Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80//news/middle-market-mergers-and-acquisitions-survey-suggests-continued-seller-favorable-deal-environment Middle-Market M&A Survey Suggests Continued Seller-Favorable Deal Environment http://www.seyfarth.com:80//news/middle-market-mergers-and-acquisitions-survey-suggests-continued-seller-favorable-deal-environment Wed, 29 Mar 2017 00:00:00 -0400 <div> NEW YORK &ndash; Leading law firm Seyfarth Shaw LLP has published the fourth edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 150 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2016.</div> <div> &nbsp;</div> <div> The Survey focuses on the key deal terms comprising the &ldquo;indemnity package&rdquo; often included in private target acquisition agreements to address the issue of a seller&rsquo;s potential post-closing liability to a buyer and defining the scope by which the purchase price paid to a seller may be clawed back by a buyer.</div> <div> &nbsp;</div> <div> The data analyzed in the Survey suggests that while the current M&amp;A environment is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than in 2015. As evidence, the Survey data revealed an increase in the median escrow period, an increase in the number of deals with an indemnity escrow amount of 10% or more, an increase in the median escrow amount, and an increase in the use of tipping baskets as opposed to a true deductible.</div> <div> &nbsp;</div> <div> The competition among buyers searching to acquire quality assets continues to be fierce and the purchase of representation and warranty insurance continues to be a powerful tool used by buyers in an effort to make their acquisition proposal more attractive to a seller by significantly limiting potential post-closing liability of the seller.</div> <div> &nbsp;</div> <div> While the Survey summarizes a variety of deal terms and trends in middle-market M&amp;A transactions, below are several key takeaways:</div> <ul> <li> <strong>Indemnity Escrow Amounts Increase</strong> - The median indemnity escrow amount in 2016 was 8% of the purchase price compared to 6% in 2015 and 7.41% in 2014. Approximately 35% of deals surveyed had an indemnity escrow amount of 10% or more, compared to 24% in 2015, but still below 41% in 2014 and 52% in 2013.&nbsp;</li> <li> <strong>Escrow Periods Increase</strong> - The median indemnity escrow period increased in 2016 to 18 months, compared to 16.5 months in 2015 and 15 months in 2014 and 2013. The percentage of deals with an indemnity escrow period of 24 months or greater increased to approximately 16% in 2016 compared to 13% in 2015 and 11% in 2014.</li> <li> <strong>Increased Use of Tipping Baskets</strong> - The use of threshold/tipping baskets increased to approximately 28% in 2016 from 25% in 2015 and 17% in 2014.</li> <li> <strong>Median Indemnity Cap Has Remained Unchanged Since 2013</strong> - The median indemnity cap remained steady in 2016 at 10% as compared to prior years.</li> <li> <strong>Decrease in Survival Period Carve Outs Related to Employee Benefits and Environmental Representations</strong> - The percentage of deals surveyed that carved out representations and warranties regarding employee benefits was approximately 23% in 2016 compared to 28% in 2015. Similarly, the percentage of deals that carved out representations and warranties regarding environmental matters was approximately 19% in 2016, which has been on a steady decline since 2013 when it was 30%.&nbsp;</li> </ul> <div> To view Seyfarth&rsquo;s 2017 Middle-Market M&amp;A SurveyBook, <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1">please visit here</a>.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.&nbsp;</div> http://www.seyfarth.com:80//publications/EL032917 Is a Request for Religious Accommodation “Protected Activity” for a Title VII Retaliation Claim? http://www.seyfarth.com:80//publications/EL032917 Wed, 29 Mar 2017 00:00:00 -0400 <p> The Equal Employment Opportunity Commission (EEOC) has maintained in its Enforcement Guidance on Retaliation that &ldquo;persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.&rdquo; In its Questions and Answers: Religious Discrimination in the Workplace, the EEOC &ldquo;has taken the position that requesting religious accommodation is protected activity.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/is-a-request-for-religious-accommodation-protected-activity-for-a-title-vii-retaliation-claim/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=506f8b2b34-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-506f8b2b34-71256185">click here</a></p> http://www.seyfarth.com:80//publications/MA032917-LE No Turning Back: The Brexit Process Begins http://www.seyfarth.com:80//publications/MA032917-LE Wed, 29 Mar 2017 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility and International Employment Law Practices host attorneys licensed to practice in the UK, Canada, Australia, China, Ireland, Germany, and France. These groups have &nbsp;assisted clients in more than 150 jurisdictions around the world.&nbsp; If we can assist you in international&nbsp; employment or immigration matters, please call your usual Seyfarth contact attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis: </strong></em><em>Today, British Prime Minister Theresa May invoked Article 50, formally starting the two-year negotiation process for the United Kingdom to withdraw from the European Union.</em></p> <p> The UK Government today notified the European Council President of the UK&rsquo;s intention to withdraw from the European Union, in accordance with Article 50 of the Lisbon Treaty. This formally kick-starts the two year negotiation process between the UK and the remaining 27 member states. In Prime Minister Theresa May&rsquo;s address to Parliament, she stated: &ldquo;This is an historic moment from which there can be no turning back.&rdquo;</p> <p> The UK and the EU now have a maximum of two years to negotiate the terms of exit for the UK, during which the UK Government also wants to explore its ongoing relationship and trade terms with the EU.&nbsp; If no agreement has been reached by the end of the two year period, the UK relationship with the EU will become the same as that of any other country under the WTO rules, with no preferential terms, unless the European Council (comprised of the Heads of all Member States) agrees to extend the negotiations. Based on recent UK Government statements, there seems to be an increasing acceptance that terms for the ongoing relationship will not be finalized by the end of March 2019, and some form of transitional arrangement to continue free trade may be necessary. Europe has however indicated this would be for only an additional three years.</p> <p> With respect to immigration, the Prime Minister confirmed the UK government&rsquo;s intention to maintain the common travel area with the Republic of Ireland and that there should be no return to a hard border with Northern Ireland. The UK will introduce measures to control immigration, continuing to attract the &ldquo;brightest and the best&rdquo; to work or study in Britain. The aim will be to manage the immigration process so that the system serves the national interest. Details of the new immigration regime will be decided during the two year negotiation process. In the interim, the existing free movement rights for EU citizens in the UK, and vice versa, will remain unchanged.</p> <p> <strong>What Happens Next? </strong></p> <p> There are no immediate changes to the UK&rsquo;s laws or status in the EU, pending the outcome of the exit negotiations. The rights of EU citizens who currently live in the UK, and the rights of British citizens who reside in other EU countries, will be an early priority in the negotiations. However, as the future status of these citizens has not yet been guaranteed, we continue to recommend that all EU nationals currently living in the UK apply for a residence card to confirm their status.</p> <p> Tomorrow, the UK Government will publish a White Paper confirming its plans to convert the existing EU laws into British law. Following exit from the EU, there may be changes to UK law to remove certain EU-derived protections and provide businesses with more flexibility, consistent with the UK Government&rsquo;s statement that the UK would try to lighten tax and regulation. Negotiations between the UK and EU teams are expected to begin in earnest in May, at which point we will have more detail of their positions on the key negotiating points.</p> <p> Most immigration and employed-related issues remain uncertain and will be decided during the negotiation process. We will update clients as further details are announced.</p> http://www.seyfarth.com:80//publications/EA032917-France No Turning Back: The Brexit Process Begins | Le point de non-retour: le processus du Brexit est lancé http://www.seyfarth.com:80//publications/EA032917-France Wed, 29 Mar 2017 00:00:00 -0400 <div> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Seyfarth Shaw&rsquo;s Global Mobility and International Employment Law Practices host attorneys licensed to practice in the UK, Canada, Australia, China, Ireland, Germany, and France. These groups have &nbsp;assisted clients in more than 150 jurisdictions around the world. &nbsp;If we can assist you in international employment or immigration matters, please call your usual Seyfarth contact attorney. We will be happy to help you.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>Today, British Prime Minister Theresa May invoked Article 50, formally starting the two-year negotiation process for the United Kingdom to withdraw from the European Union.</em></div> <div> &nbsp;</div> <div> <strong>Article 50 triggered</strong></div> <div> &nbsp;</div> <div> The UK Government today notified the European Council President of the UK&rsquo;s intention to withdraw from the European Union, in accordance with Article 50 of the Lisbon Treaty. This formally kick-starts the two year negotiation process between the UK and the remaining 27 member states. In Prime Minister Theresa May&rsquo;s address to Parliament, she stated: &ldquo;This is an historic moment from which there can be no turning back.&rdquo;&nbsp;<br /> &nbsp;</div> <div> The UK and the EU now have a maximum of two years to negotiate the terms of exit for the UK, during which the UK Government also wants to explore its ongoing relationship and trade terms with the EU. &nbsp;If no agreement has been reached by the end of the two year period, the UK relationship with the EU will become the same as that of any other country under the WTO rules, with no preferential terms, unless the European Council (comprised of the Heads of all Member States) agrees to extend the negotiations. Based on recent UK Government statements, there seems to be an increasing acceptance that terms for the ongoing relationship will not be finalized by the end of March 2019, and some form of transitional arrangement to continue free trade may be necessary. Europe has however indicated this would be for only an additional three years.</div> <div> &nbsp;</div> <div> With respect to immigration, the Prime Minister confirmed the UK government&rsquo;s intention to maintain the common travel area with the Republic of Ireland and that there should be no return to a hard border with Northern Ireland. The UK will introduce measures to control immigration, continuing to attract the &ldquo;brightest and the best&rdquo; to work or study in Britain. The aim will be to manage the immigration process so that the system serves the national interest. Details of the new immigration regime will be decided during the two year negotiation process. In the interim, the existing free movement rights for EU citizens in the UK, and vice versa, will remain unchanged.&nbsp;</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> There are no immediate changes to the UK&rsquo;s laws or status in the EU, pending the outcome of the exit negotiations. The rights of EU citizens who currently live in the UK, and the rights of British citizens who reside in other EU countries, will be an early priority in the negotiations. However, as the future status of these citizens has not yet been guaranteed, we continue to recommend that all EU nationals currently living in the UK apply for a residence card to confirm their status.&nbsp;</div> <div> &nbsp;</div> <div> Tomorrow, the UK Government will publish a White Paper confirming its plans to convert the existing EU laws into British law. Following exit from the EU, there may be changes to UK law to remove certain EU-derived protections and provide businesses with more flexibility, consistent with the UK Government&rsquo;s statement that the UK would try to lighten tax and regulation. Negotiations between the UK and EU teams are expected to begin in earnest in May, at which point we will have more detail of their positions on the key negotiating points.&nbsp;</div> <div> &nbsp;</div> <div> Most immigration and employed-related issues remain uncertain and will be decided during the negotiation process. We will update clients as further details are announced.</div> <div> &nbsp;</div> <div> <hr /> <div> <em>L&rsquo;article ci-dessous est destin&eacute; aux entreprises &eacute;tablies &nbsp;au Royaume Uni ou qui envisagent de recruter ou d&eacute;tacher du personnel au Royaume-Uni.&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Des avocats inscrits aux barreaux du Royaume-Uni, du Canada, d&rsquo;Australie, de Chine, d&rsquo;Irlande, d&rsquo;Allemagne et de France travaillent au sein des d&eacute;partements droit social international et mobilit&eacute; internationale de Seyfarth Shaw. Ils assistent des clients dans plus de 150 juridictions autour du monde. Si vous avez besoin de conseil en droit du travail international ou pour une question d&rsquo;immigration, veuillez contacter votre interlocuteur habituel au sein de Seyfarth. Nous serons heureux de vous aider.&nbsp;</em></div> <div> &nbsp;</div> <div> <em><strong>Synopsis Seyfarth:</strong> Aujourd&rsquo;hui, le premier ministre britannique, Theresa May a invoqu&eacute; l&rsquo;Article 50, lan&ccedil;ant ainsi de fa&ccedil;on formelle le processus de n&eacute;gociation de deux ans &agrave; l&rsquo;issue duquel le Royaume-Uni se retirera de l&rsquo;Union Europ&eacute;enne (UE).</em></div> <div> &nbsp;</div> <div> <strong>L&rsquo;Article 50 enclench&eacute;</strong></div> <div> &nbsp;</div> <div> Le Royaume-Uni et l&rsquo;Europe disposent d&eacute;sormais d&rsquo;une p&eacute;riode maximale de deux ans pour n&eacute;gocier les conditions de sortie du Royaume-Uni, p&eacute;riode au cours de laquelle le gouvernement britannique souhaite &eacute;galement explorer la question de ses relations avec l&rsquo;Europe et les conditions commerciales avec l&rsquo;UE. Si aucun accord n&rsquo;est trouv&eacute; &agrave; l&rsquo;issue de ces deux ann&eacute;es, la relation entre le Royaume-Uni et l&rsquo;UE deviendra la m&ecirc;me qu&rsquo;avec n&rsquo;importe quel autre pays, en application des r&egrave;gles de l&rsquo;Organisation Mondiale du Commerce, sans conditions pr&eacute;f&eacute;rentielles, &agrave; moins que le Conseil europ&eacute;en (form&eacute; des chefs d&rsquo;&eacute;tat des &eacute;tats membres) accepte d&rsquo;&eacute;tendre les n&eacute;gociations. Les r&eacute;centes d&eacute;clarations du gouvernement britannique t&eacute;moignent d&rsquo;une acceptation g&eacute;n&eacute;rale que les termes et conditions des futures relations ne seront pas finalis&eacute;s avant fin mars 2019 et que des dispositions transitoires permettant la poursuite du march&eacute; unique sera n&eacute;cessaire. L&rsquo;Europe a n&eacute;anmoins indiqu&eacute; que la prolongation n&rsquo;ira pas au-del&agrave; de trois ans suppl&eacute;mentaires.</div> <div> &nbsp;</div> <div> En mati&egrave;re d&rsquo;immigration, le premier ministre a cependant confirm&eacute; l&rsquo;intention du gouvernement britannique de maintenir une zone de libre circulation avec l&rsquo;Irlande et qu&rsquo;on ne r&eacute;tablira pas &agrave; une fronti&egrave;re avec l&rsquo;Irlande du Nord. Le Royaume-Uni introduira des mesures pour contr&ocirc;ler l&rsquo;immigration, tout en continuant d&rsquo;attirer &laquo; &nbsp;les meilleurs et les plus brillants &raquo; &agrave; venir travailler et &eacute;tudier en Grande Bretagne. Le but est de pouvoir contr&ocirc;ler le processus d&rsquo;immigration pour que le syst&egrave;me serve l&rsquo;int&eacute;r&ecirc;t national. Plus de d&eacute;tails sur ce nouveau dispositif seront d&eacute;cid&eacute;s au cours des deux ann&eacute;es du processus de n&eacute;gociation. Entre temps, le droit des ressortissants europ&eacute;ens de librement circuler vers le Royaume-Uni et r&eacute;ciproquement demeureront inchang&eacute;s.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Quelles prochaines &eacute;tapes?</strong></div> <div> &nbsp;</div> <div> Dans l&rsquo;imm&eacute;diat, le droit britannique ou le statut du Royaume-Uni au sein de l&rsquo;UE demeurent inchang&eacute;s jusqu&rsquo;&agrave; la fin des n&eacute;gociations. Les droits des ressortissants europ&eacute;ens qui vivent au Royaume-Uni et les droits des citoyens britanniques qui vivent dans des pays de l&rsquo;UE seront une priorit&eacute; dans les n&eacute;gociations. Cependant, le statut &agrave; venir de ces citoyens n&rsquo;a pas &eacute;t&eacute; encore garanti et notre recommandation reste la m&ecirc;me que pr&eacute;c&eacute;demment : nous encourageons les citoyens europ&eacute;ens habitant au Royaume-Uni &agrave; faire la demande d&rsquo;une carte de r&eacute;sident afin de confirmer leur statut.&nbsp;</div> <div> &nbsp;</div> <div> Demain, le gouvernement britannique va publier une feuille de route confirmant son intention de convertir les r&egrave;gles europ&eacute;ennes existantes en droit britannique. Apr&egrave;s la sortie du Royaume-Uni, il y aura peut-&ecirc;tre des modifications du droit britannique aux fins de se d&eacute;laisser de certaines r&egrave;gles restrictives europ&eacute;ennes, et de donner plus de flexibilit&eacute; aux entreprises, conform&eacute;ment aux d&eacute;clarations du gouvernement britannique selon lesquelles le Royaume-Uni allait essayer d&rsquo;all&eacute;ger la fiscalit&eacute; et les r&egrave;gles du march&eacute;. Il est pr&eacute;vu que les n&eacute;gociations entre les &eacute;quipes britanniques et europ&eacute;ennes commenceront en mai. Nous aurons alors plus d&rsquo;information sur leurs positions respectives concernant les points forts des n&eacute;gociations.&nbsp;</div> <div> &nbsp;</div> <div> La plupart des questions relatives au droit du travail et au droit de l&rsquo;immigration restent incertaines et seront tranch&eacute;es pendant le processus de n&eacute;gociation. Nous tiendrons nos clients inform&eacute;s d&egrave;s que nous aurons plus de d&eacute;tails.&nbsp;</div> </div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/CP032917 New Regulations Limit California Employers’ Consideration of Criminal History http://www.seyfarth.com:80//publications/CP032917 Wed, 29 Mar 2017 00:00:00 -0400 <p> The California Fair Employment and Housing Council (&ldquo;FEHC&rdquo;) has approved new regulations, effective July 1, 2017, to limit employers&rsquo; use of criminal history when making employment decisions.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/29/new-regulations-limit-california-employers-consideration-of-criminal-history/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=0705c66e40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-0705c66e40-71410869">click here</a></p> http://www.seyfarth.com:80//publications/ES032817 OSHA Promotes “Safe and Sound Campaign” to Assist Employers — A Change in Approach? http://www.seyfarth.com:80//publications/ES032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> In a recent news release out of OSHA&rsquo;s Region 7, it notes that OSHA&rsquo;s national &ldquo;Safe and Sound Campaign&rdquo; will assist employers in keeping workplaces safe and healthy. &nbsp;OSHA is highlighting both the launch of the &ldquo;Safe and Sound Campaign&rdquo; webpage, calling on employers to review their safety and health programs to protect workers, and reduce workplace injuries and deaths, and its &ldquo;Recommended Practices for Safety and Health Programs&rdquo; webpage, that offers &ldquo;practical advice on how any organization can integrate safety and health programs.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-promotes-safe-and-sound-campaign/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=60fa8bc247-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-60fa8bc247-71407177">click here</a></p> http://www.seyfarth.com:80//publications/ERISA032817 Administrative Exhaustion As a Defense to Statutory ERISA Claims? Not So Much. http://www.seyfarth.com:80//publications/ERISA032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> In a decision earlier this month, the Sixth Circuit joined six other circuit courts in holding that ERISA claims that seek vindication of statutory ERISA rights pertaining to the <em>legality</em> of a plan amendment, as opposed to an <em>interpretation</em> of the plan, are not subject to administrative exhaustion requirements. &nbsp;The Sixth Circuit joined the Third, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits in so holding, while the Seventh and Eleventh Circuits require administrative exhaustion even where plaintiffs assert statutory rights.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/03/28/administrative-exhaustion-as-a-defense-to-statutory-erisa-claims-not-so-much/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=02af02ef07-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-02af02ef07-73050525">click here</a></p> http://www.seyfarth.com:80//news/turnbull-and-howman-giles-authored-article-wolters-kluwer-032817 Justine Turnbull and Cassie Howman-Giles authored an article in <i>Wolters Kluwer</i> http://www.seyfarth.com:80//news/turnbull-and-howman-giles-authored-article-wolters-kluwer-032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> Justine Turnbull and Cassie Howman-Giles authored &quot;A Perspective on the Unequal Representation of Women in Leadership,&quot; an article on March 28 in <em>Wolters Kluwer</em>. The article considers whether this under-representation is caused by a failure to recognise that women as much as men are able to achieve and sustain appropriate business outcomes and concludes that this is a matter that good corporate governance can resolve.</p> <p> <a href="http://www.wolterskluwercentral.com.au/employment/equal-opportunity/perspective-unequal-representation-women-leadership/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/klimesh-and-maricich-quoted-pennsylvania-record-032817 Mary Kay Klimesh and Bridget Maricich quoted in the <i>Pennsylvania Record</i> http://www.seyfarth.com:80//news/klimesh-and-maricich-quoted-pennsylvania-record-032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> Mary Kay Klimesh and Bridget Maricich were quoted in &quot;Extending Title IX to hospitals &#39;a surprise to many&#39;,&quot; a March 28 story from the <em>Pennsylvania Record</em> on a decision from the U.S. Court of Appeals for the Third Circuit which overturned a Philadelphia federal court ruling that dismissed a former medical resident&rsquo;s Title IX claims against a private medical center. Klimesh and Maricich said that the hospital industry should definitely be aware of this ruling and prepare for its impact.</p> <p> <a href="http://pennrecord.com/stories/511096387-extending-title-ix-to-hospitals-a-surprise-to-many">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/lutkus-quoted-law360-032717 Richard Lutkus quoted in <i>Law360</i> http://www.seyfarth.com:80//news/lutkus-quoted-law360-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in &quot;Anatomy of a Hack,&quot; a March 27 cover story from <em>Law360 </em>on how cybercriminals are breaching BigLaw&rsquo;s defense. Lutkus said that brand is a hard thing to build trust in and as soon as it&rsquo;s proven wrong by the market in terms of a hack, it&rsquo;s a PR nightmare.</p> http://www.seyfarth.com:80//news/paparelli-quoted-law360-032717 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/paparelli-quoted-law360-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;3 Things To Watch For As Congress Takes Up EB-5 Renewal,&quot; a March 27 story from <em>Law360 </em>on three things to watch for as Congress takes up EB-5. Paparelli said that the biggest stumbling block is still the dispute that has long been waged: that is, that most of the EB-5 money, as you look at the program, has gone to gateway cities or large-scale real estate projects &mdash; hotels, office buildings, mixed-use commercial development.</p> http://www.seyfarth.com:80//news/vu-quoted-courthouse-news-service-032717 Minh Vu was quoted by the <i>Courthouse News Service</i> http://www.seyfarth.com:80//news/vu-quoted-courthouse-news-service-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Minh Vu was quoted in &quot;E-tailer Fights Threat of &lsquo;Drive-By&rsquo; ADA Lawsuit,&quot; a March 27 story from the <em>Courthouse News Service</em> on the firm&rsquo;s ADA Title III research showing that Americans with Disabilities Act lawsuits filed under Title III have proliferated recently: a 37 percent increase nationally in the past year alone and a 143 percent increase since 2013. Vu said that website lawsuits are now the serial drive-by.</p> <p> <a href="https://www.courthousenews.com/e-tailer-fights-threat-drive-ada-lawsuit/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/tyman-quoted-bloomberg-BNA-032717 Annette Tyman quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/tyman-quoted-bloomberg-BNA-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Annette Tyman was quoted in &quot;Google Fought the Labor Department, and Google Won,&quot; a March 27 story from <em>Bloomberg BNA</em> on Google Inc.&rsquo;s preliminary victory in a Labor Department lawsuit which has some government contractors rethinking the way they respond to federal pay discrimination investigations. Tyman said that the Judge made clear that the reasonableness of any data request may depend at least in part on the amount of business a company does with the federal government.</p> <p> <a href="https://bol.bna.com/google-fought-the-labor-department-and-google-won/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM032717-LE President Trump Revokes Government Contracting Executive Orders And Signs Disapproval Resolution of “Blacklisting” Regulations http://www.seyfarth.com:80//publications/OMM032717-LE Mon, 27 Mar 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em> <em>Today, President Trump issued an Executive Order revoking President Obama&rsquo;s &ldquo;Blacklisting&rdquo; Executive Orders pertaining to the government contracting community.&nbsp; The President also signed the joint resolution of disapproval rescinding the resolutions issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled &ldquo;Fair Pay and Safe Workplaces&rdquo; but popularly referred to as the &ldquo;Blacklisting&rdquo; Order.&nbsp; Under the Congressional Review Act, once a resolution is rescinded, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.</em></p> <p> Today, March 27, 2017, President Trump issued a new Executive Order titled &ldquo;Revocation of Federal Contracting Executive Orders&rdquo; rescinding the &ldquo;Blacklisting&rdquo; Executive Orders issued by President Obama.&nbsp; The President also signed the resolution of disapproval passed by both <a href="http://www.seyfarth.com/publications/OMM030817-LE">Houses of Congress</a>, disapproving the regulations issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled &ldquo;Fair Pay and Safe Workplaces&rdquo; but more popularly referred to as the &ldquo;Blacklisting&rdquo; Order.&nbsp; The resolution of disapproval was made pursuant to the Congressional Review Act (CRA), which permits Congress to pass legislation rescinding a particular regulation under certain restrictions.</p> <p> Both President Trump&rsquo;s new Executive Order and the rescission resolution are in line with the Trump Administration&rsquo;s stated goal of rolling back many Obama-era federal regulations.&nbsp; They also have the effect of rescinding the paycheck transparency provisions requiring contractors to provide regular statements disclosing wages and benefits to employees, which were left in place by Judge Marcia Crone&rsquo;s nationwide preliminary <a href="http://www.seyfarth.com/publications/OMM102616-LE">injunction</a> blocking the other elements of the &ldquo;Blacklisting&rdquo; Orders&rsquo; implementing regulations.</p> <p> Now that the &ldquo;Blacklisting&rdquo; Orders&rsquo; implementing regulations have been completely rescinded pursuant to the CRA, the Executive Branch is prohibited from reissuing the same regulations, or promulgating similar ones, without Congressional approval.&nbsp; The Executive Order itself is also no longer in effect, due to President Trump&rsquo;s action today to rescind it.</p> <p> The &ldquo;Blacklisting&rdquo; Order was criticized by the employer community and employer associations because of the additional financial burdens it imposed on covered contractors, the risk to reputation and business from public disclosure of alleged violations before they are proven, and the fact that agencies already had enforcement mechanisms in place to ensure contractor compliance.&nbsp; The Congressional action under the CRA removed these supplementary requirements for federal contractors and the additional responsibilities given to the contracting agencies and the Department of Labor.</p> http://www.seyfarth.com:80//publications/WC032417 Keys To Successor Liability: EEOC Discrimination Suit In Alabama http://www.seyfarth.com:80//publications/WC032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> An Alabama district court granted a temporary staffing company&rsquo;s motion to dismiss all claims in one of the EEOC&rsquo;s most high-profile lawsuits asserting hiring discrimination and abuse of vulnerable workers. The ruling illustrates the procedural defenses that employers possess to ensure that pre-lawsuit investigations undertaken by the EEOC accord with its obligations under the law.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/keys-to-successor-liability-eeoc-discrimination-suit-in-alabama/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=5c2cbcc1dc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-5c2cbcc1dc-73050581">click here</a></p> http://www.seyfarth.com:80//publications/HRCMA-032417 Issue 107: House Pulls AHCA Minutes After Expected Vote - Future of Repeal Efforts Uncertain http://www.seyfarth.com:80//publications/HRCMA-032417 Fri, 24 Mar 2017 00:00:00 -0400 <div> <em>This is the one hundred and seventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here</a> to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> As noted in <a href="http://www.seyfarth.com/publications/HRCMA-030817">Issue 106</a>, earlier this month Congressional Republicans introduced the American Health Care Act (&ldquo;AHCA&rdquo;), which was intended to &ldquo;repeal&rdquo; the Affordable Care Act (&ldquo;ACA&rdquo;). The AHCA faced challenges from the outset, including:&nbsp;</div> <div> &nbsp;</div> <ul> <li> Congressional Democrats are completely united in opposition to the AHCA.</li> <li> Moderate Republicans are concerned about the potential coverage losses resulting from the AHCA.</li> <li> Conservative Republicans believe the AHCA does not go far enough, does not truly repeal the ACA, and will not do enough to drive down the cost of health coverage.</li> <li> Congressional Budget Office scores showed the AHCA resulting in 24 million fewer insureds over the next decade, as compared to the ACA.&nbsp;</li> <li> Senate reconciliation rules significantly limit the scope of what provisions of the AHCA may be passed through &ldquo;reconciliation&rdquo; (the legislative process available in the Senate for passing a budget bill, requiring 51 rather than 60 votes).&nbsp;</li> <li> The ACA&rsquo;s popularity has risen (although it still remains underwater) since President Trump&rsquo;s inauguration. &nbsp;</li> </ul> <div> &nbsp;</div> <div> Notwithstanding the challenges, the AHCA enjoyed the full backing of President Trump and most establishment Republicans (as represented by Speaker Paul Ryan). Over the last week, Paul Ryan, as well as President Trump, have made a number of concessions (mostly at the request of the Freedom Caucus, representing the more conservative wing of the Republican party) to shore up votes. Even though these efforts resulted in a few Republicans moving away from &ldquo;no,&rdquo; many Freedom Caucus members remained staunchly opposed, and certain moderate Republicans started wavering. &nbsp;</div> <div> &nbsp;</div> <div> The vote on the AHCA was originally scheduled for Thursday, but it was delayed when it became apparent the votes were not there. Late Thursday night (following additional concessions to the Freedom Caucus), President Trump issued an ultimatum, demanding a vote on Friday and threatening that this would be the last opportunity to address the ACA if Republicans did not line up in support. &nbsp;</div> <div> &nbsp;</div> <div> Late Friday afternoon, Paul Ryan announced the vote would not be held (at the request of President Trump). This means the ACA remains in full effect and, the future of any repeal efforts are uncertain. During a press conference held soon after the announcement, Paul Ryan indicated that Congress is going to have to figure out the next steps. There are a few possible &ldquo;next steps&rdquo; (this list is by no means comprehensive):</div> <div> &nbsp;</div> <ul> <li> <em>Retain the ACA.</em> President Trump could hold firm on his ultimatum and advise Congress that he will support no further efforts to repeal the ACA. To a certain extent, this would allow President Trump to test his theory that the best way to address the ACA is to let it collapse. &nbsp;</li> <li> <em>Further Negotiations.</em> The timeframe for repealing the law was largely symbolic (House Republicans wanted to hold their vote on the anniversary of the ACA). Nothing would stop Congress from further negotiations to attempt to drum up more votes. But, the more time devoted to the repeal of the ACA, the less time available for votes on other Republican pet projects (e.g., tax reform). &nbsp;</li> <li> <em>Piecemeal Efforts.</em> President Trump has expressed regret both that he attempted to address the ACA first and that he attempted to address repeal in one comprehensive effort. Republicans might attempt to add piecemeal repeal efforts into future legislation, or to address those components on a stand-alone basis. Assuming Congress takes this approach, it is unlikely there will be any further significant efforts to repeal the ACA in the short term. &nbsp;</li> <li> <em>Administrative Action.</em> Even in the absence of a comprehensive repeal or reconciliation effort, the Administration retains great flexibility, through regulatory action, to water down various provisions of the ACA. But, this remains more difficult with the law on the books.&nbsp;</li> </ul> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/ADA032417 Public Accommodations are Starting to Win Website Accessibility Lawsuits http://www.seyfarth.com:80//publications/ADA032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> The litigation tide might be turning for public accommodations choosing to fight lawsuits brought by blind individuals claiming that the businesses&rsquo; websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them. &nbsp;As we have previously reported, about a dozen or so plaintiffs&rsquo; firms have filed hundreds of lawsuits and sent thousands of demand letters to businesses asserting this type of claim on behalf of blind clients in the past two years. &nbsp;Most of these matters have settled quickly and confidentially, and the relatively few defendants who chose to litigate rarely had success in getting the cases dismissed. &nbsp;However, two recent decisions from California and Florida federal judges do provide encouragement for businesses that are willing to spend the money to litigate.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/03/public-accommodations-are-starting-to-win-website-accessibility-lawsuits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=caffe75e7e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-caffe75e7e-71256157">click here</a></p> http://www.seyfarth.com:80//publications/EA032417 France: How to Tackle Religion in the Workplace | France : Quelles réponses apporter à la religion en entreprise http://www.seyfarth.com:80//publications/EA032417 Fri, 24 Mar 2017 00:00:00 -0400 <div> Due to the recent terrorist attacks and headlines on religious extremism across Europe, the question of restricting religious expression in the workplace is becoming more prevalent for French employers. Employers would agree that the workplace should not be a place where religious tensions should arise. Until recently, employers have had few practical guidelines on how to restrict religious expressions at work, or whether these types of restrictions are lawful. Two recent decisions by the Court of Justice of the European Union (CJEU) on 14 March 2017 and a practical guideline from the French Ministry of Labour provide several helpful responses, which we summarise below.</div> <div> &nbsp;</div> <div> <strong>Conflicting Principles</strong></div> <div> &nbsp;</div> <div> Employees have fundamental rights that need to be respected: the freedom of religious belief and the right to express such belief; the right not to be discriminated against on grounds of religion; and the right to equal treatment. Employers have the right to run a business and the right to control and organise their workforce, within reason. In the public sector only, secularism at work means that French civil servants are not entitled to express their religious beliefs in the workplace. For the private sector, the Labour Law (Loi Travail) of August 2016 introduces the principle of neutrality.</div> <div> &nbsp;</div> <div> In light of this, the French Ministry of Labour recently published a practical guideline to religious practice in the form of questions and answers. Though the practical guideline is not legally binding and contains no sanctions, it is an innovative document that interprets the law and shows the critical religious issues in the workplace.</div> <div> &nbsp;</div> <div> The underlying principle is that an employee&rsquo;s religion is not in itself a ground for lawful differential treatment, as it would be a discriminatory measure. The employer, when prohibiting, limiting or sanctioning an employee&rsquo;s behaviour linked to a religion, will have the delicate task of relying on other legal principles.</div> <div> &nbsp;</div> <div> <strong>Practical Situations and Suggested Solutions by the Ministry</strong></div> <div> &nbsp;</div> <div> The Ministry of Labour&rsquo;s guideline provides some helpful examples:</div> <div> &nbsp;</div> <div> <strong>Sanctions:</strong> The employer should sanction an employee who refuses to acknowledge a female colleague on grounds of religion. This is a sexist behaviour prohibited by the Labour Code.</div> <div> &nbsp;</div> <div> <strong>Health and Safety:</strong> The employer may stop employees from wearing a kippa, scarf or Sikh turban when this is justified by external factors, such as complying with mandatory hygiene rules in a medical environment, a factory or a kitchen; or complying with health and safety rules where wearing a safety helmet is compulsory. The employer has a duty of care towards his/her employees, e.g. during Ramadan when he/she might have to stop a fasting employee from working if there&rsquo;s a risk of him/her being in danger (e.g. a crane driver). The Ministry of Labour&rsquo;s practical guide suggests, with reference to the above example, that the employer has the right not to pay the employee for the days he/she is &ldquo;fasting&rdquo;. &nbsp;In practice, this suggestion should be considered carefully when withholding salary, as the risk of claims is high. &nbsp;The employer will need to demonstrate that the employee&rsquo;s fasting is putting him/her and others in danger.</div> <div> &nbsp;</div> <div> Paid leave: The employer does not have to accept an employee&rsquo;s request to take time off for a religious event. However, if the employer refuses, it must be for objective reasons relating to the smooth running of the company.</div> <div> &nbsp;</div> <div> <strong>Neutrality in Religion - What Employers Can Do</strong></div> <div> &nbsp;</div> <div> The Loi Travail introduces the principle of neutrality as being the equivalent of secularism, applied to companies in the private sector. The employer now has the possibility of including in company rules provisions that promote neutrality inside the company and that limit the extent employees can express their personal convictions and opinions, especially religious beliefs. However, this is not without limits. The principle of neutrality can only be included in the rules when it can be justified by the nature of the employees&rsquo; tasks, it is necessary for the smooth running of the company, or when it is linked to the exercise of other basic rights and freedoms and is proportionate to the desired objective.</div> <div> &nbsp;</div> <div> When drawing up policies, employers should in any event involve unions and other staff representatives, as the religious issue covers working conditions, working organization, health and safety issues, all of which are part of their intervention authority.</div> <div> &nbsp;</div> <div> <strong>Consecration of the Principle of Neutrality by the CJEU</strong></div> <div> &nbsp;</div> <div> The CJEU had been asked the following prejudicial question: is an employer allowed to prevent an employee who is in contact with customers from wearing a head scarf because the customer requests this (French case) or because the obligation of neutrality is provided in the Internal Rules (Belgian case)?</div> <div> &nbsp;</div> <div> The CJEU rendered its decisions communicated &nbsp;in a press release dated 14 March 2017: an internal rule of an undertaking, which prohibits the visible wearing of any political, philosophical or religious sign, does not constitute direct discrimination in itself. However, in the absence of such internal policy stating the principle of neutrality, an employer cannot take into account a customer&rsquo;s wishes as an occupational requirement to sanction an employee&mdash;such measure is deemed discriminatory.</div> <div> &nbsp;</div> <div> This CJEU decision is a strong invitation to introduce the principle of neutrality in a company&rsquo;s internal rules to avoid future claims, while ensuring that the measures are justified by a legitimate aim and genuinely pursued in a consistent and systematic manner.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> France : Quelles r&eacute;ponses apporter &agrave; la religion en entreprise</p> <div> Dans le contexte des r&eacute;cents &eacute;v&egrave;nements terroristes et l&rsquo;attention port&eacute;e par les media aux comportements et expressions des extr&eacute;mismes religieux en France, la question de la n&eacute;cessit&eacute; d&rsquo;encadrer l&rsquo;expression d&rsquo;une croyance religieuse en entreprise quelle qu&rsquo;elle soit se pose de plus en plus fr&eacute;quemment. Les employeurs s&rsquo;accorderont sur le fait que le lieu de travail ne peut &ecirc;tre l&rsquo;endroit o&ugrave; les tensions religieuses s&rsquo;expriment. Toutefois, jusqu&rsquo;&agrave; r&eacute;cemment, &nbsp;les employeurs avaient peu de guides pratiques sur comment imposer des restrictions sur l&rsquo;expression de nature religieuse, voire de clart&eacute; sur la l&eacute;galit&eacute; de telles restrictions. Deux d&eacute;cisions de la Cour de Justice de l&rsquo;Union Europ&eacute;enne (CJUE) du 14 mars 2017 et un guide pratique du Minist&egrave;re du Travail apportent plusieurs r&eacute;ponses utiles que nous rappelons ci-dessous.</div> <div> &nbsp;</div> <div> <strong>Des principes qui s&rsquo;opposent</strong></div> <div> &nbsp;</div> <div> Les salari&eacute;s b&eacute;n&eacute;ficient de droits fondamentaux qui doivent &ecirc;tre prot&eacute;g&eacute;s : la libert&eacute; de croire, la libert&eacute; d&rsquo;exprimer leurs croyances, le droit de ne pas &ecirc;tre discrimin&eacute;, directement ou indirectement en raison de leur religion et le droit &agrave; une &eacute;galit&eacute; de traitement. Les employeurs ont quant &agrave; eux le droit d&rsquo;entreprendre et le droit d&rsquo;organiser le fonctionnement de l&rsquo;entreprise et de contr&ocirc;ler raisonnablement l&rsquo;activit&eacute; des salaries. Dans les services publics uniquement, le principe de la&iuml;cit&eacute; permet de limiter le droit des fonctionnaires d&rsquo;exprimer leurs croyances au travail. Dans le secteur priv&eacute;, la loi Travail d&rsquo;ao&ucirc;t 2016 a introduit le principe de neutralit&eacute;.</div> <div> &nbsp;</div> <div> Ainsi, le minist&egrave;re du travail a r&eacute;cemment publi&eacute; un guide pratique du fait religieux sous forme de questions r&eacute;ponses. Bien que ce guide n&rsquo;ait pas d&rsquo;autorit&eacute; l&eacute;gale et ne contienne aucune sanction, il s&rsquo;agit d&rsquo;un document novateur interpr&eacute;tant le principe l&eacute;gal de neutralit&eacute; et d&eacute;montrant la sensibilit&eacute; du fait religieux en entreprise.</div> <div> &nbsp;</div> <div> Le principe directeur, la religion d&rsquo;un salari&eacute; ne peut jamais &ecirc;tre invoqu&eacute;e pour l&eacute;galement justifier une diff&eacute;rence de traitement. Aussi, pour interdire, encadrer, sanctionner des comportements en lien avec la religion, l&rsquo;employeur aura toujours la d&eacute;licate t&acirc;che de devoir trouver des fondements autres.</div> <div> &nbsp;</div> <div> <strong>Exemples pratiques et solutions du Minist&egrave;re</strong></div> <div> &nbsp;</div> <div> Le guide pratique du Minist&egrave;re du Travail pr&eacute;sente quelques illustrations utiles.</div> <div> &nbsp;</div> <div> <strong>Sanctionner.</strong> L&rsquo;employeur pourra sanctionner le salari&eacute; qui refuse de saluer sa coll&egrave;gue parce qu&rsquo;elle est une femme pour un motif religieux. C&rsquo;est un comportement sexiste prohib&eacute; par le Code du travail.</div> <div> &nbsp;</div> <div> <strong>Hygi&egrave;ne et S&eacute;curit&eacute;.</strong> L&rsquo;employeur peut interdire le port de la kippa, du voile, d&rsquo;un turban sikh si cette interdiction est justifi&eacute;e par un int&eacute;r&ecirc;t autre tel que le respect des r&egrave;gles d&rsquo;hygi&egrave;ne dans le milieu m&eacute;dical, dans une usine ou une cuisine ; ou le respect des r&egrave;gles de s&eacute;curit&eacute; quand le port d&rsquo;un casque de chantier est obligatoire. L&rsquo;employeur a une obligation de s&eacute;curit&eacute; &agrave; l&rsquo;&eacute;gard de ses salari&eacute;s, aussi en p&eacute;riode de ramadan par exemple, l&rsquo;employeur peut voire m&ecirc;me doit retirer de son poste un salari&eacute; qui jeune pendant le ramadan et qui pourrait se mettre en danger (ex. grutier). Le guide pratique du minist&egrave;re sugg&egrave;re m&ecirc;me dans cet exemple que l&rsquo;employeur aurait alors le droit de ne pas payer le salari&eacute; pendant les journ&eacute;es non travaill&eacute;es de &laquo; retrait &raquo;. En pratique cette suggestion pr&eacute;sente des risques &eacute;vidents et devra &ecirc;tre analys&eacute;e au pr&eacute;alable. L&rsquo;employeur devra prouver que le jeun du salari&eacute; le mettait en danger et les autres.</div> <div> &nbsp;</div> <div> Conges. L&rsquo;employeur n&rsquo;a pas l&rsquo;obligation d&rsquo;accorder un jour de cong&eacute; au salari&eacute; qui veut s&rsquo;absenter pour une f&ecirc;te religieuse, en revanche le refus de l&rsquo;employeur doit reposer sur des raisons objectives li&eacute;es au fonctionnement de la soci&eacute;t&eacute;.</div> <div> &nbsp;</div> <div> <strong>La neutralit&eacute; en mati&egrave;re religieuse - Ce que les employeurs peuvent faire</strong></div> <div> &nbsp;</div> <div> La Loi Travail a introduit le principe de neutralit&eacute;, soit l&rsquo;&eacute;quivalent du principe de la&iuml;cit&eacute; appliqu&eacute; aux entreprises du secteur priv&eacute;. L&rsquo;employeur a d&eacute;sormais la facult&eacute; d&rsquo;introduire dans le r&egrave;glement int&eacute;rieur des dispositions instaurant une neutralit&eacute; au sein de l&rsquo;entreprise qui conduit &agrave; limiter l&rsquo;expression des convictions personnelles, notamment religieuses des salari&eacute;s. Cependant, cette possibilit&eacute; n&rsquo;est pas absolue. Le principe de neutralit&eacute; ne peut &ecirc;tre inscrit dans le r&egrave;glement int&eacute;rieur que s&rsquo;il est justifi&eacute; par la nature de la t&acirc;che &agrave; accomplir, les n&eacute;cessit&eacute;s tir&eacute;s du bon fonctionnement de l&rsquo;entreprise, ou l&rsquo;exercice d&rsquo;autres libert&eacute;s et droits fondamentaux et s&rsquo;il est proportionn&eacute; au but recherch&eacute;.</div> <div> &nbsp;</div> <div> Les employeurs qui entendent mettre en place de nouvelles normes en entreprise doivent &nbsp;se concerter avec les syndicats et autres repr&eacute;sentants du personnel, car la question du fait religieux touche aux conditions de travail, &agrave; l&rsquo;organisation du travail, aux r&egrave;gles d&rsquo;hygi&egrave;ne et de s&eacute;curit&eacute;, lesquels rel&egrave;vent de leurs comp&eacute;tences.</div> <div> &nbsp;</div> <div> <strong>Cons&eacute;cration du principe de neutralit&eacute; par la CJUE</strong></div> <div> &nbsp;</div> <div> La CJUE avait &eacute;t&eacute; saisie de la question pr&eacute;judicielle suivante : un employeur peut-il interdire le port du voile &agrave; une salari&eacute;e en contact avec la client&egrave;le au motif que la client&egrave;le en a fait la demande (affaire fran&ccedil;aise) ou par principe &agrave; tous les salari&eacute;s (affaire belge)?</div> <div> &nbsp;</div> <div> La CJUE a rendu ses d&eacute;cisions rappel&eacute;es dans un communiqu&eacute; de presse le 14 mars dernier: une r&egrave;gle interne d&rsquo;une entreprise interdisant le port visible de tout signe politique, philosophique ou religieux est justifi&eacute; et non discriminatoire en soit. En revanche, en l&rsquo;absence d&rsquo;une tel r&egrave;glement int&eacute;rieur &eacute;non&ccedil;ant le principe de neutralit&eacute;, l&rsquo;employeur ne peut tenir compte des souhaits du client comme une obligation professionnelle pour sanctionner une salari&eacute;e - une telle mesure est discriminatoire.</div> <div> &nbsp;</div> <div> La d&eacute;cision de la CJUE devrait inciter les employeurs &agrave; introduire sans tarder le principe de neutralit&eacute; dans leur r&egrave;glement int&eacute;rieur pour limiter les contentieux, en veillant notamment &agrave; ce que toute discrimination indirecte &eacute;ventuelle soit justifi&eacute;e par un objectif l&eacute;gitime et appliqu&eacute; de mani&egrave;re coh&eacute;rente et syst&eacute;matique.</div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/OMM032417-LIT Star Athletica v. Varsity Brands, Inc. Copyright Case http://www.seyfarth.com:80//publications/OMM032417-LIT Fri, 24 Mar 2017 00:00:00 -0400 <div> <em>The following alert is directed to those clients in the fashion and design industries that manufacture or otherwise produce useful items (e.g., clothing, furniture, bottles, etc.) with unique design features that they would like to protect.&nbsp;</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>On March 22, 2017, the United States Supreme Court issued its opinion in the Star Athletica v. Varsity Brands, Inc. case, affirming and holding that &ldquo;a &nbsp;feature &nbsp;incorporated &nbsp;into &nbsp;the &nbsp;design &nbsp;of &nbsp;a &nbsp;useful &nbsp;article &nbsp;is &nbsp;eligible &nbsp;for copyright &nbsp;protection &nbsp;only &nbsp;if &nbsp;the &nbsp;feature: &nbsp;(1) &nbsp;can &nbsp;be &nbsp;perceived as a two- or three-dimensional work of art separate from the useful article; and (2) would qualify as a protectable &nbsp;pictorial, &nbsp;graphic, &nbsp;or &nbsp;sculptural &nbsp;work-either &nbsp;on &nbsp;its own &nbsp;or &nbsp;fixed &nbsp;in &nbsp;some &nbsp;other &nbsp;tangible &nbsp;medium &nbsp;of &nbsp;expression-if &nbsp;it &nbsp;were &nbsp;imagined &nbsp;separately &nbsp;from &nbsp;the &nbsp;useful &nbsp;article &nbsp;into &nbsp;which &nbsp;it &nbsp;is &nbsp;incorporated.&rdquo; &nbsp;The Court held that the test was satisfied in this case, which involved geometric shapes on cheerleader uniforms.</em></div> <div> &nbsp;</div> <div> The recently issued Supreme Court decision in <em>Star Athletica, LLC v. Varsity Brands, Inc.</em> came after being closely watched for several years. What intrigued many about the case was that it left open the opportunity for broader protection of designs of useful articles, such as appliques on clothing, furniture, perfume bottles, among many other things. &nbsp;It also gave the Supreme Court the opportunity to bring some harmony among the various federal courts to the practical standards they are to apply, and perhaps some greater predictability in the outcome of infringement cases involving useful items. &nbsp;</div> <div> &nbsp;</div> <div> The useful articles at issue in <em>Star </em>were cheerleader uniforms made and sold by Varsity Brands, Inc. &nbsp;The uniforms featured design elements (for which Varsity obtained copyright registrations) consisting of various geometric shapes like chevrons and stripes; such shapes by themselves do not ordinarily constitute copyrightable subject matter.</div> <div> &nbsp;</div> <div> <div> While Congress has afforded (limited) protection to such designs, where protection for the designs begins and ends has been entrenched in muddy waters for decades, in part due to incongruous judicial interpretations of the &ldquo;separability test,&rdquo; (i.e., whether elements of an item are &ldquo;separable&rdquo; from the useful article itself, and thus, protectable). &nbsp;Various Courts of Appeals have adopted their own iteration of the separability test. &nbsp;The Sixth Circuit, from which the <em>Star </em>case arose, created its own multi-factor separability test to assess whether the geometric designs on the uniforms were protectable. &nbsp;It held in the affirmative. &nbsp;However, while the Supreme Court affirmed, it did so by creating its own separability test.</div> <div> &nbsp;</div> <div> In his five-member majority opinion, Justice Thomas resolved this matter in favor of Varsity on the basis of an express reading of Section 101 of the Copyright Act, and consideration of the Court&rsquo;s prior decisions. &nbsp;The Court&rsquo;s test to determine copyrightability for an artistic element of a useful article is: &ldquo;if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article [the &ldquo;separate-identification&rdquo; element] and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article [the &ldquo;independent-existence requirement&rdquo;].&rdquo; &nbsp;Without determining whether the separated, non-utilitarian portion of the item is in fact copyrightable and therefore protected as an artistic work, the majority found that the uniform designs passed the test. &nbsp;But, the Court said, Varsity cannot stop others from making cheerleading uniforms in the same cut or shape.</div> <div> &nbsp;</div> <div> Even getting past the first prong of the test will be challenging, as Justice Breyer&rsquo;s dissent (joined by Justice Kennedy) already demonstrates. &nbsp;Where the majority found that the artistic element can be perceived separately, the dissent sees no such artistic element in the uniform. &nbsp;It argues that the decorations are ineligible for copyright protection because, when imaginatively extracted, they form a picture of a cheerleading uniform. &nbsp;The majority, however, took issue with the dissent&rsquo;s assessment, explaining that the artistic design may take the shape of whatever canvas on which it is placed.</div> <div> &nbsp;</div> <div> Referring to the surface of a canvas rather than its shape, Justice Ginsburg, in her concurring opinion, determined that the Court&rsquo;s test is not even relevant here. &nbsp;In her view, Varsity wins because the &ldquo;designs at issue are not designs of useful articles &hellip; [but rather] &hellip; copyrightable pictorial or graphic works reproduced on useful articles.&rdquo; &nbsp;Thus, by her measure, the useful article is a blank canvas on which the artistic elements are applied and therefore copyrightable. &nbsp;</div> <div> &nbsp;</div> <div> Just as the history of this case demonstrates the inherent subjectivity in determining whether a useful article can be copyrightable, where four federal judges at the District and Circuit Courts split 2-2 on copyrightability, yesterday&rsquo;s three opinions from the eight-member Court make clear that subjectivity in determining copyrightability of useful articles remains a significant factor in any infringement analysis. &nbsp;This outcome demonstrates a lost opportunity by the Court to set an analytical standard that would increase the likelihood of predictable outcomes rather than keep such determinations in the realm of the subjective.</div> <div> &nbsp;</div> <div> From a practical perspective, this case potentially muddies the copyright landscape even more than before, and may be viewed as opening the door to designers and others to become a bit more aggressive in seeking and enforcing copyright registrations, even for designs that may not immediately seem copyrightable (like designs consisting primarily of geometric designs). &nbsp;Eventually, over time as litigations are filed and courts apply their own varied and diverse interpretations of the Court&rsquo;s test in <em>Star</em>, designers may be reined in on the basis of judicial precedent from the lower courts.&nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/OMM032417-LE New Department of State Cable Implements Extreme Vetting Measures http://www.seyfarth.com:80//publications/OMM032417-LE Fri, 24 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments,<a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b"> sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; New DOS cable instructs U.S. consular posts to identify population groups for tougher visa screening, which will likely lead to increased processing times.</em></p> <p> On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.&nbsp; Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President&rsquo;s Executive Order.&nbsp; Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President&rsquo;s most recent Executive Order and those from Iraq.</p> <p> Secretary Tillerson began issuing cables in early March with a view to providing consular staff with instructions on how to implement the President&rsquo;s March 6 Executive Order barring certain individuals from six countries from travelling to the U.S.&nbsp; As the legal challenges against the Order mounted, Secretary Tillerson retracted certain instructions in favor of a set of more narrow guidance designed to comply with judicial and administrative requirements while still advancing the President&rsquo;s &ldquo;extreme vetting&rdquo; agenda.</p> <p> The most recent cable, released on March 17, orders the Department of State to identify &ldquo;populations warranting increased scrutiny&rdquo; and subject them to heightened security screening.&nbsp; Moreover, if a consular officer determines that a visa applicant may have links to any terrorist group or has ever been present in a territory controlled by the Islamic State, the applicant will be subjected to a review of his/her social media activity.&nbsp; This review, which is normally a rare event, is known to be a time and labor-intensive process.&nbsp; To accommodate this directive, the cable guides consular posts to limit the number of visa interviews per day with the understanding that appointment backlogs may increase.</p> <p> In light of this cable, we expect increased visa processing times and decreased visa appointment availability at U.S. consular posts globally.&nbsp; Further, applicants described in the cables should anticipate more rigorous questioning and intrusive searches into online activity.</p> http://www.seyfarth.com:80//news/weiss-quoted-USA-today-032417 Philippe Weiss quoted by <i>USA Today</i> http://www.seyfarth.com:80//news/weiss-quoted-USA-today-032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;March Madness invades the office, distracting workers,&quot; a <em>USA Today</em> story on March 24 regarding SSAW&rsquo;s new survey which ranked March Madness third among tech-related office distractions, behind texting and Facebook, as the top time waster. Weiss said that managers can&#39;t make bets and bicker about brackets, then criticize employees for engaging in the same behavior.</p> <p> <a href="http://www.usatoday.com/story/money/business/2017/03/24/march-madness-invades-office-distracting-workers/99303896/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-real-estate-sentiment-survey-referenced-politico-0323178 Seyfarth’s Real Estate Sentiment Survey referenced in <i>Politico</i> http://www.seyfarth.com:80//news/seyfarth-real-estate-sentiment-survey-referenced-politico-0323178 Thu, 23 Mar 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Real Estate Sentiment Survey was referenced in &quot;Trump&#39;s early policy moves benefit the industries he knows best &mdash; his own,&quot; a March 23 story from <em>Politico</em>. The survey showed that two-thirds of the commercial real estate market expected a positive effect from the Republican president thanks to his push for deregulation, tax reform and the dismantling of the Dodd-Frank consumer protection law.</p> <p> <a href="http://www.politico.com/story/2017/03/trump-business-policy-moves-ethics-236392">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/paparelli-quoted-human-resource-executive-032317 Angelo Paparelli was quoted in <i>Human Resource Executive</i> http://www.seyfarth.com:80//news/paparelli-quoted-human-resource-executive-032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;HR&#39;s Immigration Concerns,&quot; a March 23 story from <em>Human Resource Executive</em> on why employers need to explore other ways to get the talent they need while the new administration attempts to fulfill campaign promises on immigration. Paparelli said that employers need to look at all the visa categories, including the L1, which would allow someone to come back to the U.S. after a one-year stint abroad in an affiliate company.</p> <p> <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362094&amp;.">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WH032317 Wait! Did the Fourth Circuit Just Define FLSA Joint Employment More Broadly Than Obama’s DOL? http://www.seyfarth.com:80//publications/WH032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> Employers have no doubt been paying close attention to the future of the joint employer doctrine, which was a focus of change and expansion for DOL leadership during the Obama administration. With a new administration in place, many have speculated as to the doctrine&rsquo;s narrowing and possible demise.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/joint-employment/fourth-circuit-joint-employment/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=4cda4571fb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-4cda4571fb-73050573">click here</a></p> http://www.seyfarth.com:80//publications/TS032217 Texas Court Holds Mere Possession and Opportunity to Use Trade Secrets is Sufficient for Misappropriation http://www.seyfarth.com:80//publications/TS032217 Thu, 23 Mar 2017 00:00:00 -0400 <p> The San Antonio Court of Appeals recently held that an applicant for a temporary injunction in a trade-secret-misappropriation case under the Texas Uniform Trade Secrets Act is not required to show the defendant is actually using trade-secret information. Instead, the applicant need only show that the defendant possesses trade secrets and is in a position to use them.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/03/articles/trade-secrets/texas-court-holds-mere-possession-and-opportunity-to-use-trade-secrets-is-sufficient-for-misappropriation/">click here</a></p> http://www.seyfarth.com:80//publications/EL032317 Court Upholds ULP Finding Against Employer Despite Union “Gamesmanship” http://www.seyfarth.com:80//publications/EL032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> An employer that withdraws recognition from a union as the exclusive bargaining agent of its employees does so, as the Board and Courts say, &ldquo;at its peril.&rdquo; It&rsquo;s a risky move, one that requires objective evidence that a union has actually lost the majority support among the employees it represents. &nbsp;And the employer must be correct about the actual loss of majority support or it will face an unfair labor practice charge for refusing to bargain with a union. &nbsp;Consider it a form of strict liability in the labor-relations context. &nbsp;But what if the employer has objective evidence that a union has lost majority support, and then the union regains the majority support before the employer withdraws recognition? &nbsp;Also, if an employer is found to have violated the law under those circumstances, what is the remedy when the union deliberately did not disclose to the employer it had regained majority status?</p> <p> To read the entire blog post,&nbsp;<a href="http://www.employerlaborrelations.com/2017/03/23/court-upholds-ulp-finding-against-employer-despite-union-gamesmanship/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=fbd151d68c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-fbd151d68c-71423401">click here</a></p> http://www.seyfarth.com:80//publications/EL03232017 Searches of Devices at the U.S. Border http://www.seyfarth.com:80//publications/EL03232017 Thu, 23 Mar 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Business Immigration Group recently launched a new blog that features a huge team of national and international immigration thought leaders. &nbsp;Check out their most recent post on searches of personal devices at the U.S. Border by clicking <a href="http://www.laborandemploymentlawcounsel.com/2017/03/searches-of-devices-at-the-u-s-border/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=5c5c09a9c9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-5c5c09a9c9-71256185">[HERE]</a>.</p> http://www.seyfarth.com:80//publications/WC032217 What The Confirmation Hearing For Judge Gorsuch Means For Employers http://www.seyfarth.com:80//publications/WC032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> After three days of 10 hour hearings, employers are wondering what the big takeaway is for them. In this blog video, we address the major issues in the confirmation process that are pertinent to employers.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/what-the-confirmation-hearing-for-judge-gorsuch-means-for-employers/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=54c381afd8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-54c381afd8-73050581">click here</a></p> http://www.seyfarth.com:80//publications/turnbull-authored-article-wolters-kluwer-032217 Justine Turnbull authored an article in <i>Wolters Kluwer</i> http://www.seyfarth.com:80//publications/turnbull-authored-article-wolters-kluwer-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Justine Turnbull authored &quot;Is a workplace relationship ever consistent with good governance?&quot; &mdash; an article on March 22 in <em>Wolters Kluwer</em>. The article discusses the question: Is it ever appropriate for a senior executive to conduct a sexual relationship with a workplace colleague, whether they are an employee, a representative of a client or customer, contractor or consultant to the business?</p> <p> <a href="http://www.wolterskluwercentral.com.au/employment/human-resources/workplace-relationship-ever-consistent-good-governance/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CP032217 Dressing for Work in California this Summer http://www.seyfarth.com:80//publications/CP032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Who doesn&rsquo;t love wearing khakis and polos to work? Relaxed summer dress codes are a common practice among businesses that seek to boost employee morale during a time when some folks want to be at the beach. Establishing these summer dress code guidelines, however, can be a challenge because they can introduce ambiguity and confusion. Employees may not have a clear sense of what attire satisfies a &ldquo;relaxed&rdquo; dress code, and as a result wear clothing that is inappropriate.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/22/dressing-for-work-in-california-this-summer/">click here</a></p> http://www.seyfarth.com:80//publications/OMM032217-LE Brexit Process to Begin on March 29 http://www.seyfarth.com:80//publications/OMM032217-LE Wed, 22 Mar 2017 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.&nbsp; If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis: </strong></em><em>On March 29, 2017, British Prime Minister Theresa May will invoke Article 50, initiating the formal two-year negotiation process for the United Kingdom to leave the European Union. </em></p> <p> <strong>What Will Happen Next? </strong></p> <p> Britain&rsquo;s European Union (EU) Ambassador today informed the EU Council President that the U.K. government will give formal notice on March 29, 2017 of the U.K.&rsquo;s intention to leave the EU. This will start the withdrawal process, which will take a minimum of two years. If the complex negotiations and legal procedures conclude within that timeframe, the U.K.&rsquo;s exit from the EU could be completed by March 2019.&nbsp;</p> <p> Once the U.K. has given formal notice to withdraw, the remaining 27 EU member states must then align their negotiating position, which is likely to take several weeks. Immigration&nbsp;was a central issue in the run up to the referendum and the desire to curb the free movement of EU nationals into the U.K. was one of the primary drivers of the &quot;leave&quot; campaign.&nbsp;Immigration will continue to play a central role in the negotiation process. Although the government has stated its aim to protect the future status of EU nationals and their family members who currently reside in the U.K., the position remains uncertain and will be decided during the negotiation process.</p> <p> <strong>How Will This Affect EU Nationals in the UK?</strong></p> <p> As stated in our <a href="http://www.seyfarth.com/publications/OMM031417-LE">previous alert</a>, the rights of EU nationals and their family members to reside and work in the U.K. will remain unchanged during the transition process. However, the future status of this group of EU citizens has not yet been guaranteed. Therefore, we recommend that all EU nationals currently living in the U.K. apply for a residence card to confirm their status. Given the likely increase in applications once the Brexit process has formally begun, and potential delays in processing times, applicants should file their applications as soon as possible.</p> <p> The Prime Minister will address Parliament regarding the Brexit withdrawal process on March 29, 2017. We will update clients as further details are announced</p> http://www.seyfarth.com:80//news/corporate-counsel-rank-seyfarth-among-brand-elite-for-sixth-straight-year Corporate Counsel Rank Seyfarth Among Brand Elite for Sixth Straight Year http://www.seyfarth.com:80//news/corporate-counsel-rank-seyfarth-among-brand-elite-for-sixth-straight-year Wed, 22 Mar 2017 00:00:00 -0400 <div> CHICAGO (March 22, 2017) &mdash;&nbsp;For the sixth consecutive year, Seyfarth Shaw LLP has been named one of the top law firm brands in the world, according to corporate counsel in the <em>2017 BTI Brand Elite: Client Perceptions of the Best-Branded Law Firms </em>report.</div> <div> &nbsp;</div> <div> Seyfarth again ranks among the <em>Brand Elite</em>, the top-tier group of 28 law firms which enjoy the most powerful brands. Explaining Seyfarth&rsquo;s strengths, BTI notes the firm&rsquo;s longstanding reputation for innovation:</div> <div> &nbsp;</div> <div> <em>&ldquo;Clients continue to reward Seyfarth Shaw&rsquo;s strong brand as the firm makes its 6th appearance in a row. Top legal decision makers have long recognized the firm for its Innovative ways.&rdquo;&nbsp;</em></div> <div> &nbsp;</div> <div> Conducted by BTI Consulting Group, these annual rankings are based on direct and unprompted feedback from nearly 650 general counsel and legal decision makers at the world&rsquo;s largest companies.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> &nbsp;</div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> <strong>Brian Kiefer, Director of Public Relations</strong></div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> <strong>Martin Grego, Public Relations Manager</strong></div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-the-indiana-lawyer-032217 Sam Schwartz-Fenwick quoted by <i>The Indiana Lawyer</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-the-indiana-lawyer-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited,&quot; a March 22 story by <em>The Indiana Lawyer</em> on recent disputes taking aim at a section of the Employment Retirement Income Security Act of 1974 that exempts churches from its reporting and funding requirements. Schwartz-Fenwick sees the need for the justices to weigh in to settle the constitutional question of how far the government can step into church matters.</p> <p> <a href="http://www.theindianalawyer.com/religious-exemption-at-heart-of-employee-pension-disputes/PARAMS/article/43141">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/paparelli-quoted-bloomberg-daily-labor-report-032217 Angelo Paparelli was quoted in <i>Bloomberg Daily Labor Report</i> http://www.seyfarth.com:80//news/paparelli-quoted-bloomberg-daily-labor-report-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;Government to Start Auditing Immigrant Investor Centers,&quot; a March 21 story from <em>Bloomberg Daily Labor Report</em> on the USCIS announcement that it will start auditing immigrant investor regional centers that are part of the EB-5 investor visa program. Paparelli said that the concept of an audit is welcome, but there are concerns as to how it will be carried out.</p> http://www.seyfarth.com:80//news/gurell-quoted-law360-032217 Marc Gurell quoted in <i>Law360</i> http://www.seyfarth.com:80//news/gurell-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Marc Gurell was quoted in &quot;4 Must-Knows For Developers As Trump Cabinet Ramps Up,&quot; a March 22 story from <em>Law360 </em>on the four things lawyers say they&#39;re telling real estate clients amid the Trump administration. Gurell said that developers and investors should closely monitor P3 activity and its impact on investment structure going forward.</p> http://www.seyfarth.com:80//news/maluf-quoted-corporate-counsel-032217 Edward Maluf quoted in <i>Corporate Counsel</i> http://www.seyfarth.com:80//news/maluf-quoted-corporate-counsel-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Edward Maluf was quoted in &quot;Did SCOTUS Miss Chance to Fine-Tune IP Protection for Apparel?&rdquo; &mdash; a March 22 story from <em>Corporate Counsel</em> on the U.S. Supreme Court&#39;s copyright decision in Star Athletica v Varsity Brands. Maluf said that the problem has been around for decades, but the court&#39;s decision amounts to &ldquo;what we said before is what we really mean today.&quot;</p> http://www.seyfarth.com:80//news/maluf-quoted-law360-032217 Edward Maluf quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maluf-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Edward Maluf was quoted in &quot;5 Keys To High Court&#39;s Cheerleader Uniform Ruling,&quot; a March 22 story from <em>Law360 </em>on the U.S. Supreme Court&#39;s copyright decision in Star Athletica v Varsity Brands. Maluf said that this outcome demonstrates a lost opportunity by the court to set an analytical standard that would increase the likelihood of predictable outcomes rather than keep such determinations in the realm of the subjective.</p> http://www.seyfarth.com:80//news/lurie-quoted-law360-032217 Dawn Lurie was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/lurie-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Dawn Lurie was quoted in &quot;USCIS Rolls Out EB-5 Regional Center Audit Program,&quot; a March 22 story from <em>Law360</em> on U.S. Citizenship and Immigration Services&rsquo; recent announcement of the start of an EB-5 regional center audit program, which will involve audit teams examining documents and interviewing staffers, with the move coming roughly a month before the visa program&rsquo;s regional center aspect is set to expire. Lurie said that while there have been site visits before now, which she characterized as more project-based, the audits are a new development.</p> http://www.seyfarth.com:80//publications/EL032117 Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Caused By Intoxicated Employee http://www.seyfarth.com:80//publications/EL032117 Tue, 21 Mar 2017 00:00:00 -0400 <div> In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee&rsquo;s vehicle usage. <em>Great American Alliance Ins. Co. v. Anderson,</em> No. 15-12540 (11th Cir., February 8, 2017).</div> <div> &nbsp;</div> <div> In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer&rsquo;s permission. &ldquo;After a jury found the driver liable and awarded the appellant one million dollars, the employer&rsquo;s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user &ndash; and thus not covered under the applicable insurance policies &ndash; because he broke internal company policies.&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/eleventh-circuit-finds-insurance-carrier-responsible-in-georgia-for-harm-intoxicated-employee/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b39744d7ad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b39744d7ad-71256185">click here</a></div> http://www.seyfarth.com:80//publications/OMM032117-LIT New Executive Order Directs Federal Agencies to Trim The Fat http://www.seyfarth.com:80//publications/OMM032117-LIT Tue, 21 Mar 2017 00:00:00 -0400 <div> <strong>Seyfarth Synopsis:</strong> &nbsp;President Trump&rsquo;s executive order directs all federal agencies to point out where they can be trimmed down to meet his proposed budget.&nbsp;</div> <div> &nbsp;</div> <div> On Monday, March 13, President Trump signed Executive Order 13781 (EO) giving the head of each agency 180 days to submit a plan to reorganize their agency with the goal of improving &ldquo;efficiency, effectiveness, and accountability.&rdquo; The reports along with public suggestions will be aggregated by the Director of the Office of Management and Budget (Director) who will propose a final plan of reorganization to the president later this year.&nbsp;</div> <div> &nbsp;</div> <div> In the EO, the president requested recommendations to eliminate unnecessary agencies, components of agencies, and agency programs as well as any recommendations to merge functions. The Director will look to what agency functions should be left to the states or public sector, what redundancies can be eliminated, and make a cost-benefit analysis of agency functions.&nbsp;</div> <div> &nbsp;</div> <div> The EO was published on March 16, the same day as the president&rsquo;s budget proposal for 2018. Through the budget, the heads of the agencies have an apparent goal to meet in order to comply with the president&rsquo;s expectations. The president&rsquo;s budget proposes $54 billion in cuts to the federal government from last year, including a 31.4% reduction for the EPA, 28.7% reduction for the Department of State, and 16.2% reduction for the Department of Health and Human Services. The budget also proposed the elimination of 19 federal programs including the Legal Services Corporation (LSC), The National Endowment for Humanities, and the Corporation for Public Broadcasting to name a few.&nbsp;</div> <div> &nbsp;</div> <div> While the budget proposes $54 billion in cuts to the federal agencies and programs, an identical number has been spoken of in connection with an increase to the budget of the Department of Defense.&nbsp;</div> <div> &nbsp;</div> <div> The EO requires the Director to allow for a period of public suggestion. Some have already taken the initiative to directly respond to the Director. For example, in response to the threat of elimination to the LSC, which assists low-income Americans in need of civil legal aid, leaders of 157 law firms signed a letter sent to the Director in support of the LSC.</div> <div> &nbsp;</div> <div> While the president has made his intentions known, ultimately it is up to the Appropriations Committee to determine what, if any, agencies will be defunded. Seyfarth Shaw LLP will continue to monitor the implementation of the Executive Order and any subsequent legal challenges.</div> <div> &nbsp;</div> <div> Seyfarth is a member of a Steering Committee of law firm leaders and pro bono counsel from a group of Big Law firms which are rallying support for LSC. Recently, the Steering Committee sent <a href="http://www.lieffcabraser.com/wp-content/uploads/20170309_letter_to_OMB.pdf">a letter to the director of the Office of Management and Budget</a> that was signed by leaders of 157 law firms with offices in all 50 states. The letter makes a variety of points, such as the clear return on investment derived from support for legal aid, and that eliminating the Legal Services Corporation will not only imperil the ability of civil legal aid organizations to serve Americans in need, it will also vastly diminish the private bar&rsquo;s capacity to help these individuals.</div> http://www.seyfarth.com:80//publications/MA032117-LE Searches of Devices at the U.S. Border http://www.seyfarth.com:80//publications/MA032117-LE Tue, 21 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses&#39; concerns when their employees travel.&nbsp; In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information</em></p> <p> <strong>Overview:</strong>&nbsp; United States&rsquo; Customs laws and regulations (See, 8 U.S.C. &sect;&nbsp;1582, 19 C.F.R &sect; 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers.&nbsp; Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.&nbsp; &ldquo;Supreme Court decisions have upheld the doctrine that CBP&#39;s search authority is unique and does not violate the fourth amendment&#39;s protection against <em>unreasonable</em> searches and seizures.&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a> This exception allows CBP to conduct &ldquo;routine&rdquo; searches on luggage, devices, vehicles or persons without a warrant. &ldquo;However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> <strong>Who May Be Chosen for an Inspection:</strong> United States Customs and Border Protection (&ldquo;CBP&rdquo;) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.&nbsp; Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A <a href="https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf">2012 CBP Directive </a>noted that &ldquo;in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border&rdquo;.</p> <p> At this time, CBP has not articulated policies that consider a traveler&rsquo;s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.</p> <p> <strong>What Will Occur During the Search</strong><strong>:&nbsp; </strong>The manner in which a search is conducted may vary widely depending on a number of factors.&nbsp; A customs official may simply conduct a search through the device and then return it to you.&nbsp; At the other times, CBP may elect to take temporary custody (&lsquo;detention&rsquo;) of the device for further examination.&nbsp; If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time. &nbsp;After CBP has concluded inspecting your device, they will contact you to come retrieve the device. If you are unable to retrieve the device in person, CBP will provide instructions to have the device shipped to you at your expense. In some cases, devices could be turned over to Immigration and Customs Enforcement who also have border search authority.&nbsp;</p> <p> <strong>What You Should Do During the Search</strong>:&nbsp; Generally speaking, a traveler has the right to remain in the room unless there are national security, law enforcement or other considerations that would make it inappropriate to allow individuals to observe the review. It is important that you cooperate with the Officer by providing the device to the official and logging in or providing password information where requested. Failure to cooperate in the search may result in either seizure or extended detention of the device, and in the case of certain non-citizens could result in denial of entry into the United States. How your employee handles a border entry may be driven by his or her citizenship status. In summary, U.S. citizens may be delayed but will be granted entry, lawful permanent residents should plan on a high level of scrutiny and non- citizens could be barred from entry.</p> <p> <strong>What You Should Do If Your Device Contains Privileged or Sensitive Material:&nbsp; </strong>While we recommend that travelers cooperate with CBP, it is critical that you communicate to the Officer the presence of any privileged or sensitive material. This data should be &ldquo;passphrase&rdquo; protected and the appropriate encryption tools should be implemented.</p> <p> <em>Privileged</em>. Keep in mind confidential privileged legal materials are not necessarily exempt from CBP access and review; however, they may be subject to special handling as follows: &ldquo;If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney&#39;s Office as appropriate.&rdquo;<a href="#_ftn3" name="_ftnref3" title="">[3]</a> In other words CBP may choose not to inspect, but in the event they determine a review is pertinent the Agent should follow the procedure seeking internal legal advice.&nbsp;</p> <p> <em>Sensitive.</em> According to the CPB field directive Officers are instructed as follows: &ldquo;Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate CBP systems of records.&rdquo;<a href="#_ftn4" name="_ftnref4" title="">[4]</a></p> <p> Invoking a <em>privilege </em>or requesting a<em> sensitive review</em> has implications from a practical perspective. If you plan to take this route, you should consider entering the U.S. during normal business hours, carrying a copy of this <a href="https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf">CBP Directive</a> (and ensuring that the directive remains applicable under the current administration), and consider the likely delay and the effect on connecting flights.</p> <p> <strong>What You Should Do to Protect Data/Information Belonging to an Employer</strong>: CBP policy directs officials conducting searches and/or inspections of electronic devices containing &ldquo;business or commercial information&rdquo; to &ldquo;treat such information as business confidential information and . . . take all reasonable measures to protect that information from unauthorized disclosure.&rdquo;&nbsp; Nonetheless, customs searches entail certain risks necessitating safeguards on the part of the traveling employee.</p> <p> <strong>Some tips to consider:</strong></p> <ul> <li> Whenever possible, employees should take safeguards to avoid loss or destruction of files or data by backing up such files or data onto company servers or into a secure cloud based account.</li> <li> To the extent possible devices should be both electronically and physically labelled as belonging to the company.</li> <li> Files that contain confidential or propriety information should be marked as such both within the document and in the file name of the document and should appropriately encrypted.</li> <li> Have employees use strong encrypted passwords and shut down devices during border crossings (this is to ensure that devices are not hacked).</li> <li> Consider traveling with an empty device (employees can work from their cloud account during the trip).</li> <li> Consider traveling with an inexpensive laptop storing only critical information.</li> <li> Consider traveling with a &ldquo;temporary&rdquo;, inexpensive phone for work and leave the smart phone at home.</li> </ul> <p> <strong>What if You Believe that You Have Been Mistreated, Harassed or Are Repeatedly Selected For Device Searches</strong></p> <p> If still in the customs area, you can request to speak with an onsite supervisor. Additionally, travelers who are concerned that they have been incorrectly selected for enhanced screening, particularly if on a repeated basis can seek assistance from the&nbsp; <a href="https://www.dhs.gov/dhs-trip">Traveler Redress Inquiry Program</a>. &nbsp;Additionally, travelers can contact the <a href="http://www.dhs.gov/civilliberties">Department of Homeland Security Office of Civil Rights and Civil Liberties</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> United States.. Customs and Border Protection &lt; https://help.cbp.gov/app/answers/detail/a_id/176/~/cbp-search-authority.&gt;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Id.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> <em>Id </em>at 5.2.1 page 3</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> <em>Id. </em>at 5.2.2 page 3</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/WH032117 Comma, Comma, Comma, Comma, Comma Chameleon: Liability Comes and Goes with Oxford Comma http://www.seyfarth.com:80//publications/WH032117 Tue, 21 Mar 2017 00:00:00 -0400 <p> Vampire Weekend crassly and rhetorically asked us, &ldquo;Who gives a f*** about an Oxford comma?&rdquo; As it turns out, lots of people: First Circuit judges, dairy farmers in Maine, truck drivers, your authors&mdash;the list goes on.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/liability-comes-and-goes-with-oxford-comma/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=f75b786f47-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-f75b786f47-73050573">click here</a></p> http://www.seyfarth.com:80//publications/ Is a workplace relationship ever consistent with good governance http://www.seyfarth.com:80//publications/ Mon, 20 Mar 2017 00:00:00 -0400 <p> Much has been made of recent scandals arising from sexual relationships in the workplace and in most cases the relationships are said to have been &lsquo;personal and consensual&rsquo;. While not a new issue, we have seen changes to the way organisations have responded to the relationships, perhaps as a reflection that our culture is less accepting of the conduct.</p> <p> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/03/is-a-workplace-relationship-ever-consistent-with-good-governance/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=ee560f94b5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-ee560f94b5-73050585">click here</a></p> http://www.seyfarth.com:80//news/seyfarth-expands-employee-benefits-platform-seyfarth-benefits-consulting Seyfarth Expands Employee Benefits Platform with Seyfarth Benefits Consulting http://www.seyfarth.com:80//news/seyfarth-expands-employee-benefits-platform-seyfarth-benefits-consulting Mon, 20 Mar 2017 00:00:00 -0400 <div> CHICAGO - (March 20, 2017) - Seyfarth Shaw LLP announced today the expansion and redesign of its Employee Benefits Administrative Service Center, which has evolved into Seyfarth Benefits Consulting.&nbsp;</div> <div> &nbsp;</div> <div> Introduced in 2014 by Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department to provide a relatively narrow set of employee benefits administrative services, SBC grew in scope as plan sponsors and administrators drove demand for broader support maintaining their employee benefit plans more efficiently.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;The success of Seyfarth Benefits Consulting continues to be driven by our ability to scale and match our offerings with the increasing demands of our clients,&rdquo; said Rob Flanagan, chair of Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department. &ldquo;Seyfarth Benefits Consulting is uniquely positioned to handle the day-to-day, yet time-sensitive, aspects of plan administration, upkeep and compliance, so our clients can focus on their more strategic priorities.&rdquo; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Based on SeyfarthLean principles and backed by one of the largest Employee Benefits &amp; Executive Compensation practices in the country, SBC focuses on supporting clients&rsquo; ongoing legal counseling and administrative needs in relation to their retirement, health and welfare programs.&nbsp;</div> <div> &nbsp;</div> <div> With a strategic staffing model, fixed fees, and other available alternative rate structures to optimize efficiency and delivery, SBC features a growing range of services, including:</div> <ul> <li> Annual Compliance Reporting</li> <li> Claim Administration&nbsp;</li> <li> Determination Letter Filings</li> <li> HIPAA Privacy&nbsp;</li> <li> Legal Instrument and Levy Review&nbsp;</li> <li> Nondiscrimination Testing&nbsp;</li> <li> Qualified Domestic Relations Order Administration</li> <li> Qualified Medical Child Support Order Administration</li> <li> Special Projects</li> </ul> <div> SBC represents an integrated offering from the lawyers and staff of Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department, not a separate legal entity. To learn more, visit: <a href="http://www.seyfarth.com/BenefitsConsulting">seyfarth.com/BenefitsConsulting</a>.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80//news/wahlander-quoted-SHRM-032017 Michael Wahlander quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/wahlander-quoted-SHRM-032017 Mon, 20 Mar 2017 00:00:00 -0400 <p> Michael Wahlander was quoted in &quot;Unlimited Vacation: Is It About Morale or the Bottom Line?&quot; &mdash; a March 20 story by <em>SHRM </em>on how some argue that unlimited vacation benefits a company&#39;s bottom line more than it benefits the company&#39;s employees. Wahlander said that at many companies with unlimited vacation, managers encourage workers to take off if their work is done.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/unlimited-vacation-is-it-about-morale-or-the-bottom-line.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/weiss-quoted-employee-benefit-news-031917 Philippe Weiss quoted by <i>Employee Benefit News</i> http://www.seyfarth.com:80//news/weiss-quoted-employee-benefit-news-031917 Sun, 19 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;How employers can manage March Madness workplace distractions,&quot; an <em>Employee Benefit News story</em> on March 19 regarding SSAW&rsquo;s new survey. Weiss said that March Madness and other online pools/games ranked third among all tech-related causes of work delays, with 30% of managers/HR reps citing them as a major employee distractor, following text messaging and Facebook use.</p> <p> <a href="https://www.benefitnews.com/slideshow/how-employers-can-manage-march-madness-workplace-distractions">You can view the full article here</a>.</p> http://www.seyfarth.com:80//publications/vu-sarnoff-fritz-authored-article-franchise-law-journal-031917 Minh Vu, Julia Sarnoff and Kevin Fritz authored an article for the <i>Franchise Law Journal</i> http://www.seyfarth.com:80//publications/vu-sarnoff-fritz-authored-article-franchise-law-journal-031917 Sun, 19 Mar 2017 00:00:00 -0400 <p> Minh Vu, Julia Sarnoff and Kevin Fritz authored &quot;Website, Kiosks, and Other Self-Service Equipment in Franchising: Legal Pitfalls Posed by Title III of the Americans with Disabilities Act,&quot; an article for the <em>Franchise Law Journal</em>. &nbsp;This article reviews the most common types of customer-facing electronic information technology (EIT) that franchisors and franchisees are using, the murky and evolving legal requirements that apply to them, the legal controversies that have arisen in connection with their use, and what can be done to ensure legal compliance.</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/FLJ_Vu_Sarnoff_3192017.