.</div> <div> 12 &nbsp;Indeed, in writing for a unanimous Court, Justice Alito made clear that, based on the speci c facts before the Court, which involved &ldquo;precisely the gift of con dential information to a trading relative that Dirks envisioned&rdquo;, adherence to Dirks &ldquo;easily resolves the narrow issue presented here&rdquo;, but that&rdquo; [d]etermining whether an insider personally bene ts from a particular disclosure, a question of fact, will not always be easy for courts.&rdquo; <em>Salman v. U.S.</em>, 137 S.Ct at 425, 427, 429.</div> <div> 13 &nbsp;<em>Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte. Ltd.</em>, 585 F3d. 58, 67 (2d Cir. 2009), <em>cert. denied</em>, 559 U.S. 1030 (2010).</div> <div> 14 &nbsp;<em>Doscher v. Sea Port Grp. Sec. LLC</em>, 832 F.3d 372, 378( 2d Cir. 2016).</div> <div> 15 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *7</div> <div> 16 &nbsp;<em>Id.</em> at *11</div> <div> 17 &nbsp;<em>Salman v. U.S. </em>137 S.Ct. at 422, 425 (internal citations omitted).</div> <div> 18 &nbsp;<em>Martoma</em>, 2017 WL 3611518, at *16. (emphasis added).</div> <div> 19 &nbsp;<em>Id.</em> at *17.</div> <div> 20 &nbsp;<em>Id.</em> at *17.</div> <div> 21 &nbsp;&rdquo;The Government sought en banc review in Newman, an extremely controversial decision when rendered, which request was denied by the Second Circuit. This prompts some court watchers to believe that an en banc review will not be granted since it is used so sparingly in the Second Circuit. Other observers, however, note that the propriety of a two judge majority panel overruling Second Circuit precedent will necessitate such a review</div> http://www.seyfarth.com:80/publications/erisa090817 Ninth Circuit Holds that ERISA Preempts State Insurance Law Bans on Discretionary Clauses for Self-Funded ERISA Plans http://www.seyfarth.com:80/publications/erisa090817 Fri, 08 Sep 2017 00:00:00 -0400 <p> The Ninth Circuit has weighed into the national debate over discretionary clauses in ERISA plans, holding that ERISA preempts a state-law ban on discretionary clauses for self-funded disability plans, but not for fully-insured plans. <em>Williby v. Aetna Life Ins. Co.</em>, No. 15-56394, Aug. 15, 2019 (9th Cir.).</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/09/08/ninth-circuit-holds-that-erisa-preempts-state-insurance-law-bans-on-discretionary-clauses-for-self-funded-erisa-plans/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=d9346c6e0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-d9346c6e0c-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT090717 The Week in Weed: September 8, 2017 http://www.seyfarth.com:80/publications/TBT090717 Thu, 07 Sep 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Mass. marijuana czar hopeful for on-time rollout of pot sales</p> <p> (Boston Globe: 6 September 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/09/the-week-in-weed-september-8-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=a48b9589bb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-a48b9589bb-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM090617 Dream Over? Trump Administration Announces Plans to Phase Out DACA http://www.seyfarth.com:80/publications/IMM090617 Wed, 06 Sep 2017 00:00:00 -0400 <p> The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.</p> <p> &ldquo;Congress, get ready to do your job &ndash; DACA,&rdquo; tweets President Trump on Tuesday morning.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/09/dream-over-trump-administration-announces-plans-to-phase-out-daca/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=50de27e4e1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-50de27e4e1-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP090617 Federal Enclaves: Islands Amidst a Sea of Cal-Peculiarities http://www.seyfarth.com:80/publications/CP090617 Wed, 06 Sep 2017 00:00:00 -0400 <p> Labor Day sales may be over, but some savvy California employers might still find a great deal. That&rsquo;s because not all land inside California&rsquo;s borders is actually within the legal jurisdiction of California. Rather, some areas are federal enclaves&mdash;territory California has ceded to the federal government and in which federal law largely applies. California employers operating within these enclaves are free of many peculiar California employment laws, and need only follow federal employment law. For this reason, employers who prefer federal employment law but love operating inside California&rsquo;s borders&mdash;and who doesn&rsquo;t?&mdash;may want to consider whether they can operate within a federal enclave.</p> <p> <a href="http://www.calpeculiarities.com/2017/09/06/federal-enclaves-islands-amidst-a-sea-of-cal-peculiarities/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=4794231e0f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-4794231e0f-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA090617-EB IRS Allows Employees to Donate the Value of PTO for Hurricane Harvey Victims http://www.seyfarth.com:80/publications/MA090617-EB Wed, 06 Sep 2017 00:00:00 -0400 <div> The IRS has announced a program that allows employees to donate the value of their vacation, sick time, or other paid time off (&ldquo;PTO&rdquo;) for the relief of victims of Hurricane or Tropical Storm Harvey. &nbsp;Under IRS Notice 2017-48, issued on September 5, employers may contribute the value of the PTO contributed by their employees as Harvey relief to a non-profit organization and will be entitled to a deduction that may be treated as a business expense, rather than a charitable contribution, as long as the donations are specifically for the relief of Harvey victims and are made by January 1, 2019. &nbsp;</div> <div> &nbsp;</div> <div> The employees who make the donations will not be entitled to take charitable deductions, but will not be subject to income or social security taxes on the amounts donated.</div> <div> &nbsp;</div> <div> This differs from a traditional leave donation program, under which employees can donate a portion of their PTO to be used in kind by employees who were affected by a natural disaster such as Harvey. &nbsp;The temporary relief announced by the IRS allows the value of the donated PTO to be converted into cash charitable contributions, making it more widely useful, particularly in the case of employers who do not have employees located in the area affected by Harvey.</div> <div> &nbsp;</div> <div> This relief is in addition to the IRS announcement last week that it was relaxing the rules governing the documentation of hardship withdrawals and loans from 401(k) plans for employees located in the areas affected by Harvey. &nbsp;For more information on that relief, see our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA090117EB.pdf">management alert</a>.</div> <div> &nbsp;</div> <div> Finally, some clients have expressed an interest is using their affiliated private foundations (as opposed to public charities such as the Red Cross) to make charitable contributions for the relief of Harvey victims, so that the relief can be targeted to their employees located in the affected areas. &nbsp;After opposing this practice in the past, the IRS has changed its position and will now allow a private foundation to give priority to employees of the sponsoring employer in making individual hardship relief grants, as long as certain safeguards are met.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM090617-LE2 New Texas Law Provides Equal Protection to Foster Parents Under Family Leave Policies http://www.seyfarth.com:80/publications/OMM090617-LE2 Wed, 06 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>At the state level, Texas law does not require employers to provide family leave to employees.&nbsp; However, a newly enacted law provides that if a Texas employer chooses to offer time off to employees to help them care for a biological or adoptive child, it must also offer the same leave to foster parents (i.e., to care for a foster child).</em></p> <p> Texas House Bill 88, which Governor Greg Abbott signed into law on May 26, 2017, provides for the addition of Section 21.0595 to the Texas Labor Code.&nbsp; Section 21.0595 states that an employer commits an unlawful employment practice if: (1) the employer administers a leave policy under which an employee is entitled to personal leave to care for or otherwise assist the employee&rsquo;s sick child; and (2) that policy &ldquo;does not treat in the same manner as an employee&rsquo;s biological or adopted minor child any foster child of the employee&rdquo; who both resides in the same household as the employee and is under the conservatorship of the Texas Department of Family and Protective Services.&nbsp; The new law went into effect on September 1, 2017, and applies prospectively to conduct occurring after that date.</p> <p> Thus, under this new law, where a company leave policy provides employees time off to care for their &ldquo;children&rdquo; or a &ldquo;son or daughter&rdquo;, those terms must be interpreted to include foster children as well&mdash;similar to requirements under the federal Family and Medical Leave Act (FMLA).&nbsp; Under the FMLA (which applies to private employers with 50 or more employees), eligible employees may take up to 12 workweeks of job-protected leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition.&nbsp; The FMLA defines a &ldquo;son or daughter&rdquo; as a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis.&nbsp; According to the U.S. Department of Labor, the government agency charged with enforcing the FMLA, the broad definition of &ldquo;son or daughter&rdquo; is intended to reflect the reality that many children in the United States live with a parent other than their biological father and mother. &nbsp;The same rationale is reflected in Texas House Bill 88.</p> <p> While enforcement of the new law will likely focus on <em>implementation</em> of leave policies, employers (particularly those not subject to the FMLA) should take this opportunity to review and update the language of any existing family leave policies to make clear that where an employee is permitted to take personal leave to care for a biological or adoptive child, the same opportunity extends to an employee seeking leave to care for a foster child. &nbsp;Importantly, this new Texas law does not require employers to provide such leave, and does not mandate that employers provide family leave in excess of what is already required under the FMLA or other existing policies.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM090617-LE Breaking News: Update to Seyfarth Alerts Regarding the Stay of “Component 2” of the Revised EEO-1 Report http://www.seyfarth.com:80/publications/OMM090617-LE Wed, 06 Sep 2017 00:00:00 -0400 <p class="BodySingle"> <i><strong>Seyfarth Synopsis:</strong> In update to our alerts issued last week, Seyfarth has learned that the 2017 EEO-1 Report, due on March 31, 2018, will be based on employment data from a payroll period between October 1, 2017 and December 31, 2017.</i></p> <p class="BodySingle"> <u>Recent Updates Regarding the Revised EEO-1 Report</u></p> <p> As we initially reported last <a href="http://www.seyfarth.com/publications/OMM082917-LE2">Tuesday (August 29)</a>, the Office of Information and Regulatory Affairs (&ldquo;OIRA&rdquo;) has suspended implementation of &ldquo;Component 2&rdquo; of the Revised EEO-1 Report which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information.&nbsp; We updated this report the <a href="http://www.seyfarth.com/publications/OMM083017-LE2">following day (August 30)</a> to include a statement issued by Victoria Lipnic, Acting Chair of the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;), which advised employers that they would be required to file the EEO-1 Report used in previous years (also known as &ldquo;Component 1&rdquo; of the Revised EEO-1 Report) by the March 31, 2018 deadline.&nbsp;</p> <p> <u>New Information to Report</u></p> <p> In addition to the information that we have previously reported, the EEOC has issued additional information to clarify that the snapshot period for the 2017 EEO-1 Report will be a payroll period of the employer&rsquo;s choice in October, November or December of 2017. The EEOC&rsquo;s communication contains the following information:</p> <ul> <li> Private employers with 100 or more employees and federal contractors with 50 or more employees and $50,000 in contracts are required to file EEO-1 Reports</li> <li> Filers are required to report on race, ethnicity, and gender data within the ten EEO-1 job categories</li> <li> No filers will be required to report on either W-2 wage or FLSA hours worked information</li> <li> Filers are required to report based on employment data from a payroll period in October, November or December of 2017</li> <li> All EEO-1 Reports are due on March 31, 2018</li> </ul> <p> <u>What Does This Mean for the VETS-4212?</u></p> <p> As we <a href="http://www.seyfarth.com/publications/OMM073117-LE">previously reported (July 31)</a>, federal contractors subject to reporting requirements under the Vietnam Era Veterans&rsquo; Readjustment Act (&ldquo;VEVRAA&rdquo;) have been granted permission to file their 2018 VETS 4212 Reports (due September 30, 2018) using employment data as of December 31, 2017.&nbsp; It is not yet clear whether the Department of Labor (&ldquo;DOL&rdquo;) will permit federal contractors to use employment data collected on a date other than December 31, 2017 for their 2018 VETS 4212 Reports. Thus, federal contractors who wish to avoid gathering data separately to comply with the similar compliance requirements of both the EEO-1 and VETS 4212, should &nbsp;consider using the December 31 snapshot date for their EEO-1 employment data.&nbsp; In this way, the same December 31 snapshot data can be used to prepare both the 2017 EEO-1 Report (due on 3/31/2018) and the 2018 VETS 4212 Report (due on 9/30/2018).</p> <p> Federal contractors are further reminded that their <strong>2017</strong> Vets-4212 Reports remain due on 9/30/2017 based on snapshot data from a pay period in July, August or September of 2017.&nbsp;</p> <p> Despite the stay on gathering and reporting wage information on the EEO-1 Report, equal pay continues to be of significant interest to the EEOC and OFCCP. Accordingly, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender and race/ethnicity.</p> <p> We will continue to monitor these developments and will provide additional information as it becomes available. &nbsp;</p> <p class="BodySingle"> <i><o:p></o:p></i></p> http://www.seyfarth.com:80/news/lorberbna090617 Larry Lorber quoted in Bloomberg BNA http://www.seyfarth.com:80/news/lorberbna090617 Wed, 06 Sep 2017 00:00:00 -0400 <p> Larry Lorber was quoted in a September 6 story from Bloomberg BNA, &quot;Employers Won the Pay-Data Battle but May Lose the War,&quot; on how the Office of Management and Budget halted proposed changes to the EEO-1 form that would have required certain businesses to report pay data to the federal government. Lorber hasn&#39;t ruled out the possibility of the EEOC readdressing the issue of federal pay reporting, but he said it&#39;s unlikely.</p> http://www.seyfarth.com:80/news/casciarishrm090517 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm090517 Tue, 05 Sep 2017 00:00:00 -0400 <p> Joan Casciari was quoted in a September 5 story from SHRM, &quot;Supervisors Overrode HR-Approved Accommodations for Obese Worker,&quot; on how obesity is covered by the ADA if it results from an underlying medical condition. Casciari said that the Equal Employment Opportunity Commission (EEOC) has taken the position that obesity by itself&mdash;whether caused by an underlying medical condition or not&mdash;can be an ADA-covered disability. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/court-report-managers-ignoring-hr-obesity.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA090517-LE Dream Over? Trump Administration Announces Plans to Phase Out DACA http://www.seyfarth.com:80/publications/MA090517-LE Tue, 05 Sep 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.</em></p> <p> <em>&quot;Congress, get ready to do your job - DACA,&quot; tweets President Trump on Tuesday morning.&nbsp;&nbsp;&nbsp;</em></p> <p> <strong>End to DACA</strong></p> <p> The President&rsquo;s tweet confirmed Sunday&rsquo;s reports that the Trump administration will move forward with plans to wind down the Deferred Action for Childhood Arrivals (DACA) program following challenges to its legality by the attorneys general of several states.</p> <p> Attorney General Sessions made a formal announcement this morning outlining an end to the Executive Action taken by President Obama in 2012, after Congress failed to pass the Dream Act in 2010.&nbsp; The Administration confirmed that no action -- meaning no loss of work authorization and/or removal of DACA recipients -- will take place prior to March 2018.&nbsp; This six-month period appears intended to provide Congress with a window within which to take the legislative action alluded to on the President&rsquo;s Twitter account.&nbsp;</p> <p> It is estimated that DACA provided work authorization to almost 800,000 &ldquo;Dreamers&rdquo; who were brought to the United States as children, many of whom know no other country. &nbsp;Acting Department of Homeland Security (DHS) Secretary Elaine Duke released the <a href="https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca">Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA), </a>and the Department of Homeland Security&rsquo;s U.S. Citizenship and Immigration Services (USCIS) simultaneously issued an <a href="https://www.dhs.gov/news/2017/09/05/frequently-asked-questions-rescission-deferred-action-childhood-arrivals-daca">FAQ</a> outlining the particulars of the DACA rescission. &nbsp;The <a href="https://www.dhs.gov/news/2017/09/05/fact-sheet-rescission-deferred-action-childhood-arrivals-daca">DHS Fact Sheet</a> confirms that, &ldquo;effective immediately,&rdquo; DHS:</p> <ul> <li> Will adjudicate&mdash;on an individual, case-by-case basis&mdash;properly filed pending DACA initial requests and associated applications for Employment Authorization Documents (EADs) that have been accepted as of September 5, 2017.</li> <li> Will reject all DACA initial requests and associated applications for EADs filed after September 5, 2017.</li> <li> Will adjudicate&mdash;on an individual, case-by-case basis&mdash;properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017..&nbsp; The government will also accept extension applications from current beneficiaries whose employment authorization benefits will expire between September 5, 2017 and March 5, 2018 -- as long as the application for extension benefits is filed on or before October 5, 2017.</li> <li> Will reject all DACA renewal requests and associated applications for EADs filed outside of the parameters specified above.</li> <li> Will not terminate the grants of previously issued deferred action or revoke EADs solely based on the directives in the memorandum for the remaining duration of their validity periods.</li> <li> Will not approve any new applications for advance parole under standards associated with the DACA program, although it will generally honor the stated validity period for previously approved applications for advance parole. Notwithstanding the continued validity of advance parole approvals previously granted, U.S. Customs and Border Protection (CBP) will, of course, retain the authority it has always had and exercised in determining the admissibility of any person presenting at the border and the eligibility of such persons for parole. Further, USCIS will retain the authority to revoke or terminate an advance parole document at any time.</li> <li> Will administratively close all pending applications for advance parole filed under standards associated with the DACA program, and will refund all associated fees.</li> <li> Will continue to exercise its discretionary authority to terminate or deny deferred action for any reason, at any time, with or without notice.</li> </ul> <p dir="rtl" style="margin-right: 4.5pt; text-align: left;"> USCIS acknowledged that DACA recipients will retain deferred action and their EADs &ldquo;until they expire, unless terminated or revoked.&rdquo;&nbsp; Notably, the FAQ &nbsp;states that &ldquo;DACA benefits are generally valid for two years from the date of issuance.&rdquo;&nbsp; Accordingly, as indicated above, it appears that USCIS will continue to issue EADs for current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017 for a two-year time period. &nbsp;However, DHS has not yet directly clarified the period of validity for EAD renewals</p> <p> <strong>Bi-Partisan Legislation in Support of DACA</strong></p> <p> Congress will likely refocus the debate related to the &ldquo;dreamers,&rdquo; and there are currently two main bipartisan bills in play that could grant status and a &ldquo;pathway to citizenship&rdquo; to the DACA population.</p> <ol> <li> Introduced by Senators Lindsey Graham (R-SC), Dick Durbin (D-IL), Jeff Flake (R-AZ), and Chuck Schumer (D-NY), the <a href="https://www.durbin.senate.gov/imo/media/doc/Dream%20Act%20of%202017%20section%20by%20section.pdf">Dream Act of 2017</a> provides a path to U.S. citizenship for young undocumented immigrants with DACA or temporary protected status (TPS) who meet certain educational requirements, enter the workforce, or enlist in the military. &nbsp;All must successfully pass a background check and remain eligible.</li> <li> <a href="https://www.congress.gov/bill/115th-congress/house-bill/1468/text">The Recognizing America&#39;s Children (RAC) Ac</a><u>t</u> would allow &ldquo;dreamers&rdquo; who arrived in the U.S. as minors prior to 2010 the ability to adjust their status -- meaning to apply for U.S. permanent residence or a green card -- if they meet certain educational or military requirements, successfully pass a background check, and remain in good legal standing.</li> </ol> <p> <strong>The Business Community&rsquo;s Support of DACA</strong></p> <p> Last Thursday, <a href="https://dreamers.fwd.us/">FWD.us</a> published a letter from <a href="https://dreamers.fwd.us/business-leaders"><em>Leaders of American Industry on DACA</em></a><em>,</em> including CEOs/Founders/Executives from Facebook, Apple, Amazon, General Motors, Google, Hyatt, Levi Strauss, Netflix, and PayPal reminding the President and Congress that &ldquo;Dreamers are vital to the future of our companies and our economy. With them, we grow and create jobs. They are part of why we will continue to have a global competitive advantage.&rdquo;</p> <p> <strong><u>Possible Workforce Impact from DACA and TPS Elimination</u></strong></p> <p> In light of the termination of DACA, as well as possible suspension of several <a href="https://www.uscis.gov/humanitarian/temporary-protected-status">TPS programs</a>, U.S. companies may wish to conduct an assessment of the number of potentially affected individuals currently in their employ.&nbsp; Seyfarth partner, and former USCIS Director, Leon Rodriguez, estimated &ldquo;that the combination of the threats to TPS and to DACA mean that as many as 1 million workers could lose U.S. work authorization over approximately a two and one half year period,&rdquo; in a Seyfarth <a href="http://www.seyfarth.com/publications/MA072417-LE">client alert</a>.</p> <p> Recent Form I-9 guidance and auto-extension rules now force employers to review employment eligibility basis codes. &nbsp;Reviewing these category codes which are listed on EADs, may provide a starting place to assess the impact of the loss of DACA and TPS recipients. &nbsp;However, this type of undertaking should be carefully considered with the assistance of competent counsel to ensure that there are no anti-discrimination based missteps.&nbsp;</p> http://www.seyfarth.com:80/publications/wh090517 White House to Nominate S.C. Labor Official to Serve as WHD Administrator http://www.seyfarth.com:80/publications/wh090517 Tue, 05 Sep 2017 00:00:00 -0400 <p> The White House announced its intent to nominate Cheryl Stanton to serve as the Administrator of the U.S. Department of Labor&rsquo;s Wage &amp; Hour Division. Stanton currently serves as the Executive Director for the South Carolina Department of Employment and Workforce. Prior to that, she worked in private practice as a management-side labor and employment attorney. She also previously served as Associate White House Counsel for President George W. Bush, where she was the administration&rsquo;s principal liaison to the U.S. Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/white-house-to-nominate-whd-administrator/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=a192e86827-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-a192e86827-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts090517 File Share Platforms and Business Risk http://www.seyfarth.com:80/publications/ts090517 Tue, 05 Sep 2017 00:00:00 -0400 <p> The use of open file sharing platforms in business continues to increase in 2017; Dropbox alone has over 200,000 active business accounts. Unfortunately, the convenience of these platforms and the increase in use by businesses attracts the attention of hackers as well. File sharing platforms and accounts have a high &ldquo;hack value&rdquo;&mdash;the overall value of the accounts on the dark web&mdash;due to the relative ease with which account can be obtained and the sensitivity of the information stored on these platforms.</p> <p> <a href="http://www.tradesecretslaw.com/2017/09/articles/cybersecurity/file-share-platforms-and-business-risk/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=21415208a9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-21415208a9-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/passantinoforbes090417 Alex Passantino quoted in Forbes http://www.seyfarth.com:80/news/passantinoforbes090417 Mon, 04 Sep 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a September 4 story from Forbes, &quot;9 Signs Of Bad News For Workers On Labor Day 2017,&quot; on how the higher cut-off for overtime exempt employees was sunk. Passantino said that there&#39;s no question that the 2016 final rule was trying to increase the number of people entitled to overtime. You can read the <a href="https://www.forbes.com/sites/eriksherman/2017/09/04/9-signs-of-bad-news-for-workers-on-labor-day-2017/#69d89b8a30cc">full article here</a>.</p> http://www.seyfarth.com:80/news/devatamora090417 Pamela Devata and Jennifer Mora quoted in Business Insurance http://www.seyfarth.com:80/news/devatamora090417 Mon, 04 Sep 2017 00:00:00 -0400 <p> Pamela Devata and Jennifer Mora were quoted in a September 4 story from Business Insurance, &quot;Conviction inquiry laws stymie firms,&quot; on how &ldquo;Ban the box&rdquo; laws requiring employers to delay asking about applicants&rsquo; conviction history until far along in the job application process have gained momentum at the state and local levels and are leaving employers to face a variety of potential liability issues. Devata said that Indiana has approved legislation that bans its political subdivisions from enacting &ldquo;ban the box&rdquo; restrictions for private employers. Mora said that these ordinances all differ in their remedies, so depending on where the employer is located, they could be faced with a simple slap on the wrist or they could receive monetary penalties ranging from $100 to several thousand dollars. You can read the <a href="http://www.businessinsurance.com/article/20170904/NEWS06/912315559/Conviction-inquiry-laws-stymie-firms-employment-practice-risks">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinousa090117 Alex Passantino quoted in USA Today http://www.seyfarth.com:80/news/passantinousa090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a September 1 story in USA Today, &quot;Judge strikes down overtime pay hike for 4.2 million workers.&quot; Passantino predicted the Trump administration would not appeal the ruling because it preserves its ability to raise the salary threshold above $23,660 but below the $47,476 set by the Obama administration. You can read the <a href="https://www.usatoday.com/story/money/2017/08/31/judge-strikes-down-overtime-pay-hike-4-2-million-workers/622689001/">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinolaw360090117 Alex Passantino quoted in Law360 http://www.seyfarth.com:80/news/passantinolaw360090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a September 1 story from Law360, &quot;4 Things To Watch After Obama&#39;s OT Rule Nixed,&quot; on whether the DOL will issue a new rule. Passantino said that the ruling clears the path for the DOL to continue with the rulemaking process it has started with its request for information and, presumably, ultimately increase the existing level to something more reasonable than the Obama DOL did.</p> http://www.seyfarth.com:80/news/greensteinqacoop090117 Dennis Greenstein participated in a Q&A in The Cooperator http://www.seyfarth.com:80/news/greensteinqacoop090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Dennis Greenstein participated in a September 1 Q&amp;A in The Cooperator, &quot;Co-op Board Hasn&#39;t Had a Meeting in a While.&quot; Greenstein said that the failure to hold any meetings in a long time raises issues about the lack of governance of the building. You can read the <a href="https://cooperator.com/article/qa-co-op-board-hasnt-had-a-meeting-in-a-while/full">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/publications/WH090117 Obama Overtime Rule Invalidated by Federal Court in Texas http://www.seyfarth.com:80/publications/WH090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> For nearly a year, employers have been watching and waiting as litigation challenging the Obama administration&rsquo;s revision to the&nbsp;FLSA&rsquo;s&nbsp;executive, administrative, and professional (&ldquo;EAP&rdquo;) exemptions&mdash;a revision intended to make millions of more Americans eligible for overtime pay&mdash;wound its way through litigation in the Eastern District of Texas and the Fifth Circuit of Appeals. As of Thursday afternoon, the waiting is over: District Judge Amos Mazzant issued an order invalidating the revised rule.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ot-rule-invalidated/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=9e79b6bb25-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-9e79b6bb25-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc090117 Seventh Circuit Rejects And Lambasts “Worthless” Settlement For Class Of Subway Sandwich Purchasers http://www.seyfarth.com:80/publications/wc090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> In<em><a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/09/Subway.pdf"> In Re Subway Footlong Sandwich Mktg. &amp; Sales Practices Litig.</a>,</em> No. 16-1652, 2017 U.S. App. LEXIS 16260 (7th Cir. Aug. 25, 2017), the U.S. Court of Appeals for the Seventh Circuit addressed the propriety of an injunctive relief settlement for a class of Subway &ldquo;Footlong&rdquo; sandwich purchasers.</p> <p> <a href="http://www.workplaceclassaction.com/2017/09/seventh-circuit-rejects-and-lambasts-worthless-settlement-for-class-of-subway-sandwich-purchasers/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=598e526b40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-598e526b40-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wls090117 Seyfarth continues growth in Hong Kong, adds partner Raymond Wong http://www.seyfarth.com:80/publications/wls090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Seyfarth Shaw has announced the addition of corporate partner <a href="http://www.seyfarth.com/RaymondWong" rel="noopener noreferrer" target="_blank">Raymond Wong</a> in Hong Kong as the firm continues to scale its International Corporate and Commercial practice in the Asia-Pacific region.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/09/seyfarth-continues-growth-in-hong-kong-adds-partner-raymond-wong/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=c9ff2610d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-c9ff2610d4-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA090117-EB IRS and DOL Provide Relief for Plan Sponsors and Participants Affected by Hurricane Harvey http://www.seyfarth.com:80/publications/MA090117-EB Fri, 01 Sep 2017 00:00:00 -0400 <div> <em>The Internal Revenue Service (IRS) and Department of Labor (DOL) issued temporary relief on deadlines and procedural requirements applicable to employee benefit plans for employers impacted by Hurricane Harvey.&nbsp;</em><br /> &nbsp;</div> <div> On Wednesday, August 30, 2017, the IRS issued <a href="https://urldefense.proofpoint.com/v2/url?u=http-3A__links.govdelivery.com-3A80_track-3Ftype-3Dclick-26enid-3DZWFzPTEmbWFpbGluZ2lkPTIwMTcwODMwLjc3NTI1MzExJm1lc3NhZ2VpZD1NREItUFJELUJVTC0yMDE3MDgzMC43NzUyNTMxMSZkYXRhYmFzZWlkPTEwMDEmc2VyaWFsPTE3MTUzNTQxJmVtYWlsaWQ9cmxvZWJsQHNleWZhcnRoLmNvbSZ1c2VyaWQ9cmxvZWJsQHNleWZhcnRoLmNvbSZmbD0mZXh0cmE9TXVsdGl2YXJpYXRlSWQ9JiYm-26-26-26117-26-26-26https-3A__www.irs.gov_pub_irs-2Ddrop_a-2D17-2D11.pdf&amp;d=DwMFAA&amp;c=fMwtGtbwbi-K_84JbrNh2g&amp;r=nd-uWVrBXsjLBAZqOkGJ_EdVMjdNNgAec0Dxc1Pl_AM&amp;m=i1IT-EbDbLamO3B1Soo_t-NGptRZJbWD8uOtEVDWdZk&amp;s=ErCgKLdQTAfyFoXLM7PT_dCuTI4dbnvPQ8H_Cyb2COQ&amp;e=">Announcement 2017-11</a>, which provides easier access to 401(k), 403(b) and 457(b) funds for individuals affected by Hurricane Harvey. For a list of locations, click&nbsp;<a href="https://www.fema.gov/disaster/4332">here</a>. On the same day, the Department of Labor (DOL) issued a <a href="https://www.dol.gov/newsroom/releases/ebsa/ebsa20170830">news release</a> giving relief to the timing rules for depositing participant contributions and loan repayments, and the requirement to issue blackout notices in the event investment trading in retirement plans was or is interrupted by Hurricane Harvey.</div> <div> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td> <div> The IRS also issued a <a href="https://www.irs.gov/newsroom/tax-relief-for-victims-of-hurricane-harvey-in-texas">news release</a> giving extensions for various tax filing deadlines. &nbsp;Included among the relief is an extension until January 31, 2018 to file Forms 5500 that are due between August 23, 2017 and January 31, 2018. &nbsp;</div> </td> </tr> </tbody> </table> </div> <div> <br /> <strong>Loan and Hardship Withdrawal Relief</strong><br /> <br /> Under IRS rules, employees have access to their funds in employer retirement plans only upon the occurrence of certain events, such as termination of employment, disability or hardship. &nbsp;The distributions and withdrawals pursuant to these events are further governed by IRS rules and limitations. &nbsp;Wednesday&rsquo;s announcement eases some of these limitations for participants affected by Hurricane Harvey. &nbsp;Following is a summary of the normal rules, the relief afforded by the Announcement and the required follow-up steps.<br /> <br /> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <thead> <tr> <th scope="col"> Normal Rule</th> <th scope="col"> Immediate Relief<span style="white-space: pre;"> </span></th> <th scope="col"> Follow-Up Steps</th> </tr> </thead> <tbody> <tr> <td> The plan must contain language allowing loans and hardship withdrawals before they can be made.&nbsp;</td> <td> Plans that do not contain such language may nonetheless grant loans and/or hardship withdrawals between August 23, 2017 and January 31, 2018.<span style="white-space: pre;"> </span></td> <td> Plan language allowing the loans and/or hardship withdrawals must be added by the end of the first plan year beginning after December 31, 2017. The deadline for calendar year plans is December 31, 2018.</td> </tr> <tr> <td> Plans generally require documentation of the hardship before allowing a hardship withdrawal. &nbsp;<br /> <br /> Plans also might have other processes and procedures; for example, a plan requiring spousal consent to a loan or distribution may require a death certificate if the participant claims his/her spouse is deceased.<span style="white-space: pre;"> </span></td> <td> The plan administrator can grant the loan or hardship withdrawal before the normal documentation and procedural requirements are satisfied. &nbsp;However, normal spousal consent rules continue to apply (unless the participant claims that his or her spouse is deceased, it is reasonable to belief that is the case, and the plan administrator makes reasonable efforts to obtain the death certificate as soon as practicable).<span style="white-space: pre;"> </span></td> <td> <p> The plan administrator must make a good faith effort to comply with the plan&rsquo;s requirements and collect supporting documentation from the participant as soon as practicable.</p> <p> Withdrawals made pursuant to the Announcement are still taxable (except to the extent they consist of after-tax contributions) and subject to the 10% penalty if made before age 59 1/2. &nbsp;</p> </td> </tr> <tr> <td> Employees generally cannot contribute to the plan for six (6) months after receipt of the hardship withdrawal.<span style="white-space: pre;"> </span></td> <td> The 6-month suspension is not required.</td> <td> None</td> </tr> </tbody> </table> <p> <br /> The relief described in the Announcement can be extended to a participant even if he/she is a former employee. &nbsp;Withdrawals can be made not only for the participant&rsquo;s hardship, but for that of his/her lineal ascendant or descendant, or spouse or other dependent with a principal residence or place of employment in one of the covered disaster areas. &nbsp;</p> </div> <div> <strong>Contribution/Loan Repayment Timing and Blackout Relief</strong><br /> &nbsp;</div> <div> The DOL also issued relief with respect to deadlines for remitting retirement plan contributions to the plan and issuing blackout notices.<br /> <br /> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <thead> <tr> <th scope="col"> Normal Rule</th> <th scope="col"> Immediate Relief<span style="white-space: pre;"> </span></th> <th scope="col"> Follow-Up Steps</th> </tr> </thead> <tbody> <tr> <td> When an employee contributes to a defined contribution plan (or makes a loan payment) out of his/her paycheck, the employer must remit the contribution (or loan payment) to the plan as soon as the funds can reasonably be segregated from the employer&rsquo;s general assets, but in no event later than the 15th business day of the month after the month in which they were withheld by the employer.&nbsp;</td> <td> The DOL will not allege a violation if the remittance is delayed solely due to Hurricane Harvey, provided the employer and its service providers act prudently to remit the contributions as soon as practicable under the circumstances.</td> <td> Employers should remit participants&rsquo; contributions and loan repayments to the plan as soon as practicable under the circumstances.</td> </tr> <tr> <td> The plan administrator must notify participants 30 days in advance if participants will be temporarily unable to obtain a loan or distribution or trade in their retirement accounts for more than three (3) business days (referred to as a blackout period),<span style="white-space: pre;"> </span></td> <td> The DOL will not allege a violation for failure to give notice of blackout periods related to Hurricane Harvey.</td> <td> Consider issuing a notice if the blackout period is going to continue for a period after the date it is practicable for the employer to give notice.</td> </tr> </tbody> </table> <p> <br /> <strong>Guidance for Group Health Plans</strong></p> </div> <div> The DOL acknowledged that deadlines under group health plans might be missed due to Hurricane Harvey, such as the deadline to issue a COBRA notice or make a COBRA election, or the deadline to file a benefit claim. &nbsp;The DOL&rsquo;s guidance encourages employers to make reasonable accommodations for employees to prevent the loss of benefits, and notes that it will give grace periods where appropriate when compliance with the plan&rsquo;s pre-established time frames under the plan&rsquo;s normal claim and appeal procedures is not possible due to Hurricane Harvey.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA090117-LE Obama Overtime Rule Invalidated by Federal Court in Texas http://www.seyfarth.com:80/publications/MA090117-LE Fri, 01 Sep 2017 00:00:00 -0400 <p> For nearly a year, employers have been watching and waiting as litigation challenging the Obama administration&rsquo;s revision to the Fair Labor Standards Act&rsquo;s executive, administrative, and professional (&ldquo;EAP&rdquo;) exemptions&mdash;a revision intended to make millions of more Americans eligible for overtime pay&mdash;wound its way through litigation in the Eastern District of Texas and the Fifth Circuit of Appeals. As of Thursday afternoon, the waiting is over: District Judge Amos Mazzant issued an order invalidating the revised rule.</p> <p> The Obama DOL&rsquo;s revised rule, which was finalized in the summer of 2016 and slated to take effect on December 1, 2016, would have increased the salary level required for EAP employees from $455 per week (i.e., $23,660 per year) to $913 per week (i.e., $47,476 per year). The rule also called for automatic, inflation-indexed updates to the salary level every three years. Ultimately, the revised rule did not become effective on December 1, however, because Judge Mazzant issued an order days prior that preliminarily enjoined it from going into effect.</p> <p> District Judge Mazzant issued his order in two consolidated lawsuits challenging the DOL for acting beyond its rulemaking authority. The order was the result of a motion filed by a group of state attorneys general who argued that the DOL&rsquo;s rulemaking was invalid, in part because it exceeded the authority Congress gave DOL to define who is a &ldquo;bona fide&rdquo; EAP employee who should not be entitled to overtime pay. At about the same time that the &ldquo;state plaintiffs&rdquo; filed their motion for preliminary injunction, which the district court granted, another set of plaintiffs&mdash;a group of business associations (&ldquo;business plaintiffs&rdquo;)&mdash;filed an expedited motion for summary judgment, advancing similar arguments that the DOL&rsquo;s rulemaking was unlawful.</p> <p> After Judge Mazzant granted the state plaintiffs&rsquo; preliminary injunction motion, the Obama DOL filed an interlocutory appeal in the Fifth Circuit attacking the injunction order. Importantly, however, this was just before the Trump Administration took office. Ultimately, briefing in the appeal was delayed as a new president settled into office and his new Labor Secretary, Alexander Acosta, took the helm at DOL. In doing so, Secretary Acosta and his Acting Solicitor were required to assess how to maneuver a proceeding involving an injunction order that on the one hand blocked the implementation of an overtime rule championed by the prior administration, but on the other hand suggested that the DOL might not have authority to set <em>any</em> salary level for the EAP exemptions, despite having done so for nearly eighty years.</p> <p> In the meantime, the business plaintiffs&rsquo; motion for summary judgment lingered before the district court.</p> <p> Thursday&rsquo;s ruling was preceded by a recent flurry of activity. On Wednesday, for example, Judge Mazzant issued an order confirming no further argument was necessary on the summary judgment motion. The court also collapsed the state plaintiffs&rsquo; and business plaintiffs&rsquo; cases together and joined the state plaintiffs to the business plaintiffs&rsquo; pending summary judgment motion.&nbsp;Nevertheless, it seemed unlikely that Judge Mazzant would rule on the summary judgment motion before hearing from the Fifth Circuit regarding his earlier preliminary injunction order. After all, an appellate ruling on whether it was proper to preliminarily enjoin the new rule certainly could have impacted or at least informed Judge Mazzant&rsquo;s reasoning on whether the rule should be declared invalid, as the summary judgment motion argued it should.</p> <p> Meanwhile, at the Fifth Circuit, oral argument was slated for October 3, and the parties were jockeying for an opportunity to be heard. The business plaintiffs, who were not parties to the appeal, requested permission to appear as amici at the oral argument. Soon thereafter, all parties filed a motion to stay proceedings while they attempted to negotiate a deal that would eliminate the need for further proceedings. Indeed, even on Thursday as the district court was issuing its final judgment, the parties on appeal were filing various submissions with the Fifth Circuit.</p> <p> So perhaps all were surprised when District Judge Mazzant issued orders finding that the DOL&rsquo;s 2016 rulemaking was invalid, and that the AFL-CIO would not be joined to the case. The district court&rsquo;s ruling on both of these issues is fairly straightforward. On the motion for summary judgment, which collapsed all parties and remaining issues into its walls, the court ruled as follows:</p> <ul> <li> As associations and similar groups, the business plaintiffs had standing to challenge the DOL&rsquo;s rulemaking.</li> <li> The FLSA does in fact apply to state governments, contrary to the state plaintiffs&rsquo; arguments.</li> <li> Applying <em>Chevron</em> deference analysis, the DOL exceeded its authority by setting a salary level test that in effect eliminated the need to consider whether employees performed duties that demonstrate their roles working in a bona fide EAP capacity, based on definitions that Congress would have understood at the time it enacted the FLSA.</li> <li> The automatic updating provided by the DOL&rsquo;s final 2016 rule was unlawful for similar reasons.</li> <li> Clarifying an area of concern for the DOL and other stakeholders, the court did not rule on the question of whether the DOL has authority to set <em>any</em> salary level for the EAP exemptions. The court&rsquo;s ruling concerned only the 2016 rulemaking, finding the heightened salary level under the revised rule goes too far.</li> </ul> <p> In denying the AFL-CIO&rsquo;s motion to intervene as a necessary or permissive party, the court reasoned:</p> <ul> <li> The union&rsquo;s motion was untimely, as it had been aware of the litigation and the issues on which it bore. Yet it waited to file its motion to intervene until material events had occurred in the litigation.</li> <li> The union had failed to show that the DOL and related defendants were not adequately representing the interests that it purported to protect.</li> <li> The union had argued among its primary points that Secretary of Labor nominee Andrew Puzder would not protect those interests; but Alexander Acosta was confirmed as Secretary of Labor, meaning that Mr. Puzder&rsquo;s potential actions never became a reality.</li> <li> And the court would nevertheless not exercise its discretion to allow the union to join the case.</li> </ul> <p> The question on everyone&rsquo;s mind is: <strong><em>where does this leave us? </em></strong></p> <p> One easy answer is that with respect to the EAP exemption itself, the 2004 rule remains in place. Employees making $455 per week (i.e., $23,660 per year) and whose primary duty satisfies one of the EAP duties tests may be classified as exempt.</p> <p> Beyond that, there are no easy answers. The parties are no doubt considering whether the district court&rsquo;s summary judgment order, which purports to withdraw all prior rulings, renders the pending appeal moot or requires its dismissal. After all, the summary judgment motion decided by the district court presents largely the same issues currently before the Fifth Circuit&mdash;namely, the validity of the new overtime rule. Some commentators have already exclaimed that the district court&rsquo;s order mooted the interlocutory appeal entirely. Our view is that the question could be more complicated. Suffice it to say, there&rsquo;s a lot to digest.</p> <p> Either way, it also remains unclear whether either side will appeal Thursday&rsquo;s rulings. While one would assume that DOL will not, we can&rsquo;t slam the door on the possibility. As we saw with the appeal of the preliminary injunction, even the new Administration&rsquo;s policy differences may not override DOL&rsquo;s desire to defend itself against court orders limiting its authority, as the preliminary injunction did and as the court&rsquo;s summary judgment order appears to do. If DOL determines that there is an institutional need to preserve its rulemaking authority, then it is possible we might see a DOL-initiated appeal, which would further complicate the question of how the union might agitate the proceedings.</p> <p> As for the AFL-CIO, next steps are even foggier at this moment. Given that the DOL has already signaled the commencement of new rulemaking on the EAP exemptions, the AFL-CIO may take the view that even a complete victory on appeal&mdash;i.e., one that would permit its inclusion in the case and the reversal of the district court&rsquo;s summary judgment decision&mdash;would ring hollow, as it could be undone by the DOL&rsquo;s efforts to formulate a new rule that would take the place of the Obama rule.</p> <p> Without question, the Eastern District of Texas&rsquo;s order invalidating the 2016 overtime rule brings a large measure of closure for employers waiting to learn whether the rule would ever go into effect. The completeness and finality of that closure will depend largely on whether the AFL-CIO seeks appeal, as well as the DOL&rsquo;s anticipated efforts to implement a new rule altogether. We will, of course, continue to monitor and update you on these important events.</p> http://www.seyfarth.com:80/publications/refj090117 Arren Goldman and Mitchell Kaplan authored an article in the Real Estate Finance Journal http://www.seyfarth.com:80/publications/refj090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Arren Goldman and Mitchell Kaplan authored a September 1 article in the Real Estate Finance Journal, &quot;Navigating the Choppy Waters of the CMBS Loan Assumption Process: 10 Ways to Bring Calm to the Storm.&quot; The article addresses 10 ways to make the process more manageable for all parties involved. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/REFJ_090117.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/vicktfl090117 Jordan Vick authored an article in The Federal Lawyer http://www.seyfarth.com:80/publications/vicktfl090117 Fri, 01 Sep 2017 00:00:00 -0400 <p> Jordan Vick authored a September 1 article for The Federal Lawyer, &quot;Hon. Joan Humphrey Lefkow.&quot; The article discusses the Senior Judge for the U.S. District Court for the Northern District of Illinois.</p> http://www.seyfarth.com:80/publications/RD083117-LE Fair Game? Predictable Scheduling Laws -- The Sensation Sweeping The Nation http://www.seyfarth.com:80/publications/RD083117-LE Thu, 31 Aug 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:&nbsp; Last minute scheduling change?&nbsp; Want to make sure you have enough employees on stand-by to cover shifts?&nbsp; In a growing number of areas around the country, that will cost you.&nbsp; </em></p> <p> Fair scheduling laws &ndash; sometimes referred to as &ldquo;predictive&rdquo; or &ldquo;predictable&rdquo; scheduling &ndash; are popping up in city councils and state legislatures across the nation.&nbsp; Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of &ldquo;predictability pay&rdquo; &ndash; such as one hour of pay for every four hours of scheduled work &ndash; if changes are made to an employee&rsquo;s schedule on short notice.&nbsp; These laws also tend to require predictability pay if employees are &ldquo;on call&rdquo; but not called in to work, and some restrict the ability to schedule employees for closing and opening shifts (&ldquo;clopenings&rdquo;).</p> <p> San Francisco was the first to pass a law of this kind, which went into effect in July 2015.&nbsp; But in the past year, more states and cities have passed &ndash; or are considering &ndash; similar legislation.&nbsp; In June, Oregon became the first state to pass a fair scheduling law (effective July 2018).&nbsp; Emeryville, CA and Seattle enacted scheduling laws that went into effect July 1, 2017, and New York City&rsquo;s recently passed ordinance will be enforceable as of November 26, 2017.&nbsp;</p> <p> Other states and municipalities (including Congress) have introduced predictable scheduling legislation, including Arizona, California, Chicago, Connecticut, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, and Washington, D.C.&nbsp; (Georgia, on the other hand, has taken the opposite approach, and passed a law that <em>prohibits</em> municipalities from passing a law that would require predictability pay.)</p> <p> The theory behind these laws is that uncertainty in scheduling and last-minute scheduling changes wreak havoc on employees&rsquo; ability to plan for caregiving needs, hold second jobs or attend school, and plan their income.&nbsp; Several national retailers have already been forgoing &ldquo;on-call&rdquo; scheduling practices, irrespective of any legal mandate.</p> <p> Retailers should be mindful of these new scheduling laws, particularly for those who have operations in affected jurisdictions.&nbsp; Bear in mind that each law varies.&nbsp; In Seattle, for example, schedules must be posted 14 days in advance and employees are entitled to receive half-time pay for any shift they are &ldquo;on-call&rdquo; but not called to work.&nbsp; New York City&rsquo;s law, on the other hand, only requires schedules to be posted with 72 hours&rsquo; notice, but bans on-call scheduling altogether.&nbsp;</p> <p> Many of the proposed and enacted laws also create an &ldquo;interactive process&rdquo; obligation &ndash; similar to the Americans with Disabilities Act &ndash; whereby employers are required to have a dialogue with employees about scheduling preferences and scheduling accommodation requests, and in some instances must grant such requests absent a bona fide business reason.&nbsp; They also generally prohibit retaliation against employees who request changes to their schedules.&nbsp;&nbsp;&nbsp;</p> <p> Each statute also contains its own unique exceptions.&nbsp; Most do not require predictability pay if operational needs change due to natural disasters or other unforeseen changes, or if an employee requests a scheduling change, volunteers for a change, or swaps shifts.&nbsp; Oregon&rsquo;s law calls for the creation of a &ldquo;voluntary standby list&rdquo; of employees who may be called upon to work unexpected hours without receiving additional compensation.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> Given the differentiation in these laws, employers with national retail operations should review their scheduling policies to ensure compliance with local laws and train management about the penalties associated with last-minute scheduling changes.&nbsp; For some, adopting a broad policy curbing on-call scheduling, providing advance notice of schedules, and creating voluntary &ldquo;standby&rdquo; lists may be helpful to comply with these varying laws with minimal interruption to business operations.</p> <p> For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the&nbsp;<a href="http://www.seyfarth.com/Absence-Management-and-Accommodations">Absence Management &amp; Accommodations Team</a>&nbsp;or the&nbsp;<a href="http://www.seyfarth.com/Workplace-Policies-and-Handbooks">Workplace Policies and Handbooks Team</a>.</p> http://www.seyfarth.com:80/publications/MA083171-LE After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey http://www.seyfarth.com:80/publications/MA083171-LE Thu, 31 Aug 2017 00:00:00 -0400 <div> <p> <strong><em>Seyfarth Synopsis</em></strong><em>: It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.</em></p> </div> <div> <strong>I. Introduction</strong></div> <div> &nbsp;</div> <div> The ongoing devastation from Hurricane Harvey, flooding in Houston, and ongoing rain in Texas and Louisiana are indicative how merciless and unpredictable Mother Nature can be. Climate scientists have warned higher sea levels and water temperatures in coming years, which are predicted to lead to more hurricanes and coastal flooding in the future. For employers, who are obligated to keep their employees safe during working hours, disaster preparedness is critical.</div> <div> &nbsp;</div> <div> This article outlines employers&rsquo; obligations to protect employees before, during, and after an emergency and offers recommendations to employers in the following areas: 1) preparing for an emergency; 2) taking action during an emergency; and 3) cleaning up and resuming business after an emergency.</div> <div> &nbsp;</div> <div> <div> <strong>II. Preparing for an Emergency</strong></div> <div> &nbsp;</div> <div> 29 C.F.R. 1910.38 requires all workplaces with more than 10 employees to develop a written Emergency Action Plan (EAP), when required by an OSHA standard, to identify and coordinate necessary employer and employee actions during an emergency. At a minimum, the EAP must include the following elements:</div> <div> &nbsp;</div> <div> &bull; Means of reporting emergencies (fires, floods, etc.);</div> <div> &nbsp;</div> <div> &bull; Evacuation procedures and assigned exit routes;</div> <div> &nbsp;</div> <div> &bull; Procedures to account for all employees following an evacuation;</div> <div> &nbsp;</div> <div> &bull; Procedures to be followed by employees who must remain behind to attend to critical plant operations before evacuating;</div> <div> &nbsp;</div> <div> &bull; Rescue and/or medical duties for employees who are assigned and trained to perform them; and</div> <div> &nbsp;</div> <div> &bull; Names or job titles of people who can be contacted for more information about the plan.</div> <div> &nbsp;</div> <div> 29 C.F.R. &sect; 1910.38. In addition to these required elements, it is recommended that employers also consider including the following in the EAP:</div> <div> &nbsp;</div> <div> &bull; The location of the nearest hospital or emergency medical center;</div> <div> &nbsp;</div> <div> &bull; The type of alarm system used to notify employees of an emergency;</div> <div> &nbsp;</div> </div> <div> &bull; Procedures for protecting information including procedures for storing or maintaining critical documents and records;</div> <div> &nbsp;</div> <div> &bull; The location and permissible uses of protective equipment such as portable defibrillators, first aid kits, dust masks, fire extinguishers, etc.</div> <div> &nbsp;</div> <div> &bull; The location of televisions or radios for further information during a disaster.&nbsp;</div> <div> &nbsp;</div> <div> Ensuring the development of an effective EAP also requires the employer to train employees to understand their roles and responsibilities under the plan. When conducting this training, the employer must address literacy, language, and cultural barriers to ensure that the training is effective. Employers also must document the training.</div> <div> &nbsp;</div> <div> OSHA has posted links and recommendations on its website to help employers prepare for hurricanes: <a href="https://www.osha.gov/dts/weather/hurricane/preparedness.html">https://www.osha.gov/dts/weather/hurricane/preparedness.html</a>. The website includes tips regarding how to create evacuation plans and assemble emergency supply kits. The Environmental Protection Agency also has provided tips related to hurricane preparedness on its website: <a href="https://www.epa.gov/natural-disasters/hurricanes#recover.">https://www.epa.gov/natural-disasters/hurricanes#recover.</a></div> <div> &nbsp;</div> <div> <div> <strong>III. Responding to an Emergency</strong></div> <div> &nbsp;</div> <div> Communication during an emergency is critical to maintain organization and prevent panic and injuries. For example, not all emergencies require an evacuation of the workplace. In some cases, such as flooding, storms, or the release of biological or chemical agents, staying indoors is safer for employees. The first questions most people ask during an emergency is &ldquo;should I stay or should I go?&rdquo; Employers can guide employees as to the appropriate course of action by having an alarm system that emits a different signal for &ldquo;evacuate&rdquo; emergencies than for &ldquo;stay put&rdquo; emergencies. Alternatively, the alarm system could be programmed to give specific verbal instructions following the initial alert. Employers must consider the needs of disabled employees (e.g. those who are hearing or visually impaired) in selecting any alarm system.</div> <div> &nbsp;</div> <div> Employers should have an effective means of communicating with employees about the following during an emergency:</div> <div> &nbsp;</div> <div> &bull; Whether to evacuate or stay put;</div> <div> &nbsp;</div> <div> &bull; How and where to get information about the emergency itself;</div> <div> &nbsp;</div> <div> &bull; What areas of the building to avoid;</div> <div> &nbsp;</div> <div> &bull; How and when it is safe to return to the work area; and</div> <div> &nbsp;</div> <div> &bull; How and when it is acceptable to contact family members and loved one.</div> <div> &nbsp;</div> <div> <strong>IV. Picking Up the Pieces</strong></div> <div> &nbsp;</div> <div> Once the proverbial dust settles after an emergency, hazards to employees can still remain. For example, downed power lines in a flooded parking lot can injure or kill employees leaving the building after the storm passes. Hazards are even greater for employees who are tasked with cleaning up after an emergency. Employees who are actually performing clean-up work after a flood, storm, earthquake, or other disaster may be exposed to one or more of the following hazards:</div> <div> &nbsp;</div> <div> &bull; Exposure to hazardous materials such as asbestos, mold, lead, or chemicals;</div> <div> &nbsp;</div> <div> &bull; Downed power lines and trees;</div> <div> &nbsp;</div> <div> &bull; Heat illness;</div> <div> &nbsp;</div> <div> &bull; Confined spaces;</div> <div> &nbsp;</div> </div> <div> &bull; Blood borne diseases or other contagions;</div> <div> &nbsp;</div> <div> &bull; Mosquito borne diseases such as Zika virus; and</div> <div> &nbsp;</div> <div> &bull; Structural destabilization<sup>1</sup>.</div> <div> &nbsp;</div> <div> OSHA has developed specific standards to address many of these hazards. For example, OSHA&rsquo;s Hazardous Waste Operations and Emergency Response standard, 29 C.F.R. &sect; 1910.120, applies to employees who are performing clean-ups of hazardous waste or other hazardous materials. OSHA&rsquo;s asbestos and lead standards require employers to evaluate the level or exposure to employees, provide appropriate protective equipment, and, in same cases, conduct regular monitoring of air quality in the work area.