Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80/publications/MA081618-LE Unlikely Ally: Employer Makes a Meal Out of CBA Waiver http://www.seyfarth.com:80/publications/MA081618-LE Thu, 16 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp;A collective bargaining agreement, to permissibly waive a negotiable statutory right, must do so in a clear and unmistakable manner, by mentioning either the statutory protection being waived or the statute itself. The Court of Appeal has sensibly applied that standard in upholding a CBA&rsquo;s waiver of a first meal period for shifts not exceeding six hours.&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>The Facts</strong></div> <div> &nbsp;</div> <div> The California Labor Code states that an employee working more than five hours in a shift is entitled to a meal period unless the employee and employer mutually waive the requirement to provide a first meal period for a shift that does not exceed six hours. Thus, while a meal-period is a statutory right, and while statutory rights generally are unwaivable, the statute itself makes a first meal period waivable within the circumstances just specified.&nbsp;</div> <div> &nbsp;</div> <div> Kristina Ehret and Elmer Gillett were cashiers at a WinCo Foods store. WinCo&rsquo;s hourly employees belonged to a collective bargaining unit represented by an employee association. Gillett, as chair of the association, negotiated a collective bargaining agreement with WinCo. The CBA stated that &ldquo;when a work period of not more than 6 hours will complete a day&rsquo;s work, a meal period is not required.&rdquo;</div> <div> &nbsp;</div> <div> After the employees sued WinCo for failing to provide meal periods, WinCo, represented by Seyfarth Shaw, moved for summary judgment, arguing that the CBA had waived the employees&rsquo; statutory right to a meal period. The trial court granted WinCo&rsquo;s motion, and the employees appealed.&nbsp;</div> <div> &nbsp;</div> <div> <strong>The Appellate Court Decision</strong></div> <div> &nbsp;</div> <div> On appeal, the employees argued that the CBA failed to qualify as a valid waiver of statutory rights because its language was not &ldquo;clear and unmistakable.&rdquo; The Court of Appeal rejected the argument and affirmed the trial court&rsquo;s decision. <em>Ehret v. Winco Foods, LLC.</em></div> <div> &nbsp;</div> <div> The Court of Appeal began its analysis by confirming that an employee&mdash;and a union on behalf of represented employees&mdash;may lawfully waive negotiable statutory rights. (The Court of Appeal expressed doubt, however, that employees could ever waive <em>nonnegotiable </em>statutory rights.) But any such waiver of a negotiable statutory right in a CBA must be &ldquo;clear and unmistakable,&rdquo; meaning that the CBA must do more than speak in general language: the language must specify either the statutory protection being waived or the statute itself.</div> <div> &nbsp;</div> <div> The employees argued that the CBA flunked this test for a valid waiver because the CBA did not use the word &ldquo;waive,&rdquo; and did not cite the statute addressing meal periods. The Court of Appeal rightly rejected these hypertechnical arguments. Even though the CBA did not cite any statute addressing meal periods, the CBA&mdash;by saying when &ldquo;a meal period is not required&rdquo;&mdash;did use language that was &ldquo;flatly irreconcilable&rdquo; with the statutory right, and in a context in which the statute, by its terms, made that right negotiable.</div> <div> &nbsp;</div> <div> <strong>What <em>Ehret </em>Means For Employers</strong></div> <div> &nbsp;</div> <div> Although <em>Ehret </em>addressed only the enforceability of a meal period waiver in the context of a CBA, its analysis is useful generally. California famously protects employees&rsquo; rights. One right so protected, however, is the employee&rsquo;s right to waive negotiable statutory protections. One such protection is a meal period&mdash;subject to negotiation under the limited circumstances existing here. That protection can be waived either individually or, as here, through collective bargaining. (Another negotiable right, subject to waiver only through collective bargaining, is the right to receive vested vacation pay upon termination of employment, under Labor Code section 227.3.)&nbsp;</div> <div> &nbsp;</div> <div> <em>Ehret </em>champions reason and common sense by making it clear that a waiver, to be valid, need not use magic words such as &ldquo;waive&rdquo; and need not legalistically cite the statutory provision at issue. Language suffices to accomplish a waiver if the language simply makes clear that the employee is giving up a negotiable right that the statute, absent a waiver, would protect.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL081618 OFCCP Winds Down Summer By Issuing New Guidance on Religious Discrimination and Announcing New Focused Review Process http://www.seyfarth.com:80/publications/EL081618 Thu, 16 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) is closing the summer by issuing two new enforcement directives. The first, Directive 2018-03, clarifies the OFCCP&rsquo;s enforcement of religious non-discrimination in light of recent court decisions and executive orders. The second, Directive 2018-04, creates focused reviews for Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;). These two directives come just a week after the OFCCP released its much anticipated publication outlining what federal contractors can expect from the agency.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/ofccp-winds-down-summer-by-issuing-new-guidance-on-religious-discrimination-and-announcing-new-focused-review-process/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT081618 The Week in Weed: August 17, 2018 http://www.seyfarth.com:80/publications/TBT081618 Thu, 16 Aug 2018 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="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-17-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC081518 Federal Court Leaves Opportunity For A “Compelling” Exhaustion Argument http://www.seyfarth.com:80/publications/WC081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. District Court for the District of New Jersey recently issued a ruling with respect to Defendants&rsquo; &ldquo;compelling&rdquo; exhaustion argument that Plaintiffs failed to exhaust administrative remedies with respect to their disparate treatment and disparate impact theories of Title VII claims relied on to support their motion for class certification, as those claims were outside the scope of Plaintiffs&rsquo; underlying EEOC charges. In rejecting Defendants&rsquo; argument, the Court invited Defendants to raise their argument more appropriately on a motion for summary judgment. The decision is an important one for employers facing employment discrimination class actions.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-leaves-opportunity-for-a-compelling-exhaustion-argument/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS081518 Seyfarth Attorneys to Participate in ITechLaw 2018 European Conference in Milan, Italy http://www.seyfarth.com:80/publications/TS081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2018 European Conference in Milan, October 17&ndash;19.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/trade-secrets/seyfarth-attorneys-to-participate-in-itechlaw-2018-european-conference-in-milan-italy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA081518-LE OFCCP Winds Down Summer By Issuing New Guidance on Religious Discrimination and Announcing New Focused Review Process http://www.seyfarth.com:80/publications/MA081518-LE Wed, 15 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;<em>The Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) began this month by issuing two new enforcement directives.&nbsp; The first, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/Dir2018-03-ESQA508c.pdf">Directive 2018-03</a>, clarifies the OFCCP&rsquo;s enforcement of religious non-discrimination in light of recent court decisions and executive orders.&nbsp; The second, <a href="https://www.dol.gov/ofccp/regs/compliance/directives/Dir2018-04-ESQA508c.pdf">Directive 2018-04</a>, creates focused reviews for Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;).&nbsp; These two directives come just a week after the OFCCP released its much anticipated <a href="https://www.dol.gov/ofccp/regs/compliance/posters/FS_WhatFedContractorsCanExpect-v2ESQA508c.pdf">publication</a> outlining what federal contractors can expect from the agency.</em></p> <p> <strong>&ldquo;What Contractors Can Expect&rdquo;</strong></p> <p> On August 2nd, the OFCCP published the &ldquo;What Contractors Can Expect&rdquo; guidance which lays out the agency&rsquo;s enforcement plans and echoes the message of transparency that the OFCCP announced when the new leadership took over and that Acting OFCCP Director Craig Leen recently reiterated to the contractor community during his opening address at the 2018 National Industry Liaison Group.&nbsp; In it the OFCCP assures contractors that they can expect:</p> <ul> <li> Access to Accurate Compliance Assistance Material;</li> <li> Timely Responses to Compliance Assistance Questions;</li> <li> Opportunities to Provide Meaningful Feedback and Collaborate;</li> <li> Professional Conduct by OFCCP&rsquo;s Compliance Staff;</li> <li> Neutral Scheduling of Compliance Evaluations;</li> <li> Reasonable Opportunity to Discuss Compliance Evaluation Concerns;</li> <li> Timely and Efficient Progress of Compliance Evaluations; and</li> <li> Confidentiality</li> </ul> <p> These expectations are consistent with the message of collaboration that the OFCCP has promised under the current administration.&nbsp; References to the neutral scheduling of compliance reviews and the opportunity to discuss concerns contained in the guidance echo previous actions taken by the agency in 2018.</p> <p> The agency followed up on August 10th by issuing two new directives.</p> <p> <u><strong>Directive 2018-03: Executive Order 11246 &sect; 204(c), religious exemption</strong></u></p> <p> Directive 2018-03 clarifies the agency&rsquo;s position on religious non-discrimination under EO 11246 in light of recent cases involving the relationship between federal regulation and the Free Exercise Clause, including <em>Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm&rsquo;n, Trinity Lutheran Church of Columbia, Inc. v. Comer, </em>and<em> Burwell v. Hobby Lobby Stores, Inc.</em>&nbsp; In its <a href="https://www.dol.gov/newsroom/releases/ofccp/ofccp20180810">press release</a>, the OFCCP noted that this Directive also serves to align the agency&rsquo;s enforcement actions with recent executive orders issued by the White House protecting religious freedom and the ability of faith-based and community organizations to compete fairly for government contracts and grants.&nbsp; The Directive instructs OFCCP staff to take these policies into consideration when providing compliance assistance, processing complaints, and reviewing compliance with EO 11246.&nbsp;</p> <p> In practical terms, this Directive may not impact the vast majority of interactions that occur between the agency and the contractor community, as it is directed to OFCCP staff.&nbsp; However, it does signal a change in the way that the agency reviews religious accommodations during compliance evaluations.&nbsp; It may also impact complaint investigations against certain employers which allege discrimination on the basis of religion or sexual orientation and gender identity.&nbsp; The Directive specifically notes that &ldquo;[t]his Directive supersedes any previous guidance that does not reflect these legal developments, for example, the section in OFCCP&rsquo;s Frequently Asked Questions: Sexual Orientation and Gender Identity regarding &ldquo;Religious Employers and Religious Exemption.&rdquo; See <a href="https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html">https://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html</a>.&rdquo;&nbsp;</p> <p> <strong>Directive 2018-04: Focused reviews of contractor compliance with Executive Order 11246 (E.O.), as amended; Section 503 of the Rehabilitation Act of 1973 (Section 503), as amended; and Vietnam Era Veterans&rsquo; Readjustment Assistance Act of 1974 (VEVRAA), as amended</strong></p> <p> While the impact of Directive 2018-03 appears to be fairly limited, Directive 2018-04 represents a major change in the way that the OFCCP enforces affirmative action and non-discrimination requirements, particularly under Section 503 and VEVRAA.&nbsp; The Directive calls for the agency to direct a portion of future scheduling lists to &ldquo;focused reviews&rdquo; of EO 11246, Section 503 and VEVRAA.&nbsp; The Directive further notes that in these focused reviews, &ldquo;OFCCP would go onsite and conduct a comprehensive review of the particular authority at issue.&rdquo;&nbsp; The reviews would include &ldquo;interviews with managers&hellip;as well as employees affected&rdquo; by the particular regulation and also evaluations of &ldquo;hiring and compensation data.&rdquo;&nbsp; The Directive instructs the OFCCP staff to develop a standard protocol for conducting the focused reviews as well as staff training, contractor education and compliance assistance materials.&nbsp; This policy suggests that the agency will be increasing its focus on the enforcement of Section 503 and VEVRAA which have historically received less attention than EO 11246 during compliance reviews.</p> <p> <strong>What This Means for Employers?</strong></p> <p> Neither the &ldquo;What Contractors Can Expect&rdquo; policy, nor the directive clarifying the religious exemption signal any significant change for contractors.&nbsp; The creation of the focused reviews, however, puts contractors on notice that the OFCCP will be scrutinizing policies and practices that relate to disability and protected veteran status much more closely. In anticipation of the first round of focused reviews, contractors should ensure that their current policies and practices comply with the 2014 updates to the Section 503 and VEVRAA regulations.&nbsp; Contractors should specifically focus on the following:</p> <ul> <li> Implementing an audit and reporting system to measure the effectiveness of their affirmative action efforts and take any necessary remedial measures;</li> <li> Documenting requests for accommodations;</li> <li> Ensuring that an interactive process for requesting accommodations during the hiring process is in place;</li> <li> Soliciting protected veteran and disability status from applicants and new hires;</li> <li> Listing all job openings with state employment delivery services; and</li> <li> Reviewing job descriptions and qualifications to ensure that they do not screen out protected veterans or individuals with disabilities.</li> </ul> <p> Contractors should also remember that in connection with both current compliance reviews and the new focused reviews, they may be asked to provide their most recent VETS-4212 Report.&nbsp; The deadline for filing the 2018 VETS-4212 Report is fast approaching on September 30, 2018.&nbsp;</p> <p> It is unclear how the introduction of the focused reviews may impact desk audit submissions or whether these reviews will necessitate additional analyses for hiring or compensation.&nbsp; We anticipate further announcements from the OFCCP given its promise to provide contractor education and compliance assistance materials.&nbsp; We will continue to monitor these changes and will alert you as more develops.</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> http://www.seyfarth.com:80/publications/OMM081518-LE Striking Workers Are Now Eligible For Unemployment Benefits In New Jersey http://www.seyfarth.com:80/publications/OMM081518-LE Wed, 15 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>On August 10, 2018, Governor Phil Murphy signed a law that would permit striking workers to collect unemployment benefits in New Jersey. The law covers any claim for a period of unemployment commencing on or after July 1, 2018.&nbsp;</em></div> <div> &nbsp;</div> <div> The bill amends New Jersey&rsquo;s unemployment insurance law and provides that an employee is eligible for unemployment benefits because of a labor dispute if the labor dispute is caused by the failure or refusal of the employer to comply with an agreement or contract between the employer and the employee, including a collective bargaining agreement.&nbsp; In addition, if unemployment is caused by a labor dispute, including a strike or other concerted employee activities, but not by a lockout or a labor dispute caused by the employer&#39;s non-compliance, the striking employee is entitled to unemployment benefits after a thirty (30) day waiting period.&nbsp; If the employer does not allow the striking employee to return to work or if the employer hires permanent replacement workers, the thirty (30) day waiting period shall not apply.&nbsp;</div> <div> &nbsp;</div> <div> Notably, a replacement worker shall be presumed permanent unless the employer certifies in writing that the striking employee will be permitted to return to his or her prior position upon conclusion of the strike.&nbsp; If the employer does not permit the employee to return, the striking employee shall be entitled to recover any benefits lost as a result of the thirty (30) day waiting period before receiving benefits. Additionally, the State may also impose a penalty upon the employer of up to $750 per employee per week of benefits lost. The penalty is payable to the unemployment insurance fund.&nbsp;</div> <div> &nbsp;</div> <div> State lawmakers introduced similar legislation two years ago, however, then Governor Chris Christie vetoed that bill, noting that &ldquo;striking workers, no matter what effect their actions have on the operations of their employer, by definition, cause their own unemployment by choosing not to work.&rdquo;&nbsp; In addition, Governor Christie believed that unemployment insurance law &ldquo;should not be used as a tool to give labor organizations additional leverage in labor negotiations.&rdquo;&nbsp; Under Governor Murphy this pro-union bill was given a second chance.&nbsp; The Assembly passed the bill by a vote of 48-25 in June followed by a 23-14 vote in the Senate shortly thereafter.&nbsp;</div> <div> &nbsp;</div> <div> New Jersey joins New York - which has a 49 day waiting period - and several other states in offering unemployment benefits to striking workers.&nbsp; Legislation such as this that has been enacted since Governor Murphy was sworn into office continues to signal to employers that increased employee protections will be of paramount importance to Governor Murphy&rsquo;s regime.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/CP081518 Proposition 65: Sign of the Times—For Employers, What’s New is Old http://www.seyfarth.com:80/publications/CP081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As of August 30, 2018, California businesses must provide the public with more information about dangerous chemicals present at the business location. Many California employers will comply with the new requirements through the Cal/OSHA-required workplace hazardous communication program. For occupational exposures that do not meet the thresholds for HazMat communications, posting new signs will meet the requirements.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/15/proposition-65-sign-of-the-times-for-employers-whats-new-is-old/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM081518 Marijuana Still Legally Risky For Non-Citizens (And Those Who Sponsor Them) http://www.seyfarth.com:80/publications/IMM081518 Wed, 15 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits. This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/marijuana-still-legally-risky-for-non-citizens-and-those-who-sponsor-them/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT081418 Marijuana Still Legally Risky For Non-Citizens (And Those Who Sponsor Them) http://www.seyfarth.com:80/publications/TBT081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> While marijuana possession and use continue to become legal in many U.S. states, either for strictly medicinal purposes or for any purpose at all, it can still be a basis for denial of immigration benefits, such as temporary visas, legal permanent residency, and/or naturalization, or for revocation of existing immigration benefits. This can even be true where the possession and/or use never resulted in either a criminal charge or conviction.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/08/marijuana-still-legally-risky-for-non-citizens-and-those-who-sponsor-them/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA081418-LE New York City Commission on Human Rights Proposes New Rules Broadening the Definition of Gender and Prohibited Discriminatory Conduct http://www.seyfarth.com:80/publications/MA081418-LE Tue, 14 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>The New York City Commission on Human Rights (the &ldquo;Commission&rdquo;) is proposing to amend its rules to establish certain definitions and clarify the scope of protections with respect to gender under the New York City Human Rights Law.&nbsp; The proposed amendments include: (1) adding definitions for the terms &ldquo;cisgender,&rdquo; &ldquo;gender identity,&rdquo; &ldquo;gender expression,&rdquo; &ldquo;gender,&rdquo; &ldquo;gender non-conforming,&rdquo; &ldquo;intersex,&rdquo; &ldquo;sex,&rdquo; and &ldquo;transgender;&rdquo; and (2) expanding what is considered prohibited discriminatory conduct based on gender, such as failure to use an employee&rsquo;s preferred name, pronoun or title, access to single-sex facilities / single-sex programs, certain dress and grooming standards, employee benefits, and employee accommodations.&nbsp; The Commission has opened the comment period for the proposed rule change and will hold a public hearing on September 25, 2018.&nbsp;</em></div> <div> &nbsp;</div> <div> The Commission&rsquo;s recent proposal to amend Title 47 of the Rules of the City of New York (the &ldquo;Rules&rdquo;) to establish certain definitions and clarify the scope of protections provided under <a href="http://www.nyc.gov/html/dcas/downloads/pdf/misc/psb_100_13_8_107.pdf">Title 8, Chapter 1 of the Administrative Code of the City of New York, Human Rights Law</a> (&ldquo;NYCHRL&rdquo;) is part of a long history by which New York City has created one of the broadest set of protections from discrimination on the basis of gender.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> By way of background, in 2002 the New York City Council passed Local Law No. 3 of 2002 (also known as the Transgender Rights Bill) in an effort to ensure protection for people whose gender and self-image &ldquo;do not fully accord with the legal sex assigned to them at birth.&rdquo;&nbsp; Under this law, the term &ldquo;gender&rdquo; was broadened to include &ldquo;actual or perceived sex&rdquo; and it was codified that &ldquo;discrimination based on an individual&rsquo;s gender identity, self-image, appearance, behavior, or expression&rdquo; constituted a violation of the NYCHRL.&nbsp; Earlier this year, the New York City Council passed Local Law No. 8 of 2018, further broadening the definitions of &ldquo;sexual orientation&rdquo; and &ldquo;gender&rdquo; under the NYCHRL.</div> <div> &nbsp;</div> <div> In an effort to help people understand their rights and responsibilities under the NYCHRL, the Commission published its <a href="https://www1.nyc.gov/site/cchr/law/legal-guidances-gender-identity-expression.page">Legal Enforcement Guidance on Discrimination on the Basis of Gender Identity or Expression</a>.&nbsp; While not law, the guidance provides insight into how the Commission enforces the NYCHRL&rsquo;s protections as they apply to discrimination based on gender, gender identity, and gender expression.&nbsp; Thus, while much of what is contained in the proposed amendment to the Rules already exists in the guidance, amending the Rules would codify the definitions and employers&rsquo; non-discrimination obligations under the NYCHRL.&nbsp;</div> <div> &nbsp;</div> <div> There are two key proposed changes to the Rules, which can be reviewed in full <a href="http://rules.cityofnewyork.us/sites/default/files/proposed_rules_pdf/cchr_gender_proposed_rule.pdf">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> <strong>1.<span style="white-space:pre"> </span>Adding Definitions for Specific Terms.&nbsp;</strong></div> <div> &nbsp;</div> <div> First, the proposed amendments include adding definitions for each of the following terms: &ldquo;cisgender,&rdquo; &ldquo;gender identity,&rdquo; &ldquo;gender expression,&rdquo; &ldquo;gender,&rdquo; &ldquo;gender non-conforming,&rdquo; &ldquo;intersex,&rdquo; &ldquo;sex,&rdquo; and &ldquo;transgender.&rdquo;&nbsp; By defining these terms, the Commission will further clarify the protected characteristics under the NYCHRL.</div> <div> &nbsp;</div> <div> <strong>2.<span style="white-space:pre"> </span>Prohibited Unlawful Discriminatory Practices Based on Gender.</strong></div> <div> &nbsp;</div> <div> Second, the proposed amendments also include new language setting forth prohibited unlawful discriminatory practices based on gender.&nbsp; Specifically, the amendments include the following:</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(a)&nbsp; Deliberate Misuse of an Individual&rsquo;s Chosen Name, Pronoun or Title.&nbsp;&nbsp;</em></strong></div> <div> &nbsp;</div> <div> Under the proposed rules, employers who deliberately misuse or refuse to use an employee&rsquo;s chosen name, pronoun or gendered title would be in violation of the NYCHRL if the refusal to do so is motivated by the individual&rsquo;s gender, irrespective of the employee&rsquo;s sex assigned at birth, except in the limited circumstances where federal, state or local law requires otherwise (such as for purposes of employment eligibility verification with the federal government).&nbsp; It would not be a violation to ask someone in good faith if they have a chosen name or a preferred pronoun.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule also provides examples of prohibited actions, which include: (i) conditioning an individual&rsquo;s use of their chosen name on obtaining a court-ordered name change, (ii) requiring proof of medical procedures to use their chosen name, pronoun, or title, and (iii) refusing to use an employee&rsquo;s chosen name in their email account.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(b)&nbsp; Refusing to Allow Individuals to Use Single-Sex Facilities or Participate in Single-Sex Programs Consistent with their Gender Identity.</em></strong></div> <div> &nbsp;</div> <div> Under the proposed rules, employers would be required to allow employees to use single-sex facilities (such as bathrooms, locker rooms or hospital rooms) and participate in single-sex programs consistent with their gender identity, regardless of their sex assigned at birth, anatomy, medical history, appearance, or the sex indicated on their identification.&nbsp; It would not be a defense that other employees, customers, or program participants object to sharing a facility or participating in a program with a transgender or gender non-conforming person.&nbsp;</div> <div> &nbsp;</div> <div> Examples of prohibited conduct would include: (i) requiring a transgender or gender non-conforming person to use a single-occupancy restroom; or (ii) requiring him or her to provide proof of their gender to access the single-sex program or facility.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(c)&nbsp; Imposing Different Dress or Grooming Standards Based on Gender.&nbsp;</em></strong></div> <div style="margin-left: 40px;"> &nbsp;</div> <div> Employers would also be prohibited from requiring dress codes or uniforms, or applying grooming or appearance standards, that impose different requirements for individuals based on their sex or gender.&nbsp; Under the proposed amendments, it is not a defense to a charge of discrimination that the employer has a violative dress code policy because it is catering to the preferences of its customers or clients.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Examples of prohibited policies would be: (i) requiring different uniforms for men and women (while different uniform options may be offered, it is unlawful to require an employee to wear one style as opposed to another); and (ii) requiring or permitting only female employees to wear makeup or jewelry.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(d)&nbsp; Employers Must Provide Equal Employee Benefits Regardless of Gender.&nbsp;</em></strong></div> <div> &nbsp;</div> <div> Employers offering benefit plans not subject to the Employee Retirement Income Security Act (&ldquo;ERISA&rdquo;) must, under the proposed rule, offer benefits equally to all employees regardless of gender and may not provide health benefit plans that deny, limit or exclude services based on gender.&nbsp; According to the proposed rule, to be non-discriminatory with respect to gender according, health benefit plans may not exclude coverage for transgender care.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Examples of benefit plans that would violate the rule include: (i) offering health benefits that exclude coverage for procedures based on gender (such as covering prostate cancer screening for cisgender men but not for transgender women); (ii) offering benefits that exclude from coverage or limit coverage for health care related to gender transition, including but not limited to hormone replacement therapy, psychological or psychiatric treatment, hormone suppressers, voice training, or surgery; and (iii) basing paid parental leave policies on a parent&rsquo;s gender&mdash;such as giving twelve weeks of paid parental leave to women versus to men&mdash;as opposed to basing it on physical recovery from childbirth, which remains acceptable.</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> <strong><em>(e)&nbsp; Gender May Not Be The Basis for Refusing a Request for Accommodation.</em></strong></div> <div> &nbsp;</div> <div> Employers would be prohibited, per the proposed rule, from using gender as the basis to deny a request for accommodation for disability or other request for changes to the terms and conditions of an individual&rsquo;s employment, participation in a program, or use of a public accommodation&mdash;which may include medical or personal leave or schedule changes.&nbsp; Employers would need to treat leave requests to address medical or health care needs related to an individual&rsquo;s gender identity in the same manner as requests for all other medical conditions, as well as provide reasonable accommodations to individuals undergoing gender transition.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Comment Period and Next Steps</strong>:</div> <div> &nbsp;</div> <div> The Commission has opened the public comments period through September 25, 2018.&nbsp; Comments can be submitted by website, email, mail, or fax.&nbsp; Further details about how to submit comments can be found <a href="http://rules.cityofnewyork.us/content/gender">here</a>. The Commission will also hold a public hearing on the proposed rule.&nbsp; The public hearing will take place at 11:00 a.m. on September 25, 2018.&nbsp; The hearing will be in Spector Hall, located at 22 Reade Street, New York, New York 10007 on the first floor.</div> <div> &nbsp;</div> <div> Employers should consider how these proposed changes may impact their businesses and whether they want to submit comments on the proposed amendments.&nbsp; For any questions regarding the proposed changes, attorneys at Seyfarth Shaw LLP are available.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL081418 Fourth Circuit Finds Former Employee Established Prima Facie Case of Retaliation http://www.seyfarth.com:80/publications/EL081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit revived the retaliation case of a former city employee who was terminated one day after expressing an intent to file a formal grievance against her supervisor for race-based harassment, finding the plaintiff&rsquo;s belief that she was being subjected to unlawful harassment to be reasonable &ndash; and noting that the city was on notice of objectionable behavior by the supervisor for some time.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/fourth-circuit-finds-former-employee-established-prima-facie-case-of-retaliation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/boutroswapo081418 Andrew Boutros quoted in the Washington Post http://www.seyfarth.com:80/news/boutroswapo081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 14 story from the Washington Post, &quot;Can you record your boss at work without him or her knowing?&quot; Boutros said that if an employee goes and surreptitiously records their supervisor or boss in order to gain an advantage to get something that they otherwise would not get -- blackmailing them, say, for a promotion -- the recording can become illegal, and face steep punishment. You can read the <a href="https://www.washingtonpost.com/business/2018/08/15/can-you-record-your-boss-work-without-him-or-her-knowing/?noredirect=on&amp;utm_term=.ceaeacfb973a">full article here</a>.</p> http://www.seyfarth.com:80/news/launeyhre081418 Kristina Launey quoted in Human Resource Executive http://www.seyfarth.com:80/news/launeyhre081418 Tue, 14 Aug 2018 00:00:00 -0400 <p> Kristina Launey was quoted in an August 14 story from Human Resource Executive, &quot;Lawsuits Soar over Inaccessible Websites,&quot; on how the number of website-accessibility lawsuits this year may surpass those in 2017 by 30 percent, according to Seyfarth&#39;s ADA lawsuit analysis. Launey said that these lawsuits are pushing the concept that you&rsquo;re not providing equal employment opportunity if your website is not accessible. You can read the <a href="http://hrexecutive.com/lawsuits-soar-over-inaccessible-websites/">full article here</a>.</p> http://www.seyfarth.com:80/news/tonerbloombergbna081318 Jack Toner quoted in Bloomberg BNA http://www.seyfarth.com:80/news/tonerbloombergbna081318 Mon, 13 Aug 2018 00:00:00 -0400 <p> Jack Toner was quoted in an August 13 story from Bloomberg BNA, &quot;Punching In: Gig Employers Look to Labor Department,&quot; on the last two weeks left on National Labor Relations Board Member Mark Gaston Pearce&rsquo;s (D) term. Toner said that he is guessing there are some decisions Mark will want to be heard on, even if it&rsquo;s in dissent.</p> http://www.seyfarth.com:80/publications/MA081318-LE2 New Jersey’s Department of Labor and Workforce Development Teams Up With USDOL To Combat Employee Misclassification http://www.seyfarth.com:80/publications/MA081318-LE2 Mon, 13 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On August 10, 2018, New Jersey&rsquo;s Department of Labor and Workforce Development and the United States Department of Labor signed a cooperation agreement aimed at further increasing employee protections by allowing the two agencies to coordinate investigations and share resources to address the misclassification of employees as independent contractors in New Jersey.</em></p> <p> The cooperation agreement comes three months after Governor Phil Murphy signed an <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA050318LE.pdf">Executive Order</a> establishing the Task Force on Employee Misclassification in what the Governor described as an attempt to crack down on &ldquo;unscrupulous contractors who engage in 1099 fraud.&rdquo; According to Governor Murphy&rsquo;s office, auditors have identified more than $80 million in underreported employer contributions since 2010 in New Jersey alone. The Task Force includes representatives from New Jersey&rsquo;s Department of Labor and Workforce Development, the state treasury department, the&nbsp; Department of Law and Public Safety and several other agencies. The Task Force held their first meeting a few days before the cooperation agreement between New Jersey and the DOL was signed.</p> <p> The cooperation agreement is intended to send a strong message to businesses that misclassification laws &ldquo;are being strictly enforced.&rdquo;&nbsp; The Labor Workforce and Development&rsquo;s chief responsibility is to ensure workers are protected and that businesses are playing by the rules. The partnership with the DOL will help New Jersey ensure that the state&rsquo;s employees &ldquo;get the protections they deserve,&rdquo; according to the state&rsquo;s labor commissioner Robert Asaro-Angelo.</p> <p> Mark Watson, administrator for the&nbsp;Northeast regional office of the DOL&rsquo;s wage and hour division, said in a statement that &ldquo;[t]he U.S. Department of Labor looks forward to improving coordination and increasing joint outreach and compliance assistance efforts with all of our state partners.&rdquo;</p> <p> Both the Task Force and the cooperation agreement are likely to focus a large part of their resources in the construction, transportation and information technology industries, along with employees in the gig economy, as misclassification issues arise regularly in those sectors.&nbsp; &nbsp;</p> <p> Joint state-federal actions to increase employee protections continue to be enacted across the country. Companies in New Jersey who engage independent contractors should review their classification of workers to ensure compliance. Both the Executive Order and the cooperation agreement are designed to send a strong message to employers in New Jersey that legal compliance with employee classification should be taken seriously.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/TS081318 Upcoming Webinar! 2018 Massachusetts Non-Compete and Trade Secrets Reform http://www.seyfarth.com:80/publications/TS081318 Mon, 13 Aug 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Thursday, August 16, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/legislation-2/upcoming-webinar-2018-massachusetts-non-compete-and-trade-secrets-reform/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR081018 The fallout from Janus continues – Pennsylvania introduces bill that would allow non-union public-sector employees to participate in strike votes http://www.seyfarth.com:80/publications/LR081018 Fri, 10 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A mere six weeks after the Supreme Court held that fair share or agency fees for public-sector unions are unconstitutional in Janus v. AFSCME, Pennsylvania introduces a bill that would require public-sector unions to obtain a majority vote of all employees, including non-union employees, to authorize a strike.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/08/10/the-fallout-from-janus-continues-pennsylvania-introduces-bill-that-would-allow-non-union-public-sector-employees-to-participate-in-strike-votes/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC081018 Federal Court Delivers EEOC A Victory Over UPS In ADA Lawsuit Regarding Pay http://www.seyfarth.com:80/publications/WC081018 Fri, 10 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Kansas recently granted the EEOC&rsquo;s motion for judgment on the pleadings in an ADA lawsuit brought against UPS and an employee union, holding that a policy in Defendants&rsquo; collective bargaining agreement where drivers who are disqualified for medical reasons can only be compensated at 90% of their rates of pay for temporary non-driving jobs, while drivers disqualified for non-medical reasons such as DWI&rsquo;s are compensated at a 100% rate, was facially discriminatory.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-delivers-eeoc-a-victory-over-ups-in-ada-lawsuit-regarding-pay/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CA081018-TEO Understanding and Planning for the Excise Tax on Executive Compensation Paid by Tax-Exempt Employers http://www.seyfarth.com:80/publications/CA081018-TEO Fri, 10 Aug 2018 00:00:00 -0400 <div> <span style="font-size:14px;"><strong>Introduction</strong></span></div> <div> &nbsp;</div> <div> In the past decade or so, the competition for executive talent in the tax-exempt sector of the United States economy has increased. Executives seldom begin and end their careers with the same organization and there is increased competition for executive talent with the for profit sector of the economy. As a consequence, compensation levels paid to executives of tax-exempt organizations have steadily increased while, at the same time, an increasing percentage of that compensation has been made contingent on the operational performance of the organization, including bonuses for the attainment of both mission-related and financial goals.&nbsp;</div> <div> &nbsp;</div> <div> As levels of compensation have escalated in the tax-exempt sector, so has the level of Congressional scrutiny. In December 2017, Congress, as part of broader tax legislation, enacted a new excise tax on annual compensation paid by all tax-exempt organizations in excess of $1 million. Bear in mind that the $1 million threshold is not adjusted for inflation, so more and more tax-exempt organizations will become subject to the excise tax as wages increase over time.&nbsp;</div> <div> &nbsp;</div> <div> From a tax policy perspective, the excise tax appears intended to create a sort of parity between tax-exempt organizations and publicly held corporations. Under section 162(m),<sup>1</sup> publicly held corporations generally cannot deduct compensation in excess of $1 million per year with respect to certain employees. Effectively, this increases the tax owed by publicly held corporations by the product of those excess amounts and the corporate tax rate, currently 21%, the same rate as the excise tax now applied to tax-exempt organizations.&nbsp;</div> <div> &nbsp;</div> <div> The purpose of this article is to explain how the new excise tax is determined, and identify some planning options available to mitigate its effects on current and deferred compensation paid to highly-compensated employees. For example, and as further detailed below:</div> <div> &nbsp;</div> <ul> <li> Certain state universities, colleges, and hospitals may wish to explore whether to give up their 501(c)(3) exemptions and, instead, rely on their status as a &ldquo;political subdivision&rdquo; or as &ldquo;an integral part of a state or local government&rdquo; in order to remain exempt from both federal income tax and this new excise tax.</li> <li> Tax-exempt organizations may seek to utilize &ldquo;split dollar loan arrangements,&rdquo; an alternative to traditional unfunded deferred compensation arrangements, because the loans utilized to provide the employee with a deferred benefit do not constitute &ldquo;remuneration&rdquo; for purposes of the $1 million threshold.&nbsp;</li> <li> If portions of an employee&rsquo;s compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, such as an unrelated management company, tax-exempt organizations may consider bifurcating that compensation between those entities in order to reduce or avoid the excise tax.</li> <li> For tax-exempt organizations that become subject to the excise tax, establishing the &ldquo;rebuttable presumption of reasonableness&rdquo; with respect to the payment of more than $1 million in annual &ldquo;remuneration&rdquo; will become even more important.</li> </ul> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>In General</strong></span></div> <div> &nbsp;</div> <div> Prior to the 2017 enactment of the new excise tax, tax-exempt organizations were not subject to taxation on any compensation or benefits paid to their executives, so as long as the amounts paid were considered reasonable in relation to the services provided to the organization. It was only in situations where some element or all of the compensation or benefits was unreasonable that the organization&rsquo;s tax-exempt status could be in jeopardy because the excessive amount could result in a violation of the prohibition against the private inurement of net earnings. In addition, in the case of section 501(c)(3) charitable organizations and section 501(c)(4) social welfare organizations, the recipient of the unreasonable compensation and those who knowingly approved it could be subject to the excise taxes imposed by section 4958, the so-called &ldquo;intermediate sanctions&rdquo; provision.</div> <div> &nbsp;</div> <div> Section 4960 now imposes an excise tax on tax-exempt organization executive compensation equal to 21 percent<sup>2</sup> of: (i) &ldquo;remuneration&rdquo; (other than any excess parachute payment) in excess of $1 million paid to a &ldquo;covered employee&rdquo; by an &ldquo;applicable tax-exempt organization&rdquo; for a tax year, plus (ii) any &ldquo;excess parachute payment&rdquo; paid by an applicable tax-exempt organization to a covered employee other than an employee who is not &ldquo;highly compensated.&rdquo;<sup>3</sup> The 21% excise tax is imposed on excess parachute payments even if the covered employee&rsquo;s total remuneration does not exceed the $1 million threshold. Remuneration paid by a &ldquo;related&rdquo; entity is added to the calculation of total remuneration.</div> <div> &nbsp;</div> <div> Tax-exempt organizations can expect to continue to have to pay market rates for recruiting and retention purposes, and still compete with for-profits for talent. The authors expect that the new provision may put added pressure on compensation determinations in any case where the excise tax will or could become payable (compensation in excess of $1 million or golden parachute severance arrangements). In those cases, it may be even more important to meet the requirements to establish the &ldquo;rebuttable presumption of reasonableness&rdquo; and procure opinions from compensation and tax counsel as to the reasonableness of the overall compensation package in each such case (with updates as appropriate).</div> <div> &nbsp;</div> <div> Particularly in the case of compensation owed under employment agreements already in effect, the obligation to make these excise tax payments when paying reasonable compensation (or a reasonable separation payment pursuant to a &ldquo;golden parachute&rdquo; arrangement) should not amount to an automatic excess benefit transaction, private inurement or a violation of the limitation on private benefit.</div> <div> &nbsp;</div> <div> Affected tax-exempt organizations should maintain and regularly update a roster of their covered employees and related entities, and track the total amount of remuneration being paid. If compensation could appropriately be paid by an affiliate which is not a related organization for this purpose, as further described below, tax-exempt organizations may wish to consider bifurcating a covered employee&rsquo;s compensation to reduce or avoid the excise tax.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Covered Employees&rdquo;</strong></span></div> <div> &nbsp;</div> <div> For purposes of this provision, a &ldquo;covered employee&rdquo; means an employee (including any former employee) of an applicable tax-exempt organization if the employee is one of the five highest compensated employees of the organization for the taxable year or was a covered employee of the organization (or any predecessor) for any preceding taxable year beginning after December 31, 2016. This determination is made each taxable year, so the five &ldquo;covered employees&rdquo; may change from year to year. Importantly, once an employee becomes a &ldquo;covered employee,&rdquo; he or she will remain a covered employee for purposes of this provision.&nbsp;</div> <div> &nbsp;</div> <div> Consequently, an applicable tax-exempt organization may over time have significantly more than five covered employees whose compensation is subject to the excise tax, as the number of covered employees grows year-over-year.</div> <div> &nbsp;</div> <div> Of critical importance is the fact that the determination of who is a covered entity is made on an organization-by-organization basis. This means that within a group of affiliated tax-exempt organizations, such as a health system comprised of a parent corporation and multiple operating subsidiaries, the affiliated group could have considerably more than five covered employees in any given tax year.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Applicable Tax-Exempt Organizations&rdquo; - Which Tax-Exempt Organizations Are Subject to the Tax?</strong></span></div> <div> &nbsp;</div> <div> Virtually all tax-exempt organizations are subject to the excise tax because the term &ldquo;applicable tax-exempt organization&rdquo; is broadly defined to include all organizations exempt from taxation under section 501(a), entities that have income excluded from gross income under section 115(1), and section 527 political organizations.</div> <div> &nbsp;</div> <div> <strong><em>Organizations Subject to the Tax</em></strong></div> <div> &nbsp;</div> <div> The excise tax applies to an &ldquo;applicable tax-exempt organization.&rdquo; That term is defined to mean any organization that for the year is exempt from taxation under section 501(a). Importantly, this definition encompasses all types of tax-exempt organizations, including hospitals, colleges, and universities exempt under section 501(c)(3), health maintenance organizations and other social welfare organizations exempt under section 501(c)(4), trade associations exempt under section 501(c)(6), and labor organizations and professional football, baseball and other types of sports leagues exempt under section 501(c)(5).</div> <div> &nbsp;</div> <div> The excise tax also applies to farmers&rsquo; cooperatives described in section 521(b)(1) and political organizations described in section 527(e)(1), but these are not discussed in this article.</div> <div> &nbsp;</div> <div> <em><strong>Public Hospitals, Colleges and Universities</strong></em></div> <div> &nbsp;</div> <div> Many public hospitals, colleges and universities are operated under State laws that authorize their formation and funding but do not grant them any governmental powers, such as the power of eminent domain, the power to tax or the police power. In the absence of any of these powers, these organizations can still be recognized as tax-exempt charitable organizations described in section 501(c)(3). Even if these types of organizations choose not to file an exemption application, these organizations can claim that their income is excluded from gross income under section 115(1) because they perform an essential governmental function (<em>e.g</em>., operate a hospital, college or university) and their income ultimately will accrue to the State or a political subdivision of the State upon their dissolution. In either case, these hospitals, colleges and universities will be subject to the excise tax on executive compensation in excess of $1 million.</div> <div> &nbsp;</div> <div> On the other hand, many State laws authorize the formation and funding of hospitals, colleges and universities <em>and</em> grant the governmental powers including the power to use eminent domain to acquire property for their use, the power to tax (<em>e.g.</em>, the ability to issue general obligation bonds that are funded by assessed real and personal property taxes), and limited police powers to establish their own police forces, such as a university&rsquo;s campus police force.&nbsp;</div> <div> &nbsp;</div> <div> In general, these types of hospitals, colleges and universities are not subject to the excise tax on executive compensation in excess of $1 million <em>unless</em> they also apply and receive tax-exempt status as charitable organizations described in section 501(c)(3). As a result, these quasi-state entities may wish to consider the disadvantages of voluntarily terminating their 501(c)(3) status,<sup>4</sup> accomplished by a letter to the IRS documenting that the organization is not otherwise subject to income tax, against the advantages of being exempt from this new excise tax (and, in the case of hospitals, perhaps as an added bonus, from section 501(r) and its extensive regulatory regime<sup>5</sup>).</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>&ldquo;Remuneration&rdquo; - What Types of Compensation Are Subject to the 21% Excise Tax, and What Types Are Not?</strong></span></div> <div> &nbsp;</div> <div> <em><strong>Wages in General</strong></em></div> <div> &nbsp;</div> <div> Remuneration subject to the excise tax means wages (as defined in section 3401(a)) and includes all cash and compensation in any medium other than cash, except for payments to a tax-qualified pension or profit-sharing plan or other amounts that are excludable from the employee&rsquo;s gross income.<sup>6</sup> It also includes amounts paid with respect to the employment of such employee by a person or governmental entity that is related to the applicable tax-exempt organization. Importantly, a health system with multiple tax-exempt subsidiaries will be exposed to the excise tax for both the parent corporation as well as each tax-exempt subsidiary, and the use of a common paymaster does not avoid the tax exposure.</div> <div> &nbsp;</div> <div> An important issue is the time period over which wages are measured for purposes of determining whether the $1 million threshold is measured. This issue arises because tax-exempt organizations are required to have an annual accounting period that is either the calendar year ending on December 31st or a fiscal year that ends on the last day of a month other than December. These annual accounting periods are referred to as a taxpayer&rsquo;s &ldquo;taxable years.&rdquo;<sup>7</sup> Individuals who are employees of a tax-exempt organization, on the other hand, are required to use the calendar year as their annual accounting period.</div> <div> &nbsp;</div> <div> The reporting of wages paid by a tax-exempt organization to its employees, including highly-compensated employees, is straight-forward if the organization uses the calendar year as its taxable year because Form W-2, <em>Wage and Tax Statements</em>, issued to employees are based on the employees&rsquo; calendar year as well and the organization files its annual Form 990, <em>Return of Organization Exempt From Income Tax</em>, based on the same calendar year.&nbsp;</div> <div> &nbsp;</div> <div> Confusion arises when the tax-exempt organization uses a fiscal year (such as a June 30 year-end), as do many colleges, universities and health care organizations. The organization is required to report compensation for current officers and key employees on its Form 990 in Part IX, <em>Statement of Functional Expenses</em>, Line 5, using the total compensation paid to such individuals for the organization&rsquo;s fiscal year.<sup>8</sup> However, for purposes of completing Part VII of the Form 990, Section A, and Schedule J, <em>Compensation Information</em>, Part II, the organization is required to use compensation that was paid during the calendar year that ends within the organization&rsquo;s fiscal year and that was reported on the employees&rsquo; Forms W-2.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Given that the statute specifically refers to remuneration paid &ldquo;for the taxable year,&rdquo; and it is the organization that is subject to the tax, rather than the employee, we believe that wages paid in the organization&rsquo;s taxable year, and not those reflected on an employee&rsquo;s Form W-2, should be used to determine whether a covered employee&rsquo;s &ldquo;remuneration&rdquo; exceeded $1 million, subjecting the organization to a 21% excise tax on the excess.</div> <div> &nbsp;</div> <div> Deferred amounts and earnings or losses in a nonqualified deferred compensation plan subject to section 457(f) are included in income at the time such amounts become vested or otherwise are no longer subject to a substantial risk of forfeiture and are treated as remuneration even if such amounts are not treated as wages. Consequently, the taxable year in which that happens should be the taxable year in which such amounts are added to other items treated as wages for purposes of determining whether the organization will be subject to the excise tax.</div> <div> &nbsp;</div> <div> <strong><em>Non-Taxable Fringe Benefits</em></strong></div> <div> &nbsp;</div> <div> Section 3401(a) uses an expansive definition of &ldquo;wages,&rdquo; which is defined as &ldquo;all remuneration for employment, including the cash value of all remuneration (including benefits) paid in any medium other than cash.&rdquo; However, there are many statutory exclusions from income that are not subject to the excise tax because they are also excluded from the definition of wages, such as certain employer-provided meals and lodging (section 119) and non-taxable fringe benefits (section 132).</div> <div> &nbsp;</div> <div> <strong><em>Expense Reimbursement and Allowance Arrangements</em></strong></div> <div> &nbsp;</div> <div> Another potential problem area arises in connection with expense reimbursement and allowance arrangements. If an expense reimbursement and allowance arrangement meets three requirements, namely, there is an appropriate business connection and proper substantiation, and the employee returns amounts in excess of expenses, the arrangement will qualify as an &ldquo;accountable plan.&rdquo; Amounts treated as paid under an accountable plan are excluded from an employee&rsquo;s gross income and are not reported as wages or other compensation on the employee&rsquo;s Form W-2.&nbsp;</div> <div> &nbsp;</div> <div> On the other hand, amounts treated as paid under a nonaccountable plan are <em>included</em> in the employee&rsquo;s gross income and are reported as wages on the employee&rsquo;s Form W-2. As a result, such amounts will also count toward remuneration subject to the excise tax if, when added to other compensation, the $1 million threshold is exceeded.&nbsp;</div> <div> &nbsp;</div> <div> <strong><em>The Surgeon Exception?</em></strong></div> <div> &nbsp;</div> <div> Remuneration does not include the portion of any remuneration paid to a licensed medical professional, including nurses and veterinarians, for the performance of their professional services.<sup>9</sup> This exception would not apply to the portion of remuneration for the performance of administrative services, such as those of a physician serving as an executive or medical director of a health care provider. So, this is not an all or nothing exception.</div> <div> &nbsp;</div> <div> The scope of this professional services exception remains uncertain. For example, many physicians today serve as CEOs or medical directors of health systems or health plans, and while functioning as a CEO may not require a medical degree per se, making medical necessity decisions does. Similarly, medical and veterinary professionals often provide services that depend on their professional expertise that do not involve direct patient or animal care, such as teaching and proctoring medical or veterinary students and residents, and conducting peer review and quality assurance activities as a member of a medical staff. It remains unclear whether compensation for these types of services will fall under the exception.</div> <div> &nbsp;</div> <div> <strong><em>Payments to Independent Contractors and Risks of Reclassification</em></strong></div> <div> &nbsp;</div> <div> Many organizations attempt to bypass the requirement to withhold income, employment and Medicare taxes by classifying a service provider, such as a physician acting as a part-time medical director of a hospital who also has a private practice, as an independent contractor rather than as an employee. In many cases this is a completely legitimate position. However, it also is a position that the IRS routinely challenges on audit. As a consequence, tax-exempt organizations such as hospitals should carefully review their independent contractor-employee classifications, especially if the individual classified as an independent contractor is highly compensated as such.</div> <div> &nbsp;</div> <div> Also, it should be noted that Congress has directed the IRS to prescribe regulations to prevent avoidance of the 21% excise tax through the performance of services other than as an employee or by providing compensation through a pass-through entity such as a partnership, limited liability company, or S corporation. It is likely that the IRS will take the position that the performance of services through a single-member limited liability company that is a disregarded entity for federal income tax purposes should be (i) treated as the performance of services by the sole member of the limited liability company directly to the tax-exempt organization and (ii) subject to the 21% excise tax if the compensation for such services exceeds $1 million.</div> <div> &nbsp;</div> <div> <strong><em>Split Dollar Loan Arrangements</em></strong></div> <div> &nbsp;</div> <div> Increasingly, tax-exempt organizations are using split dollar loan arrangements as replacements for traditional non-qualified deferred compensation arrangements subject to section 457(f) or in addition to those arrangements.&nbsp;</div> <div> &nbsp;</div> <div> Basically, under a split dollar loan arrangement, the employer agrees to make loans to the executive to pay the premiums for a universal life insurance policy that is owned by the employee and that has a very high death benefit. A private placement policy also may be issued instead of a traditional policy issued by a traditional life insurance company. The employee is the owner of the policy and the employee agrees to a collateral assignment of the death benefit to the employer in an amount sufficient to secure the repayment of the loan and any accrued interest.</div> <div> &nbsp;</div> <div> Upon the employee&rsquo;s retirement, the employee is permitted to borrow accumulated cash value from the insurance company that issued the policy within agreed upon limits, again to assure that the employer ultimately will be repaid the amounts it loaned to the employee along with accrued interest.</div> <div> &nbsp;</div> <div> Before the enactment of section 4960, these arrangements were attractive alternatives to section 457(f) plans for several reasons. From the employer&rsquo;s standpoint, the employer provided a benefit that it ultimately would recover upon the employee&rsquo;s death, unlike a section 457(f) plan where the amount is paid out fully to the employee upon vesting. From the employee&rsquo;s standpoint, unlike a section 457(f) plan where the full amount payable to the employee is taxable when there no longer is a substantial risk of forfeiture regardless of whether the benefit is payable in a lump sum or over time, the policy loan is not taxable currently to the employee and typically is non-recourse.</div> <div> &nbsp;</div> <div> With the enactment of the 21% excise tax in section 4960, split dollar arrangements are more attractive because policy loans are considered loans pursuant to section 7872<sup>10</sup> and, therefore, are not remuneration subject to the 21% excise tax.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Related Persons or Governmental Entities</strong></span></div> <div> &nbsp;</div> <div> In recent years, it has become increasingly common for highly-compensated executives to receive compensation from multiple sources that, perhaps only in the aggregate, exceeds $1 million. For example, the compensation of a health system CEO may be assessed to each individual hospital but paid by the parent company acting as a common paymaster. Similarly, the compensation of a university president or football coach may be paid in part by the university and in part by a separate fund-raising or booster organization. In order to address these and similar types of situations, a broad definition aggregates all compensation paid by related entities to determine whether the $1 million threshold for taxation is met each year.</div> <div> &nbsp;</div> <div> A person or governmental entity is treated as &ldquo;related&rdquo; to the applicable tax-exempt organization if such person or governmental entity: (i) controls, or is controlled by, the organization; (ii) is controlled by one or more persons that control the organization; (iii) is a supported organization (as defined in section 509(f)(3)) during the taxable year with respect to the organization; (iv) is a supporting organization described in section 509(a)(3) during the taxable year with respect to the organization; or (v) in the case of an organization that is a voluntary employees&rsquo; beneficiary association described in section 501(c)(9), establishes, maintains, or makes contributions to such voluntary employees&rsquo; beneficiary association.<sup>11</sup></div> <div> &nbsp;</div> <div> One or more persons (whether individuals or organizations) control a tax-exempt organization if they have the power to remove and replace (or to appoint, elect, or approve or veto the appointment or election of, if such power includes a continuing power to appoint, elect, or approve or veto the appointment or election of, periodically or in the event of vacancies) a majority of the tax-exempt organization&rsquo;s directors or trustees, or a majority of the members who have the power to elect a majority of the tax-exempt organization&rsquo;s directors or trustees.<sup>12</sup> Such power can be exercised directly by a (parent) organization through one or more of the (parent) organization&rsquo;s officers, directors, trustees, or agents, acting in their capacity as officers, directors, trustees, or agents of the (parent) organization.<sup>13</sup>&nbsp;Also, a (parent) organization controls a (subsidiary) tax-exempt organization if a majority of the subsidiary&rsquo;s directors or trustees are trustees, directors, officers, employees or agents of the parent.<sup>14</sup></div> <div> &nbsp;</div> <div> One or more persons (whether individuals or organizations) control a stock corporation if they own more than 50% of the stock (by voting power or value) of the corporation.<sup>15&nbsp;</sup></div> <div> &nbsp;</div> <div> One or more persons control a partnership if they own more than 50% of the profits interests or capital interests in the partnership (including a limited liability company treated as a partnership or disregarded entity for federal tax purposes).<sup>16</sup> A person also controls a partnership if the person is a managing partner or a managing member of a partnership or limited liability which has three or fewer managing partners or managing members (regardless of which partner or member has the most actual control), or if the person is a general partner in a limited partnership which has three or fewer general partners (regardless of which partner has the most actual control).<sup>17</sup> For this purpose, a &ldquo;managing partner&rdquo; is a partner designated as such under the partnership agreement, or regularly engaged in the management of the partnership.</div> <div> &nbsp;</div> <div> To the extent that any employee receives compensation from multiple tax-exempt organizations that are related, each organization is liable for its allocable portion of the excise tax imposed on the employee&rsquo;s compensation. Specifically, the amount required to be paid by each such employer is calculated by multiplying the total excise tax amount by a percentage which is determined by dividing the amount of remuneration paid by such employer to the employee over the total remuneration paid by all employers to such employee.</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Excess Parachute Payments</strong></span></div> <div> &nbsp;</div> <div> An excess parachute payment is an amount paid to a covered employee upon such employee&rsquo;s separation from employment in an amount with a present value that equals or exceeds three times the employee&rsquo;s base amount.<sup>18</sup>&nbsp; Excluded from the definition of an excess parachute payment are payments under qualified plans, or any payment under or to an annuity contract described in section 403(b) or an eligible plan described in section 457(b).<sup>19&nbsp;</sup></div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Coordination with the Excise Tax on Excess Benefit Transactions</strong></span></div> <div> &nbsp;</div> <div> There is no coordination between the excise tax on compensation in section 4960 with the excise tax on unreasonable compensation imposed by section 4958. That is, the payment of the 21% excise tax does not insulate an organization from &ldquo;intermediate sanctions&rdquo; - excise taxes on &ldquo;excess benefit transactions.&rdquo; Likewise, we do not believe that there should or will be a presumption that the payment of compensation constitutes an &ldquo;excess benefit transaction&rdquo; merely because it triggers the section 4960 &ldquo;tax on excess tax-exempt organization executive compensation.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Nonetheless, the importance of the establishment of the &ldquo;rebuttable presumption of reasonableness&rdquo; does appear to be amplified when the employer must pay a penalty in order to achieve such reasonable compensation. This simply means that tax-exempt organizations must still take steps to establish the reasonableness of all compensation and benefits as they have been doing for many years, with perhaps added vigilance when section 4960 excise taxes may become due.&nbsp;</div> <div> &nbsp;</div> <div> <span style="font-size:14px;"><strong>Effective Date</strong></span></div> <div> &nbsp;</div> <div> The 21% &ldquo;tax on excess tax-exempt organization executive compensation&rdquo; is effective for a tax-exempt employer&rsquo;s tax years beginning after December 31, 2017. Thus, for tax-exempt organizations with fiscal year ends, the tax applies to compensation paid beginning with the first tax year beginning after December 31, 2017.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> ________________________________________________________________________________________________________________________________________</div> <div> &nbsp;</div> <div> <div> <sup>1</sup> All &ldquo;section&rdquo; references are to the Internal Revenue Code of 1986, as amended.</div> <div> <sup>2</sup> 21% is the current rate for the corporate income tax. If that rate is increased in the future, the rate imposed by section 4960 would increase as well.</div> <div> <sup>3</sup> For 2018, a &ldquo;highly-compensated&rdquo; employee is one who earns in excess of $120,000.</div> <div> <sup>4</sup> For example, a public hospital that is no longer described in section 501(c)(3) cannot use section 403(b) annuities to fund employee retirement benefits.</div> <div> <sup>5</sup> See Mancino, <em>The Final Section 501(r) Regulations and Section 501(c)(3) Hospitals</em>, 28:2 Taxation of Exempts (Sept./Oct. 2016).</div> <div> <sup>6</sup> IRC &sect; 4960(c)(3)(A).</div> <div> <sup>7</sup> Section 441(b).</div> <div> <sup>8</sup> 2017 Instructions for Form 990 Return of Organization Exempt From Income Tax.</div> <div> <sup>9</sup> Section 4960(c)(3)(B).&nbsp;&nbsp;</div> <div> <sup>10</sup> Treas. Reg. &sect; 1.7872-15.</div> <div> <sup>11</sup> Section 4960(c)(4).&nbsp;</div> <div> <sup>12</sup> <em>See generally</em>, the 2017 Schedule R Instructions for Form 990.</div> <div> <sup>13</sup> <em>Id.</em></div> <div> <sup>14</sup> <em>Id.&nbsp;</em></div> <div> <sup>15</sup> <em>Id</em>.</div> <div> <sup>16</sup> <em>Id.</em></div> <div> <sup>17</sup> <em>Id.</em></div> <div> <sup>18</sup> Section 4960(c)(5)(A).</div> <div> <sup>19</sup> Section 4960(c)(5)(C).</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL080918 Service Animals Vs. Emotional Support Animals: Ferreting Out The Truth http://www.seyfarth.com:80/publications/EL080918 Thu, 09 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/service-animals-vs-emotional-support-animals-ferreting-out-the-truth/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR080918 The State of Union Funding—California and the Ninth Circuit Show How States Might Try To Mitigate The Effect of Janus http://www.seyfarth.com:80/publications/LR080918 Thu, 09 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Labor friendly states will likely be looking for opportunities to lessen the financial blow of the Supreme Court&rsquo;s decision in Janus v. AFSCME. The Ninth Circuit&rsquo;s recent decision in Interpipe Contracting v. Becerra just helped give California a head start (although perhaps only a small one).<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/08/09/the-state-of-union-funding-california-and-the-ninth-circuit-show-how-states-might-try-to-mitigate-the-effect-of-janus/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA080918-LE Delay in Correcting Paycheck Clerical Error Leads to Large Fee Award http://www.seyfarth.com:80/publications/MA080918-LE Thu, 09 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>An employer did not incur waiting time penalties for inadvertently misstating the amount of pay on a final paycheck, but was liable for its delay in correcting the error. And, by taking an appeal from a Labor Commission award, the employer incurred liability for large attorney&rsquo;s fees even though the employee succeeded on only one small claim.</em></p> <p> <strong>The Facts</strong></p> <p> Taryn Nishiki was an office manager and paralegal at a law firm. She resigned via email at 6:38 p.m. on Friday, November 14. On Tuesday, November 18, the firm mailed her final paycheck. The numerical information on the check was right, but the spelling of the number understated the amount by $80. Eight days later, on Wednesday, November 26, Nishiki reported she could not cash the check, because of this inconsistency. The firm responded that it could not confirm the error because no check had been refused or returned. The next Monday, December 1, the firm told Nishiki she could either return the check to the office for a replacement check, or she could keep the check and the firm would issue her a second check for $80. Nishiki mailed the check back, and the firm mailed her a corrected check on Friday, December 5&mdash;21 days after her notice of resignation.</p> <p> <strong>The Labor Commissioner&rsquo;s Decision</strong></p> <p> Nishiki filed a complaint with the Labor Commissioner for unpaid vacation wages, rest period premiums, and waiting time penalties in the amount of $7,500. The hearing officer denied the claim for unpaid vacation wages and rest premiums, but found the firm liable for $4,250 in waiting time penalties for the seventeen days that elapsed between its mailing of the first check and its mailing of the corrected check.</p> <p> <strong>The Trial Court Decision</strong></p> <p> The law firm appealed the Labor Commissioner&rsquo;s decision to the Superior Court. The trial court awarded Nishiki seventeen days of waiting time penalties. She then moved for attorney&rsquo;s fees under Labor Code section 98.2(c), which the court awarded in the amount of $86,160. The law firm appealed from the judgment. &nbsp;</p> <p> <strong>The Appellate Court Decision</strong></p> <p> On August 1, 2018, the Court of Appeal reduced the waiting time penalties to $2,250 for nine days, but affirmed the fee award in full. <em>Nishiki v. Danko Meredith, APC.</em></p> <p> The Court of Appeal determined that the 72 hours that Labor Code section 202 allows to pay wages upon notice of a resignation did not begin to run when Nishiki sent her resignation email after business hours on Friday. The Court of Appeal reasoned that holding the firm liable for failing to tender final pay within 72 hours would contravene the statute&rsquo;s clear intent to provide an employer with a reasonable time to pay an employee who quits with no prior notice, because a literal reading of the statute would only have given the firm one business day to pay Nishiki. The Court of Appeal had no need to decide exactly when the 72-hour period began, however, since the original check was timely whether the period started the day after receipt of the resignation email (Saturday) or the next business day (Monday).</p> <p> Further, the Court of Appeal concluded that the firm did not willfully withhold wages when it tendered the first check, because there was no evidence that the firm knew of the inconsistency on the check created by the clerical error. But, because the firm failed to immediately correct the error upon being notified, the Court of Appeal determined that wages were willfully withheld from the day the firm had notice of the error to the day it mailed a corrected check.</p> <p> As to attorney&rsquo;s fees, the Court of Appeal rejected the firm&rsquo;s argument that the award should be reduced to reflect only the claims on which Nishiki prevailed. The Court of Appeal reasoned that Labor Code section 98.2(c) is not a prevailing-party fee provision, but rather is a one-way fee-shifting provision, designed to discourage employer appeals from Labor Commissioner awards: the employee may recover fees if the court awards <em>any</em> amount greater than <em>zero</em>. Consequently, the Court of Appeal affirmed the full fee award of $86,160 for all the hours Nishiki&rsquo;s attorney had worked, and also upheld the trial court&rsquo;s application of a 1.5 multiplier. Nishiki was also entitled to recover her costs on appeal.</p> <p> <strong>What <em>Nishiki</em> Means for Employers</strong></p> <p> Although employers now know that they need not worry about being forced into &ldquo;untimely&rdquo; payment of final wages by strategically timed surprise resignations, they should make every effort to pay those wages within 72 hours, as it remains an open question exactly when the 72-hour clock begins to run.</p> <p> More significantly, employers should be aware that appealing a Labor Commissioner award is fraught with financial risk, and can create liability far greater than that created by the award itself. This grim reality should factor into any analysis of whether to appeal a matter that has been wrongly decided in favor of an employee.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/TBT080918 The Week in Weed: August 10, 2018 http://www.seyfarth.com:80/publications/TBT080918 Thu, 09 Aug 2018 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="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-10-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM080818-LE New York City Commission on Human Rights Publishes Sexual Harassment Poster and Information Sheet http://www.seyfarth.com:80/publications/OMM080818-LE Wed, 08 Aug 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The Commission has published the sexual harassment poster and information sheet mandated under the &ldquo;Stop Sexual Harassment in NYC Act.&rdquo; Employers must display the poster, and distribute the information sheet, as of September 6, 2018.&nbsp;&nbsp;</em></p> <div> The &ldquo;<a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search">Stop Sexual Harassment in NYC Act</a>&rdquo; requires that &ldquo;every employer . . . conspicuously display an anti-sexual harassment rights and responsibilities poster . . . in employee breakrooms or other common areas.&rdquo;&nbsp; The New York City Commission on Human Rights has published the English version of the poster on its website, which can be accessed <a href="https://www1.nyc.gov/site/cchr/law/stop-sexual-harassment-act.page">here</a>.&nbsp; The Commission has not yet published the poster in Spanish.&nbsp; Under the Act, employers must have the poster displayed by September 6, 2018.</div> <div> &nbsp;</div> <div> The Act also requires employers to distribute an information sheet on sexual harassment (in English and Spanish) to individual employees at the time of hire or in their employee handbook.&nbsp; The Commission has now posted a sample English-language information sheet on its <a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/materials/SexHarass_Factsheet.pdf">website</a>.&nbsp; Employers must begin distributing the sheet, or include the information in their employee handbook, by September 6, 2018.</div> <div> &nbsp;</div> <div> <strong>Other Upcoming Deadlines under the NYC Law:</strong></div> <div> &nbsp;</div> <div> Similar to the recent New York State legislation, which goes into effect on October 9, 2018 and requires all employers to provide anti-sexual harassment training, the Stop Sexual Harassment in NYC Act requires employers with 15 or more employees to conduct annual, interactive anti-sexual-harassment training for all employees employed in New York City.&nbsp; That requirement goes into effect on April 1, 2019.&nbsp; The Commission will develop and publish an online training module that employers may use to satisfy the training component.&nbsp; Our prior Alerts regarding the new City and State legislation may be found <a href="http://www.seyfarth.com/publications/MA040518-LE">here</a>, <a href="http://www.seyfarth.com/publications/MA041718-LE2">here</a>, and <a href="http://www.seyfarth.com/publications/MA051418-LE">here</a>.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The attorneys at Seyfarth Shaw LLP are available to provide assistance with guidance on both the State and City requirements, including ensuring that employers have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</div> http://www.seyfarth.com:80/publications/CP080818 Can California Revive Its Immigrant Worker Protection Act? http://www.seyfarth.com:80/publications/CP080818 Wed, 08 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California enacted its Immigrant Worker Protection Act (IWPA) to make it more difficult for federal immigration enforcement agents to access nonpublic areas of employer worksites and private employee records. The U.S. Justice Department, however, recently persuaded a federal district court to issue a preliminary injunction against IWPA provisions that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records). In a sister post, our immigration expert Angelo A. Paparelli extensively analyzes this development and proposes a response that California might pursue.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/08/can-california-revive-its-immigrant-worker-protection-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL080718 DOL Guidance on Registry Employer Status: Foreshadowing A More Tolerant Independent Contractor Approach http://www.seyfarth.com:80/publications/EL080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Department of Labor Acting Administrator Bryan Jarrett issued Field Assistance Bulletin No. 2018-4 (&ldquo;FAB&rdquo;) on July 13, to guide Wage &amp; Hour Division (&ldquo;WHD&rdquo;) field investigators on how to determine whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act. A &ldquo;registry&rdquo; is &ldquo;an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titles (collectively, caregivers).&rdquo;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/dol-guidance-on-registry-employer-status-foreshadowing-a-more-tolerant-independent-contractor-approach/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FutureEnterprise080718 The Future of Anti-Harassment Training and Shifting Workplace Culture in the Era of #MeToo, #BlackLivesMatter, and Others http://www.seyfarth.com:80/publications/FutureEnterprise080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> In this post, particularly in light of recent legislative developments, we will focus on anti-harassment training. Some states like Connecticut, California, and Maine have, for some time now, required that certain employers provide anti-harassment training for supervisors. New York State recently upped the ante and passed legislation mandating all employers to provide annual anti-sexual harassment training to all employees. Shortly thereafter, New York City also passed legislation mandating annual anti-sexual harassment training for employers with 15 or more employees. Beyond basic legal compliance, however, how can employers design trainings that are effective tools for preventing harassment?<br /> <br /> <a href="https://www.futureenterprise.com/blog/2018/8/2/the-future-of-anti-harassment-training-and-shifting-workplace-culture-in-the-era-of-metoo-blacklivesmatter-and-others">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM080718 California Can Revive the Immigrant Worker Protection Act by Challenging the Authority of U.S. Citizenship and Immigration Services’ “FDNS” Enforcement Officers http://www.seyfarth.com:80/publications/IMM080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In passing AB 450, the Immigrant Worker Protection Act (IWPA), California lawmakers tried to make it more difficult for federal immigration enforcement agents from accessing nonpublic areas of employer worksites and private employee records. The U.S. Justice Department filed a federal lawsuit against California attacking the IWPA as an unconstitutional interference with federal power over immigration. DOJ persuaded the Court to issue a preliminary injunction last month against parts of the IWPA that bar employers from voluntarily providing immigration enforcement agents with access to nonpublic worksites and employee records unless federal authorities present a judicial warrant (to access nonpublic worksites) or an administrative or judicial subpoena (to access employee records). Only one federal immigration agency routinely dispenses with the warrant or subpoena process. The Fraud Detection and National Security Directorate (FDNS) &ndash; a unit of U.S. Citizenship and Immigration Services (USCIS) &ndash; regularly shows up unannounced at employer facilities in California and elsewhere. Its agents present only a business card and demand the type of access prohibited under the IWPA.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/california-can-revive-the-immigrant-worker-protection-act-by-challenging-the-authority-of-u-s-citizenship-and-immigration-services-fdns-enforcement-officers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC080718 Seventh Circuit Allows Objector To Recover Fees From Class Counsel’s Fee Award http://www.seyfarth.com:80/publications/WC080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an opinion laced with frustration over a third appeal in a class action involving attorneys&rsquo; fees, the Seventh Circuit ruled that an objector was entitled to recover attorneys&rsquo; fees from class counsel&rsquo;s fee award. &ldquo;Unless the parties expressly agree otherwise,&rdquo; the Seventh Circuit explained, &ldquo;settlement agreements should not be read to bar attorney fees for objectors who have added genuine value.&rdquo; The Seventh Circuit&rsquo;s recent ruling in In Re Southwest Airlines Voucher Litigation is a good reminder for companies negotiating class settlements to account for objector fees in settlement agreements up front, or run the risk that an objector will sandbag the settlement by requesting fees later.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/seventh-circuit-allows-objector-to-recover-fees-from-class-counsels-fee-award/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/billowsbloomberglaw080718 Tracy Billows quoted in Bloomberg Law http://www.seyfarth.com:80/news/billowsbloomberglaw080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Tracy Billows was quoted in an August 7 story from Bloomberg Law, &quot;Employers Take New Approaches in #MeToo Era,&quot; on her panel appearance at the American Bar Association&#39;s 2018 annual conference. Billows said that workplace leaders are not focusing merely on compliance with federal and state laws, but also on what conduct is appropriate in a workplace, even conduct that isn&rsquo;t technically illegal.&nbsp;</p> http://www.seyfarth.com:80/news/maatmanxperthr080718 Gerald Maatman quoted in XpertHR http://www.seyfarth.com:80/news/maatmanxperthr080718 Tue, 07 Aug 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an August 7 story from XpertHR, &quot;Pro-Employer Supreme Court Term Featured Arbitration, Union Fees and Whistleblowers,&quot; on the Epic arbitration ruling. Maatman said that the ruling could lead plaintiffs&rsquo; attorneys to file individual arbitration claims early and more often, which he said could be death by 1,000 cuts. You can read the <a href="https://www.xperthr.com/blog/2018/08/07/pro-employer-supreme-court-term-featured-arbitration-union-fees-and-whistleblowers/?utm_medium=social&amp;utm_campaign=HRmAdvocacy&amp;utm_source=XpertHR+USA&amp;utm_content=R+Te_260">full article here</a>.</p> http://www.seyfarth.com:80/news/almonchiefexecutive080618 Lorie Almon quoted in Chief Executive http://www.seyfarth.com:80/news/almonchiefexecutive080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Lorie Almon was quoted in an August 6 story from Chief Executive, &quot;When Politics And Business Clash,&quot; on whether a business can refuse to serve a customer based on their political views. Almon said that on a federal level, any private business that serves the public has the right to refuse service for any reason. You can read the <a href="https://chiefexecutive.net/when-politics-and-business-clash/">full article here</a>.</p> http://www.seyfarth.com:80/publications/LR080618 The NLRB Continues to Protect Vulgarity in the Workplace http://www.seyfarth.com:80/publications/LR080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> <em>Seyfarth Synopsis:&nbsp; </em>Just when employers thought they were <a href="https://www.employerlaborrelations.com/2018/06/08/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">safe</a> to restrict offensive speech and restore decorum in the workplace, a recent decision by the Board serves as a stark reminder that offensive workplace speech may still find protection under the National Labor Relations Act.</p> <p> <a href="https://www.employerlaborrelations.com/2018/08/06/the-nlrb-continues-to-protect-vulgarity-in-the-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM080618 Seyfarth Shaw Policy Matters Newsletter – August 2, 2018 http://www.seyfarth.com:80/publications/IMM080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Rubio Introduces Paid Family Leave Bill. Earlier today, Senator Marco Rubio (R-FL) unveiled new legislation aiming to provide paid family leave for new parents. The Economic Security for New Parents Act would allow parents to draw up to six months of early payments from their Social Security benefits. In return for receiving Social Security payments early, parents would defer their retirement benefits for three to six months, or the amount of time necessary to offset the cost of their parental benefits. The proposed legislation includes a 3-year sunset provision, meaning the program would expire if Congress didn&rsquo;t renew it. The bill has already come under fire from Democrats claiming that the legislation does not go far enough to help working families while also placing additional strain on the Social Security system.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/08/seyfarth-shaw-policy-matters-newsletter-august-2-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP080618 Is California’s Latest Assault on Arbitration Constitutional? http://www.seyfarth.com:80/publications/CP080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis. Pending California legislation would make a mandatory arbitration agreement an unlawful practice under the Fair Employment and Housing Act, and a crime. How could that be consistent with the Federal Arbitration Act?<br /> <br /> <a href="https://www.calpeculiarities.com/2018/08/06/is-californias-latest-assault-on-arbitration-constitutional/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA080618 Service Animals Vs. Emotional Support Animals: Ferreting Out The Truth http://www.seyfarth.com:80/publications/ADA080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Is it a service animal or an emotional support animal? Do I have to allow both? How to tell one from the other, and the rules that apply.<br /> <br /> <a href="https://www.adatitleiii.com/2018/08/service-animals-vs-emotional-support-animals-ferreting-out-the-truth/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/weibustmertineitmlw080618 Erik Weibust and Dawn Mertineit authored an article in Massachusetts Lawyers Weekly http://www.seyfarth.com:80/publications/weibustmertineitmlw080618 Mon, 06 Aug 2018 00:00:00 -0400 <p> Erik Weibust and Dawn Mertineit authored an August 6 article in Massachusetts Lawyers Weekly, &quot;Non-compete reform bill will only create more confusion, uncertainty and litigation.&quot;</p> http://www.seyfarth.com:80/publications/WC080518 Federal Court Scuttles Class Action Settlement Objectors’ Motion To Dismiss Lawsuit Brought By Plaintiff Class Action Firm http://www.seyfarth.com:80/publications/WC080518 Sun, 05 Aug 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a lawsuit brought by a plaintiff class action firm alleging that objectors to class action settlements violated both RICO and Illinois state law by filing frivolous objections in order to seek payouts, an Illinois federal court denied in part the Defendant objectors&rsquo; motion to dismiss, holding it had subject-matter jurisdiction to hear the dispute and that a claim seeking injunctive relief for the objectors&rsquo; unauthorized practice of law could proceed.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/08/federal-court-scuttles-class-action-settlement-objectors-motion-to-dismiss-lawsuit-brought-by-plaintiff-class-action-firm/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/boutrosagenda080318 Andrew Boutros quoted in Agenda http://www.seyfarth.com:80/news/boutrosagenda080318 Fri, 03 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 3 story from Agenda, &quot;Accused of Assault, Moonves Won&rsquo;t Step Aside During Investigation,&quot; on the decision to suspend a CEO during an investigation. Boutros said that when a matter is likely to involve witnesses who need to be able to come forward and speak candidly, boards would need to factor into the decision whether a CEO could influence the process if he or she remains in place.</p> http://www.seyfarth.com:80/news/boutrosreuters080318 Andrew Boutros quoted in Reuters http://www.seyfarth.com:80/news/boutrosreuters080318 Fri, 03 Aug 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 3 story from Reuters, &quot;Accountant of Ex-Trump Aide Manafort Testifies She Helped Falsify Documents.&quot; Boutros said that it&rsquo;s hard-hitting testimony that creates an uphill battle for the defense, but that&rsquo;s what cross examination is for. You can read the <a href="https://www.reuters.com/article/us-usa-trump-russia-manafort/accountant-of-ex-trump-aide-manafort-testifies-she-helped-falsify-documents-idUSKBN1KO19Y">full article here</a>.</p> http://www.seyfarth.com:80/news/johnsonbloomberglaw080218 Randel Johnson quoted in Bloomberg Law http://www.seyfarth.com:80/news/johnsonbloomberglaw080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an August 2 story from Bloomberg Law, &quot;Mandatory E-Verify for Employers Getting Closer to Reality.&quot; Johnson said that if E-Verify has been combined with a fix on the ag side of things, then there&rsquo;s a good chance of passage in the House. However, he said that it would still get hung up in the Senate.</p> http://www.seyfarth.com:80/news/weibustwapo080218 Erik Weibust quoted in the Washington Post http://www.seyfarth.com:80/news/weibustwapo080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> Erik Weibust was quoted in an August 2 story from the Washington Post, &quot;Massachusetts bill would require employers to pay up when enforcing noncompetes -- but there&rsquo;s a loophole,&quot; on how the new legislation would require companies in the state to give employees some kind of compensation for up to a year after leaving if they decide to enforce a noncompete agreement. Weibust said that he could see an employer saying at a job offer, &quot;You&rsquo;re going to sign this and we&rsquo;re going to agree on $1.&quot; He said that if they&rsquo;ve never dealt with a noncompete before, they&rsquo;re likely to just sign it. You can read the <a href="https://www.washingtonpost.com/business/2018/08/02/massachusetts-bill-would-require-employers-pay-up-when-enforcing-noncompetes-theres-loophole/?utm_term=.c3f4517e01f5&amp;noredirect=on">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM080218-LIT Delaware Chancery Court Deals Another Blow to Appraisal Arbitrage http://www.seyfarth.com:80/publications/OMM080218-LIT Thu, 02 Aug 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; The Delaware Chancery Court issued a <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=276460">decision </a>Monday in a long-running appraisal dispute following Solera Holdings Inc.&rsquo;s $6.5 billion sale to Vista Equity Partners LP in 2015 that rejected investors&rsquo; bid to receive a higher price for their shares than agreed to in the merger.&nbsp; The opinion is the latest to endorse the deal price as a measure of fair value following a pair of Delaware Supreme Court rulings last year that &ldquo;heavily endorsed the application of market efficiency principles in appraisal actions.&rdquo;&nbsp; The Court determined the fair value of petitioners&rsquo; shares to be the adjusted deal price of $53.95 per share (after deducting synergies worth $1.90 from the bid of $55.85) because the company&rsquo;s &ldquo;sales process delivered for Solera stockholders the value obtainable in a bona fide arm&rsquo;s-length transaction and provides the most reliable evidence of fair value.&rdquo;&nbsp; In doing so, the Court rejected petitioners&rsquo; contention that the fair value of their shares is equal to their discounted cash flow analysis price of $84.65 per share and also rejected a much lower value advocated by Vista in post-trial briefing of the unaffected market price at $36.39 per share.</em></div> <h3> Background</h3> <div> Solera, a company that provides software to the automobile insurance industry, was founded in 2005.&nbsp; The founder began to engage in informal discussions with private equity firms regarding a potential transaction in late 2014.&nbsp; On July 20, 2015, the Board discussed an&nbsp; indication of interest received from Thoma Bravo and formed a Special Committee to review the Company&rsquo;s strategic alternatives.&nbsp; Between July 30 and August 4, 2015, the financial advisor to the Committee contacted 11 private equity firms and 6 potential strategic bidders.&nbsp; In August 2015, three financial sponsors provided indications of interest.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On September 1, 2015, IHS Inc. submitted a bid of $55 to $58 per share and raised that bid two days later to $60 per share.&nbsp; That bid did not specify the mix of consideration and did not include any indication of financing commitments.&nbsp; Vista and Thoma Bravo, who had bid previously, submitted revised bids of $55 and $56, respectively.&nbsp; After substantial back and forth on bids with Vista and Thoma Bravo, the Special Committee set September 11, 2015 as the deadline for final bids from Vista and Thoma Bravo.&nbsp; Thoma Bravo offered $54 per share on September 11, 2015, which was rejected by the Special Committee, and, the next morning, Vista submitted an all-cash bid of $55.85 per share.