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/weiss-quoted-global-banking-and-finance-review-031817 Philippe Weiss quoted by <i>Global Banking & Finance Review</i> http://www.seyfarth.com:80//news/weiss-quoted-global-banking-and-finance-review-031817 Sat, 18 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;FOUR TIPS FROM PHILIPPE WEISS TO KEEP THE MADNESS DISTRACTIONS &amp; MAYHEM TO A MINIMUM,&quot; a <em>Global Banking &amp; Finance Review</em> story on March 18 regarding SSAW&rsquo;s new survey. Weiss said that if supervisors engage in a cash pool they and the company may run afoul of gambling laws and, in any case, they erode their ability to manage bracket-crazy employees that cross the line.</p> <p> <a href="https://www.globalbankingandfinance.com/four-tips-from-philippe-weiss-to-keep-the-madness-distractions-mayhem-to-a-minimum/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/lorber-quoted-human-resource-executive-031717 Larry Lorber quoted by <i>Human Resource Executive</i> http://www.seyfarth.com:80//news/lorber-quoted-human-resource-executive-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;Downsizing the DOL,&quot; a March 17 story in <em>Human Resource Executive</em> on President Trump&rsquo;s proposed cutbacks to the Department of Labor. Lorber said that staff and travel cutbacks at entities such as WHD and OSHA are inevitably going to translate into less enforcement.</p> <p> <a href="http://blog.hreonline.com/2017/03/17/budget-plan-targets-the-department-of-labor/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/laughton-quoted-the-ambulatory-m-and-a-advisor-031717 Adam Laughton quoted in <i>The Ambulatory M&A Advisor</i> http://www.seyfarth.com:80//news/laughton-quoted-the-ambulatory-m-and-a-advisor-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Adam Laughton was quoted in &quot;FEC Historical Impact and Expansion on the Market: Part 2,&quot; a March 17 story from <em>The Ambulatory M&amp;A Advisor</em> on the history, impact on the market, and routes for expansion in the FEC industry. Laughton said that in the past three to five years there has definitely been more of a recent development in the transaction market.</p> <p> <a href="http://www.ambulatoryadvisor.com/fec-historical-impact-expansion-market-part-2/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-031717 Sam Schwartz-Fenwick quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited,&quot; a March 17 story by <em>SHRM </em>on how an appeals court recently excluded sexual orientation discrimination from protection under Title VII of the Civil Rights Act of 1964. Schwartz-Fenwick said that a split among the appeals courts may emerge, which could lead to the Supreme Court resolving the question.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/11th-circuit-title-vii-.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/LR031717 Giving the Unions Their Dues: NLRB ALJ Finds Partial Preemption of Wisconsin Right-to-Work Law http://www.seyfarth.com:80//publications/LR031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> If you are an avid reader of our blog, you will undoubtedly recall that approximately two years ago, Wisconsin became the then-25th right-to-work state when it enacted legislation that made union security agreements requiring workers to pay union dues as a condition of employment illegal. In addition, the law also made it an unfair labor practice for an employer to collect dues from workers&rsquo; wages unless an employee directed it to do so by written notice, which was revocable with 30 days notice.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/03/17/giving-the-unions-their-dues-nlrb-alj-finds-partial-preemption-of-wisconsin-right-to-work-law/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=0b51c54366-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-0b51c54366-71423401">click here</a></p> http://www.seyfarth.com:80//publications/boutros-meier-authored-article-bloomberg-white-collar-crime-report-031717 Andrew Boutros and Alex Meier authored an article for <i>Bloomberg’s White Collar Crime Report</i> http://www.seyfarth.com:80//publications/boutros-meier-authored-article-bloomberg-white-collar-crime-report-031717 Fri, 17 Mar 2017 00:00:00 -0400 <div> Andrew Boutros and Alex Meier authored &quot;An Endangered Claim Reemerges: The Defend Trade Secrets Act Breathes New Life Into Trade-Secrets-Based RICO Claims,&quot; an article on March 17 for <em>Bloomberg&rsquo;s White Collar Crime Report</em>. This article examines how the DTSA, in certain circumstances, may create liability under RICO for the misappropriation of trade secrets.&nbsp;</div> <div> &nbsp;</div> <div> Pre-DTSA, courts were hesitant to impose RICO liability based on trade-secrets misappropriation, because even fraudulent acts with the end goal of misappropriating trade secrets did not present a threat of ongoing criminal activity (&ldquo;continuity,&rdquo; in RICO parlance). With the DTSA&rsquo;s passage, however, the misappropriation, copying, disclosure, and use of trade secrets constitute &ldquo;predicate acts&rdquo; that may satisfy RICO&rsquo;s continuity requirement. The article analyzes two scenarios that may create civil RICO liability: First, a coordinated departure involving multiple employees defecting to join the same competitor; and, second, when a company repeatedly hires key employees in an attempt to acquire its competitors trade secrets.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosMeierPublished.pdf">You can read the full article here</a>.</div> http://www.seyfarth.com:80//publications/MA031717-LE If Pain, Yes Gain—Part XXVII: Maryland Close to Catching Paid Sick Leave Bug http://www.seyfarth.com:80//publications/MA031717-LE Fri, 17 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> After several years of failed legislative attempts to pass a statewide paid sick leave law, Maryland is nearing the finish line following the state Senate&rsquo;s approval of the Maryland Healthy Working Families Act on March 16, 2017.</em></p> <p> The 2017 calendar year very well may be the year that Maryland joins the ranks of states that have passed a statewide mandatory paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; On March 16, 2017, the Maryland Senate voted on and passed the Maryland Healthy Working Families Act (&ldquo;HWFA&rdquo;) by a 29-18 vote.&nbsp; Less than two weeks earlier, on March 3, 2017, the Maryland House of Delegates approved a proposed paid sick leave bill, also titled the Maryland Healthy Working Families Act, by a vote of 88 to 51. &nbsp;</p> <p> Despite these developments, the two chambers must resolve and reconcile distinctions between the bills before they can formally place a paid sick leave proposal before Governor Larry Hogan.&nbsp; The deadline to reconcile these differences is April 10, 2017, the final day of the state&rsquo;s current legislative session.&nbsp; Notably, if the state legislature can compromise on a single paid sick leave proposal, Governor Hogan has indicated that he will veto any such bill.&nbsp; However, the Governor&rsquo;s veto may not cure Maryland businesses&rsquo; sick leave woes as the votes from March 3rd and 16th were by sufficient margins to overcome a Governor veto.&nbsp;</p> <p> Here are some key areas of overlap and discrepancy between the Senate and House versions of the HWFA:</p> <ul> <li> <strong>Effective Date:</strong> One important similarity between the Senate and House sick leave bills is that they both indicate that the HWFA would go into effect on January 1, 2018.&nbsp;</li> <li> <strong>Preemption of Local Paid Sick Leave Laws:</strong> Both bills state that the HWFA would not preempt or otherwise affect any other law that provides more generous paid sick leave benefits than that provided under the HWFA.&nbsp; However, the bills also clarify this provision with an exception, namely that local Maryland jurisdictions would be preempted from passing ordinances on or after January 1, 2017 that impose sick and safe leave obligations on private employers.&nbsp; Significantly, this language would not apply to the Montgomery County, MD Earned Sick and Safe Leave Act, which was passed on October 1, 2016 and amended in November 2016.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp;&nbsp;</li> <li> <strong>Employee Eligibility:</strong> While both bills exclude several of the same types of workers from paid sick leave eligibility, such as individuals under the age of 18, there are at least a few discrepancies between the bills on this point.&nbsp; First, the Senate version generally does not apply to workers who are employed by temporary services agencies, while the House version is silent on this point and thus presumably would apply to such workers.&nbsp; Second, the House version does not apply to employees who regularly work less than eight hours each week <u>or</u> construction employees who are covered by a CBA that waives the HWFA&rsquo;s requirements.&nbsp; By comparison, the Senate version lacks any exemption for employees who work less than eight hours per week, and instead excludes employees who (a) regularly work less than 12 hours per week, (b) are employed in the construction industry, <u>and</u> (c) are covered by a CBA that expressly waives compliance with the HWFA.</li> <li> <strong>Covered Employers:</strong> The Senate and House bills both state that employers with 15 or more employees must provide <u>paid</u> sick leave benefits to eligible employees, while employers with fewer than 15 employees must provide their employees with <u>unpaid</u> sick leave benefits.</li> <li> <strong>Start of Accrual: </strong>Under both bills employees would begin to accrue paid sick leave on January 1, 2018 or their hire date if hired after January 1, 2018.</li> <li> <strong>Paid Sick Leave Accrual, Usage, and Carryover:</strong> The bills both state that employees must accrue paid sick leave at a rate of at least one hour for every 30 hours worked.&nbsp; Both bills also contain annual and &ldquo;point in time&rdquo; accrual caps.&nbsp; However, the amount of these accrual caps and the amount of the bills&rsquo; annual usage and year-end carryover caps vary. <ul> <li> <u>Annual Accrual Cap</u>: House Bill - 56 hours; Senate Bill - 40 hours.</li> <li> <u>&ldquo;Point in Time&rdquo; Accrual Cap</u>: House Bill - 80 hours; Senate Bill - 72 hours.</li> <li> <u>Annual Usage Cap</u>: House Bill - 80 hours; Senate Bill - 72 hours.</li> <li> <u>Year-End Carryover Cap</u>: House Bill - 56 hours; Senate Bill - 40 hours.</li> </ul> </li> <li> <strong>Frontloading:</strong> Both bills note that employers can award employees the full amount of paid sick leave that they would earn over the course of the year at the start of each year instead of following an accrual system.&nbsp; Moreover, adopting a frontloading system will absolve employers&rsquo; year-end carryover obligations under both bills.&nbsp;</li> <li> <strong>Usage Waiting Period: </strong>Another aspect of the two bills that must be reconciled is the paid sick leave usage waiting period imposed on new hires.&nbsp; The House bill states that new hires can begin using paid sick leave after 90 calendar days or 480 hours worked, whichever is shorter, from their date of hire.&nbsp; By comparison, the Senate bill states that new hires must wait 106 calendar days from the start of their employment to begin using paid sick leave.</li> <li> <strong>Protected Reasons for Use:</strong> Under both bills employees can use paid sick leave for (a) their own or a covered family member&rsquo;s mental or physical injury, illness or condition, or need for preventive medical care, and (b) certain absences related to domestic violence, sexual assault or stalking of the employee or the employee&rsquo;s covered family member.&nbsp; Importantly, unlike the House Bill, the Senate bill also allows employees to use paid sick leave for maternity or paternity leave.</li> <li> <strong>Covered Family Members:</strong> Both bills define &ldquo;family member&rdquo; to include children, parents, spouses, grandparents, grandchildren, and siblings.</li> <li> <strong>Employer Ability to Prohibit Abuse of Sick Leave Rights:</strong> Both bills expressly allow employers to adopt and enforce a policy that prohibits employees from improperly using paid sick leave, including prohibiting a pattern of abuse of paid sick leave.</li> <li> <strong>Notice of Available Paid Sick Leave:</strong> Both bills mandate that employers provide employees with a statement of their available paid sick leave balance each time wages are paid.&nbsp; This requirement can be met under both bills through the use of an online system.</li> <li> <strong>Existing Paid Leave Policies:</strong> Neither bill requires employers to modify existing paid leave policies if employees can accrue and use paid leave under terms and conditions that are equivalent to paid sick leave provided under the HWFA.&nbsp; The Senate bill takes this provision a step further and explicitly notes that &ldquo;existing paid leave&rdquo; includes vacation days, sick days, short-term disability benefits, floating holidays, parental leave, and other PTO.</li> <li> <strong>No Payout on Termination:</strong> Neither bill requires employers to compensate employees for earned, unused paid sick time upon separation of employment.</li> </ul> <p> We will continue to monitor and provide updates on Maryland paid sick leave developments as the April 10th deadline approaches and any changes that take place thereafter.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.&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> The seven states that have passed paid sick leave laws are Connecticut, California, Massachusetts, Oregon, Vermont, Arizona and Washington. The Arizona law becomes effective on July 1, 2017 and the Washington law becomes effective on January 1, 2018.&nbsp; The current municipal paid sick leave laws 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) Spokane, WA; (26) Santa Monica, CA; (27) Plainfield, NJ; (28) Minneapolis, MN; (29) San Diego, CA; (30) Chicago, IL; (31) Berkeley, CA; (32) Saint Paul, MN; (33) Morristown, NJ, and (34) Cook County, IL. A number of these laws, including Minneapolis, Chicago, Saint Paul, Berkeley, Cook County, and Pittsburgh, are not yet in effect.&nbsp; The Los Angeles law for private employers became effective for most companies on July 1, 2016. There is also a separate Los Angeles paid sick leave law that has been in effect since late-2014 and applies to certain hotel employers. Similarly, the Long Beach and SeaTac ordinances only apply to hospitality or transportation employers.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> See our <a href="http://www.seyfarth.com/publications/MA093016-LE">prior alert</a> for more information on Montgomery County, MD paid sick leave requirements.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/ADA031717 Natalya Northrip, Emily Dorner to Present Regarding Litigation Hold Maintenance and Retention of HR Records in April http://www.seyfarth.com:80//publications/ADA031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Natalya Northrip and Emily Dorner will be presenting on two interesting eDiscovery topics this April; presentations will focus on litigation hold maintenance and best practices, as well as recordkeeping for human resources professionals. &nbsp;Presentations will take place on April 6, and April 26, respectively. &nbsp;Summaries of presentation content and links to sign up are provided below! &nbsp;Friends of Seyfarth can use the following promo code for 35% off: SPKR35</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/03/natalya-northrip-emily-dorner-present-regarding-litigation-hold-maintenance-retention-hr-records-april/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=0eb747ea52-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-0eb747ea52-72857025">click here</a></p> http://www.seyfarth.com:80//publications/EL031717 “I’ll Be Back To Work Soon”: Massachusetts Addresses An Employer’s Obligations When Employee On Leave Gives An Indefinite Return Date http://www.seyfarth.com:80//publications/EL031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee? &nbsp;Not so fast. &nbsp;The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee&rsquo;s leave would be reasonable.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/ill-be-back-to-work-soon-massachusetts-addresses-an-employers-obligations-when-employee-on-leave-gives-an-indefinite-return-date/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=c78dd4afb1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-c78dd4afb1-71256185">click here</a></p> http://www.seyfarth.com:80//publications/OMM031617-LE Federal Courts Temporarily Block the Trump Administration's Revised Travel Ban http://www.seyfarth.com:80//publications/OMM031617-LE Thu, 16 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> Federal judges from Hawaii and Maryland have issued nationwide Temporary Restraining Orders (TROs) effectively blocking the implementation of the Trump administration&rsquo;s revised travel ban, which was scheduled to take effect on March 16, 2017. &nbsp;</em></p> <p> Late on Wednesday, March 15, Judge Derrick K. Watson of the Federal District Court in Honolulu issued a nationwide TRO suspending the implementation of the Trump administration&rsquo;s revised Executive Order (EO) and associated travel ban. Early Thursday morning, Maryland federal Judge Theodore D. Chuang issued a separate TRO blocking key provisions of the EO from taking effect nationwide. Both decisions took the position that the revised EO violates the First Amendment because it was designed to discriminate against Muslims. According to Judge Watson, even the new order was &ldquo;issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.&rdquo;</p> <p> The revised EO would temporarily restrict certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entry into the United States for 90 days, aiming to resolve issues and ambiguities cited in the litigation related to the previous Executive Order signed on January 27, 2017. &nbsp;</p> <p> The Department of Justice (DOJ) has signaled that it will likely file an emergency appeal to the Federal Court of Appeals requesting that the TROs be overturned and that the EO be reinstated. &nbsp;</p> <p> At present, foreign nationals who would have been impacted by the revised EO can be admitted to the United States. However, this situation remains fluid and can change any day. More information on the revised EO can be found in our <a href="http://www.seyfarth.com/publications/OMM030617-IMM">prior alert</a> on the topic. Seyfarth Shaw will continue to keep our clients informed on further developments.</p> http://www.seyfarth.com:80//news/sherman-quoted-university-maryland-smith-school-business-031617 Andrew Sherman quoted by the <i>University of Maryland Smith School of Business</i> http://www.seyfarth.com:80//news/sherman-quoted-university-maryland-smith-school-business-031617 Thu, 16 Mar 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Gender Diversity on Corporate Boards: How Do We Get There?&quot; &mdash; a March 16 story from the <em>University of Maryland Smith School of Business</em>. Sherman said that the old-school, or non-gender-diverse board model is dying, but not dead.</p> <p> <a href="https://www.rhsmith.umd.edu/news/gender-diversity-corporate-boards-how-do-we-get-there">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/shire-participated-question-and-answer-in-forbes-031517 John Shire participated in a Q&A in <i>Forbes</i> http://www.seyfarth.com:80//news/shire-participated-question-and-answer-in-forbes-031517 Wed, 15 Mar 2017 00:00:00 -0400 <p> John Shire participated in &quot;Making An Impact--Improving The World And Your Portfolio,&quot; a March 15 Q&amp;A in <em>Forbes</em> on how fund managers can assess economic risk in striking a balance between satisfying the requirements of portfolio mandates, the standards for SDG performance, and financial performance.</p> <p> <a href="https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/christopherskroupa/2017/03/15/making-an-impact-improving-the-world-and-your-portfolio/&amp;refURL=&amp;referrer=#2a5c92c20142">You can read the full Q&amp;A here</a>.</p> http://www.seyfarth.com:80//publications/CP031517 Rules to Avoid Bursting Your Floating Holiday Bubble http://www.seyfarth.com:80//publications/CP031517 Wed, 15 Mar 2017 00:00:00 -0400 <p> Some California employers offer floating holidays for employees to use for events like the upcoming St. Patrick&rsquo;s Day holiday. Floating holidays, while offering additional unrestricted days off that promote employee satisfaction and work-life balance, can also bring a sinking feeling to employers who learn, too late, of their possible ballast.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/15/rules-to-avoid-bursting-your-floating-holiday-bubble/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=0c65954385-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-0c65954385-71410869">click here</a></p> http://www.seyfarth.com:80//publications/EL031417 Fifth Circuit Warps Time In Decision On The Continuing Violation Doctrine http://www.seyfarth.com:80//publications/EL031417 Tue, 14 Mar 2017 00:00:00 -0400 <p> The U.S. Fifth Circuit Court of Appeals recently held for the first time that the continuing violation doctrine applies even when a plaintiff was subject to harassment that was severe enough to put the employee on notice of the duty to file a complaint. &nbsp;The lower court will now consider conduct many years outside of the 300-day limitations period under Title VII. This decision alters prior Circuit precedent, widens the reach of the continuing violation doctrine, and serves as warning for HR professionals and litigation counsel.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/fifth-circuit-warps-time-in-decision-on-the-continuing-violation-doctrine/">click here</a></p> http://www.seyfarth.com:80//publications/OMM031417-LE U.K. Parliament Passes Brexit Bill http://www.seyfarth.com:80//publications/OMM031417-LE Tue, 14 Mar 2017 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility and International Employment Law Practices host attorneys licensed to practice in the UK, Canada, Australia, China, Ireland, Germany, and France. These groups have &nbsp;assisted clients in more than 150 jurisdictions around the world.&nbsp; If we can assist you in international&nbsp; employment or immigration matters, please call your usual Seyfarth contact attorney. We will be happy to help you.</em></p> <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The UK Parliament has passed the EU Withdrawal Bill, paving the way for the Government to invoke Article 50, the mechanism for leaving the European Union, by the end of March 2017.&nbsp; </em></p> <p> On March 13, 2017, the UK Parliament passed the European Union (Notification of Withdrawal) Bill.&nbsp; The Bill&rsquo;s purpose is to allow the Prime Minister to notify the European Union of the United Kingdom&rsquo;s intention to withdraw from the European Union, through invocation of Article 50 of the Lisbon Treaty.</p> <p> The British Prime Minister, Theresa May, has previously indicated that she wishes to make the notification, triggering such withdrawal, before the end of March 2017.&nbsp; The passing of this Bill now makes such a timetable likely.</p> <p> <strong>What Will Happen Next?</strong></p> <p> Once Article 50 has been invoked, the United Kingdom will enter into a period of negotiation with the European Union.&nbsp; The parties have a period of two years to negotiate an exit agreement for the UK.&nbsp; If no agreement has been reached by the end of the two year period, all EU Treaties that apply to the UK will be void, unless the European Council (comprised of the Heads of all Member States) agrees to continue the negotiations.</p> <p> <strong>How Will This Decision Affect UK Employment and Immigration Laws?</strong></p> <p> At this stage, the rights of all EU nationals and their family members to reside and work in the UK remain unchanged.&nbsp; However, the attempt by some members of the House of Lords to insert a provision to protect the residence rights of EU citizens already living in the UK into the Withdrawal Bill was rejected.&nbsp; Therefore, the current legislation does not make any guarantees regarding the future status of this group of EU citizens. &nbsp;It is likely that this issue, as well as the rights of British citizens residing in other areas of the EU, will be one of the key considerations during the negotiation period. &nbsp;The position regarding employment laws is uncertain. &nbsp;Many employment protections stem from European Directives&mdash;but much has been said lately about the UK becoming a lighter tax jurisdiction in order to attract investment, if a deal with the EU is not achieved. Typically, tax haven jurisdictions are &ldquo;light touch&rdquo; in employment law terms, so the political difficulties of eroding current levels of employee protection may run counter to the economic realities of the UK&rsquo;s trading position.</p> <p> We recommend that all EU nationals currently living in the UK apply for a residence card to confirm their status.&nbsp; Likewise, any British citizens living elsewhere in the EU should ensure they have the equivalent documentation which confirms their rights.&nbsp; They may also wish to consider applying for dual nationality to protect their rights to reside in the UK on a permanent basis. Much remains to be seen in relation to the evolution of British employment laws.</p> http://www.seyfarth.com:80//news/milligan-quoted-business-insurance-031417 Robert Milligan quoted in <i>Business Insurance</i> http://www.seyfarth.com:80//news/milligan-quoted-business-insurance-031417 Tue, 14 Mar 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;WikiLeaks&rsquo; release of CIA trove a wake-up call for cyber security,&quot; a March 14 story from <em>Business Insurance</em> on how the release by WikiLeaks of some 8,000 Central Intelligence Agency documents showing the agency found flaws in many internet devices should serve as a warning to firms about keeping up-to-date on cyber security measures. Milligan said that the main takeaway here is that employee training is paramount, and oftentimes companies do not invest enough time, attention and energy into providing that type of training to employees about keeping company information confidential.</p> <p> <a href="http://www.businessinsurance.com/article/20170313/NEWS06/912312364/WikiLeaks-release-of-CIA-trove-a-wake-up-call-for-cyber-security">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-represents-mack-cali-roseland-residential-trust-300-million-equity-sale Seyfarth Represents Mack-Cali’s Roseland Residential Trust in $300 Million Equity Sale http://www.seyfarth.com:80//news/seyfarth-represents-mack-cali-roseland-residential-trust-300-million-equity-sale Mon, 13 Mar 2017 00:00:00 -0400 <div> NEW YORK - (March 10, 2017) - Seyfarth Shaw LLP represented Roseland Residential Trust, a subsidiary of developer Mack-Cali Realty Corporation, in a $300 million minority preferred equity stake sale to Rockpoint, a real estate private equity firm.</div> <div> &nbsp;</div> <div> Mack-Cali Realty Corporation is a fully integrated, self-administered, self-managed real estate investment trust (REIT) providing management, leasing, development, and other tenant-related services for its two-platform operations of waterfront and transit-based office and luxury multi-family assets. Roseland Residential Trust (Roseland), a subsidiary of Mack-Cali Realty Corporation (NYSE: CLI) was formed to own, manage, and develop Mack-Cali&#39;s luxury multi-family residential portfolio.&nbsp;</div> <div> &nbsp;</div> <div> Roseland is a premier, full-service residential and mixed-use owner and developer in the Northeast with an industry leading reputation for successful completion, execution, and management of class A residential developments. Roseland&rsquo;s scalable and integrated business platform oversees the Company&rsquo;s operating and in-construction assets, geographically desirable land portfolio, sourcing of new development and acquisition opportunities, and repurposing activities on Mack-Cali&rsquo;s office holdings.</div> <div> &nbsp;</div> <div> The cross-departmental, multiple-office Seyfarth team was led by partners Blake Hornick and John Napoli with assistance from Marc Reiser, Greg Sale, Steve Gallagher, Andrew Berg. Miles Borden, Roy Meilman, Steve Crainer, Michael Rosenthal and Josh Lake.</div> http://www.seyfarth.com:80//news/seyfarth-leads-top-industrial-deals-for-real-estate-industry-in-2016 Seyfarth Leads Top Industrial Deals for Real Estate Industry in 2016 http://www.seyfarth.com:80//news/seyfarth-leads-top-industrial-deals-for-real-estate-industry-in-2016 Mon, 13 Mar 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP was involved in <strong>the largest industrial transaction</strong> of 2016, according to the latest rankings from Real Estate Alert. Seyfarth&rsquo;s Real Estate team was engaged in several other transactions among the top 25. With a combined value of more than $1.6 billion, Seyfarth handled the following matters:</div> <ul> <li> <strong>No. 1</strong> &ndash; Represented LBA Realty in its $1.46 billion sale of 46 industrial properties to Blackstone</li> <li> <strong>No. 15</strong> &ndash; Represented Bill Davies in the sale of Chicago&rsquo;s Old Main Post Office Building to 601W Properties for $129.7 million</li> <li> <strong>No. 22</strong> - Represented Stockbridge Capital in its acquisition of Tech Ridge in Austin, Texas for $107 million</li> </ul> http://www.seyfarth.com:80//news/rodriguez-interviewed-healthcareinfosecurity-031317 Leon Rodriguez was interviewed by <i>Healthcareinfosecurity.com</i> http://www.seyfarth.com:80//news/rodriguez-interviewed-healthcareinfosecurity-031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> Leon Rodriguez was interviewed on &quot;What Can We Learn from HIPAA Settlements?&quot; - a March 13 podcast from <em>Healthcareinfosecurity.com</em> about how the Department of Health and Human Services&#39; Office for Civil Rights&#39; dozens of HIPAA settlements and other enforcement actions demonstrate that all aspects of compliance are critical and subject to scrutiny by federal regulators.</p> <p> <a href="http://www.healthcareinfosecurity.com/interviews/what-we-learn-from-hipaa-settlements-i-3527">You can listen to the full podcast here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-law360-031317 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;EEOC Debuts Online Inquiry System In 5 Cities,&quot; a March 13 story from <em>Law360 </em>on the U.S. Equal Employment Opportunity Commission&rsquo;s recent step toward modernizing how it processes new discrimination charges, rolling out an online inquiry and appointment system in five cities. Maatman said that the EEOC&rsquo;s initiative is designed to do more with less, using technology to reduce the costs of handling discrimination charges.</p> http://www.seyfarth.com:80//news/paparelli-quoted-law360-031317 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/paparelli-quoted-law360-031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;4 Questions About The New Travel Ban Order,&quot; a March 13 story from Law360 on four major questions to ponder about the latest travel ban executive order, along with some answers. Paparelli said that many countries simply don&#39;t collect the same information as what may be requested by the U.S., meaning they will be seen as &ldquo;uncooperative.&rdquo;</p> http://www.seyfarth.com:80//news/sherman-interviewed-federal-news-radio-031317 Andrew Sherman interviewed by <i>Federal News Radio</i> http://www.seyfarth.com:80//news/sherman-interviewed-federal-news-radio-031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> Andrew Sherman was interviewed in &quot;How disengaged employees harm the economy,&quot; a March 13 segment from Federal News Radio on how the number of disengaged workers is on the rise, and without purpose or motivation, the problem will only magnify.</p> <p> <a href="http://federalnewsradio.com/whats-working-washington/2017/03/how-disengaged-employees-harm-the-economy/">You can listen to the full interview here</a>.</p> http://www.seyfarth.com:80//publications/ES031317 Senate Passes Disapproval Resolution of “Blacklisting” Regulations http://www.seyfarth.com:80//publications/ES031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> By a vote of 49-48 on March 6, 2017, by the U.S. Senate, both Houses of Congress have now moved to rescind the regulations issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled Fair Pay and Safe Workplaces but popularly referred to as the &ldquo;Blacklisting&rdquo; Order, which required government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts. &nbsp;If President Trump signs the rescission resolution, as he is expected to do, the regulations will be rescinded. Under the Congressional Review Act, if a regulation is subject to rescission, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/workplace-policies-and-processes/senate-passes-disapproval-resolution-of-blacklisting-regulations/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=2bffa30164-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-2bffa30164-71407177">click here</a></p> http://www.seyfarth.com:80//publications/ADA031317 UC Berkeley To Remove More Than 20,000 Online Videos From Public Access In Response To DOJ Captioning Demand http://www.seyfarth.com:80//publications/ADA031317 Mon, 13 Mar 2017 00:00:00 -0400 <p> Starting March 15, 2015, more than 20,000 videos of classroom lectures and podcasts on UC Berkeley&rsquo;s YouTube and iTunes channels will no longer be available for public viewing, according to a recent statement by the university. &nbsp;The statement explains that the decision will &ldquo;partially address recent findings by the Department of Justice which suggests that the YouTube and iTunesU content meet higher accessibility standards as a condition of remaining publicly available,&rdquo; and &ldquo;better protect instructor intellectual property from &ldquo;pirates&rdquo; who have reused content for personal profit without consent.&rdquo; &nbsp;UC Berkeley stated that it would focus its resources on creating new accessible online content and continue to offer free courses in accessible formats to the public through massive online open course provider, edX.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/03/uc-berkley-to-remove-more-than-20000-online-videos-from-public-access-in-response-to-doj-captioning-demand/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=f40f460e2b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-f40f460e2b-71256157">click here</a></p> http://www.seyfarth.com:80//publications/MA031317-LE Third Circuit Rules Private Hospital Is Subject to Medical Resident’s Title IX Claims http://www.seyfarth.com:80//publications/MA031317-LE Mon, 13 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:&nbsp; </em></strong><em>In Doe v. Mercy Catholic Medical Center, No. 16-1247 (3d Cir. 2017), the U.S. Court of Appeals for the Third Circuit recently held that the nondiscrimination and anti-harassment protections of Title IX apply to a private medical hospital&rsquo;s residency program and therefore allowed a medical resident to proceed with her Title IX claims against the hospital.&nbsp; The three judge panel also declined to rule that Title VII&rsquo;s concurrent applicability and administrative requirements precluded Doe from filing the instant Title IX claim.&nbsp; The Court&rsquo;s analysis illustrates the potential breadth of Title IX&rsquo;s reach beyond school house gates and college and university arches to any entity operating an &ldquo;education program or activity&rdquo; and which receives &ldquo;Federal financial assistance.&rdquo; </em></p> <p> On March 7, 2017, the Third Circuit waded into the increasing body of Title IX jurisprudence, largely vacating a Pennsylvania District Court order dismissing a former medical resident&rsquo;s (&ldquo;Doe&rdquo;) Title IX claims against the host of her residency program, Mercy Catholic Medical Center (&ldquo;Mercy&rdquo;).&nbsp;&nbsp; In doing so, the three-judge panel affirmatively ruled that: (1) Title IX of the Education Amendment Acts of 1972 applied to Mercy; and (2) that Title VII of the Civil Rights Act of 1964 is not the exclusive remedy for private employees covered by both Title IX and Title VII.&nbsp;</p> <p> Doe was a resident in the diagnostic radiology program at Mercy, which is affiliated with Drexel University&rsquo;s College of Medicine.&nbsp; According to Doe&rsquo;s complaint, during her tenure in the program, her program director, referred to as &ldquo;James Roe,&rdquo; subjected her to increasingly persistent and unwanted sexual advances which interfered in her medical training. &nbsp;Doe also asserts that once she complained about Roe&rsquo;s behavior, Roe and other Mercy representatives subjected her to a series of retaliatory behavior, culminating in her dismissal from the program in April of 2013.&nbsp; Two years to the date of her dismissal, on April 20, 2015, Doe filed suit against Mercy alleging, among other things, <em>quid pro quo </em>sexual harassment, hostile environment sexual harassment, and retaliation in violation of Title IX.&nbsp; Mercy moved to dismiss Doe&#39;s complaint on the grounds that as a community hospital, it did not constitute an educational program or activity as defined by Title IX and therefore was not subject to the law.&nbsp; Mercy also argued that even if Title IX covered Doe, she was required to exhaust the administrative remedies of Title VII, which is the exclusive remedy for employees of private employers in sex discrimination cases.&nbsp; The district court agreed and dismissed Doe&rsquo;s suit.</p> <p> Upon appeal, the Third Circuit reversed.&nbsp; Disagreeing with the District Court&rsquo;s reasoning, the Third Circuit panel found that Mercy was subject to Title IX because its medical residency program, under the facts presented, constituted &nbsp;an education program or activity receiving Federal financial assistance as defined by Title IX.&nbsp; In doing so, the panel closely examined the statutory language of Title IX, which states that the law applies to entities that (1) operate any education program or activity; <u>and</u> (2) receive Federal financial assistance.</p> <p> With respect to the first prong, the panel reviewed that statutory history of Title IX, noting Congress chose to specifically define &ldquo;program or activity,&rdquo; but not the term&rsquo;s modifier &ldquo;education.&rdquo;&nbsp; The panel opined that the definition of &ldquo;program or activity&rdquo; expressly included programs or activities at a broad range of entities, not just educational institutions, and explicitly excluded others, like social fraternities and the YMCA.&nbsp; Based on this analysis, the panel determined that Mercy, although engaged primarily in the business of healthcare, could be subject to Title IX if operating an <u>education</u> program or activity.&nbsp; Noting that Congress had opted not to define the term, the Third Circuit panel stated that &ldquo;education&rdquo; should be interpreted broadly and therefore should include any entity operating a program or activity that has &ldquo;educational characteristics.&rdquo;&nbsp; The panel indicated that such a determination is a mixed question of law and fact, but could in part be guided by &ldquo;features which support deeming a program an &lsquo;education program or activity&rsquo;&rdquo; including:</p> <p style="margin-left:.5in;"> <em>&ldquo;(A) a program is incrementally structured through a particular course of study or training, whether full- or part-time; (B) a program allows participants to earn a degree or diploma, qualify for a certification or certification examination, or pursue a specific occupation or trade beyond mere on-the-job training; (C) a program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or (D) the entities offering, accrediting, or otherwise regulating a program hold it out as educational in nature.&rdquo;</em></p> <p> The Third Circuit panel noted that the status of the participants in the given program as a student, nonstudent, or employee is pertinent, but not dispositive, to this inquiry.&nbsp; Indicating the analytical framework is consistent with broader application of Title IX, the panel also cited the respective positions of the 21 federal agencies enforcing Title IX and the Eighth and Ninth Circuit, which have applied Title IX to jails and prisons operating educational programs for inmates.</p> <p> Applying this standard, the panel easily decided that Mercy&rsquo;s residency program is an education program or activity under Title IX.&nbsp; Key to the Court&rsquo;s analysis was, among other things, Doe&rsquo;s participation in both didactic and clinical work, supervision by attending physicians and faculty, completion of required annual examinations, completion of clinical evaluations, attendance at mandatory lectures, participation in at least one course on Drexel University&rsquo;s campus as part of the program, and the fact that completion of the program would have entitled Doe to complete licensure exams.&nbsp; The panel also considered that the national residency accreditation agency, the Accreditation Counsel for Graduate Medical Education (ACGME), calls residency programs&nbsp; &ldquo;structured educational experience[s]&rdquo; and cited numerous courts characterizing the educational nature of medical residencies in other contexts.&nbsp; Importantly, the panel also cited the existence of formal affiliation agreements with educational institutions, such as Mercy&rsquo;s presumed affiliation with Drexel University&rsquo;s College of Medicine, as a significant consideration.&nbsp;</p> <p> Of course, it is not sufficient to establish that Mercy operated an education program or activity in order to establish Title IX jurisdiction.&nbsp; The facts must also show that Mercy received Federal financial assistance, which Mercy denied.&nbsp; In a footnote in its brief before the panel, Mercy argued that it did not receive Federal financial assistance and that the Medicare payments intended to supplement residency training costs instead &ldquo;stem &lsquo;from contracts of insurance.&rsquo;&rdquo;&nbsp; Interestingly, the Third Circuit panel declined to address this argument because Mercy failed to raise it in the lower court.&nbsp; Though the panel hinted skepticism of Mercy&rsquo;s argument, it ultimately assumed, without deciding, that Mercy received Federal financial assistance.</p> <p> Finally, the Third Circuit panel, having found Mercy is subject to Title IX, determined whether Title VII barred Doe&rsquo;s private right of action for sex discrimination and retaliation under Title IX.&nbsp; In the first instance, the panel found that Doe was an &ldquo;employee&rdquo; of Mercy when she participated in the residency program and therefore could have brought Title VII claims with the EEOC and eventually in court.&nbsp; Caveating this conclusion was not applicable to all residents, the panel articulated that under the specific circumstances of this case, it was &ldquo;plausible&rdquo; to find Doe was an employee because she performed tasks part of Mercy&rsquo;s regular business, &nbsp;received the tools and materials needed for her work from Mercy, had no control over schedule and length of shifts, was paid for the work, paid taxes on that income, and could collectively bargain like other employees.&nbsp; &nbsp;However, having found Doe to be an employee, the court declined to rule that Title VII&rsquo;s concurrent applicability and administrative requirements precluded her from filing the instant Title IX claim, despite the fact that she never filed a charge with the EEOC or otherwise pursued Title VII claims.&nbsp; Citing the First and Fourth Circuits, the panel ruled that when an individual is covered by both Title VII and Title IX, he or she may seek relief through whichever statutory scheme he or she chooses.&nbsp; The panel acknowledged that its decision is in conflict with the Fifth and Seventh Circuits that have ruled that Title VII is the exclusive remedy for private employees of institutions subject to Title IX.</p> <p> <strong>Implications for Hospitals and Other Healthcare Institutions</strong></p> <p> This case illustrates the pressing need of medical centers, hospitals, and other healthcare institutions providing accredited teaching and training programs, particularly programs formally affiliated with educational institutions, to evaluate the application of Title IX to health care education programs.&nbsp; Public hospitals and medical centers likely have little room to argue they are exempt from Title IX&rsquo;s reach because they not recipients of Federal financial assistance, but for private entities, a question remains whether receipt of Medicare payments will qualify as &ldquo;Federal financial assistance.&rdquo; But as the Third Circuit panel hinted here, there is a strong likelihood that private teaching hospitals and medical centers with accredited residency programs will be brought under Title IX&rsquo;s purview as Federal funding recipients. &nbsp;Moreover, the Third Circuit&rsquo;s decision speaks only to Doe&rsquo;s private right of action under Title IX, raising additional questions as to the long term practical impact of subjecting private medical centers to the statutory and regulatory requirements of Title IX.&nbsp; This question poses a particularly significant quandary for such institutions, given the heightened requirements for response to, and investigation of, all forms of sex discrimination enforced in the higher education context in recent years.&nbsp; Hospitals and medical centers should now pay heightened attention to how their institutions address potential complaints and claims of all forms of discrimination, harassment, and retaliation, including those that may be brought under Title IX and Title VII, as well as consider best practices for mitigating the risks associated with operating medical residency and other educational programs. &nbsp;</p> http://www.seyfarth.com:80//publications/WC031117 What 2016 Governmental Enforcement Litigation Trends Suggest For Employers In 2017 http://www.seyfarth.com:80//publications/WC031117 Sat, 11 Mar 2017 00:00:00 -0400 <p> Governmental enforcement litigation was a mixed bag in 2016. The U.S. Department of Labor (&ldquo;DOL&rdquo;) and the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) continued their aggressive enforcement programs, but their effectiveness was down &ldquo;by the numbers&rdquo; as compared to previous years. What does this mean for 2017? &nbsp;In the 6th and final installment in our series of blog postings on workplace class action trends, we examine what employers are likely to see in 2017 on the government enforcement litigation front.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/what-2016-governmental-enforcement-litigation-trends-suggest-for-employers-in-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=e2fcdb69f4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-e2fcdb69f4-71256717">click here</a></p> http://www.seyfarth.com:80//publications/WH031017 Independent Contractor Standards Uncertain Despite New Administration http://www.seyfarth.com:80//publications/WH031017 Fri, 10 Mar 2017 00:00:00 -0400 <p> It remains to be seen whether the Trump administration will redirect its enforcement priorities away from independent contractor misclassification issues or curtail the applicable standards in the coming years. Because states and plaintiffs&rsquo; attorneys likely will continue to aggressively pursue independent contractor matters, employers should consider auditing their independent contractor positions to identify and address potential exposure.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/independent-contractors/independent-contractor-standards-uncertain-despite-new-administration/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=f5b0655457-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-f5b0655457-71256393">click here</a></p> http://www.seyfarth.com:80//publications/MA031017-LE Proposed Regulations Issued for New York Paid Family Leave Law http://www.seyfarth.com:80//publications/MA031017-LE Fri, 10 Mar 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The Workers&rsquo; Compensation Board issued proposed regulations for New York&rsquo;s Paid Family Leave Law (&ldquo;PFL&rdquo;).&nbsp; The regulations provide much needed guidance on many key areas of the law, including eligibility and uses for leave, notice requirements, and written policy requirements.&nbsp; The Notice and Comment period extends until April 10, 2017.&nbsp; PFL goes into effect on January 1, 2018. </em></p> <p> New York&rsquo;s Paid Family Leave Law (&ldquo;PFL&rdquo;) will be effective January 1, 2018.&nbsp; By 2021, when the law is fully phased in, it will provide eligible employees with up to 12 weeks of paid leave in a 52-consecutive week period.&nbsp; While on PFL, employees will be paid up to 67% of their average weekly wage or the state average weekly wage, whichever is less, under the statutory scheme.&nbsp; Further details about the law are available in our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA041916LE.pdf">prior alert</a>.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The Workers&rsquo; Compensation Board recently issued <a href="http://www.wcb.ny.gov/PFL/pfl-regs-text.pdf">proposed regulations </a>that provide definitions and explanations for many of the key aspects of PFL, including, but not limited to, eligibility, notice for a foreseeable or unforeseeable qualifying event, and various employer obligations. &nbsp;The regulatory highlights follow.</p> <p> <strong>Eligibility and Uses for Leave</strong></p> <p> PFL provides that employees may take time off of work, up to a maximum of 12 weeks in a 52-consecutive week period, for the following reasons:</p> <ul> <li> To provide care for a covered family member when the family member has a serious health condition;</li> <li> To bond with his or her child the first year of birth or adoption; or</li> <li> For any &ldquo;qualified exigency&rdquo; under the federal Family Medical Leave Act (&ldquo;FMLA&rdquo;), where the covered family member is on active duty or has been notified of an order to resume active duty in the military.</li> </ul> <p> The proposed regulations provide clarity on the statutory eligibility requirements set forth in the statute.&nbsp;</p> <p> The proposed definition of to &ldquo;provid[e] care&rdquo; requires that the employee &ldquo;be in close and continuing proximity to the care recipient.&nbsp; This means present at the same location as the family member during the majority of the employment period from which leave has been taken.&rdquo;&nbsp; This definition also includes travel to secure medication or to arrange care for the family member.&nbsp; It is further inclusive of various types of care, such as &ldquo;necessary physical care, emotional support, visitation, assistance in treatment, transportation, arranging for a change in care, assistance with essential daily living matters and personal attendant services.&rdquo;</p> <p> A &ldquo;serious health condition&rdquo; is defined as &ldquo;an illness, injury, impairment, or physical or mental condition that involves: inpatient care in a hospital, hospice, or residential health care facility; or continuing treatment or continuing supervision by a health care provider.&nbsp;</p> <p> &ldquo;Continuing treatment or continuing supervision&rdquo; includes, among other things, a period of three or more consecutive, full calendar days during which a family member is unable to work, attend school, perform regular daily activities or is otherwise incapacitated due to illness, injury, impairment or physical or mental conditions, and any subsequent treatment or period of incapacity relating to the same condition under certain circumstances.&nbsp; The definition also includes any long term or permanent period during which a family member is unable to work, attend school or perform regular activities due to an illness, injury, impairment or physical or mental condition, so long as the family member is under the continuing supervision of a health care provider.&nbsp; &ldquo;Continuing treatment and continuing supervision&rdquo; also includes a period of time in which a family member is incapacitated due to a &ldquo;chronic serious health condition&rdquo; which is defined as a condition that requires periodic visits for treatment; continues over an extended period of time, and may cause episodic rather than a continuing period of incapacity.&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> Excluded from the definition of &ldquo;serious health condition&rdquo; are cosmetic treatments unless inpatient treatment is required or complications develop.&nbsp; Similarly, unless complications arise, the common cold, the flu, ear aches, upset stomach, minor ulcers, headaches other than migraine, routine dental or orthodontia problems, etc., are also excluded.</p> <p> Leave for purposes of birth, adoption, or foster care is also further explained in the proposed regulations.&nbsp; An employee may take family leave for the purposes of arranging placement for adoption or foster care, including counseling sessions, court appearances, meetings with a birth parent&rsquo;s attorney or doctor, or travel to another country to complete an adoption, if absence from work is required for the placement for adoption or foster care to proceed.&nbsp; Eligibility for leave following a child&rsquo;s birth or adoption or foster care placement begins on the date of the child&rsquo;s birth or placement and expires at the end of the consecutive 52-week period following such birth or placement.&nbsp; Finally, the regulations clarify that an eligible employee may receive disability benefits or paid family leave benefits during the post-partum period, but not both at the same time.&nbsp;</p> <p> <strong>Defining &ldquo;52-Consecutive Weeks&rdquo;</strong></p> <p> The proposed regulations make clear that 52-consecutive calendar weeks must be computed retroactively with respect to each day for which benefits are claimed.&nbsp;</p> <p> <strong>Notice of the Need for PFL</strong></p> <p> To use PFL, notice to the employer must be given at least 30 days in advance of the date leave is to begin if the event is foreseeable.&nbsp; Foreseeable qualifying events are included in the proposed regulations: &ldquo;an expected birth, placement for adoption or foster care,&rdquo; &ldquo;planned medical treatment for a serious health condition of a family member&rdquo; or a &ldquo;known military exigency.&rdquo;&nbsp;</p> <p> If the need for leave is not foreseeable, notice must be given as soon as practicable.&nbsp; Pursuant to the proposed regulations, &ldquo;as soon as practicable&rdquo; means &ldquo;as soon as possible and practical, taking into account all of the facts and circumstances in the individual case.&nbsp; When an employee becomes aware of a qualifying event less than 30 days in advance, it should be practicable for the employee to provide notice of the need for leave either the same day or the next business day.&rdquo;&nbsp; Failure to give proper notice for a foreseeable need for PFL may lead to partial denial of the claim for a period of up to 30 days from the date notice is provided.</p> <p> As with other leave statutes, an employee is required to provide notice sufficient to put an employer on notice of the qualifying event and the anticipated timing and duration of leave, but need not expressly assert rights under PFL or even mention &ldquo;family leave.&rdquo;&nbsp;&nbsp;&nbsp;</p> <p> Employees may make a claim for PFL by using the PFL-1 form issued by the Workers&rsquo; Compensation Board.&nbsp; A draft form is currently available <a href="http://www.wcb.ny.gov/PFL/Draft-PFL-Forms.pdf">here</a>.</p> <p> <strong>Employer Obligations</strong></p> <p> <em>Written Policy and Posting Requirement</em></p> <p> An employer&rsquo;s disability benefits policy must provide paid family leave coverage as of the effective date of the law.&nbsp;</p> <p> Further, employers must distribute written policies providing information about PFL, including how to file a claim, as well as conspicuously post a printed notice concerning PFL in a form prescribed by the Workers&rsquo; Compensation Board.&nbsp; Such a notice has not yet been finalized. &nbsp;&nbsp;&nbsp;&nbsp;</p> <p> Failure to provide coverage for PFL will lead to a penalty of .05% of the employer&rsquo;s weekly payroll for the period of such failure, and a maximum additional penalty of $500.&nbsp;</p> <p> <em>Employers Must Maintain Employee Health Coverage During Period of Leave</em></p> <p> Incorporating the FMLA&rsquo;s provisions, employers must maintain employees&rsquo; health coverage while employees are on PFL.&nbsp; The proposed regulations clarify that an employee who is provided health insurance and who is normally required to make contributions to the cost of health insurance premiums must continue to do so while on leave.&nbsp; Any changes to the health plan or amount of premiums must apply equally to the employee on PFL, whether the change is to the advantage or the disadvantage of the employee.&nbsp; If an employee&rsquo;s share of the premium is 30 days late, the employer may discontinue coverage for the period of leave, upon 15 days&rsquo; written notice.&nbsp; Further, if the employee&rsquo;s coverage lapses because payments were missed during the period while on PFL or because the employee did not elect to maintain coverage during leave, the employer must restore the employee to regular coverage/benefits equivalent to those the employee would have had if PFL was not taken and the payments were not missed, including coverage of family or dependents.&nbsp;</p> <p> <em>No Prospective Waiver of Rights</em></p> <p> Generally, employees cannot waive their prospective rights under PFL and under no circumstances may an employer induce employees to waive any rights under PFL.&nbsp;</p> <p> The proposed regulations do allow, however, employees whose regular work schedules are less than 26 weeks or 175 days in a 52-consecutive week period to file a waiver of family leave benefits.&nbsp; Employees who file a waiver do not have to make contributions to the cost of family leave benefits, and the employer will be similarly exempt from providing PFL to those employees.&nbsp; However, within 8 weeks of scheduling such an employee for a regular work schedule of 26 weeks or 175 days in a 52-consecutive week period, any waivers on file will be deemed revoked.&nbsp;&nbsp;&nbsp;</p> <p> <em>Complaints of Failure to Reinstate and Discrimination</em></p> <p> Under the law, an employee must be reinstated to the same or similar position that he or she left prior to taking PFL.&nbsp; The proposed regulations expand on this premise.&nbsp; In the event an employer refuses to reinstate the employee (who is otherwise eligible for reinstatement), an employee may file a formal request for reinstatement within 120 days of such refusal with the Workers&rsquo; Compensation Board.&nbsp; Within the 30 days, the employer may take corrective action or respond to the request.&nbsp; Failing to respond may result in adverse findings and conclusions against the employer.</p> <p> Following the employer&rsquo;s response, or thirty days after the due date for such response, the employee has two years to file a complaint under section 120 of the Workers&rsquo; Compensation Law (&ldquo;WCL&rdquo;), which prohibits discrimination against employees who seek coverage under the law.&nbsp; The proposed regulations detail several &ldquo;valid and legitimate&rdquo; bases for the employer&rsquo;s failure to reinstate the employee: (1) the employee was ineligible to receive PFL at the time the claim was made; (2) the employee&rsquo;s position has been eliminated or over time had been decreased due to the needs of the business; and (3) the employee&rsquo;s claim for PFL was falsified.&nbsp; &nbsp;</p> <p> <em>Collective Bargaining Agreements</em></p> <p> Employers of employees subject to a collective bargaining agreement (&ldquo;CBA&rdquo;) are only exempt from providing PFL if the CBA provides benefits at least as favorable as those set forth in the law.&nbsp; Except as otherwise permitted by the waiver provision described above, the CBA may not permit an eligible employee to opt out of PFL.&nbsp;</p> <p> <strong>Implications for Employers</strong></p> <p> Employers should prepare to revise their written policies and due to the State&rsquo;s widely publicized announcement about PFL and the <a href="https://www.ny.gov/new-york-state-paid-family-leave/paid-family-leave-how-it-works">recent FAQs posted</a>, may receive questions from employees in advance of implementation.&nbsp; We will continue to track the proposed regulations as they reach final rule status, and advise of any updates, including when PFL-1 is finalized.&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> The proposed regulations clarify that an employer is permitted, but not required, to collect the weekly employee contribution on July 1, 2017 for paid family leave coverage beginning on January 1, 2018.&nbsp; The employee contribution amount will be set on or about June 1, 2017 and annually thereafter on September 1, 2017.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/OMM030917-LE SEC Claws Back Award for Dawdling Whistleblower, as Feds Signal Changes in Award Eligibility http://www.seyfarth.com:80//publications/OMM030917-LE Thu, 09 Mar 2017 00:00:00 -0400 <div> <strong>To stay up to date on Financial developments, sign up for our Financial Services Blog <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=OPyJWDC7ABI_E-WGlKuCCIydkfOeYTaJPJPwmR0efYI">here</a>.</strong></div> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> &nbsp;</p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> <i>Seyfarth Synopsis: Last week, the Securities and Exchange Commission released an Order Determining Whistleblower Award Claim holding that the whistleblower&rsquo;s award should be reduced to 20% of the monetary sanctions collected in the covered action because the claimant was both involved in the illegal conduct and delayed in reporting the violations.&nbsp; <o:p></o:p></i></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> On February 28, 2017, the Securities and Exchange Commission (&ldquo;SEC&rdquo;) released an Order Determining Whistleblower Award Claim, <a href="https://www.sec.gov/rules/other/2017/34-80115.pdf">Release No. 80115</a>, which affirmed the Claims Review Staff&rsquo;s Preliminary Determination that the claimant&rsquo;s whistleblower award be reduced because of the claimant&rsquo;s culpability in the securities violations and the claimant&rsquo;s delay in reporting the award. &nbsp;The SEC adopted the Preliminary Determination and reduced the whistleblower&rsquo;s award to 20%.&nbsp; This penalty is meant to encourage whistleblowers to promptly report violations and act in a manner that curtails, and does not further, the alleged illegal actions.&nbsp; <o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> Under Section 21F of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (&ldquo;Dodd-Frank&rdquo;), the SEC is directed to grant monetary awards to &ldquo;eligible individuals&rdquo; who offer information to the SEC leading to successful enforcement actions involving monetary sanctions over $1 million.&nbsp; The bounties range from between 10-30% of the sanctions collected.&nbsp; This award program acts as an incentive for employees in the financial industry to report violations of the securities laws. &nbsp;We previously <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/FINRAQA061516.pdf">reported</a> on a near record breaking whistleblower award of $22 million in June 2016, bested only by a $30 million award in September 2014.&nbsp; According to the <a href="https://www.sec.gov/whistleblower/reportspubs/annual-reports/owb-annual-report-2016.pdf">2016 Annual Report to Congress on the Dodd-Frank Whistleblower Program</a>, more than $111 million has been awarded in bounties to 34 whistleblowers through the Program.&nbsp; <o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> The recent award, however, does not withhold the full amount of the potential recovery, and is only a 10% reduction from the maximum possible award of 30%.&nbsp; While some potential whistleblowers may consider this partial reduction an incentive for prompt reporting, there is also a countervailing consideration that allowing the harm to continue may lead to greater recovery by inflating the potential SEC recovery.&nbsp; Thus as a practical matter, potential whistleblowers might be tempted to weigh the risks and benefits of delay.&nbsp; <o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> As a matter of public policy, however, whistleblowers should not benefit from delay or other less-than-virtuous conduct themselves.&nbsp; Currently, only whistleblowers who are indicted for participation in the underlying misconduct are prevented from receiving bounties.&nbsp; (<i>See </i>&sect; 21F(c)(2)(B)).&nbsp; Allowing whistleblowers to benefit from delayed reporting or allowing the misconduct to continue seems contrary to the intent of the law.<o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> Consider the compliance officer who waits until she faces discipline for performance problems and/or unrelated misconduct, and then complains about purported unlawful activity.&nbsp; The compliance officer should have identified and corrected the unlawful conduct as part of her job, yet waited until it was personally advantageous to complain.&nbsp; The delay increased her bounty but also the harm of the misconduct.&nbsp; Although she would likely not be indicted for allowing the misconduct to continue, it seems contrary to the purpose of the Act to allow her to benefit from delay and her failure to correct the misconduct.<o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> House Republicans circulated a non-public memorandum in February taking aim at those involved in the illegal conduct who seek to collect a whistleblower award, and would prohibit claimants from profiting where he or she is found to have compounded the violations by failing to act promptly to report or correct the misconduct. <o:p></o:p></p> <p class="BodySingle0" style="text-align:justify;text-justify:inter-ideograph"> Further legislative clarity may resolve the issue of whether wrongdoers can continue to profit from deliberate reporting delays or whether prompt action will become a requirement for a whistleblower award.&nbsp; Look out for our posts in the coming weeks which will feature the latest issues with respect to Dodd-Frank.&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80//publications/OMM030917-LE2 NJ Court Rules That Unemployment Benefits Do Not Offset Back Pay Awards http://www.seyfarth.com:80//publications/OMM030917-LE2 Thu, 09 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>New Jersey&rsquo;s Appellate Division determined that an award of unemployment compensation benefits will not offset an award of back pay in cases brought under the New Jersey Law Against Discrimination.&nbsp;</em></p> <p> Earlier this week, in <a href="http://www.judiciary.state.nj.us/opinions/a1295-14redacted.pdf"><em>Fornaro v. Flight Safety International, Inc.</em></a>, the Appellate Division modified a back pay award in a disability discrimination and retaliation case brought under the New Jersey Law Against Discrimination (LAD), finding that the court below had improperly reduced a jury award of back pay by half of the plaintiff&rsquo;s award of unemployment benefits. In effect, the trial court below had tried to split the benefit of the unemployment benefits between the parties.&nbsp; The Appellate Division remanded the case, instructing the trial court that no offset or deduction should have been made.</p> <p> <strong>Background</strong></p> <p> In <em>Fornaro</em>, the plaintiff was a flight instructor at a flight safety school. After his employment was terminated based on attendance issues, the plaintiff filed suit in Essex County, New Jersey, under the LAD, alleging, among other things, a failure to engage in the interactive process and disability discrimination, as well as retaliation for his objection to a disciplinary write-up that he claimed was pretextual. Following a plaintiff&rsquo;s verdict at trial, the jury awarded approximately $83,000 representing only back pay, as the jury rejected his claims for emotional distress.&nbsp; The trial judge, however, reduced the back pay award by approximately $14,000 to represent 50% of the unemployment benefits that plaintiff had already received.&nbsp;</p> <p> Plaintiff appealed, in part, contending that the trial judge erred in offsetting his back pay award by fifty percent of his unemployment benefits.&nbsp; Defendant cross-appealed, arguing that the judge actually should have offset the back pay award by the entire amount of plaintiff&rsquo;s unemployment benefits.</p> <p> <strong>Decision</strong></p> <p> The Appellate Division looked to New Jersey&rsquo;s &ldquo;collateral source&rdquo; statute, N.J.S.A. 2A:15-97, which was designed to prevent duplicative recoveries from multiple sources (e.g., insurance policies) in civil actions brought for personal injury or death. The statute permits any party to the lawsuit to present evidence that the plaintiff recovered compensation from other sources, which the court can then offset from the damages award.&nbsp;</p> <p> The court analyzed the legislative history behind the collateral source statute and determined that neither the plain language or its history supported its application to the LAD cases, given its intent as remedial legislation meant to protect employees. The court found that &ldquo;shifting the benefit of unemployment compensation front the wronged employee to the discriminating employer does not serve the LAD&rsquo;s deterrent purpose.&rdquo;&nbsp; The court also noted that the Division on Civil Rights, the agency charged with enforcing the LAD, would routinely not deduct unemployment benefits from back pay awards, in any event.</p> <p> The court expanded on precedent set by an older case from the trial-level court standing for the same proposition, <em>Sporn v. Celebrity, Inc.</em> In <em>Sporn</em>, the plaintiff sued for wrongful discharge, and the court held that the employer was not entitled to reduce a contract damage award by the amount of unemployment compensation former employee received.&nbsp; Opponents of this rule felt that reducing recovery by the amount of the benefits received by plaintiff would be granting a windfall to defendant by allowing it an undeserved credit on its own wrongdoing from a source never so intended. There, the court decided to follow the majority rule that that receipt of benefits from a source collateral to the defendant, while lessening the effect of the financial losses of plaintiff, will not diminish damages otherwise recoverable from the wrongdoer in tort cases.</p> <p> The Court also relied upon U.S. Supreme Court precedent set over a half-century ago in <em>NLRB v. Gullett Gin Co.</em>, where the Court construed the National Labor Relations Act (NLRA) as providing that unemployment compensation is not to be deducted from back pay.&nbsp;</p> <p> Thus, because the claims in <em>Fornaro</em> were for discrimination and retaliation under the LAD, as opposed to personal injury claims, the Appellate Division held that New Jersey&rsquo;s collateral-source statute did not apply.&nbsp; Thus, unemployment benefits were improperly considered in offsetting a portion of Plaintiff&rsquo;s damages award. The case was remanded for the trial court to enter a judgment in the full amount of the jury verdict.</p> <p> <strong>Outlook</strong></p> <p> The Appellate Division&rsquo;s decision in <em>Fornaro</em> confirms that in New Jersey, an award of unemployment benefits generally will not offset a back pay award.&nbsp; Thus, private employers should be mindful that these offsets likely will not be available to reduce a jury verdict for a plaintiff alleging discrimination under New Jersey state law.&nbsp;</p> <p> Further, although the Appellate Division&rsquo;s decision is in the context of a discrimination case brought under the LAD, it is likely to extend to other employment-related statutes in New Jersey, such as the Conscientious Employee Protection Act (CEPA), the Family Leave Act (FLA), and the Security and Financial Empowerment Act (SAFE Act), for example.</p> <p> Employers facing litigation under the LAD or one of New Jersey&rsquo;s other employment-related statutes should conduct a thorough exposure analysis. This analysis should be guided by the principles in <em>Fornaro</em>, unless and until such time that the New Jersey Supreme Court disagrees with this decision. Until then, employers will be well-served to consult counsel versed in the nuances of potential exposure under New Jersey&rsquo;s remedial employment statutes.</p> http://www.seyfarth.com:80//publications/EL030917 Despite New Administration, EEOC Maintains Position that Title VII Prohibits Gender Identity Discrimination http://www.seyfarth.com:80//publications/EL030917 Thu, 09 Mar 2017 00:00:00 -0400 <p> To the surprise of many, the EEOC is not retreating from the argument first made by the Obama administration that Title VII forbids employment discrimination based on gender identity.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/despite-new-administration-eeoc-maintains-position-that-title-vii-prohibits-gender-identity-discrimination/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=9562864d81-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-9562864d81-71256185">click here</a></p> http://www.seyfarth.com:80//publications/MA030917-LE Supreme Court Remands Transgender Rights Case to Court of Appeals After Trump Administration Withdraws Obama Era Guidance http://www.seyfarth.com:80//publications/MA030917-LE Thu, 09 Mar 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp; <em>On March 6, 2017, the Supreme Court remanded a highly anticipated transgender rights case back to the Court of Appeals after the Trump Administration withdrew Obama era guidance regarding the rights of transgender students at Title IX institutions.&nbsp; The Court of Appeals itself is likely to remand the case back to the district court, to give the parties a chance to brief their position in light of the changed guidance.</em></p> <p> On March 6, 2017, the Supreme Court remanded a highly anticipated transgender rights case back to the Court of Appeals after the Trump Administration withdrew Obama era guidance.</p> <p> Starting in 2014, the U.S. Department of Education (&ldquo;DOE&rdquo;) and other federal agencies, including the U.S. Department of Housing and Urban Development, Occupational Safety and Health Administration, U.S. Office of Personnel Management, and Equal Employment Opportunity Commission, interpreted and enforced their respective statutes and regulations prohibiting sex discrimination to include a ban on gender identity discrimination.&nbsp;</p> <p> On October 28, 2016, the U.S. Supreme Court <a href="https://www.supremecourt.gov/orders/courtorders/102816zr_feag.pdf">agreed to hear</a> an appeal in the matter of <em>Gloucester County School Board v. G.G.</em>, which asked the Court to weigh in on the issue of restroom access for transgender students.&nbsp; The case appealed the <a href="http://www.scotusblog.com/wp-content/uploads/2016/09/16-273-opinion-below-4th-cir.pdf">decision</a> of the U.S. Court of Appeals for the Fourth Circuit, which concluded that a Virginia school board violated Title IX when it decided not to allow a transgender male student to use the boys&rsquo; restroom.&nbsp; The Fourth Circuit&rsquo;s ruling was based on deference to the Obama Administration&rsquo;s position that the term &ldquo;sex&rdquo; as used in Title IX incorporates gender identity.&nbsp; The school board <a href="http://www.scotusblog.com/wp-content/uploads/2016/08/Gloucester-Cty-Cert-Pet-FINAL-w-APPX.pdf">petitioned</a> the Supreme Court to hear the case arguing that the Fourth Circuit erred because the Obama Administration&rsquo;s interpretation actually altered the meaning of Title IX.</p> <p> On February 22, 2017, the Trump Administration issued a <a href="http://stmedia.startribune.com/documents/1atransletterpdf022317.pdf">Dear Colleague Letter</a> expressly withdrawing and rescinding the DOE&rsquo;s prior interpretation, which served as the basis for the Fourth Circuit&rsquo;s deference in <em>G.G</em>.&nbsp; That letter stated that the DOE believes states and local school districts should establish educational policy and criticized the Obama Administration&rsquo;s guidance as without &ldquo;extensive legal analysis[,] expla[nation of] how the position is consistent with the express language of Title IX, [or] undergo[ing] any formal public process.&rdquo;&nbsp; However, the Dear Colleague Letter did reiterate that schools subject to Title IX remain obliged to protect students--including LGBT students--from discrimination, bullying, and harassment.</p> <p> On March 1, 2017, both the <a href="http://www.scotusblog.com/wp-content/uploads/2017/03/Pet-Clerk-Ltr-re-Guidance-Docs-2017-3-2-FINAL.pdf">school board</a> and <a href="http://www.scotusblog.com/wp-content/uploads/2017/03/16-273_Gloucester-v-Gavin-Grimm_Respondent27s-Letter-to-Clerk-Upon-Request.pdf">ACLU</a> (counsel for the student G. G.) submitted letters to the Supreme Court indicating that they believe that the new Trump Administration guidance should<em> not </em>prevent the Court from hearing the case.&nbsp; Nonetheless, five days later, the Court <a href="https://www.supremecourt.gov/orders/courtorders/030617zor_6j37.pdf">vacated the judgment and remanded</a> the case back to the Fourth Circuit for further consideration.&nbsp; The Fourth Circuit itself is likely to remand the case back to the district court, to give the parties a chance to brief their position on Title IX&rsquo;s application to transgender students in light of the changed guidance.</p> <p> The vacating of the lower court ruling underscores the unsettled nature of federal law regarding transgender rights.&nbsp; As a practical matter, absent legal mandates to the contrary, schools can continue to offer protections to their transgender students consistent with their beliefs as to what is in the best interest of students.&nbsp;</p> <p> It is presently unknown how the Department of Education will address the rights of transgender students. It is possible, the Department will issue further guidance clarifying how federal law prohibits LGBT discrimination, bullying and harassment but leaves it to States to determine rules regarding bathroom and locker room access. Finally, it is also possible that the Department will investigate claims of gender-identity discrimination including claims related to bathroom access.</p> <p> Regardless of the position ultimately taken by the Department of Education, it is expected that individuals will continue to bring their own lawsuits testing the boundaries of Title IX as it relates to transgender students.&nbsp;The position federal courts will take on the scope of these statutes is unsettled but will likely be uneven, a trend that will continue until the Supreme Court weights in or express federal legislation is passed.</p> http://www.seyfarth.com:80//news/sherman-quoted-university-maryland-smith-school-business-030717 Andrew Sherman quoted by the University of Maryland Smith School of Business http://www.seyfarth.com:80//news/sherman-quoted-university-maryland-smith-school-business-030717 Thu, 09 Mar 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Women on Boards: Avoiding Tokenism,&quot; a March 9 story from the University of Maryland Smith School of Business. Sherman said that the corporate board model prone to projecting tokenism is a model that is dying.</p> <p> <a href="http://www.rhsmith.umd.edu/news/women-boards-tokenism-dying">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/presidential-pulse Presidential Pulse http://www.seyfarth.com:80//publications/presidential-pulse Thu, 09 Mar 2017 00:00:00 -0400 <table border="0" cellpadding="2" cellspacing="2" style="width: 570px; height: 314px;"> <tbody> <tr> <td colspan="1" rowspan="1" style="text-align: center;"> <img alt="Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/CrainPresPulseBanner.png" style="width: 500px; height: 172px;" title="Mergers &amp; Acquisitons Header" /></td> </tr> <tr> </tr> <tr> </tr> <tr> <td> <table border="0" cellpadding="2" cellspacing="2" style="width: 608px; height: 890px;"> <tbody> <tr> <td style="width: 260px; vertical-align: top;"> <p> &nbsp;</p> <p> <em>Welcome to Seyfarth Shaw&rsquo;s Presidential Pulse Digest, a round-up of analysis by Seyfarth&rsquo;s leading policy team on the business impact of President Donald Trump&rsquo;s policy agenda. President Trump is following through rapidly on his campaign pledge to immediately overhaul, overturn and eliminate a long list of federal laws and regulations. The political, legal and business ramifications of President Trump&rsquo;s new administration are being felt by businesses and individuals across the United States and around the world.&nbsp;</em></p> <p> <em>Our attorneys will continue to monitor these developments and will keep you informed of the impact of these changes. Subscribe by clicking the button below to receive the Presidential Pulse Digest.</em></p> <p> &nbsp;</p> <div style="text-align: center;"> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=jnClo_aWrJA_LJhZLwuUI798M7uWfIc1XNAzdJz9p2ifRCWrtSPNOdbL9zagrSol" target="_blank"><img alt="Subscribe to Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/RedSubscribeButton.jpg" style="width: 165px; height: 40px;" /></a></p> <p> &nbsp;</p> <div> <hr /> <h2 style="text-align: left;"> &nbsp;</h2> <div> <h2 style="text-align: left;"> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Supreme Court Remands Transgender Rights Case to Court of Appeals After Trump Administration Withdraws Obama Era Guidance</strong></h2> <h3 style="text-align: left;"> <em>Management Alert - March 9, 2017</em></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On March 6, 2017, the Supreme Court remanded a highly anticipated transgender rights case back to the Court of Appeals after the Trump Administration withdrew Obama era guidance regarding the rights of transgender students at Title IX institutions. The Court of Appeals itself is likely to remand the case back to the district court, to give the parties a chance to brief their position in light of the changed guidance.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/MA030917-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <strong style="color: rgb(0, 52, 121); font-size: 24px;">ACA &ldquo;Repeal and Replace&rdquo; Bill Released, Faces Early Congressional Opposition</strong></h2> <h3 style="text-align: left;"> <em>Health Care Reform Management Alert - March 8, 2017</em></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On March 6, Congressional Republicans released the American Health Care Act (AHCA), pitched as the &ldquo;repeal and replacement&rdquo; of the Affordable Care Act. (The AHCA is actually currently two parts generated by different committees, but they&rsquo;ll be combined for a vote and we will refer to them as a single bill for purposes of this alert.) This alert is focused primarily on the potential impact of this bill on employers and plan sponsors, although we will also highlight some of the other significant provisions included in the proposal. Notably, while the bill would drive significant changes in the large group market, the AHCA&rsquo;s primary focus and most of its changes impact the individual and small group markets.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/HRCMA-030817">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Revised Travel Ban: President Trump Signs New Executive Order</strong></h2> <h3 style="text-align: left;"> <em>One Minute Memo - March 6, 2017</em></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On March 6, 2017, President Trump signed a new Executive Order temporarily restricting certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entry into the United States for 90 days. &nbsp;The new Executive Order aims to address issues and ambiguities cited in the litigation related to the previous travel restriction issued on January 27, 2017.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM030617-IMM">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> &nbsp;</div> <h2 style="text-align: left;"> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Trump Administration Withdraws Prior Department of Education Interpretations Regarding Title IX Protections Afforded to Transgender Students</strong></h2> <h3 style="text-align: left;"> <em>Management Alert - February 24, 2017</em></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em> The U.S. Departments of Justice and Education jointly issued a Dear Colleague Letter withdrawing and rescinding the Obama Administration&rsquo;s prior guidance letters which instructed schools that Title IX requires students access to sex-segregated facilities based on a student&rsquo;s gender identity. The February 22, 2017 guidance notes that the Departments made their decision &ldquo;in order to further and more completely consider the legal issues involved&rdquo; and that the Departments &ldquo;will not rely on the views expressed within them.&rdquo;</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/MA022417-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <hr /> <p style="text-align: left;"> &nbsp;</p> <p style="text-align: left;"> <strong style="color: rgb(0, 52, 121); font-size: 24px;">National Strikes and Boycott Activities</strong></p> </div> </div> <div> <h3> <em>Employment Law Lookout Blog - February 16, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em> Several organizations are planning nationwide strikes and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees&rsquo; rights before responding.</div> <div> &nbsp;</div> <div> <a href="http://www.laborandemploymentlawcounsel.com/2017/02/national-strikes-and-boycott-activities-planned-for-february-16-17-and-beyond/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=bb1e4eccce-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-bb1e4eccce-71256185">Read Full Blog Post</a></div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Executive Order Likely Dooms Website Regulations for Public Accommodations</strong></p> </div> <div> <h3> <em>Employment Law Lookout, ADA Title III Blogs - February 9, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;An executive order from President Trump will likely halt the Justice Department&rsquo;s public accommodations website rulemaking.</div> <div> &nbsp;</div> <div> <a href="http://www.laborandemploymentlawcounsel.com/2017/02/executive-order-likely-dooms-website-regulations-for-public-accommodations/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=d6c40d5931-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-d6c40d5931-71256185">Read Full Blog Post</a></div> <div> &nbsp;</div> <div> <hr /> <div> <p> &nbsp;</p> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">All Financial Regulation in the U.S. Now Subject to Review under February 3, 2017 Executive Order Issued by the President</strong></p> </div> <div> <h3> <em>Client Alert - February 9, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Hours after the inauguration of President Trump, the White House issued a memorandum which imposed a 90-day delay on regulations which had not yet taken effect. &nbsp;As far as existing financial services law and regulation in the U.S. however, President Trump then issued an Executive Order on Friday, February 3, 2017 &mdash; which the White House modified slightly since February 3 &mdash; requiring the U.S. Treasury Secretary to confer with federal agency leaders and brief the President on all financial services law in the U.S. that either promotes or inhibits seven &ldquo;Core Principles.&rdquo; &nbsp;These principles and immediate international reaction are summarized in this Alert.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/publications/ClientAlert020917-DER">Read Full Alert</a></div> <div> &nbsp;</div> <div> <hr /> <div> <p> &nbsp;</p> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">President Trump to Issue Executive Order on Cybersecurity</strong></p> </div> <div> <h3> <em>Carpe Datum Law Blog - February 6, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;President Trump is expected to sign soon Executive Order on Strengthening U.S. Cyber Security and Capabilities. &nbsp; Reports about a &ldquo;leaked draft&rdquo; of the Executive Order on Cybersecurity surfaced on the Internet a few days ago, along with predictions that the Order will be signed on January 31. &nbsp;The Order is yet to be signed and the publicized draft may undergo some changes. &nbsp;</div> <div> &nbsp;</div> <div> <a href="http://www.carpedatumlaw.com/2017/02/president-trump-issue-executive-order-cybersecurity/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=a23a2e69be-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-a23a2e69be-72857025">Read Full Blog Post</a></div> <div> &nbsp;</div> <div> <div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> </div> <div> <div> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Federal Legislators Tell NLRB GC Griffin to Rescind His Education Report or Step Aside</strong></p> </div> <div> <h3> <em>Management Alert - February 3, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) ask NLRB General Counsel Griffin to either immediately rescind his January 31 report regarding the purported rights of faculty, students and scholarship athletes, or &ldquo;step aside as general counsel.&rdquo;</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/publications/MA020317-LE">Read Full Alert</a></div> <div> &nbsp;</div> <div> <hr /> <div> <p> &nbsp;</p> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Supreme Court Update: Trump Announces Nomination Of Judge Neil Gorsuch To U.S. Supreme Court - What Employers Need To Know</strong></p> </div> <div> <h3> <em>Workplace Class Action Blog - February 2, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On Tuesday, February 1, 2017, President Trump announced the selection of Judge Neil Gorsuch to the U.S. Supreme Court. Judge Gorsuch sits on the U.S. Court of Appeal for the 10th Circuit. If confirmed by the Senate, Judge Gorsuch would fill the vacancy to replace Justice Scalia.</div> <div> &nbsp;</div> <div> <a href="http://www.workplaceclassaction.com/2017/02/supreme-court-update-trump-announces-nomination-of-judge-neil-gorsuch-to-u-s-supreme-court-what-employers-need-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=79e059e863-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-79e059e863-71256717">Read Full Blog Post</a></div> <div> &nbsp;</div> <div> <hr /> <div> <p> &nbsp;</p> </div> <div> <div> <div> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">NLRB General Counsel Issues Report on NLRA Protections For Faculty and Students</strong></p> </div> <div> <h3> <em>One Minute Memo - February 2, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;In a last minute attempt to leave his mark on the NLRB, the Board&rsquo;s outgoing General Counsel issued a report attempting to expand the rights of university faculty and students, including scholarship athletes, under the National Labor Relations Act.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/publications/OMM020217-LE3">Read Full Alert</a></div> <div> &nbsp;</div> <div> <hr /> <div> <p> &nbsp;</p> <p> <strong style="color: rgb(0, 52, 121); font-size: 24px;">President Announces Continuation of E.O. 13672 Protections for Government Contractors</strong></p> </div> <div> <h3> <em>One Minute Memo - February 1, 2017</em></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On January 31, 2017, the White House announced that it will continue to enforce the workplace protections for sexual orientation and gender identity put in place under Executive Order 13672</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/publications/OMM020117-LE2">Read Full Alert</a></div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </div> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> <p> &nbsp;</p> <h2> &nbsp;</h2> <div> &nbsp;</div> http://www.seyfarth.com:80//news/seyfarth-leads-top-deals-for-real-estate-industry-2016 Seyfarth Leads Top Retail Deals for Real Estate Industry in 2016 http://www.seyfarth.com:80//news/seyfarth-leads-top-deals-for-real-estate-industry-2016 Wed, 08 Mar 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP was involved in <strong>two of the top 10 largest single-property retail transactions</strong> of 2016, according to the latest rankings from Real Estate Alert. With a combined value of more than $1.5 billion, Seyfarth handled the following matters:</div> <ul> <li> <strong>No. 1</strong> &ndash; Represented TIAA in its $1.25 billion acquisition of a 50% stake in the Fashion Show Mall in Las Vegas, Nevada.</li> <li> <strong>No. 9</strong> &ndash; Represented TIAA in its sale of the Palms Town &amp; Country Mall in Kendall, Florida to Weingarten Realty Investors for $285 million.</li> </ul> <div> Seyfarth was also involved in <strong>one of the top 10 largest retail portfolio transactions</strong> of 2016, representing a joint venture of DDR Corp. and TIAA in the sale of 11 retail centers to Armada Hoffler Properties.</div> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-030817 Sam Schwartz-Fenwick quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-030817 Wed, 08 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Transgender Student&rsquo;s Case Raises Questions for Employers,&quot; a March 8 story by <em>SHRM</em> on how circuit court rulings could clarify definition of &lsquo;sex discrimination&rsquo;. Schwartz-Fenwick said that the position federal courts will take on the scope of Title VII is unsettled, a trend that will continue until the Supreme Court weighs in or express federal legislation is passed barring transgender discrimination.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/transgender-protections-rescinded.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/sherman-quoted-washington-business-journal-030817 Andrew Sherman quoted in the <i>Washington Business Journal</i> http://www.seyfarth.com:80//news/sherman-quoted-washington-business-journal-030817 Wed, 08 Mar 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Women in the boardroom: How Greater Washington stacks up,&quot; a March 8 story from the <em>Washington Business Journal</em> on how greater Washington, D.C. stands out for its gender diversity in its boardrooms. Sherman said that the D.C. area &mdash; in government, company leadership, not-for-profits, media &mdash; has embraced the role of women and minorities in leadership and governance positions.</p> <p> <a href="http://www.bizjournals.com/washington/news/2017/03/08/women-in-the-boardroom-how-greater-washington.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CP030817 Here’s an Update: Opportunity (to Work) Knocks in San Jose http://www.seyfarth.com:80//publications/CP030817 Wed, 08 Mar 2017 00:00:00 -0400 <p> On March 13, 2017, San Jose&rsquo;s new &ldquo;Opportunity to Work Ordinance&rdquo; takes effect, requiring covered employers to offer additional hours to part-time employees before hiring new or temporary employees. As the law&rsquo;s effective date looms, the City has issued guidance clarifying portions of the ordinance and has released the notice form that employers must post.