</div> <div> &nbsp;</div> <div> In addition to these specific standards, other more general requirements will also come into play. For example, OSHA&rsquo;s welding and cutting Lockout/Tagout, confined space entry, and fall protection programs may come into play, even if no OSHA standard specifically addresses the type of clean-up activity taking place. Finally, as always, OSHA&rsquo;s General Duty Clause requires employers to provide a workplace free from recognized hazards. Accordingly, even if no OSHA standard applies to a particular activity or hazard, employers may still face citation liability if the hazard is reasonably likely to cause serious injury or death and there is a feasible means of abatement to correct the hazard. Before allowing employees to commerce any kind of clean-up work then, the employer must conduct a job hazard analysis (JHA) to identify and address potential hazards.</div> <div> &nbsp;</div> <div> <div> <strong>V. Multi-Employer Worksite Doctrine</strong></div> <div> &nbsp;</div> <div> It is important to note that even employers who hire outside contractors to clean up after a disaster must recognize their obligations for worker safety. OSHA&rsquo;s &ldquo;multi-employer worksite&rdquo; doctrine allows the agency to issue citations not only to the</div> <div> employer whose employees are actually performing the clean-up work, but also to other employers who either control the means and methods of work of the employees. Accordingly, employers may be liable for the safety precautions provided to employees who are brought onto their worksites following a natural disaster.</div> <div> &nbsp;</div> <div> <strong>VI. Conclusion and Recommendations</strong></div> <div> &nbsp;</div> <div> It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will help prevent panic, thereby minimizing employee injuries and damage to property. We recommend that employers consider the following:</div> <div> &nbsp;</div> <div> &bull; Develop an EAP that covers a wide variety of potential emergencies and gives employees clear guidance on what to do in each scenario;</div> <div> &nbsp;</div> <div> &bull; Be cognizant of hazards employees may face even after the immediate danger has passed;</div> <div> &nbsp;</div> <div> &bull; Train employees in evacuation plans and other emergency response procedures;</div> <div> &nbsp;</div> <div> &bull; Conduct a job hazard analysis and review applicable OSHA standards before assigning any employees to perform clean-up work;</div> <div> &nbsp;</div> <div> &bull; Evaluate the safety record of any independent contractor hired to perform clean-up work, including investigating the contractor&rsquo;s worker&rsquo;s compensation history, its OSHA logs, and its history of citations from OSHA.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/wse083117 After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey http://www.seyfarth.com:80/publications/wse083117 Thu, 31 Aug 2017 00:00:00 -0400 <p> It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.</p> <p> <a href="http://www.environmentalsafetyupdate.com/catastrophe-response/after-the-rain-disaster-recovery-and-employee-safety-following-hurricane-harvey/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=55ea9179c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-55ea9179c2-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL083117 Fair Game? Predictable Scheduling Laws — The Sensation Sweeping The Nation http://www.seyfarth.com:80/publications/EL083117 Thu, 31 Aug 2017 00:00:00 -0400 <p> Fair scheduling laws &ndash; sometimes referred to as &ldquo;predictive&rdquo; or &ldquo;predictable&rdquo; scheduling &ndash; are popping up in city councils and state legislatures across the nation. Typically affecting larger retail employers or fast-food establishments, the laws often require employers to post work schedules with advance notice and mandate a specified amount of &ldquo;predictability pay&rdquo; &ndash; such as one hour of pay for every four hours of scheduled work &ndash; if changes are made to an employee&rsquo;s schedule on short notice.&nbsp;</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/fair-game-predictable-scheduling-laws-the-sensation-sweeping-the-nation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1f3737b2a6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1f3737b2a6-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT083117 The Week in Weed: September 1, 2017 http://www.seyfarth.com:80/publications/TBT083117 Thu, 31 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> FDA Is Asking for Public Comments about CBD</p> <p> (High TImes: News, 30 August 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-september-1-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=db8b1d6e29-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-db8b1d6e29-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lionlat083117 Ofer Lion quoted in Los Angeles Times http://www.seyfarth.com:80/news/lionlat083117 Thu, 31 Aug 2017 00:00:00 -0400 <p> Ofer Lion was quoted in an August 31 story from the Los Angeles Times, &quot;Investigators seek photos and videos of former USC medical school dean with drugs.&quot; Lion said that the university needs to understand the full scope of the former dean&#39;s activities to assess its potential legal exposure and may be required to share those findings with insurers. You can read the <a href="http://www.latimes.com/local/lanow/la-me-usc-dean-photos-drugs-20170831-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/jansonhre083117 Eric Janson quoted in Human Resource Executive http://www.seyfarth.com:80/news/jansonhre083117 Thu, 31 Aug 2017 00:00:00 -0400 <p> Eric Janson was quoted in an August 31 story from Human Resource Executive, &quot;Zeroing In on Zero Tolerance,&quot; on a recent court ruling on Connecticut&#39;s medical marijuana law that may affect employers around the country, including those operating in the growing number of states that also provide affirmative employment protections for users. Janson said that Until this decision is overturned, employers in Connecticut should consider taking a case-by-case approach for individuals who self-identify or test positive for lawfully prescribed medical marijuana. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362954&amp;ss=Seyfarth">full article here</a>.</p> http://www.seyfarth.com:80/news/childersbna083017 Michael Childers quoted in Bloomberg BNA http://www.seyfarth.com:80/news/childersbna083017 Wed, 30 Aug 2017 00:00:00 -0400 <p> Michael Childers was quoted in an August 30 story from Bloomberg BNA, &quot;EEO-1 REPORTS WITHOUT PAY DATA SHOULDN&rsquo;T QUASH CONTRACTORS&rsquo; FOIA CONCERNS.&quot; Childers said that, subject to certain exceptions, the EEO-1 reports are protected from disclosure by EEOC employees under Title VII of the Civil Rights Act of 1964.</p> http://www.seyfarth.com:80/news/buch083017 Robert Buch quoted in Business Insurance http://www.seyfarth.com:80/news/buch083017 Wed, 30 Aug 2017 00:00:00 -0400 <p> Robert Buch was quoted in an August 30 story from Business Insurance, &quot;Limited comp coverage available for suicide risks.&quot; Buch said that whether an employer is liable for suicide or attempted suicide depends upon a causal connection between the emotional state that resulted in those activities and the employer. You can read the <a href="http://www.businessinsurance.com/article/20170830/NEWS08/912315494/Limited-comp-coverage-available-for-suicide-risks">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP083017 Put It In Writing: Policy Controls When Vacation Accrual Begins http://www.seyfarth.com:80/publications/CP083017 Wed, 30 Aug 2017 00:00:00 -0400 <p> As we anticipate Labor Day weekend, note this mid-summer treat from the California Court of Appeal: its decision in Minnick v. Automotive Creations that when an employer&rsquo;s vacation policy explicitly provides that employees don&rsquo;t earn vacation until after their first year of employment, the policy is interpreted just like it was written, so that an employee who separated during his first year is not owed any vacation pay upon termination.</p> <p> <a href="http://www.calpeculiarities.com/2017/08/30/put-it-in-writing-policy-controls-when-vacation-accrual-begins/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a331e2c435-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a331e2c435-73179533">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM083017-LE2 Breaking News: Update to Seyfarth Alert Regarding the Stay of “Component 2” of the Revised EEO-1 Report http://www.seyfarth.com:80/publications/OMM083017-LE2 Wed, 30 Aug 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: In update to our alert yesterday, Acting Chair Victoria&nbsp;Lipnic&nbsp;released a statement&nbsp;regarding the Office of Information and Regulatory Affairs&rsquo;&nbsp;(&ldquo;OIRA&rdquo;), &nbsp;decision to&nbsp;stay the&nbsp;implementation&nbsp;of the pay data collection portions of the&nbsp;Revised EEO-1 Report. &nbsp;The statement&nbsp;advised&nbsp;that employers should plan to complete and file the&nbsp;EEO-1 Report&nbsp;used in previous years&nbsp;(also known as Component 1) by March 31, 2018.</em></p> <p> <u>What Is the Status of the Revised EEO-1 Report?</u></p> <p> As reported&nbsp;<a href="http://www.seyfarth.com/publications/OMM082917-LE2">yesterday</a>,&nbsp;the&nbsp;pay collection components of the Revised EEO-1 Report have been stayed effective immediately.&nbsp;Since our alert,&nbsp;Acting Chair of the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;), Victoria&nbsp;Lipnic, issued a&nbsp;<a href="https://www.eeoc.gov/eeoc/newsroom/wysk/eeo1-pay-data.cfm">statement</a>&nbsp;advising&nbsp;employers&nbsp;that the&nbsp;EEO-1 Report&nbsp;used in&nbsp;<a href="https://www.eeoc.gov/employers/eeo1survey/upload/eeo1-2-2.pdf">previous years</a>&nbsp;(also known as Component 1&nbsp;of the Revised EEO-1 Report)&nbsp;should be submitted&nbsp;by the March 31, 2018 deadline. We are seeking clarification regarding the snapshot dates that may be used for purposes of the March 31, 2018 filing.</p> <p> In her statement, Acting Chair&nbsp;Lipnic&nbsp;advised&nbsp;that the EEOC will review&nbsp;the&nbsp;order from OIRA (<a href="http://www.seyfarth.com/dir_docs/publications/Lipnic_Memo_08302017.pdf">available here</a>) and&nbsp;consider options for moving forward. She encouraged&nbsp;a&nbsp;prompt&nbsp;discussion of more effective solutions&nbsp;to ensure equal pay.</p> <p> We will continue to monitor this situation and provide additional information as it becomes available.&nbsp;&nbsp;Despite the stay on gathering and reporting wage information on the EEO-1 Report,&nbsp;equal pay&nbsp;continues to be of significant interest to the EEOC and OFCCP. Accordingly, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender and race/ethnicity.</p> http://www.seyfarth.com:80/publications/OMM083017-LE USCIS Will Deny Pending Advance Parole Applications When Green Card Applicants Travel Internationally http://www.seyfarth.com:80/publications/OMM083017-LE Wed, 30 Aug 2017 00:00:00 -0400 <p class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong> The United States Citizenship &amp; Immigration Services (USCIS) has reversed its longstanding practice and will begin to deny Advance Parole (AP) applications if a green card applicant travels internationally while their AP application is pending with USCIS. &nbsp;</em><o:p></o:p></p> <p class="BodySingle"> U.S. permanent resident (green card) applicants often rely on a grant of Advance Parole (AP) to travel internationally while their green card applications are pending with United States Citizenship &amp; Immigration Services (USCIS).&nbsp; Without Advance Parole, green card applicants are not permitted to travel internationally unless the applicant holds a valid H, K, L, or V visa.&nbsp; For years, USCIS has permitted green card applicants holding these visas to travel internationally without consequence while their AP applications are pending.&nbsp; USCIS has also permitted green card applicants holding a valid AP document to travel internationally while their AP renewal application is pending.<o:p></o:p></p> <p class="BodySingle"> Regrettably, USCIS recently decided to reverse their longstanding practice and deny AP applications if the applicant departs the U.S. while the application is pending.&nbsp; USCIS&rsquo; recent practice shift will now consider the pending AP application as abandoned if the applicant travels abroad prior to AP issuance. The new practice was confirmed by USCIS Service Center Operations Directorate (SCOPS) and affects applicants filing initial AP applications as well as renewal applications.&nbsp; Importantly, in the case of a renewal applicant, an AP renewal application will now be denied even if the applicant is traveling internationally using a previously approved AP Document.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Applicants should be cautioned to avoid international travel during the pendency of the AP application with USCIS. Applicants should also assess any impact to their ability to travel internationally if an AP denial is issued or if a denial is expected.&nbsp; In this regard, if the AP application is denied, applicants may consider filing a new AP application once the applicant returns to the U.S. <o:p></o:p></p> <p class="BodySingle"> We will continue to monitor any developments as they occur and provide any necessary updates.<o:p></o:p></p> http://www.seyfarth.com:80/publications/OMM082917-LE2 Breaking News: Revised EEO-1 “Component 2” Stayed Effective Immediately; Component 1 Still in Effect http://www.seyfarth.com:80/publications/OMM082917-LE2 Tue, 29 Aug 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Today, the Office of Information and Regulatory Affairs (&ldquo;OIRA&rdquo;), a division of the Office of Management and Budget (&ldquo;OMB&rdquo;), announced that it has suspended &ldquo;Component 2&rdquo; of the revised EEO-1 Report.&nbsp; &ldquo;Component 2&rdquo; was the portion of the revised EEO-1 Report which would have required employers with over 100 employees to submit W-2 pay and FLSA hours worked information. </em></p> <p> <u>What Does OIRA&rsquo;s Announcement Mean for the Revised EEO-1 Report?</u></p> <p> Early last year, the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) began advancing a <a href="http://www.seyfarth.com/publications/MA012916-LE">proposal</a> to require employers to submit pay data in connection with their annual EEO-1 filings.&nbsp; Since that announcement, Seyfarth Shaw has offered <a href="http://www.seyfarth.com/publications/MA031616-LE">testimony</a> and submitted <a href="http://www.seyfarth.com/publications/MA040516-LE">comments</a> on the revised EEO-1 Report outlining the employer community&rsquo;s significant concerns, with the burden, benefit, and confidentiality of the proposed changes.&nbsp; Last Fall, OMB <a href="http://www.seyfarth.com/publications/MA092916-LE">approved</a> the EEOC&rsquo;s proposal to revise the EEO-1 Report.&nbsp;</p> <p> In early 2017, the U.S. Chamber of Commerce submitted a request for a review of the initial burden estimate and today&rsquo;s announcement from OIRA suspending the implementation of &ldquo;Component 2&rdquo; suggests that the call for further review did not fall upon deaf ears.</p> <p> OIRA&rsquo;s action does not completely rescind the revised EEO-1 Report, but it does relieve employers of their obligation to file &ldquo;Component 2&rdquo; by the March 31, 2018 deadline.&nbsp; At this time, much remains unknown about how this action affects the filing deadlines and obligations of employers.&nbsp; We will provide more information as soon as it becomes available.&nbsp;</p> <p> Until further information is known regarding the ultimate fate of &ldquo;Component 2&rdquo;, we recommend that employers stop costly efforts to comply with the new pay and hours worked requirements.&nbsp; However, because pay information continues to be of significant interest to the EEOC and OFCCP, employers should continue to take proactive measures to ensure that their pay practices are applied without regard to gender or any protected status.</p> http://www.seyfarth.com:80/publications/OMM082917-LE New York State Paid Family Leave - Tax Guidance Issued http://www.seyfarth.com:80/publications/OMM082917-LE Tue, 29 Aug 2017 00:00:00 -0400 <div> <strong>Seyfarth Synopsis:</strong> <em>The New York State Department of Taxation and Finance recently issued guidance on the tax treatment of New York State Paid Family Leave employee contributions and the PFL benefit. &nbsp;The guidance directs that payroll deductions should be taken on a post-tax basis and the benefits are non-wage income reportable on an IRS Form 1099.&nbsp;</em></div> <div> &nbsp;</div> <div> New York State&rsquo;s Paid Family Leave (&ldquo;PFL&rdquo;) law is effective January 1, 2018. &nbsp;For more specifics as to the law and its requirements see our prior alerts <a href="http://www.seyfarth.com/publications/MA041916-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA031017-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA060117-LE">here</a>, <a href="http://www.seyfarth.com/publications/OMM060217-LE2">here</a>, and <a href="http://www.seyfarth.com/publications/MA072117-LE">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> Recently, the New York State Department of Taxation and Finance&nbsp;<a href="http://www.tax.ny.gov/pdf/notices/n17_12.pdf">issued guidance</a> on the tax treatment of employee contributions towards the cost of PFL premiums as funded through payroll deductions, as well as on the tax treatment of the PFL benefit itself. &nbsp;The following is a summary of the State&rsquo;s guidance.</div> <div> &nbsp;</div> <div> <div> <strong>Tax Treatment Of Employee Contributions&nbsp;</strong></div> <div> &nbsp;</div> <div> Employee contributions are appropriately deducted from employees&rsquo; after-tax wages. &nbsp;</div> <div> &nbsp;</div> <div> Employers should report employee contributions on an IRS Form W-2 using Box 14, which may be used to report information such as state disability insurance taxes withheld. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Tax Treatment of PFL Benefit</strong></div> <div> &nbsp;</div> <div> Benefits paid to employees (either by the third-party insurance carrier or by the self-insured employer) will be taxable non-wage income that must be included in federal gross income. &nbsp;The guidance advises that while taxes will not automatically be withheld from benefits, employees can request voluntary tax withholding.&nbsp;</div> <div> &nbsp;</div> <div> Further, benefits should be reported by the State Insurance Fund on Form 1099-G and by all other payers (such as third party insurance companies or the self-insured employer) on Form 1099-MISC.</div> </div> <p> In light of the upcoming January 1 effective date, employers should be taking steps to comply with the law&rsquo;s various requirements, as discussed in our prior alerts and recent webinar. &nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/wc082817 Summary Judgment Denied For Employer Who Circulated Letter About Employee’s Disability Discrimination Charge http://www.seyfarth.com:80/publications/wc082817 Tue, 29 Aug 2017 00:00:00 -0400 <p> After an employer circulated a letter to 146 employees discussing an employee&rsquo;s EEOC Charge that alleged discrimination on the basis of his disability in violation of the ADA, a federal district court in Connecticut denied both parties&rsquo; motions for summary judgment.</p> <p> This ruling provides valuable lessons for employers on the risks of widespread internal communication regarding pending EEOC charges.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/summary-judgment-denied-for-employer-who-circulated-letter-about-employees-disability-discrimination-charge/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=303074312e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-303074312e-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wong082917 Seyfarth Continues Growth in Hong Kong, Adds Partner Raymond Wong http://www.seyfarth.com:80/news/wong082917 Tue, 29 Aug 2017 00:00:00 -0400 <p> <strong>Hong Kong</strong> -- <strong>August 29, 2017</strong> -- Seyfarth Shaw LLP today announced the addition of corporate partner Raymond Wong in Hong Kong as the firm continues to scale its International Corporate and Commercial practice in the Asia-Pacific region.</p> <p> Seyfarth announced its launch in Hong Kong on February 27 through partner Julia Gorham, former head of DLA Piper&rsquo;s Asia Employment Law practice and now part of Seyfarth&rsquo;s market-leading International Employment practice.</p> <p> &ldquo;Working with many of the world&rsquo;s leading companies, we are committed to addressing their growing cross-border transactional needs in the Asia-Pacific region,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> A highly respected corporate and commercial lawyer in the Asia Pacific, Wong joins Seyfarth from King &amp; Wood Mallesons. His practice focuses on mergers &amp; acquisitions, general corporate &amp; commercial, corporate strategies, IPOs, regulatory compliance, and public takeovers in Hong Kong, China and the UK.</p> <p> Wong has advised many Chinese and international clients on a variety of landmark global offerings and listings on the London, New York, Luxembourg, Hong Kong, Shanghai, and Tokyo Stock Exchanges, as well as cross-border transactions in the real estate and energy / natural resources sectors. Wong will be Seyfarth&rsquo;s Hong Kong office managing partner.</p> <p> &ldquo;Raymond brings very strong transactional experience in several key financial centers around the world that are central to our International Corporate and Commercial practice,&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International practice. &quot;We are very excited to have him join Julia and the rest of our team in Hong Kong.&rdquo;</p> <p> Seyfarth Shaw was recently approved by The Law Society of Hong Kong as a registered foreign law firm in Hong Kong. In addition, The Law Society has approved Seyfarth Shaw&rsquo;s association with Wong, Wan &amp; Partners, the Hong Kong solicitors&rsquo; firm formed by Seyfarth Shaw LLP partners Raymond Wong and Wan Li.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com ">mgrego@seyfarth.com&nbsp;</a></div> http://www.seyfarth.com:80/news/houston082917 Houston Office Update: Hurricane Harvey http://www.seyfarth.com:80/news/houston082917 Tue, 29 Aug 2017 00:00:00 -0400 <p> All Seyfarth Shaw personnel in Houston are safe and all of our systems are fully operational. The firm&rsquo;s office in the north tower of Pennzoil Place will reopen on Wednesday, August 30.</p> <p> We have been working closely with all of our local team members to monitor and address client needs, while also supporting relief efforts for the community at large.</p> <p> We appreciate all who have reached out to offer support and assistance during these unprecedented events.</p> http://www.seyfarth.com:80/news/maechtlen082917 Laura Maechtlen quoted in Law360 http://www.seyfarth.com:80/news/maechtlen082917 Tue, 29 Aug 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in an August 29 story from Law360, &quot;3 Law Firms With Their Own Riff On The Mansfield Rule,&quot; on the firm&#39;s Rooney Presumption which first piloted in 2015 in its labor and employment practice group. Maechtlen said that one of the biggest ways implementing the rule allowed the firm to increase the number of diverse associates hired is that it pushed the firm to look harder and be more creative about finding diverse candidates, rather than using the same recruiting avenues BigLaw firms traditionally use.</p> http://www.seyfarth.com:80/news/hilbernlaw360082917 Dyann DelVecchio Hilbern quoted in Law360 http://www.seyfarth.com:80/news/hilbernlaw360082917 Tue, 29 Aug 2017 00:00:00 -0400 <p> Dyann Delvecchio Hilbern was quoted in an August 29 story from Law360, &quot;H-1B Petitioners Hit With Surprise Scrutiny Increase,&quot; on how the Trump administration&#39;s scrutiny of the H-1B visa program for skilled foreign workers is causing an increase in government requests for evidence on H-1B petitions, with extra attention paid to those that offer entry-level wages. Hilbern said that she&rsquo;s seeing an epidemic of RFEs on H-1B visa petitions that have a Level 1 wage.</p> http://www.seyfarth.com:80/publications/MA082917-EB-LE Court Directs EEOC to Reconsider Wellness Rules, Leaves Current Rules in Effect http://www.seyfarth.com:80/publications/MA082917-EB-LE Tue, 29 Aug 2017 00:00:00 -0400 <div> On Tuesday, August 22, the US District Court for the District of Columbia ordered the EEOC to revisit its controversial rules placing certain limits on employer-sponsored wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). &nbsp;This seemingly consequential ruling could prove to be less significant than it sounds. &nbsp;As described in greater detail below, the Court&rsquo;s ruling permits the existing EEOC rules to stay in effect pending the review. &nbsp;The Court ordered the EEOC to file its timeline for the review and possible additional administrative action by September 21. &nbsp;We expect the redrafted rules will remain substantially the same, but we would note that there will most likely be two new Republican Commissioners to handle the review process, ensuring a different profile than the Commission that approved the original EEOC regulations. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> The ADA generally prohibits employers from making disability-related inquiries or requiring medical exams as part of a wellness program, unless the inquiry is &ldquo;voluntary.&rdquo; &nbsp;As we <a href="http://www.seyfarth.com/publications/MA051816-EB">previously reported</a>, the EEOC issued final rules in 2016 that broadly interpreted the term &ldquo;voluntary,&rdquo; imposing a number of standards on employer wellness programs. &nbsp;One notable standard was that wellness programs cannot provide incentives in excess of 30% of the cost of self-only coverage for an employee who participates in the program. &nbsp;</div> <div> &nbsp;</div> <div> GINA generally limits employers from requesting or incentivizing employees to provide genetic information, for instance, in connection with a health risk assessment. &nbsp;Even so, the final rules under GINA permit limited incentives in connection with provision of genetic information, as long as they do not exceed 30% of the cost of self-only coverage. &nbsp;</div> <div> &nbsp;</div> <div> The Court accepted the EEOC&rsquo;s determination that incentives to participate in employer-sponsored wellness programs do not violate the voluntariness standard, but the Court questioned the EEOC&rsquo;s selection of a 30% limitation on incentives.</div> <div> &nbsp;</div> <div> It appeared the EEOC intended to mirror the existing wellness regulations under the Health Insurance Portability and Accountability Act (HIPAA), as codified by the Affordable Care Act and as promulgated in rules issued by the IRS, DOL and HHS. &nbsp;Even so, the EEOC guidelines were, in many respects, more restrictive than the HIPAA regulations. &nbsp;For instance, the HIPAA regulations generally permitted incentives for wellness programs that did not exceed 30% of the cost of coverage elected by the employee (including family coverage), while the EEOC rules only permit a 30% differential from the cost of self-only coverage, regardless of tier elected. &nbsp;Further, the HIPAA regulations imposed maximum incentives for health-contingent wellness programs (e.g., one where a specific outcome must be achieved), but not for participation-only programs. &nbsp;</div> <div> &nbsp;</div> <div> <strong>AARP v. EEOC</strong></div> <div> &nbsp;</div> <div> Last year, the AARP filed suit seeking to enjoin the EEOC rules, which the AARP viewed as permitting employers to impose too harsh of sanctions or penalties against employees who decline to participate in a wellness program. &nbsp;The court denied the preliminary injunction request. &nbsp;</div> <div> &nbsp;</div> <div> Last week, however, the court granted the AARP&rsquo;s motion for summary judgment and remanded the rule to the EEOC to provide a more reasoned explanation for its definition of a voluntary wellness program.</div> <div> &nbsp;</div> <div> The court primarily took issue with the EEOC&rsquo;s 30% threshold. &nbsp;Notably, the court found that while the EEOC argued it was simply attempting to mirror the HIPAA regulations, it failed to adequately do so because (a) the HIPAA limits only apply to health-contingent wellness programs rather than participatory wellness programs, and (b) the HIPAA limits are measured against the overall cost of coverage elected, not just the cost of self-only coverage (regardless of the level elected by the employee). &nbsp;The court also found that the EEOC was unable to demonstrate that it had done a sufficient review to determine whether incentives at or above the 30% level would be coercive or voluntary.</div> <div> &nbsp;</div> <div> As such, the court remanded the rules to the EEOC for review, with a directive that the next iteration should contain a more reasoned explanation for its definition of &ldquo;voluntary.&rdquo; &nbsp;The court declined to vacate the existing rules pending the EEOC review, noting that it would cause too much confusion to do so and could actually harm employees who have already received wellness incentives. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Next Steps for Employers</strong></div> <div> &nbsp;</div> <div> Given the current uncertainty, there are a few key items to keep in mind:</div> <div> &nbsp;</div> <ul> <li> The Court did not vacate the EEOC&rsquo;s existing wellness rules, meaning employers are still subject to those rules, their limitations on incentives, and their notice and authorization requirements. &nbsp;<br /> &nbsp;</li> <li> Moreover, HIPAA regulations remain in effect (although those rules primarily impact health-contingent wellness programs). &nbsp;<br /> &nbsp;</li> <li> While the court granted the AARP&rsquo;s motion for summary judgment, this decision may lay the groundwork for new regulations that are less favorable to participants in wellness programs. &nbsp;The Court specifically held that incentives as such did not violate the ADA and GINA voluntariness requirements. &nbsp;And the court cited the rationale of many employers and employer groups in finding the 30% threshold to be arbitrary and capricious. &nbsp;Upon review, the newly composed EEOC could potentially adopt the employer comments and, for example, determine that participatory wellness programs are always voluntary, regardless of the level of incentive. &nbsp;<br /> &nbsp;</li> <li> As noted, the Court ordered the EEOC to submit its plan for reviewing the regulations and undertaking any additional administrative proceedings by September 21. &nbsp;We will monitor these developments and keep you apprised of future EEOC rulemaking.</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/news/weisswgn082817 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgn082817 Mon, 28 Aug 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed August 28 on WGN Radio, &quot;Wintrust Business Lunch 8/28/17: Workplace Free Speech.&quot; Weiss posed an important question in the wake of the freedom of speech/self-expression protests. You can listen to the full interview at minute 12:38 <a href="http://wgnradio.com/2017/08/28/wintrust-business-lunch-82817-chicago-health-tech-workplace-free-speech-facebook-algorithms/">here</a>.</p> http://www.seyfarth.com:80/news/kaufman082817 Seyfarth Represents Kaufman Jacobs in Financing of New Senior Housing Facility http://www.seyfarth.com:80/news/kaufman082817 Mon, 28 Aug 2017 00:00:00 -0400 <p> CHICAGO - (August 28, 2017) - Seyfarth Shaw LLP represented Kaufman Jacobs LLC, a Chicago-based real estate investment company, in financing the development and construction of a new 110-bed senior housing facility in Park Ridge, IL.</p> <p> The Seyfarth team handled all aspects of the capital stack. As part of the transaction, the team negotiated and closed a construction loan with Wintrust Bank as administrative agent and lender. In addition, Seyfarth spearheaded the operating agreements for the numerous entities involved in the structure, including for the feeder entity and also the joint venture agreement with Senior Lifestyle Communities (SLC), who will assist in the development and management of the facility.</p> <p> Kaufman Jacobs owns and manages millions of square feet of commercial real estate, with a specialty in the ownership and management of Federally tenanted real estate and transactions of a complex nature.</p> <p> The Seyfarth Real Estate team was led by partner Jay Gitles and included Melissa Vandewater, Kelly Bufton, Cynthia Mitchell, Paul Drizner and Tori Campbell.</p> http://www.seyfarth.com:80/news/rodriguez082817 Leon Rodriguez quoted in CNN.com http://www.seyfarth.com:80/news/rodriguez082817 Mon, 28 Aug 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in an August 28 story from CNN.com, &quot;Trump administration adding extra hurdle for green cards,&quot; on the decision to institute interviews for all employment-based applicants. Rodriguez said that it&#39;s hard to know yet how much the new policies could slow down the green card process, but said it will absolutely have an impact. You can read the <a href="http://www.cnn.com/2017/08/28/politics/trump-administration-green-cards-interviews/index.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/swe082817 EPA and the Corps Schedule Ten “Public Meetings” to Solicit Comments on WOTUS Rule http://www.seyfarth.com:80/publications/swe082817 Mon, 28 Aug 2017 00:00:00 -0400 <p> Pursuant to President Trump&rsquo;s Executive Order (EO) on &ldquo;<a href="https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic">Restoring the Rule of Law&hellip; by Reviewing the &ldquo;Waters of the United States&rdquo; Rule</a>, the Agencies have scheduled ten teleconferences to collect stakeholder recommendations on the revision of the Waters of the United States (WOTUS) rule.</p> <p> <a href="http://www.environmentalsafetyupdate.com/cwa/epa-and-the-corps-schedule-ten-public-meetings-to-solicit-comments-on-wotus-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=93b17cca8e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-93b17cca8e-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM082817-HL CMS Proposes to Cancel Medicare Episode Payment and Cardiac Rehab Incentive Payment Models, and to Cut Back Joint Replacement Model http://www.seyfarth.com:80/publications/OMM082817-HL Mon, 28 Aug 2017 00:00:00 -0400 <div> On August 17, 2017, the Centers for Medicare and Medicaid Services (CMS) under the Trump administration published a proposed rule to cancel Medicare&rsquo;s hospital Episode Payment Models (EPMs) and Cardiac Rehabilitation (CR) incentive payment models, and to rescind the related Obama-era regulations. &nbsp;In addition, CMS proposed to revise certain aspects of the Comprehensive Care for Joint Replacement (CJR) model. &nbsp;The CJR changes would reduce the number of mandatory hospital participants in CJR by approximately 1/2, and create a one-time voluntary option to participate in CJR for hospitals whose participation was mandatory but will become voluntary under the proposed rule. &nbsp;The opt in will also apply to rural hospitals and low volume hospitals in the MSAs to which CJR applies.</div> <div> &nbsp;</div> <div> <strong>EMPs and CR</strong></div> <div> &nbsp;</div> <div> CMS had previously established 3 bundled payment models for acute myocardial infarction, coronary artery bypass graft, and surgical hip/femur fracture treatment. &nbsp;As noted, CMS proposes to cancel these models. &nbsp;CMS concluded, based on stakeholder feedback, that certain aspects of the design of the EPMs and CR incentive payment model should be improved and more fully developed prior to the start of the model, and to start the model as previously scheduled would not be in the interest of providers or beneficiaries.</div> <div> &nbsp;</div> <div> In 2018, CMS expects to develop new, voluntary bundled payment models in which providers may elect to participate. &nbsp;Those models would be designed to meet the criteria to be Advanced Alternative Payment Models. &nbsp;Hospitals should monitor the CMS Center for Innovation regarding the proposal of these new models.</div> <div> &nbsp;</div> <div> <strong>CJR</strong></div> <div> &nbsp;</div> <div> CMS is proposing that the CJR model would continue on a mandatory basis in approximately 1/2 of the originally selected MSAs (that is, 34 of the 67 selected areas) with an exception for low volume and rural hospitals, and continue on a voluntary basis in the other areas (that is, 33 of the 67 areas). &nbsp;The mandatory and voluntary MSAs are listed in the August 17, 2017 Federal Register at pages 39315-39316. &nbsp;Low volume and rural hospitals, and hospitals located in a voluntary MSA, may opt in to CJR on a one-time bases from January 1, 2018 through January 31, 2018. &nbsp;Hospitals for which CJR participation is no longer mandatory (as well as rural and low volume hospital) should assess, between now and January, 2018, whether it is advantageous to opt in to CJR.</div> <div> &nbsp;</div> <div> Comments to the proposed rule are due by October 16, 2017.</div> http://www.seyfarth.com:80/publications/EL082517 Not Just Sticks and Stones: When Should Employers Step In? http://www.seyfarth.com:80/publications/EL082517 Fri, 25 Aug 2017 00:00:00 -0400 <p> &ldquo;How&rsquo;s work?&rdquo; A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker&rsquo;s cherished political hero or ideals.</p> <p> <a href="http://www.laborandemploymentlawcounsel.com/2017/08/not-just-sticks-and-stones-when-should-employers-step-in/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8ac9891496-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8ac9891496-73179553">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW082517 Is your organization ready for the new EU General Data Protection Regulation? http://www.seyfarth.com:80/publications/GPW082517 Fri, 25 Aug 2017 00:00:00 -0400 <p> On May 25, 2018, the EU General Data Protection Regulation (&ldquo;GDPR&rdquo;) will impose significant new obligations on all U.S. companies that handle personal data of any EU individual. U.S. companies can be fined up to &euro;20 million or 4% of their global annual revenue for the most egregious violations. What does the future passage of GDPR mean for your business?</p> <p> <a href="http://www.globalprivacywatch.com/2017/08/is-your-organization-ready-for-the-new-eu-general-data-protection-regulation/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=72d3d8a4c1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-72d3d8a4c1-73179561">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/RD082517-LE Website Accessibility Lawsuit Filings Still Going Strong http://www.seyfarth.com:80/publications/RD082517-LE Fri, 25 Aug 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em><em>&nbsp; The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them.&nbsp; Businesses remain well-advised to seek&nbsp;advice from counsel experienced in website accessibility to manage risk.</em></p> <p> Different <a href="http://www.adatitleiii.com/2016/10/federal-website-lawsuits-spike-community-banks-get-demand-letters/" rel="noopener noreferrer" target="_blank">year</a>, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the <a href="http://www.adatitleiii.com/2017/07/doj-places-website-rulemaking-on-the-inactive-list/" rel="noopener noreferrer" target="_blank">DOJ&rsquo;s recent placement</a> of website regulations on the &ldquo;inactive list&rdquo;, litigation will likely only continue. As we have written about extensively, most recently <a href="http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/" rel="noopener noreferrer" target="_blank">here</a>, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.</p> <p> The number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017&mdash;well over the 262 lawsuits that were filed in all of 2015 and 2016.&nbsp;We say &ldquo;at least&rdquo; because there is no easy way to capture every website accessibility lawsuit filed in federal court. Thus, the actual numbers are likely higher than we can report with certainty. Our numbers also do not include the many cases filed in state courts nor demand letters that resolve without ever turning into lawsuits.</p> <figure class="wp-caption aligncenter" id="attachment_2886" style="width: 757px;"> <p> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png"><img alt="" class="wp-image-2886 size-full" sizes="(max-width: 757px) 100vw, 757px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1.png 757w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-120x84.png 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-320x223.png 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-593x414.png 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-40x28.png 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-80x56.png 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-160x112.png 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-550x384.png 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-367x256.png 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-734x512.png 734w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-275x192.png 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-220x153.png 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-440x307.png 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-660x460.png 660w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-184x128.png 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-138x96.png 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-413x288.png 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-688x480.png 688w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-123x86.png 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-110x77.png 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-330x230.png 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-300x209.png 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-600x418.png 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-344x240.png 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Years-1-55x38.png 55w" style="width: 550px; height: 474px;" /></a></p> <figcaption class="wp-caption-text">Number of federal website accessibility lawsuits by year from January 2015 to August 15, 2017: 2015 (57), 2016 (262), 2017 (432). There are at least this many lawsuits.</figcaption></figure> <p> Retailers remain the most popular targets, followed by restaurant and hospitality companies.</p> <figure class="wp-caption aligncenter" id="attachment_2887" style="width: 621px;"> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg"><img alt="" class="wp-image-2887 size-full" sizes="(max-width: 621px) 100vw, 621px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1.jpg 621w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-120x89.jpg 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-320x237.jpg 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-593x438.jpg 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-40x30.jpg 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-80x59.jpg 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-160x118.jpg 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-550x407.jpg 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-367x271.jpg 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-275x203.jpg 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-220x163.jpg 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-440x325.jpg 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-184x136.jpg 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-138x102.jpg 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-413x305.jpg 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-123x91.jpg 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-110x81.jpg 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-330x244.jpg 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-300x222.jpg 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-600x443.jpg 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-344x254.jpg 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-Industry-1-55x41.jpg 55w" style="width: 550px; height: 407px;" /></a><figcaption class="wp-caption-text">Number of federal website lawsuits by industry from January 2015 to August 15, 2017: Academic (7), Entertainment (27), Financial (17), Hospitality (57), Medical (42), Personal Services (18), Restaurant (186), Retail (353), Vehicle Manufacturer (13), Other (22). There are at least this many lawsuits.</figcaption></figure> <p> Although California continues to have the highest number of federal ADA title III lawsuits generally, Florida (385), New York (170) and Pennsylvania (85) have overtaken California with respect to the number of federal website accessibility lawsuits.</p> <figure class="wp-caption aligncenter" id="attachment_2884" style="width: 784px;"> <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png"><img alt="" class="size-full wp-image-2884" sizes="(max-width: 784px) 100vw, 784px" src="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png" srcset="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar.png 784w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-120x85.png 120w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-320x227.png 320w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-768x545.png 768w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-593x421.png 593w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-40x28.png 40w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-80x57.png 80w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-160x113.png 160w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-550x390.png 550w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-367x260.png 367w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-734x521.png 734w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-275x195.png 275w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-220x156.png 220w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-440x312.png 440w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-660x468.png 660w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-184x130.png 184w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-138x98.png 138w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-413x293.png 413w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-688x488.png 688w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-123x87.png 123w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-110x78.png 110w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-330x234.png 330w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-300x213.png 300w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-600x426.png 600w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-344x244.png 344w, http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/08/8.15.17-States-Bar-55x39.png 55w" style="width: 550px; height: 390px;" /></a><figcaption class="wp-caption-text">Number of states with the most website lawsuits in federal court as of August 15, 2017: Arizona (7), California (65), Florida (385), Illinois (5), Massachusetts (17), New York (170), Ohio (4), Pennsylvania (85), Texas (4), Washington (5). There are at least this many lawsuits.</figcaption></figure> <p> These lawsuits are a significant portion of the increase in total ADA Title III lawsuits filed in federal courts this year, which, <a href="http://www.adatitleiii.com/2017/05/2017-federal-ada-title-iii-lawsuit-numbers-18-higher-than-2016/" rel="noopener noreferrer" target="_blank">as of April 2017</a>, was already over 2600 filings in 2017&mdash;an 18% increase over the number of federal cases filed in the same time period in 2016.</p> http://www.seyfarth.com:80/publications/wg082417 It’s a Strange New World in California for the Administrative Exemption http://www.seyfarth.com:80/publications/wg082417 Thu, 24 Aug 2017 00:00:00 -0400 <p> Readers of the blog know that the Ninth Circuit recently exalted the status of the administrative/production dichotomy as an analytical tool for assessing whether employees satisfy the FLSA&rsquo;s administrative exemption test. In doing so, the Ninth Circuit has created a peculiar situation in which California employees may satisfy the state&rsquo;s administrative exemption&mdash;which the California Division of Labor Standards Enforcement says &ldquo;shall be construed in the same manner as &hellip; under the Fair Labor Standards Act&rdquo;&mdash;but be found nonexempt under the FLSA. Strange days indeed.</p> <p> <a href="http://www.wagehourlitigation.com/misclassification/strange-new-world-for-administrative-exemption/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=47019bea0f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-47019bea0f-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts082417 Key Employee Departures and Trade Secret Risk Assessment http://www.seyfarth.com:80/publications/ts082417 Thu, 24 Aug 2017 00:00:00 -0400 <p> It&rsquo;s Friday afternoon and the conversation goes a little like this, &ldquo;Wait, what? They&rsquo;re leaving? Where are they going? Is there any opportunity to help them reconsider?&rdquo;</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/data-theft-2/key-employee-departures-and-trade-secret-risk-assessment/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=64d4fd1360-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-64d4fd1360-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM082417-LE “Coercive” And “Disturbing” Arbitration Agreement Upheld Over Labor Commissioner’s Protest http://www.seyfarth.com:80/publications/OMM082417-LE Thu, 24 Aug 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> In </em>OTO, LLC v. Kho,<em> the California Labor Commissioner challenged a car dealership&rsquo;s mandatory arbitration agreement. The agreement required employment disputes to be arbitrated under normal civil litigation rules, before a retired superior court judge, and waived the right to submit wage claims to the Labor Commissioner. The Court of Appeal upheld the agreement even though the agreement bypassed the Labor Commissioner hearing process, and even though the Court was &ldquo;disturbed&rdquo; by the way that the employer had drafted and presented the agreement.</em></p> <p> <strong>The Facts</strong></p> <p> Ken Kho worked as an auto mechanic for a car dealership. Three years into his employment, he was handed a one and one-quarter page agreement entitled, &ldquo;Employment At-Will and Arbitration.&rdquo; The terms of the agreement, appearing in tiny seven-point font within a one-block paragraph, required Kho and the dealership to arbitrate their disputes before a retired superior court judge. The arbitration would run like an ordinary civil case, with the usual pleading, discovery, and evidence rules. The agreement was silent on who paid for arbitration costs, and it did not specify how to start the process. Kho received the agreement at his desk from an HR employee, who did not explain the agreement&rsquo;s meaning to him. Kho signed the agreement within four minutes.</p> <p> A year later, Kho filed a wage claim with the Division of Labor Standards Enforcement, which is headed by the Labor Commissioner. The dealership filed a petition in court to compel Kho to arbitrate his wage claim. The Labor Commissioner intervened to oppose the petition and to uphold Kho&rsquo;s right to pursue his wage claim before the DLSE.</p> <p> The trial court denied the dealership&rsquo;s petition because the arbitration agreement was &ldquo;highly&rdquo; unfair and deprived Kho of the special advantages an employee has in an informal hearing before the DLSE. That hearing, called a &ldquo;Berman Hearing&rdquo; (after the lawmaker who sponsored the law), allows employees to avoid court proceedings by trying to resolve wage claims in a quick, free process before a DLSE officer. The dealership appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> Written agreements to arbitrate employment disputes are generally valid unless there is something particularly unfair about the agreement&rsquo;s terms and the way they were presented. These two types of unfairness are called substantive unconscionability and procedural unconscionability. If both forms are present to some degree, then a court may call the arbitration agreement unenforceable.</p> <p> The Court of Appeal aggressively agreed with the trial court that the arbitration agreement was procedurally unconscionable. Kho got the agreement on a take-it-or-leave-it basis; he could not negotiate the terms; and he was presented with it years after he had started working for the dealership. He fairly assumed he had no choice but to sign it or resign. The agreement had legalist terms that appeared in tiny font within a block format. All this made the degree of procedural unconscionability &ldquo;extraordinarily high.&rdquo;</p> <p> But the agreement nonetheless passed muster, because it was not substantively unconscionable. In 2013, the California Supreme Court held that an arbitration agreement waiving a Berman hearing is enforceable so long as it provides an &ldquo;accessible and affordable arbitral forum.&rdquo; The terms of the dealership&rsquo;s agreement passed this test because they were not one-sided and did not overly favor the dealership. All claims between the parties were subject to arbitration, and the proceeding would resemble ordinary litigation. And although the agreement did not expressly say the dealership would have to pay for the arbitration, that is the result under the prevailing law.</p> <p> Kho likely would have to hire a lawyer to navigate the rules of procedure and evidence in arbitration before a retired judge. The Labor Commissioner argued that this reality made the process unaffordable for Kho. The Court of Appeal disagreed. If Kho prevailed in a Berman hearing, then the dealership could have the case heard over again in superior court. The same litigation rules would then apply as they would in the arbitration, and Kho would have to decide then whether to hire a lawyer. Consequently, the Court of Appeal found the arbitration would be no more complex than a retrial of Kho&rsquo;s wage claim in superior court, and thus the arbitration forum would be just as accessible and affordable as a Berman hearing followed by a court trial.</p> <p> Thus, although the Court of Appeal was &ldquo;disturbed&rdquo; by the way the dealership wrote the arbitration agreement and presented it to Kho for signing, the agreement did allow him to pursue his wage claim in an accessible and affordable forum that mirrored normal civil litigation. Those features made the agreement substantively conscionable, and therefore enforceable.</p> <p> <strong>What <em>Oto, LLC v. Kho </em>Means for Employers</strong></p> <p> We now have an example of an enforceable arbitration agreement that takes wage claims out of the Berman hearing process. And the Court of Appeal noted some areas in which an employer can plan to avoid contentions of procedural unfairness. Employers who desire to arbitrate wage claims should take the lessons of this case to heart.</p> http://www.seyfarth.com:80/news/briggsbna082417 Ben Briggs quoted in Bloomberg BNA http://www.seyfarth.com:80/news/briggsbna082417 Thu, 24 Aug 2017 00:00:00 -0400 <p> Ben Briggs was quoted in an August 24 story from Bloomberg BNA, &quot;Industries Don&#39;t Limit Lawyers&rsquo; Workplace Safety Practices.&quot; Briggs said that firms do look for lawyer specialization based upon industries and hazards.</p> http://www.seyfarth.com:80/publications/TBT082417 The Week in Weed: August 25, 2017 http://www.seyfarth.com:80/publications/TBT082417 Thu, 24 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Denver Soon to Open Legal Marijuana Clubs</p> <p> (Insurance Journal: News, 23 August 2017)</p> <p> <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-25-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7d05c00eea-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7d05c00eea-73179537">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM082317 U.S. Department of State Temporarily Suspends Nonimmigrant Visa Applications in Russia http://www.seyfarth.com:80/publications/IMM082317 Wed, 23 Aug 2017 00:00:00 -0400 <p> In response to the Russian government&rsquo;s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017. &nbsp;The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled. &nbsp;According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow. &nbsp;DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.</p> <p> <a href="http://www.bigimmigrationlawblog.com/2017/08/u-s-department-of-state-temporarily-suspends-nonimmigrant-visa-applications-in-russia/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=5b547f1c8c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-5b547f1c8c-73179525">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lorberbna082317 Larry Lorber quoted in Bloomberg BNA http://www.seyfarth.com:80/news/lorberbna082317 Wed, 23 Aug 2017 00:00:00 -0400 <p> Larry Lorber was quoted in an August 23 story from Bloomberg BNA, &quot;DOL&#39;s Contractor Auditor Offers Buyouts in Face of Budget Cut,&quot; on how a Labor Department subagency that audits government contractors for affirmative action and nondiscrimination compliance offered &ldquo;buyouts&rdquo; and &ldquo;early outs&rdquo; to eligible employees ahead of a likely budget cut. Lorber said that buyouts are the best way to right size staff depending upon budgets.</p> http://www.seyfarth.com:80/publications/wse082317 Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters http://www.seyfarth.com:80/publications/wse082317 Wed, 23 Aug 2017 00:00:00 -0400 <p> Entrepreneurial Plaintiff&rsquo;s attorneys have now set their sites on marijuana businesses.&nbsp; Since January 1, 2017, Plaintiff&rsquo;s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.</p> <p> <a href="http://www.environmentalsafetyupdate.com/states/california/beware-marijuana-businesses-targeted-with-product-labeling-violation-letters/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=595c176b06-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-595c176b06-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts082317 Robert Milligan to Present “Understanding and Exploring the DTSA” CLE Webinar http://www.seyfarth.com:80/publications/ts082317 Wed, 23 Aug 2017 00:00:00 -0400 <p> On September 7, at 3:00 p.m. &ndash; 4:00 p.m. Eastern, Robert Milligan will present &ldquo;Understanding and Exploring the DTSA&rdquo; CLE webinar.</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/dtsa/robert-milligan-to-present-understanding-and-exploring-the-dtsa-cle-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=def8568de2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-def8568de2-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP082317 Not Just Sticks and Stones: When Should Employers Step In? http://www.seyfarth.com:80/publications/CP082317 Wed, 23 Aug 2017 00:00:00 -0400 <p> &ldquo;How&rsquo;s work?&rdquo; A common question, whether at a party, catching up with an old friend, or just as small talk. It is also a common topic of online conversation. It would be nice if work-related remarks were always positive, agreeable and civil, but, of course, they are not. The reality is that employees sometimes say offensive things about work, their employer, their co-workers, or a co-worker&rsquo;s cherished political hero or ideals.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/23/not-just-sticks-and-stones-when-should-employers-step-in/">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM082317-LE U.S. Department of State Temporarily Suspends Nonimmigrant Visa Applications in Russia http://www.seyfarth.com:80/publications/OMM082317-LE Wed, 23 Aug 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; As of August 23, 2017, the U.S. Department of State (DOS) has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia.&nbsp; NIV interviews will resume only at the U.S. Embassy in Moscow beginning September 1, 2017.&nbsp; DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok. &nbsp;</em></p> <p> In response to the Russian government&rsquo;s decision to reduce the number of U.S. Department of State (DOS) staff working in Russia, DOS has temporarily suspended processing of Nonimmigrant Visa (NIV) applications filed in Russia as of August 23, 2017.&nbsp; The suspension will last for a period of eight (8) days and, during this time, previously-scheduled visa appointments for temporary work, business, and visitor visas will be canceled.&nbsp; According to DOS, NIV interviews will resume on September 1, 2017, but only at the U.S. Embassy in Moscow.&nbsp; DOS has suspended NIV processing indefinitely at the U.S. Consulates in St. Petersburg, Yekaterinburg and Vladivostok.</p> <p> DOS will contact any affected applicants by e-mail for rescheduling.&nbsp; Rescheduled applicants and new applications submitted at the U.S. Embassy in Moscow should expect considerable delays.&nbsp; Priority consideration will be given to officials of the United Nations, international organizations with offices in the United States, and those requiring travel for medical or family emergencies.<br /> <br /> In addition, the U.S. Embassy in Moscow and the U.S. Consulate in St. Petersburg will no longer accept new visa applications for residents of Belarus.&nbsp; DOS encourages Belarussian applicants to schedule NIV appointments at the U.S. Embassies in Warsaw, Kyiv, or Vilnius.&nbsp; The decision to temporarily suspend NIV operations in Russia does not affect NIV applications outside of Russia, but U.S. Embassies and Consulates close to Russia may experience additional NIV processing delays.</p> http://www.seyfarth.com:80/publications/TBT082217 Beware: Marijuana Businesses Targeted With Product Labeling Violation Letters http://www.seyfarth.com:80/publications/TBT082217 Tue, 22 Aug 2017 00:00:00 -0400 <p> Entrepreneurial Plaintiff&rsquo;s attorneys have now set their sites on marijuana businesses. &nbsp;Since January 1, 2017, Plaintiff&rsquo;s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/beware-marijuana-businesses-targeted-with-product-labeling-violation-letters-2/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=207781892e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-207781892e-73179537">click here</a>.