&nbsp; The Special Committee accepted Vista&rsquo;s offer, and the merger closed on March 3, 2016.&nbsp; Shareholders filed petitions for appraisal that same month.&nbsp; A five-day trial took place in June 2017 followed by post-trial argument in December 2017.</div> <h3> Takeaways</h3> <div> 1. <u>Reaffirmation that the deal price will be deemed strong evidence of fair value where a robust sales process took place.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Chancery Court focused on three main factors supporting that the sale process had the requisite objective indicia of reliability emphasized in <em>DFC </em>and <em>Dell</em>: (1) the opportunity many potential buyers had to bid; (2) the Special Committee&rsquo;s role in actively negotiating an arm&rsquo;s-length transaction; and (3) the evidence that the market for Solera&rsquo;s stock was efficient and well-functioning.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Court found that the merger was the product of a two-month outreach to private equity firms, a six-week auction by a competent and effective Special Committee that solicited 11 private equity and seven strategic firms, and public announcements alerting potential buyers to the sale process.&nbsp; The Special Committee expressed a willingness to walk away from unsatisfactory bids and twice rejected such bids.&nbsp; No one ultimately was willing to pay more than the deal price of $55.85 through a three-month window-shop and a 28-day go-shop.&nbsp; Thus, Solera was not worth more than the deal price.&nbsp;</div> <div> &nbsp;</div> <div> 2. <u>Merger synergies should be taken into account in the private equity context.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> While Delaware courts have traditionally viewed synergies as mainly arising in the strategic-buyer context, the Court made a point of stating that &ldquo;[s]ynergies do not only arise in the strategic-buyer context.&nbsp; It is recognized that synergies may exist when a financial sponsor is an acquirer.&rdquo;&nbsp; Here, Vista&rsquo;s portfolio included 40 software businesses, and Vista said synergies in the Solera deal included revenue, private company cost savings, and tax benefits.&nbsp; The Court found Vista&rsquo;s &ldquo;evidence, which petitioners made no effort to rebut, convincing&rdquo; and deducted $1.90 from the deal price.&nbsp;</div> <div> &nbsp;</div> <div> 3. <u>Unaffected market price doesn&rsquo;t trump adjusted deal price in determining fair value where the price is not supported by the evidence.</u></div> <div> &nbsp;</div> <div> The Court rejected respondent&rsquo;s argument&mdash;raised for the first time in supplemental post-trial briefing&mdash;that the unaffected stock price rather than the deal price was the best evidence of Solera&rsquo;s value as of the date of the merger. The Court noted that the argument, which advocated for a fair value determination about 35% below the deal price, &ldquo;reflects a dramatic change of position&rdquo; that the Court found &ldquo;as facially incredible as petitioners&rsquo; DCF model.&rdquo;&nbsp; Because the parties never litigated what Solera&rsquo;s true unaffected market price was, the Court found it was in no position to reliably make such a determination.&nbsp; The decision also effectively called into question the role of non-synergy cost savings in appraisal actions.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> 4. <u>Petitioners cannot seek merger fees in addition to the deal price.</u>&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Court rejected petitioners&rsquo; request that the court add nearly $450 million to the deal price to account for transaction costs Vista incurred in connection with the merger.&nbsp; Petitioners offered no precedent or legal support for this request, which asked the Court to ignore precedent indicating that the &ldquo;purpose of appraisal . . . is to make sure that [petitioners] receive fair compensation for their shares in the sense that it reflects what they deserve to receive based on what would fairly be given to them in an arm&rsquo;s length transaction.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Policy concerns also counseled against adding transaction fees to the deal price in determining fair value.&nbsp; The Court noted that if stockholders received payment for such fees, rational stockholders in even the most robust sale processes would seek appraisal to receive their share of the transaction costs plus interest that would be unavailable to them in any arm&rsquo;s length merger without an appraisal.&nbsp;</div> <div> &nbsp;</div> <div> For a copy of the opinion, click <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=276460">here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA080218-LIT At Long Last, Non-Compete Legislation: Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade http://www.seyfarth.com:80/publications/MA080218-LIT Thu, 02 Aug 2018 00:00:00 -0400 <div> Late on July 31st, after close to a decade of &ldquo;will they or won&rsquo;t they&rdquo; nail biters, the Massachusetts legislature finally passed a non-compete bill, just minutes before the end of the 2018 legislative session. (For a recap of the many twists and turns over the years, <a href="https://www.tradesecretslaw.com/2013/07/articles/trade-secrets/massachusetts-non-compete-legislative-update/">here</a> <a href="https://www.tradesecretslaw.com/2014/04/articles/trade-secrets/update-massachusetts-governor-proposes-sweeping-legislation-banning-non-compete-agreements/">is</a> <a href="https://www.tradesecretslaw.com/2014/06/articles/trade-secrets/another-public-hearing-scheduled-for-massachusetts-non-compete-bill-whats-next/">just</a> <a href="https://www.tradesecretslaw.com/2014/07/articles/trade-secrets/no-massachusetts-non-compete-or-trade-secret-legislation-this-year/">a</a> <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">smattering</a> <a href="https://www.tradesecretslaw.com/2016/06/articles/dtsa/update-massachusetts-house-of-representatives-edits-and-unanimously-approves-non-compete-bill-in-an-attempt-to-make-progress-before-end-of-legislative-session/">of</a> <a href="https://www.tradesecretslaw.com/2016/07/articles/noncompete-enforceability/8085/">blog</a> <a href="https://www.tradesecretslaw.com/2016/08/articles/noncompete-enforceability/in-like-a-lion-out-like-a-lamb-following-much-fanfare-massachusetts-noncompete-reform-again-fails/">posts</a> <a href="https://www.tradesecretslaw.com/2016/11/articles/noncompete-enforceability/a-holiday-miracle-massachusetts-legislature-discussing-late-session-non-compete-deal/">on</a> <a href="https://www.tradesecretslaw.com/2017/01/articles/noncompete-enforceability/will-the-massachusetts-legislature-finally-be-able-to-keep-its-new-years-resolution-to-pass-non-compete-reform/">the</a> <a href="https://www.tradesecretslaw.com/2017/10/articles/legislation-2/massachusetts-legislature-schedules-hearing-on-non-compete-reform/">topic</a>).</div> <div> &nbsp;</div> <div> The new bill, which will become effective on October 1, 2018, if signed by Governor Baker, codifies certain aspects of existing common law, but makes some significant changes to non-compete jurisprudence in the Bay State that employers will need to be mindful of.</div> <div> &nbsp;</div> <div> <em>Note: this bill applies to both employees <strong>and</strong> independent contractors, despite the many fundamental differences between employees and independent contractors under Massachusetts law. For clarity purposes we will simply refer to &ldquo;employees&rdquo; in this post.</em></div> <div> &nbsp;</div> <h2> Applicability to certain types of restrictive covenants</h2> <div> This bill applies to most non-compete agreements, including forfeiture-for-competition agreements (allowing an employee to compete, but requiring him or her to forfeit some benefit to which he or she would otherwise be entitled), but does not apply to other restrictive covenants agreements, such as customer or employee non-solicits, non-disclosure agreements, or anti-raiding agreements, nor does it apply to non-competes arising out of the sale of a business.</div> <div> &nbsp;</div> <h2> Duration</h2> <div> The bill limits the duration of a non-compete agreement to 12 months following the employee&rsquo;s departure, unless he or she has breached a fiduciary duty to the employer or engaged in misappropriation, in which case the duration can be up to 2 years following separation. This is a significant departure from existing law&mdash;common law decisions have regularly upheld non-competes of 2 years or even more in appropriate circumstances.</div> <div> &nbsp;</div> <div> Of course, even though the bill allows a non-compete restriction beyond a year where an employee breaches a fiduciary duty or engages in misappropriation, one wonders how often courts will be willing to grant injunctions beyond the one-year period. Many of these disputes are &ldquo;won&rdquo; or &ldquo;lost&rdquo; at the motion for temporary restraining order and/or preliminary injunction stage, before extensive evidence has been heard by the court. Thus, a court may be reluctant to extend the restriction without the benefit of a full-blown evidentiary hearing on the alleged breach of fiduciary duty or misappropriation.</div> <div> &nbsp;</div> <h2> Requirements for agreements entered into at the commencement of employment</h2> <div> Agreements entered into at the commencement of employment must be signed by both the employer and employee, and expressly state that the employee has a right to consult counsel before signing the agreement. Additionally, the agreement must be provided with the formal offer letter, or at least 10 business days prior to the employee&rsquo;s first day, whichever is earlier.</div> <div> &nbsp;</div> <h2> Requirements for agreements entered into <em>after</em> the commencement of employment</h2> <div> In a significant change to current Massachusetts common law, continued employment will no longer be sufficient consideration for agreements entered into after an employee starts work. Instead, &ldquo;fair and reasonable&rdquo; consideration, independent of continued employment, must be provided by the employer. What will constitute &ldquo;fair and reasonable&rdquo; consideration will no doubt be influenced by case law from other jurisdictions where continued employment is not sufficient consideration, as well as those cases at the Superior Court level which have addressed this issue in the context of determining whether enforcement is equitable under the circumstances. Like agreements entered into prior to commencement of employment, employees must receive at least 10 business days&rsquo; notice before the non-compete is effective, and the agreement must be in writing, signed by employer and employee, and expressly set forth the employee&rsquo;s right to consult with counsel.</div> <div> &nbsp;</div> <h2> Garden leave (or not)</h2> <div> Those readers who have been following the tortured path of non-compete reform will <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">recall</a> that the concept of garden leave was a major topic of discussion in past efforts to pass a non-compete bill, and was the major reason why legislation was not passed last year. This bill offers a somewhat watered down version of this concept by requiring the employer to pay 50% of the employee&rsquo;s annualized base salary during the restricted period, or some other &ldquo;mutually agreed upon consideration,&rdquo; which must be specified in the agreement. Where employers opt to give garden leave, such payments may not be unilaterally discontinued by the employer, except where the employee has breached the agreement. However, this could raise difficult questions regarding when an employee is deemed to have breached, and we foresee many potential lawsuits or counterclaims for breach of contract by employees claiming that the termination of such payments was inappropriate.</div> <div> &nbsp;</div> <h2> Non-competes unenforceable against certain employees, including those laid off or terminated without cause and low-wage workers</h2> <div> In a nod to the furor over non-competes governing low-wage workers and certain other groups, this bill prohibits the use of such agreements for: (1) nonexempt employees under the Fair Labor Standards Act (see our analysis <a href="https://www.tradesecretslaw.com/2016/05/articles/trade-secrets/umpteenth-times-the-charm-massachusetts-has-another-go-at-non-compete-reform/">here</a> of how this provision could be difficult to interpret, given that the FLSA&rsquo;s overtime exemptions are not always a model of clarity and can be a <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/white-collar-exemption-revisions-announced/">moving target</a>); (2) undergrads and grad students working part-time; (3) employees 18 and younger; and (4) employees terminated without cause or laid off.</div> <div> &nbsp;</div> <h2> &ldquo;Springing&rdquo; non-competes</h2> <div> Notably, this bill allows a court to impose a non-compete as a penalty for an employee&rsquo;s breach of other enforceable restrictive covenants (such as non-solicit agreements) or statutory or common law duties. We view this as a fairly extraordinary remedy, and suspect that only very egregious conduct from employees will cause a court to consider it.</div> <div> &nbsp;</div> <h2> Choice of law</h2> <div> The bill prohibits employers from applying another state&rsquo;s law to an employee&rsquo;s non-compete agreement, provided the employee lived in Massachusetts for the last 30 days before cessation of his or her employment. This could be complicated for multi-jurisdictional employers who enter into non-compete agreements with non-Massachusetts residents if those employees subsequently move to Massachusetts following execution. It would seem that such employers would need to ensure that within 30 days of such a move, the employee&rsquo;s agreement is reviewed and/or renewed to ensure compliance with Massachusetts law.</div> <div> &nbsp;</div> <h2> Venue</h2> <div> All actions to enforce non-compete agreements must be initiated in the employee&rsquo;s home county or in Suffolk County (and if in Suffolk County, only in the Superior Court&rsquo;s Business Litigation Session). Notably absent from the bill is any mention of actions brought in federal court with pendant state law claims, or the ability to remove cases to federal court located in the employee&rsquo;s county.</div> <div> &nbsp;</div> <h2> Other requirements consistent with common law</h2> <div> As already contemplated in common law decisions, regardless of when the agreement was entered into, the bill requires that the agreement must be no broader than necessary to protect the employer&rsquo;s legitimate business interests (trade secrets, confidential information, or goodwill), and must be consonant with public policy.</div> <div> &nbsp;</div> <div> Likewise, the agreement must be reasonable in temporal and geographic scope and the scope of activities prohibited. The bill provides that a geographic scope that is limited to the locations in which the employee provided services or had a material presence or influence in the last two years of his or her employment will be deemed presumptively valid, as will a provision limiting the scope of prohibited activities to those services provided by the employee during the last two years of employment.</div> <div> &nbsp;</div> <h2> Reformation</h2> <div> Similarly, consistent with existing law, the bill provides that courts may reform &ldquo;or otherwise revise&rdquo; overbroad or otherwise unenforceable non-compete agreements. Note that while some commenters have reported that the bill would allow courts to&nbsp; &ldquo;blue pencil&rdquo; an overbroad agreement, the passed bill does not reference &ldquo;blue penciling,&rdquo; a doctrine that allows the court to revise an agreement only by excising grammatically severable language (i.e., under the &ldquo;blue pencil&rdquo; doctrine, courts could not add language to limit an agreement). While certainly a court can, by reforming the agreement, excise certain words and decline to add new language, references to the &ldquo;blue pencil&rdquo; doctrine are nonetheless somewhat misleading, because they imply that the court cannot add language to render an overbroad agreement enforceable.</div> <div> &nbsp;</div> <h2> UTSA adoption</h2> <div> Finally, with this bill, Massachusetts will become the 49th state in the Union (with only New York lagging) to adopt a version of the Uniform Trade Secret Act (&ldquo;UTSA&rdquo;).</div> <div> &nbsp;</div> <h2> What now?</h2> <div> Businesses with employees in Massachusetts (or who move to Massachusetts) will need to carefully review their agreements with such employees to ensure compliance with this new bill (assuming of course that it is signed by Governor Baker). While the bill is not retroactive, any agreements entered into on or after October 1, 2018, must comply with the new requirements. Even though agreements entered into before October 1, 2018, will not be subject to this bill, the prudent practice would be to review existing agreements for compliance with this law, and consider making changes to bring them into compliance.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL080218 The New Transparency: Using Collaboration and Technology to Help Address Modern Slavery http://www.seyfarth.com:80/publications/EL080218 Thu, 02 Aug 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:&nbsp;</em></strong><em>Over 40 million people around the world are trapped in conditions of modern slavery, according to research from the Walk Free Foundation and the International Labour Organization. Modern slavery&mdash;a term that encompasses various forms of servitude, forced labor, trafficking in persons, forced marriage, child trafficking, debt bondage, child labor and exploitation, and other slavery-like practices&mdash;exists both at home and abroad, across a range of local industries and in global supply chains.</em></p> <p> <a href="https://www.laborandemploymentlawcounsel.com/2018/08/the-new-transparency-using-collaboration-and-technology-to-help-address-modern-slavery/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT080218 The Week in Weed: August 3, 2018 http://www.seyfarth.com:80/publications/TBT080218 Thu, 02 Aug 2018 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="https://www.blunttruthlaw.com/2018/08/the-week-in-weed-august-3-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS080118 At Long Last, Non-Compete Legislation: Massachusetts Finally Passes Non-Compete Bill After Nearly a Decade http://www.seyfarth.com:80/publications/TS080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Late last night, after close to a decade of &ldquo;will they or won&rsquo;t they&rdquo; nail biters, the Massachusetts legislature finally passed a non-compete bill, just minutes before the end of the 2018 legislative session. (For a recap of the many twists and turns over the years, here is just a smattering of blog posts on the topic).<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/08/articles/legislation-2/at-long-last-non-compete-legislation-massachusetts-finally-passes-non-compete-bill-after-nearly-a-decade/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/markelmurraypl080118 Gregory Markel and Heather Murray authored an article in Thomson Reuters Practical Law http://www.seyfarth.com:80/publications/markelmurraypl080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Gregory Markel and Heather Murray authored an August 1 article in Thomson Reuters Practical Law, &quot;Litigating Appraisal Actions: Key Issues and Considerations.&quot; You can read the <a href="https://www.seyfarth.com/dir_docs/publications/LIT_AugSep18_Feature2_UpdatedFinal.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/glitax080118 John Napoli, Michael Rosenthal and Michael Lobie authored a chapter in Global Legal Insights http://www.seyfarth.com:80/publications/glitax080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> John Napoli, Michael Rosenthal and Michael Lobie authored a chapter in Global Legal Insights, &quot;Corporate Tax 2018 USA.&quot; You can read the full chapter here: <a href="https://www.globallegalinsights.com/practice-areas/corporate-tax-laws-and-regulations/usa">https://www.globallegalinsights.com/practice-areas/corporate-tax-laws-and-regulations/usa</a></p> http://www.seyfarth.com:80/news/johnsonbloomberglaw080118 Randel Johnson quoted in Bloomberg Law http://www.seyfarth.com:80/news/johnsonbloomberglaw080118 Wed, 01 Aug 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an August 1 story from Bloomberg Law, &quot;Trump Aide&rsquo;s Clash With Labor Secretary Slows Policy Actions,&quot; on White House labor adviser James Sherk.</p> http://www.seyfarth.com:80/news/workingmother073118 Seyfarth Named a “Best Law Firm for Women” for 8th Year by Working Mother http://www.seyfarth.com:80/news/workingmother073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> CHICAGO (July 31, 2018) -- Seyfarth Shaw LLP announced today that it has been named to <em>Working Mother </em>magazine&rsquo;s annual &ldquo;Best Law Firms for Women&rdquo; list for the eighth straight year. In partnership with the <em>ABA Journal</em>, this list recognizes 60 firms for their best practices in retaining and promoting women lawyers.</p> <p> &ldquo;This is a tremendous honor which recognizes our continued best practices around flexibility and support for women&rsquo;s advancement,&rdquo; said Ellen McLaughlin, chair of Seyfarth Women&rsquo;s Network.</p> <p> The full list, available <a href="https://www.workingmother.com/best-law-firms-for-women-2018">here</a>, highlights law firms where on average almost half of associates and more than a third of partners are women, while one-fifth of equity partners are women. According to <em>Working Mother</em>, these firms also increasingly offer extended parental-leave benefits and encourage more lawyers to work remotely and use flexible hours.</p> <p> &quot;The law firms that make <em>Working Mother</em>&#39;s list are remarkable for their long-term commitment to retaining and promoting women lawyers,&quot; said Meredith Bodgas, editor-in-chief of <em>Working Mother</em>. &quot;One hundred percent of these firms provide flexible work arrangements and 57 percent of them offer sponsorship programs for high-potential women lawyers. That&#39;s resulted in a jump in the number of women equity partners to 21 percent.&quot;</p> <p> This reflects the latest such major honor for Seyfarth this year. Last month, the firm earned the prestigious Gold Standard Certification from the Women In Law Empowerment Forum. Please visit <a href="http://www.seyfarth.com/Accolades/wilef062718">here</a> for more details.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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/EL073118 California Attempts to Clarify Salary History Ban Legislation http://www.seyfarth.com:80/publications/EL073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California Governor Brown signed into law last week Assembly Bill No. 2282 to clarify previously passed legislation that prohibits inquiries into an applicant&rsquo;s salary history. Read on for a recap of Assembly Bill No. 2282.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/california-attempts-to-clarify-salary-history-ban-legislation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/colemanwadsworthitechlaw073118 Jesse Coleman and Brian Wadsworth authored an article in ITechLaw http://www.seyfarth.com:80/publications/colemanwadsworthitechlaw073118 Tue, 31 Jul 2018 00:00:00 -0400 <p> Jesse Coleman and Brian Wadsworth authored a July 31 article in ITechLaw, &quot;The Texas Court of Appeals for the Third District Holds that the Texas Anti-SLAPP Statute Applies to a Conspiracy to Misappropriate Trade Secrets Claim.&quot; You can read the <a href="https://www.itechlaw.org/news/texas-court-appeals-third-district-holds-texas-anti-slapp-statute-applies-conspiracy">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE073018 Roller Coaster Rulemaking: OSHA Publishes Proposed Rule to Reduce Injury and Illness Electronic Reporting Requirements http://www.seyfarth.com:80/publications/WSE073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA today published a proposed rule to amend the injury and illness recordkeeping rules by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. OSHA is amending provisions of the &ldquo;Improve Tracking of Workplace Injuries and Illnesses&rdquo; (WII Rule) final rule to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). 83 Fed. Reg. 36494 (July 30, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/roller-coaster-rulemaking-osha-publishes-proposed-rule-to-reduce-injury-and-illness-electronic-reporting-requirements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS073018 New transparency: using collaboration and technology to address modern slavery http://www.seyfarth.com:80/publications/WLS073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> In increasingly globalised markets, there is growing regulatory and consumer pressure on businesses to eliminate the exploitative practices of modern slavery in their operations and global supply chains.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/new-transparency-using-collaboration-and-technology-to-address-modern-slavery/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/peerypinskyprea073018 Gordon Peery and Tobi Pinsky authored an article in PREA Quarterly http://www.seyfarth.com:80/publications/peerypinskyprea073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Gordon Peery and Toby Pinsky authored an article in the Summer issue of PREA Quarterly, &quot;The Economic Growth, Regulatory Relief, and Consumer Protection Act Provides Relief and Clarity for the Commercial Real Estate Market.&quot;</p> http://www.seyfarth.com:80/publications/OMM073018-HL DOL Guidance on Employer Status of Caregiver Registries: Foreshadowing A More Tolerant Independent Contractor Approach http://www.seyfarth.com:80/publications/OMM073018-HL Mon, 30 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Department of Labor Acting Administrator Bryan Jarrett issued Field Assistance Bulletin No. 2018-4 (&ldquo;FAB&rdquo;) on July 13, to guide Wage &amp; Hour Division (&ldquo;WHD&rdquo;) field investigators on how to determine whether home care, nurse, or caregiver registries are employers under the Fair Labor Standards Act.<a href="#_ftn1" name="_ftnref1" style="background-color: rgb(255, 255, 255);" title="">[1]</a>&nbsp; The notable FAB makes no negative reference to independent contractor status, shedding first light on the administration&rsquo;s independent contractor classification approach following withdrawal of the DOL&rsquo;s 2015 Administrator&rsquo;s Interpretation last year. The guidance is welcome news for the growing number of companies that seek to match workers with individuals who seek in-home care, as well as to entities outside the healthcare sector that engage non-employed workers.</em></p> <p> The DOL begins its guidance by recognizing that &ldquo;a registry that simply facilitates matches between clients and caregivers&mdash;even if the registry also provides certain other services, such as payroll &mdash;is not an employer under the DOL.&rdquo;&nbsp; The FAB provides, however, &ldquo;specific examples of common registry business practices which may, when the totality of factors is analyzed, establish the existence of an employment relationship under the FLSA.&rdquo;&nbsp; The FAB reveals a return to DOL&rsquo;s historical approach of reviewing employer status on a &ldquo;case-by-case&rdquo; basis, by assessing a totality of circumstances without allowing any single factor to dictate the outcome.</p> <p> The FAB highlights factors that the WHD will analyze during investigations, illustrating that registries should avoid becoming embroiled in the caregiver relationship or unduly controlling caregivers&rsquo; work. Registries should be aware in particular of the following:</p> <ul> <li> Performance of basic caregiver background checks does not indicate employer status.&nbsp; If the registry actually interviews prospective caregivers or references, or pre-selects candidates for clients, however, it may be acting as an employer.</li> <li> Providing clients or caregivers with information about typical market-based pay rates&nbsp; &ldquo;to serve as a benchmark for negotiations&rdquo; does not indicate employer status.&nbsp; If the registry &ldquo;designates a set wage range,&rdquo; or &ldquo;offers tailored direction concerning what a caregiver should charge for specific services,&rdquo; it appears more like an employer.&nbsp;</li> <li> Performing certain administrative payroll-related functions, such as preparing tax documents or compiling time records, will not create an employment relationship.&nbsp; A registry&rsquo;s direct payment of its own funds, or independent verification or adjustment of caregiver time records, however, may indicate employer status.&nbsp;</li> <li> Charging a one-time fee for services to match a caregiver with a client, or ongoing fees for performing administrative functions like payroll, do not indicate that the registry is the caregiver&rsquo;s employer.&nbsp; However, charging ongoing fees to the client based on the number of hours a caregiver works, or based on the ongoing caregiver relationship, may indicate employer status, because &ldquo;[t]he caregiver&rsquo;s pay . . . depends, in part, on the amount the registry charges.&rdquo;</li> </ul> <p> Other factors that the WHD will analyze include the registry&rsquo;s level of involvement in: hiring and firing; scheduling and assigning work (where the caregiver may &ldquo;economically depend on the registry&rsquo;s preferences and decisions&rdquo;); controlling the caregiver&rsquo;s work through trainings, setting policies, or monitoring and evaluating the caregiver&rsquo;s performance; and purchasing equipment and supplies, including the caregiver&rsquo;s licenses, insurance, or medical supplies.&nbsp; According to DOL, requiring a caregiver to obtain an EIN, insurance, or bond in accordance with the law is &ldquo;not relevant&rdquo; to the analysis, nor is calling a caregiver an &lsquo;independent contractor&rsquo; or issuing him or her a Form 1099.</p> <p> The FAB&rsquo;s focus exclusively on registries may indicate that the DOL intends to increase its scrutiny of employment relationships in the home health care industry, about which there has been little recent guidance outside the companionship arena.&nbsp; More broadly, however, the factors that the DOL highlights in this FAB translate across a wide variety of industries, and reveal insight into how the current administration views the employer/independent contractor analysis under the Fair Labor Standards Act.&nbsp; After withdrawing its formal guidance on independent contractor misclassification in June 2017, &nbsp;thereby abandoning the relatively strict &ldquo;economic realities&rdquo; test that was widely viewed to favor employer status, the DOL has been relatively silent on the topic -- until now.&nbsp; The FAB&rsquo;s return to a &ldquo;totality of circumstances&rdquo; analysis portends a more tolerant approach to independent contractor classification, indicating that certain entities, like traditional match-making registries, can liaise between independent workers and their clients without creating an employer relationship. &nbsp;</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> A &ldquo;registry&rdquo; is &ldquo;an entity that typically matches people who need caregiving services with caregivers who provide the services, usually nurses, home health aides, personal care attendants, or home care workers with other titled (collective, caregivers).&rdquo;</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/babsonbloomberg073018 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg073018 Mon, 30 Jul 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a July 30 story from Bloomberg, &quot;Kavanaugh Sided With Trump Casino in 2012 to Thwart Union Drive.&quot; Babson said that Kavanaugh&rsquo;s skepticism about quasi-legislative moves by agencies could benefit both liberals and conservatives. You can read the <a href="https://www.bloomberg.com/news/articles/2018-07-30/kavanaugh-sided-with-trump-casino-in-2012-to-thwart-union-drive">full article here</a>.</p> http://www.seyfarth.com:80/news/morneaushepell072718 Seyfarth Represents Morneau Shepell in $426 Million Acquisition of LifeWorks http://www.seyfarth.com:80/news/morneaushepell072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> CHICAGO - (July 27, 2018) - Seyfarth Shaw LLP represented Morneau Shepell Inc., a leader in human resources services and technology, in its $426 million CDN acquisition of LifeWorks Corporation Ltd., the leading global Employee Assistance Program (EAP) and wellness provider.</p> <p> As a result of the deal, Morneau Shepell acquires all of the outstanding shares of LifeWorks, payable in cash and Morneau Shepell shares. The acquisition presents a significant addition to Morneau Shepell&#39;s leading EAP offering and will allow Morneau Shepell to better address multiple well-being challenges faced by its clients and their employees.</p> <p> Morneau Shepell is the only human resources consulting and technology company that takes an integrated approach to employee assistance, health, benefits and retirement needs. Morneau Shepell is the leading provider of employee and family assistance programs, the largest administrator of retirement and benefits plans and the largest provider of integrated absence management solutions in Canada.</p> <p> Established in 1966, Morneau Shepell serves approximately 20,000 clients, ranging from small businesses to some of the largest corporations and associations. With more than 4,000 employees in offices across North America, Morneau Shepell provides services to organizations across Canada, in the United States and around the globe.</p> <p> LifeWorks is an employee well-being business which combines employee assistance, wellness, recognition and incentive programs in the United States, Canada, Australia and the United Kingdom.</p> <p> The Seyfarth team was led by Corporate partner Suzanne Saxman and included the Corporate team of Robert Hanley, Veronica DiCamillo, Aaron Gillett and Stephen Gallagher; Regulatory - Brandon Bigelow; Labor &amp; Employment team of Paul Whinder, Honore Hishamunda, Katherine Smallwood, Megan Toth, Christina Meddin and Coby Turner; Employee Benefits - Christian Hallett; IP team of Julia Sutherland, Stephen Lott and Teddie Hsu; and Data Security and Privacy team of Richard Lutkus, John Tomaszewski, Jennifer Mora and Cassie Myatt.</p> http://www.seyfarth.com:80/publications/TS072718 California Federal Court Denies Preliminary Injunction In “Blockchain” Dispute http://www.seyfarth.com:80/publications/TS072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> How different is a celebrity-focused &ldquo;cryptocollectible&rdquo; from a celebrity-focused &ldquo;cryptocurrency,&rdquo; and how similar does it have to be to constitute a trade secret? That was the question facing the Southern California federal district court in deciding a motion for a preliminary injunction in Founder Starcoin v. Launch Labs, Inc., No. 18-CV-972 JLS (MDD) (S.D. Cal. July 9, 2018). Defendant Launch Labs, d/b/a Axiom Zen, is the developer of &ldquo;CryptoKitties,&rdquo; a game that uses the Ethereum blockchain technology to &ldquo;allow[] users to securely buy, sell, trade, and breed genetically unique virtual cats.&rdquo; Plaintiff Starcoin has a business plan to create a &ldquo;regulated exchange&rdquo; for secure &ldquo;tokens&rdquo; representing celebrities that can be bought and sold, not just by typical investors, but by a celebrity&rsquo;s fans as well.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/collectibles-vs-currency-when-the-court-does-not-understand-the-technology-at-issue/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA072718-LE Baby It's Cold Outside: ICE I-9 Audits Increase Over 100 Percent http://www.seyfarth.com:80/publications/MA072718-LE Fri, 27 Jul 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> Immigration and Customs Enforcement (ICE) increases the number of Form I-9 inspections over 100 percent.&nbsp; Employers should recognize this heightened enforcement and prioritize immigration compliance today to minimize monetary fines, branding exposure and other forms of liability.</em></p> <p> On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20.&nbsp; HSI served 2,738 I-9 Notices of Inspection (NOIs<a href="#_ftn1" name="_ftnref1" title="">[1]</a>) to US businesses around the country after serving 2450 during its first phase earlier this year. &nbsp;In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017.&nbsp; Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. &nbsp;These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance.&nbsp; Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. &nbsp;Paperwork violations range from $224 to $2236.&nbsp; Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.&nbsp;</p> <p> In<a href="https://www.ice.gov/news/releases/ice-delivers-more-5200-i-9-audit-notices-businesses-across-us-2-phase-nationwide">&nbsp;ICE&rsquo;s press release</a>, HSI reminded employers about its &ldquo;three-pronged approach to worksite enforcement: compliance, form I-9 inspections, civil fines and referrals for debarment; enforcement, through the criminal arrest of employers and administrative arrest of unauthorized workers; and outreach, through the ICE Mutual Agreement between Government and Employers, or IMAGE program, to instill a culture of compliance and accountability.&rdquo;</p> <p> These events have been expected and actually follow prior comments by HSI officials that <a href="https://www.bigimmigrationlawblog.com/2018/01/following-a-long-thaw-ice-returns-with-increased-worksite-enforcement/">we previously reported</a>, confirming that 2018 will be a year of increased immigration enforcement.</p> <p> <strong>What Happens When We Receive an NOI? ?</strong></p> <ul> <li> An ICE audit begins when an auditor and/or an ICE agent arrives at your doorstep to serve the company with a Notice of Inspection.</li> <li> Service can also be accomplished via certified U.S. mail, return receipt requested. Ensure you have a protocol to have a NOI reach the right party in a timely fashion.</li> <li> If in person, the agent will generally deliver the notice and will request to see a manager or the person charged with Form I-9 duties.&nbsp; The person receiving service of the NOI will need to sign a document acknowledging receipt.</li> <li> The company will be provided three (3) days to respond to the NOI, but extensions may be granted with good reason.</li> <li> NOIs should be taken very seriously. &nbsp;In 2017, the largest judgment in U.S. history for illegally employing undocumented immigrants was levied against Asplundh Tree Expert Co.&mdash;t<a href="http://www.seyfarth.com/publications/IMM101017">he company had to pay a total of $95 million in forfeitures and civil claims</a>.</li> </ul> <p> Recent experience indicates that ICE is routinely requesting the Forms I-9 only of current employees. However, the agency may ask for both the current and terminated employees Forms I-9 (within the retention period), and the agent or auditor may expand the scope as necessary at any point during the review.</p> <p> Frequently, the NOI includes an administrative subpoena with an additional document request in addition to the Forms I-9.&nbsp; Generally, ICE requests the following:</p> <ul> <li> Current employee list, indicating the date of hire, termination and rehire where applicable;</li> <li> E-Verify information (case number on the I-9 or case details attached);</li> <li> Copies of quarterly wage and hour reports for a defined period for the specific location;</li> <li> Payroll records for the site;</li> <li> Business entity information (e.g. EIN, business charter, articles of incorporation, and business licenses);</li> <li> List of subcontractors and staffing companies that serve the site;</li> <li> &ldquo;No Match&rdquo; or &ldquo;Mis-Match&rdquo; letters from the Social Security Administration; and,</li> <li> Business entity questionnaire&mdash;provided by HSI.</li> </ul> <p> &nbsp;</p> <p> Remember, all document copies will need to be submitted with the I-9s if your business retains copies of documents.&nbsp; Generally, as a best practice, we recommend keeping document copies.</p> <p> <strong>Are there any special considerations when using an Electronic I-9 System?</strong></p> <p> Yes, using an electronic I-9 system adds additional responsibilities.&nbsp; In order to respond to the NOI, a company may be asked to:</p> <ul> <li> Answer questions about the electronic Form I-9 system;</li> <li> Retrieve and reproduce electronically stored Forms I-9, along with any other requested documents;</li> <li> Provide the agent with the necessary hardware and software to inspect electronic documents; and,</li> <li> Provide the agent with any existing electronic summary of the information recorded on each Form I-9, information relating to the required indexing system, and all audit trails associated with each I-9.</li> </ul> <p> <strong>Why did my company receive a NOI?</strong></p> <ul> <li> ICE prioritizes investigations involving critical infrastructure and key resources.</li> <li> ICE may have received a tip or lead about the business.</li> <li> It could simply be random.</li> <li> If you were blessed with a NOI in the past, this could be a re-inspection.</li> <li> Your company may sit in traditionally targeted industries, such as the service industry, restaurants and hospitality, construction, brick and mortar retailers (e.g. food, clothing, drugstores, and home improvement), food production, landscaping, cleaning, maintenance, or packaging and manufacturing.</li> </ul> <p> <strong>What to consider after receiving a NOI?</strong></p> <ol> <li> <strong>Take this seriously. </strong>&nbsp;Receipt of a NOI should be taken very seriously without regard to the size of your company.&nbsp; If you receive an audit notice, it is critical that you act immediately and secure an experienced compliance expert to guide you through the ICE inspection process&mdash;immediately retaining experienced immigration compliance counsel protects your business.&nbsp; Inquire as to the specific background the attorney has in defending companies in ICE investigations rather than just conducting internal audits.</li> <li> <strong>Do NOT waive your three-day right to produce the I-9s</strong>. &nbsp;You will not receive any &ldquo;credit&rdquo; for handing the box of I-9s over while the agent is waiting in the lobby.</li> <li> <strong>Notify your management and executive teams. </strong>&nbsp;Inform management immediately of the government&rsquo;s request.</li> <li> <strong>Collect information. &nbsp;</strong>ICE and your attorney will need a fair amount of information, such as whether or not you are a federal contractor, you use an electronic I-9 system, how many locations you have and what the footprint is, the last time you had an I-9 training, etc.&nbsp;</li> <li> C<strong>ommunicate carefully. </strong>&nbsp;Cooperate with the agent, but remember he/she is not your friend but rather a representative of the U.S. government charged with investigating your business. The person receiving the NOI is not obligated to speak with the agent, but should certainly be cordial.</li> <li> <strong>Be cognizant of timing.</strong>&nbsp; Every minute counts&mdash;the law provides just three (3) business days to collect the Forms I-9 (and photocopies of supporting documents, if copies were made at time of completion) and produce them to ICE, so ensure that you have taken the time to prepare beforehand by mandating good I-9 hygiene, including auditing for missing and incomplete I-9s.</li> <li> <strong>Consider requesting an extension</strong>.&nbsp; Consider whether you require an extension of time.&nbsp; While discretionary, generally, if reasonable ICE will accommodate such a request. &nbsp;At a minimum, ICE will likely provide an extension for the documents outside of the I-9s.</li> <li> <strong>Do not discriminate. &nbsp;</strong>Treat employees fairly and consistently. &nbsp;Ensure that existing employees are not arbitrarily required to provide new or updated Form I-9 information or document copies. &nbsp;The Department of Justice&rsquo;s Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA), 8 U.S.C. &sect; 1324b. Visit their <a href="https://www.justice.gov/crt/immigrant-and-employee-rights-section">website</a> for information on how to better understand the anti-discrimination provision of the INA.</li> <li> <strong>Post-NOI checklist.&nbsp; </strong>Make proactive plans for training and further cleanup.&nbsp; Work with your counsel to assess potential liability and identify trends on Forms I-9 submitted to ICE.&nbsp; Understand what comes next during the lifecycle of an inspection and what type of violations you may be facing.</li> </ol> <p> ICE has increased the number of worksite investigations in 2018 by over 100 percent compared to previous years.&nbsp; As this author stated earlier this year, given stepped-up enforcement, the Administration&rsquo;s focus on immigration, and a newfound emphasis on interagency cooperation, 2018 continues to be a year for US companies to prioritize compliance in an effort to stay out of the crosshairs of a government investigation.&nbsp; Employers should be taking steps to prepare for increased I-9 compliance which were outlined in a prior <a href="https://www.bigimmigrationlawblog.com/2018/07/ice-i-9-audits-on-the-rise-act-today-to-prevent-issues-tomorrow/#more-2672">Alert</a>. &nbsp;Please feel free to contact the author, Dawn Lurie, at dlurie@seyfarth.com with any questions. This<a href="https://www.bigimmigrationlawblog.com/2018/07/baby-its-cold-outside-ice-i-9-audits-increase-over-100-percent/"> article</a> first appeared on the <a href="https://www.bigimmigrationlawblog.com/">BIG Immigration Blog</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> NOIs notify companies that the government is going to audit their records to determine if they are complying with relevant immigration compliance laws.&nbsp; Under federal law, employers are required to verify the identity and employment eligibility of each of its newly hired employees, and must also reverify certain employees&nbsp; with expiring work authorization.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CP072718 Fasten Your Seat Belts: California Revisiting Oracle in Airline Cases http://www.seyfarth.com:80/publications/CP072718 Fri, 27 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.calpeculiarities.com/2018/07/27/fasten-your-seat-belts-california-revisiting-oracle-in-airline-cases/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE072718 Upcoming Atlanta Event: OSHA Trends and Developments: One Year Into the Trump Administration (Register to Reserve Your Spot) http://www.seyfarth.com:80/publications/WSE072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> On August 23, 2018, our Atlanta office is hosting a hot-topic event in which our panelists will lead an interactive discussion on the trends we are seeing in OSHA regulation a year into the Trump administration. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/upcoming-atlanta-event-osha-trends-and-developments-one-year-into-the-trump-administration-register-to-reserve-your-spot/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM072718 Seyfarth Shaw Policy Matters Newsletter – July 26, 2018 http://www.seyfarth.com:80/publications/IMM072718 Fri, 27 Jul 2018 00:00:00 -0400 <p> OFCCP Director to Step Down. Earlier today, reports surfaced that the Director of the Office of Federal Contract Compliance Programs (OFCCP), Ondray Harris, would be stepping down from the role at the end of this week. Harris lasted less than 8 months on the job after being appointed to the position last December. Craig Leen, the deputy director at OFCCP, will serve as director on an acting basis. Leen is expected to continue the agency&rsquo;s recent &ldquo;business-friendly&rdquo; approach when analyzing the pay practices of federal contractors as well as the office&rsquo;s increased focus on apprenticeships.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-26-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM072618 Baby It’s Cold Outside: ICE I-9 Audits Increase Over 100 Percent http://www.seyfarth.com:80/publications/IMM072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> On July 24, 2018, Immigration and Customs Enforcement (ICE) issued a press release confirming that its Homeland Security Investigations (HSI) division had completed the second phase of a nationwide operation from July 16-20. HSI served 2,738 I-9 Notices of Inspection (NOIs[1]) to US businesses around the country after serving 2450 during its first phase earlier this year. In sum, HSI has now issued almost 5200 NOIs since the beginning of October 2017. Not only this, but HSI also has made 675 criminal and 984 administrative worksite-related arrests. These numbers clearly indicate that ICE takes worksite enforcement very seriously and companies should prioritize a commitment to compliance. Fines for knowingly hiring or continuing to employ unauthorized workers start at $559 per employee and can be as high as $22,363 for repeated offenses. Paperwork violations range from $224 to $2236. Companies may also face additional fines, penalties and forfeitures, and government contractors may face debarment from federal contracts.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/baby-its-cold-outside-ice-i-9-audits-increase-over-100-percent/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT072618 The Week in Weed: July 27, 2018 http://www.seyfarth.com:80/publications/TBT072618 Thu, 26 Jul 2018 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="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-27-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA072618 The Ninth Circuit Addresses Whether To Enforce An Agreement To Arbitrate ERISA Claims http://www.seyfarth.com:80/publications/ERISA072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Ninth Circuit declined to enforce an agreement to arbitrate ERISA Section 502(a)(2) claims, but did not rule out enforcement in other ERISA claim contexts.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/07/26/the-ninth-circuit-addresses-whether-to-enforce-an-agreement-to-arbitrate-erisa-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL072618 Arbitration And The Increasingly Political Judiciary—Should Employers (And Employees) See Arbitration As The More Neutral Forum? http://www.seyfarth.com:80/publications/EL072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The trend-lines describe employment-related litigation in the past 25 years: (1) the emergence of arbitration as a flexible and increasingly legally viable to resolve employment claims; and (2) the dangerous politicization of the judicial selection process in federal and state government. These trends should make arbitration in any state, whether red or blue, an even more attractive dispute-resolution device for employers and employees alike.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/arbitration-and-the-increasingly-political-judiciary-should-employers-and-employees-see-arbitration-as-the-more-neutral-forum/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR072618 Lessons from the Emerald City: Does Seattle’s New Domestic Worker Standards Board Indicate a Move Towards European Industry-Wide Collective Bargaining? http://www.seyfarth.com:80/publications/LR072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Seattle has long been at the forefront of progressive labor policies. Take, for example, its 2014 Minimum Wage Ordinance, which made it the first major city in the nation to increase wages to $15 an hour. Since then, dozens of other cities have followed suit. The same story is true of Seattle&rsquo;s Paid Sick and Safe Time Ordinance, which when passed in 2012, made Seattle only the third city in the nation to implement protected sick leave. Paid sick leave has spread since that time to more than nine states and countless local municipalities.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/07/26/lessons-from-the-emerald-city/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/febloglaw072618 Kathleen Cahill Slaught, Peter Varney and Michael Stevens' blog post referenced in Law.com http://www.seyfarth.com:80/news/febloglaw072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Kathleen Cahill Slaught, Peter Varney and Michael Stevens&#39; blog post was referenced in a July 26 story from Law.com, &quot;Labor of Law: &#39;Dynamex&#39; Fallout,&quot; on how courts and companies are confronting the big California worker-classification decision. In the blog post, the authors write that more employers across the country are looking at expanding their benefits packages and policies to meet the demands of the gig economy.</p> http://www.seyfarth.com:80/news/fritznewsy072618 Kevin Fritz interviewed by Newsy http://www.seyfarth.com:80/news/fritznewsy072618 Thu, 26 Jul 2018 00:00:00 -0400 <p> Kevin Fritz was interviewed July 26th by Newsy, &quot;Why Plastic Straw Bans Aren&#39;t Inclusive,&quot; on why plastic straws matter to people who have disabilities. Fritz said that the Americans with Disabilities Act has provisions that do require businesses to make reasonable modifications to their certain, normal practices when necessary, so that people with disabilities have access to those things. He said that no court has specifically addressed whether a business has to provide plastic straws. You can watch the <a href="https://www.newsy.com/stories/plastic-straws-are-vital-for-some-people-with-disabilities/">full interview here</a>.</p> http://www.seyfarth.com:80/news/hornickcostar072518 Blake Hornick quoted in CoStar http://www.seyfarth.com:80/news/hornickcostar072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Blake Hornick was quoted in a July 25 story from CoStar. While nearly all IPOs have been affected by stock market volatility in recent quarters, new offerings by real estate investment trusts have been hurt by the perception that long-term interest rates will rise as demand declines for office and retail space, said Hornick. You can read the <a href="http://www.costar.com/News/Article/Cushman-IPO-Pits-Debt-Against-Market-Stability/203096">full article here</a>.</p> http://www.seyfarth.com:80/news/casciarilaw360072518 Mark Casciari quoted in Law360 http://www.seyfarth.com:80/news/casciarilaw360072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Mark Casciari was quoted in a July 25 story from Law360, &quot;9th Circ. Likely Won&#39;t Have Last Word On ERISA Arbitration,&quot; on how the U.S. Supreme Court could eventually take up the issue of whether ERISA 502(a)(2) claims can be forced into arbitration. Casciari said that this issue is not going to go away. It&#39;s going to be addressed by other circuits. And the other circuits could go the other way on it.</p> http://www.seyfarth.com:80/publications/BIO072518 Tribal Immunity Cannot Be Asserted to Escape IPR Proceedings http://www.seyfarth.com:80/publications/BIO072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Indian tribes ability to shield patents from review at the United States Patent and Trademark Office&rsquo;s (&ldquo;USPTO&rdquo;) Patent Trial and Appeal Board (&ldquo;PTAB&rdquo;) took another blow at the Federal Circuit. The Federal Circuit in a precedential decision, affirming the decision of the PTAB, held that tribal sovereign immunity cannot be asserted in inter partes review (&ldquo;IPR&rdquo;) proceedings before the PTAB.[1]<br /> <br /> <a href="https://www.bioloquitur.com/tribal-immunity-cannot-asserted-escape-ipr-proceedings/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC072518 Court Rejects Individual Pattern and Practice Claim and Enforces Arbitration Agreement in Discrimination Case http://www.seyfarth.com:80/publications/WC072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In the midst of a legal landscape that is seemingly pro-arbitration, employers should recognize that employees still have a few strategies to oppose arbitration or invalidate an arbitration agreement. The recent ruling of the U.S. District Court for the Northern District of California in Buchanan, et. al. v. Tata Consultancy Services, Ltd., 15-CV-01696 (N.D. Cal. Jul. 23, 2018), is a good reminder for employers that arbitration agreements are still susceptible to challenges like waiver and unconscionability. Employers faced with class actions involving a mix of class members who signed and did not sign arbitration agreements should be careful to preserve their right to enforce the agreements.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/court-rejects-individual-pattern-and-practice-claim-and-enforces-arbitration-agreement-in-discrimination-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE072518 Different Strokes for Different Folks: The Feasibility of Implementing Different Benefits Plans for Different Categories of Employees (Part I) http://www.seyfarth.com:80/publications/FE072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> In light of the growth of the gig economy, many employers are increasing the number of categories of their employees and associates. As the categories increase, so too has employers&rsquo; interest in being able to offer different benefits packages to different categories of employees.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/7/25/different-strokes-for-different-folks-the-feasibility-of-implementing-different-benefits-plans-for-different-categories-of-employees-part-i">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS072518 Webinar Recap! Protecting Trade Secrets from Cyber and Other Threats http://www.seyfarth.com:80/publications/TS072518 Wed, 25 Jul 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s fourth installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Robert Milligan and Scott Atkinson, along with Center for Responsible Enterprise and Trade CEO Pamela Passman, focused on identifying the greatest threats to trade secrets, implementing an effective trade secret protection program, and enacting effective risk reduction processes across an organization.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/cybersecurity/webinar-recap-protecting-trade-secrets-from-cyber-and-other-threats/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FutureEnterprise072418 The Sky’s the Limit: Possibilities and Pitfalls of Drone Use in Real Estate http://www.seyfarth.com:80/publications/FutureEnterprise072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Though drones have become more and more ubiquitous in hobbyist circles over the past decade, interest in the small, unmanned aircraft has only recently begun to spread into the commercial realm. Recent news reports speculating as to the future use of drones by leading retailers, such as Amazon and Walmart, have served to increase public curiosity regarding the future of these machines in the commercial sector. Although recent media interest revolves largely around the potential for drone delivery by large retailers, drone use could be integrated into many other aspects of real estate as well, with possible applications in marketing, surveying, property management and construction, among other areas. Despite the increasing affordability and availability of drones, however, property owners, business owners and other real estate professionals should be aware of the potential complications and limitations that may arise in incorporating drone use into any business model.</p> <p> <a href="https://www.futureenterprise.com/blog/2018/7/24/the-skys-the-limit-possibilities-and-pitfalls-of-drone-use-in-real-estate">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC072418 California Court Dismisses Deficient Disability Claims In EEOC-Initiated Systemic Action http://www.seyfarth.com:80/publications/WC072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an EEOC-initiated systemic lawsuit alleging that a senior living and nursing facility operator violated the Americans With Disabilities Act (&ldquo;ADA&rdquo;) by failing to offer employees light duty as a reasonable accommodation and ignoring its obligation to engage in an interactive process, a federal district court in California recently granted in part the employer&rsquo;s motion to dismiss the claims of eight specifically identified claimants, holding that the EEOC failed to sufficiently allege that these individuals had a disability or could perform essential job functions.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/california-court-dismisses-deficient-disability-claims-in-eeoc-initiated-systemic-action/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM072418 ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow http://www.seyfarth.com:80/publications/IMM072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> This blog was first published as a Seyfarth Shaw Management Alert on July 17, 2018<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/ice-i-9-audits-on-the-rise-act-today-to-prevent-issues-tomorrow/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wortmanimshrm072418 Jeffrey Wortman & Christopher Im authored an article in SHRM http://www.seyfarth.com:80/publications/wortmanimshrm072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Jeffrey Wortman &amp; Christopher Im authored a July 24 article in SHRM, &quot;California Attempts to Clarify Salary History Ban.&quot; On July 18, California Gov. Jerry Brown signed new legislation (A.B. 2282) to clarify the state&#39;s law that prohibits inquiries into an applicant&#39;s salary history. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/talent-acquisition/Pages/California-Attempts-Clarify-Salary-History-Ban.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL072418 The Fourth Circuit Reiterates that Employers’ Exposure to Vicarious Liability is Not Boundless http://www.seyfarth.com:80/publications/EL072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit has issued a reminder of the boundaries of employer liability for defamation where there is no nexus between the employee&rsquo;s offensive speech and the individual&rsquo;s workplace responsibilities.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/the-fourth-circuit-reiterates-that-employers-exposure-to-vicarious-liability-is-not-boundless/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM072418-LE Shifty Business VII: NYC Releases Temporary Schedule Change Law Model Notice and FAQs http://www.seyfarth.com:80/publications/OMM072418-LE Tue, 24 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The New York City Department of Consumer Affairs has released a model Notice of Employee Right and Frequently Asked Questions regarding its new Temporary Schedule Change Law that went into effect last week. Employers should take steps immediately to post the Notice in a conspicuous place in their New York City workplaces.&nbsp; &nbsp;</em></p> <p> On July 18, 2018, New York City&rsquo;s Temporary Schedule Change Law (&ldquo;TSCL&rdquo;) went into effect. As a reminder, the TSCL requires New York City employers to grant eligible employees two temporary schedule changes per year, of up to one business day each, for certain personal events. The TSCL applies to most employers with New York City employees.</p> <p> The New York City Department of Consumer Affairs (&ldquo;DCA&rdquo;) recently published a <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/TemporaryScheduleChange-Notice-English.pdf">model Notice of Employee Right</a> (the &ldquo;Notice&rdquo;), titled &ldquo;You Have a Right to Temporary Changes to Your Work Schedule.&rdquo; Employers must conspicuously post the Notice at their New York City workplaces. The Notice must be posted in English and any language that is the primary language of at least five percent of employees at that workplace, assuming the DCA has made the Notice available in that language. At the time of this publication, only the English version of the Notice has been released.</p> <p> In addition to the Notice, the DCA also recently published <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-TemporaryScheduleChangeLaw.pdf">FAQs</a> regarding the TSCL. Among other points, the FAQs note that employers must post the Notice &ldquo;where employees can easily see it at each NYC workplace&rdquo; and that the Notice &ldquo;should be printed on and scaled to fill an 11 x 17 paper.&rdquo;</p> <p> By way of background, qualifying personal events that entitle employees to leave under the TSCL include:</p> <ul> <li> providing care for a minor child or other individual under the employee&rsquo;s care;</li> <li> attending legal proceedings for subsistence benefits to which the employee, the employee&rsquo;s family member, or the employee&rsquo;s care recipient is a party; and</li> <li> any circumstance that would qualify for use of safe or sick time under the recently-amended Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;).&nbsp; (For more information on the recent changes to ESSTA, see our <a href="http://www.seyfarth.com/publications/MA050718-LE">prior alert</a>.)</li> </ul> <p> The TSCL provides nonexclusive examples of temporary schedule changes, which include:</p> <ul> <li> using paid time off;</li> <li> working remotely;</li> <li> changing work hours;</li> <li> swapping shifts; or</li> <li> using short-term unpaid leave.</li> </ul> <p> For more information on the TSCL, including the process by which employees request a schedule change and employers respond, employee eligibility standards, and the interplay between the TSCL and ESSTA, see our prior alerts <a href="http://www.seyfarth.com/publications/MA070518-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA011918-LE">here</a>.</p> http://www.seyfarth.com:80/news/vufoxbusiness072418 Minh Vu interviewed on Fox Business http://www.seyfarth.com:80/news/vufoxbusiness072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Minh Vu was interviewed July 24th on Fox Business&#39; Varney &amp; Co., &quot;Growing number of lawsuits over ADA website accessibility.&quot; Vu discussed the rising number of lawsuits over websites that are not compliant with the Americans with Disabilities Act. You can watch the <a href="http://video.foxbusiness.com/v/5813160210001/?#sp=show-clips">full interview here</a>.</p> http://www.seyfarth.com:80/news/vunylj072418 Minh Vu quoted in the New York Law Journal http://www.seyfarth.com:80/news/vunylj072418 Tue, 24 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 24 story from the New York Law Journal, &quot;NY&#39;s Advances in ADA Claims Helps Propel National Trend in Website Access Suits,&quot; on a recent ADA Title III analysis from Seyfarth. Vu said that ADA Title III regulations impose many obligations on businesses to open their doors to the public, and a lot of those obligations aren&rsquo;t always crystal clear. She said the ambiguity creates litigation.</p> http://www.seyfarth.com:80/news/yslasla072318 Labor & Employment Litigator John Yslas Joins Seyfarth in Los Angeles http://www.seyfarth.com:80/news/yslasla072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> LOS ANGELES (July 23, 2018) -- Seyfarth Shaw LLP announced today the arrival of partner John Yslas to the Labor &amp; Employment department in Los Angeles. Yslas joins from Norton Rose Fulbright, where he was a partner in Los Angeles.</p> <p> Yslas concentrates his practice on wage and hour and consumer class actions in both state and federal court. In addition, he regularly represents companies in single plaintiff employment matters. Yslas also defends and advises corporations in the areas of wage and hour compliance, breach of contract, commercial contracts disputes, discrimination, breach of fiduciary duty, harassment, misappropriation of trade secrets, retaliation, wrongful termination, and unfair business practices.</p> <p> &ldquo;John is an outstanding lawyer with a tremendous track record of success in wage and hour litigation,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;Equipped with the firm&rsquo;s national platform, we are excited to see John take his dynamic practice to the next level.&rdquo;</p> <p> In addition to his renown labor and employment background, Yslas also has a robust litigation practice which comprises extensive pre-trial, jury trial, arbitration, and appellate experience. As a trial attorney, he has successfully defended multi-million dollar commercial and unfair business claims and beaten class certification on multiple occasions involving a broad range of employment claims.</p> <p> &ldquo;A well-known presence in California, John is a great asset to our wage and hour team and the many industries we serve on the West Coast,&rdquo; said Aaron Lubeley, co-managing partner of Seyfarth&rsquo;s Los Angeles office. &ldquo;He is an excellent lawyer and a great fit for the office, the practice and the firm.&rdquo;</p> <p> &ldquo;John is an ideal addition to our Los Angeles office,&rdquo; said Richard Mendelson, co-managing partner of Seyfarth&rsquo;s Los Angeles office. &ldquo;Besides being a great lawyer, he is also committed to several organizations, and maintains a visible role in the legal community, as well as the Los Angeles business community.&rdquo;</p> <p> Yslas currently serves on the board of directors of the Mexican American Bar Foundation and the California Minority Counsel Program.</p> <p> &ldquo;John has dedicated his time and talent to help promote diversity in the legal profession. We look forward to his continued leadership with inclusion focused organizations,&rdquo; said Maechtlen.</p> <p> Yslas received his J.D. from the University of California, Los Angeles and earned his B.A., <em>with high honors</em>, from the University of California, Santa Barbara.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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 Communications, (312) 460-6401, <a href="http://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/vuwsj072318 Minh Vu quoted in the Wall Street Journal http://www.seyfarth.com:80/news/vuwsj072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 23 story from the Wall Street Journal, &quot;The Morning Risk Report: Record Pace for Website Accessibility Lawsuits.&quot; Lawsuits accusing companies of failing to make their websites accessible to people with disabilities are being filed at a record pace this year, according to an analysis from Seyfarth. Vu said that more plaintiffs&rsquo; attorneys are getting in on the action, knowing they are likely to get quick settlements because defending these cases can be expensive and uncertain. You can read the <a href="http://createsend.com/t/d-5967908D0BFA14152540EF23F30FEDED">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360072318 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a July 23 story from Law360, &quot;3 Things To Watch As NLRB Member Pearce&rsquo;s Term Wraps Up.&quot; Babson noted that the wave of cases before a member leaves is known in NLRB parlance as a &ldquo;rush.&rdquo; He said that a board set to lose its majority tends to send out more cases during in a rush.</p> http://www.seyfarth.com:80/news/livingstonmhl072318 Brad Livingston quoted in Material Handling & Logistics http://www.seyfarth.com:80/news/livingstonmhl072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Brad Livingston was quoted in a July 23 story from Material Handling &amp; Logistics, &quot;DOL Withdraws Its &lsquo;Persuader&rsquo; Rule.&quot; Livingston said that employers and consultants believed the reporting requirement would have a chilling effect on employers&rsquo; willingness to seek legal advice during union organizing campaigns, a time when obtaining such advice is critical. You can read the <a href="http://www.mhlnews.com/labor-management/dol-withdraws-its-persuader-rule">full article here</a>.</p> http://www.seyfarth.com:80/news/oslickignites072318 Jacob Oslick quoted in Ignites http://www.seyfarth.com:80/news/oslickignites072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Jacob Oslick was quoted in a July 23 story from Ignites, &quot;&quot;Getting Political: Shops Keep an Eye on Staffers&rsquo; Campaign Activities,&quot; on how off-hours politicking has landed several fund professionals in the hot seat in recent weeks. Oslick recommends that employers not take action against employees for their political beliefs and activities outside of the office.</p> http://www.seyfarth.com:80/publications/colemanwadsworthlaw360072318 Jesse Coleman and Brian Wadsworth authored an article in Law360 http://www.seyfarth.com:80/publications/colemanwadsworthlaw360072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> Jesse Coleman and Brian Wadsworth authored a July 23 article in Law360, &quot;How Texas&#39; Anti-SLAPP Law Applies To Medical Peer Review.&quot; The article discusses the potential impact the TCPA may have on medical peer review cases in the future.</p> http://www.seyfarth.com:80/publications/TS072318 Seyfarth Shaw Attorneys to Present Financial Services and Trade Secret Audit Webinars http://www.seyfarth.com:80/publications/TS072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> On Wednesday, July 25, Seyfarth Shaw partners J. Scott Humphrey and Justin K. Beyer are presenting webinars for myLawCLE.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/seyfarth-shaw-attorneys-to-present-financial-services-and-trade-secret-audit-webinars/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM072318 Seyfarth Shaw Policy Matters Newsletter – July 19, 2018 http://www.seyfarth.com:80/publications/IMM072318 Mon, 23 Jul 2018 00:00:00 -0400 <p> President Trump Signs Executive Order on Workforce Training. Earlier today, President Trump signed an executive order which aims to bolster vocational training, creates a national council for American workers, and establishes a workforce policy advisory board in a push to increase the number of skilled workers in the U.S. Alongside business executives, the President introduced the &ldquo;Pledge to America&rsquo;s Workers,&rdquo; which commits employers to expanding on-the-job training and apprenticeships. The administration expects the pledge to lead to at least 500,000 new career opportunities for students and workers. Earlier this week, Ivanka Trump penned an op-ed in support of the new initiative, declaring that the administration hopes to &ldquo;create a workforce culture that fosters and prioritizes life-long learning.&rdquo;<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-19-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/vusfss072218 Minh Vu quoted in the South Florida Sun-Sentinel http://www.seyfarth.com:80/news/vusfss072218 Sun, 22 Jul 2018 00:00:00 -0400 <p> Minh Vu quoted in a July 22 story from the South Florida Sun-Sentinel, &quot;Most business websites are sitting ducks for ADA suits, experts say.&quot; While physical locations are still tested and sued, a recent increase in federal litigation based on ADA violation claims in Florida and elsewhere has been fueled by website-based challenges, according to Seyfarth&rsquo;s ADA Title III blog. Discussing the landmark Winn-Dixie ruling, Vu said that the trial led to the first evidence-based ruling that a &ldquo;public accommodation&rdquo; violated the ADA by having an inaccessible website. You can read the <a href="http://www.sun-sentinel.com/business/fl-bz-website-accessibility-status-report-20180719-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/vulaw360072018 Minh Vu quoted in Law360 http://www.seyfarth.com:80/news/vulaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Minh Vu was quoted in a July 20 story from Law360, &quot;How A Fla. Ruling Ignited A Surge In Online ADA Suits,&quot; on how the Winn-Dixie ruling has had a significant influence on the landscape of cases claiming ADA violations online. Vu said that ADA lawsuits have always presented defendants with the challenge that fighting them tends to cost more than quickly resolving the alleged violation.</p> http://www.seyfarth.com:80/news/boutroslaw360072018 Andrew Boutros quoted in Law360 http://www.seyfarth.com:80/news/boutroslaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in a July 20 story from Law360, &quot;The Many Defenses Of Paul Manafort,&quot; on finding ambiguity in the documents. Boutros said follow the documents, follow the money. Boutros expected prosecutors to largely let the documents speak for themselves even as Mueller&rsquo;s team puts witnesses on the stand.</p> http://www.seyfarth.com:80/news/maatmanlaw360072018 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 20 story from Law360, &quot;Zero-Tolerance In #MeToo Era May Be Perilous For Employers.&quot; Maatman said that the decision for businesses to inch toward zero-tolerance policies is a nuanced one that depends on multiple factors and that may make sense for some businesses but not others.</p> http://www.seyfarth.com:80/publications/WSE072018 History Comes Back to Bite Employer — Criminal Conviction and $500,000 Fine Upheld in Eighth Circuit for Violating Fall Protection Regulations http://www.seyfarth.com:80/publications/WSE072018 Fri, 20 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A contractor&rsquo;s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment. Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. &sect; 1926.760(a)(l) and (b)(l)), and causing the employee&rsquo;s death. The Eighth Circuit upheld the conviction.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/criminal-litigation/history-comes-back-to-bite-employer-criminal-conviction-and-500000-fine-upheld-in-eighth-circuit-for-violating-fall-protection-regulations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP071918 California Attempts to Clarify Salary History Ban Legislation http://www.seyfarth.com:80/publications/CP071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> We are pleased to cross-post with our sister blog, Pay Equity Microblog, the following important and timely blog post regarding the latest in California pay equity legislation.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/19/california-attempts-to-clarify-salary-history-ban-legislation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL071918 Recent Decision Clarifies the Legal Framework for EEOC’s Pattern-Or-Practice Lawsuits under Section 706 http://www.seyfarth.com:80/publications/EL071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In recent years, a body of law has developed surrounding pattern or practice lawsuits brought by the EEOC. This has helped to clarify, for example, when the 300-day filing cutoff applies, or whether the claimant is eligible for damages as opposed to just equitable relief. In a recent decision out of the Western District of Oklahoma, yet another court has expanded the breadth of knowledge surrounding EEOC pattern or practice lawsuits, explaining that the continuing violation exception can toll Section 706&rsquo;s timely filing requirement.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/recent-decision-clarifies-the-legal-framework-for-eeocs-pattern-or-practice-lawsuits-under-section-706/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE071918 The Swinging Pendulum of the Ideal Office Space http://www.seyfarth.com:80/publications/FE071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> There have been many shifts in workspace environments, all touting new-found achievement in employee productivity and happiness. Previously, the metric used to measure the top offices was the location and the view; but now, employers pressed to find new ways to retain the best talent are placing increased importance on alternative workspaces.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/7/19/the-swinging-pendulum-of-the-ideal-office-space">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT071918 The Week in Weed: July 20, 2018 http://www.seyfarth.com:80/publications/TBT071918 Thu, 19 Jul 2018 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="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-20-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT071918a Employer Drug-Testing in Smoklahoma http://www.seyfarth.com:80/publications/TBT071918a Thu, 19 Jul 2018 00:00:00 -0400 <p> As previously reported, Oklahoma&rsquo;s medical marijuana laws dictate that an employer cannot discriminate against a person in hiring or termination, or otherwise penalize a person due to the person&rsquo;s status as a medical marijuana holder or as a result of a positive drug test. So now that Oklahoma has gone green and created such limitations on employers, how will that impact employer drug testing policies?<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/07/employer-drug-testing-in-smoklahoma/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH071918 Fasten Your Seat Belts: California Revisiting Oracle in Airline Cases http://www.seyfarth.com:80/publications/WH071918 Thu, 19 Jul 2018 00:00:00 -0400 <p> Seyfarth Summary: On July 12, 2018, the California Supreme Court agreed to address questions posed by the Ninth Circuit about whether California Labor Code provisions apply to an out-of-state employer whose employees work part of their time in California. Nationwide employers with employees jetting in to work temporarily in California need to return their seats to an upright position and follow this developing story.<br /> <br /> <a href="https://www.wagehourlitigation.com/california-labor-code/fasten-your-seat-belts/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR071818 DOL Rescinds Its Persuader Rule http://www.seyfarth.com:80/publications/LR071818 Wed, 18 Jul 2018 00:00:00 -0400 <p> On July 17, 2018, the DOL rescinded its 2016 &ldquo;persuader rule&rdquo; &mdash; a controversial reinterpretation of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA) that would have required employers and their consultants (including lawyers) to report their relationships and the fees paid related to persuading employees &ldquo;to exercise or not to exercise&hellip; the right to organize and bargain collectively&hellip; .&rdquo;<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/07/18/dol-rescinds-its-persuader-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA071718-LE ICE I-9 Audits on the Rise: Act Today to Prevent Issues Tomorrow http://www.seyfarth.com:80/publications/MA071718-LE Tue, 17 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Immigration and Customs Enforcement (ICE) increases worksite enforcement by more than 50%. &nbsp;What should employers understand to prevent fines and minimize reputational risk?</em></p> <p> Since the start of fiscal year 2018, ICE has increased worksite enforcement actions by over 50%.&nbsp; Compared with fiscal year 2017, administrative arrests have increased nearly 400% while worksite investigations have risen from 1,716 to 3,510&mdash;with the last quarter of the fiscal year remaining for these numbers to increase.<a href="#_ftn1" name="_ftnref1" title=""><strong>[1]</strong></a>&nbsp; ICE appears to be making good on the remarks made by leadership to increase worksite enforcement &ldquo;four to five times.&rdquo;</p> <p> <strong>By the Numbers</strong></p> <p> ICE Homeland Security Investigations&rsquo; (HSI) numbers speak for themselves: 3,510 worksite investigations, 2,282 I-9 audits, and 594 criminal and 610 administrative worksite-related arrests.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; For comparison, in fiscal year 2017, HSI opened less than half the number of worksite investigations, almost 1000 less I-9 audits, and far fewer criminal and administrative arrests.<a href="#_ftn3" name="_ftnref3" title="">[3]</a>&nbsp; Even with lower numbers in fiscal year 2017, the cost to companies was still high: $97.6 million in forfeitures, fines, and restitution with a further $7.8 million in civil fines.&nbsp; While the fiscal year 2018 number of enforcement actions may not rise exactly by &ldquo;four to five times,&rdquo; companies should not ignore the possibility of being a target.</p> <p> <strong>Why the Rise?</strong></p> <p> ICE says increased worksite enforcement protects jobs for U.S. citizens and other lawfully employed workers.&nbsp; With the Administration&rsquo;s &ldquo;Buy American, Hire American&rdquo; (BAHA) Executive Order and the White House&rsquo;s focus on immigration, ICE views its actions as fulfilling its obligations under BAHA.&nbsp; Although ICE has not experienced the increased funding some expected (at least, not yet), the Agency has moved resources from other areas to cover the rising expense for worksite investigations.&nbsp; While this ramped up enforcement may appear unsustainable, ICE clearly views it with renewed vigor and as a central pillar of its mission.&nbsp; California, in particular, appears to be bearing the brunt of the initial wave of ICE/HSI&rsquo;s actions with 122 Notices of Inspection (NOIs) issued in the Los Angeles area alone over a five day-period and a further 77 NOIs served throughout Northern California, including San Francisco, San Jose, and Sacramento.</p> <p> <strong>What&rsquo;s an NOI? </strong></p> <p> An NOI initiates a government administrative inspection of a company&rsquo;s Forms I-9. &nbsp;NOIs are considered administrative tools used to assist in criminal investigations.&nbsp; Much like the prior administration, current HSI leadership considers civil administrative audits to be just one of many tools ICE can use to reduce the demand for unauthorized unemployment and protect opportunities for U.S. workers. &nbsp;The current enforcement strategy also includes the expanded use of civil penalties, employer audits, and debarment.</p> <p> <strong>More to Come</strong></p> <p> California isn&rsquo;t alone in experiencing this spike in NOIs.&nbsp; ICE has made its way East and has served NOIs throughout the Midwest and East Coast.&nbsp; NOIs come in all shapes and sizes with targets including companies that conduct business in areas designated as critical infrastructure, including ports of entry and construction projects, as well as food manufacturing, logistics, media, manufacturing, and healthcare.&nbsp; No one is immune.</p> <p> Not only this, but ICE has publicly stated that it plans a summer swell of NOIs with the number of audits exceeding 5,000 by the end of September 2018.&nbsp; In comparison, ICE I-9 audits previously peaked at around 3,100 in 2013.&nbsp; Additionally, the Agency has dusted off a plan from its past, seeking to further develop an initiative to centralize employer audits in one location&mdash;the Employer Compliance Inspection Center, located near ICE&rsquo;s Washington, DC headquarters.&nbsp; Coupled with outside technology being developed to electronically scan documents and review I-9s utilizing artificial intelligence, the Agency hopes to place hundreds of auditors and a team of attorneys at the Center, allowing ICE to routinely audit 10,000 to 15,000 companies annually.</p> <p> The Acting Executive Associate Director for HSI, Derek N. Benner, has said that he views HSI and the audits it undertakes as akin to the work of the IRS: Companies should expect NOIs to become more routine and, in a sense, as another cost of doing business.&nbsp; It comes as no surprise, then, that we are seeing a shift back to companies reprioritizing immigration compliance and considering outside and possibly internal audits (conducted by trained subject-matter experts).</p> <p> Companies should not only prepare for a NOI but also work to prevent noncompliance. &nbsp;Left unsaid by ICE, in this time of heightened immigration scrutiny, the optics of a worksite enforcement action, or being named and shamed by HSI, could cost more than any potential fine.</p> <p> <strong>What Can Employers Do?</strong></p> <p> <strong>1. Internal Assessment, I-9 Audits and Remediation</strong>. &nbsp;The Form I-9 is said to be the most complicated 3-page form in America. &nbsp;Companies should consider an internal I-9 audit under the direction of experienced counsel. &nbsp;Before deciding to take a full audit, however, companies should consider an internal assessment of policies, processes, and a sampling of I-9s.&nbsp; Such an assessment may be more appropriate and cost effective.&nbsp; Then, decide if a full I-9 review or broader cross section is necessary.&nbsp; Perhaps even more important than the audit itself is the remediation of the Forms I-9 after identifying paperwork violations, missing I-9s, expired work authorizations, fraudulent documents, and other issues. &nbsp;Acting on the results is key, and the more serious issues should be addressed as quickly as possible. &nbsp;Being proactive will reduce fines and penalties and also establish a good faith defense in the event of an ICE audit.</p> <p> <strong>2. Review/Establish Policies and Procedures</strong>. &nbsp;Management cannot turn a blind eye to what is happening in the field, and should insist upon compliant practices. &nbsp;Don&rsquo;t Ask, Don&rsquo;t Tell-based immigration policies are something ICE appears to be interested in targeting. &nbsp;Companies should look at pre-hire applications, I-9 retention schedules, photocopying policies, Social Security number-related &ldquo;mismatch&rdquo; issues, reverification, and other processes to ensure compliance with the law and, from an anti-discrimination perspective, consistency.&nbsp;&nbsp;</p> <p> <strong>3. Be Proactive</strong>. &nbsp;Do not ignore government notifications including Affordable Care Act health insurance notices and other unconventional Social Security no-match notifications (such as unemployment claims of employees not working at your company) or potential identity theft issues.&nbsp; Do not ignore existing liability on the books, including individuals whose I-9s indicate that they are unauthorized to work.&nbsp; Consider the use of E-Verify and other government recommended best practices. &nbsp;Review IMAGE best practices(https://www.ice.gov/image) and consider attending an HSI IMAGE training.&nbsp;</p> <p> <strong>4. Train, Train, Train. &nbsp;</strong>While tight policies and procedures can reduce errors, the churn of HR personnel, combined with the new Form I-9 and updated USCIS guidance, make ongoing reinforced training, job aids, and in-house subject matter expertise critical. &nbsp;Aside from imparting technical knowledge, trainings should highlight the importance of the Form I-9 and the need to take the process seriously.&nbsp; Review free government related online resources and organize an accessible library for your I-9 Administrators and keep that space up to date.&nbsp;</p> <p> <strong>5. Prepare for a Government Visit</strong><strong>. &nbsp;</strong>We have written in depth about how a company may prepare for an eventual knock at the door by the government. &nbsp;Regardless of industry or company size, this is an event for which every company should have a plan. &nbsp;Based on recent trends, companies that have had ICE over in the past 5 years should be ready for another visit as follow-up actions for companies dinged in the past are expected.</p> <p> This is the time to pay attention and invest resources&mdash;it is crucial that companies prioritize compliance today to prevent problems tomorrow.&nbsp;</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> <em>See</em> <a href="https://www.ice.gov/news/releases/ice-worksite-enforcement-investigations-already-double-over-last-year">https://www.ice.gov/news/releases/ice-worksite-enforcement-investigations-already-double-over-last-year</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> <em>Id.</em></p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> <em>Id.</em></p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL071718 The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time http://www.seyfarth.com:80/publications/EL071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court&rsquo;s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/the-eleventh-circuit-affirmed-it-was-not-a-crime-to-not-compensate-for-dressing-and-drive-time/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC071718 Seventh Circuit Allows Review Of Potential Payments Made To Class Members Objecting To Class Settlement http://www.seyfarth.com:80/publications/WC071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In Pearson v. Target Corp., No. 17-2275, 2018 U.S. App. LEXIS 17337 (7th Cir. June 26, 2018), the U.S. Court of Appeals for the Seventh Circuit took aim at self-serving class settlement objectors and ordered the district court to review whether certain objectors received compensation in exchange for withdrawing objections. While not an employment case, the decision has significant implications for employers involved in class action litigation because it should discourage objectors from delaying class settlement approval by bringing meritless objections solely to receive payment in exchange for withdrawing objections.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/07/seventh-circuit-allows-review-of-potential-payments-made-to-class-members-objecting-to-class-settlement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071718 Can Attorneys Be Liable For Directing Clients to Breach Non-Competes? One Federal Court Says Maybe http://www.seyfarth.com:80/publications/TS071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> In a classic example of bad facts creating bad law, a federal judge in Kentucky recently denied a motion to dismiss claims brought against attorneys who allegedly counseled employees to breach a non-compete agreement and assisted in setting up a competing business. In Pinnacle Surety Services, Inc. v. Manion Stigger, LLP, the plaintiff sued its former attorneys and their respective law firms, alleging among other things that the attorneys tortiously inferred with a contractual relationship and aided and abetted Pinnacle&rsquo;s former employees&rsquo; breaches of fiduciary duty, by encouraging them to violate their non-compete agreements and helping them set up a competing surety bond company.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/can-attorneys-be-liable-for-directing-clients-to-breach-non-competes-one-federal-court-says-maybe/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA071718 Website Access and Other ADA Title III Lawsuits Hit Record Numbers http://www.seyfarth.com:80/publications/ADA071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: If ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018&rsquo;s total will exceed 2017 by 30%, fueled largely by website accessibility lawsuit continued growth.<br /> <br /> <a href="https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-iii-lawsuits-hit-record-numbers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/varneygabar071718 Seyfarth's Peter Varney Appointed Chair of the State Bar of Georgia's Employee Benefits Law Section http://www.seyfarth.com:80/news/varneygabar071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Peter M. Varney, counsel in the firm&rsquo;s Employee Benefits &amp; Executive Compensation department in Atlanta, was appointed chair of the Employee Benefits Law Section of the State Bar of Georgia for the 2018-2019 association year.</p> <p> The State Bar of Georgia&rsquo;s Employee Benefits Law Section seeks to promote knowledge and understanding of laws regulating employer sponsored benefit plans through continuing legal education opportunities in the field of executive compensation, pensions, health and welfare and ERISA litigation; establish a liaison with the Department of Labor, Internal Revenue Service and employee benefit practitioners; and develop collegiality among practitioners within the employee benefits area of practice. To learn more, <a href="https://www.gabar.org/index.cfm">click here</a>.</p> <p> Varney advises plan sponsors on the design and operation of employee benefit plans, including 401(k) plans, flexible benefit plans, nonqualified deferred compensation plans, and severance plans. He creates and drafts retirement, savings, and welfare plan documents, summary plan descriptions, plan participant communications, and plan administrative forms to ensure compliance with the Internal Revenue Code and ERISA. Varney&rsquo;s practice regularly involves counseling clients on the Patient Protection and Affordable Care Act (Health Care Reform), HIPAA privacy and security rules, wellness programs, self-funded medical plans, and COBRA administration.</p> http://www.seyfarth.com:80/news/paparellibloomberglaw071718 Angelo Paparelli quoted in Bloomberg Law http://www.seyfarth.com:80/news/paparellibloomberglaw071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 17 story from Bloomberg Law, &quot;Judge Gives Calif. Employers &lsquo;Breathing Room&rsquo; on Immigration,&quot; on how a recent court ruling blocks California law imposing fines on companies for certain compliance with federal immigration enforcement. Paparelli said that California&rsquo;s Immigrant Worker Protection Act (A.B. 450) created a lot of confusion for employers trying to comply with both state and federal authorities.</p> http://www.seyfarth.com:80/news/maatmanbi071718 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi071718 Tue, 17 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 17 story from Business Insurance, &quot;High court nominee seen as mostly employer-friendly vote.&quot; Maatman said that when it comes to workplace issues, class action issues, the expansive interpretation of workplace rights, Kavanaugh will be a judge who falls more on the Scalia side of the line than on the Judge Kennedy side of the line and is probably a more reliable vote for business interests than Justice Kennedy might have been in the past. You can read the <a href="https://www.businessinsurance.com/article/20180717/NEWS06/912322692/High-court-nominee-Brett-Kavanaugh-seen-as-mostly-employer-friendly-vote">full article here</a>.</p> http://www.seyfarth.com:80/news/fritzlpt071618 Kevin Fritz quoted in Law Practice Today http://www.seyfarth.com:80/news/fritzlpt071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Kevin Fritz was quoted in a July 16 panel discussion in Law Practice Today, &quot;In Conversation with Attorneys with Disabilities.&quot; Fritz discussed what it is like to be an attorney with a disability, what hurdles he faces, and the accommodations and strategies he employs to be successful. You can read the <a href="http://www.lawpracticetoday.org/article/attorneys-disabilities/">full conversation here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360071618 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 16 story from Law360, &quot;USCIS Memos Signal Sea Change For Business Immigration,&quot; on how two recent U.S. Citizenship and Immigration Services memos may doom foreign professionals seeking to work in the U.S. by allowing immigration officials to deny outright visa petitions they deem frivolous and then immediately place rejected applicants in deportation proceedings. Paparelli said that he anticipates legal challenges to the memos that accuse USCIS of shirking the Administrative Procedure Act&rsquo;s requirements that the agency provide notice and the opportunity for the public to comment on the policy changes.