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/08/heres-an-update-opportunity-to-work-knocks-in-san-jose/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=d0c9b35785-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-d0c9b35785-71410869">click here</a></p> http://www.seyfarth.com:80//publications/OMM030817-LIT FTC Task Force to Challenge Occupational Licensing Regulations: Does your interior designer really need to be licensed? http://www.seyfarth.com:80//publications/OMM030817-LIT Wed, 08 Mar 2017 00:00:00 -0400 <div> Acting chairwoman of the Federal Trade Commission, Maureen Ohlhausen, announced her first major policy initiative last week: an Economic Liberty Task Force. Ohlhausen targeted <em>occupational licensing regulations</em> as a major barrier to economic opportunities. In particular, Ohlhausen challenges the motive behind licensing requirements for occupations that pose no public health or safety concerns, for example, make-up artists, hair dressers, interior designers and auctioneers. Unnecessary and overly broad licensing requirements prevent individuals from entering new professions, create barriers for small businesses, and can ultimately drive up prices for consumers. The concern is that there is no legitimate justification for these licensing requirements, as is strongly suggested by the radical regulatory differences from state to state. There are not only differences in the requirements for obtaining a license, but states vary as to whether a license is required at all.</div> <div> &nbsp;</div> <div> The focus of the Task Force will be to create awareness of the issues surrounding occupational licensing regulations, provide resources for reform, and most importantly, establish partnerships with stakeholders, governors, state and local officials, and other leaders. Ohlhausen wants to focus on the FTC&rsquo;s advisory tools to encourage the review of existing licensing regulations, identify problems, and promote reform to narrowly tailor regulations to the extent necessary to address legitimate public policy and health concerns. Although the focus is on advocacy and partnership, the FTC will bring enforcement actions if necessary. Some states for example will delegate regulatory authority to a licensing board comprised of market participants that may be promoting self-interest rather than competition. Such states must actively monitor these boards to ensure evenhanded regulation and avoid an FTC enforcement action.</div> <div> &nbsp;</div> <div> Individuals and entities in highly regulated industries should monitor the Task Force and the partnerships it establishes to identify industries and regions of focus. Moreover, advocates for deregulation should reach out to the Task Force both to receive support and resources and to provide insight as to overly burdensome and unnecessary licensing regulations that have displaced competition. Finally, state and local regulatory authorities should expect greater scrutiny over licensing regulations, and may benefit from a preemptive review of current regulations to identify licensing requirements that may be criticized by the Task Force.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM030817-LE Senate Passes Disapproval Resolution of “Blacklisting” Regulations http://www.seyfarth.com:80//publications/OMM030817-LE Wed, 08 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>:</strong> <em>By a vote of 49-48 last evening by the U.S. Senate, both Houses of Congress have now moved to rescind the regulations issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled Fair Pay and Safe Workplaces but popularly referred to as the &ldquo;Blacklisting&rdquo; Order, which required government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts.&nbsp; If President Trump signs the rescission resolution, as he is expected to do, the regulations will be rescinded. Under the Congressional Review Act, if a regulation is subject to rescission, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization. </em></p> <p> On March 6, 2017, by a vote of 49 to 48, the U.S. Senate approved a joint resolution of disapproval, S.J. Res. 12, to &nbsp;rescind the Final Rule implementing President Obama&rsquo;s Executive Order 13673, <a href="http://www.seyfarth.com/publications/MA082916-LE">&ldquo;Fair Pay and Safe Workplaces.&rdquo;</a>&nbsp;&nbsp; The U.S. House of Representatives passed House Joint Resolution 37 on February 2, 2017, rescinding the regulations issued under the Executive Order.&nbsp; Both the Senate disapproval action and the House disapproval action &nbsp;were pursuant to the Congressional Review Act (CRA), which permits Congress to pass legislation rescinding a particular regulation under certain restrictions.&nbsp; As both houses of Congress have passed disapproval resolutions under the CRA, the rescission resolution will now make its way to the President&rsquo;s desk for signature.</p> <p> If President Trump signs the legislation, as he is expected to do, the regulations implementing E.O. 13673 will be nullified.&nbsp; The Executive Order itself will remain in effect until President Trump takes action himself to rescind it - however, without its implementing regulations in force, the &ldquo;Blacklisting&rdquo; Order will not have any implementation requirements.&nbsp; Moreover, the CRA will preclude any future attempt by Executive agencies to promulgate the regulations requiring the same or similar procurement prohibitions and disclosures, without Congressional action allowing the regulations.</p> <p> The &ldquo;Blacklisting&rdquo; Order has already been stayed in large part.&nbsp; As discussed <a href="http://www.seyfarth.com/publications/OMM102616-LE">here</a>, last October Judge Marcia Crone, a federal judge sitting in Texas, issued a nationwide preliminary injunction blocking the requirement that contractors disclose &ldquo;labor law violations&rdquo; and the prohibition against entering into mandatory pre-dispute agreements with employees.&nbsp; Judge Crone&rsquo;s order left in place the paycheck transparency provisions requiring contractors to provide regular statements disclosing wages and benefits to employees.&nbsp; President Trump&rsquo;s expected signature to Congress&rsquo;s rescission regulation will render the paycheck transparency provisions null and void as well.</p> <p> Referred to as the &ldquo;Blacklisting&rdquo; Order, as discussed in more detail <a href="http://www.seyfarth.com/publications/MA082916-LE">here</a>, the Executive Order and its implementing regulations would have:</p> <p> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Required certain government contractors to disclose &ldquo;labor law violations&rdquo; under fourteen different statutes and Executive Orders when bidding for or modifying contracts;</p> <p> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Prohibited employers from entering into mandatory pre-dispute arbitration agreements with employees; and</p> <p> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Required certain disclosures to independent contractors and employees concerning their employment status and information about wages and hours worked.</p> <p> The &ldquo;Blacklisting&rdquo; Order has been criticized by the employer community and employer associations because of the additional financial burdens it imposed on covered contractors, the risk to reputation and business from public disclosure of alleged violations before they are proven, and the fact that agencies already had enforcement mechanisms in place to ensure contractor compliance.&nbsp; Thus the Congressional action under the CRA will remove these supplementary requirements for federal contractors and the additional responsibilities given to the contracting agencies and the department of Labor.</p> http://www.seyfarth.com:80//publications/HRCMA-030817 Issue 106: ACA “Repeal and Replace” Bill Released, Faces Early Congressional Opposition http://www.seyfarth.com:80//publications/HRCMA-030817 Wed, 08 Mar 2017 00:00:00 -0400 <div> <em>This is the one hundred and sixth issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here</a> to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <strong>Background: </strong>&nbsp;On March 6, Congressional Republicans released the American Health Care Act (AHCA), pitched as the &ldquo;repeal and replacement&rdquo; of the Affordable Care Act. (The AHCA is actually currently two parts generated by different committees, but they&rsquo;ll be combined for a vote and we will refer to them as a single bill for purposes of this alert.) This alert is focused primarily on the potential impact of this bill on employers and plan sponsors, although we will also highlight some of the other significant provisions included in the proposal. Notably, while the bill would drive significant changes in the large group market, the AHCA&rsquo;s primary focus and most of its changes impact the individual and small group markets. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Regulatory Outlook:&nbsp;</strong></div> <div> &nbsp;</div> <div> To be clear, the AHCA still faces significant hurdles before it could become law, including:&nbsp;</div> <div> <ul> <li> Democrats appear to be uniformly aligned against any efforts to repeal the Affordable Care Act. &nbsp;</li> <li> Within hours of the AHCA&rsquo;s release, Republicans faced opposition from one wing of the party with respect to the AHCA&rsquo;s new tax credits, and from another wing of the party with respect to the AHCA&rsquo;s Medicaid expansion phase out. &nbsp;</li> <li> Four Senate Republicans have already declared they will not vote for a bill that includes a rollback of the Medicaid expansion (although they subsequently suggested the bill was a step in the right direction). &nbsp;</li> <li> The AHCA has also been dubbed &ldquo;Obamacare Lite&rdquo; by several conservative interest groups that are influential in Republican circles. &nbsp;</li> <li> President Trump&rsquo;s HHS Secretary, Tom Price, has labeled it a &ldquo;work in progress.&rdquo; &nbsp;</li> <li> Congressional Republicans are pushing for a House vote on the bill before the Congressional Budget Office finishes scoring the bill (to determine the impact on cost and coverage). &nbsp;To the extent the CBO estimate becomes available during the voting process, and to the extent the numbers suggest significant coverage losses or increased deficit, that could lead to more defections within the Republican Party.&nbsp;</li> </ul> <div> <strong>Process Considerations&nbsp;</strong></div> <div> &nbsp;</div> <div> While coined a &ldquo;repeal and replace&rdquo; bill, the AHCA actually leaves most of the Affordable Care Act in place and builds on/modifies its framework. Due to Senate rules, a complete &ldquo;repeal&rdquo; of the Affordable Care Act would require 60 votes, which the Republicans cannot muster (As noted, Democrats in the Senate have generally vowed to fight any efforts to repeal the Affordable Care Act). That said, as discussed in Issue 102, Senate rules would permit modifications to revenue- or budgetary-related provisions through a process called &ldquo;reconciliation,&rdquo; which only requires 51 votes. As a result, Republicans are limited in what they can address through the AHCA (although President Trump has vowed to address non-reconciliation-eligible provisions, such as permitting the sale of insurance across state lines, through subsequent efforts). It is also important to note that the Senate Parliamentarian has not yet weighed in on whether all of the AHCA&rsquo;s provisions are eligible for inclusion in a reconciliation bill. &nbsp;</div> <div> &nbsp;</div> <div> <strong>What Remains? &nbsp;</strong></div> <div> &nbsp;</div> <div> As noted above, much of the ACA is ineligible for repeal through reconciliation. &nbsp;As a result, the following provisions will remain in full force and effect, subject to the possibility of future regulatory or legislative action (this list is not comprehensive):</div> <div> <ul> <li> Prohibition on lifetime and annual dollar limits</li> <li> Adult child coverage mandate</li> <li> Limit on out-of-pocket maximums</li> <li> Insured plan income non-discrimination standard (to the extent the IRS lifts its enforcement moratorium, which seems unlikely before 2020 at the earliest)</li> <li> Required coverage for routine costs for clinical trials</li> <li> ACA reporting standards**</li> <li> Preventive service mandate</li> <li> Ban on pre-existing condition exclusions*</li> <li> Provider nondiscrimination requirements</li> <li> Section 1557 nondiscrimination standards&nbsp;</li> <li> Ban on rescissions</li> <li> Cadillac tax (eligible for repeal through reconciliation, but retained in the AHCA)**</li> </ul> <div> <div> <div> * Although see Continuous Coverage requirement discussed below <span class="Apple-tab-span" style="white-space: pre;"> </span></div> <div> **See detailed discussion below</div> <div> &nbsp;</div> <div> <div> <strong>Next Steps</strong></div> <div> &nbsp;</div> <div> Congressional mark-ups of the bill begins today, and we can expect various changes to the AHCA before it goes to vote. &nbsp;Early reports suggest Republicans are attempting to push for a quick vote on the bill, which risks criticism of rushing the bill and not permitting for sufficient consideration (similar to the criticism Democrats faced during the Affordable Care Act debate). &nbsp;Republicans are targeting a vote in the House by late March, with a Senate vote to immediately follow no later than April 7th (when Congress goes on a two-week recess). &nbsp;</div> <div> &nbsp;</div> <div> The following chart aligns how various health care issues are addressed in the existing ACA versus the GOP&rsquo;s currently proposed AHCA.</div> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width: 500px;"> <thead> <tr> <th scope="col"> Issue</th> <th scope="col"> ACA</th> <th scope="col"> AHCA</th> <th scope="col"> <div> Effective &nbsp;Date of Change</div> </th> </tr> </thead> <tbody> <tr> <td> Encouraging Healthy Individuals to Purchase Coverage</td> <td> Individual Mandate</td> <td> Continuous Coverage Penalty: Individuals with a break in coverage in excess of 63 days must pay a 30% premium surcharge to the insurance carrier to re-enroll in coverage</td> <td> 2019 (individual mandate penalty reduced to $0 beginning in 2016)</td> </tr> <tr> <td> Cost of Coverage</td> <td> Income-based credits to assist lower-income individuals purchasing health insurance</td> <td> <div> Age-based credits only:</div> <div> &nbsp;</div> <div> $2,000 &lt; 30</div> <div> $2,500 between 30 and 40</div> <div> $3,000 between 40 and 50</div> <div> $3,500 between 50 and 60</div> <div> $4,000 &gt; 60</div> <div> Capped for persons earning in excess of $75,000 ($150,000 for joint filers)</div> </td> <td> 2020</td> </tr> <tr> <td> Premium Rating</td> <td> <ul> <li> May not charge more for health status (i.e., pre-existing conditions)</li> <li> Older enrollees may not be required to pay more than 3x the rate of younger enrollees</li> </ul> </td> <td> <ul> <li> May charge 30% more than standard rate where lapse in coverage</li> <li> Older enrollees may not be required to pay more than 5x the rate of younger enrollees</li> </ul> </td> <td> <ul> <li> 2019</li> <li> 2018</li> </ul> </td> </tr> <tr> <td> Risk Pools</td> <td> <div> Funding for temporary high risk pools between 2010 and 2014</div> <div> &nbsp;</div> <div> Marketplaces with shared risk pooling effective 2014, with high cost claims offset by new taxes (such as the Transitional Reinsurance Program fee)</div> </td> <td> $100B over 10 years into funding state efforts; up to states as to how to apply</td> <td> 2018</td> </tr> <tr> <td> Medicaid</td> <td> State expansion funded by Federal Government</td> <td> Gradual phase out of expansion; shift Medicaid funding to block grants (i.e., federal contribution is set subject to income inflation), meaning states carry the primary risk</td> <td> 2020</td> </tr> <tr> <td> Excise Tax on High Cost Health Plan</td> <td> 40% Cadillac Tax</td> <td> 40% Cadillac Tax</td> <td> 2025 (delayed from existing effective date of 2020)</td> </tr> <tr> <td> Employer Mandate</td> <td> Large employers must offer coverage to full-time employees, or pay a penalty</td> <td> No penalty for failure to comply with the employer mandate</td> <td> 2016</td> </tr> <tr> <td> Health Savings Accounts</td> <td> Increases the excise tax on non-medical withdrawals from 10% to 20%</td> <td> <ul> <li> Reduces the excise tax on non-medical withdrawals back to 10%</li> <li> Permits deposit of age-based tax credits into an HSA</li> <li> Significantly increases HSA contribution limits to the inflation-adjusted deductible/out-of-pocket maximum limits for HDHPs</li> <li> Permits reimbursement of expenses incurred pre-HSA establishment, if HSA is established within 60 days of the date qualifying HDHP coverage commences</li> <li> Permit both spouses to make catch-up contributions to an HSA</li> </ul> </td> <td> 2018</td> </tr> <tr> <td> Retiree Coverage</td> <td> Eliminated deduction for employers who receive a Medicare Part D prescription drug subsidy</td> <td> Reinstates deduction for employers receiving Medicare Part D prescription drug subsidy</td> <td> 2018</td> </tr> <tr> <td> Over-the-Counter Drugs</td> <td> Prohibits tax-free reimbursement for over-the-counter drugs (e.g., through HSAs, FSAs, etc.)</td> <td> Removes prohibition on reimbursement for tax-free over the counter drugs</td> <td> 2018</td> </tr> <tr> <td> Health Flexible Spending Cap</td> <td> Capped health FSA contributions at $2,500 (adjusted for inflation)</td> <td> Removes health FSA cap</td> <td> 2018</td> </tr> <tr> <td> Additional Medicare Tax for High Wage Earners/Net Investment Income</td> <td> Imposed an additional 0.9% Medicare HI tax for high wage earners and 3.8% tax on certain passive income</td> <td> Removes additional Medicare HI tax and tax on passive income</td> <td> 2018</td> </tr> </tbody> </table> <p> &nbsp;</p> </div> <div> <div> <strong>FAQs on the Proposal</strong></div> <div> &nbsp;</div> <div> <em><strong>Does the AHCA place a cap on the employer tax exclusion for health coverage?&nbsp;</strong></em></div> <div> No. &nbsp;An earlier leaked version of the bill included such a cap, but this version eliminated that provision and reinstated the Cadillac Tax (subject to a five year delay to 2025-- seven year delay from the original effective date of 2018). &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Does the AHCA eliminate the 1094/1095 employer/plan reporting obligations?&nbsp;</strong></em></div> <div> The bill is not entirely clear on the proposed approach to ACA reporting. &nbsp;Given that there remains a tax credit (albeit in a new form) that will be unavailable for persons enrolled in coverage or offered employer coverage, reporting will have to remain, in some form, under the Republican proposal. The bill suggests that reconciliation cannot be used to repeal the reporting standard (or the associated penalty for failure to report). The bill would replace the current reporting standard with a simplified report (included on the Form W-2), but it appears this new provision wouldn&rsquo;t be effective until 2019. Many unanswered questions remain, including what type of coverage &ldquo;offer&rdquo; would render an individual ineligible for a tax credit (e.g., will there be an affordability and/or minimum value standard?). &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Does the AHCA eliminate the employer mandate?</strong></em></div> <div> Technically, no. It appears Congressional Republicans determined that reconciliation would not permit an elimination of the employer mandate, so they instead reduced the penalty to $0, effective January 1, 2016. That said, if there is no penalty, it appears there is no enforcement &ldquo;stick&rdquo; to encourage compliance. Notably, this is a retroactive change, meaning the IRS&rsquo;s enforcement efforts (if any) relating to the employer mandate would likely be limited to failures to offer coverage during the 2015 calendar year. &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>Does the AHCA address the cost of prescription drugs?</strong></em></div> <div> No. Despite President Trump&rsquo;s periodic suggestions that he would force drug companies to reduce their prices, it is not directly addressed in the AHCA. This type of provision would appear to fall outside the scope of changes permitted to be addressed through reconciliation. So, to the extent Congress intends to respond to this concern, they may attempt to address it through a separate bill (although historically Republicans have opposed such efforts).&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>How will the AHCA compare to the Affordable Care Act from a cost and coverage perspective?</strong></em></div> <div> That is unclear as the proposal has not been scored by the CBO (and may not be scored before Congress votes). Some reports suggest that the earlier leaked version of the AHCA received a preliminary CBO score showing significant coverage losses combined with costs in excess of the Affordable Care Act. It appears that some of the changes from the earlier leaked bill (such as reinstituting the Cadillac tax, albeit with an additional delay) may have been intended to drive a better CBO report. &nbsp;</div> <div> &nbsp;</div> <div> <em><strong>What does the AHCA say about covering abortion services?</strong></em></div> <div> This provision does not appear to impact employer-provided coverage. However, an individual cannot buy health insurance coverage that includes abortion services and still qualify for the tax credit.&nbsp;</div> <div> &nbsp;</div> <div> <em><strong>How does AHCA address the important Issue of tanning salons?</strong></em></div> <div> Good news, bronzed beauties! The bill would repeal the Affordable Care Act&rsquo;s 10% excise tax on tanning salons. &nbsp;</div> <div> &nbsp;</div> </div> </div> </div> </div> </div> </div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/ERISA030817 Does the Fiduciary Exception Apply to Legal Advice Received By Insurers During the Claims Process http://www.seyfarth.com:80//publications/ERISA030817 Wed, 08 Mar 2017 00:00:00 -0400 <p> When an insurance company asks its attorneys for advice regarding decisions on benefits claims and appeals, it may be doing so without the protection of attorney-client privilege, according to a recent decision from the Southern District of New York. In McFarlane v. First UNUM Life Insurance Company, the court granted Plaintiff&rsquo;s motion to compel production of &nbsp;documents determined by the court to be within the fiduciary exception to the attorney-client privilege. No. 16-cv-07806, 2017 WL 480500 (S.D.N.Y. Feb. 6, 2017). In doing so, the court rejected the argument that the fiduciary exception to attorney-client privilege&mdash;which makes a fiduciary&rsquo;s communications with counsel discoverable in certain situations&mdash; does not apply to insurers acting as benefit claims administrators.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/03/08/fiduciary-exception-applies-to-legal-advice-received-by-insurers-regarding-performance-of-fiduciary-functions/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=a953ac6903-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-a953ac6903-71408929">click here</a></p> http://www.seyfarth.com:80//publications/WLS030717 Playing the numbers game – diversity and inclusion http://www.seyfarth.com:80//publications/WLS030717 Tue, 07 Mar 2017 00:00:00 -0400 <div> As we celebrate International Women&rsquo;s Day, the 2017 campaign message asks us to #beboldforchange and to &ldquo;take action to drive change for women to forge a better working world&rdquo;.</div> <div> &nbsp;</div> <div> The campaign&rsquo;s aims are admirable and worthy of support. But I find myself querying whether such a campaign really helps our workplaces become more holistically diverse and inclusive.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/03/playing-the-numbers-game-diversity-and-inclusion/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=5c95ec7aa8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-5c95ec7aa8-71256725">click here</a></div> http://www.seyfarth.com:80//publications/EL030717 Chinese Employers Now Subject to New Grading System http://www.seyfarth.com:80//publications/EL030717 Tue, 07 Mar 2017 00:00:00 -0400 <p> The Chinese Ministry of Human Resources and Social Security (MHRSS) has launched a new nationwide grading system to evaluate employers&rsquo; employment law compliance. This system has been put in place via the Measures for the Grading of Enterprises&rsquo; Employment Law Compliance (the &ldquo;Grading Measures&rdquo;) and is effective January 1, 2017.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/chinese-employers-now-subject-to-new-grading-system/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=91a69187a1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-91a69187a1-71256185">click here</a></p> http://www.seyfarth.com:80//publications/OMM030717-LE USCIS Suspends H-1B Premium Processing Beginning April 3, 2017 http://www.seyfarth.com:80//publications/OMM030717-LE Tue, 07 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>: USCIS recently announced that the agency will temporarily suspend premium processing for all H-1B petitions beginning on April 3, 2017.&nbsp; USCIS indicates the purpose of the suspension is to process H-1B petitions that have been pending for many months, including in particular those approaching the 240-day automatic extension limitation, which would thereby reduce overall H-1B processing times.&nbsp; Please find below a list of frequently asked questions with our insights.</em><br /> <br /> <strong>1.&nbsp; What is the effective date of the suspension?</strong><br /> <br /> The premium processing suspension is effective on April 3, 2017.&nbsp; The last day that USCIS will accept H-1B petitions filed with premium processing is Friday, March 31, 2017.<br /> <br /> <strong>2. How long will the suspension last?</strong><br /> <br /> USCIS states that the suspension may last up to six months.&nbsp; USCIS imposed a similar suspension in the past and lifted the suspension early.<br /> <br /> <strong>3.&nbsp; Does the suspension apply only to H-1Bs or other visa categories?</strong><br /> <br /> The suspension is limited to H-1B petitions only.&nbsp; This includes H-1B petitions seeking to extend status, amend status, change status, consular process, or change employers.<br /> <br /> <strong>4.&nbsp; Can H-1B petitions be filed with premium processing in the month of March?&nbsp; If so, will USCIS continue to honor premium processing cases if they are still pending beyond April 3rd?</strong><br /> <br /> Yes, USCIS will accept an H-1B petition filed with premium processing on or before Friday, March 31, 2017.&nbsp; We anticipate that any H-1B petition filed with premium processing that is receipted on or before March 31st will receive the full benefit of premium processing, even if the adjudication continues beyond April 3rd.&nbsp; However, based on the posted USCIS announcement, the agency has discretion to refund premium processing fees if the agency has not taken adjudicative action on the case within&nbsp; the 15-calendar-day premium processing period.<br /> <br /> <strong>5.&nbsp;&nbsp; &nbsp;How does this affect the H-1B cap lottery?</strong><br /> <br /> In previous years, companies that filed their H-1B cap petitions during the first five (5) business days of April with premium processing received electronic Receipt Notices from USCIS confirming cap lottery selection in late April and early May.&nbsp; The suspension of premium processing will likely result in Receipt Notices being received in the late spring or the early summer.&nbsp; Similarly, under premium processing, USCIS would start the 15-calendar-day processing clock sometime in mid- to late-April, resulting in adjudication by early- to mid-May.&nbsp; In the absence of premium processing, petitioners will likely receive decisions beginning in late May through September.&nbsp; In addition, companies that filed H-1B petitions with premium processing were able to easily communicate with USCIS representatives regarding case status updates and corrections to errors on the approval notice.&nbsp; The suspension of premium processing will prevent companies from leveraging this benefit. &nbsp;<br /> <br /> <strong>6.&nbsp; I am in F-1 status, my Optional Practical Training (OPT) will expire before October 1st, and I require H-1B cap gap to extend my work authorization through October 1st.&nbsp; What happens if I do not receive a decision on my H-1B cap case by October 1st?</strong><br /> <br /> If you will rely on H-1B cap gap and USCIS has not issued a decision on your H-1B petition as of October 1st, you may continue to remain in the U.S. until USCIS issues a decision.&nbsp; However, you will not possess work authorization from October 1st until USCIS ultimately approves the H-1B petition.&nbsp; If USCIS lifts the premium processing suspension early, which may occur prior to the six-month mark, your employer will have the option of submitting a premium processing request to accelerate processing of your H-1B petition.<br /> <br /> <strong>7.&nbsp; Can a premium processing request be submitted for a pending H-1B petition once the suspension is lifted?</strong><br /> <br /> Yes, once the suspension is lifted, a premium processing request may be submitted at any time.<br /> <br /> <strong>8.&nbsp; I am currently in H-1B status and my status will expire this summer/fall.&nbsp; My employer will file an H-1B extension on my behalf.&nbsp; How will the suspension of premium processing affect my work authorization and ability to travel internationally?</strong><br /> <br /> If you are in the U.S. in valid H-1B status and your company seeks to extend your status, you will remain eligible for an up to 240-day extension of your H-1B status beyond the date of your I-94 admission record.&nbsp; Therefore, the premium processing suspension should not affect your continued work authorization.&nbsp; However, if you have international travel plans after the expiration of your current H-1B status and/or your H-1B visa stamp is expired, you will need your new H-1B approval notice to apply for a visa stamp before returning to the U.S.&nbsp; In this case, the premium processing suspension may require you to delay your travel plans or remain abroad until USCIS approves your H-1B petition and you secure a new visa stamp. &nbsp;<br /> <br /> Finally, please note that if your H-1B petition is nearing the end of the 240-day automatic extension period, USCIS has created a mechanism for submitting expedite requests, which USCIS will review and approve at their discretion and on a case-by-case basis.<br /> <br /> <strong>9.&nbsp; Are there any other issues that may come up?</strong><br /> <br /> Yes, in some states, you may have an issue renewing your driver&rsquo;s license.&nbsp; Some states will allow you to extend your license by presenting evidence of a timely filed H-1B extension while other states require evidence confirming that your H-1B status has been approved.&nbsp; You will need to check with your local motor vehicle department to explore this issue.<br /> &nbsp;</p> http://www.seyfarth.com:80//publications/TBT030717 Sanctuary States … from Federal Marijuana Enforcement? http://www.seyfarth.com:80//publications/TBT030717 Tue, 07 Mar 2017 00:00:00 -0400 <p> In response to recent comments from senior members of the Trump Administration, lawmakers are exploring novel ways to protect the burgeoning marijuana industry (and the many jobs that it is projected to create) in states where it is legal, including legislation that would prevent state and local agencies from using state resources to assist federal enforcement efforts.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/03/sanctuary-states-from-federal-marijuana-enforcement/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7ede260617-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7ede260617-71540589">click here</a></p> http://www.seyfarth.com:80//publications/RD030717-LE Five Wage and Hour Questions: What’s “In Store” For 2017? http://www.seyfarth.com:80//publications/RD030717-LE Tue, 07 Mar 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: With the new administration and new year well underway, retail employers may be wondering what&rsquo;s next for likely litigation and legislation impacting their business.&nbsp; Below are thoughts about five questions retail employers may be considering.</em></p> <p> <strong>1. The retail industry faced an onslaught of wage and hour litigation in recent years, especially class action suits about the overtime-exempt status of assistant store managers and about missed meal breaks. Will retailers get relief from these cases in the coming year?</strong></p> <p> While the tsunami may have receded a bit, these cases are still going strong and are regularly in the news, likely because reports of high fee awards have attracted plaintiffs&rsquo; attorneys. Thus, although many ASMs are not entitled to overtime due to the duties they perform, employers who haven&rsquo;t reclassified these positions or defended litigation remain at risk of a large complex suit. And if the new overtime rule (the higher minimum salary requirements) ever goes into effect (which is a big &ldquo;if&rdquo;), retail and hospitality employers will be among the most impacted.</p> <p> <strong>2. What other issues are on the horizon for retail employers?</strong></p> <p> Retailers who have or are considering arbitration agreements with class action waivers should keep their eyes on the Supreme Court&rsquo;s review of whether those waivers are enforceable. Earlier this year, the Court granted review of three cases (two that supported the NLRB&rsquo;s reasoning and one that went against it) and is set to decide the issue during the term starting in October.</p> <p> Due to the change in administration, other NLRB-related issues that may affect retail employers are uncertain. With the composition of the NLRB about to change, the NLRB&rsquo;s position on union elections, joint-employment and social media and other policies may change significantly. Retail employers who are revising their handbooks will want to stay on top of these issues.</p> <p> Regardless of what happens at the federal level, national retail employers have to continue to track and comply with the ever-expanding requirements of state and local law. States and cities are passing aggressive employee protections, including paid sick and parental leave, minimum wage increases, predictable scheduling and the list goes on. While some of these issues remain localized (for example, the suitable seating requirement in California), others are spreading quickly throughout the country. National retailers will have to stay ahead of this legislation.</p> <p> <strong>3. Other than meal break and bag check claims, retail employers have not faced as many off-the-clock (OTC) claims as other employers given the on-site nature of their business. Now that the law around those types of cases is fairly settled, will OTC cases against retail employers go away?</strong></p> <p> As the market changes, so do the types of cases employees will bring. It remains to be seen how retailers will adapt to the future of work and the gig economy and what new claims will come with the changes. For example, we predict that issues will arise around privacy, among other things, as more employers require employees to use wearable technology in the workplace to record location and productivity. As retailers get more creative about ways to improve and expand their business, new risks will have to be addressed.</p> <p> <strong>4. There was a lot of attention on joint employment during the Obama administration. Can retailers expect a more friendly standard now?</strong></p> <p> While we anticipate pro-employer changes during the Trump administration, including possible rescission of the NLRB&rsquo;s <em>Browning-Ferris </em>decision and the Department of Labor&rsquo;s Administrator&rsquo;s Interpretation, it will take time. The nomination of Alexander Acosta for Secretary of Labor is recent and still pending (the first nominee, Andrew Puzder, withdrew from consideration) and the NLRB appointments will come later. Retailers that have franchise relationships should continue to insulate themselves from joint employment while we wait to see how this issue will develop in 2017 and beyond.</p> <p> <strong>5. It seems like pay equity is in the news daily, even making it into a Super Bowl ad. Are there any pay equity issues specific to retailers?</strong></p> <p> Pay equity is an area where state and local laws are rapidly expanding and providing more protections for employees than federal law. For example, Massachusetts and Philadelphia have passed laws prohibiting inquiries into an applicant&rsquo;s prior salary, which the federal Equal Pay Act does not prohibit. Retailers may need to revise their job applications, policies and hiring practices to ensure compliance with these new requirements.</p> <p> Nationwide retailers also should keep in mind that the factors on which they may rely to explain wage differentials vary by state. For example, when the changes to the Massachusetts law take effect next year, employers can explain wage differentials between employees of opposite genders only by relying on a seniority system, a merit system, geographic location or three other factors. While federal law provides a catchall defense for any &ldquo;factor other than sex,&rdquo; the Massachusetts statute has no similar provision.</p> <p> Retail employers should consider whether to conduct a pay equity audit, especially in light of the potential for further legislation at the state level. Such assessments are a valuable tool for all employers to evaluate whether they are facing potential exposure and to identify options for remediation.</p> http://www.seyfarth.com:80//news/boutros-mentioned-FCPA-compliance-report-030717 Andrew Boutros mentioned in the <i>FCPA Compliance Report</i> http://www.seyfarth.com:80//news/boutros-mentioned-FCPA-compliance-report-030717 Tue, 07 Mar 2017 00:00:00 -0400 <p> Andrew Boutros was mentioned in &quot;IAICM Shine a Light on Corporate Monitors,&quot; a March 7 story from the <em>FCPA Compliance Report</em>. &nbsp;Boutros, co-chair of the firm&rsquo;s white collar, internal investigations and False Claims Act practice, will serve as a Board member of the International Association of Independent Corporate Monitors (IAICM).</p> <p> <a href="http://fcpacompliancereport.com/2017/03/iaicm-shine-light-corporate-monitors/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/rodriguez-quoted-san-diego-union-tribune-030717 Leon Rodriguez was quoted in the <i>San Diego Union Tribune</i> http://www.seyfarth.com:80//news/rodriguez-quoted-san-diego-union-tribune-030717 Tue, 07 Mar 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Syrian family&#39;s harrowing journey brought them to El Cajon,&quot; a March 7 story from the <em>San Diego Union Tribune</em> on President Trump&rsquo;s new executive order, signed Monday, which will greatly complicate matters for Syrian families hoping to seek refuge in the United States. Rodriguez said that when he worked for the Department of Homeland Security, the process for screening Syrians was based on an assumption that the Syrian government would not give any information to the U.S. about them, and the U.S. was able to work around that to verify identities and histories.</p> <p> <a href="http://www.sandiegouniontribune.com/news/immigration/sd-me-syrian-family-20170302-story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/rodriguez-quoted-bloomberg-daily-labor-report-030717 Leon Rodriguez was quoted in the <i>Bloomberg Daily Labor Report</i> http://www.seyfarth.com:80//news/rodriguez-quoted-bloomberg-daily-labor-report-030717 Tue, 07 Mar 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Is the Government Scaling Back Skilled Worker Visas?&quot; &mdash; a March 7 story from the <em>Bloomberg Daily Labor Report</em> on how recent changes in the handling of petitions for temporary visas for skilled foreign workers are raising concerns about the future of the program and what it means for certain industries. Rodriguez said that the existing backlogs is an ever-growing number of H-1B petitions each year.</p> http://www.seyfarth.com:80//news/paparelli-quoted-daily-journal-030617 Angelo Paparelli was quoted in the <i>Daily Journal</i> http://www.seyfarth.com:80//news/paparelli-quoted-daily-journal-030617 Mon, 06 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;Business immigration lawyers face new queries, requests under Trump,&quot; a March 6 story from the <em>Daily Journal</em> on how business immigration attorneys across California have seen an influx of calls from companies and their employees expressing concern about how to handle work travel and visa compliance for citizens and non-citizens alike under new Trump administration rules. Paparelli said that while audits are more commonly undertaken during a merger or acquisition, companies are looking to perform them more frequently due to increased scrutiny under new immigration rules.&nbsp;</p> http://www.seyfarth.com:80//publications/OMM030617-IMM Revised Travel Ban: President Trump Signs New Executive Order http://www.seyfarth.com:80//publications/OMM030617-IMM Mon, 06 Mar 2017 00:00:00 -0400 <p class="BodySingle"> <em><strong>Seyfarth Synopsis:</strong></em> On March 6, 2017, President Trump signed a new Executive Order temporarily restricting certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entry into the United States for 90 days.&nbsp; The new Executive Order aims to address issues and ambiguities cited in the litigation related to the previous travel restriction issued on January 27, 2017.<o:p></o:p></p> <p class="BodySingle"> Following the challenges to the January 27, 2017 Executive Order titled <i>Protecting the Nation from Terrorist Attacks by Foreign Nationals</i>, on March 6, 2017 President Trump signed a new Executive Order titled <i>Protecting the Nation from Foreign Terrorist Entry Into the United States</i>.&nbsp; This new Executive Order will go into effect on March 16, 2017 and includes many changes to the original order, particularly with regard to who is subject to the temporary travel ban.<o:p></o:p></p> <p class="BodySingle"> <b>The New Executive Order<o:p></o:p></b></p> <p class="BodySingle"> The new Executive Order suspends entry of foreign nationals from countries designated by President Trump as representing a recognized threat, warranting additional scrutiny of nationals seeking to enter the United States.&nbsp; The six countries included in the temporary ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.&nbsp; The new Executive Order removes Iraq from the list of impacted countries.&nbsp; In the Executive Order, President Trump indicates these countries were designated as countries of concern by the Obama administration and Congress, and he cites the Department of State&#39;s Country Reports on Terrorism 2015 (June 2016) to demonstrate the heightened risks posed by nationals of these countries.&nbsp; The Executive Order imposes a 90-day suspension on entry to the United States to allow the U.S. government to conduct a review and analysis of the national security risks.&nbsp; As with the previous order, this order leaves open the possibility of including additional countries on the list.<o:p></o:p></p> <p class="BodySingle"> Specifically, the suspension of entry to the U.S. applies only to foreign nationals of the designated countries who are outside the United States on the effective date of the order (March 16, 2017), did not have a valid visa at 5:00 p.m. EST on January 27, 2017, <u>and</u> do not have a valid visa on the effective date of the order. <o:p></o:p></p> <p class="BodySingle"> As for other aspects of the new Executive Order, the Visa Interview Waiver Program will again be suspended, as it was in the previous order.&nbsp; Visa applicants from all countries will need to apply in person at a U.S. Embassy or Consulate. &nbsp;&nbsp;The Executive Order confirms that no immigrant or nonimmigrant visa issued before March 16, 2017 should be revoked, and any individual whose visa was revoked or canceled as a result of the prior Executive Order should be entitled to a travel document confirming permission to travel to the U.S. and seek entry.&nbsp; In addition, United States Citizenship and Immigration Services (&ldquo;USCIS&rdquo;) will continue to adjudicate all naturalization, immigrant, and non-immigrant visa petitions and applications regardless of nationality.<o:p></o:p></p> <p class="BodySingle"> <b>Exemption from the Travel Ban<o:p></o:p></b></p> <p class="BodySingle"> The following groups of foreign nationals are exempt:<o:p></o:p></p> <p class="BodySingle"> Lawful Permanent Residents -- also known as &ldquo;LPRs&rdquo; or &ldquo;green card holders&rdquo; -- are <u>not</u> subject to this temporary travel ban.&nbsp; This includes those individuals who hold passports from any of the six designated countries.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Dual nationals -- individuals from one of the six listed countries who are also a citizen of a non-designated country -- are <u>not</u> subject to the travel ban if they seek entry to the U.S. using a passport issued by a non-designated country.<o:p></o:p></p> <p class="BodySingle"> Nonimmigrant Visa Holders -- provided that the visa stamp was issued prior to January 27, 2017 and remains valid.<o:p></o:p></p> <p class="BodySingle"> Foreign nationals holding a valid Advance Parole document.<o:p></o:p></p> <p class="BodySingle"> <b>Waiver of the Executive Order<o:p></o:p></b></p> <p class="BodySingle"> The new Executive Order states that the Department of Homeland Security and Department of State may review individual cases and grant waivers of the travel ban on a case-by-case basis.&nbsp; The criteria for a waiver will consider whether the traveler&rsquo;s entry is in the national interest of the United States, will not pose a threat to national security, and that denying entry during the suspension period will cause undue hardship.&nbsp; The Executive Order states that waivers will be adjudicated by the Department of State in conjunction with the individual&rsquo;s visa application.<o:p></o:p></p> <p class="BodySingle"> <b>Summary<o:p></o:p></b></p> <p class="BodySingle"> The March 6, 2017 Executive Order clarifies some of the ambiguities that arose from the original January 27, 2017 order, specifically that dual nationals and Lawful Permanent Residents are not subject to the travel ban.&nbsp; In addition, the Executive Order does not include individuals from the six designated countries who were in possession of a valid visa as of the date of the original order.&nbsp; Seyfarth Shaw LLP will continue to monitor the implementation of the Executive Order and any subsequent legal challenges.<o:p></o:p></p> http://www.seyfarth.com:80//publications/OMM030617-EB Guidance to IRS Examiners on 401(k)/403(b) Hardship Withdrawals http://www.seyfarth.com:80//publications/OMM030617-EB Mon, 06 Mar 2017 00:00:00 -0400 <div> <em><strong>Substantiation Requirement Clarified for Examination Purposes</strong></em></div> <div> &nbsp;</div> <div> Over the past few years, plan administrators have frequently asked how hardship withdrawal requests can/should be substantiated from 401(k) and 403(b) plans and, in particular, whether self-certification is sufficient. &nbsp;The Internal Revenue Service (&ldquo;IRS&rdquo;) has answered this by affirming plan sponsors&rsquo; obligation to obtain substantiation that a participant has experienced an immediate and heavy financial need before granting a participant&rsquo;s request for a hardship withdrawal. &nbsp;See, for example, the April 15, 2015 edition of &ldquo;Employee Plan News&rdquo; found <a href="https://www.irs.gov/pub/irs-tege/epn_2015_4.pdf">here</a>. &nbsp;However, on February 23, 2017, the IRS issued a <a href="https://www.irs.gov/pub/foia/ig/spder/tege-04-0217-0008.pdf">memorandum </a>providing Employee Plans examiners with guidance on evaluating whether a plan&rsquo;s participants have sufficiently substantiated that their request for a hardship withdrawal is on account of an immediate and heavy financial need, which appears to bless one alternative to obtaining source documentation.</div> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:600px;"> <tbody> <tr> <td> <div> <em>Refresher: &nbsp;What events are deemed to constitute an immediate and heavy financial need? &nbsp;</em><br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Expenses for medical care for the employee or spouse, children or dependents, or primary beneficiary under the plan,<br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Costs directly related to the purchase of a primary residence,<br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Payment of tuition, related educational fees, or room and board expenses for up to the next 12 months of post-secondary education for the employee or the employee&rsquo;s spouse, children or dependents, or primary beneficiary under the plan,<br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Payments necessary to prevent the eviction of the employee form the employee&rsquo;s principal residence or foreclosure of the mortgage on that residence,<br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Payments for burial or funeral expenses for the employee&rsquo;s deceased parents, spouse, children or dependents, or primary beneficiary under the plan, or&nbsp;<br /> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space: pre;"> </span>Expenses for the repair of damages to an employee&rsquo;s principal residence that would qualify for the casualty deduction under Section 165.<br /> &nbsp;</div> </td> </tr> </tbody> </table> </div> <div> <br /> The memorandum is not a pronouncement of law and cannot be relied on as such, but it provides insight as to how an IRS examiner will evaluate this aspect of a plan&rsquo;s hardship withdrawal program. &nbsp;</div> <div> &nbsp;</div> <div> <strong>New Notice and Summary Approach</strong></div> <div> &nbsp;</div> <div> The memorandum sets forth a series of steps for the IRS examiner to follow when determining whether a plan&rsquo;s hardship withdrawal is making distributions on account of a deemed immediate and heavy financial need. &nbsp;In short, the plan administrator can either request source documents, or provide participants with a notice and ask certain questions (which vary depending on the reason for seeking the hardship withdrawal) that summarize the information in the source documents without obtaining the actual source documentation itself. &nbsp;The elements of the notice, as well as the required questions, are found in Attachment I on pages 3 and 4 of the <a href="https://www.irs.gov/pub/foia/ig/spder/tege-04-0217-0008.pdf">memorandum</a>. &nbsp;While the plan administrator is not required to obtain the source documentation under the alternative notice and summary approach, the participant must agree to keep and produce upon request records of the event. &nbsp;If the examiner finds that the responses to the summary questions are internally inconsistent, or that participants are receiving more than two hardship withdrawals in a year without adequate explanation, the examiner can request the source documentation. &nbsp;If the hardship withdrawal program is being administered by a third-party administrator (&quot;TPA&quot;), the TPA appears required to provide the employer a report at least annually summarizing the hardship withdrawals made in the plan year. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Takeaway</strong></div> <div> &nbsp;</div> <div> Substantiating hardship withdrawals has long been a pain point for plan administrators, and this memorandum, while not official guidance, is a welcome glimpse into the IRS&rsquo;s view of what might be acceptable in lieu of obtaining actual documentation upfront. &nbsp;While this is a very welcome development, plan administrators should consider whether they prefer to continue requesting source documentation or align their programs with the memorandum. &nbsp;A possible risk with the alternative approach is the participant misplacing or being otherwise unable to produce the source documentation if requested. &nbsp;Responsibility would still seem to lie with the employer to demonstrate it has a compliant hardship withdrawal program, and given the IRS&rsquo;s past guidance stressing the importance of substantiating withdrawals, it remains to be seen how examiners will react to situations where the documentation is needed but not available.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/LR030617 Money for Nothin’ and Strikes for Free! http://www.seyfarth.com:80//publications/LR030617 Mon, 06 Mar 2017 00:00:00 -0400 <p> Employers should not presume that they are permitted to stop paying for employees&rsquo; medical benefits once they go out on strike. In a 2-1 decision, the NLRB recently held that &mdash; at least in some circumstances &mdash; medical benefits may be &ldquo;accrued&rdquo; simply by virtue of being employed. &nbsp;If so, then an employer may not stop those benefits during strike.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/03/06/money-for-nothin-and-strikes-for-free/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=82b7f9816d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-82b7f9816d-71423401">click here</a></p> http://www.seyfarth.com:80//publications/EL030317 Congress Moves to Invalidate OSHA Rule Which Provides Employers Can Be Cited for Five-Years For Injury and Illness Records http://www.seyfarth.com:80//publications/EL030317 Fri, 03 Mar 2017 00:00:00 -0400 <p> Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, &ldquo;more clearly states employers&rsquo; obligations&rdquo; to record an injury or illness which continues for a full five-year record-retention period.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/investigationsinspections/congress-moves-to-invalidate-osha-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=8f3b165c7d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-8f3b165c7d-71407177">click here</a></p> http://www.seyfarth.com:80//news/wexler-interviewed-legal-talk-network-030317 Howard Wexler interviewed by the <i>Legal Talk Network</i> http://www.seyfarth.com:80//news/wexler-interviewed-legal-talk-network-030317 Fri, 03 Mar 2017 00:00:00 -0400 <p> Howard Wexler was interviewed in &quot;Lawyer 2 Lawyer: The Trump Administration and U.S. Labor Laws,&quot; a March 3 podcast from the <em>Legal Talk Network</em> on U.S. Federal Labor laws, reform, current legislation, and the impact a new Secretary of Labor under a Trump presidency will have on the U.S. workforce and employers.</p> <p> <a href="http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2017/03/trump-administration-u-s-labor-laws/">You can listen to the interview here</a>.</p> http://www.seyfarth.com:80//publications/WC020217a No Subpoena For You! – Tenth Circuit Says EEOC’s Subpoena Out Of Line http://www.seyfarth.com:80//publications/WC020217a Thu, 02 Mar 2017 00:00:00 -0400 <p> The U.S. Court of Appeals for the Tenth Circuit recently held that a district court did not abuse its discretion when it declined to enforce a far-reaching EEOC administrative subpoena relating to one employee&rsquo;s charge of disability and pregnancy discrimination. The case is important for all employers involved in EEOC investigations.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/no-subpoena-for-you-tenth-circuit-says-eeocs-subpoena-out-of-line/">click here</a></p> http://www.seyfarth.com:80//publications/CP030117 Avoid Paying The Piper: Tune Your Startup to Avoid Harassment Claims http://www.seyfarth.com:80//publications/CP030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> In a world where life often imitates art, startups can avoid perceived gender bias and sexual harassment in the workplace by learning from the pitfalls of the socially awkward team at TV&rsquo;s fictional startup firm: Pied Piper. In honor of the upcoming return of Silicon Valley, we discuss five lessons for fledgling companies, using situations that may sound oddly familiar to fans of this geek squad.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/01/avoid-paying-the-piper-tune-your-startup-to-avoid-harassment-claims/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=72d3f3ea92-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-72d3f3ea92-71410869">click here</a></p> http://www.seyfarth.com:80//publications/CDL030117 Key Takeaways from the Sedona Conference Commentary on Proportionality in Electronic Discovery http://www.seyfarth.com:80//publications/CDL030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> The Sedona Conference Working Group on Electronic Document Retention &amp; Production (WG1) has released its <strong><em>Commentary on Proportionality in Electronic Discovery.</em></strong> The public comment period on the <strong><em>Commentary </em></strong>closed on January 31, 2017. This Commentary was much anticipated given the revamping of Rules 26(b)(1) and 37(e) of the Federal Rules of Civil Procedure in December 2015, which directly affected the scope of eDiscovery in federal litigation. The 2015 amendments were aimed at curbing gamesmanship and abuses in eDiscovery by elevating the importance of &ldquo;proportionality&rdquo; as the guiding principle governing the entire discovery process and by setting forth the framework for addressing the loss of electronically stored information (ESI) that was required to be preserved.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/03/key-takeaways-sedona-conference-commentary-proportionality-electronic-discovery/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=6489fefaf4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-6489fefaf4-72857025">click here</a></p> http://www.seyfarth.com:80//publications/WC030117 What Employers Should Know About The Record Breaking Wage & Hour Class Certifications Of 2016 – Trend #5 http://www.seyfarth.com:80//publications/WC030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Wage &amp; hour litigation is a &ldquo;hot button&rdquo; issue for employers around the country. In our fifth installment video detailing the six key findings of the Workplace Class Action Report, we look at the numbers and implications behind wage &amp; hour class action certification rulings in 2016 and discuss the FLSA regulations that impact employers in our current economy which has substantially changed since its inception in the 1930s.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/03/what-employers-should-know-about-the-record-breaking-wage-hour-class-certifications-of-2016-trend-5/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=421918f3fe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-421918f3fe-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM030117-LE Texas Supreme Court Tosses Former Employee’s Defamation Suit Based on Matters of Public Concern Under the TCPA http://www.seyfarth.com:80//publications/OMM030117-LE Wed, 01 Mar 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong>: The Texas Supreme Court throws out a former employee&rsquo;s defamation suit under the Texas Citizens Participation Act, finding that communications about his alleged failure to measure a petroleum storage tank were made in connection with a matter of public concern.</em></div> <div> &nbsp;</div> <div> Travis Coleman was a terminal technician formerly employed by ExxonMobil Pipeline Company (&ldquo;EMPCo&rdquo;). He was fired after his former supervisors accused him of falsifying a report on the storage level of a petroleum storage tank that he allegedly failed to properly measure but claimed to have accurately recorded.&nbsp;</div> <div> &nbsp;</div> <div> In the wake of his termination, Coleman sued EMPCo and two former supervisors for defamation, alleging that the statements made by his supervisors about the circumstances that led to his discharge were untrue. The defendants moved to dismiss, arguing that the Texas Citizens Participation Act (the &ldquo;TCPA&rdquo;)&mdash;a state law enacted with the aim to restrict strategic lawsuits against public participation, or SLAPP suits&mdash;applied to Coleman&rsquo;s suit.&nbsp;</div> <div> &nbsp;</div> <div> The trial court denied the motion, and the defendants appealed. The court of appeals affirmed, ruling that EMPCo did not meet its burden to show that the TCPA applied to Coleman&rsquo;s suit because the communications between EMPCo employees were related to Coleman&rsquo;s job performance and had only a &ldquo;tangential relationship to health, safety, environmental, and economic concerns.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The Texas Supreme Court reversed and remanded, holding that EMPCo successfully established TCPA applicability. Relying in large part on its 2015 decision in Lippincott v. Whisenhunt&mdash;where the Court held that communications concerning a doctor&rsquo;s performance need not be made publicly to be deemed a matter of public concern and therefore receive TCPA protection&mdash;the Court noted that the statements among EMPCo employees, although private, involved a matter of public concern, namely public safety, as Coleman&rsquo;s alleged failure to properly test the storage tank could result in the spillage of hazardous, flammable chemicals.&nbsp;</div> <div> &nbsp;</div> <div> Furthermore, as the Supreme Court observed, it is not necessary under the TCPA that statements specifically mention, or bear more than a tangential or remote relationship to, health, safety, environmental, or economic concerns as a precondition to TCPA applicability. Instead, the TCPA demands only that the defendant&rsquo;s statements are made &ldquo;in connection with issues related to health, safety, environmental, economic and other identified matters of public concern chosen by the Legislature.&rdquo; The court of appeals&rsquo; decision requiring &ldquo;something more&rdquo; thus erroneously narrowed the scope of the TCPA and ran counter to the plain and unambiguous language of the TCPA.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/EL030117 Texas High Court Allows Employee to Pursue Assault Claim Against Employer for Tortious Acts of “Vice Principal” http://www.seyfarth.com:80//publications/EL030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> In a decision that is sure to increase the costs and complexity of litigation, the Texas Supreme Court recently held that a former employee&rsquo;s common law assault claim was not preempted by the state&rsquo;s anti-discrimination statute. The Court reasoned that if the gravamen of an employee&rsquo;s claim is that the employer committed assault through a &ldquo;vice principal&rdquo;&ndash;as opposed to sexual harassment&ndash;the employee may pursue the common law claim directly and would not be preempted.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/texas-high-court-allows-employee-to-pursue-assault-claim-against-employer-for-tortious-acts-of-vice-principal/">click here</a></p> http://www.seyfarth.com:80//publications/OMM030117-LIT New York Court Reverses Rejection of M&A Disclosure-Only Settlement Signaling Split from Delaware http://www.seyfarth.com:80//publications/OMM030117-LIT Wed, 01 Mar 2017 00:00:00 -0400 <div> <strong>Seyfarth Synopsis:</strong> &nbsp;On February 2, 2017, the Appellate Division for the First Department in New York entered an order approving a &ldquo;disclosure-only&rdquo; settlement. &nbsp;While acknowledging the &ldquo;increasingly negative view&rdquo; of &ldquo;disclosure-only&rdquo; or other forms of non-monetary settlements reflected in recent merger litigation decisions in both Delaware and New York, the court signaled that the death knell has not rung for these settlements just yet.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> Plaintiff shareholder of Verizon Communications, Inc. (&ldquo;Verizon&rdquo; or the &ldquo;Company&rdquo;) filed a shareholder derivative class action lawsuit against Verizon and board members alleging, <em>inter alia</em>, that the board breached its fiduciary duty to Verizon&rsquo;s shareholders by causing Verizon to pay an excessive price for stock in a 2013 transaction and that it had failed to disclose material information in connection thereto in its preliminary proxy statement. &nbsp;In that transaction, Vodafone Group PLC (&ldquo;Vodafone&rdquo;) sold its 45% minority stake in Cellco Partnership, Inc. to Verizon for $130 billion in stock and cash. &nbsp;</div> <div> &nbsp;</div> <div> The parties reached an agreement to settle this action, wherein Verizon agreed to provide certain additional disclosures and to obtain a fairness opinion from an independent financial advisor if Verizon in the next three years entered into certain material transactions. &nbsp;Verizon also agreed that it would not oppose any fee application of plaintiffs&rsquo; counsel not exceeding $2 million. &nbsp;The lower court rejected the settlement after a hearing because supplemental disclosures &ldquo;individually and collectively fail[ed] to materially enhance the shareholders&rsquo; knowledge about the merger[,]&rdquo; &ldquo;provide[d] no legally cognizable benefit to the shareholder class, and cannot support a determination that the Settlement is fair, adequate, reasonable and in the best interests of the class members.&rdquo; &nbsp;The lower court additionally found that the corporate governance reform requiring that a fairness opinion be obtained in certain circumstances &ldquo;could curtail Verizon&rsquo;s directors&rsquo; flexibility in managing minimal asset dispositions.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> The First Department in reversing the lower court&rsquo;s decision found that under New York law the proposed settlement met the five factors of its longstanding <em>Colt </em>standard, including the likelihood of success, the extent of support of the parties, the judgment of counsel, the presence of bargaining in good faith, and the nature of the issues of law and fact. &nbsp;The Court additionally announced that it was &ldquo;refining&rdquo; the <em>Colt </em>standard to include two additional factors that it found this settlement also met: (1) whether the proposed settlement is in the best interests of the putative settlement class as a whole; and (2) whether the settlement is in the best interest of the corporation. &nbsp;The Court then remanded the case back to the lower court to determine the fee award after noting the significant number of cases where courts have awarded attorneys&rsquo; fees even though the benefits of derivative litigation were &ldquo;&lsquo;scant,&rsquo; &lsquo;slight,&rsquo; &lsquo;modest,&rsquo; or even &lsquo;minimal.&rsquo;&rdquo; &nbsp;In such cases, the court noted that fees have been greatly reduced from the sums demanded.</div> <div> &nbsp;</div> <div> <strong>Takeaways</strong></div> <div> &nbsp;</div> <div> 1. <u>New York May Become a More Favored Venue for M&amp;A Litigation</u>. &nbsp;The Court claimed that its new <em>Colt </em>standard was &ldquo;comparable&rdquo; to the Delaware standard enunciated in <em>Trulia</em>.<sup>1</sup> &nbsp;It seems likely, however, that plaintiffs&rsquo; attorneys will view the Court&rsquo;s application of its new standard as indicating that New York is a more favorable forum for seeking the approval of disclosure-only settlements than Delaware, where the &ldquo;the sun has set on routine approval of disclosure-only settlements.&rdquo;<sup>2</sup> &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> 2. <u>A Settlement That Includes a Corporate Governance Reform May Be Looked Upon More Favorably By New York Courts</u>. &nbsp;While the Court in deciding to approve the settlement considered the fact that four categories of supplemental disclosures were made to Verizon shareholders, it found that the &ldquo;most beneficial aspect&rdquo; of the proposed settlement was the fairness opinion requirement. &nbsp;This prospective corporate governance reform mandated an independent valuation &ldquo;without restricting the flexibility of directors in making a pricing determination&rdquo; and thus served to &nbsp;&ldquo;safeguard the valuation of corporate assets&rdquo; in the event of a transaction involving the sale of Verizon Wireless assets valued in excess of $14.4 billion. &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> 3. <u>Concurring Opinion Suggests That New York&rsquo;s Standard For Evaluating Class Action Settlements May Still Be in Flux</u>. &nbsp;A concurring opinion suggested that the &ldquo;purported&rdquo; new seven factor standard promulgated by the majority need not be adopted because no party took issue with the existing <em>Colt </em>test and the lower court only examined one of the five <em>Colt </em>factors before it declined to approve the settlement.&nbsp;</div> <div> &nbsp;</div> <div> For a copy of the opinion, click <a href="http://nycourts.gov/reporter/3dseries/2017/2017_00742.htm">here</a>.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <div> <span style="font-size:10px;">&nbsp;<sup>1</sup> <em>In re Trulia, Inc. Stockholder Litig.</em>, 129 A.3d 884, 890-91 (Del. Ch. 2016).</span></div> <div> <span style="font-size:10px;">&nbsp;<sup>2</sup> Gregory A. Markel, Martin L. Seidel &amp; Gillian G. Burns, Delaware Judges Have Been Heard, Law360, https://www.law360.com/articles/752948/delaware-judges-have-been-heard ( Feb. 2, 2016).</span></div> <div> &nbsp;</div> </div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/030117-CEL China Employment Law Alert: Chinese Employers Now Subject to New Grading System http://www.seyfarth.com:80//publications/030117-CEL Wed, 01 Mar 2017 00:00:00 -0400 <p> The Chinese Ministry of Human Resources and Social Security (MHRSS) has launched a new nationwide grading system to evaluate employers&rsquo; employment law compliance.&nbsp; This system has been put in place via the Measures for the Grading of Enterprises&rsquo; Employment Law Compliance (the &ldquo;Grading Measures&rdquo;) and is effective January 1, 2017.</p> <p> Prior to 2017, 24 Chinese provinces and cities each had individual schemes to evaluate employment law compliance.&nbsp; These schemes varied widely and were not compatible with counterpart government schemes, e.g., those administered by the State Tax Bureau (taxpayer credit evaluation system), the Administration of Industry and Commerce (business credit evaluation system) and the People&rsquo;s Bank of China (enterprise credit evaluation system).</p> <p> The Grading Measures will standardize the disparate evaluation systems and may become a key determinant of an employer&rsquo;s compliance status.</p> <p> <strong>Grading Scope and Criteria</strong></p> <p> Employers will now receive an annual grade (A, B or C) for employment law compliance in any given year based on (i) the local authority&rsquo;s routine and random inspection, (ii) review of employment records and (iii) investigations of filed complaints.</p> <p> The criteria for assessing compliance include reviews of:</p> <ul> <li> the availability of internal employment policies and regulations within the employer;</li> <li> proper enrollment and participation in statutory social security insurance programs;</li> <li> compliance with key employment laws and regulations, especially regarding salary payment;</li> <li> female employee protection; and</li> <li> working hours.</li> </ul> <p> Employers with perfect compliance during the year will receive an &ldquo;A&rdquo;.&nbsp; Employers that have been disciplined for &ldquo;non-serious&rdquo; violations (as enumerated in the Grading Measures) by the local labor authority will receive a &ldquo;B&rdquo;.&nbsp; Employers with &ldquo;serious&rdquo; violations will receive a &ldquo;C&rdquo;.</p> <p> <strong>Impact on Employers</strong></p> <p> Grade A employers will be subject to fewer routine checks by the local authority in the following calendar year, while Grade C employers will be monitored more closely, meaning more frequent routine and random inspections.</p> <p> A different regulation provides that a labor authority may publish on its website the serious violations leading to a designation of Grade C.&nbsp; This could of course adversely impact the reputation and good standing of the employer.</p> <p> <strong>Recommendations for Employers</strong></p> <p> It is recommended that all enterprises conduct a self-evaluation of their employment law compliance, especially the key issues highlighted by the Grading Measures, and remediate any problems as soon as possible.</p> <p> Detailed implementation rules and launch schedules for the Grading Measures are not yet available.&nbsp; We will keep an eye on further developments.</p> <p> &nbsp;</p> http://www.seyfarth.com:80//news/gart-and-dommers-mentioned-costar-030117 Ron Gart and Christa Dommers mentioned in <i>CoStar</i> http://www.seyfarth.com:80//news/gart-and-dommers-mentioned-costar-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Ron Gart and Christa Dommers were mentioned in &quot;CRE Execs Balance Optimism Over Prospects for De-Regulation and Tax Reform with Concern over Higher Interest Rates and Uncertainty,&quot; a March 1 story from <em>CoStar </em>on the firm&rsquo;s 2017 Real Estate Survey which found a positive outlook stemming from the new administration&#39;s &lsquo;de-regulate and dismantle&rsquo; approach to Dodd-Frank. Gart said that he is seeing clients continue to proceed with deals rather than wait to see what changes may occur, particularly with the Federal Reserve signaling its intent to raise interest rates in 2017, possibly multiple times.</p> <p> <a href="http://www.costar.com/News/Article/CRE-Execs-Balance-Optimism-Over-Prospects-for-De-Regulation-and-Tax-Reform-with-Concern-over-Higher-Interest-Rates-and-Uncertainty/189148">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-030117 Sam Schwartz-Fenwick quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Federal Departments&#39; Withdrawal of Gender Identity Guidance Doesn&rsquo;t Change EEOC&#39;s Position,&quot; a March 1 story by <em>SHRM </em>on how the commission still considers gender identity discrimination to be illegal. Schwartz-Fenwick said that the scope of federal law regarding transgender inclusion has never been clear.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/transgender-protections-rescinded.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/solowey-authored-article-new-england-in-house-030117 Dawn Solowey authored an article in <i>New England In-House</i> http://www.seyfarth.com:80//news/solowey-authored-article-new-england-in-house-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Dawn Solowey authored &quot;Steps for developing a settlement strategy for employment claims,&quot; an article on March 1 in <em>New England In-House</em> on 10 steps to develop a comprehensive strategy for when to settle, and when to go to the mat in litigation, that is in line with the company&rsquo;s broader goals and values.</p> <p> <a href="http://newenglandinhouse.com/2017/03/01/steps-for-developing-a-settlement-strategy-for-employment-claims-2/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-interviewed-confero-magazine-030117 Richard Schwartz interviewed in <i>Confero Magazine</i> http://www.seyfarth.com:80//news/schwartz-interviewed-confero-magazine-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Richard Schwartz was interviewed in &quot;Interview: Operational Errors Are Going to Occur,&quot; a March 1 story from <em>Confero Magazine</em> on his advice to plan sponsors to prevent operational errors.</p> <p> <a href="http://www.westminster-consulting.com/Publications/Confero/Issue17/interview-operational-errors">You can read the full interview here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-mcknight-long-term-care-news-030117 Gerald Maatman quoted in <i>McKnight’s Long Term Care News</i> http://www.seyfarth.com:80//news/maatman-quoted-mcknight-long-term-care-news-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Gerald Maatman was quoted in &quot;Worker class-action lawsuits on the rise?&quot; &mdash; a March 1 story by <em>McKnight&rsquo;s Long Term Care News</em> on the firm&rsquo;s annual <em>Workplace Class Action Report</em>. Maatman said that the U.S. Supreme Court decided several cases in 2016 that favored workers bringing class actions, which in turn portend significant challenges for employers facing these exposures in 2017.</p> <p> <a href="http://www.mcknights.com/news/worker-class-action-lawsuits-on-the-rise/article/641017/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-business-insurance-022817 Sam Schwartz-Fenwick quoted by <i>Business Insurance</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-business-insurance-022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Student&#39;s transgender bathroom case may impact the workplace,&quot; a February 28 story by <em>Business Insurance</em> on how legal guidance for employers on the issue of how they should deal with transgender employees in the workplace could emerge from a case now before the U.S. Supreme Court on transgender students&rsquo; bathroom use. Schwartz-Fenwick said that the law has never been settled regarding whether federal law properly extends to claims of transgender discrimination.</p> <p> <a href="http://www.businessinsurance.com/article/20170228/NEWS06/912312111/Transgender-bathroom-case-may-impact-the-workplace">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/gart-quoted-law360-022817 Ron Gart quoted in <i>Law360</i> http://www.seyfarth.com:80//news/gart-quoted-law360-022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> Ron Gart was quoted in &quot;Seyfarth DC Real Estate Leader Eyes Tax Law &#39;Sea Change&#39;,&quot; a February 28 story from <em>Law360 </em>on how real estate investors are expecting sweeping tax and regulatory reform from the new administration. Gart said that the White House and Congress could fundamentally change the way equity and debt are thought of.</p> http://www.seyfarth.com:80//news/milligan-quoted-bloomberg-BNA-022817 Robert Milligan quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/milligan-quoted-bloomberg-BNA-022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;Alphabet Adds Trade Secret Law to Self-Driving Car Wars,&quot; a February 28 story from <em>Bloomberg BNA</em> on how Alphabet Inc.&rsquo;s allegation of trade-secret theft by Uber Technologies Inc. unleashes a powerful new weapon in Silicon Valley&rsquo;s battle over skilled engineers for autonomous-driving technology.</p> <p> <a href="https://www.bna.com/alphabet-adds-trade-n57982084568/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/livingston-quoted-bloomberg-BNA-022817 Brad Livingston quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/livingston-quoted-bloomberg-BNA-022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> Brad Livingston was quoted in &quot;WAR OR PEACE OVER COLLECTIVE BARGAINING IN THE TRUMP ERA?&quot; &mdash; a February 28 story in <em>Bloomberg BNA</em> on whether government policies in the near future will be more employee- or employer-friendly. Livingston said that while the collective bargaining process itself likely won&rsquo;t change, NLRB rules about the effects of certain clauses in collective bargaining agreements, such as dues deductions after contract expiration and waivers in CBAs, may change over time as a new board majority asserts itself.</p> <p> <a href="https://www.bna.com/war-peace-collective-b57982084536/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ADA022817 Arizona Attorney General Secures Dismissal of 1,700 Lawsuits By Serial Plaintiffs http://www.seyfarth.com:80//publications/ADA022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> A state court has granted the Arizona Attorney General&rsquo;s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/02/arizona-attorney-general-secures-dismissal-of-1700-lawsuits-by-serial-plaintiffs/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=06f2699108-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-06f2699108-71256157">click here</a></p> http://www.seyfarth.com:80//publications/EL022817 Red State Preemption Of Local Pay Equity Laws? — Stay Tuned http://www.seyfarth.com:80//publications/EL022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> The 2016 elections had the effect of hardening the Red-Blue divide in the country. &nbsp;A number of Blue cities in Red States are enacting ordinances that implement the progressive political agenda, which of course includes pay equity. &nbsp;Be prepared to see that the Red states in which they lie may attempt to preempt local ordinances. &nbsp;Red State preemption of Blue city ordinances is yet another battle that is likely to be resolved in court.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/red-state-preemption-of-local-pay-equity-laws-stay-tuned/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=dae5b03640-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-dae5b03640-71256185">click here</a></p> http://www.seyfarth.com:80//publications/TBT022817 Lack Of California Regulations Sparks Continued Uncertainty For Sale Of Recreational Marijuana http://www.seyfarth.com:80//publications/TBT022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> California voters passed the Adult Use Marijuana Act (&ldquo;AUMA&rdquo;) in November, but State officials are still struggling to figure out exactly how they will regulate the sale of marijuana for recreational use.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/02/lack-of-california-regulations-sparks-continued-uncertainty-for-sale-of-recreational-marijuana/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7644144d0f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7644144d0f-71540589">click here</a></p> http://www.seyfarth.com:80//publications/milligan-and-salinas-blog-post-republished-in-HR-dot-com-022817 Robert Milligan and Joshua Salinas’ blog post was republished in <i>HR.com</i> http://www.seyfarth.com:80//publications/milligan-and-salinas-blog-post-republished-in-HR-dot-com-022817 Tue, 28 Feb 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas&rsquo; blog post &quot;Fraud, and Non-Compete Law in 2016&quot; was republished on February 28 in <em>HR.com</em>. The post presented the top developments/headlines for 2016 in trade secret, computer fraud, and non-compete law.</p> <p> <a href="https://www.hr.com/en/app/blog/2017/02/fraud-and-non-compete-law-in-2016_izp7reqb.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/TS022717 In Georgia, the Blue-Pencil Only Strikes Overly Broad Non-Competes and Does Not Rewrite Them http://www.seyfarth.com:80//publications/TS022717 Mon, 27 Feb 2017 00:00:00 -0400 <p> In Spring 2011, the Georgia legislature passed a new restrictive covenant statute, which, for the first time, allowed Georgia courts in reviewing non-competition agreements between employer and employee to blue-pencil or &ldquo;modify a covenant that is otherwise void and unenforceable so long as the modification does not render the covenant more restrictive with regard to the employee than as originally drafted by the parties.&rdquo; O.C.G.A. &sect; 13-8-53(d). Since the new Georgia statute only applies to agreements executed after its enactment, there has been limited litigation concerning the meaning and scope of this provision.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/02/articles/uncategorized/in-georgia-the-blue-pencil-only-strikes-overly-broad-non-competes-and-does-not-rewrite-them/">click here</a></p> http://www.seyfarth.com:80//publications/ADA022717 Supreme Court Rules Title II and Section 504 Claims Can Proceed to Court Without Exhausting IDEA’s Administrative Processes In Certain Circumstances http://www.seyfarth.com:80//publications/ADA022717 Mon, 27 Feb 2017 00:00:00 -0400 <p> The Supreme Court&rsquo;s recent ruling in Fry v. Napoleon Comm. Schools limits IDEA&rsquo;s exhaustion requirement to those cases which seek relief for a denial of FAPE allowing for some claims brought under Title II and Section 504 on behalf of IDEA eligible students to proceed directly to court without implementation of IDEA&rsquo;s administrative processes before litigation is commenced.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/02/supreme-court-rules-title-ii-and-section-504-claims-can-proceed-to-court-without-exhausting-ideas-administrative-processes-in-certain-circumstances/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=6da200e158-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-6da200e158-71256157">click here</a></p> http://www.seyfarth.com:80//publications/MA022717-LE Supreme Court Rules that Title II and Section 504 Claims Can Proceed to Court Without Exhausting IDEA Administrative Process If Relief Sought is Not For Denial of FAPE http://www.seyfarth.com:80//publications/MA022717-LE Mon, 27 Feb 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> &nbsp;The Supreme Court has clarified IDEA&rsquo;s exhaustion requirement to allow claims brought on behalf of IDEA eligible students to proceed directly in court unless the &ldquo;gravamen&rdquo; of the complaint seeks relief for a denial of a free, appropriate public education (FAPE). This holding suggests that in the future more litigation will be filed directly in federal court for alleged discrimination and accessibility violations under Title II and Section 504 even when the litigation relates to students otherwise eligible for special education services under IDEA.&nbsp;</em></div> <div> &nbsp;</div> <div> On February 22, Justice Kagan delivered the U.S. Supreme Court&rsquo;s opinion in <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/02/15-497_p8k0.pdf"><em>Fry v. Napoleon Comm. Schools et al., 580 U.S. ____ &nbsp;(2017)</em></a> and refined the scope of the Individuals with Disabilities Education Act&rsquo;s (IDEA) exhaustion requirement and holding that this requirement may -- in certain circumstances -- not apply to a complaint brought under Title II of the ADA and Section 504 of the Rehabilitation Act. The case specifically addressed whether IDEA&rsquo;s exhaustion requirement barred claims for injunctive and monetary relief under Title II and Section 504 based on allegations that a school district denied a disabled child her right to bring a service dog to school, despite the existence of an individualized education program (IEP) which specified that the student would have an individual aid while attending school. &nbsp; &nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This case came up to the Supreme Court after the Court of Appeals for the Sixth Circuit affirmed a &nbsp;District Court&rsquo;s dismissal of the case holding that IDEA&rsquo;s exhaustion requirement at Section 1415(l) required that relief first be sought through IDEA&rsquo;s administrative processes. A divided panel of the Sixth Circuit Court of Appeals applied the rule enunciated in <em>Charlie F. v. Board of Ed. of Skokie School Dist.</em> 68, 98 F.3d 989, 993 (7th Cir. 1996) that exhaustion is necessary whenever &ldquo;the genesis and the manifestations&rdquo; of the complained of harms are &ldquo;educational&rdquo; in nature. Certiorari was ultimately granted by the Supreme Court to clarify the scope of IDEA&rsquo;s exhaustion requirement. &nbsp;</div> <div> &nbsp;</div> <div> Noting that IDEA&rsquo;s statutory language requires exhaustion when a civil action is brought &ldquo;seeking relief that is also available under [the IDEA],&rdquo; the Supreme Court held that to meet the IDEA&rsquo;s statutory exhaustion standard, &ldquo;a suit must seek relief for the denial of a [free appropriate public education (FAPE)], because that is the only &lsquo;relief&rsquo; the IDEA makes &lsquo;available.&rsquo;&rdquo; The Court found that a court should look to the &ldquo;gravamen&rdquo; of the plaintiff&rsquo;s complaint in making the determination and pointed out that &nbsp;IDEA&rsquo;s &ldquo;statutory language asks whether a lawsuit in fact &lsquo;seeks&rsquo; relief available under the IDEA--not, as a stricter exhaustion statute might, whether the suit &lsquo;could have sought&rsquo; relief available under the IDEA.&rdquo; The Court recognized overlap in the protections afforded by IDEA which is designed to guarantee students individually tailored special education and related services to provide FAPE and the protections of Title II and Section 504, which mandate nondiscriminatory access to public instruction. &nbsp;In so doing, the Court provided &ldquo;clues&rdquo; to guide the exhaustion determination. The Court describes the first clue as coming from the following &ldquo;pair of hypothetical questions&rdquo;: &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school-- &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;say a public theatre or library? &nbsp;And second, could an adult at the school--say, an employee or visitor--have pressed essentially the same &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;grievance?&rdquo;</div> <div> &nbsp;</div> <div> The Court opined that when &ldquo;the answer to these questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about the subject.&rdquo; The Court identifies the second clue as:</div> <div> &nbsp;</div> <div> &ldquo;emerg[ing] from the history of the proceedings. &nbsp;In particular, a court may consider that a plaintiff has previously invoked the IDEA&rsquo;s formal &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;procedures to handle the dispute--thus starting to exhaust the Act&rsquo;s remedies before switching midstream.&rdquo; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Recognizing that the history of the underlying proceedings might suggest that the &ldquo;gravamen of [Parents&rsquo; federal lawsuit] is the denial of FAPE,&rdquo; the Court remanded the case with instructions that the court below should &ldquo;decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion.&rdquo; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Justice Alito, joined by Justice Thomas, concurred in the judgment and concurred in part in the opinion with the exception of its discussion of the guidance for lower courts in deciding the issue of when IDEA&rsquo;s exhaustion requirement should be applied. &nbsp;Justice Alito notes that the &ldquo;clues&rdquo; are &ldquo;likely to confuse and lead courts astray&rdquo; noting that &ldquo;[i]t is easy to imagine circumstances under which parents might start down the IDEA road and then change course and file an action under the ADA or the Rehabilitation Act that seeks relief that the IDEA cannot provide.&rdquo;</div> <div> &nbsp;</div> <div> As a practical matter, this decision highlights the importance of compliance with Title II&rsquo;s and Section 504&rsquo;s accessibility mandates. &nbsp;Failure to adequately monitor and address issues of alleged noncompliance could now lead to a lawsuit filed in court without IDEA&rsquo;s processes and opportunities to resolve complaints before litigation is commenced. Therefore, this holding suggests that more litigation <strong><em>will</em></strong> be filed directly in court under Title II and Section 504 asserting that a public school failed to provide non-discriminatory access to an aid, benefit or service to disabled students otherwise eligible for IDEA&rsquo;s special education programming.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/goldman-meier-moore-peery-rubin-winner-authored-article-PREA-quarterly-022717 Arren Goldman, Steve Meier, Willard Moore, Gordon Peery, Joel Rubin and Rob Winner authored an article in <i>PREA Quarterly</i> http://www.seyfarth.com:80//publications/goldman-meier-moore-peery-rubin-winner-authored-article-PREA-quarterly-022717 Mon, 27 Feb 2017 00:00:00 -0400 <p> Arren Goldman, Steve Meier, Willard Moore, Gordon Peery, Joel Rubin and Rob Winner authored &quot;Washington&rsquo;s Current Musings and Their Effect on Real Estate Investing,&quot; an article on February 27 in <em>PREA Quarterly</em>.</p> http://www.seyfarth.com:80//news/Seyfarth-Expansion-Hong-Kong-Office Seyfarth Continues Asia-Pacific Expansion with Hong Kong Office http://www.seyfarth.com:80//news/Seyfarth-Expansion-Hong-Kong-Office Mon, 27 Feb 2017 00:00:00 -0400 <p> <strong>Hong Kong</strong> &ndash; <strong>February 27, 2017</strong> &ndash; Seyfarth Shaw LLP is expanding its presence in the Asia Pacific, today announcing that it is opening a new office in Hong Kong.&nbsp;</p> <p> Seyfarth&rsquo;s Hong Kong office will assist the firm in continuing to scale its International Employment Law practice in the Asia- Pacific region.&nbsp;</p> <p> Seyfarth&rsquo;s International Employment Law practice is recognized as one of the world&rsquo;s premier specialist international employment practices, acting for many of the world&rsquo;s largest multinational companies across the Asia-Pacific region and on a global basis.&nbsp;</p> <p> &ldquo;We have developed what we believe is the world&rsquo;s pre-eminent cross-border employment practice with a distinguished track record working across the Asia -Pacific region,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;We are privileged to work with many of the world&rsquo;s largest companies, and our new Hong Kong office will help us meet the ever-increasing client demand for specialist employment assistance across the Asia-Pacific region.&rdquo;&nbsp;</p> <p> Julia Gorham will lead the employment law team in the new Hong Kong office. Julia is joining from her position as partner and head of the Asia Employment Law practice at DLA Piper. Julia&rsquo;s experience extends across all aspects of employment law in Hong Kong and the Asia-Pacific region more broadly.</p> <p> &ldquo;Opening our new Hong Kong office is an important next step in the continued scaling of our international employment law practice&rdquo; said Darren Gardner, chair of Seyfarth&rsquo;s International Practice. &ldquo;We are excited Julia is joining us. Her skill set and experience are a perfect fit with our service model and further bolsters our capability to assist our clients with their Asia-Pacific employment law needs.&rdquo;</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <div> <strong>Contacts</strong>:</div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></div> http://www.seyfarth.com:80//news/Boutros-board-of-IAICM Seyfarth’s Andrew S. Boutros to Serve on the Board of the International Association of Independent Corporate Monitors http://www.seyfarth.com:80//news/Boutros-board-of-IAICM Fri, 24 Feb 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP partner Andrew S. Boutros, the firm&rsquo;s National Co-Chair of the White Collar, Internal Investigations, and False Claims Act Team, will serve on the Board of the new International Association of Independent Corporate Monitors (IAICM) organization.&nbsp;</p> <p> IAICM is a 501(C)(6) Not for Profit Membership Organization dedicated to educating the public on the topic of Independent Corporate Monitors (&ldquo;Monitors&rdquo;) and advancing the use of and quality of service of those individuals serving or seeking to serve as Monitors. The purposes of IAICM are to promote and improve the professional practice of Corporate Monitoring; to be a recognized thought-leader in the field of Corporate Monitoring; to make available information on Corporate Monitoring to the public; and to provide high-quality, relevant information, resources and training to professionals and others practicing in the area of Corporate Monitoring. Notably, IAICM will serve as an invaluable resource where government agencies, oversight organizations, in-house counsels, and others can find a list of prospective candidates for Corporate Monitorships. You can learn more about IAICM <a href="http://iaicm.org/about-independent-corporate-monitors/">here</a>.&nbsp;</p> <p> &ldquo;I am honored to have been asked to serve on IAICM&rsquo;s Board,&rdquo; said Board Member, Andrew S. Boutros. &nbsp;&ldquo;Corporate Monitors are playing an increasingly important role in the compliance and remediation arenas--especially for those organizations emerging out of enforcement actions and other government resolutions. &nbsp;It is a privilege to help lead and direct IAICM&rsquo;s launch and growth in this vitally important area. &nbsp;I look forward to continuing to work closely with my distinguished colleagues who are also serving on this Board.