</p> http://www.seyfarth.com:80/news/devatabi082217 Pamela Devata quoted in Business Insurance http://www.seyfarth.com:80/news/devatabi082217 Tue, 22 Aug 2017 00:00:00 -0400 <p> Pamela Devata was quoted in an August 22 story from Business Insurance, &quot;No clear resolution in Fair Credit Reporting Act case,&quot; on how the issue of when plaintiffs have the right to sue under the Fair Credit Reporting Act for injury may still not be settled despite a U.S. Supreme Court ruling and a subsequent rehearing by a federal appeals court on remand. Devata said that there&rsquo;s been a split in federal courts, especially in FCRA cases, as to what constitutes standing following the Supreme Court ruling and that the 9th Circuit ruling shows that oftentimes the rulings will be factually specific. You can read the <a href="http://www.businessinsurance.com/article/20170822/NEWS06/912315311/No-clear-resolution-in-Fair-Credit-Reporting-Act-case-US-Supreme-Court-Spokeo-Fa">full article here</a>.</p> http://www.seyfarth.com:80/news/Hixforbes082217 Timothy Hix quoted in Forbes http://www.seyfarth.com:80/news/Hixforbes082217 Tue, 22 Aug 2017 00:00:00 -0400 <p> Timothy Hiz was quoted in an August 22 story from Forbes, &quot;Opposition: California&#39;s &#39;Opportunity To Work Act&#39; Would Create Opportunities To Sue, Confusion.&quot; Hix said that should the bill pass this legislative session or in a future one, it will create more lawsuits that will focus on the ambiguity or lack of clarity on how to comply with it, as well as allegations of discrimination in the assignment of hours. He said that the bill in its current version will create far more problems than it hopes to solve and, right now, business owners will be left to guess as to how to comply with AB5 should it pass. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2017/08/22/opposition-californias-opportunity-to-work-act-would-create-opportunities-to-sue-confusion/#6d6fcaf69aa6">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL082217 Management Alert – The Current Federal Retrenchment on LGBT Rights http://www.seyfarth.com:80/publications/EL082217 Tue, 22 Aug 2017 00:00:00 -0400 <p> Recently, in a dramatic shift, the Department of Justice broke ranks with the Equal Employment Opportunity Commission, and filed an amicus brief in the Second Circuit in Zarda v. Altitude Express, Inc., No 15-3775, Dkt. #417 (S.D.N.Y. July 26, 2017). &nbsp;In that brief, the Department argued that, contrary to its prior position (and that of the E.E.O.C.), discrimination on the basis of sexual orientation was not prohibited under Title VII as harassment on the basis of gender.&nbsp;</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/management-alert-the-current-federal-retrenchment-on-lgbt-rights/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=fa081a76d6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-fa081a76d6-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA082217 Website Accessibility Lawsuit Filings Still Going Strong http://www.seyfarth.com:80/publications/ADA082217 Tue, 22 Aug 2017 00:00:00 -0400 <p> Different year, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the DOJ&rsquo;s recent placement of website regulations on the &ldquo;inactive list&rdquo;, litigation will likely only continue. As we have written about extensively, most recently here, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.</p> <p> <a href="http://www.adatitleiii.com/2017/08/website-accessibility-lawsuit-filings-still-going-strong/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=d56fe1d270-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-d56fe1d270-73047125">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/olsonshrm082117 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Camille Olson was quoted in an August 21 story from SHRM, &quot;Despite Gains, Average Intern Wage Still Below Pre-Recession Level,&quot; on how unpaid intern programs face compliance hurdles. Olson said that the goal is to ensure that companies are not getting around minimum-wage and other employee protection laws by calling workers &#39;interns,&#39; when the work and conditions under which the work is being performed are no different than that of actual employees. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/intern-wages.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/rooneyhre082117 Laura Maechtlen and Marjorie Soto quoted in Human Resource Executive http://www.seyfarth.com:80/news/rooneyhre082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Laura Maechtlen and Marjorie Soto were quoted in an August 21 story from Human Resource Executive, &quot;Applying the Rooney Rule,&quot; on how Seyfarth increased the diversity in its labor and employment associate-attorney ranks from 34 percent to an impressive 58 percent in just one year. Maechtlen said that Seyfarth&#39;s sourcing really has improved significantly, which means that the firm is getting more diverse applicants in the hiring process in the beginning. Soto said that Seyfarth&#39;s advantage is that diversity is not just a buzzword -- it is deeply embedded in the fabric of the firm. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362890">full article here</a>.</p> http://www.seyfarth.com:80/publications/winnerfinkel082117 Robert Winner and Noah Finkel authored an article in Mergers & Acquisitions http://www.seyfarth.com:80/publications/winnerfinkel082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Robert Winner and Noah Finkel authored an August 21 article in Mergers &amp; Acquisitions, &quot;How to manage wage-hour risks in an acquisition.&quot; Winner and Finkel wrote that , in order to understand how to avoid these risks, the acquirer needs to know where to look first, and then protect itself in the definitive documentation. You can read the <a href="https://www.themiddlemarket.com/opinion/how-to-manage-wage-hour-risks-in-an-acquisition?brief=0000015a-289d-d09d-a7fe-ee9f58b00000">full article here</a>.</p> http://www.seyfarth.com:80/publications/shermanmmg082117 Andrew Sherman authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/shermanmmg082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Andrew Sherman authored an August 21 article in Middle Market Growth, &quot;Don&rsquo;t Let Bored Employees Derail Your Deal.&quot; The article discusses how to address workforce disengagement during M&amp;A due diligence. You can read the <a href="http://middlemarketgrowth.org/bored-employees-derail-deal/">full article here</a>.</p> http://www.seyfarth.com:80/publications/wse082117 5th Circuit Asked to Review ALJ Decision to Vacate “Controlling Employer” Doctrine Citation http://www.seyfarth.com:80/publications/wse082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA&rsquo;s trenching standards.&nbsp; The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.&nbsp;</p> <p> <a href="http://www.environmentalsafetyupdate.com/osha-litigation/5th-circuit-asked-to-review-alj-decision-to-vacate-controlling-employer-doctrine-citation/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=12b8a9d3d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-12b8a9d3d2-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH081817 Seventh Circuit Sends Police Officers’ Off-Duty BlackBerry Claims to Spam Folder http://www.seyfarth.com:80/publications/WH081817 Fri, 18 Aug 2017 00:00:00 -0400 <p> Employers often grapple with what to do when their policies prohibit off-duty work, like working on mobile devices after hours, that employees don&rsquo;t follow. Even if it has a policy prohibiting off-duty work, if the employer knows (or should know) an employees is working, the employer must compensate the employee for the off-duty work. The same can be said if an employer has a policy requiring employees to report all off-duty time worked but knows (or should know) that employees are not reporting it. As the regulations put it, employers cannot &ldquo;sit back and accept&rdquo; work without compensating it, even though the employer has rules against it. 29 C.F.R. &sect; 785.13.</p> <p> <a href="http://www.wagehourlitigation.com/off-the-clock-issues/blackberry-claims-to-the-spam-folder/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=86cd6bc529-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-86cd6bc529-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL081817 Got Privilege? When It Comes to Internal Investigations, Think Again … http://www.seyfarth.com:80/publications/EL081817 Fri, 18 Aug 2017 00:00:00 -0400 <p> When conducting an internal investigation, every in-house counsel pays particular attention to maintaining privilege throughout the investigation. But maintaining privilege can be very difficult. &nbsp;A recent decision from the U.S. District Court for the District of Columbia tackles this issue, and it provides useful lessons for helping to ensure that confidential and privileged internal investigation notes and reports remain confidential and privileged.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/got-privilege-when-it-comes-to-internal-investigations-think-again/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=c0f0bb7762-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-c0f0bb7762-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT081717 The Week in Weed: August 18, 2017 http://www.seyfarth.com:80/publications/TBT081717 Thu, 17 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Officials In Legal-Weed States Push Back Against Sessions&rsquo; Marijuana Criticisms<br /> (Huffington Post: Latest News, 17 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-18-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=8810023bc2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-8810023bc2-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/CP081717 No Signature? No Problem! Enforcing Arbitration Even Without Everyone Signing http://www.seyfarth.com:80/publications/CP081717 Thu, 17 Aug 2017 00:00:00 -0400 <p> Despite the strong federal policy favoring arbitration, it is no secret that enforcing arbitration agreements in California can be tough. The task is tougher yet for the defendant that finds itself being sued by someone with whom the defendant has never had a contractual relationship, although she has signed an employment arbitration agreement with a co-defendant. This is because, under the general rule, one must be a party to an arbitration agreement in order to invoke it.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/17/no-signature-no-problem-enforcing-arbitration-even-without-everyone-signing/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a44b614c9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a44b614c9a-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/wc081717 Eleventh Circuit Rules That Stipulated Dismissal Of Named Plaintiffs And Defendant Triggers Putative Class Members’ Deadline To Appeal http://www.seyfarth.com:80/publications/wc081717 Thu, 17 Aug 2017 00:00:00 -0400 <p> In <em><a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/08/Wal-Mat-Blog.pdf">Love v. Wal-Mart</a></em>, No. 15-15260, 2017 U.S. App. LEXIS 14261 (11th Cir. Aug. 3, 2017), the Eleventh Circuit addressed the timeliness of putative class members&rsquo; appeal of the dismissal of class claims filed more than 30 days after the named class representatives and defendant filed a stipulation of dismissal.&nbsp; <em>Id. </em>at *5.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/eleventh-circuit-rules-that-stipulated-dismissal-of-named-plaintiffs-and-defendant-triggers-putative-class-members-deadline-to-appeal/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=351209b8f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-351209b8f9-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/bna081717 Annette Tyman, Michael Childers and Matthew Martin quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bna081717 Thu, 17 Aug 2017 00:00:00 -0400 <p> Annette Tyman, Michael Childers and Matthew Martin were quoted in an August 17 story from Bloomberg BNA, &quot;REVISED EEO-1 REPORT: DESPITE UNCERTAINTY, EMPLOYERS SHOULD START TO PREPARE&lt;&#39; on their webinar, &quot;Understanding the New EEO-1 Report: Pay Data and &lsquo;Hours Worked&rsquo; Requirements.&quot; Tyman warned that this statistical data is not going to show a whole lot, if anything at all, about pay discrimination.</p> http://www.seyfarth.com:80/news/ilta081617 Seyfarth Wins 2017 Innovative Law Firm of the Year Award http://www.seyfarth.com:80/news/ilta081617 Wed, 16 Aug 2017 00:00:00 -0400 <p align="center"> <img alt="" src="../../../../../../uploads/siteFiles/inlineimages/IDPA17-winner.png" style="width: 500px; height: 357px;" /></p> <p> &nbsp;</p> <p> CHICAGO (August 16, 2017) -- Seyfarth Shaw LLP has been honored with the 2017 Innovative Law Firm of the Year Award, presented Tuesday evening by the International Legal Technology Association at its annual awards gala.</p> <p> Among the industry&rsquo;s top honors, the award recognizes the law firm that delivered the greatest business value and transformational impact through innovations within their organization. This is the second time in five years that Seyfarth has been named ILTA&rsquo;s Innovative Law Firm of the Year, previously earning the award in 2013.</p> <p> &ldquo;We are proud to be at the forefront of technology that enhances what our lawyers do best: counsel and serve our clients,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> Seyfarth won for two groundbreaking advances in the use of robotics software with SeyfarthLean Consulting:</p> <ol> <li> Deployment of robotic process automation (RPA) software in the legal industry for the first time, while creating a Robotics Center of Excellence to drive best practices around a growing pipeline of RPA projects in the firm;<br /> &nbsp;</li> <li> Development of the &ldquo;Ask Lee&rdquo; chatbot for the firm&rsquo;s SeyfarthLink client collaboration platform, which can answer support questions around the clock, and do so faster and more efficiently.<br /> &nbsp;</li> </ol> <p> To learn more about Seyfarth&rsquo;s Robotics Center of Excellence, visit the&nbsp;<a href="https://www.youtube.com/watch?v=mqa3DlmhYx0&amp;feature=youtu.be">animated video here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/publications/wc081617 Spokeo: On Remand From The U.S. Supreme Court, The Ninth Circuit Finds Plaintiff Has Standing, Again http://www.seyfarth.com:80/publications/wc081617 Wed, 16 Aug 2017 00:00:00 -0400 <p> On August 15, 2017, the U.S. Court of Appeals for the Ninth Circuit issued the latest <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/15/11-56843.pdf">opinion</a> in the <em>Robins v. Spokeo, Inc.</em> litigation that gave us last year&rsquo;s U.S. Supreme Court opinion on Article III standing (which we discussed <a href="http://www.seyfarth.com/publications/MA051616-LE">here</a>).&nbsp; After the Supreme Court found that the Ninth Circuit, in its prior February 2014 opinion (found <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/02/04/11-56843.pdf">here</a>), had analyzed only whether the alleged injury was particular to Plaintiff, it remanded the case back for the second part of the analysis to determine whether Plaintiff alleged a concrete injury-in-fact, as required by Article III.</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/spokeo-on-remand-from-the-u-s-supreme-court-the-ninth-circuit-finds-plaintiff-has-standing-again/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=351209b8f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-351209b8f9-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR081617 Hello & Goodbye: More Changes at the NLRB http://www.seyfarth.com:80/publications/LR081617 Wed, 16 Aug 2017 00:00:00 -0400 <p> As we previously reported (http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/), President Trump nominated two candidates for vacancies on the five-member National Labor Relations Board &ndash; William Emanuel and Marvin Kaplan. &nbsp;The Senate approved Mr. Kaplan to fill one of the vacancies on August 2, 2017 by a 50-48 vote, but has yet to schedule a date to vote on Mr. Emanuel&rsquo;s appointment.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/08/16/hello-goodbye-more-changes-at-the-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=8133d22682-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-8133d22682-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/EL081517 To Connect Or Not To Connect, That Is The Non-Solicitation Agreement Question http://www.seyfarth.com:80/publications/EL081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Employers often wonder how far a non-solicitation agreement can go. It can frustrate employers, who may pay extra money for an employee to sign a non-solicitation agreement, to later learn that their former employees have violated such agreements. &nbsp;And with the rise of social media, and its convergence into the business realm, potential violations through communications between current, prospective, and even previous employees have become more complicated than ever.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/to-connect-or-not-to-connect-that-is-the-non-solicitation-agreement-question/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3219e756ec-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3219e756ec-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/CEL-081517 Employer Be Careful - Noncompliance Events Will Be Published http://www.seyfarth.com:80/publications/CEL-081517 Tue, 15 Aug 2017 00:00:00 -0400 <div> The Chinese Ministry of Human Resources and Social Security (&ldquo;<strong>MHRSS</strong>&rdquo;) implemented the <em>Measures on Publication of Significant Violations of Labor and Social Security Laws </em>(&ldquo;<strong>Measures</strong>&rdquo;) effective January 1, 2017. &nbsp;The Measures require local counterparts of MHRSS (&ldquo;<strong>Bureaus</strong>&rdquo;) to record and publicize certain employer violations of labor and social security laws through official websites, local newspapers, television and other media platforms.</div> <div> &nbsp;</div> <div> <strong>What Violations Will Trigger Publication?</strong></div> <div> &nbsp;</div> <div> &ldquo;Significant violations&rdquo; include serious noncompliance with overtime rules, annual leave rules, social security rules, child labor laws and the delay, reduction of or failure to pay required salary, among other rules.&nbsp;</div> <div> &nbsp;</div> <div> However, the Measures do not provide clear parameters regarding which violations fall specifically within the ambit of the legislation. &nbsp;Instead, Bureaus determine the specific application at their discretion.&nbsp;</div> <div> &nbsp;</div> <div> As such, the standards for publication vary widely among cities depending on the local economy and what Bureaus&rsquo; officials happen to deem important. &nbsp;For example, in Beijing an employer&rsquo;s &ldquo;resistance&rdquo; to an inspection is a category covered by the Measures. &nbsp;In Hubei Province, an employer&rsquo;s refusal to pay labor remuneration will be published along with the penalties assessed.</div> <div> &nbsp;</div> <div> <strong>What Information Will Be Published?</strong></div> <div> <ul> <li> Employer&rsquo;s full name, address</li> <li> Employer&rsquo;s unified social credit code (or registration number)</li> <li> Name of employer&rsquo;s legal representative or person in charge</li> <li> Details of violation(s)</li> <li> Fines or other sanctions imposed by authorities (if any)</li> <li> Other relevant information</li> </ul> <div> &nbsp;</div> </div> <div> At the prefecture and county level, Bureaus will announce violators on a quarterly basis. &nbsp;At the national and provincial level, announcements will be biannual.&nbsp;</div> <div> &nbsp;</div> <div> <strong>What Are The Implications For Employers?</strong></div> <div> &nbsp;</div> <div> Publication of violations may cause a series of consequences to the employer, including decreases of the employer&rsquo;s credit, certain penalties, and random inspections by Bureaus.</div> <div> &nbsp;</div> <div> The Measures along with the recent grading statute (<a href="http://www.seyfarth.com/publications/030117-CEL" target="_blank">click here for details</a>) can be considered a strong sign that the Chinese government is establishing a more stringent regime to deter and penalize labor law violations.</div> http://www.seyfarth.com:80/news/szybalaw360081517 Robert Szyba quoted in Law360 http://www.seyfarth.com:80/news/szybalaw360081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Robert Szyba was quoted in an August 15 story from Law360, &quot;Spokeo Ruling Deals Blow To Cos. But May Have Silver Lining,&quot; on the Ninth Circuit&#39;s decision that the harm stemming from an allegedly inaccurate consumer report published by Spokeo Inc. was concrete enough to establish standing. Szyba said that the decision affirms the concept that plaintiffs cannot simply get by in these cases by pointing to statutory violations and indicates that courts will likely be a little bit more analytical in terms of the facts alleged in each particular case and place greater emphasis on each plaintiff&#39;s specific allegations of harm or wrongdoing.</p> http://www.seyfarth.com:80/news/shermancnbc081517 Andrew Sherman quoted in CNBC.com http://www.seyfarth.com:80/news/shermancnbc081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in an August 15 story from CNBC.com, &quot;The biggest risk that will determine Tesla&#39;s fate: Elon Musk himself,&quot; on the important steps every company should take to ensure there is no disruption in business if something should happen to their most important asset: the visionary founder and CEO. Sherman said that a fleshed-out management team is essential to business continuity planning if the boss gets sick or injured &mdash; and it will keep everyone sane even when the boss is healthy. You can read the <a href="https://www.cnbc.com/2017/08/15/the-biggest-risk-that-will-determine-teslas-fate-elon-musk-himself.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/seyfarthsaxman081417 Seyfarth Lawyers Update <i>Illinois Corporate Practice and Forms: The Seyfarth Shaw Manual</i> http://www.seyfarth.com:80/publications/seyfarthsaxman081417 Mon, 14 Aug 2017 00:00:00 -0400 <p> Seyfarth lawyers have updated the annual&nbsp;<em>Illinois Corporate Practice and Forms: The Seyfarth Shaw Manual.&nbsp;</em></p> <p> Led by Seyfarth Corporate partner Suzie Saxman, the Manual brings insightful, instructive discussions, analyses, and strategies for virtually every corporate law situation one may encounter.</p> <p> This exhaustive Manual, with its more than 1,820 pages of valuable content, will help one stay current and efficient by providing appropriate statutes and regulations &ndash; complemented by thorough discussions and analyses of any changing federal or Illinois state laws. Readers are guided through an extensive selection of appropriate corporate forms, using an easy-to-follow format. Included are customizable e-forms, plus planning strategies for a full range of corporations from closely-held private companies to large public companies.</p> <p> Recent Updates Include:</p> <ul> <li> Current legal developments</li> <li> Updated State of Illinois forms for Illinois corporations</li> <li> Added discussion of M&amp;A issues and resources</li> <li> Commentary on recent trade secret developments</li> <li> Executive compensation updates</li> <li> New forms and form updates throughout the Manual</li> </ul> <p> <br /> The Manual can be found <a href="https://www.datatrace.com/illinois-practice-forms-seyfarth-shaw-manual.html">here</a>.</p> http://www.seyfarth.com:80/publications/ts081117 Webinar Recap! Trade Secret Protection: What Every Employer Needs to Know http://www.seyfarth.com:80/publications/ts081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s fourth webinar in its series of 2017 Trade Secrets Webinars, Seyfarth attorneys Robert Milligan and Joshua Salinas were joined by Jim Vaughn, one of California&rsquo;s leading computer forensics experts, presented <em><a href="http://www.seyfarth.com/dir_docs/publications/Trade_Secret_Protection_What_Every_Employer_Needs_to_Know.wmv">Trade Secret Protection: What Every Employer Needs to Know</a></em>. The panel focused on how to help employers navigate the tricky trade secrets waters and provided best practices for trade secret protection.</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/trade-secrets/webinar-recap-trade-secret-protection-what-every-employer-needs-to-know/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=4deb00d964-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-4deb00d964-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL081117 DOT Backs Away From Rulemaking on “Safety Sensitive Positions” in Highway and Rail Transportation http://www.seyfarth.com:80/publications/EL081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> This week the U.S. Department of Transportation has withdrawn its March 10, 2016 Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea (OSA). 82 Fed. Reg. 37038 (Aug. 8, 2017).</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/dot-backs-away-from-rulemaking-on-safety-sensitive-positions-in-highway-and-rail-transportation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=9bc80f971d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-9bc80f971d-73179553">click here</a>.</p> http://www.seyfarth.com:80/news/zeedj081117 Candice Zee profiled by the Los Angeles Daily Journal http://www.seyfarth.com:80/news/zeedj081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> Candice Zee was profiled in an August 11 story from the Los Angeles Daily Journal, &quot;Ice Warrior.&quot; Seyfarth&#39;s Candice Zee started playing competitive roller hockey in high school, but her passion for the sport soon migrated to the ice. Diane Goodman, an attorney who competes regularly against Zee in all-women&#39;s ice hockey league matches, said that in hockey, you&#39;re looking for openings to move the puck or make a pass or score, and her sense of Zee as an attorney is that she uses some of that same strategic hockey approach to look for openings to settle cases when it&#39;s possible and find creative ways to get things accomplished. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/DailyJournal-8.11.17.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganlaw360081117 Robert Milligan quoted in Law360 http://www.seyfarth.com:80/news/milliganlaw360081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> Robert Milligan was quoted in an August 11 story from Law360, &quot;5 New Noncompete Developments Attys Should Know About,&quot; on a California Federal Judge&#39;s ruling on Google Inc.&rsquo;s suit against Uber Technologies Inc. over its self-driving vehicle technology. Milligan said that while the state isn&rsquo;t like to relax its aggressive stance against noncompete agreements, the Uber decision could signal greater toughness on trade secrets theft.</p> http://www.seyfarth.com:80/news/imanage081017 Seyfarth Selects iManage RAVN Self-Service Artificial Intelligence Platform http://www.seyfarth.com:80/news/imanage081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> CHICAGO &ndash; August 10, 2017 &ndash; Seyfarth Shaw LLP in connection with its subsidiary SeyfarthLean Consulting announced today that it is one of the first law firms to select iManage Extract. Seyfarth will use the Artificial Intelligence (AI) platform to perform document review and comparison across all practice areas.</p> <p> iManage Extract uses robots that automatically read, interpret and extract key information from documents and returns a desired business output. Seyfarth will utilize an enhanced feature of the product to train and have complete control of the robot. Using the self-service portal will allow the firm to speed up the data extraction process, increasing productivity within the organization. To read more, visit the <a href="http://imanage.com/wp-content/uploads/2017/08/AmLaw-100-Firm-Seyfarth-Shaw-Selects-iManage-RAVN-Self-Service-Artificial-Intelligence-Platform-to-Drive-Technology-Initiatives-v1.pdf">full press release here</a>.</p> <p> This news follows Seyfarth&rsquo;s earlier agreement with Blue Prism to deploy its industry-leading robotic process automation (RPA) software to the firm, marking the first adoption of Blue Prism&rsquo;s technology for the legal industry. Blue Prism is the leading choice for secure, scalable and transformational digital labor deployments. To read more, visit the <a href="http://www.seyfarth.com/news/seyfarth-shaw-blue-prism-bring-robotic-process-automation-to-legal-industry">full press release here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, bkiefer@seyfarth.com</p> <p> Martin Grego, Public Relations Manager (312) 460-6659, mgrego@seyfarth.com</p> http://www.seyfarth.com:80/news/boutrossyracuse081017 Andrew Boutros quoted in Syracuse.com http://www.seyfarth.com:80/news/boutrossyracuse081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 10 story from Syracuse.com, &quot;Disputed law forces Syracuse, other colleges to investigate sex cases without cops,&quot; on how Title IX requires schools to investigate allegations of sexual abuse and, if an accuser insists on staying anonymous, the school in many cases is barred from sharing information with police. Boutros said that federal law requires schools to maintain victims&#39; confidentiality if they request it. You can read the <a href="http://www.syracuse.com/su-news/index.ssf/2017/08/syracuse_university_bound_by_federal_law_sometimes_investigate_sex_crimes_withou.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/wse081017 EPA Task Force Report to Revitalize the Superfund Program http://www.seyfarth.com:80/publications/wse081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> The U.S. Environmental Protection Agency recently released its <a href="https://www.epa.gov/sites/production/files/2017-07/documents/superfund_task_force_report.pdf">Superfund Task Force Recommendations Report</a> (Report). The report, ambitiously, provides &ldquo;42 specific and detailed recommendations to streamline and improve the Superfund program.&rdquo; Along with the Report, EPA Administrator Scott Pruitt also released a <a href="https://www.epa.gov/sites/production/files/2017-07/documents/receipt_of_superfund_task_force_report_and_next_steps_for_revitalizing_the_superfund_program_memo.pdf">directive</a> to EPA leaders and offices across the Agency of eleven &ldquo;specific actions that should be implemented right away, with renewed focus,&rdquo; including the identification, within 60 days, of the &ldquo;sites where the risk of human exposure is not fully controlled.&rdquo;</p> <p> <a href="http://www.environmentalsafetyupdate.com/cercla/epa-task-force-report-to-revitalize-the-superfund-program/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=310c1e1b0a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-310c1e1b0a-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT081017 The Week in Weed: August 11, 2017 http://www.seyfarth.com:80/publications/TBT081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Sessions says he has &lsquo;serious concerns&rsquo; about legal marijuana. Now states wonder what&rsquo;s next</p> <p> (Los Angeles Times: National News, 10 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-11-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=32430cd3d7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-32430cd3d7-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA081017 Nevada Attorney General Takes Dramatic Action to Stop Serial Plaintiff’s ADA Title III Lawsuits http://www.seyfarth.com:80/publications/ADA081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months. &nbsp;The motion to intervene invokes a little-known provision in Title III of the ADA that requires private plaintiffs to &ndash; before filing in federal court &ndash; provide 30 days&rsquo; notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/08/nevada-attorney-general-takes-dramatic-action-to-stop-serial-plaintiffs-ada-title-iii-lawsuits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=ae2661efa7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-ae2661efa7-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/FINRA81017 What’s Good for the Goose: The CFTC Harmonizes its Whistleblower Program with that of the SEC http://www.seyfarth.com:80/publications/FINRA81017 Thu, 10 Aug 2017 00:00:00 -0400 <p> <span style="color: rgb(0, 0, 0);"><em><strong>Seyfarth Synopsis:&nbsp;</strong></em></span><em>On July 31, 2017, the unanimously approved amendments to the rules governing the U.S. Commodity Futures Trading Commission&rsquo;s (&ldquo;CFTC&rdquo;) whistleblower program went into effect.&nbsp; In a break with its past interpretations, the CFTC&rsquo;s new rules, align the CFTC&rsquo;s program more closely with the protections afforded by its counterpart program at the U.S. Security and Exchange Commission (&ldquo;SEC&rdquo;).</em></p> <p> <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/FINRA081017(1).pdf">Click here</a>&nbsp;to read the full post.</p> http://www.seyfarth.com:80/publications/wse080917 You Can’t Do That! DC Circuit Vacates EPA’s HFCs Rule http://www.seyfarth.com:80/publications/wse080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> The DC Circuit Court of Appeals this week, by a split three-judge panel, vacated part of a 2015 EPA rule intended to target greenhouse gas emissions, saying that while Section 612 of the Clean Air Act (CAA) does require manufacturers to replace ozone-depleting substances with safe substitutes, hydrofluorocarbons (HFCs) do not deplete ozone, so the agency never had the power to enforce the replacement provision of the rule.</p> <p> <a href="http://www.environmentalsafetyupdate.com/caa/you-cant-do-that-dc-circuit-vacates-epas-hfcs-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=ef08df139c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-ef08df139c-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM8917-LE When Is a Civil Penalty Not a Civil Penalty? http://www.seyfarth.com:80/publications/OMM8917-LE Wed, 09 Aug 2017 00:00:00 -0400 <p class="BodySingle" style="margin-bottom:6.0pt"> <b><i>Seyfarth Synopsis</i></b><i>: Plaintiffs cannot circumvent arbitration agreements by characterizing claims for statutory damages as claims for civil penalties. The purported PAGA exemption from arbitration agreements applies only to claims for civil penalties that go primarily to the State of California, and not entirely to employees.</i><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>Background<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> The Federal Arbitration Act (&ldquo;FAA&rdquo;) establishes the rule that arbitration agreements must be enforced, even if some state rule says otherwise. The California Supreme Court, in its 2014 decision in <i>Iskanian v. CLS Transportation Los Angeles, LLC</i>, created an exception to the rule when it declined to enforce arbitration agreements that waive representative claims brought under California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;). <i>Iskanian </i>reasoned that PAGA claims feature the plaintiff seeking civil penalties for the State of California, which never agreed to waive recovery of those penalties on a representative basis. Although there have been several attempts to have the U.S. Supreme Court reverse <i>Iskanian</i>, it remains the law in California. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> After <i>Iskanian</i>, some employers abandoned efforts to get employees to waive the right to participate in representative actions. The Court of Appeal&rsquo;s decision in <i>Esparza v. KS Industries </i>teaches that this may have been an overreaction to <i>Iskanian</i>. <i>Esparza </i>concludes that some claims characterized as PAGA claims actually involve claims for &ldquo;statutory damages,&rdquo; and not &ldquo;civil penalties.&rdquo; Based on this distinction, <i>Esparza </i>holds that while PAGA suits to obtain &ldquo;civil penalties&rdquo; remain immune to an agreement to arbitrate, suits to obtain penalties that amount to &ldquo;statutory damages&rdquo; are subject to such an agreement.<o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>The Facts<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Richard Esparza, as an &ldquo;aggrieved employee,&rdquo; sued his former employer, KS Industries. He brought a single cause of action under PAGA, in which he sought unpaid wages, civil penalties, and statutory penalties, for failures to provide meal and rest breaks, to pay wages in a timely manner, to provide accurate wage statements, and to reimburse business expenses. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> KS moved to compel enforcement of the parties&rsquo; arbitration agreement. Esparza countered that his suit, as a PAGA action, fell beyond the scope of the FAA and thus was not subject to arbitration, and that the PAGA penalties he sought included unpaid wages. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> KS responded that Esparza was trying to circumvent his arbitration agreement by filing a single cause of action under PAGA and styling the monetary relief sought as civil penalties when, in fact, the relief amounted to victim-specific damages that would go entirely to employees. KS contended that Esparza&rsquo;s claims were subject to the arbitration agreement and did not fall within <i>Iskanian</i>&rsquo;s &ldquo;PAGA exemption&rdquo; from arbitration<i>.</i><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> When the trial court sided with Esparza, KS appealed. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>Appellate Decision</b><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> The Court of Appeal, reversing the trial court, agreed with KS that because some of Esparza&rsquo;s claims sought individualized, victim-specific relief, those claims were not subject to the &ldquo;PAGA exemption&rdquo; from arbitration that the Court of Appeal believed was created by <i>Iskanian.</i> (In fact, <i>Iskanian</i> did not exempt all PAGA claims from arbitration: <i>Iskanian</i> simply declined to enforce arbitration agreements that <i>waive</i> the ability to pursue PAGA civil penalties on a <i>representative</i> basis. <i>Iskanian</i> thus does not purport to prohibit PAGA claims from being arbitrated on a representative basis).&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> According to the Court of Appeal, the purported &ldquo;PAGA exemption&rdquo; from arbitration applies only to PAGA claims for &ldquo;civil penalties&rdquo;&mdash;monetary relief that goes 75 percent of the penalty to the State of California and 25 percent to aggrieved employees. The Court of Appeal reasoned that because PAGA &ldquo;civil penalties&rdquo; primarily go to the State, the right to waive seeking them on a representative basis cannot be waived by an employee, because the State is not a party to a private arbitration agreement. In contrast, penalties that would go entirely to aggrieved employees are not a &ldquo;civil penalty&rdquo; for purposes of the <i>Iskanian </i>rule. The ability to require Esparza to arbitrate on an individual basis thus turned on the extent to which his claims were truly PAGA claims for &ldquo;civil penalties&rdquo; (going largely to the State) rather than claims for &ldquo;statutory damages&rdquo; (going entirely to aggrieved employees). <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Esparza argued that his claim for unpaid wages was really a PAGA claim for civil penalties because, under Labor Code section 558, civil penalties include the payment of unpaid wages. The Court of Appeal rejected this argument, noting that, while <i>Iskanian</i> did not expressly address whether such unpaid wages are a civil penalty, <i>Iskanian</i> distinguished civil penalties recovered on behalf of the State from statutory damages that go entirely to employees. In the context of the <i>Iskanian </i>rule, the Court of Appeal concluded, the test for a civil penalty is whether the money goes primarily to the State or whether employees could recover all the money in their individual capacities. Unpaid wages, being a victim-specific remedy that employees can recover in an individual capacity, thus cannot qualify as a civil penalty for purposes of the <i>Iskanian </i>rule.<o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Accordingly, under <i>Esparza</i>, PAGA claims for &ldquo;civil penalties,&rdquo; when seeking money allocated primarily to the State, remain immune from mandatory pre-dispute arbitration. But claims for victim-specific &ldquo;statutory damages&rdquo;&mdash;whether or not they are called a &ldquo;penalty&rdquo;&mdash;can be directed to individual arbitration where an arbitration agreement so provides. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>What <i>Esparza</i> means for employers<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Plaintiffs cannot circumvent arbitration agreements simply by characterizing their representative claims for wages or for statutory damages as part of a PAGA action. Thus, plaintiffs still must honor agreements to arbitrate claims that are for individualized relief, even if they style their claim as a PAGA claim for civil penalties. As courts continue to grapple with whether employee arbitration agreements are enforceable as to claims for statutory damages&mdash;whether they appear in the guise of class, collective, or representative actions&mdash;employers should regularly review their arbitration procedures to ensure that they reflect the current state of the law.<o:p></o:p></p> http://www.seyfarth.com:80/publications/basspro080917 Gerald Maatman, Christopher DeGroff and Alex Karasik authored an article in Law360 http://www.seyfarth.com:80/publications/basspro080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> Gerald Maatman, Christopher DeGroff and Alex Karasik authored an August 9 article in Law360, &quot;Employer Takeaways From EEOC&#39;s $10.5M Deal With Bass Pro.&quot; The article discusses how a closer look of the EEOC/Bass Pro Outdoor World settlement terms gives insight into the EEOC&rsquo;s litigation strategies.</p> http://www.seyfarth.com:80/news/babsonbna080917 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an August 9 story from Bloomberg BNA, &quot;Labor Board Takes On Justice Department in Supreme Court,&quot; on how the NLRB stood its ground in a battle that pits it against the DOJ on whether businesses can force workers to sign contracts with mandatory arbitration clauses preventing them from participating in class and collective litigation. Babson said that the purpose of the NLRA is not to protect class actions and that it&#39;s unfortunate that the board is expending so much resources on what he believes is a misplaced idea.</p> http://www.seyfarth.com:80/news/ssfbna080917 Sam Schwartz-Fenwick quoted in Bloomberg BNA http://www.seyfarth.com:80/news/ssfbna080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an August 9 story from Bloomberg BNA, &quot;Trump Transgender Ban Breaks Promise, Service Members Say,&quot; on the President&#39;s plan to exclude transgender people from the military. Schwartz-Fenwick thinks it&#39;s always helpful in order to get the most buy-in to do education around a major policy shift.</p> http://www.seyfarth.com:80/news/grossenbacherbna080817 Karla Grossenbacher interviewed by Bloomberg BNA http://www.seyfarth.com:80/news/grossenbacherbna080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Karla Grossenbacher was interviewed August 8th by Bloomberg BNA, &quot;Managing Technology in the Workplace.&quot; Grossenbacher discussed the issues surrounding technology use in the workplace and methods employers can use to safeguard their company&rsquo;s information. You can view the <a href="https://www.bna.com/managing-technology-workplace-m73014462865/?promocode=LIPP101AA&amp;compcontent=Twitter&amp;utm_medium=compcontent&amp;utm_campaign=BloombergBNA">full interview here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360080817 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an August 8 story from Law360, &quot;NLRB Chairman To Exit Agency At Conclusion Of Term,&quot; on the news that Philip Miscimarra, chairman of the National Labor Relations Board, will leave the NLRB when his current term on the labor board expires in December. Babson said that Miscimarra will be missed at the labor board and that his eventual departure raises the ante for the Trump administration in finding a person to fill his spot.</p> http://www.seyfarth.com:80/news/foleyhre080817 Erin Dougherty Foley quoted in Human Resource Executive http://www.seyfarth.com:80/news/foleyhre080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Erin Dougherty Foley was quoted in an August 8 story from Human Resource Executive, &quot;In the Concealed-Carry Crosshairs,&quot; on how employers must walk a fine line between protecting the workplace and respecting workers&#39; Second Amendment rights. Foley said that while there are sure to be a few employees who are worried about potentially working next to someone toting a gun, keeping the lines of communication open via training and ongoing dialogue goes a long way toward assuaging concerns. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362874">full article here</a>.</p> http://www.seyfarth.com:80/news/krameraba080817 Ronald Kramer quoted in ABA http://www.seyfarth.com:80/news/krameraba080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Ronald Kramer was quoted in an August 8 ABA story, &quot;Complying or violating the law? The case of Sanctuary Cities,&quot; on the panel he will moderate at the ABA Annual Meeting: &ldquo;Sanctuary Cities &ndash; The Role of State &amp; Local Governments in Addressing Undocumented Immigrants.&quot; Kramer said that sanctuary cities are a hot political topic, yet one many do not fully understand. You can read the <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2017/08/complying_or_violati.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL080817 EEOC’s Motion For Sanctions Granted Over Employer’s Failure To Preserve And Produce Records http://www.seyfarth.com:80/publications/EL080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> In an EEOC lawsuit alleging that an employer failed to reasonably accommodate its Muslim employees&rsquo; requests for prayer breaks, a federal court in Colorado granted the EEOC&rsquo;s motion for sanctions &mdash; as a result of the employer&rsquo;s failure to preserve and produce various records &mdash; and barred the employer from presenting evidence, testimony, or arguments that unscheduled prayer breaks led to production line slowdowns or stoppages. &nbsp;This ruling provides an important lesson for businesses regarding the preservation of documents in ongoing EEOC litigation.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/eeocs-motion-for-sanctions-granted-over-employers-failure-to-preserve-and-produce-records/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=f5b839fecd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-f5b839fecd-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA080717 Two New York Federal Judges Refuse to Dismiss Website Accessibility Cases http://www.seyfarth.com:80/publications/ADA080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff. &nbsp;Two days later, a California federal judge held that a blind plaintiff&rsquo;s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery. &nbsp;Now two federal judges in New York have weighed in, denying restaurant Five Guys&rsquo; and retailer Blick&rsquo;s motions to dismiss lawsuits alleging that the defendants&rsquo; inaccessible websites violate the ADA and New York State and City civil rights laws.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=87a87c35f5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-87a87c35f5-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/bodanskydyer080717 Robert Bodansky and Joseph Dyer authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/bodanskydyer080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> Robert Bodansky and Joseph Dyer authored an August 7 article in Middle Market Growth, &quot;&lsquo;America First&rsquo; and Its Impact on Cross-Border M&amp;A.&quot; The article discusses the Trump administration&rsquo;s focus on &ldquo;America First&rdquo; and its impact on the Committee on Foreign Investment in the United States. You can read the <a href="http://middlemarketgrowth.org/america-first-impact-cross-border-ma/">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA080717-LE Massachusetts Temporarily Imposes Employer Assessments for the Commonwealth’s Medicaid Program http://www.seyfarth.com:80/publications/MA080717-LE Mon, 07 Aug 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>On August 1, Massachusetts Governor Charlie Baker signed into law a measure intended to help the state pay for the costs of the Commonwealth&rsquo;s Medicaid program, referred to as MassHealth, which covers nearly 2 million low income, minor and disabled Massachusetts residents.&nbsp; The law is effective immediately and will impact Massachusetts employers with 6 or more employees.&nbsp;</em></p> <p> Entitled, &ldquo;An Act Further Regulating Employer Contributions to Health Care,&rdquo; the new law is part of an initiative designed to respond to a growing trend of employees shifting from commercial insurance to publicly sponsored coverage because of premium increases.&nbsp; The Act is expected to raise $200 million in employers&rsquo; fees to fund MassHealth in two ways. &nbsp;</p> <ul> <li> First, the law will increase the existing Employer Medical Assistance Contribution (&ldquo;EMAC&rdquo;) from an annual maximum fee of $51 per employee to $71 per employee.&nbsp; EMAC funds are used to subsidize health care to low-income Massachusetts residents.</li> <li> Second, the law will penalize employers with a fine of up to a maximum of $750 for each non-disabled worker who receives health insurance coverage through MassHealth or subsidized coverage instead of through their employer-sponsored health insurance plan.&nbsp; Prior to the passage of the Act, employers were not directly fined if their workers received coverage through MassHealth or the Massachusetts Health Connector instead of through their employer-sponsored plan.</li> </ul> <p> The Act&rsquo;s assessments are scaled back from an earlier proposal that would have taxed employers $2,000 per full-timer who enrolled in MassHealth while eligible for employer-sponsored coverage. Reminiscent of the Fair Share Contribution days that preceded passage of the Affordable Care Act, the Act states that the Department of Unemployment Assistance, &ldquo;in consultation&rdquo; with the Commonwealth Health Insurance Connector Authority, will prepare regulations regarding implementation of the $750 fine.&nbsp; The regulations are expected to specify the number of days that a worker must receive MassHealth or subsidized care in order to trigger the fine.&nbsp; The regulations also are expected to provide guidance on the manner in which employers must pay the $750 fine. &nbsp;It is reported that the regulations will be drafted and finalized in 2017.</p> <p> Despite speculation that the assessments&rsquo; sunset may never arrive, the Act provides that they will expire on December 31, 2019.&nbsp; The Act also reduces scheduled unemployment increases during the same period to offset these increased employer costs.&nbsp; The Governor reports that by signing the controversial assessments into law, he returned the legislature&rsquo;s focus to reforming the economic sustainability of MassHealth. A second part of the initiative, not yet signed into law, sought to push approximately 140,000 low income workers currently on MassHealth onto commercial coverage.</p> <p> <strong>What Employers Can Do Now</strong></p> <p> As employers sharpen their pencils for budgeting purposes, they must account for the impact that this temporary assessment will have on operating costs.&nbsp; Employers may wish to review current EMAC and unemployment insurance liabilities to best evaluate the additional impact these tiered assessments represent.&nbsp; Employers also should review health insurance offerings and employee communications pertaining to those offerings to ensure that that employees are informed of any applicable employer-sponsored benefits.</p> http://www.seyfarth.com:80/publications/WC080717 EEOC’s Motion For Sanctions Granted Over Employer’s Failure To Preserve And Produce Records http://www.seyfarth.com:80/publications/WC080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> In EEOC v. JBS USA, LLC, Case No. 10-CV-02103, 2017 U.S. Dist. LEXIS 122908 (D. Colo. Aug. 4, 2017), the EEOC alleged that JBS USA, LLC (&ldquo;JBS&rdquo;), a meat packing company, discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations. &nbsp;After the EEOC moved for sanctions regarding JBS&rsquo;s failure to produce two types of records relating to delays on JBS&rsquo;s production line, Judge Phillip A. Brimmer of the U.S. District Court for the District of Colorado granted in part the EEOC&rsquo;s motion and barred JBS from presenting evidence, testimony, or argument in its motions, at hearings, or at trial that unscheduled prayer breaks led to production line slowdowns or stoppages.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/08/eeocs-motion-for-sanctions-granted-over-employers-failure-to-preserve-and-produce-records/">click here</a>.</p> http://www.seyfarth.com:80/news/launeyatl080717 Kristina Launey quoted in Above the Law http://www.seyfarth.com:80/news/launeyatl080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> Kristina Launey was quoted in an August 7 story from Above the Law, &quot;What I Wish I&rsquo;d Known Before Becoming an Attorney,&quot; on insights that are sure to be helpful to an aspiring attorney. Launey thinks the most important thing for people to know is you&rsquo;re not just an attorney&mdash;you&rsquo;re a business partner with your clients, so being well-rounded and practical are very important. You can read the <a href="http://abovethelaw.com/lawline-cle/2017/08/07/what-i-wish-id-known-before-becoming-an-attorney/8/">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc080617 Andrew Boutros was interviewed by CBC News http://www.seyfarth.com:80/news/boutroscbc080617 Sun, 06 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was interviewed in an August 6 story from CBC News, &quot;Former prosecutor on investigation into alleged Russian election meddling.&quot; Boutros discussed the grand jury investigation into claims of Russian interference in the 2016 U.S. election. You can watch the <a href="http://www.cbc.ca/player/play/1028632643905">full interview here</a>.</p> http://www.seyfarth.com:80/news/weissshrm080417 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in an August 4 story from SHRM, &quot;Summer Outing Fiascos: Raucous Pool Parties, &lsquo;Pin the Tail on the Intern,&rsquo; Lost in a Scavenger Hunt,&quot; on why some companies prohibit alcohol at summer events. Weiss said that he would limit the number of drinks employees are served and designate some managers to not drink so that they can monitor the event and put a stop to any misbehavior that might give rise to visits to HR. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/summer-outings.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/bitarlaw360080417 Karen Bitar quoted in Law360 http://www.seyfarth.com:80/news/bitarlaw360080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Karen Bitar was quoted in an August 4 story from Law360, &quot;Baylor Faces Long Road To Resolving Sex Assault Cases.&quot; Bitar said that this is a situation that has gotten away from itself and there&rsquo;s really been nothing quite like this, explaining how the chronology of how the lawsuits and plaintiffs piled up against Baylor.</p> http://www.seyfarth.com:80/news/weissbna080417 Philippe Weiss quoted in Bloomberg BNA http://www.seyfarth.com:80/news/weissbna080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in an August 4 story from Bloomberg BNA, &quot;Vacated Vacations: Scaling Back Time Off Has Consequences.&quot; Weiss said that employers may cancel vacations because something major occurred. He said that the practical reality is if you don&rsquo;t follow your own policy or handbook you can be at legal jeopardy.</p> http://www.seyfarth.com:80/news/shermangtm080417 Andrew Sherman quoted in Global Trade Magazine http://www.seyfarth.com:80/news/shermangtm080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in an August 4 story in Global Trade Magazine, &quot;Persistence Pays Off,&quot; on export financing in the time of Trump. Sherman said that Cross-border transactions are in a bit of a holding pattern, in part due to politics. You can read the <a href="http://www.globaltrademag.com/banking/persistence-pays-off">full article here</a>.</p> http://www.seyfarth.com:80/news/boutrosvice080417 Andrew Boutros quoted in VICE http://www.seyfarth.com:80/news/boutrosvice080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 4 story from VICE, &quot;Martin Shkreli Was Just Convicted of Fraud.&quot; Boutros said that the defense&#39;s legal strategy was pushing the envelope. You can read the <a href="https://www.vice.com/en_us/article/3knxvk/martin-shkreli-was-just-convicted-of-fraud">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA080417-LE New York City’s Fair Chance Act: Final Rules and Regulations http://www.seyfarth.com:80/publications/MA080417-LE Fri, 04 Aug 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On August 5, 2017, the </em><a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/FC%20rules%206.1.17%20FINAL.pdf"><em>Final Rules and Regulations</em></a><em> for the New York City Fair Chance Act (the &ldquo;FCA&rdquo;) go into effect.&nbsp; The FCA, which is enforced by the New York City Commission on Human Rights (the &ldquo;Commission&rdquo;), makes it unlawful to request or consider an applicant&rsquo;s criminal background prior to a conditional offer of employment and imposes compliance requirements for New York City employers performing background checks on applicants and employees.&nbsp; (See our prior posts </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM061215LE.pdf"><em>here</em></a><em>,&nbsp; </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA092915LE2.pdf"><em>here</em></a><em>, </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM102315LE.pdf"><em>here</em></a><em> and </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA110915LE.pdf"><em>here</em></a><em>).</em></p> <p> <strong>The FCA</strong></p> <p> Under the FCA, employers with at least four employees are prohibited from inquiring about a job applicant&rsquo;s criminal history until after a conditional offer of employment has been made to the applicant.&nbsp; In addition, employers are prohibited from referring to criminal history in job postings, employment applications, or any type of inquiry during the interview process itself.&nbsp; Prohibited inquiries extend to conducting investigations into an applicant&rsquo;s criminal history, such as using publicly available records or conducting searches on the Internet, regardless of whether the investigations are conducted by the employer or a third party.&nbsp; There are narrow exceptions, such as for employers who are required to conduct background screens pursuant to federal, state, or local law, or subject to the rules of a financial self-regulatory organization, such as the SEC or FINRA.&nbsp;</p> <p> In the event that an employer decides to rescind the conditional offer of employment due to an applicant&rsquo;s criminal history, the FCA requires that covered the employer follow certain procedures.&nbsp; The factors outlined in Article 23-A of the New York Correction Law must be taken into consideration in order to reach a determination as to whether there is a &ldquo;direct relationship&rdquo; between the applicant&rsquo;s criminal conviction history and the job duties in question, or an unreasonable risk to people or property that would preclude the applicant from employment.&nbsp; The FCA also sets forth a fair chance process, including providing applicants with a copy of their background check report, an analysis of the factors outlined in Article 23-A (in a form prescribed by the Commission, or one that is reasonably similar) and an opportunity for the applicant to address the criminal history at issue and present mitigating information or material before the offer of employment is rescinded.</p> <p> <strong>New Guidance</strong></p> <p> <strong><em>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Per Se </em></strong><strong>Violations</strong></p> <p> The Commission has identified <em>per se</em> violations, regardless of whether adverse action is actually taken by the employer:</p> <ul> <li> Declaring, printing, or circulating of any solicitation, advertisement, policy, or publication that directly or indirectly expresses (orally or in writing) any limitation or specification in employment regarding criminal history (for example, &ldquo;no felonies,&rdquo; &ldquo;background check required&rdquo;).&nbsp; Importantly, this also applies to out-of-state employers with job postings for positions in New York City.</li> <li> Employing applications that require applicants to consent to employers running background checks or providing information regarding criminal history prior to a conditional offer of employment being issued.&nbsp; This includes the use of a multi-jurisdiction boilerplate application form that inquires as to criminal history, regardless of the use of disclaimers indicating that the applicant should disregard the specific questions if applying for a position subject to the FCA.</li> <li> Making any inquiry or statement relating to an applicant&rsquo;s criminal history before a conditional offer of employment is tendered.</li> <li> Disqualifying an applicant because they refused to respond to a prohibited inquiry regarding criminal history.</li> <li> Using publicly available records or conducting searches on the Internet to learn about an applicant&rsquo;s criminal history.&nbsp; Such searches are prohibited regardless of whether the investigations are conducted by the employer or a third party.</li> <li> Failing to comply with the fair chance process pursuant to the FCA, including providing the candidate with a criminal history report and a copy of the Article 23-A form analysis, or holding the position open for at least three business days from the candidate&rsquo;s receipt of the pre-adverse action notification letter.</li> <li> Changing the requirements of the position after learning of the applicant&rsquo;s criminal history and therefore disqualifying the applicant based upon the revised requirements.</li> </ul> <p> <em>Per se</em> violations may result in employers incurring fines based upon the employer&#39;s size and history of previous violations; they range from $500 to $3,500 for initial violations to $1,000 to $10,000 for repeat violations.&nbsp; Willful, wanton, or malicious actions found on the part of an employer may result in the Commission&rsquo;s imposition of a civil penalty of up to $250,000.&nbsp; Additionally, violations of the FCA may result in compensatory damages, punitive damages, and attorney&rsquo;s fees.