</p> http://www.seyfarth.com:80/publications/WSE071618 OSHA Issues New Publications For Safety Professionals http://www.seyfarth.com:80/publications/WSE071618 Mon, 16 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA recently released new publications directed towards safety professionals and managers. The publications offer guidance on what to look for during worksite safety check walk-arounds. In addition, OSHA suggests that the employer&rsquo;s completed 300 logs may be used by the employer as a guide to improving worksite safety.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-issues-new-publications-for-safety-professionals/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM071318 Seyfarth Shaw Policy Matters Newsletter – July 12, 2018 http://www.seyfarth.com:80/publications/IMM071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Trump Taps Brett Kavanaugh for Supreme Court Vacancy. On Monday evening, President Trump nominated D.C. Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the Supreme Court. Judge Kavanaugh is considered a reliable member of the Republican legal establishment with a solid record on issues from free speech, to religious liberty, to the Second Amendment. His credentials include clerking with Justice Anthony Kennedy, working for Kenneth Starr&rsquo;s Whitewater investigation, and spending six years in the George W. Bush White House as a lawyer and eventually staff secretary to the president.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/seyfarth-shaw-policy-matters-newsletter-july-12-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP071318 From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police http://www.seyfarth.com:80/publications/CP071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Our readers may be interested in the latest developments concerning California&rsquo;s sanctuary state laws, and their impact on California employers. Read on for a recent posting on our sister blog: BIG Immigration Law Blog.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/13/from-the-jails-to-the-streets-courthouses-and-worksites-california-takes-on-the-federal-immigration-police/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071318 Seven Fast Food Franchisors Agree To Stop Using “No Poach” Agreements Just Days After Announcement of State Attorney General Investigations http://www.seyfarth.com:80/publications/TS071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> We reported yesterday that the attorneys generals of ten states are investigating several fast food franchisors for their use of so-called &ldquo;no poach&rdquo; provisions in their franchise agreements. Well, less than twenty-four hours later, the New York Times has reported that seven fast food franchisors (mostly different ones than those who received the information demands discussed yesterday) entered into agreements with the Washington State Attorney General&rsquo;s Office to remove such clauses from their franchise agreements. According to the New York Times:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/seven-fast-food-franchisors-agree-to-stop-using-no-poach-agreements-just-days-after-announcement-of-state-attorney-general-investigations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/gardnersmh071318 Chris Gardner quoted in the Sydney Morning Herald http://www.seyfarth.com:80/news/gardnersmh071318 Fri, 13 Jul 2018 00:00:00 -0400 <p> Chris Gardner was quoted in a July 13 story from the Sydney Morning Herald, &quot;Aldi&#39;s pay plan given the BOOT,&quot; on how a workplace tribunal has doubled down on a ruling that has scared off employers from trying to get workers to trade away their penalty rates and other conditions in exchange for higher hourly pay. The Fair Work Commission&#39;s full bench decision outlined 11 principles of how the BOOT applies to &quot;loaded rates&quot; agreements. Gardner said this was an attempt by the FWC to articulate they key principles in an area of law that was highly fraught. You can read the <a href="https://www.smh.com.au/business/companies/workplace-tribunal-firms-on-penalties-for-rate-trades-20180713-p4zrav.html">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezquartz071218 Leon Rodriguez quoted in Quartz http://www.seyfarth.com:80/news/rodriguezquartz071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 12 story from Quartz, &quot;America&rsquo;s broken immigration system is tearing Indian families apart.&quot; Rodriguez said that that the administration is seeking to rescind the H4 EAD rule suggests there is very little spirit of accommodation for the interests of immigrant professional families right now.</p> http://www.seyfarth.com:80/news/rodriguezlaw360071218 Leon Rodriguez quoted in Law360 http://www.seyfarth.com:80/news/rodriguezlaw360071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 12 story from Law360, &quot;4 New Business Immigration Regulations You Should Know.&quot; Rodriguez discussed the rescission of the International Entrepreneur Rule and H-1Bs at third-party work sites.</p> http://www.seyfarth.com:80/publications/TS071218 Mayor of the “People’s Republic of Cambridge” Steps Into The Massachusetts Noncompete Reform Fray http://www.seyfarth.com:80/publications/TS071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Marc McGovern, the mayor of Cambridge, Massachusetts (home to many of the Commonwealth&rsquo;s established and emerging pharmaceutical, biotech, and other life sciences companies), published an op-ed in today&rsquo;s Boston Globe regarding the noncompete reform movement in Massachusetts (about which we have previously reported). Unsurprisingly, given that Cambridge has been referred to as the &ldquo;People&rsquo;s Republic of Cambridge,&rdquo; Mayor McGovern comes out strongly in favor of severe restrictions on the use of employee noncompete agreements, stating, among other things, that &ldquo;noncompetes are unfair to employees.&rdquo; Among other things, Mayor McGovern proposes that noncompete agreements be banned outright, or at least severely limited; and if the latter, that employers be required to pay 100% of the employee&rsquo;s salary during the restricted period (known as &ldquo;garden leave&rdquo; pay). In his words:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/mayor-of-the-peoples-republic-of-cambridge-steps-into-the-massachusetts-noncompete-reform-fray/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH071218 The Eleventh Circuit Affirmed It Was Not A “Crime” To Not Compensate For Dressing and Drive Time http://www.seyfarth.com:80/publications/WH071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Eleventh Circuit recently affirmed the district court&rsquo;s grant of summary judgment to two Florida counties in an action brought against former sheriff deputies under the Fair Labor Standards Act (FLSA) and Florida Minimum Wage Act (FMWA). The court held that the deputies were not entitled to compensation for the time that they spent donning and doffing police gear at home or the time that they spent driving to and from work in marked patrol vehicles.<br /> <br /> <a href="https://www.wagehourlitigation.com/flsa/eleventh-circuit-affirmed-not-a-crime/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM071218 From the Jails to the Streets, Courthouses and Worksites: California Takes on the Federal Immigration Police http://www.seyfarth.com:80/publications/IMM071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> The familiar lines were drawn. Combatants clashed in a war of words, competing governance philosophies, conflicting laws, and judicial challenges &ndash; all in an age-old constitutional battle of federal power versus states&rsquo; rights.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/from-the-jails-to-the-streets-courthouses-and-worksites-california-takes-on-the-federal-immigration-police-2/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS071218 Outsourcing: why the game has changed http://www.seyfarth.com:80/publications/WLS071218 Thu, 12 Jul 2018 00:00:00 -0400 <p> Changes to the Fair Work Act 2009 in 2017 introduced new vulnerable workers laws under which certain corporate group holding companies and franchisor businesses can be held directly liable for breaches by other companies within their broader commercial operations.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/outsourcing-why-the-game-has-changed/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT071218 The Week in Weed: July 13, 2018 http://www.seyfarth.com:80/publications/TBT071218 Thu, 12 Jul 2018 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="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-13-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071218a State Attorneys General Investigate Fast Food Franchisor “No Poach” Agreements http://www.seyfarth.com:80/publications/TS071218a Thu, 12 Jul 2018 00:00:00 -0400 <p> The Attorneys General of ten states are investigating fast food franchisors for their alleged use of &ldquo;no poach&rdquo; provisions in their franchise agreements, according to a press release by the New Jersey Attorney General&rsquo;s Office, and as reported by NPR. In a July 9, 2018 letter, the Attorneys General for New Jersey, Massachusetts, California, Washington, D.C., Illinois, Maryland, Minnesota, New York, Oregon, Pennsylvania, and Rhode Island requested information from eight fast food companies about their alleged use of such provisions. The letter states that the Attorneys General &ldquo;have learned that certain franchise agreements used in our States and the District of Columbia . . . may contain provisions that impact some employees&rsquo; ability to obtain higher paying or more attractive positions with a different franchisee.&rdquo; In other words, the agreements purportedly prohibit one franchisee of a particular brand from hiring employees of another franchisee of the same brand.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/restrictive-covenants/state-attorneys-general-investigate-fast-food-franchisor-no-poach-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE071118 OSHA Releases Two New Temporary Worker Guidance Documents http://www.seyfarth.com:80/publications/WSE071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just reminded temporary staffing agencies and their clients (i.e., host employers) that they are jointly responsible for a temporary employee&rsquo;s safety and health in two new guidance documents relating to respiratory protection, noise exposure, and hearing conservation. Temporary agencies and host employers that use their services should review this guidance in carrying out their shared responsibility for temporary worker safety.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/investigationsinspections/osha-releases-two-new-temporary-worker-guidance-documents/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA071118 More Trouble For Plan Administrators In Drunk Driving Cases http://www.seyfarth.com:80/publications/ERISA071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> By, James Goodfellow and Amanda Sonneborn<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/07/11/more-trouble-for-plan-administrators-in-drunk-driving-cases/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071118 The Texas Court of Appeals for the Third District Holds that the Texas Anti-SLAPP Statute Applies to a Conspiracy to Misappropriate Trade Secrets Claim http://www.seyfarth.com:80/publications/TS071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> The Texas Court of Appeals, Third District, issued an opinion in Tejas Vending, LP, et al. v. Tejas Promotions, LLC further delineating the applicability of Texas&rsquo;s anti-SLAPP statute, the Texas Citizens Participation Act (&ldquo;TCPA&rdquo;). The Court emphasized that the TCPA was applicable to a conspiracy to misappropriate trade secrets claim, but found that it did not apply to requests for declaratory relief. This holding serves as a reminder that anti-SLAPP statutes can be a powerful shield in misappropriation of trade secret cases, particularly when such cases involve claims for an alleged conspiracy.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/the-texas-court-of-appeals-for-the-third-district-holds-that-the-texas-anti-slapp-statute-applies-to-a-conspiracy-to-misappropriate-trade-secrets-claim/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/adacrainsny071118 Seyfarth's ADA Title III data referenced in Crain’s New York Business http://www.seyfarth.com:80/news/adacrainsny071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III data was referenced in a July 11 story from Crain&rsquo;s New York Business, &quot;Letter from Congress could affect local industry around ADA lawsuits,&quot; on how there&#39;s big business at New York&#39;s federal courts in suing companies whose websites are unusable by the blind. According to Seyfarth&#39;s data, 335 ADA website lawsuits, or more than 40% of all cases, were filed last year in New York&#39;s federal courts. You can read the <a href="http://www.crainsnewyork.com/article/20180711/POLITICS/180719980/congress-seeks-to-crack-down-on-ada-lawsuits-popular-in-new-york">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP071118 California is Hot: Avoiding Workplace Heat Illness http://www.seyfarth.com:80/publications/CP071118 Wed, 11 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As recent triple-digit temps have shown, California is still one of the hottest places to be&mdash;literally. Today&rsquo;s post reminds all employers, especially with employees who work outdoors or in open-air environments, that OSHA, Cal-OSHA, and the California Labor Code all prescribe protections from the heat.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/07/11/california-is-hot-avoiding-workplace-heat-illness/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071018 Robert Milligan Interviewed in Corporate Counsel Business Journal http://www.seyfarth.com:80/publications/TS071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Shaw Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group Robert Milligan, along with iDiscovery Solutions&rsquo; Jim Vaughn, spoke with Corporate Counsel Business Journal about discovery and digital forensics in the age of the cloud. To learn more about the type of evidence from the cloud and mobile devices can be important during litigation, why cloud computing is so important in discovery and digital forensics, and more, check out &ldquo;How the Cloud and Mobile Devices Have Changed Discovery&rdquo; in the July/August issue of Corporate Counsel Business Journal here.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/07/articles/trade-secrets/robert-milligan-interviewed-in-corporate-counsel-business-journal/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM071018 The Anatomy of the Travel Ban http://www.seyfarth.com:80/publications/IMM071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis. The Supreme Court affirmed President Trump&rsquo;s authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/07/the-anatomy-of-the-travel-ban/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA071018-LE The Anatomy of the Travel Ban http://www.seyfarth.com:80/publications/MA071018-LE Tue, 10 Jul 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>.</strong> <em>The Supreme Court affirmed President Trump&rsquo;s authority to ban certain foreign nationals from entering the country, finding that such travel restrictions are justified based on national security concerns.</em></p> <p> On June 26, a deeply divided Supreme Court issued a 5-4 ruling upholding the latest iteration of the &ldquo;Travel Ban&rdquo; or &ldquo;Travel Ban 3.0.&rdquo; &nbsp;The Court held that the September 2017 order, which created the Ban and targeted individuals from mainly Muslim countries, was a lawful exercise of presidential authority (<em>Trump vs. Hawaii</em>).&nbsp; Employers with employees from Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen will now need to review travel-related risks in order to ensure continuity of business operations. &nbsp;Individuals will also need to be familiar with the specific visa and entry permissions for each country while universities will need to consider foreign student-related issues. &nbsp;</p> <p> <strong>Background</strong></p> <p> We have written previously about <a href="https://www.bigimmigrationlawblog.com/2017/02/immigration-related-faqs-in-response-to-president-trumps-recent-executive-orders-as-of-february-2-2017/">the January 27, 2017 Executive Order</a>, <a href="https://www.federalregister.gov/documents/2017/02/01/2017-02281/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">(EO 13769)</a>, <a href="https://www.bigimmigrationlawblog.com/2017/03/revised-travel-ban-president-trump-signs-new-executive-order/">the second, March 6, 2017 Executive Order, </a>(<a href="https://www.federalregister.gov/documents/2017/03/09/2017-04837/protecting-the-nation-from-foreign-terrorist-entry-into-the-united-states">EO 13780</a>) as well as the third September 24, 2017 Presidential<a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/"> Proclamation</a> 9645, or Travel Ban 3.0, entitled <em>Enhancing Vetting Capabilities and Processes For Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threat</em>s. &nbsp;We followed along as federal judges in Hawaii and Maryland issued orders, blocking major portions of President Trump&rsquo;s September 24, 2017 Presidential Proclamation. &nbsp;We also blogged about the Supreme Court&rsquo;s previous ruling, which had partially enforced the Travel Ban by staying the preliminary injunctions issued by U.S. District Courts in Hawaii and Maryland that had partially blocked Travel Ban 3.0 for those individuals who could demonstrate they had a bona fide relationship with a person or entity in the United States. &nbsp;We then chronicled the Administration as it amended the <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-maintaining-enhanced-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/">Presidential Proclamation on April 10, 2018,</a> removing restrictions imposed on nationals of Chad, citing the country&rsquo;s improvements to security.</p> <p> For some critics of the President&#39;s policies, the most problematic aspect of the Travel Ban was the anti-Muslim bias that led to allegations of religious-based discrimination. &nbsp;The later iterations of the Travel Ban were &ldquo;watered down,&rdquo; according to the President, and nationals of non&ndash;Muslim majority countries were added to the list of affected nations. &nbsp;The concern that the Travel Ban is actually a Muslim ban is still very much alive. &nbsp;The final 3.0 version had been reviewed and blessed by the Justice Department, Department of Homeland Security and Department of State.&nbsp; Critics argued that the Travel Ban violated the Constitution and federal immigration law, but at the end of the day, the Court found that the travel restrictions were justified by the government&rsquo;s national security concerns.&nbsp;&nbsp;&nbsp;</p> <p> <strong>The Opinion</strong></p> <p> Writing for the majority, Chief Justice John Roberts stated that &ldquo;because there is persuasive evidence that the entry suspension has a legitimate grounding in national security concerns, quite apart from any religious hostility, we must accept that independent justification.&rdquo; &nbsp;The opinion also stated &quot;under these circumstances, the Government has set forth a sufficient national security justification to survive rational basis review.&quot;&nbsp; The opinion confirmed that the President retains the authority under the Immigration and Nationality Act (INA) to &ldquo;suspend entry of the aliens into the United States.&rdquo; &nbsp;The&nbsp; INA, Justice Roberts wrote, &ldquo;exudes deference&rdquo; to the President providing him &ldquo;broad discretion to suspend&rdquo; the entry of noncitizens into the United States.&nbsp; Justices Anthony Kennedy, Clarence Thomas, Samuel A. Alito Jr. and the Court&rsquo;s newest member, Justice Neil Gorsuch, joined the majority opinion. &nbsp;Justice Kennedy filed a concurring opinion in which he warned the Administration that &ldquo;they must not disregard the Constitution.&rdquo;&nbsp; &ldquo;An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts,&rdquo; cautioned Kennedy.</p> <p> With the plaintiffs suggesting President Trump&rsquo;s anti-Muslim statements illustrated religious animus&mdash;thereby invalidating the Travel Ban under the Establishment Clause of the Constitution&mdash;the Court addressed the relevance of President Trump&rsquo;s anti-Muslim statements.&nbsp; Justice Roberts noted that the Court needed to balance the president&rsquo;s comments with his national security responsibilities, as he was protecting the country and improving vetting procedures.&nbsp; &ldquo;The issue before us is not whether to denounce the statements,&rdquo; Chief Justice Roberts wrote. &nbsp;&ldquo;It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.&rdquo; &nbsp;&ldquo;In doing so,&rdquo; he continued, &ldquo;we must consider not only the statements of a particular president, but also the authority of the presidency itself.&rdquo;&nbsp; While many argued that President Trump&rsquo;s statements crossed a constitutional line, the majority of the Court rejected the argument that the President had overstepped his constitutional authority, finding there had been no religious discrimination.</p> <p> Justice Sonia Sotomayor, in her dissent, argued that the Court had &ldquo;blindly&rdquo; sanctioned &ldquo;a discriminatory policy motivated by animosity toward&rdquo; Muslims.</p> <p> <strong>Who Is and Who Is Not Affected by the Ban?</strong></p> <p> <u>Which countries are affected?</u></p> <p> Due to the Administration&rsquo;s concerns that certain countries remain deficient with &ldquo;respect to their identity-management and information-sharing capabilities, protocols, and practices,&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a> the Travel Ban affects nationals of seven countries (Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen).&nbsp; The Ban places varying degrees of restrictions on the entry of certain citizens of those countries. &nbsp;The Supreme Court&rsquo;s ruling allowed the Travel Ban to fully go into effect, and be enforced, consistent with its previous order of December 4, 2017.</p> <p> <u>What is the scope of the current Travel Ban?</u></p> <p> The Ban only applies to specifics individuals from the above-mentioned countries who:</p> <ol> <li> Are outside of the U.S.;</li> <li> Do not have a visa that was valid as of the applicable effective date (either September 24, 2017 or October 18, 2017 as elaborated in the Proclamation); <strong>and </strong></li> <li> Do not have a waiver or other travel document.</li> </ol> <p> The Ban impacts individuals who are seeking both temporary nonimmigrant visas and immigrant visas&nbsp; for permanent resident (or green card) status.</p> <p> <strong>It is critical to note that existing visa holders, including H-1Bs, may continue to enter on visas that were previously issued, but these visa holders should expect &ldquo;extreme vetting&rdquo; by Customs and Border Protection (CBP) at entry. &nbsp;</strong>The State Department has stated that no visas will be revoked pursuant to the Travel Ban and noted that consular officers will determine whether an otherwise qualified visa applicant may be eligible for a waiver under the Travel Ban (see discussion below).</p> <p> <strong>The Cheat Sheet</strong></p> <table align="center" border="1" cellpadding="0" cellspacing="0" style="width:100.0%;" width="100%"> <tbody> <tr> <td style="width:12.0%;"> <p style="text-align: center;"> <strong>Country</strong></p> </td> <td style="width:64.0%;"> <p style="text-align: center;"> <strong>Nonimmigrant Visas</strong></p> </td> <td style="width:23.0%;"> <p style="text-align: center;"> <strong>Immigrant and Diversity Visas</strong></p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Iran</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas except F, M, and J visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Libya</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2, and B-1/B-2 visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> North Korea</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Somalia</p> </td> <td style="width:64.0%;"> <p> &nbsp;</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Syria</p> </td> <td style="width:64.0%;"> <p> No nonimmigrant visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Venezuela</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2 or B-1/B-2 visas of any kind for officials (and their immediate family members) of the following government agencies: Ministry of Interior, Justice, and Peace; the Administrative Service of Identification, Migration, and Immigration; the Corps of Scientific Investigations, Judicial and Criminal; the Bolivarian Intelligence Service; and the People&rsquo;s Power Ministry of Foreign Affairs.</p> </td> <td> <p> &nbsp;</p> </td> </tr> <tr> <td style="width:12.0%;"> <p> Yemen</p> </td> <td style="width:64.0%;"> <p> No B-1, B-2, and B-1/B-2 visas</p> </td> <td> <p> No immigrant or diversity visas</p> </td> </tr> </tbody> </table> <div style="clear:both;"> &nbsp;</div> <p> <em>* Courtesy of the </em><a href="file://dcbvpxdfil04/L-O$/AMadrak/iManage/NRPortbl/SEY1/AMADRAK/See%20https:/travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html"><em>Department of State</em></a><em>.</em></p> <p> <u>Are there exceptions?</u></p> <p> In addition to exceptions for any national who was in the U.S. and any national who had a visa on the effective date of the Proclamation, (regardless of immigration status), the following are <strong>exempt</strong> from the Travel Ban: permanent residents (or green card holders); dual nationals traveling on a passport from a country that is not affected by the Travel Ban; diplomats; individuals who were paroled into the U.S. on or after the applicable effective date; and, foreign nationals traveling with documents other than visas. &nbsp;Refugees who are already in the U.S., asylees granted asylum by the U.S., and individuals granted withholding, advance parole or protection based on the Convention Against Torture are also not affected by the Court&rsquo;s decision.</p> <p> <u>Are there any waivers?</u></p> <p> The Travel Ban theoretically provides for <strong>waivers</strong>.&nbsp; A waiver is permission to obtain a U.S. visa, even though the Travel Ban renders an individual ineligible to obtain the visa.&nbsp; There are certain exceptions available for people who can:</p> <ol> <li> Demonstrate that they will suffer &ldquo;undue hardship&rdquo; if denied entry;</li> <li> Demonstrate that their entry would not pose a threat to the national security or public safety of the United States; <strong>and</strong>,</li> <li> Demonstrate that their entry would be in the national interest.</li> </ol> <p> Unlike the past decisions, this decision does NOT allow for an exception for &ldquo;Bona Fide&rdquo; relationships, including close family ties, unless the ties are for a refugee-related claim. &nbsp;The Travel Ban states &ldquo;The Secretary of State and the Secretary of Homeland Security shall coordinate to adopt guidance addressing the circumstances in which waivers may be appropriate for foreign nationals seeking entry as immigrants or nonimmigrants.&rdquo;&nbsp; Unfortunately, there is currently a lack of information and guidance on the logistics of how State Department consular officers or CBP officers have been, or will be making, such waiver determinations. &nbsp;There is also no formal application in which to apply for such waiver.</p> <p> These waivers are clearly discretionary and are granted on a case-by-case basis according to information provided by the State Department.&nbsp; As of June 30, 2018, 898 applicants were cleared for a waiver after a consular office determined that all criteria had been satisfied and all processing had been completed. &nbsp;Immigration advocacy groups have filed a lawsuit to obtain more information about the waiver process. &nbsp;In Justice Stephen Breyer&rsquo;s dissenting opinion, which was joined by Justice Elena Kagan, he described the waiver process as &ldquo;window dressing,&rdquo; noting there was no judicial review contemplated.&nbsp; Only time will tell how transparent, fair and effective the waiver process will be.</p> <p> <strong>What about students?</strong></p> <p> While the Supreme Court decision granted exceptions for student visas issued to nationals of Iran, the road ahead will likely be difficult for these students. &nbsp;This is important due to the high number of Iranian students in the U.S. &nbsp;According to a Washington Post article, &ldquo;17,000 students from the list of banned countries studying in American colleges and universities. More than 12,000 them were Iranian.&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; Some experts are expecting lengthy visa application wait times and, even after a visa is issued, extreme vetting by CBP at the U.S. border.&nbsp; Others in the education field are hopeful that returning students will be allowed an unfettered return in August. &nbsp;Most agree, however, that it is not unreasonable to expect a decline in enrollment, as students may look elsewhere for school in order to ensure continuity and peace of mind.</p> <p> <strong>What Should Employers and Universities Do Now?</strong></p> <p> The Travel Ban saga is complicated. &nbsp;There is plenty of confusion regarding the government&rsquo;s restrictions on travel to the U.S.&nbsp; It is critical that competent counsel be retained for complex situations such as urgent business needs.&nbsp; In the interim, all parties should educate themselves on the effects of the Travel Ban, including risks of travel, especially for those who are eligible to enter the U.S. as nationals of one of the affected countries. &nbsp;The State Department recently issued an overview discussing the <a href="https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/presidential-proclamation-archive/june_26_supreme_court_decision_on_presidential_proclamation9645.html"><em>June 26 Supreme Court Decision on Presidential Proclamation 9645</em></a><em>.</em>&nbsp; The State Department link includes a FAQ section that attempts to distill down the Ban and answer anticipated questions.</p> <p> At this juncture, the most conservative approach for those with affected nationalities already in the U.S. suggests foregoing travel plans, whether for work or pleasure.&nbsp; For example, applying an abundance of caution, H-1B holders may opt not to leave the U.S. &nbsp;While legally unaffected by the Ban, some permanent residents are also choosing to remain lodged in the U.S.&nbsp; For those who must travel, especially for individuals who will need to renew or apply for a visa, a careful review of the visa history, baseline visa eligibility, as well as something as innocuous as social media account review should be considered.</p> <p> Given the potential of the Travel Ban to affect more than 135 million people worldwide, employers and universities should prepare for the impact by offering access to correct advice&mdash;ensuring everyone is educated about travel-related matters is critical.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> See the Proclamation at <a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/">https://www.whitehouse.gov/presidential-actions/presidential-proclamation-enhancing-vetting-capabilities-processes-detecting-attempted-entry-united-states-terrorists-public-safety-threats/</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> See the article at <a href="https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f">https://www.washingtonpost.com/news/global-opinions/wp/2018/06/26/call-trumps-travel-ban-what-it-is-an-iran-ban/?utm_term=.31329d5dfe4f</a></p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL071018 Tenth Circuit Reaffirms That Title VII Does Not Require Employers to Offer an Employee Their “Preferred” Religious Accommodation http://www.seyfarth.com:80/publications/EL071018 Tue, 10 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Title VII requires employers to make &ldquo;reasonable accommodations&rdquo; for an employee&rsquo;s religious practices. But what is &ldquo;reasonable&rdquo; has been the subject of much debate and litigation. The Tenth Circuit&rsquo;s decision in Christmon v. B&amp;B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable &mdash; even if it is not the employee&rsquo;s preference. What matters is that the employee is allowed to engage in his or her religious practice.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/tenth-circuit-reaffirms-that-title-vii-does-not-require-employers-to-offer-an-employee-their-preferred-religious-accommodation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD070918 CFPB Commotion Continues: Leandra English Resigns from CFPB Deputy Director Post http://www.seyfarth.com:80/publications/CCD070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> On July 6, 2018, Leandra English, through her attorney via Twitter, announced she would be resigning from the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;). In so doing, Ms. English is also dropping her lawsuit against the CFPB in which she challenged Mick Mulvaney&rsquo;s status as the acting director and claimed that she was the true acting director. Ms. English attributed her resignation decision to President Trump&rsquo;s nomination of Kathy Kraninger, a White House aide, to be the CFPB&rsquo;s director.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/07/cfpb-commotion-continues-leandra-english-resigns-from-cfpb-deputy-director-post/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE070918 USEPA Administrator Pruitt Issues Memo to Update Agency Use of Clean Water Act Section 404(c) Veto Power http://www.seyfarth.com:80/publications/WSE070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Last week before his departure USEPA Administrator Pruitt notified the regulated community that he had directed the Agency to update regulations governing the Agency&rsquo;s use of Section 404(c) veto power in permitting discharges of dredged or fill materials under Section 404 of the Clean Water Act.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/usepa-administrator-pruitt-issues-memo-to-update-agency-use-of-clean-water-act-section-404c-veto-power/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM070918-LIT CFPB Commotion Continues: Leandra English Resigns from CFPB Deputy Director Post http://www.seyfarth.com:80/publications/OMM070918-LIT Mon, 09 Jul 2018 00:00:00 -0400 <div> On July 6, 2018, Leandra English, through her attorney via <a href="https://twitter.com/deepakguptalaw/status/1015313242942509059">Twitter</a>, announced she would be resigning from the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;). In so doing, Ms. English is also dropping her lawsuit against the CFPB in which she challenged Mick Mulvaney&rsquo;s status as the acting director and claimed that she was the true acting director. Ms. English attributed her resignation decision to President Trump&rsquo;s nomination of Kathy Kraninger, a White House aide, to be the CFPB&rsquo;s director.&nbsp;</div> <div> &nbsp;</div> <div> Ms. English was previously promoted by then-Director Richard Cordray before his departure the day after last November&rsquo;s Thanksgiving holiday. Later, during that holiday weekend, Ms. English filed suit to block President Trump&rsquo;s appointment of Mr. Mulvaney as the CFPB&rsquo;s acting director. In her suit, Ms. English argued that she was the rightful successor to Director Cordray and challenged the President&rsquo;s authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1998 (&ldquo;FVRA&rdquo;). Ms. English pursued the lawsuit even though the U.S. Department of Justice&rsquo;s&nbsp; Office of Legal Counsel had issued a <a href="http://www.seyfarth.com/dir_docs/publications/olcmemocfpb11252017.pdf">memorandum</a> that concluded the president had the authority to appoint a temporary replacement since the statute provided him with the &ldquo;exclusive means&rdquo; to do so unless there was a supervening statute that specified otherwise.&nbsp;</div> <div> &nbsp;</div> <div> The U.S. District Court for the District of Columbia denied relief to Ms. English over Mr. Mulvaney&rsquo;s appointment. She appealed that decision to the D.C. Circuit, which appears poised to reject her claim due, in part, to her lack of standing. If the Senate confirms Ms. Kraninger&rsquo;s nomination, the confirmation will moot Ms. English&rsquo;s lawsuit. Although Ms. English&rsquo;s decision may end that lawsuit, the CFPB faces other challenges, and several courts have found the agency&rsquo;s statutory structure unconstitutional.&nbsp; For additional information, see our prior alerts on this issue <a href="https://www.consumerclassdefense.com/?s=CFPB">here</a>.</div> http://www.seyfarth.com:80/publications/ADA070918 Second Equipment Compliance Deadline for Movie Captioning and Audio Description Rule has Arrived http://www.seyfarth.com:80/publications/ADA070918 Mon, 09 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: June 2, 2018 marked the second compliance deadline for movie theatres with auditoriums showing digital movies to comply with the ADA Title III Movie Captioning and Audio Description Rule.<br /> <br /> <a href="https://www.adatitleiii.com/2018/07/second-equipment-compliance-deadline-for-movie-captioning-and-audio-description-rule-has-arrived/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW070618 California’s Consumer Privacy Act of 2018 – Get Ready for New GDPR Style Requirements in the US http://www.seyfarth.com:80/publications/GPW070618 Fri, 06 Jul 2018 00:00:00 -0400 <p> At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018. The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR. The new law defines a category of &ldquo;Personal Information&rdquo; that radically departs from a traditional definition of Personal Data commonly found in various State Data Privacy Laws, which usually ties an individual name to other identifiers like social security number, account number, or other factors. Instead, the California Act defines &ldquo;Personal Information&rdquo; as information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. It does not, mercifully, include publicly available information, but it still comes closer to a GDPR-like definition of &ldquo;personal data&rdquo; than any other US law.<br /> <br /> <a href="https://www.globalprivacywatch.com/2018/07/californias-consumer-privacy-act-of-2018-get-ready-for-new-gdpr-style-requirements-in-the-us/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/seidmanbloomberglaw070618 Joshua Seidman quoted in Bloomberg Law http://www.seyfarth.com:80/news/seidmanbloomberglaw070618 Fri, 06 Jul 2018 00:00:00 -0400 <p> Joshua Seidman was quoted in a July 6 story from Bloomberg Law, &quot;Reconciling State, Local Sick Leave Laws Increasingly Complex.&quot; Seidman said that the differing local laws in a state with a sick leave law can create its own mini-patchwork.</p> http://www.seyfarth.com:80/news/weisswgn070518 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgn070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed July 5th on WGN Radio, &quot;The Wintrust Business Lunch 7/5/18: Worst Companies to Work For.&quot; Weiss discussed the Glassdoor list of worst companies to work for and provided some suggestions to help combat the negative work environments. You can listen to the <a href="https://wgnradio.com/2018/07/05/the-wintrust-business-lunch-7-5-18-worst-companies-to-work-for-homes-without-a-c-amazon-prime-day/">full interview here</a>.</p> http://www.seyfarth.com:80/news/moradybi070518 Ilana Morady quoted in Business Insurance http://www.seyfarth.com:80/news/moradybi070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Ilana Morady was quoted in a July 5 story from Business Insurance, &quot;Renewable energy sector presents unique work site hazards.&quot; Morady said that, even though these are emerging industries, the hazards are hazards that have already existed, so the OSHA standards have been in place. You can read the <a href="https://www.businessinsurance.com/article/20180705/NEWS08/912322458/Renewable-energy-sector-presents-unique-work-site-hazards">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM070518-LIT FDA Approves First Marijuana-Based Drug to Treat Epilepsy http://www.seyfarth.com:80/publications/OMM070518-LIT Thu, 05 Jul 2018 00:00:00 -0400 <div> On June 25, 2018, the Food and Drug Administration (&ldquo;FDA&rdquo;) approved Epidiolex (cannabidiol), the first marijuana derived drug for use in the United States, to treat two rare forms of epilepsy. This decision for the FDA could have sweeping effects for the marijuana industry. While the FDA has previously approved drugs comprising synthetic (manufactured) cannabinoids, this is the first FDA approved drug comprised of an active ingredient derived from marijuana. Even with FDA approval, further action is required before Epidiolex can enter the market in the United States.</div> <div> &nbsp;</div> <div> Epidiolex will be the first pharmaceutical form of the cannabinoid cannabidiol, or &ldquo;CBD.&rdquo; CBD is a chemical component of the Cannabis sativa plant commonly known as marijuana. Unlike tetrahydrocannabinol or &ldquo;THC&rdquo; (a different and highly discussed cannabinoid found in marijuana), CBD is not known to have psychoactive effects. However, because CBD derived from marijuana is considered part of the marijuana plant, it is currently listed as a Schedule I controlled substance and illegal for all uses in the United States.</div> <div> &nbsp;</div> <div> The Drug Enforcement Administration (&ldquo;DEA&rdquo;) must reclassify CBD in order for Epidiolex to be cleared to enter the market in the United States. This process will likely take months and is currently the topic of much speculation. There are five schedules for controlled substances and each controlled substance is scheduled based on whether there is a current acceptable medical use in the United States, their relative abuse potential, and the likelihood of causing dependence when abused. Schedule I drugs have no accepted medical use. Thus, CBD&rsquo;s classification as such is clearly contrary to the FDA&rsquo;s recent decision. It is unclear how the DEA will reschedule CBD or if it will expand reclassification to include the entire marijuana plant (this latter option is highly unlikely).</div> <div> &nbsp;</div> <div> Once Epidiolex enters the market, it may be prescribed beyond the few FDA approved uses. Epidiolex has been approved for the treatment of two rare and severe forms of epilepsy, Lennox-Gastaut syndrome and Dravet syndrome. Doctors, however, generally have the ability to prescribe drugs for unapproved, or &ldquo;off-label&rdquo; use. The FDA has generally accepted such procedures for various reasons.</div> <div> &nbsp;</div> <div> While Epidiolex&rsquo;s approval is significant, FDA Commissioner Scott Gottlieb made clear in a press release that it is not an approval of marijuana or all of its components. That said, the federal government, through the FDA, has now officially recognized that there are some medical benefits to the marijuana plant, suggesting that there is a path forward leading to the legalization of marijuana at the federal level for healthy, medical-based use of marijuana. Of course, such use has been backed by thorough research, which is essential to any future approvals of similar or new marijuana derived products. In sum, as a result of the FDA&rsquo;s decision, we are likely to see the DEA reclassify CBD, which may pave the way for more developments and subsequent approval of products with CBD.</div> http://www.seyfarth.com:80/publications/MA070518-LE Shifty Business VI: NYC Temporary Schedule Change Law Effective July 18 http://www.seyfarth.com:80/publications/MA070518-LE Thu, 05 Jul 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Effective July 18, 2018, New York City employers must grant two temporary schedule changes per year to eligible employees for certain qualifying &ldquo;personal events.&rdquo;&nbsp; Unlike other bills which were a part of the NYC Fair Workweek legislation, this law is not limited to retail or fast food employers.&nbsp;</em></p> <p> As previously reported <a href="http://www.seyfarth.com/publications/MA011918-LE">here,</a> a <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=2900941&amp;GUID=68DC01AE-C577-4B86-B3E5-B9D98836C1E2&amp;Options=&amp;Search">new law</a> requires NYC employers to grant employees two temporary schedule changes per year, of up to one business day each, for certain personal events.&nbsp; The law takes effect on July 18, 2018, and applies to most employers with NYC employees.</p> <p> Qualifying personal events that entitle employees to leave include:</p> <ul> <li> providing care for a minor child or other individual under the employee&rsquo;s care;</li> <li> attending legal proceedings for subsistence benefits to which the employee, the employee&rsquo;s family member, or the employee&rsquo;s care recipient is a party; and</li> <li> any circumstance that would qualify for use of safe or sick time under the recently-amended Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;).&nbsp; (For more information on the recent changes to ESSTA, see our <a href="http://www.seyfarth.com/publications/OMM11917-LE">prior alert</a>.)</li> </ul> <p> The law provides examples of temporary schedule changes to which the employee will be entitled, which include:</p> <ul> <li> using paid time off;</li> <li> working remotely;</li> <li> changing work hours;</li> <li> swapping shifts; or</li> <li> using short-term unpaid leave.</li> </ul> <p> The inclusion of these examples does not necessarily mean that employers are required to grant employees&rsquo; specific requests.&nbsp; Likewise, the law does not limit potential schedule changes to only these enumerated examples.&nbsp; For instance, remote work may not be conducive to certain positions that require the employee to be physically present at the employer&rsquo;s location.&nbsp; In such cases, the employer may offer an alternative approach to the employee&rsquo;s request that is better suited to the employee&rsquo;s position.</p> <p> The law mandates the process by which employees request a schedule change and employers respond:</p> <ol> <li> Employees must provide notice of the need for a change as soon as they are aware of it and propose a specific schedule adjustment, unless they seek unpaid leave.&nbsp; The initial notice need not be written, but the employee must submit a written request within two days after returning to work.&nbsp; The written notice must state (a) the date for which the change was requested; and (b) that it was due to a covered personal event.&nbsp; The request may be submitted electronically if the employer typically uses electronic means to manage leave requests.</li> <li> The employer must immediately respond to a temporary schedule change request.&nbsp; &ldquo;Immediately&rdquo; is not defined under the law.&nbsp; This initial response need not be written, but a written response is required within 14 days of the employee&rsquo;s written request.&nbsp; The written response must state (a) whether the employer agrees to the employee&rsquo;s requested temporary change or will provide leave without pay; (b) if the request is denied, an explanation for the denial; and (c) how many requests and how many business days the employee has left in the calendar year, after taking into account the decision on the employee&rsquo;s current request.&nbsp; If the employee does not submit a written request, the employer does not need to respond in writing.</li> <li> Employers can deny a temporary schedule change request relating to a covered personal event<em> only </em>if the employee has exhausted the two allotted requests in the calendar year or if one of the exclusions listed below applies.</li> <li> Even after employees have exhausted their rights under this law, the employer must still follow the steps set forth above, to the extent applicable.&nbsp; If an employee&rsquo;s requests under the law are exhausted, however, an employer has the option to either grant or deny an employee&rsquo;s request.</li> </ol> <p> Specifically excluded from the law are:</p> <ul> <li> employees covered by a valid collective bargaining agreement, but only if the CBA waives the provisions of the law and addresses temporary changes to work schedules;</li> <li> employees who have been employed fewer than 120 days;</li> <li> employees working fewer than 80 hours in NYC in a calendar year; or</li> <li> individuals performing certain types of work in the theater, film, or TV industry.</li> </ul> <p> &nbsp;&ldquo;Calendar year&rdquo; under the law means a regular and consecutive twelve-month period, as determined by an employer, which is the same definition used under ESSTA.&nbsp; If the employer grants an employee a single request spanning two business days, then it need not grant a second request within that calendar year.&nbsp;</p> <p> The law&rsquo;s requirements are in addition to, and not in lieu of, an employer&rsquo;s obligations under ESSTA.&nbsp; Employees do <em>not</em> need to use or exhaust their available leave under ESSTA before requesting a schedule change, and unpaid leave granted under the law does <em>not</em> count towards the employee&rsquo;s entitlement to leave under ESSTA.&nbsp; In turn, leave granted under ESSTA does not constitute a schedule change under this law.</p> <p> The law includes a non-retaliation provision, which includes protections for employees who request schedule changes <em>other than</em> those that employers must grant under this law.&nbsp; Those requests must still follow the process required by this law.</p> <p> The penalty for violation of the law is a $500 fine and an order directing compliance.&nbsp; However, an employer that fails to provide an employee with the written response required under the law may cure the violation without a penalty by presenting proof that it provided the employee with the required written response within seven days of receiving notice of the opportunity to cure.</p> <p> The NYC Office of Labor Policy &amp; Standards has not yet released guidance to clarify employers&rsquo; obligations under the law.&nbsp; In the meantime, employers should consider implementing a specific policy in light of this law&rsquo;s interplay with ESSTA, which warrants explanation to employees.</p> http://www.seyfarth.com:80/publications/CCD070518 First Circuit Invalidates Arbitration Clause in Mobil App User Agreement http://www.seyfarth.com:80/publications/CCD070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> Executive Summary and Takeaway. User agreements for websites and apps have become increasingly prevalent in recent years, and courts have had to adapt traditional rules of contract interpretation to the new digital frontier. On June 25, 2018, the First Circuit reversed a district court decision enforcing an arbitration clause contained in the terms of service for the defendant&rsquo;s smartphone app, finding that those terms were not sufficiently &ldquo;conspicuous&rdquo; for a user to know that he or she had agreed to be bound by them. The First Circuit&rsquo;s decision continues a trend of judicial hostility to arbitration clauses, and is notable for its scrutiny of the record below: the court studied in minute detail the design and content of the registration screen containing a hyperlink to the terms of service&mdash;including the size, shape, color, font, and location of the hyperlink&mdash;and concluded that the link to the terms of service failed &ldquo;to grab the user&rsquo;s attention.&rdquo; Businesses with similar user agreements governed by Massachusetts law or that could potentially apply to Massachusetts consumers should review their websites and/or apps to ensure that their platforms disclose any terms of use in a clear and conspicuous manner in relation to the rest of the content on the screen.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/07/first-circuit-invalidates-arbitration-clause-in-mobil-app-user-agreement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO070518 FDA Approves First Marijuana-Based Drug to Treat Epilepsy http://www.seyfarth.com:80/publications/BIO070518 Thu, 05 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.bioloquitur.com/fda-approves-first-marijuana-based-drug-treat-epilepsy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT070518 The Week in Weed: July 6, 2018 http://www.seyfarth.com:80/publications/TBT070518 Thu, 05 Jul 2018 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="https://www.blunttruthlaw.com/2018/07/the-week-in-weed-july-6-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT070518a FDA Approves First Marijuana-Based Drug to Treat Epilepsy http://www.seyfarth.com:80/publications/TBT070518a Thu, 05 Jul 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.blunttruthlaw.com/2018/07/fda-approves-first-marijuana-based-drug-to-treat-epilepsy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CDL070518 California’s Consumer Privacy Act of 2018 – Get Ready for New GDPR Style Requirements in the US http://www.seyfarth.com:80/publications/CDL070518 Thu, 05 Jul 2018 00:00:00 -0400 <p> At the end of June, the California legislature passed its Bill 375, the California Consumer Privacy Act of 2018. The Act contains a number of concepts that would be familiar to those who are working to bring their companies and organizations into compliance with GDPR. The new law defines a category of &ldquo;Personal Information&rdquo; that radically departs from a traditional definition of Personal Data commonly found in various State Data Privacy Laws, which usually ties an individual name to other identifiers like social security number, account number, or other factors. Instead, the California Act defines &ldquo;Personal Information&rdquo; as information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. It does not, mercifully, include publicly available information, but it still comes closer to a GDPR-like definition of &ldquo;personal data&rdquo; than any other US law.<br /> <br /> <a href="https://www.carpedatumlaw.com/2018/07/californias-consumer-privacy-act-2018-get-ready-new-gdpr-style-requirements-us/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL070418 Happy Fourth of July! http://www.seyfarth.com:80/publications/EL070418 Wed, 04 Jul 2018 00:00:00 -0400 <p> The Employment Law Lookout is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day&rsquo;s most pressing workplace issues next week.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/07/happy-fourth-of-july/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS070318 A 5 step risk management approach – addressing workplace sexual harassment http://www.seyfarth.com:80/publications/WLS070318 Tue, 03 Jul 2018 00:00:00 -0400 <p> Sexual harassment complaints, and the laws that attempt to curb the behaviours, are not new. Despite regulation, sexual harassment is still occurring in workplaces. Why?<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/07/a-5-step-risk-management-approach-addressing-workplace-sexual-harassment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH070218 Don’t Judge a Conditional Certification Motion By Its Cover http://www.seyfarth.com:80/publications/WH070218 Mon, 02 Jul 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A New York federal court once again denied a motion for conditional certification of a nationwide collective action against Barnes &amp; Noble. The ruling highlights that, even though the burden for &ldquo;first stage&rdquo; certification is modest, courts are willing to apply a &ldquo;modest plus&rdquo; approach after discovery relevant to conditional certification has taken place. It also shows the potential positive impact the Supreme Court&rsquo;s recent Encino Motorcars decision may have for employers opposing conditional certification.<br /> <br /> <a href="https://www.wagehourlitigation.com/conditional-certification-defenses/dont-judge-a-conditional-certification-motion-by-its-cover-2/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanlaw360070218 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360070218 Mon, 02 Jul 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 2 story from Law360, &quot;The FLSA Turns 80: How Management Wants The Law Updated,&quot; on making FLSA collectives harder to certify. Maatman said that workers don&rsquo;t need much evidence of common work conditions to win conditional certification, and often this analysis is little more than a rubber stamp.</p> http://www.seyfarth.com:80/publications/milliganccbj070118 Robert Milligan authored an article in the Corporate Counsel Business Journal http://www.seyfarth.com:80/publications/milliganccbj070118 Sun, 01 Jul 2018 00:00:00 -0400 <p> Robert Milligan authored a July 1 article in the Corporate Counsel Business Journal, &quot;How The Cloud And Mobile Devices Have Changed Discovery.&quot; You can read the <a href="http://pubs.royle.com/publication/?i=504681#{&quot;issue_id&quot;:504681,&quot;page&quot;:66}">full article here</a>.</p> http://www.seyfarth.com:80/publications/FE062918 Is Arbitration the Future for ERISA Claims? http://www.seyfarth.com:80/publications/FE062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> In the weeks since the Supreme Court issued its decision in Epic Systems Corp. v Lewis, employers have been considering whether to implement arbitration programs with class waivers makes sense for their workplace. Among the issues employers are weighing is what workplace laws and issues should be subject to mandatory individual arbitration.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/28/is-arbitration-the-future-for-erisa-claims">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE062918 Reminder – Specific Employers are Required to Electronically Submit 2017 Injury and Illness Data by July 1 http://www.seyfarth.com:80/publications/WSE062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA reminded specific employers on Monday that the deadline for electronically submitting their 2017 Form 300A data to OSHA is July 1, 2018.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/reminder-specific-employers-are-required-to-electronically-submit-2017-injury-and-illness-data-by-july-1/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO062918 An Illustrated Guide to the USPTO’s New Memo on Method of Treatment Claims http://www.seyfarth.com:80/publications/BIO062918 Fri, 29 Jun 2018 00:00:00 -0400 <p> The U.S. Patent and Trademark Office (&ldquo;USPTO&rdquo;) has renewed the hopes of applicants looking to patent method of treatment claims. A recent memo from the USPTO (the &ldquo;Memo&rdquo;) provides guidance on method of treatment claims, suggesting that when correctly drafted, such claims should generally be considered patent eligible subject matter.<br /> <br /> <a href="https://www.bioloquitur.com/illustrated-guide-usptos-new-memo-method-treatment-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/062918-LIT First Circuit Invalidates Arbitration Clause in Uber’s User Agreement http://www.seyfarth.com:80/publications/062918-LIT Fri, 29 Jun 2018 00:00:00 -0400 <div> <em><strong>Executive Summary and Takeaway.&nbsp;&nbsp;</strong></em>User agreements for websites and apps have become increasingly prevalent in recent years, and courts have had to adapt traditional rules of contract interpretation to the new digital frontier.&nbsp; On Monday, June 25, 2018, the First Circuit in&nbsp;<em>Cullinane v. Uber Technologies, Inc.</em>&nbsp;reversed a district court decision enforcing an arbitration clause contained in the terms of service for Uber&rsquo;s smartphone app, finding that those terms were not sufficiently &ldquo;conspicuous&rdquo; for a user to know that he or she had agreed to be bound by them.&nbsp; The First Circuit&rsquo;s decision continues a trend of judicial hostility to arbitration clauses, and is notable for its scrutiny of the record below:&nbsp; the court studied in minute detail the design and content of the registration screen containing a hyperlink to the terms of service&mdash;including the size, shape, color, font, and location of the hyperlink&mdash;and concluded that the link to the terms of service failed &ldquo;to grab the user&rsquo;s attention.&rdquo;&nbsp; Companies with similar user agreements governed by Massachusetts law or that could potentially apply to Massachusetts consumers should review their websites and/or apps to ensure that their platforms disclose any terms of use in a clear and conspicuous manner in relation to the rest of the content on the screen.</div> <div> &nbsp;</div> <div> <div> <strong><em>Additional Background.</em></strong>&nbsp; To request a ride via the Uber app, a customer must first register with Uber by creating an account.&nbsp; As part of the registration process, users are shown a screen that requests their payment information and notifies them that by creating an account they are agreeing to Uber&rsquo;s Terms of Service and its Privacy Policy:</div> <div> &nbsp;</div> <div> <img alt="Uber's Terms of Service and Privacy Policy" src="http://www.seyfarth.com/dir_docs/publications/uber.JPG" style="width: 617px; height: 442px;" /></div> <div> &nbsp;</div> <div> The words &ldquo;Terms of Service &amp; Privacy Policy&rdquo; are in a clickable box that includes a hyperlink.&nbsp; Upon clicking on that hyperlink, the user is directed to a screen with two other links:&nbsp; one to Uber&rsquo;s Terms of Service, and the other to its Privacy Policy.&nbsp; The user can view either document by clicking on the appropriate link.</div> <div> &nbsp;</div> <div> At the end of the registration process, the user clicks on the button in the top-right-hand corner of the screen that says &ldquo;DONE.&rdquo;&nbsp; (As shown above, the button is grayed out and unclickable until the user enters her payment information.)&nbsp; Users cannot complete the process without completing each of the registration steps and clicking the &ldquo;DONE&rdquo; button on the final screen.&nbsp; They can, however, complete the process without clicking on the &ldquo;Terms of Service &amp; Privacy Policy&rdquo; box and without having accessed or read the Terms of Service or the Privacy Policy.</div> <div> &nbsp;</div> <div> Uber&rsquo;s Terms of Service state that it &ldquo;constitute[s] a legal agreement between [user] and Uber. . . . In order to use the Service [] and the associated Application [], you must agree to the terms and conditions that are set out below.&rdquo;&nbsp; It also states that, by using any of Uber&rsquo;s services, the user &ldquo;expressly acknowledge[s] and agree[s] to be bound by the terms and conditions of the Agreement.&rdquo;&nbsp; Those terms and conditions include an arbitration provision containing a class action waiver:&nbsp; &ldquo;You acknowledge and agree that you and [Uber] are each waiving the right to a trial by jury or to participate as a plaintiff or class User in any purported class action or representative proceeding.&rdquo;</div> <div> &nbsp;</div> <div> In 2014, plaintiffs filed a putative class action against Uber in Massachusetts state court on behalf of themselves and other users of Uber&rsquo;s ride-hailing service in the Boston area.&nbsp; Plaintiffs accused Uber of overcharging them for travel to and from Boston Logan Airport and East Boston by imposing fictitious fees hidden in charges for legitimate local tolls.&nbsp; Their Second Amended (and operative) Complaint asserted a claim for unfair and deceptive acts in violation of the Massachusetts consumer protection statute (Mass. Gen. Laws c. 93A), and a common law unjust enrichment claim.&nbsp; Uber removed the case to the U.S. District Court for the District of Massachusetts pursuant to the Class Action Fairness Act (CAFA), 28 U.S.C. &sect; 1332(d), and filed a motion to compel arbitration and to stay or dismiss the case, relying on the arbitration clause in the Terms of Service.</div> <div> &nbsp;</div> <div> <strong><em>The District Court Compels Arbitration.</em></strong>&nbsp; On July 8, 2016, the district court granted Uber&rsquo;s motion to compel arbitration and dismissed the action.&nbsp; As the district court summarized, &ldquo;[i]n online adhesion contracts, the analysis under Massachusetts law . . . . as to enforceability boils down to basic contract theory of notice and informed assent with respect to the terms in question.&rdquo;&nbsp; The district court explained that the analysis does not differ depending on the type of online adhesion contract at issue -- whether it is a &ldquo;<em>browsewrap</em>&rdquo; agreement (where &ldquo;the user does not see the contract at all but in which the license terms provide that using a [web]site constitutes agreement to a contract whether the user knows it or not&rdquo;);&nbsp; &ldquo;<em>clickwrap</em>&rdquo; agreement (&ldquo;in which website users are required to click on an &lsquo;I agree&rsquo; box after being presented with a list of terms and conditions of use&rdquo;);&nbsp; &ldquo;<em>scrollwrap</em>&rdquo; agreement (requiring &ldquo;users to physically scroll through an internet agreement and click on a separate &lsquo;I agree&rsquo; button in order to assent to the terms and conditions of the host website&rdquo;); or &ldquo;<em>sign-in-wrap</em>&rdquo; agreement (that presents the user &ldquo;with a button or link to view terms of use,&rdquo; and that &ldquo;usually contain language to the effect that, by registering for an account, or signing into an account, the user agrees to the terms of service to which she could navigate from the sign-in screen&rdquo;).</div> <div> &nbsp;</div> <div> The district court held the Terms of Service, including its arbitration provision, to be enforceable because &ldquo;[t]he process through which the plaintiffs established their accounts put them on reasonable notice that their affirmative act of signing up also bound them to Uber&rsquo;s Agreement.&rdquo;&nbsp; In particular, the district court concluded that the notice on Uber&rsquo;s registration screen that creation of an account bound the user to Uber&rsquo;s Terms of Service was &ldquo;prominent enough to put a reasonable user on notice of the terms of the Agreement.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The district court also concluded that plaintiffs had manifested their agreement to the Terms of Service because &ldquo;[t]he language surrounding the button leading to the Agreement is unambiguous in alerting the user that creating an account will bind her to the Agreement,&rdquo; and &ldquo;the word &lsquo;Done,&rsquo; although perhaps slightly less precise than &lsquo;I accept,&rsquo; or &lsquo;I agree,&rsquo; makes clear that by clicking the button the user has consummated account registration, the very process that the notification warns users will bind them to the Agreement.&rdquo;</div> <div> &nbsp;</div> <div> <em><strong>The First Circuit Reverses.&nbsp;</strong></em> On appeal, plaintiffs challenged the district court&rsquo;s conclusions that the Terms of Service was reasonably communicated to and accepted by plaintiffs.&nbsp; The court of appeals determined that users were not reasonably notified of the Terms of Service because of how the hyperlink to the terms was displayed on the registration screen.&nbsp; Emphasizing that the conspicuousness of the link &ldquo;may not be read in a vacuum,&rdquo; but &ldquo;must be contextualized,&rdquo; the court scrutinized the appearance and placement of the link in relation to the other buttons and visual elements on the screen:</div> <div> &nbsp;</div> <ul> <li> &ldquo;Uber&rsquo;s &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink did not have the common appearance of a hyperlink.&nbsp; While not all hyperlinks need to have the same characteristics, they are &lsquo;commonly blue and underlined.&rsquo; . . . Here, the &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink was presented in a gray rectangular box in white bold text.&nbsp; Though not dispositive, the characteristics of the hyperlink raise concerns as to whether a reasonable user would have been aware that the gray rectangular box was actually a hyperlink.&rdquo;<br /> &nbsp;</li> <li> &ldquo;[T]he overall content of the [registration screen] show[s] that the &lsquo;Terms of Service &amp; Privacy Policy&rsquo; hyperlink was not a conspicuous term . . . .&nbsp; The screen[] contained other terms displayed with similar features.&nbsp; For example, the terms &lsquo;scan your card&rsquo; and &lsquo;enter promo code&rsquo; were also written in bold and with a similarly sized font as the hyperlink. . . . [The screen] also included the words &lsquo;CANCEL&rsquo; and &lsquo;DONE,&rdquo; -- the latter being barely visible until the user had entered the required payment information -- in all capital letters and dark colored font. . . . The inclusion of the additional payment option and the placement of a large blue PayPal button in the middle of the screen were more attention-grabbing and displaced the hyperlink to the bottom of the screen.&rdquo;</li> </ul> <div> <br /> In short, it was the &ldquo;design and content&rdquo; of the screen that led the court of appeals to conclude that the Terms of Service hyperlink &ldquo;was not conspicuous.&rdquo;&nbsp; The court noted that &ldquo;[e]ven though the hyperlink did possess some of the characteristics that make a term conspicuous, the presence of other terms on the same screen with a similar or larger size, typeface, and with more noticeable attributes diminished the hyperlink&rsquo;s capability to grab the user&rsquo;s attention.&nbsp; If everything on the screen is written with conspicuous features, then nothing is conspicuous.&rdquo;</div> <div> &nbsp;</div> <div> Even less conspicuous to the court of appeals was the phrase &ldquo;By creating an Uber account, you agree to the.&rdquo;&nbsp; The court noted that &ldquo;[t]his notice was displayed in a dark gray small-sized non-bolded font against a black background,&rdquo; and as a result, &ldquo;[t]he notice simply did not have any distinguishable feature that would set it apart from all the other terms surrounding it.&rdquo;</div> <div> &nbsp;</div> <div> Because plaintiffs were not reasonably notified of the Terms of Service, it followed that they also did not provide their unambiguous assent to those terms.&nbsp; The court of appeals reversed the district court&rsquo;s order compelling arbitration and dismissing the action, and remanded the case for further proceedings consistent with its opinion.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WLS062818 Modern Slavery Bill 2018: An Action Plan http://www.seyfarth.com:80/publications/WLS062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> At the centre of the Bill is the Modern Slavery Reporting Requirement: a mandatory requirement that entities based, or operating, in Australia, which have an annual consolidated revenue of more than AUD $100 million, report annually on the risks of modern slavery in their local and global operations and supply chains, and take actions to address those risks.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/modern-slavery-bill-2018-an-action-plan/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT062818 The Week in Weed: June 29, 2018 http://www.seyfarth.com:80/publications/TBT062818 Thu, 28 Jun 2018 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="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-29-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT062818a Oklahoma Creates a Buzz by Legalizing Medical Marijuana http://www.seyfarth.com:80/publications/TBT062818a Thu, 28 Jun 2018 00:00:00 -0400 <p> Going in to this election, the possession and use of medical marijuana was illegal in Oklahoma. However, arguments against cannabis legalization have now gone up in smoke. The Oklahoma voters have spoken by enacting State Question (SQ) 788, which now makes it legal to grow, sell, and use marijuana for medicinal purposes. Under the law, adults with a medical marijuana license would be authorized to, among other things, possess up to three ounces of marijuana on their person, six flowering plants, seventy two ounces of edibles, and one ounce of concentrated marijuana derived from the plant. SQ 788 will go into effect 30 days from June 26, 2018.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/oklahoma-creates-a-buzz-by-legalizing-medical-marijuana/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE062818 Is AI Above the Curve in Evaluating Employee Performance? http://www.seyfarth.com:80/publications/FE062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Can software and tech tools that use artificial intelligence (AI) improve the performance management process? The research to date suggests that AI may automate some aspects of the performance review cycle, but its ability to provide useful feedback is still limited.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/27/is-ai-above-the-curve-in-evaluating-employee-performance">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE062818 MSHA Issues RFI for Safety Improvement Technologies and Belt Conveyors http://www.seyfarth.com:80/publications/WSE062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: MSHA just announced a Request for Information (RFI) on safety improvement technologies for mobile equipment and for belt conveyors, both at surface mines. 83 Fed. Reg. 29716 (June 26, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/msha-compliance/msha-issues-rfi-for-safety-improvement-technologies-and-belt-conveyors/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL062818 As Predicted…. On July 1, Oregon Will Become The First State With A Predictable Scheduling Law http://www.seyfarth.com:80/publications/EL062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Oregon&rsquo;s new employee scheduling law &ndash; impacting hourly employees at large retail, food service, and hospitality employers &ndash; goes into effect after the end of this week, on July 1. Affected employers must now be aware of the potential consequences in changing employees&rsquo; schedules.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/as-predicted-on-july-1-oregon-will-become-the-first-state-with-a-predictable-scheduling-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR062818 Supreme Court Strikes Down Compulsory Public Sector Union Membership – What Will The Impact Be? http://www.seyfarth.com:80/publications/LR062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Public-sector labor unions were dealt a heavy, but not unexpected, blow as the Supreme Court of the United States issued a landmark decision in Janus v. AFSCME. By a vote of 5 to 4, the Court held that fair share fees for public-sector unions are unconstitutional. Whether the actual fallout from the decision will match the level of the pre-decision rhetoric remains to be seen.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/28/supreme-court-strikes-down-compulsory-public-sector-union-membership-what-will-the-impact-be/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM062818-LE Governor Signs Massachusetts Paid Family And Medical Leave Law http://www.seyfarth.com:80/publications/OMM062818-LE Thu, 28 Jun 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:<em> Earlier today, Governor Baker signed into law &ldquo;An Act Relative To Minimum Wage, Paid Family Medical Leave And The Sales Tax Holiday.&rdquo;&nbsp; We <a href="http://www.seyfarth.com/publications/MA062218-LE">previously reported</a> on the details of this bill after the Legislature passed it last week, <a href="http://www.seyfarth.com/publications/MA062218-LE">linked here</a>.</em></p> <p> The so-called &ldquo;grand bargain&rdquo; law will provide Massachusetts employees paid family and medical leave.&nbsp; Massachusetts will have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.</p> <p> The law also will gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</p> <p> As previously reported, the statutory language raises a number of questions that will need to be addressed through the regulatory process.&nbsp; The Governor signed the legislation as is, although it is our understanding that at some point in the future, the Governor will file a corrections bill.&nbsp; Both technical and substantive corrections will likely take place through this corrections bill and the regulatory process.</p> <p> Please join us for a live webinar on Wednesday, July 11 at 1:00 p.m. ET to discuss the Family Medical Leave Law and its impact on Massachusetts employers. <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cSMSZYG516jsIXeEWuZqchuWdHJc3njfIMG-YQCVEI1g&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cXbE1Oz1vP44L1yIBBvBBJ6h4HIhHAgwt50MydfvJItg&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cZyLqXy3v823Nmz1CXZHl4OuLK47M2mm2lLs5D2BiPHb">Click here to register</a>.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/schwartzfenwick062818 Sam Schwartz-Fenwick quoted in Law.com http://www.seyfarth.com:80/news/schwartzfenwick062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a June 28 story from Law.com, &quot;Labor of Law: With Kennedy&rsquo;s Retirement, LGBT Workplace Protections Face Uncertain Future.&quot; Schwartz-Fenwick said there will be more uncertainty surrounding questions of LGBT protections, but even if Kennedy were still on the court, it wasn&rsquo;t so clear how the justices might interpret Title VII&rsquo;s anti-discrimination protections.</p> http://www.seyfarth.com:80/news/schwartzfenwicknlj062818 Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/schwartzfenwicknlj062818 Thu, 28 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a June 28 story from the National Law Journal, &quot;LGBT Workplace Cases Arrive at SCOTUS as Kennedy Punches Out.&quot; Schwartz-Fenwick said it&rsquo;s not a right versus left, conservative versus liberal issue. He continued that it will be about the specific question that is presented.</p> http://www.seyfarth.com:80/publications/OMM062718-LIT An SDNY Dilemma: CFPB Held Unconstitutional Over Director Removal Provision http://www.seyfarth.com:80/publications/OMM062718-LIT Wed, 27 Jun 2018 00:00:00 -0400 <div> On June 21, 2018, in deciding a motion to dismiss a complaint brought the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;)and the State of New York, Judge Loretta Preska of the U.S. District Court for the Southern District of New York held that the CFPB&rsquo;s structure is unconstitutional.&nbsp;</div> <div> &nbsp;</div> <div> Previously the D.C. Circuit, sitting <em>en banc</em> in <em>PHH Corp. v. CFPB</em>, 881 F.3d 75 (D.C. Cir. 2018), had held that Title X of the Dodd-Frank Act, which &ldquo;established the CFPB as an &lsquo;independent bureau&rsquo; within the Federal Reserve System,&rdquo; was validly enacted. Judge Preska disagreed with the panel and adopted the minority view proposed by the dissent in that case. First, she accepted Judge Brett Kavanaugh&rsquo;s conclusion that the CFPB was unconstitutionally structured because it is an &ldquo;independent agency that exercises substantial executive power and is headed by a single Director.&rdquo; Namely, Judge Kavanaugh took issue with the CFPB&rsquo;s unchecked authority vested in a single director, where history, liberty, and presidential authority dictate otherwise.&nbsp;</div> <div> &nbsp;</div> <div> Second, Judge Preska declined to adopt Judge Kavanaugh&rsquo;s proposed remedy to strike the offending &ldquo;for-cause removal provision&rdquo; of the statute and to require the CFPB director be held accountable under the president. She instead subscribed to Judge Karen LeCraft Henderson&rsquo;s suggested remedy to strike Title X entirely because the offending provision was at the &ldquo;heart&rdquo; of Title X and because a &ldquo;severability clause &lsquo;does not give the court power to amend&rsquo; a statute.&rdquo;</div> <div> &nbsp;</div> <div> Third, Judge Preska held that the CFPB&rsquo;s unconstitutional structure could not be cured by agency action. The CFPB had argued that Director Mick Mulvaney&rsquo;s ratification of the enforcement proceeding resolved the constitutional issues because the President may remove Mr. Mulvaney at will. But Judge Preska explained that whether Mr. Mulvaney ratified the CFPB&rsquo;s actions has no bearing on whether the CFPB&rsquo;s structure is constitutional. The Court acknowledged that while Mr. Mulvaney was subject to removal at will, his successor will still be subject to the same problematic &ldquo;for-cause&rdquo; removal provision.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Judge Preska found the CFPB lacked authority to sue the defendants because the agency&rsquo;s &ldquo;composition violates the Constitution&rsquo;s separation of powers.&rdquo; But, although she terminated the CFPB as a party, she held that the claims brought by the State of New York could proceed.&nbsp;</div> <div> &nbsp;</div> <div> Seyfarth Shaw continues to monitor the developments involving the CFPB and will keep its readers apprised of updates.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA062718-LE If Pain, Yes Gain—Part L: Seattle Starts Summer with Amended Sick Time Rules http://www.seyfarth.com:80/publications/MA062718-LE Wed, 27 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Earlier this month, the Seattle Office of Labor Standards released its final amended paid sick and safe time rules. The amended rules, which go into effect on July 1, 2018, expand on the city&rsquo;s amended Paid Sick and Safe Time Ordinance. The amended rules also largely serve to further align the Seattle paid sick and safe time standards with those under the Washington state Paid Sick Leave Law.</em></p> <p> The 2018 calendar year has seen a wave of paid sick leave activity in the state of Washington. On January 1, the <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington statewide paid sick leave law</a> went into effect, making it the then-seventh state in the country to impose mandatory sick leave obligations on employers.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> That same day also saw Tacoma&rsquo;s amended paid sick leave ordinance become effective, and was the first day after&nbsp;<a href="https://my.spokanecity.org/business/doing-business/earned-sick-and-safe-leave/">Spokane&rsquo;s paid sick leave ordinance sunset</a> (i.e., it is no longer in effect). Then, on January 14, Seattle amended its Paid Sick and Safe Time Ordinance (&ldquo;PSSTO&rdquo;). The amendments in Tacoma and Seattle were largely meant to align the ordinances with the new Washington statewide law, although both ordinances remain more generous than the statewide law in certain respects.</p> <p> The latest example of Washington paid sick leave activity occurred earlier this month in Seattle&mdash;home of one of the nation&rsquo;s first mandatory paid sick leave laws.&nbsp; Specifically, the Seattle Office of Labor Standards has released its final amended paid sick and safe time rules (the &ldquo;Amended Rules&rdquo;), which go into effect on July 1, 2018. The Amended Rules continue Seattle&rsquo;s efforts to better align its sick leave requirements with those of the statewide law. However, as is the case with the PSSTO, the Amended Rules contain at least some differences from the Washington sick leave law.</p> <p> Here are the highlights:</p> <ul> <li> <strong>Eligibility of Occasional Employees:</strong> The amended PSSTO left open the question of what standard employers should use to determine if employees who occasionally work in the city of Seattle are entitled to paid sick and safe time (&ldquo;PSST&rdquo;) benefits. The Amended Rules resolve this uncertainty and confirm that an employee who is &ldquo;typically based outside of the City and performs work in the City on an occasional basis&rdquo; will be covered by the PSSTO after performing more than 240 hours of work in Seattle within a year. The PSSTO states that the 240-hours worked standard only needs to be satisfied once during an individual&rsquo;s employment. Further, once an employee who works in Seattle on an occasional basis is covered under the PSSTO, all previous hours worked in Seattle during that benefit year count toward PSST accrual. <ul> <li> <u>Typically Based Outside of the City</u>: The Amended Rules explain that an employee is considered to be typically based outside of the city if she works outside of the Seattle geographic boundaries for more than 50% of her work hours in a year. For new hires, the same 50% standard applies, except it is measured over the course of the employee&rsquo;s employment.</li> <li> <u>Occasional Basis</u>: The Amended Rules also note that performing work in Seattle on an occasional basis means that an employee does not have a regular work schedule of hours within the geographic boundaries of Seattle.</li> </ul> </li> <li> <strong>Accrual and Use of PSST:</strong> The Amended Rules confirm that Tier 1 and Tier 2 employers under the PSSTO must allow employees to accrue PSST at least as fast as one hour of PSST for every 40 hours worked.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> Similarly, the Amended Rules confirm that Tier 3 employers must allow employees to accrue PSST at least as fast as one hour of PSST for every 30 hours worked.<a href="#_ftn3" name="_ftnref3" title="">[3]</a> As with the Washington state paid sick leave law, neither the PSSTO nor the Amended Rules include language that would cap how much PSST employees can ultimately accrue and use in a single year.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> <ul> <li> <u>No PSST Accrual For Non-Work Hours</u>: The Amended Rules make clear that employers are not required to allow overtime eligible employees to accrue PSST for hours compensated when not working. For example, employers are not required to allow overtime eligible employees to accrue PSST during vacation, paid time off, or while using paid sick and safe time.</li> </ul> </li> <li> <strong>Frontloading:</strong> As with the Washington state sick leave law, the Amended Rules explain that frontloading PSST to employees will be viewed as an advance on accrual. Accordingly, an employer who follows a frontloading approach <em>must</em> meet or exceed the PSSTO requirements on accrual, use and carryover of PSST. If an employer frontloads PSST, the employer must use a reasonable calculation to determine the amount of PSST the employee would have otherwise accrued absent frontloading. If the employer&rsquo;s calculation turns out to be less than what the employee would have accrued, the employer must provide the additional PSST to the employee as soon as practicable and no later than 30 days after identifying the discrepancy.</li> <li> <strong>Increments of Use: </strong>The PSSTO (at least for overtime eligible employees) and Washington sick leave law state that employers must allow employees to use sick leave in increments consistent with the employer&rsquo;s payroll system and practices, not to exceed one hour. Under the Washington state law, employers can receive a variance from the required increments of use if the employer makes a successful showing of &ldquo;good cause,&rdquo; namely that the general increment is infeasible and would cause harm to the involved employees. The Amended Rules explicitly state that no such variance option exists under the PSSTO and that the city will <em>not</em> recognize a variance issued by the state.</li> <li> <strong>Sick Time Payment:</strong> Pursuant to the Amended Rules, an employer must calculate an employee&rsquo;s normal hourly compensation using a reasonable calculation based on the hourly rate that the employee would have earned for the time during which the employee used PSST. The Amended Rules provide examples of reasonable calculations of &ldquo;normal hourly compensation&rdquo; for overtime eligible employees (including those who are paid a salary), overtime exempt employees, and employees whose hourly rate of pay fluctuates. <ul> <li> <u>Written Policy Requirement</u>: Notably, the Amended Rules expand an employer&rsquo;s written sick time policy obligations (see below) by adding sick time payment as a mandatory written policy topic. By <u>September 1, 2018</u>, Seattle employers&rsquo; sick time policies must state that an employee has a right to be paid their normal hourly compensation for using PSST.</li> </ul> </li> <li> <strong>Employee Notice to the Employer:</strong> As with the Washington state paid sick leave law, the Amended Rules confirm that where an employee has an unforeseeable need to use PSST and is unable to provide notice to the employer, a person on the employee&rsquo;s behalf may provide the required notice. Also, like the Washington state law, the Amended Rules note that for PSST absences related to domestic violence, sexual assault, or stalking, employees should follow the notice standards set forth in the state&rsquo;s Domestic Violence Leave Act. Among the many components of the PSSTO&rsquo;s written policy requirement,<a href="#_ftn5" name="_ftnref5" title="">[5]</a> the Amended Rules expressly note that employers must have a written policy outlining any requirements of an employee to provide notice for the use of PSST.</li> <li> <strong>Documentation:</strong> Under the PSSTO, an employer can require an employee to provide reasonable verification that the employee&rsquo;s use of PSST was for an authorized purpose when the employee has been absent for more than three consecutive days. Consistent with the Washington state paid sick leave law, the Amended Rules note that employers cannot require that the employee provide this verification until at least 10 calendar days after the first day the employee uses PSST. Further, as noted above, the Amended Rules confirm that any such verification requirements must be expressly stated in a written policy.</li> <li> <strong>Available Balance Notification:</strong> Both the Washington state sick leave law and the PSSTO mandate that employers provide each employee with written notification stating an updated amount of PSST available to each employee for use as either paid sick time or paid safe time. The updated amount must include (a) accrued PSST since the last notification, (b) reduced PSST since the last notification, and (c) any unused PSST available for use. The Amended Rules further echo the Washington state law by mandating that employers also provide employees with notice of their PSST balance upon rehire (see below) and in situations where an employer frontloads PSST to employees in advance of accrual.</li> <li> <strong>Suspected Abuse of PSST:</strong> Consistent with the Washington state paid sick leave law, under the Amended Rules, if an employer can demonstrate that an employee&rsquo;s use of PSST was for an unauthorized purpose, the employer may withhold payment of PSST for such hours. However, in this situation, the employer may not subsequently deduct those hours from the employee&rsquo;s legitimately accrued, unused PSST hours. If an employer withholds payment when PSST is used for unauthorized purposes, the employer must inform the employee of the withholding.</li> <li> <strong>Separation of Employment, Payout, and Reinstatement of Unused PSST:</strong> The PSSTO expressly states that employers are not required to payout an employee&rsquo;s accrued, unused PSST balance at termination or other separation of employment. In addition, the PSSTO states that when a separated employee is rehired by the employer within 12 months of separation, previously accrued, unused PSST must be immediately reinstated to the employee. The Amended Rules add a caveat to this general reinstatement standard. Specifically, the Amended Rules state that, an employer and employee can mutually agree, in writing, that the employer will reimburse the employee for any portion of their accrued, unused PSST at the time of separation. Assuming this occurs and the unused PSST was paid at the appropriate rate, an employer need not reinstate unused PSST hours if the employee is rehired within one year of separation.</li> </ul> <p> Seattle employers should take steps now to comply with the Amended Rules by their rapidly approaching 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 Amended Rules.</li> <li> Ensure tracking systems can meet the PSSTO and Amended Rules&rsquo; available balance notification standards.</li> <li> Monitor the <a href="http://www.seattle.gov/laborstandards/ordinances/paid-sick-and-safe-time">Seattle PSSTO website</a> for further information on the Amended Rules, including potential updated FAQs.</li> </ul> <p> The paid sick leave landscape has not slowed down in terms of expanded laws and complexity of the laws. &nbsp;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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</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 existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. The Maryland paid sick leave law went into effect on February 11, 2018. The Rhode Island paid sick leave law goes into effect on July 1, 2018 and the New Jersey paid sick leave law goes into effect on October 29, 2018.&nbsp;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> &ldquo;Tier 1 employer&rdquo; means an employer that employs at least one employee and fewer than 50 full-time equivalents, regardless of where those employees are employed, on average per calendar week. &ldquo;Tier 2 employer&rdquo; means an employer that employs at least 50 and fewer than 250 full-time equivalents, regardless of where those employees are employed, on average per calendar week.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> &ldquo;Tier 3 employer&rdquo; means an employer that employs 250 or more full-time equivalents, regardless of where those employees are employed, on average per calendar week</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> FAQ No. E.2 in the PSSTO&rsquo;s <a href="http://www.seattle.gov/Documents/Departments/LaborStandards/PSST%20QA%20%2012_21_17%20final.pdf">December 2017 FAQs</a> states that &ldquo;Employers may not cap the use of PSST. As long as employees have accrued and unused PSST, they may use it without limit.&rdquo;</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> The amended PSSTO states that an employer must provide each employee with a written PSST policy and that the policy must include: (a) the employee&rsquo;s right to PSST; (b) the employer&rsquo;s benefit year; (c) the employer&rsquo;s tier size; (d) the employer&rsquo;s rate of PSST accrual and carry over; (e) authorized purposes under which PSST may be used; (f) the manner of providing employees with notification of available PSST each time wages are paid; (g) the reasonable notice requirements for requesting use of PSST; (h) prohibitions against retaliation for use of PSST; (i) any standards regarding verification for use of PSST for more than three consecutive days, use of frontloaded PSST, a universal paid leave policy, or a shared PSST program where employees can donate time to a co-worker; and (j) other information that is material and necessary to complying with the PSSTO.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA062718-LE2 Supreme Court Strikes Down Compulsory Public-Sector Union Membership - What Will The Impact Be? http://www.seyfarth.com:80/publications/MA062718-LE2 Wed, 27 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; Public-sector labor unions were dealt a heavy, but not unexpected, blow today as the Supreme Court of the United States issued a landmark decision in Janus v. AFSCME.&nbsp; By a vote of 5 to 4, the Court held that fair share fees for public-sector unions are unconstitutional.&nbsp; &nbsp;Whether the actual fallout from the decision will match the level of the pre-decision rhetoric remains to be seen.&nbsp;&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Janus v. AFSCME</em> was brought by Mark Janus, a child support worker in Illinois who opted not to join the union, the American Federation of State, County and Municipal Employees (&ldquo;AFSCME&rdquo;), that represents Illinois state government employees. The primary issue in the case was the propriety of the $45 &ldquo;agency&rdquo; or &ldquo;fair share&rdquo; fee that was automatically deducted from Janus&rsquo; paycheck on a monthly basis. AFSCME assessed this monthly fee to Janus (and other Illinois government employees who opted out of membership in AFSCME), allegedly for services that nonunion members, like Janus, benefit from, such as negotiating and administering a collective bargaining agreement, and handling grievance procedures.</div> <div> &nbsp;</div> <div> Today&rsquo;s decision overrules the prior position of the Court that a public-sector union may collect agency or fair share fees, which has been the law since the Supreme Court&rsquo;s 1977 <em>Abood v. Detroit Board of Education</em> decision. The <em>Janus v. AFSCME</em> case revisited <em>Abood</em> and examined whether public-sector unions can continue to compel nonunion members to pay agency or fair share fees, or whether they constitute compelled speech and therefore violate First Amendment rights given that the money may also be utilized to support the union&rsquo;s political speech and legislative agenda.</div> <div> <p> <em>Janus v. AFSCME</em> has garnered significant national interest and attention, including the filing of over fifty (50) <em>amici </em>briefs, including many from industry groups and labor unions. The primary legal arguments on the issue were as follows:</p> <p> <strong>Janus</strong>&nbsp;<br /> <br /> Janus argued that the fair share fee constitutes a violation of his First Amendment rights for two primary reasons. First, Janus argued that collectively bargaining with a government employer is akin to lobbying the government. Second, Janus argued that fair share fees are a form of compelled speech and association that deserve strict constitutional scrutiny. Janus further argued that the use of fair share fees for purposes of labor stability and to discourage &ldquo;free riders&rdquo; should be found unconstitutional.&nbsp;</p> <p> <strong>AFSCME</strong>&nbsp;<br /> <br /> AFSCME argued that Janus misconstrues the intent behind the First Amendment, how the Supreme Court has previously applied the First Amendment and the nature and idiosyncrasies of collective bargaining.&nbsp; AFSCME further argued that the Supreme Court has articulated a narrower view of First Amendment rights for public employees, limiting those rights speaking as both a citizen and on matters of public concern. AFSCME highlighted that the Supreme Court has always balanced a public-sector employee&rsquo;s rights in speech with the government&rsquo;s interests, as outlined in <em>Abood</em>. AFSCME also argued that collective bargaining primarily concerns terms and conditions of employment, are non-political in nature and have nothing to do with lobbying. AFSCME contended that if the Supreme Court accepts Janus&rsquo; arguments, it has the potential to deprive the government from making basic personnel decisions, a managerial cornerstone of collective bargaining.