&rdquo;</p> <p> Boutros is a distinguished trial attorney, accomplished litigator, Foreign Corrupt Practices Act (FCPA) pioneer, Lecturer in Law at the University of Chicago Law School, voting Member of the ABA Criminal Justice Section Council, Co-Founder and National Co-Chair of the ABA&rsquo;s Global Anti-Corruption Committee, board member to various professional and legal organizations, and former law clerk on the Sixth Circuit Court of Appeals. A decorated former federal financial fraud prosecutor, Boutros now represents clients in their most sensitive and important white collar matters; internal investigations, including those arising under the FCPA and other anti-corruption laws; and complex litigations. He also provides strategic counseling and advice to clients in a variety of industries and conducts comprehensive compliance audits, including in the areas of corporate social responsibility, country of origin matters, and supply chain integrity.&nbsp;</p> <p> Seyfarth&rsquo;s White Collar, Internal Investigations, and False Claims Team represents companies and individuals in all varieties of white collar matters, government enforcement defenses, trials, internal investigations, and complex litigations, including matters involving fraud, embezzlement, the FCPA, insider trading, other securities violations, healthcare violations, antitrust actions, trade fraud, customs fraud, country-of-origin violations, trade secret theft, environmental crimes, and the False Claims Act, among others.</p> http://www.seyfarth.com:80//news/laughton-quoted-the-ambulatory-m-and-a-advisor-022417 Adam Laughton quoted in <i>The Ambulatory M&A Advisor</i> http://www.seyfarth.com:80//news/laughton-quoted-the-ambulatory-m-and-a-advisor-022417 Fri, 24 Feb 2017 00:00:00 -0400 <div> Adam Laughton was quoted in &quot;Hiring a New Physician to a Healthcare Practice,&quot; a February 24 story from <em>The Ambulatory M&amp;A Advisor</em> on some of the legal areas to be examined when hiring the right physician for a healthcare practice and some of the questions that need to be asked both of the employer and the potential employee. Laughton said that the legal risks depend on whether the owners are looking at a new or established physician.&nbsp;</div> <div> &nbsp;</div> <div> <a href="http://www.ambulatoryadvisor.com/new-physician-hire/">You can read the full article here</a>.</div> http://www.seyfarth.com:80//news/rubin-quoted-urban-land-magazine-022417 Joel Rubin quoted in <i>Urban Land Magazine</i> http://www.seyfarth.com:80//news/rubin-quoted-urban-land-magazine-022417 Fri, 24 Feb 2017 00:00:00 -0400 <p> Joel Rubin was quoted in &quot;Increased Employment, Pent Up Demand Driving Development in U.S. Midwest,&quot; a February 24 story from <em>Urban Land Magazine</em> on some of the legal areas to be examined when hiring the right physician for a healthcare practice and some of the questions that need to be asked both of the employer and the potential employee. Rubin said that Chicago&rsquo;s economy is robust and jobs are being created.</p> <p> <a href="http://urbanland.uli.org/development-business/special-section-midwest-3/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/milligan-and-salinas-blog-post-republished-in-global-banking-finance-review-022417 Robert Milligan and Joshua Salinas’ blog post was republished in <i>Global Banking & Finance Review</i> http://www.seyfarth.com:80//publications/milligan-and-salinas-blog-post-republished-in-global-banking-finance-review-022417 Fri, 24 Feb 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas&rsquo; blog post, &quot;TOP DEVELOPMENTS/HEADLINES IN TRADE SECRET, COMPUTER FRAUD, AND NON-COMPETE LAW IN 2016,&quot; was republished on February 24 in <em>Global Banking &amp; Finance Review</em>. The post presented the top developments/headlines for 2016 in trade secret, computer fraud, and non-compete law.</p> <p> <a href="https://www.globalbankingandfinance.com/top-developmentsheadlines-in-trade-secret-computer-fraud-and-non-compete-law-in-2016/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/MA022417-LE Trump Administration Withdraws Prior Department of Education Interpretations Regarding Title IX Protections Afforded to Transgender Students http://www.seyfarth.com:80//publications/MA022417-LE Fri, 24 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;The U.S. Departments of Justice and Education jointly issued a Dear Colleague Letter withdrawing and rescinding the Obama Administration&rsquo;s prior guidance letters which instructed schools that Title IX requires students access to sex-segregated facilities based on a student&rsquo;s gender identity. The February 22, 2017 guidance notes that the Departments made their decision &ldquo;in order to further and more completely consider the legal issues involved&rdquo; and that the Departments &ldquo;will not rely on the views expressed within them.&rdquo;</em></p> <p> On February 22, 2017, the Trump Administration expressly withdrew the Obama Administration&rsquo;s interpretation of Title IX as to protections afforded to transgender students at educational institutions receiving federal funds.</p> <p> Since 2014, the U.S. Department of Education (&ldquo;DOE&rdquo;) and other federal agencies, including the U.S. Department of Housing and Urban Development, Occupational Safety and Health Administration, U.S. Office of Personnel Management, and Equal Employment Opportunity Commission, have interpreted and enforced their respective statutes and regulations prohibiting sex discrimination to include a ban on gender identity discrimination.&nbsp;</p> <p> In a January 7, 2015 <a href="http://www.bricker.com/documents/misc/transgender_student_restroom_access_1-2015.pdf">opinion letter</a>, the DOE stated that &ldquo;[w]hen a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity&rdquo; and cited its prior statements in a December 2014 <a href="http://www2.ed.gov/about/offices/list/ocr/docs/faqs-title-ix-single-sex-201412.pdf">policy document</a> to similar effect.&nbsp; More recently, in May 2016, the DOE issued a <a href="http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf">Dear Colleague Letter</a> reiterating its position that, when a school is notified by a parent or guardian that their child will assert a gender identity different from previous representations or records, the school must begin treating the student consistent with that gender identity and that Title IX imposes no medical diagnosis or treatment requirement as a prerequisite.</p> <p> On October 28, 2016, the U.S. Supreme Court <a href="https://www.supremecourt.gov/orders/courtorders/102816zr_feag.pdf">agreed to hear</a> an appeal in the matter of <em>Gloucester County School Board v. G.G.</em>, which asks the Court to weigh in on the issue of restroom access for transgender students.&nbsp; The case appeals the <a href="http://www.scotusblog.com/wp-content/uploads/2016/09/16-273-opinion-below-4th-cir.pdf">decision</a> of the U.S. Court of Appeals for the Fourth Circuit, which concluded that a Virginia school board violated Title IX when it decided not to allow a transgender male student to use the boys&rsquo; restroom.&nbsp; The Fourth Circuit&rsquo;s ruling was based on deference to the Obama Administration&rsquo;s position that the term &ldquo;sex&rdquo; as used in Title IX incorporates gender identity.&nbsp; The school board <a href="http://www.scotusblog.com/wp-content/uploads/2016/08/Gloucester-Cty-Cert-Pet-FINAL-w-APPX.pdf">petitioned</a> the Supreme Court to hear the case arguing that the Fourth Circuit erred because the Obama Administration&rsquo;s interpretation actually altered the meaning of Title IX.</p> <p> On February 22, the Trump Administration issued its own <a href="http://stmedia.startribune.com/documents/1atransletterpdf022317.pdf">Dear Colleague Letter</a> expressly withdrawing and rescinding the DOE&rsquo;s prior interpretation, which served as the basis for the Fourth Circuit&rsquo;s deference in <em>G.G</em>.&nbsp; That letter states that the DOE&rsquo;s January 2015 and May 2016 letters &ldquo;have given rise to significant litigation&rdquo; and that the DOE believes that &ldquo;in this context, there must be due regard for the primary role of the States and local school districts in establishing educational policy.&rdquo;&nbsp; The letter further criticizes the Obama Administration&rsquo;s guidance, noting that they did not &ldquo;contain extensive legal analysis or explain how the position is consistent with the express language of Title IX, nor did they undergo any formal public process.&rdquo;&nbsp; Accordingly, the DOE has &ldquo;decided to withdraw and rescind [the prior] guidance documents in order to further and more completely consider the legal issues involved.&rdquo;&nbsp; &nbsp;&nbsp;</p> <p> Despite this change in position, the February 22 Dear Colleague Letter reminds schools of their continuing obligations to protect students from discrimination, bullying, and harassment, including LGBT students.&nbsp; The letters states that:</p> <p style="margin-left: 40px;"> &ldquo;[A]ll schools must ensure that all students, including LGBT students, are able to learn and thrive in a safe environment.&nbsp; The Department of Education Office for Civil Rights will continue its duty under law to hear all claims of discrimination and will explore every appropriate opportunity to protect all student and to encourage civility in our classrooms.&rdquo;</p> <p> As a practical matter, the withdrawal of the DOE&rsquo;s policy statements could render the case-or-controversy in <em>G.G.</em> moot or otherwise prompt the Supreme Court to remand the decision to the lower courts for reconsideration. Assuming the case moves forward, the ruling will likely have a broader impact beyond education and could also have application to cases interpreting prohibitions on sex discrimination contained in other federal statutes, including Title VII of the Civil Rights Act of 1964.&nbsp; As it stands, oral argument for the case is scheduled for March 28, 2017.&nbsp; Any decision is expected to be sharply divided amongst the Justices and, with Neil Gorsuch&rsquo;s nomination hearings only scheduled to start eight days before oral argument, it is unknown how his nomination may impact the ruling, if any.</p> <p> If the case is not decided by the Supreme Court, schools operating in States without State gender identity protections, will need to grapple with what the February 22 letter means. Absent legal mandates to the contrary, schools can continue to offer protections to their transgender students consistent with their beliefs as to what is in the best interest of students.&nbsp; Schools that seek to limit bathroom access to the sex-at-birth assigned to their students will need to grapple with how they can enact and implement such a rule while still complying with the present DOE guidance which provides that LGBT students must be assured that they &ldquo;are able to learn and thrive in a safe environment&rdquo; and cannot be subjected to discrimination. What is certain is that this issue is far from settled, and that absent a ruling in <em>G.G.</em>,&nbsp; litigation will continue in both federal and State courts as to the scope of permissible gender identity policy in schools.</p> http://www.seyfarth.com:80//publications/EL022417 Clues and Cases from Alexander Acosta’s NLRB Tenure http://www.seyfarth.com:80//publications/EL022417 Fri, 24 Feb 2017 00:00:00 -0400 <p> With the withdrawal of Andrew Puzder from consideration for the Secretary of Labor vacancy on President Donald Trump&rsquo;s cabinet, former NLRB Member Alexander Acosta has emerged as the candidate for the role. If confirmed, Mr. Acosta will become the first Hispanic member of the Trump Cabinet. &nbsp;While his confirmation has not yet been accomplished, and it is impossible to predict precisely the direction the Department of Labor will take if and when Mr. Acosta assumes the mantle of leadership, reviewing some of his words from his time as an NLRB Member is an interesting exercise, and may provide a few clues about his priorities and possible goals. &nbsp;One thing that stands out in the opinions is his desire to follow precedent and established law, even where it results in an outcome that he may not support philosophically.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/24/clues-and-cases-from-alexander-acostas-nlrb-tenure/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=76a0a93cb5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-76a0a93cb5-71423401">click here</a></p> http://www.seyfarth.com:80//publications/EL022317 What NOT To Do in an Investigation – $2 Million Willful Judgment Affirmed Where Employer “Whited-Out” and Edited Time Records http://www.seyfarth.com:80//publications/EL022317 Thu, 23 Feb 2017 00:00:00 -0400 <div> In a recent opinion, the Tenth Circuit ruled that a restaurant chain instructed its employees to lie during interviews, and provided falsified &ldquo;whited-out&rdquo; and &ldquo;edited&rdquo; employee time records, impeding a Department of Labor investigation, and found that the violation was willful <em>(Perez v. El Tequila, LLC,</em> No. 16-5002 (10th Cir., February 7, 2017).</div> <div> &nbsp;</div> <div> This case provides a rather stunning look at what, as an employer, you don&rsquo;t want to do during an official government workplace investigation. In this case the employer edited and changed time records, and then he lied about it, and then directed his employees to lie about it. The Court found that &ldquo;the records Mr. Aguirre provided during the &hellip; Investigation, known as middle sheets, were based on his false summaries of how many hours employees worked, rather than actual clock-in and clock-out times&hellip;. Mr. Aguirre withheld [the actual] time sheets during the &hellip; Investigation, and many time entries had been &ldquo;whited-out&rdquo; and edited to conform with the Federal Labor Standards Act (FLSA).&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/what-not-to-do-in-an-investigation-2-million-willful-judgment-affirmed-where-employer-whited-out-and-edited-time-records/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=bb6ec7b6bd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-bb6ec7b6bd-71256185">click here</a></div> http://www.seyfarth.com:80//publications/OMM022317-LE Money Talks: NY DOL Adopts Regulations on Employee Discussion of Wages http://www.seyfarth.com:80//publications/OMM022317-LE Thu, 23 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> New regulations from the NY Department of Labor clarify employers&rsquo; ability to limit employees&rsquo; discussion of wages.</em></p> <div> The New York Department of Labor has promulgated <a href="https://docs.dos.ny.gov/info/register/2017/feb1/pdf/rulemaking.pdf">regulations</a> that permit employers to place &ldquo;reasonable&rdquo; limitations on employees&rsquo; discussion of their wages. &nbsp;The regulations, issued February 1, 2017, provide that such limitations are permissible if they are contained in a written policy and are &ldquo;justified without reference to the content of the regulated speech, narrowly tailored to serve a significant interest, and leave open ample alternative channels for the communication of information.&rdquo;</div> <div> &nbsp;</div> <div> The regulations follow the January 2016 amendments to the New York Labor Law, which restrict employers&rsquo; ability to prohibit employees from inquiring about, discussing, or disclosing wage information. (See <a href="http://www.seyfarth.com/publications/MA112415-LE">here</a> for more information on the amendment.) The statutory amendments included a proviso that &ldquo;[a]n employer may, in a written policy provided to all employees, establish reasonable workplace and workday limitations on the time, place and manner for inquiries about, discussion of, or the disclosure of wages.&rdquo;</div> <div> &nbsp;</div> <div> The new regulations amplify that proviso. The DOL has made clear that, while employers may impose some limitations on employees&rsquo; discussion of wages, they may not &ldquo;impose restrictions on employees in such a way that unreasonably or effectively precludes or prevents inquiry, discussion, or disclosure of wages at the worksite and/or during work hours, directly or in practice.&rdquo; Without giving any examples, the regulations -- adopting concepts lifted from the First Amendment setting -- state only that the policies must be content-neutral, narrowly tailored, justified by a &ldquo;significant interest&rdquo; of the employer, and ensure that employees have &ldquo;ample alternative channels&rdquo; for their discussions.</div> <div> &nbsp;</div> <div> However, in a potentially significant carve-out, the DOL has stated that &ldquo;an employer may prohibit an employee from discussing or disclosing the wages of another employee unless the other employee provides verbal or written permission, either directly or indirectly&rdquo; (emphasis added). Such permission need not be in writing, but must be &ldquo;express&rdquo; and provided in advance, and may be withdrawn at any time. The regulations also permit limitations on wage discussions where an employee &ldquo;has access to wage information of other employees as part of that employee&rsquo;s essential job functions.&rdquo;</div> <div> &nbsp;</div> <div> Where employers choose to adopt a policy restricting discussion of wages, the policy must be in writing, and it must be communicated to employees electronically, through postings, or by paper copy. If the policy is distributed electronically, employees must be (1) provided with the ability to view and print the information while the employees are at work without cost to them, and (2) notified of their right to print such materials by the employer through the electronic notice process.</div> <div> &nbsp;</div> <p> Although posting of an employer policy is one permitted means of communication to employees, the DOL, in response to comments on an earlier draft of the regulations, expressly declined to impose a mandatory posting obligation.</p> <p> The 2016 Labor Law amendment was part of a broader set of revisions aimed at eliminating the wage gap between men and women.&nbsp; The rationale was that if employees can discuss their wages with each other, they can more readily identify and seek to remedy disparities.&nbsp; Many employers are already aware of requirements under the National Labor Relations Act that prohibit employers from interfering with employees&rsquo; right to engage in &ldquo;protected concerted activity,&rdquo; including discussion of wages.&nbsp; However, since the NLRA generally does not apply to supervisors, many employers have policies restricting managers and executives from discussing wages.&nbsp; Any such employers in New York should revisit and modify their policies and handbooks to ensure that they are compliant with both the requirements of the NLRA <em>and</em> the new NYLL regulations.</p> http://www.seyfarth.com:80//publications/WH022317 Time and Time Again http://www.seyfarth.com:80//publications/WH022317 Thu, 23 Feb 2017 00:00:00 -0400 <p> On Wednesday, the Fifth Circuit Court of Appeals granted the Justice Department&rsquo;s additional unopposed request for a 60-day extension to figure out its position on the new FLSA overtime exemption rules.</p> <p> The stated reason for the government&rsquo;s unopposed request was to &ldquo;allow incoming leadership personnel adequate time to consider the issues.&rdquo; Nevada v. DOL, No. 16-41606, Motion For Extension to File Reply (Feb. 17, 2017).</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/time-and-time-again/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=7791fafdcc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-7791fafdcc-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/WLS022317 Damages in bullying claims – the stakes are rising even higher http://www.seyfarth.com:80//publications/WLS022317 Thu, 23 Feb 2017 00:00:00 -0400 <p> The Victorian Supreme Court recently issued a stunning decision awarding an employee over $600,000 comprising $210,000 for pain and suffering and the balance for lost past and future income, despite the employee having a significant pre-existing psychiatric illness and a finding that no bullying had occurred.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/02/damages-in-bullying-claims-the-stakes-are-rising-even-higher/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=b6396e2559-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-b6396e2559-71256725">click here</a>.</p> http://www.seyfarth.com:80//publications/WC022317 Class Certification Trends For 2016 http://www.seyfarth.com:80//publications/WC022317 Thu, 23 Feb 2017 00:00:00 -0400 <p> An undeniable fact of litigation statistics is that wage &amp; hour certification decisions in 2016 increased geometrically as compared to last year. Of the 224 wage &amp; hour certification decisions in 2016, there were 195 conditional certification rulings and 29 decertification rulings. In contrast, in 2015, there were 175 wage &amp; hour certification decisions, including 153 conditional certification rulings and 22 decertification rulings. While plaintiffs&rsquo; lawyers won more conditional certification motions than compared to prior years, employers also won decertification motions at higher rates than as compared to 2015. At the same time, that led to a more rapid and robust development of case law on conditional certification and decertification issues in the wage &amp; hour context.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/class-certification-trends-for-2016/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=ad396ba0d5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-ad396ba0d5-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/PEG-22317 Money Talks: NY DOL Adopts Regulations on Employee Discussion of Wages http://www.seyfarth.com:80//publications/PEG-22317 Thu, 23 Feb 2017 00:00:00 -0400 <div> <div> <div> <p> <strong><em>Seyfarth Synopsis:</em></strong><em> New regulations from the NY Department of Labor clarify employers</em><em>&rsquo; ability to limit employees&rsquo; discussion of wages.</em></p> <p> The New York Department of Labor has promulgated <a class="cms-content-links" href="https://docs.dos.ny.gov/info/register/2017/feb1/pdf/rulemaking.pdf">regulations</a> that permit employers to place &ldquo;reasonable&rdquo; limitations on employees&rsquo; discussion of their wages. The regulations, issued February 1, 2017, provide that such limitations are permissible if they are contained in a written policy and are &ldquo;justified without reference to the content of the regulated speech, narrowly tailored to serve a significant interest, and leave open ample alternative channels for the communication of information.&rdquo;&nbsp;</p> </div> </div> <div> To view the full post, <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog022317%283%29.pdf">click here.</a></div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//news/vu-quoted-pennsylvania-record-022317 Minh Vu was quoted by the <i>Pennsylvania Record</i> http://www.seyfarth.com:80//news/vu-quoted-pennsylvania-record-022317 Thu, 23 Feb 2017 00:00:00 -0400 <p> Minh Vu was quoted in &quot;Party City loses bid to have website accessibility case thrown out,&quot; a February 23 story from the <em>Pennsylvania Record</em> on a lawsuit alleging that a company&rsquo;s website was not accessible to visually impaired consumers. Vu said that the company tried to get the case dismissed on the theory that it had already settled another case with another plaintiff about its website, and the court rejected that argument.</p> <p> <a href="http://pennrecord.com/stories/511083554-party-city-loses-bid-to-have-website-accessibility-case-thrown-out">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/boutros-mentioned-global-investigations-review-022317 Andrew Boutros mentioned in <i>Global Investigations Review</i> http://www.seyfarth.com:80//news/boutros-mentioned-global-investigations-review-022317 Thu, 23 Feb 2017 00:00:00 -0400 <p> Andrew Boutros was mentioned in &quot;Leading white-collar investigators form corporate monitorship association,&quot; a February 23 story from &nbsp;<em>Global Investigations Review</em>. Boutros, co-chair of the firm&rsquo;s white collar, internal investigations and False Claims Act practice, will serve on the Board of the new International Association of Independent Corporate Monitors (IAICM).</p> http://www.seyfarth.com:80//news/maatman-quoted-stateline-022217 Gerald Maatman quoted in <i>Stateline</i> http://www.seyfarth.com:80//news/maatman-quoted-stateline-022217 Wed, 22 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;With Growth of the Gig Economy, States Rethink How Workers Get Benefits,&quot; a February 22 story by <em>Stateline</em> on how cities and states are exploring ways to ensure nontraditional workers still have access to workers&rsquo; compensation, unemployment insurance, and other support such as help paying for health insurance. Maatman said that, in recent years, a growing number of lawsuits have been filed against companies by independent contractors seeking back wages and benefits.</p> <p> <a href="http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/02/22/with-growth-of-the-gig-economy-states-rethink-how-workers-get-benefits">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-022217 Brett Bartlett quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-022217 Wed, 22 Feb 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in &quot;Trump Administration Extension Request Clouds Overtime Litigation,&quot; a February 22 story by <em>Bloomberg BNA</em> on the Justice Department&rsquo;s request for 60 additional days to determine its position on the overtime rule appeal. Bartlett said that, for the Trump administration, the possibility that Mazzant does rule before May 1 may serve as an ancillary benefit potentially derived from the extension.</p> <p> <a href="https://www.bna.com/trump-administration-extension-n57982084165/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/TBT022217 Data Privacy and Cannabis? You’ve Come a Long Way, Baby… http://www.seyfarth.com:80//publications/TBT022217 Wed, 22 Feb 2017 00:00:00 -0400 <p> Data privacy and the cannabis industry. The growing intersection of the two is yet another sign that cannabis has come a long way from the black market. As more states legalize cannabis for medical and recreational purposes, and the industry faces greater regulation and tracking, data privacy becomes increasingly important in the cannabis world.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/02/data-privacy-and-cannabis-youve-come-a-long-way-baby/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=f3d5e24cda-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-f3d5e24cda-71540589">click here</a></p> http://www.seyfarth.com:80//publications/CP022217 Something We Said? Court Backs Off Accommodation Duty For Associational Disability http://www.seyfarth.com:80//publications/CP022217 Wed, 22 Feb 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s One Minute Memo readers will recall that we reported, back in April 2016, on a classic case of &ldquo;hard facts make bad law&rdquo;. In that case, <em>Castro-Ramirez v. Dependable Highway Express</em>, the Court of Appeal creatively held that California employers must accommodate employees who do not themselves have disabilities but who simply are associated with someone who has a disability.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/02/22/something-we-said-court-backs-off-accommodation-duty-for-associational-disability/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=d13342aa27-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-d13342aa27-71410869">click here</a></p> http://www.seyfarth.com:80//publications/EL022117 NLRB Finds Employee’s Facebook Posts Critical of Union Protected http://www.seyfarth.com:80//publications/EL022117 Tue, 21 Feb 2017 00:00:00 -0400 <p> On February 7, 2017, in<em> Laborers&rsquo; International Union of North America, Local Union No. 91,</em> 365 NLRB No. 28, the National Labor Relations Board affirmed an NLRB administrative law judge&rsquo;s ruling that found that the Laborer&rsquo;s International Union of North America Local 91 violated the National Labor Relations Act by punishing one of its members for criticizing the union&rsquo;s business manager on Facebook. We had previously blogged about the ALJ&rsquo;s earlier decision.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/nlrb-finds-employees-facebook-posts-critical-of-union-protected/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b228e1454e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b228e1454e-71256185">click here</a></p> http://www.seyfarth.com:80//publications/OMM022117-LE New York Industrial Board of Appeals Rescinds Payroll Debit Card and Direct Deposit Regulations http://www.seyfarth.com:80//publications/OMM022117-LE Tue, 21 Feb 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong>: &nbsp;Regulations that would have restricted New York employers&rsquo; ability to pay employees via payroll debit cards have been struck down by an administrative review tribunal within the State Department of Labor. Barring further regulatory or statutory action, employers remain free to use payroll debit cards subject to existing rules.&nbsp;</em></div> <div> &nbsp;</div> <div> The New York Industrial Board of Appeals has rescinded the payroll debit card and direct deposit regulations that were set to go into effect on March 7, 2017. In a <a href="http://industrialappeals.ny.gov/decisions/pdf/pr-16-120.pdf">decision</a> published on February 16, 2017, the Board found that the New York Department of Labor (&ldquo;NY DOL&rdquo;) lacks the authority to regulate financial institutions with respect to the fees incurred for payroll debit cards. &nbsp;</div> <div> &nbsp;</div> <div> A payroll debit card vendor, Global Cash Card, Inc., challenged the regulations (<a href="https://docs.dos.ny.gov/info/register/2016/sept7/pdf/rulemaking.pdf">12 NYCRR &sect; 192</a>) on the basis that they exceed the NY DOL&rsquo;s authority. The Industrial Board of Appeals (&ldquo;IBA&rdquo;) agreed, holding that the regulations exceed the NY DOL&rsquo;s statutory authority under sections 192 and 199 of the New York Labor Law by regulating banking services provided by financial institutions. Such regulation, the IBA held, is the exclusive responsibility of the New York Department of Financial Services, which governs the fees that financial institutions may charge for banking services, including those related to checking accounts and licensed check cashers. The IBA also held that the regulations conflicted with the NY DOL&rsquo;s prior opinion letters on the subject, specifically that the regulations require free withdrawals from ATMs and bank tellers when the NY DOL&rsquo;s previous position was that one or the other would suffice.&nbsp;</div> <div> &nbsp;</div> <div> Despite its rejection of the regulations, the IBA agreed with the NY DOL that there is a valid concern that certain employees who do not have access to traditional bank accounts may incur significant fees when receiving wages by payroll debit card. The decision noted that NYLL &sect; 193 already prohibits employers from charging an employee to receive his or her wages. &nbsp;</div> <div> &nbsp;</div> <div> The NY DOL has three options in response to the IBA&rsquo;s decision: &nbsp;bring an Article 78 proceeding in New York Supreme Court to challenge the decision, revise the regulations, or do nothing. It is too soon to tell which option it will choose. The State Legislature may also decide to enact a statutory remedy.</div> <div> &nbsp;</div> <div> The NY DOL&rsquo;s opinion letters state only that an employee must be allowed an unlimited amount of withdrawals (via either ATM or bank teller) at a bank branch in close proximity to the employee, and employees must be given notice of the terms and conditions associated with using a payroll debit card, including a full disclosure of fees, but does not regulate their use further.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/MA022117-LE UPDATE: Los Angeles Ban the Box - New Individualized Assessment and Reassessment Form http://www.seyfarth.com:80//publications/MA022117-LE Tue, 21 Feb 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong> <em>The City of Los Angeles recently issued its Rules and Regulations Implementing the Fair Chance Initiative For Hiring (Ban the Box) Ordinance, providing critical guidance to employers on compliance with the new ban the box ordinance.</em></p> <p> <em>UPDATE:&nbsp; The LA Bureau of Contract Administration has posted a &ldquo;Fair Chance Initiative for Hiring Ordinance (FCIHO) Individualized Assessment and Reassessment Form&rdquo; (the &ldquo;Form&rdquo;).&nbsp; It is unclear whether the Bureau expects employers to use this Form verbatim or whether modifications are permitted.&nbsp; Until the Bureau clarifies expectations, we recommend using the Form the Bureau has posted.&nbsp; The Bureau&rsquo;s Form is available </em><a href="http://bca.lacity.org/site/pdf/eeo/FCIHO%20Individual%20Assessment%20and%20Reassessment%20Form.pdf"><em>here</em></a><em>.</em></p> <p> <em>The Form combines the two separate form requirements (individualized assessment and reassessment) into one document, which is likely easier for administrative purposes.&nbsp; The portion of the document beginning &ldquo;To be completed for a Reassessment&rdquo; need only be completed if the applicant provides additional information after receipt of the pre-adverse package.</em>&nbsp;&nbsp;</p> <p> As previously <a href="http://www.seyfarth.com/publications/OMM013017-LE">reported</a>, the Los Angeles Fair Chance Initiative for Hiring (the &ldquo;Ordinance&rdquo;) became effective on January 22, 2017, with enforcement beginning on July 1, 2017. The Department of Public Works Bureau of Contract Administration (the &ldquo;Department&rdquo;), who bears administrative responsibilities for the Ordinance, just issued its <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Ordinance%20Rules%20and%20Regulations%20Final.pdf">Rules and Regulations</a> (the &ldquo;Regs&rdquo;) to guide private employers (and city contractors/subcontractors) with compliance.</p> <p> <strong>New Definitions</strong></p> <p> An &ldquo;Applicant&rdquo; is someone who submits an application or other documentation for employment to a covered employer <em>regardless of location</em>. In other words, if the prospective employee will perform at least two hours of work during an &ldquo;Average Week&rdquo; (determined by the last 4 complete weeks before the position is advertised) within the geographic boundaries of the City, it does not matter where the individual is located when applying for the position.</p> <p> &ldquo;Criminal History&rdquo; refers to information regarding <em>convictions</em> (i.e., a plea, verdict or finding of guilt regardless of whether sentence is imposed by the court), in any format (oral, written, etc.), and from any source (including, the individual him/herself). Consideration of arrests (or pending records) is impermissible.</p> <p> &ldquo;Employee&rdquo; is defined broadly to include full-time, part-time, seasonal, and temporary workers. Owners, management, and supervisors are also included&mdash;as are independent contractors&mdash;so long as they meet the definition of Employee. As a reminder, the Ordinance applies to any private employer that employs at least 10 individuals.</p> <p> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Notable exceptions:</p> <ul> <li style="margin-left: 1in;"> Time spent traveling through Los Angeles with no employment-related stops (except for refueling or personal meals) is <strong>NOT</strong> considered time worked within the City.</li> <li style="margin-left: 1in;"> An individual who lives in Los Angeles and works from home, including telecommuting, is an Employee in the City.</li> <li style="margin-left: 1in;"> An individual who lives outside of Los Angeles works from home is <strong>NOT</strong> an Employee, even if the employer is a Los Angeles-based company, unless the individual also works in the City two hours or more during an Average Week.</li> </ul> <p> &nbsp;</p> <p> An &ldquo;Individualized Assessment&rdquo; is a written determination made by the Employer whether there is an effective link between the Applicant&rsquo;s Criminal History and the risks inherent in the job duties and responsibilities in question.</p> <p> &ldquo;Temporary Help Firms&rdquo; are businesses that recruit, hire, and assign their own employees to temporarily work at other organizations. Specific to these businesses, a background check can be performed after a conditional offer to include the applicant in a pool of individuals from which the applicant may be sent to temporary positions.</p> <p> <strong>Application and Interview Procedure</strong></p> <p> Questions regarding an Applicant&rsquo;s Criminal History cannot be included on employment applications. The Regs propose that multistate employers can either: completely remove any question pertaining to criminal history from the employment application across the board; create and use applications specific to positions in Los Angeles; or include a disclaimer next to the question asking for criminal history, such as &ldquo;For jobs located in the City of Los Angeles, you should not answer this question.&rdquo;</p> <p> Similar to the New York City Fair Chance Act, the Regs clarify that the Ordinance also prohibits statements such as &ldquo;criminal background checks must be passed to be considered for a position.&rdquo;</p> <p> Employers may not ask about an Applicant&rsquo;s Criminal History until a conditional offer of employment has been made to the Applicant. The conditional offer is explicitly defined as &ldquo;conditioned only on an assessment of the Applicant&rsquo;s Criminal History&rdquo; and the duties and responsibilities of the position. The Regs, however, provide no clarification as to whether an offer conditioned upon the successful passing of <em>any other type of screen</em> (e.g., drug testing, physical exam) will still constitute a conditional offer for purposes of this Ordinance.</p> <p> <strong>Employer Assessment of Criminal History</strong></p> <p> In conducting an Individualized Assessment, employers are required to, at a minimum, consider the list of factors identified by the EEOC Enforcement Guidance issued in 2012, such as: the nature and gravity of the offense; whether the offense was recent; and the nature of the job duties and responsibilities. The written Individualized Assessment must be provided to the Applicant, accompanied by any other documentation or information supporting the adverse action (i.e., rescission of the offer).</p> <p> <strong>The &ldquo;Fair Chance Process&rdquo;</strong></p> <p> Employers are required to follow the &ldquo;Fair Chance Process,&rdquo; which includes allowing an Applicant to provide information about the accuracy of the Criminal History information, evidence of rehabilitation, or other mitigating factors. The employer must wait 5 business days from the time of sending the written pre-adverse action notification. If the Applicant does not submit anything in that time, the employer can proceed with the adverse action.</p> <p> On the other hand, if the Applicant submits any information, the employer must perform a reassessment to account for the new information, following the same process as before. After the reassessment, the employer should notify the Applicant of the final decision and provide him/her with a copy of the written reassessment.</p> <p> <strong>Notice and Posting Requirements </strong></p> <p> Employers must state in all advertisement or solicitations that it will consider qualified applicants with Criminal Histories in a manner consistent with the requirements of the Ordinance. This is analogous to the San Francisco Fair Chance Act.</p> <p> Employers also must post a notice informing Applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site, or other location in the City under the employer&rsquo;s control and visited by Applicants. The Department has provided a <a href="http://bca.lacity.org/site/pdf/eeo/Notice%20to%20Applicants%20and%20Employees%20for%20Private%20Employers.pdf">form of notice</a>. Employers also must send a copy of the notice to each labor union with which it has a collective bargaining agreement covering Employees located in the City.</p> <p> <strong>Maintenance of Records</strong></p> <p> Employers are required to maintain Individual Assessments, <em>and any other type of documentation,</em> to demonstrate compliance with the Ordinance, for 3 years following receipt of the employment application. Such documents include all records related to Applicant&rsquo;s employment applications, written Individualized Assessment, and Fair Chance reassessment. It is unclear from the Regs, however, whether records for <em><u>all</u></em> Applicants (not just those with Criminal History) should be maintained for 3 years. Given this potential confusion, employers may want to err on the conservative interpretation.</p> <p> <strong>Exceptions</strong></p> <p> The Ordinance contains several exceptions, such as employers who are required by law to perform background checks, or those who are legally prohibited from hiring an Applicant who has been convicted of a crime. The Ordinance also does not apply to an individual who, because of a criminal conviction, cannot lawfully hold the position, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. The Ordinance also does not apply to an Applicant required to possess or use a firearm in the course of employment. Significantly, the Department does not assume that an entire employer or industry will receive an exception. Instead, the Department will investigate how an exception applies to a particular position or role.</p> <p> Employers claiming an exception must be able to show that the position falls under the enumerated exceptions above. Similar to New York City&rsquo;s Stop Credit Discrimination in Employment Act, the Department requires employers to keep a log or records of their use of such exception for a period of 3 years following the receipt of an Applicant&rsquo;s application. The exception log should include which exception is claimed and how the position fits into the exception and the federal, state or local law allowing the exception. The Department recommends that employers inform the Applicant of the exception they believe applies.</p> <p> <strong>Best Practices</strong></p> <p> To the extent not yet undertaken, employers in the City of Los Angeles should review their employment advertisements and applications and take appropriate steps towards compliance, such as removing inquiries into criminal history or adding the suggested disclaimer. Employers should also become familiar with the newly posted written assessment and reassessment Forms that are required under the Ordinance. &nbsp;Likewise, the requisite notices should be posted/displayed. Most importantly, if any of the exceptions under the Ordinance apply, employers should explore which positions justify each exception and begin to keep an exception log in the event of challenge/audits. Although the additional guidance provides some welcome clarification, several open issues remain. Employers seeking additional clarification of these requirements should consult with experienced counsel to further assess the practical applications and compliance requirements.&nbsp;</p> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-022017 Brett Bartlett quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-022017 Mon, 20 Feb 2017 00:00:00 -0400 <div> Brett Bartlett was quoted in &quot;PUNCHING IN: ENTER ACOSTA, DNC VOTE NEARS,&quot; a February 20 story by <em>Bloomberg BNA</em> on where new Labor Secretary nominee Alexander Acosta stands on the overtime rule. Bartlett assumes that Acosta would be looking at the Texas litigation and the appeal very carefully and in a stratified way, simply because he&rsquo;s a very bright guy and the overtime case out there is so complicated at present.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://www.bna.com/trump-administration-extension-n57982084165/">You can read the full article here</a>.</div> http://www.seyfarth.com:80//news/daley-quoted-bloomberg-BNA-021717 James Daley quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/daley-quoted-bloomberg-BNA-021717 Fri, 17 Feb 2017 00:00:00 -0400 <p> James Daley was quoted in &quot;Virtual Law Offices Offer Flexibility, Ability to Draw Talent,&quot; a February 17 story from <em>Bloomberg BNA</em> on the gaining popularity of the virtual law office. Daley explained that virtual firms are more often than not boutique, and rely on a specific legal need to thrive.</p> <p> <a href="https://www.bna.com/virtual-law-offices-n57982083991/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM021717-LE D.C. Fair Credit in Employment Amendment Act Prohibits Inquiry Into Prospective and Current Employees’ Credit Information http://www.seyfarth.com:80//publications/OMM021717-LE Fri, 17 Feb 2017 00:00:00 -0400 <p> <strong>Seyfarth Synopsis</strong></p> <p> The District of Columbia has become the newest jurisdiction to prohibit employers from inquiring into their job applicants&rsquo; and current employees&rsquo; credit information.&nbsp;</p> <p> <strong>The Act</strong></p> <p> On February 15, 2017, D.C. Mayor Muriel Bowser signed <a href="http://lims.dccouncil.us/Download/33953/B21-0244-Amendment1.pdf">B21-0244</a> (now known as A21-0673), &ldquo;The Fair Credit in Employment Amendment Act of 2016&rdquo; (the &ldquo;Act&rdquo;), amending the D.C. Human Rights Act of 1977 to prohibit employers, including employment agencies and labor organizations, from taking discriminatory action against prospective and current employees based on their credit information (defined as &ldquo;any written, oral, or other communication of information bearing on an employee&rsquo;s creditworthiness, credit standing, credit capacity, or credit history&rdquo;).&nbsp; Specifically, employers are prohibited from directly or indirectly requiring, requesting, suggesting, or causing any employee to submit credit information and from using, accepting, referring to or inquiring into credit information unless the particular position is exempt from the law&rsquo;s prohibitions.</p> <p> Mayor Bowser&rsquo;s signature will be followed by a 30-day period of congressional review (as provided by the D.C. Home Rule Act) and publication in the D.C. Register before the law becomes effective.&nbsp;</p> <p> <strong>Exemptions</strong></p> <p align="left"> Employers are permitted to inquire into an applicant&rsquo;s or employee&rsquo;s credit history is permitted if the position falls under one of the following exemptions:</p> <ul> <li> The employer is otherwise required by D.C. law to require, request, suggest or cause the employee to submit credit information, or use, accept, refer to or inquire into an employee&rsquo;s credit information;</li> <li> The employee is applying for a position as or is employed as a police officer, as a special police office or campus police officer, or in a position with law enforcement function;</li> <li> For employees within the Office of the Chief Financial Officer of D.C.;</li> <li> The employee is required to possess a security clearance under D.C. law;</li> <li> For disclosures by D.C. government employees of their credit information to the Board of Ethics and Government Accountability or the Office of the Inspector General, or the agencies&rsquo; use of such disclosures;</li> <li> For financial institutions, where the position involves access to personal financial information.&nbsp; Financial institutions are defined as &ldquo;a bank, savings institution, credit union, foreign bank, trust company, non-depository financial institution, or any other person which is regulated, supervised, examined, or licensed [or which has applied to be regulated, supervised, examined, or licensed] by the Department of Insurance, Securities, and Banking; . . . which is subject to the regulation, supervision, examination, or licensure by the Department of Insurance, Securities, and Banking; or which is engaged in an activity covered by the D.C. Banking Code;&rdquo; or</li> <li> Where an employer requests or receives credit information pursuant to lawful subpoena, court order or law enforcement investigation.</li> </ul> <p> &nbsp;</p> <p> <strong>Potential Damages</strong></p> <p> The D.C. Office of Human Rights will investigate charges of violations of the Act.&nbsp; An employer who is found to have violated the law may be subject to fines ranging from $1,000 to $5,000.&nbsp; Specifically, employers will face a $1,000 fine for the first violation, a $2,500 fine for the second violation, and a $5,000 for each violation thereafter.&nbsp; Most significantly, individuals also will have a private right of action for violations of the Act, just as they would for any other unlawful discriminatory employment practice under the D.C. Human Rights Act.&nbsp;</p> <p> <strong>Employer Outlook</strong></p> <p> D.C. employers should review their practices to ensure compliance with the new requirements, including that their employment practices do not directly or indirectly request credit information unless an exemption is met. Employers who seek credit information for positions that fall into one of the exemptions to the Act should also review the new requirements for compliance and additional process guidance.&nbsp; Additionally, employers should review their applications and other employment-related documents to ensure that there are no references to the procurement or use of credit information.&nbsp; Employers in multi-state jurisdictions should ensure compliance both with this Act and with the laws of other applicable jurisdictions that regulate employers&rsquo; use of credit information.&nbsp;</p> <p> We will update as soon as we learn when the law becomes effective</p> http://www.seyfarth.com:80//publications/WH021717 Wage & Hour Litigation Blog: Seyfarth Shaw Submits Comments And Testimony On The Proposed Amendments To Rule 23 http://www.seyfarth.com:80//publications/WH021717 Fri, 17 Feb 2017 00:00:00 -0400 <p> As some employers may be aware, changes are coming to Rule 23 class action requirements. What exactly those changes will be, and when those changes will go into effect, however, are still to be determined.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/rule-23-class-certification/seyfarth-testimony-on-proposed-amendments-to-rule-23/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=16929d3b31-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-16929d3b31-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/FF021717 When the Federal Regulations Go Away, State and Local Laws Come to Play http://www.seyfarth.com:80//publications/FF021717 Fri, 17 Feb 2017 00:00:00 -0400 <p> President Trump&rsquo;s initial nominee for Secretary of Labor, Andy Puzder, withdrew from consideration on Wednesday.</p> <p> To read the entire blog post,<a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/02/FiveonFriday021717.pdf"> click here</a></p> http://www.seyfarth.com:80//publications/WC021717 Reminder – Sign Up Now For Seyfarth’s 13th Annual Workplace Class Action Report Webinar! http://www.seyfarth.com:80//publications/WC021717 Fri, 17 Feb 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Annual Workplace Class Action Report Webinar is next Tuesday, February 21, 2017. Click here to register and attend. It&rsquo;s free!</p> <p> As we face a new year, Seyfarth is pleased to offer strategic guidance through our 13th Annual Workplace Class Action Litigation Report.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/reminder-sign-up-now-for-seyfarths-13th-annual-workplace-class-action-report-webinar/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=b09226fbb0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-b09226fbb0-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/WC021617 Workplace Class Action Blog: Seyfarth Shaw Submits Comments And Testimony On The Proposed Amendments To Rule 23 http://www.seyfarth.com:80//publications/WC021617 Thu, 16 Feb 2017 00:00:00 -0400 <p> As some employers may be aware, changes are coming to Rule 23 class action requirements. What exactly those changes will be, and when those changes will go into effect, however, are still to be determined.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/seyfarth-shaw-submits-comments-and-testimony-on-the-proposed-amendments-to-rule-23/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=b09226fbb0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-b09226fbb0-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM021617-LE UK Government to Implement Immigration Skills Charge http://www.seyfarth.com:80//publications/OMM021617-LE Thu, 16 Feb 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: &nbsp;</strong>The UK government will introduce an &ldquo;Immigration Skills Charge&rdquo; in April 2017 that will substantially increase the cost for companies to sponsor Tier 2 workers in the UK.</em></div> <div> &nbsp;</div> <div> <div> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></div> <div> &nbsp;</div> <div> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. &nbsp;If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></div> </div> <div> &nbsp;</div> <div> <strong>UK Immigration: Introduction of Skills Charge&nbsp;</strong></div> <div> &nbsp;</div> <div> The Home Office confirmed that the &ldquo;Immigration Skills Charge&rdquo; will come into force, subject to parliamentary approval, on April 6, 2017. The additional charge will significantly increase the cost for companies to sponsor non-European Economic Area (&ldquo;EEA&rdquo;) nationals to work in the UK under Tier 2, which is the work permit route.</div> <div> &nbsp;</div> <div> <strong>How will the Skills Charge work?&nbsp;</strong></div> <div> &nbsp;</div> <div> The Skills Charge is a fee payable by employers for each certificate of sponsorship assigned on or after April 6, 2017. It will apply to Tier 2 migrants who apply from outside the UK or those inside the UK who submit extension or change of employer applications. The Skills Charge will apply to both the Tier 2 Intra-Company Transfer (&ldquo;ICT&rdquo;) and Tier 2 General categories (subject to the exceptions below).&nbsp;</div> <div> &nbsp;</div> <div> The fee will be &pound;1,000 GBP per year per migrant, with a reduced fee of &pound;364 for small or charitable organizations. The fee must be paid in advance for the full duration of the certificate of sponsorship. &nbsp;</div> <div> &nbsp;</div> <div> The Skills Charge will not apply to the following:</div> <div> &nbsp;</div> <ul> <li> Tier 2 ICT or General migrants whose certificate of sponsorship is issued before April 6, 2017 applying to extend his or her Tier 2 visa or change sponsors in the UK;</li> <li> Tier 2 ICT Graduate Trainees;</li> <li> Tier 2 workers in a specified Ph.D. level occupation;</li> <li> Tier 4 students changing status to Tier 2 General; and,</li> <li> Family members of Tier 2 migrants.</li> </ul> <div> &nbsp;</div> <div> The Department of Education will use the funds collected from the Skills Charge to implement training programs and subsidize apprenticeships with the aim of upskilling the local labor force.</div> <div> &nbsp;</div> <div> <strong>How will the Skills Charge affect employers?&nbsp;</strong></div> <div> &nbsp;</div> <div> The cost of sponsoring non-EEA nationals to work in the UK has increased substantially in recent years. In April 2015, the government introduced the &ldquo;health surcharge&rdquo; for Tier 2 General migrants and family members (&pound;200 per person per year), which is likely to be extended to Tier 2 ICTs and their family members in 2017. Through these policies of increasing costs, the government is effectively restricting the number of non-EEA nationals working in the UK through financial means.&nbsp;</div> <div> &nbsp;</div> <div> Employers must factor in the additional costs of the Skills Charge for all certificates of sponsorship assigned on or after April 6, 2017. Employers should consider whether it is possible to proceed with applications now to avoid the additional costs of the skills charge.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/PP021617-LE New Secretary of Labor Designee http://www.seyfarth.com:80//publications/PP021617-LE Thu, 16 Feb 2017 00:00:00 -0400 <div> <p> The President announced that Alex Acosta, currently Dean of the Florida International School of Law will be the next nominee for Secretary of Labor following the withdrawal of Andrew Puzder. Acosta is a native of Miami, Florida. He received his bachelor&#39;s degree in economics from Harvard College and his law degree from Harvard Law School.</p> <p> Following law school, Acosta served as a law clerk to Samuel Alito, then a judge on the United States Court of Appeals for the Third Circuit, from 1994 to 1995. Acosta then worked at the Washington, D.C. office of the law firm Kirkland &amp; Ellis, where he specialized in employment and labor issues. While in Washington, Acosta taught classes on employment law, disability-based discrimination law, and civil rights law at the George Mason University School of Law.</p> <p> Acosta served as a member of the National Labor Relations Board, where he participated in or authored more than 125 opinions. Following the NLRB, he was Assistant Attorney General for the Civil Rights Division of the United States Department of Justice; becoming the first Hispanic to hold the rank of Assistant Attorney General.&nbsp; More recently, Acosta served as the U.S. Attorney for Southern District of Florida, and was the longest serving U.S. Attorney in the District since the 1970s. In that position, Acosta prosecuted Jack Abramof, Jose Padilla and several public corruption cases.</p> On December 31, 2013 Acosta became the new chairman of U.S. Century Bank,&nbsp;the largest domestically-owned Hispanic community bank in Florida and one of the fifteen largest Hispanic community banks in the nation.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/EL021617 National Strikes and Boycott Activities Planned for February 16 & 17 (And Beyond) (Employment Law Lookout) http://www.seyfarth.com:80//publications/EL021617 Thu, 16 Feb 2017 00:00:00 -0400 <p> Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/national-strikes-and-boycott-activities-planned-for-february-16-17-and-beyond/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=bb1e4eccce-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-bb1e4eccce-71256185">click here</a></p> http://www.seyfarth.com:80//publications/ National Strikes and Boycott Activities Planned for February 16 & 17 (And Beyond) (Employer Relations) http://www.seyfarth.com:80//publications/ Thu, 16 Feb 2017 00:00:00 -0400 <p> Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/16/national-strikes-and-boycott-activities-planned-for-february-16-17-and-beyond/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=9530bab798-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-9530bab798-71423401">click here</a></p> http://www.seyfarth.com:80//publications/OMM021617-LE2 Court of Appeal Upholds LAPD Recruits’ Failure to Accommodate Claim http://www.seyfarth.com:80//publications/OMM021617-LE2 Thu, 16 Feb 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>:</strong> <em>The Court of Appeal held that police officer recruits who were not &ldquo;qualified individuals&rdquo; under FEHA for purposes of their discrimination claim could nonetheless prevail on their claim for failure to provide a reasonable accommodation, where they were qualified to fill a reassigned position. The City was required to temporarily assign injured recruit officers to light-duty administrative assignments in light of the City&rsquo;s past practice of doing so. But a jury award of future economic damages through the time of retirement was overturned as speculative.</em></p> <p> <strong>The Facts</strong></p> <p> In <em>Atkins v. City of Los Angeles</em>, five LAPD recruits injured at the Police Academy sued the City after they failed to obtain the necessary medical clearance to return to the Academy and lost their jobs at the Department. In a jury trial, the recruits proved that under prior City policy, they would have been transferred to a program called &ldquo;Recycle,&rdquo; in which they could perform light-duty jobs until they were ready to return to the Academy. But then the City changed its Recycle Program to impose a six-month limit on how long a recruit can stay in the Program. The City informed the recruits, already recuperating in the Program, that they had to return to the Academy or lose their jobs. The recruits, unable to obtain clearance to return to the Academy, lost their jobs. They sued for disability discrimination, failure to accommodate, and failure to engage in the interactive process.</p> <p> A Los Angeles jury found the City had violated the Fair Employment and Housing Act (FEHA) by discriminating against them because of their disabilities, by failing to provide them with reasonable accommodations, and by failing to engage in the interactive process. The jury awarded the recruits over $12 million in damages, including economic losses through the time of their hypothetical retirements as veteran police officers.</p> <p> The City appealed, arguing that the recruits were not &ldquo;qualified individuals&rdquo; under FEHA, because they could not perform the essential functions of a police recruit position with or without reasonable accommodation, and because the City was not required to accommodate the recruits by making their temporary light-duty positions permanent or by transferring them to another job with the City. The City further argued that, because there was no open position available for the recruits, the City did not have to continue the interactive process.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal agreed with the City that the recruits were not &lsquo;qualified individuals&rsquo; under FEHA for purposes of a discrimination claim. The recruits had to show they could perform the essential functions of a police recruit to be qualified individuals. The Court of Appeal disregarded, in this context, the recruits&rsquo; argument that the relevant question was whether they could perform the essential functions of the positions to which they sought reassignment, including another civil City position or the light-duty position under the Recycle Program. The Court of Appeal explained that the recruits conflated the elements of a discrimination claim under Government Code section 12940(a) with the elements of an accommodation claim under section 12940(m). The Court of Appeal found that the goal of the Academy&rsquo;s training program was to ensure that police recruits could perform as required in the field, and because the recruits could not pass that training program, they were not &ldquo;qualified individuals.&rdquo;</p> <p> The Court of Appeal held differently, however, as to the accommodation claim. Because FEHA defines &ldquo;reasonable accommodation&rdquo; to include &ldquo;reassignment to a vacant position,&rdquo; (Gov&rsquo;t Code &sect;&nbsp;12926(p)(2)), an employer may violate section 12940(m) if the employer fails to reasonably accommodate the employee through reassignment to a vacant position whose essential functions the employee can perform. To be a &ldquo;qualified individual&rdquo; under section 12940(m), the employee need only prove an ability to perform the essential functions of the reassigned position.</p> <p> The Court of Appeal found that reassigning the recruits to the Recycle Program was a required option. While FEHA generally does not require indefinite accommodation of temporarily injured employees, the Court of Appeal found that the City violated FEHA because it denied the recruits the longstanding practice of allowing injured recruits to remain in the Recycle Program indefinitely until they healed and could return to the Academy, or until their disabilities became permanent. The Department changed this policy&mdash;to now allow reassignment for no more than six months&mdash;only after the recruits were injured and already in the Recycle Program. The Court of Appeal concluded that while FEHA does not require the Department to indefinitely accommodate recruit officers injured <em>after</em> the change in policy, the City could not apply the policy change retroactively to the recruits, to treat them differently from other recruit officers who were injured before the change in policy.</p> <p> The Court of Appeal also rejected the City&rsquo;s defense that maintaining the recruits&rsquo; reassignment would have been an undue burden, in that the City had allowed other recruits to remain in the Program longer than six months. While the City cited &ldquo;economic burdens&rdquo;&mdash;including a hiring freeze that prevented it from hiring new recruits&mdash;the City failed to demonstrate that it had sought to hire, and was prevented from hiring, new recruits.</p> <p> Finally, the Court of Appeal held that the award of future economic damages was speculative. The recruits were trainees who had completed only a few weeks of training, but the jury assumed that they would have passed the Academy, completed their probationary periods, become career officers, and eventually retired from the Department after a long career. Therefore, the Court of Appeal ordered a new trial on the claim for future economic damages.</p> <p> <strong>What <em>Atkins</em> Means for Employers</strong></p> <p> While the Court of Appeal conceded that employers can make a policy change to limit the duration of its light-duty rehabilitation programs for temporarily injured employees, an employer cannot retroactively apply that policy to employees already reassigned to light duty on an indefinite basis. Such a policy change may apply only to newly affected employees. Further, while an injured employee might not be a &ldquo;qualified individual&rdquo; under the general discrimination provisions of FEHA, that same employee might qualify under the accommodation provisions, entitling the employee to a reassignment.</p> http://www.seyfarth.com:80//news/labor-lawyer-glenn-smith-joins-seyfarth-in-new-york Labor Lawyer Glenn Smith Joins Seyfarth in New York http://www.seyfarth.com:80//news/labor-lawyer-glenn-smith-joins-seyfarth-in-new-york Thu, 16 Feb 2017 00:00:00 -0400 <div> <em>Former Leader at Littler Mendelson Joins Seyfarth&rsquo;s Preeminent Labor &amp; Employment Department</em></div> <div> &nbsp;</div> <div> <strong>New York &ndash; February 16, 2017</strong> &ndash; Seyfarth Shaw LLP announced today that Glenn J. Smith has joined the firm&rsquo;s Labor &amp; Employment department as a partner in New York. Smith joins Seyfarth following 11 years at Littler Mendelson PC, where he recently served as a member of the firm&rsquo;s board of directors and served as the office managing shareholder of its Newark, New Jersey office.</div> <div> &nbsp;</div> <div> Smith holds a comprehensive national and local practice representing a variety of employers in all aspects of labor and employment law, including large scale and multi-employer collective bargaining. He frequently represents clients before the National Labor Relations Board (NLRB), as well before the Equal Employment Opportunity Commission (EEOC), the Department of Labor (DOL), and multiple federal and state courts.</div> <div> &nbsp;</div> <div> &ldquo;It&rsquo;s exciting to welcome such a prominent labor lawyer to Seyfarth at a time when labor concerns are surging across the country,&rdquo; said Lisa Damon, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;Glenn is also a veteran law firm leader and former general counsel who brings the type of firsthand experience that is invaluable to clients navigating today&rsquo;s market.&rdquo;</div> <div> &nbsp;</div> <div> Smith regularly represents employers in conflicts involving labor unions, arbitrations and unfair labor practice litigation and often provides strategic labor relations counselling and planning, including items relating to relocations, plant closures, job automation and subcontracting. Additionally, he has expertise in employment agreements and compensation arrangements, employee benefit plans including Taft-Hartley benefit funds, post-employment restrictive covenants and wage and hour matters.</div> <div> &nbsp;</div> <div> &ldquo;Glenn is a well-recognized and respected lawyer throughout the East Coast, with deep connections in New Jersey,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office. &ldquo;Glenn truly understands the many emerging employment issues facing companies today, and he is the latest strategic addition to our preeminent Labor capabilities across the country.&rdquo;</div> <div> &nbsp;</div> <div> &ldquo;I&rsquo;m eager to start practicing at Seyfarth, a firm of great tradition, stability and strength in the labor space,&rdquo; explained Smith. &ldquo;I have had the privilege to know and work in the past with a number of the outstanding lawyers at Seyfarth, and I am honored to join the team.&rdquo;</div> <div> &nbsp;</div> <div> Earlier in his career, Smith served as general counsel of the Grand Union Company, a regional food retailer with annual sales then of $2 billion. He also served as general counsel for Duane Reade, a New York based pharmacy chain with 8,000 employees and annual sales at the time of $1 billion. In addition, Smith served for a brief time as deputy general counsel of the metro division of C&amp;S Wholesale Grocers, Inc., a national food wholesaler that had acquired the assets of Grand Union.&nbsp;</div> <div> &nbsp;</div> <div> A highly ranked lawyer by <em>Chambers and Partners</em> and a frequent speaker, Smith received a J.D. from Seton Hall University School of Law. He earned a M.B.A. and B.S./B.A. from Seton Hall University&rsquo;s Stillman School of Business, where he then served as a graduate fellow and an adjunct faculty member, teaching the MBA program&rsquo;s capstone course.</div> <div> &nbsp;</div> <div> Smith&rsquo;s arrival follows the recent addition of Labor &amp; Employment partners Leon Rodriguez, former director of U.S. Citizenship and Immigration Services at the Department of Homeland Security, to Seyfarth in Washington, D.C. and Robert Fisher in Boston. In 2016, Labor &amp; Employment partners John L. Telford, Jr. and John A. &ldquo;Jack&rdquo; Lambremont also joined Seyfarth from Littler in Atlanta.&nbsp;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.&nbsp;</div> http://www.seyfarth.com:80//news/seyfarth-lawyers-earn-top-recognition-2017-doyles-guide-australia Seyfarth Lawyers Earn Top Recognition in 2017 <i>Doyles Guide</i> in Australia http://www.seyfarth.com:80//news/seyfarth-lawyers-earn-top-recognition-2017-doyles-guide-australia Wed, 15 Feb 2017 00:00:00 -0400 <div> Seyfarth is pleased to announce that partners in both the Sydney and Melbourne offices were recognized again as leading employment lawyers in the 2017 <em>Doyles Guide</em>. The firm was named a first tier &lsquo;Leading Employment Law Firm (Employer Representation)&rsquo; in Melbourne and Sydney. In addition, this marks the second year where the firm was recognised by <em>Doyles </em>as a leading &ldquo;Workplace Health &amp; Safety Law Firm&rdquo; in Melbourne and Sydney. <a href="http://doylesguide.com/?s=Seyfarth+Shaw">You can read more here</a>.</div> <div> &nbsp;</div> <div> A complete list of those partners ranked as top in their field is listed below.</div> <div> &nbsp;</div> <div> <strong>Sydney</strong></div> <div> Rachel Bernasconi</div> <div> Paul Cutrone</div> <div> Ben Dudley</div> <div> Darren Perry</div> <div> Justine Turnbull</div> <div> &nbsp;</div> <div> <strong>Melbourne</strong></div> <div> Chris Gardner</div> <div> Jane Hall</div> <div> Henry Skene</div> <div> Michael Tamvakologos</div> http://www.seyfarth.com:80//news/seyfarth-names-lawyers-leadership-council-legal-diversity Seyfarth Names Lawyers to Leadership Council on Legal Diversity http://www.seyfarth.com:80//news/seyfarth-names-lawyers-leadership-council-legal-diversity Wed, 15 Feb 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP is pleased to announce that lawyers Julie G. Yap (Labor &amp; Employment Partner - Sacramento), Christopher Bordenave (Real Estate Associate - Los Angeles) and Ephraim Pierre (Labor &amp; Employment Associate - New York) have been named to the Leadership Council on Legal Diversity (LCLD).</div> <div> &nbsp;</div> <div> Yap was named a member of the 2017 class of Fellows, participating in a landmark program created by LCLD to identify, train, and advance the next generation of leaders in the legal profession. The LCLD Fellows program, which has trained more than a thousand mid-career attorneys since 2011, is one of LCLD&rsquo;s most important initiatives.</div> <div> &nbsp;</div> <div> Bordenave and Pierre were named members of the 2017 class of Pathfinders, participating in a program designed by LCLD to train early-career attorneys in critical career development strategies including leadership and the building of professional networks. The LCLD Pathfinder Program is now in its second year as a full-scale program, having been piloted in 2015 among a select number of LCLD Member law firms and corporations. It is an initiative that has filled a gap in LCLD programming, targeting junior associates and the youngest members of corporate law departments.</div> <div> &nbsp;</div> <div> &ldquo;It is with great pride, that we nominate Julie, Chris and Ephraim to these important roles,&rdquo; said Laura Maechtlen, co-chair of Seyfarth&rsquo;s Diversity and Inclusion Action Team. &ldquo;These are outstanding lawyers who exemplify our firm&rsquo;s core values and will serve the Council well.&quot;</div> <div> &nbsp;</div> <div> Founded in 2009, LCLD is a growing organization of more than 260 corporate chief legal officers and law firm managing partners who are personally committed to creating a more diverse and inclusive legal profession. For information, visit <a href="http://www.lcldnet.org">www.lcldnet.org</a>.</div> <div> &nbsp;</div> <div> Seyfarth&rsquo;s diversity efforts focus on recruiting, mentoring and promotion, community support, business development, and communications/engagement. To learn more, <a href="http://www.seyfarth.com/Diversity">click here</a>.</div> http://www.seyfarth.com:80//news/sonneborn-and-schwartz-fenwick-quoted-windy-city-times-021517 Amanda Sonneborn and Sam Schwartz-Fenwick quoted by the <i>Windy City Times</i> http://www.seyfarth.com:80//news/sonneborn-and-schwartz-fenwick-quoted-windy-city-times-021517 Wed, 15 Feb 2017 00:00:00 -0400 <p> Amanda Sonneborn and Sam Schwartz-Fenwick were quoted in &quot;Law firm receives perfect score on HRC index for nine years,&quot; a February 15 story by the <em>Windy City Times</em> on the firm earning a perfect score of 100 in the Human Rights Campaign Foundation&#39;s (HRC) 2017 Corporate Equality Index (CEI).</p> <p> Schwartz-Fenwick said that it&#39;s really great when you&#39;re recognized externally, when you feel like you&#39;re doing a good job internally. Sonneborn said that the firm wants to be made up of excellent legal practitioners who help clients manage their problems, but the firm also wants to be a positive and enjoyable place to work for the people who are its employees.</p> <p> <a href="http://www.windycitymediagroup.com/lgbt/Law-firm-receives-perfect-score-on-HRC-index-for-nine-years/58169.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM021517-LE2 National Strikes and Boycott Activities Planned for February 16 & 17 (And Beyond) http://www.seyfarth.com:80//publications/OMM021517-LE2 Wed, 15 Feb 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em> </strong><em>Several organizations are planning nationwide strike and boycott activities on February 16-17 to oppose Trump Administration and Republican policies. Employers impacted by these activities should be mindful of employees&rsquo; rights before responding.</em></p> <p> Several labor and activist groups are calling for national general strikes and boycotts this week to protest policies enacted and proposed by the new Trump Administration and the Republican Congress.&nbsp;</p> <p> <strong>Thursday, February 16: A Day Without Immigrants.&nbsp; </strong>The first action, &quot;A Day Without Immigrants,&quot; is currently scheduled for this Thursday, February 16.&nbsp; The campaign, promoted in Spanish and English, has been spread through <a href="https://www.facebook.com/events/1039169239527990/">Facebook</a>, fliers, and word of mouth and calls on immigrants and their supporters &quot;not to go to work, open businesses, shop, eat in restaurants, buy gas, go to classes, or send children to school.&quot; While the campaign originally focused on the Washington D.C. area, the campaign is expected to spread nationwide. A similar action in Milwaukee, Wisconsin this past Monday, February 13 drew <a href="http://www.nbcnews.com/news/latino/day-without-latinos-thousands-protest-immigration-crackdown-wisconsin-n720286">thousands of protesters</a>.</p> <p> <strong>Friday, February 17: National General Strike. </strong>Then, on Friday, February 17, a group called <a href="http://strike4democracy.com/">Strike4Democracy</a> has called for a national general strike and plans on &ldquo;over 100 strike actions across the United States, and beyond.&rdquo; The campaign calls for participants to forgo work on Friday and, instead &quot;plan or take part in an event in your community&quot; and &quot;occupy public space with positive messages of resistance and solidarity.&quot;</p> <p> The organizers do not plan on stopping there. They intend to use Friday&#39;s national general strike to &quot;build towards a series of mass strikes,&quot; with another mass strike planned on March 8, 2017, another on May 1, 2017 (May Day), and &quot;a heightening resistance throughout the summer.&quot;</p> <p> <strong>So, what does this mean for employers?</strong></p> <p> While these general strikes and those planned for the future could wreak havoc on an employer&#39;s operations -- as employees fail to report to work or leave shifts early -- the National Labor Relations Act provides protection for employees who engage in political advocacy that relates specifically to job concerns and to other workplace issues.</p> <p> Employers have the right to enforce &ldquo;neutrally applied work rules&rdquo; to restrict employees from leaving work for political activities unrelated to workplace concerns. As discussed above, whether an employee&rsquo;s actions are protected or unprotected turns on whether the employee&rsquo;s absence relates to activity directed at &quot;terms and conditions of employment&quot; which the employer controls or to workplace concerns that affect all employees. If the absence is due to political activity totally unrelated to workplace concerns, employees could be subject to discipline, although discipline is not necessarily the prudent course to take.</p> <p> Given the myriad issues to be addressed in these strikes, from immigration reform to minimum wage laws to worker&#39;s rights, employers may be hard pressed to show that employees who participate in these strikes in lieu of working have engaged in unprotected activity. Employers could find themselves in further &ldquo;hot water&rdquo; with the NLRB if they discipline employees for absenteeism or tardiness related to the employees&#39; political activities.&nbsp;</p> <p> If your company is affected by any of the strike activity this week or in the months ahead, contact your Seyfarth attorney or other experienced labor counsel before you take action.</p> http://www.seyfarth.com:80//publications/CP021517 When You Gotta Go: Time To Check Your Restroom Signs http://www.seyfarth.com:80//publications/CP021517 Wed, 15 Feb 2017 00:00:00 -0400 <div> North Carolina achieved notoriety with its &ldquo;Bathroom Bill,&rdquo; restricting restroom access on the basis of gender. California has countered with its own bill, AB 1732, the Equal Restroom Access Act, signed by Governor Brown in September 2016.</div> <div> &nbsp;</div> <div> Single-occupancy restrooms once could be designated as being either for males or for females. The Equal Restroom Access Act, applying to <em>single-occupancy</em> restrooms in businesses, government buildings, and places of public accommodation, requires that they be available to everyone. The Act defines a single-user restroom as a &ldquo;toilet facility with no more than one water closet and one urinal with a locking mechanism controlled by the user.&rdquo; Assemblyman Phil Ting provided context in stating that &ldquo;this bill sends a simple message that everyone&rsquo;s rights must be respected and protected&hellip;restricting access to single use restrooms defies reason.&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/02/15/when-you-gotta-go-time-to-check-your-restroom-signs/">click here</a></div> http://www.seyfarth.com:80//publications/WH021517 Puzder Bows Out, While the DOL (and its New OT Rule) Waits http://www.seyfarth.com:80//publications/WH021517 Wed, 15 Feb 2017 00:00:00 -0400 <p> President Trump&rsquo;s pick for Labor Secretary, Andrew F. Puzder, has withdrawn his name from consideration. Support for Puzder had eroded quickly over the last week.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/puzder-bows-out/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=1a496ea1af-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-1a496ea1af-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/WLS021417 Would you survive a knockout? http://www.seyfarth.com:80//publications/WLS021417 Tue, 14 Feb 2017 00:00:00 -0400 <p> Ronda &ldquo;Rowdy&rdquo; Rousey was at the top of her field, training hard and winning harder. &nbsp;Her success had built her brand. &nbsp;So much so that she diversified into acting with parts in two big budget, big publicity movies. Then it happened. Her reputation did not match her performance. Immediately the questions started &ndash; would she come back?</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/02/would-you-survive-a-knockout/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=832ead8300-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-832ead8300-71256725">click here</a>.</p> http://www.seyfarth.com:80//publications/EL02142017 Federal Whistleblower Laws Collide With The Attorney-Client Privilege: The Bio-Rad Case Study http://www.seyfarth.com:80//publications/EL02142017 Tue, 14 Feb 2017 00:00:00 -0400 <p> In a February 7, 2017 jury verdict, the plaintiff, Sanford S. Wadler, the former General Counsel of Bio-Rad Laboratories, Inc., was awarded $7.29 million for compensatory and punitive damages in a case alleging Sarbanes-Oxley and Dodd-Frank Acts whistleblower retaliation &ndash; Foreign Corrupt Practices Act (FCPA) claims, in the United States District Court for the Northern District of California. &nbsp;It is exceedingly rare for a general counsel of a public company to be a whistleblower, much less file a lawsuit, take it to trial, and be awarded anti-retaliation whistleblower fees.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/federal-whistleblowers-law-collide-with-the-attorney-client-privilege-the-bio-rad-case-study/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=da224e348c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-da224e348c-71256185">click here</a></p> http://www.seyfarth.com:80//publications/CDL021417 Key Takeaways from OCR’s Latest HIPAA Fine: Hospital to Pay $3.2 Million for Its Cybersecurity Violations http://www.seyfarth.com:80//publications/CDL021417 Tue, 14 Feb 2017 00:00:00 -0400 <p> Earlier this month, the U.S. Department of Health and Human Services, Office for Civil Rights (OCR), has announced a Health Insurance Portability and Accountability Act of 1996 (HIPAA) civil money penalty of $3,217,000.00 against Children&rsquo;s Medical Center of Dallas (Children&rsquo;s), a pediatric hospital that is part of Children&rsquo;s Health, the seventh largest pediatric health care provider in the nation. OCR based this penalty on its finding that Children&rsquo;s failed to comply with HIPAA Security Rule over many years and that Children&rsquo;s impermissibly disclosed unsecured electronic protected health information (ePHI) when it suffered two data breaches that were reportable to OCR.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/key-takeaways-ocrs-latest-hipaa-fine-hospital-pay-3-2-million-cybersecurity-violations/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=7c24311808-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-7c24311808-72857025">click here</a></p> http://www.seyfarth.com:80//publications/TBT02142017 ALJ Holds that Employer’s Worker’s Compensation Carrier Must Pay for Employee’s Medical Marijuana http://www.seyfarth.com:80//publications/TBT02142017 Tue, 14 Feb 2017 00:00:00 -0400 <p> On &shy;&shy;January 18, 2010, New Jersey became the 14th state to enact legislation permitting the sale of medical marijuana. &nbsp;(To read more about the New Jersey medical marijuana law, please see our blog post here.) &nbsp;Compared to other state medical marijuana laws, the New Jersey medical marijuana program is considered restrictive, and only permits a small set of patients with &ldquo;qualifying conditions&rdquo; to be prescribed marijuana.[1] &nbsp;Further, medical marijuana in New Jersey is amongst the most expensive in the nation with the price of an ounce of marijuana ranging from $425 to $520, not counting the 7% state sales tax. &nbsp;As with other states, when medical marijuana was introduced in New Jersey, New Jersey employers became fearful of the law&rsquo;s effect on the workforce. However, an ALJ decision from last month gives new reason for employers, and their worker&rsquo;s compensation carriers, to be fearful.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/02/alj-holds-that-employers-workers-compensation-carrier-must-pay-for-employees-medical-marijuana/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=3e217a1d9d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-3e217a1d9d-71540589">click here</a></p> http://www.seyfarth.com:80//publications/PTAB021417 Filing vs. Serving - The PTAB Splits Another Hair http://www.seyfarth.com:80//publications/PTAB021417 Tue, 14 Feb 2017 00:00:00 -0400 <div> The admissibility of evidence is an important consideration for many PTAB proceedings. The procedures for objecting to and admitting evidence can be nuanced and, as often is the case with the PTAB, the devil is in the details. Panels are also quick to point out that non-precedential decisions from other panels have no binding effect such that different panels may operate under slightly different procedural rules. One panel clarified the process for handling evidentiary objections to shed some light on the correct manner of curing objections or challenging the admissibility of evidence.</div> <div> &nbsp;</div> <div> The case of <em>Taiwan Semiconductor Manufacturing Company, Ltd. v. Godo Kaisha IP Bridge 1</em>, Case IPR2016-01249 and IPR2016-01264 (January 20, 2017 Order) clarified the process for objecting to evidence and the manner of curing such objections. Taiwan Semiconductor objected to evidence filed by Godo Kaisha, and Godo Kaisha filed supplemental evidence in an attempt to cure the objection. Taiwan Semiconductor then objected to the <em><strong>filing </strong></em>of the supplemental evidence, arguing it should have instead been <em><strong>served </strong></em>under 37 C.F.R. &sect; 42.64(b)(1) and (2):</div> <div> &nbsp;</div> <div> (1) Objection. Any objection to evidence submitted during a preliminary proceeding must be <em><strong>filed </strong></em>within ten business days of the institution of the trial. Once a trial has been instituted, any objection must be <em><strong>filed </strong></em>within five business days of service of evidence to which the objection is directed&hellip;</div> <div> &nbsp;</div> <div> (2) Supplemental evidence. The party relying on evidence to which an objection is timely served may respond to the objection by <em><strong>serving </strong></em>supplemental evidence within ten business days of service of the objection.</div> <div> &nbsp;</div> <div> <span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">For more information on this blog, click the link below:&nbsp;</span></div> http://www.seyfarth.com:80//publications/ES021417 Business Group Challenge to OSHA Interpretation Survives Motion to Dismiss and Leaves Serious Questions About Continued Viability of Interpretation http://www.seyfarth.com:80//publications/ES021417 Tue, 14 Feb 2017 00:00:00 -0400 <p> We blogged previously about OSHA&rsquo;s 2013 standard interpretation guidance letter allowing workers in non-union workplaces to designate a union (or other) representative to act as a &ldquo;walk-around representative&rdquo; during OSHA compliance inspections. &nbsp;At the time, we cautioned that an undesirable consequence of the interpretation was that it allowed outsiders with interests potentially contrary to the employer&rsquo;s to influence the compliance inspection in an effort to generate union support amongst employees. &nbsp;Since its issuance, OSHA has used the letter to force union participation in inspections of non-union workplaces over employer objections.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-litigation/business-group-challenge-to-osha-interpretation-survives-motion-to-dismiss-and-leaves-serious-questions-about-continued-viability-of-interpretation/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=7b9f5c980c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-7b9f5c980c-71407177">click here</a></p> http://www.seyfarth.com:80//publications/OMM021417-EB 403(b) Remedial Amendment Deadline Finally Set http://www.seyfarth.com:80//publications/OMM021417-EB Tue, 14 Feb 2017 00:00:00 -0400 <div> On January 13, 2017, the IRS issued <a href="https://www.irs.gov/pub/irs-drop/rp-17-18.pdf">guidance</a> setting <strong>March 31, 2020</strong> as the last day of the remedial amendment period for 403(b) retirement plans. &nbsp;</div> <div> &nbsp;</div> <div> A remedial amendment period is a time frame during which an employer can identify and retroactively correct defects in its 403(b) plan document without IRS penalties. &nbsp;A &ldquo;defect&rdquo; for this purpose is the presence or absence of a provision that causes the plan to fail to satisfy the requirements of Section 403(b) of the Internal Revenue Code. &nbsp;403(b) plan defects can be retroactively corrected to the start date of the remedial amendment period (the later of January 1, 2010 or the plan&rsquo;s effective date) by either adopting an IRS pre-approved 403(b) plan or amending its written 403(b) plan by March 31, 2020. &nbsp;Employers desiring to make 403(b) plan document corrections after March 31, 2020 may have to do so through the IRS&rsquo;s Employee Plans Compliance Resolution System, or EPCRS.&nbsp;</div> <div> &nbsp;</div> <div> Employers at this point have significant time (between now and March 31, 2020) to identify and correct defects in their plan documents. &nbsp;Nonetheless, getting started now will allow employers to review and correct any defects in the plan document, as well as to address any operational errors that may have occurred as a result of the document errors, comfortably before the deadline.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/PEG021417 EEOC’s Acting Chair Victoria Lipnic Comments on Equal Pay Laws and the Modified EEO-1 Report http://www.seyfarth.com:80//publications/PEG021417 Tue, 14 Feb 2017 00:00:00 -0400 <div> <div> <p> Employers across the county have been closely monitoring the legal landscape for signs of the changes that the business community is expecting from President Trump&rsquo;s administration.&nbsp; We have previously provided insights as to potential changes <a class="cms-content-links" href="http://www.workplaceclassaction.com/2016/11/eeoc-shakeup-top-ways-trump-presidency-could-impact-the-eeoc/">here</a> and <a class="cms-content-links" href="http://www.seyfarth.com/publications/PresidentialPulse-121216">here</a>.&nbsp; One of the most talked about areas is the U.S. Equal Employment Opportunity Commission&rsquo;s enforcement of equal pay laws and the <a class="cms-content-links" href="http://www.seyfarth.com/publications/MA092916-LE">modified annual Employer Information Report (EEO-1)</a>.&nbsp; On February 9th, Seyfarth Shaw had the pleasure of hosting EEOC Acting Chair Victoria Lipnic, who <a class="cms-content-links" href="http://www.seyfarth.com/events/CHIEVENT020917">spoke to a packed room</a>, along with Seyfarth&rsquo;s own Jerry Maatman who <a class="cms-content-links" href="http://www.workplaceclassaction.com/2017/02/workplace-class-action-event-featuring-jerry-maatman-and-eeoc-acting-chair-victoria-lipnic/">debuted the <em>13th Annual Workplace Class Action Report</em></a>.&nbsp;</p> </div> </div> <div> To view the full post,&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog021417%288%29.pdf">click here.</a></div> http://www.seyfarth.com:80//news/seyfarth-real-estate-market-sentiment-survey-reveals-top-concerns-for-2017 Seyfarth Real Estate Market Sentiment Survey Reveals Top Concerns for 2017 http://www.seyfarth.com:80//news/seyfarth-real-estate-market-sentiment-survey-reveals-top-concerns-for-2017 Tue, 14 Feb 2017 00:00:00 -0400 <div> Given the backdrop of historical political change-over in Washington, D.C. and record-setting stock market highs, rising interest rates continue to dominate concerns for U.S. commercial real estate executives in 2017, according to Seyfarth Shaw&rsquo;s 2nd annual survey of the commercial real estate market.</div> <div> &nbsp;</div> <div> Seyfarth&rsquo;s 2017 Real Estate Market Sentiment Survey found that respondents are even more hawkish (98 percent) about interest rate increases this year compared to last year (90 percent). Of these &ldquo;hawks,&rdquo; 77 percent expect multiple rate increases in 2017.</div> <div> &nbsp;</div> <div> From interest rates to equity sources to the new Administration, Seyfarth Shaw&rsquo;s 2017 Survey examines the industry&rsquo;s current market sentiment:</div> <div> &nbsp;</div> <div> <strong>HOPEFUL SENTIMENT SPLIT</strong>: Respondents are evenly split regarding how many basis points the commercial real estate market can absorb before experiencing a material adverse impact: 51-100 Basis Points (33 percent) vs. 101-150 Basis Points (32 percent).</div> <div> &nbsp;</div> <div> <strong>FED FEARS</strong>: With the Federal Reserve announcing its intention to raise interest rates multiple times in 2017, respondents again rank rising interest rates as their top concern for 2017. Notably, political change-over and tax policy rank fourth and fifth this year, overtaking maturing CMBS loans from the year before.</div> <div> &nbsp;</div> <div> <strong>TERRORISM TODAY</strong>: An overwhelming majority of respondents (83 percent) are not concerned that an act of domestic terrorism will impact their projects in 2017, compared to 70 percent last year. Of the remaining 17 percent, a majority will consider their decision to buy, sell, capitalize and lend in response to such an incident.</div> <div> &nbsp;</div> <div> <strong>EQUITY PLAY</strong>: 36 percent of respondents indicate that Institutional Investors would be their primary source of equity, 21 percent report no engagement of third party equity.</div> <div> &nbsp;</div> <div> <strong>LINGERING CMBS CONCERNS</strong>: As in 2016, concern regarding the industry&rsquo;s ability to refinance record levels of maturing CMBS loans remains strong: 86 percent of respondents express concerns about the industry&rsquo;s ability to refinance the CMBS debt that is maturing in 2017, nearly matching 87 percent in 2016.</div> <div> &nbsp;</div> <div> <strong>WHITE HOUSE IMPACT</strong>: Last year, Republican candidate Donald Trump was the clear frontrunner among commercial real estate executives. Over two-thirds of respondents this year believe that the Trump Administration will have a positive impact on the 2017 commercial real estate market.</div> <div> &nbsp;</div> <div> <strong>RED TAPE RELIEF</strong>: Of the respondents who believe the Trump Administration will have a positive impact on CRE in 2017, Deregulation was top of mind with most respondents followed closely by Tax Reform. Notably, as the Administration poises to take on Dodd-Frank, many survey respondents single out its dismantling as a positive impact for the industry.</div> <div> &nbsp;</div> <div> <strong>BREXIT BLUSTER</strong>: More than half of respondents are not at all concerned about Brexit&rsquo;s impact on the U.S. market.