&nbsp;</p> <p> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Non-Convictions and Pending Criminal Charges </strong></p> <p> The Rules emphasize that an employer can never require an applicant to disclose, nor may it consider, non-convictions (<em>i.e.</em>, criminal accusations that are not currently pending, were terminated in favor of the applicant, were adjudicated as a juvenile or resulted in a sealed conviction).&nbsp; Inquiries or consideration of non-convictions would be deemed a <em>per se </em>violation.</p> <p> The fair chance process is NOT applicable to pending criminal charges, however, employers still cannot make inquiry or explore information about such charges before a conditional offer of employment is made.</p> <p> <strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Inadvertent or Unsolicited Disclosure</strong></p> <p> If an employer inadvertently learns of an applicant&rsquo;s criminal history without solicitation or inquiry, the employer will not be liable under the FCA.&nbsp; This does not allow the employer to inquire further about the criminal history or rely on the information for hiring purposes without a conditional offer of employment being made.</p> <p> <strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Temporary Help Agencies</strong></p> <p> While temporary help agencies must comply with the FCA, the Rules recognize that conditional offers generally only make the applicant available for assignment to agency clients.&nbsp; The Rules clarify that temporary help agencies may consider only the minimum skill requirements and qualifications necessary in order to evaluate convictions to determine whether they are job-related.&nbsp; Temporary help agencies cannot make determinations about an applicant&rsquo;s suitability based upon an employer&rsquo;s preference to disqualify individuals with specific types of convictions.</p> <p> <strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Falsification</strong></p> <p> The Rules expressly provide that, &ldquo;[i]f a background check reveals that an applicant has intentionally failed to answer a legitimate question about their conviction history, the employer, employment agency, or agent thereof may revoke the conditional offer or take an adverse employment action.&rdquo;&nbsp; Rescission of the employment offer would still need to comply with the fair chance process under the FCA.</p> <p> <strong>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Rebuttable Presumption</strong></p> <p> The Rules impose a rebuttable presumption that a rescission of a conditional offer of employment was motivated by a candidate&rsquo;s criminal history.&nbsp; In order to rebut the presumption, employers can show that the rescission was based upon a permissible physical examination or material information it could not have reasonably known before extending a conditional offer or evidence that the employer had no knowledge of the candidate&rsquo;s criminal history prior to revocation.</p> <p> <strong>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Enforcement Initiatives</strong></p> <p> The Commission has implemented an early resolution program to allow employers to admit liability for <em>per se</em> violations of the FCA.&nbsp; The employer would have to accept a penalty and enter into an agreement with respect to compliance, however, the Commission reserves the discretion to conduct a full investigation and take a complaint to hearing if an early resolution would not serve the public interest.</p> <p> <strong>Employer Outlook</strong></p> <p> Employers operating in New York City have been legally obligated to comply with the FCA since October 27, 2015, however, they should take this opportunity to review their applications, job postings, policies, practices, and onboarding documents to ensure that they are prepared to comply with the more robust guidance.&nbsp; Additionally, employers should ensure that all recruiting and onboarding personnel and human resource business representatives understand the FCA compliance requirements.</p> http://www.seyfarth.com:80/publications/ts080417a Now Available! 2017-2018 Edition of the Trade Secrets and Non-Competes 50 State Desktop Reference http://www.seyfarth.com:80/publications/ts080417a Fri, 04 Aug 2017 00:00:00 -0400 <p> It has been an extraordinary year regarding trade secret and non-compete issues. We saw more and more cases filed in federal court asserting claims under the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) and for alleged violations of non-competes. Some states passed legislation further narrowing the use of non-compete agreements, and some media outlets, academics, and regulators have continued their criticism of such agreements. We expect over the next year, the law to continue to develop regarding the DTSA&rsquo;s application, definitions, scope, limitations, benefits and interpretation with regard to the immunity provisions. Our 50 State Desktop Reference is a useful guide to know how the law is currently applied in each state.</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/trade-secrets/now-available-2017-2018-edition-of-the-trade-secrets-and-non-competes-50-state-desktop-reference/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=c29816a7b8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-c29816a7b8-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/erisa080417 Plotting A Course To Defeat Claims Of Insurer Bias http://www.seyfarth.com:80/publications/erisa080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> <em>Cooper v. Metropolitan Life Insurance Company</em>, No 16-3429, 2017 WL 2853729 (8th Cir. July 5, 2017), is a fairly typical ERISA long-term disability case, but has unusually strong pro-insurer holdings. On appeal from a summary judgment win for MetLife, the Eight Circuit conclusively rejected the plaintiff&rsquo;s claim that the insurer&rsquo;s dual role as decisionmaker and payor of benefits warranted a closer review of its decision.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/08/04/plotting-a-course-to-defeat-claims-of-insurer-bias/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=219c559804-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-219c559804-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT080417 The Week in Weed: August 4, 2017 http://www.seyfarth.com:80/publications/TBT080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Marijuana Legalization Law Would Free People Behind Bars for Weed Offenses</p> <p> (Newsweek: All News, 2 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-4-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=221152c38e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-221152c38e-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/wh080317 Can We Finally Retire the Notions of Construing The FLSA’s Overtime Provisions Broadly But Its Exemptions Narrowly? http://www.seyfarth.com:80/publications/wh080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> As our readers saw <a href="http://www.wagehourlitigation.com/misclassification/making-a-mountain-of-the-administrativeproduction-dichotomy-molehill/" rel="noopener noreferrer" target="_blank">earlier this week</a>, the Ninth Circuit recently issued a decision in <em>McKeen-Chaplin v. Provident Bank</em>, turning the traditional administrative vs. production dichotomy of the administrative exemption on its head. In <em>Provident Bank</em>, the Ninth Circuit held that the bank&rsquo;s mortgage underwriters are not exempt because their duties go to the heart of marketplace offerings rather than the administration of the bank&rsquo;s business.</p> <p> <a href="http://www.wagehourlitigation.com/misclassification/can-we-finally-retire-the-notions-of-construing-the-flsas-overtime-provisions-broadly-but-its-exemptions-narrowly/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=fb31928a28-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-fb31928a28-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc080317 Seyfarth Shaw Submits Comments On Needed Reform To Rule 30(b)(6) http://www.seyfarth.com:80/publications/wc080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> As most employers are aware, Rule 30(b)(6) allows a party to take the deposition of an organization by requiring the designation of an officer, director, managing agent, or other person competent to testify on a potentially wide range of topics requested by the opposing party. &nbsp;</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/seyfarth-shaw-submits-comments-on-needed-reform-to-rule-30b6/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=d0ef240c1f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-d0ef240c1f-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/BTIassociates080317 Seyfarth Associates Recognized by Corporate Counsel in New BTI Report http://www.seyfarth.com:80/news/BTIassociates080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP associates have been ranked among the industry&rsquo;s &ldquo;best&rdquo; by corporate counsel in a new report from BTI Consulting. According to BTI&rsquo;s Law Firms with the Best Associates, top in-house counsel recognized Seyfarth for &ldquo;Standout Associates&rdquo; - those who gain the respect and recognition of clients.</p> <p> &ldquo;This honor is further proof of what we already know here inside the firm: Seyfarth associates are among the most skilled lawyers in the profession, consistently delivering outstanding work while providing excellent client service,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> BTI&rsquo;s results are based solely on in-depth telephone interviews with leading legal decision makers. You can read the<a href="http://www.bticonsulting.com/themadclientist/the-law-firms-with-the-best-associates"> full report here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/tomaszewski080317 John Tomaszewski quoted in Law360 http://www.seyfarth.com:80/news/tomaszewski080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> John Tomaszewski was quoted in a August 3 story from Law360, &quot;Data Breach Suits Find Easier Path With DC Circ. Ruling,&quot; on how a D.C. Circuit recently embraced the premise that the risk of future harm can be enough to meet the Spokeo standing bar in a data breach case involving a health insurer, deepening a circuit split that&rsquo;s been fueled in part by judges&rsquo; growing familiarity with how such intrusions play out. Tomaszewski said both the bench and the plaintiffs bar have evolved in their understanding of data breaches and the harms they potentially cause.</p> http://www.seyfarth.com:80/news/grossenbacherbna080217 Karla Grossenbacher quoted in Bloomberg BNA http://www.seyfarth.com:80/news/grossenbacherbna080217 Wed, 02 Aug 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in a August 2 story from Bloomberg BNA, &quot;CAN I FIRE SOMEONE FOR TWEETING THAT?,&quot; on her discussion of the &quot;e-workplace&quot; during the National Employment Law Institute&#39;s annual Employment Law Update in Washington, D.C. Grossenbacher said that while most employers by now have in place a policy, or several policies, governing workplace communications, those policies don&#39;t often keep up with the technology.</p> http://www.seyfarth.com:80/publications/CP080217 What’s Up With The DLSE? Latest Enforcement Actions http://www.seyfarth.com:80/publications/CP080217 Wed, 02 Aug 2017 00:00:00 -0400 <p> The DLSE enforces California labor laws. In two recent enforcement actions, the DLSE collectively recovered over one million dollars, so California employers should read on to find out more about this robust administrative agency.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/02/whats-up-with-the-dlse-latest-enforcement-actions/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=86c3b18dc8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-86c3b18dc8-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/soloweyneih080117 Dawn Solowey authored an article in New England In-House http://www.seyfarth.com:80/publications/soloweyneih080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Dawn Solowey authored an August 1 article in New England In-House, &quot;Steps for preparing for an appellate argument.&quot; The article provides a checklist of steps to ensure the depth and breadth of preparation required to make the most compelling presentation. You can read the <a href="http://newenglandinhouse.com/2017/08/16/steps-for-preparing-for-an-appellate-argument/">full article here</a>.</p> http://www.seyfarth.com:80/publications/wc080117 Massachusetts Federal Court Doubles Down On Disparate Impact Ruling Against City Of Boston http://www.seyfarth.com:80/publications/wc080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> In <em>Smith v. City of Boston</em>, Plaintiffs brought suit against their employer, the City of Boston (the &ldquo;City&rdquo;), challenging the City&rsquo;s police promotional exam from sergeant to lieutenant.&nbsp; Plaintiffs alleged that the exam had a disparate impact on racial minorities and was invalid under Title VII of the Civil Rights Act of 1964 (&ldquo;Title VII&rdquo;). &nbsp;</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/massachusetts-federal-court-doubles-down-on-disparate-impact-ruling-against-city-of-boston/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=a9061e546d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-a9061e546d-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wls080117 United we stand. But lawfully. http://www.seyfarth.com:80/publications/wls080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/08/united-we-stand-but-lawfully/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=eb49570606-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-eb49570606-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL080117 Watch Out: Workplace Smells, ADA Disability, Telecommuting, and an EEOC Lawsuit http://www.seyfarth.com:80/publications/EL080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to &ldquo;correct unlawful employment practices on the basis of disability.&rdquo; &nbsp;In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a &ldquo;qualified individual with a disability,&rdquo; with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/watch-out-workplace-smells-ada-disability-telecommuting-and-an-eeoc-lawsuit/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=896cf9ffb8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-896cf9ffb8-73179553">click here</a>.</p> http://www.seyfarth.com:80/news/equalityillinois080117 Seyfarth Recognized as a Top Illinois Law Firm for LGBTQ Equality by Equality Illinois http://www.seyfarth.com:80/news/equalityillinois080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP has been recognized as a Top Illinois Law Firm for LGBTQ Equality by Equality Illinois. Equality Illinois recognized law firms in Illinois for leading the way in 2017 in providing a welcoming and fair work environment for LGBTQ employees and for supporting the LGBTQ community.</p> <p> &ldquo;At Seyfarth, commitment to diversity and inclusion is a core value. We strive every day to make the firm inclusive and welcoming for employees and clients, to develop LGBT-inclusive employment and employee-benefit best practices, and to contribute to the LGBT community both through pro-bono work and through our deep commitment to local and national LGBT organizations,&rdquo; said Sam Schwartz-Fenwick, partner and national chair of Seyfarth&rsquo;s LGBT Affinity Group.</p> <p> The recognition results from the annual Equality Illinois Law Firm Survey, which found that more law firms are willing to create affirming work spaces for their own employees, engage the LGBTQ community and demand that the vendors and contractors with whom they work show the same respect. You can read the <a href="http://www.equalityillinois.us/wp-content/uploads/2017/07/Equality-Illinois-Raising-the-Bar-2017.pdf">full Equality Illinois report here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/rodriguezlaw360073117 Leon Rodriguez quoted in Law360 http://www.seyfarth.com:80/news/rodriguezlaw360073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 31 story from Law360, &quot;What To Know About New Acting DHS Chief Elaine Duke.&quot; Rodriguez said that while he didn&rsquo;t know Duke personally, the news of her appointments has received positive feedback among his professional circle.</p> http://www.seyfarth.com:80/publications/OMM073117-LE VETS-4212 Report: 2017 Filing Cycle starts August 1, 2017 http://www.seyfarth.com:80/publications/OMM073117-LE Mon, 31 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Tomorrow marks the first day that Federal contractors subject to reporting requirements under the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (VEVRAA or &ldquo;the Act&rdquo;) may file their VETS-4212 reports. &nbsp;Generally, a contractor with a federal contract of $150,000 or more must submit the annual reports, which provide information on the contractor&rsquo;s efforts to hire and employ protected veterans.&nbsp; In 2017, the report must be submitted no later than September 30th.&nbsp;</em></p> <p> <strong>What to file? </strong></p> <p> VEVRAA requires Federal contractors and subcontractors covered by the Act&rsquo;s affirmative action provisions to report annually the number of employees in their workforces who are &ldquo;protected veterans.&rdquo; &nbsp;&ldquo;Protected veteran&rdquo; includes:&nbsp;</p> <ul> <li> Disabled veterans;</li> <li> Active duty wartime or campaign badge veterans;</li> <li> Armed Forces service medal veterans (veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985); and</li> <li> Recently separated veterans (veterans within 36 months from discharge or release from active duty).</li> </ul> <p> To complete the VETS-4212 Report, contractors must report employee counts for all full- and part-time employees as of the selected payroll period end date, and aggregated employee counts for all protected veterans.&nbsp;&nbsp; Employee data used for the VETS-4212 Report must be from a pay period with an ending date that is between July 1st and August 31st of the current year.&nbsp; The 12-month period preceding the selected payroll period end date is the 12-month &ldquo;reporting period.&rdquo;</p> <p> Covered contractors must also report the number of new hires and protected veteran hires during the &ldquo;reporting period.&rdquo; &nbsp;An electronic copy of the VETS-4212 Report with instructions is available on the Department of Labor&rsquo;s Veterans&rsquo; Employment &amp; Training Service (VETS) <a href="http://www.dol.gov/vets/vets4212.htm">website</a>.&nbsp;</p> <p> <strong>How to file? </strong></p> <p> Contractors are &ldquo;encouraged&rdquo; to file electronically via the VETS-4212 website, available <a href="http://www.dol.gov/vets/vets4212.htm">here</a>.&nbsp; First time filers must register via the website, found <a href="https://vets4212.dol.gov/vets4212/External/Registration">here</a> to obtain a user name and password to log in to the system.&nbsp; Contractors that have filed the VETS-4212 electronically before may access their account with the most recent user name and password.&nbsp; Additional information on filing the VETS-4212 Report can be found <a href="https://www.dol.gov/vets/vets4212.htm">here</a>.</p> <p> <strong>But what about the EEO-1 Report?</strong></p> <p> Absent any changes, beginning in 2018, employers with more than 100 employees (regardless of Federal contractor status) must submit an EEO-1 &ldquo;Component 2&rdquo; report, which discloses previous year W-2 earnings and Fair Labor Standards Act (FLSA) &ldquo;hours worked&rdquo; for all employees. <a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; Employers will submit information based on an employee workforce snapshot taken from the end of any pay period between October 1st and December 31st, in addition to aggregated W-2 and FLSA &ldquo;hours worked&rdquo; information.&nbsp;&nbsp;</p> <p> In years past, both the VETS-4212 Report and EEO-1 Report had overlapping data collection periods (July-August and July-September respectively) and filing deadlines (September 30th).&nbsp; Due to recent changes to the EEO-1 Report, the survey period for the EEO-1 has changed to <strong>October-December</strong>, and the filing deadline has moved to <strong>March 31, 2018</strong>.</p> <p> For 2017 filings, federal contractors subject to both EEO-1 Component 2 and VETS-4212 requirements will not be able to pull employee demographic data for both reports at the same time.&nbsp; This is just one of many challenges associated with the revised EEO-1 Report.&nbsp;</p> <p> In future years, contractors will be able to align the VETS-4212 and EEO-1 reporting data collection periods; but, the filing deadline for the two reports will still be different unless changed by the DOL.&nbsp; Footnote 49 of the <a href="https://www.gpo.gov/fdsys/pkg/FR-2016-07-14/pdf/2016-16692.pdf">notice</a> published in the Federal Register by the EEOC regarding the EEO-1 report stated:</p> <p style="margin-left:.5in;"> Under regulations implementing VEVRAA, certain federal contractors must report annually on form VETS&ndash;4212 the number of employees and new hires protected under VEVRAA. 41 CFR 61&ndash;300.10(d)(1)&hellip;the regulations allow contractors to select December 31st as the basis for reporting the number of employees and as the ending date of the twelve-month covered period, if the federal contractor has &lsquo;&lsquo;previous written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO&ndash;1, Standard Form 100 (EEO&ndash;1 Report).&rsquo;&rsquo; 41 CFR 61&ndash;300.10(d)(2). The implementation notice for the revised EEO&ndash;1 will serve as &lsquo;&lsquo;previous written approval&rsquo;&rsquo; from the EEOC pursuant to this Department of Labor VEVRAA rule.</p> <p> <a href="https://www.dol.gov/vets/contractor/main.htm">VETS FAQ #14</a> confirms the EEOC&rsquo;s statement regarding the VETS-4212 data collection period.&nbsp; While VETS has not issued any public guidance as to how the reporting period realignment will be implemented, DOL officials have confirmed to industry groups that Federal contractors will be able to file their 2018 VETS-4212 reports using the data collected in connection with the 2018 EEO-1 filing if contractors use December 31st as the snapshot date for data collection.</p> <p> For more on the changes to the EEO-1 Report and how employers can prepare themselves for the upcoming filing, please join Seyfarth attorneys for an August 2017 webinar.&nbsp; Topics will include:</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Description and explanation of the new EEO-1 requirements;</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Important considerations that employers should make when preparing their data for filing</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Discussion of how employers may see this data used</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Best practices for government contractors when filing EEO-1 reports</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Note that Federal contractors with between 50 and 99 employees will only be required to submit the current EEO-1 form <u>without</u> the compensation and hours worked data required in the Component 2 report.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/schwartzfenwickaba073117 Sam Schwartz-Fenwick authored an article for the ABA http://www.seyfarth.com:80/publications/schwartzfenwickaba073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick authored an article in the Summer issue of an ABA newsletter, &quot;The Future of the Federal Transgender Benefit Protections.&quot; The article discusses Section 1557 of the Affordable Care Act which prohibits discrimination on the basis of race, color, national origin, sex (including gender identity), age or disability under any health program or activity that receives federal financial assistance.</p> http://www.seyfarth.com:80/publications/TS073117 Illinois Employers Should Not Depend on Blue Penciling to Enforce Restrictive Covenants http://www.seyfarth.com:80/publications/TS073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Illinois is one of several jurisdictions that recognizes the authority of courts to blue pencil or judicially modify otherwise unenforceable restrictive covenants to be enforceable. <em>See, e.g. Weitekamp v. Lane</em>, 250 Ill. App. 3d 1017, 1028, 620 N.E.2d 454, 462 (4th Dist. 1993) (affirming judicial modification of 300-mile non-compete to specific county); <em>Arpac Corp. v. Murray</em>, 226 Ill. App. 3d 65, 80, 589 N.E.2d 640, 652 (1st Dist. 1992) (affirming the circuit court&rsquo;s modification of restrictive covenant when it was modified &ldquo;only slightly&rdquo; and holding that the balance of the restrictions were reasonable and necessary to protect Arpac&rsquo;s legitimate business interests).</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/restrictive-covenants/illinois-employers-should-not-depend-on-blue-penciling-to-enforce-restrictive-covenants/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=6f3f5037c3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-6f3f5037c3-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO073117 Regeneron v. Merus: Federal Circuit Upholds Adverse Inference of Specific Intent to Deceive the USPTO http://www.seyfarth.com:80/publications/BIO073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Inequitable conduct arises when a material reference was intentionally withheld by the patent applicant in order to deceive or mislead the examiner into granting a patent. Both materiality and intent must be proven by clear and convincing evidence.</p> <p> To read the full blog post, <a href="http://www.bioloquitur.com/regeneron-v-merus-federal-circuit-upholds-adverse-inference-specific-intent-deceive-uspto/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=7e4354eb38-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-7e4354eb38-73179529">click here</a>.</p> http://www.seyfarth.com:80/publications/EL072817 Employment Law Lookout Readers: Cast Your Vote in the ABA’s Web 100 Competition! http://www.seyfarth.com:80/publications/EL072817 Fri, 28 Jul 2017 00:00:00 -0400 <p> Just a reminder that until July 30, 2017, voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, though this year the contest is a &ldquo;Web 100&rdquo; and will include websites and social media along with legal blogs. We hope you will cast your vote today to help Seyfarth&rsquo;s Employment Law Lookout blog get on the ABA&rsquo;s list for 2017.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/employment-law-lookout-readers-cast-your-vote-in-the-abas-web-100-competition-2/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=ecd40e4edc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-ecd40e4edc-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA072817 Issue 112: Senate Health Care Reform Activity - Three Senators Derail Latest Effort at ACA Repeal http://www.seyfarth.com:80/publications/HCRMA072817 Fri, 28 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and eleventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong> In a dramatic late night, as the clock ticked down on the GOP&rsquo;s legislative window to repeal the ACA, self-proclaimed &ldquo;maverick&rdquo; John McCain joined moderate Republicans Lisa Murkoswki and Susan Collins to narrowly defeat the latest ACA repeal effort, a so-called &ldquo;skinny repeal&rdquo; bill that was released just hours earlier. &nbsp;While we have written this several times before (each time more certain than the last), it now appears the GOP will move on from its failed ACA repeal efforts to focus on other legislative initiatives. &nbsp;</em></div> <div> &nbsp;</div> <div> To understand last night&rsquo;s vote, it&rsquo;s important to take a few steps back and examine the series of events that were set in motion by the Senate&rsquo;s vote to proceed on consideration of the Better Care Reconciliation Act (BCRA) on Tuesday.&nbsp;</div> <div> <div> <br /> <strong>Tuesday, July 25th</strong></div> <ul> <li> With no margin for error, 50 Senate Republicans (plus Vice President Mike Pence, as the tie-breaker) voted to bring an ACA repeal bill to the Senate floor for debate. &nbsp;Majority Leader Mitch McConnell had been intentionally vague in the days leading up to the procedural vote on which bill would be under consideration, sensitive to the fact that every bill proposed thus far lacked the required votes. &nbsp;&nbsp;<br /> &nbsp;</li> <li> To garner the support necessary to move the legislation, McConnell had to rely on Senator John McCain&rsquo;s dramatic last minute return to Washington; (he had been convalescing in Arizona following surgery to remove a blood clot and a brain cancer diagnosis). &nbsp;<br /> &nbsp;</li> <li> Curiously, moments after casting the decisive vote to proceed, McCain took the floor to give a fiery speech blasting the process, expressing his lack of support for the BCRA, and pleading with Senators to return to &ldquo;regular order&rdquo; (passing legislation through a 60 vote majority rather than a simple majority). &nbsp;<br /> &nbsp;</li> <li> Later that same night, the Senate proceeded to vote down a version of the BCRA. &nbsp;This version of the BCRA largely tracked the version we described in <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue110_071417.pdf">Alert 110</a>, but with the addition of a $100 billion fund to help people transition from Medicaid. &nbsp; It appeared the bill needed 60 votes to pass, as it included provisions the Senate parliamentarian had ruled ineligible for passage with only 51 votes. &nbsp;Regardless, the bill fell short, garnering only 43 votes. &nbsp;Notably, given his earlier speech, McCain voted in favor of the bill. &nbsp;</li> </ul> <div> &nbsp;</div> <div> <strong>Wednesday, July 26th</strong></div> <ul> <li> To fulfill a commitment necessary to obtain Senator Rand Paul&rsquo;s vote to proceed, the Senate voted on the so-called &ldquo;Obamacare Repeal Reconciliation Act.&rdquo; &nbsp;This bill was cast as &ldquo;repeal no replace&rdquo;, although it wasn&rsquo;t a full repeal as it only repealed those revenue/budget items eligible for passage with a simple majority. &nbsp;While it was clear from statements earlier in the week that this ORRA bill would not have the votes to pass, it was seen by some as an effort by Senator McConnell to force Senate Republicans to go on record voting against a straight repeal. &nbsp;Most of those same Senators had voted for a very similar bill in 2015, which was subsequently vetoed by President Obama (<a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue111_071817.pdf">see Alert 111</a>). &nbsp;<br /> &nbsp;</li> <li> The ORRA garnered only 45 votes in support, with McCain voting against the bill.</li> </ul> <div> &nbsp;</div> <div> <strong>Thursday, July 27th</strong></div> <ul> <li> Early in the week, when it became evident that neither the BCRA nor the ORRA would have the votes to pass, there were whispers that the Senate was considering voting on a so-called &ldquo;skinny repeal&rdquo; bill. &nbsp;The idea was that the Senate would strip out all objectionable provisions of the earlier bills, focusing only on the lowest common denominators (those provisions most uniformly reviled by all Senate Republicans). &nbsp;The items rumored to be included were the individual mandate, the employer mandate, and the medical device tax. &nbsp;<br /> &nbsp;</li> <li> By Thursday, even though the bill had not yet been released, this path became the only remaining viable option. &nbsp;Senate leadership started expressing optimism about the bill&rsquo;s chances as several of the usual holdouts suggested they might be willing to vote for this bill. &nbsp;<br /> &nbsp;</li> <li> Shortly after close of business, Senators Lindsay Graham, Ron Johnson and John McCain held a surprise press conference, announcing they could not support skinny repeal unless they received assurances from Speaker of the House Paul Ryan that the House would not simply pass skinny repeal &ldquo;as-is.&rdquo; &nbsp;Instead, the three wanted Ryan to guarantee the House would conference with the Senate and come up with a more robust repeal and replace plan that could garner the necessary votes in both chambers of Congress. &nbsp;In other words, the Senators wanted a guarantee that the bill they were about to vote in favor of would never become law. &nbsp;It remained unclear what this solution would be given the months of effort put into trying to make this work, but most viewed this as an effort to simply keep the ball rolling rather than throw in the towel. &nbsp;<br /> &nbsp;</li> <li> After 8 pm Eastern Time, Speaker Ryan released a statement indicating the House was &ldquo;willing&rdquo; to go to conference on the bill. &nbsp;Graham, Johnson and McCain said this statement was insufficient and wanted further reassurances. &nbsp;A few hours later, following a call with Speaker Ryan, Graham and Johnson said they received the necessary assurances. &nbsp;However, McCain indicated he was still unsure and needed to consult with the Arizona governor. &nbsp;<br /> &nbsp;</li> <li> Just before 11 pm Eastern Time (and only a few hours before the expected vote), the Senate finally released the text of the skinny repeal bill, labeled the &ldquo;Health Care Freedom Act.&rdquo; &nbsp; At a high level, the bill included the following:</li> </ul> <ul style="margin-left: 80px;"> <li> Repeal the individual mandate<br /> &nbsp;</li> <li> Repeal the employer mandate (only through 2024 presumably because the Senate needed additional revenue <span style="white-space:pre"> </span>within a ten year window for the bill to be eligible for passage with 51 rather than 60 votes)<br /> &nbsp;</li> <li> Postpone the ACA&rsquo;s medical device tax<br /> &nbsp;</li> <li> Cut off federal funds for Planned Parenthood<br /> &nbsp;</li> <li> Expand an ACA waiver program, giving states the option to roll back certain ACA benefit mandates<br /> &nbsp;</li> <li> Expand HSA funding</li> </ul> <div> <strong>Friday, July 28th</strong></div> <ul> <li> The CBO released a budget score for the HCFA, indicating it would result in 16 million fewer insured by 2026 and a 20% spike in premiums, but that it would save $135 billion over ten years. &nbsp;This last point was key because the bill had to save at least $133 billion (the savings in the House-passed AHCA) to pass with only 51 votes. &nbsp;<br /> &nbsp;</li> <li> In the early hours of the morning, Vice President Mike Pence arrived on the Senate floor, indicating that leadership believed they would have the bare minimum - 50 votes - and that Pence would be the tie-breaker. &nbsp;<br /> &nbsp;</li> <li> What played out next was quite dramatic. &nbsp;As expected, Senate leadership entered the vote without the support of Collins and Murkowski, and they were viewed as firm &ldquo;no&rsquo;s&rdquo;, meaning the Republicans could lose no more votes. &nbsp;<br /> &nbsp;</li> <li> It quickly became apparent that something was amiss as Mike Pence was seen standing by McCain feverishly lobbying him to shift his vote, to no avail. &nbsp;The roll call began, and the remaining Republican Senators fell in line, voting &ldquo;yes&rdquo;. &nbsp;When they reached John McCain, he voted &ldquo;no&rdquo; with a thumbs down, followed by an audible gasp in the room. &nbsp;This was, perhaps, the most riveting moment involving the Maverick since Tom Cruise battled the Russians in Top Gun&trade; (perhaps a fitting analogy on many fronts). &nbsp;<br /> &nbsp;</li> <li> When it became clear the vote would fail, McConnell gave a few remarks expressing his extreme disappointment and blaming the Democrats. &nbsp;<br /> &nbsp;</li> <li> Shortly thereafter, President Trump also tweeted &ldquo;As I said from the beginning, let ObamaCare implode, then deal. Watch!&rdquo;</li> </ul> <div> <div> <strong>What&rsquo;s Next?</strong><br /> &nbsp;</div> <p> Presumably, Congress will finally move on from ACA repeal and focus on tax reform and the remaining legislative backlog that had been building as both Chambers attempted to negotiate a workable health care approach. &nbsp;Things to watch for include:</p> <ul> <li> Several moderate Republicans had expressed support for working in a bipartisan manner to shore up the individual market. &nbsp;Presumably, there would be sufficient bipartisan support to move forward legislation in this space. &nbsp;In fact, the Problem Solvers caucus, a bipartisan group of about 40 House members led by Tom Reed (R-N.Y.) and Josh Gottheimer (D-N.J.), has already been meeting about ways to fix the ACA. &nbsp;It&rsquo;s unclear whether President Trump would veto any such efforts.<br /> &nbsp;</li> <li> The Trump Administration is now in the awkward position of implementing and enforcing a law that it abhors. &nbsp;This leaves many unanswered questions, including:</li> </ul> <ul style="margin-left: 80px;"> <li> Will the IRS enforce the individual and employer mandates?<br /> &nbsp;</li> <li> Will the Trump Administration continue to allocate funding for Marketplace subsidies (and will it continue <span style="white-space:pre"> </span>to do so only on a monthly basis or will it allocate long-term funding providing insurance carriers with the <span style="white-space:pre"> </span>reassurances necessary to commit to future participation)?&nbsp;<br /> &nbsp;</li> <li> Will the regulatory agencies attempt to roll back or soften earlier guidance implementing the ACA?<br /> &nbsp;</li> <li> Some Republicans have indicated they will continue their efforts to repeal the ACA. &nbsp;We would also expect that tax reform could include some targeted repeal of certain ACA taxes (such as the ACA&rsquo;s tax on high earners).&nbsp;</li> </ul> <div> &nbsp;</div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA072817-LE Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act http://www.seyfarth.com:80/publications/MA072817-LE Fri, 28 Jul 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Effective April 1, 2018, Massachusetts will expand its anti-discrimination statute to specifically prohibit the discrimination against, refusal to hire, and the termination of individuals due to pregnancy or pregnancy-related conditions (including lactation or the need to express breast milk for a nursing child). Employers also will be required to provide reasonable accommodations to pregnant workers for conditions related to pregnancy. Massachusetts will join approximately twenty other states and the District of Columbia in expanding protections against pregnancy-related discrimination.</em></div> <div> &nbsp;</div> <div> On July 27, 2017, Governor Baker signed into law the Pregnant Workers Fairness Act, which will take effect on April 1, 2018. The law will expand the Commonwealth&rsquo;s anti-discrimination statute, making it unlawful for an employer to discriminate against, refuse to hire, or terminate an individual due to pregnancy or pregnancy-related conditions, including lactation or the need to express breast milk for a nursing child.</div> <div> &nbsp;</div> <div> An employer will be required to provide a reasonable accommodation for an employee&rsquo;s &ldquo;pregnancy or any condition related to the employee&rsquo;s pregnancy,&rdquo; if the employee requests such an accommodation and provided that the requested accommodation would not impose an undue hardship on the employer. Employers will be required to engage in a timely, good faith, and interactive process to determine an effective, reasonable accommodation. However, the statute includes a non-exhaustive list of potential accommodations:</div> <div> &nbsp;</div> <ul> <li> More frequent or longer paid or unpaid breaks;</li> <li> Time off to attend to a pregnancy complication or recover from childbirth, with or without pay;</li> <li> &nbsp;Acquisition or modification of equipment or seating;</li> <li> A temporary transfer to a less strenuous or hazardous position;</li> <li> Job restructuring;</li> <li> Light duty;</li> <li> Private non-bathroom space for expressing breast milk;</li> <li> Assistance with manual labor; and</li> <li> Modification of work schedule.</li> </ul> <div> &nbsp;</div> <div> In addition, the law will prohibit employers from:</div> <div> &nbsp;</div> <ul> <li> Taking an adverse action against an employee (including failing to reinstate to the original or equivalent position) for requesting or using a reasonable accommodation;</li> <li> Denying an employment opportunity because of the need for a reasonable accommodation related to the employee&rsquo;s pregnancy or pregnancy-related condition;</li> <li> Requiring an employee to accept an accommodation that the employee chooses not to accept if that accommodation is unnecessary to enable the employee to perform the essential functions of the job;</li> <li> Requiring an employee to take leave if another reasonable accommodation could be provided without imposing undue hardship on the employer; and</li> <li> Refusing to hire a person because of pregnancy or a pregnancy-related condition, so long as that person could otherwise perform the essential functions with a reasonable accommodation, and doing so would not impose an undue hardship on the employer.</li> </ul> <div> An employer will be able to deny a requested accommodation if it can demonstrate that the requested accommodation would impose an undue hardship. Whether an accommodation would impose an undue hardship depends on the cost of the accommodation, the financial resources of the employer, the overall size of the employer&rsquo;s business with respect to number of employees, the nature of the employer&rsquo;s facilities, and the impact of the accommodation on the employer&rsquo;s operations.</div> <div> Further, the law specifies that employers will not be required to displace a more senior employee in order to grant an accommodation, or promote an employee who cannot perform the essential functions of the job with or without reasonable</div> <div> accommodation.</div> <div> &nbsp;</div> <div> As part of the interactive process, employers will be permitted to require documentation from an appropriate health care provider regarding most requested accommodations. However, an employer will be <u>prohibited</u> from requiring documentation for four accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.</div> <div> &nbsp;</div> <div> Employers are required to distribute written notice to employees (through a handbook, pamphlet, or other means) of their rights to be free from discrimination in relation to pregnancy and pregnancy-related conditions, including the right to a reasonable accommodation for pregnancy-related conditions. Moreover, employers must provide written notice to new employees at or prior to commencement of their employment, and to employees who notify the employer of a pregnancy or pregnancy-related condition within ten days of such notification.</div> <div> &nbsp;</div> <div> With its enactment, the law will allow individuals to pursue claims for discrimination on the basis of pregnancy or pregnancy related conditions like any other claim of discrimination under Section 4 of General Laws Chapter 151B, the state antidiscrimination</div> <div> law, and potentially recover damages, attorneys&rsquo; fees, costs, and injunctive relief.</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/conleylaw360072817 Ben Conley quoted in Law360 http://www.seyfarth.com:80/news/conleylaw360072817 Fri, 28 Jul 2017 00:00:00 -0400 <p> Ben Conley was quoted in a July 28 story from Law360, &quot;Attys Predict Next Steps After ACA Repeal Failure.&quot; Conley said that, while the Trump administration can make some regulatory adjustments on the margins, he expects that the core of the law will remain intact, and the regulatory agencies only have so much flexibility given the existing statutory and regulatory framework.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm072717 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a July 27 story from SHRM, &quot;Trump&rsquo;s Tweets Against Transgender Troops May Lead to Workplace Backlash,&quot; on how the marginalization of transgender people in the federal workforce might be mirrored in the civilian workplace. Schwartz-Fenwick said the new policy likely will be challenged as a form of sex discrimination barred by the Equal Protection Clause of the 14th Amendment. You can read the <a href="http://Sam Schwartz-Fenwick was quoted in a July 27 story from SHRM, &quot;Trump’s Tweets Against Transgender Troops May Lead to Workplace Backlash,&quot; on how the marginalization of transgender people in the federal workforce might be mirrored in the civilian workplace. Schwartz-Fenwick said the new policy likely will be challenged as a form of sex discrimination barred by the Equal Protection Clause of the 14th Amendment. You can read the full article here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/trump-tweets-transgender-ban-military.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360072717 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 27 story from Law360, &quot;New Joint-Employer Bill Has Worker Advocates Leery,&quot; on the news that House lawmakers introduced a bill to narrow the definition of joint employment under federal wage and labor law. Babson said that the new bill would give employers an extra measure of confidence that their contractual relationships for the efficient running of their businesses do not expose them to liability that&rsquo;s not their own.</p> http://www.seyfarth.com:80/publications/WC072717 Cutting Class: Teachers’ Motion For Class Certification Denied In Race Discrimination Class Action http://www.seyfarth.com:80/publications/WC072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> In Gittens v. The School Board of Lee County, Florida, No. 2:16-CV-412, 2017 U.S. Dist. LEXIS 115987 (M.D. Fla. July 7, 2017), Plaintiffs brought suit against their employer, the School Board of Lee County, Florida (&ldquo;School District&rdquo;), alleging that the School District discriminated against them on the basis of their race, i.e., African-American. &nbsp;After Plaintiffs moved for class certification, Judge Mac R. McCoy of the U.S. District Court for the Middle District of Florida denied their motion, finding that Plaintiffs &ldquo;fail[ed] to provide the necessary glue to hold the putative class claims together under [the] commonality analysis,&rdquo; that was set forth in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). &nbsp;Id. at *34.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/07/cutting-class-teachers-motion-for-class-certification-denied-in-race-discrimination-class-action/">click here</a>.</p> http://www.seyfarth.com:80/publications/EA072717-UK UK Employment Tribunal Fees Abolished with Immediate Effect http://www.seyfarth.com:80/publications/EA072717-UK Thu, 27 Jul 2017 00:00:00 -0400 <div> <em>The regime by which claimants in the UK bring employment-related claims is set for radical change after the UK&rsquo;s highest court ruled that the current fee system is unlawful. With immediate effect, claimants no longer have to pay fees to bring claims in the Employment Tribunals. A spike in claims is expected.</em></div> <div> &nbsp;</div> <div> In <em>R (on the application of UNISON) v Lord Chancellor 2017</em>, the Supreme Court (the highest legal authority in the UK) has unanimously ruled that the Employment Tribunal (ET) fee regime introduced by the government 4 years ago is unlawful. &nbsp;The fee regime required those bringing claims in the ET, and those appealing to the Employment Appeal Tribunal (EAT), to pay fees on filing a claim and at hearing stage (subject to very limited exemptions). This ruling means that, if and until a replacement scheme is put in place, with <u>immediate effect</u>, no fees are payable in the Tribunal system. &nbsp;Further, the UK government will have to reimburse all fees that have been paid to date, estimated to be around &pound;30m. &nbsp;</div> <div> &nbsp;</div> <div> <strong>How did this decision come about?</strong></div> <div> &nbsp;</div> <div> The UK government introduced the Tribunal fee system in 2013 with a stated aim of reducing &ldquo;unmeritorious&rdquo; employee claims and funding the cost of the Tribunal system. &nbsp;This was coupled with a requirement that employees seek to conciliate claims before being allowed to litigate. The volume of Tribunal claims has since reduced by 70%. &nbsp;A major UK trade union, UNISON, challenged the legality of the fee regime on the basis that it unreasonably restricted access to justice under both UK law and EU law, and that it discriminated against women because higher fees were payable to bring discrimination claims. &nbsp;The challenge has now succeeded on all counts in the UK&rsquo;s highest court, the Supreme Court.</div> <div> &nbsp;</div> <div> The court held that the fee regime was not justified. &nbsp;The aims of the scheme were not met, and the level of the fees was disproportionate to the (often low) value of claims and to average incomes in the UK.</div> <div> &nbsp;</div> <div> The requirement to conciliate claims (via a third party, ACAS) remains in place and is not impacted by this decision.</div> <div> &nbsp;</div> <div> <strong>What are the implications for employers?</strong></div> <div> &nbsp;</div> <div> Put simply, we are likely to see a noticeable rise in claims brought against employers over the coming months, which may possibly then reduce if the government introduces a revised, lower fee regime. There is also an open question as to whether employees who are outside the time limit to bring claims can argue they should be allowed to bring claims now, on the basis they were deterred from bringing claims by the fee regime.&nbsp;</div> <div> &nbsp;</div> <div> Given the expected uptick in litigation, employers need to take extra care to avoid prompting employee claims, and to identify and resolve valid claims at an early stage.</div> http://www.seyfarth.com:80/publications/ADA072717 Justice Department Says Vending Machines Are Not Places Of Public Accommodation—And So Much More http://www.seyfarth.com:80/publications/ADA072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> The Supreme Court recently asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation covered by Title III of the ADA. &nbsp;The Court&rsquo;s request related to a pending a Petition for Certiorari filed by a blind plaintiff who unsuccessfully sued Coca-Cola for allegedly owning and/or operating vending machines that are not independently usable by the blind. &nbsp;Both the District Court and the Fifth Circuit had concluded that such machines are not public accommodations under the ADA.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/07/justice-department-says-vending-machines-are-not-places-of-public-accommodation-and-so-much-more/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=c05b6db1cf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-c05b6db1cf-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/LR072617 A Changing of the Guard: DC Circuit Finds that Casino Security Technicians Are “Guards” Under the NLRA. http://www.seyfarth.com:80/publications/LR072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> The D.C. Circuit Court of Appeals applied a broad definition of who constitutes a statutory &ldquo;guard&rdquo; under the NLRA, finding that security technicians at two Las Vegas casinos were guards who could not be represented by a non-guard union.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/07/26/a-changing-of-the-guard-dc-circuit-finds-that-casino-security-technicians-are-guards-under-the-nlra/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=cec9c2a3fe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-cec9c2a3fe-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM072617-LE UPDATE: San Francisco’s Salary History Ban Signed Into Law http://www.seyfarth.com:80/publications/OMM072617-LE Wed, 26 Jul 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>Mayor Ed Lee signed the &ldquo;Parity in Pay Ordinance&rdquo; (&ldquo;Ordinance&rdquo;) on July 19, 2017, prohibiting employers from inquiring about a job applicant&rsquo;s salary history. The law will go into effect on July 1, 2018 (with attendant penalties to take effect on January 1, 2019).</em></div> <div> &nbsp;</div> <div> <strong>What is Forbidden?</strong></div> <div> &nbsp;</div> <div> The ordinance bans employers, those with contracts with the City, and their agents from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant, and from asking applicants about their current or past salary. The ordinance also prohibits disclosing a current or former employee&rsquo;s salary history without that employee&rsquo;s authorization, unless the salary history is publicly available.</div> <div> &nbsp;</div> <div> <strong>Changes to the Ordinance</strong></div> <div> &nbsp;</div> <div> The ordinance has evolved since its initial introduction in April 2017, as discussed <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">here</a>, with the Government Audit and Oversight Committee weighing in on the final version of the ordinance that was presented to the Supervisors for a vote. The following highlights reflect the most significant changes to the revised <a href="https://sfgov.legistar.com/View.ashx?M=F&amp;ID=5276508&amp;GUID=E138BD49-C709-4371-941A-0865F7C5B4E8">version</a> of the salary history ban:</div> <div> &nbsp;</div> <div> &bull; The salary history ban covers an application for any type of job for wages, including temporary or seasonal work and commissioned work.</div> <div> &nbsp;</div> <div> &bull; The ordinance no longer impacts just those seeking employment within the geographic boundaries of the City. Now, if the sought after employment will be performed on City property or under contract funded by the City, employers may not ask about the applicant&rsquo;s current or past salary. According to Supervisor Mark Farrell&rsquo;s legislative aide, &ldquo;City property&rdquo; includes San Francisco Airport, although the airport is technically outside the city limits.</div> <div> &nbsp;</div> <div> &bull; The revised ordinance clarifies that the ban will not prohibit a prospective employer and applicant from discussing the applicant&rsquo;s pay expectations or any financial benefit the applicant would have to forego in order to take the new job (e.g., unvested equity or a future bonus through a current employer).</div> <div> &nbsp;</div> <div> &bull; If an applicant voluntarily, and without prompting by the prospective employer, discloses the applicant&rsquo;s salary history, the ordinance now permits the employer to consider that information. However, the ordinance clarifies that salary history by itself cannot be used to justify paying any employee of a different sex, race or ethnicity less than an applicant or prospective employee for doing substantially similar work under similar working conditions, in accordance with California Labor Code Section 1197.5.</div> <div> &nbsp;</div> <div> &bull; The ordinance instructs the City&rsquo;s Office of Labor Standards Enforcement (the &ldquo;OLSE&rdquo;) to create a posting detailing applicants&rsquo; rights that the employer must display in a conspicuous place.</div> <div> &nbsp;</div> <div> &bull; Penalties are now even steeper. Starting in January 2019, employers who violate the ordinance face penalties ranging from $100 to $500 per employee per violation. While contractors with the City may only be fined between $50 and $100 per violation, the City also can exercise the option to terminate the contract for violations of the salary ban with all outstanding moneys due being forfeited and retained by the City.</div> <div> &nbsp;</div> <div> &bull; If a single act by an employer impacts multiple applicants at the same time&mdash;e.g., if a written job application for a particular position includes a question about the applicant&rsquo;s salary history&mdash;the OLSE has the discretion to treat that violation as a single violation.</div> <div> &nbsp;</div> <div> Employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices.</div> <div> &nbsp;</div> <div> We are tracking these efforts in the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">50-State Desktop Pay Equity Reference.</a></div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/passantinotlnt072617 Alex Passantino authored an article in TLNT http://www.seyfarth.com:80/publications/passantinotlnt072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino authored a July 26 article in TLNT, &quot;Labor Department Asks Employers For Input On Revising Overtime Rules.&quot; The article discusses the U.S. Department of Labor&#39;s anticipated Request for Information on the White-Collar Overtime Exemption. You can read the <a href="https://www.eremedia.com/tlnt/labor-department-asks-employers-for-input-on-revising-overtime-rules/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP072617 San Francisco-Peculiarities: The City’s Ultra-Unique Employment Landscape http://www.seyfarth.com:80/publications/CP072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> As if high rent and California&rsquo;s peculiar laws were not enough to worry about, San Francisco employers must also comply with City-specific ordinances. Trailblazing City requirements often exceed state laws and have sometimes been harbingers of state-level enactments. One might say that San Francisco, with its distinctive laws, is to California what California is to the rest of the country. We highlight the Big Eight SFO peculiarities, below.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/26/san-francisco-peculiarities-the-citys-ultra-unique-employment-landscape/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=d4d9fded7e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-d4d9fded7e-73179533">click here</a>.</p> http://www.seyfarth.com:80/news/rooneychronicle072617 Seyfarth Shaw profiled in the Houston Chronicle http://www.seyfarth.com:80/news/rooneychronicle072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw was profiled in a July 26 story from the Houston Chronicle, &quot;Seyfarth Shaw adopts NFL &quot;Rooney Rule&quot; to spur minority hiring.&quot; Seyfarth Shaw imposed the rule two years ago with its labor and employment section, the biggest department. Maechtlen said the firm is expanding the places in which it recruits new lawyers, going beyond typical law school recruiting efforts or spreading the word through friends. You can read the <a href="http://www.chron.com/business/bizfeed/article/Seyfarth-Shaw-adopts-NFL-Rooney-Rule-to-spur-11387030.php">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinoshrm072617 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 26 story from SHRM, &quot;DOL Asks if Multiple Salary Levels for Overtime Exemptions Are a Good Idea,&quot; on how the request for information also seeks reaction to automatic updates of overtime rule. Passantino said that employing a cost-of-living-based salary test certainly would address a number of the concerns raised by employers in the previous go-round. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ot-rfi-multiple-salary-levels.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinohre072617 Alex Passantino quoted by Human Resource Executive http://www.seyfarth.com:80/news/passantinohre072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 26 story from Human Resource Executive, &quot;Comment Period Begins for OT Rule,&quot; on how the Department of Labor is expected to publish in the Federal Register its anticipated Request for Information on its overtime rule. Passantino said that the issues the DOL seeks comment on include whether the 2004 salary test should be updated based on inflation, and if so, which measure of inflation; whether duties test changes would be necessary if the increase was based on inflation; and other questions. You can read the <a href="http://blog.hreonline.com/2017/07/26/comment-period-begins-for-ot-rule/">full article here</a>.</p> http://www.seyfarth.com:80/news/tomaszewskibna072617 John Tomaszewski quoted in Bloomberg BNA http://www.seyfarth.com:80/news/tomaszewskibna072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> John Tomaszewski was quoted in a July 26 story from Bloomberg BNA, &quot;Corporate Cyber Risk Disclosures Jump Dramatically in 2017,&quot; on how more public companies described &ldquo;cybersecurity&rdquo; as a risk in their financial disclosures in the first half of 2017 than in all of 2016, suggesting that board and C-suite fears over data breaches may be escalating. Tomaszewski said that the increasing prevalence of corporate warnings about cyber threats also reflects that in this day and age, all businesses are data businesses.</p> http://www.seyfarth.com:80/news/seyfarthprobono072617 Seyfarth profiled in Bloomberg Law http://www.seyfarth.com:80/news/seyfarthprobono072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Seyfarth was profiled in a July 26 story from Bloomberg Law, &quot;Seyfarth Shaw Pro Bono Gets Big Win for Inmate.&quot; Seyfarth came out of the second of two settlement conferences with a big win for their client, who&#39;d been injured while in custody at a supermax state prison in California. Michael Wahlander said that it was a very collaborative experience working with the client. Tripper Ortman said that this work was life-changing and reminded us why we went to law school in the first place.</p> http://www.seyfarth.com:80/news/schwartzfenwickbna072617 Sam Schwartz-Fenwick quoted in Bloomberg BNA http://www.seyfarth.com:80/news/schwartzfenwickbna072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a July 26 story from Bloomberg BNA, &quot;After Military Ban, Are Transgender Health Protections Next?,&quot; on how the President&#39;s announced ban on transgender people serving in the military is adding to speculation that a health care regulation benefiting transgender people may be on the chopping block. Schwartz-Fenwick thinks that it is very likely that HHS is going to try to unwind the Section 1557 regulations that address transgender protections.</p> http://www.seyfarth.com:80/news/workingmother072517 Seyfarth Named as a 2017 “Best Law Firm for Women” by Working Mother http://www.seyfarth.com:80/news/workingmother072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced that for the seventh consecutive year, the firm was named among <em>Working Mother</em>&rsquo;s annual list of &ldquo;Best Law Firms for Women&rdquo; in recognition of using best practices in retaining and promoting women lawyers. The annual list recognizes 50 U.S. law firms for their advancement of women and implementation of work-life balance initiatives.