</p> <p> The Court held that Illinois&rsquo; extraction of agency fees from nonconsenting public-sector employees violates the First Amendment. The Court concluded that forcing free and independent individuals to endorse ideas they may find objectionable raises serious First Amendment issues, which includes compelling a person to subsidize the speech of other private speakers.&nbsp;&nbsp;</p> <p> In rejecting and overturning <em>Abood</em>, the Court reasoned that exclusive representation of all the employees in a bargaining unit and the extraction of fair share fees is not inextricably linked. The Court reasoned that the risk of free riders (nonmembers that benefit from the union&rsquo;s efforts) is not a compelling state interest sufficient to overcome First Amendment rights. &nbsp;Importantly, the Court held that &ldquo;States and public-sector unions may no longer extract agency fees from nonconsenting employees.&rdquo; Specifically, the Frist Amendment is violated when money is taken from nonconsenting employees for a public-sector union. This means that &ldquo;employees must affirmatively consent before fees can be withheld from their paychecks - the system must be opt-in, not opt-out.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&rdquo;</p> <p> The Court also rejected AFSCME&rsquo;s argument that public employees have no free speech rights as a position that would have required &ldquo;overturning decades of landmark precedent.&rdquo;&nbsp; In determining that <em>Abood</em> must be overruled, the Court primarily considered five factors:&nbsp; &ldquo;the quality of <em>Abood&rsquo;s</em> reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision.&rdquo;&nbsp; Each factor favored establishing new precedent.&nbsp;</p> <p> The decision in <em>Janus</em> serves to further explain the current Court&rsquo;s view on the treatment of compelled state speech. In <em>NIFLA</em> v. <em>Beceera</em>, decided the day before <em>Janus,</em> the Court found that the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (&ldquo;FACT ACT&rdquo;) was unconstitutional. The FACT ACT required clinics that serve pregnant women to provide certain notices related to free or low-cost medical services, including abortions. The Court found the FACT ACT to be an unconstitutional content based law that that was not narrowly tailored to serve compelling state interests. In other words, the Court found that the FACT ACT impermissibly mandated speech on a political agenda (i.e. pro-choice), much like the holding in <em>Janus</em> finds that fair share fees used by a union for lobbying impermissibly compels a certain political agenda not narrowly tailored to serve compelling state interests.</p> <p> Practically, the outcome today will necessarily have <u>some</u> impact on the financial statements of unions that are heavily engaged in public sector representation.&nbsp; Surely, there will be employees who do not work in a right-to-work state (an employee in a right-to-work state does not have to pay fair share fees if not a member of the union), and who will resign their membership based solely on the financial implications.&nbsp; This assumes that reclaiming $540 a year in fees that are no longer required will be meaningful to some state workers.&nbsp; The magnitude of the defection could potentially determine the fate of some unions, but whether the predicted landslide of members will occur remains anyone&rsquo;s guess. As noted by the Court, one also must consider the &ldquo;billions of dollars&rdquo; received from non-members in the past 41 years. &nbsp; According to the Bureau of Labor Statistics, 10.7% of U.S. workers were union members in 2017 - down from 20.1%&nbsp; in 1983. &nbsp;Nearly a third of U.S. government employees are members of a public-sector union.</p> <p> Organized labor will most certainly bemoan the potential impacts of this decision, particularly following another recent blow to organized labor: the Supreme Court&rsquo;s decision in <a href="http://www.seyfarth.com/publications/MA052118-LE">Epic Systems</a> holding that the maintenance of individual arbitration agreements containing class-action waivers does not violate the National Labor Relations Act.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> It is essential to highlight that the Court&rsquo;s holding is limited to public-sector unions. It is not unlawful for private-sector unions and employers to negotiate and agree upon agency and fair share fees in collective bargaining agreements, subject to the existence of any right to work laws governing their jurisdiction.</p> </div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CP062718 New FEHC Regulations: The Galactic Expanse of National Origin Law in California http://www.seyfarth.com:80/publications/CP062718 Wed, 27 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers, take note&mdash;the long-awaited, new FEHA regulations related to national origin are about to take effect! Come July 1, 2018, new regulations on national origin under California&rsquo;s Fair Employment and Housing Act reflect a broad definition of national origin, codify existing case law, and intensify already strict regulations prohibiting harassment, discrimination, and retaliation based on national origin. The regulations will apply to applicants and employees, irrespective of documentation status. (The prior FEHC regulations on national origin addressed only English-only policies and incorporated defenses generally applicable to other protected bases.)<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/27/galactic-expansion-of-national-origin-discrimination-regulations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO062618 Choose Your Weapon: Senate Amendment Pits ANDA/BPCIA Pathway Against Post-Grant Proceedings http://www.seyfarth.com:80/publications/BIO062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Per Senator Orrin Hatch, the America Invents Act has disrupted the &ldquo;careful balance&rdquo; he struck with Senator Waxman in the development of the decades-old Hatch-Waxman Act governing the adjudication of generic drug litigation. On June 13, 2018, Senator Hatch filed an amendment in the Senate Judiciary Committee to remedy the perceived conflict between the &ldquo;carefully calibrated requirements&rdquo; of Abbreviated New Drug Application (&ldquo;ANDA&rdquo;) litigation under the Hatch-Waxman Act and the &ldquo;much blunter instrument&rdquo; of post-grant proceedings before the United States Patent Trial and Appeal (&ldquo;PTAB&rdquo;). According to Senator Hatch, the amendment &ldquo;will ensure that Hatch-Waxman continues to operate as originally intended by protecting the ability of generic drug companies to develop low-cost drugs while at the same time ensuring brand-name companies have sufficient protections in place to recoup their investments.&rdquo; A press release of Senator Hatch&rsquo;s remarks is available here.<br /> <br /> <a href="https://www.bioloquitur.com/choose-weapon-senate-amendment-pits-anda-bpcia-pathway-post-grant-proceedings/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT062618 Will President Trump Support a Bipartisan Congressional Effort to Protect State Marijuana Laws? http://www.seyfarth.com:80/publications/TBT062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Amidst a public disagreement between President Trump and Attorney General Jeff Sessions regarding the conflict between federal and state marijuana laws, Sen. Elizabeth Warren (D-MA) and Sen. Cory Gardner (R-CO), announced introduction of a bipartisan bill to protect states with pot-friendly laws against federal prosecution. The bill, introduced on June 7, 2018 and called the &ldquo;Strengthening the Tenth Amendment Through Entrusting States Act&rdquo; or the &ldquo;STATES Act&rdquo; proposes to protect state cannabis industries from the ire of federal drug enforcement authorities. A companion bill also has been introduced in the House. The full text of the Senate bill, S. 3032, is available here, and the corresponding House bill, H.R. 6043, is available here.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/will-president-trump-support-a-bipartisan-congressional-effort-to-protect-state-marijuana-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD062618 An SDNY Dilemma: CFPB Held Unconstitutional Over Director Removal Provision http://www.seyfarth.com:80/publications/CCD062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> On June 21, 2018, in deciding a motion to dismiss a complaint brought the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;)and the State of New York, Judge Loretta Preska of the U.S. District Court for the Southern District of New York held that the CFPB&rsquo;s structure is unconstitutional.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/an-sdny-dilemma-cfpb-held-unconstitutional-over-director-removal-provision/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL062618 The Board’s General Counsel Memorandum is a Comforting Return to a Common Sense Approach to Workplace Policies http://www.seyfarth.com:80/publications/EL062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On June 6, 2018, Peter. B. Robb, General Counsel for the National Labor Relations Board (&ldquo;Board&rdquo;), provided employers with the first substantive guidance regarding workplace policies since the Board&rsquo;s Boeing decision. General Counsel Memorandum 18-04 is a victory for employers as the Board seems to be returning to a common sense approach when evaluating workplace policies concerning on the job conduct, confidentiality, defamation, intellectual property, among other things.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA062618-LE If Pain, Yes Gain—Part XLIX: Duluth Diagnosed With Paid Sick Leave; Symptoms Begin 2020 http://www.seyfarth.com:80/publications/MA062618-LE Tue, 26 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On May 31, 2018, Duluth, MN enacted a mandatory paid sick leave ordinance known as the Earned Sick and Safe Time Ordinance. Duluth joins Minneapolis and St. Paul as the only municipalities in Minnesota to pass such an ordinance. The ESSTO is scheduled to go into effect on January 1, 2020.</em></p> <p> After months of debate and multiple iterations of a potential sick leave mandate, Duluth, MN has officially joined the paid sick leave landscape. On May 31, 2018, Duluth enacted the Earned Sick and Safe Time Ordinance (&ldquo;ESSTO&rdquo;), which will impose paid sick leave obligations on employers beginning on January 1, 2020. Duluth now joins Minneapolis and St. Paul as the third city in Minnesota to enact a paid sick leave ordinance.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> The <a href="http://www.seyfarth.com/publications/MA060716-LE">Minneapolis</a> and <a href="http://www.seyfarth.com/publications/MA091416-LE">St. Paul</a> ordinances both went into effect on July 1, 2017.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> Some highlights of the Duluth ESSTO include:</p> <ul> <li> Employers with five or more employees, which is measured by averaging the number of employees per week during the previous calendar year <em>regardless</em> of whether they work in Duluth, must provide paid sick and safe time (&ldquo;PSST&rdquo;) to their Duluth employees.</li> <li> Employees must accrue PSST at least as fast as one hour of earned PSST for every 50 hours worked, up to 64 hours per year. Employers can limit employees&rsquo; use of PSST to 40 hours per year.</li> <li> The ESSTO definition of &ldquo;family member&rdquo; includes individuals whose close association with the employee is the equivalent of a family relationship.</li> <li> While an employer must notify its employees about certain PSST topics, such as their right to PSST, the amount of PSST provided under the ESSTO, how PSST can be used, that retaliation against those who request or use PSST is prohibited, and employees&rsquo; right to file a complaint about alleged ESSTO violations, the ordinance <em>does not </em>clearly identify how or when such notice must be given.</li> </ul> <p> <strong>Which Employers are Covered Under the ESSTO?</strong></p> <p> The ESSTO defines &ldquo;employer&rdquo; as any individual, corporation, partnership, association, nonprofit organization, or group of persons who has five or more employees. An employer&rsquo;s size will be determined by averaging its number of employees per week during the previous calendar year. Importantly, under the ESSTO, these employees do not have to work in Duluth, MN to be counted.&nbsp;</p> <p> &rdquo;Employer&rdquo; does not include the United States government, the state of Minnesota, or any county or local government, except the city of Duluth.</p> <p> <strong>Which Employees are Covered by the ESSTO?</strong></p> <p> The ESSTO defines &ldquo;employee&rdquo; using a primary place of work standard. In particular, an individual will be eligible for PSST if, over a 12-month period, more than 50% of her working time is spent within the geographic boundaries of the city. Alternatively, an individual will be eligible for PSST if her work is based in the city of Duluth, she spends a substantial part of her time working in the city, and she does not spend more than 50% of her time working in any other particular place.</p> <p> &ldquo;Employee&rdquo; contains several exclusions, including independent contractors, student interns, seasonal employees, and any person who is entitled to benefits under or otherwise covered by the federal Railroad Unemployment Insurance Act. The ESSTO&rsquo;s failure to cover seasonal employees is a deviation from general paid sick leave law treatment of these individuals, although certain laws do also carve out seasonal employees.<a href="#_ftn4" name="_ftnref4" title="">[4]</a></p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover?</strong></p> <p> Eligible employees begin accruing PSST at the start of their employment or on January 1, 2020, whichever is later. Employees must be permitted to accrue PSST at least as fast as one hour of PSST for every 50 hours worked.&nbsp; This accrual rate is significantly slower than the one hour for every 30 hours worked accrual rate under the Minneapolis and St. Paul sick leave ordinances. In fact, the ESSTO&rsquo;s accrual rate is one of the slowest (i.e., most employer-friendly) accrual rates of any sick leave law or ordinance in the country.<a href="#_ftn5" name="_ftnref5" title="">[5]</a></p> <p> Covered employers must allow eligible employees to accrue up to 64 hours of PSST per year. However, in practice, it is unlikely that many employees will reach this accrual threshold if employers enforce the ESSTO&rsquo;s one hour for every 50 hours worked accrual rate. Additionally, while the ESSTO&rsquo;s 64-hour annual PSST accrual cap is greater than the Minneapolis and St. Paul ordinances&rsquo; respective 48-hour annual accrual caps, unlike the Minneapolis and St. Paul ordinances, the ESSTO does not also impose a &ldquo;point-in-time&rdquo; accrual cap on employers.<a href="#_ftn6" name="_ftnref6" title="">[6]</a></p> <p> Under the ESSTO, employers must allow an employee to carry over up to 40 hours of earned but unused PSST from one benefit year to the next. The ESSTO explicitly states that an employer can satisfy certain requirements under the ordinance by frontloading at least 40 hours of PSST to an employee after her first 90 days of employment and at the start of each subsequent year. Unfortunately, it is unclear whether employers that adopt such a frontloading system will be shielded from the ESSTO&rsquo;s year-end carryover requirements.</p> <p> The ESSTO states that employers must allow employees to start using PSST after 90 calendar days of employment.&nbsp; To minimize the cost and impact of PSST, employers can limit employees to using a maximum of 40 PSST hours in a benefit year. This is true regardless of accrual and carryover balances. Employees can use available PSST in increments consistent with company policy or practice, or industry standards, as long as the increments do not exceed four hours.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave?</strong></p> <p> According to the ESSTO, employees can use their accrued PSST for the following reasons: (a) an employee&rsquo;s own mental or physical illness, injury, or health condition, need for medical diagnosis, care, or treatment, or need for preventive medical care; (b) to care for a covered family member who needs care, diagnosis, or treatment of a mental or physical injury, illness, or health condition, or who needs preventive medical care; or (c) for absences due to sexual assault, domestic abuse, or stalking of the employee or employee&rsquo;s family member.</p> <p> The ESSTO defines family member as an employee&rsquo;s (a) child, adopted child, adult child, foster child, legal ward, or child for whom the employee is a legal guardian, (b) spouse or domestic partner, (c) sibling, stepsibling, or foster sibling, (d) parent, stepparent, or parent-in-law, (e) grandchild, including foster grandchild, (f) grandparent, including step-grandparent, and (g) any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.</p> <p> <strong>Can Employers Use PTO Policies for Compliance with the ESSTO?</strong></p> <p> The ESSTO generally allows employers to use non-sick paid leave policies for compliance with the ordinance. Specifically, if an employer has a non-sick paid leave policy, such as a PTO or vacation policy, that provides employees with an amount of paid leave that may be used for the same purposes and under the same conditions as PSST, the employer <em>does not</em> have to provide additional earned sick and safe time.</p> <p> <strong>Can Employers Require Employees to Provide Medical or Other Documentation?</strong></p> <p> Yes, an employer can require an employee to provide reasonable documentation that PSST was used for a covered reason under the ESSTO. However, employers can <em>only</em> do so when the employee has been absent for more than three consecutive days.</p> <p> <strong>What is the Rate of Pay for Sick Leave?</strong></p> <p> An employer must compensate an employee for used PSST. Compensation must be at the employee&rsquo;s standard hourly rate for hourly employees, or at &ldquo;an equivalent rate&rdquo; for salaried employees.<a href="#_ftn7" name="_ftnref7" title="">[7]</a> Employers do not need to include lost tips or commissions when paying employees for PSST.</p> <p> <strong>What Notice Requirements Must Employees Provide When Using Sick Leave?</strong></p> <p> The ESSTO states that employers must allow employees to use available PSST upon employee request. The request should include the expected duration of the absence, whenever possible. An employer can require an employee to comply with its typical notice and procedural requirements for absences or requesting leave, as long as they do not interfere with the employee&rsquo;s right to use PSST.</p> <p> Although the ESSTO lacks specific notice standards for foreseeable and unforeseeable PSST absences, nothing in the ESSTO prevents an employer from taking reasonable action when an employee uses PSST in bad faith, such as a clear instance of abuse.</p> <p> <strong>Does the ESSTO Impose Notice Requirements on Employers?</strong></p> <p> Yes. However, the ESSTO <em>does not</em> clearly identify how or when notice of certain paid sick leave topics must be given to employees, only what topics must be included in the notice. These topics include employees&rsquo; right to earned PSST, the amount of PSST provided under the ESSTO, how PSST can be used, that there is a prohibition on retaliating against those who request or use their PSST, and employees&rsquo; right to file a complaint about alleged ESSTO violations. Forthcoming administrative guidance hopefully will provide further instruction on this obligation.</p> <p> <strong>What Records Must Employers Maintain?</strong></p> <p> The ESSTO requires employers to retain accurate records of the hours worked by employees, the number of accrued PSST hours, and the amount of PSST taken by employees for a period of at least three years.</p> <p> <strong>Are Employers Required to Payout Unused PSST Upon Termination?</strong></p> <p> No, an employer is not, regardless of the circumstances under which the employee left the employer. &nbsp;Notably, if an employee separates from her employer, but is rehired by that employer within 90 days of separation, any previously unused PSST must be reinstated to the employee.</p> <p> <strong>How Will the ESSTO be Enforced and What Potential Penalties Exist?</strong></p> <p> An employee, or any other person, may report <em>any </em>suspected violation of the ESSTO to the city clerk&rsquo;s office. The ESSTO sets a one-year statute of limitations for filing claims of alleged violations.</p> <p> The city clerk may order appropriate relief for ESSTO violations, including but not limited to: (a) reinstatement and back pay; (b) crediting an employee with the sick time they accrued but were not credited with; (c) payment of any accrued sick time that was unlawfully withheld; and (d) administrative penalties.</p> <p> An employee may bring a civil action to recover any and all damages recoverable by law and may receive injunctive and other equitable relief as determined by the court <em>only</em> after exhausting administrative remedies identified in the ESSTO.</p> <p> <strong>What Should Employers Do Now?</strong></p> <p> Duluth employers should take steps now to ensure that they will be able to achieve full compliance with the ESSTO and any forthcoming regulations by the January 1, 2020 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 ESSTO.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the ESSTO.</li> <li> Develop a new paid sick leave policy that complies with the ESSTO for any employees who are not covered under existing paid sick leave or PTO policies.</li> <li> Monitor the Duluth city website for further information on the ESSTO, including regulations, how to comply with the ESSTO&rsquo;s notice requirement, etc.</li> <li> Review accrual calculation procedures and systems based on the ESSTO&rsquo;s one hour for every 50 hours worked accrual rate.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> With special thanks to Amanda Williams for her assistance writing this alert.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Duluth joins a growing list of states and municipalities that impose paid sick leave obligations on employers. The existing statewide paid sick leave laws include: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) Rhode Island; and (10) New Jersey. The Rhode Island paid sick leave law goes into effect on July 1, 2018 and the New Jersey paid sick leave law goes into effect on October 29, 2018.&nbsp; The existing municipal paid sick leave ordinances include: (1) San Francisco, CA; (2) Washington, D.C.; (3) Seattle, WA; (4) Long Beach, CA; (5) SeaTac, WA; (6) New York City, NY; (7) Jersey City, NJ; (8) Newark, NJ; (9) Passaic, NJ; (10) East Orange, NJ; (11) Paterson, NJ; (12) Irvington, NJ; (13) Los Angeles, CA; (14) Oakland, CA; (15) Montclair, NJ; (16) Trenton, NJ; (17) Bloomfield, NJ; (18) Philadelphia, PA; (19) Tacoma, WA; (20) Emeryville, CA; (21) Montgomery County, MD; (22) Pittsburgh, PA; (23) Elizabeth, NJ; (24) New Brunswick, NJ; (25) Santa Monica, CA; (26) Plainfield, NJ; (27) Minneapolis, MN; (28) San Diego, CA; (29) Chicago, IL; (30) St. Paul, MN; (31) Cook County, IL; (32) Berkeley, CA; (33) Morristown, NJ; and (34) Austin, TX. The Austin, TX ordinance becomes effective on October 1, 2018. The 13 municipal ordinances in the state of New Jersey will be preempted as of October 29, 2018 when the New Jersey statewide paid sick leave law goes into effect. Los Angeles, CA has two paid sick leave ordinances, one of which only applies to certain &ldquo;hotel employers.&rdquo;&nbsp; The Long Beach, CA and SeaTac, WA ordinances only apply to hospitality and/or transportation employers. The Pittsburgh, PA ordinance was enacted on August 3, 2015; however, it is not currently in effect due to an ongoing lawsuit challenging the validity of the ordinance under Pennsylvania law.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> For employers with 23 or fewer employees, the St. Paul paid sick leave ordinance went into effect January 1, 2018.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> For example, the Philadelphia paid sick leave ordinance does not apply to employees who are hired for a term of less than six months. Similarly, the Vermont statewide paid sick leave law does not apply to individuals who are employed by an employer for 20 weeks or fewer in a 12-month period and in a job scheduled to last 20 weeks or fewer.</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> Some examples of paid sick leave laws with even slower minimum accrual rate standards are (a) Vermont - one hour of paid sick leave for every 52 hours worked, and (b) Washington, D.C. - one hour of paid sick leave for every 87 hours worked where the employer has less than 25 employees who work in the city.</p> </div> <div id="ftn6"> <p> <a href="#_ftnref6" name="_ftn6" title="">[6]</a> In addition to setting a 48-hour annual paid sick leave accrual cap, both the Minneapolis and St. Paul paid sick leave ordinances impose an 80-hour &ldquo;point-in-time&rdquo; accrual cap.</p> </div> <div id="ftn7"> <p> <a href="#_ftnref7" name="_ftn7" title="">[7]</a> With respect to salaried employees, the ESSTO does not specify whether &ldquo;an equivalent rate&rdquo; means an equivalent hourly rate or equivalent salary. We are hopeful forthcoming administrative guidance will provide clarification.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/skeneafr062618 Henry Skene quoted in the Australian Financial Review http://www.seyfarth.com:80/news/skeneafr062618 Tue, 26 Jun 2018 00:00:00 -0400 <p> Henry Skene was quoted in a June 26 story from the Australian Financial Review, &quot;CFMEU officials could circumvent new deterrent, experts say,&quot; on how The Federal Court ushered in the personal-payment orders in a landmark decision against a unionist after recognising the militant union was paying its officials&#39; penalties for unlawful conduct as the &quot;cost of its approach to industrial relations&quot;. Skene warned such orders could see the CFMEU get &quot;more sophisticated&quot; in paying its officials&#39; fines. You can read the <a href="https://www.afr.com/news/policy/industrial-relations/cfmeu-officials-could-circumvent-new-deterrent-experts-say-20180625-h11uss?&amp;utm_source=twitter&amp;utm_medium=social&amp;utm_campaign=nc&amp;eid=socialn:twi-14omn0055-optim-nnn:nonpaid-27/06/2014-social_traffic-all-organicpost-nnn-afr-o&amp;campaign_code=nocode&amp;promote_channel=social_twitter">full article here</a>.</p> http://www.seyfarth.com:80/publications/wexlerkaplannysba062518 Howard Wexler and AJ Kaplan authored an article in NYSBA Labor and Employment Law Journal http://www.seyfarth.com:80/publications/wexlerkaplannysba062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> Howard Wexler and AJ Kaplan authored an article in the spring issue of NYSBA Labor and Employment Law Journal, &quot;New York Court of Appeals Establishes Lower Threshold for Punitive Damages Under NYCHRL.&quot;</p> http://www.seyfarth.com:80/publications/TS062518 UK Adopts New Trade Secrets Legislation http://www.seyfarth.com:80/publications/TS062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Jeremy Morton, Partner at Harbottle &amp; Lewis LLP, London, UK.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/international-2/uk-adopts-new-trade-secrets-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM062518 TPS Terminations and the Form I-9 http://www.seyfarth.com:80/publications/IMM062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The US Citizenship and Immigration Services (USCIS) rules concerning auto extensions of employment authorization and Temporary Protected Status (TPS) can be confusing, and it is important employers know how to update Forms I-9 for TPS beneficiaries. We have previously reported on USCIS terminating TPS for El Salvador, Nicaragua, and Haiti while initially deferring a decision for Honduras. Since then, the government terminated TPS for Nepal on 05/22/2018 and for Honduras on 06/05/2018. The decision affects approximately 9,000 Nepalese foreign nationals and approximately 57,000 Honduran foreign nationals.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/tps-terminations-and-the-form-i-9/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE062518 Employer Onsite Clinics: A Trending Solution to Rising Costs and Competition for Talent http://www.seyfarth.com:80/publications/FE062518 Mon, 25 Jun 2018 00:00:00 -0400 <p> While these clinics can provide preventative medicine and help to improve the health of some employees, employers should be aware of the legal risk they take on in providing their employees direct access to medical services.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/25/employer-onsite-clinics-a-trending-solution-to-rising-costs-and-competition-for-talent-1">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/mancinomh062318 Douglas Mancino quoted in Modern Healthcare http://www.seyfarth.com:80/news/mancinomh062318 Sat, 23 Jun 2018 00:00:00 -0400 <p> Douglas Mancino was quoted in a June 23 story from Modern Healthcare, &quot;Not-for-profit health systems working to get around tax on high exec pay.&quot; Mancino said that there&#39;s a lot of techniques that are in use today that will probably be scrutinized if it appears they are being used in an abusive fashion. You can read the <a href="http://www.modernhealthcare.com/article/20180623/NEWS/180629960">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC062218 Gerald Maatman Featured As Guest Commentator On XpertHR’s Podcast Series http://www.seyfarth.com:80/publications/WC062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> On June 21, 2018, XpertHR featured Gerald (Jerry) L. Maatman, Jr. of Seyfarth Shaw LLP as a special guest commentator on its popular podcast series for human resources professionals. In this episode, Jerry provides a comprehensive overview of the Supreme Court&rsquo;s landmark ruling in Lewis v. Epic Systems Corp., and the decision&rsquo;s implications for employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/06/gerald-maatman-featured-as-guest-commentator-on-xperthrs-podcast-series/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA062218-LE Massachusetts Legislature Passes Bill Providing $15 Minimum Wage And Paid Family And Medical Leave: What Employers Need To Know http://www.seyfarth.com:80/publications/MA062218-LE Fri, 22 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>On June 20, 2018, the Massachusetts Legislature overwhelmingly passed a bill providing a number of important provisions impacting employers in the Commonwealth.&nbsp; The so-called &ldquo;grand bargain&rdquo; bill resulted from a compromise among legislators, the business community, labor unions and community groups designed to eliminate three potential November ballot questions on proposals concerning paid leave, the minimum wage, and a reduction in the state sales tax.&nbsp; The bill will now advance to Governor Baker&rsquo;s desk for his consideration by June 30.</em></div> <div> &nbsp;</div> <div> The &ldquo;grand bargain&rdquo; bill would gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</div> <div> &nbsp;</div> <div> The bill also provides for paid family and medical leave.&nbsp; While the statutory language raises a number of questions that will need to be addressed through the regulatory process, the principal terms are mostly clear.&nbsp; Over a 3-year phase-in period, the Family And Medical Leave Law would provide Massachusetts workers up to 12 weeks of paid family leave, and up to 20 weeks of paid medical leave for the employee&rsquo;s own serious health condition.&nbsp; After a 7-day waiting period, workers on paid leave would earn 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap (which may be adjusted annually).&nbsp; The benefit will be paid by a state trust fund which will be funded by a payroll tax on employers at an initial contribution rate of 0.63% of the employee&rsquo;s wages.&nbsp; The cost may be shared between employer and employee at varying percentages, based on the type of leave and the size of the company.&nbsp; Unlike the federal FMLA, the state law will apply to all employers of one or more employees working in Massachusetts.&nbsp; Job-protected, paid leave will seemingly be available to eligible new employees without any hours worked or service time requirements.&nbsp; That law also will apply to certain former employees after separation and self-employed workers.&nbsp; The key provisions are unpacked below, subject to regulatory clarification.</div> <h3> Minimum Wage And Premium Pay</h3> <div> If signed, the bill will gradually raise the state minimum wage over 5 years from the current $11 per hour to $15 per hour by 2023, including annual increases to $12, $12.75, $13.50, $14.25, and $15.&nbsp; The bill also will gradually increase the alternative minimum &ldquo;service rate&rdquo; for eligible customarily tipped employees from $3.75 per hour to $6.75 per hour by 2023.</div> <div> The bill will phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays, decreasing annually from 1.5 times to 1.4 to 1.3 to 1.2 to 1.1 and ultimately to straight time.&nbsp; However, retail work on Sundays and certain holidays will still need to be voluntary, and refusal to work shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.</div> <h3> Family And Medical Leave</h3> <div> The Family And Medical Leave Law, Massachusetts General Laws Chapter 175M, would establish a Department of Family and Medical Leave within the Executive Office of Labor and Workforce Development.&nbsp; This new department will be responsible for administering the paid leave program.&nbsp; The law would phase in mandated paid family and medical leave over three years with the following key provisions:</div> <div> &nbsp;</div> <ul> <li> Effective July 1, 2019, employers will be required to post a notice of benefits available under this law in a conspicuous place on each of their premises.&nbsp; The notice must be prepared or approved by the Department.&nbsp; The notice must be in English and any other language which is the primary language of 5 or more employees or self-employed individuals of that workplace (if such notice is available from the Department).<br /> &nbsp;</li> <li> Also effective July 1, 2019, employers must issue to each employee within 30 days after the employee&rsquo;s start date, written information provided or approved by the Department in the employee&rsquo;s primary language explaining the available benefits, the employee&rsquo;s contribution amount and obligations, the employer&rsquo;s contribution amount and obligations, instructions on how to file a claim for family and medical leave benefits, and related information.<br /> &nbsp;</li> <li> Failure to comply with the above notice requirements will result in a civil penalty for a first violation of $50 per employee, and $300 per employee for each subsequent violation.<br /> &nbsp;</li> <li> Beginning July 1, 2019, all Massachusetts employers will contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee&rsquo;s wages.&nbsp; For employers with 25 or more employees in Massachusetts, while the employer must remit the full contribution to the Trust Fund, for medical leave, the employer may deduct up to 40% of the contribution from the employee&rsquo;s wages; and for family leave, the employer may deduct up to 100% of the contribution from the employee&rsquo;s wages.&nbsp; (The regulations will need to address how this varied deduction will work.)&nbsp; Smaller employers with less than 25 employees in Massachusetts are not required to pay any portion of the contribution for family and medical leave.&nbsp; The Director of the Department may adjust the contribution rate annually by October 1 for the coming calendar year.<br /> &nbsp;</li> <li> Beginning July 1, 2021 (although the statutory language concerning this date is currently inconsistent and needs to be clarified), workers will be able to take family or medical leave and file claims with the Department for medical or family leave benefits.&nbsp; After an initial 7-calendar day waiting period, employees will be entitled to up to 12 weeks of paid family leave per benefit year, and up to 20 weeks of paid medical leave per benefit year for the employee&rsquo;s own serious health condition.&nbsp; The law sets a maximum aggregate of 26 weeks of paid leave per benefit year.<br /> &nbsp;</li> <li> After the 7-day waiting period (during which employees may use accrued paid sick leave), workers on paid leave may receive wage replacement from the state Trust Fund equal to 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap.&nbsp; The Director may adjust this maximum weekly benefit amount annually by October 1, to be 64% of the state average weekly wage, which shall take effect on January 1 of the year following.<br /> &nbsp;</li> <li> Paid &ldquo;medical leave&rdquo; will be available to any covered individual with a serious health condition.<br /> &nbsp;</li> <li> Paid &ldquo;family leave&rdquo; will be available for the following reasons: (i) to care for a family member with a serious health condition; (ii) to bond with the worker&rsquo;s child during the first 12 months after birth or the first 12 months after the placement of the child for adoption or foster care with the worker; (iii) because of any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces; or (iv) in order to care for a family member who is a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty (for this particular reason, up to 26 weeks of leave may be taken in a benefit year).<br /> &nbsp;</li> <li> The taking of family or medical leave shall not affect an employee&rsquo;s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit, or other employment benefits, plans or programs.<br /> &nbsp;</li> <li> During the duration of leave, the employer shall continue to provide for and contribute to the employee&rsquo;s employer-provided health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.<br /> &nbsp;</li> <li> Intermittent leave or reduced schedule leave, paid on a prorated basis, may be taken &ldquo;when medically necessary&rdquo; for a medical leave for the worker&rsquo;s own serious health condition, for a family leave to care for a family member with a serious health condition, or for injured servicemember family leave.&nbsp; Qualifying exigency family leave may also be taken intermittently or on a reduced schedule.&nbsp; However, bonding leave for a new baby may not be taken intermittently or on a reduced schedule unless the employee and the employer agree otherwise.<br /> &nbsp;</li> <li> An employer must restore an employee who has taken family or medical leave to the employee&rsquo;s previous position or to &ldquo;an equivalent position&rdquo; with the same status, pay, employment benefits, length of service credit, and seniority as of the date of leave (except in the event that other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions).<br /> &nbsp;</li> <li> The weekly benefit amount shall be reduced by the amount of wages or wage replacement a worker receives for that period under: any government program or law, including workers&rsquo; compensation (other than for permanent partial disability incurred prior to the leave claim); other state or federal temporary or permanent disability benefits law; or an employer&rsquo;s permanent disability policy or program.&nbsp; The weekly benefit amount shall not be reduced by the amount of wage replacement received while on leave under an employer&rsquo;s temporary disability policy or program, or an employer&rsquo;s paid family or medical leave policy, unless the aggregate amount an employee would receive would exceed the employee&rsquo;s average weekly wage.<br /> &nbsp;</li> <li> The state law adopts many of the same definitions as the federal FMLA, but provides broader coverage in various respects: <ul> <li> According to the current language of the bill, unlike the federal FMLA, all employees will be eligible for paid family or medical leave under the state law, regardless of length of service with the employer or hours worked.</li> <li> Under the Massachusetts law, in addition to the family members included under the federal FMLA, &ldquo;family member&rdquo; also includes a worker&rsquo;s domestic partner, grandchildren, grandparents, and siblings, as well as the parents of a spouse or domestic partner.</li> <li> &ldquo;Serious health condition&rdquo; is defined more broadly under Massachusetts law as an illness, injury, impairment, or physical or mental condition that involves (i) inpatient care in a hospital, hospice, or residential medical facility; or (ii) continuing treatment by a health care provider.<br /> &nbsp;</li> </ul> </li> <li> The law will not obviate an employer&rsquo;s obligation to comply with any company policy, law, or collective bargaining agreement that provides for greater or additional leave rights.<br /> &nbsp;</li> <li> Leave under this law will run concurrently with leave taken under the Massachusetts Parental Leave Law or the federal Family and Medical Leave Act.<br /> &nbsp;</li> <li> Employees must provide employers at least 30 days&rsquo; notice of the anticipated starting date of the leave, the anticipated length of the leave and the expected date of return, or shall provide notice as soon as practicable if the delay is for reasons beyond the employee&rsquo;s control.<br /> &nbsp;</li> <li> Workers must submit a benefits claim to the Department within 90 calendar days after the start of leave, or benefits may be reduced.&nbsp; The Department shall notify applicants of their eligibility or ineligibility for benefits within 14 days of receiving a claim and shall pay benefits not less than 14 days after the eligibility determination.&nbsp; The Department shall notify the employer within 5 business days after a claim has been filed.<br /> &nbsp;</li> <li> All claims must include a certification supporting the leave request, which differs based on the reason for leave.&nbsp; Of note, the certification to care for a family member with a serious health condition must include a statement by the health care provider that the covered worker is needed to care for the family member and an estimate of the amount of time that the covered worker is needed to care for the family member.<br /> &nbsp;</li> <li> Employers may apply to the Department for approval to opt out of the state program if they have a program that offers benefits greater than or equal to what an employee would receive in the state program.<br /> &nbsp;</li> <li> The law prohibits retaliation against employees for exercising their rights under this law, and any negative change in status or adverse employment action during a leave or within six months of the leave will create a rebuttable presumption of retaliation, which the employer can rebut with clear and convincing evidence that such action was not retaliation and was based on an independent justification.<br /> &nbsp;</li> <li> The law provides employees a private right of action with a 3-year statute of limitations for violation of the job restoration, benefits accrual and continuation, and anti-retaliation provisions.&nbsp; A court may award a prevailing employee job reinstatement, benefits reinstatement, injunctive relief, compensation for 3 times any lost wages, benefits and other remuneration and the interest thereon, and reasonable costs and attorneys&rsquo; fees.<br /> &nbsp;</li> <li> Former employees, if they otherwise meet the financial eligibility requirements, could receive paid leave benefits for family or medical leave that starts within 26 weeks after their separation from employment.<br /> &nbsp;</li> <li> Self-employed individuals may elect coverage under certain conditions.<br /> &nbsp;</li> <li> By March 31, 2019, the Department will publish for public comment and hearing proposed regulations and procedures, and such regulations will be promulgated by July 1, 2019.</li> </ul> <div> Questions surrounding many of the Family and Medical Leave Law&rsquo;s terms and implementation issues will likely be the subject of much discussion and debate between now and the March 2019 issuance of proposed regulations.&nbsp; If the bill is signed by the Governor, Massachusetts would have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.&nbsp; California is the only other state currently with plans for a minimum wage as high as $15, which is to be implemented by 2022.</div> <div> &nbsp;</div> <div> We will keep you informed of upcoming clarifications and developments, including Governor Baker&rsquo;s consideration and the future regulations.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM062218-EB DOL Fiduciary Rule Officially Dead http://www.seyfarth.com:80/publications/OMM062218-EB Fri, 22 Jun 2018 00:00:00 -0400 <div> For several years now we&rsquo;ve been keeping you updated on the long and winding road of the Department of Labor&rsquo;s (&ldquo;DOL&rdquo;) Fiduciary Rule. See our alert <a href="http://www.seyfarth.com/publications/MA041816-EB">here</a>. The DOL finally issued their long-awaited and controversial Fiduciary Rule in the waning days of the prior administration As the Fiduciary Rule was set to go in effect on April 10, 2017, the new administration delayed it until June 9, 2017, and the companion exemptions (i.e., the Best Interest Contract Exemption and the Principal Contract Exemption) were delayed throughout the remainder of that year. See our alerts <a href="http://www.seyfarth.com/publications/OMM040617-EB">here</a> and <a href="http://www.seyfarth.com/publications/OMM052317-EB">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> <table border="2" cellpadding="10" cellspacing="1" style="width:100%;"> <tbody> <tr> <td> The Fiduciary Rule defined who is a fiduciary under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;) by reason of providing investment advice for a fee to ERISA plans. Notably, the proposed new fiduciary definition could have resulted in IRA providers and brokers being fiduciaries.&nbsp;</td> </tr> </tbody> </table> <p> &nbsp;</p> <p> While those impacted were actively planning for compliance, the Fiduciary Rule faced numerous court challenges. The critics of the rule eventually found a sympathetic court in the Fifth Circuit, where a divided panel issued a decision vacating the rule this past March. See our alert <a href="http://www.seyfarth.com/publications/OMM032318-EB">here</a>. After the existing administration indicated that it would not challenge the court&rsquo;s decision, several interested parties, including the AARP and various state attorneys general, unsuccessfully tried to intervene to save the Fiduciary Rule. The DOL then announced that it would not enforce the Fiduciary Rule in anticipation of the Fifth Circuit&rsquo;s final determination. See our alert <a href="http://www.seyfarth.com/publications/OMM050818-EB">here</a>.</p> </div> <div> &nbsp;</div> <div> That final death knell came on Thursday, June 21, 2018, when the Fifth Circuit issued a mandate officially vacating the rule three months after its original invalidation. Although the Fiduciary Rule is no longer applicable, the Securities and Exchange Commission (&ldquo;SEC&rdquo;) has proposed new rules for investment advisors and brokers, as we mentioned in our <a href="http://www.seyfarth.com/publications/OMM050818-EB">May 8th alert</a>.&nbsp;&nbsp;</div> http://www.seyfarth.com:80/publications/RD062218-LE Massachusetts Legislature Passes Bill Providing $15 Minimum Wage And Paid Family And Medical Leave: What Employers Need To Know http://www.seyfarth.com:80/publications/RD062218-LE Fri, 22 Jun 2018 00:00:00 -0400 <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;<em>On June 20, 2018, the Massachusetts Legislature overwhelmingly passed a bill providing a number of important provisions impacting employers in the Commonwealth.&nbsp; The so-called &ldquo;grand bargain&rdquo; bill resulted from a compromise among legislators, the business community, labor unions and community groups designed to eliminate three potential November ballot questions on proposals concerning paid leave, the minimum wage, and a reduction in the state sales tax.&nbsp; The bill will now advance to Governor Baker&rsquo;s desk for his consideration by June 30.</em></div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The &ldquo;grand bargain&rdquo; bill would gradually raise the state minimum wage from the current $11 per hour to $15 per hour by 2023.&nbsp; It would also phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The bill also provides for paid family and medical leave.&nbsp; While the statutory language raises a number of questions that will need to be addressed through the regulatory process, the principal terms are mostly clear.&nbsp; Over a 3-year phase-in period, the Family And Medical Leave Law would provide Massachusetts workers up to 12 weeks of paid family leave, and up to 20 weeks of paid medical leave for the employee&rsquo;s own serious health condition.&nbsp; After a 7-day waiting period, workers on paid leave would earn 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap (which may be adjusted annually).&nbsp; The benefit will be paid by a state trust fund which will be funded by a payroll tax on employers at an initial contribution rate of 0.63% of the employee&rsquo;s wages.&nbsp; The cost may be shared between employer and employee at varying percentages, based on the type of leave and the size of the company.&nbsp; Unlike the federal FMLA, the state law will apply to all employers of one or more employees working in Massachusetts.&nbsp; Job-protected, paid leave will seemingly be available to eligible new employees without any hours worked or service time requirements.&nbsp; That law also will apply to certain former employees after separation and self-employed workers.&nbsp; The key provisions are unpacked below, subject to regulatory clarification.</div> <h3 style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif;"> Minimum Wage And Premium Pay</h3> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> If signed, the bill will gradually raise the state minimum wage over 5 years from the current $11 per hour to $15 per hour by 2023, including annual increases to $12, $12.75, $13.50, $14.25, and $15.&nbsp; The bill also will gradually increase the alternative minimum &ldquo;service rate&rdquo; for eligible customarily tipped employees from $3.75 per hour to $6.75 per hour by 2023.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The bill will phase out over five years the time-and-a-half premium pay requirement for retail workers working on Sundays and holidays, decreasing annually from 1.5 times to 1.4 to 1.3 to 1.2 to 1.1 and ultimately to straight time.&nbsp; However, retail work on Sundays and certain holidays will still need to be voluntary, and refusal to work shall not be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.</div> <h3 style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif;"> Family And Medical Leave</h3> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The Family And Medical Leave Law, Massachusetts General Laws Chapter 175M, would establish a Department of Family and Medical Leave within the Executive Office of Labor and Workforce Development.&nbsp; This new department will be responsible for administering the paid leave program.&nbsp; The law would phase in mandated paid family and medical leave over three years with the following key provisions:</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <ul style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <li> Effective July 1, 2019, employers will be required to post a notice of benefits available under this law in a conspicuous place on each of their premises.&nbsp; The notice must be prepared or approved by the Department.&nbsp; The notice must be in English and any other language which is the primary language of 5 or more employees or self-employed individuals of that workplace (if such notice is available from the Department).<br /> &nbsp;</li> <li> Also effective July 1, 2019, employers must issue to each employee within 30 days after the employee&rsquo;s start date, written information provided or approved by the Department in the employee&rsquo;s primary language explaining the available benefits, the employee&rsquo;s contribution amount and obligations, the employer&rsquo;s contribution amount and obligations, instructions on how to file a claim for family and medical leave benefits, and related information.<br /> &nbsp;</li> <li> Failure to comply with the above notice requirements will result in a civil penalty for a first violation of $50 per employee, and $300 per employee for each subsequent violation.<br /> &nbsp;</li> <li> Beginning July 1, 2019, all Massachusetts employers will contribute to the Family and Employment Security Trust Fund at an initial contribution rate of 0.63% of each employee&rsquo;s wages.&nbsp; For employers with 25 or more employees in Massachusetts, while the employer must remit the full contribution to the Trust Fund, for medical leave, the employer may deduct up to 40% of the contribution from the employee&rsquo;s wages; and for family leave, the employer may deduct up to 100% of the contribution from the employee&rsquo;s wages.&nbsp; (The regulations will need to address how this varied deduction will work.)&nbsp; Smaller employers with less than 25 employees in Massachusetts are not required to pay any portion of the contribution for family and medical leave.&nbsp; The Director of the Department may adjust the contribution rate annually by October 1 for the coming calendar year.<br /> &nbsp;</li> <li> Beginning July 1, 2021 (although the statutory language concerning this date is currently inconsistent and needs to be clarified), workers will be able to take family or medical leave and file claims with the Department for medical or family leave benefits.&nbsp; After an initial 7-calendar day waiting period, employees will be entitled to up to 12 weeks of paid family leave per benefit year, and up to 20 weeks of paid medical leave per benefit year for the employee&rsquo;s own serious health condition.&nbsp; The law sets a maximum aggregate of 26 weeks of paid leave per benefit year.<br /> &nbsp;</li> <li> After the 7-day waiting period (during which employees may use accrued paid sick leave), workers on paid leave may receive wage replacement from the state Trust Fund equal to 80% of their wages up to 50% of the state average weekly wage, and then 50% of their wages above that amount, up to an $850/week cap.&nbsp; The Director may adjust this maximum weekly benefit amount annually by October 1, to be 64% of the state average weekly wage, which shall take effect on January 1 of the year following.<br /> &nbsp;</li> <li> Paid &ldquo;medical leave&rdquo; will be available to any covered individual with a serious health condition.<br /> &nbsp;</li> <li> Paid &ldquo;family leave&rdquo; will be available for the following reasons: (i) to care for a family member with a serious health condition; (ii) to bond with the worker&rsquo;s child during the first 12 months after birth or the first 12 months after the placement of the child for adoption or foster care with the worker; (iii) because of any qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call or order to active duty in the Armed Forces; or (iv) in order to care for a family member who is a covered servicemember with a serious injury or illness incurred or aggravated in the line of duty (for this particular reason, up to 26 weeks of leave may be taken in a benefit year).<br /> &nbsp;</li> <li> The taking of family or medical leave shall not affect an employee&rsquo;s right to accrue vacation time, sick leave, bonuses, advancement, seniority, length of service credit, or other employment benefits, plans or programs.<br /> &nbsp;</li> <li> During the duration of leave, the employer shall continue to provide for and contribute to the employee&rsquo;s employer-provided health insurance benefits, if any, at the level and under the conditions coverage would have been provided if the employee had continued working continuously for the duration of such leave.<br /> &nbsp;</li> <li> Intermittent leave or reduced schedule leave, paid on a prorated basis, may be taken &ldquo;when medically necessary&rdquo; for a medical leave for the worker&rsquo;s own serious health condition, for a family leave to care for a family member with a serious health condition, or for injured servicemember family leave.&nbsp; Qualifying exigency family leave may also be taken intermittently or on a reduced schedule.&nbsp; However, bonding leave for a new baby may not be taken intermittently or on a reduced schedule unless the employee and the employer agree otherwise.<br /> &nbsp;</li> <li> An employer must restore an employee who has taken family or medical leave to the employee&rsquo;s previous position or to &ldquo;an equivalent position&rdquo; with the same status, pay, employment benefits, length of service credit, and seniority as of the date of leave (except in the event that other employees of equal length of service credit and status in the same or equivalent positions have been laid off due to economic conditions or other changes in operating conditions).<br /> &nbsp;</li> <li> The weekly benefit amount shall be reduced by the amount of wages or wage replacement a worker receives for that period under: any government program or law, including workers&rsquo; compensation (other than for permanent partial disability incurred prior to the leave claim); other state or federal temporary or permanent disability benefits law; or an employer&rsquo;s permanent disability policy or program.&nbsp; The weekly benefit amount shall not be reduced by the amount of wage replacement received while on leave under an employer&rsquo;s temporary disability policy or program, or an employer&rsquo;s paid family or medical leave policy, unless the aggregate amount an employee would receive would exceed the employee&rsquo;s average weekly wage.<br /> &nbsp;</li> <li> The state law adopts many of the same definitions as the federal FMLA, but provides broader coverage in various respects: <ul> <li> According to the current language of the bill, unlike the federal FMLA, all employees will be eligible for paid family or medical leave under the state law, regardless of length of service with the employer or hours worked.</li> <li> Under the Massachusetts law, in addition to the family members included under the federal FMLA, &ldquo;family member&rdquo; also includes a worker&rsquo;s domestic partner, grandchildren, grandparents, and siblings, as well as the parents of a spouse or domestic partner.</li> <li> &ldquo;Serious health condition&rdquo; is defined more broadly under Massachusetts law as an illness, injury, impairment, or physical or mental condition that involves (i) inpatient care in a hospital, hospice, or residential medical facility; or (ii) continuing treatment by a health care provider.<br /> &nbsp;</li> </ul> </li> <li> The law will not obviate an employer&rsquo;s obligation to comply with any company policy, law, or collective bargaining agreement that provides for greater or additional leave rights.<br /> &nbsp;</li> <li> Leave under this law will run concurrently with leave taken under the Massachusetts Parental Leave Law or the federal Family and Medical Leave Act.<br /> &nbsp;</li> <li> Employees must provide employers at least 30 days&rsquo; notice of the anticipated starting date of the leave, the anticipated length of the leave and the expected date of return, or shall provide notice as soon as practicable if the delay is for reasons beyond the employee&rsquo;s control.<br /> &nbsp;</li> <li> Workers must submit a benefits claim to the Department within 90 calendar days after the start of leave, or benefits may be reduced.&nbsp; The Department shall notify applicants of their eligibility or ineligibility for benefits within 14 days of receiving a claim and shall pay benefits not less than 14 days after the eligibility determination.&nbsp; The Department shall notify the employer within 5 business days after a claim has been filed.<br /> &nbsp;</li> <li> All claims must include a certification supporting the leave request, which differs based on the reason for leave.&nbsp; Of note, the certification to care for a family member with a serious health condition must include a statement by the health care provider that the covered worker is needed to care for the family member and an estimate of the amount of time that the covered worker is needed to care for the family member.<br /> &nbsp;</li> <li> Employers may apply to the Department for approval to opt out of the state program if they have a program that offers benefits greater than or equal to what an employee would receive in the state program.<br /> &nbsp;</li> <li> The law prohibits retaliation against employees for exercising their rights under this law, and any negative change in status or adverse employment action during a leave or within six months of the leave will create a rebuttable presumption of retaliation, which the employer can rebut with clear and convincing evidence that such action was not retaliation and was based on an independent justification.<br /> &nbsp;</li> <li> The law provides employees a private right of action with a 3-year statute of limitations for violation of the job restoration, benefits accrual and continuation, and anti-retaliation provisions.&nbsp; A court may award a prevailing employee job reinstatement, benefits reinstatement, injunctive relief, compensation for 3 times any lost wages, benefits and other remuneration and the interest thereon, and reasonable costs and attorneys&rsquo; fees.<br /> &nbsp;</li> <li> Former employees, if they otherwise meet the financial eligibility requirements, could receive paid leave benefits for family or medical leave that starts within 26 weeks after their separation from employment.<br /> &nbsp;</li> <li> Self-employed individuals may elect coverage under certain conditions.<br /> &nbsp;</li> <li> By March 31, 2019, the Department will publish for public comment and hearing proposed regulations and procedures, and such regulations will be promulgated by July 1, 2019.</li> </ul> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> Questions surrounding many of the Family and Medical Leave Law&rsquo;s terms and implementation issues will likely be the subject of much discussion and debate between now and the March 2019 issuance of proposed regulations.&nbsp; If the bill is signed by the Governor, Massachusetts would have one of the most generous paid family leave programs in the country.&nbsp; Currently, California, New Jersey, New York, and Rhode Island mandate paid family leave.&nbsp; California is the only other state currently with plans for a minimum wage as high as $15, which is to be implemented by 2022.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> We will keep you informed of upcoming clarifications and developments, including Governor Baker&rsquo;s consideration and the future regulations.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> http://www.seyfarth.com:80/publications/LR062218 Increase the Injunctions: NLRB Urges The Frequency Of Requesting Temporary Injunctions http://www.seyfarth.com:80/publications/LR062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On June 20, 2018, Peter B. Robb, General Counsel for the NLRB, directed regional offices to continue aggressively pursue temporary injunctions to stop categories of potentially unfair labor practices<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/22/increase-the-injunctions-nlrb-urges-the-frequency-of-requesting-temporary-injunctions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS062218 NSW passes Modern Slavery legislation – key obligations for businesses http://www.seyfarth.com:80/publications/WLS062218 Fri, 22 Jun 2018 00:00:00 -0400 <p> Supporting regulations will follow that deal with the finer details even without these, businesses should now urgently consider whether they will be caught by this legislation and consider how they are going to meet their compliance obligations. There will be significant maximum penalties applying to breaches of obligations.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/nsw-passes-modern-slavery-legislation-key-obligations-for-businesses/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM062218-RE Does Your Lease Read like a Deed? Supreme Court of Virginia Weighs in on Execution Requirements for Most Leases in The Game Place, L.L.C. v. Fredericksburg 35, LLC http://www.seyfarth.com:80/publications/OMM062218-RE Fri, 22 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong></em>: <em>The Supreme Court of Virginia issued a unanimous opinion recently holding a 15-year commercial lease unenforceable since it was not executed with the formalities of a deed as required under Virginia law.&nbsp; In overturning the lower court&rsquo;s ruling in <u>The Game Place, L.L.C., et al. v. Fredericksburg 35, LLC</u>, 813 S.E.2d 312 (Va. 2018), the Court held that, due to the fact that the lease was for more than five (5) years and did not contain a seal nor did it comply with any statutory seal substitutes, the lease was unenforceable with respect to the claims that the landlord brought.&nbsp; The Court held that the lease violated the Statute of Conveyances that requires that any lease for a term of more than five (5) years must be accomplished by will or deed and satisfy certain technical requirements.</em><br /> <br /> <strong>Facts of the Case</strong><br /> <br /> The case stemmed from a dispute in which Fredericksburg 35, LLC (&ldquo;<strong>Fredericksburg</strong>&rdquo;), a commercial landlord, sued its tenant, The Game Place, L.LC. (&ldquo;<strong>Game Place</strong>&rdquo;) and its guarantor, after Game Place vacated the premises it was leasing from Fredericksburg prior to the expiration of the 15-year term and terminated what Game Place referred to as its &ldquo;month-to-month periodic tenancy.&rdquo;&nbsp; At the time Game Place terminated, it was current on its rent.&nbsp; Fredericksburg sued Game Place for unpaid rent that accrued after Game Place vacated the premises.&nbsp; Game Place argued that its lease was unenforceable under the Statute of Conveyances (Section 55-2 of the Code of Virginia) because it was not in the form of a deed, containing the common law requirements of a seal or a seal substitute available under Section 11-3 of the Code of Virginia.&nbsp;&nbsp;</div> <p> <br /> <strong>Applicable Law</strong><br /> <br /> Section 55-2 of the Code of Virginia, also known as the Statute of Conveyances, provides in pertinent part &ldquo;[n]o estate of inheritance or freehold or for a term of more than five years in lands shall be conveyed unless by deed or will&hellip;&rdquo;&nbsp;</p> <p> Pursuant to Section 11-3 of the Code of Virginia, there are several seal substitutes that are alternatives to a seal that will make a written instrument a &ldquo;deed&rdquo;: (1) a &ldquo;scroll by way of a seal&rdquo;; (2) an imprint or stamp of a &ldquo;corporate or an official seal&rdquo;; (3) the use in the body of the document of the words &ldquo;this deed&rdquo; or &ldquo;this indenture,&rdquo; or other words importing a sealed instrument or recognizing a seal; and (4) a proper acknowledgement &ldquo;by an officer authorized to take acknowledgments of deeds.&rdquo;&nbsp; &nbsp;<br /> <br /> <strong>Court Ruling</strong><br /> <br /> The lease at hand did not contain a formal seal or seal substitute described by Section 11-3, and, as such was not a &ldquo;deed.&rdquo; Consequently, the Court ruled the lease was unenforceable. The Court further found that while the parties could repudiate the lease at any time, the lease was converted to a periodic tenancy tied to the rental payments, in this case, monthly rental payments.&nbsp; Here, since the tenant had paid all of its monthly rental payments prior to its termination of the lease, the Court held that the tenant did not have any further rental obligations to its landlord after the last month of occupancy of the premises.<br /> <br /> <strong>Background and Analysis</strong><br /> <br /> The lower court had ruled in Fredericksburg&rsquo;s (landlord&rsquo;s) favor stating that the lease had met the requirements of a deed because it was &ldquo;lengthy&rdquo; (the lease was 17 pages long) and could just as easily have been called a &ldquo;deed&rdquo; or &ldquo;indenture&rdquo; reasoning that &ldquo;the law looks at substance not form.&rdquo;&nbsp;&nbsp;</p> <p> The Supreme Court of Virginia wholly disagreed with the lower court&rsquo;s analysis stating, inter alia, &ldquo;[u]nder the common law, a sealed contract means just that, a contract with a seal&rdquo; regardless of the length of the document.&nbsp; Further, even if the lease were titled &ldquo;Deed of Lease&rdquo; or &ldquo;Lease Indenture,&rdquo; this would not work to cure the deficiency as the words &ldquo;this deed&rdquo; or &ldquo;this indenture&rdquo; must appear in the body of the instrument and not merely in the title.&nbsp; The Court noted that the Virginia General Assembly, from time to time, had modified or abolished the seal requirement as it pertained to certain documents and the fact that it had failed to abolish it altogether for deeds governed by the Statute of Conveyances was indicative of its desire that such statute continue to be enforced as written.&nbsp;</p> <p> Fredericksburg argued, as a last ditch effort, that Section 55-51 of the Code of Virginia overruled the common law seal requirement for deeds covered by the Statute of Conveyances.&nbsp; Section 55-51 provides that any deed that &ldquo;shall fail to take effect by virtue of this chapter shall, nevertheless, be as valid and effectual and as binding upon the parties thereto, so far as the rules of law and equity will permit, as if this chapter had not been enacted.&rdquo;&nbsp; However, by its own terms the foregoing statute only applies to deeds that fail &ldquo;by virtue of this chapter.&rdquo;&nbsp; Nowhere in Chapter 4 of Title 55 of the Code of Virginia, where the foregoing section is found, is there a statutory requirement that a deed be under seal.&nbsp; Such requirement is found in the definition of deed in the Statute of Conveyances in Chapter 1 of Title 55 of the Code of Virginia.</p> <p> Despite the ruling that the lease was unenforceable and, as such, could not be enforced in an action for damages, the Court acknowledged that precedent in Virginia (<em>Granva Corp. v. Heyder</em>, 139 S.E.2d 77 (1964)) and in New York, required that once a tenant took possession of premises under a lease (even one that is unenforceable), a lessor-lessee relationship was created and the type of tenancy was dependent upon the manner in which the rent is paid.&nbsp; The Court held that in this case, rent was paid on a monthly basis and therefor the tenant occupied the premises on a month-to-month tenancy.&nbsp; &nbsp;<br /> <br /> <strong>Looking Ahead</strong><br /> <br /> The Court ruling has created concerns amongst landlords leasing space in Virginia, and we expect a concerted effort by the real estate community to seek appropriate relief from the legislature.</p> http://www.seyfarth.com:80/publications/TBT062118 The Week in Weed: June 22, 2018 http://www.seyfarth.com:80/publications/TBT062118 Thu, 21 Jun 2018 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="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-22-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE062118 The Internet of Things + Medical Devices = Liability (Part 2) http://www.seyfarth.com:80/publications/FE062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Section 5 of the Federal Trade Commission Act bars &ldquo;unfair or deceptive acts or practices in or affecting commerce&rdquo; if the practice &ldquo;causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.&rdquo; 15 U.S.C. &sect; 45 (a), (n). The FTC is empowered to bring administrative actions against companies for such unfair practices, and its cease-and-desist orders are binding and enforceable.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/21/the-internet-of-things-medical-devices-liability-part-2">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA062118 Members of Congress Urge DOJ to Declare That Private Website Accessibility Lawsuits Violate Due Process http://www.seyfarth.com:80/publications/ADA062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.<br /> <br /> <a href="https://www.adatitleiii.com/2018/06/member-of-congress-urge-doj-to-declare-that-private-website-accessibility-lawsuits-violate-due-process/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanxperthr062118 Gerald Maatman interviewed on XpertHR Podcast http://www.seyfarth.com:80/news/maatmanxperthr062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Gerald Maatman was interviewed June 21st on an XpertHR Podcast,&quot;Supreme Court Aids Employers in Arbitration Cases.&quot; The podcast examines the closely watched case of Epic Systems vs. Lewis and what it means for employers. You can listen to the&nbsp;<a href="https://www.xperthr.com/hr-podcasts-and-webinars/podcast-supreme-court-aids-employers-in-arbitration-cases/33353/?cmpid=SOC%7CUSAG%7CHUGMN-2017-0203-2017_twitter_generic_tracking">full podcast here</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/EL062118 EEOC Scrutinizes Employer Policies Regarding Prescription Drug Use http://www.seyfarth.com:80/publications/EL062118 Thu, 21 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Equal Employment Opportunity Commission recently settled lawsuits with two employers it claims violated the Americans with Disabilities Act after rejecting a job applicant and terminating an employee based on their prescription drug use.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/eeoc-scrutinizes-employer-policies-regarding-prescription-drug-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA062018 Fourth Circuit Finds Insurer Not Liable For Employer’s Mistake. http://www.seyfarth.com:80/publications/ERISA062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fourth Circuit found in favor of an insurer on a claim for life insurance benefits, finding the insured&rsquo;s failure to submit the required evidence of insurability was not excused by his employer having wrongly deducted premiums for that coverage from his pay.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/06/20/fourth-circuit-finds-insurer-not-liable-for-employers-mistake/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP062018 Addressing Alcoholism in the California Workplace http://www.seyfarth.com:80/publications/CP062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: It has long been clear that the Americans with Disabilities Act (ADA) and California law protect employees who suffer from alcoholism if it qualifies as a &ldquo;disability.&rdquo; Although courts have recognized the right of an employer to have legitimate work rules that prohibit alcohol use in the workplace, the line between having a protected disability and engaging in unprotected conduct is not always clear. The distinction is critical because protected alcoholics may be entitled to reasonable accommodations and leaves of absence under federal and state laws.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/20/addressing-alcoholism-in-the-california-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS062018 Preparing Australian employers for increases in employment class action lawsuits http://www.seyfarth.com:80/publications/WLS062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Whilst uncommon in Australia, there are high-profile examples of employment class action lawsuits.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/preparing-australian-employers-for-increases-in-employment-class-action-lawsuits/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/bna062018 Andrew Boutros and John Schleppenbach authored an article in Bloomberg BNA http://www.seyfarth.com:80/publications/bna062018 Wed, 20 Jun 2018 00:00:00 -0400 <p> Andrew Boutros and John Schleppenbach authored a June 20 article in Bloomberg BNA, &quot;INSIGHT: Attorneys Traveling with Privileged Materials Take Note: 11th Circuit OKs Border Searches of Devices Without Reasonable Suspicion.&quot; The article discusses a recent Eleventh Circuit decision upholding forensic border searches of electronic devices without reasonable suspicion, and how the court&rsquo;s decision could potentially impact attorneys&rsquo; ethical obligations to safeguard client confidences when traveling abroad for work.</p> http://www.seyfarth.com:80/publications/OMM062018-LIT Limiting Class Action Tolling: Supreme Court Rules That Filing A Class Action Does Not Toll The Limitations Period for Successive Class Actions http://www.seyfarth.com:80/publications/OMM062018-LIT Wed, 20 Jun 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> In </em><a href="https://www.supremecourt.gov/opinions/17pdf/17-432_08m1.pdf">China Agritech, Inc. v. Resh</a><em>, the Supreme Court earlier this month held that pending class actions do not toll the limitations period for successive class actions. The ruling limits plaintiffs&rsquo; ability to bring successive class actions and will increase certainty for defendants sued in class actions.</em></div> <div> &nbsp;</div> <h2> Background</h2> <div> The Supreme Court had previously held that the timely filing of a class action tolls the applicable statute of limitations for all persons encompassed in the class complaint. Thus, where class certification is denied, members of the failed class could timely intervene as individual plaintiffs or promptly bring individual actions, even if the limitations period had expired.<em> See Am. Pipe &amp; Constr. Co. v. Utah</em>, 414 U.S. 538 (1974); <em>Crown, Cork &amp; Seal Co. v. Parker</em>, 462 U.S. 345 (1983).</div> <div> &nbsp;</div> <div> In <em>China Agritech</em>, the Court clarified that such tolling applies only to individual actions, not successive class actions. Therefore, upon denial of class certification, a putative class member cannot commence a new class action if the limitations period has expired.</div> <div> &nbsp;</div> <h2> The <em>China Agritech</em> Litigation</h2> <div> In <em>China Agritech</em>, a China Agritech shareholder timely brought a class action alleging that China Agritech violated the federal securities laws. The district court denied the plaintiff&rsquo;s motion for class certification, and the action settled. Subsequently, another China Agritech shareholder brought a class action alleging securities law violations. The district court again denied a motion for class certification, and the action settled.</div> <div> &nbsp;</div> <div> After the second settlement, shareholder Michael Resh brought a class action against China Agritech for violation of the federal securities laws. Resh filed his lawsuit outside the applicable limitations period, but he argued that the limitations period was tolled under the Supreme Court&rsquo;s decision in <em>American Pipe</em>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Justice Ginsburg, writing for the Court, explained that the &ldquo;efficiency and economy of litigation&rdquo; referenced in <em>American Pipe</em> supports tolling individual claims but not successive class actions. The Court explained that efficiency favors early assertion of competing class representative claims. If class treatment is appropriate, and all would-be representatives have come forward, the district court can select the best-named plaintiff with knowledge of the full array of potential class representatives and class counsel. On the other hand, if the class mechanism is not a viable option, class certification can be litigated at the outset of the case, and that determination made once for all would-be class representatives.</div> <div> &nbsp;</div> <div> The Court noted that a contrary ruling would allow the statute of limitations to be extended time and again: each time class certification was denied, a new-named plaintiff could try to resuscitate the litigation by filing a successive class action.</div> <div> &nbsp;</div> <div> Thus, the Court instructed that &ldquo;any additional <em>class</em> filings should be made early on, soon after the commencement of the first action seeking class certification&rdquo; (emphasis in original).</div> <div> &nbsp;</div> <div> It might appear that this directive will result in more claims being filed by competing plaintiffs early in the case, each seeking to become the named plaintiff. However, the Supreme Court suggested in <em>China Agritech</em> that there was little evidence that such an increase occurred in those circuits that had already declined to apply <em>American Pipe</em> to successive class actions.</div> <div> &nbsp;</div> <div> All but Justice Sotomayor joined the opinion. She concurred in the judgment but would have limited the ruling to class action claims under the Private Securities Litigation Reform Act.</div> <div> &nbsp;</div> <h2> Takeaway</h2> <div> Plaintiffs can no longer file successive class actions after the expiration of the limitations period. A defendant who defeats class certification no longer has to worry about new class actions being filed after the expiration of the limitations period.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL061918 Mayday Mayday!: Illinois General Assembly Considers (And Passes) Series Of Changes To Illinois Human Rights Act http://www.seyfarth.com:80/publications/EL061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In May 2018, the Illinois General Assembly considered and also passed a series of measures aimed at changing existing employment discrimination law. On May 16, 2018, the Assembly passed House Bill 4572 which amends the Illinois Human Rights Act (IHRA) to allow employers of any size to be liable under the IHRA. On May 18, 2018, an extensive amendment was added to Senate Bill 577, seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment. On May 30, 2018, both chambers of the Assembly unanimously passed Senate Bill 20. SB 20 amends the IHRA to provide new powers to complainants, allow complainants to wait longer to file their claims, and to make the Illinois Human Rights Commission more efficiently address the existing backlog of charges.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/mayday-mayday-illinois-general-assembly-considers-and-passes-series-of-changes-to-illinois-human-rights-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT061918 Vermont Attorney General Releases “Marijuana in the Workplace” Guidance http://www.seyfarth.com:80/publications/TBT061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> On June 14, 2018, the Vermont Attorney General released its &ldquo;Guide to Vermont&rsquo;s Laws on Marijuana in the Workplace,&rdquo; which can be found here. The Guide is aimed at assisting Vermont employers in navigating the state&rsquo;s new recreational marijuana law, although it also addresses the state&rsquo;s medical marijuana law, disability discrimination law, and drug testing law.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/vermont-attorney-general-releases-marijuana-in-the-workplace-guidance/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/passantinobna061918 Alex Passantino quoted in Bloomberg BNA http://www.seyfarth.com:80/news/passantinobna061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Alex Passantino was quoted in a June 19 story from Bloomberg BNA, &quot;Best Buy Lawsuit May Color Labor Dept. Rule on Overtime Pay,&quot; on the announcement that the DOL&rsquo;s Wage and Hour Division would propose to clarify, update, and define regular rate requirements &mdash; or the typical hourly rate of pay that is multiplied by 1.5 to calculate the overtime premium for hours beyond 40 in a week. Passantino said that it would be nice to have more guidance on what you&rsquo;re talking about there so that we could give clients more advice on that with more certainty.</p> http://www.seyfarth.com:80/news/damonhre061918 Lisa Damon quoted in Human Resource Executive http://www.seyfarth.com:80/news/damonhre061918 Tue, 19 Jun 2018 00:00:00 -0400 <p> Lisa Damon was quoted in a June 19 story from Human Resource Executive, &quot;HR&rsquo;s #MeToo Moment,&quot; on what the #MeToo movement can teach HR professionals. According to Damon, even employers that haven&rsquo;t dealt directly with #MeToo situations are being impacted. You can read the <a href="http://hrexecutive.com/hrs-metoo-moment/">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbna061818 Gerald Maatman quoted in Bloomberg BNA http://www.seyfarth.com:80/news/maatmanbna061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a June 18 story from Bloomberg BNA, &quot;The Unexpected Impact of a Securities Case on Employment Law,&quot; on how a recent U.S. Supreme Court ruling about when securities fraud class actions can be filed could ripple into employment law. Maatman said that right now the wage-and-hour multiple-plaintiff case is the number one case being brought against employers.</p> http://www.seyfarth.com:80/publications/WSE061818 Failure To Follow Company’s Own Internal Procedures Can Be Used Against It In OSHA 11(c) Retaliation Case http://www.seyfarth.com:80/publications/WSE061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-litigation/failure-to-follow-company-own-internal-procedures-can-be-used-against-it-in-osha-11c-retaliation-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE061818a OSHA Enforcement Memo for Crystalline Silica Standard in General Industry and Maritime http://www.seyfarth.com:80/publications/WSE061818a Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has just released a Memorandum on the Enforcement Launch for the Respirable Crystalline Silica Standard in General Industry and Maritime rules.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/chemical-safety/osha-enforcement-memo-for-crystalline-silica-standard-in-general-industry-and-maritime/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE061818 The Internet of Things + Medical Devices = Liability (Part 1) http://www.seyfarth.com:80/publications/FE061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> That video was comical because the driver was in on the experiment. But as the &ldquo;Internet of Things&rdquo; (IoT) expands, and more and more devices are connected in some way to the outside world, all sorts of possibilities for security failures arise. Manufacturers are therefore potentially exposed to both tort and regulatory liability&mdash;not just for acts and omissions during the manufacturing process, but for the failure to update existing devices as time goes by and vulnerabilities become known.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/15/the-internet-of-things-medical-devices-liability-part-1">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP061818 Biometrics & Blockchain in the Workplace: A Primer http://www.seyfarth.com:80/publications/CP061818 Mon, 18 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Information is everywhere, especially in the workplace. But traditional means of securing and sharing data&mdash;which typically involve accessing password protected information from various sources&mdash;is inefficient, cumbersome, and risky. As old authentication methods are replaced with biometric and blockchain applications, companies will enjoy increased efficiency, security, and cost-savings. But they would be wise to prepare by first understanding the potential legal pitfalls involved.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/18/biometrics-blockchain-in-the-workplace-a-primer/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR061518 Suffering From Withdrawal Following An Acquisition: Private Equity Company Liable For Successor Withdrawal Liability http://www.seyfarth.com:80/publications/LR061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Given the Ninth Circuit&rsquo;s recent holding that successor withdrawal liability is governed by a constructive notice standard, private equity companies and other businesses seeking to acquire other enterprises should be hyper-diligent in determining whether the transaction will expose their organizations to withdrawal liability triggered by the seller.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/06/15/suffering-from-withdrawal-following-an-acquisition-private-equity-company-liable-for-successor-withdrawal-liability/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL061518 Mass. AG on the Lookout for Prohibited Criminal History Inquiries http://www.seyfarth.com:80/publications/EL061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Synopsis: Massachusetts Attorney General investigates 70 employers (both large and small &ndash; across all industries), citing 21 of them for violating the state&rsquo;s &ldquo;ban the box&rdquo; law, which prohibits most businesses from asking about job candidates&rsquo; criminal backgrounds on initial employment applications.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/mass-ag-on-the-lookout-for-prohibited-criminal-history-inquiries/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/houstonreuters061518 Tamaron Houston authored a chapter in Thomson Reuters Successful Partnering Between Inside and Outside Counsel http://www.seyfarth.com:80/publications/houstonreuters061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Tamaron Houston authored a chapter in Thomson Reuters Successful Partnering Between Inside and Outside Counsel, &quot;Real Estate Law.&quot; The chapter was written to help in-house corporate counsel and outside counsel identify and successfully address, as partners, the real estate issues faced by the corporate counsel&#39;s company.</p> http://www.seyfarth.com:80/publications/IMM061518 Seyfarth Shaw Policy Matters Newsletter – June 14, 2018 http://www.seyfarth.com:80/publications/IMM061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s new, leading Government Relations and Policy Group, which has already won the attention of national media outlets, is excited to offer regular updates to clients regarding the actions of Congress, administrative agencies, and other lawmakers at the federal, state, and local levels. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. Below is our round-up from what happened this week in Washington.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/seyfarth-shaw-policy-matters-newsletter-june-14-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/ecklaw360061518 William Eck quoted in Law360 http://www.seyfarth.com:80/news/ecklaw360061518 Fri, 15 Jun 2018 00:00:00 -0400 <p> William Eck was quoted in a June 15 story from Law360, &quot;Attys Reflect On Escobar&#39;s FCA Impact 2 Years Later.&quot; Eck said that, although not without exception, Escobar has been a positive development for FCA defendants.</p> http://www.seyfarth.com:80/news/olsonrda061418 Camille Olson quoted in Recruiting Daily Advisor http://www.seyfarth.com:80/news/olsonrda061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> Camille Olson was quoted in a June 14 story from Recruiting Daily Advisor, &quot;Is Contingent Work on the Decline? New BLS Data Show Slight Dip Over Past 12 Years,&quot; on the new data released by the Bureau of Labor Statistics (BLS). Olson said that the report offers new, hard data on workers in contingent and alternative employment arrangements which will help guide the broader debate on the pros and cons of the so-called &lsquo;gig economy.&rsquo; You can read the <a href="https://recruitingdailyadvisor.blr.com/2018/06/contingent-work-decline-new-bls-data-show-slight-dip-past-12-years/">full article here</a>.</p> http://www.seyfarth.com:80/publications/RD061418-LE Becoming Predictable: Oregon’s Final Rules Help Clarify Its New Predictable Scheduling Law http://www.seyfarth.com:80/publications/RD061418-LE Thu, 14 Jun 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Oregon&rsquo;s new employee scheduling law </em><em>&ndash; impacting hourly employees at large retail, food service, and hospitality employers </em><em>&ndash; will go into effect on July 1, 2018.&nbsp; Recently, Oregon published the final administrative rules interpreting this &ldquo;predictable scheduling&rdquo; law.</em></p> <p> Last week, Oregon&rsquo;s Bureau of Labor and Industries (BOLI) published the long-awaited Permanent Administrative Order interpreting the state&rsquo;s impending predictable scheduling law (&ldquo;Final Rules&rdquo;), which will take effect on July 1, 2018.&nbsp; The Final Rules largely mirror the proposed administrative rules, issued in April 2018, and do not contain any significant surprises.</p> <p> When this scheduling law takes effect on July 1, Oregon will officially become the first state with a law of this kind &ndash; imposing conditions on employers&rsquo; ability to alter employee schedules.&nbsp; The full text of the law is available <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/SB828/Enrolled">here</a>.&nbsp; It will join the ranks of San Francisco, Seattle, New York City, and Emeryville, California &ndash; all of which have enacted legislation over the past several years to curb practices like on-call scheduling, or unpredictable scheduling practices.</p> <p> Oregon&rsquo;s law applies to retail, hospitality, and food service employers with 500 or more employees worldwide, and governs the schedules of non-exempt employees.&nbsp; As of July 1, it will require that covered employers: give employees a good faith estimate of their work schedule upon hire, post work schedules at least seven calendar days in advance (until July 1, 2020 &ndash; when it becomes fourteen calendar days), <em><u>compensate</u></em> employees for any changes to their schedules after that time period (subject to certain exceptions), provide certain rights to rest between shifts, and prohibit retaliation against employees who request changes to their work schedule or otherwise exercise rights under the law.</p> <p> Although the Final Rules do not address every aspect of Oregon&rsquo;s new scheduling law, they contain many helpful insights for employers seeking guidance on how to abide by this sweeping legislation. &nbsp;Some of the more notable details include:</p> <ul> <li> <strong>Good Faith Estimate of Work Schedules</strong></li> </ul> <p> Covered employers must provide new employees with a written good faith estimate of the employee&rsquo;s work schedule upon hire.&nbsp; The Final Rules clarify how a &ldquo;good faith estimate&rdquo; is created.</p> <p> For example, the estimate must contain several components: (1) the median number of hours an employee can expect to work in an average one-month period (the Rules explain how to calculate the median, which must be a single number, not a range of numbers); (2) an explanation of the employer&rsquo;s voluntary standby list (if any); and (3) a statement indicating whether employees who are not on a voluntary standby list may expect to work on-call shifts and an &ldquo;objective standard&rdquo; for when they will be expected to be available for on-call shifts.</p> <ul> <li> <strong>Advance Notice of Work Schedules</strong>.</li> </ul> <p> One of the biggest pieces of this law is its advance notice requirement, and the consequences that flow from changing employees&rsquo; schedules after the mandated advance notice window.&nbsp; Employers must post written work schedules in a conspicuous and accessible location, at least <u>seven (7) calendar days in advance</u> before the <em>first day of the work schedule</em>.&nbsp; In other words, if the schedule is for July 1 to July 14, the schedule must be posted June 24.</p> <p> A &ldquo;conspicuous and accessible location&rdquo; can be an electronic scheduling system, so long as all employees are given access to the electronic system at the workplace, and can view the work schedules of all employees at the same location.</p> <p> If employers change the work schedule with more than seven days before the first day of the schedule, then it is not considered a schedule &ldquo;change&rdquo; under the statute, and will not require any additional compensation.&nbsp; Otherwise, for changes made within that seven-day window, employees cannot be forced to work any shifts not included in their original written work schedule, and any employer-initiated modifications to the work schedule are subject to the statute&rsquo;s myriad predictability pay provisions.</p> <ul> <li> <strong>Predictability Pay, or Additional Compensation for Scheduling Changes</strong></li> </ul> <p> The Final Rules do not provide any additional explanation about the amount of compensation required for changes to employees&rsquo; schedules (often referred to as &ldquo;predictability pay&rdquo;).&nbsp; Employers should familiarize themselves with the text of the law, which includes additional compensation, at varying rates, where employers: add more than 30 minutes to a shift, change a start or end time of a shift with no loss of hours, subtract hours after an employee reports to work, cancel a shift, or do not call an employee in for an on-call shift (among others).&nbsp;</p> <p> There are many exceptions to when predictability pay is required.&nbsp; For example, there is no obligation to issue predictability pay where employees request changes to their own schedule (in writing), agree to swap shifts, or have shifts taken away for disciplinary reasons.&nbsp; Most important, employers may call on employees who have consented to include be on a &ldquo;voluntary standby list&rdquo; when additional coverage is needed.&nbsp; Employees who agree to work when called from the voluntary standby list will not be entitled to predictability pay.</p> <ul> <li> <strong>Right to Rest Between Work Shifts</strong></li> </ul> <p> Employees cannot be scheduled to work within 10 hours after the end of a prior <em>calendar day&rsquo;s </em>work shift or on-call shift, or within 10 hours of a shift that spanned two calendar days, absent the employee&rsquo;s consent or request to do so.&nbsp; Regardless of whether employees request or consent to work such shifts, they must be paid time and a half for any shifts separated by less than ten hours.&nbsp; However, the rule does not apply to &ldquo;split shifts&rdquo; on the same calendar day (<em>e.g., </em>employee takes a break between morning and evening shift).</p> <ul> <li> <strong>Record Retention Requirements</strong></li> </ul> <p> Employers must retain records relating to this scheduling law for <u>three years</u>.&nbsp; Such records include: (1) the written work schedules given to employees and posted; (2) employees&rsquo; written requests to change their work schedule after the schedule has been posted; (3) the good faith estimate of employees&rsquo; work schedules, given to employees; (4) the voluntary standby list maintained by the employer, if any; (5) the employer&rsquo;s notice to employees about any voluntary standby list and their rights to be included; and (6) documents showing just cause to subtract employees&rsquo; work hours for any disciplinary purposes.