</div> <div> &nbsp;</div> <div> Seyfarth, which helped clients close more than $33 billion in real estate transactions in 2016, surveyed commercial real estate executives in January. For a full copy of the 2017 Seyfarth Real Estate Market Sentiment Survey, <a href="http://www.seyfarth.com/dir_docs/publications/REMSS_02142017.pdf">visit here</a>.</div> <div> &nbsp;</div> <div> About Seyfarth Shaw LLP</div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80//news/weiss-quoted-westlaw-journal-employment-021417 Philippe Weiss quoted by <i>Westlaw Journal Employment</i> http://www.seyfarth.com:80//news/weiss-quoted-westlaw-journal-employment-021417 Tue, 14 Feb 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;Trump&rsquo;s tariffs, deregulation expected to have big impact, worker survey finds,&quot; a <em>Westlaw Journal Employment</em> story on February 14 regarding SSAW&rsquo;s new survey. Weiss said that employees expressed a range of hopes regarding what the new administration mans to them. Thirty-eight percent of respondents said the implementation of tariffs would have the most significant impact on their jobs.</p> http://www.seyfarth.com:80//news/maechtlen-quoted-manufacturing-net-021417 Laura Maechtlen quoted in <i>Manufacturing.net</i> http://www.seyfarth.com:80//news/maechtlen-quoted-manufacturing-net-021417 Tue, 14 Feb 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in &quot;Survey: Employers Regard &#39;Future Of Work&#39; With Mix Of Optimism And Ambivalence,&quot; a February 14 story from <em>Manufacturing.net&nbsp;</em>on the firm&rsquo;s Future of Work Outlook Survey. According to survey findings, the majority of employers are &ldquo;hopeful&rdquo; about changes related to the workplace, in the areas of technology, innovation and shifting workforce expectations. Maechtlen said that business leaders, including corporate legal departments, are navigating a shifting landscape with a new presidential administration, evolving skill sets, talent management, and the ways in which their own roles will change in the next five years.</p> <p> <a href="http://www.manufacturing.net/news/2017/02/survey-employers-regard-future-work-mix-optimism-and-ambivalence">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/employers-regard-future-of-work-optimism-ambivalence-seyfarth-shaw-survey Employers Regard “Future of Work” with Mix of Optimism and Ambivalence, According to Seyfarth Shaw Survey http://www.seyfarth.com:80//news/employers-regard-future-of-work-optimism-ambivalence-seyfarth-shaw-survey Mon, 13 Feb 2017 00:00:00 -0400 <div> <em>Survey is part of firm&rsquo;s Future Employer initiative, which helps employers navigate exponential change in the nature of work and business&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>February 13, 2017</strong> &ndash; According to survey findings released today by Seyfarth Shaw, the majority of employers are &ldquo;hopeful&rdquo; about changes related to the workplace, in the areas of technology, innovation and shifting workforce expectations. &nbsp;</div> <div> &nbsp;</div> <div> The results of the Future of Work Outlook Survey, fielded between the election and the inauguration of President Donald Trump, show the issues that are top of mind among business leaders and in-house counsel at some of the largest employers across the country.</div> <div> &nbsp;</div> <div> When given an opportunity to expand on their feelings about the future of work, many in-house business leaders and lawyers expressed ambivalence about the road ahead for business, acknowledging the unique challenge of running a business while navigating issues without precedent, the need to cultivate new sources of talent, the growing complexity of the U.S. regulatory landscape, and an ever increasing global workforce.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;Our survey provides a window into employer hopes and fears regarding the future of the workplace,&rdquo; said Laura Maechtlen, vice-chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;Technology is just one small piece of the puzzle. Business leaders, including corporate legal departments, are navigating a shifting landscape with a new presidential administration, evolving skill sets, talent management, and the ways in which their own roles will change in the next five years.&rdquo;</div> <div> &nbsp;</div> <div> From 700-plus respondents, key findings of the Future of Work Outlook Survey include:</div> <div> &nbsp;</div> <div> &bull;<span class="Apple-tab-span" style="white-space:pre"> </span><strong>A New Hope</strong>: 70% of respondents are hopeful about future changes to the workplace.</div> <div> &bull;<span class="Apple-tab-span" style="white-space:pre"> </span><strong>On the Cusp of Trending</strong>: Majority of respondents (55%) do not expect demand for independent contractors to grow.</div> <div> &bull;<span class="Apple-tab-span" style="white-space:pre"> </span><strong>Leader of the Pack</strong>: The Department of Labor (35%) leads the group of U.S. agencies as the most aggressive employer &ldquo;watchdog&rdquo; for the next five years.</div> <div> &bull;<span class="Apple-tab-span" style="white-space:pre"> </span><strong>Out on a Limb</strong>: Most respondents (48%) believe that the Executive Branch will have the greatest impact on the workplace in the future.</div> <div> &bull;<span class="Apple-tab-span" style="white-space:pre"> </span><strong>Rise in Employment-based Cases</strong>: 68% of respondents believe there will be an increase in employment cases that reach the Supreme Court.</div> <div> &nbsp;</div> <div> See full survey results and verbatims at <a href="http://www.futureemployer.com/survey-results">www.futureemployer.com/survey-results</a>.</div> <div> &nbsp;</div> <div> The survey is part of the firm&rsquo;s new Future Employer initiative, which brings together in-house legal and business leaders to navigate the revolutionary changes facing employers, from technology advancements, to generational shifts and evolving workforce expectations.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;We developed Future Employer as a resource to help employers define trends and new opportunities for legal and business solutions,&rdquo; said Lisa Damon, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;As a firm known for our forward-thinking approach to both legal issues and the business of law, we feel a responsibility to partner with clients to forge a path forward in the new economy.&rdquo;</div> <div> &nbsp;</div> <div> <strong>Methodology&nbsp;</strong></div> <div> For its Future of Work Outlook Survey, Seyfarth Shaw surveyed in-house legal and business leaders via online survey for a one-month period between December 2016 and January 2017. A total of 717 respondents completed the survey. Respondents included General Counsel, Directors of HR, Associate General Counsel, HR Managers, Presidents, Senior Counsel, VP, HR and a number of other titles from industries including consumer discretionary, consumer staples, energy, financials, health care, industrials, information technology, materials, real estate, telecommunication services, and utilities.&nbsp;</div> <div> &nbsp;</div> <div> <strong>About Future Employer&nbsp;</strong></div> <div> Future Employer by Seyfarth Shaw is the forward-thinking employer&rsquo;s guide to the &ldquo;Future of Work.&rdquo; We are a community of legal and industry leaders who are leading the way in the transformation of the workplace. Future Employer connects subject matter experts and our clients&mdash;in person and through our online platform&mdash;to shape, guide and operationalize new approaches to legal and business solutions. www.futureemployer.com&nbsp;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.&nbsp;</div> http://www.seyfarth.com:80//news/maatman-quoted-cook-county-record-021317 Gerald Maatman quoted in the <i>Cook County Record</i> http://www.seyfarth.com:80//news/maatman-quoted-cook-county-record-021317 Mon, 13 Feb 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Gerald Maatman was quoted in &quot;Chicago federal courts busy with labor litigation in 2016, but less than NY, California,&quot; a February 13 story by the <em>Cook County Record</em> on the firm&rsquo;s annual Workplace Class Action Report. Maatman said that two jurisdictions in particular, the U.S. District Court for the Southern District of New York and the U.S. District Court for the Northern District of California, are magnets for workplace litigation.</p> <p> <a href="http://cookcountyrecord.com/stories/511082215-chicago-federal-courts-busy-with-labor-litigation-in-2016-but-less-than-ny-california">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/LR021317 NLRB Finds Employer Did Not Need to Provide a Union Representative During a Police Interrogation During Which Management Was Present http://www.seyfarth.com:80//publications/LR021317 Mon, 13 Feb 2017 00:00:00 -0400 <div> n November 2015, an EMT working in San Bernardino County, CA learned that the Operations Manager planned to fire the EMT&rsquo;s girlfriend. The EMT responded by telling his coworker, &ldquo;if things go the way they are looking, I&rsquo;ll come shoot everyone here.&rdquo; Concerned, the coworker reported the EMT to management. &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In response, the Operations Manager drove to the nearby police department and asked an officer for guidance on how to handle the situation. The officer came to AMR&rsquo;s facility, spoke with the EMT while the Operations Manager was present, and performed a threat assessment. Although the Operations Manager was present during the officer&rsquo;s interview with the EMT, the Operations Manager did not ask any questions during the interview. The Company later decided to terminate the EMT&rsquo;s employment.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/13/nlrb-finds-employer-did-not-need-to-provide-a-union-representative-during-a-police-interrogation-during-which-management-was-present/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=92ea6cca88-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-92ea6cca88-71423401">click here</a></div> http://www.seyfarth.com:80//publications/WH021217 CBAs Must Specifically State Intent to Arbitrate Statutory Rights http://www.seyfarth.com:80//publications/WH021217 Sun, 12 Feb 2017 00:00:00 -0400 <p> Tanya Vasserman, a registered nurse, worked for Henry Mayo Newhall Memorial Hospital, under a CBA between the Hospital and the California Nurses Association. The CBA&rsquo;s &ldquo;Grievance and Arbitration&rdquo; section provided for grievances culminating in arbitration, and defined a grievance as any dispute &ldquo;arising out of the interpretation or application of a specific Article and Section of this Agreement during the term of the Agreement &hellip; as to events or incidents arising only at the Hospital.&rdquo; The CBA outlined a three-step grievance procedure.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/arbitration-agreements/cba-intent-to-arbitrate/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=4655a13558-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-4655a13558-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/WC021017 Workplace Class Action Event Featuring Jerry Maatman and EEOC Acting Chair Victoria Lipnic http://www.seyfarth.com:80//publications/WC021017 Fri, 10 Feb 2017 00:00:00 -0400 <p> On February 9, 2017, Seyfarth Shaw hosted a signal event regarding workplace class action litigation in 2016 and the implications for employers looking to anticipate and prepare for workplace trends in 2017.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/workplace-class-action-event-featuring-jerry-maatman-and-eeoc-acting-chair-victoria-lipnic/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=86147a853f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-86147a853f-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/WC021017a The Story Behind Workplace Class Action Filings In 2016 – Trend #4 http://www.seyfarth.com:80//publications/WC021017a Fri, 10 Feb 2017 00:00:00 -0400 <p> As profiled in our Workplace Class Action Report for 2017, overall complex employment-related litigation filings increased in 2016 insofar as employment discrimination cases were concerned, but decreased in the areas of ERISA class actions, governmental enforcement litigation, and wage &amp; hour collective actions and class actions. For the past decade, wage &amp; hour class actions and collective actions have been the leading type of &ldquo;high stakes&rdquo; lawsuits being pursued by the plaintiffs&rsquo; bar. Each year the number of such case filings increased. However, for the first time in over a decade, case filing statistics for 2016 reflected that wage &amp; hour litigation decreased over the past year.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/the-story-behind-workplace-class-action-filings-in-2016-trend-4/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=86147a853f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-86147a853f-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM021017-LE CBAs Must Specifically State Intent to Arbitrate Statutory Rights http://www.seyfarth.com:80//publications/OMM021017-LE Fri, 10 Feb 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> &nbsp;The Court of Appeal has held that unless a collective bargaining agreement includes an explicitly stated, clear and unmistakable, intent to waive the right to a judicial forum for statutory causes of action, arbitration of those statutory claims will not be compelled. </em>Vasserman v. Henry Mayo Newhall Memorial Hospital<em>. The CBA in </em>Vasserman<em> did not waive the right to a judicial forum, because the Grievance and Arbitration section of the CBA failed to specify the Labor Code provisions that would have to be arbitrated.&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>The Facts</strong></div> <div> &nbsp;</div> <div> Tanya Vasserman, a registered nurse, worked for Henry Mayo Newhall Memorial Hospital, under a collective bargaining agreement (&ldquo;CBA&rdquo;) between the Hospital and the California Nurses Association. The CBA&rsquo;s &ldquo;Grievance and Arbitration Section&rdquo; provided for grievances culminating in arbitration, and defined a grievance as any dispute &ldquo;arising out of the interpretation or application of a specific Article and Section of this Agreement during the term of the Agreement &hellip; as to events or incidents arising only at the Hospital.&rdquo; The CBA outlined a three-step grievance procedure. Step three required the Hospital or the California Nurses Association to &ldquo;file the grievance for binding arbitration pursuant to the rules of the Federal Mediation and Conciliation Service.&rdquo; The CBA included articles on compensation, including overtime, and meal and rest periods. None of these articles referred to the grievance procedure or to remedies for violations.</div> <div> &nbsp;</div> <div> Vasserman, instead of filing a grievance, sued in state court for violation of the California Labor Code, including claims for a failure to pay all regular and overtime wages and a failure to provide meal and rest breaks. The Hospital moved to stay the case and compel arbitration. The Hospital argued that Vasserman and the other employees she sought to represent in her putative class action were all covered by a CBA that included a Grievance and Arbitration section that clearly required the Hospital or the union to file a grievance for mandatory arbitration as step three of the grievance procedure. The Hospital argued that the grievance procedure explicitly waived the right to pursue claims in a judicial forum and Vasserman had to arbitrate her claims. The trial court denied the Hospital&rsquo;s motion to compel arbitration and the Hospital appealed</div> <div> &nbsp;</div> <div> <strong>The Court of Appeal&rsquo;s Decision</strong></div> <div> &nbsp;</div> <div> The Court of Appeal affirmed the trial court&rsquo;s decision. It found that the Grievance and Arbitration section defined a grievance as &ldquo;any complaint or dispute arising out of the interpretation or application of a specific Article or Section of this Agreement.&rdquo; The section also described a three step grievance procedure, including step three in which any unresolved grievances may be submitted to arbitration. But it also limited the power of the arbitrator. The section provided that the arbitrator &ldquo;shall be without authority to decide matters specifically excluded or not included in this Agreement.&rdquo; The court held that because the Grievance and Arbitration section did not specifically refer to Labor Code or other state or federal statutes, or include any language suggesting that the union intended to waive employees&rsquo; rights to bring statutory claims in court, the CBA contained no explicitly stated, clear and unmistakable waiver of a judicial forum.</div> <div> &nbsp;</div> <div> The Court of Appeal also rejected the Hospital&rsquo;s argument that the parties, by including specific articles on pay and meal and rest breaks in the CBA, clearly and unmistakably intended to submit all disputes regarding those subjects to the grievance or arbitration process. The articles on pay and meal breaks did not refer to state laws. A waiver cannot be inferred from &ldquo;broad, nonspecific language &hellip; not coupled with an explicit incorporation of statutory requirements.&rdquo;</div> <div> &nbsp;</div> <div> <strong>What <em>Vasserman</em> Means for Employers</strong></div> <div> &nbsp;</div> <div> We are reminded that to preclude judicial litigation of statutory rights, CBAs should specify any statutory rights that will be subject to grievance and arbitration procedures. These grievance procedures should also be incorporated by reference in any other section of the CBA discussing statutory rights, to ensure that the parties clearly and unmistakably state their intent to submit all disputes regarding those subjects to the grievance and arbitration procedures set forth in the CBA.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM021017-LE2 Federal Appeals Court Upholds Halt on Trump Administration's Travel Ban http://www.seyfarth.com:80//publications/OMM021017-LE2 Fri, 10 Feb 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>A three-judge panel in the Ninth Circuit Court of Appeals ruled against the Trump administration&rsquo;s motion to reinstate the travel ban.</em></p> <p> Late on Thursday, February 9, the Ninth Circuit panel voted to uphold the district court&rsquo;s ruling, leaving the national temporary restraining order (&ldquo;TRO&rdquo;) in effect and the travel ban suspended. In response, the Justice Department could either ask for the full court to review a stay on Trump&#39;s travel rules or ask the U.S. Supreme Court for a hearing.</p> <p> On Friday, February 3, a federal district court in Washington issued a TRO, which halted the enforcement of President Trump&rsquo;s January 27, 2017 Executive Order that suspended travel to the United States for certain foreign nationals.&nbsp; This TRO took effect immediately nation-wide. &nbsp;</p> <p> On Saturday, February 4, a three-judge panel in the Ninth Circuit Court of Appeals denied the Trump administration&rsquo;s motion for an immediate stay of the federal district court&rsquo;s ruling and instructed the parties to submit briefs in preparation for oral arguments on Tuesday, February 7.</p> <p> At present, any foreign national who was previously impacted by the travel ban can be admitted to the United States. However, this situation remains fluid and can change any day. More information on the impact of the TRO can be found in our <a href="http://www.seyfarth.com/publications/MA020517-LE">prior alert</a> on the topic. Seyfarth Shaw will continue to keep our clients informed on further developments.</p> http://www.seyfarth.com:80//publications/CDL021017 Interesting Sanctions Analysis Applies “Old” Bad Faith Standard Post-December 2015 Amendments http://www.seyfarth.com:80//publications/CDL021017 Fri, 10 Feb 2017 00:00:00 -0400 <p> In an interesting decision regarding the spoliation of evidence via a mobile device, Magistrate Judge Terry F. Moorer determined that the newly amended Federal Rule 37(e) &ndash; enacted on December 1, 2015 &ndash; did not apply to the spoliation case, as the case was filed prior to the rule&rsquo;s enactment. &nbsp;(Morrison v. Charles J. Veale, M.D., P.C., 2017 BL 21478, M.D. Ala., No. 3:14-cv-1020-TFM, 1/25/17).</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/interesting-sanctions-analysis-applies-old-bad-faith-standard-post-december-2015-frcp-amendments/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=b653b79842-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-b653b79842-72857025">click here</a></p> http://www.seyfarth.com:80//news/maatman-mentioned-human-resource-executive-021017 Gerald Maatman mentioned in <i>Human Resource Executive</i> http://www.seyfarth.com:80//news/maatman-mentioned-human-resource-executive-021017 Fri, 10 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was mentioned in &quot;Lipnic Outlines EEOC Priorities,&quot; a February 10 story from <em>Human Resource Executive</em> on Seyfarth&rsquo;s <em>Workplace Class Action Litigation Report</em> event with Victoria Lipnic.</p> <p> <a href="http://blog.hreonline.com/2017/02/10/eeoc-priorities/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-profiled-forbes-020917 Seyfarth’s annual <i>Workplace Class Action Report</i> was profiled in <i>Forbes</i> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-profiled-forbes-020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was profiled in &quot;Study: Employers Should Fear Class Actions In California, New York,&quot; a February 9 story by <em>Forbes</em>. Authored by Gerald Maatman, this year&rsquo;s report said that New York and California courts lead the way in the number of class action certifications. Maatman said that most Fortune 1000 companies do business in New York and California, so they have an inordinate number of class actions filed there.</p> <p> <a href="http://www.forbes.com/forbes/welcome/?toURL=http://www.forbes.com/sites/legalnewsline/2017/02/09/study-employers-should-fear-class-actions-in-california-new-york/&amp;refURL=&amp;referrer=#3bba1f476abc">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/robertson-quoted-financial-advisor-IQ-020917 Christopher Robertson quoted in <i>Financial Advisor IQ</i> http://www.seyfarth.com:80//news/robertson-quoted-financial-advisor-IQ-020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> Christopher Robertson was quoted in &quot;Trump&rsquo;s SEC Unlikely to Boost Enforcement,&quot; a February 9 story from <em>Financial Advisor IQ</em> on how the President&rsquo;s SEC is unlikely to make any bold moves in the near future and may postpone its plans for third-party RIA examinations. Robertson said that the SEC under the new Administration is likely to relax enforcement.</p> <p> <a href="http://financialadvisoriq.com/c/1562753/179903">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-corporate-counsel-020917 Gerald Maatman quoted in <i>Corporate Counsel</i> http://www.seyfarth.com:80//news/maatman-quoted-corporate-counsel-020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;New EEOC Chief to Focus on Age Bias, Equal Pay and Job Growth,&quot; a February 9 story from <em>Corporate Counsel</em> on Seyfarth&rsquo;s Workplace Class Action Litigation Report event with Victoria Lipnic. Maatman discussed major trends from the 2017 <em>Workplace Class Action Litigation Report</em>, which has now been published in book form. He said plaintiffs attorneys are leaning toward more wage-and-hour cases.</p> <p> <a href="http://www.corpcounsel.com/id=1202778893253/New-EEOC-Chief-to-Focus-on-Age-Bias-Equal-Pay-and-Job-Growth?mcode=0&amp;curindex=0&amp;curpage=ALL&amp;slreturn=20170110110616">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-mentioned-law360-020917 Gerald Maatman mentioned in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-mentioned-law360-020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was mentioned in &quot;New EEOC Chair Says Major Changes Not In Store,&quot; a February 9 story from <em>Law360 </em>on Seyfarth&rsquo;s <em>Workplace Class Action Litigation Report</em> event with acting EEOC chair Victoria Lipnic. The report found, among other things, that the biggest workplace class action settlements brought in nearly 30 percent less money for workers in 2016 compared to 2015, as plaintiffs&#39; attorneys struggled with the heightened bar for certification set by the Supreme Court in <em>Wal-Mart v. Dukes</em>.</p> http://www.seyfarth.com:80//publications/ClientAlert020917-DER All Financial Regulation in the U.S. Now Subject to Review under February 3, 2017 Executive Order Issued by the President http://www.seyfarth.com:80//publications/ClientAlert020917-DER Thu, 09 Feb 2017 00:00:00 -0400 <div> <div> <em><strong>Seyfarth Synopsis: </strong>Hours after the inauguration of President Trump, the White House issued a memorandum which imposed a 90-day delay on regulations which had not yet taken effect. &nbsp;As far as existing financial services law and regulation in the U.S. however, President Trump then issued an Executive Order on Friday, February 3, 2017 &mdash; which the White House modified slightly since February 3 &mdash; requiring the U.S. Treasury Secretary to confer with federal agency leaders and brief the President on all financial services law in the U.S. that either promotes or inhibits seven &ldquo;Core Principles.&rdquo; &nbsp;These principles and immediate international reaction are summarized in this Alert.</em></div> <div> &nbsp;</div> <div> On February 3, 2017, President Trump issued an Executive Order directing the U.S. Treasury Secretary to &ldquo;consult with the heads of member agencies of the Financial Stability Oversight Council&rdquo; (FSOC) and to report to President Trump within 120 days of the Executive Order, and periodically thereafter, the extent to which U.S. law and regulation promotes or inhibits the following seven Core Principles:</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> (a) <span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;empower Americans to make independent financial decisions and informed choices in the marketplace, save for retirement, and build individual wealth;<br /> &nbsp;</div> <div style="margin-left: 40px;"> (b) <span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;prevent taxpayer-funded bailouts;<br /> &nbsp;</div> <div style="margin-left: 40px;"> (c) <span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;foster economic growth and vibrant financial markets through more rigorous regulatory impact analysis that addresses systemic risk and market failures, such as moral hazard and information asymmetry;<br /> &nbsp;</div> <div style="margin-left: 40px;"> (d) <span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;enable American companies to be competitive with foreign firms in domestic and foreign markets;<br /> &nbsp;</div> <div style="margin-left: 40px;"> (e) <span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;advance American interests in international financial regulatory negotiations and meetings;<br /> &nbsp;</div> <div style="margin-left: 40px;"> (f)<span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;make regulation efficient, effective, and appropriately tailored; and<br /> &nbsp;</div> <div style="margin-left: 40px;"> (g)<span class="Apple-tab-span" style="white-space:pre"> </span>&nbsp;restore public accountability within Federal financial regulatory agencies and rationalize the Federal financial regulatory framework.<sup>1</sup></div> <div> &nbsp;</div> <div> As this alert goes to press, this is known with certainty:</div> <ul> <li> The Executive Order does not repeal or even recommend the repeal of the Dodd-Frank Wall Street Reform and Consumer Protection Act;&nbsp;<br /> &nbsp;</li> <li> The action required by the Executive Order consists only of a series of briefings to be made by the Treasury Secretary to the President after the Treasury Secretary confers with federal agencies and bodies such as the Commodity Futures Trading Commission (CFTC), the Securities and Exchange Commission (SEC), banking agencies and the Federal Reserve; and&nbsp;<br /> &nbsp;</li> <li> After consulting with the heads of FSOC&rsquo;s member agencies, the Treasury Secretary is directed to report within 120 days of the Executive Order the extent to which the entire gamut of U.S. law and regulation relating to financial services in the United States either promotes or inhibits the Core Principles. &nbsp;</li> </ul> <div> <br /> Within three hours of the President&rsquo;s signing the Executive Order, media reports were replete with headlines along the lines of &ldquo;Trump Begins Dismantling Dodd-Frank.&rdquo;<sup>2</sup> Representatives of the European Commission were reported to have stated that &ldquo;President Donald Trump&rsquo;s intention to dismantle the Dodd-Frank Act risks unbalancing global regulation and threatens financial stability achieved since the banking crisis.&rdquo;<sup>3</sup></div> <div> &nbsp;</div> <div> Among other new requirements related to executive compensation, the Dodd-Frank Act established CEO pay ratio disclosure rules, which became effective with the first fiscal year beginning on or after January 1, 2017. &nbsp;For companies with a calendar year based fiscal year, companies are required to undertake efforts to implement the rule so that disclosures can be made during the 2018 proxy season. &nbsp;On Monday, February 6, 2017, citing &ldquo;unanticipated compliance difficulties&rdquo; being encountered by companies, acting SEC Chairman Michael S. Piwowar requested that comments on implementation efforts be submitted within the next 45 days. &nbsp;He also directed the SEC staff to reconsider implementation of the pay ratio disclosure rules based on the comments, which could include a determination to issue further guidance or relief. &nbsp;While the announcement did not specifically reference the Executive Order, the proximity and nature of the announcement sets the stage for reconsideration of the pay ratio disclosure rules.</div> </div> <div> <div> &nbsp;</div> </div> <div> &nbsp;</div> <div> <sup>_____________________________________________________________________</sup></div> <div> &nbsp;</div> <div> <sup>1</sup> &ldquo;Presidential Executive Order on Core Principles for Regulating the United States Financial System,&rdquo; Executive Order, The White House (Feb. 3, 2017)(the &ldquo;Executive Order&rdquo;)(the seven enumerated core principles are collectively, the &ldquo;Core Principles&rdquo;).&nbsp;</div> <div> <sup>2</sup>&nbsp;<em>See</em>, <em>e.g.</em>, &ldquo;Trump Begins Dismantling Dodd-Frank Wall Street Reform Passed in 2010 After Financial Crisis,&rdquo; CNN Wire accessed on February 2, 2017 at <a href="http://ktla.com/2017/02/03/trump-begins-dismantling-dodd-frank-wall-street-reform-passed-in-2010-after-financial-crisis/">http://ktla.com/2017/02/03/trump-begins-dismantling-dodd-frank-wall-street-reform-passed-in-2010-after-financial-crisis/</a>)</div> <div> <sup>3</sup> Mark Taylor, &ldquo;Dodd-Frank Tinkering Risks Global Stability, EU Warns Trump,&rdquo; Law 360, accessed on February 7, 2017, at <a href="https://www.law360.com/banking/articles/888793/dodd-frank-tinkering-risks-global-stability-eu-warns-trump?nl_pk=87062817-1dae-4eae-a365-38f2d7e4a53c&amp;utm_source=newsletter&amp;utm_medium=email&amp;utm_campaign=banking">https://www.law360.com/banking/articles/888793/dodd-frank-tinkering-risks-global-stability-eu-warns-trump?nl_pk=87062817-1dae-4eae-a365-38f2d7e4a53c&amp;utm_source=newsletter&amp;utm_medium=email&amp;utm_campaign=banking</a>.</div> http://www.seyfarth.com:80//publications/MA020917-LE Congress in Process of Passing Disapproval Resolution of Blacklisting Regulations http://www.seyfarth.com:80//publications/MA020917-LE Thu, 09 Feb 2017 00:00:00 -0400 <div> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp;</em><em>Pursuant&nbsp; to President Obama&rsquo;s &ldquo;Fair Pay and Safe Workplaces&rdquo; Executive Order, popularly referred to as &ldquo;the blacklisting order&rdquo; the federal procurement agencies issued regulations requiring government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts.&nbsp; While most of these controversial regulations were enjoined by a federal judge, the Congress nevertheless has moved to formally rescind all of the regulations under the Congressional Review Act.&nbsp; The House of Representatives has voted to rescind the regulation. The House resolution is the first step toward rescinding the regulations issued under the Executive Order; the Senate will vote next week and the rescission resolution then goes to the President for his signature.</em></div> <div> &nbsp;</div> <div> On February 2, 2017, by a vote of 236 to 187, the U.S. House of Representatives approved a joint resolution of disapproval to block the Final Rule implementing President Obama&rsquo;s Executive Order 13673, &ldquo;Fair Pay and Safe Workplaces.&rdquo; &nbsp;House Joint Resolution 37, an act authorized by the Congressional Review Act (&ldquo;CRA&rdquo;), is the first step toward rescinding the regulations issued under the Executive Order. &nbsp;The CRA permits Congress to pass legislation rescinding a particular regulation. &nbsp;The CRA has various time limits but the adoption of the final regulations under E.O. 13673 fell within the CRA time limits.</div> <div> &nbsp;</div> <div> Rep. Virginia Foxx, Chair of the House Education and Workforce Committee , who sponsored the resolution, called the Executive Order &ldquo;an unnecessary layer of red tape&rdquo; in a government contracting landscape in which federal agencies already have tools at their disposal with which they can ensure contractors&rsquo; compliance with legal obligations. &nbsp;The House vote tally nearly tracked party lines, with three Democrats joining the Republican legislators in voting &ldquo;aye&rdquo; on the disapproval resolution, and only one Republican voting &ldquo;no.&rdquo;</div> <div> &nbsp;</div> <div> E.O. 13673 has been criticized by the employer community and employer associations because of the additional financial burdens it imposed on covered contractors, the risk to reputation and business from public disclosure of alleged violations before they are proven, and the fact that the procurement statutes and regulations already had enforcement mechanisms in place to ensure contractor compliance. &nbsp;Referred to as the &ldquo;blacklisting&rdquo; order, as discussed in more detail <a href="http://www.seyfarth.com/publications/MA082916-LE">here</a>, the Executive Order and its implementing regulations would:</div> <div> &nbsp;</div> <div> 1. Require certain government contractors to disclose &ldquo;labor law violations&rdquo; under fourteen different statutes and Executive Orders when bidding for or modifying contracts;</div> <div> &nbsp;</div> <div> 2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and</div> <div> &nbsp;</div> <div> 3. Require certain disclosures to independent contractors and employees concerning their employment status and information about wages and hours worked.</div> <div> &nbsp;</div> <div> The blacklisting order has already been stayed in large part. &nbsp;As discussed <a href="http://www.seyfarth.com/publications/OMM102616-LE">here</a>, last October Judge Marcia Crone, a federal judge sitting in Texas, issued a nationwide preliminary injunction blocking the requirement that contractors disclose &ldquo;labor law violations&rdquo; and the prohibition against entering into mandatory pre-dispute agreements with employees. &nbsp;Judge Crone&rsquo;s order left in place the paycheck transparency provisions requiring contractors to provide regular statements disclosing wages and benefits to employees.</div> <div> &nbsp;</div> <div> An identical joint resolution is currently pending in the Senate. &nbsp;If the Senate passes its resolution, and the President signs it, the Executive Order regulations will no longer have any force and effect and will be nullified in its entirety, a legislative act that will cover not only the provisions of the Order that have already been stayed, but the paycheck transparency provisions as well. &nbsp;In addition, the CRA will preclude any future attempt to promulgate regulations requiring the same or similar procurement prohibitions and disclosures. We will continue to monitor the resolutions&rsquo; progress through both houses of Congress and the Executive Branch.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/EL020917 Executive Order Likely Dooms Website Regulations for Public Accommodations http://www.seyfarth.com:80//publications/EL020917 Thu, 09 Feb 2017 00:00:00 -0400 <div> President Obama&rsquo;s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018&mdash;eight years after the agency began its rulemaking process. &nbsp;The likelihood of such a proposed regulation being issued now is virtually non-existent.</div> <div> &nbsp;</div> <div> Among the flurry of executive orders President Trump signed this week was one entitled &ldquo;Reducing Regulation and Controlling Regulatory Costs&rdquo;. &nbsp;This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump&rsquo;s Administration.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/executive-order-likely-dooms-website-regulations-for-public-accommodations/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=d6c40d5931-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-d6c40d5931-71256185">click here</a></div> http://www.seyfarth.com:80//publications/EA020917-UK Gig Economy — Bike Couriers Set the Wheels in Motion on Workers Benefits http://www.seyfarth.com:80//publications/EA020917-UK Thu, 09 Feb 2017 00:00:00 -0400 <p> <strong>&lsquo;Gig&rsquo; economy: Latest developments </strong></p> <p> In a further challenge by a worker in the &lsquo;gig&rsquo; economy, an Employment Tribunal has ruled that a cycle courier was a &lsquo;worker&rsquo; and qualified for various employment protections. The Tribunal was not convinced by the contractual arrangements which positioned the courier as a self-employed operator and the courier company as their &ldquo;customer&rdquo;.</p> <p> <strong>What was the claim worth?</strong></p> <p> The cycle courier&rsquo;s claim was for just two days&rsquo; paid holiday, but the ramifications are much wider. &lsquo;Workers&rsquo; under UK law are a category that sits between &lsquo;employees&rsquo; (who have the fullest protection under UK law) and &lsquo;contractors&rsquo; (who have no right to benefits, although they are still protected against discrimination).&nbsp; Although &lsquo;workers&rsquo; do not have the protections against termination enjoyed by employees, they do have some valuable rights including the right to 28 days&rsquo; paid holiday per year (pro-rated if working less than full time hours), the national minimum wage (currently &pound;7.20 per hour, rising to &pound;7.50 in April), sick pay and restrictions on the hours they work.&nbsp; Given the number of individuals working in this way &mdash; the company in this case, CitySprint engages approximately 3,200 couriers in the UK &mdash; the ramifications for this business model are significant.&nbsp; &nbsp;</p> <p> <strong>&lsquo;Worker&rsquo; or contractor status&nbsp;</strong>&mdash;<strong>&nbsp;how do we know?</strong></p> <p> The Tribunals in these types of challenges are increasingly willing to disregard the terms of the contracts agreed between the parties. The courier in this case had signed a complex &lsquo;tender&rsquo; document which described her as a contractor, effectively running her own courier business.</p> <p> The Tribunal however placed more weight on the actual working arrangements, and in particular the <u>control</u> exercised over the individual. In this case, the individual underwent a training process, was expected to work the times allocated to her in the majority of cases or would not receive future work and had to follow high level instructions as to how she worked (&lsquo;smile with your greeting&rsquo;).&nbsp; The other key factor is whether the individual can genuinely send someone else in their place, or whether there is an obligation that they themselves do the work &mdash; what is known as &lsquo;<u>personal service</u>&rsquo;. In this case, the contract gave the individual a right to provide a substitute, but the terms on which this could be done were so restrictive that, in reality, she could only exchange shifts with another existing worker at the same company.&nbsp;</p> <p> <strong>What next for the &lsquo;gig&rsquo; economy?</strong></p> <p> This decision is another in a series of challenges by individuals working flexibly via new technology platforms, claiming protections as &lsquo;workers&rsquo; or &lsquo;employees&rsquo;. So far, private hire drivers and couriers have succeeded in challenges, with a number of other cases due to be heard this year. Although the UK has no concept of &lsquo;class actions&rsquo;, a Tribunal victory by one worker makes it easier for others working on the same basis to bring their own claims, or leverage these to negotiate more favourable terms of hire.</p> <p> As we reported in our December update, the Government is undertaking a consultation into levels of protection for contractors and other casual workers in the &lsquo;gig economy&rsquo;. We expect the findings to be published in the coming months, and the outcome may be legislation to create a specific legal framework for workers through new technology platforms, to give more certainty as to how they can agree genuinely &ldquo;freelance&rdquo; arrangements can be agreed. The European Union is currently considering a proposal from the French Government to this effect, as many European countries such as France and Spain have only a binary classification of employees (with very extensive protections) and contractors, which puts at risk the business model behind these new technology platforms.</p> <p> We will continue to monitor developments in the UK and at European level and will issue further alerts in the coming months.</p> http://www.seyfarth.com:80//publications/CDL020917 The Sedona Conference Delivers a One-Stop Guide for Privacy Counsel http://www.seyfarth.com:80//publications/CDL020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> Last month, The Sedona Conference released the public comment version of<em> The Sedona Conference Data Privacy Primer,</em> a comprehensive catalog of U.S. data privacy issues, legislation, and resources, designed to provide &ldquo;immediate and practical benefit&rdquo; to organizations and practitioners dealing with privacy issues. The Primer is a work product of The Sedona Conference Working Group Eleven on Data Security and Privacy Liability (WG11). <em>The Primer</em> is open for public comment until April 16, 2017.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/sedona-conference-delivers-one-stop-guide-privacy-counsel/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=b419b83732-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-b419b83732-72857025">click here</a></p> http://www.seyfarth.com:80//publications/WLS020917 Agreement terminations on the up – 5 union response strategies http://www.seyfarth.com:80//publications/WLS020917 Thu, 09 Feb 2017 00:00:00 -0400 <p> The Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/02/agreement-terminations-on-the-up-5-union-response-strategies/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=c37a924ee5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-c37a924ee5-71256725">click here</a>.</p> http://www.seyfarth.com:80//publications/WC020817 Seyfarth Exclusive! Discussion With EEOC Acting Chair Victoria Lipnic &Workplace Class Action Report Editor Jerry Maatman http://www.seyfarth.com:80//publications/WC020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> Seyfarth Shaw is pleased to present an exclusive discussion tomorrow, February 9th, between Victoria Lipnic, newly Trump-Appointed U.S. EEOC Acting Chair, and Gerald Maatman, the Editor of Seyfarth&rsquo;s 13th Annual Workplace Class Action Litigation Report. There is still time to sign up to attend the discussion via live webcast. Click here to join now!</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/seyfarth-exclusive-discussion-with-eeoc-acting-chair-victoria-lipnic-workplace-class-action-report-editor-jerry-maatman/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=424fa869f5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-424fa869f5-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/RPL020817 We found the bots we were looking for http://www.seyfarth.com:80//publications/RPL020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> The potential impact of artificial intelligence, automation, and related technologies has been the subject of enormous discussion within the legal industry over the last few years. Meanwhile, the actual, systematic application of these technologies within law firms has been spotty at best.</p> <p> To read the full blog post, <a href="https://medium.com/rethink-the-practice/we-found-the-bots-we-were-looking-for-277adef2bcfe#.xhbve0eas">click here</a>.</p> http://www.seyfarth.com:80//publications/WH020817a What 2016 Workplace Class Actions Filings Suggest Employers Are Apt To Face In 2017 http://www.seyfarth.com:80//publications/WH020817a Wed, 08 Feb 2017 00:00:00 -0400 <p> Overall complex employment-related litigation filings increased in 2016 insofar as employment discrimination cases were concerned, but decreased in the areas of ERISA class actions, governmental enforcement litigation, and wage &amp; hour collective actions and class actions. For the past decade, wage &amp; hour class actions and collective actions have been the leading type of &ldquo;high stakes&rdquo; lawsuits being pursued by the plaintiffs&rsquo; bar. Each year the number of such case filings increased. However, for the first time in over a decade, case filing statistics for 2016 reflected that wage &amp; hour litigation decreased over the past year.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/overtime/what-2016-workplace-class-actions-filings-suggest-employers-are-apt-to-face-in-2017/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=642d0c66fb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-642d0c66fb-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/WH020817 A Cautionary Comment on PAGA (or Plaintiffs’ Attorneys Getting Around) Legislative Intent http://www.seyfarth.com:80//publications/WH020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> Sometimes, plaintiffs&rsquo; attorneys have circumvented a key aspect of the California Legislature&rsquo;s intent in enacting PAGA: limiting standing to pursue penalties for Labor Code violations to those employees who were actually harmed. Though a new California bill could halt those attempts, PAGA plaintiffs&rsquo; wiliness warrants a cautionary comment to the Legislature to ensure that any amendment furthers&mdash;rather than further frustrates&mdash;the original legislative intent.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/a-cautionary-comment-on-paga-legislative-intent/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=9c12b4ce36-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-9c12b4ce36-71886141">click here</a></p> http://www.seyfarth.com:80//publications/CDL020814 Pacemaker Data May Be Smoking Gun in Aggravated Arson Case http://www.seyfarth.com:80//publications/CDL020814 Wed, 08 Feb 2017 00:00:00 -0400 <div> On September 19, 2016, Ross Compton told police that when he noticed a fire in his Middleton, Ohio home, he hastily packed suitcases, broke a window with his cane, and pushed his bags out the window, at which point he carried them to his car. After describing the scene to a 911 dispatcher, Compton added that he had an artificial heart. However, authorities began to question Compton&rsquo;s story when they found gasoline on Compton&rsquo;s clothes and discovered that the fire that destroyed his home appeared to have started in multiple areas at once.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/pacemaker-data-may-smoking-gun-aggravated-arson-case/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=a3881c691a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-a3881c691a-72857025">click here</a></div> http://www.seyfarth.com:80//publications/PresidentialPulse020817 Presidential Pulse: Labor Issues http://www.seyfarth.com:80//publications/PresidentialPulse020817 Wed, 08 Feb 2017 00:00:00 -0400 <div> The last #1 hit the Beatles recorded in 1970 was The Long and Winding Road, written by Paul McCartney. The song has been described as a metaphor for the journey the Beatles took from the clubs of Liverpool to the roof at Abbey Road Studio. Andrew Puzder, the Secretary-designate of the US Department of Labor may not wind up on the roof of the Francis Perkins Building singing to his fans but he may take the title of this iconic song as a metaphor for his own journey from Trump Tower to the Francis Perkins Building. Mr. Puzder has found out that being designated by the President-elect as cabinet member starts a very long journey until the fires of a confirmation hearing and then to his swearing in. In the case of Mr. Puzder, the Senate HELP Committee announced for the fourth time that his confirmation hearing, scheduled for February 7 has again been postponed. And as of this writing, a new date has not been scheduled. The reason advanced for the delay, and there is no public reason to doubt it, is that Mr. Puzder has yet to complete the various submissions to the Government Ethics Office and the Senate HELP Committee required for consideration. As the CEO of a large privately held company &ndash;CKE Restaurants - and one that is regularly under the purview of the Department of Labor, there are undoubtedly complicated financial issues to be resolved.</div> <div> &nbsp;</div> <div> And in addition, as has been publicly discussed, Mr. Puzder&rsquo;s nomination has drawn questions from impacted parties, including the labor unions, employee rights advocates and others (including career employees of the DOL itself) questioning his commitment to the mission of the Department of Labor. However, Mr. Puzder has also expressed many ideas as to how to move the workplace into the 21st Century and has expressed an interest in modernizing the Department of Labor. Mr. Puzder has brought these questions into play because unlike some of the other nominees, Mr. Puzder has a long history of commenting on labor and employment policy issues. As the executive of a fast food company, Mr. Puzder has publicly questioned the effects of raising the minimum wage and other labor regulatory activity which he believes inhibits the advancement of workers and the growth of job creating business, such as the NLRB&rsquo;s and the Department of Labor&rsquo;s change in the joint employer standard. While Mr. Puzder&rsquo;s observations and a book he authored were made as a private citizen, many question whether he will bring those beliefs into the Secretary&rsquo;s Office. Certainly these issues will be dealt with extensively when and if Mr. Puzder faces his confirmation hearing. The Senate HELP Committee has several Democratic Senators, including Sen Murray (Wash), Senator Sanders (Vt.), Senator Franken (Minn.), Senator Warren (Mass.) as well as Senators Casey, Bennet, Whitehouse, Baldwin, Murphy, Kaine and Hassan who will be sure to probe deeply into Mr. Puzder&rsquo;s background and beliefs. While the Republicans, led by Chairman Alexander and including such longtime members as Senator Hatch, Enzi (both former Chairs), Burr, Isakson, Paul, Collins, Cassidy, Young, Roberts, Murkowski and Scott can be expected generally to come to the aid of Mr. Puzder, the hearing promises to be an &ldquo;interesting&rdquo; one.</div> <div> &nbsp;</div> <div> However, while all of the focus remains on Mr. Puzder, the nomination process is a long and drawn out process, and at a cabinet agency such as the Department of Labor, the various agency heads, Assistant Secretaries, and Solicitor are critical to implement the policies of the administration and the Secretary. To date, there have been no nominations or announcements of intent to nominate any of these key positions. And there are several key appointed positions, such as the Director of the OFCCP, the members of the Administrative Review Board and other important positions which have to be filled. So that even if Mr. Puzder finally does get to raise his hand and swear fealty to the Constitution, his will be a lonely tenure until he gets to put in place his key deputies to run the various components of a very complex Department. While actions have been taken, such as the monthly BLS data reports and regularly scheduled audits and reviews, the key issues facing the Department will certainly not be addressed until all the key players are in place.</div> <div> &nbsp;</div> <div> In addition, focus on the Department of Labor should not obscure the status of the various adjudication and administrative agencies commissions and boards that are critical to understanding the full panoply of labor and employment policy enactment and enforcement. And here there are similar voids in the governing process. By statute or tradition, these agencies are governed by Boards or Commissions the majority of which are normally members of the President&rsquo;s party. However, in every key agency, the President has designated the remaining sole Republican member as Acting Chair, so that when and if the Administration gets to nominate and fill the various empty seats, the President can either remove the &ldquo;acting&rdquo; appendage from the title of the designated individuals and appoint them as &ldquo;permanent&rdquo; chair or give that title to the new members. So for example, at the NLRB there are two vacancies to be filled by Republicans and the lone Republican Member Phil Miscimarra has been designated Acting Chair. The key General Counsel&rsquo;s seat will not be vacant until the fall. So too at the EEOC, Commissioner Victoria Lipnic has been designated Acting Chair and the one current vacancy will be filled by a Republican nominee. However, there will not be a Republican majority at least until the fall or end of the year so that initiatives requiring Commission action will undoubtedly be long in coming. Too, the President has to nominate an EEOC General Counsel. So too at the Occupational Safety and Health Review Commission, the OSHA adjudicatory body there are two members and Heather MacDougall has been named Acting Chair. At the Merit Systems Protection Board, there is only one currently confirmed member, Mark Robbins, and he has been designated Vice Chair. And at the Federal Labor Relations Authority, Patrick Pizzella has been designated Acting Chair and there is one Democrat holdover.</div> <div> &nbsp;</div> <div> This is not to assume that these positions are not important. But rather in the swirl of a new administration, with perhaps more focus and controversy on the cabinet level nominees, the regulated community should not expect immediate attention will be given to all of their issues. And while the agencies are still fulfilling their designated tasks, assume that there will be no new landmark actions commenced. And in fact, because of the lid put on public announcements or press releases, do not expect to hear of new cases or settlements unless in a court decision. However, to conclude this theme, the Trump Administration is certainly not adopting a Let It Be attitude to labor and employment policy. Rather, it is beginning to turn its focus on these positions and issues but the result may still be in the distance.</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/EA020817-UK UK Gender Pay Gap Reporting – The Last Chance Saloon http://www.seyfarth.com:80//publications/EA020817-UK Wed, 08 Feb 2017 00:00:00 -0400 <div> The final version of the draft Gender Pay Gap Regulations have now been published and are expected to come into force on 6 April 2017. &nbsp;The latest version of the Regulations set out a number of changes from the previous version which we reported on in our <a href="http://www.seyfarth.com/publications/EA120616-UK" target="_blank">December alert</a>. We have highlighted the key differences below, and recapped the new rules. The date on which pay information is taken has now been brought forward from 30 April to 5 April, so UK employers now have just a few weeks to review their data and make any changes.</div> <div> &nbsp;</div> <div> The Regulations require employers with 250 or more UK employees (which is assessed separately by employing entity, so affiliates are not aggregated) to analyse and publish details of the salary and bonus paid to their female when compared with their male staff (i.e. the gender pay gap). &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This gender pay gap report must set out:</div> <ul> <li> The employer&rsquo;s overall &lsquo;gender pay gap&rsquo; figures (i.e. the difference between male and female pay) using both the mean and median average <strong>hourly pay</strong>. This is based only on data from the pay period in which 5 April falls (i.e. for most monthly paid employees, April payroll). This is then a &lsquo;snapshot&rsquo;, taken on a once a year basis. The revised regulations provide detailed guidance on how to calculate average hourly pay, although working out what hours an employee works is likely to be no more than an estimate for professional or senior employees who do not &ldquo;clock off&rdquo; at 5pm.<br /> &nbsp;</li> <li> The <strong>proportion of men and women in each of four pay bands</strong>, described as &lsquo;quartiles&rsquo;, which is set by taking the highest and lowest paid employees in the organization and setting quartiles between those points, each containing the same number of employees. This clarifies previous uncertainty as whether the quartiles would instead be set by splitting the total pay range into equal quarters. The revised regulations provide detailed guidance on how to determine the quartile pay bands. &nbsp;Note that there is no requirement to publish either the number of employees in each quartile or the actual monetary range but just to identify them as lower, lower middle, upper middle and upper and the gender pay gap in each expressed as a percentage.<br /> &nbsp;</li> <li> The overall difference, expressed as a percentage, between men and women&rsquo;s mean and median <strong>bonus </strong>pay. This is assessed over a 12-month period from April 2017 rather than on a one-month &lsquo;snapshot&rsquo; figure as with the hourly pay data. &nbsp;The requirement to publish &lsquo;median&rsquo; data as well as mean data is a change from the previous draft.<br /> &nbsp;</li> <li> The <strong>proportion</strong>, again expressed as a percentage, <strong>of male and female employees who received a bonus</strong> in the same 12-month period as above.</li> </ul> <div> <br /> Pay includes basic pay, bonuses, allowances and shift premiums. &nbsp;The revised regulations now exclude employees on reduced pay, addressing the concern that the data could be unfairly affected by those on, for example, maternity or sick leave and receiving reduced pay. &nbsp;It does not include overtime pay, expenses, benefits in kind or the value of salary sacrifice schemes. &nbsp;</div> <div> &nbsp;</div> <div> It is worth emphasising that pay information is taken on a &lsquo;snapshot&rsquo; basis for the month of April in each year, whereas bonus information (which includes LTIPs and the value of shares granted when they are deemed to be paid, being the time, and in the amount in respect of which, they give rise to taxable earnings income - this is a clarification from the previous draft regulations) covers payments made in the previous 12 months. &nbsp;The snapshot date has now been confirmed to be 5 April, a change from the previously stated date of 30 April.</div> <div> &nbsp;</div> <div> The information needs to be published on the employer&rsquo;s website and a government website within 12 months (i.e. by 4 April 2018 for the first report), and must remain publicly available for 3 years. There is currently no requirement for employers to have the information audited before publication.</div> <div> &nbsp;</div> <div> A written statement confirming that the gender pay gap information is accurate must also be published. &nbsp;This must be signed by a director or equivalent senior individual.</div> <div> &nbsp;In respect of enforcement, there are currently no sanctions for non-compliance. &nbsp;However, the government has now stated that the Equality and Human Rights Commission will be able to use its powers of enforcement. &nbsp;Additionally, the government has stated that it intends to run periodic checks to monitor compliance and may name and shame non-complying employers. Pressure groups are also expected to take an interest.</div> <div> &nbsp;</div> <div> The government has stated that it will also publish supporting guidance to assist organisations to comply with their obligations once the regulations have been finalized.</div> <div> &nbsp;</div> <div> <strong>Action Points</strong></div> <div> &nbsp;</div> <div> We expect these revised new rules to be finalized shortly, meaning that the first data grab will need to take place this coming 5 April, 2017 and the data published by no later than 4 April 2018. Obtaining, analyzing and presenting the pay information all present challenges and we strongly recommend that impacted employers prepare now. The key actions we previously identified remained relevant, namely:</div> <ul> <li> Who will &ldquo;own&rdquo; the process (HR, Legal, Compliance, etc.), and who will sign the report that is published?<br /> &nbsp;</li> <li> Is the information available? &nbsp;Tricky areas include identifying whether overseas employees are caught (for example, UK employees seconded overseas) and casual workers such as contractors who are not employees, but need to be included in the data because they work on &nbsp;a &lsquo;personal services&rsquo; basis. &nbsp;<br /> <br /> The revised Regulations helpfully provide an exception to the obligation to provide data where the employer does not have the data and it is &lsquo;not reasonably practicable to obtain it&rsquo;, which may be the case for some contractors or casual workers.<br /> &nbsp;</li> <li> Will the timing of pay and bonus rounds skew the data and, if so, can they be changed? Although bonuses need to be captured across the full 12 months, bonus paid in the &lsquo;snapshot&rsquo; month leading up to 5 April will be included in the &lsquo;headline&rsquo; hourly pay gap comparison. Can awards be brought forward or pushed back? &nbsp;<br /> &nbsp;</li> <li> Although not mandatory, the government guidance strongly encourages employers to provide a &lsquo;narrative&rsquo; explaining the results and setting them in context? &nbsp;If there is a significant pay gap between men and women, can steps be taken to reduce the gap or, perhaps more likely, to prepare a statement explain the differences in pay and explaining what general steps the employer is taking to promote diversity. &nbsp;</li> </ul> http://www.seyfarth.com:80//publications/LR020817 Supreme Court to Hear Class-Action Waiver Arguments in its October 2017 Term http://www.seyfarth.com:80//publications/LR020817 Wed, 08 Feb 2017 00:00:00 -0400 <div> As our regular readers already know, the Supreme Court is poised to decide one of the most contentious issues facing the wage-and-hour world&mdash;namely, whether class- and collective-action waivers render workplace arbitration agreements unenforceable.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/08/supreme-court-to-hear-class-action-waiver-arguments-in-its-october-2017-term/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=0b00c92f10-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-0b00c92f10-71423401">click here</a></div> http://www.seyfarth.com:80//publications/PEG020817 UK Gender Pay Gap Reporting - The Last Chance Saloon http://www.seyfarth.com:80//publications/PEG020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> The final version of the draft Gender Pay Gap Regulations have now been published and are expected to come into force on 6 April 2017. The latest version of the Regulations set out a number of changes from the previous version which we reported on in our December alert. We have highlighted the key differences below, and recapped the new rules. The date on which pay information is taken has now been brought forward from 30 April to 5 April, so UK employers now have just a few weeks to review their data and make any changes.</p> <p class="BodySingle"> To view the full post, <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog020817%285%29.pdf">click here.</a></p> http://www.seyfarth.com:80//news/turnbull-and-zowghi-authored-article-wolters-kluwer-020817 Justine Turnbull and Shomaice Zowghi authored an article in <i>Wolters Kluwer</i> http://www.seyfarth.com:80//news/turnbull-and-zowghi-authored-article-wolters-kluwer-020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> Justine Turnbull and Shomaice Zowghi authored &quot;Damages in sexual harassment and bullying claims &ndash; the stakes are rising,&quot; an article on February 8 in <em>Wolters Kluwer</em>. The article discusses how things are changing, especially in the area of sexual harassment where awards of damages for psychiatric illness are increasing.</p> <p> <a href="http://www.wolterskluwercentral.com.au/employment/damages-sexual-harassment-bullying-claims-stakes-rising/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/former-director-US-citizenship-and-immigration-services-joins-seyfarth Former Director of U.S. Citizenship and Immigration Services Joins Seyfarth http://www.seyfarth.com:80//news/former-director-US-citizenship-and-immigration-services-joins-seyfarth Wed, 08 Feb 2017 00:00:00 -0400 <div> <strong>Washington, DC - February 8, 2017</strong> - Leon Rodriguez, former director of U.S. Citizenship and Immigration Services at the Department of Homeland Security, is joining Seyfarth Shaw LLP as a partner in the firm&rsquo;s Labor &amp; Employment department in Washington, D.C.</div> <div> &nbsp;</div> <div> Rodriguez served as the most recent director of USCIS from 2014 to 2017, responsible for administering all U.S. immigration matters, including the processing of asylum and refugee applications, immigration benefits, and naturalization and visa petitions. In this role, Rodriguez oversaw a workforce of 19,000 government employees in 223 offices around the world.&nbsp;</div> <div> &nbsp;</div> <div> Prior to joining USCIS, he served as the director of the Office for Civil Rights at the U.S. Department of Health and Human Services from 2011 to 2014, responsible for the enforcement of federal civil rights laws and the Health Insurance Portability and Accountability Act (HIPAA) privacy rule that govern nondiscrimination and health information privacy rights.</div> <div> &nbsp;</div> <div> &ldquo;As the head of two critical government agencies, Leon brings an unparalleled level of firsthand interagency experience to Seyfarth at a time when clients face unprecedented uncertainty from the federal government,&rdquo; said Lisa Damon, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He will immediately provide clients with unique insight into the rapidly changing immigration landscape, and we&rsquo;re excited to welcome Leon to the firm.&rdquo;</div> <div> &nbsp;</div> <div> Rodriguez provides new depth to Seyfarth&rsquo;s Business Immigration Group, one of the nation&rsquo;s premier practices with more than 100 team members who provide comprehensive business immigration services throughout the United States and globally.</div> <div> &nbsp;</div> <div> &ldquo;Seyfarth has spent the past decade architecting the industry&rsquo;s most sophisticated service delivery model for clients who rely on us to manage their global mobility needs, but we now see a changing landscape that will undoubtedly include greater worksite enforcement actions,&rdquo; said Russell Swapp, co-chair of Seyfarth&rsquo;s Business Immigration Group. &ldquo;We are, therefore, honored to have such an influential statesman and well-respected compliance litigator join our group. No one understands the full spectrum of immigration challenges facing our clients today quite like Leon.&rdquo;</div> <div> &nbsp;</div> <div> &ldquo;Leon&rsquo;s investigative and enforcement experience with USCIS uniquely positions him to provide the type of strategic immigration counsel and agency insight clients need to operate their businesses and enhance their workforces amid a constant flow of changes,&rdquo; explained Jim King, co-chair of Seyfarth&rsquo;s Business Immigration Group.</div> <div> &nbsp;</div> <div> Beyond immigration, Rodriguez&rsquo;s arrival will also strengthen the growth of the firm&rsquo;s White Collar, Internal Investigations, and False Claims Team, and the Health Law practice.</div> <div> &nbsp;</div> <div> &ldquo;Leon is the rare senior government official who combines experience, entrepreneurial spirit and a passion for his work that will benefit the firm and our clients in a variety of practices,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office. &ldquo;As the Washington office continues to grow, Leon&rsquo;s presence not only adds depth and breadth to our existing practices, but also provides a unique perspective to those practices that few, if any, can match.&rdquo;</div> <div> &nbsp;</div> <div> With a long history of public service, Rodriguez has also held a number of federal prosecution roles. He previously served as Chief of Staff and Deputy Assistant Attorney Generals for the Department of Justice Civil Rights Division; First Assistant U.S. Attorney and Chief of White Collar Crimes Section in U.S. Attorney&rsquo;s Office for the Western District of Pennsylvania; and trial attorney for the Civil Rights Division at the Department of Justice.</div> <div> &nbsp;</div> <div> Fluent in both Spanish and French, Rodriguez received his law degree from Boston College Law School and holds a bachelor&rsquo;s in history from Brown University.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.</div> http://www.seyfarth.com:80//news/maatman-quoted-hr-dive-020817 Gerald Maatman quoted in <i>HR Dive</i> http://www.seyfarth.com:80//news/maatman-quoted-hr-dive-020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Wage-and-hour class action suits down in 2016, but settlements tripled,&quot; a February 8 story from <em>HR Dive</em> on Seyfarth&rsquo;s Workplace Class Action Litigation Report. The report tracks class action litigation over wage-and-hour laws, the Employee Retirement Income Security Act, discrimination and government enforcement. Maatman predicts that the number of class action wage-and-hour lawsuits will rise to and beyond the 2016 level.</p> <p> <a href="http://www.hrdive.com/news/wage-and-hour-class-action-suits-down-in-2016-but-settlements-tripled/435680/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/boutros-quoted-law360-020817 Andrew Boutros quoted in <i>Law360</i> http://www.seyfarth.com:80//news/boutros-quoted-law360-020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in &quot;Bizarre Bid To Sell FCA Suit Shows Value Of Secrecy,&quot; a February 8 story from <em>Law360 </em>on a D.C. lawyer accused of trying to sell access to a sealed False Claims Act complaint and how it demonstrates just how valuable that information would be to companies that may be under investigation for years. Boutros said that reporting the proposition to authorities was not only the unnamed company&#39;s only move, but it was also their best one.</p> http://www.seyfarth.com:80//news/curtis-authored-article-in-security-info-watch-020817 James Curtis authored an article in <i>Security Info Watch</i> http://www.seyfarth.com:80//news/curtis-authored-article-in-security-info-watch-020817 Wed, 08 Feb 2017 00:00:00 -0400 <p> James Curtis authored &quot;OSHA considers workplace violence standard for healthcare industry,&quot; an article on February 8 in <em>Security Info Watch</em>. The article discusses the recently published Federal Occupational Safety and Health Administration (OSHA) request for information in support of a new standard on workplace violence in the healthcare and social assistance settings.</p> <p> <a href="http://www.securityinfowatch.com/article/12303659/osha-considers-workplace-violence-standard-for-healthcare-industry">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-shaw-blue-prism-bring-robotic-process-automation-to-legal-industry Seyfarth Shaw and Blue Prism Bring Robotic Process Automation to Legal Industry http://www.seyfarth.com:80//news/seyfarth-shaw-blue-prism-bring-robotic-process-automation-to-legal-industry Tue, 07 Feb 2017 00:00:00 -0400 <div> <strong>Chicago and London &ndash; February 7, 2017</strong> &ndash; Seyfarth Shaw LLP in connection with subsidiary SeyfarthLean Consulting announced today an agreement with Blue Prism, the provider of the world&rsquo;s most successful digital workforce, to deploy its industry-leading robotic process automation (RPA) software to the firm, marking the first adoption of Blue Prism&rsquo;s technology for the legal industry. &nbsp;</div> <div> &nbsp;</div> <div> Blue Prism is the leading choice for secure, scalable and transformational digital labor deployments. The company&rsquo;s multi-skilled software robots are implemented as digital labor in the most demanding enterprise environments to eliminate low-return, high-risk, administrative and processing work to improve organizational efficiency and effectiveness while reducing operating costs.</div> <div> &nbsp;</div> <div> &ldquo;We&rsquo;re excited about the opportunity this creates to free our lawyers from some of the more mundane legal tasks so they can focus on helping our clients solve their most complex business issues,&rdquo; explained Seyfarth&rsquo;s chair emeritus Stephen Poor. &ldquo;In testing various use cases, we&rsquo;ve already seen how Blue Prism&rsquo;s RPA software can help us create exponential gains in productivity, and we&rsquo;ve only begun to scratch the surface of possibilities.&rdquo;</div> <div> &nbsp;</div> <div> &ldquo;We are very pleased with the benefits that Seyfarth is gaining from our software. As the first law firm on our platform, it joins an increasing number of organizations that are deploying Blue Prism&rsquo;s digital workforce to bring significant process improvement based on our innovative technology,&rdquo; said Pat Geary, chief marketing officer, Blue Prism.</div> <div> &nbsp;</div> <div> Expanding on these efforts, Seyfarth plans to develop robotic centers of excellence that formalize its capabilities in machine learning, RPA and artificial intelligence in order to drive new efficiencies throughout the firm. During the initial stages, Seyfarth is working closely with consulting company RPAi, an official Blue Prism partner that guides clients through the implementation of end-to-end RPA programs.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;Blue Prism provides an anchor around which we can refine and test the types of robotics that immediately make our lawyers better and faster,&rdquo; said Byong Kim, director of technology innovations, SeyfarthLean Consulting. &ldquo;At its core, this is about arming lawyers with the best technology, and software robots are the latest evolution.&rdquo;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.</div> <div> &nbsp;</div> <div> <strong>About Blue Prism</strong></div> <div> Blue Prism Robotic Process Automation (RPA) software delivers the world&rsquo;s most successful digital workforce, which operates within the most demanding enterprise administrative environments to automate high-risk, manual, rules-based and repetitive tasks and radically improves agility, efficiency, accuracy and compliance. Blue Prism provides a scalable and robust execution platform for best-of-breed AI and cognitive technologies and has emerged as the trusted and secure RPA platform for the digital enterprise. Blue Prism&rsquo;s RPA software has executed more than one billion transactions for enterprises including Aegon, BNY Mellon, Commerzbank, IBM, ING, Maersk, Nokia, Nordea, Procter &amp; Gamble, Raiffeisen Bank, Siemens, Westpac and Zurich. For more information, visit <a href="http://www.blueprism.com">www.blueprism.com</a> and follow the company on <a href="https://www.linkedin.com/company/blue-prism-limited">LinkedIn</a> and <a href="https://twitter.com/blue_prism">Twitter</a>.</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80//news/seyfarth-lawyers-named-to-2017-BTI-client-service-all-star-team Seyfarth Lawyers Named to 2017 BTI Client Service All-Star Team http://www.seyfarth.com:80//news/seyfarth-lawyers-named-to-2017-BTI-client-service-all-star-team Tue, 07 Feb 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP is pleased to announce that partners Brian T. Ashe (Labor &amp; Employment - San Francisco), Noah A. Finkel (Labor &amp; Employment - Chicago), Robert A. Fisher (Labor &amp; Employment - Boston), and Loren Gesinsky (Labor &amp; Employment - New York) were named BTI Client Service All-Stars by their clients in the latest report from The BTI Consulting Group.</div> <div> &nbsp;</div> <div> More than 300 corporate counsel nominated attorneys based primarily on their superior client focus, but also on their innovative thought leadership, unmatched business understanding, legal skills, outsize value and outstanding results. For more information on BTI&rsquo;s Client Service All-Stars, click <a href="http://www.bticonsulting.com/client-service-all-stars-law">here</a>.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com&nbsp;</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com&nbsp;</div> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-020717 Gerald Maatman quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-020717 Tue, 07 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Fewer Wage and Hour Class Actions Filed, But Value of Settlements Spikes,&quot; a February 7 story from <em>SHRM </em>on Seyfarth&rsquo;s <em>Workplace Class Action Litigation Report</em>. The report says that the trend for wage and hour cases ran counter to other employment law class actions, which decreased in settlement value by nearly 30 percent overall. Maatman said that plaintiffs&#39; class-action attorneys and governmental enforcement litigators are developing new theories to successfully prosecute complex employment litigation.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/class-action-wage-and-hour-2016.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/robertson-quoted-wealthmanagement-com-020717 Christopher Robertson quoted in <i>WealthManagement.com</i> http://www.seyfarth.com:80//news/robertson-quoted-wealthmanagement-com-020717 Tue, 07 Feb 2017 00:00:00 -0400 <p> Christopher Robertson was quoted in &quot;How Will Trump&rsquo;s SEC Handle RIAs?,&quot; a February 7 story from <em>WealthManagement.com</em> on how not much is known about how RIAs will fare under the new administration&rsquo;s Securities and Exchange Commission (SEC), specifically in regards to the National Examination Program (NEP). Robertson said he expects under the new SEC chief some deregulation through less enforcement.</p> <p> <a href="http://www.wealthmanagement.com/regulation-compliance/how-will-trump-s-sec-handle-rias">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/PEG020717 Pay Equity Joins the Big Game: Commercial Tackles Pay Equity at the Super Bowl http://www.seyfarth.com:80//publications/PEG020717 Tue, 07 Feb 2017 00:00:00 -0400 <div> <div> Pay equity is officially prime time. For some, the Super Bowl is a long-awaited football championship game. But, for others, the Super Bowl is all about the commercials. For a price tag of upwards of $5 million dollars, advertisers are afforded global access to well over 100 million viewers, and commercials on football&rsquo;s biggest day are often cultural markers of the relevant social issues of the time. This year, <a class="cms-content-links" href="https://www.youtube.com/watch?v=G6u10YPk_34">Audi&rsquo;s Super Bowl advertisement</a>, which ends by blazing across the screen the statement &ldquo;Audi of America is committed to equal pay for equal work. Progress is for everyone,&rdquo; adds pay equity to the list of social issues cemented in Super Bowl commercial famedom.</div> <div> &nbsp;</div> </div> <div> To view the full post, <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog020717%286%29.pdf">click here.</a></div> http://www.seyfarth.com:80//publications/TS020717 Seyfarth Shaw is pleased to announce the publication of the Trading Secrets 2016 Year in Review! http://www.seyfarth.com:80//publications/TS020717 Tue, 07 Feb 2017 00:00:00 -0400 <div> The 2016 Year in Review is a compilation of our significant blog posts from throughout last year and is categorized by specific topics such as: Trade Secrets, Computer Fraud and Abuse Act, Non-Compete &amp; Restrictive Covenants, Legislation, International, and Social Media and Privacy. As demonstrated by our specific blog entries, including our <a href="http://www.tradesecretslaw.com/2017/01/articles/dtsa/top-developmentsheadlines-in-trade-secret-computer-fraud-and-non-compete-law-in-2016/">Top Developments/Headlines</a>, <a href="http://www.tradesecretslaw.com/2017/01/articles/dtsa/2016-trade-secrets-webinar-series-year-in-review-released/">Trade Secrets Webinar Series &ndash; Year in Review</a> and our <a href="http://www.tradesecretslaw.com/latest-update-on-federal-trade-secret-legislation/">dedicated page</a> concerning federal trade secret legislation, our blog authors stay on top of the latest developments in this area of law and provide timely and entertaining posts on significant new cases, legal developments, and legislation.</div> <div> &nbsp;</div> <div> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/02/articles/trade-secrets/seyfarth-shaw-is-pleased-to-announce-the-publication-of-the-trading-secrets-2016-year-in-review/">click here</a>.</div> http://www.seyfarth.com:80//publications/PTAB020717 IPR NOT INSTITUTED OVER DUPLICATIVE PRIOR ART http://www.seyfarth.com:80//publications/PTAB020717 Tue, 07 Feb 2017 00:00:00 -0400 <div> Challenges of patents in <em>Inter Partes</em> Reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) must be based on anticipation or obviousness over printed prior art (35 U.S.C. &sect; 311(b)). &nbsp;However, it is important that the petitioners carefully choose the proper prior art to be relied on before filing the petitions. &nbsp;This post discusses a decision of the PTAB to deny institution of an IPR because the petition relied on duplicative prior art. The case is <em>Nu Mark LLC v. Fontem Holdings 1, B.V.</em> (Case IPR2016-01309; Decision Denying Institution entered December 15, 2016) concerning Patent No. 8,863,752 B2 (&ldquo;the &lsquo;752 patent&rdquo;). &nbsp;At the end of this post, strategies to avoid the denial of IPR institution in a similar situation or to deal with the denial will be discussed.&nbsp;</div> <div> &nbsp;</div> <div> The &lsquo;752 patent concerns electronic cigarettes. &nbsp;A petition was filed to institute an IPR for some of the claims of the &lsquo;752 patent on the grounds that the challenged claims were obvious over two prior art references, Brooks I (US 4,947,874) and Whittemore (US 2,057,353). &nbsp;The claims were directed toward an atomizer assembly for an electronic cigarette, and are summarized below without reproduction of every claim element for brevity sake. &nbsp;The claimed atomizer assembly for an electronic cigarette comprises&nbsp;</div> <div> &nbsp;</div> <p> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; a housing containing an atomizer in contact with a liquid storage;</p> <p> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; a screw thread electrode on one end of the housing;</p> <p> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; a through-hole centered on the screw thread electrode; and</p> <p> &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; a flow passageway from the atomizer to an outlet. &nbsp;</p> http://www.seyfarth.com:80//publications/EL020717 Additional Information for Implementing the Renewed Disability Self-ID Form http://www.seyfarth.com:80//publications/EL020717 Tue, 07 Feb 2017 00:00:00 -0400 <p> Last week we updated contractors on OMB&rsquo;s renewal of the disability self-identification form (see post here). &nbsp;Note that there were no substantive changes to the form and that the only change was an update to the effective date from January 31, 2017 until January 31, 2020. Since that update, we have learned that the OFCCP is expecting contractors to &ldquo;immediately&rdquo; take steps to update the form to reflect the new effective date. &nbsp;For those contractors who need additional time to update the expiration date, the National Office has implemented a 10-day &ldquo;grace period.&rdquo; For unexplained reasons, the OFCCP has not publicized this deadline on its website. Nonetheless, contractors should take immediate steps to update the disability self-ID form with the new effective date and implement the change by February 10th.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/additional-information-for-implementing-the-renewed-disability-self-id-form/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=7fd6a07155-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-7fd6a07155-71256185">click here</a></p> http://www.seyfarth.com:80//publications/TS020717a Webinar Recap! 2016 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law http://www.seyfarth.com:80//publications/TS020717a Tue, 07 Feb 2017 00:00:00 -0400 <p> We are pleased to announce the webinar &ldquo;2016 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law&rdquo; is now available as a webinar recording.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/02/articles/trade-secrets/webinar-recap-2016-national-year-in-review-what-you-need-to-know-about-the-recent-casesdevelopments-in-trade-secrets-non-compete-and-computer-fraud-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d70fd29084-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d70fd29084-71256389">click here</a>.</p> http://www.seyfarth.com:80//publications/WC020617 What 2016 Workplace Class Actions Filings Suggest Employers Are Apt To Face In 2017 http://www.seyfarth.com:80//publications/WC020617 Mon, 06 Feb 2017 00:00:00 -0400 <p> Overall complex employment-related litigation filings increased in 2016 insofar as employment discrimination cases were concerned, but decreased in the areas of ERISA class actions, governmental enforcement litigation, and wage &amp; hour collective actions and class actions. For the past decade, wage &amp; hour class actions and collective actions have been the leading type of &ldquo;high stakes&rdquo; lawsuits being pursued by the plaintiffs&rsquo; bar. Each year the number of such case filings increased. However, for the first time in over a decade, case filing statistics for 2016 reflected that wage &amp; hour litigation decreased over the past year.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/what-2016-workplace-class-actions-filings-suggest-employers-are-apt-to-face-in-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=7e50e4a64e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-7e50e4a64e-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM020617-LE Updated: OMB Renews Disability Self-ID Form Required for Federal Contractors and Subcontractors http://www.seyfarth.com:80//publications/OMM020617-LE Mon, 06 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On January 31, 2017, the Office of Management and Budget (&ldquo;OMB&rdquo;) renewed the disability self-ID form.&nbsp; The form was set to expire, however, OMB&rsquo;s action extends the self-ID form&rsquo;s expiration date to January 31, 2020.&nbsp; Federal contractors and subcontractors subject to Section 503 of the Rehabilitation Act of 1973 should begin using the renewed form as soon as possible. </em></p> <p> On Tuesday, the Office of Management and Budget (&ldquo;OMB&rdquo;) renewed the self-identification of disability form that it originally approved as part of the updates that the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) made to Section 503 of the Rehabilitation Act of 1973 (&ldquo;Section 503&rdquo;).&nbsp; This renewal means that employers doing business with the federal government are expected to continue soliciting disability information and that going forward, they will need to do so using the newly approved form.</p> <p> <strong>What Does Section 503 Require?</strong></p> <p> Under Section 503, employers with 50 or more employees that perform work on federal contracts in excess of $50,000, are required to invite applicants (pre and post-offer) and employees to self-identify their disability status.&nbsp; Contractors with 100 employees or more are required to summarize their employees&rsquo; responses in each job group that they have created as part of their written affirmative action plan and compare their current disability utilization against the annual utilization goal established by the OFCCP while those with fewer than 100 employees may simply measure the disability utilization throughout their total workforce against the OFCCP utilization goal.&nbsp; Section 503 also requires contractors to summarize applicant self-identification responses.</p> <p> <strong>What Does The Renewal Mean for Contractors?</strong></p> <p> There were no substantive changes made to the disability self-identification form.&nbsp; The only portion which was updated was the expiration date, which now terminates on January 31, 2020. &nbsp;The new form can be located using the following link:</p> <p style="margin-left:.5in;"> <a href="https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf">https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf</a></p> <p> As with the previous iteration, contractors may not alter its content in any way.&nbsp; Contractors may however create an electronically fillable copy of the form for easier integration into their application process provided that the electronic form complies with the following specifications:</p> <ul> <li> Display the OMB number and expiration date;</li> <li> Contain the text of the form without alteration;</li> <li> Use a sans&ndash;serif font, such as Calibri or Arial; and</li> <li> Use at least 11&ndash;pitch for font size (with the exception of the footnote and burden statement, which must be at least 10&ndash;pitch in size).</li> </ul> <p> &nbsp;</p> <p> Seyfarth Shaw&rsquo;s OFCCP and Affirmative Action Compliance team leads the legal industry in thought leadership, affirmative action plan preparation, compliance review representation and employer advocacy on issues relating to contractor compliance.&nbsp; We have a long track record of experience and we are ready to help assist with all of your affirmative action compliance needs.</p> http://www.seyfarth.com:80//publications/CDL020617 President Trump to Issue Executive Order on Cybersecurity http://www.seyfarth.com:80//publications/CDL020617 Mon, 06 Feb 2017 00:00:00 -0400 <div> President Trump is expected to sign soon <strong><em>Executive Order on Strengthening U.S. Cyber Security and Capabilities</em></strong>. &nbsp; Reports about a &ldquo;leaked draft&rdquo; of the Executive Order on Cybersecurity surfaced on the Internet a few days ago, along with predictions that the Order will be signed on January 31. &nbsp;The Order is yet to be signed and the publicized draft may undergo some changes.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/president-trump-issue-executive-order-cybersecurity/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=a23a2e69be-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-a23a2e69be-72857025">click here</a></div> http://www.seyfarth.com:80//publications/OMM020617-LE2 Additional Information for Implementing the Renewed Disability Self-ID Form http://www.seyfarth.com:80//publications/OMM020617-LE2 Mon, 06 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Federal Contractors should immediately update the Disability Self-ID Form to include the new expiration date.&nbsp; The OFCCP is allowing a 10-day grace period, until February 10th to update the form. </em></p> <p> Last week we updated contractors on OMB&rsquo;s renewal of the disability self-identification form<a href="http://www.seyfarth.com/publications/OMM020617-LE"> (see post here)</a>.&nbsp; Note that there were no substantive changes to the form and that the only change was an update to the effective date from January 31, 2017 until January 31, 2020. Since that update, we have learned that the OFCCP is expecting contractors to &ldquo;immediately&rdquo; take steps to update the form to reflect the new effective date.&nbsp; For those contractors who need additional time to update the expiration date, the National Office has implemented a 10-day &ldquo;grace period.&rdquo; For unexplained reasons, the OFCCP has not publicized this deadline on its website. Nonetheless, contractors should take immediate steps to update the disability self-ID form with the new effective date and implement the change by February 10th.</p> <p> <u>To ensure the updated form is in use, contractors should take the following steps:&nbsp;</u></p> <ul> <li> Update online application systems to ensure that they are displaying the self-ID form with the new effective date.<u> </u></li> <li> Update new hire onboarding systems to ensure that these materials include the updated form, including updating paper copies that may be utilized.</li> <li> Ensure that the updated form is used in interim reminders to employees of their option to update their disability status.</li> <li> Ensure that the updated form is used in any resurvey of the workforce.</li> <li> For those contractors who are currently subject to a compliance review, ensure that you can demonstrate that you have implemented the updated form or readily show the steps that&nbsp; you have taken to transition to the updated form.&nbsp;</li> </ul> <p> &nbsp;</p> <p> The new form can be located using the following link:</p> <p> <a href="https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf">https://www.dol.gov/ofccp/regs/compliance/sec503/Self_ID_Forms/VoluntarySelf-ID_CC-305_ENG_JRF_QA_508c.pdf</a></p> <p> Seyfarth Shaw&rsquo;s OFCCP and Affirmative Action Compliance team leads the legal industry in thought leadership, affirmative action plan preparation, compliance review representation and employer advocacy on issues relating to contractor compliance.&nbsp; We have a long track record of experience and we are ready to help assist with all of your affirmative action compliance needs.</p> <p> &nbsp;</p> http://www.seyfarth.com:80//news/weiss-interviewed-WGN-radio-020617 Philippe Weiss interviewed by <i>WGN Radio</i> http://www.seyfarth.com:80//news/weiss-interviewed-WGN-radio-020617 Mon, 06 Feb 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed for <em>WGN Radio</em>&#39;s &quot;Wintrust Business Lunch&quot; on February 6 to discuss the SSAW&rsquo;s survey on what federal law or policy area(s) will significantly affect jobs under the new administration. <a href="http://wgnradio.com/2017/02/06/wintrust-business-lunch-2617-work-politics-twitter-bots-potatoes/">You can listen to the interview at minute 21:45</a>.</p> http://www.seyfarth.com:80//news/quill-quoted-SHRM-020517 John Quill quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/quill-quoted-SHRM-020517 Sun, 05 Feb 2017 00:00:00 -0400 <p> John Quill was quoted in &quot;Judge Halts President Trump&rsquo;s Immigration Ban,&quot; a February 5 story from <em>SHRM </em>on how employment-based immigration and travel may continue as before, but the situation is still fluid. Quill said that Customs and Border Protection (CBP) agents must treat admissions of foreign nationals with valid visas or green cards as they would have before the order was issued. He also noted that these individuals still may face lengthy questioning and potential delays when being inspected by CBP for admission.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/judge-halts-president-trump-immigration-ban-muslim.