</p> <p> The full list of the 2017 <em>Working Mother</em> &ldquo;Best Law Firms for Women&rdquo; is posted <a href="http://www.workingmother.com/best-law-firms-for-women-2017">here</a> with highlights on representation of women and women of color in key leadership roles, and usage and promotion rates for reduced-hour lawyers, among other key points. For the first time, Working Mother worked in collaboration with the <em>ABA Journal</em> as a knowledge partner. In this year&rsquo;s report on the top 50 law firms, Seyfarth is recognized for the following:</p> <p> <em>Learning to be mindful, resilient and community-minded are all aspects of this firm&rsquo;s SeyfarthLife initiative, which uses affinity groups, benefits, courses and other resources to add balance to attorneys&rsquo; lives. Unlimited vacation, alternative schedules and 18 weeks&rsquo; primary-caregiver leave help too. </em></p> <p> &ldquo;We are honored to be consistently recognized for our diversity initiatives which enable the highest levels of performance and career satisfaction for all attorneys,&rdquo; said Ellen McLaughlin, national chair of Seyfarth Women&rsquo;s Network. &ldquo;Seyfarth women hold significant leadership roles within the firm and are paving the way for our next generation of women leaders.&rdquo;</p> <p> Law firms completed an extensive application in the areas of workforce profile, flexibility and development and retention of women. Best Law Firms were selected from a pool of self-selected applicant firms with 50 or more lawyers in the U.S. Statistics reported are aggregated from data provided by the firms collected from the full year of 2016.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/mclaughlin072517 Ellen McLaughlin quoted in Working Mother http://www.seyfarth.com:80/news/mclaughlin072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Ellen McLaughlin was quoted in a July 25 story from Working Mother, &quot;The State of Flexible Work at Law Firms,&quot; on how at the Best Law Firms for Women, attorneys at all levels work from home and with reduced hours. McLaughlin said that remote work allows Seyfarth to get and keep a bunch of talented women&mdash;in particular, staff attorneys who are given the chance to become associates. You can read the <a href="http://www.workingmother.com/best-law-firms-flex-equity">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinobna072517 Alex Passantino quoted in Bloomberg BNA http://www.seyfarth.com:80/news/passantinobna072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 25 story from Bloomberg BNA, &quot;Labor Department Goes Live With Request for Overtime Rule Input,&quot; on how some of the employer commenters who weighed in on DOL&rsquo;s 2015 proposed rule suggested setting several salary levels depending on a region&rsquo;s cost of living or on the number of employees at the business. Passantino said that by seeking input on this very topic in the new RFI, the department isn&rsquo;t necessarily indicating that it&rsquo;s leaning towards going in that direction for the new rule.</p> http://www.seyfarth.com:80/publications/wc072517 D.C. Circuit Finds That Absent Class Members May Intervene On Appeal To Pursue Rule 23(f) Petition Abandoned By Class Representative http://www.seyfarth.com:80/publications/wc072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> In <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/E1EE2A1D9BDCAB49852581640051B0B3/$file/15-8009.pdf"><em>Harrington v. Sessions</em></a>, No. 15-8009, No. 16-5285 &amp; No. 16-5286, 2017 U.S. App. LEXIS 13111 (D.C. Cir. July 21, 2017), the D.C. Circuit addressed whether it had jurisdiction to rule upon absent class members&rsquo; motion to intervene in an appellate court proceeding to pursue a Rule 23(f) petition abandoned by a settling named plaintiff-appellant.</p> <p> <a href="http://www.workplaceclassaction.com/2017/07/d-c-circuit-finds-that-absent-class-members-may-intervene-on-appeal-to-pursue-rule-23f-petition-abandoned-by-class-representative/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=7f2821bf16-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-7f2821bf16-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH072517 DOL Seeks Comment on Overtime Rule http://www.seyfarth.com:80/publications/WH072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> On July 26, 2017, the U.S. Department of Labor will publish its anticipated&nbsp;<a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/RFI-2017.pdf" rel="noopener noreferrer" target="_blank">Request for Information</a> on the White-Collar Overtime Exemption in the Federal Register.&nbsp;The RFI will give the regulated community 60 days to provide its comments in response.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/dol-seeks-comment-on-ot-rule/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8f0f0b8301-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8f0f0b8301-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL072517 Refusal To Hire Medical Pot Users Just Got Riskier–At Least In Rhode Island http://www.seyfarth.com:80/publications/EL072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles&rsquo; song &ldquo;With A Little Help From My Friends&rdquo;: &ldquo;I get high with a little help from my friends.&rdquo; &nbsp;In the 32-page opinion followed this witty opening, the Court held that an employer&rsquo;s refusal to hire an individual based on her medical marijuana use violated Rhode Island&rsquo;s medical marijuana statute, and the employer&rsquo;s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (&ldquo;RICRA&rdquo;).</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/refusal-to-hire-medical-pot-users-just-got-riskier-at-least-in-rhode-island/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=34ddbe0deb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-34ddbe0deb-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM072517-LE Premium Processing Resumes for Cap-Exempt H-1B Employers http://www.seyfarth.com:80/publications/OMM072517-LE Tue, 25 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On July 24, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it would resume premium processing for H-1B petitions for certain cap-exempt employers effective immediately.</em></p> <p> USCIS temporarily suspended premium processing of H-1B petitions on April 1, 2017.&nbsp; USCIS implemented the temporary hold to address significant backlogs in case processing.&nbsp; At this time, USCIS has reinstated premium processing for H-1B petitions filed by certain cap-exempt employers.&nbsp; An employer is &ldquo;cap-exempt&rdquo; if it falls into one of the following categories:</p> <ul> <li> An institution of higher education;</li> <li> A nonprofit related to or affiliated with an institution of higher education; or</li> <li> A nonprofit research or governmental research organization.</li> </ul> <p> In addition, premium processing will resume for petitions in which the foreign worker will be employed at a qualifying cap-exempt institution, organization, or entity.</p> <p> USCIS stated that it plans to resume premium processing for other H-1B petitions in the coming months as workloads permit.&nbsp; USCIS made a similar announcement in June 2017 permitting the filing of premium processing for H-1Bs filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency (IGA) waivers.</p> <p> <strong>Summary</strong></p> <p> Premium processing of H-1B petitions for cap-exempt employers and petitions filed on behalf of physicians under the waiver programs has resumed. &nbsp;At this time, all other H-1B petitions can only be filed using regular processing. Seyfarth Shaw LLP will continue to monitor USCIS announcements with regard to resuming the premium processing of other types of H-1B petitions.</p> http://www.seyfarth.com:80/publications/RD072517-LE Refusal To Hire Medical Pot Users Just Got Riskier–At Least In Rhode Island http://www.seyfarth.com:80/publications/RD072517-LE Tue, 25 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On May 23, 2017, in <a href="https://scholar.google.com/scholar_case?case=2618145862518467720&amp;q=Callaghan+v.+Darlington+Fabrics+Co&amp;hl=en&amp;as_sdt=400006">Callaghan v. Darlington Fabrics Co</a>., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users. </em></p> <p> The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles&rsquo; song &ldquo;With A Little Help From My Friends&rdquo;: &ldquo;<em>I get high with a little help from my friends</em>.&rdquo;&nbsp; In the 32-page opinion followed this witty opening, the Court held that an employer&rsquo;s refusal to hire an individual based on her medical marijuana use violated <a href="http://webserver.rilin.state.ri.us/Statutes/TITLE21/21-28.6/INDEX.HTM">Rhode Island&rsquo;s medical marijuana statute</a>, and the employer&rsquo;s conduct may have amounted to disability discrimination under the&nbsp;<a href="http://webserver.rilin.state.ri.us/Statutes/TITLE42/42-112/INDEX.HTM">Rhode Island Civil Rights Act</a>&nbsp;(&ldquo;RICRA&rdquo;).</p> <p> The Plaintiff, Christine Callaghan, applied for a position as an intern with Darlington Fabrics. &nbsp;During her interviews, she disclosed to the company that she used medical marijuana and would test positive for it in her pre-employment drug test.&nbsp; The company refused to hire her. &nbsp;Callaghan filed a complaint alleging disability discrimination under the RICRA and seeking a declaratory judgment that the company&rsquo;s refusal to hire her based on her medical marijuana use violated the Hawkins-Slater Act&ndash;Rhode Island&rsquo;s medical marijuana statute.&nbsp; Like its counterparts in numerous other states, the Hawkins-Slater Act prohibits an employer from refusing to employ &ldquo;a person solely for his or her status as a [medical marijuana] cardholder.&rdquo;</p> <p> The Court addressed two primary questions. The first question was whether the Hawkins-Slater Act creates a private right of action that allows an individual to file a lawsuit in court for alleged violations of the statute.&nbsp; The second question was whether a refusal to hire an applicant based on medical marijuana use could amount to disability discrimination under the RICRA.&nbsp; The Court answered yes to both questions.</p> <p> Addressing the private right of action question, the Court acknowledged that the Hawkins-Slater Act does not contain any express language authorizing an individual to sue an employer for violation of the statute.&nbsp; The Court also acknowledged the general principle against assuming that a private right of action exists when the legislature chose not to create one.&nbsp; On the other hand, the Court also recognized the legal principle that a court should not attribute to the legislature an intent to enact a meaningless statute. &nbsp;Ultimately, the Court concluded that the Hawkins-Slater Act would be meaningless if it does not allow a private person to sue an employer for violating the statute.&nbsp; Thus, the Court held that an implied private right of action exists under the Hawkins-Slater Act, and the employer violated the law by refusing to hire Callaghan because of her medical marijuana use.&nbsp; In so holding, the Court rejected the notion that there is a meaningful distinction between a medical marijuana &ldquo;cardholder&rdquo; and a medical marijuana &ldquo;user.&rdquo;&nbsp; The Hawkins-Slater Act, according to the Court, protects medical marijuana cardholders who use marijuana because a physician has recommended it. The Court therefore granted a declaratory judgment in Callaghan&rsquo;s favor.</p> <p> As for Callaghan&rsquo;s claim of disability discrimination under the RICRA, the employer moved for summary judgment on several grounds.&nbsp; The company argued, relying on the Americans with Disabilities Act, that active drug use is not a disability. The Court rejected this argument, reasoning that the RICRA defines disability more broadly than the Americans with Disabilities Act.&nbsp; It also reasoned that an individual must have a &ldquo;debilitating medical condition&rdquo; to qualify as a cardholder under the Hawkins-Slater Act.&nbsp; Accordingly, the employer could have inferred that Callaghan was disabled, and thus, could have discriminated against her on that basis.</p> <p> The Court also rejected the employer&rsquo;s argument that Callaghan was not a &ldquo;qualified individual&rdquo; with a disability because she engaged in the use of illegal drugs.&nbsp; The Court concluded that, unlike other disability discrimination laws, the RICRA does not protect only &ldquo;qualified individuals&rdquo; with disabilities, but rather all persons with disabilities.&nbsp; Thus, the Court concluded that the employer&rsquo;s defense was inapplicable to Callaghan&rsquo;s claims.</p> <p> Perhaps most notably, the Court rejected the employer&rsquo;s argument that the federal <a href="https://www.deadiversion.usdoj.gov/21cfr/21usc/">Controlled Substances Act</a> (&ldquo;CSA&rdquo;), which classifies marijuana as an illegal drug, preempts the Hawkins-Slater Act. &nbsp;The Court reasoned that the CSA is not intended to preempt state law unless it is in positive conflict with the CSA.&nbsp; Because the Hawkins-Slater Act does not require the employer to violate the CSA, the Court held that the CSA does not preempt the Hawkins-Slater Act.</p> <p> In light of its conclusions, the Court denied the employer&rsquo;s motion for summary judgment on Callaghan&rsquo;s disability discrimination claim under the RICRA.&nbsp; Callaghan did not more for summary judgment in her favor on this claim, but the Court observed that &ldquo;but for [Callaghan&rsquo;s] disability&ndash;which her physician has determined should be treated by medical marijuana&ndash;[Callaghan] seemingly would have been hired for the internship position.&rdquo;</p> <p> While the <em>Callaghan</em> decision is not binding on any other courts, it is noteworthy.&nbsp; It goes against the weight of authority from courts in other states in its analysis of the interplay between medical marijuana and anti-discrimination laws.&nbsp; More importantly, it does so in a way that could require many employers with operations in Rhode Island (and perhaps other states) to change their policies regarding the hiring and continued employment of medical marijuana users.&nbsp; If appealed, will the decision hold up?&nbsp; Will other courts in other states issue similar decisions?&nbsp; Time will tell.</p> http://www.seyfarth.com:80/publications/MA072417-LE Possible Workforce Impact from DACA and TPS Elimination http://www.seyfarth.com:80/publications/MA072417-LE Mon, 24 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The combination of the Trump Administration re-examination of grants of Temporary Protected Status to nearly 340,000 foreign nationals, and the recent threats by Texas and ten other States to challenge the Deferred Action for Childhood Arrivals policy in federal court, could lead to the exit from the legal workforce of nearly one million people over the next two and a half years.&nbsp; </em></p> <p> In shortening the grant of Temporary Protected Status for certain Haitian nationals to six months, rather than the statutorily authorized (and customary) eighteen months, the Administration explicitly signaled its intention to closely review and very possibly curtail all grants of Temporary Protected Status (&ldquo;TPS&rdquo;).&nbsp;&nbsp; TPS is a provision of the immigration code which affords temporary relief (in renewable cycles of 18 months) from deportation, along with work authorization, to nationals of countries that have suffered catastrophic events such as natural disasters and armed conflict.&nbsp; As of 2015,&nbsp; the latest year that the Department of Homeland Security submitted a report to Congress on TPS, 340,000 people were living in the U.S. under TPS, including 212,000 from El Salvador, 64,000 from Honduras and 58,000 from Haiti.&nbsp; Currently, El Salvador TPS is set to expire on March 9, 2018; Honduras on January 5, 2018; and Haiti on January 22, 2018.&nbsp;&nbsp;&nbsp; It is accordingly possible that most TPS recipients will have lost their status by the end of the second quarter of FY2018.</p> <p> The administration&rsquo;s reexamination of the TPS program coincides with pressures to either halt the Deferred Action for Childhood Arrivals (DACA) policy immediately or to cease accepting applications for either first-time or renewed DACA.&nbsp;&nbsp; The DACA policy announced by the Obama Administration in June 2012 has enabled nearly 780,000 individuals -- often called &ldquo;Dreamers&rdquo; who came to the U.S. as children, but were in the U.S. illegally, to remain, work and study in the U.S. for renewable periods of two years.&nbsp; Currently, it is estimated that 645,000 DACA recipients are working in the U.S.&nbsp;&nbsp; &nbsp;</p> <p> President Trump campaigned aggressively on a promise to end DACA, and his administration has repeatedly said that the program is &ldquo;under review.&rdquo;&nbsp; Notwithstanding, since inauguration day, the DACA policy has continued in full force.&nbsp; Many have applied for and in most cases received either first-time DACA grants or renewals.</p> <p> On June 29, 2017, Texas attorney general Ken Paxton and the attorneys general of ten other states sent a letter to U.S. Attorney General Jeff Sessions, giving the administration an ultimatum as to the DACA program.&nbsp; The letter notified the administration that if it did not&nbsp; cease accepting new DACA requests and DACA renewal requests, the signatory States would seek to amend the complaint currently pending before&nbsp; federal district court Judge Andrew Hanen&nbsp; in the Southern District of Texas which&nbsp; resulted in the halt of other Obama administration deferred action policies.&nbsp; The earlier challenges sought an injunction of the implementation of policies initiated by the Obama administration called the Deferred Action for Parental Accountability and expanded DACA that would have offered relief from deportation and work authorization&nbsp; for nearly 5,000,000 undocumented individuals in addition to those already receiving DACA.&nbsp; Judge Hanen moved swiftly and without hesitation to impose a temporary restraining order on the programs.&nbsp; Judge Hanen&rsquo;s TRO was sustained by the 5th Circuit Court of Appeals and ultimately by the Supreme Court.&nbsp; Given Judge Hanen&rsquo;s decision as to the other deferred action policies and his reasoning underlying those decisions, there is a strong likelihood that he will ultimately decide that DACA should be halted as well.&nbsp; &nbsp;</p> <p> It is not yet known how the administration will respond to the Texas DACA challenge, however, Homeland Security Secretary John Kelly has apparently advised the Congressional Hispanic Caucus that he does not believe that the program could withstand a legal challenge and has called on Congress to take action to provide direct statutory authority for the program if it wishes it to survive.</p> <p> Should the administration acquiesce to Texas&rsquo; demand, then significant numbers of recipients will begin immediately to lose their relief from deportation and their work authorization, with particularly large numbers losing their status&nbsp; throughout calendar year 2019.&nbsp;&nbsp; If on the other hand, the matter actually does end up in Court, then the administration could: 1) fight Texas&rsquo; demand, attempting to distinguish the DACA program from other similar Obama era initiatives; 2) take no position which would essentially amount to an acquiescence to Texas&rsquo; position; and 3) actually acquiesce to Texas&rsquo; position.&nbsp;&nbsp; The latter two positions could very well result in an immediate end to the program, although it is likely that organizations advocating for DACA recipients will seek to intervene in the case in support of continuing the DACA policy.</p> <p> In any event, the combination of the threats to TPS and to DACA mean that as many 1,000,000 workers could lose U.S. work authorization over approximately a two and one half year period.</p> <p> On July 20, 2017, Republican Senator Lindsay Graham and Democratic Senator Richard Durbin introduced the &ldquo;Dream Act of 2017&rdquo;&nbsp; (S.1615) (&ldquo;the Act&rdquo;) which if passed and signed would resolve the threat to current DACA holders.&nbsp; The Act provides conditional permanent residence for prior DACA recipients as well as those who in the future meet the eligibility requirements of the current DACA policy.&nbsp; It also provides for the removal of conditions on permanent residency for individuals who demonstrate written and oral English proficiency and who have either acquired a college degree, have completed two years in a degree program, have served honorably for two years in the military, or who have been employed for an aggregate of 13 years. It is not clear whether the ACT would pass either house of Congress.&nbsp; Additionally, President Trump has indicated that he is not prepared to sign legislation of this nature at the present time.</p> http://www.seyfarth.com:80/publications/MA072417-LE2 Hirer of Independent Contractor Not Liable to Injured Contractor Employee http://www.seyfarth.com:80/publications/MA072417-LE2 Mon, 24 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The California Court of Appeal upheld the Privette doctrine, holding that an independent contractor&rsquo;s employee generally may not recover tort damages for work-related injuries from the contractor&rsquo;s hirer.</em></p> <p> <strong>The Facts</strong></p> <p> Bernie Alvarez, a marine mechanic, worked for Pacific Crane Maintenance Company. Evergreen Container Terminal&mdash;operating a marine container terminal in the Port of Los Angeles&mdash;had contracted with Pacific Crane to provide maintenance services at the terminal. The contract said that Pacific Crane would use its best efforts to prevent injury to its employees and would comply with all safety rules and regulations. The contract did not address any obligation by Evergreen to ensure safe conditions at the terminal.</p> <p> Alvarez injured himself when he drove a maintenance van into a shipping container. He sued Evergreen for negligently obstructing the driving lane with the shipping container.</p> <p> Evergreen successfully moved for summary judgment, citing the <em>Privette</em> doctrine. Alvarez appealed, arguing that the <em>Privette</em> doctrine did not apply because Evergreen retained control over safety conditions at the worksite and affirmatively contributed to his injuries.</p> <p> <strong>The Court Of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed summary judgment. In <em>Privette v. Superior Court</em>, a 1993 case, the California Supreme Court held that an independent contractor&rsquo;s employee generally may not sue the contractor&rsquo;s hirer to recover tort damages for work-related injuries. <em>Privette</em> recognizes the principle that the hirer of an independent contractor generally has no right to control the details of the work the independent contractor will provide, and presumptively delegates to the contractor the duty to provide a safe workplace for the contractor&rsquo;s employees.</p> <p> An exception&mdash;the retained-control exception&mdash;applies where the hirer retains control over the independent contractor&rsquo;s work and safety conditions at the worksite. This exception can apply when the hirer actively participates in, or asserts control over, how the job should be done, or otherwise interferes with the manner and means of accomplishing the work. The exception also can apply when the hirer fails to undertake a promised safety measure at the worksite. But the exception did not apply here, as Alvarez did not present evidence that Evergreen (1) directed him to perform his work in any particular manner, or (2)&nbsp;promised (and failed) to undertake any safety measure at the worksite. Rather, it was the independent contractor, Pacific Crane, that was responsible, under its contract, for Alvarez&rsquo;s safety on the job.</p> <p> <strong>What <em>Alvarez</em> Means For Employers</strong></p> <p> <em>Alvarez</em> is important for reiterating that, in today&rsquo;s ever-evolving gig economy, an independent contractor&rsquo;s employees generally may not recover tort damages for work-related injuries from the contractor&rsquo;s hirer. Companies that retain staffing companies should (1) review the staffing companies&rsquo; employment agreements to determine whether any promise to undertake safety measures are provided for, and (2) be wary of dictating the manner in which a job or assignment should be completed.</p> http://www.seyfarth.com:80/publications/BIGIMM072417 The Known and Unknown Future of the EB-5 Immigrant Investment Program at USCIS and the USCIS Ombudsman http://www.seyfarth.com:80/publications/BIGIMM072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/07/the-known-and-unknown-future-of-the-eb-5-immigrant-investment-program-at-uscis-and-the-uscis-ombudsman/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=4cde6441b0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-4cde6441b0-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/WH072417 SCOTUS Puts the Class Action Waiver Issue at the Top of Its Agenda http://www.seyfarth.com:80/publications/WH072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Perhaps signaling the importance of the issue for American businesses and jurisprudence, the U.S. Supreme Court&lrm;&nbsp;chose the&nbsp;<a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/calendar.pdf" rel="noopener noreferrer" target="_blank">first day of its term beginning in October</a> as the date to set oral arguments in three petitions&nbsp;for certiorari asking whether employees can be required to waive their rights via arbitration agreements to file class and collective actions against their employers.</p> <p> <a href="http://www.wagehourlitigation.com/arbitration-agreements/class-action-waiver-at-the-top/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=29a0853b0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-29a0853b0c-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA072417 The Supreme Court Indirectly Stiffens A Fiduciary Breach Time Limit And Helps ERISA Fiduciaries In The Process http://www.seyfarth.com:80/publications/ERISA072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Statutes of repose begin to run after a defendant&rsquo;s last culpable act or omission&ndash;regardless of when a plaintiff is injured&mdash;and give defendants a complete defense to any lawsuit commenced after the repose limitations period. ERISA Section 413 provides a six-year statute of repose for fiduciary breach claims, with a narrow exception, &ldquo;in the case of fraud or concealment.&rdquo; If the exception applies, the claim may be brought within six years of discovery of the breach.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/07/24/the-supreme-court-indirectly-stiffens-a-fiduciary-breach-time-limit-and-helps-erisa-fiduciaries-in-the-process/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=ab21aca883-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-ab21aca883-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA072117 DOJ Places Website Rulemaking on the “Inactive” List http://www.seyfarth.com:80/publications/ADA072117 Fri, 21 Jul 2017 00:00:00 -0400 <p> Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/07/doj-places-website-rulemaking-on-the-inactive-list/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=39301ef00c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-39301ef00c-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/MA072117-LE New York Workers’ Compensation Board Releases Final Regulations for Paid Family Leave Law http://www.seyfarth.com:80/publications/MA072117-LE Fri, 21 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The final regulations were released for the New York Paid Family Leave law, which will be effective January 1, 2018.&nbsp; The regulations contain few substantive changes from the revised proposed regulations, and many uncertainties remain.&nbsp; </em></p> <p> New York&rsquo;s Workers Compensation Board (the &ldquo;Board&rdquo;) has just released the much-anticipated <a href="http://www.wcb.ny.gov/PFL/pfl-regs-text.jsp">final regulations </a>for the Paid Family Leave (&ldquo;PFL&rdquo;) law, with few substantive changes from the last round of revised regulations. &nbsp;The Board&rsquo;s written response to the public comments indicates, however, that further guidance may be forthcoming as to the meaning and application of the final regulations.&nbsp; For more detailed information about the law and regulations, see our prior alerts on the <a href="http://www.seyfarth.com/publications/MA041916-LE">law&rsquo;s passage</a>, <a href="http://www.seyfarth.com/publications/MA031017-LE">the proposed regulations</a>, <a href="http://www.seyfarth.com/publications/MA060117-LE">revised regulations</a>, and <a href="http://www.seyfarth.com/publications/OMM060217-LE2">employee contribution amount</a>.</p> <p> Key changes set out in the final regulations follow.</p> <p> <strong>Eligibility:</strong></p> <p> Employees who work 20 or more hours per week become eligible for PFL after 26 consecutive work weeks.&nbsp; Employees who work fewer than 20 hours per week become eligible for PFL after 175 days of employment.&nbsp;&nbsp;</p> <p> The final regulations clarify that the use of scheduled vacation time or other paid time off approved by the employer should be counted towards both the 26 consecutive work week and 175 days-worked thresholds for PFL eligibility.&nbsp; In the same vein, the regulations clarify that periods of statutory short term disability will not be counted as weeks of employment or days worked for determining eligibility for PFL.</p> <p> Under the final regulations, employers are <em>required</em> to provide employees with the option to waive PFL benefits where the employee&rsquo;s schedule does not allow the employee to reach the thresholds for PFL eligibility listed above. &nbsp;Employees are not, however, required to sign the waiver.&nbsp; The Board did not alter the provision that if an employee&rsquo;s schedules changes, such that he or she will become eligible for PFL, the previously signed waiver becomes invalid within eight weeks of the change and the employer can recoup the employee contribution amount back to the date of hire, after notifying the employee of its intent to do so.</p> <p> The final regulations clarify that where periods of absence from employment are due to the nature of the employment, such as semester breaks, and when employment is not terminated during these periods, the breaks do not restart the period of employment for purposes of eligibility for paid family leave.</p> <p> While no change was made with regard to eligibility based on the location of employees, the Board clarified that employees who work in New York State, with only incidental work outside the state, are eligible for PFL, whereas employees who work in another state, who only incidentally work in New York, are not covered. &nbsp;The Board offered the following guidance, as well:&nbsp; if an employee does not perform his or her work in any one particular state, he or she is eligible if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York. &nbsp;The Board indicated it will add additional examples as they arise to the published answers to frequently asked questions on the program&rsquo;s webpage. &nbsp;</p> <p> <strong>Complaint Procedure: </strong></p> <p> The final regulations require that before an employee may file a complaint of discrimination with the Board under Workers&rsquo; Compensation Law Section 120, he or she must first file a written request for his or her employer to come into compliance with PFL.&nbsp; The written request is a condition precedent to bringing a discrimination claim, and an employer&rsquo;s response to the request (or expiration of 30 day time period in which to respond) triggers an aggrieved employee&rsquo;s two year statute of limitations period to file a discrimination claim with the Board.</p> <p> There is no time limit, however, in which to file this written request.&nbsp; The time in which to file does not appear cabined by the two year statute of limitations period.&nbsp; In conjunction, we read these requirements as creating a virtually unending statute of limitations period for PFL claims to be brought before the Board.&nbsp; Although Seyfarth submitted a comment to the Board on this issue, the Board did not provide a substantive response.</p> <p> <strong>Interplay With FMLA and NYC ESTA:</strong></p> <p> The final regulations did little to further clarify the interplay between PFL and Family Medical Leave Act (&ldquo;FMLA&rdquo;).&nbsp; For example, PFL requires that an employee be returned to the &ldquo;same or comparable&rdquo; position following leave.&nbsp; FMLA requires that an employee be returned to the &ldquo;same or equivalent&rdquo; position following leave.&nbsp; Especially during periods when FMLA and PFL run concurrently, this differing standard is likely to cause confusion. &nbsp;Seyfarth Shaw requested guidance on whether &ldquo;same or comparable&rdquo; has the same meaning as the FMLA&rsquo;s &ldquo;same or equivalent&rdquo; language.&nbsp; The Board stated that it will issue further guidance on this, but did not revise the regulation. &nbsp;</p> <p> The final regulations also did not clarify how New York City employers should treat leave under the NYC Earned Sick Time Act (&ldquo;ESTA&rdquo;) when leave under ESTA is taken for a PFL qualifying reason.&nbsp; In particular, ESTA requires in most cases that time off be provided at full pay.&nbsp; In contrast, PFL requires employees to be given the choice of using accrued leave <em>or</em> to receive PFL benefits from the carrier.&nbsp; The regulations remain unclear on this point.</p> <p> <strong>What&rsquo;s Next for Employers:</strong></p> <p> Employers must implement a PFL policy and obtain coverage for PFL benefits before the effective date of January 1, 2018.&nbsp; Now that final regulations have been issued, employers should begin drafting policies and considering PFL&rsquo;s interplay with other leave policies, especially FMLA.&nbsp; As of July 1, 2017, employers are free, but are not required, to deduct employee contributions towards the cost of a PFL premium.&nbsp; Be on the lookout for additional Seyfarth alerts on this topic and an upcoming webinar covering the final regulations.</p> http://www.seyfarth.com:80/publications/OMM072117-HL New “Site Neutrality” Proposed Rule Would Slash Hospital Outpatient Payments for Off-Campus Services by 50% http://www.seyfarth.com:80/publications/OMM072117-HL Fri, 21 Jul 2017 00:00:00 -0400 <p> In a proposed rule published in the <em>Federal Register</em> on July 21, 2017, the Centers for Medicare &amp; Medicaid Services (&ldquo;CMS&rdquo;) moved to cut payments for most services provided by off-campus locations of hospitals by 50 percent.&nbsp; CMS would spare only:&nbsp; (i) dedicated off-campus emergency departments of hospitals; (ii) grandfathered provider-based facilities in operation prior to November 2, 2015; and (iii) facilities within 250 yards of a remote location of a hospital.&nbsp; The cuts will be effective in calendar year 2018.<br /> <br /> The deadline to submit comments to the proposed rule is September 11, 2017.&nbsp; We are presently developing comments to the rule.&nbsp; If you would like to participate in our preparation of comments, please contact your Seyfarth attorney or William B. Eck, whose contact information is listed below.&nbsp; We welcome and encourage your input and insight.<br /> <br /> As you know, in Section 603 of the Bipartisan Budget Act of 2015, Congress enacted certain &ldquo;site neutrality&rdquo; amendments to the Medicare Act.&nbsp; In general, site neutrality means that Medicare payment rates for a given service will not vary based on treatment setting, for certain outpatient services that are also furnished in physician offices, without a justifiable reason for the variance.&nbsp; CMS initially interpreted these amendments so as to assure access to needed hospital outpatient services.<br /> <br /> However, for calendar year 2018, CMS has proposed decreasing the hospital payment rates by 50 percent.&nbsp; In 2016 CMS established a &ldquo;relativity adjuster,&rdquo; to decrease rates paid for the hospital facility (not professional) component by 50 percent.</p> <p> For calendar year 2018, CMS is proposing to revise the relativity adjuster to be 25 percent of the outpatient prospective payment system rate for hospitals.&nbsp; The preamble to the proposed regulation notes a number of potential issues regarding this formulation, which we will address in our comments.&nbsp; Primary among these is access to care, which will be impaired by a 25 percent payment rate, particularly in areas that rely upon hospital outpatient centers for services.&nbsp; Our comments will be furnished in August or early September, once we receive further input from our hospital and health system&nbsp; clients.<br /> <br /> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM072117-LE A Ban on Ban-the-Box Laws? Texas and Indiana Introduce Legislation That Would Prohibit Municipal and County Ban-the-Box Laws Within Their States http://www.seyfarth.com:80/publications/OMM072117-LE Fri, 21 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong>In recent years, numerous cities and counties have enacted ordinances restricting the ability of public and private employers to inquire into the criminal histories of applicants during various stages of the job application process&mdash;the so-called &ldquo;ban-the-box&rdquo; laws. &nbsp;Recently, however, two state legislatures have gone against the grain. State legislatures in Indiana and Texas recently introduced new state-wide legislation meant to create conformity within their borders by prohibiting municipalities and counties from micro-managing the particular steps involved in private employers&rsquo; hiring with regard to the prohibition, limitation, or regulation of background screening.&nbsp;</em></p> <p> <strong>Indiana Senate Bill 312</strong></p> <p> As of July 1, 2017, local governments can no longer issue ban-the-box ordinances in Indiana. <a href="https://iga.in.gov/legislative/2017/bills/senate/312#document-051d9997">Senate Bill 312</a> prohibits political subdivisions (including counties, municipalities, and townships) from enacting ordinances that interfere with an employer&rsquo;s ability to obtain or use criminal history information during the hiring process (to the extent allowed by state or federal law).&nbsp; Accordingly, the <a href="http://www.indy.gov/eGov/Council/Proposals/Documents/2014/PROP14-004.pdf">Indianapolis Ban the Box Ordinance</a>, previously applicable to both the public sector and private employers holding vendor contracts with Indianapolis and Marion County, Indiana since February 2014, has been preempted.</p> <p> <strong>Austin&rsquo;s Fair Chance Hiring Ordinance</strong></p> <p> In March of 2016, the Austin City Council passed a Fair Chance Hiring Ordinance prohibiting the use of criminal history check boxes on job applications.&nbsp; (See prior post <a href="http://www.seyfarth.com/publications/OMM040516-LE">here</a>.)&nbsp; The Fair Chance Hiring Ordinance recently dodged a bullet; the Legislature of the State of Texas had introduced similar legislature to Indiana&rsquo;s and the original wording of House Bill 91 in committee had included a ban on such ordinances.&nbsp; Over time, the caption of the bill was no longer accurate, since it also included &ldquo;occupational licensing requirements and an applicant&rsquo;s criminal history.&rdquo;&nbsp; The Texas Senate deleted the portion of the bill that would prohibit ban-the-box ordinances so the bill once again matched its caption and the Senate went on to pass House Bill 91 on May 23, 2017.</p> <p> <strong>Employer Outlook</strong></p> <p> As counties and municipalities have passed individual, and at times conflicting, ban-the-box ordinances, a patchwork of legal obligations, requirements, and prohibitions has resulted for certain regional and national employers.&nbsp; This patchwork can impose significant compliance issues.&nbsp; Indiana and Texas appear to have recognized this issue, and have made efforts to create consistency within their states.&nbsp; Based on the success of the recent Indiana legislation, other states seeking to create consistency and reduce burdens on employers may bring similar legislation (rather than be deterred by the Texas legislature&rsquo;s defeated attempt).&nbsp;</p> <p> Additionally, similar themes can be seen: The Pennsylvania Senate passed a <a href="http://www.legis.state.pa.us/cfdocs/billinfo/BillInfo.cfm?syear=2017&amp;sind=0&amp;body=S&amp;type=B&amp;bn=241">Bill</a> in February that would amend the Commonwealth&#39;s Equal Pay Act and which would allow employers to inquire into prospective employee&#39;s wage histories.&nbsp; Significantly, the Bill contains a preemption clause which provides that &ldquo;[t]he provisions of this act shall preempt and supersede any local ordinance or rule concerning the subject matter of this Act.&rdquo;&nbsp; If enacted, this preemption language will sound the death knell to Philadelphia&rsquo;s Salary History Ban Ordinance, originally scheduled to take effective May 23, 2017 (but currently stayed pending legal <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM062317LE.pdf">challenge</a>).</p> <p> Overall, the goal of legislative and regulatory consistency is positive for employers who, at times, can be subject to various levels of regulation in the various jurisdictions in which they operate.&nbsp; Clarity and consistency pave the way for compliance, and create a welcoming atmosphere for current and new employers.&nbsp;</p> http://www.seyfarth.com:80/news/rooney072117 Seyfarth Shaw profiled in the National Law Journal http://www.seyfarth.com:80/news/rooney072117 Fri, 21 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw was profiled in a July 21 story from the National Law Journal, &quot;Seyfarth Shaw&#39;s &#39;Rooney Presumption&#39; Drives Sudden Surge in Minority Hiring.&quot; Since the pilot program was put in place last year in the labor and employment department, Seyfarth&#39;s largest department, the number of minority associate hires has nearly doubled. Maechtlen said that she is seeing firms paying attention and partnerships among organizations &mdash; law firms or corporations &mdash; coming together around diversity and inclusion. You can read the <a href="http://www.nationallawjournal.com/id=1202793676737?slreturn=20170624102737">full article here</a>.</p> http://www.seyfarth.com:80/news/lutkus072017 Richard Lutkus quoted in Legaltech News http://www.seyfarth.com:80/news/lutkus072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in a July 20 story from Legaltech News, &quot;Service Disruptions to WhatsApp in China Raise Wider Censorship Concerns,&quot; on apps facing government pressure and the ways users and companies can encourage private messaging. Lutkus recommended companies put work-arounds to circumvent censorship, change networking framework as often as is practical to avoid detection, or utilize pseudo-VPN/proxy to work around it, which may work for a time.</p> http://www.seyfarth.com:80/publications/MA072017-LE ALJ Narrows OFCCP’s Request for Google Employee and Pay Data http://www.seyfarth.com:80/publications/MA072017-LE Thu, 20 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Last Friday, an administrative law judge limited the amount of information that the OFCCP may seek from Google in its on-going compliance audit because the agency failed demonstrate relevance or justify the burden of its latest data requests.&nbsp; The disputed data requests sought contact information for more than 25,000 employees at Google&rsquo;s CA headquarters, as well as job and salary information dating back to 1998.&nbsp; For Federal contractors, the 43-page decision offers a window into the depth and breadth of OFCCP data requests, particularly with regard to pay. </em></p> <p> On July 14th, &nbsp;an Administrative Law Judge (&ldquo;ALJ&rdquo;) denied certain data requests by the Office of Federal Contract Compliance Program (&ldquo;OFCCP&rdquo;) that sought massive amounts of pay-related data from Google in connection with a routine compliance audit.&nbsp; In his <a href="https://www.oalj.dol.gov/Decisions/ALJ/OFC/2017/OFCCP_-_SAN_FRANCISC_v_GOOGLE_INC_2017OFC00004_(JUL_14_2017)_195652_CADEC_SD.PDF">decision and order</a>, ALJ Steven Berlin took the agency to task over its demands for employee salary and job history dating back more than 20 years &ldquo;without a minimal showing of relevance.&rdquo;&nbsp; He also narrowed the OFCCP&rsquo;s June 2016 request for contact information for all employees at Google&rsquo;s Mountain View, CA headquarters&mdash;approximately 25,000 people&mdash;citing both relevance and concerns about employee privacy.&nbsp;&nbsp;</p> <p> <strong>The Disputed OFCCP Data Requests</strong></p> <p> Since the audit began in September 2015, the OFCCP issued extensive data requests seeking detailed information for employees at Google&rsquo;s headquarters.&nbsp; After Google responded to the agency&rsquo;s initial requests with extensive employee data, the agency asked for still more information in June 2016.&nbsp; Specifically, the OFCCP requested that Google provide:</p> <ul> <li> An employee report as of September 1, 2014 (one year earlier than the employee report that Google initially submitted) containing over 50 categories of data on each of the 19,539 people employed at that time such as market salaries for jobs, value of stock options, and educational history;</li> <li> A list of all starting salaries, salary changes, starting jobs and job changes for each person employed on either September 1, 2014 or September 1, 2015;</li> <li> The name, address, telephone number, and personal email of each person employed on either September 1, 2014 or September 1, 2015.</li> </ul> <p> Google refused to comply with the requests on the grounds that they were overly broad and went beyond the scope of what was relevant in the audit.&nbsp; Google also claimed that the OFCCP&rsquo;s request for contact information presented unnecessary risks to the privacy interests of its employees.&nbsp; The OFCCP then initiated a lawsuit to compel Google to disclose the requested information.&nbsp;</p> <p> <strong>Most of the OFCCP&rsquo;s Broad Pay Data Requests Not Supported</strong></p> <p> As made clear by both the OFCCP and the ALJ during the ensuing litigation, the agency&rsquo;s expansive requests were made in connection with its on-going compliance audit:&nbsp; There has been no finding that Google engaged in unlawful discrimination or failed to meet its affirmative action obligations.&nbsp; &nbsp;Rather, OFCCP representatives testified that additional information was needed to further investigate supposed &ldquo;systemic compensation disparities against women&rdquo; identified by its preliminary analyses of Google&rsquo;s data.&nbsp; Without the disputed information, the OFCCP claimed, it could not investigate if the alleged pay disparities were ongoing, how far back they went, or their potential causes. The OFCCP also argued that it needed salary and job histories going back to 1998 to investigate whether Google&rsquo;s practice of pegging compensation increases to market percentages caused pay disparities (that may have been created by how an employee&rsquo;s initial salary was set), to widen over time.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The ALJ found no support for either theory, explaining that &ldquo;OFCCP&rsquo;s salary history, job history, and related requests exceed even the considerable deference owed OFCCP on a determination of relevance&rdquo; and &ldquo;create an unreasonable burden on Google and its employees.&rdquo;&nbsp; In so finding, the ALJ denied the OFCCP&rsquo;s requests for salary and job history back to 1998.&nbsp; The ALJ noted that Google did not even become a government contractor until 2007 and held that OFCCP remedial authority did not pre-date contractor status.&nbsp; &nbsp;</p> <p> <strong>Google Is Required to Produce Limited Employee Contact Information </strong></p> <p> Despite the decision tipping in Google&rsquo;s favor in many respects, the ALJ still ordered that Google produce a limited subset of employee data under the original OFCCP data request for employee contact information.&nbsp; Google contested the OFCCP&rsquo;s request for contact information for <u>all</u> employees at Google&rsquo;s headquarters&mdash;approximately 25,000.&nbsp; The OFCCP testified that contact information for all employees was needed so that the agency could interview employees about compensation issues without Google knowing who was being interviewed, and, in turn, avoid any retaliation concerns.&nbsp; The ALJ agreed with the OFCCP&rsquo;s theory that asking for contact information for a large number of employees allowed interviewed employees to &ldquo;hid[e] in plain sight.&rdquo;&nbsp; Yet, he found that a smaller list would accomplish the same purpose.&nbsp; To that end, the decision limits the request for contact information to 5,000 employees.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> &nbsp;&nbsp;</p> <p> <strong>What this Decision Means for Federal Contractors</strong></p> <p> For Federal contractors seeking guidance on just how much data they must share during an OFCCP compliance audit, the decision offers some guidance as to how to respond to the OFCCP&rsquo;s requests for excessive information and data.&nbsp; At the very least, this decision should hamper the OFCCP&rsquo;s interest in engaging in limitless fishing expeditions absent an articulated basis for onerous data requests.&nbsp;</p> <p> At the same time, the case illustrates that Federal contractors still bear significant costs when subject to an OFCCP compliance audit, in part due to the agency&rsquo;s aggressive focus on alleged pay discrimination issues.&nbsp; During the litigation, Google submitted evidence that it spent more than 2,300 hours and approximately $500,000 responding to the OFCCP&rsquo;s data requests to date.&nbsp; This is true even though the requests were made in connection with a routine compliance audit, and were <u>not</u> related to any findings of discriminatory pay practices or any complaint.&nbsp;</p> <p> The ALJ decision marks a victory for Google, but not an end to the OFCCP&rsquo;s investigation.&nbsp; We will continue to monitor this case and provide updates with any important developments.</p> <p> In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth&rsquo;s Organizational Strategy &amp; Analytics Team or your Seyfarth relationship partner.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The OFCCP argued that it was entitled to investigate continuing violations as far back as the employee&rsquo;s date of hire because of the rolling amendment to the statute of limitations for ongoing compensation discrimination created by the Fair Pay Act, (The Lily Ledbetter Act) however, ALJ Berlin concluded that the Fair Pay Act does not apply to claims brought under E.O. 11246.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> After considering the initial 5,000 employees, the OFCCP may request contact information on up to 3,000 additional employees.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL072017 Court Rules Request for Religious Accommodation Is Not “Protected Activity” for Title VII Retaliation http://www.seyfarth.com:80/publications/EL072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law. &nbsp;On July 6, 2017, the Court ruled, and agreed with the employer.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/court-rules-request-for-religious-accommodation-is-not-protected-activity-for-title-vii-retaliation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=ce3ce6bc4c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-ce3ce6bc4c-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/WH072017 What’s on the Agenda? Tips and OT http://www.seyfarth.com:80/publications/WH072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> Each spring and fall, Washington waits with bated breath as the Executive Branch releases its regulatory agenda. As the first pronouncement of some of the specifics of the Trump Administration&rsquo;s regulatory plans, this year&rsquo;s agenda was anticipated more than most.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/whats-on-the-agenda/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=26600c9cd3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-26600c9cd3-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts072017 The Neutral Corner: Using Forensic Neutrals in Trade Secret Disputes http://www.seyfarth.com:80/publications/ts072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> The dirty secret of trade secret disputes is that even if you win, it can be difficult to get back to where you started. It&rsquo;s like closing the stable door after the horses have run off with trade secret disputes. A court or arbitration panel may not have trouble reaching findings of fact and conclusions of law, but the secrets are still out there.&nbsp;</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/trade-secrets/the-neutral-corner-using-forensic-neutrals-in-trade-secret-disputes/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d5e9d6ec10-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d5e9d6ec10-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT072017 Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly http://www.seyfarth.com:80/publications/TBT072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> On July 17, 2017, the Massachusetts Supreme Judicial Court (&ldquo;SJC&rdquo;), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual&rsquo;s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/07/is-medical-marijuana-a-reasonable-accommodation-mass-court-says-possibly/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7637d8be60-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7637d8be60-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT72017a The Week in Weed: July 21, 2017 http://www.seyfarth.com:80/publications/TBT72017a Thu, 20 Jul 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Tax revenue for legal weed sales in Colorado exceeds $500M</p> <p> (The Hill: News, 19 July 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/07/the-week-in-weed-july-21-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7637d8be60-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7637d8be60-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/CP071917 New National Origin Discrimination Regs: FEHC Hears Public Comments http://www.seyfarth.com:80/publications/CP071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> The FEHC kicked off its third meeting of the year, this time in San Francisco. Prominent on the agenda: the proposed and rapidly advancing national origin discrimination regulations. As stated in the FEHC&rsquo;s notice of the meeting: &ldquo;The overall objective of the proposed amendments is to describe how the [FEHA] applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.&rdquo;</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/19/new-national-origin-discrimination-regs-fehc-hears-public-comments/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=cb187679f2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-cb187679f2-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/MA071917-LE Employers Must Use New I-9 by September 18, 2017 http://www.seyfarth.com:80/publications/MA071917-LE Wed, 19 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.&nbsp; Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation</em>.&nbsp;&nbsp;&nbsp;</p> <p> As expected, the U.S. Citizenship and Immigration Services (USCIS)&nbsp; released a revised version of Form I-9, Employment Eligibility Verification, on July 17.&nbsp; Employers can use this <a href="https://www.uscis.gov/i-9">new Form I-9</a> or continue using the&nbsp; Form I-9 with a revision date of 11/14/16 N through September 17.&nbsp; As of September 18, employers may only use the new form with a revision date of<strong> 07/17/17 N; no other versions will be acceptable.&nbsp; </strong>The issuance of the new form does not necessitate employers&nbsp; &ldquo;redoing&rdquo; previously completed Form I-9s, this is going forward only.&nbsp;</p> <p> <u><strong>What&rsquo;s New?</strong></u></p> <p> In the <a href="https://www.uscis.gov/i-9">Form I-9 instructions</a>:</p> <ul> <li> Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). &nbsp;Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.</li> <li> Removed &ldquo;the end of&rdquo; from the phrase &ldquo;the first day of employment.&rdquo;</li> </ul> <p> In the List of Acceptable Documents:</p> <ul> <li> Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.</li> <li> Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.</li> <li> Renumbered all List C documents except the Social Security card into an easier format.</li> </ul> <p> In the new <a href="https://preview.uscis.gov/i-9-central/handbook-employers-m-274">M-274</a>, Handbook for Employers:</p> <ul> <li> USCIS reflected these changes and endeavored to simplify the format.</li> </ul> <p> <u><strong>What&rsquo;s the Same?</strong></u></p> <p> N<strong>o changes to storage -</strong> which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.&nbsp; For paper I-9s, we continue to recommend a three &ldquo;binder system&rdquo; consisting of Active, Reverifications and Terminated I-9s.&nbsp; Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.</p> <p> For electronic users, this version&rsquo;s updates should not be as difficult as the one released in November of 2016.&nbsp; However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information, &nbsp;is clearly an issue for some <strong>Electronic I-9 vendors. </strong>&nbsp;For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.&nbsp; Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.&nbsp; We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.&nbsp;</p> <p> <strong>No changes to retention</strong> - which means that employers should retain all Form I-9&rsquo;s for active employees as well as all Form I-9&rsquo;s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.</p> <p> <strong>No relief for employers with remote workforces -</strong> which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.&nbsp; No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.</p> <p> <u><strong>What Should We Do Now? </strong></u></p> <p> The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.&nbsp; In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.&nbsp; This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).&nbsp; Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.&nbsp; There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon. &nbsp;Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 &ldquo;process&rdquo; on the ground.&nbsp; This review should include observations focusing on the implementation of well-intended standard operating procedures.&nbsp; Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related &nbsp;liabilities.&nbsp; The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.</p> http://www.seyfarth.com:80/news/rodriguez071917 Leon Rodriguez quoted in Politico http://www.seyfarth.com:80/news/rodriguez071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 19 story from Politico, &quot;Supreme Court won&#39;t let Trump travel ban hit grandparents,&quot; on how the Supreme Court has rejected the Trump administration&rsquo;s effort to subject foreigners who are grandparents or cousins of Americans to the president&rsquo;s travel ban executive order, but will allow the administration to block many refugees for now. Rodriguez said that he sees a signal being sent to the Trump White House that its policy is unlikely to score a clean victory if the justices rule on the merits. You can read the <a href="http://www.politico.com/story/2017/07/19/scotus-wont-let-trump-travel-ban-hit-grandparents-240719">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360071917 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 19 story from Law360, &quot;Dukes&#39; Pioneering Pay Bias Suit Leaves Lasting Legacy,&quot; on the impact of the landmark Dukes discrimination class action Supreme Court case. Maatman said the high court&#39;s decision in Dukes&#39; case has become the 800-pound gorilla in every courtroom and has been statistically the most cited case in workplace class action litigation since the high court&#39;s 2011 ruling was issued.</p> http://www.seyfarth.com:80/news/maechtlen071817 Laura Maechtlen quoted in Human Resource Executive http://www.seyfarth.com:80/news/maechtlen071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in a July 18 story from Human Resource Executive, &quot;Who&rsquo;s Afraid of Automation?,&quot; on a 2017 Randstad Employer Brand Research study which found 76 percent of respondents saying they don&rsquo;t fear automation. Maechtlen said that automation should be seen as an opportunity to augment an organization&rsquo;s talent, not to supplant its employees. You can read the <a href="http://blog.hreonline.com/2017/07/18/whos-afraid-automation/">full article here</a>.</p> http://www.seyfarth.com:80/news/bizar071817 David Bizar quoted in Business Insurance http://www.seyfarth.com:80/news/bizar071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> David Bizar was quoted in a July 18 story from Business Insurance, &quot;Financial institution class actions could spike with rule change,&quot; on how a Consumer Financial Protection Bureau rule issued last week that precludes class action waivers in arbitration agreements in many consumer financial services contracts is expected to lead to an increase in class action litigation. Bizar said that the rule is going to produce the exact opposite result the consumer advocates and the bureau are claiming they intend to achieve. You can read the <a href="http://www.businessinsurance.com/article/20170718/NEWS06/912314527/Financial-institution-class-actions-could-spike-with-rule-change">full article here</a>.</p> http://www.seyfarth.com:80/news/gatx071817 Seyfarth Represents GATX in its Move to Chicago’s Willis Tower http://www.seyfarth.com:80/news/gatx071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> CHICAGO - (July 18, 2017) - Seyfarth Shaw LLP represented GATX, a global leader in railcar leasing, in the move of its corporate headquarters to Chicago&rsquo;s iconic Willis Tower. GATX will lease 90,000 square feet on two full floors in the tower.</p> <p> Earlier this year, Seyfarth represented ESD, a global leading engineering design firm, and the National Restaurant Association, the largest foodservice trade association in the world, in their respective moves to Willis Tower. ESD will occupy over 46,000 square feet of new space on the entire 53rd floor and a portion of the 54th floor. The National Restaurant Association leased close to 51,000 square feet of office space on the 36th floor.</p> <p> Seyfarth Real Estate partner Kelly Bufton represented GATX.