</p> <p> <em>Changes from the Proposed Rules</em></p> <p> The Final Rules contain few changes from the Proposed Rules issued in April.&nbsp; Notable modifications include:</p> <ul> <li> When the statute says that employers can avoid paying additional compensation for coverage needed to address unanticipated customer needs or unexpected absences, and references contacting &ldquo;<em>all of the employees listed on the voluntary standby list</em>&rdquo; &ndash; it only means those employees on the voluntary standby list &ldquo;who are qualified and trained to perform the work for which the additional shift is offered.&rdquo;&nbsp; This is a new definition from the Proposed Rules. &nbsp;It makes clear what should be common sense: employers do not need to call unqualified or untrained workers to fill-in for a shift to avoid paying additional compensation.</li> <li> The Final Rules eliminate a proposed rule regarding joint employers &ndash; which would have relied on the joint employment standards in Title 29, CFR Part 791, Section 2 and Part 825, Section 106 (the Fair Labor Standards Act and the Family and Medical Leave Act).</li> </ul> <p> <em>Civil Penalties</em></p> <p> Oregon also published its Final Rules regarding the civil penalties to be imposed for violations of the employee scheduling law.&nbsp; Civil penalties will not be imposed until after <strong><u>January 1, 2019</u></strong>.&nbsp; Generally, the penalty for a scheduling violation cannot exceed $1,000, with the penalty for failing to display the required notice to employees not exceeding $500.&nbsp; The penalty for coercing employees to be added to the voluntary standby list, however, is steeper &ndash; with a maximum of $2,000.</p> <p> Employers impacted by Oregon&rsquo;s new employee scheduling law should review the Final Rules and enacted legislation, and compare the provisions with their current scheduling practices to ensure compliance in advance of the July 1 effective date.&nbsp; Employers should also ensure they have sufficient recordkeeping practices in place to record employee schedule modifications, and prepare any voluntary employee standby list (an advisable practice).</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL061418 EEOC Argues that Sexual Orientation Discrimination by a Heterosexual Person can Constitute a Protected Activity http://www.seyfarth.com:80/publications/EL061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In her appeal to the Fifth Circuit, Plaintiff Bonnie O&rsquo;Daniel argues that the trial court wrongly concluded that it was unreasonable for O&rsquo;Daniel to believe that a complaint about discrimination based on sexual orientation constituted a protected activity. The EEOC recently joined the fray by filing an amicus curiae brief, which argues that it was reasonable for O&rsquo;Daniel to believe that opposition to sexual orientation discrimination constituted protected activity.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/eeoc-argues-that-sexual-orientation-discrimination-by-a-heterosexual-person-can-constitute-a-protected-activity/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD061418 Supreme Court Rules that Class Actions Do Not Toll the Limitations Period for Successive Class Actions http://www.seyfarth.com:80/publications/CCD061418 Thu, 14 Jun 2018 00:00:00 -0400 <p> In China Agritech, Inc. v. Resh, the Supreme Court recently held that pending class actions do not toll the limitations period for successive class actions. The ruling limits plaintiffs&rsquo; ability to bring successive class actions and will increase certainty for defendants sued in class actions.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/supreme-court-rules-that-class-actions-do-not-toll-the-limitations-period-for-successive-class-actions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT061418 The Week in Weed: June 15, 2018 http://www.seyfarth.com:80/publications/TBT061418 Thu, 14 Jun 2018 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="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-15-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT061418a Origo Acquisition Corporation Secures Additional Time for High Times Merger http://www.seyfarth.com:80/publications/TBT061418a Thu, 14 Jun 2018 00:00:00 -0400 <p> In our June 12 blog post, we reported on a potential acquisition in the cannabis industry:<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/origo-acquisition-corporation-secures-additional-time-for-high-times-merger/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC061318 U.S. Supreme Court Holds Limitations Period On Class Claims Runs http://www.seyfarth.com:80/publications/WC061318 Wed, 13 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: At the start of this week, the U.S. Supreme Court issued its long-awaited decision in China Agritech, Inc. v. Resh, No. 17-432 (U.S. June 11, 2018), which has important implications for employers because it will limit their exposure to successive class actions. Specifically, the Supreme Court held that, while the individual claims of putative class members are tolled during pending class actions, their class claims are not.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/06/u-s-supreme-court-holds-limitations-period-on-class-claims-runs/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/alfredpetersenlaw360061218 Richard Alfred and Kyle Petersen authored an article in Law360 http://www.seyfarth.com:80/publications/alfredpetersenlaw360061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Richard Alfred and Kyle Petersen authored a June 12 article in Law360, &quot;FLSA Turns 80: Causes Of Growth In Wage And Hour Cases, &quot; on how a confluence of four key factors resulted in the explosion of wage and hour litigation.</p> http://www.seyfarth.com:80/publications/MA061218-LE If Pain, Yes Gain—Part XLVIII: Rhode Island Releases Final Sick Leave Regulations; Effective Date is Near http://www.seyfarth.com:80/publications/MA061218-LE Tue, 12 Jun 2018 00:00:00 -0400 <p> <strong>Seyfarth Synopsis: </strong><em>Last month, the Rhode Island Department of Labor and Training released the state&rsquo;s final paid sick and safe leave regulations.&nbsp; As the state paid sick leave law&rsquo;s July 1, 2018 effective date approaches, the regulations impose additional obligations on various topics</em>&mdash;<em>employer coverage, written policy requirements, sick leave accrual, calculating payment for used sick leave, etc.</em>&mdash;<em>that employers must satisfy for full compliance.</em></p> <p> Last month, the Rhode Island Department of Labor and Training published the state&rsquo;s long-awaited regulations for the Healthy and Safe Families and Workplaces Act (&ldquo;Act&rdquo;).&nbsp; When the Act, which Governor Gina Raimondo signed on September 28, 2017, goes into effect on July 1, 2018, Rhode Island will become the ninth state in the country with a statewide paid sick leave mandate.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> Our <a href="http://www.seyfarth.com/publications/MA092117-LE">previous alert</a> on the Act outlined the Act&rsquo;s key provisions. Now, after months of anticipation, the final regulations bring a potpourri of selective clarity, unresolved gray areas, and additional compliance burdens in advance of the Act&rsquo;s looming effective date.</p> <p> Here are the highlights of the Rhode Island Final Paid Sick and Safe Leave (&ldquo;PSSL&rdquo;) Regulations:</p> <p> <strong>Covered Employers and Determining Employer Size</strong></p> <p> The Act requires employers with 18 or more employees <em>in Rhode Island</em> to provide paid sick and safe leave to eligible employees. &nbsp;The Act generally applies to any person suffered or permitted to work by an employer.&nbsp; Despite some uncertainty in the Act and no further clarification in the regulations, it appears that smaller employers (i.e., those with less than 18 Rhode Island employees) are not obligated to provide either paid or unpaid leave to their Rhode Island employees. However, it does appear that smaller employers will be required to protect unpaid time off used for covered reasons under the Act up to 24, 32, or 40 hours depending on the year in question. &nbsp;</p> <p> The regulations establish the calculations needed for determining employer size under the Act.&nbsp; Annually, employers must determine whether they meet the 18-employee threshold by taking an average of their total Rhode Island employees during the previous payroll year&rsquo;s highest two employment quarters.&nbsp; This determination remains in effect, regardless of potential changes in employer size, for the following 12 months.&nbsp;</p> <p> The regulations explain that an employee is considered to be employed in Rhode Island if their primary place of employment over the last year was in Rhode Island, regardless of the employer&rsquo;s location.<a href="#_ftn2" name="_ftnref2" title=""><sup><sup>[2]</sup></sup></a>&nbsp; However, an employee does not need to spend at least 50 percent of their time working in Rhode Island for it to be considered their primary place of employment. Instead, the employee only needs to spend more time working in Rhode Island than in any other state in order to be included in the 18-employee calculation.</p> <p> <strong>Employers with a Paid Time Off Policy</strong></p> <p> The Act expressly states that employers who afford their employees the correct amount of paid leave in 2018, 2019 and thereafter, under a non-sick paid leave policy, such as PTO, are exempt from the Act&rsquo;s accrual and carryover requirements.&nbsp; However, the Act does not clarify whether an employer must frontload the PTO, or if employers with an accrual based PTO setup can take advantage of these exemptions.&nbsp;</p> <p> The regulations do not resolve these issues. While the regulations acknowledge that a PTO policy that frontloads paid leave to employees at the start of each year will exempt an employer from tracking leave accrual, allowing year-end carryover, and paying employees for unused time, the regulations also contain language suggesting that the same exemptions may apply when PTO is accrued. This outcome would be very different than treatment of accrual-based policies under other existing paid sick leave laws and ordinances and thus further clarification may be coming from the state.</p> <p> Whichever paid leave delivery method the employer chooses, it must provide full-time employees working an entire year with the minimum amount of paid leave as required by the Act.&nbsp; The regulations further state that employers can prorate paid leave for non-full time employees based on their start date and number of hours worked.&nbsp;&nbsp;&nbsp;</p> <p> <strong>Accrual of PSSL</strong></p> <p> The regulations clarify that a Rhode Island employee will accrue PSSL for all hours worked, regardless of the location of the work.&nbsp; Additionally and significantly, employees also will accrue PSSL<em> <strong>for all hours paid by their employer</strong></em>. As a result, employers will need to include paid holidays (when the employee is not working), paid sick, vacation and personal time, and other forms of paid time off when calculating accrual under the Act&rsquo;s one hour for every 35 hours worked accrual rate.</p> <p> This requirement represents a departure from accrual rate calculations under most, if not all, existing paid sick leave laws. Employers with operations in non-Rhode Island paid sick leave locations should immediately assess their current sick leave accrual tracking system to determine if updates are needed based on this new obligation.</p> <p> <strong>Use of PSSL</strong></p> <p> <u>Covered Family Members</u>: The Act allows covered employees to use PSSL for, among other reasons, their family member&rsquo;s health needs. 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.&nbsp; The regulations include a definition of &ldquo;member of employee&rsquo;s household,&rdquo; which was absent from the Act. This term is defined as a person that resides at the same physical address as the employee or a person that is claimed as a dependent by the employee for federal income tax purposes.</p> <p> <u>Waiting Period for New Hires</u>: The Act imposes 90, 150 or 180-day usage waiting periods for new hires depending on whether the individual is a regular, seasonal, or temporary employee, respectively. The regulations explain that where an employer imposes an appropriate 90-day usage waiting period, it must notify new hires of this requirement in writing.</p> <p> The regulations define &ldquo;in writing&rdquo; (or &ldquo;written notice&rdquo;) as any printed or printable communication that is provided in a physical or electronic format, including communications that are transmitted through electronic mail, a computer system or is otherwise sent and stored electronically. While electronic notice is permissible, employers must provide the notice in hard copy if requested by the employee.</p> <p> <strong>Notice</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. For purposes of providing notice when a PSSL absence is &ldquo;foreseeable,&rdquo; the regulations define &ldquo;foreseeable&rdquo; as something that is planned at least 24 hours in advance of when it is required.</p> <p> <strong>Documentation</strong></p> <p> The Act allows employers to seek reasonable documentation when an employee has been absent for more than three consecutive work days. The regulations state that employers must accept such documentation within a reasonable timeframe, although they do not define what is considered a &ldquo;reasonable timeframe.&rdquo;</p> <p> The Act also states that an employer&rsquo;s verification may not result in an unreasonable burden or expense to the employee. The regulations determine &ldquo;unreasonable&rdquo; to be when the employee&rsquo;s total cost to obtain the verification is more than two times their hourly rate of pay.&nbsp; Administrative, governmental or medical fees, and transportation costs must be included in making this determination.&nbsp; If the total cost to an employee is considered unreasonable, employers may require the employee to submit a signed statement indicating their use of PSSL was for covered purposes.</p> <p> <strong>Leave Pay Rate Calculation</strong></p> <p> The regulations clarify what it means to be compensated at the same hourly rate for use of PSSL for the following types of employees:</p> <ul> <li> <u>Hourly Employees</u>: The employee&rsquo;s regular hourly rate.</li> <li> <u>Employees who receive different rates for hourly work from the same employer</u>: Employer must annually choose the &ldquo;same hourly rate&rdquo; to be either the rate the employee would have been paid for the hours they would have worked or a weighted average of all regular pay rates for the previous pay period, month, quarter or other established period of time an employer customarily uses to calculate the weighted average for similar purposes. &nbsp;</li> <li> <u>Salaried Employees</u>: Total earnings in the previous pay period divided by the employee&rsquo;s total hours worked during that pay period.&nbsp;</li> <li> <u>Piece Work Employees</u>: Employers may use a reasonable calculation of the wages or fees the employee would ha</li> <li> ve received for the piece work, service or part thereof, if the employee had worked.</li> <li> <u>Commissioned Employees</u>: Must be paid the greater of the base wage or the effective minimum wage.</li> <li> <u>Tipped Employees</u>: Must be paid at least the minimum wage.</li> </ul> <p> The regulations explain that commissions, drawing accounts, bonuses, incentive pay based on sales or production, sums excluded under 29 U.S.C. &sect; 207(e), overtime pay, holiday pay, and other premium rates<a href="#_ftn3" name="_ftnref3" title="">[3]</a> do not need to be included in the calculating payment for used PSSL.</p> <p> <strong>Loaned PSSL and Wage Deductions</strong></p> <p> The Act allows employers to loan or advance PSSL to employees before it is accrued, but is silent on whether employers can recoup any monies owed by an employee upon employment separation.&nbsp; The regulations state that an employer can deduct the PSSL owed from the employee&rsquo;s final wages provided that it has obtained the employee&rsquo;s written permission to do so.&nbsp; The regulations further clarify that an employer should clearly state in its employment policies that prior to advancing or loaning PSSL time it will require employees to agree, in writing, to allow it to recover any outstanding amounts owed from advanced or loaned PSSL time via payroll deductions in the employee&rsquo;s final wages.</p> <p> <strong>Food Employees</strong></p> <p> While the Act was silent on food employees, the regulations make a point to discuss how the notice and documentation requirements differ for food employees.&nbsp; The regulations use the Rhode Island Food Code to define &ldquo;food employees&rdquo; as any individual working with unpackaged food, food equipment or utensils, or food-contact surfaces.</p> <p> If a food employee (or someone who manages food employees) notifies their employer of their intent to use PSSL time, the employer may ask if the employee&rsquo;s reason would trigger the employer&rsquo;s obligations under the Rhode Island Food Code.&nbsp; If the employee answers in the negative, the employer cannot ask any further questions about the nature of the illness.&nbsp; However, if the answer is in the affirmative, the employer may ask about the symptoms on a limited basis to determine what steps it must take to comply with its obligations under the Food Code. &nbsp;Finally, if the employee states that they are suffering from any of the symptoms described in the Food Code, the employer must follow the Food Code&rsquo;s procedures.</p> <p> When it comes to the Act&rsquo;s documentation requirements, if there is a conflict with the Food Code, the Act&rsquo;s requirements will not apply to Food Employees. &nbsp;</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 and its regulations by the rapidly approaching 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.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> <li> Review accrual calculation procedures and systems based on the standard that employees accrue PSSL based on hours worked and hours paid by the employer.</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. Companies interested in Seyfarth&rsquo;s paid sick leave laws survey should reach out to <a href="mailto:sickleave@seyfarth.com">sickleave@seyfarth.com</a>.</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 other nine states that have passed a statewide mandatory paid sick leave law are: (1) Connecticut; (2) California; (3) Massachusetts; (4) Oregon; (5) Vermont; (6) Arizona; (7) Washington; (8) Maryland; (9) New Jersey.&nbsp; The Washington statewide paid sick leave law went into effect on January 1, 2018.&nbsp; The Maryland statewide paid sick leave law went into effect on February 11, 2018.&nbsp; The New Jersey governor signed the state&rsquo;s paid sick leave law on May 2, 2018, and it is scheduled to go into effect on October 29, 2018.&nbsp; The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> In effect, the employer will still be liable for paid or unpaid leave regardless of whether the employer has a physical location in Rhode Island.&nbsp; In addition, barring subsequent clarification from the state, the &ldquo;primary place of employment&rdquo; standard appears to be tied to determining employer size and not employee eligibility.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> When an employee&rsquo;s regular hourly rate is a &ldquo;differential rate,&rdquo; meaning a different wage paid for the same work performed under differing conditions (hours, etc.), the &ldquo;differential rate&rdquo; is not a premium and shall be considered as regular wages for the purpose of determining the same hourly rate.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL061218 Using Credit Histories in Employment Decisions: An Overview of Divergent State & Local Requirements http://www.seyfarth.com:80/publications/EL061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Over the past few years, restrictions regarding the use of credit checks by employers on applicants and employees have been passed at various state and municipal levels, and the federal government has indicated its own concerns of potential discriminatory impact of the use of credit checks. The nuanced differences in obligations and requirements that may govern in any particular jurisdiction have created a legal mine-field for employers who utilize credit checks.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/using-credit-histories-in-employment-decisions-an-overview-of-divergent-state-local-requirements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT061218 SPACs as an Exit Strategy for Cannabis Businesses http://www.seyfarth.com:80/publications/TBT061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> A developing market for owners of cannabis businesses looking for a potential buyer are SPACs, special purpose acquisition companies. SPACs raise money in public offerings with the purpose of acquiring companies, usually in a specified range of industries or located in a particular geographic area. The SPACs cannot have a particular target in mind at the time of the public offering. Among some of the more recent SPACs with a cannabis industry focus, MTech Acquisition Corp. closed a public offering for $57.5 million in February 2018, and Cannabis Strategies Acquisition Corp. closed a CDN $134.75 million (approximately US $103.78 million) public offering in Canada in December 2017. This post looks at some of the issues involved that are unique to being acquired by a SPAC.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/spacs-as-an-exit-strategy-for-cannabis-businesses/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wexlernewsday061218 Howard Wexler quoted in Newsday http://www.seyfarth.com:80/news/wexlernewsday061218 Tue, 12 Jun 2018 00:00:00 -0400 <p> Howard Wexler was quoted in a June 12 story from Newsday, &quot;Help Wanted: Holidays don&#39;t mean that payday also takes a holiday,&quot; on whether an employer can legally postpone a Tuesday payday when a holiday falls on a Monday. Wexler said that the holiday does not change when wages are due. You can read the <a href="https://www.newsday.com/business/new-york-labor-law-payday-1.19132462">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360060818 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a June 8 story from Law360, &quot;NLRB Taking A Look At Recusal Process Amid Ethics Dispute.&quot; Babson said that he thinks the board is reviewing its ethics rules out of caution.</p> http://www.seyfarth.com:80/publications/TS060818 Security Breach Responses — As Important and Difficult As Ever http://www.seyfarth.com:80/publications/TS060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> This post originally appeared in the June edition of Cyber Law &amp; Strategy.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/cybersecurity/security-breach-responses-as-important-and-difficult-as-ever/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR060818 The Board’s General Counsel Memorandum is a Comforting Return to a Common Sense Approach to Workplace Policies http://www.seyfarth.com:80/publications/LR060818 Fri, 08 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.employerlaborrelations.com/2018/06/08/the-boards-general-counsel-memorandum-is-a-comforting-return-to-a-common-sense-approach-to-workplace-policies/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ssfbcbloomberglaw060818 Sam Schwartz-Fenwick and Ben Conley authored an article in Bloomberg Law http://www.seyfarth.com:80/publications/ssfbcbloomberglaw060818 Fri, 08 Jun 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick and Ben Conley authored a June 8 article in Bloomberg Law, &quot;Transgender Issues in the Workplace.&quot; The article highlights proactive policies addressing transgender issues that employers can incorporate in their workplaces to help increase diversity and inclusion while avoiding violations of relevant nondiscrimination laws that provide protections for transgender employees and applicants.</p> http://www.seyfarth.com:80/publications/EL060718 The Supreme Court’s Decision in Masterpiece Cakeshop Provides Little Guidance on Intersection of Religious and LGBT Rights http://www.seyfarth.com:80/publications/EL060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a largely symbolic ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a gay couple based on his religious beliefs. By limiting its holding to the facts of the case, however, the Court sidestepped an opportunity to delineate the intersection between free expression of religion and LGBT rights. As a result, the decision provides little in the way of guidance to employers regarding the role of free expression of religion in the workplace.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/the-supreme-courts-decision-in-masterpiece-cakeshop-provides-little-guidance-on-intersection-of-religious-and-lgbt-rights/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP060718 2018 California Legislative Update: What Survived the House of Origin Deadline? http://www.seyfarth.com:80/publications/CP060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Several bills of concern to California employers failed to receive the house of origin blessing and passage by the June 1 deadline, including this year&rsquo;s attempts at PAGA reform, criminal history inquiries, and medical marijuana accommodations, while a boatload of others, most notably sexual harassment-related bills, sail on. The measures being passed to their opposite house for consideration are described below.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/06/07/2018-california-legislative-update-what-survived-the-house-of-origin-deadline/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT060718 The Week in Weed: June 8, 2018 http://www.seyfarth.com:80/publications/TBT060718 Thu, 07 Jun 2018 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="https://www.blunttruthlaw.com/2018/06/the-week-in-weed-june-8-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/seidmanbloomberglaw060718 Joshua Seidman quoted in Bloomberg Law http://www.seyfarth.com:80/news/seidmanbloomberglaw060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Joshua Seidman was quoted in a June 7 story from Bloomberg Law, &quot;Austin Businesses Consider Costs as Battle Over Sick Leave Ramps Up,&quot; on how a trial court will decide whether to approve an injunction to the paid sick leave law. Seidman said that the lawsuit&rsquo;s outcome will have limited influence outside of Texas but could reverberate across the state.</p> http://www.seyfarth.com:80/news/olsoncns060718 Camille Olson quoted in Courthouse News Service http://www.seyfarth.com:80/news/olsoncns060718 Thu, 07 Jun 2018 00:00:00 -0400 <p> Camille Olson was quoted in a June 7 story from Courthouse News Service, &quot;Strict Definition of &lsquo;Gigging&rsquo; Hampers Federal Study,&quot; on a BLS report that says just 5.9 million people, about 3.8 percent of all workers, make up what is known as the contingent-job sector in May 2017. Olson said that the report clearly reveals continuing concerns over compensation and benefits which deserve further examination by our nation&rsquo;s policymakers. You can read the <a href="https://www.courthousenews.com/strict-definition-of-gigging-hampers-federal-study/">full article here</a>.</p> http://www.seyfarth.com:80/news/moragrd060618 Jennifer Mora quoted in Green Rush Daily http://www.seyfarth.com:80/news/moragrd060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in a June 6 story from Green Rush Daily, &quot;Employers in Maine Can Now Restrict Marijuana Use.&quot; Mora said that one of the key changes from the new law is that it got rid of the original protection for employees who smoke weed away from work during their off hours. You can read the <a href="https://greenrushdaily.com/employers-in-maine-can-now-restrict-marijuana-use/">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS060618 Webinar Recap! The Anatomy of a Trade Secret Audit http://www.seyfarth.com:80/publications/TS060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s third installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Dawn Mertineit, Justin Beyer, and Andrew Stark focused on trade secret audits, with an emphasis on the importance of a proactive, systematic approach to assessing and protecting trade secret portfolios.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/trade-secrets/webinar-recap-the-anatomy-of-a-trade-secret-audit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH060618 The Tension Between Present and Future in Wage and Hour Lawmaking http://www.seyfarth.com:80/publications/WH060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Most wage and hour laws set out to benefit and protect workers in some way. The recent wave of state and local predictive scheduling laws and minimum wage hikes is no different. Yet it is critical to assess, and attempt to account for, the possibility that these laws could hasten the demise of the very jobs held by the workers they intend to protect the most.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/futureinwhlawmaking/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ADA060618 W3C Publishes Expanded Web Content Accessibility Guidelines http://www.seyfarth.com:80/publications/ADA060618 Wed, 06 Jun 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.<br /> <br /> <a href="https://www.adatitleiii.com/2018/06/world-wide-web-publishes-expanded-web-accessibility-guidelines/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD060518 FDA Menu Labeling Rules Unfreeze http://www.seyfarth.com:80/publications/CCD060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> Certain restaurants, grocers, and other food establishments will soon be required to comply with the Food and Drug Administration&rsquo;s (&ldquo;FDA&rdquo;) menu labeling rules. The FDA previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining out. Last year, the FDA extended the compliance deadline to May 7, 2018.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/06/fda-menu-labeling-rules-unfreeze/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT060518 Proposed Amendment to California’s Medical Marijuana Law On Hold – For Now http://www.seyfarth.com:80/publications/TBT060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> California&rsquo;s AB 2069, a bill to require employers to accommodate medical cannabis users, recently failed to advance past committee.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/06/proposed-amendment-to-californias-medical-marijuana-law-on-hold-for-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE060518 The Tension Between Present and Future in Wage and Hour Lawmaking http://www.seyfarth.com:80/publications/FE060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> While opinions differ as to how much or how soon workers will have to adapt to the automation tsunami, this trend seems certain to impact the workplace in myriad ways. For example, a recent study focused on the Indianapolis workforce suggests not only the potential for job loss, but unfortunately, a pronounced impact on occupations disproportionately held by women.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/6/5/the-tension-between-present-and-future-in-wage-and-hour-lawmaking">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO060518 The USDA’s Proposed National Bioengineered Food Disclosure Standard http://www.seyfarth.com:80/publications/BIO060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> On May 3, 2018, the U.S. Department of Agriculture (&ldquo;USDA&rdquo;) released its much-anticipated proposed rule to establish a national standard for the disclosure of bioengineered ingredients in certain food products. The public comment period on the proposal has begun and runs through July 3, 2018. The proposed rule sheds light on certain aspects of the disclosures that food manufacturers and others will be required eventually to provide. But the USDA&rsquo;s proposal leaves significant questions unanswered, providing an opportunity for the public to shape the final rule in critical ways.<br /> <br /> <a href="https://www.bioloquitur.com/usdas-proposed-national-bioengineered-food-disclosure-standard/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS060518 Top 7 for directors and the workplace http://www.seyfarth.com:80/publications/WLS060518 Tue, 05 Jun 2018 00:00:00 -0400 <p> Download the overview of our top 7 for directors and the workplace:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/06/top-7-for-directors-and-the-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM060518-LIT The USDA’s Proposed National Bioengineered Food Disclosure Standard http://www.seyfarth.com:80/publications/OMM060518-LIT Tue, 05 Jun 2018 00:00:00 -0400 <div> On May 3, 2018, the U.S. Department of Agriculture (&ldquo;USDA&rdquo;) released its much-anticipated proposed rule to establish a national standard for the disclosure of bioengineered ingredients in certain food products.&nbsp; The public comment period on the proposal has begun and runs through July 3, 2018.&nbsp; The proposed rule sheds light on certain aspects of the disclosures that food manufacturers and others will be required eventually to provide.&nbsp; But the USDA&rsquo;s proposal leaves significant questions unanswered, providing an opportunity for the public to shape the final rule in critical ways.</div> <h3> Background</h3> <div> The USDA&rsquo;s rule is promulgated under the 2016 National Bioengineered Food Disclosure Standard Act.&nbsp; It preempts the GMO labeling regimes of several states, including Vermont, and requires the USDA to issue a final rule on the disclosure of bioengineered ingredients in food products by July 29, 2018.&nbsp; You can read more about the background of the Act and the actions undertaken by the USDA prior to the release of its proposed rule <a href="https://www.foodnavigator-usa.com/Article/2017/07/14/GUEST-ARTICLE-GMO-labeling-what-happens-next#">here</a>.</div> <h3> Definition of &ldquo;Bioengineered&rdquo; Ingredients</h3> <div> The proposed rule requires disclosure of &ldquo;bioengineered&rdquo; ingredients.&nbsp; Under the Act, &ldquo;bioengineered&rdquo; (or &ldquo;BE&rdquo;) means food &ldquo;(A) that contains genetic material that has been modified through in vitro recombinant deoxyribonucleic acid (DNA) techniques; and (B) for which the modification could not otherwise be obtained through conventional breeding or found in nature.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule is silent as to whether ingredients that are genetically modified through other techniques, such as gene editing, are covered.&nbsp; But the USDA does provide some clarifying guidance on what constitutes a &ldquo;bioengineered&rdquo; food or ingredient.&nbsp; Its proposed rule offers a list of &ldquo;Commercially Available BE Foods&rdquo; that have been &ldquo;highly adopted&rdquo; in the food industry, and a list of &ldquo;Commercially Available BE Foods&rdquo; that are &ldquo;not highly adopted.&rdquo;&nbsp; Only food products containing ingredients on these lists will be subject to the anticipated disclosure rules.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Foods are &ldquo;highly adopted&rdquo; where 85% or more of the crop produced in the U.S. is &ldquo;bioengineered&rdquo;&mdash;including canola, field corn, and soybeans.&nbsp; Foods are &ldquo;not highly adopted&rdquo; where less than 85% of the U.S. crop is bioengineered&mdash;including apples with non-browning cultivars, sweet corn, papaya, potato, and summer varieties of squash.&nbsp; The proposed rule provides a process by which the lists can be updated depending on changes in technology and food cultivation.&nbsp;&nbsp;</div> <h3> Disclosure Options&nbsp;</h3> <div> Except for certain exemptions (more on that below), if a food product appears on, or contains an ingredient on, either the &ldquo;highly adopted&rdquo; or &ldquo;not highly adopted&rdquo; list, regulated entities will be required to make a disclosure on the label of that food product or not make a disclosure if they have documented verification that the food is not a bioengineered food or that it does not contain a bioengineered food ingredient.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The proposed rule allows regulated entities to choose from at least three disclosure options for non-exempt foods: a text disclosure on a food label, a symbol disclosure, or an electronic link disclosure.&nbsp; The USDA is considering a text message disclosure option as well.&nbsp; Under this proposed option, the company would be required to include a statement on the food label directing the consumer to a number to text for more information about the food.&nbsp; The number must provide an immediate response with only the required text disclosure.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> If a regulated entity uses a text disclosure on a food label, the disclosure requirement would vary depending on which list the food or food ingredient appear.&nbsp; For food products made from ingredients on the &ldquo;highly adopted&rdquo; list, the regulated entity would disclose that the food product &ldquo;Contains a bioengineered food ingredient.&rdquo;&nbsp; For food products made with ingredients on the &ldquo;not highly adopted list,&rdquo; USDA proposes to give regulated entities the discretion to use the disclosure &ldquo;May contain a bioengineered food ingredient&rdquo; instead.</div> <div> &nbsp;</div> <div> For the symbol disclosure option, the USDA proposes <a href="https://www.ams.usda.gov/sites/default/files/media/ProposedBioengineeredLabels.pdf">three symbols</a> for public comment (along with black-and-white versions of each).</div> <div> &nbsp;</div> <div> For the electronic link disclosure option, the USDA proposes to allow regulated entities to include a link on food packaging that can be scanned by a smartphone, at which point the user&rsquo;s smartphone will open a website containing the required disclosures.&nbsp; The USDA seeks comments on text statements that would accompany the digital link&mdash;for example, &ldquo;Scan icon for food information.&rdquo;&nbsp; Regulated entities that use digital link disclosures would also be required to include a telephone number on the food label that would allow consumers to call at any time of day and receive the required disclosure.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The possible text message disclosure option would allow regulated entities to provide a number on food packaging and an instruction to send a text message to that number &ldquo;for more food information.&rdquo;&nbsp; After sending a text message to that number, the consumer would receive a text message in response containing the required disclosure for that food product.</div> <div> &nbsp;</div> <div> Entities responsible for disclosure would be required to maintain records necessary to substantiate compliance with the standards for individual disclosure options, including the type and wording of the disclosure used, and to substantiate the claim included in the disclosure or implied by the absence of a disclosure statement.</div> <h3> Exemptions from the Labeling Requirements</h3> <div> The proposed rule exempts a number of foods and food manufacturers from the labeling requirements.&nbsp; Exempted foods include animal products (e.g., meat or eggs) from animals that consume feed containing bioengineered ingredients; food certified as organic under the USDA&rsquo;s national organic program; and food served in restaurants or similar retail food establishments, including cafeterias, food stands, and bars.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The USDA is weighing different options for two categories of additional exemptions: an exemption based on the relatively low level of bioengineered ingredients in a food product, and an exemption for small food manufacturers based on the manufacturers&rsquo; annual receipts.&nbsp; The USDA seeks public comment on the appropriate thresholds for these exemptions, and proposes several different options for consideration.</div> <h3> Proposed Compliance Dates</h3> <div> The USDA proposes a compliance deadline of January 1, 2020, with a delayed compliance date of January 1, 2021 for small food manufacturers.&nbsp; The USDA&rsquo;s proposed deadlines for bioengineered food disclosures are intended to align with the Food &amp; Drug Administration&rsquo;s extension of the deadlines to comply with updated Nutrition Facts, Supplement Facts and Serving Size labeling requirements to the same dates.&nbsp;&nbsp;</div> <h3> Final Thoughts</h3> <div> The USDA&rsquo;s statutory deadline to issue a final rule, July 29, 2018, is fast approaching.&nbsp; But it likely will not meet it because the proposed rule contains a number of unanswered questions, many relating to critical issues such as how the presence of &ldquo;bioengineered&rdquo; ingredients will be disclosed and which foods and food manufacturers will be exempted from the labeling requirements.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> These unanswered questions also mean that the final rule is likely to be influenced significantly by public comments.&nbsp; Food manufacturers, retailers, consumers, industry groups, and other interested parties have an important opportunity to shape the final contours of the USDA&rsquo;s bioengineered food labeling rules.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/TS060418 Upcoming Webinar! Protecting Trade Secrets from Cyber and Other Threats http://www.seyfarth.com:80/publications/TS060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Please join us for a one-hour CLE webinar on Tuesday, July 24, 2018, at 1:00 p.m. Eastern / 12:00 p.m. Central / 10:00 a.m. Pacific.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/06/articles/trade-secrets/upcoming-webinar-protecting-trade-secrets-from-cyber-and-other-threats/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/boutrosagendaweek060418 Andrew Boutros quoted in Agenda Week http://www.seyfarth.com:80/news/boutrosagendaweek060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in a June 4 story from Agenda Week, &quot;Boards Risk Criticism Over Internal Investigations.&quot; Boutros said that that when a probe involves top executives, boards should consider retaining an outside firm.</p> http://www.seyfarth.com:80/news/adanlr060418 Seyfarth's ADA Title III blog referenced in the National Law Review http://www.seyfarth.com:80/news/adanlr060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III blog was referenced in a June 4 story from the National Law Review, &quot;Why Law Firms Should Make Web Accessibility a Priority in 2018.&quot; According to Seyfarth&#39;s ADA Title III blog, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites in 2017. You can read the <a href="https://www.natlawreview.com/article/why-law-firms-should-make-web-accessibility-priority-2018">full article here</a>.</p> http://www.seyfarth.com:80/news/weisslaw360060418 Philippe Weiss quoted in Law360 http://www.seyfarth.com:80/news/weisslaw360060418 Mon, 04 Jun 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a June 4 story from Law360, &quot;5 Workplace Scenarios That Could Spell Legal Trouble.&quot; Weiss said that, in some cases, where male managers get into the habit of restating ideas spoken by female employees or even talking over them, it can cross over into gender discrimination.</p> http://www.seyfarth.com:80/news/resurveybisnow060318 Seyfarth's Real Estate Market Sentiment Survey referenced in Bisnow http://www.seyfarth.com:80/news/resurveybisnow060318 Sun, 03 Jun 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a June 3 story from Bisnow, &quot;98% Of Surveyed Real Commercial Estate Professionals Expect The Fed To Boost Rates In June.&quot; According to Seyfarth&#39;s Real Estate Market Sentiment Survey published earlier this year, executives cited rising interest rates once again as their lead concern for the industry this year. You can read the <a href="https://www.bisnow.com/national/news/capital-markets/interest-rate-hike-dead-ahead-with-more-to-come-and-that-worries-cre-89094">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberglaw060118 Marshall Babson quoted in Bloomberg Law http://www.seyfarth.com:80/news/babsonbloomberglaw060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a June 1 story from Bloomberg Law, &quot;Labor Board Republicans May Decide Fate of Boeing Union,&quot; on an ethics official decision that cleared Member William Emanuel to participate in Boeing&rsquo;s case challenging the workers&rsquo; vote for representation by the International Association of Machinists and Aerospace Workers. Babson said that he wasn&rsquo;t surprised that Emanuel was cleared for the case.</p> http://www.seyfarth.com:80/news/finkelshrm060118 Noah Finkel quoted in SHRM http://www.seyfarth.com:80/news/finkelshrm060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a June 1 story from SHRM, &quot;Should Harassment Claims Be Subject to Arbitration?,&quot; on the reasons for exempting harassment claims from arbitration. Finkel said that employers don&#39;t face juries except in a small percentage of sexual harassment claims but have full-blown factual hearings before arbitrators. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/harassment-claims-arbitration.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/paulingabajournal060118 Gerald Pauling quoted in the ABA Journal http://www.seyfarth.com:80/news/paulingabajournal060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Gerald Pauling was quoted in a June 1 story from the ABA Journal, &quot;Time&#39;s up: Legal, judicial systems slow to adapt to sexual harassment and assault issues.&quot; Pauling said that sexual harassers are not necessarily people who are the best revenue generators or those with the impressive industry connections. You can read the <a href="http://www.abajournal.com/magazine/article/timesup_legal_judicial_harassment_assault">full article here</a>.</p> http://www.seyfarth.com:80/publications/ADA060118 CA Court Rules Unruh Act Requires Website to Conform to WCAG 2.0 AA, But Denies Damages for Multiple Visits to Website http://www.seyfarth.com:80/publications/ADA060118 Fri, 01 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.adatitleiii.com/2018/06/ca-court-rules-unruh-act-requires-website-to-conform-to-wcag-2-0-aa-but-denies-damages-for-multiple-visits-to-website/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL060118 Seyfarth’s Workplace Counseling & Solutions Group Earns Top Tier Ranking from The Legal 500 for the Tenth Consecutive Year http://www.seyfarth.com:80/publications/EL060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Workplace Counseling &amp; Solutions group as one of the best in the country. Nationally, for the tenth consecutive year, our Counseling practice earned Top Tier.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/06/seyfarths-workplace-counseling-solutions-group-earns-top-tier-ranking-from-the-legal-500-for-the-tenth-consecutive-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE060118 5 Steps to Foster, Inspire & Sustain Engagement http://www.seyfarth.com:80/publications/FE060118 Fri, 01 Jun 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.futureemployer.com/blog/2018/6/1/5-steps-to-foster-inspire-sustain-engagement">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM060118 Seyfarth’s Immigration Group Earns Top Tier Ranking from The Legal 500 for the Fourth Consecutive Year http://www.seyfarth.com:80/publications/IMM060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Immigration group as one of the best in the country. Nationally, for the fourth consecutive year, our Immigration practice earned Top Tier.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/06/legal500/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/law360060118 Robert Milligan and Joshua Salinas authored an article in Law360 http://www.seyfarth.com:80/publications/law360060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored a June 1 article in Law360, &quot;What Businesses Must Know About FDA Menu Labeling Rules.&quot;</p> http://www.seyfarth.com:80/publications/abi060118 William Hanlon and Timothy McKeon authored an article in the ABI Journal http://www.seyfarth.com:80/publications/abi060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> William Hanlon and Timothy McKeon authored a June 1 article in the ABI Journal, &quot;Restricted vs. Continuing Guaranties and the 727 Discharge.&quot;</p> http://www.seyfarth.com:80/publications/lazaralm060118 Bart Lazar authored an article in ALM's Cybersecurity Law & Strategy http://www.seyfarth.com:80/publications/lazaralm060118 Fri, 01 Jun 2018 00:00:00 -0400 <p> Bart Lazar authored a June 1 article in ALM&#39;s Cybersecurity Law &amp; Strategy, &quot;Security Breach Responses &mdash; As Important and Difficult As Ever.&quot; You can read the <a href="http://www.lawjournalnewsletters.com/2018/06/01/security-breach-responses-as-important-and-difficult-as-ever/?slreturn=20180506102536">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS053118 Seyfarth’s Trade Secrets Group Earns Top Tier Ranking from Legal 500 for Third Consecutive Year http://www.seyfarth.com:80/publications/TS053118 Thu, 31 May 2018 00:00:00 -0400 <p> The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Trade Secrets group as one of the best in the country. Nationally, for the third consecutive year, our Trade Secrets practice earned Top Tier.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/trade-secrets/seyfarths-trade-secrets-group-earns-top-tier-ranking-from-legal-500-for-third-consecutive-year/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR053118 Employee’s Vulgar Comment To Manager During Staff Meeting Was Not Protected Under The NLRA http://www.seyfarth.com:80/publications/LR053118 Thu, 31 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The ALJ found that the employer did not violate the Act where it terminated an employee for using vulgar language during a staff meeting in efforts to undermine the general manager&rsquo;s managerial authority.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/05/31/employees-vulgar-comment-to-manager-during-staff-meeting-was-not-protected-under-the-nlra/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL053118 First Circuit Decision Underlines the Importance of Law Over Sympathetic Facts in Disability Discrimination Cases http://www.seyfarth.com:80/publications/EL053118 Thu, 31 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Plaintiffs in disability discrimination cases often have sympathetic facts on their side. A recent decision out of the United States Court of Appeals for the First Circuit, however, highlighted that courts are tasked with applying the law in such cases even if doing so leads to a loss for a sympathetic plaintiff.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/first-circuit-decision-underlines-the-importance-of-law-over-sympathetic-facts-in-disability-discrimination-cases/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT053118 The Week in Weed: June 1, 2018 http://www.seyfarth.com:80/publications/TBT053118 Thu, 31 May 2018 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="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-june-1-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/shermanoptimatum053118 Andrew Sherman quoted in Optimatum http://www.seyfarth.com:80/news/shermanoptimatum053118 Thu, 31 May 2018 00:00:00 -0400 <p> Andrew Sherman quoted in a May 31 story from Optimatum, &quot;Employee engagement &ndash; The Insidious Deal Killer.&quot; Sherman said that levels of engagement in the target and culture are now at the top of all smart buyer&rsquo;s due diligence lists. You can read the <a href="https://www.optimatumsolutions.com/insights/employee-engagement-the-insidious-deal-killer/">full article here</a>.</p> http://www.seyfarth.com:80/news/finkelnlr053018 Noah Finkel quoted in the National Law Review http://www.seyfarth.com:80/news/finkelnlr053018 Wed, 30 May 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a May 30 story from the National Law Review, &quot;Supreme Court Says Class or Collective Actions Not Guaranteed Under NLRA Section 7: Co-Counsel for Epic, Noah Finkel of Seyfarth Shaw, on the Supreme Court&rsquo;s Decision .&quot; You can read the <a href="https://www.natlawreview.com/article/supreme-court-says-class-or-collective-actions-not-guaranteed-under-nlra-section-7">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA053018-LE Termination Pay Penalties: Easy to Incur, Impossible to Reduce? http://www.seyfarth.com:80/publications/MA053018-LE Wed, 30 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Employers must pay &ldquo;waiting time&rdquo; penalties for willfully failing to timely pay wages due upon termination. Last week the California Court of Appeal dealt employers a double whammy: (i) mere negligence can count as &ldquo;willfulness,&rdquo; and (ii) courts lack statutory discretion to reduce the penalties, which can add up to 30 days of wages.</em></p> <p> <strong>The Facts</strong></p> <p> In April 2014, three restaurant workers sued Grill Concepts Services, Inc. on behalf of terminated restaurant employees. They said that Grill Concepts failed to pay living wages under a Los Angeles ordinance and thus failed to pay wages due upon termination. They sought waiting-time penalties under Labor Code section 203&mdash;penalties that can amount up to 30 working days of wages. Grill Concepts had paid the living wage required by the original ordinance, but had overlooked a 2010 amendment. The Grill Concepts HR director suspected the restaurant was underpaying employees when she saw an article citing a living wage higher than what Grill Concepts was paying. After hearing from the City that the amendment to the ordinance was still &ldquo;in process,&rdquo; Grill Concepts continued searching the City&rsquo;s website to see if the ordinance had been amended, however, Grill Concepts did not follow up with the City or ask other affected employers about what living wage they were paying.</p> <p> The trial court certified a class and granted summary judgment against Grill Concepts for Section 203 penalties because its failure to pay was &ldquo;willful&rdquo; within the meaning of the statute. At trial, the trial court found that it lacked equitable discretion to waive the penalties for equitable reasons. Grill Concepts appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> Grill Concepts told the Court of Appeal that its failure to timely pay termination wages was in good faith, in that it could not find the amended ordinance. The Court of Appeal rejected this argument, stating that employers have a &ldquo;duty of inquiry&rdquo; to determine whether their conduct is unlawful. The Court of Appeal reasoned that the employer&rsquo;s ignorance coupled with its negligence in failing to determine the proper living wage amounted to a &ldquo;willful&rdquo; failure to pay. The Court of Appeal similarly rejected Grill Concepts&rsquo;s second argument that failing to understand the ordinance constituted a good faith dispute. The Court of Appeal held that the ordinance was not impermissibly vague, because a reasonable and practical construction was possible, and a person of ordinary intelligence would understand the annual adjustments to the living wage in accordance with the 2010 amendment.</p> <p> The Court of Appeal further held that Section 203 does not empower courts to reduce or waive penalties for equitable reasons. The Court of Appeal based its analysis on the statutory language, which states that wages &ldquo;shall&rdquo; continue as a penalty if the employer fails to timely pay final wages. The Court of Appeal noted that the Legislature could have included discretionary language, but chose not to do so. The Court of Appeal reasoned that it would be impermissibly creating an exception to the statute if it recognized judicial discretion to reduce or waive penalties. From a policy standpoint, the Court of Appeal asserted that the penalties were &ldquo;essential to the public welfare&rdquo; because employees depend on wages for life necessities and that allowing discretion to reduce or waive penalties would undermine the statute&rsquo;s purpose of prompt payment.</p> <p> <strong>What <em>Diaz</em> Means For Employers</strong></p> <p> <em>Diaz</em> is another stark reminder of how California courts deal harshly with employers, even when they have made an effort to comply with the law. Employers must stay vigilant about their wage obligations or risk a finding of willfulness if a failure to exercise care results in the underpayment of wages. <em>Diaz</em> confirms that the mandatory &ldquo;shall&rdquo; language in Section 203 is just that&mdash;mandatory&mdash;and requires the imposition of penalties if there is a finding of willfulness related to underpayment of wages.</p> <p> It is also true, though, that <em>Diaz</em> does not address constitutional issues attending harsh and oppressive applications of Section 203. In some cases the amount of the penalty&mdash;30 working days of wages&mdash;will dwarf the magnitude of any violation. In those cases the disproportionate penalty could amount to a constitutionally excessive fine. <em>Diaz</em>, meanwhile, addresses only whether courts have &ldquo;equitable&rdquo; power under the statute to reduce penalties. We do not believe that applying the statute&rsquo;s &ldquo;shall&rdquo; language would survive a constitutional challenge in an extreme case.</p> http://www.seyfarth.com:80/publications/CP053018 San Francisco-Peculiarities: Fog Lifts on City’s New Paid Sick Leave Rules http://www.seyfarth.com:80/publications/CP053018 Wed, 30 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: June 7, 2018, when the city&rsquo;s new Paid Sick Leave rules take effect, marks the latest chapter in the City by the Bay&rsquo;s long history of imposing local employment standards that exceed state requirements. Here&rsquo;s what you need to know before this latest San Francisco peculiarity begins.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/30/san-francisco-peculiarities-fog-lifts-on-citys-new-paid-sick-leave-rules/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA052918-LE Healthcare Employers Beware: DOJ Announces Criminal Investigation of Healthcare Human Resources Practices in the Midst of the Ongoing Nursing Shortage http://www.seyfarth.com:80/publications/MA052918-LE Tue, 29 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: At the recent American Bar Association&rsquo;s Antitrust in Healthcare conference, the Department of Justice (&ldquo;DOJ&rdquo;) reportedly advised that it has open criminal investigations into agreements among healthcare providers not to hire each other&rsquo;s employees.&nbsp; This announcement comes at a time when the healthcare industry is experiencing an acute nursing shortage.&nbsp; It was a similar nursing shortage that some claim created economic conditions that led to an alleged unlawful exchange of nurse wage information in the early and mid-2000s.&nbsp; In 2006, nurses filed class actions in five different cities alleging that hospitals agreed to suppress nurse wages and exchange nurse wage information in violation of federal antitrust laws.&nbsp; Two of those cases resulted in settlements of tens of millions of dollars, and one is still being litigated.&nbsp; Thus, it is imperative that healthcare employers examine their recruiting and compensation practices and ensure that these practices do not raise concerns under federal antitrust laws.</em></p> <p> <strong>Background</strong></p> <p> In October 2016, the Federal Trade Commission (&ldquo;FTC&rdquo;) and DOJ jointly issued their Antitrust Guidance for Human Resource Professionals (the &ldquo;Joint Guidance&rdquo;).&nbsp; (Available at https://www.justice.gov/atr/file/903511/download).&nbsp; The Joint Guidance principally addresses three potential human resources practices that could lead to antitrust violations: (1) agreements by employers not to compete for each other&rsquo;s employees (&ldquo;no-poach&rdquo; agreements); (2) agreements by employers to fix or suppress wages paid to their employees; and (3) agreements by employers to exchange information regarding the wages and benefits they pay to their employees.&nbsp; The Joint Guidance also stated that DOJ may treat wage fixing and so-called &ldquo;naked&rdquo; no-poach agreements as criminal violations of the antitrust laws.</p> <p> Naked no-poach agreements are those that are not part of, or are not reasonably necessary to further the legitimate interests of, a larger business transaction.&nbsp; No-poach agreements that are part of a larger, legitimate transaction (<em>e.g.</em>, in connection with the sale of a business) are referred to as ancillary, and they are typically found to be lawful if they are reasonable in scope and duration.</p> <p> <strong>No-Poach Agreements</strong></p> <p> In January of this year, the new Assistant Attorney General for the Antitrust Division, Makan Delrahim, remarked that he was &ldquo;shocked&rdquo; at the number of ongoing investigations at DOJ of alleged no-poach agreements.&nbsp; Delrahim also remarked that if naked no-poach agreements were undertaken or continued after the issuance of the Joint Guidance, then DOJ may exercise its prosecutorial discretion to treat them as criminal.&nbsp; When DOJ engages in a criminal enforcement action, it typically insists on jail time.</p> <p> Naked no-poach agreements can also have devastating civil class action consequences.&nbsp; DOJ&rsquo;s investigation and subsequent civil enforcement actions brought against seven Silicon Valley tech companies in 2009 led to a highly publicized consolidated class action against the defendants entitled <em>In Re High-Tech Employee Antitrust Litigation</em>, No. 11-CV-02509 (&ldquo;<em>High-Tech</em>&rdquo;).&nbsp; After years of litigation, a class of over 62,000 employees was eventually certified.&nbsp; The plaintiffs&rsquo; expert in that case argued that damages to the class amounted to $3 billion, which would automatically be tripled under the antitrust laws to $9 billion.&nbsp; The case eventually settled for $435 million.</p> <p> On April 3, 2018, DOJ announced the first of what appears to be a wave of no-poach enforcement actions against employers -- in this instance, against two employers in the railway equipment industry and a number of their subsidiaries.&nbsp; Since that announcement, nine separate class actions have been brought against the defendants seeking treble damages for alleged antitrust violations.</p> <p> <strong>Wage Information Exchange Agreements</strong></p> <p> In 2006, in the midst of a&nbsp; nursing shortage, nearly identical class actions were filed by nurses against hospital defendants in Chicago, Detroit, Albany, Memphis and San Antonio.&nbsp; Among the claims asserted in each of those cases was an agreement to unlawfully exchange nurse wage information in violation of federal antitrust laws.&nbsp; Class certification was denied in the Chicago and Memphis cases but was granted in Detroit and Albany.&nbsp; The Detroit and Albany cases settled for approximately $90 million and $14 million respectively.&nbsp; The San Antonio case is ongoing, and no class certification decision has yet been reached in that case.</p> <p> <strong>Implications for Healthcare Employers</strong></p> <p> Naked no-poach, wage-fixing and improper wage information sharing agreements can have devastating consequences for healthcare employers.&nbsp; Not only is there the risk of jail time and millions or billions of dollars in potential class action damages, but the litigation itself is time-consuming, burdensome and costly.&nbsp; As noted above, the San Antonio case has been going on for more than 12 years.</p> <p> Based on our experience in defending these types of cases, many healthcare employers, including top executives and HR personnel, are simply unaware that these types of agreements can impose antitrust risk.&nbsp; Moreover, the current nursing shortage creates huge pressure for healthcare employers to recruit, retain and properly compensate nurse employees.&nbsp; Thus, if they have not already done so, healthcare employers should immediately consider:</p> <ol> <li> Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information, through direct contact with other employers; or whether it has entered into any no-poach agreements.&nbsp; The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.&nbsp; Also, if it is discovered that the company has engaged in any &ldquo;naked&rdquo; wage-fixing or no-poaching agreements on or after October&nbsp;25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.</li> <li> Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.&nbsp; Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.&nbsp; Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.&nbsp; These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.</li> </ol> http://www.seyfarth.com:80/publications/OMM052918-LE USCIS Policy Memo Significantly Changes Unlawful Presence Issues for F, J, and M Nonimmigrants http://www.seyfarth.com:80/publications/OMM052918-LE Tue, 29 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Nonimmigrants in F, J, and M visa status should ensure that they take no actions to violate their status, as they could inadvertently trigger unlawful presence and jeopardize future status in the United States.<strong> </strong></em></p> <p> On May 10, 2018, USCIS issued a <a href="https://www.uscis.gov/sites/default/files/USCIS/Outreach/Draft%20Memorandum%20for%20Comment/AccrualofUnlawfulPresenceFJMNonimmigrantsMEMO_v2.pdf">policy memorandum</a> that reverses prior guidance on the interpretation of unlawful presence for F, J, and M nonimmigrants.&nbsp; This policy takes effect on August 9, 2018.&nbsp; The result is that F, J, and M nonimmigrants who violate their status can trigger the start of &ldquo;unlawful presence&rdquo; in the United States, and over a period of time can become subject to a three-year or ten-year bar to reentering the United States.&nbsp;</p> <p> <strong>Background</strong></p> <p> A <a href="https://www.congress.gov/bill/104th-congress/senate-bill/735">1996 law</a> introduced the concept of unlawful presence.&nbsp; If a nonimmigrant remains unlawfully present in the United States for more than 180 days, s/he is subject to a three-year bar from returning to the United States; a nonimmigrant who remains unlawfully present for more than one year is subject to a ten-year bar.&nbsp; In addition, most nonimmigrants who remain unlawfully present are ineligible for an extension of their current visa status, or a change of status to another visa classification, from within the United States.</p> <p> Unlawful presence begins either when a person remains in the United States beyond his/her period of admission OR when found by USCIS to have violated his/her nonimmigrant status.&nbsp;&nbsp; A 2009 USCIS memorandum clarified when unlawful presence is triggered for F, J, and M nonimmigrants.&nbsp; Because individuals in these visa classifications are admitted for &ldquo;Duration of Status&rdquo; (D/S), and not until a date certain, in most cases unlawful presence is only triggered following a formal finding of a status violation by USCIS for F, J, and M nonimmigrants.</p> <p> <strong>Impact of May 10, 2018 Policy Memorandum</strong></p> <p> The policy memorandum significantly changes USCIS&rsquo; position on when F, J, and M nonimmigrants trigger unlawful presence.&nbsp; Under the new policy, F, J, and M nonimmigrants still become unlawfully present following a formal finding of a status violation by the Department of Homeland Security (DHS) or the Executive Office for Immigration Review (EOIR).&nbsp; In addition, an F, J, or M nonimmigrant can also trigger unlawful presence in any of the following scenarios:</p> <ul> <li> Failure to continue the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status;</li> <li> Engaging in an unauthorized activity that is not permitted by their status (such as unauthorized employment that is not approved pursuant to their status); and</li> <li> Completion of the course of study or authorized activity which was the basis for their F, J, or M nonimmigrant status.&nbsp; In this case, unlawful presence begins the day following the completion of the course of study or authorized activity, or following any authorized grace period that is provided by law or regulation (whichever is later).</li> </ul> <p> <strong>Effective Date of Policy Change</strong></p> <p> This new policy takes effect on August 9, 2018.&nbsp; Any F, J, or M nonimmigrant who does not currently maintain status based on this new policy will begin to accrue unlawful presence starting on August 9.&nbsp; After August 9, any activity by an F, J, or M nonimmigrant that results in a status violation will trigger the start of unlawful presence.</p> <p> <strong>Recommendations </strong></p> <p> Any nonimmigrant in F, J, or M nonimmigrant status should communicate with his/her program sponsor to ensure that s/he maintains valid nonimmigrant status and to confirm when s/he would no longer hold valid status following the completion of his/her course of study or authorized activity pursuant to this new policy.</p> <p> If you should have any questions about how the policy change might impact your workforce, please reach out to your contact person at Seyfarth Shaw LLP. We will be happy to address your questions.&nbsp;&nbsp; &nbsp;</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL052918 Iowa Lowers Standard for Positive Alcohol Tests http://www.seyfarth.com:80/publications/EL052918 Tue, 29 May 2018 00:00:00 -0400 <p> Synopsis: Effective July 1, 2018, Iowa employers may lower their standard for alcohol tests and consider taking action against an employee with a blood alcohol concentration as low as .02. Prior to this time, state law prohibited an employer from taking any action against an employee with an alcohol test result below .04.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/iowa-lowers-standard-for-positive-alcohol-tests/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC052418 Dismissal Denied In EEOC Race Discrimination Action Against Security Company http://www.seyfarth.com:80/publications/WC052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A federal district court in Maryland recently denied in part an employer&rsquo;s motion to dismiss a race discrimination action brought on behalf of African-born security guards by the EEOC, and instead granted the EEOC&rsquo;s motion to stay so that the Commission could amend its deficient pre-suit letters of determination that were the subject of the employer&rsquo;s motion to dismiss.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/dismissal-denied-in-eeoc-race-discrimination-action-against-security-company/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP052418 Leave It To California – Post FMLA/CFRA/PDL Leave and FEHA http://www.seyfarth.com:80/publications/CP052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: When must an employer provide leave time in addition to FMLA/CFRA-type leave as a reasonable accommodation? The answer to that question, as with many other leave-related questions, may depend on your location on the map.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/24/leave-it-to-california-post-fmla-cfra-pdl-leave-and-feha/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT052418 The Week in Weed: May 25, 2018 http://www.seyfarth.com:80/publications/TBT052418 Thu, 24 May 2018 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="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-may-25-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/epicgbfr052418 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored an article in Global Banking & Finance Review http://www.seyfarth.com:80/publications/epicgbfr052418 Thu, 24 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored a May 24 article in Global Banking &amp; Finance Review, &quot;A Class Waiver Can Be A Condition of Employment.&quot; You can read the <a href="https://www.globalbankingandfinance.com/a-class-waiver-can-be-a-condition-of-employment/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarmm052418 Seyfarth's Workplace Class Action Report referenced in Magnify-Money http://www.seyfarth.com:80/news/wcarmm052418 Thu, 24 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in a May 24 story from Magnify-Money, &quot;The Supreme Court has made it much harder to sue your employer as a group.&quot; This ruling comes a year after the 10 largest settlements in employment-related categories reached a record high $2.72 billion, according to the 14th annual edition of Seyfarth&#39;s Workplace Class Action Litigation Report. You can read the <a href="https://www.wkyc.com/article/money/magnify-money/the-supreme-court-has-made-it-much-harder-to-sue-your-employer-as-a-group/95-557622511">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarwapo052418 Bart Lazar quoted in the Washington Post http://www.seyfarth.com:80/news/lazarwapo052418 Thu, 24 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 24 story from the Washington Post, &quot;New privacy rules could spell the end of legalese &mdash; or create a lot more fine print,&quot; on Europe&#39;s General Data Protection Regulation (GDPR), which requires companies to use plain language to communicate how they process people&rsquo;s data. Lazar said that the requirement of companies to disclose more about their data practices than ever before could result in more-lengthy explanations. You can read the <a href="https://www.washingtonpost.com/news/the-switch/wp/2018/05/24/new-privacy-rules-could-spell-the-end-of-legalese-or-create-a-lot-more-fine-print/?noredirect=on&amp;utm_term=.318bcae50ded">full article here</a>.</p> http://www.seyfarth.com:80/news/nelson052318 Seyfarth Adds Labor & Employment Partner Scott Nelson in Houston http://www.seyfarth.com:80/news/nelson052318 Wed, 23 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Firm Continues Growth of Houston Office </span></em></p> <p> <strong>HOUSTON (May 23, 2018)</strong> -- Seyfarth Shaw LLP announced today the arrival of partner Scott Nelson to the Labor &amp; Employment department in Houston. Nelson joins from Baker McKenzie LLP, where he was a partner in Houston and also served until recently as leader of the firm&rsquo;s domestic U.S. Employment Counseling and Litigation practice.</p> <p> Nelson brings significant experience with domestic and international labor and employment matters, as well as complex commercial litigation, to Seyfarth&rsquo;s growing Houston office. Earlier this month, former AccessHealth general counsel Janice Suchyta joined Seyfarth in Houston, further bolstering the region&rsquo;s second largest health care practice as ranked by the <em><a href="https://www.bizjournals.com/houston/subscriber-only/2017/12/01/largest-houston-area-health-care-law.html">Houston Business Journal</a>.</em></p> <p> &ldquo;We are excited to welcome Scott to our growing platform in Houston,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. &ldquo;He is a trusted counselor and dynamic leader in employment law with experience handling matters around the globe.&rdquo;</p> <p> &ldquo;As both a veteran litigator and advisor, Scott has grown into one of the region&rsquo;s top authorities on employment and compliance-related issues facing clients in jurisdictions around the world,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He&rsquo;s a natural fit as we expand our Labor &amp; Employment team in Houston, where we&rsquo;ve long had a strong presence and look forward to serving more clients in the future.&rdquo;</p> <p> Among Nelson&#39;s more notable cases, he successfully defended multinational chemical companies in one of the largest employee trade secrets cases to ever go to a jury trial, a case in which plaintiffs sought $800 million through economic espionage-type trade secrets claims. He also achieved a total bench trial victory in a large ERISA &sect; 204(h) notice class action in which plaintiffs sought a recovery in excess of $200 million.</p> <p> <em>Texas Monthly</em> magazine has recognized Nelson as a Texas Super Lawyer and the Texas Board of Legal Specialization has board certified him in labor and employment law.</p> <p> An accomplished litigator, Nelson has prevailed in a wide variety of cases before trial courts, appellate courts, arbitrators, and government agencies. He has litigated all major types of employment law claims, wage and hour claims, ERISA claims, whistleblower claims, non-compete and trade secrets cases, class actions, collective actions, traditional labor law (union-related) matters, and complex commercial litigation matters.</p> <p> Nelson also serves as a trusted, regular advisor on compliance and strategy issues, and frequently manages large international legal matters. In addition, he supervises internal company investigations and often trains groups of executives.</p> <p> Nelson received his J.D., <em>cum laude</em>, from the Creighton University School of Law and earned his B.S.B.A., <em>magna cum laude</em>, from Creighton University.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 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 Communications, (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/finkelcc052318 Noah Finkel quoted in Corporate Counsel http://www.seyfarth.com:80/news/finkelcc052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a May 23 story from Corporate Counsel, &quot;High Court Approval of Class Action Waivers in Landmark Case Seen as Victory for Companies,&quot; on how the U.S. Supreme Court held that companies have the right to compel employees to sign waivers that prevent them from bringing class action lawsuits against their employers. Finkel said that it&rsquo;s a significant victory for employers in that those that have arbitration agreements that contain class and collective action waivers are now able to enforce them without any question.</p> http://www.seyfarth.com:80/news/epiclaw052318 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins' blog post referenced in Law.com http://www.seyfarth.com:80/news/epiclaw052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins&#39; blog post was referenced in a May 23 story from Law.com, &quot;Critical Mass: How SCOTUS Roiled Class Action Bar.&quot; The blog post said the ruling removed the last potential legal barrier to the enforcement of class waivers in the employment sphere.</p> http://www.seyfarth.com:80/publications/epichr052318 Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored an article in HR.com http://www.seyfarth.com:80/publications/epichr052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel, David Baffa, Daniel Whang, and Andrew Scroggins authored a May 23 article in HR.com, &quot;A Class Waiver Can Be A Condition of Employment.&quot; You can read the <a href="https://www.hr.com/en/magazines/workforce_management_excellence_essentials/may_2018_workforce_management/a-class-waiver-can-be-a-condition-of-employment_jhisjpzl.html?s=fg6Z7nj3artoYIW4a2I">full article here</a>.</p> http://www.seyfarth.com:80/publications/millermasseyneih052318 Barry Miller and Hillary Massey authored an article in New England In-House http://www.seyfarth.com:80/publications/millermasseyneih052318 Wed, 23 May 2018 00:00:00 -0400 <p> Barry Miller and Hillary Massey authored a May 23 article in New England In-House, &quot;MEPA is coming: FAQs about compensation history ban.&quot; You can read the <a href="https://newenglandinhouse.com/2018/05/23/mepa-is-coming-faqs-about-compensation-history-ban/">full article here</a>.</p> http://www.seyfarth.com:80/publications/tomaszewskiilta052218 John Tomaszewski authored an article in ILTA's Peer to Peer Magazine http://www.seyfarth.com:80/publications/tomaszewskiilta052218 Tue, 22 May 2018 00:00:00 -0400 <p> John Tomaszewski authored an article in the Spring issue of ILTA&#39;s Peer to Peer Magazine, &quot;Connected Devices and the Increasing Regulatory Focus on Cybersecurity.&quot; You can read the <a href="http://epubs.iltanet.org/i/984836-spring-2018/32?_ga=2.151415793.994475548.1527017767-1321985393.1522866732">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT052218 Not So Fast: Maine Legislature Overrides Governor’s Veto of Recreational Marijuana Law http://www.seyfarth.com:80/publications/TBT052218 Tue, 22 May 2018 00:00:00 -0400 <p> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana,&rdquo; and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. The voter-approved law would have allowed persons 21 years of age or older to use or possess up to 2&frac12; ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person&rsquo;s residence, up to 6 flowering marijuana plants (and up to 12 immature plants). It also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/not-so-fast-maine-legislature-overrides-governors-veto-of-recreational-marijuana-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/blockchain052218 Seyfarth Launches Blockchain Technologies Team http://www.seyfarth.com:80/news/blockchain052218 Tue, 22 May 2018 00:00:00 -0400 <p> <strong>(May 22, 2018)</strong> -- Seyfarth Shaw LLP announced today the formal launch of its Blockchain Technologies team, an interdisciplinary group of lawyers who counsel clients and interface with regulators to address legal issues raised by blockchain technology.</p> <p> Seyfarth&rsquo;s Blockchain Technologies team comprises attorneys with a variety of legal practices &ndash; including Corporate, Securities, Labor &amp; Employment, Litigation, Derivatives, Real Estate, Banking, International, Tax, Employee Benefits and Immigration Compliance &ndash; dedicated to helping clients navigate the uncharted and largely unregulated waters of this rapidly evolving technology, and corresponding regulation. The team has substantial experience representing entities using blockchain and have advised clients on an extensive range of legal operational aspects, including cybersecurity, data storage and transfer, software licensing and distribution, stored value transfer, initial coin offerings (&ldquo;ICOs&rdquo;), encryption, and law and regulation related to these and other business activities.</p> <p> &ldquo;A popular topic at water coolers across the globe, blockchain technology promises to change the way companies conduct a suite of business operations,&rdquo; said Richard Lutkus, co-lead of the firm&rsquo;s Blockchain Technologies team and a Certified Ethical Hacker (CEH). &ldquo;As the demand for services related to this emerging technology increase, we have assembled a group of excellent legal talent poised to help clients navigate this new corporate environment.&rdquo;</p> <p> Members of the Blockchain Technologies team are thought leaders in trust modeling, capital formation, and cryptocurrency markets as well as teachers, authors and guides to clients within a range of industries. They have helped early adopters of blockchain technology work within regulatory frameworks and manage risks. Clients include many data-driven businesses, such as health care and benefits providers, financial institutions, hedge funds and other investment vehicles, insurance markets, clearing houses, and technology companies.</p> <p> &ldquo;The business community has continued to embrace blockchain technology, forecasting its impact on a wide array of industries,&rdquo; said Angelo Paparelli, co-lead of the firm&rsquo;s Blockchain Technologies team and a member of the firm&rsquo;s Business Immigration practice group. &ldquo;Facing an unfamiliar future enterprise, clients can engage our cross-disciplinary team for practical solutions to the variety of issues created by this technological shift.&rdquo;</p> <p> To learn more about Seyfarth&rsquo;s Blockchain Technologies Team visit: <a href="http://www.seyfarth.com/BlockchainTechnologies">http://www.seyfarth.com/BlockchainTechnologies </a>.</p> <p> The Blockchain Technologies team is one of the first initiatives of Seyfarth&rsquo;s Future Enterprise, a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to emerging technologies. Last week, Seyfarth released the key findings of its Future Enterprise survey. See full survey results and verbatims at <a href="https://www.futureenterprise.com/home#h-survey">https://www.futureenterprise.com/home#h-survey</a>.</p> <p> <strong>About Future Enterprise </strong></p> <p> As emerging technologies such as artificial intelligence, virtual reality, blockchain, and cryptocurrencies become more common and the needs of the massive multigenerational global workforce begin to shift, business and legal leaders must invest in strategies that will support building new capabilities at the cross-section of people power and machine power. Future Enterprise by Seyfarth Shaw is a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to those emerging technologies. It leverages each and every department, practice group and industry group in the firm. <a href="https://www.futureenterprise.com/">https://www.futureenterprise.com/</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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/bartlettbna052218 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlettbna052218 Tue, 22 May 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in a May 22 story from Bloomberg BNA, &quot;Supreme Court Warms Up &lsquo;Thousands&rsquo; of Frozen Worker Claims,&quot; on the U.S. Supreme Court&rsquo;s decision to legalize class action waivers in mandatory arbitration agreements. Bartlett said that for employers with pending class and collective actions in federal court and that have rolled out arbitration plans containing waivers, this ruling signifies the moment when it becomes critical to re-examine defense strategies.</p> http://www.seyfarth.com:80/news/weisswgnradio052218 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgnradio052218 Tue, 22 May 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed May 22nd on WGN Radio, &quot;Wintrust Business Lunch 5/22/18: &#39;Intern Indigestion&#39;.&quot; Philippe Weiss shed some light on the extra work and care it takes for companies to hire interns. You can listen to the full interview at <a href="http://wgnradio.com/2018/05/22/the-wintrust-business-lunch-5-22-18-intern-indigestion-first-female-nyse-president-being-counter-intuitive/">Min. 8:35 here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberglaw052218 Marshall Babson quoted in Bloomberg Law http://www.seyfarth.com:80/news/babsonbloomberglaw052218 Tue, 22 May 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a May 22 story from Bloomberg Law, &quot;Did High Court Signal a Further Cutback of Worker Rights?,&quot; on the Supreme Court&rsquo;s decision to okay the use of mandatory arbitration and class action waivers in employment agreements. Babson said that it would be a mistake to read the court&rsquo;s recent opinion as &ldquo;unduly limiting&rdquo; the scope of protected activity under the National Labor Relations Act.</p> http://www.seyfarth.com:80/news/adaaba052218 Seyfarth's ADA Title III blog referenced in ABA Bank Marketing http://www.seyfarth.com:80/news/adaaba052218 Tue, 22 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III blog was referenced in a May 22 story from ABA Bank Marketing, &quot;Avoiding the Website Accessibility Shakedown.&quot; According to Seyfarth, ADA lawsuits increased by 37% between 2015 and 2016. By May 2017, ADA lawsuits increased by 18%, and the numbers are steadily climbing. In 2017, there were at least 814 ADA Title III website lawsuits filed. You can read the <a href="https://ababankmarketing.com/insights/avoiding-the-website-accessibility-shakedown/">full article here</a>.</p> http://www.seyfarth.com:80/news/lindvall052118 New York Patent Litigator Scott Lindvall Joins Seyfarth http://www.seyfarth.com:80/news/lindvall052118 Mon, 21 May 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Scott Lindvall has joined the firm&rsquo;s Litigation department in New York as partner and chair of Seyfarth&rsquo;s Intellectual Property Trial practice. Lindvall comes from Arnold &amp; Porter LLP, where he was a partner in its Patent Litigation group in New York.</p> <p> For more than 30 years, Lindvall&rsquo;s practice has focused on high-stakes patent litigation concerning a large collection of technologies on behalf of some of the largest telecommunications, aerospace, automotive, pharmaceutical, and software companies in the world. A veteran in first chair jury and bench trials, Lindvall has tried a substantial number of noteworthy patent infringement cases to favorable verdict.</p> <p> &ldquo;Scott has successfully litigated complex patent matters for some of the largest global technology and telecommunications companies,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;He adds considerable value to our intellectual property practice and his extensive patent trial experience brings another dimension to our national litigation bench.&rdquo;</p> <p> In addition to patent litigation, Lindvall has represented technology companies in trade secret jury trials and has advised key members of the pharmaceutical industry in Hatch-Waxman litigation. Prior to his legal career, Lindvall worked at a major aerospace company as a research engineer involved in computational fluid dynamics.</p> <p> &ldquo;We are delighted to welcome Scott to our team. His celebrated patent litigation practice nicely compliments the full suite of services we offer clients here on the East Coast and throughout the country,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> A member of the Board of Trustees at the Marshall-Wythe School of Law Foundation, Lindvall received his J.D. from William &amp; Mary Law School where he served as an editor at the <em>William and Mary Law Review</em>. He earned a M.S. in Mechanical Engineering from Washington University and received a B.S. in Aerospace Engineering, <em>cum laude</em>, from Virginia Tech.</p> <p> &ldquo;Those that know Scott praise his trial skills and legal acumen, describing him as a true trial lawyer with patent credentials. He joins an already talented IP group both nationally, as well as in New York,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 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/vuab052118 Minh Vu quoted in American Banker http://www.seyfarth.com:80/news/vuab052118 Mon, 21 May 2018 00:00:00 -0400 <p> Minh Vu was quoted in a May 21 story from American Banker, &quot;Banks are sitting ducks for ADA lawsuits.&quot; Vu said that website pages for submitting job applications are an emerging area of liability for financial institutions and other private companies.</p> http://www.seyfarth.com:80/publications/MA052118-LE A Class Waiver Can Be A Condition of Employment http://www.seyfarth.com:80/publications/MA052118-LE Mon, 21 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp; In one of the most significant employment cases in memory, a sharply divided United States Supreme Court held today that employers may require employees, as a condition of employment, to enter into arbitration agreements that contain waivers of the ability to participate in a class or collective action under various employment statutes.</em></p> <p> There is no longer any reason under the law why an employer cannot require its employees to waive the ability to bring a class or collective action under federal, state, and local employment laws.</p> <p> While there are certain exceptions (explained below), the United States Supreme Court today removed the last potential legal barrier to the enforcement of class waivers in the employment sphere.&nbsp; <a href="https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf">In a 5-4 decision authored by Justice Neil Gorsuch</a>, it held in three cases consolidated for review that requiring employees to agree to arbitration agreements with class waivers does not violate the National Labor Relations Act (&ldquo;NLRA&rdquo;) and that such agreements are fully enforceable.</p> <p> The only foreseeable barrier to enforcement of a class waiver would be federal legislation amending the Federal Arbitration Act (&ldquo;FAA&rdquo;) or state legislation permitting private attorney general actions such as California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;).&nbsp; Employers who maintain mandatory arbitration programs with class waivers can be assured for the time being that those waivers provide a valid defense to a collective or class action.&nbsp; Employers who do not have such arbitration programs need to be aware of this significant development in the employment law landscape and at least consider whether an arbitration program with a class waiver is appropriate for them.</p> <p> Be aware, however, that a class waiver in an arbitration program does not mean the end of all multi-claimant litigation.&nbsp; As those with operations in California know, employees who have entered into class waivers with their employers nevertheless may bring PAGA actions in that state.&nbsp; Likewise, agency-initiated actions are not impacted, leaving the Department of Labor and the Equal Employment Opportunity Commission free to pursue relief under the statutes they enforce on behalf of employees regardless of whether those employees have entered into class waivers.&nbsp; Meanwhile, some plaintiff-side attorneys have become skilled at bringing dozens of single-claimant arbitration matters against an employer at the same time, which might cost an employer more than defending a collective or class action in court.</p> <p> An arbitration program with a class waiver isn&rsquo;t necessarily for every employer.&nbsp; But this ruling certainly will cause more employers to adopt arbitration programs with class waivers, and likely will reduce the number of class and collective actions employers face.</p> <p> <strong>The Path Leading to the Decision</strong></p> <p> Beginning with its 2011 decision in <a href="https://www.wagehourlitigation.com/arbitration-agreements/how-to-learn-to-stop-worrying-about-wage-hour-class-actions-and-love-arbitration/"><em>AT&amp;T Mobility v. Concepcion</em></a>, the Supreme Court has blessed the validity and enforceability of class waivers in arbitration agreements.&nbsp; This was followed by decisions in <a href="https://www.supremecourt.gov/opinions/11pdf/10-948.pdf"><em>CompuCredit Corp. v. Greenwood</em> </a>and <a href="https://www.wagehourlitigation.com/arbitration-agreements/class-arbitration-waivers-of-any-colors-are-enforceable/"><em>American Express Co. v. Italian Colors Restaurant</em></a>, where the Supreme Court forged jurisprudence that made class waivers seem unassailable in the commercial context.&nbsp; But because none of the cases involving class waivers before the Supreme Court were in the employment context, uncertainty existed as to whether class waivers in mandatory employment arbitration agreements were enforceable.&nbsp;</p> <p> This uncertainty was amplified by the National Labor Relations Board&rsquo;s 2012 decision in <em>D.R. Horton</em>, which rejected workplace class waivers.&nbsp; In the Board&rsquo;s view, class waivers prevent employees from engaging in protected concerted activity in violation of Section 7 of the NLRA.&nbsp; The Board continued to press its view even after the <a href="https://www.wagehourlitigation.com/arbitration-agreements/game-over-flsa-collective-action-waivers-get-seal-of-approval-from-second-circuit/">Second</a>, <a href="https://www.wagehourlitigation.com/arbitration-agreements/fifth-circuit-stands-pat-again-rejects-nlrb-attempt-to-void-class-and-collective-action-waive/">Fifth</a>, and <a href="https://www.wagehourlitigation.com/arbitration-agreements/another-win-for-arbitration-of-flsa-claims-on-an-individual-basis/">Eighth </a>Circuits refused to enforce the rule.&nbsp; Then in 2016, the Seventh Circuit created a circuit split with its decision in <em>Lewis v. Epic Systems Corp.</em>, which held that the right to bring a class or collective action is protected concerted activity under the NLRA, and that class waivers violate that right.&nbsp; The Sixth and Ninth Circuit followed the Seventh Circuit&rsquo;s reasoning, deepening the split.</p> <p> <a href="https://www.wagehourlitigation.com/arbitration-agreements/will-the-supreme-court-finally-remove-doubt-that-an-employer-can-mandate-that-employees-enter-into-arbitration-agreements-with-class-waivers/">The Supreme Court granted cert in three cases </a>to resolve the issue of whether employers who require employees to arbitrate claims on an individual basis are preventing employees from engaging in protected concerted activity in violation of the NLRA.&nbsp; On October 2, 2017, <a href="https://www.wagehourlitigation.com/arbitration-agreements/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/">the Supreme Court heard oral argument</a>, and today it issued its decision in a split that is just as close as the circuit split below.</p> <p> <strong>The Court&rsquo;s Reasoning</strong></p> <p> The Supreme Court began with the premise that the Federal Arbitration Act (FAA) is unequivocal in its mandate that courts enforce arbitration agreements.&nbsp; The Court&rsquo;s majority decision rejected the argument that the NLRA overrides that command by rendering a class waiver unlawful.&nbsp; In the majority&rsquo;s view, Section 7 of the NLRA does not create a right to pursue a collective or class action.&nbsp; Rather, Section 7 focuses on the right to organize unions and bargain collectively and does not mention&nbsp; class or collective action procedures, the majority reasoned.&nbsp;</p> <p> Section 7&rsquo;s catch-all provision that employees&nbsp; must be permitted to engage in &ldquo;other concerted activities for the purpose of . . . other mutual aid or protection&rdquo; does not protect the right to participate in a class action because it only protects activities similar to those explicitly listed in Section 7 and thus reaches only to &ldquo;things employees do for themselves in the course of exercising their right to free association in the workplace.&rdquo;</p> <p> The majority supported its holding with other observations, including that: class and collective action procedures were &ldquo;hardly known&rdquo; in 1935 when the NLRA was passed; the NLRA states no rules on class or collective action, in contrast to the regulatory regime it imposes surrounding other concerted activities; and the collective action procedures under the Fair Labor Standards Act (&ldquo;FLSA&rdquo;) -- the statute under which the employees&rsquo; underlying causes of action arise -- is just like the collective action procedures under the Age Discrimination in Employment Act, which the Supreme Court previously has held does not prohibit mandatory individual arbitration.