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/MA020517-LE Federal Court Temporarily Halts Suspension of Travel to U.S. for Previously Affected Foreign Nationals http://www.seyfarth.com:80//publications/MA020517-LE Sun, 05 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Immediate Stay of Trump&rsquo;s Executive Order has been denied and travel ban remains halted for now.</em></p> <p> On Friday, February 3, a Federal District Court in Washington issued a temporary restraining order (TRO), which prohibits the federal government from enforcing President Trump&rsquo;s January 27, 2017 Executive Order that suspended travel to the United States for certain foreign nationals.&nbsp; This TRO took effect immediately and is in effect nation-wide.&nbsp; At present, any foreign national who was impacted by the travel ban can be admitted to the United States.&nbsp; However, this situation remains fluid and can change any day.</p> <p> <strong>Background</strong></p> <p> On Friday, January 27, President Trump signed an Executive Order which suspended travel into the United States for nationals from certain designated countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This suspension in travel took effect immediately, and was to be in place for at least 90 days.&nbsp; More information on the Executive Order can be found <a href="http://www.seyfarth.com/publications/MA012917-LE">in Seyfarth&#39;s original alert</a> and <a href="http://www.seyfarth.com/publications/OMM013117-LE">our updated alert</a>.</p> <p> <strong>Impact of TRO</strong></p> <p> The TRO has the following impact:</p> <ul> <li> Government agencies are prohibited from enforcing the Executive Order.&nbsp; Unlike prior TROs which were limited in geographic scope, the TRO from the Federal District Court in Washington is in effect nation-wide.</li> <li> Customs and Border Protection (CBP) Ports of Entry must begin inspecting for admission any foreign national who has a valid visa or green card and who was impacted by the travel ban.&nbsp; Please note, these individuals still may face lengthy questioning and potential delays when being inspected by CBP for admission.</li> <li> Airlines have been instructed that any foreign national with a valid visa or green card who was impacted by the travel ban should be allowed to board flights to the United States.</li> <li> The Department of State (DOS) announced that it has reversed its previous revocation of visas from foreign nationals from the impacted countries.&nbsp; Therefore, any foreign national who was impacted by the travel ban can use their existing visa to be admitted to the United States as long as the visa has not been stamped or &nbsp;marked as &ldquo;canceled.&rdquo;</li> <li> <strong>Foreign nationals who were banned from entering the United States based on the January 27 Executive order should make <em>immediate</em> plans to travel if they wish to return to the United States.&nbsp; The current situation could change any day.</strong></li> <li> <strong>Those foreign nationals who are impacted by the travel ban are advised to remain in the U.S. due to the potential for further changes to enforcement of the Executive Order.</strong></li> </ul> <p> <strong>Response from Trump Administration</strong></p> <p> On Saturday, February 4, the Department of Justice (DOJ) filed an appeal to the Federal Court of Appeals, requesting that the TRO be overturned and that the Executive Order be reinstated.&nbsp; On Sunday, February 5, the Court of Appeals denied the DOJ&rsquo;s immediate request.&nbsp; However, parties to the TRO were instructed to file arguments on Monday, February 6, and the Court of Appeals is likely to make a further ruling early this week.</p> <p> This has been a tumultuous week for those impacted by the January 27 Executive Order.&nbsp; The situation may change again this week.&nbsp; Seyfarth Shaw will continue to keep our clients informed on further developments.</p> http://www.seyfarth.com:80//publications/ADA020317 Executive Order Likely Dooms Website Regulations for Public Accommodations http://www.seyfarth.com:80//publications/ADA020317 Fri, 03 Feb 2017 00:00:00 -0400 <div> President Obama&rsquo;s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018&mdash;eight years after the agency began its rulemaking process. &nbsp;The likelihood of such a proposed regulation being issued now is virtually non-existent.</div> <div> &nbsp;</div> <div> Among the flurry of executive orders President Trump signed this week was one entitled &ldquo;Reducing Regulation and Controlling Regulatory Costs&rdquo;. &nbsp;This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump&rsquo;s Administration.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/02/executive-order-likely-dooms-website-regulations-for-public-accommodations/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=3d4b58d998-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-3d4b58d998-71256157">click here</a></div> http://www.seyfarth.com:80//publications/LR020317 Federal Legislators Tell NLRB GC Griffin to Rescind His Education Report or Step Aside (Blog Post) http://www.seyfarth.com:80//publications/LR020317 Fri, 03 Feb 2017 00:00:00 -0400 <p> <strong>Seyfarth Synopsis:</strong> Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) ask NLRB General Counsel Griffin to either immediately rescind his January 31 report regarding the purported rights of faculty, students and scholarship athletes, or &ldquo;step aside as general counsel.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/03/federal-legislators-tell-nlrb-gc-griffin-to-rescind-his-education-report-or-step-aside/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=584d20349d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-584d20349d-71423401">click here</a></p> http://www.seyfarth.com:80//publications/MA020317-LE Federal Legislators Tell NLRB GC Griffin to Rescind His Education Report or Step Aside http://www.seyfarth.com:80//publications/MA020317-LE Fri, 03 Feb 2017 00:00:00 -0400 <p align="left"> <strong><em>Seyfarth Synopsis</em></strong><em>:&nbsp; Congressional Committee Head Virginia Foxx (R-NC) and Subcommittee Chair Tim Walberg (R-MI) ask NLRB General Counsel Griffin to either immediately rescind his January 31 report regarding the purported rights of faculty, students and scholarship athletes, or &ldquo;step aside as general counsel.&rdquo;</em></p> <p align="left"> Yesterday, we reported that Richard F. Griffin, Jr., the General Counsel of the National Labor Relations Board, issued a report titled &ldquo;General Counsel&rsquo;s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.&rdquo;&nbsp; A copy of&nbsp; yesterday&rsquo;s Management Alert can be found <a href="http://www.seyfarth.com/publications/OMM020217-LE3">here</a>.</p> <p align="left"> It did not take long for Griffin&rsquo;s Report to catch the attention of Congress.&nbsp; Yesterday, Representative Virginia Foxx (R-NC), Chairwoman of the House Committee on Education and the Workforce, and Representative Tim Walberg (R-MI), Chairman of the House Subcommittee on Health, Employment, Labor, and Pensions, jointly issued a response to the Report, calling for Griffin to &ldquo;rescind his memorandum immediately&rdquo; or&nbsp; &ldquo;step aside as general counsel.&rdquo;&nbsp;&nbsp; In support of their request, the Representatives jointly stated that the &ldquo;memorandum puts the interests of union leaders over America&rsquo;s students, and it has the potential to create significant confusion at college campuses across the nation.&rdquo;&nbsp;</p> <p> Even if Griffin refuses to withdraw the Report, it reasonably can be anticipated that the General Counsel appointed by President Trump at the conclusion of Griffin&rsquo;s appointment in&nbsp; November, or the soon-to-be Trump appointed Board majority, will revisit not only the Report but also the underlying decisions in <em>Pacific Lutheran</em>, <em>Columbia</em> and <em>Northwestern</em>.&nbsp;</p> http://www.seyfarth.com:80//publications/WC020317 The Statistics Underlying Workplace Class Action Certification Rulings In 2016 – Trend #3 http://www.seyfarth.com:80//publications/WC020317 Fri, 03 Feb 2017 00:00:00 -0400 <p> Surveys of corporate counsel confirm that complex workplace litigation &ndash; and especially class actions and multi-plaintiff lawsuits &ndash; are one of the chief exposures driving corporate legal budgetary expenditures, as well as the type of legal dispute that causes the most concern for their companies.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/the-statistics-underlying-workplace-class-action-certification-rulings-in-2016-trend-3/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=7e50e4a64e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-7e50e4a64e-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/GPW020317 Upcoming Event: Hot Issues in Workplace Privacy – What You Need to Know http://www.seyfarth.com:80//publications/GPW020317 Fri, 03 Feb 2017 00:00:00 -0400 <p> Please join us on Wednesday, February 22, for a discussion of what every employer needs to know regarding recent legal developments on select issues in workplace privacy</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/02/upcoming-event-hot-issues-in-workplace-privacy-what-you-need-to-know/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_medium=email&amp;utm_campaign=5ce7c6e943-RSS_EMAIL_CAMPAIGN&amp;utm_term=0_96fbafbd4b-5ce7c6e943-71256385">click here</a>.</p> http://www.seyfarth.com:80//news/mancino-quoted-modern-healthcare-020317 Douglas Mancino quoted in <i>Modern Healthcare</i> http://www.seyfarth.com:80//news/mancino-quoted-modern-healthcare-020317 Fri, 03 Feb 2017 00:00:00 -0400 <p> Douglas Mancino was quoted in &quot;Trump&#39;s call to repeal tax rule could allow hospitals to support candidates. But would they?,&quot; a February 3 story from <em>Modern Healthcare</em> on the news that the President told faith leaders that he would &ldquo;get rid of and totally destroy&rdquo; the Johnson amendment, which prohibits certain tax-exempt organizations, including hospitals, from engaging in political activity. Mancino said that where it strategically makes sense with good advice, not-for-profit health systems can figure out ways to donate at the federal level as well as at the state level.</p> <p> <a href="http://www.modernhealthcare.com/article/20170203/NEWS/170209976">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/paparelli-quoted-fast-company-020217 Angelo Paparelli was quoted in <i>Fast Company</i> http://www.seyfarth.com:80//news/paparelli-quoted-fast-company-020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;What The Trump Immigration Ban Means For Business,&quot; a February 1 story from <em>Fast Company</em> on what President Trump&#39;s executive orders on immigration and visas mean for keeping and hiring employees. Paparelli advises employers to develop a new corporate policy or revise existing policy on the sponsorship of foreign workers affected by the executive order.</p> <p> <a href="https://www.fastcompany.com/3067755/the-future-of-work/what-the-trump-immigration-ban-means-for-business">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-human-resource-executive-020217 Gerald Maatman quoted in <i>Human Resource Executive</i> http://www.seyfarth.com:80//news/maatman-quoted-human-resource-executive-020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Surveying the Class-Action Landscape,&quot; a February 2 story from <em>Human Resource Executive</em> on Seyfarth&rsquo;s <em>Workplace Class Action Litigation Report</em>. The report says that the value of the top 10 wage-and-hour class action settlements soared to $695.5 million in 2016, up from $463.6 million in 2015. Maatman said that with plaintiffs&#39; lawyers scoring such significant victories, that will make class actions easier to prosecute and result in more certification orders.</p> <p> <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534361759&amp;">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-cfo-com-020217 Gerald Maatman quoted in <i>CFO.com</i> http://www.seyfarth.com:80//news/maatman-quoted-cfo-com-020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Can Companies Bar Workers from Filing Class-Action Claims?&quot;, a February 2 story from <em>CFO.com</em> on how the Supreme Court will seek to clarify whether workers can be compelled to sign agreements that prevent them from banding together to sue employers. Maatman said that, for many CFOs, this may be the most important thing happening on the law front in 2017.</p> <p> <a href="http://ww2.cfo.com/legal/2017/02/can-companies-bar-workers-from-class-action-claims-arbitration/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/launey-interviewed-KOMU-TV-020217 Kristina Launey interviewed on <i>KOMU-TV</i> http://www.seyfarth.com:80//news/launey-interviewed-KOMU-TV-020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> Kristina Launey was interviewed for &quot;TARGET 8: &quot;Drive-by lawsuits&quot; over accessibility challenge businesses,&quot; a February 2 story on <em>KOMU-TV</em> regarding serial plaintiffs who continue to bring &ldquo;drive-by lawsuits&rdquo; against small and large businesses all over the country, potentially costing them thousands of dollars. More than 6,500 businesses in the United States faced ADA lawsuits in 2016, according to data compiled by Seyfarth Shaw LLP. Launey said that part of the reason of why those are so frequent in the lawsuits we see is because it&rsquo;s easy.</p> <p> <a href="http://www.komu.com/news/target-8-drive-by-lawsuits-over-accessibility-challenge-businesses">You can view the full story here</a>.</p> http://www.seyfarth.com:80//publications/WLS020217 Damages in sexual harassment and bullying claims – the stakes are rising http://www.seyfarth.com:80//publications/WLS020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> In the world of anti-discrimination law awards of money against employers for psychiatric injury or illness caused by sexual harassment by one of their employees have been rare and low, typically in the range of $12,000 to $20,000. Similarly, the anti-bullying jurisdiction of the Fair Work Commission has seen limited orders made to prevent further bullying where claims have been made, and compensation is not available as a remedy for bullying behavior.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/02/damages-in-sexual-harassment-and-bullying-claims/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=6be7e84e9f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-6be7e84e9f-71256725">click here</a>.</p> http://www.seyfarth.com:80//publications/WC020217 Supreme Court Update: Trump Announces Nomination Of Judge Neil Gorsuch To U.S. Supreme Court – What Employers Need To Know http://www.seyfarth.com:80//publications/WC020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> On Tuesday, February 1, 2017, President Trump announced the selection of Judge Neil Gorsuch to the U.S. Supreme Court. Judge Gorsuch sits on the U.S. Court of Appeal for the 10th Circuit. If confirmed by the Senate, Judge Gorsuch would fill the vacancy to replace Justice Scalia.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/supreme-court-update-trump-announces-nomination-of-judge-neil-gorsuch-to-u-s-supreme-court-what-employers-need-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=79e059e863-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-79e059e863-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM020217-LE2 Guidance From the City of Los Angeles: New Ban the Box Regulations http://www.seyfarth.com:80//publications/OMM020217-LE2 Thu, 02 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;The City of Los Angeles recently issued its anticipated Rules and Regulations Implementing the Fair Chance Initiative For Hiring (Ban the Box) Ordinance, providing critical guidance to employers on compliance with the new ban the box ordinance.</em></p> <p> As previously <a href="http://www.seyfarth.com/publications/OMM013017-LE">reported</a>, the Los Angeles Fair Chance Initiative for Hiring (the &ldquo;Ordinance&rdquo;) became effective on January 22, 2017, with enforcement beginning on July 1, 2017. The Department of Public Works Bureau of Contract Administration (the &ldquo;Department&rdquo;), who bears administrative responsibilities for the Ordinance, just issued its <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Ordinance%20Rules%20and%20Regulations%20Final.pdf">Rules and Regulations</a> (the &ldquo;Regs&rdquo;) to guide private employers (and city contractors/subcontractors) with compliance.</p> <p> <strong>New Definitions</strong></p> <p> An &ldquo;Applicant&rdquo; is someone who submits an application or other documentation for employment to a covered employer <em>regardless of location</em>. In other words, if the prospective employee will perform at least two hours of work during an &ldquo;Average Week&rdquo; (determined by the last 4 complete weeks before the position is advertised) within the geographic boundaries of the City, it does not matter where the individual is located when applying for the position.</p> <p> &ldquo;Criminal History&rdquo; refers to information regarding <em>convictions</em> (i.e., a plea, verdict, or finding of guilt regardless of whether sentence is imposed by the court), in any format (oral, written, etc.), and from any source (including the individual him/herself). Consideration of arrests (or pending records) is impermissible.</p> <p> &ldquo;Employee&rdquo; is defined broadly to include full-time, part-time, seasonal, and temporary workers. Owners, management, and supervisors are also included&mdash;as are independent contractors&mdash;so long as they meet the definition of Employee. As a reminder, the Ordinance applies to any private employer that employs at least 10 individuals.</p> <p> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Notable exceptions:</p> <ul> <li style="margin-left: 1in;"> Time spent traveling through Los Angeles with no employment-related stops (except for refueling or personal meals) is <strong>NOT</strong> considered time worked within the City.</li> <li style="margin-left: 1in;"> An individual who lives in Los Angeles and works from home, including telecommuting, is an Employee in the City.</li> <li style="margin-left: 1in;"> An individual who lives outside of Los Angeles and works from home is <strong>NOT</strong> an Employee, even if the employer is a Los Angeles-based company, unless the individual also works in the City two hours or more during an Average Week.</li> </ul> <p> &nbsp;</p> <p> An &ldquo;Individualized Assessment&rdquo; is a written determination made by the employer whether there is a link between the Applicant&rsquo;s Criminal History and the risks inherent in the job duties and responsibilities in question. Notably, the Department did not provide a model template of an acceptable Individualized Assessment.</p> <p> &ldquo;Temporary Help Firms&rdquo; are businesses that recruit, hire, and assign their own employees to temporarily work at other organizations. Specific to these businesses, a background check can be performed after a conditional offer to include the applicant in a pool of individuals from which the applicant may be sent to temporary positions.</p> <p> <strong>Application and Interview Procedure</strong></p> <p> Questions regarding an Applicant&rsquo;s Criminal History cannot be included on employment applications. The Regs propose that multistate employers can either: completely remove any question pertaining to criminal history from the employment application across the board; create and use applications specific to positions in Los Angeles; or include a disclaimer next to the question asking for criminal history, such as &ldquo;For jobs located in the City of Los Angeles, you should not answer this question.&rdquo;</p> <p> Similar to the New York City Fair Chance Act, the Regs clarify that the Ordinance also prohibits statements such as &ldquo;criminal background checks must be passed to be considered for a position.&rdquo;</p> <p> Employers may not ask about an Applicant&rsquo;s Criminal History until a conditional offer of employment has been made to the Applicant. The conditional offer is explicitly defined as &ldquo;conditioned only on an assessment of the Applicant&rsquo;s Criminal History&rdquo; and the duties and responsibilities of the position. The Regs, however, provide no clarification as to whether an offer conditioned upon the successful passing of <em>any other type of screen</em> (e.g., drug testing, physical exam) in addition to Criminal History will still constitute a conditional offer for purposes of this Ordinance.</p> <p> <strong>Employer Assessment of Criminal History</strong></p> <p> In conducting an Individualized Assessment, employers are required to, at a minimum, consider the list of factors identified by the EEOC Enforcement Guidance issued in 2012, such as: the nature and gravity of the offense; whether the offense was recent; and the nature of the job duties and responsibilities. The written Individualized Assessment must be provided to the Applicant, accompanied by any other documentation or information supporting the adverse action (i.e., rescission of the offer).</p> <p> <strong>The &ldquo;Fair Chance Process&rdquo;</strong></p> <p> Employers are required to follow the &ldquo;Fair Chance Process,&rdquo; which includes allowing an Applicant to provide information about the accuracy of the Criminal History information, evidence of rehabilitation, or other mitigating factors. The employer must wait 5 business days from the time of sending the written pre-adverse action notification. If the Applicant does not submit anything in that time, the employer can proceed with the adverse action.</p> <p> On the other hand, if the Applicant submits any information, the employer must perform a reassessment to account for the new information, following the same process as before. After the reassessment, the employer should notify the Applicant of the final decision and provide him/her with a copy of the written reassessment.</p> <p> <strong>Notice and Posting Requirements </strong></p> <p> Employers must state in all advertisement or solicitations that it will consider qualified applicants with Criminal Histories in a manner consistent with the requirements of the Ordinance. This is analogous to the San Francisco Fair Chance Act.</p> <p> Employers also must post a notice informing Applicants of the provisions of the Ordinance in a conspicuous place at every workplace, job site, or other location in the City under the employer&rsquo;s control and visited by Applicants. The Department has provided a <a href="http://bca.lacity.org/site/pdf/eeo/Notice%20to%20Applicants%20and%20Employees%20for%20Private%20Employers.pdf">form of notice</a>. Employers also must send a copy of the notice to each labor union with which it has a collective bargaining agreement covering Employees located in the City.</p> <p> <strong>Maintenance of Records</strong></p> <p> Employers are required to maintain Individual Assessments&nbsp;<em>and any other type of documentation</em>&nbsp;to demonstrate compliance with the Ordinance for 3 years following receipt of the employment application. Such documents include all records related to Applicant&rsquo;s employment applications, written Individualized Assessment, and Fair Chance reassessment. It is unclear from the Regs, however, whether records for <em><u>all</u></em> Applicants (not just those with Criminal History) should be maintained for 3 years. Given this potential confusion, employers may want to err on the conservative interpretation.</p> <p> <strong>Exceptions</strong></p> <p> The Ordinance contains several exceptions, such as employers who are required by law to perform background checks, or those who are legally prohibited from hiring an Applicant who has been convicted of a crime. The Ordinance also does not apply to an individual who, because of a criminal conviction, cannot lawfully hold the position, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. The Ordinance also does not apply to an Applicant required to possess or use a firearm in the course of employment. Significantly, the Department does not assume that an entire employer or industry will receive an exception. Instead, the Department will investigate how an exception applies to a particular position or role.</p> <p> Employers claiming an exception must be able to show that the position falls under the enumerated exceptions above. Similar to New York City&rsquo;s Stop Credit Discrimination in Employment Act, the Department requires employers to keep a log or records of their use of such exception for a period of 3 years following the receipt of an Applicant&rsquo;s application. The exception log should include which exception is claimed and how the position fits into the exception and the federal, state or local law allowing the exception. The Department recommends that employers inform the Applicant of the exception they believe applies.</p> <p> <strong>Best Practices</strong></p> <p> To the extent not yet undertaken, employers in the City of Los Angeles should review their employment advertisements and applications and take appropriate steps towards compliance, such as removing inquiries into criminal history or adding the suggested disclaimer. Employers should also become familiar with the Individual Assessment Worksheets, which easily facilitate the written assessment (and subsequent reassessment) that is required under the Ordinance. Likewise, the requisite notices should be posted/displayed. Most importantly, if any of the exceptions under the Ordinance apply, employers should explore which positions justify each exception and begin to keep an exception log in the event of challenge/audits. Although the additional guidance provides some welcome clarification, several open issues remain. Employers seeking additional clarification of these requirements should consult with experienced counsel to further assess the practical applications and compliance requirements.&nbsp;</p> http://www.seyfarth.com:80//publications/MA020217-LE Immigration-Related FAQs In Response to President Trump’s Recent Executive Orders, as of February 2, 2017 http://www.seyfarth.com:80//publications/MA020217-LE Thu, 02 Feb 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>This Management Alert addresses Frequently Asked Questions (FAQs) from employers and foreign nationals regarding President Trump&rsquo;s recent Executive Order on immigration.</em><br /> &nbsp;</p> <p style="margin-left:13.5pt;"> <strong>1.&nbsp; I&rsquo;m not from one of the listed countries but have international travel planned. Is there anything I should know or do?</strong></p> <p style="margin-left:13.5pt;"> If you are not from one of the listed countries and you have an unexpired visa stamp (or if you are Canadian and do not require a visa stamp), the Executive Order will not affect your ability to travel.&nbsp; If you do not have an unexpired visa stamp and plan to apply at a U.S. Embassy or Consulate abroad, you should anticipate visa appointment backlogs when scheduling your appointment.&nbsp; In addition, we expect that Consular officers will screen visa applicants more thoroughly and will not hesitate to place visa applications under administrative processing, particularly if the applicant possesses a degree in an academic field that is on the government&rsquo;s Technology Alert List, including degrees in Nuclear Engineering, Chemical Engineering, Biomolecular Engineering, and Cybersecurity.</p> <p style="margin-left:13.5pt;"> <strong>2.&nbsp; I&rsquo;m currently traveling internationally but I am not from one of the listed countries.&nbsp; Is there anything I need to be aware of about returning to the U.S.?</strong></p> <p style="margin-left:13.5pt;"> Similar to the above, despite your country of birth and/or your current citizenship, you must&nbsp; be prepared for delays when entering into the U.S. Please make sure you are carrying and presenting all of the necessary documents for admission in your visa category.&nbsp; In addition, we are hearing reports of Customs and Border Protection officers asking to search phone contacts and social media information.&nbsp; Please keep this in mind as you plan your travel and enter the U.S<strong>.&nbsp; </strong>&nbsp;Specifically, if you have a connecting flight after your initial entry into the U.S., allow additional time between those flights to get through the Customs and Border control screening process.&nbsp;</p> <p> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 3.&nbsp; I already have a &ldquo;Drop-Box&rdquo; confirmation; can I still use the Drop-Box?</strong></p> <p style="margin-left:13.5pt;"> Although we have heard reports from various U.S. Embassies and Consulates (specifically, those in the UK, Canada, and India) that the &ldquo;Drop-Box&rdquo; visa applications are still being honored, you <strong><em>should not rely</em></strong> on using the Drop-Box option and should make an appointment with a U.S. Embassy or Consulate, as the Drop-Box program <strong><em>can be suspended without notice</em></strong>.</p> <p> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 4.&nbsp; Does this Executive Order affect U.S. domestic travel?</strong></p> <p style="margin-left:13.5pt;"> No.&nbsp; There are no rules prohibiting travel within the United States.&nbsp; However, please note, you are required to carry proof of your lawful status in the U.S. at all times.&nbsp; If you are traveling domestically, you should have proof of status with you.</p> <p style="margin-left:13.5pt;"> <strong>5.&nbsp; I am planning to travel abroad and will have a visa stamping appointment at the Consulate.&nbsp; Do I need to take any additional paperwork with me my visa interview?</strong></p> <p style="margin-left:13.5pt;"> At this time there are no changes to the documents required.&nbsp; Here is the list of paperwork you should bring:</p> <p style="margin-left:40.5pt;"> 1. Current passport valid for at least 6 months (bring extra photocopy of ID pages)&nbsp;</p> <p style="margin-left:40.5pt;"> 2. Expired passports (containing previous U.S. visas and entry stamps)</p> <p style="margin-left:40.5pt;"> 3. Appointment Confirmation Letter (print out of the confirmation of your visa appointment)</p> <p style="margin-left:40.5pt;"> 4. DS-160 Confirmation Page (form completed online prior to appointment)</p> <p style="margin-left:40.5pt;"> 5. Receipt for payment of visa application fee (fee paid for the DS-160)</p> <p style="margin-left:40.5pt;"> 6. Extra passport-type photograph</p> <p style="margin-left:40.5pt;"> 7. I-797 Approval Notice (original and copy)</p> <p style="margin-left:40.5pt;"> 8. Full copy of Nonimmigrant Petition</p> <p style="margin-left:40.5pt;"> 9. Recent employment verification letter</p> <p style="margin-left:40.5pt;"> 10. Recent pay statements</p> <p> &nbsp;</p> <p style="margin-left:12.0pt;"> Any spouse and/or child who will be applying for a dependent visa stamp with you will need their supporting documentation, in addition to your marriage certificate and/or your child(ren)&rsquo;s birth certificate.</p> <p> <strong>&nbsp;&nbsp;&nbsp;&nbsp; 6.&nbsp; If I already have a nonimmigrant visa and I am a dual citizen of one of the seven countries<br /> &nbsp;&nbsp;&nbsp;&nbsp; as well as a third country, will I be eligible to enter the U.S.?</strong></p> <p style="margin-left:13.5pt;"> If you already have a nonimmigrant visa and you are a dual citizen, you may be eligible to enter the U.S.&nbsp;</p> <p style="margin-left:13.5pt;"> Customs and Border Protection issued a FAQ stating, &ldquo;Travelers are being treated according to the travel document they present.&nbsp; For example, if they present a Canadian passport, that is how they are processed for entry.&rdquo;&nbsp; However, we cannot confirm whether Customs and Border Protection is applying this position uniformly and it is possible that you can be denied entry.&nbsp; We advise limiting international travel due to the &ldquo;extreme vetting&rdquo; and long processing delays at the ports of entry, even for dual nationals.</p> <p style="margin-left:13.5pt;"> <strong>7.&nbsp; I am a U.S. Permanent Resident. Does the Executive Order impact me if I am from one of the banned countries? </strong></p> <p style="margin-left:13.5pt;"> According to a Department of Homeland Security summary of the Executive Order, U.S. Permanent Residents will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.&nbsp; Department of Homeland Security has deemed the entry of U.S. Permanent Residents as in the national interest and projects &ldquo;swift entry&rdquo; for these individuals.&nbsp; In spite of this guidance, U.S. Permanent Residents from one of the banned countries should expect long delays and &ldquo;extreme vetting&rdquo; at the U.S. port of entry.</p> <p> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 8.&nbsp; I am a U.S. Permanent Resident with dual citizenship from a banned country.&nbsp; Does the<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Executive Order impact me? </strong></p> <p style="margin-left:13.5pt;"> As above, according to a Department of Homeland Security summary of the Executive Order, U.S. Permanent Residents will be allowed to board U.S. bound aircraft and will be assessed for exceptions at arrival ports of entry, as appropriate.&nbsp; Department of Homeland Security has deemed the entry of U.S. Permanent Residents as in the national interest and projects &ldquo;swift entry&rdquo; for these individuals.&nbsp; In spite of this guidance, U.S. Permanent Residents from one of the banned countries should expect long delays and &ldquo;extreme vetting&rdquo; at the U.S. port of entry.</p> <p style="margin-left:13.5pt;"> <strong>9.&nbsp; Does the Executive Order impact my green card case that is currently in process if <em>I am from </em>one of the banned countries?</strong></p> <p style="margin-left:13.5pt;"> Yes. The Executive Order does impact all cases that are pending with USCIS.&nbsp; USCIS announced that they will stop processing cases for applicants from one of the banned countries until they have received clearance to resume processing the cases. Note, this does not mean that your case will be rejected and/or denied, but rather, held in abeyance until USCIS is able to proceed with the adjudication of your application.</p> <p style="margin-left:-4.5pt;"> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 10.&nbsp; Does the Executive Order impact my green card case that is currently in process if <em>I am<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; NOT from </em>one of the banned countries?</strong></p> <p style="margin-left:13.5pt;"> No. The Executive Order does not impact your application.&nbsp; Of course, because of all of the changes that have taken place over the past few days, it is likely that there may be some delays in processing, but, overall, your case should not be impacted and you will continue to remain eligible for all of the rights and benefits associated with filing for your Adjustment of Status Application (I-485).</p> <p style="margin-left:-4.5pt;"> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 11.&nbsp; Does the Executive Order impact petitions to extend nonimmigrant status such as an<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; H-1B or my ability to apply for a green card and/or renew my EAD &nbsp;if I am not from one of the<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; banned countries?</strong></p> <p style="margin-left:13.5pt;"> No. If you are not from one of the listed countries, you may continue to renew/extend your nonimmigrant visa status (H-1Bs, L-1s, TNs, E-3s, F-1s, etc.) and your Employment Authorization (EAD) and Advance Parole (AP) documents.&nbsp;</p> <p style="margin-left:13.5pt;"> Likewise, as long as your priority date is &ldquo;current&rdquo; or your priority date falls under the &ldquo;Eligible to File&rdquo; category on the <a href="https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2017/visa-bulletin-for-february-2017.html">Department of State&rsquo;s monthly visa bulletin</a>, you may continue to file for the final stage of your green card -- the Adjustment of Status Application (I-485).</p> <p style="margin-left:13.5pt;"> Note, while the petitions and applications will continue to be accepted, we expect that the processing times across the board (Department of State, Department of Labor, and USCIS) will increase. Although the processing times will likely inconvenience you, they will not hinder your ability to continue working and/or residing in the United States.</p> <p style="margin-left:-4.5pt;"> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 12.&nbsp; I heard that there is an additional Executive Order related to other employment<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; immigration benefits (H-1B and H-4).&nbsp; How does it affect me?</strong></p> <p style="margin-left:13.5pt;"> There is speculation of an additional Executive Order; however, unless or until the President finalizes and signs the order, we will not know the impact.</p> <p style="margin-left:13.5pt;"> We will continue to monitor the situation and will send further communications to the impacted populations if changes are officially announced.</p> <p style="margin-left:-4.5pt;"> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 13.&nbsp; How does this impact the upcoming H-1B lottery?</strong></p> <p style="margin-left:.25in;"> The H-1B lottery will proceed as planned.&nbsp; However, it has been reported that USCIS has taken the position that all pending immigration benefits applications on behalf of nationals of the affected countries within the U.S. will be suspended indefinitely as a result of the Executive Order.&nbsp; It is unclear how USCIS will handle H-1B cap petitions filed on behalf of citizens/nationals of one of the affected countries.</p> <p style="margin-left:-4.5pt;"> <strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 14.&nbsp; Will other countries be added to the list of banned countries?</strong></p> <p style="margin-left:.25in;"> At this time, it is not clear which, if any, other countries the President will add to the list of banned countries.&nbsp; However, it is possible that the President will add the remaining countries from the Bush administration&rsquo;s National Security Entry-Exit Registration System (&ldquo;NSEERS&rdquo;), which also included: Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Tunisia, and United Arab Emirates.</p> http://www.seyfarth.com:80//publications/OMM020217-LE3 NLRB General Counsel Issues Report on NLRA Protections For Faculty and Students http://www.seyfarth.com:80//publications/OMM020217-LE3 Thu, 02 Feb 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> In a last minute attempt to leave his mark on the NLRB, the Board&rsquo;s outgoing General Counsel issued a report attempting to expand the rights of university faculty and students, including scholarship athletes, under the National Labor Relations Act.</em></div> <div> &nbsp;</div> <div> Just months before the conclusion of his four-year term, Richard F. Griffin, Jr., the General Counsel (&ldquo;GC&rdquo;) of the National Labor Relations Board (&ldquo;Board&rdquo;), issued a report titled &ldquo;General Counsel&rsquo;s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.&rdquo;</div> <div> &nbsp;</div> <div> The January 31, 2017 Report was issued with the stated intent to serve as a &ldquo;guide for employers, labor unions, and employees that summarizes Board law regarding NLRA employee status in the university setting and explains how the Office of the General Counsel will apply these representational decisions in the unfair labor practice arena.&rdquo; The decisions covered by the Report--Pacific Lutheran University, Columbia University, and Northwestern University--all involved efforts of individuals to obtain representation by a union.</div> <div> &nbsp;</div> <div> <div> <strong>University Faculty</strong></div> <div> &nbsp;</div> <div> In Pacific Lutheran, the Board established a new test for determining when it would take jurisdiction over religious colleges and universities. According to the GC, the Board &ldquo;will&hellip;seek redress for unfair labor practices committed by religious schools against individual faculty member discriminatees who the university does not hold out as performing a specific role in creating and maintaining the university&rsquo;s religious and educational environment.&rdquo;</div> <div> &nbsp;</div> <div> As a practical matter, this means that the GC believes that the faculty who are able to seek union representation because they were &ldquo;not hired to advance the school&rsquo;s religious purposes,&rdquo; also are protected by the Act&rsquo;s prohibition against discrimination for engaging in protected concerted activities. By implication, this may mean that faculty who are hired to advance a school&rsquo;s religious purposes are not protected.</div> <div> &nbsp;</div> <div> The GC also provided his analysis of the standard articulated in Pacific Lutheran regarding the managerial status of faculty members. Specifically, the GC distinguished between managerial faculty (those who &ldquo;formulate and effectuate management policies by expressing and making operative the decisions of their employer&rdquo;) and non-managerial faculty (those whose decision-making is limited to &ldquo;routine discharge of professional duties in projects to which they have been assigned&hellip;&rdquo;).</div> <div> &nbsp;</div> <div> <div> The GC concluded that, in the unfair labor practice context, a &ldquo;complaint will not issue against a university if [the Board] determine[s] that an asserted discriminatee is a managerial employee under the Board&rsquo;s Pacific Lutheran test.&rdquo; He added, however, that even when the Board refuses to process a certification petition, it will still conduct an individualized analysis of the discriminatee&rsquo;s employment position to determine whether that individual exercised sufficient managerial authority to exempt him from the NLRA.</div> <div> &nbsp;</div> <div> <strong>University Students</strong></div> <div> &nbsp;</div> <div> <strong>Student Assistants</strong>. Here, the GC briefly summarized the Columbia University decision, stating that the Board &ldquo;applied the statutory language of the [NLRA] and longstanding common-law principles to settle the issue of statutory coverage for graduate student employees, determining that student assistants are employees under the NLRA.&rdquo; The GC relied on the 2000 NYU decision to conclude that graduate students met the common-law test of agency because they &ldquo;&lsquo;perform their duties for, and under the control of&rsquo; their university, which in turn pays them for those services&hellip;&rdquo; Similarly, the GC applied this precedent to the unfair labor practices context, concluding that, in his opinion, student assistants are well within the ambit of the NLRA and can therefore organize and receive its protections.</div> <div> <div> &nbsp;</div> <div> <strong>Non-Academic University Workers</strong>. The GC stated that, as to university students who are performing non-academic university work (e.g. maintenance or cafeteria workers, lifeguards, campus tour guides, etc.), they are &ldquo;clearly covered by the NLRA and, as with student assistants, [the Board] will analyze unfair labor practice charges involving non-academic student employees accordingly.&rdquo; In reaching this conclusion, the GC reasoned that the non-academic university worker category presented an easier question than the student assistants in Columbia as, in his opinion, under the common law agency test, there is no issue of whether or not the work performed by the student employee is &ldquo;primarily educational work.&rdquo;</div> <div> &nbsp;</div> <div> <strong>Hospital House Staff</strong>. With respect to &ldquo;hospital house staff&rdquo; (medical interns, residents, and fellows), the GC concluded that they would &ldquo;continue to be protected as employees under the NLRA, and [the Board] will continue to process unfair labor practice charges involving those employees.&rdquo; In reaching this conclusion, the GC reasoned that, just because certain hospital house staff members also happened to be students did not mean that they were exempt from the coverage of the NLRA. He cited the Boston Medical decision, which held that &ldquo;nothing in the [NLRA] suggests that persons who are students but also employees should be exempted from the coverage and protection of the [NLRA].&rdquo;</div> <div> &nbsp;</div> <div> <strong>University Football Players</strong>. Here, the GC admittedly limits his analysis to the application of the statutory definition of employee and the common-law agency test to find that Division I FBS scholarship football players are employees under the NLRA, and therefore have the rights and protections of that Act. Referring to the Board&rsquo;s decision in Northwestern, the GC expressly stated that it would be inappropriate for the Report to attempt resolve the sometimes &ldquo;divisive&rdquo; questions relating to whether student athletes may organize under the Act.</div> <div> &nbsp;</div> </div> <div> <div> <strong>Conclusion</strong></div> <div> &nbsp;</div> <div> With Mr. Griffin&rsquo;s four-year term ending later this year, it is likely that the new GC will want to revisit some or all of the Report. The soon-to-be Trump-appointed majority of the Board likely will revisit not only the Report, but also the decisions in Pacific Lutheran, Columbia and Northwestern.</div> <div> &nbsp;</div> </div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/EL020217 NLRB General Counsel Issues Report on NLRA Protections For Faculty and Students (Blog Post) http://www.seyfarth.com:80//publications/EL020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> Just months before the conclusion of his four-year term, Richard F. Griffin, Jr., the General Counsel (&ldquo;GC&rdquo;) of the National Labor Relations Board (&ldquo;Board&rdquo;), issued a report titled &ldquo;General Counsel&rsquo;s Report on the Statutory Rights of University Faculty and Students in the Unfair Labor Practice Context.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/02/02/nlrb-general-counsel-issues-report-on-nlra-protections-for-faculty-and-students/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=f68d0cd675-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-f68d0cd675-71423401">click here</a></p> http://www.seyfarth.com:80//publications/ELL020217 Leveling the Playing Field: Hospital’s Nonunion Hiring Preference Not Discriminatory http://www.seyfarth.com:80//publications/ELL020217 Thu, 02 Feb 2017 00:00:00 -0400 <p> The Court of Appeals for the First Circuit reversed the NLRB, holding that the Board lacked substantial evidence to find that the hospital group unfairly preferred nonunion workers when filling nonunion positions.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/02/leveling-the-playing-field-hospitals-nonunion-hiring-preference-not-discriminatory/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b916b8c5c3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b916b8c5c3-71256185">click here</a></p> http://www.seyfarth.com:80//publications/CP020117 New Child Care Background Check Bill Leaves More Questions Than Answers http://www.seyfarth.com:80//publications/CP020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Parents want to employ only the most qualified individuals to watch over their children. Background checks on these individuals&mdash;often provided by consumer reporting agencies&mdash;therefore are at a high premium. The author of Assembly Bill 2036, Assembly member Patty Lopez, cited just this concern in support of her new bill, which imposes additional restrictions on businesses providing online childcare job posting services in California and on background screening companies providing background checks to those businesses: &ldquo;This Bill is another good step to protecting our children and ensuring that child care consumers are making the most informed and safest decisions about the individual(s) they hire to care for their child[ren].&rdquo;</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/02/01/new-child-care-background-check-bill-leaves-more-questions-than-answers/">click here</a></p> http://www.seyfarth.com:80//publications/CDL020117 The Swiss Privacy Shield Opens for Business on April 12 http://www.seyfarth.com:80//publications/CDL020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> eginning on April 12, 2017, U.S. organizations that are subject to the investigatory and enforcement powers of the FTC or the Department of Transportation will be able to self-certify to the newly adopted Swiss&ndash;U.S. Privacy Shield Framework (&ldquo;Swiss Privacy Shield&rdquo;). The Swiss Privacy Shield will allow transfers of Swiss personal data to the United States in compliance with Swiss data protection requirements. The Swiss Privacy Shield will replace the U.S.&ndash;Swiss Safe Harbor Framework and will impose similar data protection requirements established last summer for cross-border transfers of personal data from the EU under the EU&ndash;U.S. Privacy Shield (&ldquo;Privacy Shield&rdquo;).</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/02/swiss-privacy-shield-opens-business-april-12/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=4d0a93ed63-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-4d0a93ed63-72857025">click here</a></p> http://www.seyfarth.com:80//publications/OMM020117-LE2 President Announces Continuation of E.O. 13672 Protections for Government Contractors http://www.seyfarth.com:80//publications/OMM020117-LE2 Wed, 01 Feb 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On January 31, 2017, the White House announced that it will continue to enforce the workplace protections for sexual orientation and gender identity put in place under Executive Order 13672.</em></p> <p> On Tuesday, the new administration released a statement indicating that President Donald Trump intends to continue enforcing the prohibition against government contractors and subcontractors discriminating based on sexual orientation and gender identity.&nbsp; Prior to this announcement, many groups which advocate for LGBTQ rights had expressed concerns that the executive order would be a casualty of the new Administration&rsquo;s plan to undue many of the executive orders signed by former President Obama.&nbsp; The White House&rsquo;s statement instead noted that President Trump &ldquo;is proud to have been the first ever GOP nominee to mention the LGBTQ community in his nomination acceptance speech, pledging to protect the community from violence and oppression&rdquo; and that he &ldquo;is determined to protect the rights of all Americans, including the LGBTQ community.&rdquo;</p> <p> <strong>What Protections are Granted under E.O. 13672?</strong></p> <p> The executive order amended E.O. 11246 to require that all contracts and subcontracts in excess of $10,000 must list &ldquo;sexual orientation and gender identity&rdquo; whenever they explicitly list protected classes, i.e. race, gender, religion, sex, etc.&nbsp; This requirement applies to EEO clauses, EEO taglines, the EEO is the Law Poster, and to the reporting requirements for visa denials.</p> <p> <strong>What Does this Mean for Contractors?</strong></p> <p> The statement does not change any pre-existing obligations for federal contractors.&nbsp; All of the changes which contractors were required to make upon E.O. 13672 becoming effective should be kept in place.</p> http://www.seyfarth.com:80//publications/GPW020117 The Global Privacy Watch: The Swiss Privacy Shield Opens for Business on April 12 http://www.seyfarth.com:80//publications/GPW020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Beginning on April 12, 2017, U.S. organizations that are subject to the investigatory and enforcement powers of the FTC or the Department of Transportation will be able to self-certify to the newly adopted Swiss&ndash;U.S. Privacy Shield Framework (&ldquo;Swiss Privacy Shield&rdquo;). The Swiss Privacy Shield will allow transfers of Swiss personal data to the United States in compliance with Swiss data protection requirements. The Swiss Privacy Shield will replace the U.S.&ndash;Swiss Safe Harbor Framework and will impose similar data protection requirements established last summer for cross-border transfers of personal data from the EU under the EU&ndash;U.S. Privacy Shield (&ldquo;Privacy Shield&rdquo;).</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/02/the-swiss-privacy-shield-opens-for-business-on-april-12/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_medium=email&amp;utm_campaign=5ce7c6e943-RSS_EMAIL_CAMPAIGN&amp;utm_term=0_96fbafbd4b-5ce7c6e943-71256385">click here</a>.</p> http://www.seyfarth.com:80//publications/WC020117 The Story Behind Class Certification Statistics In 2016 And What It Means For Employers http://www.seyfarth.com:80//publications/WC020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> In the third post of our series on workplace class action issues, this blog posting focuses on the statistical study of class certification rulings throughout the Unites States in 2016. Not unlike real estate, location &ndash; in terms of venue, the assigned judge, and applicable circuit case law &ndash; is an all-important factor in class certification dynamics.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/02/the-story-behind-class-certification-statistics-in-2016-and-what-it-means-for-employers/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=1e437b6b10-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-1e437b6b10-71256717">click here</a>.</p> http://www.seyfarth.com:80//news/sherman-quoted-financier-worldwide-feb2017 Andrew Sherman quoted in <i>Financier Worldwide</i> http://www.seyfarth.com:80//news/sherman-quoted-financier-worldwide-feb2017 Wed, 01 Feb 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Unlocking cross-border M&amp;A and JV deal opportunities,&quot; the cover story of the February 2017 issue of <em>Financier Worldwide</em>. The story discusses how unlocking cross-border deal opportunities via mergers &amp; acquisitions (M&amp;A) and joint venture (JV) activities can be both lucrative and risky for companies &ndash; an undertaking that walks the fine line between success and failure. Sherman said that cross-border M&amp;A and JV activity was strong in 2016 as globalization and diversification trends are top priority in the boardroom.</p> <p> <a href="https://www.financierworldwide.com/unlocking-cross-border-ma-and-jv-deal-opportunities/#.WIfJaFMrJph">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/Szeliga-joins-IP-Practice Litigator Jamaica Szeliga Joins Seyfarth’s Intellectual Property Practice In Washington, D.C. http://www.seyfarth.com:80//news/Szeliga-joins-IP-Practice Wed, 01 Feb 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Jamaica P. Szeliga has joined the firm&rsquo;s Litigation department and Life Sciences &amp; Chemical Patent team as a partner in Seyfarth&rsquo;s Washington, D.C. office. Szeliga comes from Leydig, Voit &amp; Mayer, LTD, an intellectual property boutique, where she served as a member in Washington, D.C.&nbsp;</p> <p> Szeliga&rsquo;s practice focuses on intellectual property litigation relating to biotechnology and pharmaceutical matters, where she has handled Abbreviated New Drug Application (ANDA) litigation on behalf of a variety of companies. In addition, she has litigated cases involving biologics, medical devices, telecommunications, electronics, consumer goods, and mechanical products.</p> <p> &ldquo;Jamaica is a seasoned trial lawyer and adviser to companies facing both basic patent and Hatch-Waxman litigation,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;This is a significant step in our growth strategy for the Intellectual Property practice and in the life sciences space nationally.&rdquo;&nbsp;</p> <p> Szeliga has deep experience in patent litigation and has participated in numerous bench and jury trials. She has regularly coordinated complex fact discovery, managed expert discovery, drafted dispositive motions, taken and defended fact and expert depositions, examined witnesses at trial, and briefed multiple appeals. Her versatile practice also includes patent prosecution and opinion drafting, including biosimilar targets. Szeliga has also provided guidance on the licensing and protection of intellectual property in corporate transactions. &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</p> <p> &ldquo;Jamaica&rsquo;s addition strengthens our local Intellectual Property presence and she will be a key asset to our national team,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office. &ldquo;She is an impressive litigator and our IP group, and office as whole, are excited to collaborate with her as we continue to grow.&rdquo;&nbsp;</p> <p> Szeliga received her J.D., <em>magna cum laude</em>, from Harvard Law School. She earned a B.S. in Chemistry, <em>with distinction</em>, from Stanford University.&nbsp;She also clerked for Judge Arthur J. Gajarsa at the U.S. Court of Appeals for the Federal Circuit.&nbsp;</p> <p> Thomas Haag, co-chair of Seyfarth&rsquo;s Life Sciences and Chemical Patent team stated, &quot;We are delighted to be bringing Jamaica on board as we continue to build on the firm&#39;s expertise in contentious IP matters related to pharmaceuticals and biosimilars.&quot;</p> <p> Szeliga&rsquo;s arrival follows the recent arrivals of Dean Fanelli, Ph.D. and Thomas Haag, Ph.D., co-founders of top intellectual property boutique Fanelli Haag PLLC in Washington, D.C. The office also recently added real estate partner Thomas Galli, corporate partner John Shire, and healthcare partner William Eck. Founded in 1971, Seyfarth&rsquo;s Washington, D.C. office has grown to over 70 lawyers, with practices spanning ADA Title III, commercial litigation, construction law and litigation, corporate, employee benefits, immigration, intellectual property litigation, government contracts, labor and employment, patent prosecution, and real estate.</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 850 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo; s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media. For more information, please visit <a href="http://www.seyfarth.com">www.seyfarth.com</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-law360-020117 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Plaintiffs Bar To Pick Up Wage-And-Hour Slack Under Trump,&quot; a February 1 story from <em>Law360 </em>on Seyfarth&rsquo;s Workplace Class Action Litigation Report. The report says that, of the thousands of FLSA suits filed each year, virtually all are class actions. Maatman said that class action litigation is not unlike investment in the stock market, and getting involved in wage-and-hour cases, as opposed to other types of class actions, is low-investment, high-return.</p> http://www.seyfarth.com:80//news/maatman-quoted-cfo-com-020117 Gerald Maatman quoted in <i>CFO.com</i> http://www.seyfarth.com:80//news/maatman-quoted-cfo-com-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Exposure to Wage-and-Hour Class Actions Heightens,&quot; a February 1 story from <em>CFO.com</em> on Seyfarth&rsquo;s <em>Workplace Class Action Litigation Report</em>. The report says that the volume of class-action litigation against U.S. companies over employee-compensation practices soared in 2016 for a second year in a row, and 2017 is likely to bring more of the same. Maatman said that, for a plaintiffs&rsquo; lawyer viewing litigation as an investment, the highest return is with wage-and-hour cases.</p> <p> <a href="http://ww2.cfo.com/compensation/2017/02/exposure-wage-hour-class-actions-heightens/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/olson-quoted-law360-020117 Camille Olson quoted in <i>Law360</i> http://www.seyfarth.com:80//news/olson-quoted-law360-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Camille Olson was quoted in &quot;Attys React To Judge Gorsuch&#39;s Supreme Court Nomination,&quot; a February 1 story from <em>Law360</em> on President Donald Trump&rsquo;s nomination of Tenth Circuit Judge Neil Gorsuch to become the next associate justice on the U.S. Supreme Court. Olson said that Judge Gorsuch has demonstrated a decidedly more conservative view from Justice Scalia on administrative law, which has potential implications for labor and employment law and future agency oversight and enforcement.</p> http://www.seyfarth.com:80//news/weiss-quoted-industry-today-020117 Philippe Weiss quoted by <i>Industry Today</i> http://www.seyfarth.com:80//news/weiss-quoted-industry-today-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;How are employees and managers feeling about their jobs and career prospects under the new administration?&quot;, an <em>Industry Today</em> story on February 1 regarding SSAW&rsquo;s new survey. Weiss said that 30% of responders felt that the administration&rsquo;s goal of increased Infrastructure Spending would (at least initially) boost business opportunities and further lower unemployment.</p> <p> <a href="http://industrytoday.com/article/employees-managers-feeling-jobs-career-prospects-new-administration/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-business-insurance-020117 Gerald Maatman quoted in <i>Business Insurance</i> http://www.seyfarth.com:80//news/maatman-quoted-business-insurance-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court nominee Gorsuch could please risk managers,&quot; a February 1 story from <em>Business Insurance</em> on President Donald Trump&rsquo;s nomination of Neil M. Gorsuch to the vacant ninth seat on the U.S. Supreme Court. Maatman said that the nominee is a legal luminary who is exceedingly well respected and often seen as cut from the mold of Justice Scalia.</p> <p> <a href="http://www.businessinsurance.com/article/20170201/NEWS06/912311700/Trump-nominates-Neil-Gorsuch-to-Supreme-Court-risk-managers">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/sherman-interviewed-your-best-manager-020117 Andrew Sherman interviewed by <i>Your Best Manager</i> http://www.seyfarth.com:80//news/sherman-interviewed-your-best-manager-020117 Wed, 01 Feb 2017 00:00:00 -0400 <p> Andrew Sherman was interviewed in &quot;Welcome to the Employee Disengagement Party, with Andrew Sherman!&quot; &mdash; a February 1 episode from <em>Your Best Manager</em> on his new book, <u>The Crisis of Disengagement: How Apathy, Complacency, and Selfishness are Destroying Today&rsquo;s Workplace</u>.</p> <p> <a href="http://yourbestmanager.com/andrewsherman/">You can listen to the full interview here</a>.</p> http://www.seyfarth.com:80//news/lorber-quoted-bloomberg-bna-013117 Larry Lorber quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/lorber-quoted-bloomberg-bna-013117 Tue, 31 Jan 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;Could Trump Eliminate Federal Contractor Bias Watchdog,&quot; a January 31 story in <em>Bloomberg BNA</em> on the Office of Federal Contract Compliance Programs, which enforces affirmative action and nondiscrimination requirements on federal contractors and has survived attempts in previous administrations to eliminate it or weaken the executive order it enforces. Lorber doesn&rsquo;t believe the OFCCP will be eliminated.</p> <p> <a href="https://www.bna.com/trump-eliminate-federal-n57982083088/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ADA013117 Court Says Settlement Agreement Does Not Bar Later Website Accessibility Lawsuit by a Different Plaintiff http://www.seyfarth.com:80//publications/ADA013117 Tue, 31 Jan 2017 00:00:00 -0400 <p> Plaintiffs Rachel Gniewskowski, R. David New, and Access Now, Inc.&mdash;represented by Carlson, Lynch, Kilpela &amp; Sweet&mdash;sued retailer Party City in the Western District of Pennsylvania on September 6, 2016, alleging that Party City&rsquo;s website is not accessible to visually impaired consumers in violation of Title III of the Americans with Disabilities Act (&ldquo;ADA&rdquo;). &nbsp;On October 7, 2016 (while the Pennsylvania lawsuit was pending), Party City entered into a confidential settlement agreement with Andres Gomez, who had previously filed a similar lawsuit in Florida. &nbsp;Both lawsuits contained the same basic set of facts and legal claims, and sought similar relief&mdash;modification of the website to make it accessible to, and useable by, individuals with disabilities.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/court-says-settlement-agreement-does-not-bar-later-website-accessibility-lawsuit-by-a-different-plaintiff/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=329626a42f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-329626a42f-71256157">click here</a></p> http://www.seyfarth.com:80//publications/PTAB013117 Strategic Use of Disclaimers in PTAB Proceedings http://www.seyfarth.com:80//publications/PTAB013117 Tue, 31 Jan 2017 00:00:00 -0400 <p> A patentee has several options for responding to a Petition for <em>Inter Partes</em> Review (&ldquo;IPR&rdquo;) or Covered Business Method (&ldquo;CBM&rdquo;) petition. The patent owner can optionally file a Preliminary Response arguing against institution on substantive grounds, or the patent owner can attack the petition procedurally, such as by arguing the petitioner is a real-party in interest to a litigation or is otherwise related to a party served more than a year prior to the petition and the petition is therefore time barred. A third, less frequently used approach, is to file a disclaimer that disclaims the claims that provide a basis for the institution of the IPR or CBM.</p> <p> 37 CFR &sect; 42.107 states &ldquo;The patent owner may file a statutory disclaimer under 35 U.S.C. 253(a) in compliance with &sect; 1.321(a) of this chapter, disclaiming one or more claims in the patent. No<em> inter partes</em> review will be instituted based on disclaimed claims.&rdquo; The patent owner can therefore eliminate claims that present the basis of the PTAB institution, for example, those claims that are of a financial nature and that therefore provide the basis for institution of a CBM petition. The patent owner may also file a disclaimer to eliminate claims that are most likely not novel in light of the prior art and, instead of fighting those claims in the petition, can emerge from the PTAB proceeding with stronger claims intact and without spending resources and time fighting for all of the claims in the IPR petition.</p> <p> For more information on this blog, click the link below:&nbsp;</p> http://www.seyfarth.com:80//publications/OMM013117-EB Newly Proposed IRS Rules Permit the Use of Forfeitures for QNECs and QMACs http://www.seyfarth.com:80//publications/OMM013117-EB Tue, 31 Jan 2017 00:00:00 -0400 <div> On January 18, 2017, the IRS issued <a href="https://www.federalregister.gov/documents/2017/01/18/2017-00876/definitions-of-qualified-matching-contributions-and-qualified-nonelective-contributions">proposed regulations</a> that expand the permitted uses of forfeitures in a 401(k) plan. &nbsp;Under the proposed rules, the definitions of &ldquo;qualified nonelective contributions&rdquo; (QNECs) and &ldquo;qualified matching contributions&rdquo; (QMACs) would be amended in a manner that would allow plan sponsors to use amounts held in a 401(k) plan&rsquo;s forfeiture account to fund QNECs, QMACs and safe harbor 401(k) contributions &ndash; &nbsp;a change long-requested by commenters.</div> <div> &nbsp;</div> <div> QNECs and QMACs, which are typically used by 401(k) plan sponsors to correct nondiscrimination testing failures or plan operational failures, must meet certain requirements under IRS rules. &nbsp;Specifically, QNECs and QMACs generally must be nonforfeitable (i.e., 100% vested) and subject to certain distribution restrictions (i.e., they are unavailable for hardship withdrawals and must not be distributed prior to death, disability, severance from employment, age 59-1/2, or plan termination). &nbsp;Because the IRS defines certain safe harbor nonelective and matching contributions by reference to the QNEC and QMAC terms, the IRS has informally indicated that safe harbor 401(k) contributions must also have all of the required characteristics of a QNEC or QMAC.</div> <div> &nbsp;</div> <div> Prior to the issuance of these proposed regulations, the IRS had informally taken the position that the nonforfeitability and distribution requirements would need to be satisfied on the date QNECs or QMACs are first contributed to the plan. &nbsp;This position limited the ability of plan sponsors to use forfeitures to fund QNEC and QMAC contributions since forfeited amounts most often arise from employer contributions that are not fully vested at the time they are initially contributed to a plan.</div> <div> &nbsp;</div> <div> Under the new proposed regulations, contributions will qualify as QNECs or QMACs as long as they meet the nonforfeitability and distribution requirements at the time such amounts are allocated to participants&rsquo; accounts. &nbsp;These proposed rules are a welcome change to the previous view espoused by the IRS and will provide 401(k) plan sponsors, especially plan sponsors of safe harbor 401(k) plans or those who rely on QNECs to correct failed nondiscrimination tests, more flexibility in determining how to use and allocate plan forfeiture accounts (subject to plan terms). &nbsp;The regulations are generally proposed to be effective for taxable years beginning on or after the date the regulations are finalized, but may be relied on immediately pending the issuance of final regulations. &nbsp;In addition, informally, the IRS has indicated that the position taken in the proposed regulations can be relied on retroactive to the issuance of the proposed regulations as well. &nbsp;</div> <div> &nbsp;</div> <div> It&rsquo;s worth noting that the new White House administration issued a memorandum on January 20, 2017 directing federal agencies to delay the effective date for at least 60 days of published regulations that had not yet taken effect as of the date of the memorandum, and to review such regulations for &ldquo;questions of fact, law and policy.&rdquo; &nbsp;While the directives in the memorandum may apply to the proposed regulations discussed herein, we still believe plan sponsors should be able to rely on the guidance provided in the proposed regulations.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM013117-LE Immigration Travel Ban Update http://www.seyfarth.com:80//publications/OMM013117-LE Tue, 31 Jan 2017 00:00:00 -0400 <div> President Trump&rsquo;s January 27, 2017 Executive Order temporarily suspended entry into the United States of foreign nationals from seven countries (Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen) for at least 90 days and possibly longer. &nbsp;This travel ban is understood to apply to foreign nationals born in or a citizen of one of the seven countries even though such foreign national may have citizenship in another country (a &ldquo;dual national&rdquo;). &nbsp;According to information posted on the <a href="https://uk.usembassy.gov/updated-guidance-executive-order-protecting-nation-terrorist-attacks-foreign-nationals/">U.S. Embassy&rsquo;s website for the United Kingdom</a> and the <a href="https://travel.gc.ca/destinations/united-states">Government of Canada&rsquo;s travel advisory website</a>, dual nationals of the United Kingdom and dual nationals of Canada who would otherwise be subject to the travel ban are exempt from the travel ban, provided that they seek to enter the U.S. with their British or Canadian passports, as appropriate. &nbsp;Canada reports that Canadian permanent residents who present a valid Canadian permanent resident card are also exempt from the travel ban.</div> <div> &nbsp;</div> <div> It is unclear whether and to what extent additional countries may be exempted from the dual national prohibition that would otherwise result under the Executive Order.</div> <div> &nbsp;</div> <div> However, it appears that the Department of State recently issued a cable indicating that visa processing has been suspended for individuals from the seven designated countries, including for dual nationals. &nbsp;The Department of State does not appear to draw a distinction for British citizens, meaning that citizens of the U.K. who are also citizens of one of the designated countries would not be eligible for a visa (Canadian citizens are visa exempt).</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> _______________________________</div> <div> &nbsp;</div> <div> Seyfarth Shaw&rsquo;s Immigration Compliance group will host a webinar on February 8 to discuss these and other immigration-related developments. <a href="http://www.seyfarth.com/events/Webinar-020817LE">Click here</a> for details and to reserve a spot.</div> <div> &nbsp;</div> <div> If you would like to join our email listserv to receive timely updates regarding changes in the immigration landscape, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=aodQJaKOPLIm3wa-FKMFVLdX0OwUE_Z1_EvlP7sccbXUBmdmVCMjGD3bbcSA9oSc">click here</a>.</div> <div> &nbsp;</div> <div> If you would like further information, please contact your Seyfarth attorney, or any of our <a href="http://www.seyfarth.com/Immigration">Immigration attorneys</a>.</div> http://www.seyfarth.com:80//publications/ Client Alert – Executive Order Immediately Suspends Travel into the U.S. for Certain Foreign Nationals http://www.seyfarth.com:80//publications/ Tue, 31 Jan 2017 00:00:00 -0400 <p> On Friday, January 27, President Trump signed an Executive Order that suspended travel into the United States for nationals from certain designated countries, specifically Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This suspension in travel is already in place. &nbsp;If nationals from these countries, including those who are lawful permanent residents (i.e. green card holders), are currently present in the United States, they can remain here lawfully but should not travel outside the U.S. at this time.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/client-alert-executive-order-immediately-suspends-travel-into-the-u-s-for-certain-foreign-nationals/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=63c91eb707-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-63c91eb707-71256185">click here</a></p> http://www.seyfarth.com:80//publications/TBT013117 Unharvested Opportunities for the Marijuana Industry – Exploiting Non-Traditional Forms of Intellectual Property http://www.seyfarth.com:80//publications/TBT013117 Tue, 31 Jan 2017 00:00:00 -0400 <p> Strong intellectual property is the cornerstone of most start-up companies, and in most cases it is the key asset utilized by companies in securing financing and investment. &nbsp;Studies have estimated that non-tangible assets represent over 80% of an average business&rsquo; value, and when it comes to startups, the number is even higher.[1] &nbsp;The marijuana industry, because of its uncertain legal status under federal law, is at a strategic disadvantage, but despite this fact, the industry has still continued to blossom and is currently valued at $6.7 B and is expected to rise to almost $20 B by 2020.[2] &nbsp;However, failure to secure traditional forms of intellectual property (i.e., patents, trademarks, and copyrights) should not dissuade marijuana entrepreneurs from the inherent value intellectual property. &nbsp;Developing a keen business strategy around both traditional and non-traditional forms of intellectual property can open the door to additional revenue opportunities.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/01/unharvested-opportunities-for-the-marijuana-industry-exploiting-non-traditional-forms-of-intellectual-property/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=3cd9e86e19-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-3cd9e86e19-71540589">click here</a></p> http://www.seyfarth.com:80//publications/SL013017 DOJ Finalizes Largest Settlement in History Against Nursing Facility http://www.seyfarth.com:80//publications/SL013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> The Department of Justice announced that it reached a $145 million settlement with Life Care Centers of America Inc., which owns or operates over 200 nursing facilities, and its owner in resolution of lawsuits alleging that Life Care violated the False Claims Act. &nbsp;The lawsuits and investigation began after two former Life Care employees filed suit against Life Care under the qui tam, or whistleblower, provisions of the False Claims Act. &nbsp;The United States government subsequently intervened in both the suits and brought its own action against Life Care&rsquo;s owner.</p> <p> To read the entire blog post, <a href="http://www.seniorlivinglawblog.com/2017/01/doj-finalizes-largest-settlement-in-history-against-nursing-facility/">click here</a></p> http://www.seyfarth.com:80//publications/OMM013017-LE UPDATE: The City of Los Angeles Adopts "Ban the Box," Prohibiting Criminal Conviction Inquiry Prior to Job Offer http://www.seyfarth.com:80//publications/OMM013017-LE Mon, 30 Jan 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The Los Angeles <a href="http://clkrep.lacity.org/onlinedocs/2014/14-0746_misc_11-28-2016.pdf">Fair Chance Initiative for Hiring</a> (the &ldquo;Ordinance&rdquo;) imposes a host of new unlawful hiring practices upon private employers regarding inquiries into criminal convictions. Chief among them, an employer may not ask about an applicant&rsquo;s criminal history, use any mode of communication, nor conduct a criminal background check until </em><strong>after</strong><em> extending a conditional offer that is </em><strong>only</strong><em> conditioned on the result of the check.</em></p> <p> The Ordinance will become effective on January 22, 2017, however, it will not be enforced until July 1, 2017. Violations between January 22, 2017 and June 30, 2017 may result in a written warning.</p> <p> <strong>UPDATE:</strong> The City of Los Angeles Bureau of Contract Administration has posted printable Ordinance <a href="http://bca.lacity.org/index.cfm?nxt=ee&amp;nxt_body=div_occ_eeo_fc_forms.cfm">forms and posters</a> on its website:</p> <ul> <li> <em>Notices to Applicants or Employees for City Contractors</em></li> <li> <em>Notices to Applicants or Employees for Private Employers</em></li> <li> <em>Notice to Rescind Employment Offer - Sample Letter</em></li> <li> <em>Fair Chance Initiative For Hiring Complaint Forms (English/Spanish)</em></li> </ul> <p> Additional guidance and regulations are expected to be issued shortly. We will keep you posted on all developments.</p> <p> <strong>Coverage</strong></p> <p> The Ordinance applies to any private employer that employs at least 10 individuals, including the owner(s), management, and supervisors, who perform at least two hours of work on average each week within the geographic boundaries of the City: the so-called &ldquo;Covered Employer.&rdquo; The Ordinance also covers job placement and referral agencies and other employment agencies.</p> <p> &ldquo;Employment&rdquo; is defined broadly to include temporary or seasonal work, part-time, contracted or contingent work, work on commission, work through the services of a temporary or other employment agency or any form of vocational or educational training with or without pay.</p> <p> The Ordinance does not cover employers who are required by law to obtain information regarding an applicant&rsquo;s conviction, or those who are prohibited by law from hiring an applicant who has been convicted of a crime. The Ordinance also does not apply to an individual who, because of a criminal conviction, cannot lawfully hold the position, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. Last, the Ordinance does not apply to an applicant required to possess or use a firearm in the course of employment.</p> <p> <strong>Unlawful Hiring Practices</strong></p> <p> The Ordinance establishes several unlawful practices. Specifically, a Covered Employer is prohibited from inquiring into an individual&rsquo;s criminal background unless and until a conditional offer of employment. Importantly, the conditional offer can be conditioned only on the criminal background check. The &ldquo;inquiry&rdquo; can be any direct or indirect conduct that is intended to gather criminal history information from or about an individual using any mode of communication, such as application forms, interviews, and criminal history reports. Employers can, however, make these inquiries after first making a conditional offer of employment&mdash;that is, after making a job offer that is conditioned <em>only</em> on the employer&rsquo;s evaluation of the individual&rsquo;s criminal history.</p> <p> Further, a Covered Employer cannot take &ldquo;adverse action&rdquo; because of an individual&rsquo;s criminal history without first conducting a &ldquo;written assessment that effectively links the specific aspects&rdquo; of the applicant&rsquo;s criminal history &ldquo;with risks inherent in the duties&rdquo; of the position sought. Here, &ldquo;adverse action&rdquo; means a withdrawal or cancellation of a conditional offer of employment, or a failure or refusal to employ the applicant. In this respect, the Ordinance is similar to the New York City Fair Chance Act.</p> <p> In conducting an individualized assessment, a Covered Employer must, at minimum, consider the factors set forth by the U.S. Equal Employment Opportunity Commission, such as (i) the time that has elapsed since the offense, (ii) the individual&rsquo;s age at the time of the offense, (iii) circumstances surrounding the offense, (iv) the number of offenses for which the individual has been convicted, (v) employment history before and after conviction, (vi) evidence of rehabilitation, and other mitigating factors.&nbsp; But employers must also apply other factors as may be required by rules and guidance issued by the Department of Public Works, Bureau of Contract Administration (&ldquo;Department&rdquo;), who bears administrative responsibilities for this Ordinance.</p> <p> <strong>Employer Assessment of Criminal History</strong></p> <p> As noted, prior to any adverse action, the Ordinance requires a written assessment that effectively links the specific aspects of the applicant&rsquo;s criminal history with risks inherent in the duties of the position sought. A Covered Employer must also provide a &ldquo;Fair Chance Process,&rdquo; which refers to an opportunity to provide information regarding the accuracy of the criminal history information, evidence of rehabilitation, or other mitigating factors. The Covered Employer must wait at least five business days after informing the applicant of the proposed adverse action before taking adverse action. If the applicant provides the information, the Covered Employer must consider it in the written reassessment. If adverse action still will be taken after further consideration, the Covered Employer must notify the applicant of the decision <strong><em>and provide the applicant with a copy of the written reassessment</em></strong>.</p> <p> <strong>Notice and Posting Requirement</strong></p> <p> A Covered Employer must state in all advertisements that it will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance. Employers also must post a notice informing applicants of the provisions of the Ordinance in a &ldquo;conspicuous place at every workplace, job site or other location in the City under [its] control and visited by . . . applicants.&rdquo; There is no indication yet whether a form of notice will be provided by the Department. Covered Employers must also send a copy of the notice to each labor union with which they have a collective bargaining agreement covering employees located in the City.</p> <p> <strong>Record Retention</strong></p> <p> Covered Employers must retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Ordinance for three years following the receipt of an job application.</p> <p> <strong>Enforcement and Penalties</strong></p> <p> An applicant or employee alleging a violation of the Ordinance has one year to bring a claim to the Department. The Department is vested with subpoena power for items relevant to its investigation. If the Department determines that an Covered Employer has violated the Ordinance&mdash;whether based upon a complaint or its own investigation&mdash;the Department must issue a written notice to the Covered Employer requiring immediate cure and possibly imposing administrative fines.</p> <p> The Ordinance also provides a private right of action against a Covered Employer, provided the civil action is not brought until administrative remedies are exhausted.&nbsp; Simply put, the individual must have reported the alleged violation within one year to the Department and the administrative enforcement process must be completed or a hearing officer&rsquo;s decision must be rendered, whichever is later. The civil action must be filed within one year of the later of the completion of the Department&rsquo;s enforcement process or the issuance of the hearing officer&rsquo;s decision.</p> <p> Penalties and administrative fines for violations (with the exceptions of notice and record-retention violations) are up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. Violations of the notice and record retention requirement provisions are up to $500 per violation. Amounts are determined based on the willfulness of the employer&rsquo;s action(s) and other material factors determined by the Department.</p> <p> Per the City, civil penalties will not be imposed for violations before July 1, 2017. But those violations may result in a written warning.</p> <p> The Ordinance prohibits retaliation against individuals who complain to the City about an employer&rsquo;s compliance, who oppose any prohibited practices, who participate in a proceeding to enforce their rights, or who otherwise assert any rights under this Ordinance.</p> <p> <strong>Employer Outlook</strong></p> <p> Employers in Los Angeles should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law, including requirements pertaining to conditional offers outside the context of criminal background checks. Employers who operate in multiple jurisdictions in addition to Los Angeles, such as New York, Philadelphia, San Francisco, Austin or Oregon, should particularly review any standardized forms that may be in use in multiple jurisdictions. Covered employers also should ensure that all hiring and recruiting personnel are aware of &ldquo;ban the box&rdquo; laws&mdash;whether they currently apply to them or not. Employers with questions regarding &ldquo;ban the box&rdquo; should consult with counsel.</p> http://www.seyfarth.com:80//publications/MA013017-HL The Brave New World of Physician Medicare Payment: MACRA Makes Sweeping Changes http://www.seyfarth.com:80//publications/MA013017-HL Mon, 30 Jan 2017 00:00:00 -0400 <div> On November 14, 2016, CMS published its final rule implementing the physician payment provisions of the Medicare Access and CHIP Reauthorization Act (&ldquo;MACRA&rdquo;). &nbsp;The rule became effective January 1, 2017. &nbsp;Data collection from physicians begins with 2017 data, and the payment impact will begin in 2019 based on the 2017 data.</div> <div> &nbsp;</div> <div> MACRA and the final rule make the most dramatic changes in Medicare payment for physician and other clinician services in decades. &nbsp;Clinicians have been paid by Medicare under a fee schedule, with inflation-related annual updates, referred to as the sustainable growth rate (&ldquo;SGR&rdquo;). &nbsp;MACRA replaces the SGR with the Quality Payment Program (&ldquo;QPP&rdquo;). &nbsp;The QPP is intended to shift the emphasis in clinician payment from quantity to quality.</div> <div> &nbsp;</div> <div> The QPP establishes two payment tracks. &nbsp;With the exception of practices that have very low Medicare volume, clinicians will be paid on one of these two tracks. &nbsp;Low Medicare volume is defined as billing Medicare less than $30,000 per year or providing care to 100 or fewer Medicare patients per year. &nbsp;The first track is called the merit based incentive payment system (&ldquo;MIPS&rdquo;). &nbsp;MIPS is the default track, and most clinicians will be paid under MIPS.</div> <div> &nbsp;</div> <div> The second payment track is called the advanced alternative payment model track (&ldquo;advanced APM&rdquo;). &nbsp;Advanced APMs may, for example, pay clinicians on capitation or in part on an outcome related basis, and they may focus on certain procedures, disease states or specialties. &nbsp;In general, clinicians who participate in advanced APMs will be paid by Medicare on the advanced APM track. &nbsp;Each of these tracks is discussed below.</div> <div> &nbsp;</div> <div> <strong>MIPS</strong></div> <div> &nbsp;</div> <div> As noted, MIPS is the default payment track of the QPP, and most clinicians will be paid by Medicare under MIPS. &nbsp;It subjects clinicians to adjustments to the fee schedule payment amounts based on three, then four, categories of measures, as follows: &nbsp;(i) quality measures (to be published annually); (ii) clinical practice improvement; (iii) advancement of care information (implementation of IT); and, beginning in 2018, (iv) cost. &nbsp;Clinicians subject to MIPS include not only physicians, but also other health care providers such as dentists, physician assistants, nurse practitioners and certified registered nurse anesthetists. &nbsp;Clinicians will submit these data to CMS contractors for 2017 in a format to be prescribed by March 31, 2018. &nbsp;The final rule provides detail on the content of each of these measures.</div> <div> &nbsp;</div> <div> The data will be weighted and scored, and begin affecting payment in calendar year 2019. &nbsp;For 2019, clinicians will be subject to payment adjustments based on 2017 data as follows: &nbsp;(i) a clinician who reports nothing will be subject to a four (4) percent decrease in payment; (ii) a clinician can choose to report one measure for a 90-day period (other than cost) and avoid a negative adjustment, but not be eligible for a positive adjustment; (iii) a clinician can report for less than a full year performance period (but at least 90 days) more than one quality measure, more than one improvement activity, or more than the required measures in the advancing care information category to possibly achieve a positive adjustment; and (iv) a clinician can choose to report all measures for more than a 90-day period, or ideally the full year, and maximize the opportunity for a positive adjustment.</div> <div> &nbsp;</div> <div> CMS encourages clinicians to report in all three categories: &nbsp;quality, improvement, and advancing care information. &nbsp;For full participation in the quality performance category, clinicians will report information in 6 measure sets, or one specialty-specific or subspecialty-specific measure set. &nbsp;For full participation in the improvement activities performance category, clinicians can engage in up to 4 activities. &nbsp;Full participation in the advancing care information category requires reporting on 5 required measures. &nbsp;The details and weightings of these measures are set forth in the final regulations and their appendices.</div> <div> &nbsp;</div> <div> Once clinicians submit the data in each of the categories, CMS will score the data based on criteria articulated or determined in accordance with the final regulations. &nbsp;The scored data will then be weighted, and the scored and weighted data will be used to calculate the MIPS adjustments to the fee schedule.</div> <div> &nbsp;</div> <div> The MIPS adjustments are required to be budget neutral. &nbsp;Therefore, there will be winners and losers under MIPS. &nbsp;As noted, the greatest negative adjustment in 2019 under MIPS is 4 percent. &nbsp;The greatest possible positive adjustment in the 2019 payment year is 4 percent, but CMS estimates that more realistically the greatest positive adjustment will be approximately 2 percent. &nbsp;There is a $500 million pool for positive adjustments in the 2019 payment year, which must be shared by those receiving positive adjustments. &nbsp;Adjustments gradually increase until 2022, and subsequent years, when the greatest positive or negative adjustment will be 9 percent. &nbsp;Thus, as implementation of MIPS and the QPP proceeds, the effect of these adjustments becomes quite substantial.</div> <div> &nbsp;</div> <div> <strong>Advanced APMs</strong></div> <div> &nbsp;</div> <div> Clinicians who qualify and participate in advanced APMs, Qualifying APM Participants or &ldquo;QPs,&rdquo; may thereby avoid MIPS. &nbsp;To be a QP, a clinician must be part of an APM entity (a network or other entity that includes clinicians) that provides: &nbsp;(1) at least twenty-five (25) percent of its total Medicare professional covered services through an advanced APM; or (ii) services to at least twenty (20) percent of its total Medicare patients through an advanced APM. &nbsp;These thresholds increase in years after 2018, as discussed below. &nbsp;CMS estimates that 70,000 to 120,000 clinicians will initially be eligible to be QPs. &nbsp;Clinicians who do not satisfy these thresholds may be able to satisfy somewhat lower thresholds and be Partial QPs.</div> <div> &nbsp;</div> <div> QPs in 2017 will receive a five (5) percent positive incentive bonus payment adjustment in 2019. &nbsp;This will apply to future years as well. &nbsp;Partial QPs will not receive this adjustment but will be entitled to opt out of MIPS.</div> <div> &nbsp;</div> <div> In the 2017 and 2018 performance years (2019 and 2020 payment years), only participation in Medicare advanced APMs will count towards whether a clinician has satisfied the threshold to be a QP or a Partial QP. &nbsp;Thereafter, participation in all payer advanced APMs will also count towards these thresholds, but the final rule establishes different thresholds for the all payer advanced APM than for the Medicare only advanced APM. &nbsp;As in the case of the Medicare only advanced APMs, these thresholds increase over time. &nbsp;MACRA and the final regulations also establish criteria for the less frequently used Medicaid advanced APM and medical home models.</div> <div> &nbsp;</div> <div> Medicare and other advanced APMs must: &nbsp;(i) use electronic health records; (ii) pay for professional services using quality measures similar to MIPS; and (iii) require that APM entities (which, as noted, include clinicians), bear risk of more than a nominal amount related to poor performance or monetary losses. &nbsp;This last factor diminishes the benefit of the 5 percent positive payment adjustment.</div> <div> &nbsp;</div> <div> Advanced APMs must be approved by CMS. &nbsp;The final regulations establish the Physician Focused Payment Model Technical Advisory Committee (&ldquo;PTAC&rdquo;) to streamline consideration of APM applications and make recommendations to CMS. &nbsp;For 2017, the advanced APMs are: &nbsp;(i) Comprehensive Primary Care Plus, a national model under the Affordable Care Act; (ii) next generation ACOs; (iii) Medicare shared savings programs, tracks 2 and 3; (iv) certain oncology models with two-sided risk; and (v) comprehensive ESRD care. &nbsp;CMS has indicated that cardiology and joint replacement are also likely candidates to be advanced APMs in the future.</div> <div> &nbsp;</div> <div> <strong>QPs and Partial QPs</strong></div> <div> &nbsp;</div> <div> As noted, the final regulations establish thresholds for clinicians to be QPs or Partial QPs. &nbsp; Other than clinicians with low Medicare volume practices, only clinicians who are QPs or Partial QPs are exempt from or may opt out of MIPS. &nbsp;CMS will evaluate whether advanced APM entities meet the thresholds for their clinician members to be QPs or Partial QPs using a combination of two methods -- the payment amount method and the patient count method. &nbsp;Each of these is intended to establish that a specified threshold of the APM entity&rsquo;s total services are advanced APM services, and are described below.</div> <div> &nbsp;</div> <div> The payment amount method determines the aggregate of payments for covered Part B services provided to beneficiaries attributed to the APM entity divided by the aggregate of payments for covered Part B services furnished by the APM entity to all attribution-eligible beneficiaries.