</p> http://www.seyfarth.com:80/publications/WH071817 Money for Nothing! Court Allows Employees to Pursue Lawsuit Despite DOL Settlement http://www.seyfarth.com:80/publications/WH071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> In <em><a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/Chan-et-al-v-A-Taste-of-Mao-Inc-et-al.pdf" rel="noopener noreferrer" target="_blank">Wai Hung Chan v. A Taste of Mao, Inc.</a></em>, five employees asserted FLSA claims for unpaid minimum wage and overtime.&nbsp; Before the lawsuit was filed, the employer agreed with the DOL to pay back wages of $38,883.80 to 19 of its employees, including four of the five plaintiffs in the lawsuit. &nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/settlement/money-for-nothing-court-allows-employees-to-pursue-lawsuit-despite-dol-settlement/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=6cae198977-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-6cae198977-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA071817-LE Massachusetts Supreme Judicial Court Rules That Employers May Need To Accommodate Off-Duty Medical Marijuana Use http://www.seyfarth.com:80/publications/MA071817-LE Tue, 18 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>On July 17, 2017, the Massachusetts Supreme Judicial Court held that an employer could be liable under the Massachusetts Anti-Discrimination Act for disability discrimination by declining employment based on an individual&rsquo;s off-duty medical marijuana use.&nbsp; This landmark decision runs contrary to the majority of courts in other states that have considered similar questions, given that marijuana continues to be an illegal drug under federal law.&nbsp; Massachusetts employers with drug testing programs and drug-free workplace policies will need to reassess their policies and consider reasonably accommodating individuals&rsquo; off-duty medical marijuana use as a result of this decision.</em></p> <p> Marijuana use and possession are illegal under federal law.&nbsp; Like heroin, marijuana is a Schedule I substance under the Controlled Substances Act, meaning it has no accepted medical use and it has a high potential for abuse. &nbsp;Doctors cannot lawfully prescribe marijuana to patients under federal law. &nbsp;Notwithstanding, on July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) held that employers may have to allow employees to engage in off-duty use of marijuana for medical purposes.&nbsp; In <em>Barbuto v. Advantage Sales and Marketing</em>, the SJC reasoned that tolerating off-duty medical marijuana use may be a &ldquo;reasonable accommodation&rdquo; of a disability under the Massachusetts anti-discrimination statute.&nbsp;</p> <p> Cristina Barbuto, a woman diagnosed with Crohn&rsquo;s disease and Irritable Bowel Syndrome, accepted an offer for an office job with Advantage Sales and Marketing.&nbsp; According to Barbuto&rsquo;s complaint, the company sent her for a drug test.&nbsp; Barbuto told the company that she would test positive for marijuana because she uses it to treat her loss of appetite due to her medical conditions.&nbsp; She noted that she would never use marijuana during or before work.&nbsp; A supervisor responded that Barbuto&rsquo;s marijuana use &ldquo;should not be a problem.&rdquo;&nbsp; After Barbuto completed her first day of work, however, the company terminated her employment for testing positive for marijuana, stating &ldquo;we follow federal law, not state law.&rdquo; &nbsp;Among other things, Barbuto&rsquo;s complaint alleges that the company (1) discriminated against her on the basis of her disability in violation of the Massachusetts Fair Employment Practices Law (&ldquo;Anti-Discrimination Law&rdquo;); (2) violated the Massachusetts law that authorizes qualified individuals to use marijuana for medical reasons, An Act for the Humanitarian Medical Use of Marijuana (&ldquo;Medical Marijuana Act&rdquo;); and (3) terminated her employment in violation of public policy.</p> <p> The company moved to dismiss Barbuto&rsquo;s claims.&nbsp; It argued that Barbuto&rsquo;s discrimination claims must fail because she was not a &ldquo;qualified&rdquo; handicapped person.&nbsp; The company maintained that the only accommodation Barbuto requested--use of marijuana--is a federal crime, and therefore was facially unreasonable.&nbsp; The company also argued that it terminated her employment not because of her handicap but rather because she failed a drug test that all employees must pass. &nbsp;Regarding Barbuto&rsquo;s Medical Marijuana Act claim, the company argued that the law does not provide a private right of action, and that it merely decriminalizes medical marijuana use.&nbsp; Relying on similar logic, the company argued that Barbuto&rsquo;s public policy claim must fail.&nbsp; It asserted that the Medical Marijuana Act expresses no clear public policy that would forbid an employer from terminating an employee.&nbsp; The trial court agreed with the company and dismissed these claims.</p> <p> The SJC disagreed with the trial court&rsquo;s conclusion that employers need not tolerate medical marijuana use as a reasonable accommodation under the Anti-Discrimination Law.&nbsp; The SJC held that marijuana&rsquo;s illegality under federal law does not make it per se unreasonable to allow its off-duty medical use as an accommodation under the Anti-Discrimination Law.&nbsp; According to the SJC, the &ldquo;only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.&rdquo;&nbsp; An employer has no risk of criminal prosecution by permitting off-duty use of medical marijuana, which many states deem to have an accepted use in treating certain medical conditions.&nbsp; The SJC also concluded that, even if accommodating medical marijuana use were facially unreasonable, &ldquo;the employer here still owed the plaintiff an obligation under Massachusetts the Anti-Discrimination Law], before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use.&rdquo;&nbsp; Indeed, the SJC held that the failure to explore alternative accommodations alone is enough to support a handicap discrimination claim.&nbsp;</p> <p> The SJC also rejected the company&rsquo;s attempt to rely on its neutral drug testing policy.&nbsp; The SJC reasoned that &ldquo;where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap.&rdquo;&nbsp; In effect, the SJC refused to distinguish between Barbuto&rsquo;s disabilities and the treatment for the loss of appetite that she experiences because of them.</p> <p> Notably, the SJC limited its ruling.&nbsp; It held--consistent with the language in the Medical Marijuana Act--that employers have no obligation to accommodate on-the-job use of marijuana.&nbsp; The SJC also observed that its ruling &ldquo;does not necessarily mean that the employee will prevail in proving handicap discrimination.&rdquo;&nbsp; The SJC stated that the company could present evidence at summary judgment or trial to show that Barbuto&rsquo;s use of medical marijuana would impose an undue hardship.&nbsp; As examples, the SJC mentioned that an employer could prove that medical marijuana use would impair an employee&rsquo;s performance, create an &ldquo;unacceptably significant&rdquo; safety risk, or violate the employer&rsquo;s &ldquo;contractual or statutory obligations.&rdquo;&nbsp; The SJC also noted that the recent legalization of marijuana for recreational purposes in Massachusetts was irrelevant to the issues on appeal.</p> <p> The SJC agreed with the trial court&rsquo;s conclusions that (1) there is no private right of action under the Medical Marijuana Act, and (2) the Medical Marijuana Act does not give rise to a public policy claim.&nbsp; The SJC reasoned that while the Medical Marijuana Act decriminalizes medical marijuana use, it is silent concerning whether an individual can sue an employer under the Act.&nbsp; The Massachusetts Legislature was aware of its ability to create a private right of action, but it did not do so.&nbsp; The SJC further held that it would not recognize a public policy claim given the statutory action available under the Anti-Discrimination Law.</p> <p> The <em>Barbuto</em> decision departs from federal law regarding disability discrimination and the decisions from most courts in other states that have addressed similar claims.&nbsp; Employers need not tolerate off-duty use of medical marijuana as an accommodation under the Americans with Disabilities Act (&ldquo;ADA&rdquo;).&nbsp; Under the ADA, an individual who uses illegal drugs is not a &ldquo;qualified&rdquo; disabled person because marijuana is illegal under the federal Controlled Substances Act, as noted above.&nbsp; Relying on this rationale, at least in part, courts in other states have ruled largely in favor of employers.&nbsp; In <em>Barbuto</em>, the SJC interpreted Massachusetts law to reach a different conclusion.</p> <p> Because of the <em>Barbuto</em> decision, employers should audit their drug testing, hiring, and accommodation policies.&nbsp; At a minimum, Massachusetts employers should engage in the interactive process before taking adverse action based on an applicant or employee failing, or making it known that he or she will fail, a drug test due to off-duty medical marijuana use.&nbsp; Proactive employers may be able to avoid exposure and should consult with counsel before taking action.</p> http://www.seyfarth.com:80/publications/HCRMA071817 Issue 111: Is Health Care Reform DOA? http://www.seyfarth.com:80/publications/HCRMA071817 Tue, 18 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and eleventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>The Republican&rsquo;s efforts to repeal and replace the Affordable Care Act may be dead on arrival. &nbsp;The defection of a total of four Senators from support of BCRA 2.0 means that bill has no chance of passage. &nbsp;A pure repeal bill (like that in 2015) is now on the table, but three Senators have already come out against that course of action.&nbsp;</em></div> <div> &nbsp;</div> <div> We recently provided an analysis of the Republican party&rsquo;s efforts to repeal and replace Obamacare through the House&rsquo;s <a href="http://www.seyfarth.com/uploads/siteFiles/publications/87a6d085-bc6d-48b2-a51d-6b67aaac732c_HealthCareReformManagementAlert_Issue109_050517.pdf">American Health Care Act (&ldquo;AHCA&rdquo;)</a> and the Senate&rsquo;s <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue110_071417.pdf">Better Care Reconciliation Act (&ldquo;BCRA&rdquo;)</a>. &nbsp;Senators Rand Paul (KY) and Susan Collins (ME) immediately announced their opposition to BCRA 2.0 leaving Senator Mitch McConnell with the absolute minimum 50 Republican senators he needed to move the BCRA forward. &nbsp;Last night two more Republicans announced their opposition to the BCRA -- Senators Mike Lee (UT) and Jerry Moran (KS) -- effectively killing any chance of passage of the BCRA repeal and replace bill. &nbsp;While Republicans share a general animosity toward the Affordable Care Act (&ldquo;ACA&rdquo;), they are not united in their solutions to the ACA problem. &nbsp;Conservatives, led primarily by Senator Paul, favor a complete repeal of the ACA, while moderates hope to keep some of the more popular provisions and not lose the coverage expansions gained under the ACA. BCRA 2.0 had attempted to craft legislation that united these disparate Republican goals, but without success. &nbsp;</div> <div> &nbsp;</div> <div> Following Senators Lee and Moran&rsquo;s announcement, Senator McConnell and President Trump both signaled a change in course and advocated a complete repeal of the ACA with a two year sunset provision to allow them time to craft new health care reform legislation. &nbsp;Senator McConnell (who as recently as two weeks ago criticized full repeal as a possible avenue) would put in front of the legislature the same bill that was passed in 2015, at a time when the stakes were not as high knowing the bill would be vetoed by President Obama. &nbsp;</div> <div> &nbsp;</div> <div> While a full repeal would appeal to the conservative faction in the party, it is far from clear that Senator McConnell has enough votes among the moderates to accomplish repeal in the current environment. &nbsp;There is early word that three Republican senators (Collins, Capito and Murkowski) have already gone on record that they would oppose a repeal then replace scenario. &nbsp;Further, the numbers do not look good even compared to the AHCA and BCRA. &nbsp;Back in 2015, the Congressional Budget Office scored the full repeal bill and found that, in just the first year following enactment and before the ACA would be cancelled, 18 million more people would lose coverage and premiums would increase by 20-25% relative to projections under the ACA. &nbsp;In ten years, 32 million more people would lose insurance and premiums would double.</div> <div> &nbsp;</div> <div> In light of last night&rsquo;s and this morning&rsquo;s developments, the chance of repeal (with or without replacement) of the ACA is becoming remote. &nbsp;For planning and compliance purposes, employers should assume that the ACA remains the law of the land for the foreseeable future. &nbsp;Any health care reform changes would take the form of agency guidance, or bi-partisan legislative efforts which are likely to be far less comprehensive in scope.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/IMM071817 Employers Must Use New I-9 by September 18, 2017 http://www.seyfarth.com:80/publications/IMM071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> As expected, the U.S. Citizenship and Immigration Services (USCIS) &nbsp;released a revised version of Form I-9, Employment Eligibility Verification, on July 17. &nbsp;Employers can use this new Form I-9 or continue using the &nbsp;Form I-9 with a revision date of 11/14/16 N through September 17. &nbsp;As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable. &nbsp;The issuance of the new form does not necessitate employers &nbsp;&ldquo;redoing&rdquo; previously completed Form I-9s, this is going forward only.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/07/employers-must-use-new-i-9-by-september-18-2017/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=2cc80ae48a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-2cc80ae48a-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/EL071817 Texas Supreme Court Disputes Reach of Obergefell in Employee Benefits Case http://www.seyfarth.com:80/publications/EL071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> In a provocative opinion, in Pidgeon v. Turner, No. 15-0688, the Texas Supreme Court held that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/texas-supreme-court-disputes-reach-of-obergefell-in-employee-benefits-case/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3939bb3c12-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3939bb3c12-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM071717-LE The Consumer Financial Protection Bureau’s Summer Gift to Plaintiff’s Counsel http://www.seyfarth.com:80/publications/OMM071717-LE Mon, 17 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;&nbsp;The Consumer Financial Protection Bureau issued a final rule that exposes financial services companies to increased litigation by banning the use of arbitration agreements to block consumer class actions. Companies must revise their consumer contracts to include language informing consumers of their right to bring or participate in class actions. The rule becomes effective August 10, 2017, unless rescinded by Congress.</em></p> <div> The Consumer Financial Protection Bureau (&quot;CFPB&quot;) is ordering financial services companies to pull out a red pen and redraft all mandatory arbitration clauses in agreements for consumer financial products and services. As expected, the CFPB published&nbsp;<a href="https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201707_cfpb_Arbitration-Agreements-Rule.pdf">rule</a>&nbsp;prohibiting the use of pre-dispute arbitration agreements to block consumer class actions. The rule, which could be overruled before it takes effect, will likely increase compliance costs and litigation risks for businesses.</div> <div> &nbsp;</div> <div> The final arbitration rule is the result of section 1028(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (&ldquo;Dodd-Frank Act&rdquo;), wherein Congress directed the CFPB to study pre-dispute arbitration agreements and afterward authorized the CFPB to issue regulations restricting the use of arbitration agreements. The CFPB concluded that consumers rarely pursue claims on an individual basis because the individual amounts in dispute are low and that arbitration clauses typically waive the consumers&rsquo; right to seek relief on a class basis. According to the CFPB, these factors in combination effectively prevent consumers from obtaining any relief for valid claims. The CFPB drafted the rule to address these perceived concerns.</div> <div> &nbsp;</div> <div> <div> According to CFPB Director <a href="https://www.consumerfinance.gov/about-us/newsroom/cfpb-issues-rule-ban-companies-using-arbitration-clauses-deny-groups-people-their-day-court/">Richard Cordray</a>, &ldquo;Our new rule will stop companies from sidestepping the courts and ensure that people who are harmed together can take action together,&rdquo; but Senator <a href="http://thehill.com/policy/finance/341437-gop-senator-announces-effort-to-repeal-consumer-bureau-arbitration-rule">Tom Cotton</a> (R-AR), a member of the Senate Banking Committee, called the rule an &ldquo;anti-business regulation that will prompt frivolous lawsuits while hurting consumers.&rdquo;</div> <div> &nbsp;</div> </div> <p> <strong>KEY PROVISIONS IN THE RULE</strong></p> <p> The rule prohibits the inclusion of class-action waivers in pre-dispute arbitration agreements (cue plaintiff&rsquo;s counsel applauding the potential of new class action work). &nbsp;The rule requires covered providers to include the following notification in pre-dispute arbitration agreements:</p> <p style="margin-left:.5in;"> &ldquo;We agree that neither we nor anyone else will rely on this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action filed by someone else.&rdquo;</p> <p> The rule provides for a variation of this language where a customer may purchase more than one product or service or the customer has an existing pre-dispute agreement with the provider. Accordingly, this new requirement does not apply to pre-dispute agreements that already exist or products and services that were first provided before implementation of the rule.</p> <p> In addition to modifying pre-dispute arbitration agreements, the new rule mandates that covered providers submit filings attributable to a consumer arbitration claim or court proceeding involving consumer financial products or services covered by the rule, including but not limited to, the claim and any counterclaim, answer, and the pre-dispute arbitration agreement, and judgment or award. Such documents must be provided to the CFPB within 60 days of the provider filing the record with the arbitrator or court. In turn, the CFPB will be establishing and maintaining a repository of the records provided, which is expected to be made publically available by July 1, 2019.</p> <p> The final rule applies to providers--individuals, partnerships, companies, or other entities as defined in 12 U.S.C. 5481(19)--of certain consumer financial products and services in the &ldquo;core consumer financial markets of lending money, storing money, and moving or exchanging money.&rdquo; &nbsp;Excluded providers generally include persons or entities governed by the Securities and Exchange Commission or Commodity Futures Trading Commission, such as registered brokers or investment advisers. &nbsp;</p> <p> <strong>IMPLEMENTATION TIMING</strong></p> <div> Unless rescinded, the final rule will become effective 60 days after the rule is published in the Federal Register and will apply to agreements entered into after the end of the 180-day period measured from the effective date. Thus, if the rule is published in the Federal Register this month, it will likely begin applying to new agreements sometime in March 2018.</div> <div> &nbsp;</div> <div> Because there is strong opposition to the rule, however, the rule could be rescinded before it becomes effective. Under the Congressional Review Act (&quot;CRA&rdquo;), Congress can override the rule by a simple majority vote and the President&rsquo;s signature within 60 legislative days of the rule&rsquo;s publication in the Federal Register. Republicans in the House and Senate, including Senate Banking Committee Chairman Mike Crapo (R-ID) and House Financial Services Committee Chairman <a href="https://financialservices.house.gov/news/email/show.aspx?ID=WWIDJWTXSZENYPQDFQFC3RGLMQ">Jeb Hensarling</a> (R-TX) , have indicated that they will use the CRA to rescind the rule. If that effort is successful, the rule will not become effective. The CFPB will be prevented from imposing the rule and further barred from revisiting the subject regulation until permitted by Congress to do so. We are following this effort and will provide a future update.</div> <div> &nbsp;</div> <p> <strong>PREPARATION &amp; COMPLIANCE</strong></p> <p> Despite uncertainty as to whether the rule will go into play, covered providers should be proactive and prepare for compliance under the new rule. Noncompliance could subject covered providers to litigation and regulatory investigations.&nbsp; Covered providers should redraft their &nbsp;pre-dispute agreements to comport with the new rule, revise record-keeping policies to ensure maintenance of the records required for submission to the CFPB, and conduct&nbsp; training to apprise representatives of the new rule.</p> http://www.seyfarth.com:80/news/brar071717 Energy and Healthcare Litigator Kip Brar Joins Seyfarth in Houston http://www.seyfarth.com:80/news/brar071717 Mon, 17 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Kip Brar has joined the firm&rsquo;s Litigation department as a partner in Seyfarth&rsquo;s Houston office. Kip comes from Strasburger &amp; Price, LLP, where he served as a partner in Houston.</p> <p> Kip&rsquo;s practice focuses on high-stakes commercial litigation within the energy oil and gas, healthcare, and manufacturing industries. He has advised oil service companies, large petro-chemical producers, shipping corporations, offshore construction companies, and terminal operators facing a broad range of legal complexities. Kip also represents prominent healthcare systems and physician networks in both litigation and corporate matters.</p> <p> &ldquo;Kip is a very talented litigator with significant trial experience,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;He is joining a remarkable group of litigators in Houston who are quickly expanding their energy and healthcare services well beyond the Houston market.&rdquo;</p> <p> &ldquo;We are excited to welcome Kip to our team, Kip is dynamic and versatile, and fits our bench beautifully, especially with his health industry clients and expertise,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. &ldquo;His litigation practice further deepens our capabilities in the important healthcare and energy sectors in Houston.&rdquo;</p> <p> Kip received his J.D. from Baylor Law School where he was an Editor of the <em>Baylor Law Review</em>. He earned a B.A., with special honors, from the University of Texas. Kip serves as a Board of Director for the Southern District of Texas Chapter of the Federal Bar Association and is the Chamber Chats Committee Chair.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/saxman071717 Suzie Saxman quoted in Mergermarket http://www.seyfarth.com:80/news/saxman071717 Mon, 17 Jul 2017 00:00:00 -0400 <p> Suzie Saxman was quoted in a July 17 story from Mergermarket, &quot;The Deals, The Data &amp; The Drivers: Industrials slowed by fewer mega-deals,&quot; on the main transactions and trends in the Industrials and Chemicals sectors in 2Q17. Saxman said that relatively low interest rates and the availability of capital continue to fuel US companies in M&amp;A activities.</p> http://www.seyfarth.com:80/news/hoppe071417 Timothy Hoppe quoted in SHRM http://www.seyfarth.com:80/news/hoppe071417 Fri, 14 Jul 2017 00:00:00 -0400 <p> Timothy Hoppe was quoted in a July 14 story from SHRM, &quot;Victoria&rsquo;s Secret to Pay $12 Million to California On Call Workers,&quot; on how some cities have stepped in to pass legislation requiring employers to provide work schedules in advance or pay penalties. Hoppe said that the piecemeal legislation creates headaches for employers that operate in multiple locations. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/victoria%E2%80%99s-secret-to-pay-$12-million-to-california-on-call-workers.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/foodusa071417 Jay Connolly, Ed Maluf and Owen Wolfe authored an article in FoodNavigator-USA http://www.seyfarth.com:80/publications/foodusa071417 Fri, 14 Jul 2017 00:00:00 -0400 <p> Jay Connolly, Ed Maluf and Owen Wolfe authored a July 14 article in FoodNavigator-USA, &quot;GMO labeling... What we know and what may happen next.&quot; The article discusses one of the hottest topics in the food, beverage and dietary supplement industries, for both producers and advertisers: the disclosure of genetically modified organisms, or &lsquo;GMOs,&rsquo; in these products. You can read the <a href="http://www.foodnavigator-usa.com/Regulation/GUEST-ARTICLE-GMO-labeling-what-happens-next">full article here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA071417 Issue 110: Senate Efforts at Health Care Reform http://www.seyfarth.com:80/publications/HCRMA071417 Fri, 14 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and tenth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp;The epicenter of the health care repeal and replace effort has moved from the House of Representatives to the Senate. &nbsp;After several weeks of drafting behind closed doors, the Senate introduced the Better Care Reconciliation Act (BCRA) a few weeks ago, which faced immediate and heavy criticism. &nbsp;Seeing that he did not have enough votes to move the BCRA forward, Senator Mitch McConnell pulled the bill back to consider certain amendments to appease objections from various law makers. &nbsp;That effort has resulted in BCRA 2.0 released on Thursday, July 13th.</em></div> <div> &nbsp;</div> <div> In early May, the House passed the baton to the Senate on the Republicans&rsquo; repeal and replace efforts. The Senate was almost uniformly disdainful of the House efforts that produced the <a href="http://www.seyfarth.com/uploads/siteFiles/publications/87a6d085-bc6d-48b2-a51d-6b67aaac732c_HealthCareReformManagementAlert_Issue109_050517.pdf">American Health Care Act (&ldquo;AHCA&rdquo;)</a>. Even President Trump labelled it a &ldquo;mean&rdquo; bill. A small group in the Senate quickly went to work conducting their legislative efforts in secrecy (from fellow Republicans as well as Democrats) and many were holding out hope that the Senate would scrap the AHCA and create meaningful reform. However, the iterations of the Senate health care reform bill eventually released (the latest version of their Better Care Reconciliation Act, or &ldquo;BCRA&rdquo;, just this week) continue a similar approach as the House bill. The deep cuts to Medicaid remain and the Congressional Budget Office (CBO) score of the (first version of the) BCRA predicts 22 million fewer Americans will have coverage in ten years (as compared to the ACA) -- just slightly better than the 23 million under the AHCA.&nbsp;</div> <div> &nbsp;</div> <div> Almost immediately Republican Senators were publicly stating their opposition to the BCRA. &nbsp;A few were concerned with the loss of Medicaid coverage that would impact their states, others concerned that the opioid epidemic was not addressed, and still others felt the roll back of the ACA provisions did not go far enough. &nbsp;BCRA 2.0 was released on Thursday, July 13th, to try to meet some of those objections and retain the 50 Republican votes needed to pass. &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <strong>What Changed from BCRA 1.0 to BCRA 2.0?</strong></div> <div> &nbsp;</div> <div> Notable changes to the originally-drafted BCRA include:</div> <div> &nbsp;</div> <ul> <li> <em>Cruz Amendment. </em>&nbsp;Most notably, BCRA 2.0 includes a controversial amendment drafted by Senator Ted Cruz that creates a two-track structure -- one for policies offered on the Exchanges and another for insured policies not on an Exchange. &nbsp;Insurers will be allowed to issue policies that do not cover all essential health benefits and that take into account a person&rsquo;s health status, claims history, and disability condition (that is, take into account pre-existing conditions) as long as they also maintain compliant plans on the Exchanges. &nbsp;As a result, individuals with pre-existing conditions may not have affordable access to coverage except perhaps through the Exchanges. &nbsp;This change could certainly impact the individual market but it also has the potential to impact the group market (e.g., for employers fully-insuring health insurance coverage). &nbsp;BCRA 2.0 attempts to handle this concern by allocating funds to the Exchanges for high-risk claims -- a risk pool approach. &nbsp;What remains unclear is whether this proposal creates two risk pools or a single risk pool (covering both compliant and non-compliant plans). &nbsp;A last minute revision appears to have modified the Cruz amendment to lump both populations into the same risk pool. &nbsp;This change has led to some confusion among insurance carriers and even Senator Mike Lee (who was an ardent supporter of this amendment as originally proposed) as to how this might work. &nbsp;<br /> &nbsp;</li> <li> <em>Retention of ACA&rsquo;s Taxes on High Earners.</em> &nbsp;BCRA 2.0 also keeps some of the taxes in place that supported the ACA structure. &nbsp;The 3.8% tax on investment income and the 0.9% Medicare tax on high wage earners will remain in place, as will the deduction limit on salaries for insurance company executives. &nbsp;<br /> &nbsp;</li> <li> <em>Opioid Funding.</em> &nbsp;BCRA 2.0 increases the funding pool for addressing the opioid epidemic from $2 billion to $45 billion. &nbsp;<br /> &nbsp;</li> <li> <em>Use of HSAs for Premiums.</em> &nbsp;BCRA 2.0 would permit persons to use health savings account balances to pay health insurance premiums. &nbsp;<br /> &nbsp;</li> </ul> <div> <strong>What&rsquo;s Not Changing from BCRA 1.0?</strong></div> <div> &nbsp;</div> <div> Notably, in what could be a potential sticking point for moderate Republicans, the funding cuts to Medicaid and per capita cap system stay in place under BCRA 2.0. &nbsp;However, in the event of a public health emergency, state spending on related costs would not count towards the caps. &nbsp;It&rsquo;s unclear whether this tweak would be enough to win over moderate holdouts. &nbsp;</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> The CBO score on BCRA 2.0 has not come out yet. &nbsp;Some in the Senate are suggesting that the Department of Health and Human Services (HHS) should score the bill (or, at the very least, the Cruz Amendment) instead of the non-partisan CBO as it will be a faster process. &nbsp;That suggestion has met with pushback.&nbsp;</div> <div> &nbsp;</div> <div> If enough Republicans are swayed by the changes in BCRA 2.0 to get 50 votes, the Senate will likely vote next week (or before their August recess). &nbsp;If the 50 votes are not there, Senator Mitch McConnell may be forced to work with Democrats to get a meaningful reform effort off the ground.&nbsp;</div> <div> &nbsp;</div> <div> As of today, two Senate Republicans (conservative Rand Paul and moderate Susan Collins) have indicated they would not vote to move the bill to the floor for debate. &nbsp;This procedural vote will be crucial, because once the measure moves to the floor, Senator McConnell has more flexibility to cut deals with individual Senators to pick off opposition. &nbsp;</div> <div> &nbsp;</div> <div> <em>An updated (and necessarily simplified) chart comparing the ACA against the AHCA and BCRA can be found in the document linked below.</em></div> <div> &nbsp;</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL071317 Employment Law Lookout Readers: Cast Your Vote in the ABA’s Web 100 Competition! http://www.seyfarth.com:80/publications/EL071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> Voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, though this year the contest is a &ldquo;Web 100&rdquo; and will include websites and social media along with legal blogs. We hope you will cast your vote today to help Seyfarth&rsquo;s Employment Law Lookout blog get on the ABA&rsquo;s list for 2017.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/employment-law-lookout-readers-cast-your-vote-in-the-abas-web-100-competition/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=704aca0677-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-704aca0677-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/wh071317 Should I Stay or Should I Go Now: Federal Court Denies Class Certification to Supervisors Claiming In-Store Meal Breaks Violate Massachusetts Law http://www.seyfarth.com:80/publications/wh071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> The plaintiffs in <em>Romulus</em> alleged that as Shift Supervisors, they were required to remain in the store during certain of their unpaid meal breaks, particularly during times when no other managers were present in the store.&nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/mealrest-breaks/should-i-stay-or-should-i-go/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=67fbf09bc9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-67fbf09bc9-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/solowey071317 Dawn Solowey authored an article in Massachusetts Lawyers Weekly http://www.seyfarth.com:80/publications/solowey071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> Dawn Solowey authored a July 13 article in Massachusetts Lawyers Weekly, &quot;10 steps for preparing for an appellate argument.&quot; The article discusses how preparation for an appellate argument should go far beyond just re-reading the briefs and making an outline.</p> http://www.seyfarth.com:80/publications/MA071317-LE Newly Adopted “Freelance Isn’t Free” Rules Rife with Preemption Issues Under FAA http://www.seyfarth.com:80/publications/MA071317-LE Thu, 13 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Regulatory rules issued in connection with New York City&rsquo;s Freelance Isn&rsquo;t Free Act seek to prohibit arbitration of claims under the Act and class action waivers in contracts covered by the law.&nbsp; U.S. Supreme Court precedent strongly suggests this rule is preempted by the Federal Arbitration Act.</em></p> <p> Earlier this month, the New York City Department of Consumer Affairs (&ldquo;DCA&rdquo;) issued <a href="http://rules.cityofnewyork.us/sites/default/files/adopted_rules_pdf/dca_notice_of_adoption_-_freelance_isn_t_free_act_-_.pdf">Rules</a> implementing the Freelance Isn&rsquo;t Free Act.&nbsp; Among other notable provisions, the Rules prohibit arbitration and the use of class action waivers in contracts governed by the Act.</p> <p> As noted in our previous alerts (available <a href="http://www.seyfarth.com/publications/OMM120216">here</a> and <a href="http://www.seyfarth.com/publications/MA110816-LE">here</a>), the Freelance Isn&rsquo;t Free Act, which took effect on May 15, 2017, grants various protections for freelancers in New York City.&nbsp;</p> <p> <u><strong><em>Key Provisions in the Rules </em></strong></u></p> <p> <strong><em>Coverage</em></strong></p> <p> The Rules make clear that a &ldquo;freelance worker is entitled to the protections of the [Act] regardless of immigration status.&rdquo;&nbsp; The Rules also expand the definition of retaliation to include &ldquo;any adverse action relating to perceived immigration status or work authorization.&rdquo;</p> <p> <strong><em>Adverse Action</em></strong></p> <p> The definition of &ldquo;adverse action&rdquo; under the law for purposes of retaliation was expanded beyond the act or action by a hiring party, to include any action by a hiring party, its actual or apparent agent, or any other person acting directly or indirectly on behalf of a hiring party.&nbsp;</p> <p> Further, the anti-retaliation provisions extend to a hiring party that takes any action reasonably likely to deter a freelance worker from exercising or attempting to exercise any right under the Act, regardless of whether that hiring person previously has been a party to a contract with the freelance worker, or was the subject of a complaint by the freelance worker.</p> <p> <strong><em>Contract Value</em></strong></p> <p> The Rules also clarify that for purposes of determining whether a contract falls under the scope of the Act, its value includes the &ldquo;reasonable value of all or actual anticipated services, costs for supplies and any other expenses under the contract.&rdquo;</p> <p> When determining civil penalties, the value of the underlying contract &ldquo;shall include the reasonable value of all services performed and/or anticipated, and reasonable costs for supplies and any other expenses reasonably incurred by the freelancer worker.&rdquo;</p> <p> <strong><em>Prohibition Against Arbitration? </em></strong></p> <p> The Rules provide that any contract entered into by a hiring party and a freelance worker may not include any waiver or limitation of rights under the Act.&nbsp; The <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-Freelance.pdf">FAQs</a> issued by the DCA seemingly interpret this language to prohibit contractual language that waives a freelancer worker&rsquo;s rights to participate in a lawsuit.&nbsp;</p> <p> The Rules go on to prohibit class action waivers, by deeming void any contractual language that &ldquo;waives or limits a freelance workers&rsquo; right to participate in or receive money or any other relief from any class, collective or representative proceeding.&rdquo;&nbsp;</p> <p> It is unclear how these Rules, separately or in the aggregate, can survive preemption under the Federal Arbitration Act (&ldquo;FAA&rdquo;).&nbsp; In 2011, the Supreme Court held that a California rule that operated to preclude enforcement of class action waivers in consumer arbitration agreements was preempted by the FAA.&nbsp; <em>See AT&amp;T Mobility LLC v. Concepcion</em>, 563 U.S. 333 (2011).&nbsp; The Court held that when a &ldquo;state law prohibits outright the arbitration of a particular type of claim, . . . [t]he conflicting rule is displaced by the FAA.&rdquo;&nbsp; The Court unequivocally stated that &ldquo;[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.&rdquo;&nbsp; Notably, in <em>Concepcion</em>, the Court did not have the opportunity to consider a rule that outright prohibited arbitration, as the Rules issued by the DCA do.&nbsp;&nbsp;</p> <p> The Rules also declare as void any contractual provision that seeks to limit &ldquo;any other procedural right normally afforded to a party in a civil or administrative action,&rdquo; including such rights under the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure.&nbsp; This provision is likely aimed at contractual provisions which curtail the availability or scope of discovery in arbitration or the availability of jury trials.&nbsp; These provisions may be subject to FAA preemption as well, although the outcome of such a legal challenge is not as clear.</p> <p> <strong><em>Conclusion </em></strong></p> <p> As of this writing, the Rules are slated to take effect on July 24, 2017.&nbsp; Employers who hire freelance workers or independent contractors in New York City should take steps to implement the Rules by the effective date. &nbsp;With respect to the arbitration provisions of the Rules, employers that wish to include arbitration clauses and class action waivers should consult with counsel to discuss their legal options.</p> http://www.seyfarth.com:80/publications/ERISA070717 Texas Supreme Court Disputes Reach of Obergefell in Employee Benefits Case http://www.seyfarth.com:80/publications/ERISA070717 Thu, 13 Jul 2017 00:00:00 -0400 <p> In a provocative opinion, in <em>Pidgeon v. Turner</em>, No. 15-0688, the Texas Supreme Court held that <em>Obergefell v. Hodges</em>, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/07/07/texas-supreme-court-disputes-reach-of-obergefell-in-employee-benefits-case/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=6ce9e0578e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-6ce9e0578e-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM071317-LE San Francisco’s Salary History Ban “Finally Passes” After Two Rounds of Votes http://www.seyfarth.com:80/publications/OMM071317-LE Thu, 13 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: San Francisco is likely to be the next jurisdiction to prohibit employers from asking job applicants about wage history.&nbsp; If signed by the Mayor, as expected, the law will go into effect on July 1, 2018 (with attendant penalties to take effect on January 1, 2019).</em></p> <p> On July 11, 2017, the Board of Supervisors for the City and County of San Francisco (the &ldquo;City&rdquo;) passed the &ldquo;Parity in Pay Ordinance,&rdquo; prohibiting employers from inquiring about a job applicant&rsquo;s salary history.</p> <p> Several erroneous reports by others indicated that the ordinance passed on June 27, 2017. Supervisors in San Francisco, however, get two bites at the apple before an ordinance is passed. After an ordinance is out of committee, it is presented for a first reading and the supervisors cast their initial vote. Here, the Parity in Pay Ordinance &ldquo;Passed On First Reading&rdquo; on June 27, 2017. Thereafter, the ordinance was put up for a second vote at the next Board of Supervisors Meeting 14 days later on July 11, 2017, where it was &ldquo;Finally Passed.&rdquo; Even after these two hurdles, the ordinance still is not law. The ordinance now needs to be presented to the Mayor for enactment.</p> <p> <strong>What is Forbidden?</strong><br /> <br /> The ordinance would ban employers, those with contracts with the City, and their agents from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant, and from asking applicants about their current or past salary.&nbsp; The ordinance would also to prohibit disclosing a current or former employee&rsquo;s salary history without that employee&rsquo;s authorization unless the salary history is publicly available.</p> <p> <strong>Changes to the Ordinance</strong></p> <p> The ordinance has evolved since its initial introduction in April 2017, as discussed <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">here</a>, with the Government Audit and Oversight Committee weighing in on the final version of the ordinance that was presented to the Supervisors for a vote. The following highlights reflect the most significant changes to the revised <a href="https://sfgov.legistar.com/View.ashx?M=F&amp;ID=5276508&amp;GUID=E138BD49-C709-4371-941A-0865F7C5B4E8">version</a> of the salary history ban:</p> <ul> <li> The salary history ban covers an application for any type of job for wages, including temporary or seasonal work and commissioned work.</li> <li> The ordinance no longer solely impacts those seeking employment within the geographic boundaries of the City.&nbsp; Now, if the sought after employment will be performed on City property or under contract funded by the City, employers may not ask about the applicant&rsquo;s current or past salary.&nbsp; According to Supervisor Mark Farrell&rsquo;s legislative aide, &ldquo;City property&rdquo; includes San Francisco Airport, although the airport is technically outside the city limits.</li> <li> The revised ordinance clarifies that the ban will not prohibit a prospective employer and applicant from discussing the applicant&rsquo;s pay expectations or any financial benefit the applicant would have to forego in order to take the new job (e.g., unvested equity or a future bonus through a current employer).</li> <li> If an applicant voluntarily, and without prompting by the prospective employer, discloses his/her salary history, the ordinance now permits the employer to consider that information.&nbsp; However, the ordinance clarifies that Salary History by itself cannot be used to justify paying any employee of a different sex, race or ethnicity less than such Applicant or prospective employee for doing substantially similar work under similar working conditions, in accordance with California Labor Code Section 1197.5.</li> <li> The ordinance instructs the City&rsquo;s Office of Labor Standards Enforcement (the &ldquo;OLSE&rdquo;) to create a posting detailing applicants&rsquo; rights that the employer must display in a conspicuous place.</li> <li> Penalties are now even steeper.&nbsp; Starting in January 2019, employers who violate the ordinance face penalties ranging from $100 to $500 per employee per violation.&nbsp; While contractors with the City may only be charged between $50 and $100 per violation, the City also can exercise the option to terminate the contract for violations of the salary ban with all outstanding moneys due being forfeited and retained by the City.</li> <li> If a single act by an employer impacts multiple applicants at the same time&mdash;e.g., if a written job application for a particular position includes a question about the applicant&rsquo;s salary history&mdash;the OLSE has the discretion to treat that violation as a single violation.</li> </ul> <p> <strong>Implementation Timing</strong></p> <p> If signed by the Mayor, as expected, the law will go into effect on July 1, 2018&mdash;with attendant penalties to take effect on January 1, 2019&mdash;thereby joining <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>,&nbsp; <a href="http://www.seyfarth.com/publications/OMM012717LE">Philadelphia</a>,&nbsp; <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM062317LE.pdf">Delaware</a>, Puerto Rico, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM060817LE2.pdf">Oregon</a> and <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a> in banning employers from asking applicants about their salary history.&nbsp; Employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices. &nbsp;</p> <p> We are tracking these efforts in the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">50-State Desktop Pay Equity Reference</a>.</p> http://www.seyfarth.com:80/news/bufton071317 Seyfarth Represents Shure in its Expansion into Downtown Chicago http://www.seyfarth.com:80/news/bufton071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> CHICAGO - (July 13, 2017) - Seyfarth Shaw LLP represented Shure Incorporated, the world&rsquo;s leading microphone manufacturer, in its office expansion to 125 S. Clark St. in downtown Chicago. The global leader for superior audio electronics leased 35,000 square feet in the renovated National, a 20-story building that was once home to the headquarters of Chicago Public Schools.</p> <p> Seyfarth Real Estate partner Kelly Bufton represented Shure Incorporated.</p> http://www.seyfarth.com:80/publications/PEG071317 San Francisco’s Salary History Ban “Finally Passes” After Two Rounds of Votes http://www.seyfarth.com:80/publications/PEG071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em> <em>San Francisco is likely to be the next jurisdiction to prohibit employers from asking job applicants about wage history. &nbsp;If signed by the Mayor, as expected, the law will go into effect on July 1, 2018 (with attendant penalties to take effect on January 1, 2019)</em>.</p> <p> <em><strong>To view the full post,&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog071317(1).pdf">click here</a>.</strong></em></p> http://www.seyfarth.com:80/news/degroff071217 Christopher DeGroff quoted in the Cook County Record http://www.seyfarth.com:80/news/degroff071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Christopher DeGroff was quoted in July 12 story from the Cook County Record, &quot;Expert: Companies&#39; anti-discrimination policy should be part of culture,&quot; on why businesses should proactively adopt strategic hiring rules. DeGroff said that employers absolutely should be aware that the EEOC is keeping a close eye on the hiring practices of businesses. You can read the <a href="http://cookcountyrecord.com/stories/511141444-expert-companies-anti-discrimination-policy-should-be-part-of-culture">full article here</a>.</p> http://www.seyfarth.com:80/news/weiss071217 Philippe Weiss interviewed by WGN Radio http://www.seyfarth.com:80/news/weiss071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed on July 12 by WGN Radio on a recent study about the level of weariness women and men feel spending one-on-one time with the opposite sex. You can listen to the <a href="http://wgnradio.com/2017/07/12/wintrust-business-lunch-71217-il-31st-for-business-lsd-inappropriate-work-situations/">full segment at minute 19:50 here</a>.</p> http://www.seyfarth.com:80/news/laken071217 Ashley Laken quoted in Human Resource Executive http://www.seyfarth.com:80/news/laken071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Ashley Laken was quoted in a July 12 story from Human Resource Executive, &quot;Is the Persuader Rule in Peril?&quot; on the Department of Labor&#39;s recently issued notice of proposed rulemaking that would formally rescind the Obama administration&#39;s so-called persuader rule. Laken said that the final persuader rule would have left employers and their advisors often guessing about what needed to be reported, would have required employers and their outside lawyers to periodically and publicly disclose confidential information about their relationships for any activities that were newly reportable, and would therefore have discouraged employers from seeking needed legal advice. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362778">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360071217 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 12 story from Law360, &quot;Tough Questions Expected For Trump&#39;s NLRB, DOL Picks,&quot; on the Senate confirmation hearings for the President&#39;s picks to fill the National Labor Relations Board&#39;s two vacancies. Babson said that he would be surprised if these nominees, like any prior nominees to the NLRB, or even judicial nominee, would express an opinion on a particular matter.</p> http://www.seyfarth.com:80/news/babsonbna071217 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 12 story from Bloomberg BNA, &quot;Combined Hearing for Three Labor Nominees Slammed by Democrats,&quot; on the Senate confirmation hearings for the President&#39;s two appointments to the NLRB. Babson said that they&rsquo;re very experienced labor practitioners&mdash;one from the Hill and one from private practice. You can read the <a href="https://www.bna.com/combined-hearing-three-n73014461637/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP071217 Need Cool Relief From Summer Heat? Try a Refreshing Handbook Update! http://www.seyfarth.com:80/publications/CP071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Although there&rsquo;s no right or wrong time to do a handbook update, we recommend them annually. Might as well take the opportunity when operations are typically slower, summertime, to give your handbook a shine. We&rsquo;ve highlighted a few areas upon which to focus when you do so.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/12/need-cool-relief-from-summer-heat-try-a-refreshing-handbook-update/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=e278993aac-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-e278993aac-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/WH071117 The Tenth Circuit Takes the DOL Tipping Rule Off the Menu http://www.seyfarth.com:80/publications/WH071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> In <em>Marlow v. The New Food Guy, Inc.</em>, a unanimous <a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/Tenth-Circuit.pdf" rel="noopener noreferrer" target="_blank">Tenth Circuit</a>&nbsp;panel (decided by two judges instead of three due to Justice Gorsuch&rsquo;s ascension) held that an employer that pays its employees at least minimum wage does not violate the FLSA by retaining customer tips. The Tenth Circuit first found that the catering company, Relish, complied with the FLSA by paying the employee $12 an hour, which is above minimum wage, and held that Section 203(m) of the FLSA, which regulates tips when tips are used to satisfy the minimum hourly wage, does not apply in this case.</p> <p> <a href="http://www.wagehourlitigation.com/service-chargesgratuities/the-tenth-circuit-takes-the-dol-tipping-rule-off-the-menu/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=dc336908cb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-dc336908cb-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc071117 Calling All Readers! The Workplace Class Action Blog Is In The Running For The ABA Journal Blawg 100 Award! http://www.seyfarth.com:80/publications/wc071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> Voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, and we hope you will cast your vote today to help Seyfarth&rsquo;s Workplace Class Action blog get on the ABA&rsquo;s list for 2017.</p> <p> <a href="http://www.workplaceclassaction.com/2017/07/calling-all-readers-the-workplace-class-action-blog-is-in-the-running-for-the-aba-journal-blawg-100-award-3/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=9134ecdd3f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-9134ecdd3f-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071117 The Third Circuit Addresses the Defend Trade Secrets Act and Appears to Have Applied the Inevitable Disclosure Doctrine http://www.seyfarth.com:80/publications/TS071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> The Defend Trade Secrets Act (DTSA) states very clearly that an injunction issued pursuant thereto may not &ldquo;prevent a person from entering into an employment relationship,&rdquo; and that any conditions placed on a former employee&rsquo;s employment in an injunction must be based on &ldquo;evidence of threatened misappropriation <em>and not merely on the information the person knows</em>.&rdquo; (Emphasis added). This language appears to bar injunctive relief under the DTSA based on the &ldquo;inevitable disclosure doctrine,&rdquo; which in some states permits a court to enjoin a former employee from working for a competitor&mdash;even in the absence of a signed non-compete agreement&mdash;if it can be established that the employee would &ldquo;inevitably&rdquo; (even if inadvertently) use his or her former employer&rsquo;s trade secrets on behalf of a new employer. As a result, when the statute was first enacted, many commentators assumed that claims based on the inevitable disclosure doctrine would quickly be shot down. In practice, however, that does not appear to be the case. At the very least, some recent federal court decisions have sown confusion around this issue.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/the-third-circuit-addresses-the-defend-trade-secrets-act-and-appears-to-have-applied-the-inevitable-disclosure-doctrine/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=04e031db0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-04e031db0c-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071017 Robert Milligan to Present “Effective Use of Non-Compete Agreements by International Employers” Webinar http://www.seyfarth.com:80/publications/TS071017 Mon, 10 Jul 2017 00:00:00 -0400 <p> Robert B. Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group, will be a speaker for the &ldquo;Effective Use of Non-Compete Agreements by International Employers&rdquo; webinar presented by Practicing Law Institute (&ldquo;PLI&rdquo;) on August 10, 2017 at 1:00 p.m. Eastern.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/noncompete-enforceability/robert-milligan-to-present-effective-use-of-non-compete-agreements-by-international-employers-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=04e031db0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-04e031db0c-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS071317 The future of work: managing a workforce that is away half the year http://www.seyfarth.com:80/publications/WLS071317 Mon, 10 Jul 2017 00:00:00 -0400 <p> The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business &ndash; another is the movement towards arranging their life so that they spend substantial periods of time not working at all.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/07/managing-a-workforce-that-is-away-half-the-year/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=d5734e1db7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-d5734e1db7-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/presidential-pulse Presidential Pulse http://www.seyfarth.com:80/publications/presidential-pulse Mon, 10 Jul 2017 00:00:00 -0400 <table border="0" cellpadding="2" cellspacing="2" style="width: 570px; height: 314px;"> <tbody> <tr> <td colspan="1" rowspan="1" style="text-align: center;"> <img alt="Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/CrainPresPulseBanner.png" style="width: 500px; height: 172px;" title="Mergers &amp; Acquisitons Header" /></td> </tr> <tr> </tr> <tr> </tr> <tr> <td> <table border="0" cellpadding="2" cellspacing="2" style="width: 608px; height: 890px;"> <tbody> <tr> <td style="width: 260px; vertical-align: top;"> <p> &nbsp;</p> <p> <em>Welcome to Seyfarth Shaw&rsquo;s Presidential Pulse Digest, a round-up of analysis by Seyfarth&rsquo;s leading policy team on the business impact of President Donald Trump&rsquo;s policy agenda. President Trump is following through rapidly on his campaign pledge to immediately overhaul, overturn and eliminate a long list of federal laws and regulations. The political, legal and business ramifications of President Trump&rsquo;s new administration are being felt by businesses and individuals across the United States and around the world.&nbsp;</em></p> <p> <em>Our attorneys will continue to monitor these developments and will keep you informed of the impact of these changes. Subscribe by clicking the button below to receive the Presidential Pulse Digest.</em></p> <p> &nbsp;</p> <div style="text-align: center;"> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=jnClo_aWrJA_LJhZLwuUI798M7uWfIc1XNAzdJz9p2ifRCWrtSPNOdbL9zagrSol" target="_blank"><img alt="Subscribe to Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/RedSubscribeButton.jpg" style="width: 165px; height: 40px;" /></a></p> <p> &nbsp;</p> <div> <hr /> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Management-Side Attorney Nominated for Final Seat on NLRB</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Employer Labor Relations Blog - June 29, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">The Future of Dodd-Frank: Where is it Going?</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>One Minute Memo - June 26, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Steve Mnuchin, the Secretary of the Treasury, put forth the first of several Reports proposing financial reforms. Much of the Report makes sweeping changes to Dodd- Frank, the legislation put in place after the 2008 financial crisis. The Report comes on the heels of the Financial Choice Act, introduced by House Republicans, which also proposes repealing key provisions of Dodd-Frank. These actions are the opening salvo in what is expected to be a protracted and complicated effort to curb the regulations that make up Dodd-Frank, which is considered by many Republicans to be legislation which has stifled economic growth and hurt the banking industry. This One Minute Memo will update you on both initiatives, including efforts to curb the power of the CFPB.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM062617-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Travel Ban Update: The United States Supreme Court Will Hear The Appeal Over President Donald Trump&rsquo;s Revised Travel Ban Next Term And Reinstates Parts Of The Ban</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>One Minute Memo - June 26, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;U.S. Supreme Court will hear oral arguments on the Travel Ban in their next term. Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM062617-LE2">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div style="text-align: left;"> <br /> <strong style="text-align: left; color: rgb(0, 52, 121); font-size: 24px;">DOL Withdraws Guidance on Independent Contractors and Joint Employers: What It Means and What Employers Should Do Now</strong></div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Management Alert - June 20, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em> United States Secretary of Labor Alexander Acosta recently withdrew the federal Wage &amp; Hour Division&rsquo;s (WHD) Obama-era guidance documents on independent contractors and joint employment. Those documents, known as Administrator Interpretations, set forth WHD&rsquo;s understanding of the concepts involved in determining &ldquo;employer&rdquo; status under the Fair Labor Standards Act. By now, you have likely seen the numerous immediate reactions of lawyers and other commentators published in the wake of the withdrawals. Ours was among them. Now that there has been some time to give deeper contemplation to the withdrawals, this Alert offers a more detailed analysis of what happened and what it means.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/MA062017-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <hr /> </div> </div> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> <p> &nbsp;</p> <h2> &nbsp;</h2> http://www.seyfarth.com:80/publications/MA070717-LIT Nevada Adds Requirements for Valid Non-Competition Agreements and Allows Blue-Penciling http://www.seyfarth.com:80/publications/MA070717-LIT Fri, 07 Jul 2017 00:00:00 -0400 <div> On June 3, 2017, Governor Sandoval signed Assembly Bill 276 into law, amending Nevada Revised Statute 613, which governs non-competition agreements. Notably, the law adds requirements to the enforceability and validity of non-competition agreements, and now allows courts to &ldquo;blue-pencil,&rdquo; directly at odds with Nevada Supreme Court&rsquo;s recent decision in <em>Golden Road Motor Inn, Inc. v. Islam</em>, 376 P.3d 151 (Nev. 2016).</div> <div> &nbsp;</div> <h2> <em>Golden Road Motor Inn</em> and Blue-Penciling &nbsp;</h2> <div> In <em>Golden Road Motor Inn</em>, the Nevada Supreme Court refused to adopt the blue pencil doctrine, which refers to a court&rsquo;s ability to strike or modify unreasonable or overly broad clauses in a non-compete agreement, and enforce the revised or modified agreement. The Court refused to blue pencil for the employer because the court viewed it as inappropriate to rewrite the parties&rsquo; contract, as courts generally are not empowered to make private agreements. The Court held that an unreasonable clause in a non-competition agreement rendered the entire agreement unenforceable. Now, under Nevada&rsquo;s amended law, the court is empowered to revise a non-competition agreement to the extent necessary and to enforce the revised agreement.