&nbsp;</p> <p> At bottom, the Court&rsquo;s majority was unwilling to infer a Section 7 right to a class or collective action based on &ldquo;vague terms or ancillary provisions&rdquo; that would &ldquo;dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings--matters that are usually left to, <em>e.g.</em>, the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA.&rdquo;</p> <p> The reasoning of the majority, as articulated by Justice Gorsuch, is broader than some expected.&nbsp; His majority opinion does not merely hold that between conflicting rights and interests of the FAA and NLRA, the FAA wins.&nbsp; Rather, the majority suggests that there may not be any Section 7 right to pursue a collective or class action in the first place.&nbsp; This raises the question of whether a collective or class action waiver that is<em> not</em> contained within an arbitration program may be enforceable.</p> <p> <strong>The Dissent</strong></p> <p> As expected, Justices Ginsburg, Kagan, Sotomayor, and Breyer dissented in an opinion authored by Justice Ginsburg.&nbsp; The dissent focused on the circumstances that are unique to the employment context, including what Justice Ginsburg refers to as the &ldquo;extreme imbalance once prevalent in our Nation&rsquo;s workplaces,&rdquo; and the reasons Congress enacted the NLRA in the first place, to &ldquo;place employers and employees on more equal footing.&rdquo;&nbsp; Of paramount importance was the NLRA&rsquo;s recognition that an individual employee has unequal bargaining power against the employer, and that the right to engage in concerted activities levels the playing field.</p> <p> In the dissent&rsquo;s view, class and collective actions qualify as concerted activities because in these actions, employees band together to improve their working conditions by holding employers accountable for violations of employment law.</p> <p> <strong>What Should Employers Do</strong></p> <p> Employers will undoubtedly be asking:&nbsp; what does this decision mean for me?&nbsp; The answer depends on many factors, and like arbitration agreements themselves, there is no one answer that fits all.</p> <p> For employers that already maintain a mandatory arbitration agreement with a class waiver, the Supreme Court&rsquo;s decision has minimal impact.&nbsp; A well-drafted agreement that does not overreach will be enforced.&nbsp; While there are no longer any barriers to enforcing mandatory class waivers, the Supreme Court&rsquo;s decision will not save a poorly drafted arbitration agreement.&nbsp; In many states, an arbitration agreement still can be found unenforceable if it is both procedurally and substantively unconscionable under state law principles.&nbsp; Some courts in some states may find that an arbitration agreement that is mandatory in nature is procedurally unconscionable, which makes it imperative that there is nothing in the arbitration agreement that can be substantively unconscionable.</p> <p> Employers that have a voluntary arbitration agreement with a class waiver should consider whether making the arbitration program mandatory could yield additional benefits.&nbsp; If almost all employees participate in a voluntary arbitration program with a class waiver, the additional risk of a mandatory program &ndash; whether due to procedural unconscionability concerns or employee relations issues &ndash; may not outweigh the marginal benefit.&nbsp; But if the number of employees who opt out of or refuse to sign a voluntary arbitration agreement with a class waiver is higher than an employer is comfortable with, a mandatory program should be considered.&nbsp; This is particularly true for employers in the Ninth Circuit, which gave a hat-tip to the NLRA by permitting class waivers so long as employees could opt out of the arbitration agreement.&nbsp; An opt-out procedure, however, is no longer required in light of the Supreme Court&rsquo;s decision.</p> <p> Employers that maintain arbitration programs without a class waiver should strongly consider revising their agreement to include a class waiver.&nbsp; An arbitration agreement without a class waiver leaves open the worst possible outcome, which is class arbitration.&nbsp; The potential exposure in any class action is too high to inject any uncertainty as to whether the parties intended to permit class arbitration or not.&nbsp; And an employer may want a court, rather than an arbitrator with potential financial incentive, to decide whether the parties intended to permit class arbitration.&nbsp; An express class waiver likely would avoid these issues.&nbsp; If an employer has an arbitration agreement already in place, there is now no reason to omit a class waiver.</p> <p> For everyone else who has been waiting for the Supreme Court&rsquo;s decision before deciding what to do, there are various factors to consider.&nbsp; The threshold question is whether to even have an arbitration program.&nbsp; There are certainly many benefits to arbitration.&nbsp; These include quicker resolution of claims, more predictable outcomes compared to a jury, arguably lower attorneys&rsquo; fees to take a case through completion in arbitration than in court, and greater chance of keeping the proceedings and outcome confidential.&nbsp;</p> <p> But there also are numerous downsides to arbitration that employers have to consider.&nbsp; Arbitrator fees can be very significant, and in states like California, the employer must pay all of the arbitrator fees.&nbsp;&nbsp; Some plaintiffs&rsquo; attorneys have resorted to filing a large number of individual arbitrations to make the arbitration process exorbitantly expensive for employers.&nbsp; Arbitrators also can be less likely to grant dispositive motions because they may feel a claimant has a right to take his or her claim through the evidentiary hearing (the equivalent of a trial in arbitration).</p> <p> Another question is what the scope of the arbitration program should be.&nbsp; Given the costs associated with arbitration, some employers may want to limit an arbitration program to just wage and hour claims, which have the greatest likelihood of being brought as class claims.&nbsp; In addition, current federal and state legislative headwinds are pushing against mandatory arbitration of sexual harassment and other Title VII claims.&nbsp; Certain Department of Defense contractors have long been banned from imposing such agreements, and the State of New York recently passed legislation that seeks to prohibit private employers from requiring arbitration of sexual harassment claims.&nbsp; While state laws of this type are susceptible to preemption by the Federal Arbitration Act, federal bans have been proposed, and employers may wish to sidestep the controversy altogether by considering wage-hour only arbitration agreements.&nbsp; In this way, discrimination claims, which usually are brought on a single-plaintiff basis, could then be excluded from the arbitration program if the additional costs associated with arbitration exceed the confidentiality benefit of arbitration.</p> <p> Employers considering implementing an arbitration program also need to be aware of the various exceptions.&nbsp; The FAA does not apply to certain employees, most notably transportation workers.&nbsp; In California, PAGA representative actions are not subject to class waivers and cannot be arbitrated.&nbsp; Complaints and charges filed with governmental agencies are not subject to arbitration agreements.</p> <p> While there are many factors to consider, the Supreme Court&rsquo;s decision today assures employers that arbitration agreements with class waivers remain a valuable option for employers interested in reducing potential class and collective action exposure.</p> <p> *<em>Seyfarth Shaw LLP is counsel for Epic Systems Corp. in the Lewis case at the district and appellate courts and is co-counsel for Epic at the Supreme Court.</em></p> http://www.seyfarth.com:80/publications/CP052118 Who Are My Clients? Avoiding Stormy Privilege Issues With California Employees http://www.seyfarth.com:80/publications/CP052118 Mon, 21 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Given recent headlines, a storm could be brewing over the boundaries of the attorney-client privilege in some parts of the country. California employers can avoid this vortex, at least when dealing with their current and former employees. Both can be part of the &ldquo;corporate client&rdquo; for purposes of attorney-client privilege, so long as communications with counsel meet a few requirements.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/21/who-are-my-clients-avoiding-stormy-privilege-issues-with-california-employees/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/rodriguezmh051918 Leon Rodriguez quoted in Modern Healthcare http://www.seyfarth.com:80/news/rodriguezmh051918 Sat, 19 May 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a May 19 story from Modern Healthcare, &quot;What do U.S. immigration policies mean for the healthcare workforce?,&quot; on how some believe the increased difficulty in procuring a visa has likely caused some prospective medical graduates to seek job opportunities in other countries. Rodriguez said that he thinks that&#39;s a real risk, especially if things get more restrictive than they have already been. You can read the <a href="http://www.modernhealthcare.com/article/20180519/NEWS/180519929/what-do-u-s-immigration-policies-mean-for-the-healthcare-workforce">full article here</a>.</p> http://www.seyfarth.com:80/news/weisslaw360051818 Philippe Weiss quoted in Law360 http://www.seyfarth.com:80/news/weisslaw360051818 Fri, 18 May 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a May 18 story from Law360, &quot;Summer Dress Codes: 5 Tips For Employers.&quot; Weiss said that businesses should first consider whether they even need a summer dress code to supplement the version they use for the rest of the year.</p> http://www.seyfarth.com:80/news/casciarilaw360051818 Mark Casciari quoted in Law360 http://www.seyfarth.com:80/news/casciarilaw360051818 Fri, 18 May 2018 00:00:00 -0400 <p> Mark Casciari was quoted in a May 18 story from Law360, &quot;USC, Workers Battle At The 9th Circ.: A Cheat Sheet, &quot; on the oral arguments involving a case where University of Southern California workers brought a $150 million proposed class action claiming the school mismanaged their retirement savings and the question of whether the plan participants&#39; claims should be kicked from federal court into arbitration. Casciari said that the judge&#39;s musing on whether an individual can argue a fiduciary breach claim on behalf of a plan in arbitration will likely be something the court&#39;s going to grapple with when they come down with the decision.</p> http://www.seyfarth.com:80/publications/WSE051818 OSHA Schedules Public Meeting and Requests Comments on Whistleblower Issues in the Trucking and Railroad Industries http://www.seyfarth.com:80/publications/WSE051818 Fri, 18 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has scheduled a meeting on June 12, 2018, in Washington, D.C., to solicit comments and suggestions from stakeholders in the trucking and railroad industries, on whistleblower issues within OSHA&rsquo;s purview. 83 Fed. Reg. 19838 (May 4, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/whistleblower/osha-schedules-public-meeting-and-requests-comments-on-whistleblower-issues-in-the-trucking-and-railroad-industries/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS051818 Trade Secrets Audit http://www.seyfarth.com:80/publications/TS051818 Fri, 18 May 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/intellectual-property/trade-secrets-audit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL051718 Shock Value: How to Protect Your Company from a Negligence Lawsuit on Account of an AED (Automated External Defibrillator) http://www.seyfarth.com:80/publications/EL051718 Thu, 17 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers are widely installing AEDs to protect employees and visitors, but some states require strict compliance with AED regulations to insulate employers form tort liability.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/shock-value-how-to-protect-your-company-from-a-negligence-lawsuit-on-account-of-an-aed-automated-external-defibrillator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT051718 The Week in Weed: May 18, 2018 http://www.seyfarth.com:80/publications/TBT051718 Thu, 17 May 2018 00:00:00 -0400 <p> Welcome back to The Weed in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-may-18-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM051618-LE Silver Lining in a California Wage and Hour Cloud http://www.seyfarth.com:80/publications/OMM051618-LE Wed, 16 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Employers adopting an Alternative Workweek Schedule (AWS) must follow the specific rules in the applicable wage order or face liability for unpaid overtime. But employees cannot recover penalties for accurate wage statements, even if the statements do not record unpaid wages that are due. Maldonado v. Epsilon Plastics, Inc.</em></p> <p> <strong>Legal Background</strong></p> <p> California Labor Code section 511 provides that an employer may adopt an AWS only if two-thirds of the affected employees approve the AWS in a secret vote. Specific AWS requirements appear in the applicable wage orders.</p> <p> Wage Order 1, for the manufacturing industry, permits adoption of an AWS only upon satisfying these requirements: (1) the employer proposes an AWS in writing, (2) two-thirds of the affected employees vote to adopt the proposed AWS, in a secret ballot conducted during regular working hours at the work site, (3) the employer has made a written disclosure regarding the effects of the proposed arrangement on wages, hours, and benefits, and has held at least one meeting at least 14 days before the vote, (4) the results of the election have been timely reported to the Division of Labor Statistics and Research, (5) employees have not been required to work the new hours for at least 30 days after election results were announced, and (6) the employer has not coerced any employee&rsquo;s vote.</p> <p> Labor Code section 226, meanwhile, requires that employers issue wage statements for each pay period that accurately record such things as the wages earned, the number of hours the employee has worked, and the pay rate assigned to each hour of work.</p> <p> <strong>The Facts</strong></p> <p> Olvin Maldonado operated a production machine for Epsilon Plastics, Inc., manufacturing plastic bags. Maldonado worked under an AWS by which employees worked 12-hour shifts that paid them at their regular rate for their first 10 hours of work and at an overtime rate for the next two hours.</p> <p> Maldonado sued Epsilon on behalf of a class of production employees, claiming unpaid daily overtime wages for the time worked after eight hours. The lawsuit involved four periods in which Epsilon&rsquo;s plant operated on an AWS.</p> <p> The first period began in April 2007. The AWS then in effect had been in place since Epsilon acquired the plant from Apple Plastics in 2002. The trial court found no evidence that Apple had met the AWS requirements of a written disclosure, a meeting, a vote, a 30-day waiting period, or a report to the state. In January 2008, Epsilon conducted a revote to confirm the employees&rsquo; agreement to the AWS. There was a secret ballot, preceded by a written memo, but there was no evidence of a pre-vote meeting. In addition, a supervisor voted even though he was salaried exempt, and thus was not an employee subject to the AWS.</p> <p> The second period ran for about a month in 2009. As to this period, Epsilon&rsquo;s HR administrator prepared a memo stating that the plant would be moving to a 12-hour shift and would be &ldquo;conducting this election&rdquo; to get &ldquo;employee input.&rdquo; The memo continued: &ldquo;Below please indicate if you agree with the twelve hour shift schedule or if you disagree with it.&rdquo; The memo explained the terms of the AWS, but failed to specify that without adoption of the AWS, overtime pay on the 12-hour shift would begin after the first eight hours. The HR administrator met with each shift of employees, but not until the same day they voted for the AWS. There was evidence that employees were coerced into voting yes, and the AWS went into effect six days after the vote.</p> <p> The third period covered two weeks in 2010, but Epsilon did not conduct a vote for this period.</p> <p> The plant returned to an AWS for a fourth, two-year period between 2011 and 2013. A vote was conducted eight days after this AWS took effect.</p> <p> The trial court concluded that, as to all four periods, the AWS had not been adopted in accordance with the applicable wage order. The court awarded unpaid overtime, interest, penalties for untimely termination pay and inaccurate wage statement penalties, and attorney&rsquo;s fees. As to the wage statements, the trial court awarded penalties. The court found that the statements were inaccurate because whenever the plant was on the AWS the wage statements did not properly indicate the ninth and tenth hours were overtime hours. The trial court further concluded the employees had suffered injury from this violation because they were not paid all of the overtime wages they were due.</p> <p> Epsilon appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal rejected Epsilon&rsquo;s argument that Maldonado had failed to prove that Epsilon&rsquo;s predecessor, Apple, had failed to comply with AWS requirements. It was Epsilon&mdash;not Maldonado&mdash;who had the burden of proof as to whether Apple had complied. Epsilon failed to meet its burden as to the initial period of the AWS, as well as to the later periods.</p> <p> The Court of Appeal agreed with Epsilon, however, about the wage statements. The wage statements did correctly recorded the hours actually worked and the pay actually received. That was good enough. There was no further requirement that the wage statement show what the employees <em>should </em>have been paid.</p> <p> The Court of Appeal reasoned that if failure to pay overtime wages at the appropriate rate generates an injury that justifies penalties for an inadequate wage statement, then there would be an apparent unintentional double recovery. The Court of Appeal concluded that while the invalid AWS mandated that the employees receive unpaid overtime wages, interest, and attorney&rsquo;s fees, that violation did not mandate an award of penalties for wage statements that accurately recorded the hours worked and the pay received.</p> <p> <strong>What <em>Maldonado </em>Means for Employers</strong></p> <p> Wage order procedures for an AWS must be followed to a &ldquo;T&rdquo; to avoid liability for overtime wages. A company purchasing a company already using an AWS should look for evidence that the AWS was properly adopted; a successor company cannot assume that its predecessor correctly followed all the prescribed procedures.</p> <p> The silver lining of this decision is the commonsense approach the Court of Appeal took as to the wage statements. Wage statements need only record what employees actually got paid, not what they <em>should</em> have been paid.</p> <p> Among the implications of this ruling would be that employers should not be liable for wage statements that fail to record premium pay employees should have received during a pay period in which the employer failed to provide a meal or rest break. First, as <em>Maldonado </em>clearly implies, recording pay employees <em>should </em>have received is not the function of a wage statement. Second, of course (and this is an issue <em>Maldonado </em>does not reach), money paid to compensate for breaks is, properly understood, not wages earned. The harshness of the <em>Maldonado </em>ruling on AWS issues as to Labor Code section 511 is thus counterbalanced by a sensible reading of Section 226.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/lazarcsm051618 Bart Lazar quoted in Christian Science Monitor http://www.seyfarth.com:80/news/lazarcsm051618 Wed, 16 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 16 story from Christian Science Monitor, &quot;Europe&rsquo;s new data privacy law,&quot; on how the GDPR subjects any company, regardless of where it&rsquo;s based, to fines of up to &euro;20 million (about $24 million) if it is judged to be noncompliant when engaging with EU customers. Lazar said that being sure of which consumers are located in the EU is complicated. You can read the <a href="https://www.csmonitor.com/Technology/2018/0516/Europe-s-new-data-privacy-law">full article here</a>.</p> http://www.seyfarth.com:80/news/fesurveytr051618 Seyfarth's Future Enterprise Survey profiled in TechRepublic http://www.seyfarth.com:80/news/fesurveytr051618 Wed, 16 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Future Enterprise Survey was profiled in a May 16 story from TechRepublic, &quot;62% of business leaders say automation, AI will have biggest impact on operations.&quot; Nearly half of the respondents in Seyfarth&#39;s survey said cybersecurity would be their biggest challenge over the next five years. You can read the <a href="https://www.techrepublic.com/article/62-of-business-leaders-say-automation-ai-will-have-biggest-impact-on-operations/">full article here</a>.</p> http://www.seyfarth.com:80/news/cockroftnlj051618 Andrew Cockroft quoted in the National Law Journal http://www.seyfarth.com:80/news/cockroftnlj051618 Wed, 16 May 2018 00:00:00 -0400 <p> Andrew Cockroft was quoted in a May 16 story from the National Law Journal, &quot;4 Considerations as Trump&#39;s Labor Board Mulls Joint-Employer Rulemaking.&quot; Cockroft said that while the board rarely has used rulemaking to establish standards under the NLRA, the importance of the joint-employer standard to businesses&rsquo; ability to function in the modern economy makes the issue a prime candidate for this seldom exercised power.</p> http://www.seyfarth.com:80/news/fesurvey051518 Business Leaders are More Hopeful on Industry Shifts in 2018, According to Seyfarth Shaw Future Enterprise Survey http://www.seyfarth.com:80/news/fesurvey051518 Tue, 15 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Survey respondents in sectors ranging from finance and technology to real estate and health care shared opinions on the changes and challenges their companies face. </span></em></p> <p> <strong>May 15, 2018</strong> &ndash; According to survey findings released today by Seyfarth Shaw, the majority of business leaders are more &ldquo;hopeful&rdquo; about the future of enterprise than last year, with 84 percent expressing optimism compared to 70 percent in 2017.</p> <p> As work, business, and the economy continue to be transformed by emerging technologies and cultural shifts, Seyfarth once again took the pulse of business leaders to see how they are adapting to this rapidly changing business landscape. From talent readiness to cybersecurity, Seyfarth&rsquo;s Future Enterprise survey report reflects today&rsquo;s top-of-mind issues for industry leaders across the country.</p> <p> &ldquo;The survey results reflect the sentiment of today&rsquo;s national business community towards the impact of emerging technologies likely to affect their industries, such as robotics, AI, big data and blockchain,&ldquo; said Seyfarth Corporate partner Andrew Sherman.</p> <p> &ldquo;Equipped with a growing economy and another year to digest the impact of the future enterprise, business leaders are more optimistic about impending generational shifts and are even developing a variety of innovative initiatives designed to embrace the ever-changing landscape,&rdquo; said Seyfarth Litigation partner Giovanna Ferrari.</p> <p> From 190-plus respondents, key findings of the Future Enterprise survey include:</p> <ul> <li> <strong>Blossoming Hope</strong>: 84% of respondents are hopeful about future changes to the workplace, compared to 70% in 2017.</li> <li> <strong>Talent Trouble</strong>: More than half (59%) of business leaders surveyed echoed last year&rsquo;s greatest management challenge &mdash; finding and keeping good employees.</li> <li> <strong>Breach Concerns</strong>: 45% of 2018 respondents, as opposed to just 24% in 2017 &mdash; feel cybersecurity will pose their greatest challenge in the next five years.</li> <li> <strong>Bearish on Bitcoin and Blockchain</strong>: Despite the media buzz about bitcoin and blockchain, less than 10% of business leaders are currently using either.</li> <li> <strong>AI Improves Business Operations</strong>: Over the next five years, automation and artificial intelligence will have the biggest impact on business operations and processes, according to 62% of survey participants.</li> </ul> <p> See full survey results and verbatims at <a href="https://www.futureenterprise.com/home#h-survey">https://www.futureenterprise.com/home#h-survey</a>.</p> <p> &ldquo;Last year we broke new ground with the launch of our Future of Work survey, shedding acute insights on how companies are responding to new technology and the demands of a multigenerational and global workforce,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;We were excited to expand this year&rsquo;s survey with additional insight on the management issues that challenge a broader representation of today&rsquo;s industries, and the legal issues impacting business as a whole--from workplace, to real estate, business services and more.&rdquo;</p> <p> <strong>Methodology </strong></p> <p> Seyfarth surveyed in-house legal and business leaders via an online survey for a three-week period between February and March 2018. A total of 193 respondents completed the survey. Respondents included General Counsel, Directors of HR, Associate General Counsel, HR Managers, Presidents, Senior Counsel, VPs, and a number of other roles. Verbatim responses were edited for length and clarity.</p> <p> <strong>About Future Enterprise </strong></p> <p> As emerging technologies such as artificial intelligence, virtual reality, blockchain, and cryptocurrencies become more common and the needs of the massive multigenerational global workforce begin to shift, business and legal leaders must invest in strategies that will support building new capabilities at the cross-section of people power and machine power. Future Enterprise by Seyfarth Shaw is a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to those emerging technologies. It leverages each and every department, practice group and industry group in the firm. <a href="https://www.futureenterprise.com/">https://www.futureenterprise.com/</a>.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 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/accvcaward051518 Seyfarth Earns Two 2018 ‘Value Champion’ Awards from Association of Corporate Counsel http://www.seyfarth.com:80/news/accvcaward051518 Tue, 15 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Collaborations with Danaher and 7-Eleven Named Best-In-Class by ACC </span></em></p> <p> The Association of Corporate Counsel (ACC) announced today that Seyfarth Shaw LLP was named a 2018 ACC Value Champion for its collaborative work with Danaher Corporation and 7-Eleven.</p> <p> A component of the ACC Value Challenge, which promotes reconnecting the cost and value of legal services, the ACC Value Champions initiative recognized Seyfarth for two of the 12 law department/law firm collaborations in 2018 that delivered substantial value to their client organizations by cutting spending, improving predictability and achieving better legal outcomes.</p> <p> &ldquo;To be considered best-in-class, a law department must move at the speed of the business client, optimizing every process, controlling every cost, taking advantage of every available piece of data,&rdquo; said Catherine J. Moynihan, associate vice president of legal management services at ACC. &ldquo;These Champions use leading management practices &ndash; writing applications, leveraging AI, and applying sophisticated sourcing and staffing models &ndash; to help the businesses they serve succeed.&rdquo;</p> <p> &ldquo;Working alongside talented in-house teams at Danaher and 7-Eleven, we are honored to be recognized by the Association of Corporate Counsel,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;These Value Champion efforts demonstrate how our focus on applied innovation continues to drive real results for our clients.&rdquo;</p> <p> Seyfarth&rsquo;s 2018 ACC Value Champion collaborations:</p> <ul> <li> <strong>Danaher Corporation + Seyfarth Shaw LLP</strong> &mdash; Built a three-tier service delivery model to optimize efficiency and effectiveness in addressing labor and employment issues. The model includes toolkits on critical areas of the law, best practices, templates and process maps; an internal portal for easy access to the toolkit for Danaher HR clients; and a Global ER4HR Helpline for real-time legal advice on routine labor and employment issues, as well as knowledge management. Through this model, the Danaher labor and employment legal function re-captured over 17 work-weeks of attorney time, yielding a cost savings of almost 60 percent.</li> </ul> <ul> <li> <strong>7-Eleven + Seyfarth Shaw LLP</strong> &mdash; Streamlined 7-Eleven&rsquo;s law department to better support the company&rsquo;s real estate portfolio of more than 10,000 properties. The team applied a value-based sourcing and staffing model, realigning workflow based on type of matter. Through flat fees and lean six sigma process improvement initiatives, 7-Eleven saw outside spend drop, and new store deal fall-through rates plummeted from 25 percent to near 1 percent.</li> </ul> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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 Communications, (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/publications/MA051418-LE Recent New York State and New York City Anti-Sexual Harassment Legislation: Now What? http://www.seyfarth.com:80/publications/MA051418-LE Mon, 14 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:&nbsp; <em>New York Governor Andrew M. Cuomo and New York City Mayor Bill de Blasio have each signed new laws designed to combat workplace sexual harassment.&nbsp; Together, these new laws have resulted in sweeping changes to City and State law governing employers in the State and City.</em></p> <p> Both New York State and New York City have enacted comprehensive legislation targeting workplace sexual harassment.&nbsp; On April 12, 2018, Governor Andrew M. Cuomo signed a bill enacting anti-sexual harassment legislation.&nbsp; On May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act, which is a collection of eleven pieces of legislation.&nbsp; With that law officially on the books, employers in the State and City now know the effective dates of the various provisions the laws enact, with some provisions effective immediately and others taking effect on future dates.&nbsp; Our previous Alerts on these laws, linked <a href="http://www.seyfarth.com/publications/MA040518-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA041718-LE2">here</a>, outlined the key provisions of both the State and City laws.&nbsp; Below is a brief re-cap of the State and City provisions, highlighting their effective dates.</p> <p> <strong>Key Provisions of New York State <a href="https://www.nysenate.gov/legislation/bills/2017/s7507">Law</a></strong></p> <p> <em>Extension of Protections to Non-Employees</em> -- Effective Immediately</p> <p> The law adds Section 296-D to the New York State Executive Law.&nbsp; Section 296-D imposes upon all employers liability for sex-based harassment experienced by non-employees, such as contractors, vendors, or consultants.</p> <p> <em>Prohibition of Mandatory Arbitration Clauses</em> -- Effective July 11, 2018</p> <p> The law adds Section 7515 to the Civil Practice Law and Rules (&ldquo;CPLR&rdquo;).&nbsp; It provides that, &ldquo;except where inconsistent with federal law,&rdquo; employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment.&nbsp; The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.</p> <p> <em>Prohibition of Non-Disclosure Agreements</em> -- Effective July 11, 2018</p> <p> The law adds Section 5-336 to the General Obligations Law and Section 5003-b to the CPLR.&nbsp; These provisions prohibit employers from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality.&nbsp; If the complainant requests confidentiality, the complainant must have 21 days to consider the terms, and 7 days to revoke the agreement.</p> <p> <em>Mandatory Sexual Harassment Prevention Policy and Training Program</em> -- Effective October 9, 2018</p> <p> The law amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.</p> <p> Every employer must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.</p> <p> <em>Prevention of Sexual Harassment By Bidders for State Contracts </em>-- Effective January 1, 2019</p> <p> The law amends the State Finance Law to require that, for every bid made to the State, <em>where competitive bidding is required</em>, the bidder must certify that it has a written sexual harassment policy and provides annual sexual harassment prevention training to all employees.&nbsp; Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.</p> <p> <strong>Key Provisions of Stop Sexual Harassment in NYC Act</strong></p> <p> <em>Expansion of the Statute of Limitations</em> -- Effective Immediately</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3355441&amp;GUID=35B10B56-040F-4219-9764-7C41CEB100D5&amp;Options=&amp;Search=">Act</a> amends section 8-109(e) of the City Code to expand the statute of limitations for claims of gender-based harassment from one year to three years after the alleged harassing conduct occurred.</p> <p> <em>Increased Coverage</em> -- Effective Immediately</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354940&amp;GUID=EE51AA28-8FAA-41FE-B063-BE965FAED119&amp;Options=&amp;Search=">Act</a> amends 8-102(5) of the City Code to expand coverage of sexual harassment cases to employers with fewer than four employees.&nbsp; Previously, only employers with four or more employees were covered by the law.</p> <p> <em>Sexual Harassment Poster and Information Sheet</em> -- Effective September 6, 2018</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354924&amp;GUID=CF950C5F-988C-417F-A720-53451ADA064B&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the City Code to require employers to display conspicuously an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas.&nbsp; Employers will also be required to distribute a sexual harassment information sheet to new employees at the time of hire.&nbsp; The Commission will design and post on its website the poster and information sheet, both of which must be in English and Spanish.</p> <p> <em>Mandatory Anti-Sexual Harassment Training</em> -- Effective April 1, 2019</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the Administrative Code of the City of New York to require employers with 15 or more employees to conduct annual, interactive anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees.&nbsp; In order to help employers meet this mandate, the New York City Commission on Human Rights is tasked with creating and posting on its website an online, interactive training module.</p> <p> <strong>What Happens Next?</strong></p> <p> The provisions of most direct impact for employers are those that concern mandatory arbitration clauses, NDAs, policies, and training.&nbsp;</p> <p> As we explained in our previous Alert, the Statewide prohibition on mandatory arbitration clauses for sexual harassment claims may be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act.&nbsp; But sorting out that thorny legal issue could take years.&nbsp; In the meantime, and in anticipation of the July effective date of the prohibition, employers that currently have arbitration agreements, or are considering adopting them, should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.</p> <p> New York employers should also review and revise their standard settlement agreements to ensure that they comply with the State law&rsquo;s new prohibition of certain NDAs.&nbsp;</p> <p> The State law will also likely require employers to make substantial revisions to their existing anti-harassment policies and employers without written policies will need to institute them. In addition, all New York State employers will need to comply with the State law&rsquo;s training requirements.&nbsp; All New York City employers with 15 or more employees will similarly need to comply with <em>both </em>the State <em>and</em> the City training requirements.&nbsp; While there is some overlap between those requirements, the State law has an earlier effective date and certain substantive requirements not mandated by the City law, whereas the City law has certain requirements not necessary under the State law.&nbsp; Compliance with both the training and policy requirements will be easier to assess once the model policy and training modules are published by the applicable agencies.</p> <p> The attorneys at Seyfarth Shaw LLP are available to provide assistance with guidance on both the State and City requirements, including ensuring that employers have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</p> http://www.seyfarth.com:80/publications/WC051418 Ninth Circuit Holds That Evidence Supporting Class Certification Need Not Be Admissible http://www.seyfarth.com:80/publications/WC051418 Mon, 14 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In Sali v. Corona Regional Medical Center, No. 15-5640, 2018 U.S. App. LEXIS 11497 (9th Cir. May 3, 2018), a three judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a district court&rsquo;s decision to deny class certification to a group of nurses. The Ninth Circuit did so based on its holding that the district court should have considered evidence that would be inadmissible at trial under the Federal Rules of Evidence when it decided class certification. This decision, which is at odds with precedent from the Fifth and Seventh Circuits, will make it more difficult for employers in the Ninth Circuit to resist class certification on evidentiary grounds. As a result, employers in the Ninth Circuit will need to emphasize other arguments in resisting class certification. Further, the plaintiffs&rsquo; class action bar is apt to press similar arguments in other circuits based on the holding in Sali.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/ninth-circuit-holds-that-evidence-supporting-class-certification-need-not-be-admissible/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC051318 White Hot Class Arbitration Issues http://www.seyfarth.com:80/publications/WC051318 Sun, 13 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On April 30, 2018, the U.S. Supreme Court granted a writ of certiorari in Lamps Plus Inc. v. Varela, No. 17-988. This matter, which involves the interpretation of workplace arbitration agreements, has the potential to significantly impact class action litigation. In today&rsquo;s video, Partner Jerry Maatman of Seyfarth Shaw explains the legal framework of this case, as well as its importance for employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/white-hot-class-arbitration-issues/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE051118 Robotics, Automation, and Employee Safety for the Future Employer http://www.seyfarth.com:80/publications/FE051118 Fri, 11 May 2018 00:00:00 -0400 <p> The U.S. Occupational Safety and Health Administration&rsquo;s (OSHA) has been working to address potential safety hazards posed by robotics in the workplace for many years. As early as 1987, in OSHA&rsquo;s Guidelines for Robotics Safety, Directive No. STD 01-12-002, OSHA noted that &ldquo;industrial robots can be used to perform hazardous tasks but in doing so they can create new hazards. With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.&rdquo;<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/11/robotics-automation-and-employee-safety-for-the-future-employer">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM051018-LE The Board Initiates The Internal Process To Consider Rulemaking On The Joint-Employer Standard http://www.seyfarth.com:80/publications/OMM051018-LE Thu, 10 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On Wednesday, May 9, 2018, the </em><em>Office of Information and Regulatory Affairs announced that the NLRB is considering rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act.&nbsp;</em></p> <p> NLRB Chairman, John F. Ring, announced on Wednesday, May 9, 2018, that the Board is considering rulemaking to address the standard for joint-employer status under the National Labor Relations Act.</p> <p> In the announcement, Chairman Ring <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&amp;RIN=3142-AA13">acknowledged </a>the importance of the Board&rsquo;s joint-employer standard as &ldquo;one of the most critical issues in labor law today.&rdquo;&nbsp; Chairman Ring went on to address some concerns voiced by employers following the Board&rsquo;s ruling in <em>Browning-Ferris</em> and more recently with the Board&rsquo;s <a href="https://www.employerlaborrelations.com/2018/02/27/nlrb-vacates-hy-brand-decision-and-restores-for-now-its-broad-browning-ferris-joint-employer-test/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=c6f75be419-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-c6f75be419-73179549">decision to vacate </a><em>Hy-Brand</em>, while noting the importance of the rulemaking to cure the push and pull of the Board&rsquo;s recent joint-employment decisions:</p> <p style="margin-left:.5in;"> The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers&rsquo; willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.</p> <p> Indeed, as Seyfarth has covered <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA082715LE.pdf">previously</a>, under the existing joint-employer standard the NLRB finds that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board presently will&ndash;among other factors&ndash;consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. This &nbsp;approach, first arrived at by the Board in 2015, vastly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.</p> <p> While the Board rarely has used rulemaking to establish standards under the NLRA, the importance of the joint-employer standard to businesses&rsquo; ability to function in the modern economy makes the issue a prime candidate for this seldom exercised power.</p> <p> Any proposed rule requires approval by a majority of the Board, followed by the issuance of a Notice of Proposed Rulemaking. The Chairman&rsquo;s proposal does not reflect the participation of the two Democratic Board Members, Members Pearce and McFerran.</p> <p> Employers should be aware of this beneficial opportunity to affect potential joint-employment policy and be prepared to offer input on any proposed rule.</p> http://www.seyfarth.com:80/news/rechtinlaw360051018 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360051018 Thu, 10 May 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in a May 10 story from Law360, &quot;Calif. Jury Says Emerson Owes BladeRoom $30M For IP Theft,&quot; on how a California federal jury held that American manufacturing giant Emerson Electric Co. owes U.K.-based BladeRoom Group Ltd. $30 million for stealing trade secrets to build a massive Facebook data center. Rechtin said that that there is a lot of money flying around in the data center industry, with companies trying to differentiate themselves based on their technology.</p> http://www.seyfarth.com:80/news/billowsbna051018 Tracy Billows quoted in Bloomberg BNA http://www.seyfarth.com:80/news/billowsbna051018 Thu, 10 May 2018 00:00:00 -0400 <p> Tracy Billows was quoted in a May 10 story from Bloomberg BNA, &quot;Temp Agencies Moving to Comply With NJ Paid Leave Law.&quot; Billows said that the New Jersey paid leave bill adds an extra layer of management here in terms of that time off for temp agencies.</p> http://www.seyfarth.com:80/news/suchyta050918 Former AccessHealth General Counsel Joins Seyfarth in Houston http://www.seyfarth.com:80/news/suchyta050918 Wed, 09 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Seyfarth Continues Expansion of Region&rsquo;s Leading Health Care Practice </span></em></p> <p> Seyfarth Shaw LLP announced today the arrival of Janice Suchyta to the Corporate department in Houston, who recently served as general counsel and chief strategy officer of AccessHealth, a federally qualified not-for-profit community health center.</p> <p> In this role, Suchyta oversaw all legal and compliance matters for 16 locations, including four clinical sites, staffed by more than 200 employees serving 27,000 patients each year. Her responsibilities included regulatory oversight of federal and state funding sources, and oversight of AccessHealth&rsquo;s data security and privacy; risk management; regulatory compliance, including Medicare/Medicaid reimbursement; contractual relationships with outside vendors, hospitals, ACOs, and insurance companies.</p> <p> &ldquo;Janice brings a unique and extensive in-house experience to Seyfarth as we expand what is one of the largest health care practices in the region,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. The <em>Houston Business Journal </em>recently ranked Seyfarth as the <a href="https://www.bizjournals.com/houston/subscriber-only/2017/12/01/largest-houston-area-health-care-law.html">second-largest health care practice</a>.</p> <p> &ldquo;As a former general counsel and chief strategy officer, Janice is a leading authority on corporate compliance and governance in the health care industry. She will be a tremendous asset as we guide clients through the demands of today&rsquo;s complex health care landscape at both the federal and state levels,&rdquo; said Steven Meier, chair of Seyfarth&rsquo;s Corporate department.</p> <p> Suchyta also serves as a frequent lecturer at University of Houston College of Nursing, speaking on health law policy trends and issues affecting the health care delivery model and how these trends will impact future nursing professionals.</p> <p> Throughout her career, Suchyta has practiced privately and also served as director of operations for Bashen Corporation, the national human resources consulting firm based in Houston, with a focus on Equal Employment Opportunity (&ldquo;EEO&rdquo;) compliance services. She received her J.D. from the University of Detroit-Mercy School of Law and earned her B.A. from the University of Michigan.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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/resurveyforbes050918 Seyfarth's Real Estate Market Sentiment Survey referenced in Forbes http://www.seyfarth.com:80/news/resurveyforbes050918 Wed, 09 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a May 9 story from Forbes, &quot;These Real Estate Segments Could Benefit From The Good Jobs Numbers.&quot; Commercial real estate executives see rising interest rates as their greatest concern for the industry, according to Seyfarth&#39;s survey released early this year. You can read the <a href="https://www.forbes.com/sites/elyrazin/2018/05/09/good-jobs-numbers-signal-extended-economic-recovery-and-these-real-estate-segments-could-benefit/#35b349746ee8">full article here</a>.</p> http://www.seyfarth.com:80/news/farabowlaw360050918 Sara Beiro Farabow quoted in Law360 http://www.seyfarth.com:80/news/farabowlaw360050918 Wed, 09 May 2018 00:00:00 -0400 <p> Sara Beiro Farabow was quoted in a May 9 story from Law360, &quot;Construction Legislation And Regulation To Watch.&quot; Farabow said that Trump&rsquo;s 25 percent tariff on foreign steel affects the whole food chain from property owners down to the lowest-level subcontractors.</p> http://www.seyfarth.com:80/news/johnsonlaw360050918 Randel Johnson quoted in Law360 http://www.seyfarth.com:80/news/johnsonlaw360050918 Wed, 09 May 2018 00:00:00 -0400 <p> Randel Johnson was quoted in a May 9 story from Law360, &quot;Joint Employer Plan, OT Highlight Trump&#39;s Labor Agenda,&quot; on how the National Labor Relations Board plans to issue a rule setting out a test for when affiliated businesses are joint employers and the U.S. Department of Labor will revise how it defines workers&rsquo; base pay when calculating overtime. Johnson said that the Fair Labor Standards Act requires employers to pay overtime-eligible workers at one-and-a-half times their regular rate when they work more than 40 hours, though factors like bonuses complicate deciding what a worker&rsquo;s regular rate is.</p> http://www.seyfarth.com:80/news/liesri050818 Mark Lies quoted in Risk & Insurance http://www.seyfarth.com:80/news/liesri050818 Tue, 08 May 2018 00:00:00 -0400 <p> Mark Lies was quoted in a May 8 story from Risk &amp; Insurance, &quot;11 Critical Risks Facing the Construction Industry,&quot; on Contractual Risk. Sometimes the wording in a contract drawn up between a subcontractor and a general contractor may state that the subcontractor waives its right to the exclusive remedy protections of the Workers&rsquo; Compensation Act. This could then expose the subcontractor to a personal injury claim by its own employee, said Lies. You can read the <a href="http://riskandinsurance.com/11-critical-risks-facing-the-construction-industry/">full article here</a>.</p> <p> &nbsp;</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/morashrm050818 Jennifer Mora authored an article in SHRM http://www.seyfarth.com:80/publications/morashrm050818 Tue, 08 May 2018 00:00:00 -0400 <p> Jennifer Mora authored a May 8 article in SHRM, &quot;Confused About Background Checks in California? Read This.&quot; You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/background-checks-employment-screening-california.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM050818-EB DOL Issues Temporary Enforcement Policy for Fiduciary Advice Rule http://www.seyfarth.com:80/publications/OMM050818-EB Tue, 08 May 2018 00:00:00 -0400 <div> On May 7, 2018, the Department of Labor (the &ldquo;DOL&rdquo;) issued a temporary non-enforcement policy regarding its investment advice fiduciary regulation (the &ldquo;Fiduciary Rule&rdquo;) in Field Assistance Bulletin 2018-02. This guidance was issued in response to the expected action by the Court of Appeals for the Fifth Circuit to implement its opinion vacating the Fiduciary Rule and its related exemptions. <a href="http://www.seyfarth.com/publications/OMM032318-EB">Click here</a> for our prior alert discussing the Fifth Circuit&rsquo;s decision.</div> <div> &nbsp;</div> <div> The DOL stated that from June 9, 2017, until additional guidance is issued, it will not pursue any actions &ldquo;against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions that would have been exempted&rdquo; in the Best Interest Contract Exemption or the Principal Transactions Exemption. Further, the DOL will not treat such investment advice fiduciaries as violating the prohibited transaction rules.&nbsp; Investment advice fiduciaries may rely on other available exemptions not affected by the Fifth Circuit&rsquo;s decision, but they are not required to do so.</div> <div> &nbsp;</div> <div> Finally, the DOL explained that it is continuing to consider what other types of temporary or permanent prohibited transaction relief is needed for investment advice fiduciaries. Unfortunately, the guidance does not provide any insight into how the DOL will approach the definition of investment advice fiduciary in the future. This is especially unclear given that the Securities and Exchange Commission released two proposed rules on April 18, 2018, designed to clarify the fiduciary duties that an investment adviser owes its clients under the Investment Advisers Act of 1940.</div> http://www.seyfarth.com:80/publications/mancinowm050718 Douglas Mancino authored an article in Wealth Management http://www.seyfarth.com:80/publications/mancinowm050718 Mon, 07 May 2018 00:00:00 -0400 <p> Douglas Mancino authored a May 7 article in Wealth Management, &quot;Achieving Philanthropic Goals When Selling a Business,&quot; discussing three case studies that illustrate unique potential opportunities. You can read the <a href="http://http://www.wealthmanagement.com/high-net-worth/achieving-philanthropic-goals-when-selling-business">full article here.</a></p> http://www.seyfarth.com:80/publications/MA050718-LE If Pain, Yes Gain—Part XLVII: New York and New Jersey Paid Sick Leave in Full Bloom http://www.seyfarth.com:80/publications/MA050718-LE Mon, 07 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>: </strong><em>As New York City&rsquo;s amended paid sick leave ordinance, now called the Earned Safe and Sick Time Act, went into effect on May 5, just days earlier New Jersey officially became home to the tenth statewide paid sick leave law in the nation.&nbsp; Elsewhere in New York, Westchester and Albany counties have taken steps toward passing local paid sick leave ordinances.</em></p> <p> Spring is in full bloom and so is paid sick leave in New York and New Jersey.&nbsp; Here&rsquo;s the latest:</p> <p> <strong>(1) New Jersey</strong></p> <p> On May 2, 2018, Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act (&ldquo;NJ PSL&rdquo;), making New Jersey the tenth state with a paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; The New Jersey Assembly passed the NJ PSL bill on March 26, 2018 and the Senate followed suit on April 12, 2018.&nbsp; The NJ PSL law goes into effect on the 180th day following enactment, i.e., October 29, 2018.&nbsp; At that time, the NJ PSL law will preempt the state&rsquo;s 13 existing and any future municipal paid sick leave ordinances.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> The NJ PSL law will require covered employers to allow eligible employees to accrue paid sick leave at least as fast as one hour of sick leave for every 30 hours worked, up to 40 hours per year. Employers will not be required to permit employees to use more than 40 hours of paid sick leave in any benefit year or carry over more than 40 hours of unused sick leave to the following benefit year. Although employers may frontload 40 hours of sick leave on the first day of the benefit year, instead of allowing employees to accrue the leave, the law does not allow employers to adopt a &ldquo;use it or lose it&rdquo; approach.&nbsp; If an employer chooses to frontload sick leave, it must either <strong>(1)</strong> pay the employee for the full amount of unused earned sick leave in the final month of the benefit year, or <strong>(2)</strong> permit the employee to carry over unused sick leave to the next benefit year.</p> <p> For more information on the New Jersey PSL law&rsquo;s substantive requirements, please see our prior alerts <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA032818LE.pdf">here</a> and <a href="http://www.seyfarth.com/publications/MA041318-LE">here</a>.</p> <p> <strong>(2) New York </strong></p> <p> (A) <u>New York City</u></p> <p> New York City&rsquo;s paid sick leave ordinance has been in effect since April 2014. The ordinance, as amended, is now called the Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;), and became effective on May 5, 2018. &nbsp;Among other developments, ESSTA allows eligible employees to use paid leave for certain absences where the employee or his/her covered family member is a victim of a family offense matter, sexual offense, stalking, or human trafficking.&nbsp; ESSTA also expands the definition of covered family member for both sick and safe time absences.</p> <p> In the final hours before the May 5 effective date, NYC released an <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-MandatoryNotice-English.pdf">updated model paid sick leave notice</a>, which employers can use to satisfy ESSTA&rsquo;s notice obligations. &nbsp;Covered New York City employers must provide employees hired on or after May 5 with notice of their paid safe and sick time rights under ESSTA. Covered employers also must provide the updated paid safe and sick time notice to existing employees within 30 days of ESSTA&rsquo;s effective date, i.e., June 4, 2018.</p> <p> For more information regarding ESSTA, please see our prior alerts <a href="http://www.seyfarth.com/publications/OMM11917-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA102017-LE">here</a>.</p> <p> (B) <u>Westchester and Albany Counties</u></p> <p> In February 2018, Westchester re-introduced the Employee Earned Paid Sick Time (&ldquo;EEPST&rdquo;) bill, which was introduced last year but failed to pass. With a political shift in the Westchester legislature, Westchester may become the second jurisdiction in New York State to require paid sick leave.</p> <p> The EEPST bill, if passed, would provide most employees, as defined in section 190(2) of the New York Labor Law, who work in Westchester County for more than 80 hours in a calendar year, with paid sick leave.&nbsp; Eligible employees would begin to accrue sick leave at the start of employment or 90 days after the ordinance goes into effect, whichever is later. Employers would need to allow accrual at least as fast as one hour of paid sick leave for every 30 hours worked. Covered employers with five or more employees would need to provide up to 40 hours of <u>paid</u> sick leave per year, while employers with fewer than five employees would need to provide up to 40 hours of <u>unpaid</u> sick leave per year. Although employers may frontload sick leave instead of allowing employees to accrue it, it appears that frontloading sick leave would not get rid of employers&rsquo; carryover obligations.&nbsp; Employees would be permitted to carry over any earned but unused time at year-end, unless the employer pays an employee for the unused time <u>and</u> frontloads sick leave at the beginning of the subsequent year.</p> <p> We will continue to monitor and provide updates on EEPST bill developments.</p> <p> Similarly, Albany County recently introduced paid sick leave legislation, called the Albany County Paid Sick Leave Act (&ldquo;PSLA&rdquo;), that would require employers in the County to provide certain employees with paid sick leave. &nbsp;Under the current draft PSLA, eligible employees would be entitled to accrue one hour of sick leave for every 30 hours worked, with accrual and usage thresholds varying based on the size of the employer as follows:</p> <ul> <li> Employers with ten or more employees would need to allow employees to earn and use up to 72 hours of <u>paid</u> sick leave in a year;</li> <li> Employers with fewer than ten but more than five employees would need to allow employees to earn and use up to 40 hours of <u>paid</u> sick leave in a year; and</li> <li> Employers with five or fewer employees would need to allow employees to earn and use (1) up to 40 hours of <u>unpaid</u> sick leave during the first year after the PSLA goes into effect, (2) up to 24 hours of <u>paid</u> sick leave and 16 hours of <u>unpaid</u> sick leave during the second year after the PSLA goes into effect; (3) up to 32 hours of <u>paid</u> sick leave and 8 hours of <u>unpaid</u> sick leave during the third year after the PSLA goes into effect; and (4) 40 hours of <u>paid</u> sick leave each year thereafter.&nbsp; Employees would need to accrue paid sick leave prior to accruing unpaid sick leave, and would be entitled to decide whether to use paid or unpaid sick leave for a particular absence.</li> </ul> <p> Although employers may frontload sick leave, as an alternative to accrual, it appears that frontloading the leave would not get rid of the employers&rsquo; carryover obligations. Employers covered by the PSLA would need to allow employees to carry over any earned but unused sick leave at year-end. Like the proposed Westchester County EEPST, the current draft PSLA states that no carryover is required if the employer pays an employee for unused time <u>and</u> frontloads a sufficient amount of sick leave at the beginning of the subsequent year.</p> <p> In light of these recent New York and New Jersey paid sick leave developments, employers should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and sick leave requirements generally.</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> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The nine states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>; and (9) <a href="http://www.seyfarth.com/publications/MA020918-LE">Maryland</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The Maryland statewide paid sick leave law went into effect on February 11, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The New Jersey municipal paid sick leave ordinances that will be preempted when the NJ PSL law goes into effect are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; (8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth; and (13) New Brunswick.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/FE050718 Store Politics http://www.seyfarth.com:80/publications/FE050718 Mon, 07 May 2018 00:00:00 -0400 <p> Today, far fewer businesses follow Jordan&rsquo;s example. A few have overtly aligned with a political philosophy. Others have taken public stands on specific issues, such as the hundreds of corporations and employer organizations who filed an amicus brief asking the Supreme Court to strike down bans on same-sex marriage. Still others have made arguably &ldquo;political&rdquo; choices regarding company policies, like retailers who recently stopped selling certain semi-automatic rifles&mdash;a decision that many interpreted as supporting gun control efforts.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/7/future-employer-store-politics">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM050718-LIT FDA Menu Labeling Rules to Unfreeze http://www.seyfarth.com:80/publications/OMM050718-LIT Mon, 07 May 2018 00:00:00 -0400 <div> Certain restaurants, grocers, and other food establishments will soon be required to comply with the Food and Drug Administration&rsquo;s (&ldquo;FDA&rdquo;) menu labeling rules. The FDA previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining out. Last year, the FDA extended the compliance deadline to <strong>May 7, 2018</strong>.&nbsp;</div> <div> &nbsp;</div> <div> The prior compliance extension was in response, in part, to a last minute petition by a group of major grocers and retailers who argued that the menu labeling rules were overly broad and encompassed too many businesses, did not properly clarify what constitutes a &ldquo;menu,&rdquo; and were expected to cause significant costs for compliance.</div> <div> &nbsp;</div> <div> In February 2018, the House passed the <a href="https://www.gpo.gov/fdsys/pkg/BILLS-115hr772rh/pdf/BILLS-115hr772rh.pdf">Common Sense Nutrition Disclosure Act (H.R. 772)</a>, which would ease compliance under the menu labeling rules. For example, food establishments that provide entrees in multiple varieties (e.g., bowls, sandwiches, or salads) would only need to disclose the calories per serving or based on how the item is commonly ordered. The bill would also remove any criminal penalties, preempt civil litigation and any state menu labeling laws, and allow violators 90 days to cure any noncompliance under the menu labeling rules. The bill would further allow food establishments whose customers primarily off-site (e.g., online) to make the required disclosures in a remote location only (e.g., online menu) and remove the requirement for additional on-site, written disclosures.&nbsp; &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> H.R. 772 still needs to pass the Senate, and it does not appear that any further extensions will be granted before the May 7, 2018, compliance deadline. Indeed, it appears the Trump administration has <a href="https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/phillempert/2017/11/08/trump-administration-supports-obama-era-menu-labeling-and-the-industry-is-blindsided">no plans to intervene</a> with the rollout of the menu labeling rules.&nbsp;</div> <div> &nbsp;</div> <div> With the compliance date fast approaching, companies that are subject to the menu labeling rules should ensure their menu boards and menus comply with the menu labeling rules. The following is a list of the key requirements under the rules:</div> <div> &nbsp;</div> <ol> <li> Applies to all restaurants and similar retail food establishments nationwide with (a) 20 or more locations, (b) doing business under the same name, and (c) offering for sale substantially the same menu items (similar but separate rules have also been enacted for food sold from vending machines).&nbsp;</li> <li> All menu boards must clearly and conspicuously contain the following two statements: (a) &ldquo;2,000 calories a day is used for general nutrition advice, but calorie needs vary,&rdquo; and &ldquo;Additional written nutrition information available upon request.&rdquo;&nbsp;&nbsp;</li> <li> &ldquo;Menu boards&rdquo; subject to these disclosure requirements are defined as all primary writings from which the consumer makes his or her order sections (e.g., in-store menu boards, Internet menus, takeaway menus).</li> <li> Calorie information must be clearly and conspicuously displayed next to the name or price of &ldquo;standard menu items&rdquo; (i.e., routinely included on menu or offered, excluding condiments, daily specials, temporary menu items, custom order, and customary market test foods, and food offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days to test consumer acceptance), but no specific color, font size, or contrasting background is required.</li> <li> Calorie information must be declared on signs adjacent to foods on display and self-serve foods (e.g. salad bars, buffets) that are standard menu items.&nbsp;</li> <li> When a menu or menu board lists flavors or varieties for an entire individual variable menu item, the calories must typically be declared separately for each listed flavor or variety, or flavors and varieties may be grouped together as a single listing if they have the same calorie content.</li> <li> If the menu or menu board does not list flavors or varieties, and only includes a general description of the variable menu item (e.g., &ldquo;soft drinks&rdquo;), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., &ldquo;150/200 calories&rdquo;), or as a range where more than two options are available (e.g., &ldquo;100-250 calories&rdquo;).</li> <li> The following written nutrition information must be available to consumers upon their request: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.</li> <li> Finally, &ldquo;[w]hen a standard menu item, including a beverage, is listed on a menu or menu board by name with different sizes, or each size has its own price, each size would constitute a standard menu item rather than a different flavor, variety, or combination, and each standard menu item must include a calorie declaration.&rdquo;</li> <li> A covered establishment must have a reasonable basis for its nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined.&nbsp;</li> <li> Violations may result in enforcement actions for injunctive relief and criminal and civil penalties.</li> </ol> <div> &nbsp;</div> http://www.seyfarth.com:80/news/fritzct050718 Kevin Fritz quoted in the Chicago Tribune http://www.seyfarth.com:80/news/fritzct050718 Mon, 07 May 2018 00:00:00 -0400 <p> Kevin Fritz was quoted in a May 7 story from the Chicago Tribune, &quot;Trump hotel in Chicago sued for alleged ADA violations.&quot; Fritz said that the problem is that when you settle one case, there is a business next door. You can read the <a href="http://www.chicagotribune.com/business/ct-biz-trump-hotel-chicago-ada-lawsuit-20180507-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/launeyvillamornocalrecord050618 Kristina Launey and Myra Villamor quoted in the Northern California Record http://www.seyfarth.com:80/news/launeyvillamornocalrecord050618 Sun, 06 May 2018 00:00:00 -0400 <p> Kristina Launey and Myra Villamor was quoted in a May 6 story from the Northern California Record, &quot;&#39;Tsunami&#39; of ADA lawsuits regarding website accessibility.&quot; Launey and Villamor said that lawsuits filed under California&#39;s Fair Employment Act is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs&rsquo; attorneys. You can read the <a href="https://norcalrecord.com/stories/511408438-tsunami-of-ada-lawsuits-regarding-website-accessibility">full article here</a>.</p> http://www.seyfarth.com:80/news/payequityxperthr050418 Seyfarth's “Trends and Developments in Pay Equity Litigation” report referenced in Xpert HR http://www.seyfarth.com:80/news/payequityxperthr050418 Fri, 04 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s &ldquo;Trends and Developments in Pay Equity Litigation&rdquo; report was referenced in a May 4 story from Xpert HR, &quot;Pay Equity Efforts Gain Momentum.&quot; Seyfarth&#39;s report found that more states are passing or strengthening their equal pay laws. You can read the <a href="https://www.xperthr.com/blog/2018/05/04/12682/?cmpid=SOC%7CUSAG%7CHUGMN-2017-0203-2017_twitter_generic_tracking">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC050418 Empire State Employer Emerges Victorious In Equal Pay Act Lawsuit http://www.seyfarth.com:80/publications/WC050418 Fri, 04 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an Equal Pay Act collective action lawsuit brought by female school crossing guards against the City of New York, who alleged they were paid less than male traffic enforcement agents, a federal district court in New York recently granted the City of New York&rsquo;s motion for summary judgment, finding that significant differences between the two positions warranted the pay differential.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/empire-state-employer-emerges-victorious-in-equal-pay-act-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM050318-EB Relief Provided for 2018 Family HSA Contribution Limit http://www.seyfarth.com:80/publications/OMM050318-EB Thu, 03 May 2018 00:00:00 -0400 <div> On April 26, 2018 the IRS issued Revenue Procedure 2018-27 providing transition relief for the 2018 limit on Health Savings Account (&ldquo;HSA&rdquo;) contributions for family coverage.&nbsp; The guidance allows individuals to continue to treat the family coverage limit as $6,900 for 2018.</div> <div> &nbsp;</div> <div> As previously explained in our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM040518EB.pdf">One Minute Memo</a>, in March 2018, the IRS retroactively reduced the amount of contributions permitted by account-holders with family coverage from $6,900 to $6,850.&nbsp; This $50 mid-year reduction caused both administrative burden for employers and possible negative tax ramifications for employees who relied on the earlier announced limit.&nbsp;</div> <div> &nbsp;</div> <div> Under the guidance, if an individual receives a distribution from an HSA of an excess contribution (with earnings) based on the lower $6,850 limit announced in March, then the employee has the following options:</div> <div> &nbsp;</div> <ol> <li> <strong>Repay</strong></li> </ol> <ul> <li> Repay the distribution to the HSA by April 15, 2019; and</li> <li> Treat the distribution as a mistake under IRS Notice 2004-50, meaning the repayment is not included in the employee&rsquo;s gross income and is not subject to additional taxes applicable to repayments.&nbsp;&nbsp;</li> </ul> <div> If repaid, an employer does not need to report the distribution on Form 1099-SA or Form 8889.</div> <ol start="2"> <li> <strong>Not Repay</strong></li> </ol> <ul> <li> Not repay the distribution to the HSA, but treat the distribution as an excess contribution which was returned before the due date of the individual&rsquo;s tax return (provided the distribution is received on or before the due date); and&nbsp;&nbsp;</li> <li> The excess contribution will not be included in gross income or subject to the 20% excise tax.</li> </ul> <div> However, if the distribution from the HSA was attributable to employer contributions (including employee contributions through a cafeteria plan), and the employer treats $6,900 as the limit for 2018, then the amount distributed as an excess contribution will be included in income and be subject to the 20% excise tax unless the amount distributed is used to pay qualified medical expenses.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Employers with high deductible health plans will want to inform their employees about the updated 2018 HSA family contribution limit.&nbsp; Employees who previously reduced their 2018 HSA family contribution limit may want to increase their election for the new $6,900 limit.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA050318-LE New Jersey Governor Signs Executive Order Establishing Employee Misclassification Task Force http://www.seyfarth.com:80/publications/MA050318-LE Thu, 03 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On May 3, 2018, Governor Phil Murphy signed an Executive Order establishing the Task Force on Employee Misclassification, which is effective immediately.&nbsp; At the signing in Edison, New Jersey, Governor Murphy explained that this measure is intended to crack down on &ldquo;unscrupulous contractors who engage in 1099 fraud.&rdquo;&nbsp; The Governor&rsquo;s message: &ldquo;If you practice 1099 fraud, we&rsquo;re either going to bring you into compliance or we&rsquo;re going to put you out of business.&rdquo;&nbsp;</em></p> <p> Less than 24 hours after New Jersey became the tenth state to have a statewide paid sick leave law, Governor Murphy signed an <a href="http://nj.gov/infobank/eo/056murphy/pdf/EO-25.pdf">Executive Order</a> establishing the Task Force on Employee Misclassification.&nbsp; The Task Force is comprised of 12 members from various New Jersey administrative agencies, and is New Jersey&rsquo;s latest measure aimed at increasing employee protections in what the Governor described as an ongoing effort to make New Jersey a model for the nation, both on the issue of misclassification and other employee protections.&nbsp;</p> <p> Just prior to signing the Executive Order, Governor Murphy explained that his team had looked to other states with similar task forces, such as New York and Massachusetts.&nbsp; He also clarified that the purpose in creating the Task Force is not necessarily to create &ldquo;more or better laws,&rdquo; but rather to enforce existing laws.&nbsp; He was quick to add, though, that although the intention is not to create new law, if that&rsquo;s what it takes, &ldquo;we&rsquo;re open to that.&rdquo;</p> <p> The Executive Order charges the Task Force with:</p> <p style="margin-left: 40px;"> a. Examining and evaluating existing misclassification enforcement by executive departments and agencies;</p> <p style="margin-left: 40px;"> b. Developing best practices to increase coordination of information and efficient enforcement;</p> <p style="margin-left: 40px;"> c. Developing recommendations to foster compliance, including education efforts; and</p> <p style="margin-left: 40px;"> d. Reviewing existing laws and procedures related to misclassification.</p> <p> <strong><u>Employer Outlook</u></strong></p> <p> Companies who engage independent contracts in New Jersey should heed this as a strong message.&nbsp; Governor Murphy made two things clear about the creation of this Task Force:</p> <p style="margin-left: 40px;"> 1. New Jersey will be looking to &ldquo;put some runs on the board early.&rdquo;&nbsp; He stressed that he is looking to show his commitment to addressing misclassification not just in words, but in action.&nbsp; He added that he is looking for some early successes equivalent to a &ldquo;98-mile-an-hour fastball just below the chin&rdquo; to make a statement demonstrating the strength of this Task Force.</p> <p style="margin-left: 40px;"> 2. Governor Murphy stressed that this measure is intended to help New Jersey workers.&nbsp; But, significantly, he is also looking at this as a way for the State to make money.</p> <p> Any company with independent contractors in New Jersey should review its classification of workers to ensure compliance.&nbsp; In the meantime, we will continue coverage of New Jersey&rsquo;s legislative and executive initiatives.</p> http://www.seyfarth.com:80/publications/WSE050318 All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data http://www.seyfarth.com:80/publications/WSE050318 Thu, 03 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: To be compliant, employers in State Plans that have not yet adopted OSHA&rsquo;s new rule for electronic filing of injury data for Calendar Year 2017, are required to file in the federal OSHA database.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/all-state-plan-employers-are-now-required-to-electronically-file-2017-form-300a-data/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE050318 Business Immigration: Future Enterprise vs. a Reactionary Administration http://www.seyfarth.com:80/publications/FE050318 Thu, 03 May 2018 00:00:00 -0400 <p> Last week I had the pleasure of attending the Corporate Legal Operations Consortium Annual Conference, which assembled forward-thinking thought leaders in legal operations who embrace the adoption of technology, talent with diverse skill sets, and alternative work arrangements to streamline the delivery of services. Employers across most industries are also adopting the new realities of human capital and technology in order to keep abreast of changing client demands.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/3/business-immigration-future-enterprise-vs-a-reactionary-administration">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/whitmanwexlermhl050318 Robert Whitman and Howard Wexler's blog referenced in Material Handling & Logistics http://www.seyfarth.com:80/news/whitmanwexlermhl050318 Thu, 03 May 2018 00:00:00 -0400 <p> Robert Whitman and Howard Wexler&#39;s blog, &quot;NY Attorney General &ldquo;PAID&rdquo; Lip Service to DOL Initiative,&quot; was referenced in a May 3 story from Material Handling &amp; Logistics, &quot;Labor Department Pay Violation Program Becomes More Problematic,&quot; on how the New York attorney general statement also suggest challenges from states may grow. Whitman and Wexler warn that his comments may cause employers to think twice before joining PAID out of fear of putting themselves on the radar of aggressive state and local government enforcement agencies. You can read the <a href="http://www.mhlnews.com/labor-management/labor-department-pay-violation-program-becomes-more-problematic">full article here</a>.</p> http://www.seyfarth.com:80/news/casciarishrm050318 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm050318 Thu, 03 May 2018 00:00:00 -0400 <p> Joan Casciari was quoted in a May 3 story from SHRM, &quot;Ensure FMLA Medical Certifications Are Complete and Authentic,&quot; on how forged certifications bedevil employers. Casciari said that while the provider might require the employee to sign a Health Insurance Portability and Accountability Act authorization, the employee must cooperate with the authentication process. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/fmla-complete-and-authentic-certifications.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360050218 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360050218 Wed, 02 May 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a May 2 story from Law360, &quot;High Court To Mull Class Arbitration In Data Breach Suit,&quot; on the U.S. Supreme Court recent decision to wade into a data breach lawsuit that hinges on what arbitration agreements have to say for workers to be able to bring class arbitration claims, giving the justices a chance to clarify the high court&#39;s 2010 Stolt-Nielsen ruling and tackle an issue with major implications for employers looking to fend off class actions. Maatman said that the case presents the justices with an opportunity to fill in a gap in the court&rsquo;s views on class arbitration left open by Stolt-Nielsen.</p> http://www.seyfarth.com:80/publications/TS050218 Democratic U.S. Senators Seek to Abolish Non-Compete Agreements http://www.seyfarth.com:80/publications/TS050218 Wed, 02 May 2018 00:00:00 -0400 <p> Democratic U.S. Senators Elizabeth Warren (D-MA), Chris Murphy (D-Conn.), and Ron Wyden (D-Ore.) introduced legislation on April 26, 2018, entitled the Workforce Mobility Act (&ldquo;WMA&rdquo;). Although the text of the WMA is not yet available, according to various press releases, it would prohibit the use of covenants not to compete nationwide. In Senator Warren&rsquo;s press release announcing her co-sponsorship of the bill, Senator Warren stated that &ldquo;[t]hese clauses reduce worker bargaining power, stifle competition and innovation, and hurt Americans striving for better opportunities. I&rsquo;m glad to join Senator Murphy to put an end to these anti-worker, anti-market agreements.&rdquo;<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/legislation-2/democratic-u-s-senators-seek-to-abolish-non-compete-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/briggssmarttalkhr050118 Ben Briggs authored an article in SmartTalkHR http://www.seyfarth.com:80/publications/briggssmarttalkhr050118 Tue, 01 May 2018 00:00:00 -0400 <p> Ben Briggs authored a May 1 article in SmartTalkHR, &quot;Best Legal Practices for Separation Agreements During Layoffs.&quot; You can read the <a href="https://www.risesmart.com/blog/best-legal-practices-separation-agreements-during-layoffs?utm_campaign=2017.4.1_OT_Thought_Leader_Blog&amp;utm_content=70815830&amp;utm_medium=social&amp;utm_source=twitter">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM050118-LE High Court Applies “ABC” Test When Assessing Independent Contractor Status http://www.seyfarth.com:80/publications/OMM050118-LE Tue, 01 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> The California Supreme Court, in Dynamex Operations v. Superior Court, held that &ldquo;engage, suffer or permit to work&rdquo; determines employee status for Wage Order claims, requiring a defendant disputing employee status to prove</em><em> (A) the </em><em>worker is free from control and direction of the hirer in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity&rsquo;s business; and (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.</em></p> <p> <strong>The Trial Court Decision</strong></p> <p> Delivery drivers Charles Lee and Pedro Chevez sued Dynamex Operations West for unlawfully classifying them and 1,800 other drivers as independent contractors. To argue that they were really employees, they cited California&rsquo;s Industrial Welfare Commission Wage Order No. 9. Their motion for class certification argued that, under <em>Martinez v. Combs</em> (2010), they were employees in that Dynamex knew that they provided services and had negotiated their rates. The trial court certified a class. Dynamex petitioned the Court of Appeal for a writ of mandate.</p> <p> <strong>The Appellate Court Decision</strong></p> <p> The Court of Appeal granted the petition in part, agreeing with Dynamex that the common law definition of employment should control any claim that fell outside the scope of Wage Order No. 9 (such as a claim for reimbursement of employee expenses), and that for any such claim the trial court should reevaluate whether class certification is warranted by applying the common law. That test would examine Dynamex&rsquo;s right to exercise control over the contractor&rsquo;s manner and means of providing services. As to Wage Order-related claims, though, the Court of Appeal denied the petition, determining that the trial court had correctly used the broader &ldquo;engage, suffer, or permit to work&rdquo; standard.</p> <p> <strong>The Issue Before the Supreme Court</strong></p> <p> In reviewing the case, the California Supreme Court defined the issue on appeal as whether, in a misclassification case, a class may be certified based on the expansive definition of employee as outlined in the Wage Order language construed in <em>Martinez v. Combs</em>, or on the basis of the common law test for employment set forth in <em>S. G. Borello &amp; Sons, Inc. v. Department of Industrial Relations</em> (1989). In short, the Supreme Court focused on whether to continue using the <em>Borello </em>test and on what test, if any, to apply instead.</p> <p> The Wage Order definition of employment is broader than the common law&rsquo;s. The Wage Orders define &ldquo;employ&rdquo; broadly to mean &ldquo;to engage, suffer or permit to work.&rdquo; In contrast, <em>Borello</em> focuses instead on a multi-factor balancing test that depends on each situation&rsquo;s unique facts, a test that more readily recognizes the existence of an independent contracting relationship.</p> <p> <strong>The Supreme Court Decision</strong></p> <p> On April 30, 2018, the Supreme Court upheld, and expanded upon, the Court of Appeal&rsquo;s ruling: For Wage Order claims, the &ldquo;engage, suffer or permit&rdquo; standard determines if a worker is an employee or an independent contractor. The Supreme Court also held that, to evaluate whether a worker is an employee under this language, courts should use the so-called ABC test that other jurisdictions have used.</p> <p> The ABC test presumes that a worker hired to perform services is an employee of the hiring business, subject to the hirer&rsquo;s ability to provide all three of the following elements:</p> <p style="margin-left: 40px;"> (A) The worker is free from the hirer&rsquo;s control and direction in connection with performing the work, both under contract and in fact.</p> <p style="margin-left: 40px;"> (B) The worker performs work that is outside the usual course of the hirer&rsquo;s business.</p> <p style="margin-left: 40px;"> (C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.</p> <p> The Supreme Court conceded that the phrase &ldquo;suffer or permit&rdquo; cannot be interpreted literally in a manner that would encompass workers&mdash;such as independent plumbers or electricians&mdash;who have traditionally been viewed as genuine independent contractors and who work only in their own independent business.</p> <p> <strong>What <em>Dynamex</em> Means for Businesses that Have Independent Contractors</strong></p> <p> Businesses now have more guidance in understanding the meaning of &ldquo;suffer or permit to work.&rdquo; Indeed, the ABC test encompasses factors already present in the common law <em>Borello</em> test.</p> <p> For all non-Wage Order claims, the common law test still applies. And the scope of the decision by its nature is limited to those defendants who have hired the plaintiff.</p> http://www.seyfarth.com:80/publications/FE050118 Banking Marijuana Related Business: Are We There Yet? http://www.seyfarth.com:80/publications/FE050118 Tue, 01 May 2018 00:00:00 -0400 <p> No. We are not there yet. Are we making progress? Maybe.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/1/banking-marijuana-related-business-are-we-there-yet">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT050118 Banking Marijuana Related Business: Are We There Yet? http://www.seyfarth.com:80/publications/TBT050118 Tue, 01 May 2018 00:00:00 -0400 <p> No. We are not there yet. Are we making progress? Maybe.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/banking-marijuana-related-business-are-we-there-yet/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maechtlenabajournal050118 Laura Maechtlen quoted in the ABA Journal http://www.seyfarth.com:80/news/maechtlenabajournal050118 Tue, 01 May 2018 00:00:00 -0400 <p> Laura Maechtlen was quoted in a May 1 story from the ABA Journal, &quot;4 strategies for effectively implementing a mindfulness program.&quot; Maechtlen said that with 24/7 demands, law firms often overlook the importance of their people&rsquo;s physical and mental health, but the fault lines forming now threaten the resiliency of both firms and their people. She continued that the legal market is increasingly demanding, and our continued high performance is dependent upon the well-being, resilience, grit and &lsquo;growth mindset&rsquo; of our talent. You can read the <a href="http://www.abajournal.com/magazine/article/changing_minds_implementing_mindfulness_program">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarscmag050118 Bart Lazar quoted in SC Magazine http://www.seyfarth.com:80/news/lazarscmag050118 Tue, 01 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 1 story from SC Magazine, &quot;Facebook: When privacy meets profit.&quot; Lazar said that the Facebook situation brings to bear some very basic privacy issues, such as the clarity of privacy notices, and the importance of serious due diligence with respect to any third party or service provider to whom personal information is disclosed. You can read the <a href="https://www.scmagazine.com/facebook-when-privacy-meets-profit/article/762202/">full article here</a>.</p> http://www.seyfarth.com:80/news/liesri050118 Mark Lies quoted in Risk & Insurance http://www.seyfarth.com:80/news/liesri050118 Tue, 01 May 2018 00:00:00 -0400 <p> Mark Lies was quoted in a May 1 story from Risk &amp; Insurance, &quot;To Combat Workplace Violence, Should We Arm Managers?,&quot; on how having an armed manager adds on-the-spot protection, but guns in the workplace could open companies to liability risks. Lies said that a manager is not a sworn law enforcement officer, so the legal immunities that such officers have for liability to themselves and the employer will not attach. You can read the <a href="http://riskandinsurance.com/workplace-violence-arming-managers/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrmhr050118 Camille Olson quoted in SHRM's HR Magazine http://www.seyfarth.com:80/news/olsonshrmhr050118 Tue, 01 May 2018 00:00:00 -0400 <p> Camille Olson was quoted in a story from the May issue of SHRM&#39;s HR Magazine, &quot;HR Tips for Managing Teen Workers,&quot; on how keeping younger workers safe is critical. Olson said that you can&#39;t cut the corner for safety training, even though the length of their employment isn&#39;t going to be as long. You can read the <a href="https://www.shrm.org/hr-today/news/hr-magazine/0518/Pages/hr-tips-for-managing-teen-workers.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/lucanomalawyer050118 Andrew Lucano quoted in The M&A Lawyer http://www.seyfarth.com:80/news/lucanomalawyer050118 Tue, 01 May 2018 00:00:00 -0400 <p> Andrew Lucano was quoted in a May 1 story from The M&amp;A Lawyer, &quot;The Middle-Market M&amp;A Picture For 2018.&quot; Lucano noted that 2017 started out strong for middle-market M&amp;A, with a big surge of deals in the first quarter, thanks to a post-election boomlet where buyers and sellers on the sidelines rushed in to complete deals.</p> http://www.seyfarth.com:80/news/wexlerbloomberglaw043018 Howard Wexler quoted in Bloomberg Law http://www.seyfarth.com:80/news/wexlerbloomberglaw043018 Mon, 30 Apr 2018 00:00:00 -0400 <p> Howard Wexler was quoted in an April 30 story from Bloomberg Law, &quot;New State and Local Laws Require Breastfeeding Accommodations.&quot; Wexler said that he expects this trend to continue, noting that in the first few months of 2018, such legislation has been introduced in Maryland, Pennsylvania, California, Virginia, and New Hampshire.</p> http://www.seyfarth.com:80/publications/WC043018 Kudos For Seyfarth’s Annual Workplace Class Action Litigation Report http://www.seyfarth.com:80/publications/WC043018 Mon, 30 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent review of Seyfarth&rsquo;s 2018 Annual Workplace Class Action Litigation Report, EPLiC called it the &ldquo;bible&rdquo; for class action legal practitioners, corporate counsel, employment practices liability insurers, and anyone who works in related areas.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/kudos-for-seyfarths-annual-workplace-class-action-litigation-report/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM043018-LE Another Change to Massachusetts’ Ban-the-Box Law http://www.seyfarth.com:80/publications/OMM043018-LE Mon, 30 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Effective October 13, 2018, Massachusetts employers will no longer be permitted to inquire about certain misdemeanor convictions and sealed or expunged records for employment purposes.&nbsp;</em></p> <p> Almost ten years ago, Massachusetts became the second state, following Hawaii, to enact a &ldquo;ban-the-box&rdquo; law, so-called because they require employers to remove from job applications any question that asks a job applicant to self-disclose their criminal history. Instead, employers must wait until later in the hiring process to do so, unless the employer is prohibited by law from employing criminal offenders in the position at issue. Since that time, the ban-the-box wave has spread across the nation, with laws most recently enacted in Washington (<a href="http://www.seyfarth.com/publications/MA031418-LE">discussed here</a>) and California (<a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">discussed here</a>).</p> <p> In addition to the ban-the-box law, Massachusetts&rsquo; anti-discrimination law also contained provisions that restricted &ldquo;what&rdquo; employers may inquire about, including:</p> <ul> <li> Any arrest, detention or disposition that did not result in a conviction;</li> <li> A first offense for the following misdemeanors: disturbance of the peace; drunkenness; simple assault; affray; minor traffic violations; and speeding; and</li> <li> Any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than five years prior to the date of the employment application, unless the person was convicted of any crime during that same five-year period.</li> </ul> <p> On April 13, 2018, Governor Charlie Baker signed a criminal justice reform bill, which changed existing law in several respects. Importantly, the amendment reduced the five-year period for inquiring about misdemeanors to three years, which means that employers now may not ask about (whether orally or in writing) any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than three years prior to the date of the employment application, unless the person was convicted of another crime within the three years preceding the inquiry. Moreover, in addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.</p> <p> In addition, any form used by an employer that seeks information about an applicant&rsquo;s criminal history must include the following statement about expunged records, in addition to the statement already required concerning sealed records:</p> <p> &ldquo;An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer &lsquo;no record&rsquo; with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions.&nbsp; An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer &lsquo;no record&rsquo; to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.&rdquo;</p> <p> In addition, the criminal justice reform bill lowers the number of years before an individual can seek to have a criminal record sealed or expunged. Ultimately, this means that employers will have less access to criminal history information in making employment decisions. In response to employers&rsquo; concerns about being held liable for negligent hiring or retention based on criminal history to which they no longer had access, the legislature included a provision in the bill that incorporates presumptions based on employers&rsquo; more limited access to such information.&nbsp; Employers will be presumed not to have notice (or the ability to know) about (i) records that have been sealed or expunged, (ii) records about which employers may not inquire under the anti-discrimination law, or (iii) crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer.&nbsp; &nbsp;</p> <p> Massachusetts employers, and nationwide employers that hire in the state, should immediately review their job applications to ensure they are not inquiring about criminal history information too early in the process. They also should consider reviewing and modifying any pre-hire policies and forms to ensure they are not inquiring about off-limits information and that any written question to applicants that inquires about criminal history contain the required language. Employers in all jurisdictions should stay abreast of ongoing developments in this evolving area of the law.</p> http://www.seyfarth.com:80/news/laplacaft042918 Anthony LaPlaca quoted in the Financial Times http://www.seyfarth.com:80/news/laplacaft042918 Sun, 29 Apr 2018 00:00:00 -0400 <p> Anthony LaPlaca was quoted in an April 29 story from the Financial Times, &quot;Time running out for global steelmakers in US-China trade dispute,&quot; on how many producers so far are unscathed but temporary exemptions given to allies are set to expire. LaPlaca said that, other than China and Russia, it is extremely difficult to predict which exporters are subject to the tariff in the long run. You can read the <a href="https://www.ft.com/content/e52c3cc6-493a-11e8-8ee8-cae73aab7ccb">full article here</a>.</p> http://www.seyfarth.com:80/news/johnsonbloombergbna042718 Randel Johnson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/johnsonbloombergbna042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an April 27 story from Bloomberg BNA, &quot;High Hopes, Hazy Role for Labor Department&rsquo;s Second-in-Command,&quot; on how Patrick Pizzella is facing lofty expectations from the business community that may outweigh his actual influence. Johnson said that he thinks it would be important for Pat to send a signal that there is a new sheriff in town and enforcement needs to be well balanced with voluntary compliance efforts, in terms of helping employers comply with the law.</p> http://www.seyfarth.com:80/news/jutkowitzbisnow042718 Stanley Jutkowitz quoted in Bisnow http://www.seyfarth.com:80/news/jutkowitzbisnow042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in an April 27 story from Bisnow, &quot;Budding Marijuana Businesses Discuss Real Estate, Banking Challenges,&quot; on CREW D.C.&#39;s &quot;Marijuana + CRE: A Pipe Dream?&quot; event. Jutkowitz said that no regional or national bank will touch marijuana businesses, and most of the banks that will are not even banks, they&#39;re credit unions or small local banks. You can read the <a href="https://www.bisnow.com/washington-dc/news/economic-development/marijuana-businesses-face-real-estate-banking-challenges-in-dc-market-87842">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarcci042718 Seyfarth's Workplace Class Action Report referenced in Corporate Compliance Insights http://www.seyfarth.com:80/news/wcarcci042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in an April 27 story from Corporate Compliance Insights, &quot;The Supervisor&rsquo;s Role in Wage and Hour Compliance.