</div> <div> &nbsp;</div> <div> The patient count method determines the number of beneficiaries attributed to the APM entity for whom the APM entity&rsquo;s clinicians provided covered Part B services divided by the total number of attribution eligible beneficiaries for whom the advanced APM entity clinicians provided covered Part B services.</div> <div> &nbsp;</div> <div> &ldquo;Attribution eligible&rdquo; beneficiaries are Medicare primary fee for service beneficiaries enrolled in both Part A and Part B who are at least 18, reside in the U.S., and have a minimum of at least one claim for evaluation and management services by an eligible clinician or group of clinicians during the performance period. &nbsp;Thus, in each case, in general, the method divides the volume (either dollars or patients) of the advanced APM entity&rsquo;s clinicians&rsquo; advanced APM Medicare Part B services by their total Medicare Part B services.</div> <div> &nbsp;</div> <div> The thresholds for QP status for 2017 and 2018 are noted above. &nbsp;The complete set of thresholds for QP and Partial QP status established in the final regulations are as follows:</div> <div> &nbsp;</div> <div> <u>QPs</u></div> <div> &nbsp;</div> <div> <table border="1" cellpadding="1" cellspacing="1" style="width:500px;"> <tbody> <tr> <td> Payment Year</td> <td> Medicare Advanced APM</td> <td> All Payer Advanced APM</td> </tr> <tr> <td> <div> 2019 &ndash; 2020</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> <br /> 25%</div> <div> 20%<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> N/A</div> <div> N/A</div> </td> </tr> <tr> <td> <div> 2021 &ndash; 2022</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> <br /> 50%</div> <div> 35%<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> Medicare &ndash; 25%, All &ndash; 50%</div> <div> Medicare &ndash; 20%, All &ndash; 35%</div> </td> </tr> <tr> <td> <div> 2023 and Subsequent</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> <br /> 75%</div> <div> 50%<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> <br /> Medicare &ndash; 25%, All &ndash; 75%</div> <div> Medicare &ndash; 20%, All &ndash; 50%</div> </td> </tr> </tbody> </table> </div> <div> &nbsp;</div> <div> <br /> <u>Partial QPs</u></div> <div> &nbsp;</div> <table border="1" cellpadding="1" cellspacing="1" style="width: 500px;"> <tbody> <tr> <td> Payment Year</td> <td> Medicare Advanced APM</td> <td> All Payer Advanced APM</td> </tr> <tr> <td> <div> 2019 &ndash; 2020</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> <br /> 20%</div> <div> 10%<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> N/A</div> <div> N/A</div> </td> </tr> <tr> <td> <div> 2021 &ndash; 2022</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> 40%</div> <div> 25%<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> <div> Medicare &ndash; 20%, Total &ndash; 40%</div> <div> Medicare &ndash; 10%, Total &ndash; 25%</div> </div> </td> </tr> <tr> <td> <div> 2023 and Subsequent</div> <div> &nbsp; &nbsp; Payment Amount Method</div> <div> &nbsp; &nbsp; Patient Count Method<span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <div> &nbsp;</div> <div> 50%</div> <div> 35%<span class="Apple-tab-span" style="white-space: pre;"> </span><span class="Apple-tab-span" style="white-space: pre;"> </span></div> </td> <td> <br /> <div> Medicare &ndash; 20%, Total &ndash; 50%</div> <div> Medicare &ndash; 10%, Total &ndash; 35%</div> </td> </tr> </tbody> </table> <div> &nbsp;</div> <div> <br /> CMS desires a significant percentage of clinicians to become QPs, and it desires wide adoption of advanced APMs. &nbsp;In view of the high thresholds for QP status, it is not clear that this will occur, at least not so rapidly as CMS desires.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Some Likely Consequences</strong></div> <div> &nbsp;</div> <div> MACRA and the final regulations are likely to increase practice costs. &nbsp;Investment in information technology will be required, and an IT infrastructure for tracking, aggregation, analysis and reporting of data. &nbsp;Support systems will be necessary to identify and assist in implementing changes in practice patterns. &nbsp;This will have a potentially significant impact on the economics of clinician service delivery, and it may lead to consolidation of practices, particularly in specialties with high Medicare utilization.</div> <div> &nbsp;</div> <div> It is likely that MACRA and the final regulations will enhance the drive to integration and the implementation of alternative payment models. &nbsp;MACRA increases the incentives toward the adoption of these models, and can be expected to increase clinician support and buy-in for such models.</div> <div> &nbsp;</div> <div> <strong>Contract and Compliance Issues</strong></div> <div> &nbsp;</div> <div> Especially in practice areas with high Medicare utilization, the wRVU compensation model should be re-examined. &nbsp;These practice areas include nephrology, cardiology, orthopedics and gerontology. &nbsp;Methods of compensation of clinicians should be aligned with methods of payment for the services of the clinicians for both business and regulatory reasons. &nbsp;Otherwise, the compensation method may give rise to a misalignment of business incentives, or what could potentially be worse, a risk that the compensation payments could be characterized as not being fair market value or commercially reasonable. &nbsp;Guarantees and fixed or volume-based compensation should also be reviewed. &nbsp;Particularly where a clinician is employed or engaged by a hospital or other health care facility, or hospital or facility affiliate, the employment or independent contractor agreement should be reviewed in light of MACRA, both for business and for regulatory compliance reasons.</div> <div> &nbsp;</div> <div> MACRA also impacts valuation of clinician practices. &nbsp;Here, there are a couple of critical issues. &nbsp;First, valuations tend to rely on historical data. &nbsp;Under MACRA, valuation advisors and counselors will need to consider whether and how the changes wrought by MACRA should be factored into assessments of value. &nbsp;Second, valuations have tended to take into account wRVU or other productivity metrics. Valuation advisors and counselors will need to consider the extent to which new and different metrics need to be considered under MACRA.</div> <div> &nbsp;</div> <div> <strong>Summary</strong></div> <div> &nbsp;</div> <div> MACRA and the final regulations promulgated by CMS make substantial changes to payment of physicians and other clinicians under Medicare. &nbsp;These changes are important to all who employ or engage clinicians as independent contractors, as well as to clinicians. &nbsp;MACRA and the regulations establish two tracks for payment. &nbsp;The default track, MIPS, adjusts the fee schedule payment based on various quality, technology, and soon, cost factors. &nbsp;The default track is budget neutral and therefore involves winners and losers. &nbsp;The other track, advanced APM, exempts clinicians from MIPS but requires exposure to payment risk. &nbsp;MACRA is expected to enhance the drive to integration and the adoption of alternative payment models. &nbsp;Finally, those who employ or engage clinicians are well-advised to review contracts in light of MACRA and those who value practices or advise on practice valuation will need to take account of MACRA.</div> http://www.seyfarth.com:80//publications/CDL013017 Companies to Receive Further GDPR Guidance from WP29 in 2017 http://www.seyfarth.com:80//publications/CDL013017 Mon, 30 Jan 2017 00:00:00 -0400 <div> The EU Article 29 Data Protection Working Party (WP 29) is continuing its work in preparation for the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), which will take effect in May 2018. Last month, the WP29 released three sets of guidelines for controllers and processors of personal data, including guidelines on the right to data portability, on data protection officers, and on the lead supervisory authority. Key takeaways from these three guidelines can be found on our blog.</div> <div> &nbsp;</div> <div> This month, WP29 announced that it adopted its &ldquo;2017 GDPR Action Plan.&rdquo; The Plan identifies two areas of focus: (1) follow up on 2016 topics, and (2) new 2017 priorities. The follow-up work will include finalizing guidelines on certification and processing likely to result in a high risk and Data Protection Impact Assessments, administrative fines, the setting up of the European Data Protection Board (EDPB), and the preparation of the one-stop-shop&rdquo; and EDPB consistency mechanism.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/companies-receive-gdpr-guidance-wp29-2017/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=ec06edfe02-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-ec06edfe02-72857025">click here</a></div> http://www.seyfarth.com:80//publications/WH013017 New Rules, New Secretary? As Spring Inches Closer, We’re Getting Warmer. http://www.seyfarth.com:80//publications/WH013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> Will the Department of Labor&rsquo;s new overtime rule go into effect? When will a new Secretary of Labor be confirmed? We don&rsquo;t have the answers just yet, but a lot has happened over the last few weeks to inch us closer. As things heat up, we wanted to update our readers on all the latest.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/misclassification/getting-warmer/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=44387a1b93-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-44387a1b93-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/ERISA013017 Is EEOC Regulation of Wellness Plans Legal? — Seventh Circuit Declines to Say Yes http://www.seyfarth.com:80//publications/ERISA013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> The Seventh Circuit has stymied an EEOC attempt to declare that employer wellness plans violate the Americans with Disabilities Act (&ldquo;ADA&rdquo;). The court decided that the issues raised by the suit are moot, and deferred to another day tackling weightier questions of statutory interpretation and the EEOC&rsquo;s rulemaking authority.</p> <p> To read the full blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/01/30/is-eeoc-regulation-of-wellness-plans-legal-seventh-circuit-declines-to-say-yes/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=e7b976fb48-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-e7b976fb48-71408929">click here</a>.</p> http://www.seyfarth.com:80//publications/GPW013017 The Global Privacy Watch: Companies to Receive Further GDPR Guidance from WP29 in 2017 http://www.seyfarth.com:80//publications/GPW013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> The EU Article 29 Data Protection Working Party (WP 29) is continuing its work in preparation for the General Data Protection Regulation (GDPR) (Regulation (EU) 2016/679), which will take effect in May 2018. Last month, the WP29 released three sets of guidelines for controllers and processors of personal data, including guidelines on the right to data portability, on data protection officers, and on the lead supervisory authority. Key takeaways from these three guidelines can be found on our eDiscovery blog.</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/01/companies-to-receive-further-gdpr-guidance-from-wp29-in-2017/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_medium=email&amp;utm_campaign=5ce7c6e943-RSS_EMAIL_CAMPAIGN&amp;utm_term=0_96fbafbd4b-5ce7c6e943-71256385">click here</a>.</p> http://www.seyfarth.com:80//news/wendrowski-authored-article-international-law-office-013017 Wendy Wendrowski authored an article in <i>International Law Office</i> http://www.seyfarth.com:80//news/wendrowski-authored-article-international-law-office-013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> Wendy Wendrowski has authored &quot;Construction project documentation: explaining business records exception to the rule against hearsay,&quot; an article published January 30 in <em>International Law Office</em>. The article outlines the best practices for generating and preserving construction records to avoid evidentiary challenges to company records if a construction claim is litigated.</p> http://www.seyfarth.com:80//news/carlson-selected-georgetown-law-advanced-ediscovery-institute-advisory-board Scott Carlson Selected to Serve on Georgetown Law’s Advanced eDiscovery Institute Advisory Board http://www.seyfarth.com:80//news/carlson-selected-georgetown-law-advanced-ediscovery-institute-advisory-board Mon, 30 Jan 2017 00:00:00 -0400 <div> Seyfarth Shaw&rsquo;s Scott Carlson, founder and chair of the firm&rsquo;s eDiscovery and Information Governance practice in Chicago, was selected to serve on the Georgetown Law Center&rsquo;s Advanced eDiscovery Institute (AEDI) Advisory Board. Carlson fills the position held by Seyfarth attorney James Daley.</div> <div> &nbsp;</div> <div> The AEDI&rsquo;s Advisory Board plans Georgetown Law Center&rsquo;s annual eDiscovery conference. Now entering its 14th year, the conference is recognized as the preeminent annual global eDiscovery Conference where attendees gain access to federal judges and are provided the opportunity to learn at an advanced level from the leading eDiscovery practitioners and academics from across the country.</div> <div> &nbsp;</div> <div> <a href="https://www.law.georgetown.edu/continuing-legal-education/programs/cle/ediscovery-institute/">More information about the AEDI can be found here</a>.&nbsp;</div> <div> &nbsp;</div> <div> Carlson&rsquo;s practice is entirely devoted to eDiscovery and information governance issues from both the consulting and litigation perspective. Notably, Carlson developed and taught the first eDiscovery course taught in a U.S. law school program.</div> http://www.seyfarth.com:80//news/maatman-quoted-law360-013017 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-013017 Mon, 30 Jan 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Trump Reg Order Hammers Home Employment Policy Shift,&quot; a January 30 story from <em>Law360 </em>on the President&rsquo;s executive order directing federal agencies to nix two regulations for every one they implement. Maatman thinks the message coming out of Washington for employers is that things are changing and to expect less regulation.</p> http://www.seyfarth.com:80//publications/MA012917-LE Executive Order Immediately Suspends Travel into the U.S. for Certain Foreign Nationals http://www.seyfarth.com:80//publications/MA012917-LE Sun, 29 Jan 2017 00:00:00 -0400 <p> On Friday, January 27, President Trump signed an Executive Order that suspended travel into the United States for nationals from certain designated countries, specifically Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. This suspension in travel is already in place. &nbsp;If nationals from these countries, including those who are lawful permanent residents (i.e. green card holders), &nbsp;are currently present in the United States, they can remain here lawfully but should not travel outside the U.S. at this time.&nbsp;</p> <p> This suspension will remain in place for at least 90 days -- until April 27, 2017 -- during which time the Department of Homeland Security (&ldquo;DHS&rdquo;) must assess and identify any countries that do not currently provide adequate information to enable proper screening of nationals from those countries; the affected countries would thereafter have 60 days within which to begin providing the necessary information. Presumably, if a country failed to adequately provide the requested information, the travel ban would then become indefinite.&nbsp;</p> <p> The Executive Order does not clearly define the circumstances under which an individual is considered to be &ldquo;from a designated&rdquo; country. However, the language and subsequent actions by Customs and Border Protection (&ldquo;CBP&rdquo;) at the border suggests that the travel ban will apply to nationals from the seven countries, and may include lawful permanent residents. &nbsp;</p> <p> Following actions by CBP, several lawsuits have been filed and subsequent rulings have been made, starting with an emergency ruling issued in Brooklyn, New York on January 28, 2017. &nbsp;As of this writing, at least four temporary restraining orders (&ldquo;TROs&rdquo;) are in place, each with varying specificity and reach. &nbsp;We have highlighted the key points of the three most prominent orders below:</p> <ul> <li> Massachusetts - On Sunday, January 29, 2017, U.S. District Judge Allison Burroughs and Magistrate Judge Judith G. Dein of the U.S. District Court of Massachusetts issued a seven-day stay on removal, detainment and additional screening. &nbsp;Perhaps the most far reaching order to date, the TRO is in effect for seven days and applies to lawful permanent residents, citizens, visa holders, approved refugees, and other individuals from the identified countries subject to the Executive Order. &nbsp;The ruling also (1) limits secondary inspection screening; (2) bars DHS from detaining or removing foreign nationals who would otherwise be legally authorized to enter the U.S. in the absence of the Executive Order with approved refugees applications, immigrant and nonimmigrant visas; (3) requires CBP to notify airlines that individuals on flights to Logan Airport will not be detained or returned based solely on the basis of the Executive Order.</li> <li> New York- On Saturday, January 28, 2017, Judge Ann M. Donnelly of the U.S. District Court in Brooklyn enjoined and restrained DHS from &quot;removing individuals with refugee applications . . . , holders of valid immigrant and non-immigrant visas, and other individuals . . . legally authorized to enter the United States.&quot; The Court orders the U.S. Marshal for the Eastern District of New York to enforce the ruling. &nbsp;While the ruling blocks removal of the individuals, it does not order the release of any segment of the affected population. &nbsp;&nbsp;</li> <li> Virginia - On Saturday, January 28, 2017, U.S. District Court Judge Leinie Brinkeman for the Eastern District of Virginia has issued an order blocking removal of lawful permanent residents detained at Dulles International Airport. &nbsp;The order remains in effect for seven days and does not require release of lawful permanent residents, but does require that all lawful &nbsp;permanent residents detained at Dulles International Airport be given access to lawyers. &nbsp;</li> </ul> <p> The President&rsquo;s Executive Order is not the first time in the post-9/11 era that the U.S. has focused on citizens of particular nations to try and identify and eliminate potential threats to homeland security. &nbsp;In 2002, the George W. Bush administration created a program of special vetting of foreign citizens, known as the National Security Entry-Exit Registration System (&ldquo;NSEERS&rdquo;), to record and monitor the arrival, stay, and departure of certain foreign citizens from the very same seven countries named in the most recent Executive Order. &nbsp;</p> <p> NSEERS, however, was far broader. &nbsp;It also applied to categories of foreign citizens from several other countries, namely, Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Tunisia, United Arab Emirates, and Yemen. DHS suspended NSEERS in 2011, however, and President Obama formally terminated it on December 22, 2016.</p> <p> Given this history, <u>as a precautionary measure</u>, U.S. lawful permanent residents and foreign nationals from countries not included in President Trump&rsquo;s Executive Order but included in the NSEERS list of countries should <u>consider</u> postponing all non-emergency travel from, and accelerating their return travel to the United States. &nbsp;In addition, employers of U.S. lawful permanent residents and foreign nationals who are from Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia, Jordan, Kuwait, Lebanon, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Tunisia, United Arab Emirates, and Yemen, should <u>consider</u> (a) canceling all trips abroad for these employees, and (b) instructing them to return as soon as possible to the United States.&nbsp;</p> <p> In light of these developments, and in response to the rapidly changing immigration climate, employers should strongly consider the following actions:&nbsp;</p> <ul> <li> Advise any foreign national employees from the seven designated countries listed above -- this includes U.S. lawful permanent residents who are nationals from these countries -- to avoid travel outside of the United States. &nbsp;If a U.S. lawful permanent resident from these countries is currently outside of the U.S., s/he should seek to return as soon as possible.</li> <li> Advise any affected individuals from the seven designated countries, other than lawful permanent residents, who are currently outside of the United States that they should not return to the U.S. at this time. &nbsp;Seyfarth Shaw attorneys have first-hand knowledge of individuals being detained upon arrival to the United States. &nbsp;</li> <li> Consider advising U.S. lawful permanent residents and foreign national employees from countries not included in the Executive Order but included in NSEERS to postpone non-emergency international travel. &nbsp;</li> <li> Identify all employees currently holding any nonimmigrant visa status (this includes L-2s, H-4s, and TNs) and consider sponsoring these employees for H-1B status under the April 1 H-1B lottery.&nbsp;</li> <li> Advise caution to <u>all</u> foreign national employees who may be traveling internationally to renew a visa at a United States consular post. &nbsp;Individuals who are employed, or who hold academic degrees, in a field that appears on the government&rsquo;s Technology Alert List, should &nbsp;delay their visa appointments at U.S. consular posts in order to avoid potentially lengthy administrative processing or related screening delays. &nbsp;Click <a href="http://www.seyfarth.com/dir_docs/news_item/b139cfa1-3241-4c46-9ca9-8054b5dc4c82_documentupload.pdf">here</a> for more information on the Department of State&rsquo;s Technology Alert List.&nbsp;</li> <li> For any affected employees who have current green card priority dates and are able to file Adjustment of Status applications, file the applications as soon as possible.</li> </ul> <p> Please bear in mind, however, that each employer&rsquo;s and affected employee&rsquo;s situation may present special circumstances that may warrant consideration of an alternative approach in lieu of the recommended strategy above.&nbsp;</p> <p> We will continue to monitor the situation and will reach out with additional details as they become available.</p> http://www.seyfarth.com:80//publications/ Seventh Circuit Declines To Address The EEOC’s Challenge To The Legality Of Employer’s Wellness Plan http://www.seyfarth.com:80//publications/ Sun, 29 Jan 2017 00:00:00 -0400 <p> After an employee lost his employer-funded health insurance because he failed to complete a medical examination required by his employer, the EEOC sued the employer under the ADA&rsquo;s ban on involuntary medical examinations. The U.S. Court of Appeals for the Seventh Circuit affirmed dismissal of the suit, not on the merits, but because the relief sought was &ldquo;unavailable or moot.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/01/seventh-circuit-declines-to-address-the-eeocs-challenge-to-the-legality-of-employers-wellness-plan/">click here</a></p> http://www.seyfarth.com:80//publications/ADA012717 Florida Federal Court Holds That a Website is Not a Place of Public Accommodation http://www.seyfarth.com:80//publications/ADA012717 Fri, 27 Jan 2017 00:00:00 -0400 <div> Defendants fighting website accessibility lawsuits in the past several years have not had a great deal of success, so the recent decision by Florida federal Magistrate Judge Carol Mirando holding that SeaWorld&rsquo;s website is not a place of public accommodation was a small bright spot &mdash; albeit one with limitations.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/florida-federal-court-holds-that-a-website-is-not-a-place-of-public-accommodation/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=262a54bb53-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-262a54bb53-71256157">click here</a></div> http://www.seyfarth.com:80//publications/MA012717-LE President Trump Signs Two Executive Orders on Immigration http://www.seyfarth.com:80//publications/MA012717-LE Fri, 27 Jan 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On January 25, 2017, President Trump signed two Executive Orders, one focusing on border security and the construction of a physical wall along the southern border and another focusing on improving public safety in the U.S. &nbsp;</em></p> <p> <strong>I.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Executive Order:&nbsp; Border Security and Immigration Enforcement Improvements</strong></p> <p> In a sweeping border enforcement Executive Order (&ldquo;EO&rdquo;), &ldquo;Border Security and Immigration Enforcement Improvements,&rdquo; President Trump calls for the immediate construction of a physical wall on the southern border between the United States and Mexico.&nbsp; The EO directs a comprehensive study to be completed within 180 days detailing the current state of southern border security, all geophysical and topographical aspects of the southern border, and the availability of federal and state resources to achieve control of the southern border.</p> <p> While the EO does not specifically state who will pay for the wall, President Trump will direct the head of each executive department and agency to identify and quantify all sources of direct and indirect federal aid or assistance to the Government of Mexico on an annual basis over the last five years, suggesting that the United States will seek reimbursement from the Government of Mexico.</p> <p> The EO also provides for the construction and staffing of detention facilities at or near the land border with Mexico, and directs the issuance of new policy guidance to all Department of Homeland Security personnel on the appropriate and consistent use of lawful detention authority, including termination of the practice commonly referred to as &ldquo;catch and release,&rdquo; where detainees are released in the United States following an immigration law violation.&nbsp; In addition, President Trump ordered the hiring of 5,000 new Border Patrol agents in an effort to ramp up enforcement measures.</p> <p> In addition, the EO authorizes state and local law enforcement officials to &ldquo;perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary of Homeland Security.&rdquo;</p> <p> The EO also outlines the policy of the executive branch to &ldquo;end the abuse of parole and asylum provisions currently used to prevent the lawful removal of removable aliens.&rdquo;&nbsp; The EO tightens discretion regarding parole authority, directing that it be exercised only on a case-by-case basis in accordance with the plain language of the statute.</p> <p> <strong>II.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Executive Order:&nbsp; Enhancing Public Safety in the Interior of the United States</strong></p> <p> The second EO aims at removing (commonly known as deporting) certain foreign nationals and discouraging support of &nbsp;&ldquo;sanctuary cities.&rdquo;&nbsp; Entitled &ldquo;Enhancing Public Safety in the Interior of the United States,&rdquo; the EO prioritizes the removal of foreign nationals who are inadmissible on criminal and security grounds, due to unlawful entry to the U.S. and violation of immigration status, as well as removable aliens who:&nbsp; &ldquo;have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or, in the judgment of an immigration officer, otherwise pose a risk to public safety or national security.&rdquo;&nbsp;&nbsp; To undertake these removal efforts, the EO calls on the Director of U.S. Immigration and Customs Enforcement (&ldquo;ICE&rdquo;) to hire <u>10,000 additional</u> immigration officers and empowers state and local law enforcement to &ldquo;perform the functions of an immigration officer&rdquo; to the maximum extent permitted by law.</p> <p> With respect to &ldquo;sanctuary cities,&rdquo; President Trump&rsquo;s EO directs the Attorney General and the Secretary of Homeland Security to ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except those necessary for law enforcement.&nbsp; The EO empowers the Secretary of Homeland Security to designate which jurisdictions qualify as sanctuary jurisdictions.&nbsp; Moreover, the EO instructs the Secretary of Homeland Security to publish a weekly list of criminal actions committed by foreign nationals and any jurisdiction that ignored or failed to uphold detainers related to those foreign nationals.&nbsp;</p> <p> In addition, the Executive Order addresses &ldquo;Recalcitrant Countries,&rdquo; calling for the implementation&nbsp; of sanctions provided by the Immigration &amp; National Act (&ldquo;INA&rdquo;), which suspends granting immigrant and nonimmigrant visas to individuals from countries who fail to accept a removed (deported) foreign national.&nbsp; Under the EO, the Secretary of State must ensure that diplomatic efforts with foreign states include as a condition precedent the acceptance by the foreign states of their nationals who are removed by the U.S.</p> <p> For more information, please contact the Seyfarth immigration attorney with whom you work, or any Business Immigration attorney on our <a href="http://www.seyfarth.com/immigration">website</a>.</p> http://www.seyfarth.com:80//publications/MA012717-LIT Top Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law in 2016 http://www.seyfarth.com:80//publications/MA012717-LIT Fri, 27 Jan 2017 00:00:00 -0400 <div> Continuing our annual tradition, we present the top developments/headlines for 2016 in trade secret, computer fraud, and non-compete law. Please join us for our first <a href="http://www.tradesecretslaw.com/2017/01/articles/trade-secrets/upcoming-webinar-2016-national-year-in-review-what-you-need-to-know-about-the-recent-casesdevelopments-in-trade-secrets-non-compete-and-computer-fraud-law/">webinar</a> of the New Year on February 2, 2017, at 12:00 p.m. Central, where we will discuss these new developments, their potential implications, and our predictions for 2017.&nbsp;</div> <div> &nbsp;</div> <div> <strong>1. Defend Trade Secrets Act</strong></div> <div> &nbsp;</div> <div> One of the most significant developments of 2016 that will likely have a profound impact on trade secret cases in the coming years was the enactment of the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;). The DTSA creates a new federal cause of action for trade secret misappropriation, albeit it does not render state law causes of action irrelevant or unimportant. The DTSA was passed after several years and many failed attempts. The bill was passed with overwhelming bipartisan, bicameral support, as well as backing from the business community.</div> <div> &nbsp;</div> <div> The DTSA now allows trade secret owners to sue in federal court for trade secret misappropriation, and seek remedies previously unavailable. Employers should be aware that the DTSA contains a whistleblower immunity provision, which protects individuals from criminal or civil liability for disclosing a trade secret if such disclosure is made in confidence to a government official or attorney, indirectly or directly. The provision applies to those reporting violations of law or who file lawsuits alleging employer retaliation for reporting a suspected violation of law, subject to certain specifications (i.e., trade secret information to be used in a retaliation case must be filed under seal). This is significant for employers because it places an affirmative duty on them to give employees notice of this provision in &ldquo;any contract or agreement with an employee that governs the use of a trade secret or other confidential information.&rdquo; Employers who do not comply with this requirement forfeit the ability to recoup exemplary damages or attorneys&rsquo; fees under the DTSA in an action against an employee to whom no notice was ever provided.</div> <div> &nbsp;</div> <div> At least one federal district court has rejected an employee&rsquo;s attempts to assert whistleblower immunity under the DTSA. In <em>Unum Group v. Loftus</em>, No. 4:16-CV-40154-TSH, 2016 WL 7115967 (D. Mass. Dec. 6, 2016), the federal district court for the district of Massachusetts denied a defendant employee&rsquo;s motion to dismiss and held that a defendant must present evidence to justify the whistleblower immunity.</div> <div> &nbsp;</div> <div> We anticipate cases asserting claims under the DTSA will be a hot trend and closely followed in 2017. For further information about the DTSA, please see our webinar &ldquo;<a href="http://www.tradesecretslaw.com/2016/04/articles/trade-secrets/webinar-recap-new-year-new-progress-2016-update-on-defend-trade-secrets-act-eu-directive/">New Year, New Progress: 2016 Update on Defend Trade Secrets Act &amp; EU Directive</a>.&rdquo;</div> <div> &nbsp;</div> <div> <strong>2. EU Trade Secrets Directive</strong></div> <div> &nbsp;</div> <div> On May 27, 2016, the European Council unanimously approved its Trade Secrets Directive, which marks a sea-change in protection of trade secrets throughout the European Union (&ldquo;EU&rdquo;). Each of the EU&rsquo;s 28 member states will have a period of 24 months to enact national laws that provide at least the minimum levels of protections afforded to trade secrets by the directive. Similar to the DTSA, the purpose of the EU&rsquo;s Trade Secrets Directive was to provide greater consistency in trade secrets protection throughout the EU. For further information about the EU&rsquo;s Trade Secrets Directive, please see our webinar &ldquo;<a href="http://www.tradesecretslaw.com/2016/04/articles/trade-secrets/webinar-recap-new-year-new-progress-2016-update-on-defend-trade-secrets-act-eu-directive/">New Year, New Progress: 2016 Update on Defend Trade Secrets Act &amp; EU Directive</a>.&rdquo;</div> <div> &nbsp;</div> <div> <strong>3. Government Agencies Continue to Scrutinize the Scope of Non-Disclosure&nbsp;and Restrictive Covenant Agreements</strong></div> <div> &nbsp;</div> <div> Fresh off of signing the DTSA, the Obama White House released a report entitled &ldquo;Non-Compete Reform: A Policymaker&rsquo;s Guide to State Policies,&rdquo; which relied heavily on Seyfarth Shaw&rsquo;s &ldquo;<a href="http://www.seyfarth.com/dir_docs/publications/50StateDesktop2016-2017.pdf">50 State Desktop Reference: What Employers Need to Know About Non-Compete and Trade Secrets Law</a>&rdquo; and contained information on state policies related to the enforcement of non-compete agreements. Additionally, the White House issued a &ldquo;Call to Action&rdquo; that encouraged state legislators to adopt policies to reduce the misuse of non-compete agreements and recommended certain reforms to state law books. The Non-Compete Reform report analyzed the various states that have enacted statutes governing the enforcement of non-compete agreements and the ways in which those statutes address aspects of non-compete enforceability, including durational limitations; occupation-specific exemptions; wage thresholds; &ldquo;garden leave;&rdquo; enforcement doctrines; and prior notice requirements.</div> <div> &nbsp;</div> <div> With those issues in mind, the Call to Action encourages state policymakers to pursue three &ldquo;best-practice policy objectives&rdquo;: (1) ban non-competes for categories of workers, including workers under a certain wage threshold; workers in occupations that promote public health and safety; workers who are unlikely to possess trade secrets; or workers who may suffer adverse impacts from non-competes, such as workers terminated without cause; (2) improve transparency and fairness of non-competes by, for example, disallowing non-competes unless they are proposed before a job offer or significant promotion has been accepted; providing consideration over and above continued employment; or encouraging employers to better inform workers about the law in their state and the existence of non-competes in contracts and how they work; and (3) incentivize employers to write enforceable contracts and encourage the elimination of unenforceable provisions by, for example, promotion of the use of the &ldquo;red pencil doctrine,&rdquo; which renders contracts with unenforceable provisions void in their entirety.</div> <div> &nbsp;</div> <div> While some large employers have embraced the Call to Action, even reform-minded employers are likely to be wary of some of these proposals. Moreover, this initiative may die or be limited with the new Trump administration.</div> <div> &nbsp;</div> <div> On October 20, 2016, the Department of Justice (&ldquo;DOJ&rdquo;) and the Federal Trade Commission (&ldquo;FTC&rdquo;) jointly issued their &ldquo;Antitrust Guidance for Human Resource Professionals.&rdquo; The Guidance explains how antitrust law applies to employee hiring and compensation practices. The agencies also issued a &ldquo;quick reference card&rdquo; that lists a number of &ldquo;antitrust red flags for employment practices.&rdquo; In a nutshell, agreements (whether formal or informal) among employers to limit or fix the compensation paid to employees or to refrain from soliciting or hiring each other&rsquo;s employees are per se violations of the antitrust laws. Also, even if competitors don&rsquo;t explicitly agree to limit or suppress compensation, the mere exchange of compensation information among employers may violate the antitrust laws if it has the effect of suppressing compensation.</div> <div> &nbsp;</div> <div> In recent years, the National Labor Relations Board (&ldquo;NLRB&rdquo;) has issued numerous decisions in which workplace rules were found to unlawfully restrict employees&rsquo; Section 7 rights. Last year, the U.S. Court of Appeals for the D.C. Circuit denied Quicken Loans, Inc.&rsquo;s petition for review of an NLRB decision finding that confidentiality and non-disparagement provisions in the company&rsquo;s Mortgage Banker Employment Agreement unreasonably burdened employees&rsquo; rights under Section 7 of the NLRA.</div> <div> &nbsp;</div> <div> <strong>4. New State Legislation Regarding Restrictive Covenants</strong></div> <div> &nbsp;</div> <div> Oregon has limited the duration of employee non-competes to two years effective January 1, 2016. Utah has enacted the Post-Employment Restrictions Amendments, which limits restrictive covenants to a one-year time period from termination. Any restrictive covenant that is entered into on or after May 10, 2016, for more than one year will be void. Notably, Utah&rsquo;s new law does not provide for a court to blue pencil an agreement (i.e., revise/modify to the extent it becomes enforceable), rather the agreement as a whole will be deemed void if it is determined to be unreasonable.&nbsp;</div> <div> &nbsp;</div> <div> In what appears to have become an annual tradition, Massachusetts legislators have attempted to pass legislation regarding non-competes, to no avail. Two other states in New England, however, are able to claim accomplishments in that regard. Specifically, Connecticut and Rhode Island each enacted statutes last summer imposing significant restrictions on the use of non-compete provisions in any agreement that establishes employment or any other form of professional relationship with physicians. While Connecticut&rsquo;s law limits only the duration and geographic scope of physician non-competes, Rhode Island completely banned such provisions in almost all agreements entered into with physicians.</div> <div> &nbsp;</div> <div> <strong>5. Noteworthy Trade Secret, Computer Fraud, and Non-Compete Cases</strong></div> <div> &nbsp;</div> <div> In <em>Golden Road Motor Inn, Inc. v. Islam</em>, 132 Nev. Adv. Op. 49 (2016), the Supreme Court of Nevada refused to adopt the &ldquo;blue pencil&rdquo; doctrine when it ruled that an unreasonable provision in a non-compete agreement rendered the entire agreement unenforceable. Accordingly, this means that employers conducting business in Nevada should ensure that non-compete agreements with their employees are reasonably necessary to protect the employers&rsquo; interests. Specifically, the scope of activities prohibited, the time limits, and geographic limitations contained in the non-compete agreements should all be reasonable. If an agreement contains even one overbroad or unreasonable provision, the employer risks having the entire agreement invalidated and being left without any recourse against an employee who violates the agreement.</div> <div> &nbsp;</div> <div> The Louisiana Court of Appeal affirmed a $600,000 judgment, plus attorneys&rsquo; fees and costs, against an ex-employee who violated his non-compete when he assisted his son&rsquo;s start-up company compete with the ex-employee&rsquo;s former employer. See <em>Pattridge v. Starks</em>, No. 50,351-CA (Louisiana Court of Appeal, Feb. 24, 2016) (Endurall III).</div> <div> &nbsp;</div> <div> A Massachusetts Superior Court judge struck down a skin care salon&rsquo;s attempt to make its non-compete agreement seem prettier than it actually was. In denying the plaintiff&rsquo;s motion for a preliminary injunction, the court stressed that employees&rsquo; conventional job knowledge and skills, without more, would not constitute a legitimate business interest worth safeguarding. See<em> Elizabeth Grady Face First, Inc. v. Garabedian et al.</em>, No. 16-799-D (Mass. Super. Ct. March 25, 2016).</div> <div> &nbsp;</div> <div> In a case involving alleged violations of the Kansas Uniform Trade Secrets Act (&ldquo;KUTSA&rdquo;) and the Computer Fraud and Abuse Act (&ldquo;CFAA&rdquo;), a Kansas federal district court granted a defendant&rsquo;s motion for summary judgment, holding that (a) payments to forensic experts did not satisfy the KUTSA requirement of showing an &ldquo;actual loss caused by misappropriation&rdquo; (K.S.A. 60-3322(a)), and (b) defendant was authorized to access the company&rsquo;s shared files and, therefore, he did not violate the CFAA. See <em>Tank Connection, LLC v. Haight</em>, No. 6:13-cv-01392-JTM (D. Kan., Feb. 5, 2016) (Marten, C.J.).</div> <div> &nbsp;</div> <div> The Tennessee Court of Appeals held that the employee&rsquo;s restrictive covenants were unenforceable when the employer had not provided the employee with any confidential information or specialized training. See <em>Davis v. Johnstone Group, Inc.</em>, No. W2015-01884-COA-R3-CV (Mar. 9, 2016).</div> <div> &nbsp;</div> <div> Reversing a 2-1 decision of the North Carolina Court of Appeals, the state&rsquo;s Supreme Court held unanimously that an assets purchase-and-sale contract containing an unreasonable territorial non-competition restriction is unenforceable Further, a court in that state must strike, and may not modify, the unreasonable provision. See <em>Beverage Systems of the Carolinas, LLC v. Associated Beverage Repair, LLC</em>, No. 316A14 (N.C. Sup. Court, Mar. 18, 2016).</div> <div> &nbsp;</div> <div> The Ohio Court of Appeal upheld a non-compete giving the former employer discretion to determine whether an ex-employee was working for a competitor. See <em>Saunier v. Stark Truss Co.</em>, Case No. 2015CA00202 (Ohio App., May 23, 2016).</div> <div> &nbsp;</div> <div> In a clash between two major oil companies, the Texas Supreme Court ruled on May 20, 2016, that the recently enacted Texas Uniform Trade Secrets Act (&ldquo;TUTSA&rdquo;) allows the trial court discretion to exclude a company representative from portions of a temporary injunction hearing involving trade secret information. The Court further held a party has no absolute constitutional due-process right to have a designated representative present at the hearing.</div> <div> &nbsp;</div> <div> A Texas Court of Appeals held on August 22, 2016, that a former employer was entitled to $2.8 million in attorneys&rsquo; fees against a former employee who used the employer&rsquo;s information to compete against it. The Court reached this ruling despite the fact that the jury found no evidence that the employer sustained any damages or that the employee misappropriated trade secrets.</div> <div> &nbsp;</div> <div> In <em>Fidlar Technologies v. LPS Real Estate Data Solutions, Inc.</em>, Case No. 4:13-CV-4021 (7th Cir., Jan. 21, 2016), the Seventh Circuit Court of Appeals affirmed a district court&rsquo;s conclusion that a plaintiff had produced no evidence refuting the defendant&rsquo;s contention that it honestly believed it was engaging in lawful business practices rather than intentionally deceiving or defrauding the plaintiff. Even though the plaintiff&rsquo;s technology did not expressly permit third parties to access the digitized records and use the information without printing copies, thereby avoiding payment of fees to plaintiff, such access and use were not prohibited.</div> <div> &nbsp;</div> <div> A divided Ninth Circuit panel affirmed the conviction of a former employee under the CFAA, holding that &ldquo;[u]nequivocal revocation of computer access closes both the front door and the back door&rdquo; to protected computers, and that using a password shared by an authorized system user to circumvent the revocation of the former employee&rsquo;s access is a crime. See <em>United States v. Nosal</em>, (&ldquo;Nosal II&rdquo;) Nos. 14-10037, 14-10275 (9th Cir. July 5, 2016).</div> <div> &nbsp;</div> <div> The Ninth Circuit in <em>Facebook v. Power Ventures</em>, Case No. 13-17154 (9th Cir. Jul. 12, 2016), held that defendant Power Ventures did not violate the CFAA when it made copies and extracted data from the social media website despite receiving a cease and desist letter. The court noted that Power&rsquo;s users &ldquo;arguably gave Power permission to use Facebook&rsquo;s computers to disseminate messages&rdquo; (further stating that &ldquo;Power reasonably could have thought that consent from <em>Facebook users</em> to share the [Power promotion] was permission for Power to access <em>Facebook&rsquo;s</em> computers&rdquo;) (emphasis in original). Importantly, the court found that &ldquo;[b]ecause Power had at least arguable permission to access Facebook&rsquo;s computers, it did not initially access Facebook&rsquo;s computers &lsquo;without authorization&rsquo; within the meaning of the CFAA.&rdquo;</div> <div> &nbsp;</div> <div> <strong>6. Forum Selection Clauses</strong></div> <div> &nbsp;</div> <div> California enacted a new law (Labor Code &sect; 925) that restrains the ability of employers to require employees to litigate or arbitrate employment disputes (1) outside of California or (2) under the laws of another state. The only exception is where the employee was individually represented by a lawyer in negotiating an employment contract. For companies with headquarters outside of California and employees who work and reside in California, this assault on the freedom of contract is not welcome news.</div> <div> &nbsp;</div> <div> We also continued to see federal district courts enforcing forum selection clauses in restrictive covenant agreements. For example, a <a href="http://www.tradesecretslaw.com/2016/10/articles/noncompete-enforceability/federal-court-rejects-foreign-employees-attempt-to-avoid-forum-selection-clause-on-grounds-he-signed-under-duress-upon-arriving-in-u-s/">Massachusetts federal district court</a> last fall transferred an employee&rsquo;s declaratory judgment action to the Eastern District of Michigan pursuant to a forum-selection clause in a non-compete agreement over the employee&rsquo;s argument that he had signed the agreement under duress because he was not told he would need to sign it until he had already spent the money and traveled all the way from India to the United States.</div> <div> &nbsp;</div> <div> <strong>7. Security Breaches and Data Theft Remain Prevalent</strong></div> <div> &nbsp;</div> <div> 2016 was a record year for data and information security breaches, one of the most notably being WikiLeaks&rsquo; release of emails purportedly taken from the Democratic National Committee&rsquo;s email server. According to a report from the <a href="http://www.idtheftcenter.org/">Identity Theft Resource Center</a>, U.S. companies and government agencies saw a <strong>40% increase</strong> in data breaches from 2015 and suffered over a thousand data breaches. Social engineering has become the number one cause of data breaches, leaks, and information theft. Organizations should alert and train employees on following policy, spotting potential social engineering attacks, and having a clear method to escalate potential security risks. Employee awareness, coupled with technological changes towards better security will reduce risk and exposure to liability. For technical considerations and best practices and policies of attorneys when in the possession of client data, please view our webinar, &ldquo;A Big&nbsp;</div> <div> Target&mdash;Cybersecurity for Attorneys and Law Firms.&rdquo;</div> <div> &nbsp;</div> <div> <strong>8. The ITC&rsquo;s Extraterritorial Authority in Trade Secret Disputes</strong></div> <div> &nbsp;</div> <div> In a case involving the misappropriation of U.S. trade secrets in China, the U.S. Supreme Court was asked to decide whether Section 337 of the Tariff Act does, in fact, authorize the U.S. International Trade Commission (&ldquo;ITC&rdquo;) to investigate misappropriation that occurred entirely outside the United States. See <em>Sino Legend (Zhangjiangang) Chemical Co. Ltd. v. ITC</em>. The crux of Sino Legend&rsquo;s argument was that for a statute to apply abroad, there must be express congressional intent. Not surprisingly, Sino Legend argued that such intent was missing from Section 337 of the Tariff Act. In <em>Tianrui Group Co. Ltd. v. ITC</em>, 661 F.3d 1322 (Fed. Cir. 2011), the Federal Circuit held that such intent was manifest in the express inclusion of &ldquo;the importation of articles ... into the United States&rdquo; which evidenced that Congress had more than domestic concerns in mind. On January 9, 2017, the Supreme Court denied Sino Legend&rsquo;s petition for certiorari, thereby keeping the ITC&rsquo;s doors open to trade secret holders seeking to remedy misappropriation occurring abroad. For valuable insight on protecting trade secrets and confidential information in China and other Asian countries, including the effective use of non-compete and non-disclosure agreements, please check out our recent webinar titled, &ldquo;Trade Secret and Non-Compete Considerations in Asia.&rdquo;</div> <div> &nbsp;</div> <div> We thank everyone who followed us this year and we really appreciate all of your support. We will continue to provide up-to-the-minute information on the latest legal trends and cases in the U.S. and across the world, as well as important thought leadership and resource links and materials.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/PEmicroblog012717 Mississippi Reps Propose Pay Equity Law http://www.seyfarth.com:80//publications/PEmicroblog012717 Fri, 27 Jan 2017 00:00:00 -0400 <div> Continuing the recent trend in equal pay legislation, four representatives of the Mississippi Legislature introduced House Bill No. 9 earlier this month. Known as the &ldquo;Evelyn Gandy Fair Pay Act&rdquo; (named after the first woman to be elected as Lieutenant Governor of Mississippi), the bill seeks to &ldquo;prohibit wage discrimination against women.&rdquo;</div> <div> &nbsp;</div> <div> If signed into law, the bill will prohibit discriminatory &ldquo;compensation decisions&rdquo; or &ldquo;other practices.&rdquo; An unlawful employment practice would occur &ldquo;each time wages, benefits, or other compensation is paid, resulting, in whole or in part, from such a decision or other practice.&rdquo;</div> <div> &nbsp;</div> <div> In a unique twist, because Mississippi does not have a general anti-discrimination statute that applies to private employers, the bill makes discriminatory compensation decisions and other practices a violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973.</div> <div> &nbsp;</div> <div> In addition to other relief already provided by law, the bill allows up to two years of back pay where unlawful practices that occur during &ldquo;the charge filing period&rdquo; are &ldquo;similar or related to&rdquo; unlawful practices &ldquo;that occurred outside the time for filing a charge.&rdquo; While it is not clear, the references to &ldquo;charge&rdquo; appear to refer to charges filed at the EEOC, as Mississippi does not have a state administrative agency to process discrimination claims.</div> <div> &nbsp;</div> <div> House Bill No. 9 is not the first attempt by Mississippi Representatives to pass a fair pay act into law. In fact, Mississippi democrats introduced similar bills in the legislature in previous years with no success. If House Bill No. 9 is passed into law, it will become effective immediately. We will continue to monitor its progress.</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM012717LE UPDATE: Philadelphia Enacts Law Prohibiting Inquiry Into a Prospective Employee’s Wage History http://www.seyfarth.com:80//publications/OMM012717LE Fri, 27 Jan 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>Philadelphia is the next jurisdiction to prohibit employers from inquiring into job applicants&rsquo; wage history during the employment application process.&nbsp;</em></div> <div> &nbsp;</div> <div> <strong>UPDATE:</strong> The Ordinance will become effective on May 23, 2017.</div> <div> &nbsp;</div> <div> <strong>The Ordinance</strong></div> <div> &nbsp;</div> <div> The Philadelphia City Council recently passed <a href="https://phila.legistar.com/LegislationDetail.aspx?ID=2849975&amp;GUID=239C1DF9-8FDF-4D32-BACC-296B6EBF726C">Bill No. 160840</a>, amending Title 9 of The Philadelphia Code by adding wage equity measures to Philadelphia&rsquo;s Fair Practices Ordinance, which was initially passed in 2011 to prohibit employers from inquiring as to non-conviction arrests and has since been expanded to include ban the box restrictions and mandatory poster requirements (see our prior coverage <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM122315LE.pdf">here</a> and <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM032416LE.pdf">here</a>). &nbsp;The amended Ordinance prohibits employers (and employment agencies) from inquiring about a prospective employee&rsquo;s wage history. &nbsp;Retaliation against a prospective employee for refusing to respond to such an inquiry is also prohibited, as long as no federal, state, or local law specifically authorizes the disclosure of wage history in connection with employment.&nbsp;</div> <div> &nbsp;</div> <div> In what is becoming a trend on the East Coast, Philadelphia joins Massachusetts in prohibiting inquiries into salary history. &nbsp;We may see this trend continue into New York City. &nbsp;Mayor Bill de Blasio recently signed Executive Order 21, which prohibits New York City agencies from inquiring about an applicant&rsquo;s salary history before extending a conditional offer of employment, and there is pending legislation in New York City that would prevent both public and private employers from inquiring about potential employees&rsquo; salary histories. &nbsp;However, at least for now, the salary history prohibition march down the East Coast will skip New Jersey. &nbsp;A similar prohibition proposed in New Jersey recently failed to override a veto by Governor Chris Christie.&nbsp;</div> <div> &nbsp;</div> <div> Perhaps surprisingly, these legislative and executive actions are more restrictive than what we currently see coming out of the West Coast. &nbsp;While changes to the California Fair Pay Act prohibit employers from relying on prior salary as the sole justification for wage differences, the Act does not completely forbid employers from making such inquiries. &nbsp;</div> <div> &nbsp;</div> <div> The Philadelphia Ordinance makes it unlawful for an employer or employment agency to:<br /> &nbsp;</div> <ul> <li> Inquire about a prospective employee&rsquo;s wage history (in writing or otherwise);</li> <li> Require disclosure of wage history;</li> <li> Condition employment or consideration for an interview on disclosure of wage history;</li> <li> Rely on the wage history of a prospective employee from any current or former employer in determining the wages for that individual at any state in the employment process, including negotiating or drafting of an employment contract (unless the applicant &ldquo;knowingly and willingly&rdquo; disclosed his or her wage history); or&nbsp;</li> <li> Retaliate against a prospective employee for failing to comply with any wage history inquiry.</li> </ul> <div> &nbsp;</div> <div> &ldquo;Wages&rdquo; are broadly defined as all earnings, including fringe benefits, &ldquo;wage supplements or other compensation whether payable by the employer from employer funds or from amounts withheld from the employee&rsquo;s pay by the employer,&rdquo; such as other lawful deductions. &nbsp;</div> <div> &nbsp;</div> <div> The Ordinance will take effect on May 23, 2017 (120 days from January 23, 2017, the date it was signed by Mayor Jim Kenney). Notably, aggrieved individuals must file a complaint within 300 days of an alleged violation with the Philadelphia Commission on Human Relations (&ldquo;Commission&rdquo;) and, if the Commission fails to conclude its investigation within a one year period, may sue in court within two years of the Commission&rsquo;s dismissal. &nbsp;Potential remedies include equitable relief, compensatory and punitive damages, attorneys&rsquo; fees, and costs.</div> <div> &nbsp;</div> <div> <strong>Employer Outlook</strong></div> <div> &nbsp;</div> <div> Employers in Philadelphia should begin to review their applications and other hiring documents to remove any inquiry pertaining to wage history and advise recruiters and hiring managers to avoid making any similar inquiry. &nbsp;Moreover, expect to see a growing wave of similar legislation arise in other jurisdictions at various levels of government, ranging from state-wide to municipal ordinances, to address wage equity issues (e.g., Pennsylvania, New Jersey, and New York City).</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM012717NJ-LE New Jersey Senate Fails to Override Veto on Salary History Inquiry Ban, and Proposes Two New Pay Equity Bills, With Another Pending in the Senate http://www.seyfarth.com:80//publications/OMM012717NJ-LE Fri, 27 Jan 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> The New Jersey Senate has failed to override Governor Christie&rsquo;s conditional veto of a bill which would prohibit inquiries into salary history. &nbsp;New Jersey hoped to join Philadelphia and Massachusetts in banning salary history inquiries, but several bills in New Jersey aimed at pay equity initiatives remain alive.</em></div> <div> &nbsp;</div> <div> As uncertainty looms at the federal level as to the approach the Trump Administration will take with respect to pay equity, the focus on pay equity continues at the state level.&nbsp;</div> <div> &nbsp;</div> <div> However, at least for now, New Jersey won&rsquo;t join<a href="http://www.seyfarth.com/publications/OMM011217-LE"> Philadelphia</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, and potentially <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM081816LE.pdf">New York City</a> (which, for private employers, is still pending, although Mayor De Blasio recently signed an Executive Order that applies to City employees) in prohibiting inquiries into salary history. This week, the New Jersey Senate could not come up with the votes to <a href="http://www.laborandemploymentlawcounsel.com/2016/05/governor-christie-conditionally-vetoes-new-jerseys-pay-equity-bill/">override Governor Christie&rsquo;s conditional veto</a> prohibiting such inquiries. In a renewed effort, the Senate attempted to override the Governor&rsquo;s veto. &nbsp;In a preliminary vote, the Senate voted 23-11 for an override, which was four votes short. &nbsp;A two-thirds majority of the Senate is required to override a Governor&rsquo;s veto. &nbsp;</div> <div> &nbsp;</div> <div> There are additional bills which focus on pay equity that are still pending in New Jersey. Two bills were recently introduced in the New Jersey Assembly by New Jersey Democrats with companion bills in the Senate. &nbsp;</div> <div> &nbsp;</div> <ul> <li> The <a href="http://www.njleg.state.nj.us/2016/Bills/A4000/3832_I1.PDF">first</a> Assembly bill would prohibit businesses receiving financial assistance from the New Jersey Economic Development Authority (&ldquo;NJEDA&rdquo;) from engaging in gender discrimination in pay and would require such businesses to submit reports documenting pay equity compliance. &nbsp;Assembly Bill 3832 was <a href="http://www.njleg.state.nj.us/2016/Bills/A4000/3832_S1.PDF">reported</a> out of Assembly Committee for a second reading.</li> <li> The <a href="http://www.njleg.state.nj.us/2016/Bills/A4500/4372_I1.PDF">second</a> Assembly bill would establish the Office for Women&rsquo;s Advancement that would be responsible for conducting research on full and equal participation of women in the workplace, including on pay equity. This Office would also collaborate with other state bodies and seek to advance legislation on pay equity issues. Assembly Bill 4372 was <a href="http://www.njleg.state.nj.us/2016/Bills/A4500/4372_S1.PDF">referred</a> to the Assembly Appropriations Committee.</li> <li> Finally, <a href="http://www.njleg.state.nj.us/2016/Bills/S3000/2535_I1.PDF">Senate Bill 2535</a> would prohibit the release of gender discrimination or harassment claims in severance agreements. This bill was referred to the Senate Labor Committee.</li> </ul> <div> &nbsp;</div> <div> We will continue to track this legislation and report on further on further developments as they occur.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/CDL012717 Scott Carlson Selected for AEDI Advisory Board http://www.seyfarth.com:80//publications/CDL012717 Fri, 27 Jan 2017 00:00:00 -0400 <p> Scott Carlson has been selected to serve on the Georgetown Advanced eDiscovery Institute (AEDI) Advisory Board. The AEDI&rsquo;s Advisory Board plans Georgetown Law Center&rsquo;s annual eDiscovery conference. &nbsp;Now entering its fourteenth year, the conference is recognized as the preeminent annual global eDiscovery Conference.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/scott-carlson-selected-aedi-advisory-board/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=ddaa732d28-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-ddaa732d28-72857025">click here</a></p> http://www.seyfarth.com:80//publications/PEG012717 UPDATE: Philadelphia Enacts Law Prohibiting Inquiry Into a Prospective Employee's Wage History http://www.seyfarth.com:80//publications/PEG012717 Fri, 27 Jan 2017 00:00:00 -0400 <div> <div> <div> The Philadelphia City Council recently passed <a class="cms-content-links" href="https://phila.legistar.com/LegislationDetail.aspx?ID=2849975&amp;GUID=239C1DF9-8FDF-4D32-BACC-296B6EBF726C">Bill No. 160840</a>, amending Title 9 of The Philadelphia Code by adding wageequity measures to Philadelphia&rsquo;s Fair Practices Ordinance, which was initially passed in 2011 to prohibit employers from inquiring as to non-conviction arrests and has since been expanded to include ban the box restrictions and mandatory poster requirements (see our prior coverage <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM122315LE.pdf">here</a> and <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM032416LE.pdf">here</a>). The amended Ordinance prohibits employers (and employment agencies) from inquiring about a prospective employee&rsquo;s wage history. Retaliation against a prospective employee for refusing to respond to such an inquiry is also prohibited, as long as no federal, state, or local law specifically authorizes the disclosure of wage history in connection with employment.</div> <div> &nbsp;</div> </div> <div> To view the full post,&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog012717%20-%20Phila%281%29.pdf">click here.</a></div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/PEG0127172 New Jersey Fails to Override Veto on Salary History Inquiry Ban, and Proposes Two New Pay Equity Bills, With Another Pending in the Senate http://www.seyfarth.com:80//publications/PEG0127172 Fri, 27 Jan 2017 00:00:00 -0400 <div> <div> <div> As uncertainty looms at the federal level as to the approach the Trump Administration will take with respect to pay equity, the focus on pay equity continues at the state level.&nbsp;</div> <div> &nbsp;</div> </div> <div> To view the full post, <a class="cms-content-links" href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog012717%20-%20%20NJ%285%29.pdf">click here.</a></div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-profiled-cook-county-record-012717 Seyfarth’s annual <i>Workplace Class Action Report</i> was profiled in the <i>Cook County Record</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-profiled-cook-county-record-012717 Fri, 27 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual Workplace Class Action Report was profiled in &quot;Law firm releases report noting trends in workplace class-action litigation,&quot; a January 27 story by the <em>Cook County Record</em>. Authored by Gerald Maatman, this year&rsquo;s report said that while wage-and-hour litigation, and related regulatory actions were on the rise in 2016, the monetary value of top employment-related class action settlements were on the decline last year. Maatman said that workplace class-action litigation has increased geometrically over the past decade.</p> <p> <a href="http://cookcountyrecord.com/stories/511075940-law-firm-releases-report-noting-trends-in-workplace-class-action-litigation">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/weiss-quoted-global-banking-finance-review-012717 Philippe Weiss quoted by <i>Global Banking & Finance Review</i> http://www.seyfarth.com:80//news/weiss-quoted-global-banking-finance-review-012717 Fri, 27 Jan 2017 00:00:00 -0400 <p> Philippe Weiss was quoted by <em>Global Banking &amp; Finance Review</em> in the January 27 story &quot;WHICH FEDERAL LAW OR POLICY AREA(S) WILL SIGNIFICANTLY AFFECT YOUR JOB UNDER THE NEW ADMINISTRATION?,&quot; on SSAW&rsquo;s new survey. Weiss said that thirty-eight percent (38%) of those polled feared that the imposition of tariffs by the new administration might reduce available markets.</p> <p> <a href="https://www.globalbankingandfinance.com/which-federal-law-or-policy-areas-will-significantly-affect-your-job-under-the-new-administration/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/bartlett-quoted-SHRM-012717 Brett Bartlett quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/bartlett-quoted-SHRM-012717 Fri, 27 Jan 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in &quot;Justice Department Obtains Pause in Overtime Case Litigation,&quot; a January 27 story by <em>SHRM</em> on the news that business groups filed a brief in support of the order blocking the overtime rule. Bartlett said that these rules&#39; demise should not yet be cause for exaggeration.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/reply-brief-extension-overtime-case.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-law360-012617 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-012617 Thu, 26 Jan 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Lipnic May Nudge EEOC Toward Less Burdensome Policies,&quot; a January 26 story from <em>Law360 </em>on how Victoria Lipnic, who was appointed the U.S. Equal Employment Opportunity Commission&#39;s acting chairwoman, could slide the agency toward policies that better balance its anti-discrimination goals with more employer-friendly policies. Maatman said that Lipnic has a passion for law enforcement and doing the right thing &mdash; fulfilling the mission of the EEOC.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-profiled-bloomberg-bna-012617 Seyfarth’s annual <i>Workplace Class Action Report</i> was profiled in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-profiled-bloomberg-bna-012617 Thu, 26 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was profiled in &quot;Class Action Settlement Value Falls in 2016, Law Firm Says,&quot; a January 26 story by <em>Bloomberg BNA</em>. Authored by Gerald Maatman, this year&rsquo;s report said that the value of employment-related class action settlements fell sharply in 2016, with the top 10 settlements across five core subject-matter areas totaling $1.75 billion.</p> <p> <a href="https://www.bna.com/class-action-settlement-n73014450334/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/weiss-quoted-employee-benefit-news-012617 Philippe Weiss quoted by <i>Employee Benefit News</i> http://www.seyfarth.com:80//news/weiss-quoted-employee-benefit-news-012617 Thu, 26 Jan 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;10 things employers want from a Trump administration,&quot; a January 26 <em>Employee Benefit News</em> story regarding SSAW&rsquo;s new survey. Weiss said that employees were hopeful that promises of infrastructure spending and better trade deals would lead to more job security and work opportunities, at least in the short term.</p> <p> <a href="http://www.benefitnews.com/slideshow/10-things-employers-want-from-a-trump-administration#slide-11">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/EL012617 Announcing Seyfarth’s 2017 Workplace Class Action Litigation Report and Webinar http://www.seyfarth.com:80//publications/EL012617 Thu, 26 Jan 2017 00:00:00 -0400 <p> Across all varieties of workplace litigation, class action dynamics increasingly have been shaped and influenced by recent rulings in the U.S. Supreme Court. This past year the Supreme Court issued several key decisions on complex employment litigation issues and accepted more cases for review that are posed for rulings this coming year. Some decisions may be viewed as hostile to the expansive use of Rule 23, while others are hospitable and strengthen the availability of class actions against employers. &nbsp; In our workplace class action webinar, highlights from the Report will outline a number of key trends for employers in 2017, including:</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/announcing-seyfarths-2017-workplace-class-action-litigation-report-and-webinar/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=d95e451cfa-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-d95e451cfa-71256185">click here</a></p> http://www.seyfarth.com:80//publications/CP012617 There’s An App For That: Considerations in Employee GPS Monitoring http://www.seyfarth.com:80//publications/CP012617 Thu, 26 Jan 2017 00:00:00 -0400 <div> Employers now have available the technology that concerned parents of wayward teenagers have often wished for. Thanks to technological advances, one can now monitor another&rsquo;s movements in ways that could only be imagined a couple of decades ago.</div> <div> &nbsp;</div> <div> The benefits of tracking employee activity through GPS (Global Positioning Systems) include: (i) verifying routes and locations for mobile employees, particularly in the transportation or delivery industry, (ii) ensuring that employees are not violating traffic laws, (iii) monitoring employee overtime, (iv) verifying that employee time records are accurate, (v) locating company-owned stolen vehicles, and (vi) verifying that employees are not misusing company vehicles by, for example, driving to inappropriate locations or at inappropriate times.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/01/26/theres-an-app-for-that-considerations-in-employee-gps-monitoring/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=d44d926acc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-d44d926acc-71410869">click here</a></div> http://www.seyfarth.com:80//publications/CDL012617 The White House Report on Data Privacy Identifies “Areas for Further Attention” http://www.seyfarth.com:80//publications/CDL012617 Wed, 25 Jan 2017 00:00:00 -0400 <p> In his last week in the Office, President Obama issued a report on data privacy and cybersecurity, &ldquo;Privacy in Our Digital Lives: Protecting Individuals and Promoting Innovation&rdquo; (January 2017). The report serves as a high-level overview on how people&rsquo;s interaction with technology has changed in the last several years and what the government has done to protect individual privacy while advancing economy and national security. The report also highlighted the path forward. Many of the initiatives currently in the works or yet to come will require strong cooperation between the government and the private sector.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/white-house-report-data-privacy-identifies-areas-attention/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=45feb66798-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-45feb66798-72857025">click here</a></p> http://www.seyfarth.com:80//publications/WC012517 13th Annual Workplace Class Action Report Webinar: Looking Back At Key Developments Of 2016 And What Lies Ahead In 2017 http://www.seyfarth.com:80//publications/WC012517 Wed, 25 Jan 2017 00:00:00 -0400 <p> Back by popular demand, our Annual Workplace Class Action Litigation Report Webinar is on Tuesday, February 21, 2017. Click here to register and attend. It&rsquo;s free!</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/13th-annual-workplace-class-action-report-webinar-looking-back-at-key-developments-of-2016-and-what-lies-ahead-in-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=7312b3e631-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-7312b3e631-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/ERISA012517 ERISA Class Action Waivers and Mandatory Arbitration–Will The Supreme Court Start A Trend? http://www.seyfarth.com:80//publications/ERISA012517 Wed, 25 Jan 2017 00:00:00 -0400 <p> On January 13, 2017, the United States Supreme Court agreed to decide whether employment agreements mandating individual arbitration of employment disputes, and prohibiting class actions, are enforceable under the Federal Arbitration Act. The issue presented in the three cases consolidated for review, as stated in NLRB v. Murphy Oil USA, Inc., No. 16-307, is:</p> <p> To read the full blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/01/25/erisa-class-action-waivers-and-mandatory-arbitration-will-the-supreme-court-start-a-trend/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=179e8c3248-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-179e8c3248-71408929">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM012517-Antitrust Update On Annual Adjustment To HSR Reporting Threshold And Recent Enforcement Actions Against Investors http://www.seyfarth.com:80//publications/OMM012517-Antitrust Wed, 25 Jan 2017 00:00:00 -0400 <div> The Federal Trade Commission (FTC) recently <a href="https://www.ftc.gov/news-events/press-releases/2017/01/ftc-announces-annual-update-size-transaction-thresholds-premerger">announced </a>that the 2017 size-of-transaction threshold for reporting proposed mergers and acquisitions under Section 7A of the Clayton Act, as added by the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (15 U.S.C. &sect; 18a), will increase from $78.2 million to $80.8 million. The FTC adjusts the threshold annually, based on changes in gross national product. The new threshold will become effective 30 days after its publication in the Federal Register.</div> <div> &nbsp;</div> <div> The FTC and Department of Justice (DOJ) continue to seek significant civil penalties from even relatively small investors who fail to report transactions as required by the HSR Act. In <em>United States v. Okumus</em> (D.D.C. No. 17-cv-00104), the founder of a hedge fund agreed to pay $180,000 to settle charges that he failed to report the purchase of certain voting securities in an internet services company. Although the agencies acknowledged that the failure to file was &ldquo;inadvertent,&rdquo; it was the investor&rsquo;s second violation of the HSR Act in two years. In <em>United States v. Rales</em> (D.D.C. No. 17-cv-00103), the agencies agreed to accept a fine of $720,000 to settle claims that an investor and his wife failed to report their acquisitions of voting securities in two industrial companies. Although these violations also appeared to be unintentional, and the investor later made corrective filings, he had previously failed to file required notification for another deal and had paid an earlier civil penalty.</div> <div> &nbsp;</div> <div> These enforcement actions follow a record $11 million fine paid by ValueAct in July 2016. ValueAct had acquired through two different funds more than $2.5 billion in Halliburton and Baker Hughes voting stock while the two companies&rsquo; proposed $35 billion merger was under review by the DOJ. ValueAct argued that it was entitled to rely on the &ldquo;investment-only&rdquo; exemption from the HSR Act&rsquo;s reporting requirements, but the DOJ countered that the fund was not simply a passive investor, pointing to, among other things, public statements by the fund on its website and in SEC filings about its activist strategies. The case reinforced the very narrow scope of the &ldquo;investment-only&rdquo; exemption, and the potentially large exposure for failure to comply. ValueAct chose to settle the enforcement action against it on the eve of trial, citing the 150% increase in penalties for HSR violations (from $16,000 for each day a person is in violation, to $40,000 per day) effective August 1, 2016.</div> <div> &nbsp;</div> <div> These recent enforcement actions serve as cautionary tales for investors: when in doubt as to whether a transaction is reportable under the provisions of the HSR Act, consult with antitrust counsel to be sure one way or the other.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM012517-LIT Delaware Chancery Court Throws Out Claims Over $10 Million Severance Payment to CEO http://www.seyfarth.com:80//publications/OMM012517-LIT Wed, 25 Jan 2017 00:00:00 -0400 <div> <strong>Seyfarth Synopsis:</strong> A Delaware Chancery Court judge last week dismissed a derivative complaint seeking to recover a $10 million severance payment made to a corporation&rsquo;s former CEO because he found that plaintiff shareholder failed to adequately plead the demand was wrongfully refused. The opinion reaffirms the high bar plaintiffs face under Delaware law to successfully allege a board acted negligently or in bad faith when it refuses a demand.</div> <div> &nbsp;</div> <div> <strong>Background</strong></div> <div> &nbsp;</div> <div> Plaintiff shareholder of Mattel, Inc. (&ldquo;Mattel&rdquo; or the &ldquo;Company&rdquo;) sent a demand letter to Mattel&rsquo;s board of directors in April 2015, which among other things requested an independent internal investigation be conducted after he learned that the Company&rsquo;s former CEO was paid $10 million under a severance plan and would be paid $125,000 per month for the next 12 months pursuant to a consulting agreement with the Company. In September 2015, the board&rsquo;s counsel sent plaintiff a letter unanimously rejecting the demand because it found no evidence to support a claimed breach of fiduciary duties. Plaintiff shortly thereafter requested the documents reviewed in Mattel&rsquo;s internal investigation or a list of such documents, a list of the individuals interviewed, any report the board had produced, and any written summaries of the interviews. The board did not provide the requested documents but stated that the board&rsquo;s counsel had interviewed 24 people and reviewed 12,400 documents. In December 2015, plaintiff filed a suit against director defendants, the former CEO and the CFO alleging a breach of fiduciary duty against all defendants, an unjust enrichment claim against the former CEO and a claim for waste against the director defendants. Vice Chancellor Tamika Montgomery-Reeves in dismissing the complaint ruled that the plaintiff had not shown the board acted negligently or in bad faith in refusing the demand.</div> <div> &nbsp;</div> <div> <strong>Takeaways</strong></div> <div> &nbsp;</div> <div> 1. <u>Failing to Disclose a Written Report of an Investigation or the Identities of the Witnesses Interviewed May Not Raise a&nbsp;</u><u>Reasonable Inference of Gross Negligence</u>. Plaintiff argued that the board conducted a grossly negligent investigation because it did not provide plaintiff with the written report of the investigation or the identities of the witnesses interviewed. In rejecting this argument, the Court of Chancery relied on longstanding Delaware precedent stating that &ldquo;[w]hile a board of directors has a duty to act on an informed basis in responding to a demand . . . there is obviously no prescribed procedure that a board must follow.&rdquo;<sup>1</sup> The Court found the Plaintiff had not pled sufficient facts to reasonably infer gross negligence given the amount of effort that went into the board&rsquo;s investigation and plaintiff&rsquo;s affirmative decision not to make a Section 220 demand for the report.</div> <div> &nbsp;</div> <div> 2. <u>Failing to Form a Special Committee May Not Raise a Reasonable Inference of Gross Negligence</u>. Plaintiff further argued that the board&rsquo;s investigation was flawed because the board did not form a special committee. The Court of Chancery found plaintiff had not pled any facts supporting this claim, including any evidence showing that the board became interested or beholden to the former CEO or acted without independence. Importantly, the Court noted that by making a demand on the board the plaintiff had already conceded that the board was independent at the time of the demand.</div> <div> &nbsp;</div> <div> 3. <u>Discrepancies in Disclosures Regarding the CEO&rsquo;s Departure May Not Support a Finding of Bad Faith</u>. The plaintiff alleged that disclosures connected with the CEO&rsquo;s departure were inconsistent. Mattel&rsquo;s initial press release stated that the former CEO &ldquo;resigned,&rdquo; while its proxy statement stated that he was &ldquo;terminated.&rdquo; Plaintiff argued that the disclosures could not both be true and correct. The Court of Chancery in rejecting plaintiff&rsquo;s bad faith allegation noted that plaintiff was inappropriately focusing on the merits of its underlying claim and had not cast a reasonable doubt as to whether the board refused the demand in good faith. Here, plaintiff had not adequately pled that the board&rsquo;s determination that the &ldquo;resignation&rdquo; qualified as a termination without cause was inexplicable. The Court additionally noted the board had provided other reasons why it refused the demand in its refusal letter, including the high cost of litigation and the fact that the litigation would be an unnecessary distraction at a time when senior management was attempting to turn the Company around.</div> <div> &nbsp;</div> <div> For a full copy of the opinion, click <a href="https://www.courtalert.com/chancerypdf/601_20170119120111816VCMR.pdf">here</a>.</div> <div> ____________________________</div> <div> <span style="font-size:9px;">1 <em>Levine v. Smith</em>, 591 A.2d 194, 214 (Del. 1991), <em>overruled on other grounds by Brehm v. Eisner</em>, 746 A.2d 244 (Del. 2000).</span></div> http://www.seyfarth.com:80//publications/TS012517 Texas Court of Appeals Rules That Mere Suspicions of Trade Secret Misappropriation Are Insufficient to Trigger the Discovery Rule http://www.seyfarth.com:80//publications/TS012517 Wed, 25 Jan 2017 00:00:00 -0400 <p> Applying new Texas Supreme Court precedent, a Texas Court of Appeals recently held that a six-year-old cease-and-desist letter alleging trade-secret misappropriation did not constitute proof of knowledge for purposes of the discovery rule. By allowing for the accrual date of this claim to be deferred, the court appears to have made it easier for trade-secret plaintiffs to overcome the statute-of-limitations defense in the future.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/01/articles/trade-secrets/texas-court-of-appeals-rules-that-mere-suspicions-of-trade-secret-misappropriation-are-insufficient-to-trigger-the-discovery-rule/">click here</a></p> http://www.seyfarth.com:80//publications/WC012517a 6 Key Trends in Workplace Class Action Litigation for 2016: #2 Class Action Settlements http://www.seyfarth.com:80//publications/WC012517a Wed, 25 Jan 2017 00:00:00 -0400 <p> As profiled in our recent publication of the 13th &nbsp;Annual Workplace Class Action Report, 2016 has been an interesting year for employment-related workplace class action settlements. After reaching all-time highs in 2014 and 2015, the monetary value of aggregate top-ten employment class action settlements declined significantly.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/6-key-trends-in-workplace-class-action-litigation-for-2016-2-class-action-settlements/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=461a7efbab-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-461a7efbab-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/TS012517a Will The Massachusetts Legislature Finally Be Able To Keep Its New Year’s Resolution to Pass Non-Compete Reform? http://www.seyfarth.com:80//publications/TS012517a Wed, 25 Jan 2017 00:00:00 -0400 <p> Last Friday, on January 20, 2017, the Massachusetts Legislature began its annual tradition of attempting to promulgate non-compete and trade secret reform in the Commonwealth. A new bill has been filed by the same legislators who began this process back in 2009, Senator William Brownsberger and Representative Lori Ehrlich, which brings many of the past proposals to the table with some new additions as well. As we reported in July and November, the House and the Senate were unable to bridge their differences and agree on a compromise bill in 2016.</p> <p> To read the full blog post, <a href="http://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/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=bae93f7461-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-bae93f7461-71256389">click here</a>.</p> http://www.seyfarth.com:80//news/devata-quoted-SHRM-012517 Pam Devata quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/devata-quoted-SHRM-012517 Wed, 25 Jan 2017 00:00:00 -0400 <p> Pam Devata was quoted in &quot;Know Before You Hire: 2017 Employment Screening Trends,&quot; a January 25 story from <em>SHRM</em> on how human resource professionals conducting pre-employment background checks in 2017 will have to adapt to the growth of the ban-the-box movement and the gig workforce. Devata said that gig workers often sign up to perform services using mobile applications which can present challenges in providing &#39;stand-alone&#39; disclosures under the FCRA and privacy/data security issues.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/2017-employment-screening-trends.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/weiss-quoted-employment-law-today-012517 Philippe Weiss quoted by <i>Employment Law Today</i> http://www.seyfarth.com:80//news/weiss-quoted-employment-law-today-012517 Wed, 25 Jan 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;SURVEYS&mdash;Seyfarth polls managers, employees, on impact of Trump Administration on their jobs,&quot; an <em>Employment Law Today</em> story on January 25 regarding SSAW&rsquo;s new survey. Weiss said that immigration limits were cited by 20% of those polled as very likely to impact jobs and workplaces, but both in good and in not-so-good ways, reflecting an approximately 50/50 split, again along manager vs. employee lines.</p> http://www.seyfarth.com:80//news/boutros-featured-bloomberg-big-law-012417 Andrew Boutros featured in <i>Bloomberg Big Law</i> Q&A http://www.seyfarth.com:80//news/boutros-featured-bloomberg-big-law-012417 Tue, 24 Jan 2017 00:00:00 -0400 <p> Andrew Boutros was featured in &quot;Chicago Lawyer on Campus Justice and Sexual Misconduct,&quot; a January 24 Q&amp;A from <em>Bloomberg Big Law</em>. Boutros, co-chair of the firm&rsquo;s white collar, internal investigations and False Claims Act practice, was recently appointed to head up the American Bar Association&rsquo;s task force to study how colleges treat students involved in sexual assault accusations.</p> <p> <a href="https://bol.bna.com/chicago-lawyer-on-campus-justice-and-sexual-misconduct/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ADA012417 Innovative Salad Restaurant Agrees to Make Website and Mobile App Accessible http://www.seyfarth.com:80//publications/ADA012417 Tue, 24 Jan 2017 00:00:00 -0400 <p> Being named one of the most innovative companies of 2016 doesn&rsquo;t make one immune from a website and mobile app accessibility lawsuit. &nbsp;Capping 2016&rsquo;s banner accessibility lawsuit count, including record website accessibility lawsuit numbers, on which we reported yesterday, was an end-of-the-year settlement between innovative local-sourcing salad restaurant Sweetgreen, Inc. and two blind individuals, on behalf of other similarly-situated individuals.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/innovative-salad-restaurant-agrees-to-make-website-and-mobile-app-accessible/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=2f3632d61f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-2f3632d61f-71256157">click here</a></p> http://www.seyfarth.com:80//publications/WC012417 What Employers Can Divine From The Largest Workplace Class Action Settlements Of 2016 http://www.seyfarth.com:80//publications/WC012417 Tue, 24 Jan 2017 00:00:00 -0400 <p> The monetary value of the top employment-related class action settlements declined significantly in 2016 after they reached all-time highs in 2014 and 2015. The plaintiffs&rsquo; employment class action bar and governmental enforcement litigators successfully translated their case filings into large class-wide settlements, but they did so at lower values than in the two previous years. The top ten settlements in various employment-related categories totaled $1.75 billion in 2016, which declined from $2.48 billion in 2015 and $1.87 billion in 2014. Whether this is the start of a trend or a short-term aberration remains to be seen as 2017 unfolds.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/what-employers-can-devine-from-the-largest-workplace-class-action-settlements-of-2016/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=6566b7f06a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-6566b7f06a-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/TS012417 Seyfarth Shaw Attorneys Contribute to ABA’s Annual Trade Secret Law Report http://www.seyfarth.com:80//publications/TS012417 Tue, 24 Jan 2017 00:00:00 -0400 <p> Seyfarth attorneys Robert Milligan, Joshua Salinas, Amy Abeloff, and Michael Cross contributed to this year&rsquo;s ABA Section of Intellectual Property Law, Trade Secrets and Interferences with Contracts Committee Annual Trade Secret Law Report.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/01/articles/trade-secrets/seyfarth-shaw-attorneys-contribute-to-abas-annual-trade-secret-law-report/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=fd8ce138ff-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-fd8ce138ff-71256389">click here</a>.</p> http://www.seyfarth.com:80//publications/EL01242017 One Healthcare Impact of President Trump’s Executive Order – Replacement Plans Emerging http://www.seyfarth.com:80//publications/EL01242017 Tue, 24 Jan 2017 00:00:00 -0400 <div> The Executive Order directs regulatory agencies to &ldquo;exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.&rdquo;</div> <div> &nbsp;</div> <div> The Order&rsquo;s broad directive could be viewed in many ways as an extension of the President&rsquo;s campaign promises to minimize the burden of ACA regulations pending the law&rsquo;s ultimate repeal.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/one-healthcare-impact-of-president-trumps-executive-order-replacement-plans-emerging/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=9c6f6d4305-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-9c6f6d4305-71256185">click here</a></div> http://www.seyfarth.com:80//publications/OMM012417-INTL Breaking News — Supreme Court Confirms that the UK Parliament Must Vote to Trigger Brexit http://www.seyfarth.com:80//publications/OMM012417-INTL Tue, 24 Jan 2017 00:00:00 -0400 <div> The Supreme Court, the UK&rsquo;s highest court, has today handed down its judgment that the outcome of the Brexit referendum does <u>not</u> give the government the unilateral right to trigger the process for the UK to leave the European Union. &nbsp;The Supreme Court also decided that the other nations that make up the UK, including Scotland, are <u>not</u> entitled to a separate vote on whether the UK leaves.</div> <div> &nbsp;</div> <div> The UK Parliament must now vote in favour of Brexit in order for it to happen. &nbsp;</div> <div> &nbsp;</div> <div> This is a setback to the UK government, led by Prime Minister Theresa May, who had asserted that the outcome of the referendum vote had already given the government a right to proceed without Parliamentary approval, although, in anticipation of the decision, the Prime Minister had already confirmed that Parliament will have a vote on her government&rsquo;s proposed new deal with Europe, once that is finalised. &nbsp;The government have set a target of triggering Brexit by 31 March 2017. &nbsp;The main opposition party in the UK Parliament, the Labour Party, have already stated that they will support the &lsquo;vote to leave&rsquo; so the target date is still likely to be met.</div> <div> &nbsp;</div> <div> However, as the matter must be debated in Parliament before it is voted on, this debate will again highlight the divisions across the political, regional, age (and social) spectrum in respect of Brexit, particularly since the Scottish government and the UK&rsquo;s third largest party, the Liberal Democrats, have stated that they will vote against leaving or table amendments to the proposed terms on which the UK government can trigger Brexit. &nbsp;</div> <div> &nbsp;</div> <div> From a commercial perspective, the Supreme Court&rsquo;s judgment is a positive outcome because it has clarified much of the uncertainty as to how the Brexit process will be managed. &nbsp;Other countries, including the United States, are lining up to do free trade deals with the UK, so confidence amongst the commercial sector remains high.</div> http://www.seyfarth.com:80//publications/PTAB012417 Remote Software Application Survives Alice Challenge http://www.seyfarth.com:80//publications/PTAB012417 Tue, 24 Jan 2017 00:00:00 -0400 <div> Inventions directed to &ldquo;pure software&rdquo; have arguably had the most difficult time surviving <em>Alice</em> challenges. Software is often characterized as an &ldquo;abstract idea&rdquo; without more, and the inventive step requirement in <em>Alice</em> seems difficult to prove absent a significant technological advancement. The Northern District of Georgia recently rejected its special master in favor of allowing a network-based software patent survive a patentable subject matter challenge.</div> <div> &nbsp;</div> <div> The case of <em>Tridia Corp. v. Sauce Labs, Inc.</em>, (Case No. 1:15-cv-2284, N.D. Georgia Sept. 28, 2016) analyzed a patent directed to &ldquo;remote execution of computer programs over a network.&rdquo; The invention was specifically directed to a problem found in demo programs where a purchaser would like to first sample a computer program before purchasing it. Previously, a user must download the demo program, install it, and then sample the program. The patent at issue allowed the user to remotely execute the program to sample it, removing several steps that may otherwise cause the purchaser&rsquo;s interest in the program to wane, and therefore cause the purchaser not to buy the program.