&nbsp;</div> <div> &nbsp;</div> <div> The <em>Golden Road Motor Inn</em> Court expressly noted that the Georgia Legislature &ldquo;implemented laws attempting to advance blue penciling in Georgia courts,&rdquo; but the provision, which stated that courts must reform unlawful contracts, was held unconstitutional. A revised provision, stating that courts may blue pencil, &ldquo;did not affect Georgia&rsquo;s precedent,&rdquo; allowing for the survival of the courts&rsquo; anti-blue-pencil rule.&nbsp;</div> <div> &nbsp;</div> <div> Given the practice of some Nevada judges against blue-penciling, the impact of this change to Nevada law is uncertain, as some courts may not do as they are empowered to. Thus, Nevada employers should still ensure their non-compete agreements contain appropriate specificity.</div> <div> &nbsp;</div> <h2> Four Requirements for Enforceable Non-Competes</h2> <div> The law also establishes rules for valid non-competition agreements. Under the new law, a non-competition agreement is void and unenforceable unless the agreement satisfies four requirements. The agreement must:&nbsp;</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> (1) be supported by valuable consideration;&nbsp;</div> <div style="margin-left: 40px;"> (2) not impose a restraint greater than what is required to protect the employer;&nbsp;</div> <div style="margin-left: 40px;"> (3) not impose an undue hardship on the employee; and&nbsp;</div> <div style="margin-left: 40px;"> (4) impose restrictions that are appropriate in relation to the valuable consideration supporting the agreement.</div> <div> &nbsp;</div> <div> In addition, the law provides that a non-competition agreement is only enforceable during the time in which the employer is paying the employee&rsquo;s salary, benefits, or equivalent compensation if an employee is terminated because of a reduction in force, reorganization, or similar restructuring.</div> <div> &nbsp;</div> <h2> Limits on Restricting Former Employees&rsquo; Contact with Customers&nbsp;</h2> <div> Finally, the law limits the reach of employers over former employees&rsquo; contact with customers. A non-competition agreement may not restrict a former employee from providing services to a former customer or client if:&nbsp;</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> (1) the former employee did not solicit the former customer or client;&nbsp;</div> <div style="margin-left: 40px;"> (2) the customer or client voluntarily chose to leave and seek the services of the employee; and&nbsp;</div> <div style="margin-left: 40px;"> (3) the former employee is otherwise complying with the non-competition agreement.</div> <div> &nbsp;</div> <div> In light of these changes, employers should review their existing non-competition agreements for compliance with the updated Nevada law and ensure that their agreements and practices are consistent with the new law&rsquo;s requirements. &nbsp;&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/ts070717 California Federal Court Finds CUTSA Preemption on Unfair Competition Claim in Uber Row http://www.seyfarth.com:80/publications/ts070717 Fri, 07 Jul 2017 00:00:00 -0400 <p> Uber&rsquo;s ongoing battle with Waymo in the Northern District of California federal court over technology used in self-driving cars provided another significant decision concerning the broad scope of trade secret preemption under California state law.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/california-federal-court-finds-cutsa-preemption-on-unfair-competition-claim-in-uber-row/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wse070717 OSHA Releases PSM Guidance for Explosives and Pyrotechnics Manufacturing and for Storage Facilities http://www.seyfarth.com:80/publications/wse070717 Fri, 07 Jul 2017 00:00:00 -0400 <p> OSHA recently released guidance documents on <a href="https://www.osha.gov/Publications/OSHA3912.pdf">Process Safety Management for Explosives and Pyrotechnics Manufacturing</a> (PSM Explosive Pyrotechnics Guidance) (OSHA 3912-03 2017), and the <a href="https://www.osha.gov/Publications/OSHA3909.pdf">Process Safety Management for Storage Facilities</a> (PSM Storage Guidance)&nbsp;(OSHA 3909-03 2017).</p> <p> <a href="http://www.environmentalsafetyupdate.com/atf/osha-releases-psm-guidance-for-explosives-and-pyrotechnics-manufacturing-and-for-storage-facilities/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=7ed3fcb9d8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-7ed3fcb9d8-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts070617b Nevada Enacts New Non-Compete Law http://www.seyfarth.com:80/publications/ts070617b Thu, 06 Jul 2017 00:00:00 -0400 <p> On June 3, 2017, Governor Sandoval signed Assembly Bill 276 into law, amending Nevada Revised Statute 613, which governs non-competition agreements. Notably, the law adds requirements to the enforceability and validity of non-competition agreements, and importantly, now allows courts to &ldquo;blue-pencil&rdquo; non-competition agreements,&nbsp;overturning Nevada Supreme Court&rsquo;s recent decision in <em>Golden Road Motor Inn, Inc. v. Islam</em>.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/noncompete-enforceability/nevada-enacts-new-non-compete-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts070617a Robert Milligan to Present “Growing Importance of Trade Secrets in Protecting Emerging Technology” Webinar http://www.seyfarth.com:80/publications/ts070617a Thu, 06 Jul 2017 00:00:00 -0400 <p> Robert B. Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group, will be a panelist for the &ldquo;Growing Importance of Trade Secrets in Protecting Emerging Technology&rdquo; webinar presented by ITechLaw&rsquo;s Intellectual Property Committee on July 11, 2017 at 11:00 a.m. Eastern.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/robert-milligan-to-present-growing-importance-of-trade-secrets-in-protecting-emerging-technology-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts070617 Technically Speaking, Cybersecurity Isn’t About Speaking Technically http://www.seyfarth.com:80/publications/ts070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> These days cybersecurity seems to be all about technology. Pen testing, firewalls, port scanning, SIEM, zero-day, IPS, AES256, SHA, DMZ, NIDS, TLS, SS7 &ndash; I&rsquo;ll stop. I could go on, but you get the idea. And I have a vested interest in keeping your attention.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/cybersecurity/technically-speaking-cybersecurity-isnt-about-speaking-technically/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2a0146c678-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2a0146c678-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatman070617 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatman070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 6 story from Law360, &quot;The Biggest Employment Cases In The First Half Of 2017,&quot; on the the need for employers to take religious accommodation requests seriously. Maatman said that most employers respect their obligation to reasonably accommodate disabilities, but may not be as serious about their similar obligation to accommodate an employee&rsquo;s religious beliefs.</p> http://www.seyfarth.com:80/news/leon070617 Leon Rodriguez quoted in Reveal News http://www.seyfarth.com:80/news/leon070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 6 story from Reveal News, &quot;A judge said these kids get a green card. ICE says they get deported,&quot; on how U.S. immigration officials are seeking to deport children who have received a special status for vulnerable migrants and are in the final stages of getting their green cards. Rodriguez said that the immigration administration is saying they don&rsquo;t care &ndash; that the risks that lie beyond the border are not their problem. You can read the <a href="https://www.revealnews.org/article/a-judge-said-these-kids-get-a-green-card-ice-says-they-get-deported/">full article here</a>.</p> http://www.seyfarth.com:80/news/passshrm070517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passshrm070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 5 story from SHRM, &quot;DOJ Abandons Defense of Increased Salary Level in 2016 Overtime Rule.&quot; Passantino said that Labor departments in Republican and Democrat administrations alike have asserted the ability to set a salary level as part of the white-collar exemption tests. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/dol-right-to-set-salary-threshold.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinoshrm070517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 5 story from SHRM, &quot;Revival of Opinion Letters Signals DOL Will Listen to Employers More Closely.&quot; Passantino said that, by reviving opinion letters, the Department of Labor (DOL) is sending the message that it genuinely wants to hear from employers on the compliance issues troubling them. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/opinion-letters-return.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/ts070517 Webinar Recap! Protecting Your Trade Secrets in the Pharmaceutical Industry http://www.seyfarth.com:80/publications/ts070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s third webinar in its series of 2017 Trade Secrets Webinars, Seyfarth attorneys Justin Beyer, Marcus Mintz, Dean Fanelli, and Thomas Haag focused on how to define and protect trade secrets in the pharmaceutical industry, including: reviewing significant civil and criminal cases in the industry, discussing how federal and state trade secret statutes and decisions may impact the protection of trade secrets, and suggested best practices for protecting trade secrets from invention through sale.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/trade-secrets/webinar-recap-protecting-your-trade-secrets-in-the-pharmaceutical-industry/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2a0146c678-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2a0146c678-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL070517 11th Circuit Reminds Employers: Proceed Cautiously When Terminating Employees Shortly After FMLA Leave http://www.seyfarth.com:80/publications/EL070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> In Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017), Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay (Accentia), a long-term-care nursing facility, in Florida state court. &nbsp;Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family Medical Leave Act (FMLA) and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones&rsquo;s claims.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/11th-circuit-reminds-employers-proceed-cautiously-when-terminating-employees-shortly-after-fmla-leave/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8be5789724-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8be5789724-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/GPW070317 “Opening Clauses” and the GDPR – It Might Not Be As Easy As We Thought http://www.seyfarth.com:80/publications/GPW070317 Mon, 03 Jul 2017 00:00:00 -0400 <p> The General Data Protection Regulation is coming, and along with it, a significant expectation of increased harmonization in the privacy rules across the EU. Considering the 60-plus articles which directly impose obligations on controllers and processors, this isn&rsquo;t an unreasonable sentiment. However (as is often the case with the EU), reality is a bit more complicated than what the expectations reflect.</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/07/opening-clauses-and-the-gdpr-it-might-not-be-as-easy-as-we-thought/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=dd1f85a656-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-dd1f85a656-73179561">click here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360070317 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360070317 Mon, 03 Jul 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 3 story from Law360, &quot;The Biggest Immigration Policy Developments In 2017 So Far.&quot; Paparelli said that the actions the new Administration has taken since January signal clear priorities for the future, although the policies themselves may not have had immediately profound effects.</p> http://www.seyfarth.com:80/publications/WLS070217 The future of work: when will I be able to pay employees in Bitcoin? http://www.seyfarth.com:80/publications/WLS070217 Sun, 02 Jul 2017 00:00:00 -0400 <p> We have been watching with close interest the exponential expansion of crypto-currencies. These instruments, such as Bitcoin, Ethereum and Litecoin, are methods of secure, electronic transfer of value between individuals using advanced digital encryption techniques &ndash; without any central regulation by government.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/07/the-future-of-work-when-will-i-be-able-to-pay-my-employees-in-bitcoin/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=1e92aaeee2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-1e92aaeee2-73179577">click here</a>.</p> http://www.seyfarth.com:80/publications/kaplan070117 Mitchell Kaplan authored an article in The Banking Law Journal http://www.seyfarth.com:80/publications/kaplan070117 Sat, 01 Jul 2017 00:00:00 -0400 <p> Mitchell Kaplan authored a July 1 article in The Banking Law Journal, &quot;Construction Loan Guarantees.&quot; The article discusses several different types of guarantees that may be required by lenders in order to minimize payment and performance risks associated with construction loans. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Kaplan_072017.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/nethery070117 Allegra Nethery quoted in The American Lawyer http://www.seyfarth.com:80/news/nethery070117 Sat, 01 Jul 2017 00:00:00 -0400 <p> Allegra Nethery was quoted in a July 1 story from The American Lawyer, &quot;Big Law&#39;s Pro Bono Hours Tick Upward,&quot; on The American Lawyer&#39;s latest Pro Bono Survey. Nethery forecasts that The American Lawyer&#39;s next survey will show a surge in pro bono hours and participation among large law firms&mdash;particularly in areas where government enforcement and policy priorities put strain on the low income and vulnerable people who are often the clients in pro bono matters.</p> http://www.seyfarth.com:80/news/jutkowitz063017 Stanley Jutkowitz quoted in The Recorder http://www.seyfarth.com:80/news/jutkowitz063017 Fri, 30 Jun 2017 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in a June 30 story from The Recorder, &quot;A Denver Credit Union Won&#39;t Retreat in Marijuana Banking Fight,&quot; on how a federal appellate panel recently breathed some life into a Denver-based credit union&rsquo;s efforts to open its doors, one day, to marijuana-related businesses. Jutkowitz said that the appellate ruling is not a big deal in terms of clarifying the state-federal conflict over marijuana banking.</p> http://www.seyfarth.com:80/news/talibart063017 Peter Talibart quoted in Bloomberg BNA http://www.seyfarth.com:80/news/talibart063017 Fri, 30 Jun 2017 00:00:00 -0400 <p> Peter Talibart was quoted in a June 30 story from Bloomberg BNA, &quot;ONE SIZE FITS ALL? AN ELUSIVE GOAL FOR GLOBAL HR POLICIES,&quot; on how companies must be pragmatic about achieving uniformity if they also want their policies to be effective and lawful anywhere in the world. Talibart said that the biggest challenge that companies face when trying to draft global policies is that local statutes can differ widely between jurisdictions.</p> http://www.seyfarth.com:80/news/bartlettbna062917 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlettbna062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in a June 29 story from Bloomberg BNA, &quot;Employers May Feel Safe Surrendering to New Labor Department,&quot; on the possibility the DOL brings back the controversial self-reporting practice. Bartlett said that some businesses will never surrender to the government regardless of the administration.</p> http://www.seyfarth.com:80/publications/TBT063017 The Week in Weed: June 30, 2017 http://www.seyfarth.com:80/publications/TBT063017 Thu, 29 Jun 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/the-week-in-weed-june-30-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=eaa8601b78-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-eaa8601b78-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/LR062917 Management-Side Attorney Nominated for Final Seat on NLRB http://www.seyfarth.com:80/publications/LR062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.&nbsp;</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=271e5909d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-271e5909d2-73202965">click here</a>.</p> http://www.seyfarth.com:80/publications/CP062917 No Summer Break for Employers: New Duties Start July 2017 http://www.seyfarth.com:80/publications/CP062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> Employers must now notify employees of workplace rights regarding domestic violence victims.&nbsp;</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/29/no-summer-break-for-employers-new-duties-start-july-2017/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=170f8b60f8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-170f8b60f8-73202953">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062917-RE HVCRE: Some Answers on the Horizon? http://www.seyfarth.com:80/publications/OMM062917-RE Thu, 29 Jun 2017 00:00:00 -0400 <div> Since its implementation, the High Volatility Commercial Real Estate (HVCRE) rules have created certain questions and concerns for banks and borrowers alike in real estate lending transactions. &nbsp;Bi-partisan legislation (H.R. 2148) introduced by Congressmen Robert Pittenger (R-NC) and David Scott (D-GA)<sup>1</sup> in the House of Representatives would address some of the market issues arising out of the rules&rsquo; provisions.&nbsp;</div> <div> &nbsp;</div> <div> Currently, a loan to a borrower for acquisition, development or construction (commonly referred to as an ADC loan) may avoid HVCRE classification with its accompanying heightened reserve requirements by, among other things, satisfying a regulatory agency-set maximum LTV and by a borrower demonstrating that it has (i) contributed cash or unencumbered readily marketable assets, (ii) paid certain development expenses out of pocket, or (iii) contributed land, all aggregating at least 15% of the real estate&rsquo;s &ldquo;as completed&rdquo; appraised value. &nbsp;</div> <div> &nbsp;</div> <div> HVCRE&rsquo;s 15% rule presents a number of concerns including that (i) it restricts a borrower&rsquo;s ability to include the full value of the real property as equity, (ii) it traps a borrower&rsquo;s initial capital (equity) contribution as well as capital &ldquo;internally generated&rdquo; by the project throughout the life of the loan, and (iii) it fails to define adequately when a loan converts to permanent financing and thereafter becomes exempt from HVCRE. &nbsp;Let&rsquo;s explore these three concerns further.</div> <div> &nbsp;</div> <div> First, current language penalizes borrowers as it does not permit contribution credit for the appreciation in value of the land. &nbsp;H.R. 2148 revises the definition of &ldquo;value of real property&rdquo; to include the appraised value of the real property regardless of whether the value comes from cash used to purchase the property or its appreciation.&nbsp;</div> <div> &nbsp;</div> <div> Second, the existing rule requires that &nbsp;all contributed equity remain in the project until the loan is paid in full or the loan is converted to permanent financing. &nbsp;Regardless of a lender&rsquo;s equity requirements in construction lending generally, the application of HVCRE can serve to trap a borrower&rsquo;s cash in the project and restrict the parties&rsquo; ability to negotiate for any return of capital consistent with the lender&rsquo;s applicable underwriting guidelines. &nbsp;For example, if the applicable construction loan requires the borrower to contribute equity in the amount of 40% of the project&rsquo;s as-completed appraised value, and the borrower has negotiated with the lender for an earnout at stabilization that would reduce the borrower&rsquo;s equity to 15% of the as-completed appraised value, the current HVCRE rules would prohibit lender from advancing the earnout. &nbsp;H.R. 2148 does not appear to prohibit internally-generated capital from being withdrawn from the project. &nbsp;While it&rsquo;s not free from doubt, H.R. 2148 can be read to mean that capital contributed over and above the 15% threshold need not remain in the project so long as the borrower continues to satisfy the minimum equity requirement of 15%. &nbsp;Therefore, and returning to our example, the new bill may permit the lender to advance the negotiated earnout.</div> <div> &nbsp;</div> <div> Third, while H.R. 2148 provides that a loan on property where construction has been completed and with sufficient cash flow to support debt service and property expenses may be reclassified as a non-HVCRE ADC loan in accordance with the bank&rsquo;s applicable permanent loan underwriting criteria, the bill does not define when a project is considered &ldquo;complete&rdquo;. &nbsp;The current Frequently Asked Questions<sup>2</sup> state that a certificate of occupancy is not sufficient to transform an HVCRE loan into permanent financing. &nbsp;Accordingly, questions remain as to whether a project will be considered complete at the time the lender advances a final draw, when an open punchlist is complete, or when some other test is met.</div> <div> &nbsp;</div> <div> The new bill also seeks to better define HVCRE ADC loans generally, as well as to provide for an exemption to loans made prior to January 1, 2015. &nbsp;Additionally, new acquisition financings or refinancings, in each case of an existing income producing property, secured by a mortgage on such property, may be excluded should the bill become law. &nbsp;Similarly, mortgage loans for improvements to existing income-producing real property would not be HVCRE if the property&rsquo;s cash flow covered debt service and expenses, as determined by the lender in accordance with its underwriting criteria for permanent financing.&nbsp;</div> <div> &nbsp;</div> <div> Interestingly, the proposed legislation does not address the issue of whether mezzanine debt can be treated as a qualifying capital contribution or whether preferred equity may be treated the same as common equity for HVCRE purposes.</div> <div> &nbsp;</div> <div> Although a number of industry groups have lent their support in favor of H.R. 2148 and would welcome the changes incorporated therein, it remains to be seen whether the bill will be reported to the full House by the House Committee on Financial Services, and if so reported, whether it will be in the same form as it was introduced. &nbsp;Currently, no similar bill has been introduced in the Senate. &nbsp;Those following the bill&rsquo;s progression should not dismiss the possibility that in lieu of its passage, changes may come about in the form of agency rulemaking or additional or replacement FAQs. &nbsp;Alternatively, if the Financial CHOICE Act of 2017, recently passed by the House, ultimately becomes law, certain banks may be exempt from the HVCRE rules altogether. &nbsp;In the meantime, lenders and borrowers will continue to face questions and concerns as they close ADC loans.</div> <div> &nbsp;</div> <div> ___________</div> <div> &nbsp;</div> <div> <sup>1</sup> Additional co-sponsors include Mark Walker (R-NC), Dennis Ross (R-FL), Ann Wagner (R-MO), Andy Barr (R-KY), Scott Tipton (R-CO), and Steve Stivers (R-OH).</div> <div> <sup>2</sup>&nbsp;Frequently Asked Questions on the Regulatory Capital Rule dated April 6, 2015, issued by the Office of the Comptroller of the Currency, the Federal Reserve Board, and the Federal Deposit Insurance Corporation.</div> http://www.seyfarth.com:80/publications/OMM062917-INTL Changes to the UK PSC Regime http://www.seyfarth.com:80/publications/OMM062917-INTL Thu, 29 Jun 2017 00:00:00 -0400 <div> In April last year, the UK Government introduced changes to the Companies Act 2006 requiring most companies and LLPs to produce, keep and maintain a register of any people or relevant legal entities that have significant control over that company or LLP (broadly through holding over 25% of shares or voting rights, or otherwise having the right to exercise significant control). &nbsp; Our Client Alert outlining the &lsquo;People with Significant Control&rsquo; (or PSC) regime can be viewed <a href="http://www.seyfarth.com/publications/MA032316-INT">here</a>.</div> <div> &nbsp;</div> <div> On June 26, 2017, regulations extending the PSC regime came into force in order for the UK to comply with the European Fourth Money Laundering Directive ((EU) 2015/849). The regulations introduce three significant changes to the PSC regime:</div> <div> &nbsp;</div> <ul> <li> Extending the PSC regime to certain companies listed on Alternative Investment Market (AIM) and the NEX Exchange Growth Market (NEX);</li> <li> Extending the PSC regime to Scottish limited partnerships, general Scottish partnerships where all partners are corporate bodies and to UK unregistered companies;</li> <li> Requiring each entity subject to the PSC regime to update its PSC register within 14 days of any change occurring and to notify Companies House of such changes within a further 14 days.</li> </ul> <div> &nbsp;</div> <div> Those entities already subject to the PSC regime and those new entities referred to above will have to comply with the obligations to maintain and file the required information from July 24, 2017, following an initial four week transitional period. &nbsp;During the period to July 24, 2017, the entities referred to above should identify their PSCs and, within 14 days from the date the relevant information is obtained, create their own PSC register. &nbsp;They will then have a further 14 days to notify the PSC information to Companies House.</div> <div> &nbsp;</div> <div> The requirement for a company to file PSC information as part of its annual Confirmation Statement has been removed. In filing a Confirmation Statement, the company must now confirm that it has complied with the requirement to file all changes to its PSC register.&nbsp;</div> <div> &nbsp;</div> <div> Companies traded on an EEA regulated market and other specified markets will remain exempt from the PSC regime. &nbsp;Similarly, non-UK incorporated companies traded on AIM will stay outside the scope of the PSC regime.</div> <div> &nbsp;</div> <div> The amended PSC regime will result in a significant change to the disclosure of M&amp;A transactions. &nbsp;Whereas previously a target company would not disclose a change of ownership in the company until it filed its annual Confirmation Statement, a target will now be required to update its PSC register within 14 days of a change of control and notify that change to Companies House within a further 14 days. &nbsp;Accordingly, a change of control will now become public within 28 days of closing.</div> http://www.seyfarth.com:80/publications/OMM062917-LE If Pain, Yes Gain—Part XXXIII: Sick of This Yet? Chicago Releases Final Sick Leave Rules and Model Notice http://www.seyfarth.com:80/publications/OMM062917-LE Thu, 29 Jun 2017 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i> With the July 1, 2017 effective date only two days away, Chicago has at long last published its final paid sick leave rules.&nbsp; These rules, along with the city&rsquo;s model notice, should be incorporated into employers&rsquo; sick leave programs as they prepare for compliance. </i><o:p></o:p></p> <p class="BodySingle"> On June 28, 2017, Chicago released its final paid sick leave rules (the &ldquo;Final Rules&rdquo;). The Final Rules were issued after the conclusion of a public comment period on Chicago&rsquo;s <a href="http://www.seyfarth.com/publications/MA052617-LE">draft sick leave rules</a>.&nbsp; Employers should assess and take the Final Rules into account as they prepare for the Chicago Paid Sick Leave Ordinance&rsquo;s (&ldquo;PSLO&rdquo;) July 1, 2017 effective date.<o:p></o:p></p> <p class="BodySingle"> On July 1, Chicago will join Cook County in moving forward with its paid sick leave requirements for covered employers.&nbsp; Cook County released its own <a href="http://www.seyfarth.com/publications/MA060717-LE">final paid sick leave rules</a> earlier this month.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Chicago also recently published a <a href="https://www.cityofchicago.org/content/dam/city/depts/bacp/Consumer%20Information/pslnoticefinal060717.pdf">model notice</a> that employers can use to satisfy the PSLO&rsquo;s notice and posting requirements. As a reminder, the PSLO requires employers to provide employees with individualized notice of certain sick leave rights when the first paycheck subject to the PSLO is issued to employees.&nbsp; In addition, employers must post the model notice in a conspicuous place at their Chicago business facilities.&middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Interplay with Cook County Earned Sick Leave Ordinance:</strong> One antidote prescribed by the Final Rules is guidance on how employers should handle the overlapping Chicago and Cook County paid sick leave requirements.&nbsp; The Final Rules expressly state that &ldquo;[i]n the case of a conflict between the [PSLO] and the Cook County Earned Sick Leave Ordinance, the [PSLO] shall prevail within the City.&rdquo;</p> <ul> <li> <strong>&ldquo;Calendar Year&rdquo; and &ldquo;Benefit Year&rdquo; Definitions:</strong> The Final Rules define the terms &ldquo;calendar year&rdquo; and &ldquo;benefit year&rdquo; as follows: (a) &ldquo;Calendar year&rdquo; means twelve calendar months beginning at any point; and (b) &ldquo;Benefit year&rdquo; means the period that an employer sets so that all employees are synchronized to have benefits granted at the same time.</li> <li> <strong>Union Employees:</strong> The Final Rules confirm the city&rsquo;s draft paid sick leave rules&rsquo; provision about employer obligations with respect to union employees. The Final Rules explain that the PSLO does not apply to hours worked by employees covered by a collective bargaining agreement (&ldquo;CBA&rdquo;) in force on July 1, 2017.&nbsp; Employees covered by CBAs entered into after June 30, 2017 will be entitled to the PSLO&rsquo;s benefits (assuming they otherwise satisfy the law&rsquo;s eligibility and coverage standards) unless the CBA expressly waives the PSLO&rsquo;s requirements in clear and unambiguous terms.</li> <li> <strong>&ldquo;Paid Time Off&rdquo;:</strong> The Final Rules define the term &ldquo;paid time off&rdquo; to include time that an employer provides to an employee that can be used for any and all reasons in the PSLO, as well as other reasons. The Final Rules explain that where an employer&rsquo;s Paid Time Off policy meets or exceeds the PSLO&rsquo;s requirements on (1) accrual / grant of hours of paid sick leave, (2) carryover of paid sick leave from one year to the next, and (3) usage of paid sick leave, the employer does not need to provide additional leave &ldquo;or [follow] the record requirements.&rdquo; Importantly, the Final Rules expressly state that &ldquo;other requirements of the [PSLO]&hellip;must still be followed.&rdquo;</li> <li> &nbsp;<strong>Accrual of Sick Time:</strong> The Final Rules note that only hours worked within the City of Chicago count toward accrual of paid sick leave and that employers are not required to allow accrual of paid sick leave when an employee is absent on paid or unpaid leave.</li> <li style="margin-left: 80px;"> <u>Salaried, Exempt Employees</u>: Notably, the Final Rules state that salaried, exempt employees should accrue one hour of paid sick leave for each week of employment. However, where &ldquo;the salaried position is for an amount different from 40 hours worked per week,&hellip;the rate of accrual shall be 1 hour for every 40 hours of salaried work.&rdquo;</li> <li> <strong>Frontloading and Usage of Sick Leave:</strong> The Final Rules explain that employers subject to the Family and Medical Leave Act (&ldquo;FMLA&rdquo;) can avoid the PSLO&rsquo;s accrual and carryover requirements if they (a) grant covered employees 40 hours of paid sick leave no later than 180 days after the covered employee began working for the employer, <strong><u>and</u></strong> (b) make available an additional 20 hours of paid sick leave at the beginning of each subsequent benefit year to be used for FMLA purposes. In other words, the Final Rules state that employers that frontload their employees with 60 hours of paid sick leave at the start of each year will be able to avoid the PSLO&rsquo;s carryover and accrual requirements.&nbsp; Where employers do not allow employees to use the full 60-hour grant of paid sick leave for all protected reasons, including those under the FMLA, the Final Rules include complex language about tracking the reasons for which the paid sick leave is used.</li> <li> <strong>Year-End Carryover:</strong> The Final Rules state that employers must allow newly hired employees to carry over all of their earned, unused paid sick leave, up to 20 hours, at year-end. In other words, when dealing with new hires employers cannot take advantage of the PSLO&rsquo;s normal carryover provision where the unused balance gets halved. In addition, the Final Rules reiterate that a maximum of 20 hours of regular paid sick leave and 40 hours of paid sick leave for FMLA purposes may be carried over from one year to the next if a covered employee works for an employer that is subject to FMLA.</li> <li> <strong>Covered Family Member:</strong> The PSLO contains a broad list of covered family members, which includes, among other relationships, any other individual related by blood or whose close association with the employee is the equivalent of a family relationship. The Final Rules confirm that, as was noted in the city&rsquo;s draft paid sick leave rules, family member may also include a godchild, godparent, and co-parent.</li> <li> <strong>Payment of Sick Time: </strong>Employers are required to pay employees for used paid sick leave no later than the next regular payroll period beginning after the use of sick leave.</li> <li style="margin-left: 80px;"> <u>Commissioned Employees</u>: The Final Rules state that for employees who are paid on a commission basis, whether base wage plus commission or commission only, the employer must pay the employees for used paid sick leave at the hourly rate of pay based on the base wage or the applicable minimum wage, whichever is greater.</li> <li> <strong>No Reinstatement Upon Rehire:</strong> The Final Rules confirm that, unlike many paid sick leave laws and ordinances, employers have discretion when deciding whether previously earned, unused paid sick leave becomes available to a covered employee upon rehire.</li> <li> <strong>Recordkeeping Requirements:</strong> Like the Chicago draft paid sick leave rules, the Final Rules contain a provision explaining covered employers&rsquo; recordkeeping obligations.&nbsp; Employers must maintain at least 12 different types of records for a period of not less than five years. These records include the: (a) date each covered employee was eligible to use paid sick leave; (b) Number of hours of paid sick leave accrued by or awarded to each covered employee; and (c) Dates and number of hours each covered employee used paid sick leave.</li> </ul> <p> Chicago employers should take steps now to ensure that they will be able to achieve full compliance with the PSLO by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the PSLO.</li> <li> Determine whether to have a single combined policy or separate policies for Chicago and Cook County locations.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking paid sick leave.</li> <li> Prepare to comply with the PSLO&rsquo;s posting and notification requirements.</li> <li> Train supervisory and managerial employees, as well as HR, on the PSLO requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <p class="BodySingle"> <o:p></o:p></p> http://www.seyfarth.com:80/publications/MA062917-LE2 If Pain, Yes Gain–Part XXXIV: Arizona Publishes Supplemental Proposed Sick Leave Rules http://www.seyfarth.com:80/publications/MA062917-LE2 Thu, 29 Jun 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On June 27, 2017, Arizona released a Notice of Supplemental Proposed Rulemaking interpreting and enforcing its new paid sick leave law, which goes into effect July 1, 2017.</em></p> <p> On June 27, 2017, Arizona published a <a href="https://www.azica.gov/sites/default/files/media/062317%20Notice%20Proposed%20Supplemental%20Rulemaking.pdf">Notice of Supplemental Proposed Rulemaking</a> which amends several sections of the Fair Wages and Healthy Families Act (&ldquo;the Act&rdquo;) and will be useful for employers as they wade into paid sick leave waters over the holiday weekend.&nbsp; The Notice of Supplemental Proposed Rulemaking (the &ldquo;supplemental proposed rules&rdquo;), while not a final set of rules, expands on the Industrial Commission of Arizona&rsquo;s (the &ldquo;Commission&rdquo;) paid sick leave <a href="http://www.seyfarth.com/publications/MA051017-LE2">Notice of Proposed Rulemaking</a>, which was published in May 2017.</p> <p> Here is a summary of the key updates in Arizona&rsquo;s paid sick leave supplemental proposed rules:</p> <ul> <li> <strong>Equivalent Paid Time Off</strong>: First, the supplemental proposed rules now include the phrase &ldquo;equivalent paid time off&rdquo; (defined below) when referencing earned paid sick time. This is a helpful development for employers seeking to use their current paid time off or other paid leave policies for Arizona sick leave compliance.</li> <li> <strong>Definitions:</strong> The supplemental proposed rules also add the following definitions: <ul> <li> &ldquo;<strong>Amount of earned paid sick time available to the employee</strong>&rdquo; means the amount of earned paid sick time or equivalent paid time off that is available to the employee for use <em>in the current year</em>.&nbsp; This definition, along with the two that immediately follow, will assist employers as they prepare to satisfy the Act&rsquo;s burdensome paystub notice requirements.</li> <li> &ldquo;<strong>Amount of earned paid sick time taken by the employee to date in the year</strong>&rdquo; means the amount of earned paid sick time or equivalent paid time off taken by the employee to date <em>in the current year</em>.</li> <li> &ldquo;<strong>Amount of pay the employee has received as earned paid sick time</strong>&rdquo; means the amount of pay the employee has received as earned paid sick time or equivalent paid time off to date<em> in the current year</em>.</li> <li> &ldquo;<strong>Employee&rsquo;s regular paycheck</strong>&rdquo; is defined as a regular payroll record that is readily available to employees and contains the information set forth in the Act&rsquo;s paystub notice requirements.&nbsp; The supplemental proposed rules clarify that physical or electronic paychecks or paystubs are permitted.</li> <li> &ldquo;<strong>Equivalent paid time off</strong>&rdquo; &ldquo;means paid time off provided under a paid leave policy, such as a PTO policy, that makes available an amount of paid leave sufficient to meet the accrual requirements of the Act that may be used for the same purposes and under the same conditions as earned paid sick time.&rdquo;</li> <li> &ldquo;<strong>Heath care professional</strong>&rdquo; means a physician, physician&rsquo;s assistant, registered nurse practitioner, certified nurse midwife who is a registered nurse practitioner, licensed dentist, or a behavioral health provider practicing as a psychologist, clinical social worker, family therapist, or professional counselor.</li> <li> &ldquo;<strong>Smallest increment that the employer&rsquo;s payroll system uses to account for absences or use of other time</strong>&rdquo; means the smallest increment of time that an employer utilizes, either by policy or practice, to account for employees&rsquo; absences or use of other PTO.&nbsp; This clarification will aid employers in determining what minimum increment of use they must set in order to satisfy the Act.</li> <li> <strong>Same Hourly Rate:</strong> The supplemental proposed rules also amend and reorganize the definition of &ldquo;same hourly rate&rdquo; by: (1) modifying the methods for determining &ldquo;same hourly rate&rdquo; to result in hourly rates, not lump sums; (2) referencing minimum wage in each method of determining &ldquo;same hourly rate&rdquo;; (3) amending the method for determining &ldquo;same hourly rate&rdquo; for salaried employees; (4) modifying and adding an option for determining &ldquo;same hourly rate&rdquo; for commission, piece-rate, or fee-for-service employees; and (5) adding language clarifying that &ldquo;same hourly rate&rdquo; does not include bonuses, tips, gifts, or certain other types of incentive pay.</li> </ul> </li> <li> <strong>Frontloading</strong>: The supplemental proposed rules change Section R20-5-1206&rsquo;s title to reference the ability to &ldquo;front load&rdquo; earned paid sick time, and add subsections F, G, and H to address procedures for front loading earned paid sick time and the effect of front loading on accrual and carry over requirements. The supplemental proposed rules also amend prior proposed subsection H (now subsection I) to address: (1) an employer&rsquo;s carry over obligations; (2) an employer&rsquo;s ability to permit greater carry over than that required by the Act; and (3) the impact of carry over on accrual, usage rights, and usage limits. <ul> <li> <strong>Subsection F: </strong>This subsection notably states that an employer can prorate the amount of paid sick time it provides to new hires. Specifically, an employer is not required to provide employees with additional earned paid sick time during the year in which the employee was hired if the employer provides the employee for immediate use by his or her 90th day of employment an amount of earned paid sick time that meets or exceeds the employer&rsquo;s reasonable projection of how much paid sick time the employee would have accrued from the date of hire through the end of the employer&rsquo;s benefit year at a rate of one hour for every 30 hours worked. If the employer&rsquo;s projection is too low, it must provide the employee with the difference between the projection and the actual amount of sick time the employee would have earned.</li> <li> <strong>Subsections G and I: </strong>The combination of these two subsections is the most interesting and noteworthy aspect of the supplemental proposed rules. Subsection G states that an employer that frontloads its workers at least 40 hours of paid sick leave at the start of each year is <strong><u>not</u></strong> required to provide carryover or additional accrual. Significantly, Subsection I then states that &ldquo;unless an employer: (1) elects to pay an employee for unused earned paid sick time or equivalent paid time off at the end of a year pursuant to A.R.S. &sect; 23-372(D)(4); <strong><u>or</u></strong> (2) meets the requirements of subsections (G) or (H), unused earned paid sick time and equivalent paid time off may be carried over to the next year&hellip;&rdquo;&nbsp; Based on this language, it appears that if an employer frontloads its employees with 40 hours of paid sick leave at the start of each benefit year, it does <strong><u>not</u></strong> have to either allow year-end carryover or cash out unused sick time at year end.&nbsp; Although still in draft form, this is a welcome proposed update for Arizona employers. <ul> <li> Employers should be aware of a potential side effect of the above proposed language stating that frontloading 40 hours of paid sick leave each year alone will absolve their year-end carryover requirements.&nbsp; The cover page to the supplemental proposed rules states that &ldquo;[t]he Act authorizes the [Commission] to &lsquo;enforce and implement&rsquo; both the minimum wage and earned paid sick time provisions and promulgate regulations consistent with the articles.&rdquo; Unfortunately, the above proposed amendment, which is certainly favorable to employers, could be read as inconsistent with the Act&rsquo;s provision on year-end carryover.&nbsp; That being said, because the Commission is tasked with enforcing the Act, and the updated frontloading language was proposed by the Commission itself, if this same language appears in Arizona&rsquo;s final sick leave rules, employers likely can take advantage of the language in practice barring any future contrary judicial interpretations or administrative guidance.&nbsp;</li> </ul> </li> </ul> </li> <li> <strong>Recordkeeping</strong>: The supplemental proposed rules make several updates to employers&rsquo; recordkeeping requirements, including adding a requirement to maintain records concerning employees&rsquo; earned paid sick time balances. The supplemental proposed rules state that employers also should retain records of: (1) the amount of earned paid sick time available to the employee; (2) the amount of earned paid sick time taken by the employee to date in the year, and (3) the amount of pay the employee has received as earned paid sick time.</li> </ul> <p> The Act goes into effect this Saturday, July 1, 2017. While unlikely that the state will release final paid sick leave rules before the effective date, employers nevertheless should continue to monitor the Commission&rsquo;s sick leave website and otherwise take steps to comply with the Act by July 1.</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/publications/wc062917 U.S. Supreme Court’s Narrow Application Of Specific Jurisdiction Will Impede Forum Shopping In Class Actions http://www.seyfarth.com:80/publications/wc062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> In&nbsp;<a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/06/16-466_1qm1.pdf"><em>Bristol-Myers Squibb Company v. Superior Court of California, et al.,</em>&nbsp;</a>No. 16-466 (U.S. June 19, 2017), 86 California residents and 592 non-residents from 33 other states sued Bristol-Myers in California &nbsp;state court, asserting California state law claims for product liability, negligent representation, and misleading advertising.<em>&nbsp;Id</em>. at 2. Plaintiffs specifically alleged that the company&rsquo;s drug, Plavix, damaged their health.&nbsp;</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/u-s-supreme-courts-narrow-application-of-specific-jurisdiction-will-impede-forum-shopping-in-class-actions/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=b225e50a47-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-b225e50a47-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062817 Illinois Federal Court Allows Inevitable Disclosure Theory in Defend Trade Secrets Act Case http://www.seyfarth.com:80/publications/ts062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> On May 11, 2017, a <a href="http://www.seyfarth.com/dir_docs/publications/MolonvNidec.pdf">Northern District of Illinois federal court</a> ruled that a Plaintiff properly alleged misappropriation under both the federal Defend Trade Secrets Act (DTSA) and the Illinois Trade Secrets Act (ITSA) in a <a href="http://www.noncompetereport.com/wp-content/uploads/sites/635/2017/05/Molon-Motor-v.-Nidec-Motor-ND-Ill.-05.11.17.pdf">case</a> where the employee downloaded files onto a personal thumb drive and then went to a competitor.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/dtsa/illinois-federal-court-allows-inevitable-disclosure-theory-in-defend-trade-secrets-act-case/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=ab81118fad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-ab81118fad-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/ada062817 Plaintiffs Score Another Victory in a Website Accessibility Lawsuit http://www.seyfarth.com:80/publications/ada062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Within a week after a Florida federal judge handed down a <a href="http://www.adatitleiii.com/2017/06/first-federal-court-rules-that-having-an-inaccessible-website-violates-title-iii-of-the-ada/" target="_blank">trial verdict</a>&nbsp;finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/06/Hobby-Lobby-Order.pdf" target="_blank">ruled</a>&nbsp;that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. &nbsp;</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/plaintiffs-score-another-victory-in-a-website-accessibility-lawsuit/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=ab5d8d95c0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-ab5d8d95c0-73202941">click here</a>.</p> http://www.seyfarth.com:80/publications/EL062817 French Employment Law Reforms Awaited Under Macron’s Presidency http://www.seyfarth.com:80/publications/EL062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> French Employers should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and any reforms may be slow in coming.&nbsp; As France does not have the equivalent of a US &ldquo;Presidential Decree,&rdquo; Macron&rsquo;s government will need to get the Parliament&rsquo;s buy in.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/french-employment-law-reforms-awaited-under-macrons-presidency/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=cf93ed29b4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-cf93ed29b4-73202969">click here</a>.</p> http://www.seyfarth.com:80/publications/CDL062817 What You Need to Know About the Petya Ransomware Attack http://www.seyfarth.com:80/publications/CDL062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Yesterday, organizations around the world were hit by yet another ransomware attack.&nbsp; Similar to the recent WannaCry attacks, the Petya attack works to encrypt documents and files and subsequently demands a ransom to unlock them.&nbsp; Unlike WannaCry, it is believed that the Petya attack spreads internally through an organization (rather than across the Internet) using a vulnerability called &ldquo;EternalBlue&rdquo; in Microsoft Windows.&nbsp;</p> <p> To read the full blog post, <a href="http://www.carpedatumlaw.com/2017/06/need-know-petya-ransomware-attack/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=3b564ecf5a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-3b564ecf5a-73202957">click here</a>.</p> http://www.seyfarth.com:80/publications/BIO062817 <em>Sandoz v. Amgen</em>: The Latest in Biosimilar “Dances” http://www.seyfarth.com:80/publications/BIO062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Finding against the Federal Circuit once again on a patent case, the Supreme Court issued a unanimous decision in <a href="https://www.supremecourt.gov/opinions/16pdf/15-1039_1b8e.pdf"><em>Sandoz v. Amgen </em></a>relating to the interpretation of the Biologics Price Competition and Innovation Act of 2009 (&ldquo;BPCIA&rdquo;) in its first decision on the Act.&nbsp; The Supreme Court&rsquo;s&nbsp;decision firmly establishes the availability of a third biosimilar &ldquo;dance,&rdquo; at least as far as Federal law is concerned.</p> <p> To read the full blog post, <a href="http://www.bioloquitur.com/sandoz-v-amgen-latest-biosimilar-dances/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=ae6c9cb731-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-ae6c9cb731-73202949">click here</a>.</p> http://www.seyfarth.com:80/publications/TheReaList-June2017 The ReaList - Volume 1, Edition 3 http://www.seyfarth.com:80/publications/TheReaList-June2017 Wed, 28 Jun 2017 00:00:00 -0400 <p> <span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice.&nbsp;</span><span style="color: rgb(82, 97, 102); font-size: 14px; font-family: Arial, sans-serif;">The ReaList newsletter covers New York real estate news, events, and trends.</span></p> <p> <strong>Construction:</strong></p> <p> <strong>James A. Farley Post Office Building Redevelopment Project</strong><br /> The project documentation for the redevelopment of the James A. Farley Post Office Building has recently been finalized. The Farley Building (the post office building opposite Penn Station) is being transformed by the Empire State Development Corporation into a mixed use facility consisting of a new train station and train hall (Moynihan Station) and commercial space (office, retail and hospitality). The redevelopment of the Farley Building is the first of two steps in implementing Governor Cuomo&rsquo;s vision for the Penn-Farley Complex - the second step of which is the overhaul and renovation of the adjoining Penn Station.<br /> <br /> A joint venture of the Related Companies and Vornado Realty will use Skanska USA for the design-build redevelopment of the Farley Building. The site will be become a world class transportation facility over the next several years. The existing fa&ccedil;ade of the Farley Building will be retained, while the internal area will feature, in addition to the commercial space, a 210,000 square foot train hall (roughly the same size as the Grand Central Station concourse). A key feature of the train hall will be a giant skylight roof. When completed, Moynihan Station in the Farley Building will be the new site for Amtrak&rsquo;s and the Long Island Rail Road&rsquo;s train services in and out of New York City.<br /> <br /> Seyfarth Shaw represented Skanska, USA on the project.</p> <p> If you have any questions please contact <a href="http://www.seyfarth.com/BennettGreenberg">Bennett Greenberg</a> or <a href="http://www.seyfarth.com/AlisonAshford">Alison Ashford</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate:</strong></p> <p> <strong>RPAPL Section 881: Access to Adjacent Property To Install Protective Measures</strong><br /> Property owners often need a license to enter an adjacent property in order to install protective measures in connection with repairs or improvements to their own properties.&nbsp; In that situation, a license agreement is typically negotiated between the two adjacent owners.&nbsp; However, if such an agreement cannot be reached, New York&rsquo;s Real Property Actions and Proceedings Law Section 881 (&ldquo;Section 881&rdquo;) allows the owner seeking to perform the improvements or repairs to commence a special proceeding in New York Supreme Court to obtain a court-ordered license to enter the adjacent property.<br /> <br /> Typically, Section 881 license applications to install protective measures on adjacent properties are granted.&nbsp; The courts will grant an access license necessitated by elective developments and improvements on the adjacent property, not just mandatory work (such as fa&ccedil;ade repairs in connection with New York City&rsquo;s Local Law 11). Courts have recognized the rights of owners to improve their property, not just their obligations to maintain it.&nbsp; Accordingly, licenses to install protective measures on adjacent property pursuant to Section 881 have been granted for both maintenance and improvements.&nbsp; However, courts have imposed various conditions on the grant of such licenses including, providing insurance, indemnities, undertakings and limiting the scope and duration of work.<br /> <br /> In <a href="http://www.nycourts.gov/reporter/3dseries/2016/2016_02926.htm"><em>DDG Warren v. Assouline Ritz</em></a><em>,&nbsp;</em>the&nbsp;Appellate Division, First Department&nbsp;also recognized that the owner whose property needs to be accessed has neither sought the intrusion nor derives any benefit from it and, accordingly, should not have to bear the costs resulting from the access.&nbsp; Those costs include attorneys&rsquo; fees, engineering fees, architectural fees and compensation for loss of, or diminished use of, parts of the property, such as yards, terraces, balconies and roof decks.<br /> <br /> The Appellate Division, First Department in <a href="http://law.justia.com/cases/new-york/appellate-division-first-department/2017/3721-161136-15.html"><em>In re Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp</em>.</a>,&nbsp;recently reiterated the foregoing by affirming an award of a monthly license fee until work was completed to an owner deprived of the use of a portion of his property.&nbsp; The Appellate Division also affirmed the award of attorneys&rsquo; fees and engineers&rsquo; fees, noting that an adjacent property owner &ldquo;should not be put in a position of either having to incur the costs of a design professional to ensure [the] work will not endanger his property, or having to grant access without being able to conduct a meaningful review of [the] plans.&rdquo;<br /> <br /> If you have any questions please contact <a href="http://www.seyfarth.com/AdrianZuckerman">Adrian Zuckerman</a> or <a href="http://www.seyfarth.com/ThomasGleason">Tom Gleason</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>Purchasers of Real Property Should Carefully Consider Their Choice of Business Entity</strong><br /> Purchasers of real property should carefully consider the business entity they will use to acquire and hold such property.&nbsp; Entity choice has important ramifications for a business and its owners, including but not limited to issues impacting management, taxation, distributions of property, limitations on ownership, and owner liability.&nbsp; The following are some issues to take into account with respect to whether to acquire real property or other assets using (1) an S corporation; (2) a limited liability company (LLC); or (3) a limited partnership (LP).&nbsp; These are some of the more common choices; however, there are other possibilities (e.g., C corporations and general partnerships) that are beyond the scope of this summary.&nbsp; Because the optimal choice of entity will depend on a purchaser&rsquo;s particular situation and plans, consultation with knowledgeable professionals is important before a final determination is made.<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /> S corporations and LLCs offer their owners protection from personal liability for the entity&rsquo;s obligations.&nbsp; LPs offer such protection to their limited partners, but not their general partners.&nbsp; In addition, S corporations and LLCs offer their owners the opportunity to actively participate in the management and operation of the business; however, LPs require their limited partners to assume passive roles while the general partner assumes the management role.&nbsp; S corporations and LLCs may be formed and owned by a single shareholder or member (in such case, an LLC will be disregarded as a separate entity for federal income tax purposes but still considered a separate entity for liability purposes) while a limited partnership must have at least two partners, with at least one partner as a general partner.&nbsp; There are restrictions relating to S corporations (e.g., with respect to who may be shareholders, and issuing more than one class of equity) that are not applicable to LLCs and LPs.<br /> &nbsp;<br /> All three entities considered offer pass-through tax treatment to their owners such that no federal income taxes are paid at the business level.&nbsp; Rather, profit or loss passes through to the tax returns of the entity&rsquo;s owners.&nbsp; S corporations may offer advantages over LLCs and LPs because shareholders can be treated as employees (which is not possible in a tax partnership) and paid a reasonable salary.&nbsp; Earnings in excess of any salaries generally will not be subject to self-employment tax.&nbsp; Other important tax issues that should be considered include relevant state taxation, and the possibility of special allocations of profit and loss (not available in S corporations).</p> <p> In many instances, LLCs and LPs will offer more flexibility for their owners than an S corporation with respect to investments in real estate (and LLCs will frequently represent the most flexible option).&nbsp; While S corporations, LLCs and LPs all allow for tax-free contributions of property to such entities by their shareholders, members, or partners, respectively, S corporations generally cannot distribute such property to their shareholders without giving rise to a taxable event for such shareholders if the value of the property exceeds its basis.&nbsp; LLCs and LPs, on the other hand, offer the potential for tax-free distributions of assets, including real property, to their members/partners.&nbsp; There are, however, certain circumstances in which an S corporation may nevertheless be preferable to an LLC or an LP.&nbsp; For all of the foregoing reasons, and more, it is important to be attentive to choice of entity and consult with advisors as needed.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/StanleyBloch">Stan Bloch</a> or <a href="http://www.seyfarth.com/JoshuaLake">Josh Lake</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Litigation:</strong></p> <p> <strong>Additional Insureds May Be Covered Only As To Injuries &ldquo;Proximately Caused&rdquo; by the Named Insured</strong><br /> Many in the construction industry have accepted that insurance policies providing coverage to additional insureds for bodily injury caused in whole or in part by the named insured include coverage for injuries arising from any act or omission by the named insured that contributed in some way to the injury.&nbsp; However, a recent decision by the New York Court of Appeals indicates that, at least for some insurance policies, only acts or omissions that would give rise to legal liability on the part of the named insured are covered.</p> <p> In <a href="https://www.nycourts.gov/ctapps/Decisions/2017/Jun17/57opn17-Decision.pdf"><em>The Burlington Insurance Company v. NYC Transit Authority, et al.</em></a><em>,</em> the New York City Transit Authority (&ldquo;NYCTA&rdquo;) and other New York City entities were listed as additional insureds on an insurance policy taken out by a private contractor, Breaking Solutions, Inc. (&ldquo;BSI&rdquo;) in connection with a construction project.&nbsp; The policy provided NYCTA and the other additional insureds with insurance coverage for bodily injuries &ldquo;caused, in whole or in part, by&rdquo; the &ldquo;acts or omissions&rdquo; of BSI.&nbsp; During construction, an NYCTA employee was injured when a BSI machine touched an electrical cable and set off an explosion.&nbsp; BSI had not acted negligently, and was not liable to the employee, because there was no way BSI could have known about the cable -- it was buried as a result of <em>NYCTA&rsquo;s</em> negligence.