&quot; The 2018 Annual Workplace Class Action Litigation Report by Seyfarth Shaw stated that in 2017, settlements and payments of the top 10 private wage and hour lawsuits totaled $574.5 million. You can read the <a href="http://www.corporatecomplianceinsights.com/supervisors-role-wage-hour-compliance/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CCD042718 Fast Food Restaurant Scores A Victory in Dismissal of Food Marketing Class Action http://www.seyfarth.com:80/publications/CCD042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> A federal judge recently held that a plaintiff cannot state a claim for false advertising under Illinois law by cherry picking statements in isolation if, on the whole, the information available to plaintiff dispelled the alleged deception. On April 6, 2018, the Northern District of Illinois dismissed a proposed class action that unsuccessfully claimed that a fast food restaurant and an Illinois franchisee had misrepresented the value of certain value meals. The proposed class action, filed in Illinois in 2016, was one of hundreds of cases filed that year alone in a recent surge in food consumer class action litigation.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/04/fast-food-restaurant-scores-a-victory-in-dismissal-of-food-marketing-class-action/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM042718-LIT A Celebrity Visit to D.C. Calls Attention to Cosmetics Regulations Reform http://www.seyfarth.com:80/publications/OMM042718-LIT Fri, 27 Apr 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>What brings a celebrity to the Hill? A look at the current state of cosmetics regulations and potential effects of the Personal Care Products Safety Act that has gained famous support.</em></div> <div> &nbsp;</div> <div> An unfamiliar but well-known (and beautified) face graced Capitol Hill with her presence this week at a closed briefing before members of Congress. The celebrity traveled to D.C. to speak about the need for greater regulations of the cosmetics industry and joined the Environmental Working Group (EWG) President Ken Cook and Rep. Frank Pallone Jr. of New Jersey at a Congressional briefing.</div> <div> &nbsp;</div> <h2> A Brief Overview of Cosmetics Regulation Today</h2> <div> Currently, personal care products, which extends to cosmetics, toothpaste, shampoo and other &ldquo;daily routine&rdquo; hygiene and beauty items (except soap) are governed by the Food, Drug &amp; Cosmetic Act (FD&amp;C Act) and further governed by the Fair Packaging and Labeling Act (FPLA), which are regulated primarily by the Food and Drug Administration (FDA) and supported by the Federal Trade Commission (FTC).&nbsp;</div> <div> &nbsp;</div> <div> The FD&amp;C Act establishes that products distributed in the U.S. cannot be adulterated (e.g., contain a poisonous or deleterious substance; consist of filthy, putrid, or decomposed substances; or be prepared, packed, or held under insanitary conditions) or misbranded (e.g., labeling is false or misleading or requisite information is not prominently placed on the label). The FPLA requires that each package of household &ldquo;consumer commodities&rdquo; bears a label with a statement identifying the commodity, the name and places of business of the manufacturer, packer, or distributor, and the net quantity amounts of the product&rsquo;s contents. The purpose of the FPLA is to prevent unfair or deceptive packaging and labeling. In addition to the FD&amp;C Act and FPLA, the cosmetics industry is subject to federal and state consumers laws, including the Consumer Product Safety Act (CPSA), Federal Trade Commission Act (FTC Act), and state unfair and deceptive acts or practices.&nbsp;</div> <div> &nbsp;</div> <div> Despite the requirements under these laws, the safety of cosmetics lies largely in the hands of manufacturers, which has raised concerns from consumers and health advocates. The laws in place do not require specific tests to demonstrate the safety of particular products or ingredients. Manufacturers are also not required to share testing or safety information with the public. Recalls of cosmetics are voluntary actions taken by manufacturers or distributors to remove products from the marketplace that are deceptive or defective. The FDA, however, is not authorized to order recalls of cosmetics, but it may request a product recall if a company does not do so voluntarily.&nbsp;</div> <div> &nbsp;</div> <div> The FDA and FTC share limited enforcement responsibilities. The FDA can inspect cosmetic manufacturing facilities to ensure cosmetic production safety and to determine compliance under the FD&amp;C Act or FPLA. The FDA&rsquo;s main authority over the cosmetics industry stems from its ability to take regulatory action against companies that produce adulterated or misbranded products. The same authority exists for the FTC regulating labeling and marketing. In addition, the FTC can conduct investigations in which it maintains a coveted subpoena power, can conduct administrative proceedings, and can pursue civil litigation. The FDA has the ability to pursue legal action through the U.S. Department of Justice in the federal court system to remove adulterated and misbranded cosmetics from the marketplace, and on their own or with the assistance of the U.S. Customs and Border Protection, can &ldquo;seize&rdquo; products that violate the FD&amp;C Act or FPLA.&nbsp;</div> <div> &nbsp;</div> <div> The FDA also maintains the Voluntary Cosmetic Registration Program (VCRP), which is a reporting system for manufacturers, packers and distributors. Users of the VCRP who sell products to consumers in the U.S. can register their facilities where cosmetics are manufactured or packed. Users can also file a Cosmetic Product Ingredient Statement for each product distributed in the U.S. But, as reflected in the title, the VCRP is voluntary, not mandatory.&nbsp;</div> <div> &nbsp;</div> <div> Supplemental efforts to monitor the safety and marketing of the cosmetics industry come from the Cosmetic Ingredient Review (CIR), National Advertising Division (NAD), EWG, and a number of non-governmental organizations. The CIR reviews and assesses the safety of ingredients used in cosmetics and publishes its results in peer-reviewed scientific literature. The NAD examines advertising claims for goods and evaluates consumer complaints, as well as complaints from competing advertisers and local Better Business Bureaus. EWG is a non-profit organization that advocates for a healthier environment through educational campaigns, research, and testing of consumer products.&nbsp;</div> <div> &nbsp;</div> <h2> Cosmetics Reform</h2> <div> About this time last year, Sen. Dianne Feinstein (D-CA) and Sen. Susan Collins (R-ME) introduced the latest version of the Personal Care Products Safety Act (the Bill) to amend the FD&amp;C Act by strengthening the FDA&rsquo;s oversight of cosmetics. The Bill would require products to secure pre-market approval from the FDA before being sold to the public. Currently, cosmetics go straight to market without government testing. In addition to adding the pre-approval hurdle to manufacturers, the Bill would give the FDA tools to further protect consumers. Under the Bill, the FDA would do an annual safety review of five ingredients and contaminants, which would include initially formaldehyde-releasing chemicals and a long-chained paraben. The Bill would further require that personal care product companies register their facilities, permit the FDA to inspect their factories and records, and maintain clean environments for product manufacturing and distribution. To increase transparency and FDA involvement, the Bill would also require that companies disclose their ingredients to the FDA, require specific labeling and warnings for products that contain ingredients not suitable for all populations, require companies to report serious adverse events to the FDA, and allow the FDA to recall dangerous products. To fund these new oversight activities, the Bill would authorize FDA to collect user-fees from personal care products manufacturers similar to what is done for medications and medical devices.</div> <div> &nbsp;</div> <div> Rep. Pete Sessions reintroduced a similar law at the beginning of last year, titled the Cosmetic Modernization Amendments of 2017, which is viewed as the &ldquo;small business&rdquo; alternative to the Senate-proposed Bill.&nbsp;</div> <div> &nbsp;</div> <h2> Final Thoughts</h2> <div> With the current autonomy afforded to the cosmetics industry and the push for greater regulation, manufacturers and distributors should be instilling best practices for reasonable protocols to ensure the safety of their products. A commitment to safe cosmetic products begins at the top (a.k.a. the C-suite) and transpires throughout a company. Evidence of compliance is found in coherent and reasonable written procedures and executed in daily practice by a company, from debating the inclusion of an imported ingredient to scrutinizing over a single word in product packaging. While the Bill suggests that the FDA does not currently pose the biggest threat to manufacturers given the Bill&rsquo;s intent to increase FDA oversight, manufacturers and distributors alike can face threats to their business from other sources. In particular, potential litigation risk arises from consumers, including damaging class actions. This is especially true provided that educated consumers with expansive research tools via the Internet have taken a more vested interest in reading and understanding personal care products. Adhering to thorough product manufacturing and sound legal advice, not only reduces compliance issues but can also prevent consumer complaints and costly litigation. We&rsquo;ll continue keeping our eye on tracking proposed legislation impacting the beauty and wellness industry.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM042618-EB Department of Labor Has More to Say about ESG and Shareholder Rights http://www.seyfarth.com:80/publications/OMM042618-EB Thu, 26 Apr 2018 00:00:00 -0400 <div> On April 23, 2018, the Department of Labor (&ldquo;DOL&rdquo;) issued Field Assistance Bulletin No. 2018-01 (&ldquo;FAB&rdquo;), which clarifies Interpretive Bulletin 2015-01 (relating to a benefit plan selecting investments to promote social policy goals) and Interpretive Bulletin 2016-01 (relating to a benefit plan exercising its shareholder rights).&nbsp;</div> <div> &nbsp;</div> <h2> Environmental, Social, and Governance (&ldquo;ESG&rdquo;) Considerations</h2> <div> Interpretive Bulletin 2015-01 provided that &ldquo;plan fiduciaries are not permitted to sacrifice investment return or take on additional investment risk as a means of using plan investments to promote collateral social policy goals.&rdquo; A fiduciary must determine that an investment is appropriate based on economic factors, and it may only consider ESG factors as tie breakers. ESG may be considered when making an investment if the ESG factors present material business risks or opportunities that bear directly on the economic considerations.<sup>1</sup></div> <div> &nbsp;</div> <div> In the FAB, the DOL warns that &ldquo;fiduciaries must not too readily treat ESG factors as economically relevant to the particular investment choices at issue when making a decision.&rdquo; In other words, fiduciaries must always consider the economic interest of a proposed investment above all else. The FAB analyzes ESG considerations as applied to three specific areas.</div> <div> &nbsp;</div> <ul> <li> <em><strong>Investment Policy Statements.</strong></em> Investment policy statements may include policies regarding how ESG factors may be evaluated in selecting investments. However, there is no requirement to address ESG factors in the investment policy statement. Further, even if the investment policy statement addresses ESG, investment managers and/or other fiduciaries are only required to comply with such policies to the extent that they are consistent with the fiduciary obligations under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;).&nbsp;&nbsp;</li> <li> <em><strong>401(k) Plan Investment Alternatives.</strong></em> A defined contribution plan that intends to comply with Section 404(c) of ERISA may offer an ESG investment alternative. This investment option may be added to the investment menu without foregoing other non-ESG investment options. The ESG-themed investment option still must be prudently selected.</li> <li> <em><strong>Qualified Default Investment Alternatives (&ldquo;QDIA&rdquo;).</strong></em> Selection of an ESG QDIA &ldquo;is not analogous to merely offering participants an additional investment alternative as part of a prudently constructed lineup of investment alternatives&hellip;.&rdquo; The DOL warns against basing the selection of the QDIA on ESG principles, as it could be inconsistent with the fiduciary&rsquo;s duty of loyalty. Specifically, ESG may not be considered with respect to a QDIA if it could potentially result in a lower return or exposure to additional risk.&nbsp;</li> </ul> <p> &nbsp;</p> <h2> Shareholder Engagement Activities</h2> <div> The DOL believes that fiduciaries generally should participate in normal proxy voting activities to prudently manage plan investments. Interpretative Bulletin 2016-01 further contemplates that shareholder activities intended to monitor or influence corporations may be permissible under ERISA if such activities are likely to enhance the economic value of an investment after considering the costs to the plan.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The DOL clarified that Interpretative Bulletin 2016-01 was not intended to suggest that individual plans regularly undertake significant expenses to engage in shareholder activism. Also, investment managers and individual plans should not regularly incur significant plan expenses for activist investment activities (including proxy fights on ESG-related issues). If a proposed shareholder engagement activity could result in significant costs, the fiduciary must believe and document accordingly that the potential economic gain exceeds the potential costs.</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1.&nbsp;For example, a plan fiduciary may consider whether a particular company complies with federal and state laws and regulations when making an investment decision. Presumably, this not only reduces economic investment risk, but it also shows that the company is a good corporate citizen with strong governance.</p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL042618 Michigan Bans Local Ban-the-Box Laws http://www.seyfarth.com:80/publications/EL042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Michigan Governor Rick Snyder recently signed a bill that will prohibit counties and cities from enacting &ldquo;ban-the-box&rdquo; ordinances or other restrictions on the ability of private employers to inquire about criminal history early in the hiring process.&rdquo;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/michigan-bans-local-ban-the-box-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM042618 More than a Makeover: E-Verify Boast a New, Modernized Look Inside and Out http://www.seyfarth.com:80/publications/IMM042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> In mid-April, United States Citizenship and Immigration Services (USCIS) introduced long awaited enhancements to the program as part of the new &ldquo;modernized E-Verify system&rdquo;. In fact the overhaul is enormous in scope, the new system is entirely separate from the previous itineration of E-Verify. From a data storage location shift to reinforcement of the old infrastructure, the bones of the system are being reinforced. Employers will continue to maintain access to their old data while being able to open cases in the new system. The updates demonstrate USCIS&rsquo; continued focus on improving the system, which makes perfect sense in the face of a possible, nationwide, E-Verify mandate.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/more-than-a-makeover-e-verify-boast-a-new-modernized-look/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT042618 The Week in Weed: April 27, 2018 http://www.seyfarth.com:80/publications/TBT042618 Thu, 26 Apr 2018 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="https://www.blunttruthlaw.com/2018/04/the-week-in-weed-april-27-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/kershawwhitesidelaw042618 Kyllan Kershaw and Kaitlyn Whiteside quoted in Law.com http://www.seyfarth.com:80/news/kershawwhitesidelaw042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Kyllan Kershaw and Kaitlyn Whiteside were quoted in an April 26 story from Law.com, &quot;Labor of Law: NDAs in Focus | #MeToo and the NLRB | Who Got the Work,&quot; on a recent National Labor Relations decision which focused on a pay equity dispute between the Colorado Symphony Association and certain musicians. The board ordered the association to provide the American Federation of Musicians with requested contract information. Kershaw and Whiteside said that employers should note that this case can be seen as emblematic of the increased expectations of a union&rsquo;s responsibilities in the &ldquo;Me Too&rdquo; era.</p> http://www.seyfarth.com:80/news/maatmanbi042618 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 26 story from Business Insurance, &quot;Background of EEOC general counsel nominee raises concerns,&quot; on the nomination of Sharon Fast Gustafson as general counsel to the U.S. Equal Employment Opportunities Commission. Maatman said that she&rsquo;s an unconventional choice as far as her experience has not been focused on management or employer representation. You can read the <a href="http://www.businessinsurance.com/article/20180426/NEWS06/912320889/Background-of-EEOC-general-counsel-nominee-Sharon-Fast-Gustafson-raises-concerns">full article here</a>.</p> http://www.seyfarth.com:80/news/espositoccr042518 Tonya Esposito quoted in the Cook County Record http://www.seyfarth.com:80/news/espositoccr042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Tonya Esposito was quoted in an April 25 story from the Cook County Record, &quot;Attorney: States will enforce Consumer Financial Protection Bureau standards if feds don&#39;t.&quot; You can read the <a href="https://cookcountyrecord.com/stories/511399288-attorney-states-will-enforce-consumer-financial-protection-bureau-standards-if-feds-don-t">full article here</a>.</p> http://www.seyfarth.com:80/news/rechtinlaw360042518 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in an April 25 story from Law360, &quot;4 Things Lawyers Need To Know About Data Center Deals.&quot; Rechtin said that there is more acceptance by investors and lenders of owning or lending on data centers, so long as the right tenants are in place.</p> http://www.seyfarth.com:80/news/morashrm042518 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in an April 25 story from SHRM, &quot;Employers Increasingly Drop Marijuana Testing of Job Applicants,&quot; on how workers&rsquo; state-law rights for marijuana use are quickly on the rise. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/less-marijuana-testing.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/lazarpolitico042518 Bart Lazar authored an op-ed in Politico http://www.seyfarth.com:80/publications/lazarpolitico042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Bart Lazar authored an April 25 op-ed in Politico, &quot;Why we need a &lsquo;privacy label&rsquo; on the internet,&quot; on how the online world can learn from one of the food industry&rsquo;s big successes. You can read the <a href="https://www.politico.com/agenda/story/2018/04/25/internet-privacy-label-000656">full op-ed here</a>.</p> http://www.seyfarth.com:80/publications/CP042518 California Employers: Beware the Background Check Bugaboos http://www.seyfarth.com:80/publications/CP042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California is rife with regulation of how employers may obtain and consider background check information for use in hiring and personnel decisions. The relatively new California ban-the-box law (effective January 1, 2018) and the older Los Angeles and San Francisco ordinances and amendments to the California Labor Code set strict rules on when and how employers can consider criminal and credit histories in employment. Many details to follow.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/25/california-employers-beware-the-background-check-bugaboos/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH042518 Party On! <em>The 11th Circuit Holds Filing a Written Consent is Enough For Opt-in Plaintiffs To Achieve Party Status</em> http://www.seyfarth.com:80/publications/WH042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis:&nbsp;In a first impression case, the Eleventh Circuit held that an &ldquo;opt-in&rdquo; plaintiff is only required to file a written consent to become a party-plaintiff in a collective action under the FLSA, and that the lack of conditional certification does not affect that status.&nbsp;<br /> <br /> <a href="https://www.wagehourlitigation.com/decertification/party-on-the-11th-circuit-holds-filing-a-written-consent-is-enough-for-opt-in-plaintiffs-to-achieve-party-status/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/bogardsmarttalkhr042418 Nicole Bogard authored an article in SmartTalkHR http://www.seyfarth.com:80/publications/bogardsmarttalkhr042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Nicole Bogard authored an April 24 article in SmartTalkHR, &quot;Avoiding Litigation with ERISA Compliant Severance Plans.&quot; You can read the <a href="https://www.risesmart.com/blog/avoiding-litigation-erisa-compliant-severance-plans?utm_source=bambu&amp;utm_medium=social&amp;utm_campaign=Blog">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS042418 Seyfarth Shaw Attorneys Contribute to ABA’s Annual Trade Secret Law Report http://www.seyfarth.com:80/publications/TS042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth attorneys Robert Milligan, Joshua Salinas, Amy Abeloff, and Olivia Wada contributed to this year&rsquo;s ABA Section of Intellectual Property Law, Trade Secrets and Interferences with Contracts Committee Annual Trade Secret Law Report.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/seyfarth-shaw-attorneys-contribute-to-abas-annual-trade-secret-law-report-2/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL042418 Recent Decision Re-Enforces the Legal Framework for Sexual Harassment Claims http://www.seyfarth.com:80/publications/EL042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In recent months, sexual harassment has seized national headlines and raised significant questions about company policies, procedures, and culture. In response, many companies and HR personnel have questioned how to appropriately respond to complaints of sexual harassment. A recent decision out of the Western District of Wisconsin provides a helpful summary of the state of Title VII, the federal anti-discrimination and harassment law, and the appropriate company response to harassment. Given the national debate and this recent decision, now is a good time for employers to implement some best practices to (1) prevent harassment before it occurs and (2) take appropriate remedial action if it does.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/recent-decision-re-enforces-the-legal-framework-for-sexual-harassment-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC042418 Unsuccessful Successor: Court Finds Employer May Be Liable In EEOC Lawsuit For Its Predecessor’s Conduct Under Title VII http://www.seyfarth.com:80/publications/WC042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A Maryland federal district court recently found that a successor employer could be liable in an EEOC lawsuit for its predecessor&rsquo;s alleged employment discrimination. For employers, this decision is a cautionary tale &mdash; the lesson being that liability for claims of employment discrimination can extend beyond the entity alleged to have been responsible for the conduct to reach a successor entity that played no role in the alleged bad acts. In light of this decision, due diligence in corporate acquisitions is more important than ever. An entity acquiring not only assets but also employees must understand the risks of liability regarding the workforce it is inheriting. As the Court decided here, no matter how explicit the disclaimer of liability, a successor may still be liable in an EEOC lawsuit for the discriminatory acts of its predecessor.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/unsuccessful-successor-court-finds-employer-may-be-liable-in-eeoc-lawsuit-for-its-predecessors-conduct-under-title-vii/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC042318 New Class Action Litigation Risks http://www.seyfarth.com:80/publications/WC042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In September 2017, our blog posted a video highlighting an emerging class action litigation risk for employers &ndash; the Illinois Biometric Information Privacy, commonly known as &ldquo;BIPA.&rdquo; Since this time, class action filings under BIPA have exploded, including a potentially-landmark case against social media giant Facebook. Today, Seyfarth Shaw Associate Mike DeMarino discusses the Facebook case, as well as its potential impact on employers, with Partner Jerry Maatman.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/new-class-action-litigation-risks/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS042318a Defend Trade Secrets Act First: Claim Tossed Based on Whistleblower Immunity http://www.seyfarth.com:80/publications/TS042318a Mon, 23 Apr 2018 00:00:00 -0400 <p> In what appears to be a first under the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;), a United States District Judge has thrown out claims against an alleged trade secret thief on the basis of the DTSA&rsquo;s immunity for confidential disclosures to attorneys in the course of investigating a suspected violation of the law. Christian v. Lannett Co., Inc., No. 16-cv-00963-CDJ, 2018 WL 1532849 (E.D. Pa. Mar. 29, 2018).<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/dtsa/defend-trade-secrets-act-first-claim-tossed-based-on-whistleblower-immunity/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS042318 Upcoming Webinar! The Anatomy of a Trade Secret Audit http://www.seyfarth.com:80/publications/TS042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> To address these recurrent issues, Seyfarth Shaw helps clients protect their important assets and effectively manage risk by conducting trade secret audits. Our experience has shown that companies gain tremendous value by taking a proactive, systematic approach to assessing and protecting their trade secret portfolios through a Trade Secret Audit. In Seyfarth&rsquo;s third installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Dawn Mertineit, Justin Beyer, and Andrew Stark will cover the following topics:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/upcoming-webinar-the-anatomy-of-a-trade-secret-audit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA042318 Be Careful of Comments on Healthcare Costs: Sixth Circuit Denies Summary Judgment on ERISA Interference and Retaliation Claims Based on Management Comments that Healthcare Costs are Rising http://www.seyfarth.com:80/publications/ERISA042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: An employer, which had paid medical expenses on behalf of an employee&rsquo;s dependent son, made comments about the company&rsquo;s rising healthcare costs several months before firing the employee. The Sixth Circuit found this was enough to warrant a trial on the employee&rsquo;s ERISA interference and retaliation claims.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/04/23/be-careful-of-comments-on-healthcare-costs-sixth-circuit-denies-summary-judgment-on-erisa-interference-and-retaliation-claims-based-on-management-comments-that-healthcare-costs-are-rising/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/passantinowapo042318 Alex Passantino quoted in the Washington Post http://www.seyfarth.com:80/news/passantinowapo042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Alex Passantino was quoted in an April 23 story from the Washington Post, &quot;Huge federal contractor &lsquo;failed&rsquo; to pay workers $100 million in wages, union says,&quot; on a new complaint which alleges that one of the country&#39;s largest federal contractors misclassified employees at call centers in Kentucky, Florida, Arizona and Texas to suppress their wages. Passantino said that the Service Contract Act, which sets the minimum pay requirements for federal contractors, can confuse companies. He said that there&rsquo;s a lot of opportunity for contractors to make minor mistakes that have big impact. Passantino said that even if you are 98 percent right, that 2 percent can kill you. You can read the <a href="https://www.washingtonpost.com/news/wonk/wp/2018/04/23/huge-federal-contractor-failed-to-pay-workers-100-million-in-wages-union-says/?noredirect=on&amp;utm_term=.93b4c27584ad">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360042318 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 23 story from Law360, &quot;The Next Hy-Brand: 3 Cases That Could Undo Browning-Ferris.&quot; Babson said that it&rsquo;s an issue of great importance to the practicing bar and to the constituents of the agency, and I think it&rsquo;s important for the board to take it up.</p> http://www.seyfarth.com:80/publications/ecklaw360042018 William Eck authored an article in Law360 http://www.seyfarth.com:80/publications/ecklaw360042018 Fri, 20 Apr 2018 00:00:00 -0400 <p> William Eck authored an April 20 article in Law360, &quot;Avoiding Pitfalls In Physician Practice Acquisitions.&quot; Eck writes that once it is decided to acquire a physician practice, among the questions the acquirer and its counsel must consider are the optimal structuring approaches and how to avoid the legal pitfalls that are particular to this sort of transaction.</p> http://www.seyfarth.com:80/publications/WSE042018 Fight Club Rules: Using Restraining Orders to Prevent Workplace Violence http://www.seyfarth.com:80/publications/WSE042018 Fri, 20 Apr 2018 00:00:00 -0400 <p> Introduction: We are posting our colleagues&rsquo; California Peculiarities Employment Law Blog post on workplace violence. While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely. For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause. Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared &mdash; such as where one employee makes threatening statements about a co-worker/manager. But where the employer/employee has obtained a restraining order, the police are more likely to intercede.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-violence/fight-club-rules-using-restraining-orders-to-prevent-workplace-violence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM042018-LE Staffing Agency Class Settlement Bars Subsequent Case Against Agency’s Client http://www.seyfarth.com:80/publications/OMM042018-LE Fri, 20 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Based on the legal principle of res judicata, a prior class action settlement that released a staffing agency and its agents barred a subsequent class action against the staffing agency&rsquo;s client.</em></p> <p> <strong>The Facts</strong></p> <p> The Plaintiffs, Andrew and David Castillo, worked for GCA Services Group, Inc., a temporary staffing agency that places temporary employees with its clients. GCA placed the Castillos on a temporary assignment at Glenair, Inc. Although they worked under Glenair&rsquo;s general oversight and direction, GCA hired, fired, and paid them, based on time records provided by Glenair (which Glenair reviewed for accuracy).</p> <p> The Castillos, in 2013, sued Glenair (but not GCA), claiming&mdash;for themselves and a class of workers&mdash;unpaid minimum wages, unpaid overtime wages, meal and rest break violations, untimely termination wages, and inadequate wage statements. We will call this case &ldquo;<em>Castillo</em>.&rdquo;</p> <p> <strong><em>Gomez</em> Class Action Settlement Agreement </strong></p> <p> The year before <em>Castillo</em> was filed, Judith Gomez and Ernesto Briseno had sued GCA (but not Glenair) in connection with the work they had done for Glenair on behalf of GCA. This lawsuit, which we will call <em>Gomez</em>, alleged the same claims&mdash;on behalf of the same class&mdash;that were later brought in <em>Castillo</em>.</p> <p> In 2014, while <em>Castillo</em>, which was solely against Glenair, was pending, the parties in <em>Gomez</em> entered into a settlement agreement. The <em>Gomez</em> agreement contained a broad release barring class members from asserting wage and hour claims, against GCA and <em>its agents</em>. The Castillos were members of the <em>Gomez</em> settlement class and did not opt out of the <em>Gomez</em> settlement.</p> <p> <strong>Glenair&rsquo;s Motion for Summary Judgment</strong></p> <p> Glenair, citing the <em>Gomez</em> class settlement agreement, moved for summary judgment in <em>Castillo</em>. Glenair argued that it qualified as an agent of GCA that was a released party under the <em>Gomez</em> settlement agreement. The Castillos opposed the motion on the basis that Glenair was not a named party in <em>Gomez</em> and did not contribute to the <em>Gomez</em> settlement. The trial court nonetheless granted summary judgment for Glenair.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> On April 16, 2018, the Court of Appeal affirmed the summary judgment, holding that the <em>Castillo </em>case against Glenair was barred, both as a matter of res judicata and because Glenair was covered by the terms of the broad release contained in the<em> Gomez</em> settlement agreement. The Court of Appeal concluded that all three of the elements of res judicata were met: (1) the <em>Gomez</em> settlement was final and on the merits, (2) the causes of action in <em>Castillo</em> were the same as those at issue in <em>Gomez</em>, and (3) Glenair was in privity with GCA (a party in <em>Gomez</em>) with respect to the subject matter of <em>Castillo</em>. &nbsp;Glenair also was released as a party in <em>Gomez</em>, since it was an agent of GCA. &nbsp;</p> <p> The Court of Appeal reasoned that GCA and Glenair were in privity because the subject matter of <em>Castillo</em> and<em> Gomez</em> were the same: both cases involve the same wage and hour claims arising from the same work performed by the same GCA employees (the Castillos) at GCA&rsquo;s client company Glenair. In addition, by virtue of the settlement in <em>Gomez</em>, the Castillos &nbsp;were compensated for any errors made in the payment of their wages. Further, Glenair was an agent for GCA with respect to GCA&rsquo;s payment of its employees, such as the Castillos, and thus was a released party under the<em> Gomez </em>settlement agreement.</p> <p> <strong>What <em>Castillo</em> Means For Employers</strong></p> <p> The <em>Castillo</em> decision demonstrates that the settlement agreements entered into by temporary employment staffing agencies may have a downstream effect on their clients. Employers facing putative class actions brought by temporary employees would be wise to review any class settlement agreements entered by the plaintiff&rsquo;s staffing agency to determine if any additional defenses exist.</p> http://www.seyfarth.com:80/publications/EL041918 DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/EL041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions. While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal. Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace. Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/doj-announces-first-of-a-number-of-anticipated-no-poach-enforcement-actions-what-should-employers-do-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT041918 The Week in Weed: April 20, 2018 http://www.seyfarth.com:80/publications/TBT041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Welcome to the 4/20 edition of Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/the-week-in-weed-april-20-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM041918 MAY 2018 VISA BULLETIN http://www.seyfarth.com:80/publications/IMM041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Trivia: On May 10, 1877, U.S. President Rutherford B. Hayes had which common piece of technology first installed into the White House?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/may-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE041918 Chevron Deference Under Attack at State Level http://www.seyfarth.com:80/publications/WSE041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On April 11, 2018, Arizona Governor Doug Ducey signed into law HB 2238, which amended the state&rsquo;s administrative procedure laws to remove &ldquo;Chevron Deference,&rdquo; so that for disputes involving state administrative law, courts will not be required to defer to an agency&rsquo;s interpretation of an ambiguous statutory provision.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/administrative-procedure-act/chevron-deference-under-attack-at-state-level/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LIBOR-041918 LIBOR Discontinuance Update - What You Should Know http://www.seyfarth.com:80/publications/LIBOR-041918 Thu, 19 Apr 2018 00:00:00 -0400 <div> As you likely know by now, in July 2017 the U.K.&rsquo;s Financial Conduct Authority announced that LIBOR will be phased out by 2021.&nbsp; However, as we previously advised in our&nbsp;<a href="http://www.seyfarth.com/publications/LIBOR-092017" target="_blank">September 2017 Alert</a>, lenders need not rush into replacing LIBOR for a new substitute index, as there is an ongoing process to facilitate an orderly transition in the market to a new, replacement index rate in place of LIBOR.</div> <div> <div> &nbsp;</div> <div> On April 13, 2018, the Federal Reserve Bank of New York (the &ldquo;New York Fed&rdquo;) began publishing three new reference rates based on overnight repurchase agreement transactions collateralized by Treasury securities.&nbsp; These new reference rates are the Broad General Collateral Rate (BGCR), the Tri-Party General Collateral Rate (TGCR) and the Secured Overnight Financing Rate (SOFR).&nbsp; The Alternative Reference Rates Committee formed by the Federal Reserve to address LIBOR replacement has identified SOFR as a potential candidate for the LIBOR replacement.&nbsp; The New York Fed describes SOFR as a broad measure of the cost of borrowing cash overnight collateralized by Treasury securities. SOFR includes all trades in the BGCR plus bilateral Treasury repurchase agreement (repo) transactions cleared through the &ldquo;delivery-versus-payment&rdquo; service offered by the Fixed Income Clearing Corporation, which is filtered to remove a portion of transactions considered &ldquo;specials&rdquo; (repo transactions for specific-issue collateral which take place at cash-lending rates below those for general collateral repos because cash providers are willing to accept a lesser return on their cash in order to obtain a particular security).</div> <div> &nbsp;</div> <div> The New York Fed will publish such rates each morning at approximately 8:00 a.m. Eastern Time and will include statistics summarizing the distribution of volumes each day, including the total dollar amount of transactions used to calculate each rate, rounded to the nearest billion, and the volume-weighted 1st, 25th, 75th, and 99th percentiles.</div> <div> &nbsp;</div> <div> While SOFR will not be a direct substitute for LIBOR because it is a secured overnight rate and thus lower than LIBOR, the publishing of this SOFR as a reported index rate is an important milestone in the development of a market for a new reference rate.</div> <div> &nbsp;</div> <div> The takeaway for lenders is to continue monitoring the loan market for adoption of a replacement index rate to LIBOR and continue observing how the discontinuance of LIBOR impacts both existing and new loan documentation.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/clarkmoradyehs041918 Brent Clark and Ilana Morady's blog referenced in EHS Today http://www.seyfarth.com:80/news/clarkmoradyehs041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Brent Clark and Ilana Morady&#39;s blog was referenced in EHS Today, &quot;MSHA Issues Final Mine Inspection Rule,&quot; on how the new regulations impose additional requirements but are less burdensome than first proposed. The Seyfarth lawyers point out that while the new regulation imposes new requirements on mine operators, it is notably less burdensome that previous iterations of the workplace examination rule that have been in process for several years. You can read the <a href="http://www.ehstoday.com/safety/msha-issues-final-mine-inspection-rule">full article here</a>.</p> http://www.seyfarth.com:80/news/lorberbloomberglaw041918 Larry Lorber quoted in Bloomberg Law http://www.seyfarth.com:80/news/lorberbloomberglaw041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Larry Lorber was quoted in an April 19 story from Bloomberg Law, &quot;Federal Contractor Auditor&rsquo;s Selection Process Revealed.&quot; Lorber said that he is concerned about the way the office is framing the parent company-independent subsidiary relationship and the categorization of &ldquo;direct&rdquo; and &ldquo;associate&rdquo; establishments.</p> http://www.seyfarth.com:80/news/whitmanxperthr041918 Robert Whitman quoted in XpertHR http://www.seyfarth.com:80/news/whitmanxperthr041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Robert Whitman was quoted in an April 19 story from XpertHR, &quot;New York Passes New Anti-Sexual Harassment Laws.&quot; Whitman said that employers need to take steps quickly to comply with the new provisions. You can read the <a href="https://www.xperthr.com/news/new-york-passes-new-anti-sexual-harassment-laws/32102/">full article here</a>.</p> http://www.seyfarth.com:80/news/lorberbl041918 Lawrence Lorber quoted in Bloomberg Law http://www.seyfarth.com:80/news/lorberbl041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Lawrence Lorber was quoted in an April 19 story from Bloomberg Law, &quot;Labor Dept. to Relax Obama Pay Bias Policy, Hand Reins to Businesses,&quot; on how the Trump administration plans to ease the way it reviews federal contractors for pay discrimination by letting businesses help shape those investigations. Lorber said that it&rsquo;s really a productive step because it will bring them back to dealing with compensation issues as the law requires, rather than just an arbitrary set of methodologies which don&rsquo;t have any basis in the law.</p> http://www.seyfarth.com:80/news/schwartzfenwickbna041918 Sam Schwartz-Fenwick quoted in Bloomberg BNA http://www.seyfarth.com:80/news/schwartzfenwickbna041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an April 19 story from Bloomberg BNA, &quot;Health Coverage of Medical Pot Remains Unlikely, Despite Demand.&quot; Schwartz-Fenwick said that, because it&rsquo;s illegal at the federal level, it creates a lot of problems for an ERISA plan.</p> http://www.seyfarth.com:80/news/casciarishrm041918 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Joan Casciari was quoted in an April 19 story from SHRM, &quot;Is &lsquo;I&rsquo;ve Changed Meds&rsquo; an Accommodation Request?&quot; Casciari said that that an employee&#39;s stating &quot;I&#39;ve changed meds&quot; might be sufficient to put the employer on notice that an accommodation is needed. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/changed-meds-accommodation-request.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonpoliticopro041818 Marshall Babson quoted in Politico Pro http://www.seyfarth.com:80/news/babsonpoliticopro041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 18 story from Politico Pro, &quot;OMB tells NLRB to spend less than allocated.&quot; Babson said that he is unaware of a single instance in the past wherein the White House or OMB subjected the NLRB to the budget rescission process.</p> http://www.seyfarth.com:80/news/maechtlenlaw360041818 Laura Maechtlen quoted in Law360 http://www.seyfarth.com:80/news/maechtlenlaw360041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Laura Maechtlen was quoted in an April 18 story from Law360, &quot;Client Push Gets More Firms Into The Labor Lobbying Game.&quot; Maechtlen said that what she has seen in the last couple years, especially with the new federal administration, is questions from clients about how to navigate what&rsquo;s happening in Washington. The Seyfarth Shaw Government Relations and Public Policy Group launched in January.</p> http://www.seyfarth.com:80/publications/TS041818 Federal Court Dismisses CFAA Claims Against Former Executive, Allows CFAA and DTSA Claims Against Competitor in Pharmaceuticals Trade Secret Dispute http://www.seyfarth.com:80/publications/TS041818 Wed, 18 Apr 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.tradesecretslaw.com/2018/04/articles/dtsa/federal-court-dismisses-cfaa-claims-against-former-executive-allows-cfaa-and-dtsa-claims-against-competitor-in-pharmaceuticals-trade-secret-dispute/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP041818 Fight Club Rules: Using Restraining Orders to Prevent Workplace Violence http://www.seyfarth.com:80/publications/CP041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the &ldquo;Fight Club&rdquo; at work.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/18/fight-club-rules-using-restraining-orders-to-prevent-workplace-violence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA041718-LE2 Following State’s Lead, New York City Council Passes “Stop Sexual Harassment in NYC Act” http://www.seyfarth.com:80/publications/MA041718-LE2 Tue, 17 Apr 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The New York City Council has passed, and Mayor Bill de Blasio is expected to sign, a package of eleven bills</em>&mdash;<em>together referred to as the Stop Sexual Harassment in NYC Act</em>&mdash;<em>that will require most private employers to conduct annual sexual harassment training.&nbsp; The legislation also extends the statute of limitations for filing claims of sexual harassment from one year to three, requires employers to display an anti-sexual harassment poster in common areas, requires the Commission on Human Rights to post certain information about sexual harassment, and expands the New York City Human Rights Law&rsquo;s coverage to all employers, regardless of the number of employees.</em></div> <div> &nbsp;</div> <div> The &ldquo;Stop Sexual Harassment in NYC Act,&rdquo; passed by the City Council on April 11, 2018, is a package of eleven bills designed to combat workplace sexual harassment. The Mayor is expected to sign the bill shortly.&nbsp; Following on the heels of the recently enacted <a href="http://www.seyfarth.com/publications/MA040518-LE">New York State</a> anti-sexual harassment legislation, the Act makes a number of significant changes to the law of sexual harassment applicable to employers in the City.</div> <div> &nbsp;</div> <div> The provisions in the bill affecting private employers are summarized briefly below.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Mandatory Anti-Sexual Harassment Training</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search=">Act</a> will amend section 8-107 of the Administrative Code of the City of New York to require employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees.&nbsp; Training will be required after 90 days of initial hire for employees who work more than 80 hours in a calendar year, whether or not they work on a full-time or part-time basis.&nbsp; For purposes of this subdivision, the term &ldquo;employee&rdquo; includes interns.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The legislation requires that the training be &ldquo;interactive.&rdquo;&nbsp; While it need not be live or with an in-person instructor, it must qualify as participatory teaching &ldquo;whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program, or other participatory forms of training as determined by the commission.&rdquo;</div> <div> &nbsp;</div> <div> Training must, at a minimum, include the following: (1) an explanation of sexual harassment as a form of unlawful discrimination under city, state, and federal law; (2) a description of sexual harassment, including examples; (3) the employer&rsquo;s internal complaint process as well as the complaint process available through the City Commission on Human Rights, the State Division of Human Rights, and the Equal Employment Opportunity Commission; (4) a prohibition of retaliation and examples of what constitutes retaliation; (5) information concerning bystander intervention; and (6) the responsibilities of and actions that must be taken by supervisory and managerial employees in the prevention of sexual harassment and retaliation.</div> <div> &nbsp;</div> <div> The legislation also requires that employers keep a record of all trainings and signed employee acknowledgements of attendance.&nbsp; The records must be retained for three years and be available, upon request, for inspection by the Commission.</div> <div> &nbsp;</div> <div> The Commission is required to develop an online interactive training module that may be used by employers to satisfy the training component, provided that employers also inform all employees of internal reporting procedures.&nbsp; The module will be available for free to the public and must allow for electronic provision of certification.&nbsp;</div> <div> &nbsp;</div> <div> The legislation also includes two novel additional provisions.&nbsp; First, &ldquo;[a]n employee who has received anti-sexual harassment training within the required training cycle shall not be required to receive additional anti-sexual harassment training at another employer until the next cycle.&rdquo;&nbsp; The legislation does not define &ldquo;cycle,&rdquo; but presumably it means calendar year.&nbsp; Second, any employer that is subject to training requirements in multiple jurisdictions may demonstrate that it is compliant with the legislation by submitting proof that it provides all employees with annual interactive anti-sexual harassment training that is compliant with the training standards set forth under sub-section (b).&nbsp;</div> <div> &nbsp;</div> <div> This legislation will take effect April 1, 2019.</div> <div> &nbsp;</div> <div> <strong>Sexual Harassment Poster</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354924&amp;GUID=CF950C5F-988C-417F-A720-53451ADA064B&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the City Code to require employers to display conspicuously an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas.&nbsp; The Commission will design the poster, and each poster must be displayed in English and Spanish.&nbsp; Employers will also be required to distribute a sexual harassment information sheet, developed by the Commission, to new employees at the time of hire.&nbsp; This portion of the law takes effect 120 days after it is signed, provided that the Commission takes all actions necessary for its implementation.</div> <div> &nbsp;</div> <div> <strong>Expansion of the Statute of Limitations</strong></div> <div> &nbsp;</div> <div> The Commission previously did not have jurisdiction over complaints filed more than one year after the alleged unlawful discriminatory practice or act of discriminatory harassment or violence occurred.&nbsp; The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3355441&amp;GUID=35B10B56-040F-4219-9764-7C41CEB100D5&amp;Options=&amp;Search=">Act</a> amends section 8-109(e) of the City Code to give the Commission jurisdiction over claims of gender-based harassment filed within three years after the alleged harassing conduct occurred.&nbsp; This provision takes effect immediately upon the law&rsquo;s enactment.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Increased Coverage</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354940&amp;GUID=EE51AA28-8FAA-41FE-B063-BE965FAED119&amp;Options=&amp;Search=">Act</a> amends 8-102(5) of the City Code to expand coverage of sexual harassment cases to employers with fewer than four employees.&nbsp; Previously, only employers with four or more employees were covered by the law.&nbsp; This amendment aligns the City Human Rights Law with the State law.&nbsp; This amendment takes effect immediately upon final enactment of the law.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Publicly Available Information</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354920&amp;GUID=4C0C09CB-DEA8-445E-A8D1-DDF6E08AB6A3&amp;Options=&amp;Search=">Act</a> adds section 8-132 to the City Code and requires the Commission to post resources about sexual harassment on its website.&nbsp; The information required includes: an explanation that sexual harassment is a form of unlawful discrimination, specific examples of sexual harassment, a description of the Commission&rsquo;s complaint process, a list of alternate agencies for filing complaints, an explanation that retaliation is prohibited, and bystander intervention education.&nbsp;</div> <div> <strong>&nbsp;</strong></div> <div> <strong>What Happens Next?</strong></div> <div> &nbsp;</div> <div> The provision concerning anti-sexual-harassment training for private employers will likely have the biggest impact on employers.&nbsp; However, because this provision does not take effect until April 1, 2019, employers will have plenty of time to ensure they are in compliance.&nbsp; Once the Commission creates the model training, employers will be able to assess whether their current training materials satisfy the City requirements as well as the State requirements.</div> <div> &nbsp;</div> <div> Those employers that do not already provide training will have to determine whether to utilize the Commission&rsquo;s model or institute a more tailored training program that still meets the training requirements.&nbsp; Employers in multiple jurisdictions should review their existing training programs, if any, to ensure that their New York City locations are compliant.&nbsp; Additionally, employers utilizing interns should assess whether their interns will require training.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The attorneys at Seyfarth Shaw LLP will present a webinar on the new City and State legislation on April 25, 2018 at 1:00 PM EDT.&nbsp; Details will be announced shortly.&nbsp; We are also available to provide any assistance with ensuring that you have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.&nbsp;</div> http://www.seyfarth.com:80/publications/MA041718-LE Franchise “No-Hire” Agreement Class Actions And The Single Enterprise Defense http://www.seyfarth.com:80/publications/MA041718-LE Tue, 17 Apr 2018 00:00:00 -0400 <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box; font-weight: 700;">Seyfarth Synopsis:</span>&nbsp;There are currently pending at least four class actions claiming that provisions contained in franchise agreements prohibiting the hiring of employees of other intrabrand franchisees without the consent of their employer violate the antitrust laws.&nbsp;&nbsp;</span>That being said, in<span style="box-sizing: border-box;">&nbsp;1993 the Ninth Circuit affirmed summary judgment in favor of a franchisor in a similar &ldquo;no-hire&rdquo; case.&nbsp;&nbsp;</span>It<span style="box-sizing: border-box;">&nbsp;reasoned that due to the control the franchisor exercised over its franchisees, the franchisor and its franchisees were incapable of conspiring in violation of Section 1 of the Sherman Act. While the so-called &ldquo;single enterprise&rdquo; defense is potentially available, franchisors should be cognizant that in developing that defense, they may create evidence or admissions that would support a subsequent claim that the franchisors are joint employers of their franchisees&rsquo; employees.&nbsp; In light of the availability of other defenses, franchisor employers should assess whether the joint employer risk is worth accepting in order to pursue the single enterprise defense.&nbsp;</span></span></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Introduction</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="color:#696969;"><span style="box-sizing: border-box;">&ldquo;No-hire&rdquo; (sometimes referred to as &ldquo;no-switching&rdquo;) agreements are contracts between or among employers not to hire each other&rsquo;s employees.&nbsp; A &ldquo;no-poaching&rdquo; agreement is different but similar.&nbsp; It prevents the solicitation of another employers&rsquo; employees, but does not prevent their hire, so long as there was no solicitation.&nbsp; The franchise no-hire agreements typically are limited in duration.&nbsp; For example, in pending litigation against Pizza Hut,&nbsp; it is alleged that the challenged agreement only prohibits hiring anyone who was in a managerial position at another Pizza Hut restaurant at any time during the previous six months.&nbsp;&nbsp;<i style="box-sizing: border-box;">Ion v. Pizza Hut, LLC</i>, Case No. 4:17-cv-00788, Complaint at &para;&nbsp;4,<i style="box-sizing: border-box;">available at</i>&nbsp;</span></span><a href="https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf" style="box-sizing: border-box; color: rgb(0, 116, 211);">https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf</a><span style="box-sizing: border-box; color: rgb(0, 0, 0);">&nbsp;</span><span style="color:#696969;"><span style="box-sizing: border-box;">(last visited on 4/10/2018).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="color:#696969;"><span style="font-family:arial,helvetica,sans-serif;">In 2017, at least three class action cases were brought against separate franchisors alleging that the organizations&rsquo; &ldquo;no-hire&rdquo; agreements suppress wages and violate antitrust laws.&nbsp; And a fourth was filed in January 2018.&nbsp; There may be more to come.&nbsp; In a letter to Attorney General Jeff Sessions dated November 21, 2017, Senators Elizabeth Warren and Cory Booker inquired as to whether DOJ was &ldquo;currently investigating the use of no-poach agreements in the franchise industry.&rdquo;&nbsp; In that correspondence, Senators Warren and Booker cited to a study by Princeton economists that found that &ldquo;fully 58% of the 156 largest franchisors operating around 340,000 franchise units used some form of anti-competitive &lsquo;no-poach&rsquo; agreements.&rdquo;&nbsp; See <a href="https://www.warren.senate.gov./files/documents/2017_11_21_No_Poach.pdf">https://www.warren.senate.gov./files/documents/2017_11_21_No_Poach.pdf</a> (last visited on 4/10/2018).</span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">To prove a violation of Section 1 of the Sherman Act, the plaintiff must show an agreement between or among two or more persons or entities.&nbsp;&nbsp;<i style="box-sizing: border-box;">Monsanto Co. v. Spray-Rite Service Corp.</i>, 465 U.S. 752, 761 (1984).&nbsp; In 1993, a Jack-in-the-Box franchisor successfully defended a challenge to its no-switching agreement on the grounds that the franchisor and its franchisees were a single enterprise and incapable of conspiring in violation of Section&nbsp;1.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams v. I.B. Fischer Nevada</i>, 999 F.2d 445, 447-48 (9th Cir. 1993) (<i style="box-sizing: border-box;">per curiam</i>).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">T<span style="box-sizing: border-box;">hat defense is premised upon the control that a franchisor has over the operations of its franchisees.&nbsp; And the question then is whether developing that defense creates an unacceptable risk of creating evidence or admissions supporting joint employer status.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">The Single Enterprise Defense</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">In the franchise no-hire context, usually there is little dispute that an agreement exists.&nbsp; It is typically contained in the franchise agreements between the franchisor and each of its franchisees.&nbsp; But the parties to the alleged unlawful agreement must also be legally capable of conspiring.&nbsp; In&nbsp;<i style="box-sizing: border-box;">Copperweld Corp. v. Independence Tube Corp.</i>, 467 U.S. 752, 771 (1984), the&nbsp;</span>U.S.&nbsp;<span style="box-sizing: border-box;">Supreme Court held that a parent and its wholly owned subsidiary were incapable of conspiring in violation of Section 1 because their conduct must be viewed as that of a single enterprise.&nbsp; The&nbsp;</span>Supreme&nbsp;<span style="box-sizing: border-box;">Court reasoned that &ldquo;[a] parent and its wholly owned subsidiary have a complete unity of interest.&nbsp; The objectives are common, not disparate; the general corporate actions are guided or determined not by two separate corporate consciousnesses, but one.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>.&nbsp; It therefore reversed the decision of the Seventh Circuit which had affirmed a jury verdict in favor of the plaintiff.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">In 1993, without mentioning&nbsp;<i style="box-sizing: border-box;">Copperweld</i>, the Ninth Circuit extended this single enterprise concept to the franchise environment in a no-hire case.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams</i>, 999 F.2d at 447-48.&nbsp; Other courts have also found that franchisors were incapable of conspiring with their franchisees within the meaning of the Sherman Act.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Danforth &amp; Associates, Inc.,&nbsp; v. Coldwell Banker Real Estate, LLC</i>, Case No. C10-1621, 2011 U.S. Dist. LEXIS 10882, *6-7 (W.D. Wash. Feb. 2, 2011) (franchisor and franchisee cannot conspire within the meaning of the Sherman Act);&nbsp;<i style="box-sizing: border-box;">Search International, Inc. v. Snelling and Snelling, Inc</i>., 168 F. Supp. 2d 621, 626-27 (N.D. Tex. 2001) (unity of interest between franchisor and its franchisees made them incapable of conspiring in violation of the Sherman Act);&nbsp;<i style="box-sizing: border-box;">Hall v. Burger King Corporation</i>, 912 F. Supp. 1509, 1548 (S.D. Fla. 1995) (franchisor and franchisee were incapable of conspiring under the Sherman Act).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">But the authorities cited above do not stand for the broad proposition that franchisors, in general, cannot unlawfully conspire with their franchisees.&nbsp; The district court in&nbsp;<i style="box-sizing: border-box;">Williams</i>&nbsp;itself acknowledged that the issue required an examination of the particular facts.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams v. I.B. Fischer Nevada</i>, 794 F. Supp. 1026, 1030 (D. Nev. 1992).&nbsp;&nbsp;</span>Likewise<span style="box-sizing: border-box;">, some have opined that the Supreme Court&rsquo;s subsequent decision in&nbsp;<i style="box-sizing: border-box;">American Needle v. National Football League</i>, 560 U.S. 183 (2010), makes it more difficult for franchisors to argue that the franchise system is a single economic enterprise.&nbsp;&nbsp;<i style="box-sizing: border-box;">See&nbsp;</i>B. Block &amp; M. Ridings,&nbsp;<i style="box-sizing: border-box;">Antitrust Conspiracies in Franchise Systems After American Needle</i>, Franchise L.J., Vol.&nbsp;30, No.&nbsp;4 (Spring 2011).&nbsp; In&nbsp;<i style="box-sizing: border-box;">American Needle</i>, the Supreme Court held that the National Football League was not a single enterprise for antitrust purposes regarding certain licensing activities.&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 186.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Thus, while certainly authority exists to support the argument that franchisors cannot conspire with their franchisees in violation of Section 1, the defense may not be successful in every case.&nbsp; And as noted, developing that defense may create evidence or admissions that could be used to support a joint employer argument that could create legal risks for franchisors in other contexts.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Potential Joint Employer Liability</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">There are numerous laws that recognize that an employee can&nbsp;</span>be&nbsp;<span style="box-sizing: border-box;">simultaneously employed by more than one employer.&nbsp; This is referred to as joint or co-employment.&nbsp; If a franchisor is found to be the joint employer of the employees of its franchisee, it could be exposed to liability for, among other things: benefits under the franchisor&rsquo;s benefit plans; Occupational Safety and Health Act (&ldquo;OSHA&rdquo;) violations; violations of the National Labor Relations Act (&ldquo;NLRA&rdquo;); violations of the Fair Labor Standards Act (&ldquo;FLSA&rdquo;); violations of state and federal employment practices statutes; and violations of numerous state laws, depending upon the state.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Franchisors have had notable success in defeating claims that they are a joint employer of their franchisees&rsquo; employees.&nbsp; For example, in&nbsp;<i style="box-sizing: border-box;">Pope v. Espeseth, Inc.</i>, 228 F. Supp. 3d 884, 889-91 (W.D. Wis. 2017), the court held that the franchisor was not a joint employer of the franchisees&rsquo; employees under the FLSA.&nbsp; The court found, among other things, that the franchisor did not exercise control over the franchisees&rsquo; employees&rsquo; working conditions.&nbsp;&nbsp;<i style="box-sizing: border-box;">See also Ochoa v. McDonald&rsquo;s Corp.</i>, 133 F. Supp. 3d 1228, 1235-38 (N.D. Cal. 2015) (franchisor was not joint employer of franchisees&rsquo; employees because, among other things, it did not exercise requisite control of their wages, hours or working conditions).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">But it is difficult to predict whether a joint employer relationship exists.&nbsp; First, the tests vary depending upon the law or statute at issue.&nbsp;&nbsp;<i style="box-sizing: border-box;">Compare Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB No. 156, slip op. at 6 (Dec. 14, 2017),<i style="box-sizing: border-box;">vacated on other grounds by Hy-Brand Industrial Contractors, Ltd.</i>, 366 NLRB No.&nbsp;26 (Feb.&nbsp;26, 2018) (applying common law agency principles)&nbsp;<i style="box-sizing: border-box;">with</i>&nbsp;<i style="box-sizing: border-box;">Barfield v. New York City Health and Hospitals</i>, 537 F.3d 132, 141-43 (2d Cir. 2008) (applying an economic realities test under the FLSA).&nbsp; And even under the same law, the courts sometimes apply different tests depending upon the jurisdiction.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Hall v. DirecTV, LLC</i>, 846 F.3d 757, 766 (4th Cir. 2017) (noting that &ldquo;courts in various jurisdictions within this Circuit and throughout the country [apply] numerous, distinct, multifactor joint employment tests&rdquo; under the FLSA).&nbsp;&nbsp;</span>Likewise,<span style="box-sizing: border-box;">&nbsp;even under the NLRA, the law has fluctuated between a direct and indirect control test.&nbsp;<i style="box-sizing: border-box;">See</i>&nbsp;<i style="box-sizing: border-box;">Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB No. 156, slip op. at 1-8 (Feb.&nbsp;26, 2018).</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">The joint employer tests are also ambiguous.&nbsp; Most of the tests require consideration of multiple factors, no one of which is controlling, and require the decision-maker to consider the &ldquo;totality of circumstances.&rdquo;&nbsp;<i style="box-sizing: border-box;">&nbsp;See, e.g., Barfield</i>, 537 F.3d at 141-42 (noting that the FLSA multifactor test considers the totality of the circumstances).&nbsp;&nbsp;</span>T<span style="box-sizing: border-box;">he courts recognize that this is an inherently ambiguous test that at times leads to arbitrary results.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Salinas v. Commercial Interiors, Inc.</i>, 848 F.3d at 137 (&ldquo;[L]ike other open-ended balancing tests,&rdquo; this universe of nebulous factors test has &ldquo;yield[ed] unpredictable and at times arbitrary results&rdquo;) (internal citations and quotations omitted).</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">But in all of these multifactor tests, one of the factors considered is whether the potential joint employer has the right to, or exercises, &ldquo;control.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">See, e.g., Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB 156, slip op. at 35&nbsp; (&ldquo;requires proof that the alleged joint-employer entities have actually&nbsp;<i style="box-sizing: border-box;">exercised</i>&nbsp;joint control over essential employment terms&rdquo;) (emphasis in original);&nbsp;<i style="box-sizing: border-box;">Zheng v Liberty Apparel Co.</i>, 355 F.3d 61, 72 (2d Cir. 2003) (listing factors to consider to ascertain whether alleged joint employer has &ldquo;functional control over workers&rdquo; for purposes of the FLSA).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Certainly, the case can be made that the control necessary to establish the single enterprise defense is not the type of control necessary to support a joint employer finding.&nbsp; For example, a parent-subsidiary relationship is sufficient to establish the single enterprise defense,&nbsp;<i style="box-sizing: border-box;">see, e.g., Copperweld</i>, 467 U.S. at 777, but insufficient to show a joint employer relationship,&nbsp;<i style="box-sizing: border-box;">see Anwar v. Dow Chemical Co.</i>, 876 F.3d 841, 852-53 (6th Cir. 2017) (parent company not joint employer of subsidiary&rsquo;s employees).&nbsp;&nbsp;</span>T<span style="box-sizing: border-box;">o establish the single enterprise defense in the franchise context, the franchisor will have to show that it has substantial control over the franchisees&rsquo; operations.&nbsp; For example, in&nbsp;<i style="box-sizing: border-box;">Williams</i>, the court found that the franchisor exercised &ldquo;almost complete control&rdquo; over all decisions affecting the operation of the restaurants.&nbsp; 794 F. Supp. at 1032.&nbsp; Whether a franchisor can make a similar showing without creating evidence of joint employment is not risk free.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Other Defenses&nbsp;</span>T<span style="box-sizing: border-box;">o&nbsp;</span>T<span style="box-sizing: border-box;">he Antitrust No-Hire Claims May Be Strong</span></span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Normally, an agreement will violate Section 1 of the Sherman Act only if it has an unreasonably adverse effect on competition.&nbsp; The so-called &ldquo;rule of reason&rdquo; standard requires courts, in most cases, to analyze the effect of the agreement on competition in a relevant market and determine whether its anticompetitive effects outweigh its procompetitive benefits in that market.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally Atlantic Richfield Co. v. U.S.A. Petroleum Co.</i>, 495 U.S. 328, 342 (1990).&nbsp; Judicial experience with certain types of agreements, however, has demonstrated that such agreements are so plainly or manifestly anticompetitive that no elaborate study is necessary.&nbsp; Such agreements are conclusively presumed to be unreasonable and are deemed unlawful&nbsp;<i style="box-sizing: border-box;">per se</i>.&nbsp;&nbsp;<i style="box-sizing: border-box;">See, e.g., Business Electronics Corp. v. Sharp Electronics, Corp.</i>, 485 U.S. 717, 723-24 (1988).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Rule&nbsp;</span>O<span style="box-sizing: border-box;">f Reason Analysis Should Apply</span></span></u></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">The rule of reason should apply in determining the antitrust legality of no-hire agreements in the franchise setting.&nbsp; First, the restraint is not naked but rather ancillary to the franchise agreement.&nbsp; In&nbsp;<i style="box-sizing: border-box;">Williams,</i>&nbsp;the agreement&rsquo;s purpose was to prevent raiding after time and expense had been invested in training.&nbsp; 794 F. Supp. at 1092.&nbsp; Ancillary restraints are judged under the rule of reason.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally Eichorn v. AT&amp;T Corp.</i>, 248 F.3d 131, 142-46 (3d Cir. 2001) (ancillary agreements are judged under the rule of reason).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Second, since the agreements are limited to a single brand, they should be viewed as an intrabrand restraint imposed vertically by the franchisor to encourage training by franchisees to assist in competing against other franchise brands.&nbsp; Interbrand, as opposed to intrabrand, competition is &ldquo;the primary concern of antitrust law.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Continental T.V. v. GTE Sylvania Inc.</i>, 433 U.S. 36, 52 n.19 (1977).&nbsp; And nonprice vertical restraints that impose limitations on intrabrand competition are normally judged under the rule of reason.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally</i>&nbsp;ABA Section of Antitrust Law, Antitrust Law Developments, 152-57 (8th ed. 2017) (&ldquo;Developments&rdquo;);&nbsp;<i style="box-sizing: border-box;">see also Bogan v. Hodgkins</i>, 166 F.3d 509, 515 (2d Cir. 1999) (refusing to apply&nbsp;<i style="box-sizing: border-box;">per se</i>&nbsp;rule to antitrust challenge to no-switching agreement).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Individual Franchisors Do Not Have the Power&nbsp;</span>T</span><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">o Suppress</span><br style="box-sizing: border-box;" /> <u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Wages&nbsp;</span>I<span style="box-sizing: border-box;">n&nbsp;</span>T<span style="box-sizing: border-box;">he Market&nbsp;</span>F<span style="box-sizing: border-box;">or Restaurant Manager Jobs</span></u></span></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Under the rule of reason, courts usually require &ldquo;proof of a defendant&rsquo;s market power as a prerequisite for a plaintiff seeking to satisfy its burden of proving likely anticompetitive effect.&rdquo;&nbsp; Developments at 71.&nbsp; Market power is defined as the ability to raise prices above those that would be charged in a competitive market.&nbsp;<i style="box-sizing: border-box;">Id</i>. at 70-71.&nbsp; In the wage suppression context, that translates into the capability of a defendant to lower wages below those that would be paid in a competitive market.&nbsp; Courts rarely find that market power exists if a defendant&rsquo;s market share is under 30 percent.&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 71.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">To prove that a defendant has market power, the plaintiff must normally establish a relevant market, both in terms of the product involved and the geographic scope.&nbsp; The product market must include all products that are reasonably interchangeable.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally id</i>. at 583-88.&nbsp; Significantly, &ldquo;relevant markets generally cannot be limited to a single manufacturer&rsquo;s products.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 591.&nbsp; In the franchise no-hire cases, that means that the product market must include jobs provided by all employers who offer positions that are reasonable substitutes for one another.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="color:#696969;"><span style="box-sizing: border-box;">The plaintiffs in the pending franchise no-hire cases claim that specialized training renders jobs at other franchises unreasonable substitutes.&nbsp;&nbsp;<i style="box-sizing: border-box;">E.g., Ion v. Pizza Hut, LLC</i>, Case No.&nbsp;4:17-cv-00788, Complaint at &para;&para;&nbsp;80-81,&nbsp;<i style="box-sizing: border-box;">available at</i></span></span><a href="https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf" style="box-sizing: border-box; color: rgb(0, 116, 211);"><span style="color:#696969;">https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf</span></a><span style="color:#696969;"><span style="box-sizing: border-box;">&nbsp;(last visited on 4/10/2018).&nbsp; Thus, the plaintiffs are necessarily contending that the relevant product market is limited only to jobs at the defendant franchisor&rsquo;s franchisees.&nbsp; But to accept this argument the court would have to adopt the disfavored single brand market, and plaintiffs have failed to prevail on similar arguments in at least three other no-hire cases.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Eichorn</i>, 248 F.3d at 148 (rejecting argument that relevant market was limited to jobs at AT&amp;T and its affiliates);&nbsp;<i style="box-sizing: border-box;">Bogan</i>, 166 F.3d at 516 (affirming summary judgment in a no-switching agreement case because plaintiffs were unable to show that the &ldquo;specialized training and expertise&rdquo; was sufficient to create an antitrust submarket consisting of agent positions provided by a single insurance company);&nbsp;</span></span></span></span><span style="color:#696969;"><em style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">In re: Compensation of Managerial &amp; Technical Employees Antitrust Litigation </em><span style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">(&ldquo;</span><em style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">CMT</em><span style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">&rdquo;), No. 02-CV-2924 (GEB), 2008 U.S. Dist. LEXIS 63633 at *29-31 (D.N.J. Aug.&nbsp;20, 2008) (granting summary judgment to defendants because plaintiffs had not shown that the relevant market was limited to jobs in the oil and petrochemical industry).</span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">It is also highly unlikely that a plaintiff can show that any single franchisor possesses market power (<i style="box-sizing: border-box;">i.e.,&nbsp;</i>the ability to suppress wages) in the market for supervisor jobs, or even for manager or supervisor positions limited to&nbsp;</span>such establishments.&nbsp;<span style="box-sizing: border-box;">Certainly, no franchisor possesses 30 percent or more of either of those markets.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Plaintiffs may try to avoid this outcome by arguing that they can demonstrate actual anticompetitive effects resulting from the no-hire agreements with direct evidence, making a showing of market power unnecessary.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally&nbsp;</i>Developments at 68-70 (noting that some cases have acknowledged that proof of actual competitive harm can obviate the need to show market power even when restraints are not naked restrictions on price or output).&nbsp; But such a showing is difficult to make and has been rejected in at least one wage suppression case involving the exchange of wage information because the plaintiffs were unable to show that the relevant market was limited to jobs in the oil and petrochemical industry.&nbsp;&nbsp;<i style="box-sizing: border-box;">See CMT</i>, 2008 U.S. Dist. LEXIS 63633 at *23-26;&nbsp;<i style="box-sizing: border-box;">see also</i>Developments at 68-70 (&ldquo;attempts to prove substantial, actual anticompetitive effects have often been unsuccessful,&rdquo; citing cases).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">For these reasons, franchisors have very strong arguments that no-hire agreements limited to their own franchisees that are limited in duration and designed to create incentives for franchisees to provide training do not violate the antitrust laws.&nbsp; Thus, franchisor defendants in these cases should carefully consider whether it is necessary to pursue the single enterprise defense and risk creating evidence that could support a joint employer argument in other contexts.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Conclusion</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">While each case will turn on its own facts, franchisors may have strong defenses available to them to resist antitrust challenges to their no-hire agreements.&nbsp; One of those defenses is the single enterprise defense, but pursuing that defense may create evidence that could be used against the franchisor in a subsequent joint employer claim.&nbsp; And, it is difficult to predict the potential adverse effects of creating that evidence given the current ambiguity and evolving nature of the joint employer doctrine.&nbsp; Thus, before raising the single enterprise defense, franchisors should carefully analyze the strength of that and other available defenses to the no-hire claim and weigh that against the risk of a joint employer claim.</span></span></span></span></p> http://www.seyfarth.com:80/publications/EL041718 Beyond Title III: Website Accessibility Lawsuits Filed Alleging Inaccessible Online Employment Applications http://www.seyfarth.com:80/publications/EL041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law &ndash; employment law &ndash; California&rsquo;s Fair Employment and Housing Act.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/beyond-title-iii-website-accessibility-lawsuits-filed-alleging-inaccessible-online-employment-applications/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/mandelkersyfywire041718 Lawrence Mandelker quoted in SyFy Wire http://www.seyfarth.com:80/news/mandelkersyfywire041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Lawrence Mandelker was quoted in an April 17 story from SyFy Wire, &quot;What would Batman and Iron Man pay in taxes?&quot; Both have inherited considerable wealth, which Mandelker says can affect what they&#39;ve owed to the states and feds. You can read the <a href="http://www.syfy.com/syfywire/what-would-batman-and-iron-man-pay-in-taxes">full article here</a>.</p> http://www.seyfarth.com:80/news/gurelllaw360041718 Marc Gurell quoted in Law360 http://www.seyfarth.com:80/news/gurelllaw360041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Marc Gurell was quoted in an April 17 story from Law360, &quot;Steel Tariff Fears Wreaking Havoc On Construction Market.&quot; Gurell said that aluminum and steel tariffs would logically increase the costs of construction in markets that rely on such materials, thereby affecting profitability in the real estate industry.</p> http://www.seyfarth.com:80/news/lazarslate041618 Bart Lazar quoted in Slate http://www.seyfarth.com:80/news/lazarslate041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in an April 16 story from Slate, &quot;Before Facebook, There Was GeoCities,&quot; on how the FTC&rsquo;s 1998 case against an early web pioneer laid the groundwork for data privacy discussions today. Lazar, who defended GeoCities, credits this case with having a big influence on the development of the online privacy domain moving forward. You can read the <a href="https://slate.com/technology/2018/04/the-ftcs-1998-case-against-geocities-laid-the-groundwork-for-facebook-debates-today.html">full article here</a>.</p> http://www.seyfarth.com:80/news/yangncr041618 Simon Yang quoted in the Northern California Record http://www.seyfarth.com:80/news/yangncr041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Simon Yang was quoted in an April 16 story from the Northern California Record, &quot;California legislators seek to reform &#39;controversial&#39; Private Attorney General Act.&quot; Yang said that, while reform is most certainly needed, the current system protects the Act in a way that reform will be difficult to enact. You can read the <a href="https://norcalrecord.com/stories/511391999-california-legislators-seek-to-reform-controversial-private-attorney-general-act">full article here</a>.</p> http://www.seyfarth.com:80/news/lacortenews041618 Andrew Boutros and Jay Schleppenbach quoted in LaCorte News http://www.seyfarth.com:80/news/lacortenews041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Andrew Boutros and Jay Schleppenbach were quoted in an April 16 story from LaCorte News, &quot;Foreign agent registrations see sharp increase amid special counsel&rsquo;s Russia probe.&quot; The findings are consistent with a new analysis from Boutros and Schleppenbach, who recently published a piece titled, &ldquo;Department of Justice &amp; Congress Signal Possibility of Increased Foreign Agents Registration Act Enforcement in 2018 and Beyond&rdquo; for Bloomberg Law. Boutros said that Sen. Grassley&rsquo;s push to expand and beef up the Foreign Agents Registration Act (FARA) suggests that maybe this is the beginning of a new renaissance in the government bringing FARA charges. You can read the <a href="https://www.lacortenews.com/2018/04/16/foreign-agent-registrations-see-sharp-increase-amid-special-counsels-russia-probe/">full article here</a>.</p> http://www.seyfarth.com:80/news/kayswglt041318 Danielle Kays interviewed by WGLT http://www.seyfarth.com:80/news/kayswglt041318 Fri, 13 Apr 2018 00:00:00 -0400 <p> Danielle Kays was interviewed April 13th by WGLT, &quot;Sexual Harassment, Other Workplace Issues Are Focus Of Employment Law Summit.&quot; Kays discussed the McLean County Bar Association, Chamber of Commerce and Bloomington-Normal Human Resource Council&#39;s upcoming summit on employment law. You can listen to the <a href="http://wglt.org/post/sexual-harassment-other-workplace-issues-are-focus-employment-law-summit#stream/0">full interview here</a>.</p> http://www.seyfarth.com:80/publications/MA041318-LE If Pain, Yes Gain—Part XLVI: New Jersey Becomes Tenth State to Pass Paid Sick Leave Law http://www.seyfarth.com:80/publications/MA041318-LE Fri, 13 Apr 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Yesterday, the New Jersey Senate joined the state Assembly in passing a bill that would impose statewide paid sick leave obligations on private employers and, notably, preempt all current and future municipal paid sick leave ordinances. The final step before New Jersey becomes the tenth state with a statewide sick leave mandate is for Governor Phil Murphy to sign the bill.&nbsp; He is expected to do so in the coming days. Once signed, Garden State employers will have 180 days until the paid sick leave requirements begin.</em></p> <p> After years of frequent paid sick leave symptoms, including passing 13 municipal paid sick leave ordinances and often exploring the <a href="http://www.seyfarth.com/publications/MA122815-LE">possibility</a> of a statewide paid sick leave standard, New Jersey is on the verge of finally catching the nation&rsquo;s paid sick leave bug and becoming the latest state to enact a statewide paid sick leave law. &nbsp;The updated prognosis follows yesterday&rsquo;s successful New Jersey Senate vote on Bill A1827 (the &ldquo;Bill&rdquo; or the &ldquo;PSL Law&rdquo;)&mdash;a statewide sick leave mandate that would require employers to provide employees in New Jersey with paid sick leave.&nbsp; The Senate vote followed the example set by the New Jersey Assembly, which <a href="http://www.seyfarth.com/publications/MA032818-LE">voted on and passed the Bill last month</a>.</p> <p> The Bill now awaits Governor Phil Murphy&rsquo;s signature.&nbsp; Unlike his predecessor, New Jersey employers should not expect that Governor Murphy will cure their looming sick leave woes as he is expected to sign the Bill in the near future.&nbsp; Once the Bill is signed, the Garden State will officially be home to the country&rsquo;s tenth paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The Bill will take effect on the 180th day following its enactment. Assuming it is signed by Governor Murphy before the end of the month, New Jersey employers&rsquo; paid sick leave obligations will begin sometime in mid to late-October 2018.&nbsp;</p> <p> Notably, and after some potential uncertainty due to a related, but not identical Senate sick leave bill, the new state PSL Law will preempt all existing and future municipal sick leave ordinances. In other words,&nbsp; when the PSL Law goes into effect later this year, it will preempt the state&rsquo;s 13 existing municipal paid sick leave ordinances.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; Thus, while the introduction of a new statewide PSL Law will impose sick leave burdens on numerous businesses previously immune to such standards, a silver lining for employers with operations in any of the 13 New Jersey sick leave municipalities is that they have avoided a potential sick leave patchwork.</p> <p> Here are some highlights of the New Jersey PSL Law:</p> <ul> <li> <strong>Employee Eligibility:</strong> &ldquo;Employee&rdquo; is defined broadly and means &ldquo;any individual engaged in service to an employer in the business of the employer for compensation.&rdquo; &nbsp;The PSL Law excludes certain employees in the construction industry who are under a collective bargaining agreement, certain per diem health care employees, and certain public employees.</li> <li> <strong>Covered Employer: </strong>&ldquo;Employer&rdquo; is also broadly defined and includes persons or entities that employ employees in New Jersey.</li> <li> <strong>Accrual, Usage and Carryover:</strong> <ul> <li> <strong>Start of Accrual: </strong>The PSL Law states that sick leave accrual will start on the later of the law&rsquo;s effective date or the date the employee&rsquo;s employment begins.&nbsp;</li> <li> <strong>Usage Waiting Period: </strong>Employees are entitled to begin using paid sick leave on the 120th calendar day after the start of their employment.&nbsp; This means that existing employees who have been employed for at least 120 calendar days at the time the PSL Law goes into effect will be entitled to use paid sick leave as it accrues.</li> <li> <strong>Accrual Rate and Cap: </strong>All employees working for an employer in New Jersey are entitled to accrue one hour of sick leave for every 30 hours worked, up to 40 hours per year.&nbsp;</li> <li> <strong>Usage and Carryover Caps: </strong>An employer is not required to permit employees to use more than 40 hours of paid sick leave in any benefit year or carry over more than 40 hours of unused sick leave at year-end.</li> </ul> </li> <li> <strong>Frontloading:</strong> While an employer may frontload an employee with the full amount of earned sick leave on the first day of each benefit year to avoid the accrual process, it does not appear that the PSL Law allows employers with a frontloading system to adopt a &ldquo;use it or lose it&rdquo; approach for unused sick leave at the end of the year. &nbsp;The PSL Law states that if the employer chooses to frontload the required amount of sick leave at the start of each year, it must either <strong>(1) </strong>pay the employee for the full amount of unused earned sick leave in the final month of the benefit year; or <strong>(2)</strong> permit the employee to carry over unused sick leave to the next benefit year.</li> <li> <strong>Payout at Year-End: </strong>Employers can, but are not required to, offer employees a payment of unused earned sick leave in the final month of the employer&rsquo;s benefit year. The employee then has 10 calendar days from the date of the offer to either <strong>(1)</strong> accept the payment in full, <strong>(2)</strong> accept the payment for 50 percent of the amount of unused earned sick leave, or <strong>(3)</strong> decline the payment. If the employee chooses options (2) or (3), up to 40 hours of unused, unpaid earned sick leave will carry over to the next benefit year.</li> <li> <strong>Reasons for Use:&nbsp; </strong>An employee must be permitted to use earned sick leave for any of the following reasons: <ul> <li> For diagnosis, care, or treatment of, or recovery from, an employee&rsquo;s mental or physical illness, injury or other adverse health condition or for preventive medical care for the employee;</li> <li> For the employee to aid or care for a covered family member during diagnosis, care, or treatment of, or recovery from, the family member&rsquo;s mental or physical illness, injury or adverse health condition, or during preventive medical care for the family member;</li> <li> Certain absences resulting from the employee or a covered family member&rsquo;s status as a victim of domestic or sexual violence;</li> <li> Closures of the employee&rsquo;s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee&rsquo;s family member in need of care by the employee, would jeopardize the health of others;</li> <li> For time needed by the employee to attend his/her child&rsquo;s school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child&rsquo;s education, or to attend a meeting regarding care provided to the child in connection with the child&rsquo;s health conditions or disability.</li> </ul> </li> <li> <strong>Family Member:</strong> Covered family member includes: <strong>(1) </strong>child; <strong>(2) </strong>grandchild; <strong>(3)</strong> sibling; <strong>(4)</strong> spouse; <strong>(5) </strong>domestic partner; <strong>(6) </strong>civil union partner;<strong> (7)</strong> parent; <strong>(8)</strong> grandparent; <strong>(9)</strong> spouse, domestic partner, or civil union partner of a parent or grandparent of the employee; <strong>(10)</strong> a sibling of a spouse, domestic partner, or civil union partner of the employee; or <strong>(11)</strong> any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. A number of these terms have definitions under the PSL Law.</li> <li> <strong>Use of PTO:</strong> The PSL Law states that employers can use non-sick paid leave programs (i.e., PTO, vacation, etc.) for compliance if the leave is fully paid, accrues at a sufficient rate, and can be used for the same purposes set forth under the law and &ldquo;in the manner provided&rdquo; by the law.</li> <li> <strong>Payment of Sick Leave:</strong> Employers will be required to pay an employee for earned sick time at the same rate of pay and with the same benefits as the employee normally earns, except such payment must not be less than the minimum wage.</li> <li> <strong>Increments of Use:</strong> Unlike many existing paid sick leave laws and ordinances, the PSL Law states than an employer may choose the increments in which its employees must use paid sick leave, limited only by the number of hours the employee would have worked. In other words, the increment of use cannot exceed the number of hours the employee was scheduled to work and would have worked had he/she not used sick leave.</li> <li> <strong>Notice to Employer: </strong> <ul> <li> <strong>Foreseeable Absences: </strong>For foreseeable sick leave absences (i.e., a scheduled doctor&rsquo;s appointment), employers may require employees to provide advance notice of their intention to use paid sick leave, up to seven days prior to the date the leave is expected to begin, and the expected duration of the leave. Employers can require employees to make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the employer&rsquo;s operations.&nbsp; Notably, the PSL Law also allows employers to prohibit employees from using earned sick leave for foreseeable absences on certain dates, and states that employers may require employees to provide reasonable documentation if they have an unforeseeable need for sick leave on those dates.</li> <li> <strong>Unforeseeable Absences: </strong>For unforeseeable sick leave absences, employers can require that employees provide notice of their intention to use sick leave as soon as practicable.&nbsp; The PSL Law expressly states that employers that require notice for unforeseeable sick leave absences must notify employees of this requirement.</li> </ul> </li> <li> <strong>Documentation: </strong>Employers may require employees to submit reasonable documentation if they use paid sick leave for three or more consecutive days, or, as noted above, if the employee uses sick leave for an unforeseeable absence on certain dates that the employer does not permit employees to take sick leave for foreseeable absences. The PSL Law provides examples of what is considered reasonable documentation based on the nature of the protected absence.</li> <li> <strong>Collective Bargaining Agreements (CBA):</strong> The PSL Law states it does not apply to employees covered by a CBA in effect at the time the PSL law goes into effect until the CBA expires. The PSL law further notes that employees or employee representatives may waive the rights or benefits provided under the law during the negotiation of a CBA.</li> <li> <strong>Retaliation: </strong>The PSL Law prohibits any retaliatory personnel action or discrimination against an employee because the employee requests or uses paid sick leave in accordance with the law or, and significantly, the employer&rsquo;s own earned sick leave policy.</li> <li> <strong>Notice and Posting: </strong>The PSL Law requires that employers provide notice to employees and display a poster of employees rights under the law. Specifically, employers must provide each employee with a written copy of the notice <strong>(1)</strong> not later than 30 days after the state issues the model notice, <strong>(2)</strong> at the time of the employee&rsquo;s hiring, if he/she is hired after the model notice is issued, and <strong>(3)</strong> at any time when first requested by the employee.&nbsp;</li> <li> <strong>Recordkeeping: </strong>Employers must maintain certain paid sick leave records for a period of at least five years.&nbsp;</li> <li> <strong>Termination of Employment: </strong>Employers are not required to cash out any earned, unused paid sick leave upon separation of employment. However, if an employee is rehired by the employer within six months of separation, any accrued, unused paid sick leave must be reinstated to the employee.</li> </ul> <p> Employers should take steps now to comply with the requirements of PSL Law before the law&rsquo;s expected mid-October 2018 effective date. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the PSL Law.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the PSL Law.</li> <li> Monitor the New Jersey Department of Labor and Workforce Development website for information on the PSL Law, including a model poster/notice and proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> We will continue to monitor and provide updates on New Jersey paid sick leave developments as the effective date approaches and any changes that take place thereafter.&nbsp;</p> <p> As the paid sick leave landscape continues to expand, 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 nine states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>; and (9) <a href="http://www.seyfarth.com/publications/MA020918-LE">Maryland</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The Maryland statewide paid sick leave law went into effect on February 11, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The New Jersey municipalities with current paid sick leave ordinances are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; &nbsp;(8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth, and (13) New Brunswick.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/TS041318 Franchise “No-Hire” Agreement Class Actions And The Single Enterprise Defense http://www.seyfarth.com:80/publications/TS041318 Fri, 13 Apr 2018 00:00:00 -0400 <p> This post originally appeared on the Workplace Class Action blog.