&nbsp; NYCTA nonetheless argued that the insurance policy should cover the employee&rsquo;s injury because the injury would not have occurred but for BSI&rsquo;s operation of its machine.&nbsp;</p> <p> The Court of Appeals, with one judge dissenting, concluded that, based upon the language of the insurance policy, it was not enough for BSI&rsquo;s actions to be a &ldquo;but for&rdquo; cause of the injury.&nbsp; To be covered by the insurance policy, the named insured&rsquo;s actions would have to be a &ldquo;proximate cause&rdquo; of the employee&rsquo;s injury -- in other words, the named insured must have acted in a manner that would make the named insured legally at fault for the injury, such as by acting negligently.&nbsp;</p> <p> The <em>Burlington</em> decision is based upon specific policy language.&nbsp; It is accordingly critical to review the policy language at issue in a particular case.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/JonathanWolfert">Jonathan P. Wolfert</a>&nbsp;or <a href="http://www.seyfarth.com/OwenWolfe">Owen R. Wolfe</a>.&nbsp;</p> http://www.seyfarth.com:80/news/passantino062817 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantino062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 28 story from SHRM, &quot;Labor Department Seeks More Information on Overtime Rule,&quot; on how new developments on the overtime rule could be brewing, as the U.S. Department of Labor (DOL) recently sent a request for information (RFI) on the 2016 overtime rule to the Office of Information and Regulatory Affairs. Passantino said that more rulemaking is certainly a possibility, but noted that there is no requirement that anything be done. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-rfi.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/leonbloomberg062717 Leon Rodriguez quoted in Bloomberg http://www.seyfarth.com:80/news/leonbloomberg062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 27 story from Bloomberg, &quot;Trump Travel Ban Ruling Yields &lsquo;Bona Fide&rsquo; Government Confusion,&quot; on the Supreme Court&rsquo;s decision to allow the government to deny entry to people from six countries who don&rsquo;t have existing ties to the U.S. -- language that requires the government to figure out what it means to have a &ldquo;bona fide&rdquo; relationship with American residents or entities. Rodriguez said that you have to take an order that at the end of the day is pretty vague and translate it into something that real people can implement, in real time. You can read the <a href="https://www.bloomberg.com/news/articles/2017-06-27/trump-travel-ban-ruling-yields-bona-fide-government-confusion">full article here</a>.</p> http://www.seyfarth.com:80/news/lutkus062717 Richard Lutkus quoted in Law360 http://www.seyfarth.com:80/news/lutkus062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in a June 27 story from Law360, &quot;Apple, Cisco Insurance Venture Could Cue Competitors,&quot; on how Apple and Cisco Systems are pushing for companies using their products to receive a discount on cybersecurity insurance. Lutkus said that if there is any discount, it will be based on circumstances where the insurer has the opportunity to know more about the integration and how it reacts in real-life penetration tests.</p> http://www.seyfarth.com:80/news/rodriguezreuters062717 Leon Rodriguez quoted in Reuters http://www.seyfarth.com:80/news/rodriguezreuters062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 27 story from Reuters, &quot;Some would-be immigrants left in limbo after Supreme Court travel ban order,&quot; on how diversity visa applicants are among those in limbo after the Supreme Court&#39;s travel ban ruling. Rodriguez said that, absolutely, diversity visas will be affected. You can read the <a href="https://www.reuters.com/article/us-usa-court-immigration-visas-idUSKBN19I2VJ">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/news/perellis062717 Andrew Perellis quoted in Compliance Week http://www.seyfarth.com:80/news/perellis062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Andrew Perellis was quoted in a June 27 story from Compliance Week, &quot;New DOJ policy limits settlement relief options,&quot; on whether the EPA will decide to follow the Justice Department&#39;s lead or continue allowing third-party SEPs in administrative enforcement actions. Perrellis said that while this memo doesn&#39;t directly affect the EPA&#39;s SEP policy for settlements that don&#39;t involve the Department of Justice, you may see that the EPA is more reluctant to proceed down that path.</p> http://www.seyfarth.com:80/publications/TBT0622717 New York Medical Marijuana: Can the Fire Keep Burning? http://www.seyfarth.com:80/publications/TBT0622717 Tue, 27 Jun 2017 00:00:00 -0400 <p> New York state&rsquo;s Medical Marijuana Program historically has been one of the most restrictive in the United States with strict limitations on the number of licensed producers and various barriers preventing patients from accessing medical cannabis. However, recent expansions to New York&rsquo;s qualifying conditions and changes to the licensing requirements for medical professionals will allow more patients to participate in the program. &nbsp;</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/new-york-medical-marijuana-can-the-fire-keep-burning/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=17ded3fbe2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-17ded3fbe2-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/wse062717 OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017 http://www.seyfarth.com:80/publications/wse062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Under OSHA&rsquo;s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA. &nbsp;</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-delays-electronic-filing-date-for-injury-and-illness-records-until-december-1-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=133dce4134-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-133dce4134-73179581">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062717 DOL Sends OT Request for Information to White House for Review http://www.seyfarth.com:80/publications/WH062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Today, the DOL&rsquo;s Wage &amp; Hour Division (WHD) sent its <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/request-for-information-on-ot-rules/" target="_blank">anticipated</a> <a href="https://www.dol.gov/newsroom/releases/opa/opa20170627" target="_blank">Request for Information (RFI) on the overtime rule</a> to the Office of Management and Budget&rsquo;s Office of Information and Regulatory Affairs (OIRA). Review of the RFI by OIRA is one of the final steps before publication in the Federal Register.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ot-rfi-to-white-house/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=ad33d4be39-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-ad33d4be39-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062617b They’re Back … DOL Announces the Return of Opinion Letters http://www.seyfarth.com:80/publications/WH062617b Tue, 27 Jun 2017 00:00:00 -0400 <p> In the second bit of wage hour news today, and in advance of Secretary Acosta&rsquo;s hearing before a Senate Appropriations subcommittee, the Department of Labor announced&nbsp;<a href="https://www.dol.gov/newsroom/releases/whd/whd20170627" target="_blank">the return of opinion letters</a>.&nbsp;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/the-return-of-opinion-letters/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=2e63d773ed-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-2e63d773ed-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/ada062717 Utah Is a New Hotbed of ADA Title III Federal Suits http://www.seyfarth.com:80/publications/ada062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Utah used to be a good place for public accommodations that did not want to be sued for ADA Title III violations.&nbsp; In 2013, 2014, and 2015 combined, plaintiffs only filed a total of eight such lawsuits in federal court (1, 6, and 1, respectively). &nbsp;</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/utah-is-a-new-hotbed-of-ada-title-iii-federal-suits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=484eea781f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-484eea781f-73202941">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062617-LE2 Travel Ban Update: The United States Supreme Court Will Hear The Appeal Over President Donald Trump’s Revised Travel Ban Next Term And Reinstates Parts Of The Ban http://www.seyfarth.com:80/publications/OMM062617-LE2 Mon, 26 Jun 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; U.S. Supreme Court will hear oral arguments on the Travel Ban in their next term.</em></p> <p> Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</p> <p> Further, the Court has reinstated the travel ban for the six countries, but only insofar as it relates to foreign nationals who lack a bona fide relationship with a U.S. person or entity.&nbsp; Examples of individuals who do possess a bona fide relationship with a U.S. entity include students enrolled at U.S. universities and employees of U.S. companies.&nbsp; Conversely, foreign nationals from the affected countries wishing to visit solely for tourism may encounter significant challenges entering the U.S.</p> <p> This ruling will not impact U.S. employers that employ foreign nationals from any of the affected countries.&nbsp; U.S. employers may continue to sponsor their employees for employment-based visa petitions, and employees may continue to apply for work visas at U.S. Embassies and Consulates. However, all foreign nationals from these countries should nevertheless exercise caution when travelling to the U.S., as they can expect to face lengthy delays and questioning at the border as part of the administration&rsquo;s ongoing &ldquo;extreme vetting&rdquo; measures.</p> <p> Seyfarth Shaw is monitoring the developments closely, and will publish updated information accordingly.</p> http://www.seyfarth.com:80/publications/ilo062617 Jonathan Wolfert and Owen Wolfe authored an article in International Law Office http://www.seyfarth.com:80/publications/ilo062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Jonathan Wolfert and Owen Wolfe authored a June 26 article in International Law Office, &quot;New York&#39;s scaffold law may not impose strict liability.&quot; The article discusses a recent decision by the New York Court of Appeals which indicates that the common understanding of the New York scaffold law is wrong. You can read the <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/New-Yorks-scaffold-law-may-not-impose-strict-liability?utm_source=Twitter&amp;utm_medium=Tweet&amp;utm_content=Newsletter-35748&amp;utm_campaign=Twitter-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM062617-LE The Future of Dodd-Frank: Where is it Going? http://www.seyfarth.com:80/publications/OMM062617-LE Mon, 26 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Just last week Steve Mnuchin, the Secretary of the Treasury, put forth the first of several Reports proposing financial reforms.&nbsp; Much of the Report makes sweeping changes to Dodd- Frank, the legislation put in place after the 2008 financial crisis.&nbsp; The Report comes on the heels of the Financial Choice Act, introduced by House Republicans, which also proposes repealing key provisions of Dodd-Frank. &nbsp;These actions are the opening salvo in what is expected to be a protracted and complicated effort to curb the regulations that make up Dodd-Frank, which is considered by many Republicans &nbsp;to be legislation which has stifled economic growth and hurt the banking industry.&nbsp; This One Minute Memo will update you on both initiatives, including efforts to curb the power of the CFPB.</em></p> <p> When Steve Mnuchin was selected as Treasury Secretary in November 2016 one of the big questions raised was what would happen to Dodd-Frank, the 2010 sweeping legislative initiative of the Obama administration intended to prevent the recurrence of events that caused the 2008 financial crisis. &nbsp;Last week the Trump administration issued a 149 page Report outlining its goals for financial reform and discussing proposed changes to the legislation. &nbsp;The Report, prepared &nbsp;by Mnuchin, who had been&nbsp;tasked to provide these recommendations by the President, mostly calls for rolling back the new powers Congress gave to regulatory agencies as a result of Dodd-Frank. Ensuring his view was clear,&nbsp; Mnuchin told a Senate panel after release of the Report that, if he &ldquo;were King for a day,&rdquo; he would repeal Dodd-Frank in its entirety.</p> <p> <strong>The Report</strong></p> <p> The Report recommended reducing the powers of the Consumer Financial Protection Bureau. Since its inception the Bureau has recovered almost $12 billion dollars as a result of the aggressive stance it has taken with respect to enforcement actions it commenced on behalf of consumers. &nbsp;Mnuchin recommended abolishing the agency&rsquo;s independent funding stream and that it be replaced by a more traditional congressional appropriations process. &nbsp;He also urged that&nbsp;the President expressly be given the authority to fire the Bureau&rsquo;s director, where this authority is presently being questioned.&nbsp;Also, in keeping with his initial observations about Dodd-Frank in November, the Report also recommended reducing the oversight of large financial institutions, and providing more regulatory relief to&nbsp;smaller banks, so as to loosen restrictions with respect to mortgage lending.&nbsp; Concerns about decreased lending as a result of Dodd-Frank were a large part of Mnuchin&rsquo; s platform when nominated.&nbsp; It was recently reported in the Wall Street Journal that three million first-time home buyers were shut out of the market over the past decade due to credit tightening, which has created a major drag on&nbsp;the housing market. &nbsp;The Report also urges other changes to regulations affecting lending, noting that many of the regulations are now too conservative, including a rule that requires companies that pool and securitize mortgages to retain a portion of these loans to protect against loan failure.&nbsp; Many Republicans lauded these recommendations because they think the lifting of these regulations will significantly improve the housing market, reduce the cost of loans, and allow for&nbsp;improved economic growth.</p> <p> Another significant recommendation concerns oversight of the Financial Stability Oversight Council, which was created by Dodd-Frank to ensure that risks that might be missed by individual regulatory agencies overseeing one industry are more quickly identified when there is shared oversight by the larger group.&nbsp; The Treasury Secretary is the Chairman of the Council which includes the heads of the Federal Reserve, the FDIC, the Office of the Comptroller of the Currency, and five other regulators. &nbsp;The group has the power to identify any entity as a potential risk to the financial system and subject that entity&nbsp;to the same level of regulation that is now imposed on our largest financial institutions. &nbsp;The group&#39;s role, the Report suggested,&nbsp; &ldquo;should be broadened&rdquo;&nbsp; to allow it to pick one agency to lead in situations where several agencies may be involved, and to coordinate data sharing among them.&nbsp; Not surprisingly Mnuchin&rsquo;s Treasury Department seems to be the natural choice for that role, and Mnuchin has not suggested otherwise.</p> <p> <strong>The Cabinet and the Congress</strong></p> <p> Interestingly, giving the Council more power is at odds with many Republicans in Congress who have attempted to limit the power of the Council since Dodd-Frank was enacted, calling it unaccountable, capricious and lacking in transparency.&nbsp; Only days before the Report was issued House Republicans passed the Financial Choice Act (&ldquo;the Act&rdquo;) a bill that would largely replace Dodd-Frank, but which contains a provision to eliminate the Council&#39;s power to designate entities requiring &nbsp;more regulation, and which subjects the Council to greater oversight and accountability. How the disagreement between the Treasury and Congress will play out on this issue &nbsp;remains to be seen.</p> <p> In some respects the Report calls for many of the same changes as the Act, but in some areas it is more moderate than the House&rsquo;s proposal. &nbsp;The Act, for example, would repeal the controversial&nbsp;Volcker Rule which restricts banks from certain speculative trading. &nbsp;The Act seeks to repeal the&nbsp;trading restrictions in their entirety. &nbsp;Mnuchin recommended loosening these restrictions, &nbsp;which regulators could do on their own, but did not urge a full repeal, which would require Congressional approval. &nbsp;This may suggest that Mnuchin is prepared to take a more measured approach in&nbsp;changing Dodd-Frank, but also one more likely to succeed in light of an expected filibuster by Democrats intent on protecting Dodd-Frank in the Senate.&nbsp;</p> <p> In what might show as an effort to homogenize the Report&#39;s recommendations with that of the pending Republican legislation, the Treasury Department recommended&nbsp; replicating a key provision of the Act, &nbsp;to allow for an amount of capital banks must hold as a cushion against future losses, which amounts, if met, would exempt banks from much &nbsp;regulatory oversight.</p> <p> And both the Act and the Report are lockstep in other areas, most notably the recommendation to significantly rein in the CFPB. &nbsp;Such a move is strongly opposed by Congressional&nbsp;Democrats who say that the recommendations as to the CFPB would serve to&nbsp;weaken Dodd-Frank, and will,&nbsp;in the words of Sen. Elizabeth Warren, a huge proponent of the Bureau at its inception, &ldquo;make it easier for big banks to cheat their customers and spark another financial meltdown.&rdquo;</p> <p> The take away from the Report, and also from the proposed legislation, is that many of the reforms that were a hallmark of the Obama administration are, slowly but surely, going to be stripped away. &nbsp;First on the list is the CFPB, which was heralded as the new regulatory Sheriff in town only a few short years ago. &nbsp;But whether it be&nbsp;President Trump or Treasury Secretary Mnuchin, or still unknown players in a reinvigorated Republican Congress, it is now clear that a new Sheriff has trumped the old one.</p> http://www.seyfarth.com:80/publications/IMM062617 The United States Supreme Court Will Hear the Appeal Over President Donald Trump’s Revised Travel Ban Next Term and Reinstates Parts of the Ban http://www.seyfarth.com:80/publications/IMM062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/the-united-states-supreme-court-will-hear-the-appeal-over-president-donald-trumps-revised-travel-ban-next-term-and-reinstates-parts-of-the-ban/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=0b3cb7f012-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-0b3cb7f012-73202945">click here</a>.</p> http://www.seyfarth.com:80/publications/corpcouns062617 Kristina Launey and Daniel Whang authored an article in Corporate Counsel http://www.seyfarth.com:80/publications/corpcouns062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Kristina Launey and Daniel Whang authored a June 26 article in Corporate Counsel, &quot;A Possible Landmine for Employers: The Opportunity to Work Act.&quot; The article discusses the California Legislature&#39;s proposed Opportunity to Work Act.</p> http://www.seyfarth.com:80/publications/WLS062617 The Future of Work: Using the Gig Economy to Your Advantage http://www.seyfarth.com:80/publications/WLS062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy &ndash; that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/06/the-future-of-work-using-the-gig-economy-to-your-advantage/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=4b1342a030-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-4b1342a030-73179577">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062617 Mandatory Arbitration, Class Waivers, and the Future of Wage-Hour Litigation: 6th Circuit Shows One Reason Why High Court Rejection of D.R. Horton Theory Would Not Kill Collective Actions http://www.seyfarth.com:80/publications/WH062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Employers have faced questions about the enforceability of arbitration agreements with class and collective action waivers since the NLRB&rsquo;s highly controversial <em>D.R. Horton</em> decision in 2012, which held that the waivers violate employees&rsquo; right to engage in protected concerted activity.&nbsp;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/arbitration-agreements/dr-horton-theory-collective-actions/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=869271dca4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-869271dca4-73179569">click here</a>.</p> http://www.seyfarth.com:80/news/boutros062617 Seyfarth’s Andrew S. Boutros Leads Release of ABA Criminal Justice Section Task Force Recommendations on College Due Process Rights and Victim Protection http://www.seyfarth.com:80/news/boutros062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> CHICAGO (June 26, 2017) - Led by Seyfarth Shaw LLP partner Andrew S. Boutros, the firm&rsquo;s National Co-Chair of the White Collar, Internal Investigations and False Claims Team, the American Bar Association (ABA) Criminal Justice Section Task Force on College Due Process Rights and Victim Protections has completed its mandate and released a unanimously-approved set of recommendations. The Task Force also included Seyfarth Shaw attorney Bridget Maricich.</p> <p> Universally endorsed for publication by the ABA Criminal Justice Section Council, the Task Force recommendations urge the nation&rsquo;s nearly 5,000 private and public colleges and universities to adopt a fair and balanced disciplinary system in sexual misconduct cases that includes procedural and substantive due process protections for the accused while protecting the rights and interests of the victim. &nbsp;You can read the recommendations and report <a href="https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/ABA-Due-Process-Task-Force-Recommendations-and-Report.authcheckdam.pdf">here</a>. Highlights include:</p> <ul> <li> The Task Force recommends having an adjudicatory hearing in which at least three people other than the investigator decide whether a violation occurred. Schools should require a unanimous vote for a finding of responsibility.</li> <li> The Task Force recommends that the complainant and respondent not be allowed to question one another or other witnesses directly, but should be given an ongoing opportunity during the proceeding to offer questions to be asked through the decision-maker(s), who will determine whether to ask them. The investigator should be available for questioning by the decision-maker(s) and the parties.</li> <li> The Task Force spent considerable time discussing the standard of proof to be used by decision-maker(s) in determining whether a violation occurred. In light of concerns raised about both preponderance and clear and convincing evidence, the Task Force believes that it is best to avoid labels and instead articulate the appropriate basis for a finding of responsibility. In a model where there is only one decision-maker, the Task Force believes that there should be a higher standard of proof.</li> </ul> <p> &ldquo;The college and university community has been grappling for decades with how to fairly and effectively ensure fair process protections for both victims and the accused in sexual misconduct cases,&rdquo; said Task Force Chair Andrew S. Boutros. &nbsp;&nbsp;</p> <p> &ldquo;On behalf of the entire Task Force and its members, we are all immensely proud to have played a part in helping the nation&rsquo;s thousands of higher education institutions and their approximately 21 million students in this important and complex area of law and policy,&rdquo; said Boutros.</p> <p> The ABA Criminal Justice Section established the Task Force on College Due Process Rights and Victim Protections to develop guidelines and recommendations to ensure due process for both the victim and the accused in college campus sexual misconduct cases. You can read more about the Task Force <a href="https://www.americanbar.org/groups/criminal_justice/committees/campus.html">here</a>.</p> <p> Seyfarth&rsquo;s White Collar, Internal Investigations, and False Claims Team represents colleges, universities, and other schools in matters involving allegations of Title IX violations, sexual assault on college campuses, and other allegations of student or school improprieties. In addition, the Team provides cutting-edge advice to clients (both companies and individuals) in all varieties of white collar matters, government enforcement defense, trials, internal investigations, and complex litigations, including matters involving fraud, embezzlement, the FCPA, insider trading, other securities violations, healthcare violations, customs fraud, trade secret theft, environmental crimes, and the False Claims Act, among others.</p> http://www.seyfarth.com:80/news/smith062617 Cameron Smith quoted in Bloomberg http://www.seyfarth.com:80/news/smith062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Cameron Smith was quoted in a June 26 story from Bloomberg on how dozens of major U.S. companies are encouraging a federal court to declare discrimination based on sexual orientation illegal. Smith said that if the Second Circuit joins the Seventh circuit in holding that Title VII includes sexual orientation, then that&rsquo;s a big deal. You can read the <a href="https://www.bloomberg.com/news/articles/2017-06-26/morgan-stanley-microsoft-cbs-back-legal-shield-for-gay-workers">full article here</a>.</p> http://www.seyfarth.com:80/news/leon062617 Leon Rodriguez quoted in Courthouse News Service http://www.seyfarth.com:80/news/leon062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 26 story from Courthouse News Service, &quot;Taking Up Trump Travel Ban, High Court Puts Injunctions on Ice,&quot; on how the Supreme Court took up the controversial travel ban case as its last act before summer recess. Rodriguez said that we will all have to watch closely how the Supreme Court&rsquo;s reversal of the lower Court&rsquo;s injunction will work. You can read the<a href="http://www.courthousenews.com/supreme-court-takes-trump-travel-ban/"> full article here</a>.</p> http://www.seyfarth.com:80/news/ESD062317 Seyfarth Represents ESD in its Move to Willis Tower http://www.seyfarth.com:80/news/ESD062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> CHICAGO - (June 23, 2017) - Seyfarth Shaw LLP represented ESD, a global leading engineering design firm, in its move to iconic Willis Tower. ESD will occupy over 46,000 square feet of new space on the entire 53rd floor and a portion of the 54th floor.</p> <p> Earlier this year, Seyfarth represented the National Restaurant Association, the largest foodservice trade association in the world, in its move to Willis Tower. The National Restaurant Association leased close to 51,000 square feet of office space on the 36th floor.</p> <p> Seyfarth Chicago partner Jay Gitles represented both ESD and the National Restaurant Association.</p> http://www.seyfarth.com:80/news/conley062317 Ben Conley was quoted in SHRM http://www.seyfarth.com:80/news/conley062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Ben Conley was quoted in a June 23 story from SHRM, &quot;Senate Health Care Bill Would End Employer Mandate Penalty, Keep Cadillac Tax,&quot; on how the health care bill released by the Senate this week closely hews to the bill that was narrowly approved by the House, at least with regard to employer-sponsored group health plans. Conley said the Senate proposal largely mirrors the House measure with some significant differences. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/senate-bcra-mandates-reporting-taxes.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/robertson062317 Christopher Robertson quoted in the New York Law Journal http://www.seyfarth.com:80/news/robertson062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Christopher Robertson was quoted in a June 23 story from the New York Law Journal, &quot;How Second Circuit&#39;s &#39;Stadnick&#39; Decision Provides Securities Clarity,&quot; on how the U.S. Court of Appeals for the Second Circuit set down the sole standard for dealing with Section 11 of the U.S. Securities Act, which holds an issue liable for excluding or providing untrue information in a registration statement.&nbsp;</p> http://www.seyfarth.com:80/news/seidman062317 Joshua Seidman quoted in the Cook County Record http://www.seyfarth.com:80/news/seidman062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Joshua Seidman was quoted in a June 23 story from the Cook County Record, &quot;Cook County paid sick leave ordinance takes effect July 1; employers should learn the rules, lawyer says,&quot; on the Cook County&rsquo;s approved paid sick leave &ldquo;Interpretative and Procedural Rules&rdquo; which will officially go into effect on July 1. Seidman said that managers and HR personnel also should be trained on any changes to the employer&rsquo;s sick leave policy and practices, and on how to respond to employee sick leave questions in the coming months. You can read the <a href="http://cookcountyrecord.com/stories/511129875-cook-county-paid-sick-leave-ordinance-takes-effect-july-1-employers-should-learn-the-rules-lawyer-says">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM062317-LE The Baton Passes Back to the East Coast: Prior Salary Ban Passed in Delaware and Philadelphia Law Suit Challenging Prior Salary Ban Back On http://www.seyfarth.com:80/publications/OMM062317-LE Fri, 23 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: There have been two big updates on the prior salary front. First, Delaware joins the growing number of states and local jurisdictions with its enactment of a law preventing employers from requesting salary history of job applicants.&nbsp; The law will take effect in December 2017.&nbsp; Second, the Chamber of Commerce for Greater Philadelphia revived its constitutional challenge to Philadelphia&rsquo;s pay equity ordinance. The United States District Court for the Eastern District of Pennsylvania had previously concluded that the Chamber could not pursue a suit seeking to block the ordinance because the Chamber, in the court&rsquo;s eyes, did not allege that it or any of its member companies would suffer specific harm if the ordinance went into effect.&nbsp; In response, the Chamber has filed an amended complaint, alleging that the ordinance would interfere with the employee hiring by both the Chamber itself and by a number of its members.&nbsp; The ordinance remains on hold.&nbsp; Stay tuned for further developments.</em></p> <p> <strong>Delaware Passes Prior Salary Ban</strong></p> <p> Last week, Delaware&rsquo;s Governor, John Carney, signed into law <a href="http://legis.delaware.gov/BillDetail?legislationId=25664">legislation</a> that will prevent employers from requesting the salary history of job applicants.&nbsp; Similar bans have been passed in <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM060817-LE">Philadelphia (under challenge)</a>, Puerto Rico, and earlier this month, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM060817LE2.pdf">Oregon</a>.&nbsp; The law will go into effect in December 2017, right on the heels of New York City&rsquo;s law, which goes into effect this Halloween.</p> <p> The Delaware law will make it an unlawful employment practices for an employer or an employer&rsquo;s agent to &ldquo;seek&rdquo; the compensation history from an applicant or the applicant&rsquo;s current or former employer.&nbsp; As with laws in other jurisdictions, employers are still permitted to ask about salary expectations and, as they are in some jurisdictions, employers are permitted to confirm compensation history after an offer of employment with terms of compensation has been extended to the applicant and accepted.</p> <p> The Delaware law will also make it illegal to screen applicants based on their compensation histories (i.e., to disposition a candidate because their prior salary was either too high or too low).&nbsp;</p> <p> One novel approach taken by the Delaware law is that it provides a safe harbor for actions taken by the employer&rsquo;s agent.&nbsp; If the employer can demonstrate that the employer&rsquo;s agent was informed of the requirements of the Delaware law, and instructed to comply, then the employer is not liable for actions taken by an agent in violation of this section. Therefore, employers may wish to consider revising their contracts with staffing agencies and recruiting companies to include terms obligating the staffing or recruiting company to comply with the requirements of the Delaware law.</p> <p> The civil penalties for violations of the Delaware law are between $1,000 and $5,000 for the first offense, and between $5,000 and $10,000 for each subsequent violation.</p> <p> <strong>Revival of Lawsuit Challenging Philadelphia Salary History Ban Ordinance</strong></p> <p> In other pay equity news, the lawsuit challenging the Philadelphia salary history inquiry ban has been revived following its dismissal earlier this month.&nbsp;</p> <p> The City of Philadelphia passed an Ordinance that prohibits inquiries into salary history.&nbsp; The Ordinance was slated to go into effect on May 23, 2017, as we have previously reported <a href="http://www.seyfarth.com/publications/OMM060817-LE">here</a>.</p> <p> On April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the &ldquo;Chamber&rdquo;) <a href="http://www.seyfarth.com/publications/OMM042517-LE">filed a federal lawsuit seeking to enjoin the law</a>.&nbsp; On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stayed the effective date of the new law until resolution of the motion for preliminary injunction. On May 30, 2017, the court dismissed the Chamber&rsquo;s complaint with prejudice, finding that Supreme Court and Third Circuit precedent &ldquo;require the identification of a member who has suffered or will suffer harm in cases brought by an association on behalf of its members,&rdquo; but granting the Chamber the ability to file an Amended complaint.</p> <p> Last week, the Chamber<a href="http://www.seyfarth.com/dir_docs/publications/chamber_amended_complaint_june_2013_2017.pdf"> filed an amended complaint</a> and moved for <a href="http://www.seyfarth.com/dir_docs/publications/Amended_Motion_for_Prelim_Inj_Philly.pdf">another preliminary injunction</a>.&nbsp; The City&rsquo;s opposition to the motion is due August 4, 2017.&nbsp; In the amended complaint and the new motion for preliminary injunction, the Chamber claims that the Chamber has legal standing because both the Chamber itself and a number of its member companies will be harmed by the Ordinance.&nbsp;</p> <p> We will continue to track this lawsuit as it moves through the courts.</p> http://www.seyfarth.com:80/publications/WH062317 And on the Seventh Day, Let Them Rest… or Work—If They Want! http://www.seyfarth.com:80/publications/WH062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Last month in <a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/06/S224611.pdf" target="_blank">Mendoza v. Nordstrom, Inc.</a>, the California Supreme Court addressed three questions about California&rsquo;s &ldquo;day of rest&rdquo; statutes that prohibit employers from causing employees &ldquo;to work more than six days in seven.&rdquo;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/state-claims/on-the-seventh-day-let-them-rest-or-work/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=04e8b24c97-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-04e8b24c97-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062217 Upcoming Webinar! Trade Secret Protection: What Every Employer Needs to Know http://www.seyfarth.com:80/publications/ts062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Trade secret identification and protection is more critical than ever for employers. Technology is consuming the way we do business, and new laws concerning trade secrets and the content of employment agreements make trade secret identification and protection more critical than ever.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/upcoming-webinar-trade-secret-protection-what-every-employer-needs-to-know/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=787ccc62bb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-787ccc62bb-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/tbt062217 The Week in Weed: June 23, 2017 http://www.seyfarth.com:80/publications/tbt062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/the-week-in-weed-june-23-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=358f9285e9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-358f9285e9-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/MA062117-LIT Texas Legislature Clarifies and Expands the Texas Uniform Trade Secrets Act http://www.seyfarth.com:80/publications/MA062117-LIT Thu, 22 Jun 2017 00:00:00 -0400 <div> On May 19, 2017, Texas Governor Greg Abbott signed into law several amendments to the Texas Uniform Trade Secrets Act (&ldquo;TUTSA&rdquo;), located in Chapter 134A of the Texas Civil Practice &amp; Remedies Code. The amendments go into effect on September 1, 2017. In doing so, Texas has aligned its statute more closely with federal law and codified recent judicial interpretations of the law.</div> <div> &nbsp;</div> <div> Two events precipitated the amendments, one legislative, one judicial. In the first, Congress passed the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) in May 2016, which provides a federal cause of action for trade-secret misappropriation. In the second, the Texas Supreme Court announced in <em>In re M-I L.L.C.</em>, 505 S.W.3d 569 (Tex. 2016) that a presumption exists that a party is authorized to participate and assist in the defense of a trade-secret misappropriation claim under TUTSA, which presumption cannot be surmounted unless the trial court considers a seven-factor balancing test. These events resulted in the following key changes to the TUTSA:</div> <div> &nbsp;</div> <div> <strong>Trade Secret &nbsp;</strong></div> <div> The amended TUTSA expands the definition of &ldquo;trade secret&rdquo; to more closely harmonize Texas law with the DTSA&rsquo;s definition. Specifically, the Texas Legislature added to the definition &ldquo;all forms and types of information&rdquo; including, by way of example, &ldquo;business, scientific, technical, economic, or engineering information,&rdquo; design, prototype, plan, program device, code, or procedure, &ldquo;whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.&rdquo; There remain, however, several important differences between the amended TUTSA and the DTSA. First, the revised TUTSA definition of trade secrets lists illustrative examples of the form or type of information that can constitute a trade secret, whereas &sect; 1839(3) of the DTSA confines a trade secret as &ldquo;financial, business, scientific, technical, economic, or engineering information.&rdquo; Second, in contrast to the DTSA, TUTSA includes a &ldquo;list of actual or potential customers or suppliers&rdquo; as an example of trade-secret information. Third, a trade secret under TUTSA, unlike the DTSA, need not be &ldquo;related to a product or service used in, or intended for use in, interstate or foreign commerce.&rdquo;</div> <div> &nbsp;</div> <div> <strong>Injunctive Relief &nbsp;</strong></div> <div> TUTSA generally allows for injunctive relief from actual or threatened misappropriation. The amendment, however, preserves and clarifies the common-law rule that an employee cannot be enjoined &ldquo;from using the general knowledge, skill, and experience acquired during employment.&rdquo; <em>Sharma v. Vinmar Int&rsquo;l, Ltd.</em>, 231 S.W.3d 405, 424 (Tex. App.&mdash;Houston [14th Dist.] 2007, pet. dism&rsquo;d).</div> <div> &nbsp;</div> <div> <strong>Willful and Malicious Misappropriation &nbsp;</strong></div> <div> Under the pre-amendment TUTSA, a trade-secret owner must establish &ldquo;willful and malicious&rdquo; misappropriation as a precondition to an award of exemplary damages and attorney&rsquo;s fees. The amendments clarifies that &ldquo;willful and malicious misappropriation,&rdquo; means &ldquo;intentional misappropriation resulting from the conscious disregard of the rights of the owner of the trade secret,&rdquo; which definition is derived from the Seventh Circuit&rsquo;s definition in <em>Learning Curve Toys, Inc. v. PlayWood Toys, Inc.</em>, 342 F.3d 714, 730 (7th Cir. 2003) (applying the Illinois Uniform Trade Secret Act). The amended TUTSA also defines the phrase, previously undefined by TUTSA, that triggers an award of exemplary damages&mdash;&ldquo;clear and convincing evidence&rdquo;&mdash;by using the definition in section 41.001(2) of the Texas Civil Practice and Remedies Code.</div> <div> &nbsp;</div> <div> <strong>Trade Secret &ldquo;Owner&rdquo; &nbsp;</strong></div> <div> The amendment, which relies on the modified definition of &ldquo;owner&rdquo; found in the DTSA, provides that an &ldquo;owner&rdquo; of a trade secret is a &ldquo;person or entity in whom or in which rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.&rdquo; Thus, the amendment clarifies that certain nonowners, such as licensees, may be entitled to file a claim for trade-secret misappropriation under TUTSA.</div> <div> &nbsp;</div> <div> <strong>Seven-Factor Balancing Test &nbsp;</strong></div> <div> The amendment codifies the Texas Supreme Court&rsquo;s holding in <em>In re M-I L.L.C.</em>, which sets out a seven-factor balancing test that courts must consider before excluding a party or a party&rsquo;s representative at any stage of the proceedings, including discovery, pretrial, or trial. The revised TUTSA presumes that parties are allowed to participate and be present during proceedings and may not be excluded until after a court considers the following seven factors:</div> <div style="margin-left: 80px;"> (1) the value of an owner&rsquo;s alleged trade secret;</div> <div style="margin-left: 80px;"> (2) the degree of competitive harm an owner would suffer from the dissemination of the owner&rsquo;s alleged trade secret to the other party;</div> <div style="margin-left: 80px;"> (3) whether the owner is alleging that the other party is already in possession of the alleged trade secret;</div> <div style="margin-left: 80px;"> (4) whether a party&rsquo;s representative acts as a competitive decision maker;</div> <div style="margin-left: 80px;"> (5) the degree to which a party&rsquo;s defense would be impaired by limiting that party&rsquo;s access to the alleged trade secret;</div> <div style="margin-left: 80px;"> (6) whether a party or a party&rsquo;s representative possesses specialized expertise that would not be available to a party&rsquo;s outside expert; and</div> <div style="margin-left: 80px;"> (7) the stage of the action.</div> <div> &nbsp;</div> <div> TUTSA, as amended, is now one of the most modern and comprehensive laws governing trade secrets in the United States.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/casciari062217 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciari062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Joan Casciari was quoted in a June 22 story from SHRM, &quot;FMLA Abuse: Serving Jail Time, Moonlighting, Vacationing and More,&quot; on how, even if the real reasons for FMLA leave seem outrageous, courts may rule against employers. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/fmla-abuse-odd-reasons.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/ts062117 The Latest East Coast/West Coast Conflict: Massachusetts Courts Consider the Application of California Law in Non-Compete Litigation http://www.seyfarth.com:80/publications/ts062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Hearkening back to the rivalry between the Boston Celtics and Los Angeles Lakers in the 1980s, Massachusetts courts (as well as others around the country) have increasingly been asked to analyze the application of California law in litigation related to non-competition agreements. As many readers of this blog know, non-competition agreements are generally not enforceable under California law.&nbsp;</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/noncompete-enforceability/the-latest-east-coastwest-coast-conflict-massachusetts-courts-consider-the-application-of-california-law-in-non-compete-litigation/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=dad7d644d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-dad7d644d4-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062117-LE Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers http://www.seyfarth.com:80/publications/OMM062117-LE Wed, 21 Jun 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Canadian government instituted a new, immediately effective Global Skills Strategy to facilitate entry of skilled workers.</em></p> <p> <em>The following alert is directed to organizations with a presence in Canada or who anticipate the need to place talent at a Canadian work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> Immigration, Refugees and Citizenship Canada (&ldquo;IRCC&rdquo;) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (&ldquo;LMIA&rdquo;)-exempt work permit applications and two brand new work permit exemptions, as part of Canada&rsquo;s Global Skills Strategy.</p> <p> <strong><u>Two-Week Work Permit Processing Standard</u></strong></p> <p> Certain LMIA-exempt work permit applications made outside of Canada at a Canadian Consulate are now eligible for expedited two-week processing, including LMIA-exempt work permit applications for employees performing work at Skill Level 0 or A of the National Occupational Classification (&ldquo;NOC&rdquo;). Therefore, NAFTA Professionals and Intra-company Transferees in high-skilled occupations, such as IT professionals, Management Consultants and senior managers, can benefit from this new processing standard.&nbsp; Historically, and for those not eligible for the new two-week standard, it would typically take about ten weeks at the Consulate General of Canada in New York.</p> <p> In addition, corresponding applications for any accompanying family members, including open work permits for spouses and study permits for dependents, are eligible for two-week processing. Applications made inside Canada are not eligible for this new, expedited two-week processing.</p> <p> Please note there is no additional premium processing fee for applications eligible for expedited two-week processing.</p> <p> <strong><u>Single-Entry Short-Term Work Permit Exemption for High Skilled Workers</u></strong></p> <p> Workers with a job offer for a position under NOC Skill Level 0 or A are now eligible for a work permit exemption of up to 15 consecutive calendar days every six (6) months, or up to 30 consecutive calendar days every 12 months. This means that workers who qualify for this exemption may work in Canada within these timeframes without first obtaining a work permit.&nbsp; Individuals must apply for this exemption from outside of Canada or at a port of entry. This exemption is not available for applicants submitting applications from within Canada.</p> <p> Individuals must carry significant documentation to demonstrate eligibility for this exemption, including a detailed support statement from a related Canadian entity or Canadian client.&nbsp; Individuals can benefit from this exemption only once in a 6 month or 12 month period (as described above), as consecutive exemptions are not permitted. IRCC has confirmed to our office that individuals must provide evidence that they have not used this exemption in either the previous 6 or 12 months, depending on whether a 15 day or 30 day exemption is sought.&nbsp;</p> <p> <strong><u>120-Day Work Permit Exemption for Researchers</u></strong></p> <p> Researchers invited to perform research at a publicly-funded degree granting Canadian post-secondary institution or affiliated research institution are now eligible for a work permit exemption for up to 120 consecutive calendar days every 12 months.</p> <p> Given the immediate effective date of these changes, it will take several weeks before immigration officers at the port of entry become familiar with them, and perhaps longer before we fully understand the ways in which they will be implemented in practice. We will share additional guidance as it becomes available.</p> http://www.seyfarth.com:80/publications/LR062117 DOL Issues Notice of Proposed Rulemaking to Rescind Obama Administration’s Final Persuader Rule http://www.seyfarth.com:80/publications/LR062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Last year, we reported extensively on the Department of Labor&rsquo;s final persuader rule, which was scheduled to take effect on July 1, 2016 and would have required certain public reporting by employers and their consultants (including attorneys). However, as we reported in late June 2016, a federal district court in Texas issued a nationwide preliminary injunction preventing the rule from taking effect.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/06/21/dol-issues-notice-of-proposed-rulemaking-to-rescind-obama-administrations-final-persuader-rule/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4cd73ca62a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4cd73ca62a-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/IMM062117 BIG Immigration Law Blog: Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers http://www.seyfarth.com:80/publications/IMM062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Immigration, Refugees and Citizenship Canada (&ldquo;IRCC&rdquo;) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (&ldquo;LMIA&rdquo;)-exempt work permit applications and two brand new work permit exemptions, as part of Canada&rsquo;s Global Skills Strategy.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/canada-launches-global-skills-strategy-to-fast-track-short-term-entry-of-high-skilled-workers/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=a60d34d55b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-a60d34d55b-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/CP062117 Hot Off The Press! DFEH’s Annual Report http://www.seyfarth.com:80/publications/CP062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> The DFEH hails as the largest state civil rights agency in the country, with 220 full-time employees operating out of five offices throughout California. Its annual report makes clear that its core work is litigation. It sues chiefly under the Fair Employment and Housing Act, California&rsquo;s more expansive version of federal anti-discrimination law, and also sues under the Unruh Civil Rights Act, the Disabled Persons Act, and the Ralph Civil Rights Act.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/21/hot-off-the-press-dfehs-annual-report/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=e1eff26aef-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-e1eff26aef-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/wse062017 “Controlling Employer” Doctrine Reviewed and Vacated by OSHRC Law Judge http://www.seyfarth.com:80/publications/wse062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan&rsquo;s decision, in <a href="https://www.oshrc.gov/decisions/html_2017/15-1638.html"><em>Hensel Phelps Construction Co.</em></a>, Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a &ldquo;controlling employer.&rdquo; &nbsp;</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/osha-litigation/controlling-employer-doctrine-reviewed-and-vacated-by-oshrc-law-judge/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=99c9563574-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-99c9563574-73179581">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062017 Trading Secrets Blog: Texas Legislature Clarifies and Expands the Texas Uniform Trade Secrets Act http://www.seyfarth.com:80/publications/ts062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> On May 19, 2017, Texas Governor Greg Abbott signed into law several amendments to the Texas Uniform Trade Secrets Act (&ldquo;TUTSA&rdquo;), located in Chapter 134A of the Texas Civil Practice &amp; Remedies Code. The amendments go into effect on September 1, 2017.&nbsp; In doing so, Texas has aligned its statute more closely with federal law and codified recent judicial interpretations of the law.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/legislation-2/texas-legislature-clarifies-and-expands-the-texas-uniform-trade-secrets-act/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=a362e4554f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-a362e4554f-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062017a Trade Secret Survey of In-House Counsel http://www.seyfarth.com:80/publications/ts062017a Tue, 20 Jun 2017 00:00:00 -0400 <p> Friends of our blog are conducting&nbsp;a survey of lawyers who work in-house at companies and who have some experience with trade secret law.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/trade-secret-survey-of-in-house-counsel/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=dad7d644d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-dad7d644d4-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/EL062017 One Minute Memo: Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information http://www.seyfarth.com:80/publications/EL062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/one-minute-memo-extreme-vetting-measures-to-include-questionnaires-asking-for-detailed-travel-history-and-social-media-information/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=af3cf6e333-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-af3cf6e333-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/MA062017-LE DOL Withdraws Guidance on Independent Contractors and Joint Employers: What It Means and What Employers Should Do Now http://www.seyfarth.com:80/publications/MA062017-LE Tue, 20 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: United States Secretary of Labor Alexander Acosta recently withdrew the federal Wage &amp; Hour Division&rsquo;s (WHD) Obama-era guidance documents on independent contractors and joint employment.&nbsp; Those documents, known as Administrator Interpretations, set forth WHD&rsquo;s understanding of the concepts involved in determining &ldquo;employer&rdquo; status under the Fair Labor Standards Act.&nbsp; By now, you have likely seen the numerous immediate reactions of lawyers and other commentators published in the wake of the withdrawals.&nbsp; <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/dol-withdraws-guidance-on-je-ic/">Ours was among them</a>.&nbsp; Now that there has been some time to give deeper contemplation to the withdrawals, this Alert offers a more detailed analysis of what happened and what it means.</em></p> <p> <strong>What happened last week?</strong></p> <p> On June 7, 2017, Secretary Acosta announced the withdrawal of the 2015 and 2016 Administrator Interpretations on independent contractors &nbsp;and joint employment.&nbsp; The press release announcing the withdrawal noted that &ldquo;[r]emoval of the administrator interpretations does not change the legal responsibilities of employers under the [law], as reflected in the department&rsquo;s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction . . .&rdquo;</p> <p> <strong>What were the Administrator Interpretations?</strong></p> <p> Administrator Interpretations first made an appearance at WHD in 2010.&nbsp; In part, they were replacements for opinion letters, which had been issued for decades in response to specific requests made by the regulated community and could potentially be a complete defense to liability or liquidated damages under the FLSA. &nbsp;In contrast to the fact-specific (and, thus, more helpful to the requestor) analysis provided in opinion letters, the AIs were sweeping statements of policy, intended to &ldquo;provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees.&rdquo;&nbsp;</p> <p> The AIs, however, including those on independent contractors and joint employment, were not regulations and did not go through notice-and-comment rulemaking. As a result, they could be (and can continue to be) withdrawn as easily as they were issued.</p> <p> The AI on independent contractors was issued in 2015 and represented the first comprehensive statement of WHD&rsquo;s understanding of that issue.&nbsp; There, WHD took the multi-factor &ldquo;economic realities&rdquo; test that courts commonly used to interpret the issue and added an extremely expansive reading of the FLSA&rsquo;s &ldquo;suffer or permit to work&rdquo; definition of &ldquo;employ.&rdquo; The end result of that combination was intended to severely restrict the use of independent contractors under federal law and to require businesses to reclassify workers as employees subject to the minimum wage and overtime requirements of the FLSA.</p> <p> In early 2016, WHD issued an AI on joint employment that took a similarly expansive view of the law.&nbsp; Again, WHD applied the economic realities test and&nbsp; explained the scope of joint employment as being &ldquo;as broad as possible.&rdquo;&nbsp; This created concern among upper-tier contractors, franchisors, staffing agencies, lenders, and private equity firms, among others, that &nbsp;they could be tagged with joint employer exposure in relationships where there had previously been little risk.&nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/independent-contractors/dol-issues-guidance-on-ic-classification-interpreting-most-as-employees">As we noted</a> at the time the <a href="http://www.wagehourlitigation.com/joint-employment/another-momentous-ai">AIs were issued</a>, however, the true impact of the AIs would be seen as courts had the opportunity to consider WHD&rsquo;s position and determine whether to accept it.&nbsp; As mere guidance documents issued by WHD (as opposed to regulations, for example), the AIs ultimately were reliant upon acceptance by the courts to have any lasting legacy.</p> <p> <strong>What does the withdrawal of the AIs mean?</strong></p> <p> Initially, the withdrawal is simply the removal of WHD&rsquo;s positions on these issues.&nbsp; There have been no replacement guidance documents issued in which WHD takes a different position.</p> <p> The withdrawal may also portend a shift in focus by WHD investigators.&nbsp; The AIs took the most expansive understanding of employment possible, ultimately seeking to interfere with traditional contractual and other business relationships.&nbsp; Eliminating that understanding signals to the investigative staff that they should not spend limited resources focused on those relationships.</p> <p> Finally, the withdrawal of the AIs means that most courts will not even have the opportunity to consider -- whether formally or informally -- WHD&rsquo;s positions.&nbsp; This does not necessarily mean that courts will reach different decisions; it means only that, when reaching that decision, they will be unable to rely upon WHD&rsquo;s statements.&nbsp; Of course, there may be a handful of cases in which AIs continue to have relevance, and, thus, have some continued influence on the development of the law in this area:&nbsp; for example, any pending cases or cases addressing relationships during the short time when the AIs existed.&nbsp; Such cases, however, are likely to have a fairly limited impact given the AIs&rsquo; withdrawal.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <strong>How does this impact employers?</strong></p> <p> Although the withdrawal of the AIs is certainly good news for employers, it would be premature to celebrate.&nbsp; Neither the issue of independent contractor misclassification nor the concerns over joint employment have been eliminated.&nbsp; Plaintiffs&rsquo; attorneys will continue to bring misclassification cases; they also will continue to seek to apply joint employment principles broadly.&nbsp; Unless and until WHD issues replacement guidance, it will be up to the courts to create the parameters, and those parameters are likely to be inconsistent, varying from within the federal judiciary and by applicable state laws.&nbsp; And the parameters need not necessarily be more employer-friendly; in some circumstances, the AI standards may actually have been better for employers.&nbsp; For example, <a href="http://www.wagehourlitigation.com/joint-employment/fourth-circuit-joint-employment/">in a recent case</a>, the Fourth Circuit appears to have created a new joint employment test that has the potential to force federal courts within that Circuit to conclude that a joint employment relationship exists in almost any case where two or more businesses derive the benefit of work done by an employee of one of them.&nbsp; That case is unchanged by the AIs&rsquo; withdrawal.</p> <p> Also unaffected by the withdrawal of the AIs are the myriad standards for independent contractor and joint employment in other federal, state, and local contexts.&nbsp; For example, the EEOC and NLRB have had a significant focus on these issues in the past several years.&nbsp; Although it is certainly possible that (once fully constituted) the EEOC and NLRB, may follow DOL&rsquo;s lead and dial back their focus, but there is no guarantee that they will do so.&nbsp; Unless and until that happens, employers should continue to comply with those requirements.&nbsp;</p> <p> In addition, many state governments have had intense focus on the issues, with state legislatures passing laws that, for example, more strictly apply independent contractor standards.&nbsp; State agencies enforcing these laws have taken more aggressive stances on their application and have sought increased penalties for classifying workers as independent contractors.&nbsp; For example, in Massachusetts, the requirements for independent contractor status are particularly restrictive and employers are subject to treble damages for violations; in California, where the standards are similarly restrictive, willful violations are subject to statutory penalties of $5,000 to $15,000; and, in New York City, repeat violations could result in penalties (in addition to damages) up to $25,000.&nbsp; In the potential absence of federal focus on these issues, other state and local governments may follow suit, using the withdrawal as an opportunity to &ldquo;fill the gap&rdquo; and pursue a more expansive understanding of the employment relationship, with more consequential penalties for failing to comply with that understanding.</p> <p> As a result, employers cannot take their eyes off of these issues.&nbsp; They should continue to review indep