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/restrictive-covenants/franchise-no-hire-agreement-class-actions-and-the-single-enterprise-defense/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/eba041218 Nicole Bogard, Diane Dygert, Peter Varney and Joy Sellstrom authored an article in Employee Benefit Adviser http://www.seyfarth.com:80/publications/eba041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Nicole Bogard, Diane Dygert, Peter Varney and Joy Sellstrom authored an April 12 article in Employee Benefit Adviser, &quot;IRS retroactively reduces HSA contribution limit.&quot; You can read the <a href="https://www.employeebenefitadviser.com/opinion/irs-retroactively-reduces-hsa-contribution-limit">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM041218-LE DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/OMM041218-LE Thu, 12 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions.&nbsp; While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal.&nbsp; Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace.&nbsp; Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.</em></p> <p> In January 2018, Makan Delrahim, the Assistant Attorney General for the Antitrust Division, said that the Department Of Justice (&ldquo;DOJ&rdquo;) had been very active in reviewing potential antitrust violations resulting from agreements among employers not to compete for workers.&nbsp; (We previously reported on this announcement <a href="http://www.seyfarth.com/publications/MA012518-LE">here</a> and <a href="http://www.seyfarth.com/dir_docs/publications/PoachEmployeesPublishWCR.PDF">here</a>.)&nbsp; He said that he was &ldquo;shocked&rdquo; at how many there were and that in the coming months there would be announcements of enforcement actions.&nbsp; He also mentioned that if the conduct occurred or continued after issuance of the October 2016 joint DOJ and Federal Trade Commission (&ldquo;FTC&rdquo;) Antitrust Guidance for Human Resource Professionals (the &ldquo;Joint Guidance&rdquo;), the DOJ may treat those agreements as criminal.</p> <p> On April 3, 2018, the first of these announcements was made.&nbsp; <em>See</em> &ldquo;Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees,&rdquo; available <a href="http://www.justice.gov/opa/pr/justice-department-requires-knorr-and-wabtec-terminate-unlawful-agreements-not-compete">here</a> (&quot;News Release&rdquo;).&nbsp; The DOJ advised that it filed a complaint in which it alleged that Knorr-Bremse AG (&ldquo;Knorr&rdquo;), Westinghouse Air Brake Technologies Corporation (&ldquo;Wabtec&rdquo;) and Faiveley Transport S.A., before it was acquired by Wabtec, entered into agreements not to compete for each other&rsquo;s employees (&ldquo;no-poach&rdquo; agreements).&nbsp; The DOJ contends that these were naked agreements &ndash; <em>i.e.,</em> not reasonably necessary for a separate, legitimate business transaction or collaboration &ndash; and amounted to <em>per se</em> violations of Section 1 of the Sherman Act.&nbsp; With the Complaint DOJ also filed a Competitive Impact Statement; Explanation of Consent Decree; and Stipulation and Proposed Final Judgment.&nbsp; (<em>See</em> News Release.)</p> <p> As noted, Mr. Delrahim stated that there were a number of these investigations ongoing, and in the News Release said that this Complaint was &ldquo;part of a broader investigation by the Antitrust Division into naked agreements not to compete for employees.&rdquo;&nbsp; So more of these announcements can be expected, and some may be announcements of criminal prosecutions.</p> <p> <strong>Many Employees Are Unaware That the Antitrust Laws Apply to the Employment Market</strong></p> <p> Often some business executives and human resource professionals are unaware that the antitrust laws apply to the workplace.&nbsp; Executives who would never consider discussing prices with their competitors are unaware that discussing wages or salaries could have antitrust risks.&nbsp; Similarly, employee covenants not to compete are commonplace and many executives have them in their own employment contracts.&nbsp; So unless they have received specific training, an executive may be unaware of the antitrust risks associated with no-poaching agreements.&nbsp; And up until recently even the most elaborate and detailed antitrust compliance policies that strictly prohibited discussing prices rarely addressed the exchange of wage and salary information or prohibited no-poaching agreements.</p> <p> But the DOJ and FTC have now greatly ratcheted up their enforcement efforts with respect to alleged restraints in the employment market.&nbsp; And with the DOJ and FTC taking the position that naked no-poaching agreements are <em>per se</em> unlawful and subject to criminal prosecution, the antitrust risks have been greatly increased &mdash; not to mention the costly class actions that are likely to follow any settlement with the DOJ.</p> <p> <strong>Employers Should Investigate and Implement Compliance Programs</strong></p> <p> Thus, employers can no longer ignore the risk.&nbsp; If they have not already done so, employers should consider:</p> <ol> <li> Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information; or whether it has entered into any no-poach agreements.&nbsp; The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.&nbsp; Also, if it is discovered that the company has engaged in any &ldquo;naked&rdquo; wage-fixing or no-poaching agreements on or after October&nbsp;25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.</li> <li> Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.&nbsp; Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.&nbsp; Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.&nbsp; These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.</li> </ol> http://www.seyfarth.com:80/publications/OMM041218-LIT States Moving To Fill Perceived Void in CFPB Enforcement http://www.seyfarth.com:80/publications/OMM041218-LIT Thu, 12 Apr 2018 00:00:00 -0400 <div> In response to &ldquo;the void left by the Trump Administration&rsquo;s pullback of the [CFPB],&rdquo; the New Jersey Attorney General recently <a href="http://www.nj.gov/governor/news/news/562018/approved/20180327c_newleadership.shtml">announced</a> that Paul R. Rodriguez will be serve at the Director of the New Jersey Division of Consumer Affairs, the state&rsquo;s lead consumer protection agency. Mr. Rodriguez will serve as the Acting Director of the Division beginning on June 1, 2018, until he is confirmed by the New Jersey Senate. This appointment fulfills one of Governor Phil Murphy&rsquo;s promises to create a &ldquo;state-level CFPB&rdquo; in New Jersey.</div> <div> &nbsp;</div> <div> Several other state attorneys general, including those in California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, North Carolina, Oregon, Vermont, Virginia, and Washington, have <a href="http://www.seyfarth.com/dir_docs/publications/State_AGs_Announcement_re_CFPB.pdf">announced</a> that they intend to fill any void resulting from leadership changes at the CFPB by continuing to vigorously enforce federal consumer protection laws, as well as the consumer protection laws of their respective states. This sentiment was memorialized in a December 14, 2017, letter from the attorneys general to President Trump expressing their support for the CFPB&rsquo;s mission and their disapproval of Mick Mulvaney&#39;s appointment as CFPB Acting Director.&nbsp;</div> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor and report on this potential state-level CFPB formation trend and related enforcement activity.&nbsp;</div> http://www.seyfarth.com:80/publications/FE041218 Why “Future Proofing” Is a Myth http://www.seyfarth.com:80/publications/FE041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> In this environment, there is a soothsaying comfort in taking measures that might &ldquo;future proof&rdquo; your organisation from the potentially terrifying effects of change and disruption.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/4/11/why-future-proofing-is-a-myth">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD041218 States Moving To Fill Perceived Void in CFPB Enforcement http://www.seyfarth.com:80/publications/CCD041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> In response to &ldquo;the void left by the Trump Administration&rsquo;s pullback of the [CFPB],&rdquo; the New Jersey Attorney General recently announced that Paul R. Rodriguez will be serve at the Director of the New Jersey Division of Consumer Affairs, the state&rsquo;s lead consumer protection agency. Mr. Rodriguez will serve as the Acting Director of the Division beginning on June 1, 2018, until he is confirmed by the New Jersey Senate. This appointment fulfills one of Governor Phil Murphy&rsquo;s promises to create a &ldquo;state-level CFPB&rdquo; in New Jersey.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/04/states-moving-to-fill-perceived-void-in-cfpb-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR041218 How Will Organized Labor Reorganize? http://www.seyfarth.com:80/publications/LR041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Unions represent only 6.5% of all private sector employees. However, rather than focusing on the past and why its fortunes have declined, a more interesting question may be what organized labor is actively doing to reverse this trend.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/04/12/how-will-organized-labor-reorganize/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM041218-LE2 USCIS Completes the H-1B Cap Random Selection Process for FY 2019 http://www.seyfarth.com:80/publications/OMM041218-LE2 Thu, 12 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> USCIS completes the lottery process and received 190,098 H-1B cap petitions.</em></p> <p> On April 12, 2018, United States Citizenship and Immigration Services (USCIS) announced that it received 190,098 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2019, which begins on October 1, 2018.&nbsp; This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap.&nbsp; The number of petitions decreased slightly again this year, down from more than 199,000 petitions filed for Fiscal Year 2018.</p> <p> In addition, USCIS announced that they completed a computer-generated random selection process -- the lottery -- for all cap-subject filings received from Monday, April 2 through Friday, April 6, 2018 to determine which filings to adjudicate.&nbsp; USCIS first conducted the lottery process for H-1B petitions subject to the Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees.&nbsp; Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.&nbsp; USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/IMM041218 USCIS Completes the H-1B Cap Random Selection Process for FY 2019 http://www.seyfarth.com:80/publications/IMM041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: USCIS completes the lottery process and received 190,098 H-1B cap petitions.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/uscis-completes-the-h-1b-cap-random-selection-process-for-fy-2019/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/epdnlj041218 Camille Olson, Matthew Gagnon and Annette Tyman quoted in the National Law Journal http://www.seyfarth.com:80/news/epdnlj041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Camille Olson, Matthew Gagnon and Annette Tyman were quoted in an April 12 story from the National Law Journal, &quot;Ruling on Salary History Fuels Renewed Focus on Gender Pay Inequities.&quot; The Seyfarth attorneys, speaking on an Equal Pay Day webinar, said understanding pay discrepancies isn&rsquo;t always clear-cut.</p> http://www.seyfarth.com:80/news/launeyncr041218 Kristina Launey quoted in the Northern California Record http://www.seyfarth.com:80/news/launeyncr041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Kristina Launey was quoted in an April 12 story from the Northern California Record, &quot;Small business often hurt by serial plaintiffs in ADA violation suits, expert says,&quot; on how companies throughout California have been suffering due to the occurrence of serial plaintiffs, individuals hired to find violations of requirements under the Americans with Disabilities Act. Launey explained the challenges surrounding these types of cases in California. You can read the <a href="https://norcalrecord.com/stories/511363777-small-business-often-hurt-by-serial-plaintiffs-in-ada-violation-suits-expert-says">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP041118 Time Again to Flex Those Pecs! 2018 Edition of Cal-Pecs Book Is Here! http://www.seyfarth.com:80/publications/CP041118 Wed, 11 Apr 2018 00:00:00 -0400 <p> We&rsquo;re pleased to announce that the 2018 version of our Cal-Peculiarities: How California Employment Law is Different, your indispensable California employment law guide, is arriving next week, to coincide with our annual update Webinar on the same subject. This edition, like its predecessors, aims to help private employers understand what&rsquo;s peculiar about California employment law. In the 2018 Edition, we continue to highlight recent court decisions and legislative developments, and how they may impact you and your business.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/11/time-again-to-flex-those-pecs-2018-edition-of-cal-pecs-book-is-here/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT041118 Maine Employers Receive Little Guidance From Department of Labor on New Recreational Marijuana Law http://www.seyfarth.com:80/publications/TBT041118 Wed, 11 Apr 2018 00:00:00 -0400 <p> As previously reported here, on November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act became the first law of its kind in the nation to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/maine-employers-receive-little-guidance-from-department-of-labor-on-new-recreational-marijuana-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA041118-LE Equal Pay Day 2018: Introducing Seyfarth’s Trends and Developments in Pay Equity Litigation Report and the 2nd Annual 50-State Pay Equity Desktop Reference http://www.seyfarth.com:80/publications/MA041118-LE Wed, 11 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Seyfarth&rsquo;s Pay Equity Group is pleased to release two reference guides: the <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">2018 Trends and Developments in Pay Equity Litigation Report</a> and the <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference.</a></em></p> <p> Yesterday, April 10, 2018, was Equal Pay Day.&nbsp; While there are limitations of the statistic that underlies the event, there seems to be no limit to the focus on pay equity.&nbsp; To help understand the legal landscape as it stands today, the Seyfarth Pay Equity Group is pleased to share two guides to help enhance your compliance efforts: the <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">2018 Trends and Developments in Pay Equity Litigation Report</a> and the <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference. </a></p> <p> As we reflect on Equal Pay Day this year, and think ahead to the future, certain trends emerge:&nbsp;</p> <ul> <li> <strong>Amped-Up Pay Laws</strong>: While California, New York, and Massachusetts led the way in adopting stricter state pay equity laws, other states, including Maryland and Oregon, soon followed suit.&nbsp; The trend continues into 2018 with New Jersey and Washington passing similarly onerous laws in recent weeks. &nbsp;Laws banning employers from asking candidates for employment about prior salary is another trend.&nbsp; Laws have been enacted in nine jurisdictions and several other states are considering similar salary history bans. &nbsp;The <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference </a>outlines these changes.&nbsp;</li> <li> <strong>Litigation Uptick: </strong>Not surprisingly, concurrent with these new laws and developments, the Seyfarth Pay Equity Group has seen an increased interest by the plaintiff&rsquo;s bar in litigation under the federal Equal Pay Act and analogous state laws. The primary targets for this new wave of litigation have been firms in the legal and tech industries. Those cases are already generating new and intriguing law that has the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">Trends and Developments in Pay Equity Litigation Report</a> &nbsp;outlines these cases and trends.</li> <li> <strong>Federal Circuit Split on Pay Factors</strong>:&nbsp; Recent cases demonstrate that <a href="http://www.seyfarth.com/publications/OMM050417-LE">Federal circuit courts are split</a> on whether prior salary can be used as a factor that justifies differences in pay under the federal Equal Pay Act.&nbsp; Just yesterday, <a href="file:///C:/NRPortbl/SEY1/MBAILEY/cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-15372.pdf">the Ninth Circuit changed course </a>in an <em>en banc</em> decision, and held that an employee&rsquo;s prior salary does not constitute a &ldquo;factor other than sex&rdquo; upon which a wage differential may be based under the statutory &ldquo;catchall&rdquo; exception in the federal Equal Pay Act. &nbsp;The <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">Trends and Developments in Pay Equity Litigation Report</a> has up-to-date information on this circuit split and the new <em>Rizo</em> decision.&nbsp; Stay tuned to see this in the Supreme Court.</li> <li> <strong>A Push Towards Greater Transparency and More Structure</strong>: The benefit to having more defined pay structures and being more transparent about pay is that it often helps demystify what has long been thought to be a taboo topic.&nbsp; Structure also provides an opportunity to reassure employees about their pay, if they are paid in line with their peers, and helps employers identify any concerns that may have been unintentionally overlooked.&nbsp; Lastly, employers are weighing <a href="https://www.laborandemploymentlawcounsel.com/2016/04/pay-equity-communications-aka-what-do-i-say/">voluntary</a> or mandatory <a href="http://www.seyfarth.com/publications/PEG020817">(like in the U.K.</a>) disclosures about pay. &nbsp;This raises additional concerns and, at the same time, provides additional opportunities. We expect this trend to continue.</li> </ul> <p> All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2018 and beyond.&nbsp; We hope you find the guides useful in this journey.</p> <p> <em>Christine Hendrickson and Annette Tyman co-chair </em><a href="http://www.seyfarth.com/pay-equity-group"><em>Seyfarth&rsquo;s Pay Equity Group</em></a><em>.&nbsp; For 20 years, Seyfarth&rsquo;s Pay Equity Group has led the legal industry in fair pay analysis, thought leadership, and client advocacy.&nbsp;</em></p> http://www.seyfarth.com:80/publications/WC041018 DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/WC041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions. While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal. Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace. Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/doj-announces-first-of-a-number-of-anticipated-no-poach-enforcement-actions-what-should-employers-do-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL041018 Equal Pay Day 2018: Introducing Seyfarth’s Trends and Developments in Pay Equity Litigation Report http://www.seyfarth.com:80/publications/EL041018 Tue, 10 Apr 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/equal-pay-day-2018-introducing-seyfarths-trends-and-developments-in-pay-equity-litigation-report/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM041018-LIT Smoke Signals Out of Washington Suggest Increased Enforcement of the Foreign Agents Registration Act http://www.seyfarth.com:80/publications/OMM041018-LIT Tue, 10 Apr 2018 00:00:00 -0400 <div> Following the October 27, 2017, indictment of Paul Manafort, legal experts and savvy political actors alike expressed surprise to see charges brought under the Foreign Agents Registration Act (FARA), a seldom-used statue enacted in 1938 to combat the rise of Nazi propaganda activity in the United States. In the nearly 50 years between 1966 and 2015, only seven criminal prosecutions had ever been brought under FARA, and only one of those resulted in a conviction at trial. The charges against Manafort appear to have led to a substantial uptick of new FARA filings; since Special Counsel Robert Mueller started his probe in May 2017 through the present, approximately 100 new registrants have filed under FARA, which represents a 75 percent increase in new registrants as compared to the same period a year earlier.</div> <div> &nbsp;</div> <div> In addition, late last year Iowa&rsquo;s U.S. Senator and Chairman of the Senate Judiciary Committee, Chuck Grassley, introduced a bill that seeks to strengthen FARA by giving the Justice Department&rsquo;s FARA unit the power to issue civil investigative demands and directing the Attorney General to &ldquo;develop and implement a comprehensive strategy to improve the enforcement and administration of&rdquo; FARA. Significantly, the bill would also remove one of FARA&rsquo;s current and often-used exemptions, which allows agents for foreign entities to avoid the requirement to complete detailed FARA filings by instead filing an abbreviated form under the Lobbying Disclosure Act. Senator Grassley&rsquo;s bill follows a similar March 2017 bill introduced by New Hampshire&rsquo;s U.S. Senator Jeanne Shaheen, suggesting that there is some level of bipartisan support for FARA&rsquo;s increased enforcement.&nbsp;</div> <div> &nbsp;</div> <div> In light of these signs of increased FARA enforcement, companies and those who do business internationally would do well to consult with experienced counsel about the statute, which contains broad language that brings a wide range of entities and individuals within its scope. For example:</div> <div> &nbsp;</div> <ul> <li> With certain exemptions, FARA requires all agents of foreign principals to file registration statements with the Attorney General within ten days of becoming an agent, with periodic updates to follow.&nbsp;&nbsp;</li> <li> &ldquo;Foreign principals&rdquo; are broadly defined to include all foreign governments, political parties, people, and organizations.&nbsp;&nbsp;</li> <li> &ldquo;Agents&rdquo; encompass all those who (1) engage in political activities in the United States, (2) act as public relations representatives, (3) solicit or dispense contributions or other things of value, or (4) interact with a U.S. government agency on behalf of a foreign principal.&nbsp;&nbsp;</li> </ul> <div> &nbsp;</div> <div> Thus, companies and individuals&mdash;particularly those in media&mdash;must pay particularly close attention to whether they may have FARA-filing responsibilities of which they have previously been unaware or lackadaisical. In the alternative, to the extent a company or individual potentially falls within one of FARA&rsquo;s exemptions (and there are several), that entity or person would be well served to avoid taking a do-it-yourself approach to these intricate legal questions.&nbsp;</div> <div> &nbsp;</div> <div> For the full version of this article, which originally appeared in <em>Bloomberg Law White Collar Report</em>, 13 WCR 260 (March 30, 2018), <a href="http://www.seyfarth.com/dir_docs/publications/180402-WCCR.pdf">click here</a>.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/tymancosmo041018 Annette Tyman quoted in Cosmopolitan http://www.seyfarth.com:80/news/tymancosmo041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Annette Tyman was quoted in an April 10 story from Cosmopolitan, &quot;Everything That Needs to Change for Women to Finally Get Equal Pay.&quot; Tyman said that being upfront and willing to have a discussion about pay often helps demystify what has long been a taboo topic and provides an opportunity to fix anything that may have been overlooked. You can read the <a href="https://www.cosmopolitan.com/politics/a19725492/ways-to-fix-the-wage-gap/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarplansponsor041018 Seyfarth's Workplace Class Action Report referenced in PlanSponsor http://www.seyfarth.com:80/news/wcarplansponsor041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in an April 10 story from PlanSponsor, &quot;Fiduciary Governance Group Launched by Stradley Ronon.&quot; As laid out in a Seyfarth&#39;s Workplace Class Action Report, plaintiffs found some significant success in 2017 when it came to winning ERISA class certification. You can read the <a href="https://www.plansponsor.com/fiduciary-governance-group-launched-stradley-ronon/">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonpoliticopro041018 Marshall Babson quoted in PoliticoPro http://www.seyfarth.com:80/news/babsonpoliticopro041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 10 story from PoliticoPro, &quot;War at the NLRB Back,&quot; on a NLRB general counsel&#39;s proposal of additional restrictions on the decision-making power of regional officials, such as requiring all cases go through headquarters for initial review. Babson said that if you&#39;re talking about injecting another level of review, that could slow things down.</p> http://www.seyfarth.com:80/news/goodfellowpennrecord040918 James Goodfellow quoted in the Penn Record http://www.seyfarth.com:80/news/goodfellowpennrecord040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> James Goodfellow was quoted in an April 9 story from the Penn Record, &quot;Third Circuit gives ERISA plan administrators a win,&quot; on how the U.S. Court of Appeals for the Third Circuit affirmed a district court&rsquo;s decision to deny a claim for long-term disability benefits. Goodfellow said that it wasn&#39;t a surprise, but it was a victory for benefits plan administrators. You can read the full article here: https://pennrecord.com/stories/511381113-third-circuit-gives-erisa-plan-administrators-a-win</p> http://www.seyfarth.com:80/news/hendersonbloombergbna040918 Joshua Henderson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/hendersonbloombergbna040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Joshua Henderson was quoted in an April 9 story from Bloomberg BNA, &quot;California High Court Ruling Could Set Off Worker Safety Lawsuits,&quot; on how employees can sue employers for workplace safety violations under state&#39;s consumer laws. Henderson said that this case raises the possibility that employees who have allegedly suffered a workplace injury, or brought a Cal/OSHA issue can go to court for it.</p> http://www.seyfarth.com:80/news/lazarlaw360040918 Bart Lazar quoted in Law360 http://www.seyfarth.com:80/news/lazarlaw360040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in an April 9 story from Law360, &quot;4 Things To Watch As Facebook CEO Heads To Congress,&quot; on the FTC, which in recent years has policed privacy issues by accusing firms of unfair or deceptive business practices. Lazar said that the agency could release a list of baseline principles about what sorts of data collection practices are presumed not to be permitted without clear consent.</p> http://www.seyfarth.com:80/publications/OMM040918-LE New Jersey Court Expands Coverage: New Jersey Law Against Discrimination May Apply to Telecommuter Located in Massachusetts http://www.seyfarth.com:80/publications/OMM040918-LE Mon, 09 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On April 2, 2018, the New Jersey Appellate Division reversed an order granting summary judgment to Defendant Legal Cost Control, Inc., finding that New Jersey&rsquo;s Law Against Discrimination (LAD) may apply to an employee who lived outside New Jersey, worked outside New Jersey, and had not traveled to New Jersey in the last seven years. </em></p> <p> <strong>Case Analysis</strong></p> <p> In <a href="https://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a1377-16.pdf"><em>Trevejo v. Legal Cost Control</em></a>, No. A-1377-16T4, 2018 WL 1569640 (App. Div. Apr. 2, 2018), the employee/plaintiff lived in Massachusetts and worked from her home for a Haddonfield, New Jersey based company. Although the plaintiff had visited New Jersey a few times on business, she had not been to New Jersey in the past seven years with the company. On this basis, the trial court granted the company&rsquo;s motion for summary judgment, commenting that &ldquo;[S]he&rsquo;s not an inhabitant&hellip;Not even close&hellip;,&rdquo; and thus declining to find that the LAD applied to the plaintiff.</p> <p> The Appellate Division disagreed, finding that the LAD&rsquo;s text (as opposed to legislative history) indicates that it applies to &ldquo;persons,&rdquo; not &ldquo;inhabitants&rdquo; of New Jersey, and that the LAD&rsquo;s &ldquo;predominant goal &hellip; &lsquo;is nothing less than the eradication of the cancer of discrimination in the workplace.&rdquo; The court thus refocused the inquiry on the company&rsquo;s alleged conduct, noting that in addition to protecting &ldquo;aggrieved employees,&rdquo; the LAD furthers the &ldquo;public&rsquo;s strong interest in a discrimination-free workplace.&rdquo; The court also noted that the plaintiff&rsquo;s telecommuting arrangement warranted further discovery on questions such as: where plaintiff&rsquo;s co-employees worked, whether other employees worked from home, the nature of the software used by the plaintiff and other employees to conduct business, the location of the company&rsquo;s servers, the location of the company&rsquo;s internet service provider, who made the decision to terminate plaintiff and the basis for the decision, as well as other questions targeted at finding whether plaintiff had a &ldquo;virtual&rdquo; presence in New Jersey (since she did not have an actual presence) that might support coverage by the LAD. With that, summary judgment was reversed and the case was sent back to the trial court for further discovery.</p> <p> <strong>Potential Implications </strong></p> <p> As the workforce and work arrangements within our economy change, courts must necessarily analyze how preexisting laws apply in new factual contexts. New Jersey courts&rsquo; willingness to assert extraterritorial jurisdiction over out-of-state defendants and activities is not new. For instance, back in 2012, the Appellate Division held that a foreign company, with no official operations in New Jersey, was &ldquo;doing business in New Jersey&rdquo; because it employed a single telecommuting employee who lived full-time in New Jersey. <em>See Telebright Corporation Inc. v. Director, New Jersey Division of Taxation</em>, 424 N.J. Super. 384 (App. Div. 2012).</p> <p> Looking further back, in <em>Mehlman v. Mobil Oil Corp. et al.</em>, 153 N.J. 163 (1998), the New Jersey Supreme Court held that New Jersey&rsquo;s Conscientious Employee Protection Act (CEPA) protected a New Jersey Mobil Oil employee who was discharged in New Jersey after raising concerns about Mobil Oil&rsquo;s Japanese subsidiary while he was on a business trip in Japan. According to the Supreme Court, &ldquo;Under CEPA, the wrongful conduct is the employer&rsquo;s retaliatory action, and we decline to impose artificial geographical limits on the harm or illegality that the objecting employee sought to avoid.&rdquo; <em>Id</em>. at 196.</p> <p> The Appellate Division&rsquo;s decision <em>Trevejo </em>brings questions about the reach of New Jersey&rsquo;s discrimination and employment related laws full-circle. It appears now that such laws will be applied to (1) foreign companies with employees in New Jersey, (2) companies with operations in New Jersey, whose employees travel outside New Jersey, and (3) companies with operations in New Jersey and employees <em>who have little to no contact with the state</em>.</p> <p> Thus, <em>Trevejo</em> represents yet another example, alongside <em>Telebright</em> and <em>Mehlman</em>, of New Jersey courts&rsquo; expansive interpretations of the nuanced grey areas of New Jersey law. Employers, both those located in New Jersey and those who have even one employee in New Jersey, should be mindful of <em>any</em> contacts either they or their employees have with New Jersey, as such contacts (even in a case like <em>Trevejo</em>, which were seemingly nonexistent) could trigger protection under New Jersey law.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WSE040918 Operators Beware! MSHA Issues Final Rule on Examinations of Working Places in Metal and Nonmetal Mines http://www.seyfarth.com:80/publications/WSE040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/msha-compliance/operators-beware-msha-issues-final-rule-on-examinations-of-working-places-in-metal-and-nonmetal-mines/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA040918-LIT The State of Buy America: Changes to New York’s Domestic Preference Regime for Public Works and Infrastructure Projects http://www.seyfarth.com:80/publications/MA040918-LIT Mon, 09 Apr 2018 00:00:00 -0400 <div> The state of New York has adopted legislation tightening the regulatory regime governing the use of steel in construction and infrastructure projects, including structural steel, structural iron, reinforcing steel, and the like. Effective April 1, 2018, the New York Buy American Act (&ldquo;NYBAA&rdquo;) imposes domestic preference requirements on any state construction project valued over $100,000 and any state road or bridge project over $1 million. This alert generally outlines the applicability, substantive requirements, and limited grounds for exemption to the NYBAA.&nbsp; &nbsp;</div> <div> &nbsp;</div> <h2> Applicability of the NYBAA</h2> <div> The first step in navigating the NYBAA is to determine whether domestic preference requirements even apply. In summation, the NYBAA governs: (1) public projects; (2) that reach specified monetary threshold; and (3) which are for the construction, reconstruction, alteration, repair, or maintenance of public works and infrastructure located in New York.<sup>1</sup></div> <div> &nbsp;&nbsp;</div> <h3> Monetary Threshold</h3> <div> The NYBAA only applies to contracts awarded by an agency of the state of New York, and which trigger the monetary thresholds set forth in the statute. For vertical construction, the NYBAA applies to any contract for the &ldquo;construction, reconstruction, alteration, repair, maintenance, or improvement of any public works&rdquo; and which is over $100,000.<sup>2</sup> With the exception of infrastructure projects, this $100,000 threshold applies to every state contract, regardless of the letting agency. With respect to the construction, reconstruction, repair, or alteration of surface roads and bridges, the NYBAA only applies to public contracts valued over $1 million. The $1 million threshold applies only to contracts awarded by the New York Department of Transportation (DoT), the Office of General Services, or the State University of New York Construction Fund.<sup>3</sup>&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> Timing of the Solicitation, Bid, and Award</h3> <div> The NYBAA only covers public works contracts that are &ldquo;executed and entered into&rdquo; on or after April 1, 2018. However, the state legislature explicitly chose to exclude contracts that were solicited or awarded prior to April 1, 2018. Thus, the NYBAA does not apply to projects for which a contractor has, before April 1, 2018: (1) already received a request for proposals; (2) already submitted a bid, or; (3) already received a notice of award.<sup>4</sup> The NYBAA also expressly excludes &ldquo;projects that have commenced project design and environmental studies&rdquo; prior to April 1, 2018. Finally, the NYBAA includes a sunset provision that automatically repeals its provisions as applied to contracts let, bid, or awarded on or after April 15, 2020.</div> <div> &nbsp;</div> <h2> Substantive Requirements of the NYBAA</h2> <h3> What construction materials are covered by the NYBAA?</h3> <div> For vertical construction, the NYBAA covers &ldquo;structural steel, reinforcing steel and/or other major steel items to be incorporated in the work of the contract.&rdquo;<sup>5</sup> For road and bridge projects, the NYBAA covers the &ldquo;structural iron and structural steel used or supplied in the performance of the contract or any subcontract thereto and permanently incorporated into such surface bridge or road.&rdquo;<sup>6</sup> Thus, the NYBAA governs virtually all steel components in public works construction including, without limitation, structural columns, beams, and angles; trusses and joists; steel rebar and framing; stainless steel piping; and prefabricated steel components.&nbsp;</div> <div> &nbsp;</div> <h3> When is a steel item &ldquo;incorporated in the work&rdquo;?</h3> <div> The domestic preferences for steel only applies to items that are to become a permanent fixture in a building, bridge, or road. The statute explains that an iron or steel product is permanently incorporated when it &ldquo;is required to remain in place at the end of the project contract, in a fixed location, affixed to public work to which it was incorporated.&rdquo;<sup>7</sup> On the other hand, steel products that can be moved from one location to another are not fixtures. For practical purposes, the vast majority of steel items utilized in construction are likely to be &ldquo;incorporated into the work&rdquo; at the end of the project.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> What does it mean to be &ldquo;made in whole or substantial part in the United States?&rdquo;</h3> <div> Under the NYBAA, covered steel articles for both vertical and horizontal construction &ldquo;shall be produced or made in whole or substantial part in the United States, its territories or possessions.&rdquo;<sup>8</sup>&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> Specifically as it relates to structural components, the NYBAA provides that &ldquo;all manufacturing must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving the refinement of steel activities.&rdquo;<sup>9</sup> This provision effectively preempts outright the importation of structural steel for covered projects. However, unlike the federal Buy American/Buy America regime, Subsection 5 of the NYBAA does not require bidders and contractors to certify that all structural iron or steel is made in whole or in substantial part in the United States.<sup>10</sup></div> <div> &nbsp;</div> <h2> Grounds for Exemptions to the NYBAA</h2> <div> The exemptions to the NYBAA generally mirror the principal exemptions set forth in the federal Buy American Act,<sup>12</sup>&nbsp;though the exemptions in New York are somewhat more expansive. The head of any agency constructing public works has sole discretion to determine that the NYBAA requirements should not apply because: (1) domestic preferences would not be in the public interest; (2) imposing the preferences would result in unreasonable costs; (3) the iron and steel products cannot be produced in the United States in sufficient and reasonably available quantities and of satisfactory quality; (4) the requirements would result in the loss or reduction of federal funding for the subject contract or the ability to obtain such federal funding; (5) there is an immediate or urgent need for structural steel or structural iron; (6) obtaining the steel or iron product in the United States would increase the cost of the contract by an unreasonable amount; (7) steel or iron is necessary for the operation of or repairs of critical infrastructure that is necessary to avoid a delay in the delivery of critical services that could compromise the public welfare, or; (8) a reciprocal trade agreement or treaty has been negotiated by the state or federal government for nondiscriminatory governmental procurement practices.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1. Importantly, even where the New York State NYBAA does not apply, federal Buy America/Buy American requirements may govern any public works project that receives partial funding from federal appropriations, or which is subsidized by the U.S. Department of Transportation.</p> <p> 2.&nbsp;N.Y. State Fin. Law &sect; 146.1; see N.Y. State Pub. Authorities Law &sect; 2603-a.</p> <p> 3.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 4.&nbsp;<em>Id.</em> &sect; 1, 5, cmt. 451.</p> <p> 5.&nbsp;<em>Id.</em> &sect; 146.1.</p> <p> 6.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 7.&nbsp;<em>Id.</em></p> <p> 8.&nbsp;<em>Id.</em></p> <p> 9.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 10.&nbsp;<em>Id.</em> &sect; 146.5.</p> <p> 11.&nbsp;41 U.S.C.&sect; 10a, <em>et seq.</em></p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WSE040618 Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job http://www.seyfarth.com:80/publications/WSE040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-policies-and-processes/drive-much-niosh-focus-on-workplace-safety-for-employees-who-drive-for-their-job/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS040618 Texas Supreme Court Declines to Take Up Case Requesting that a Plaintiff Describe the Elements of Any Trade Secret Process That It Claims Was Misappropriated http://www.seyfarth.com:80/publications/TS040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Late last week, the Texas Supreme Court denied a petition for mandamus in which the petitioner sought an order compelling a plaintiff to identify the specific trade secrets it contends were misappropriated, bucking what petitioner claimed is a &ldquo;growing consensus&rdquo; among the states.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/texas-supreme-court-declines-to-take-up-case-requesting-that-a-plaintiff-describe-the-elements-of-any-trade-secret-process-that-it-claims-was-misappropriated/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanbloombergbna040618 Gerald Maatman quoted in Bloomberg BNA http://www.seyfarth.com:80/news/maatmanbloombergbna040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 6 story from Bloomberg BNA, &quot;California Is Fertile Ground for Employment Lawyers.&quot; Maatman said that other sources of business for employment lawyers are California&rsquo;s new salary history ban, which prohibits employers from asking job applicants about their prior salaries, and employers&rsquo; fear of sexual harassment claims.</p> http://www.seyfarth.com:80/news/weisswgn040618 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgn040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed April 6th on WGN Radio, &quot;Wintrust Business Lunch 4/6/18: Learning From The Blackhawks.&quot; Weiss supported the recent Blackhawks move to reach deep into their lineup for an emergency goalie. You can listen to the full interview at minute 23:40 <a href="http://wgnradio.com/2018/04/06/wintrust-business-lunch-4-6-18-1-in-5-protest-managing-the-masters-learning-from-the-blackhawks/">here</a>.</p> http://www.seyfarth.com:80/news/masurveygbfr040518 Seyfarth's Middle-Market M&A SurveyBook featured in Global Banking & Finance Review http://www.seyfarth.com:80/news/masurveygbfr040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Middle-Market M&amp;A SurveyBook was featured in an April 5 story from Global Banking &amp; Finance Review, &quot;Seller-Favorable Deal Environment Persists According to Seyfarth&rsquo;s Middle-Market M&amp;A Survey.&quot; The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017. You can read the <a href="https://www.globalbankingandfinance.com/seller-favorable-deal-environment-persists-according-to-seyfarths-middle-market-ma-survey/">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbloomberglaw040518 Brett Bartlett quoted in Bloomberg Law http://www.seyfarth.com:80/news/bartlettbloomberglaw040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in an April 5 story from Bloomberg Law, &quot;Supreme Court&rsquo;s Wage, Hour Shift: More Than Minor Tuneup,&quot; on how the U.S. Supreme Court abandoned a long-standing canon for how to apply exemptions to the Fair Labor Standards Act&rsquo;s minimum wage and overtime requirements. Bartlett said that for employers, long-standing advice to take appropriate steps in classifying employees as exempt or nonexempt still stands. You can read the <a href="https://biglawbusiness.com/supreme-courts-wage-hour-shift-more-than-minor-tuneup/">full article here</a>.</p> http://www.seyfarth.com:80/news/rechtinlaw360040518 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in an April 5 story from Law360, &quot;Facebook Stole Data Center Ideas, BladeRoom CEO Testifies.&quot; Rechtin said that as tech giants grapple with the growth of their data holdings, the market for energy-efficient data centers that can be up and running quickly increases.</p> http://www.seyfarth.com:80/publications/TBT040518 Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use http://www.seyfarth.com:80/publications/TBT040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now &ldquo;No.&rdquo;<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/budding-development-states-requiring-employers-to-tolerate-medical-cannabis-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA040518-LE In a Nod to the #MeToo Movement, New York Legislature Passes Comprehensive Anti-Sexual Harassment Legislation http://www.seyfarth.com:80/publications/MA040518-LE Thu, 05 Apr 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em> </strong>&nbsp;<em>The New York Legislature has passed, and Governor Andrew M. Cuomo is expected to sign, a bill that will, among other things, prohibit all employers from requiring employees to arbitrate claims of sexual harassment.&nbsp; The bill will also prohibit employers from including non-disclosure agreements in settlements of sexual harassment claims, unless requested by the complainant.&nbsp; Additionally, the bill will require state contractors to implement sexual harassment training and&nbsp; policies</em>, <em>extend protections to non-employees, such as contractors or vendors, and require the Department of Labor to draft a model anti-sexual harassment policy and training program.&nbsp;</em></p> <p> As part of a <a href="https://www.nysenate.gov/legislation/bills/2017/s7507">bill</a>&nbsp;establishing the 2018-19 budget, the New York State Legislature has included provisions making sweeping changes to the law governing workplace sexual harassment.&nbsp; The new legislation, among other things, prohibits mandatory arbitration of sexual harassment complaints and prohibits non-disclosure agreements (NDAs) in settlements of lawsuits involving sexual harassment allegations unless the victim requests confidentiality.&nbsp; The legislation will also expand protections to independent contractors and create a uniform sexual harassment policy and training for businesses.&nbsp;</p> <p> The provisions in the bill affecting private employers are summarized briefly below.&nbsp; In contrast to an earlier version of the bill, the final enactment does not provide a definition of &ldquo;sexual harassment.&rdquo;&nbsp; While the Governor is expected to sign the bill shortly, the timetable remains uncertain, and it is possible, although unlikely, that changes in the fluid political environment in <a href="https://www.nytimes.com/2018/04/04/nyregion/new-york-state-senate-democrats.html">Albany</a>&nbsp;could prompt some revisions.&nbsp;</p> <p> <strong>Prevention of Sexual Harassment By Bidders for State Contracts</strong></p> <p> Subpart A amends the State Finance Law to require that, for every bid made to the State or any public department or agency of the State, where competitive bidding is required, the bidder must submit a certification, under penalty of perjury, that it has implemented a written sexual harassment policy and provides annual sexual harassment prevention training to all employees.&nbsp; The written policy must meet the requirements of Section 201-g of the New York Labor Law (see the discussion of Subpart E below).</p> <p> Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.&nbsp; While the bill states that a bid shall not be considered, and a contract may not be awarded, where the bidder has not complied with the certification provision, it does permit the bidder to provide an explanation of its failure to provide the certification, suggesting that the absence of a certification may not be fatal to a successful bid.</p> <p> This section will take effect on the first of January after the date on which it becomes law.</p> <p> <strong>Prohibition of Mandatory Arbitration Clauses</strong></p> <p> Subpart B adds Section 7515 to the Civil Practice Law and Rules (&ldquo;CPLR&rdquo;).&nbsp; It provides that, &ldquo;except where inconsistent with federal law,&rdquo; employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment.&nbsp; The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.&nbsp; Mandatory arbitration clauses requiring arbitration of claims other than sexual harassment are unaffected by the new legislation.&nbsp;&nbsp;The law will take effect on the 90th day after the bill becomes law.</p> <p> <strong>Prohibition of Non-Disclosure Agreements</strong></p> <p> Subpart D, effective on the 90th day after it becomes law, adds Section 5-336 to the General Obligations Law (&ldquo;GOL&rdquo;) and Section 5003-b to the CPLR.&nbsp; Under GOL Section 5-336, employers are prohibited from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality.&nbsp; If the complainant requests confidentiality, the terms must first be provided to all parties.&nbsp; The complainant then has 21 days to consider the terms, and, after 21 days, if the term is still the complainant&rsquo;s preference, the condition must be memorialized in an agreement signed by all parties.&nbsp; The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires.&nbsp; GOL Section 5-336 appears to apply to settlements of <em>all</em> claims of sexual harassment, not just those filed in court.</p> <p> CPLR Section 5003-b includes the same provisions as GOL Section 5-336, but applies to settlements of sexual harassment <em>lawsuits</em>.</p> <p> <strong>Mandatory Sexual Harassment Prevention Policy and Training Program</strong></p> <p> Subpart E amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.</p> <p> The model policy must include, among other things: information concerning the federal and state statutory provisions on sexual harassment; examples of what constitutes unlawful sexual harassment; a standard complaint form; a procedure for investigation of complaints; rights of redress and all available forums for adjudicating sexual harassment complaints; and a prohibition of retaliation.</p> <p> Similarly, the training program must be interactive and cover specific topics, including the following: examples of conduct that would be unlawful; the federal and state statutory provisions concerning sexual harassment; remedies available to victims of sexual harassment; and rights of redress and all available forums for adjudicating complaints.</p> <p> <em>Every employer</em> must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.&nbsp; This Section takes effect on the 180th day after it becomes law. &nbsp;</p> <p> <strong>Extension of Protections to Non-Employees and Individual Liability</strong></p> <p> Currently, non-employees, such as contractors, vendors, or consultants, are not covered by State law prohibiting sexual harassment.&nbsp; Subpart F, which will take effect immediately and apply to all employers in the State, extends protections to such non-employees by amending the Executive Law.&nbsp; Under new Section 296-D, an employer may be liable to non-employees when the employer, its agents, or supervisors knew or should have known that non-employees were subjected to sexual harassment in the employer&rsquo;s workplace, and the employer failed to take immediate and appropriate corrective actions.</p> <p> <strong>What Happens Next?</strong></p> <p> For the most part, the various sections of the bill will not go into effect until at least three months after the Governor&rsquo;s signature, allowing employers sufficient time to ensure compliance.&nbsp; The provision of most immediate potential impact for employers concerns mandatory arbitration clauses.&nbsp; While an outright prohibition on such clauses, even one limited to sexual harassment claims, would be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act, the bill includes the proviso &ldquo;except where inconsistent with federal law.&rdquo;&nbsp; Sorting out the legal issues around that proviso could, of course, take years to resolve.&nbsp; (A bill pending in the U.S. Senate, co-sponsored by New York&rsquo;s Kirsten Gillibrand, would amend the FAA to outlaw arbitration clauses with respect to sexual harassment claims.&nbsp; If that is enacted, then preemption issues involving the New York provision would likely be moot.)&nbsp; In the meantime, employers should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.</p> <p> Employers should similarly consider reviewing and revising their standard settlement agreements, at least as they pertain to employees within New York State, to ensure that they comply with subpart D&rsquo;s prohibition of NDAs.&nbsp; This revision to standard settlement practice comes on the heels of recent changes at the federal level, where the 2017 tax reform law <a href="http://www.seyfarth.com/publications/RD011918-CORP">prohibits the deduction of any payments</a> related to sexual harassment or sexual abuse settlements where an NDA is used.</p> <p> Once the New York Department of Labor publishes the model policy and training program, employers will need to ensure that their existing sexual harassment policies, as well as their training for employees, are in compliance with the models. &nbsp;For those employers who do not have written policies or do not provide training, they will need to institute both.&nbsp;</p> <p> Employers utilizing contractors, vendors, or consultants should also consider revising their policies to account for the broader scope of who can file claims under the new law.&nbsp; Given that this provision goes into effect immediately upon passage of the bill, employers should consider making such amendments sooner rather than later.</p> <p> The attorneys at Seyfarth Shaw LLP are preparing a Webinar on the new legislation.&nbsp; Details will be announced shortly.&nbsp; We are also available to provide any assistance with ensuring that you have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</p> http://www.seyfarth.com:80/publications/OMM040518-EB IRS Retroactively Reduces HSA Contribution Limit; Transition Relief May Follow http://www.seyfarth.com:80/publications/OMM040518-EB Thu, 05 Apr 2018 00:00:00 -0400 <div> Last year, the IRS published the calendar year 2018 health savings account (HSA) contribution limits for individual and family coverage.&nbsp; <em>Rev. Proc. 2017-37, I.R.B. 2017-21 (5/4/2017)</em>. Ten months later and well into the start of the 2018 year, in response to changes under the 2017 Tax Cuts and Jobs Act,&nbsp; the IRS reduced by $50 the 2018 limit on HSA contributions for family coverage. <em>Rev. Proc. 2018-18, I.R.B. 2018-10 (3/5/2018)</em>. Although the HSA contribution limit for individual coverage remains at $3,450, the maximum contribution for family coverage dropped from $6,900 to $6,850. The reduction took effect immediately.&nbsp;</div> <div> &nbsp;</div> <div> The amount of the reduction is small, but employees with family coverage in an HSA may feel the effects in their tax bills for 2018. To the extent contributions to an HSA exceed the annual limit, the amount of those excess contributions is included in the employee&rsquo;s taxable income and subject to an additional 6% excise tax. Absent transition relief from the IRS, to avoid the negative tax ramifications of the lowered contribution limit, the employee will need to receive a distribution from the HSA during 2018 in the amount contributions exceed $6,850, plus any earnings on that amount. The excise tax is cumulative, so for every future year the excess contribution remains in the HSA, the employee will be subject again to the excise tax.</div> <div> &nbsp;</div> <div> Transition relief could be on the horizon. In mid-March, two members of the House Ways and Means Committee, Representatives Mike Kelly (R-PA) and Erik Paulsen (R-MN), wrote to Treasury Secretary Steven Mnuchin, identifying burdens the mid-year limit change inflicts on employees and employers and requesting a delay until 2019 of enforcement of the new contribution limit. Joining Reps. Kelly and Paulsen, the American Benefits Council, a prominent organization representing hundreds of plan sponsors and service providers (and of which Seyfarth Shaw is a member), likewise sought an enforcement delay or similar transition relief from Treasury and the IRS. Treasury and the IRS have acknowledged the concerns voiced by the Representatives and the American Benefits Council and expedited their consideration of potential transition relief.&nbsp;</div> <div> &nbsp;</div> <div> In light of the high-profile feedback regulators are receiving and the regulators&rsquo; concomitant discussions of transition relief, we do not believe employers and service providers need to take immediate action on the HSA limit reduction. Unless they have already implemented modifications to accommodate the new limit, for the present, sponsors and administrators may prefer to hold off on HSA program changes to see whether relief is forthcoming.&nbsp;</div> <div> &nbsp;</div> <div> If, however, a sponsor or administrator prefers to take action now on the HSA limit change, we suggest a few steps to help minimize the effects of contribution limit reduction:</div> <div> &nbsp;</div> <ul> <li> Notify employees electing family HDHP coverage of the reduced HSA contribution limit;<br /> &nbsp;</li> <li> Evaluate whether payroll and plan administration systems require modifications to accommodate the reduced limit for the balance of 2018; and <ul> <li> <strong>For employers forwarding contributions monthly:</strong> For employees who have already contributed more than $571 (1/12 of $6,850) per month during 2018, advise employees to modify their monthly elections for the remainder of the year so they do not exceed $6,850 for the year; or<br /> &nbsp;</li> <li> <strong>For employers funding HSAs in full at the beginning of the plan year:</strong> Contact the HSA custodian and request a return of excess contributions. If the custodian is unwilling to return excess contributions at the employer&rsquo;s request, advise affected employees to contact the custodian and request a return of excess contributions.</li> </ul> </li> </ul> <div> &nbsp;</div> <div> We anticipate decisions on transition relief to occur shortly. We will continue following the developments out of Washington and will publicize promptly any significant germane announcements from Treasury or the IRS.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM040518-LE San Francisco Amends “Fair Chance Ordinance” to Align with Portions of California’s New Statewide Ban-the-Box Law http://www.seyfarth.com:80/publications/OMM040518-LE Thu, 05 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;</em><em>On April 3, 2018, San Francisco amended its Fair Chance Ordinance to align, in some respects, with California&rsquo;s new ban-the-box law. San Francisco employers with more than five employees still must be mindful of the Ordinance&rsquo;s provisions that go beyond the broader state law.</em></p> <p> As previously reported <a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">here</a>,&nbsp;California&rsquo;s statewide ban-the-box law (AB 1008) went into effect on January 1, 2018. That law requires employers with five or more employees (subject to few exceptions) to:</p> <ul> <li> wait until <strong><em>after a conditional offer of employment</em></strong>&nbsp;is made to inquire about an applicant&rsquo;s criminal history, which means asking the applicant directly whether the applicant have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant&rsquo;s criminal history;</li> <li> conduct an individualized assessment of an applicant&rsquo;s conviction to determine whether it has a &ldquo;direct and adverse relationship with the specific duties of the job that justify denying the applicant the position&rdquo;;</li> <li> notify the applicant of any potential adverse action based on the conviction history, which must, among other things, identify the conviction at issue, include a copy of any conviction history report (regardless of the source), and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances; and</li> <li> after waiting the requisite time period, notify the applicant of any final adverse action, which must, among other things, describe any existing procedure the employer has to challenge the decision or request reconsideration and notify the applicant of the right to file a complaint with the Department of Fair Employment and Housing.</li> </ul> <p> Los Angeles and San Francisco have their own ban-the-box laws. In some respects, both provide stronger protections to job applicants, especially Los Angeles. However, in some ways, California&rsquo;s new law protects job applicants more favorably than does San Francisco. Because of this, on April 3, 2018, the City and County of San Francisco Board of Supervisors approved amendments to its Fair Chance Ordinance (Article 49) to align with the California law (in some respects). The amendments are effective October 1, 2018.</p> <p> The Board amended the San Francisco Fair Chance Ordinance in the following ways:</p> <ul> <li> It reduced the number of employees needed to qualify as a covered employer from twenty to five (the same number required to qualify for coverage under California&rsquo;s law).</li> <li> Although the original version of the Ordinance allowed employers to inquire about criminal history after either a live interview or a conditional offer, the Ordinance now requires that, consistent with California law, covered employers wait until<strong><em> after a conditional offer</em></strong> of employment is made to make any such inquiry.&nbsp;</li> <li> For any violations occurring after the effective date of the amended Ordinance (October 1, 2018), employers are subject to increased penalties for non-compliance: $500 for the first violation; $1,000 for the second violation; and $2,000 for any subsequent violations (under the initial Ordinance, the maximum penalty was $50). If more than one applicant or employee is impacted by an alleged violation, the penalties apply to <strong><em>each</em></strong> employee or applicant.</li> <li> The initial Ordinance granted to the Office of Labor Standards Enforcement (&ldquo;OLSE&rdquo;) the right to file a civil action against an employer to recover any legal or equitable relief that may be appropriate to remedy the violation, including, but not limited to, reinstatement, back pay and attorney&rsquo;s fees and costs. The amended Ordinance now grants that same right to file a civil action to aggrieved individuals, provided that he or she files a complaint with the OLSE and exhausts their administrative remedies.</li> </ul> <p> In some respects, however, San Francisco&rsquo;s Ordinance provides <strong><em>greater</em></strong> protections to job applicants than does California law. Subject to very few exceptions, all California employers are prohibited from considering certain types of criminal history information, including arrests that did not lead to a conviction, juvenile records, non-felony marijuana convictions that are older than two years, and diversions or deferrals. San Francisco, however, currently goes beyond this by barring covered employers from considering convictions that are more than seven years old (measured from the date of sentencing) and infractions.</p> <p> The Board further amended the Ordinance to add a new category of &ldquo;off limits&rdquo; information: &ldquo;A conviction that arises out of conduct that has been decriminalized since the date of the Conviction,&rdquo; measured from the date of sentencing. The amendment provides examples of such convictions to include those for certain marijuana and cannabis offenses. San Francisco employers will now have to evaluate any potentially disqualifying conviction to determine whether the charge at issue was decriminalized post-conviction.</p> <p> <strong>Next Steps</strong></p> <p> Most immediately, San Francisco employers, particularly those with fewer than twenty employees, should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks. Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.</p> <div> <div> <div id="_com_1" uage="JavaScript"> <p> &nbsp;</p> </div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL040518 California Federal District Court Does Not ‘like’ Facebook’s Standing Argument in Illinois Biometric Information Privacy Act Case http://www.seyfarth.com:80/publications/EL040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In light of the uncertainties surrounding lawsuits alleging violations of the Illinois Information Biometric Privacy Act (BIPA), the Northern District of California has taken a firm position on a plaintiff&rsquo;s Article III standing. U.S. District Judge James Donato delivered opinions in In re Facebook Biometric Info. Privacy Litig., Case No. 15-CV-03747; 2018 U.S. Dist. LEXIS 30727 (N.D. Cal. Feb. 26, 2018) and Gullen v. Facebook Inc., Case No. 16-CV-00937; 2018 U.S. Dist. LEXIS 34792 (N.D. Cal. March 2, 2018), denying Facebook&rsquo;s motions to dismiss for lack of subject matter jurisdiction in both cases. The court held that plaintiffs&rsquo; Article III standing was satisfied through mere collection of biometric information.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/california-federal-district-court-does-not-like-facebooks-standing-argument-in-illinois-biometric-information-privacy-act-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO040518 Now Available! Seyfarth Shaw’s BioLoquitur Bulletin: Drugs Available in 2018 for Generic Competition http://www.seyfarth.com:80/publications/BIO040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth Shaw is pleased to announce The BioLoquitur Bulletin: Drugs Available in 2018 for Generic Competition, published by the Life Sciences team. The BioLoquitur Bulletin provides a brief overview of selected New Chemical Entities (NCE) that were approved by the FDA in the year 2014. While not every NCE will be a target for NCE-1 litigation, the Dissection Guide offers information about the drug products, indications, and Orange Book patents.<br /> <br /> <a href="https://www.bioloquitur.com/now-available-seyfarth-shaws-bioloquitur-bulletin-drugs-available-2018-generic-competition/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS040418 Seyfarth Trade Secrets Attorneys to Participate in ITechLaw 2018 World Technology Law Conference in Seattle http://www.seyfarth.com:80/publications/TS040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2018 World Technology Conference in Seattle, May 16-18.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/seyfarth-trade-secrets-attorneys-to-participate-in-itechlaw-2018-world-technology-law-conference-in-seattle/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP040418 Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use http://www.seyfarth.com:80/publications/CP040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now &ldquo;No.&rdquo;<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/04/budding-development-states-requiring-employers-to-tolerate-medical-cannabis-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/Dacso040418 Sheryl Dasco co-authors paper on Value-Based Purchasing and Bundled Services/Payments – Reconciling Interests of Participating Providers http://www.seyfarth.com:80/publications/Dacso040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> On April 4, 2018, Sheryl Tatar Dacso presented on a white paper she co-authored titled, &ldquo;Value-Based Purchasing and Bundled Services/Payments &ndash; Reconciling Interests of Participating Providers&rdquo; at The University of Texas School of Law&#39;s 30th Annual Health Law Conference.</p> <div> With increasing pressure to do more with less, health care systems are continuing to focus efforts on finding innovative ways to increase quality while reducing costs. One ongoing trend is the movement toward innovative incentive payment models, including value-based care purchasing and bundled payment arrangements. The goal of such models is to achieve cost reductions based on a higher level of patient care coordination.</div> <div> &nbsp;</div> <div> Despite 2017 bringing a fair amount of political uncertainty regarding the Centers for Medicare &amp; Medicaid Services (CMS)&rsquo;s commitment to value-based reimbursement and bundled payment arrangements, for the time being, it appears these alternative payment models are here to stay. The new Secretary of Health and Human Services (HHS), Alex Azar, has re-affirmed his support of value-based care. While the Trump Administration is not pursuing alternative payment models as ambitiously as the Obama administration, they are not backing away either &ndash; recognizing the need to continue cost reductions while moving away from strictly fee-for-service payment models. Additionally, we are seeing more commercial payors, employer self-funded plans and provider organizations continue to move forward with value-based payment models fueled by the incentives of the Affordable Care Act (ACA) for development of Accountable Care Organizations (ACO).</div> <div> &nbsp;</div> <div> In this paper, we will look into how value-based care and alternative pricing arrangements are structured and discuss the options and challenges associated with potential risk sharing, legal and practical considerations.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/uploads/siteFiles/publications/06_Walker_et_al_HL18_pap.pdf">Click here</a> to read the entire paper.</div> http://www.seyfarth.com:80/publications/smitharnoldlegal500ihlawyer040418 Jason Smith and Edward Arnold authored a Q&A in The Legal 500 and The In-House Lawyer http://www.seyfarth.com:80/publications/smitharnoldlegal500ihlawyer040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Jason Smith and Edward Arnold authored an April 4 Q&amp;A in The Legal 500 and The In-House Lawyer, &quot;United States: Construction,&quot; on an overview to construction law in the United States. The Q&amp;A covers termination requirements and obligations, permits and licence, procurement, financing and security, and disputes as well as insight and opinion on challenges and opportunities. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Comparative_Legal_Guide-April_04_2018.pdf">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/news/milliganshrm040418 Robert Milligan quoted in SHRM http://www.seyfarth.com:80/news/milliganshrm040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a April 4 story from SHRM, &quot;Employers Should Carefully Craft Noncompetes ,&quot; on how businesses should also consider using less restrictive covenants. Milligan said that employers should make sure that their agreement is thoughtful and reflects the legitimate business interests of their company. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/Employers-Should-Carefully-Craft-Noncompetes.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/tymanbloomberglaw040418 Annette Tyman quoted in Bloomberg Law http://www.seyfarth.com:80/news/tymanbloomberglaw040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Annette Tyman was quoted in a April 4 story from Bloomberg Law, &quot;Compensation Managers Have Direct Connection With Pay Equity Movement,&quot; on how advocates of pay equity will call attention to the gender gap in compensation by marking Equal Pay Day on April 10. Tyman said that state laws on pay equity are growing and worker advocates are calling for more pay transparency in the workplace.</p> http://www.seyfarth.com:80/news/babsonbloombergbna040418 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbloombergbna040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 4 story from Bloomberg BNA, &quot;Can Labor Contracts Help Sinclair TV Anchors Dodge Edicts?&quot; Babson said that Sinclair anchors would have a tough time proving their resistance to reading company-mandated stories or promotions is protected activity under the NLRA.</p> http://www.seyfarth.com:80/news/resurveyco040418 Seyfarth's Real Estate Market Sentiment Survey referenced in the Commercial Observer http://www.seyfarth.com:80/news/resurveyco040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in an April 4 story from the Commercial Observer, &quot;The 50 Most Important Figures of Commercial Real Estate Finance,&quot; on new Federal Reserve Chairman Jerome Powell. The Seyfarth survey of 150 real estate executives found that 82 percent expect the Fed Funds rate will climb at least twice this year with 39 percent expecting at least three increases. And after the Fed raised rates right on schedule at its March 21 meeting, that forecast seems right on target. You can read the <a href="https://commercialobserver.com/2018/04/power-50-commercial-real-estate-finane-2018/#slide51">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezquartz040418 Leon Rodriguez quoted in Quartz http://www.seyfarth.com:80/news/rodriguezquartz040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in an April 4 story from Quartz, &quot;This year, the H-1B visa will find fewer takers among India&rsquo;s big IT companies.&quot; Rodriguez said that the Indian IT industry already began a contraction in H-1B applications during last year&rsquo;s cap season. You can read the <a href="https://qz.com/1244109/this-year-the-h-1b-visa-will-find-fewer-takers-among-indias-big-it-companies/">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarcw040318 Bart Lazar quoted in Compliance Week http://www.seyfarth.com:80/news/lazarcw040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a April 3 story from Compliance Week, &quot;Facebook&rsquo;s data problems open door to domestic regulation of tech firms.&quot; Lazar said that the Facebook situation brings to bear some very basic privacy issues, such as the clarity of privacy notices and the importance of serious due diligence with respect to any third party or service provider to whom personal information is disclosed. Lazar stresses that companies need to seriously consider the &ldquo;blocking and tackling of privacy.&rdquo; You can read the <a href="https://www.complianceweek.com/news/news-article/facebook%E2%80%99s-data-problems-open-door-to-domestic-regulation-of-tech-firms#.WsORjOSWyUk">full article here</a>.</p> http://www.seyfarth.com:80/news/masurveybook040318 Seller-Favorable Deal Environment Persists According to Seyfarth’s Middle-Market M&A Survey http://www.seyfarth.com:80/news/masurveybook040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Leading law firm Seyfarth Shaw LLP has published the 5th edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017.</p> <p> The Survey focuses on key deal terms comprising the &ldquo;indemnity package&rdquo; included in almost all private target acquisition agreements to address a seller&rsquo;s potential post-closing liability to a buyer, and set the parameters of a buyer&rsquo;s ability to claw back purchase price from a seller.</p> <p> The data analyzed in this Survey suggests that, similar to the trend of recent years, the environment for private target middle-market M&amp;A continues to be seller friendly. The purchase of representation and warranty (&ldquo;R&amp;W&rdquo;) insurance continues to be a powerful tool used by buyers to make their acquisition proposal more attractive, and this year&rsquo;s data indicated a significant increase in deals using R&amp;W insurance. Of course, the terms of the typical indemnity package are greatly impacted when R&amp;W insurance is utilized. For example, the indemnity escrow amount and indemnity cap size are typically drastically lower in transactions using R&amp;W insurance as compared to transactions that do not use such insurance. Accordingly, Seyfarth&rsquo;s Survey highlights the impact of R&amp;W insurance on certain deal terms and separately addresses the results for deals not utilizing R&amp;W insurance.</p> <p> In deals not using R&amp;W insurance, this year&rsquo;s Survey showed consistency with prior years for a number of deal terms with the general representation and warranty survival periods holding steady in the 12 -18 month range, continued high usage of true deductible indemnity baskets, and a median indemnity cap size of 10% of purchase price. To view Seyfarth&rsquo;s 2018 Middle-Market M&amp;A SurveyBook, please <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1" target="_blank">visit here</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 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/conleylaw360040318 Ben Conley quoted in Law360 http://www.seyfarth.com:80/news/conleylaw360040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Ben Conley was quoted in a April 3 story from Law360, &quot;5 Regulations Benefits Attorneys Need To Watch,&quot; on Affordable Care Act revisions. Conley said that, responding to directives from the Trump administration, federal regulators are expected to give nonaffiliated companies more freedom to enter into associated health plans &mdash; allowing smaller businesses to pull themselves out of the more tightly regulated small group market &mdash; and loosen restrictions on short-term, limited-duration health care policies.</p> http://www.seyfarth.com:80/news/gagnonmaatmanlaw360040318 Matthew Gagnon and Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/gagnonmaatmanlaw360040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Matthew Gagnon and Gerald Maatman were quoted in a April 3 story from Law360, &quot;Google Pay Equity Case May Be Blueprint For Class Actions.&quot; Gagnon said that it could become a sort of blueprint for what other plaintiffs counsel may consider doing. Maatman said that the ruling is a big deal in California but warned that it&#39;s dangerous to assume the same theory will work in other jurisdictions.</p> http://www.seyfarth.com:80/publications/TS040318 The Valuation of Trade Secrets http://www.seyfarth.com:80/publications/TS040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd., and Oliver Treidler, Managing Director of TP&amp;C GmbH.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/intellectual-property/the-valuation-of-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL040318 Massachusetts Recreational Pot Regulations Offer Little Guidance To Employers http://www.seyfarth.com:80/publications/EL040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> On March 9, 2018, the Massachusetts Cannabis Control Commission (&ldquo;CCC&rdquo;) filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State. According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018. The Regulations will become effective upon publication. While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/massachusetts-recreational-pot-regulations-offer-little-guidance-to-employers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MASurveyBook-2018 Seller-Favorable Deal Environment Persists According to Seyfarth’s Middle-Market M&A Survey http://www.seyfarth.com:80/publications/MASurveyBook-2018 Tue, 03 Apr 2018 00:00:00 -0400 <div> Leading law firm Seyfarth Shaw LLP has published the 5th edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017.</div> <div> &nbsp;</div> <div> The Survey focuses on key deal terms comprising the &ldquo;indemnity package&rdquo; included in almost all private target acquisition agreements to address a seller&rsquo;s potential post-closing liability to a buyer, and set the parameters of a buyer&rsquo;s ability to claw back purchase price from a seller.</div> <div> &nbsp;</div> <div> The data analyzed in this Survey suggests that, similar to the trend of recent years, the environment for private target middle-market M&amp;A continues to be seller friendly. The purchase of representation and warranty (&ldquo;R&amp;W&rdquo;) insurance continues to be a powerful tool used by buyers to make their acquisition proposal more attractive, and this year&rsquo;s data indicated a significant increase in deals using R&amp;W insurance. Of course, the terms of the typical indemnity package are greatly impacted when R&amp;W insurance is utilized. For example, the indemnity escrow amount and indemnity cap size are typically drastically lower in transactions using R&amp;W insurance as compared to transactions that do not use such insurance. Accordingly, Seyfarth&rsquo;s Survey highlights the impact of R&amp;W insurance on certain deal terms and separately addresses the results for deals not utilizing R&amp;W insurance.</div> <div> &nbsp;</div> <div> In deals not using R&amp;W insurance, this year&rsquo;s Survey showed consistency with prior years for a number of deal terms with the general representation and warranty survival periods holding steady in the 12 -18 month range, continued high usage of true deductible indemnity baskets, and a median indemnity cap size of 10% of purchase price. To view Seyfarth&rsquo;s 2018 Middle-Market M&amp;A SurveyBook, please <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1" target="_blank">visit here</a>.</div> http://www.seyfarth.com:80/publications/MA040218-LE New Governor, New Result: New Jersey Legislature Passes Pay Equity Bill http://www.seyfarth.com:80/publications/MA040218-LE Mon, 02 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On March 26, 2018, the New Jersey Legislature passed Senate Bill 104, entitled the &ldquo;Diane B. Allen Equal Pay Act,&rdquo; an act modifying the Law Against Discrimination to promote equal pay for <u>all</u> protected classes under the LAD rather than being limited to gender. &nbsp;Governor Phil Murphy is widely expected to sign the measure into law, which is set to become effective July 1, 2018.</em></p> <p> New Jersey passed an all-encompassing new pay equity law.&nbsp; The bill, <a href="http://www.seyfarth.com/dir_docs/publications/104_R2.pdf">S 104</a>, was first introduced in Committee on January 9, 2018.&nbsp; Because Governor Murphy recently issued an Executive Order requiring equal pay in state agencies, he is expected to continue the momentum began in the Legislature and sign the bill into law.</p> <p> <strong>Protected Characteristics Expanded Beyond Gender and Race/Ethnicity</strong></p> <p> The law prohibits pay disparities based upon any protected characteristic protected by the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;), and <em>is not limited to gender</em>.&nbsp; Additional protected characteristics under the LAD include race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, and disability.&nbsp;&nbsp; However, the LAD broadly defines protected characteristics and they are not limited to the list above.&nbsp; This change separates the New Jersey law from federal law and laws in other jurisdictions, like <a href="http://www.seyfarth.com/publications/MA112415-LE">New York</a> or <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California</a>, which limit coverage to sex or sex and race. The <a href="http://www.seyfarth.com/publications/MA112415-LE">Oregon</a> law prohibits pay discrimination based on gender, race, national origin or color and also on religion, sexual orientation, marital status, veteran status, disability or age.</p> <p> The law prohibits employers from paying employees who are members of a protected class at a lower rate of compensation, including benefits, than employees who are not members of the protected class &ldquo;for substantially similar work, when viewed as a composite of skill, effort and responsibility.&rdquo;&nbsp; The differential may be justified by:</p> <ul> <li> A seniority system,</li> <li> A merit system, or</li> <li> A bona fide factor other than a protected characteristic, such as education, experience, training, or the quantity or quality of production so long as it is job-related, and based on a legitimate business necessity, and if the employer demonstrates that the factor is not based on, and does not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class. &nbsp;The law leaves undefined factors which tend to &ldquo;perpetuate&rdquo; pay equity violations. &nbsp;In addition, the bona fide factor must be applied reasonably, and explain the entire pay differential. &nbsp;The factor will not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential.&nbsp; Employers may not resolve unexplained pay disparities by lowering compensation of a more highly paid worker.&nbsp; Employers can expect that reliance on a bona fide factor other than a protected characteristic, as described in the law, will present new hurdles and defense challenges in litigation.</li> </ul> <p> <strong>Other Key Changes</strong></p> <p> The law also had other key changes to New Jersey&rsquo;s pay equity law:</p> <ul> <li> The LAD is broader that the Federal Equal Pay Act in numerous ways.&nbsp; For example, it allows for comparisons of pay across all of the employer&rsquo;s operations or facilities (it is unclear whether this is limited to locations within the State).&nbsp; However, the law does not expressly indicate that geographic wage and cost of living data rise to the level of a legitimate, bona fide factor or amount to a legitimate business necessity.</li> <li> The retaliation provision of the LAD was also expanded to protect employees who seek legal advice, share relevant information with legal counsel, or information with a government entity.&nbsp; This provision is not limited to information shared regarding pay equity.</li> <li> The law also specifically prohibits retaliation against any employee for discussing, or disclosing to any other employee or former employee, an attorney seeking legal advice, or any government agency information about any current or former employee regarding job titles, occupational categories, rates of compensation, including benefits, or the protected characteristic of a current or former employee, for any reason, and not solely limited to pursuing legal action or an investigation regarding equal pay.&nbsp;</li> <li> Employers are prohibited from requiring employees to waive or agree to not make such disclosures as a condition of employment, as may be contained in some confidentiality provisions of employment agreements or offer letters.</li> <li> Companies who are state contractors have additional reporting requirements, including compensation and hours worked categorized by gender, race, ethnicity, and job category, for each establishment of the employer.&nbsp; The New Jersey Commission on Labor and Workforce Development will provide a form for employers to provide this information.&nbsp;</li> </ul> <p> <strong>Statute of Limitations</strong></p> <p> The law has extended the statute of limitations for pay equity violations to six years.&nbsp; The proposed amendment also provides that liability will continue to accrue and back pay is available for the entire period of time in which the violation has been continuous, if within the now six-year statute of limitations.&nbsp; Further, the law expressly indicates that it does not prohibit the application of the doctrine of &ldquo;continuing violation&rdquo; or the &ldquo;discovery rule&rdquo; to any appropriate claim.</p> <p> <strong>Damages </strong></p> <p> Further, a jury or the New Jersey Civil Rights Commission must award treble damages where an employer violated the equal pay or expanded non-retaliation provisions of this bill, in addition to back pay and liquidated and common law tort damages which the LAD already provided. &nbsp;As with other LAD claims, there is no requirement to file an administrative charge prior to filing a lawsuit.</p> <p> An unlawful employment practice occurs <em>each occasion</em> that an individual is affected by a discriminatory compensation decision or other practice, which includes, but is not limited to, each occasion that wages, benefits, or other compensation are paid as a result of the decision or practice, thereby increasing damages significantly.&nbsp; The law does not expressly provide for retroactive application prior to the effective date.</p> <p> The bill further prohibits requiring employees or applicants to consent to a shortened statute of limitations or to waive any rights under the LAD, which is not limited to pay equity.&nbsp;</p> <p> <strong>Recommendations to Employers</strong></p> <p> Employers should consider engaging in attorney-client privileged equal pay studies to ensure that compensation differentials can be explained based on legitimate, non-discriminatory reasons.&nbsp; Such studies should also be considered at the time that bonuses, merit increases, and other benefits are being finalized to ensure that potentially violative salary differentials are not unwittingly triggered. &nbsp;</p> <p> <strong>Salary History Ban Under Consideration Again in New Jersey</strong></p> <p> In another notable development, the New Jersey Senate also passed <a href="http://www.seyfarth.com/dir_docs/publications/559_U1.pdf">S559</a>, which proposes amending the LAD to prohibit inquiries into an applicant&rsquo;s prior wages or salary. The New Jersey General Assembly has not yet voted on S559.&nbsp; Specifically, S559 would prohibit any employer from relying on an applicant&rsquo;s salary in determining a salary amount in <em>any</em> stage of the hiring process, including finalizing the employment contract, as well as prevent inquiries about the salary history of the job applicant, including compensation and benefits.</p> <p> This is the second attempt to pass pay equity legislation in New Jersey. &nbsp;As we previously reported <a href="http://www.seyfarth.com/publications/OMM012717NJ-LE">here</a>, former New Jersey Governor Chris Christie vetoed Senate Bill 992, a similar pay equity bill. At the time, the New Jersey Senate was unable to muster up the two-thirds majority&rsquo;s votes to override the veto.</p> <p> These developments follow the trend of the pay equity movement taking place in cities and states nationwide.&nbsp; In light of New Jersey&rsquo;s focus on pay equity, employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices.</p> <p> We hope you will join us on Equal Pay Day, April 10, 2018, for a joint presentation of Seyfarth&rsquo;s Pay Equity and Complex Discrimination Litigation Groups, as we launch our first <em>Trends and Developments in Pay Equity Litigation</em> report. You can register for the Pay Equity Webinar <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cfGo0Huoc9AemtZMBGYbYmKKwxyhzixvzs3veX1oWOhQ&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL">here</a>.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/BIO040218 Good ANDA Submission Practices: Summary of Draft Guidance http://www.seyfarth.com:80/publications/BIO040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> The Food and Drug Administration (FDA), as part of its Drug Competition Action Plan, published a draft guidance detailing good practices for the submission of ANDAs on January 3, 2018. The guidance highlights common, recurring deficiencies that may lead to a delay in the approval of an ANDA and makes recommendations to applicants on how to avoid such deficiencies. A typical ANDA requires an average of four review cycles before approval. The delay happens when ANDAs are submitted without all the information that the FDA needs to determine whether the ANDA meets FDA standards for approval, which leads to additional review cycles.<br /> <br /> <a href="https://www.bioloquitur.com/good-anda-submission-practices-summary-draft-guidance/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH040218 Encino Motorcars, LLC v. Navarro: SCOTUS Puts The Brakes On Faulty FLSA Construction Language http://www.seyfarth.com:80/publications/WH040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers seeking to show that they correctly have classified an employee as exempt from the FLSA&rsquo;s overtime requirements often have faced hostility from courts under the misimpression that FLSA exemptions must be &ldquo;construed narrowly.&rdquo; Today the United Supreme Court put to rest the &ldquo;narrow construction&rdquo; doctrine, signaling to district and appellate courts that FLSA exemptions should be construed plainly as written and without a thumb tilting the scales toward a non-exempt finding.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/encino-motorcars-llc-v-navarro-scotus-puts-the-brakes-on-faulty-flsa-construction-language/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/rodriguezciodive040218 Leon Rodriguez quoted in CIO Dive http://www.seyfarth.com:80/news/rodriguezciodive040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a April 2 story from CIO Dive, &quot;Industry outlook on H-1B changes: Bad for the economy.&quot; Rodriguez said that there will be a mounting pressure to grow the number of immigrants harvested from the H-1B program from within Congress. You can read the <a href="https://www.ciodive.com/news/industry-outlook-on-h-1b-changes-bad-for-the-economy/520313/">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezfc040218 Leon Rodriguez quoted in Fast Company http://www.seyfarth.com:80/news/rodriguezfc040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a April 2 story from Fast Company, &quot;This Social Entrepreneur Is Helping Fellow Immigrants Lawyer Up,&quot; on how the U.S. Citizenship and Immigration Services (USCIS) recently announced that it will temporarily suspend premium processing, or fast processing, of H-1B visa petitions. Rodriguez said that the impact of those suspensions, taken together with a number of other burdensome policy changes, will have a severe impact on businesses that are seeking to hire needed professionals through this process. You can read the <a href="https://www.fastcompany.com/40551965/this-social-entrepreneur-is-helping-fellow-immigrants-lawyer-up">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanscrogginsnlj040218 Gerald Maatman and Andrew Scroggins' blog post referenced in the National Law Journal http://www.seyfarth.com:80/news/maatmanscrogginsnlj040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Gerald Maatman and Andrew Scroggins&#39; blog post was referenced in a April 2 story from the National Law Journal, &quot;Sharon Gustafson, EEOC General Counsel Pick, Discloses Law Firm Income, Clients.&quot; The Seyfarth lawyers said in a blog post that the business and employer community&mdash;likely expecting a management-side defense lawyer for EEOC general counsel&mdash;was sure to have &ldquo;prompt discussion&rdquo; about the nomination of Gustafson. Maatman said that Gustafson&rsquo;s financial disclosure and client list confirmed his view that Gustafson was a non-traditional choice for a Republican administration, given that she has principally represented workers in small cases.</p> http://www.seyfarth.com:80/news/fritzcl040218 Kevin Fritz profiled by Chicago Lawyer http://www.seyfarth.com:80/news/fritzcl040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Kevin Fritz was profiled in a April 2 story from Chicago Lawyer, &quot;&lsquo;Radical confidence&rsquo; : A Seyfarth Shaw associate focuses on doing the job.&quot; You can read the <a href="http://www.seyfarth.com/dir_docs/publications/CL_reprint_Seyfarth_Apr2018.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/jutkowitzshermanfww040118 Stanley Jutkowitz and Andrew Sherman quoted in Financier Worldwide http://www.seyfarth.com:80/news/jutkowitzshermanfww040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Stanley Jutkowitz and Andrew Sherman were quoted in an April 1 cover story from Financier Worldwide, &quot;Trump&rsquo;s tax cuts and the impact on US M&amp;A.&quot; Jutkowitz said that two provisions of the new tax law &ndash; the ability to expense the cost of tangible property and the limitation on the deductibility of business interest &ndash; are particularly relevant. Sherman said that the energy industry pays some of the highest rates of tax, so the cut in the corporate tax rate will make companies in this space more attractive targets. You can read the <a href="https://www.financierworldwide.com/trumps-tax-cuts-and-the-impact-on-us-ma#.WrJoGOSWyUk">full article here</a>.</p> http://www.seyfarth.com:80/publications/schwartzconfero040118 Richard Schwartz authored an article in Confero Magazine http://www.seyfarth.com:80/publications/schwartzconfero040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Richard Schwartz authored an April 1 article in Confero Magazine, &quot;Executive Compensation Changes Under The Tax Cuts and Jobs Act of 2017.&quot; You can read the <a href="http://westminster-consulting.com/Publications/Confero/Issue22/executive-compensation-changes-under-the-tax-cuts-and-jobs-act-of-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/luriercbg040118 Dawn Lurie authored an article in the IIUSA Regional Center Business Journal http://www.seyfarth.com:80/publications/luriercbg040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Dawn Lurie authored an April 1 article in the IIUSA Regional Center Business Journal, &quot;Best Practices for Redeployment.&quot; The article discusses the rules or processes governing redeployment of investor capital by the new commercial enterprise (NCE) during the sustainment period before adjudication of a foreign investor&rsquo;s I-829 Petition.</p> http://www.seyfarth.com:80/news/weisssbt033118 Philippe Weiss quoted in Small Business Trends http://www.seyfarth.com:80/news/weisssbt033118 Sat, 31 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 31 story from Small Business Trends, &quot;It&rsquo;s Best to Avoid April Fools Day Pranks at your Business, Expert Says.&quot; Weiss said that a boss pranking is offering a complete pranking license to his or her employees. You can read the <a href="https://smallbiztrends.com/2018/03/april-fools-day-pranks-at-work.html">full article here</a>.</p> http://www.seyfarth.com:80/news/whitmanwapo033018 Robert Whitman quoted in the Washington Post http://www.seyfarth.com:80/news/whitmanwapo033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Robert Whitman was quoted in a March 30 story from the Washington Post, &quot;A New York City official wants to give workers the right to ignore after-hours emails,&quot; on a law proposed in New York that would make it illegal for private employers to require workers to check and respond to email and other messages during nonwork hours. Whitman said that he can&rsquo;t imagine how this law could apply to exempt [salaried] employees. You can read the <a href="https://www.washingtonpost.com/news/on-leadership/wp/2018/03/30/a-new-york-official-wants-to-give-workers-the-right-to-ignore-after-hours-email/?utm_term=.918e6ecc519a">full article here</a>.</p> http://www.seyfarth.com:80/news/tonerpolitico033018 Jack Toner quoted in Politico http://www.seyfarth.com:80/news/tonerpolitico033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Jack Toner was quoted in a March 30 story from Politico, &quot;Morning Shift,&quot; on an update on the NLRB wars. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2018/03/30/no-justice-no-peeps-155001">full article here</a>.</p> http://www.seyfarth.com:80/news/recorder033018 Matthew Gagnon, Annette Tyman, Jeffrey Wortman and Kristina Launey's client alert referenced in The Recorder http://www.seyfarth.com:80/news/recorder033018</