</div> <div> &nbsp;</div> <div> For more information on this blog, click the link below:&nbsp;</div> http://www.seyfarth.com:80//publications/Sherman-CorporateLiveWire-2017 Andrew Sherman authored an article in the <i>CorporateLiveWire</i> Intellectual Property 2017 Expert Guide http://www.seyfarth.com:80//publications/Sherman-CorporateLiveWire-2017 Tue, 24 Jan 2017 00:00:00 -0400 <p> Andrew J. Sherman authored &quot;The Crisis of Disengagement and Its Impact on Innovation&quot; on January 24 in the&nbsp;<em>CorporateLiveWire</em>&nbsp;Intellectual Property 2017 Expert Guide. His article discusses how the crisis of disengagement is having a direct impact on corporate venturing, innovation, and the harvesting of intangible assets.</p> http://www.seyfarth.com:80//publications/SL012317 While Trump Administration May Ease Regulatory Burden on Home Care Industry at the National Level, Potential Grows for Accelerated State and Local Activity http://www.seyfarth.com:80//publications/SL012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> For decades, home care agencies classified their care workers as exempt from federal minimum wage and/or overtime requirements under the companionship and live-in domestic service worker exemptions to the Fair Labor Standards Act. Under the Obama administration, the U.S. Department of Labor&rsquo;s Wage and Hour Division scrutinized the home care industry and, in October 2013, issued its Home Care Final Rule. &nbsp;That rule, intended to go into effect on January 1, 2015, provides that workers employed by third-party agencies no longer qualify for either exemption. &nbsp;The Wage and Hour Division began enforcing the new regulations in late 2015, after an unsuccessful challenge to the rule in federal court, and has been in the process of reshaping the industry.</p> <p> To read the entire blog post, <a href="http://www.seniorlivinglawblog.com/2017/01/while-trump-administration-may-ease-regulatory-burden-on-home-care-industry-at-the-national-level-potential-grows-for-accelerated-state-and-local-activity/">click here</a></p> http://www.seyfarth.com:80//publications/ADA012317 ADA Title III Lawsuits Increase by 37 Percent in 2016 http://www.seyfarth.com:80//publications/ADA012317 Mon, 23 Jan 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: &nbsp;</strong>The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs&rsquo; lawyers, and website accessibility claims.</em></div> <div> &nbsp;</div> <div> Our 2016 lawsuit count is complete, and the results no less remarkable than prior years. &nbsp;In 2016, 6,601 ADA Title III lawsuits were filed in federal court &mdash; 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we&rsquo;ve been tracking since 2013. &nbsp;In 2015, there were 8 percent more Title III lawsuits filed than in 2014.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/ada-title-iii-lawsuits-increase-by-37-percent-in-2016/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=5a84cc0cc4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-5a84cc0cc4-71256157">click here</a></div> http://www.seyfarth.com:80//publications/HCRMA012317 Issue 105: The Impact of President Trump’s Executive Order; Replacement Plans Emerging http://www.seyfarth.com:80//publications/HCRMA012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> <em style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">This is the one hundred and fifth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(Click&nbsp;<a class="cms-content-links" href="http://www.seyfarth.com/Healthcare-Reform-Team" style="text-decoration: none; color: rgb(0, 168, 225); cursor: pointer;">here&nbsp;</a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></p> <p> <strong>Summary</strong></p> <p> Within hours of his inauguration, President Trump issued an Executive Order labeled &ldquo;Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal&rdquo;.&nbsp; As described in greater detail below, the immediate impact of this executive order is uncertain and affected parties would be best advised to await further guidance before reacting to the order. &nbsp;</p> <p> <strong>Executive Order and Impact</strong></p> <p> The Order&rsquo;s broad directive could be viewed in many ways as an extension of the President&rsquo;s campaign promises to minimize the burden of ACA regulations pending the law&rsquo;s ultimate repeal.&nbsp;</p> <p> In some respects, the Order sows greater confusion than it provides clarification.&nbsp; Notably, unanswered questions include:</p> <ul> <li> Does this directive imply a complete or partial enforcement hiatus?</li> <li> Was the absence of reference to employers/businesses intentional or inadvertent?</li> <li> How quickly can the relevant agencies (notably, HHS, IRS and DOL) react to this directive with more meaningful guidance, considering many of the incoming heads of those agencies will not be confirmed for several weeks?</li> <li> Does the Order provide any relief to employers who are preparing Form 1094/1095-C tax filing forms due in roughly one month?</li> </ul> <table border="1" cellpadding="1" cellspacing="1" style="width:550px;"> <tbody> <tr> <td> <p> The <a href="https://www.whitehouse.gov/the-press-office/2017/01/2/executive-order-minimizing-economic-burden-patient-protection-and">Executive Order</a> directs regulatory agencies to &ldquo;exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.&rdquo;</p> </td> </tr> </tbody> </table> <p> <br /> In the absence of more explicit agency guidance or Congressional action, the Order, in and of itself, does not appear to offer any specific relief from penalties to employers, individuals or other affected parties.&nbsp; So employers who decide to disregard existing agency guidance proceed at their own risk based on certain presumptions.&nbsp;&nbsp;</p> <p> With regard to the most pressing issue for many employers -- Form 1094/1095-C filing -- we recommend that until official guidance from the IRS indicates otherwise, employers should assume that the current filing deadline continues to apply.</p> <p> The Order may pave the way for future agency actions, such as non-enforcement policies, filing extensions, hardship waivers, etc.&nbsp; It is difficult to anticipate precisely what form such actions may take, but agencies are generally bound by the terms of the governing statute as well as the final regulations published through the notice-and-comment rulemaking process.&nbsp; That said, there is precedent for use of discretion to announce a delay in enforcement (e.g., the unilateral delay of enforcement of the &ldquo;employer mandate&rdquo; from 2014 to 2015).</p> <p> <strong>Patient Freedom Act of 2017</strong></p> <p> Earlier today, Senators Susan Collins (R-Maine) and Bill Cassidy (R-Louisiana) introduced one of what will likely be many &ldquo;replacement&rdquo; options for the Affordable Care Act.&nbsp; Sens. Collins and Cassidy were undoubtedly attempting to quell some of the concerns expressed both inside and outside of the Republican party that repealing (in whole or in part) the ACA without a replacement could have practical and political implications.&nbsp;</p> <p> The details of the Patient Freedom Act are not yet immediately available, but the press briefing indicated states would be provided greater choice in implementing healthcare reform, generally through allowing states to choose among the following alternatives:</p> <ul> <li> Retain the ACA</li> <li> Create a new alternative</li> <li> Adopt the Patient Freedom Act&rsquo;s plan (which generally involves greater use of health savings accounts and automatic enrollment into a health policy with opt-out rights).&nbsp;</li> </ul> <p> Seyfarth Shaw will continue to monitor developments and provide updates as more information becomes available. &nbsp;</p> http://www.seyfarth.com:80//publications/TS012317 Upcoming Webinar! 2016 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law http://www.seyfarth.com:80//publications/TS012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> On Thursday, February 2, at 12:00 p.m. Central, Seyfarth attorneys Robert Milligan, Michael Wexler, and Daniel Joshua Salinas will present 2016 National Year In Review: What You Need to Know About the Recent Cases/Developments in Trade Secrets, Non-Compete, and Computer Fraud Law.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/01/articles/trade-secrets/upcoming-webinar-2016-national-year-in-review-what-you-need-to-know-about-the-recent-casesdevelopments-in-trade-secrets-non-compete-and-computer-fraud-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d923594e49-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d923594e49-71256389">click here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-treasury-and-risk-012317 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Treasury & Risk</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-treasury-and-risk-012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;Top 5 ERISA settlements in 2016,&quot; a January 23 story by <em>Treasury &amp; Risk</em>. Authored by Gerald Maatman, this year&rsquo;s report said that, in 2016, the top 10 class-action settlements in lawsuits brought under the Employee Retirement Income Security Act totaled $807.4 million.</p> <p> <a href="http://www.treasuryandrisk.com/2017/01/20/top-5-erisa-settlements-in-2016?t=careers&amp;slreturn=1485192148">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-featured-hr-dive Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>HR Dive</i> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-featured-hr-dive Mon, 23 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;Expert: Wage and hour class action suits dipped slightly in 2016, but expect 2017 uptick,&quot; a January 23 story by <em>HR Dive</em>. Authored by Gerald Maatman, this year&rsquo;s report said that class action suits numbered 8,304 in 2016, down from 8,954 in 2015. Maatman said that courts grant conditional certification to wage and hour class action suits filed under the Fair Labor Standards Act (FLSA) 75% of the time.</p> <p> <a href="http://www.hrdive.com/news/expert-wage-and-hour-class-action-suits-dipped-slightly-in-2016-but-expec/434479/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-featured-hr-daily-advisor-012317 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>HR Daily Advisor</i> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-featured-hr-daily-advisor-012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;New Report Examines Trends in Wage and Hour Class Action Suits, Settlements,&quot; a January 23 story by <em>HR Daily Advisor</em>. Authored by Gerald Maatman, this year&rsquo;s report analyzed 1,331 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes from 2016 and emerging litigation trends facing U.S. companies in 2017. Maatman said that the U.S. Supreme Court decided several cases in 2016 that favored workers bringing class actions, which in turn portend significant challenges for employers facing these exposures in 2017.</p> <p> <a href="http://hrdailyadvisor.blr.com/2017/01/23/new-report-shows-wage-hour-settlement-values-skyrocket/?source=S5249&amp;effort=1">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/bertoldi-quoted-bloomberg-012317 Candace Bertoldi quoted by <i>Bloomberg</i> http://www.seyfarth.com:80//news/bertoldi-quoted-bloomberg-012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> Candace Bertoldi was quoted in &quot;Uber Wants Court Stamp on Arbitration Win as Message to Drivers,&quot; a January 23 story from <em>Bloomberg</em> on how Uber Technologies Inc. is asking a California judge to confirm what it says is the first ruling by an arbitrator denying a driver&rsquo;s bid to be treated as an employee. Bertoldi said that Uber isn&rsquo;t required to seek confirmation of an arbitration award by a state judge, especially if there isn&rsquo;t a financial component.</p> <p> <a href="https://www.bloomberg.com/news/articles/2017-01-23/uber-wants-court-stamp-on-arbitration-win-as-message-to-drivers">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/gardner-quoted-australian-financial-review-012317 Chris Gardner quoted by <i>Australian Financial Review</i> http://www.seyfarth.com:80//news/gardner-quoted-australian-financial-review-012317 Mon, 23 Jan 2017 00:00:00 -0400 <p> Chris Gardner was quoted in &quot;Business calls for urgent action on IR after criticism of Fair Work Commission,&quot; a January 23 story from <em>Australian Financial Review</em> on business groups who say the government needs to urgently implement its response to the Productivity Commission&rsquo;s report into the workplace relations system after the scathing criticism of the Fair Work Commission by outgoing vice-president Graeme Watson. Gardner said that finding a replacement with Watson&rsquo;s qualities will be a challenge for the government.</p> <p> <a href="http://www.afr.com/news/policy/industrial-relations/business-calls-for-urgent-action-on-ir-after-criticism-of-fair-work-commission-20170123-gtwsud">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-2017-partner-promotions Seyfarth Promotes 18 as Partners http://www.seyfarth.com:80//news/seyfarth-2017-partner-promotions Mon, 23 Jan 2017 00:00:00 -0400 <div> CHICAGO (January 23, 2017) &mdash; Seyfarth Shaw LLP is pleased to announce today the promotion of 18 of the firm&rsquo;s lawyers to partners across nine offices and five practice departments, effective January 1, 2017.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;The firm is proud to elevate these outstanding lawyers to the partner level across our national platform,&rdquo; said Peter Miller, Seyfarth&rsquo;s chairman and managing partner. &ldquo;This year&rsquo;s class also exemplifies the firm&rsquo;s committed focus on providing a workplace conducive to increasing diversity at all levels.&rdquo;</div> <div> &nbsp;</div> <div> Notably, half of the 2017 class identify as female, ethnically diverse, or LGBT. Seyfarth&rsquo;s diversity efforts include an extensive network of national and local Diversity Action Teams which comprise attorneys and staff members from all offices.</div> <div> &nbsp;</div> <div> The following have been promoted to partner:</div> <div> &nbsp;</div> <div> <strong>Corporate</strong></div> <div> Cleve Glenn - Houston</div> <div> Colleen Gomos - Chicago</div> <div> &nbsp;</div> <div> <strong>Employee Benefits</strong></div> <div> Jennifer Neilsson - Chicago</div> <div> &nbsp;</div> <div> <strong>Labor &amp; Employment</strong></div> <div> Candace Bertoldi - Los Angeles</div> <div> Nicole Bolson Baarts - San Francisco</div> <div> Anthony Califano - Boston</div> <div> Justin Curley - San Francisco</div> <div> John Egan - New York</div> <div> Kate Mendez - Chicago</div> <div> Jamie Pollaci - Los Angeles</div> <div> Kevin Young - Atlanta</div> <div> &nbsp;</div> <div> <strong>Litigation</strong></div> <div> Marcus Mintz - Chicago</div> <div> Patrick Muffo - Chicago</div> <div> Jason Priebe - Chicago</div> <div> Jason Smith - Washington, D.C.</div> <div> &nbsp;</div> <div> <strong>Real Estate</strong></div> <div> Tim Farahnik - Los Angeles</div> <div> Tamaron Houston - Atlanta</div> <div> Theodore Woodward - Atlanta</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 850 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media. For more information, please visit <a href="http://www.seyfarth.com/">www.seyfarth.com</a>.</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-bloomberg-bna-012017 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-bloomberg-bna-012017 Fri, 20 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;Wage and Hour Class Action Boom Called Likely to Last,&quot; a January 20 story by <em>Bloomberg BNA</em>. Authored by Gerald Maatman, this year&rsquo;s report said that the number of wage and hour class lawsuits filed in federal court dipped slightly during 2016, but employers should expect a rebound in 2017. Maatman said that the long-term growth in class lawsuits against employers alleging violations of minimum wage, overtime and other wage and hour requirements isn&rsquo;t stopping anytime soon.</p> <p> <a href="https://www.bna.com/wage-hour-class-n73014450078/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-degroff-karasik-authored-article-law360-012017 Gerald Maatman, Christopher DeGroff and Alex Karasik authored an article in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-degroff-karasik-authored-article-law360-012017 Fri, 20 Jan 2017 00:00:00 -0400 <p> Gerald Maatman, Christopher DeGroff and Alex Karasik authored &quot;Clarifying EEOC&rsquo;s Obligation For Presuit Conciliation,&quot; an article in <em>Law360 </em>published January 20. The article discusses how employers have increasingly challenged instances where the EEOC attempts to use its investigations as fishing expeditions, or runs to the courtroom without first trying to conciliate claims. One example of this is the high-profile <em>EEOC v. Bass Pro Outdoor World LLC</em> race discrimination litigation.</p> <p> Recently, the U.S. District Court for Southern District of Texas denied the EEOC&rsquo;s motion for a ruling that would have allowed it to include claims in its lawsuit for individuals who had not yet applied to work for Bass Pro at the time conciliation took place. For employers confronted with EEOC litigation, this ruling is a positive signal that at least some courts may be unwilling to allow to the EEOC to add claimants with whom it never conciliated.</p> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-referenced-chicago-tribune-012017 Seyfarth’s annual <i>Workplace Class Action Report</i> was referenced in the <i>Chicago Tribune</i> http://www.seyfarth.com:80//news/seyfarth-annual-workplace-class-action-report-referenced-chicago-tribune-012017 Fri, 20 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was referenced in &quot;Workplace lawsuits could rise under Trump, but Supreme Court still a wild card,&quot; a January 20 story by the <em>Chicago Tribune</em>. Authored by Gerald Maatman, this year&rsquo;s report said that the value of the top 10 wage-and-hour class-action settlements surged to $695.5 million last year, from $436.6 million in 2015 and $215.3 million the year before. Maatman said that federal wage-and-hour lawsuit filings ticked down last year for the first time after rising steadily for 15 years, but that appears to be an aberration.</p> <p> <a href="http://www.chicagotribune.com/business/ct-wage-and-hour-lawsuits-arbitration-agreements-0122-biz-20170120-story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/EL012017 Third Circuit Plays the “Top Fifty” Hits, Allows ADEA Claim for Employees Fifty and Over http://www.seyfarth.com:80//publications/EL012017 Fri, 20 Jan 2017 00:00:00 -0400 <div> Last week, in<em> Karlo v. Pittsburgh Glass Works,</em> No. 15-3435, the Third Circuit extended protections under the Age Discrimination in Employment Act (ADEA) to include discrimination based on age, regardless of whether the employees alleged to have been favored were also over forty.</div> <div> &nbsp;</div> <div> The court&rsquo;s precedential opinion held that a &ldquo;subgroup&rdquo; of employees over fifty had a cognizable claim under ADEA because the statute prohibits disparate impact based on age, and not whether the plaintiffs and comparators were just over forty. The court looked to the language in the statute, which &ldquo;makes it unlawful for an employer to adversely affect an employee&rsquo;s status . . . because of such individual&rsquo;s age.&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/third-circuit-plays-the-top-fifty-hits-allows-adea-claim-for-employees-fifty-and-over/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b211c365f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b211c365f9-71256185">click here</a></div> http://www.seyfarth.com:80//publications/WC012017 6 Key Trends in Workplace Class Action Litigation for 2016: #1 The Supreme Court’s Rulings http://www.seyfarth.com:80//publications/WC012017 Fri, 20 Jan 2017 00:00:00 -0400 <p> As profiled in our recent publication of the 13th &nbsp;Annual Workplace Class Action Report, the U.S. Supreme Court&rsquo;s rulings have a profound impact on employers and the tools they may utilize to defend high-stakes litigation. Rulings by the Supreme Court in 2016 were no exception.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/6-key-trends-in-workplace-class-action-litigation-for-2016-1-the-supreme-courts-rulings/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=bd1c33f727-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-bd1c33f727-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/ES011917 OSHA Civil Penalties Going Up Again – Adopts 2017 Maximums http://www.seyfarth.com:80//publications/ES011917 Thu, 19 Jan 2017 00:00:00 -0400 <p> Seyfarth Synopsis: The DOL has published its 2017 OSHA civil penalties.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-enforcement/osha-civil-penalties-going-up-again-adopts-2017-maximums/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=f32a2ed9bd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-f32a2ed9bd-71407177">click here</a></p> http://www.seyfarth.com:80//publications/edward-fox-authored-article-daily-bankruptcy-news-011917 Edward Fox authored an article in <i>The Daily Bankruptcy News</i> http://www.seyfarth.com:80//publications/edward-fox-authored-article-daily-bankruptcy-news-011917 Thu, 19 Jan 2017 00:00:00 -0400 <p> Edward Fox authored &quot;Second Circuit Reverses Marblegate Decision&quot; on January 19 in <em>The Daily Bankruptcy News</em> on the 2-1 decision in <em>Marblegate Asset Management, LLC v. Education Management Finance Corp.</em>, where the United States Court of Appeals for the Second Circuit held that Section 316(b) of the Trust Indenture Act of 1939 (TIA) prohibits only non-consensual amendments to an indenture&rsquo;s core payment terms, reversing the decision of the United States District Court for the Southern District of New York, <em>Marblegate Asset Management, LLC v. Education Management Corp.</em>, which held that a series of transactions meant to restructure the debt of Education Management Corporation (&quot;EDMC&quot;) outside of bankruptcy over the objections of certain unsecured noteholders violated Section 316(b) of the TIA.</p> http://www.seyfarth.com:80//publications/OMM011917-LE National Airline Flies Past California Peculiarities http://www.seyfarth.com:80//publications/OMM011917-LE Thu, 19 Jan 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> A California federal judge has held that an out-of-state employee&rsquo;s limited presence in California is not enough on its own to require the employer to comply with California wage and hour laws. </em>Oman v. Delta Air Lines<em>. But the judge also opined that other factors&mdash;such as the employer&rsquo;s place of business, and the nature and duration of the employee&rsquo;s presence in California&mdash;could implicate California wage and hour laws in some other case.</em></div> <div> &nbsp;</div> <div> <strong>The Facts&nbsp;</strong></div> <div> &nbsp;</div> <div> Delta is an airline headquartered outside of California. On a monthly basis, its flight attendants bid on flight rotations departing from their respective base airports. Delta, like many airlines, does not separately pay flight attendants for each hour worked. Rather, it uses various formulas that account for such factors as anticipated flight time, actual delays, and contingencies. Delta applies the formula that yields the highest amount of pay. These wages are paid in the month following the flight attendant&rsquo;s performance, splitting the total amount due over two semi-monthly pay periods.</div> <div> &nbsp;</div> <div> Four flight attendants&mdash;three currently based out of California airports&mdash;filed a class action, claiming that whenever flight attendants fly in or out of California, the California Labor Code governs their work for that pay period. Following a court order granting partial summary judgment for Delta on the minimum-wage claim, Delta filed a pre-certification summary judgment motion on the remaining claims, which challenged the applicability of Section 226 (requiring itemized wage statements) and Section 204 (governing the timing of pay). Meanwhile, the flight attendants, invoking Section 204, cross-moved for summary adjudication of their claims for untimely wage payments.</div> <div> &nbsp;</div> <div> <strong>The District Court&rsquo;s Order</strong></div> <div> &nbsp;</div> <div> Judge William Orrick of the Northern District of California granted Delta&rsquo;s motion and denied the flight attendants&rsquo; motion, ruling that Sections 204 and 226 did not apply to their work. Judge Orrick rejected the flight attendants&rsquo; contention that even de minimis work within California automatically triggers its wage and hour protections. Judge Orrick endorsed the reasoning of fellow Northern District Judge William Alsup, who recently ruled that Section 226 does not apply to pilots who, though California residents, work primarily out of state.</div> <div> &nbsp;</div> <div> Judge Orrick, using a multi-factor analysis, reasoned that the flight attendants&rsquo; limited working time in California, coupled with the nature of their jobs (requiring them to be in federal airspace and in multiple jurisdictions within a single pay period and even a single day), weighed against applying Sections 204 and 226 to their work. In further support of that conclusion, Judge Orrick noted that Delta is headquartered outside of California and that the flight attendants had disavowed the relevancy of their California residency.</div> <div> &nbsp;</div> <div> Judge Orrick distinguished a recent order issued by yet another Northern District judge, Jon S. Tigar, who ruled that California wage and hour protections did apply to a class of flight attendants where the entire class consisted of California residents who sometimes worked consecutive days flying solely between California airports, and where the airline employer, headquartered in California, had &ldquo;deep ties&rdquo; to California.</div> <div> &nbsp;</div> <div> <strong>What <em>Oman</em> Means for Employers</strong></div> <div> &nbsp;</div> <div> Out-of-state employers with nonresident employees infrequently visiting California for work purposes might now breathe a little easier in the hope that California&rsquo;s wage and hour protections not apply to these employees. But <em>Oman</em> teaches that determining whether California employment law applies to fly-by employees is not subject to bright-line tests, but rather depends on various factors considered on a case-by-case basis. While federal courts have been the ones grappling with this issue thus far, it is the California Supreme Court that will have the last word.</div> http://www.seyfarth.com:80//news/maatman-q-and-a-workplace-class-action-litigation-report-published-westlaw-journal-employment-011817 Gerald Maatman’s Q&A regarding <i>Seyfarth’s Workplace Class Action Litigation Report</i> published in <i>Westlaw Journal Employment</i> http://www.seyfarth.com:80//news/maatman-q-and-a-workplace-class-action-litigation-report-published-westlaw-journal-employment-011817 Thu, 19 Jan 2017 00:00:00 -0400 <p> Gerald Maatman&rsquo;s Q&amp;A regarding <em>Seyfarth&rsquo;s Workplace Class Action Litigation Report</em> was published in the January 18 issue of <em>Westlaw Journal Employment</em>. According to Seyfarth&rsquo;s 13th annual edition of the <em>Workplace Class Action Litigation Report</em>, the number of employment-related class actions filed, and the value of the largest settlements, decreased in 2016 for the first time in more than a decade. The article is &quot;Q&amp;A: Seyfarth Shaw&#39;s Gerald Maatman on employment litigation wave &#39;cresting&#39; in 2016.&quot;</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-am-law-litigation-daily-011917 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Am Law Litigation Daily</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-am-law-litigation-daily-011917 Thu, 19 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;Crystal Ball Department: Law Firms Line Up to Offer 2017 Litigation Predictions,&quot; a January 19 story by <em>Am Law Litigation Daily</em>. Authored by Gerald Maatman, this year&rsquo;s report predicts continued growth in wage-and-hour litigation fueled by new overtime regulations, local minimum wage legislation, challenges to independent contractor status, and litigation seeking to expand joint employer concepts.</p> <p> <a href="http://www.litigationdaily.com/id=1202777094028/Crystal-Ball-Department-Law-Firms-Line-Up-to-Offer-2017-Litigation-Predictions">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-am-law-litigation-daily-011917 Seyfarth’s annual <i>Workplace Class Action Report</i> was referenced in <i>BenefitsPro</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-am-law-litigation-daily-011917 Thu, 19 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was referenced in &quot;Top 5 ERISA settlements in 2016,&quot; a January 19 story by <em>BenefitsPro</em>. Authored by Gerald Maatman, this year&rsquo;s report said that, in 2016, the top 10 class-action settlements in lawsuits brought under the Employee Retirement Income Security Act totaled $807.4 million.&nbsp;</p> <p> <a href="http://www.benefitspro.com/2017/01/19/top-5-erisa-settlements-in-2016?page_all=1&amp;slreturn=1484931075">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-boutros-chair-new-aba-task-force-college-due-process-rights-victim-protection Seyfarth’s Andrew S. Boutros to Chair New ABA Task Force on College Due Process Rights and Victim Protection http://www.seyfarth.com:80//news/seyfarth-boutros-chair-new-aba-task-force-college-due-process-rights-victim-protection Wed, 18 Jan 2017 00:00:00 -0400 <div> CHICAGO (January 18, 2017) - Seyfarth Shaw LLP partner Andrew S. Boutros, the firm&rsquo;s National Co-Chair of the White Collar, Internal Investigations, and False Claims Act Team, has been selected by the American Bar Association (ABA) Criminal Justice Section (CJS) to chair a national Task Force on College Due Process Rights and Victim Protection. Also joining the Task Force as a Liaison is Seyfarth Shaw attorney Bridget Maricich.</div> <div> &nbsp;</div> <div> With the unanimous approval of the Executive Committee, the CJS has formed the first-ever Task Force to study the due process rights of students accused of campus sexual violence as well as the protection of victims who have levied those allegations. The Task Force will be comprised of highly distinguished, leading higher education attorneys and administrators, academics, criminal defense attorneys, former government officials, and public policy makers. The Task Force&#39;s work will culminate in implementable recommendations aimed to guide America&rsquo;s more than 5,000 colleges and universities in how to effectuate fair procedures that balance the rights of the accused, the strong interests of the victims, and the interests of the campus community at large.</div> <div> &nbsp;</div> <div> &ldquo;Not since 1979, when Congress formed the Office of Civil Rights as part of the Education Organization Act, has such a distinguished group of thought leaders and practitioners been assembled to study the complex issues affecting the disciplinary process in the college setting&mdash;especially in cases alleging sexual misconduct,&rdquo; said Task Force Chair, Andrew S. Boutros. &ldquo;There is a real opportunity for the Task Force&rsquo;s work to have a transformative impact on the higher education disciplinary culture and I am honored to have been selected to lead these efforts.&rdquo;</div> <div> &nbsp;</div> <div> Founded in 1920, the Criminal Justice Section of the American Bar Association has nearly 17,000 members including prosecutors, private defense counsel, appellate and trial judges, law professors, correctional and law enforcement personnel, law students, public defenders, and other criminal justice professionals. With its diverse, multi-disciplinary membership, the Criminal Justice Section is uniquely situated to address the pressing issues facing today&#39;s criminal justice system. <a href="http://www.americanbar.org/groups/criminal_justice/about_us.html">You can read more here</a>.&nbsp;</div> <div> &nbsp;</div> <div> Seyfarth&rsquo;s White Collar, Internal Investigations, and False Claims Team represents colleges, universities, and other schools in matters involving allegations of Title IX violations, sexual assault on college campuses, and other allegations of student or school improprieties. In addition, the Team provides cutting-edge advice to clients (both companies and individuals) in all varieties of white collar matters, government enforcement defense, trials, internal investigations, and complex litigations, including matters involving fraud, embezzlement, the FCPA, insider trading, other securities violations, healthcare violations, customs fraud, trade secret theft, environmental crimes, and the False Claims Act, among others.&nbsp;</div> http://www.seyfarth.com:80//news/turnbull-quoted-iremit-011817 Justine Turnbull quoted by <i>iRemit</i> http://www.seyfarth.com:80//news/turnbull-quoted-iremit-011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Justine Turnbull was quoted in &quot;Why Australian Firms Are Infusing Wellness Programs to Beat Workplace Stress,&quot; a January 18 story from <em>iRemit </em>on the firm&rsquo;s embracing of the importance of wellness programs. Turnbull said that it is about engagement and caring about our people who are sometimes required to work above and beyond.</p> <p> <a href="https://iremit.com.au/why-australian-firms-are-infusing-wellness-programs-to-beat-workplace-stress/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/boutros-mentioned-aba-journal-011817 Andrew Boutros mentioned in the <i>ABA Journal</i> http://www.seyfarth.com:80//news/boutros-mentioned-aba-journal-011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Andrew Boutros was mentioned in &quot;New ABA task force will consider due process rights in college sexual-misconduct cases,&quot; a January 18 story from the <em>ABA Journal</em>. &nbsp;Boutros, co-chair of the firm&rsquo;s white collar, internal investigations and False Claims Act practice, will lead the new ABA Task Force on College Due Process Rights and Victim Protections.</p> <p> <a href="http://www.abajournal.com/news/article/new_aba_task_force_will_consider_due_process_rights_in_college_sexual_misco">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/bartlett-quoted-shrm-011817 Brett Bartlett quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/bartlett-quoted-shrm-011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in &quot;Overtime Rule May Still Partially Apply,&quot; a January 18 story by <em>SHRM</em> on how the court order may not pertain to highly compensated employee exemption. Bartlett said that rather than rely on the HCE exemption, for the time being a safer course for companies is to ensure that the employees&#39; primary duties satisfy the tests for the EAP exemptions and to pay each exempt employee at the current rule&#39;s salary level at a minimum.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/injunction-may-not-apply-to-hce-exemption.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-employee-benefit-adviser-011817 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Employee Benefit Adviser</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-employee-benefit-adviser-011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;6 key trends in workplace litigation,&quot; a January 18 story by <em>Employee Benefit Adviser</em>. Authored by Gerald Maatman, this year&rsquo;s report analyzed 1,331 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes that companies could face in 2017. Maatman said that the U.S. Supreme Court decided several cases in 2016 that favored workers bringing class actions, which in turn portend significant challenges for employers facing these exposures in 2017.</p> <p> <a href="http://www.employeebenefitadviser.com/news/6-key-trends-in-workplace-litigation">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CP011817 Nip/Tuck Leave: When Employees Take Leave for Elective Procedures http://www.seyfarth.com:80//publications/CP011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> California employers who administer employee leave laws navigate a complicated labyrinth. Employers must consider interactions among federal laws (ADA, FMLA, Title VII), state and local laws (CFRA, FEHA, PFL), and even their own internal employer policies. It gets even more complicated when employees would like to take medical leave for procedures that aren&rsquo;t medically necessary, but rather are elective. So what is an employer to do when an employee says they want to take two weeks off for that nose job or tummy tuck?</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/01/18/niptuck-leave-when-employees-take-leave-for-elective-procedures/">click here</a></p> http://www.seyfarth.com:80//publications/ES011817 OSHA Procedures for Retaliation Complaints Under the Affordable Care Act Await New Administration http://www.seyfarth.com:80//publications/ES011817 Wed, 18 Jan 2017 00:00:00 -0400 <div> <em>Seyfarth Synopsis: The Affordable Care Act faces an uncertain future under the Trump administration, which will affect whistleblower provisions enforced by OSHA.</em></div> <div> &nbsp;</div> <div> In October 2016, the Occupational Safety and Health Administration published a final rule that established procedures and time frames for handling whistleblower complaints under the Patient Protection and Affordable Care Act (ACA), also known as ObamaCare. 81<em> Fed. Reg</em>. 70607 (October 13, 2016).</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/whistleblower/osha-procedures-for-retaliation-complaints-under-the-affordable-care-act-await-new-administration/">click here</a></div> http://www.seyfarth.com:80//publications/CA011817-LIT Second Circuit Reverses Marblegate Decision http://www.seyfarth.com:80//publications/CA011817-LIT Wed, 18 Jan 2017 00:00:00 -0400 <div> <span style="font-size:14px;"><em><strong>Trust Indenture Act Section 316(b) Limited to Actual Amendments to An Indenture&rsquo;s Core Terms</strong></em></span></div> <div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong></em> On January 17, 2017, in a 2-1 decision in <em>Marblegate Asset Management, LLC v. Education Management Finance Corp.</em>, (15-2124) (the &ldquo;Decision&rdquo;), the United States Court of Appeals for the Second Circuit (the &ldquo;Second Circuit&rdquo;) held that &ldquo;Section 316(b) [of the Trust Indenture Act of 1939] prohibits only non-consensual amendments to an indenture&rsquo;s core payment terms,&rdquo; Decision at 4, reversing the decision of the United States District Court for the Southern District of New York (the &ldquo;District Court&rdquo;), <em>Marblegate Asset Management, LLC v. Education Management Corp.</em>, 111 F. Supp.3d 542 (S.D.N.Y. 2015), which held that a series of transactions meant to restructure the debt of Education Management Corporation (&ldquo;EDMC&rdquo;) outside of bankruptcy over the objections of certain unsecured noteholders violated Section 316(b) of the Trust Indenture Act of 1939 (&ldquo;TIA&rdquo;), 15 U.S. C. &sect; 77 ppp (b).&nbsp;</div> <div> &nbsp;</div> <div> <strong>The Facts</strong></div> <div> &nbsp;</div> <div> EDMC&rsquo;s subsidiaries, Education Management, LLC (&ldquo;EDM&rdquo;) and Education Management Finance Corporation (&ldquo;EDM Finance&rdquo;) had approximately $1.3 billion of secured debt (the &ldquo;Secured Debt&rdquo;) governed by a 2010 credit agreement and $217 million of unsecured notes (the &ldquo;Notes&rdquo;) issued by EDM and governed by a March 2013 TIA qualified indenture. The Notes were guaranteed (the &ldquo;Note Guarantee&rdquo;) by EDM&rsquo;s parent, EDMC, but the Note Guarantee could be released upon a release by the holders of the Secured Debt (the &ldquo;Secured Lender&rdquo;) of any later guarantee of the Secured Debt given by EDMC.</div> <div> &nbsp;</div> <div> EDMC negotiated certain changes to the terms of the Secured Debt in September 2014 and, in return, EDMC agreed to guarantee repayment of the Secured Debt (the &ldquo;Secured Guarantee&rdquo;). EDMC and an ad hoc group of its Secured Lenders and noteholders (the &ldquo;Ad Hoc Group&rdquo;) then negotiated a swap of (i) the Secured Debt for new secured loans and 77% of EDMC&rsquo;s common stock and (ii) the Notes for 19% of EDMC&rsquo;s common stock. If creditors refused to consent to this restructuring proposal, EDMC and the Ad Hoc Group agreed that the Secured Lenders would (i) release EDMC&rsquo;s Secured Guarantee, thus triggering the release of the Note Guarantee, (ii) foreclose on EDMC&rsquo;s assets, and (iii) sell the foreclosed assets to a newly formed subsidiary of EDMC, which would then distribute debt and equity in the new subsidiary to creditors who consented to the restructuring. Noteholders who did not consent retained their legal right under the indenture to payment of the principal and interest on their Notes, but the issuer of the Notes was left with no assets with which to repay them. &nbsp;</div> <div> &nbsp;</div> <div> Marblegate Asset Management, LLC (&ldquo;Marblegate&rdquo;), a holder of the Notes which refused to consent to the restructuring sued, claiming that the restructuring violated Section 316(b) of the TIA which provides that:</div> <div> &nbsp;</div> <div style="margin-left: 80px;"> the right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security, . . . shall not be impaired or affected without the consent of such holder . . . .</div> <div> &nbsp;</div> <div> TIA Section 316(b). The District Court held that, although the language of Section 316(b) of the TIA was ambiguous, the legislative history led to the conclusion that:</div> <div> &nbsp;</div> <div style="margin-left: 80px;"> the purpose of the Act, as expressed consistently throughout the legislative history, was to prevent precisely the nonconsensual majoritarian debt restructuring that occurred here, even if the Act&rsquo;s authors did not anticipate precisely the mechanisms through which such a restructuring might occur.</div> <div> &nbsp;</div> <div> <em>Marblegate Asset Management, LLC v. Education Management Corp.</em>, 111 F. Supp.3d at 552.</div> <div> &nbsp;</div> <div> <strong>The Court of Appeals Decision</strong></div> <div> &nbsp;</div> <div> On appeal, a divided panel of the Second Circuit reversed, holding that &ldquo;Section 316(b) prohibits only non-consensual amendments to an indenture&rsquo;s core payment terms.&rdquo; Decision at 3-4. The issue on appeal was whether the phrase &ldquo;&lsquo;right . . . to receive payment&rsquo; forecloses more than formal amendment to payment terms that eliminate the right to sue for payment.&rdquo; Decision at 13. Although the majority agreed with the District Court that the language of Section 316(b) of the TIA is ambiguous, it concluded that &ldquo;the relevant portions of the TIA&rsquo;s legislative history exclusively addressed <u>formal</u> amendments and indenture provisions like collective action and no action clauses.&rdquo; Decision at 21.</div> <div> &nbsp;</div> <div> The majority noted &ldquo;that foreclosures were a known method of reorganization well before the enactment of the TIA in 1939,&rdquo; Decision at 23, and that &ldquo;neither the text nor the legislative history of Section 316(b) supports a distinction between adversarial and &lsquo;friendly&rsquo; foreclosures.&rdquo; Decision at 39. Moreover, the majority noted that the negotiations were &ldquo;clearly adversarial before the parties agreed on a course to preserve the value of the assets.&rdquo; Decision at 40.</div> <div> &nbsp;</div> <div> Finally, the majority noted that the dissenting noteholder retained its legal rights and remained able &ldquo;to pursue available State and federal law remedies,&rdquo; Decision at 40, including &ldquo;under State law theories of successor liability or fraudulent conveyance.&rdquo; &nbsp; Decision at 41.</div> <div> &nbsp;</div> <div> The dissent, finding no ambiguity in the meaning of Section 316(b), stated that &ldquo;[h]ad Congress intended merely to protect against modification of an indenture&rsquo;s payment terms, it could have so stated.&rdquo; Dissent at 7, and concluded that &ldquo;an out-of-court debt restructuring &lsquo;impairs&rsquo; or &lsquo;affects&rsquo; a non-consenting noteholder&rsquo;s &lsquo;right to receive payment&rsquo; when it is designed to eliminate a non-consenting noteholder&rsquo;s ability to receive payment, and when it leaves bondholders no choice but to accept a modification of the terms of their bonds.&rdquo; Dissent at 13.</div> <div> &nbsp;</div> <div> <strong>What the Marblegate Decision Means</strong></div> <div> &nbsp;</div> <div> Although TIA Section 316(b) will continue to prohibit formal amendments that change the right of a noteholder to receive principal and interest as provided for in an indenture, the Second Circuit&rsquo;s decision may allow issuers and holders of a majority of TIA qualified securities to engage in somewhat more creative ways to restructure outside of bankruptcy notwithstanding dissenting creditors. <em>Marblegate</em> is unusual, however, because EDMC would have lost its eligibility for Title IV funds had it filed for bankruptcy, thus giving Marblegate leverage it would not otherwise have had with a more typical issuer, while also constraining it from filing an involuntary bankruptcy against EDMC. Consequently, <em>Marblegate</em> may have limited practical effect in cases where the issuer can simply negotiate a pre-packaged or pre-negotiated restructuring agreement and then file for bankruptcy, which avoids the restrictions of Section 316(b).</div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/PTAB011817 Construction of a Claim Term by the PTAB Does Not Negate Indefiniteness http://www.seyfarth.com:80//publications/PTAB011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> The doctrine of definiteness requires a patent to clearly state what the inventor considers to be their invention. Of course, the PTAB interprets various claim terms when determining whether a prior art reference anticipates or renders obvious a particular claim. So what happens when an accused infringer challenges a claim before the PTAB, and after a PTAB claim interpretation, then challenges the definiteness of that same claim term in district court?</p> <p> The case of <em>Depomed, Inc. v. Purdue Pharma, L.P.</em>, Civil Action No. 13-571 (MLC) (D. NJ) considered this very issue. Depomed sought to preclude Purdue Pharma from amending their invalidity contentions to assert indefiniteness after the 2014 Supreme Court <em>Nautilus</em> decision changed the standard for definiteness. Among other things, Depomed argued the PTAB had already construed the term &ldquo;substantially all of said drug&rdquo; so any such assertion of indefiniteness would have been futile.&nbsp;</p> <p> For more information on this blog, click the link below:</p> http://www.seyfarth.com:80//publications/2017-RE-Survey Seyfarth’s 2017 Real Estate Market Sentiment Survey http://www.seyfarth.com:80//publications/2017-RE-Survey Wed, 18 Jan 2017 00:00:00 -0400 <div> As we begin the new year, Seyfarth Shaw&rsquo;s Real Estate department would like to know your top concerns for the market in 2017 and invites you to take our short three-minute survey. In Seyfarth&rsquo;s 2017 Real Estate Market Sentiment Survey, commercial real estate executives from all sectors are being asked about their top concerns surrounding the Federal Reserve, CMBS loans, the new political landscape, and Brexit, among other factors.&nbsp;</div> <div> &nbsp;</div> <div> The survey is confidential and any responses you provide will be used only in combination with those of other survey responses.</div> <div> &nbsp;</div> <div> To take the quick survey, click <a href="https://www.surveymonkey.com/r/S9ZSG3W" target="_blank">here</a>.</div> <div> &nbsp;</div> <div> We look forward to sharing the results, which will be published later in the first quarter.</div> http://www.seyfarth.com:80//publications/EL011817 “Believe It or Not” SDNY Grants Summary Judgment to Employer on Religious Accommodation Claim http://www.seyfarth.com:80//publications/EL011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Requests for religious accommodations are challenging for employers because employers have limited means to determine the voracity of an employee&rsquo;s religious obligations, yet risk liability for discrimination and retaliation under federal, state, and local laws if they outright refuse to accommodate an employee&rsquo;s request for religious accommodation. In fact, more often than not, employers take an employee&rsquo;s purported religious obligations at face value rather than asking the employee to justify their obligations. &nbsp;In <em>Bob v. Madison Security Group, Inc.,</em> the District Court for the Southern District of New York granted an employer&rsquo;s motion for summary judgment on a <em>pro se</em> Plaintiff&rsquo;s claims of failure to accommodate, retaliation, and unlawful termination under Title VII of the Civil Rights Act of 1964 (Title VII), New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/believe-it-or-not-sdny-grants-summary-judgment-to-employer-on-religious-accommodation-claim/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b6f44d6cf6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b6f44d6cf6-71256185">click here</a></p> http://www.seyfarth.com:80//publications/WC011817 The U.S. Supreme Court And Workplace Class Actions http://www.seyfarth.com:80//publications/WC011817 Wed, 18 Jan 2017 00:00:00 -0400 <p> Over the past decade, the U.S. Supreme Court &ndash; led by Chief Justice John Roberts &ndash; increasingly has shaped the contours of complex litigation exposures through its rulings on class action and governmental enforcement litigation issues. Many of these decisions have elucidated the requirements for pursuing employment-related class actions. The decision in <em>Wal-Mart Stores, Inc. v. Dukes,</em> 131 S. Ct. 2541 (2011), and the decision in <em>Comcast Corp. v. Behrend</em>, 133 S. Ct. 1426 (2013), are the two most significant examples. Those rulings are at the core of class certification issues under Rule 23. To that end, in 2016, federal and state courts cited <em>Wal-Mart</em> in 536 rulings in 2016; they cited<em> Comcast</em> in 216 cases.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/01/the-u-s-supreme-court-and-workplace-class-actions/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=72a0decdb1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-72a0decdb1-71256717">click here</a></p> http://www.seyfarth.com:80//publications/WH011717 Does It Feel Like School? Are You in a Classroom? If So, Soak in the Knowledge but Don’t Expect Pay for the Training Time! http://www.seyfarth.com:80//publications/WH011717 Tue, 17 Jan 2017 00:00:00 -0400 <p> In a January 9, 2017 ruling, Judge Vince Chhabria of the Northern District of California held that a customer service representative for Hawaiian Airlines was not entitled to be paid during a 10-day pre-employment training program that consisted of classroom work and tours of the facilities rather than actual &ldquo;on-the job&rdquo; customer service training. The decision is notable for its practical, straightforward analysis regarding when trainees should be paid under federal and California law.</p> <p> To read th entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/dont-expect-pay-for-the-training-time/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=d74f38bc18-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-d74f38bc18-71256393">click here</a></p> http://www.seyfarth.com:80//publications/ADA011717 Google Maps App Now Tells Users If Locations Are Accessible, But Is It Accurate and Reliable? http://www.seyfarth.com:80//publications/ADA011717 Tue, 17 Jan 2017 00:00:00 -0400 <p> The Google Maps app now indicates if a location is &ldquo;accessible&rdquo; to wheelchair users. &nbsp;Here&rsquo;s how it works: users can now click on various storefronts and other public places within the mobile app, and it will say whether the locations have accessible entrances. The information is listed under the &ldquo;Amenities&rdquo; section for each business.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/google-maps-app-now-tells-users-if-locations-are-accessible-but-is-it-accurate-and-reliable/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=8b11fa3e89-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-8b11fa3e89-71256157">click here</a></p> http://www.seyfarth.com:80//publications/ES011717 OSHA Publishes Recommended Practices for Anti-Retaliation Programs http://www.seyfarth.com:80//publications/ES011717 Tue, 17 Jan 2017 00:00:00 -0400 <div> <em>Seyfarth Synopsis: Employers that are regulated under any of the 22 federal whistleblower protection laws are encouraged to review company policies, procedures, and training systems to examine conformity with this guidance.</em></div> <div> &nbsp;</div> <div> The Occupational Safety and Health Administration has just issued its Recommended Practices for Anti-Retaliation Programs to help guide employers in creating &ldquo;workplaces in which workers feel comfortable voicing their concerns without fear of retaliation.&rdquo; The recommendations will apply to all public and private sector employers covered under the 22 whistleblower protection laws that OSHA enforces.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/whistleblower/osha-publishes-recommended-practices-for-anti-retaliation-programs/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=0b91d32bf9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-0b91d32bf9-71407177">click here</a></div> http://www.seyfarth.com:80//publications/ERISA011717 PBGC STICKS ITS HEAD OUT OF THE WATER AND ISSUES RFI REGARDING HYBRID (TWO-POOL) MULTIEMPLOYER PENSION PLANS http://www.seyfarth.com:80//publications/ERISA011717 Tue, 17 Jan 2017 00:00:00 -0400 <p> The Pension Benefit Guaranty Corporation (PBGC) issued a Request For Information (RFI) , to be published January 5, 2017, asking 24 questions about hybrid or two-pool alternative arrangements for multiemployer pension plans. &nbsp;Under a hybrid plan arrangement, a plan creates two pools for withdrawal liability purposes: The old pool for the &ldquo;old employers,&rdquo; and a new pool for &ldquo;new employers&rdquo; (and those old employers who &ldquo;withdraw&rdquo; from the old pool and move to the new pool). &nbsp;New employers are generally assessed withdrawal liability under a direct attribution method, and are not subject to the unfunded vested benefit liability of the old pool. &nbsp;Old pool members who agree to withdraw, pay their old pool liability, and move to the new pool often receive special considerations such as discounted withdrawal liability, lower contribution increases, and waivers of some or all potential old pool mass withdrawal liability risk. Funds began seeking PBGC approval for hybrid plans as a way to generate revenue, entice new employers to participate, and provide old employers concerned about their withdrawal liability risk a way to pay their current liability and continue to participate at a reduced risk.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/01/17/pbgc-sticks-its-head-out-of-the-water-and-issues-rfi-regarding-hybrid-two-pool-multiemployer-pension-plans/">click here</a></p> http://www.seyfarth.com:80//publications/MA011717-LE H-1B Work Permit Filings: Will You Beat the Cap? http://www.seyfarth.com:80//publications/MA011717-LE Tue, 17 Jan 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Employers must act now to identify individuals who may require H-1B work permit sponsorship before October 1, 2018 given the approaching April 3-7, 2017 filing window</em></p> <p> This Management Alert is intended to enable employers to identify any current employees and employment candidates who may require H-1B work permit sponsorship before October 1, 2018. We recommend that employers identify any such candidates as soon as possible, as on April 3, 2017, United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for the fiscal year 2018 H-1B quota (which begins on October 1, 2017). It is likely that, as in previous years, USCIS will receive H-1B requests far in excess of the annual quota within the<strong> first week</strong> of filing eligibility, in effect resulting in a random lottery-type selection process. This occurred last year in the 2017 H-1B cap, which was reached in the first week of filing eligibility based on USCIS receiving over 236,000 H-1B cap petitions. The most conservative and recommended approach is to submit all 2018 cap cases during the first week of filing eligibility, which begins on April 3, 2017.</p> <p> <strong>Background</strong></p> <p> There is an annual limit on the number of H-1B petitions that USCIS can approve during the government&#39;s 2018 fiscal year (beginning October 1, 2017 and ending September 30, 2018). The H-1B cap for fiscal year 2018 is 65,000 (of which about 6,800 are reserved for nationals of Chile and Singapore under Free Trade Agreements with those countries). USCIS will begin accepting petitions for FY 2017 on April 3, 2017.</p> <p> There is an additional quota of 20,000 H-1Bs reserved for persons holding a master&#39;s degree or higher awarded by <u>an</u> accredited college or university in the United States. To be eligible for the &quot;master&#39;s cap,&quot; the employee must have completed the master&#39;s degree program prior to the filing date. This additional quota of 20,000 H-1Bs has historically not been exhausted as early as the general H-1B quota of 65,000. However, both the regular cap and the master&#39;s cap were exhausted last year during the first week of availability.</p> <p> If USCIS receives more than 20,000 H-1B petitions towards the so-called master&#39;s cap, a separate lottery process is applied. USCIS will apply the random selection process to the master&#39;s cap petitions prior to conducting the regular H-1B lottery. Any master&#39;s cap petitions not selected in the master&#39;s lottery will be eligible for selection in the regular H-1B lottery, effectively being granted two opportunities at H-1B status.</p> <p> <strong>Exceptions</strong></p> <p> With some exceptions, current H-1B workers are not subject to the annual cap. Non-cap cases include H-1B workers extending their status, changing from one H-1B employer to another, changing the terms of existing H-1B employment, or filing for a second (concurrent) H-1B position. In addition, foreign nationals seeking to work for an institution of higher education, for a related or affiliated nonprofit entity, or for a nonprofit research organization or a government research organization are not subject to the H-1B cap.</p> <p> <strong>Anticipated Unavailability of H-1B Work Permits Means Filing Early</strong></p> <p> In 2008, USCIS announced that it would apply the lottery process to all H-1B petitions received during the first five business days of the cap period, even if enough petitions were received to fill the annual quota on the first day of the filing period (i.e., April 1). We do not know how quickly the H-1B numbers will be exhausted this year, but the most conservative strategy is to assume that the H-1B numbers will be unavailable after the initial five-day filing period. Once the H-1B numbers are exhausted, new H-1B work permits will not be available until October 1, 2018.</p> <p> Thus, to maximize the likelihood that affected employees will obtain an H-1B number effective as of October 1, 2017, employers must be in a position to file the H-1B petition with the government between Monday, April 3, 2017 and Friday, April 7, 2017. We are preparing &quot;cap-subject&quot; H-1B petitions at this time and recommend that employers begin the process now for any employees or candidates who need an H-1B.</p> <p> <strong>Persons Affected</strong></p> <p> The persons who need to file an H-1B include any current employees who hold F-1 student status and who will thus need H-1B status to continue working once their F-1 Employment Authorization (known as Optional Practical Training or &quot;OPT&quot;) expires. In addition, any pending hires should be assessed to determine whether an H-1B will be needed for eventual continued employment, including those in J-1 academic programs with limited practical training time as well as those who currently reside outside the United States. Further, any current employees who hold TN, E-3, or L-1 status and who are beginning the green card process may need to convert to H-1B status.</p> <p> <strong>&quot;Cap-Gap&quot; Relief for F-1 Students</strong></p> <p> Under a rule issued in 2008, DHS grants &quot;cap-gap&quot; relief to F-1 students whose OPT expiration dates fall between April 1, 2017 and September 30, 2017 and whose employers have filed H-1B petitions on their behalf. Such students will be given a bridge of both status and work authorization until October 1, 2017. This means that individuals in the U.S. in F-1 status who are completing OPT and whose employers have filed H-1B &quot;change of status&quot; petitions on their behalf will have their work authorization automatically extended until October 1, 2017 (the required start date on the H-1B petition), provided that the H-1B petition is received and approved. These individuals will not experience the gap in employment eligibility or in status that may otherwise have occurred. If the petition is rejected or denied prior to October 1, 2017, the &quot;cap-gap&quot; employment eligibility ends immediately.</p> <p> In addition, the 2008 &quot;cap-gap&quot; rule grants a bridge of status -- but not work authorization -- to individuals in the U.S. during the 60-day grace period following completion of their F-1 status who do not hold a valid EAD. This means that individuals in the U.S. in F-1 status who are in their 60-day grace period and whose employers have filed H-1B &quot;change of status&quot; petitions on their behalf will have their status, but not employment authorization, automatically extended until October 1, 2017, provided that the H-1B petition is received and approved.</p> <p> <strong>Alternatives to the H-1B Work Permit</strong></p> <p> In some cases, there may be alternatives to the H-1B work permit. If an affected employee falls into one of the following categories, that employee may not need to file for an H-1B work permit in April:</p> <ul> <li> Citizens of Canada or Mexico who are eligible for a TN visa. Please note, however, that not all H-1B eligible Canadian or Mexican employees will qualify for TN status.</li> <li> Citizens of Australia, Chile, or Singapore.</li> <li> The spouse of an L, E or H-1B work permit holder, who is eligible for spousal employment authorization (EAD).</li> <li> J-1 nonimmigrants who have at least 18 months of academic training available as of April 1, 2017.</li> <li> With limited exceptions, H-1B employees who have held H-1B status at any time during the last six years with a cap-subject employer.</li> <li> A foreign national who is married to a U.S. citizen and has received or will receive an Employment Authorization Document in connection with the pending green card process.</li> <li> Certain other foreign nationals who may qualify for O, E, or L visas.</li> </ul> <p> <strong>Conclusion</strong></p> <p> Employers must act now to identify and begin H-1B processing for candidates or current employees who require sponsorship and who do not meet one of the above exceptions. If an employer misses the filing deadline for an employee who requires H-1B sponsorship, the employee can lose legal status in the United States, including permission to work.</p> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/TBT011717 Jeff Sessions Senate Confirmation Hearing Hints at Enforcement Attitudes Towards Marijuana http://www.seyfarth.com:80//publications/TBT011717 Tue, 17 Jan 2017 00:00:00 -0400 <div> On January 10, 2017, Alabama GOP Sen. Jeff Sessions began confirmation hearings with the Senate Judiciary Committee for his potential role as Attorney General in the upcoming Trump administration. &nbsp; During these hearings he was asked questions that shed light on possible differences between the Trump administration Department of Justice&rsquo;s stance on marijuana as compared to the Obama administration.</div> <div> &nbsp;</div> <div> In response to a question about federalism as it relates to marijuana laws from Sen. Mike Lee, a Utah Republican, Sessions stated:</div> <div> &nbsp;</div> <div> &ldquo;One obvious concern is that Congress has made the possession of marijuana in every state an illegal act. If that is not desired any longer, Congress should pass a law to change it. It&rsquo;s not the attorney general&rsquo;s job to decide which laws to enforce. We should enforce the laws as effectively as we are able.&rdquo;</div> <div> &nbsp;</div> <div> Additionally, in response to a question from Sen. Patrick Leahy, a Vermont Democrat, Sessions said he &ldquo;won&rsquo;t commit to never enforcing federal law.&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post,&nbsp;<a href="http://www.blunttruthlaw.com/2017/01/jeff-sessions-senate-confirmation-hearing-hints-at-enforcement-attitudes-towards-marijuana/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=dc54f70e9f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-dc54f70e9f-71540589">click here</a></div> http://www.seyfarth.com:80//news/alfred-quoted-inside-self-storage-011417 Richard Alfred quoted by <i>Inside Self-Storage</i> http://www.seyfarth.com:80//news/alfred-quoted-inside-self-storage-011417 Sat, 14 Jan 2017 00:00:00 -0400 <p> Richard Alfred was quoted in &quot;Simplifying Your Self-Storage Business With HR Outsourcing,&quot; a January 14 <em>Inside Self-Storage</em>&nbsp;story on how regulations are always changing when it comes to payroll and tax compliance, with the latest update being the new overtime rule. Alfred predicted lawsuits regarding overtime were going to spike to about 9,000 this year, an 8 percent increase over the actions brought against employers in 2015.</p> <p> <a href="http://www.insideselfstorage.com/articles/2017/01/simplifying-your-selfstorage-business-with-hr-outsourcing.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-insurance-journal-011317 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Insurance Journal</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-insurance-journal-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual Workplace Class Action Report was featured in &quot;6 Key Trends in Workplace Litigation for 2017,&quot; a January 13 story by Insurance Journal. Authored by Gerald Maatman, this year&rsquo;s report says that federal and state courts issued more favorable class certification rulings for the plaintiffs bar in 2016 than in previous years.</p> <p> <a href="http://www.insurancejournal.com/news/national/2017/01/13/438801.htm">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-annual-eeoc-initiated-litigation-report-referenced-wall-street-journal-011317 Seyfarth’s annual EEOC-Initiated Litigation report was referenced in the <i>Wall Street Journal</i> http://www.seyfarth.com:80//news/seyfarth-annual-eeoc-initiated-litigation-report-referenced-wall-street-journal-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual EEOC-Initiated Litigation report was featured in &quot;Survey Roundup: Fighting The Systemic,&quot; a January 13 <em>Wall Street Journal</em> story. Authored by lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year&rsquo;s report reviewed the U.S. Equal Employment Opportunity Commission&rsquo;s initiated litigation in fiscal year 2016 and found the agency&rsquo;s focus on systemic cases that target fewer employers is an area the incoming Trump administration may target for reform.</p> <p> <a href="http://blogs.wsj.com/riskandcompliance/2017/01/13/survey-roundup-courage-tops-list-of-desired-director-traits/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-corporate-counsel-011317 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Corporate Counsel</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-corporate-counsel-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;Workplace Class Action Forecast: More Cases, Higher Settlements,&quot; a January 13 story by <em>Corporate Counsel</em>. Authored by Gerald Maatman, this year&rsquo;s report says that private plaintiffs and the government are likely to be aggressive in 2017 in bringing workplace class action litigation, and in-house counsel need to be equally aggressive in identifying and addressing class action vulnerabilities.</p> <p> <a href="http://www.corpcounsel.com/home/id=1202776875654/Workplace-Class-Action-Forecast-More-Cases-Higher-Settlements?mcode=1202617073467&amp;curindex=0&amp;slreturn=20170017104431">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/paparelli-dhillon-quoted-bloomberg-bna-011317 Angelo Paparelli and Pavan Dhillon were quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/paparelli-dhillon-quoted-bloomberg-bna-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Angelo Paparelli and Pavan Dhillon were quoted in &quot;NAFTA Rewrite Could Shift Tech Talent to Canada, Mexico,&quot; a January 13 story from <em>Bloomberg BNA</em> on how immigration attorneys have noticed an uptick in tech worker concern about being able to stay in the U.S. on TN or H-1B visas.</p> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-law360-011317 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Law360</i> http://www.seyfarth.com:80//news/seyfarth-workplace-class-action-report-featured-law360-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual <em>Workplace Class Action Report</em> was featured in &quot;GC Cheat Sheet: The Hottest Corporate News Of The Week,&quot; a January 13 story by <em>Law360</em>. Authored by Gerald Maatman, this year&rsquo;s report said the biggest workplace class action settlements during 2016 brought in nearly 30 percent less money for workers than during the previous year.</p> http://www.seyfarth.com:80//news/paparelli-quoted-law360-011317 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/paparelli-quoted-law360-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;DHS Issues Final Rule To Help Int&#39;l Entrepreneurs Stay In US,&quot; a January 13 story from <em>Law360 </em>on the Department of Homeland Security&rsquo;s final rule that enables entrepreneurs to seek temporary permission to be in the country, known as parole, if they can prove their proposed business would promote the public interest. Paparelli said that although the rule is a start, it leaves several vulnerabilities uncorrected.</p> http://www.seyfarth.com:80//news/paparelli-quoted-bloomberg-dlr-011317 Angelo Paparelli was quoted in <i>Bloomberg DLR</i> http://www.seyfarth.com:80//news/paparelli-quoted-bloomberg-dlr-011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;Foreign Entrepreneurs Get Pathway to U.S. Without Visas,&quot; a January 13 story from <em>Bloomberg DLR</em> on how foreign entrepreneurs soon will be able to come to the U.S. temporarily to work on their startup businesses without having to get a visa. Paparelli said that the inability to switch to another immigration status from within the U.S. is a major stumbling block to the utility of this particular provision.</p> http://www.seyfarth.com:80//publications/EL011717 OSHA’s New Electronic Reporting and Anti-Retaliation Rule Challenged By Industry Groups in Oklahoma http://www.seyfarth.com:80//publications/EL011717 Fri, 13 Jan 2017 00:00:00 -0400 <p> The National Association of Home Builders of the United States, the U.S. Chamber of Commerce, and other industry groups have sued Occupational Safety and Health Administration to prevent the implementation of its OSHA&rsquo;s new injury and illness electronic reporting rule, arguing that OSHA&rsquo;s proposed online database violates employers&rsquo; First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA&rsquo;s authority. &nbsp;<em>National Association of Home Builders of the United States et al. v. Perez et al.,</em> No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-electronic-reporting-anti-retaliation-rule-challenged/">click here</a></p> http://www.seyfarth.com:80//publications/CDL011317 Proposed New York Cybersecurity Bill Requires Increased Protections for Financial Industry http://www.seyfarth.com:80//publications/CDL011317 Fri, 13 Jan 2017 00:00:00 -0400 <div> On December 28, 2016, New York published a revised version of its proposed &ldquo;Cybersecurity Requirements for Financial Services Companies&rdquo; aimed at increasing the requirements and protections for information security, auditing, and reporting for financial institutions doing business within New York state. The regulation was announced on September 13, 2016 as the first-of-its-kind regulation to protect consumers and financial institutions and had intended to go into effect January 1, 2017. However, in response to the 45-day public comment period, a revised version was distributed mere days before the end of the year on December 28, 2016 with an expected implementation date of March 1, 2017.</div> <div> &nbsp;</div> <div> Although the revised version will be subject to an additional 30-day public comment period, there are a number of key provisions in the current versions that financial institutions should be aware of.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/proposed-new-york-cybersecurity-bill-requires-increased-protections-financial-industry/">click here</a>.</div> http://www.seyfarth.com:80//publications/WH011317 Supreme Court Agrees to Rule on Legality of Class Action Waivers http://www.seyfarth.com:80//publications/WH011317 Fri, 13 Jan 2017 00:00:00 -0400 <p> Earlier today, the United States Supreme Court granted and consolidated three petitions for certiorari, to consider whether employers can require employment-related disputes to be resolved through individual arbitration, and waive class and collective proceedings, are enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/arbitration-agreements/supreme-court-agrees-to-rule-on-legality-of-class-action-waivers/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=59628b9299-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-59628b9299-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/MA011317-LE Massachusetts Superior Court Adopts Stringent Standard for Unpaid Meal Breaks Under State Wage Law http://www.seyfarth.com:80//publications/MA011317-LE Fri, 13 Jan 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>&nbsp;The Massachusetts Superior Court recently issued an opinion holding that, under Massachusetts wage law, employers in the Commonwealth must pay employees for meal breaks, unless the employees are completely free of all work-related duties.&nbsp; This ruling considerably restricts employers&rsquo; ability to treat meal breaks as non-compensable time under Massachusetts law.&nbsp; </em></p> <p> On December 23, 2016, a Justice in the Business Litigation Session of the Massachusetts Superior Court issued an opinion in the case <em>DeVito v. Longwood Security Services, Inc.</em> that examines the appropriate test for determining whether meal breaks must be paid under Massachusetts wage and hour law.&nbsp;</p> <p> Plaintiffs are private security officers at housing developments, medical facilities, and colleges who sued under the Massachusetts Wage Act and Massachusetts Overtime Law seeking compensation for their 30-minute meal breaks because, during this time, they must remain at their assigned worksite, remain in uniform, and respond to any radio calls they might receive.</p> <p> The employer asserted that the meal breaks should not be paid because the break time was spent predominantly for the benefit of the employees (the &ldquo;predominant benefit&rdquo; test), which courts have generally applied in deciding the compensability of breaks under the federal Fair Labor Standards Act.&nbsp; The employees, on the other hand, argued that the meal breaks should be paid because the employees were not completely relieved of all work-related duties while on break (the &ldquo;relieved-of-all-duties&rdquo; test), which they claimed is prescribed by state-level regulations.</p> <p> <strong>The Court Adopts the Relieved-of-All-Duties Test.</strong>&nbsp; While the court did not decide the ultimate question of whether the meal breaks at issue must be paid (noting that a jury would make this fact-intensive determination), the court announced its decision to adopt the more stringent &ldquo;relieved-of-all-duties&rdquo; test.&nbsp;</p> <p> Under this test, Massachusetts employers must pay employees for meal breaks <em>unless employees are completely relieved of all work-related duties</em> during the meal period.&nbsp; In endorsing this test, the court recognized that it was departing from the more commonly applied and more employer-friendly &ldquo;predominant benefit&rdquo; test.</p> <p> <strong>Impact on Employers.</strong>&nbsp; The court&rsquo;s adoption of the &ldquo;relieved-of-all-duties&rdquo; test means that a mere minute or two of work for the employer&rsquo;s benefit&mdash;or a few restrictions on an employee&rsquo;s break time&mdash;can turn an entire meal break into paid time under Massachusetts law.</p> <p> Whereas the more widely applied &ldquo;predominant benefit&rdquo; test allows meal breaks to be unpaid as long as the employee&mdash;and not the employer&mdash;receives the primary benefit of the meal period, this is no longer the correct standard to apply in the Commonwealth.</p> <p> The stringent nature of the &ldquo;relieved-of-all-duties&rdquo; test&mdash;and the mandatory trebling of damages for all violations of the Massachusetts wage laws&mdash;strikes a blow to the Commonwealth&rsquo;s employers and creates the potential for significant liability.&nbsp; If this ruling stands, a new wave of class action lawsuits against employers asserting claims relating to unpaid meal breaks appears likely.&nbsp;</p> <p> <strong>Steps That Employers Should Take Now.</strong>&nbsp; Massachusetts employers should review their policies and practices to ensure that meal breaks are unpaid only if employees are completely free of all work-related duties during the meal period.&nbsp;</p> <p> Employers should be especially mindful of any restrictions placed on employees during meal breaks, including restrictions that limit employees&rsquo; ability to leave the worksite or that require employees to remain on-call.&nbsp; Such restrictions may render meal periods compensable working time under the test adopted in <em>DeVito</em>.</p> http://www.seyfarth.com:80//publications/OMM011317-LE Recent Changes and Clarifications to the Illinois Employee Sick Leave Act http://www.seyfarth.com:80//publications/OMM011317-LE Fri, 13 Jan 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong> <em>The Illinois Employee Sick Leave Act (&ldquo;ESLA&rdquo;), which went into effect on January 1, 2017, requires employers that provide employees with &ldquo;personal sick leave benefits&rdquo; must allow the use of such benefits for certain covered family members.&nbsp; On&nbsp; January 10, 2017, only nine days after the ESLA went into effect, the Illinois General Assembly approved SB 2799, which purportedly cleans up and clarifies issues raised by the ESLA. Unfortunately, many of the changes seem to also create further ambiguity. This One Minute Memo discusses the recent revisions that are expected to go into effect within the next 90 days.</em></p> <p> The Illinois Employee Sick Leave Act (&ldquo;ESLA&rdquo;), which went into effect on January 1, 2017, requires employers that provide employees with &ldquo;personal sick leave benefits&rdquo; must allow the use of such benefits for certain covered family members.&nbsp; A detailed discussion regarding the ESLA previously published by Seyfarth can be found <a href="http://www.seyfarth.com/publications/OMM091316-LE2">here</a>.&nbsp;</p> <p> Little is known about this law, which may have wide implications for employers and employees.&nbsp; The Illinois Department of Labor (&ldquo;IDOL&rdquo;), which is charged with enforcing the new law, just posted a complaint form and FAQs on its website last week, which can both be found <a href="https://www.illinois.gov/idol/FAQs/Pages/Employee-Sick-Leave-Act-FAQs.aspx">here</a>. The FAQs do not contain specific guidance on how the IDOL intends to enforce this new law, although it appears that the IDOL only intends to enforce the &ldquo;family care&rdquo; language of the law and not to enforce the application of an employer&rsquo;s sick pay policy for an employee&rsquo;s use of sick time for personal illness.</p> <p> On January 10, 2017, only nine days after the ESLA went into effect, the Illinois General Assembly approved SB 2799, which purportedly cleans up and clarifies issues raised by the ESLA.&nbsp; Unfortunately, many of the changes seem to also create further ambiguity.&nbsp; Governor Rauner is expected to approve SB 2799 within the next 90 days and it will become effective immediately.&nbsp;</p> <p> Specifically, SB 2799 includes the following notable changes to the ESLA:</p> <ul> <li> Revises the definition of &quot;personal sick leave benefits&quot; from &ldquo;<em>time accrued </em>and available&rdquo; to <strong>&ldquo;</strong><em>any paid or unpaid</em> time available to an employee as provided through an <em>employment benefit plan or policy</em>. . . .&rdquo; Under the new definition, the time need not be accrued to be covered.&nbsp; Additionally, it appears that if an employer allows unpaid time to be taken for personal sick leave under a covered plan or policy, it must also allow unpaid time be taken for reasons covered under the ESLA.&nbsp;</li> <li> Adds that an employment benefit plan or paid time off policy does <u>not</u> include long term disability, short term disability, an insurance policy, or other comparable benefit plan or policy.&nbsp; Unfortunately, it still remains unclear whether said plans must be ERISA based plans.</li> <li> Adds &ldquo;stepchild&rdquo; to the list of persons for whom an employee may use personal sick leave benefits and consistently addresses the coverage of domestic partners (who were previously mentioned in one section of the law but not another and which appeared to be a drafting error).</li> <li> Adds that an employer may request written verification of the employee&#39;s absence from a health care professional if such verification is required under the employer&#39;s employment benefit plan or paid time off policy.</li> <li> Adds that when sick leave benefits are based on years of service (instead of annual or monthly accrual), the employer may limit the amount of sick leave used under the ESLA to half of the employee&#39;s maximum annual grant.</li> <li> Adds in the provision prohibiting retaliation:&nbsp; &ldquo;<em>Nothing in this Section prohibits an employer from applying the terms and conditions set forth in the employment benefit plan or paid time off policy applicable to personal sick leave benefits.&rdquo;</em> &nbsp;[Note: the intent behind this additional language is unclear.]</li> <li> Adds that the ESLA does not apply to: (i) an employee of an employer subject to certain provisions of the Railway Labor Act; or (ii) an employer or employee as defined in either the federal Railroad Unemployment Insurance Act or the Federal Employers&#39; Liability Act.</li> <li> Adds that the ESLA does not affect collective bargaining agreements or any party&#39;s power to collectively bargain such an agreement.</li> </ul> <p> Given the number of significant changes proposed under SB 2799, employers with policies and/or applicable benefit plans providing sick leave benefits to employees, including those employers who recently revised such policies to comply with the ESLA as previously drafted, should carefully review these policies and benefit plans to ensure they fully comply.</p> <p> We will continue to monitor the ELSA and will provide updates should any arise.&nbsp; If you have any questions or require assistance reviewing your policies or applicable benefits plans, please contact Joan Casciari, Tracy Billows, Megan Toth, or your Seyfarth attorney.</p> http://www.seyfarth.com:80//publications/LR011217 Kentucky Legislature Moves to Lock Out Unions http://www.seyfarth.com:80//publications/LR011217 Fri, 13 Jan 2017 00:00:00 -0400 <div> On Saturday, January 7th, Kentucky&rsquo;s Governor signed Kentucky House Bill 1 into law, making Kentucky the 27th state in the country to adopt right-to-work legislation and the last state in the South to pass such a law. The new legislation is effective immediately but carves out an exemption for existing collective bargaining agreements.</div> <div> &nbsp;</div> <div> The law bars making union membership a condition of employment and allows workers in union shops to opt out of paying union dues without fear of losing their jobs. The law also prohibits public employees from going out on strike.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/01/12/kentucky-legislature-moves-to-lock-out-unions/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=ff1303878e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-ff1303878e-71423401">click here</a></div> http://www.seyfarth.com:80//publications/OMM011317-LE2 Supreme Court Agrees to Rule on Legality of Class Action Waivers http://www.seyfarth.com:80//publications/OMM011317-LE2 Fri, 13 Jan 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The U.S. Supreme Court has agreed to decide whether workplace arbitration agreements containing class and collective action waivers are enforceable under the FAA, notwithstanding the provisions of the NLRA. </em></p> <p> Earlier today, the United States Supreme Court granted and consolidated three petitions for certiorari, to consider whether employers can require employment-related disputes to be resolved through individual arbitration, and waive class and collective proceedings, are enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.</p> <p> Three circuits&mdash;the Second, Fifth, and Eighth&mdash;have concluded that agreements that waive class and collective proceedings, thus requiring that claims be arbitrated on an individual basis, are fully enforceable. Two circuits&mdash;the Seventh and Ninth Circuit&mdash;as well as the National Labor Relations Board, have concluded that waivers in mandatory arbitration programs are unenforceable because the waivers prevent employees from engaging in concerted activities under the National Labor Relations Act. &nbsp;</p> <p> The National Labor Relations Board asked the Supreme Court to review and reverse the Fifth <a>Circuit&rsquo;s</a> ruling, in which the Court rejected the Board&rsquo;s position that such agreements unlawfully interfere with employees&rsquo; NLRA rights to engage in concerted activity for their mutual aid or protection.</p> <p> Two employers also asked the Supreme Court to review decisions by the Ninth and Seventh Circuits in which the courts found the class waivers to be unlawful. &nbsp;The U.S. Supreme Court has consolidated all three cases and oral argument likely will be held in March.</p> <p> The U.S. Supreme Court has decided time and again that the Federal Arbitration Act strongly favors private resolution of disputes, and that agreements to arbitrate that include these waivers must be afforded great deference and should be enforced. &nbsp;<em>See</em> <em>AT&amp;T Mobility LLC v. Concepcion</em>, 563 U.S. 321 (2011); <em>American Express Co. v. Italian Colors Restaurant</em>, 570 U.S. &ndash;&ndash;, 133 S. Ct. 2304 (2013). Because the Supreme Court has not directly addressed these agreements in the context of employment arbitration or considered whether Section 7 of the National Labor Relations Act prohibits such agreements, the courts have come to opposite conclusions.</p> <p> This critically important question has significant implications for employers, in that identical contractual provisions might be considered lawful and enforceable within some circuits, but not in others. Employers, particularly multi-state employers utilizing uniform arbitration agreements across the country, have been grappling with the uncertainty of the efficacy of their arbitration agreements for years. Stay tuned.</p> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/CDL011217 Goodbye Cookie Banners? The European Commission Proposes to Simplify the Cookie Law http://www.seyfarth.com:80//publications/CDL011217 Thu, 12 Jan 2017 00:00:00 -0400 <div> This week, the European Commission released its <a href="http://europa.eu/rapid/press-release_IP-17-16_en.htm">proposal to repeal</a> the existing Regulation on Privacy and Electronic Communication (the <a href="http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32002L0058:EN:HTML">ePrivacy Directive (Directive 2002/58/EC)</a>) and to replace it with a new Regulation. Unlike the current EU Data Directive and the new General Data Protection Regulation (GDPR) effective May 2018, the ePrivacy Directive primarily addressed practices of traditional telecommunication providers and new providers of electronic communication services (e.g., Gmail, and others listed below). The reason behind the proposal is to catch up the existing law to the realities of the technological evolution that occurred since the passage of the ePrivacy Directive. The proposal is also expected to ensure consistency in the protections afforded by the ePrivacy Directive, particularly with respect to confidentiality of communications, with the General Data Protection Regulation (GDPR), which will take effect in May 2018.</div> <div> &nbsp;</div> <div> The two most impactful proposed changes are: (1) extension of the application of privacy rules from traditional telecommunications operators to the new providers of electronic communications services, such as Gmail, Facebook Messenger, WhatsApp, and others, and (2) simplification of the rules on cookies. The former proposal would prevent email services, such as Gmail, from scanning the contents of their users&rsquo; email for the purposes of delivering targeted advertising, without obtaining the users&rsquo; explicit consent. Obviously, this could significantly impact ad revenue of online email and messaging services that rely on targeted advertising for their funding.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/goodbye-cookie-banners-european-commission-proposes-simplify-cookie-law/">click here</a>.</div> http://www.seyfarth.com:80//publications/WH011217 Ostensible Agency, Hold the Class Certification: Would You Like Franchise With That? http://www.seyfarth.com:80//publications/WH011217 Thu, 12 Jan 2017 00:00:00 -0400 <p> It&rsquo;s a common business model in the fast-food industry: a massive restaurant company provides the menu, the marketing&mdash;including catchy slogans and a universally recognized logo&mdash;and the basic operational standards for the restaurant, and a franchisee provides the rest&mdash;including hiring, training, and firing restaurant employees. Unfortunately for the fast-food giants (the notorious FFGs, if you will), it&rsquo;s also common for disgruntled employees to name them in lawsuits&mdash;particularly super-sized class-action lawsuits&mdash;against the franchisee.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/rule-23-class-certification/ostensible-agency/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8423d2425d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8423d2425d-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/OMM011217-LE Philadelphia to Enact Law Prohibiting Inquiry Into a Prospective Employee's Wage History http://www.seyfarth.com:80//publications/OMM011217-LE Thu, 12 Jan 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Philadelphia is positioning to be the next jurisdiction to prohibit employers from inquiring into jobapplicants&rsquo; wage history during the employment application process.</em></div> <div> &nbsp;</div> <div> <strong>The Ordinance</strong></div> <div> &nbsp;</div> <div> The Philadelphia City Council recently passed <a href="https://phila.legistar.com/LegislationDetail.aspx?ID=2849975&amp;GUID=239C1DF9-8FDF-4D32-BACC-296B6EBF726C">Bill No. 160840</a>, amending Title 9 of The Philadelphia Code by adding wage equity measures to Philadelphia&rsquo;s Fair Practices Ordinance, which was initially passed in 2011 to prohibit employers from inquiring as to non-conviction arrests and has since been expanded to include ban the box restrictions and mandatory poster requirements (see our prior coverage <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM122315LE.pdf">here</a> and <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM032416LE.pdf">here</a>). The amended Ordinance prohibits employers (and employment agencies) from inquiring about a prospective employee&rsquo;s wage history. Retaliation against a prospective employee for refusing to respond to such an inquiry is also prohibited, as long as no federal, state, or local law specifically authorizes the disclosure of wage history in connection with employment.</div> <div> &nbsp;</div> <div> The Ordinance resembles the legislation recently enacted in Massachusetts, which will restrict employers from seeking salary history beginning in July 2018. Similar to Massachusetts&rsquo;s &ldquo;Act to Establish Pay Equity,&rdquo; the Ordinance makes it unlawful for an employer or employment agency to:</div> <div> &nbsp;</div> <div> &bull; Inquire about a prospective employee&rsquo;s wage history (in writing or otherwise);</div> <div> &bull; Require disclosure of wage history;</div> <div> &bull; Condition employment or consideration for an interview on disclosure of wage history inquiry.</div> <div> &nbsp;</div> <div> &ldquo;Wages&rdquo; are broadly defined as all earnings, including fringe benefits, &ldquo;wage supplements or other compensation whether payable by the employer from employer funds or from amounts withheld from the employee&rsquo;s pay by the employer,&rdquo; such as other lawful deductions.</div> <div> &nbsp;</div> <div> The Ordinance is due to take effect 120 days after it is signed by Mayor Jim Kenney.</div> <div> &nbsp;</div> <div> <div> <strong>Employer Outlook</strong></div> <div> &nbsp;</div> <div> Employers in Philadelphia should begin to review their applications and other hiring documents to remove any inquiry pertaining to wage history and advise recruiters and hiring managers to avoid making any similar inquiry. Moreover, expect to see a growing wave of similar legislation arise in other jurisdictions at various levels of government, ranging from statewide to municipal ordinances, to address wage equity issues (e.g., Pennsylvania, New Jersey, and New York City).</div> <div> &nbsp;</div> <div> We will update when we learn the Ordinance&rsquo;s effective date.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/EL011217 To Be or Not To Be: The SEC Administrative Court — Are They Constitutional or Not http://www.seyfarth.com:80//publications/EL011217 Thu, 12 Jan 2017 00:00:00 -0400 <p> A divided Tenth Circuit Court of Appeals has held that the U.S. Securities and Exchange Commission&rsquo;s (SEC) in-house administrative law judges (ALJs) are not constitutionally appointed as required by the Constitution&rsquo;s Appointment Clause, thereby increasing the likelihood that the U.S. Supreme Court will take up the issue to resolve a circuit split between two federal appellate courts. The ruling by the Denver-based federal appeals court, marked a setback for the SEC amid increased challenges by defendants who question the fairness of the agency&rsquo;s administrative court system. <em>Bandimere v. United States Securities and Exchange Commission,</em> No. 15-9586 (10th Cir. December 27, 2016).</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/to-be-or-not-to-be-the-sec-administrative-court-are-they-constitutional-or-not/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=d3b68d1495-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-d3b68d1495-71256185">click here</a></p> http://www.seyfarth.com:80//news/degroff-gagnon-quoted-bloomberg-bna-011217 Christopher DeGroff and Matthew Gagnon were quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/degroff-gagnon-quoted-bloomberg-bna-011217 Thu, 12 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual EEOC-Initiated Litigation report was featured in &quot;EEOC Will Keep Big-Case Focus but May Trim Sails,&quot; a January 12 story by <em>Bloomberg BNA</em>. Authored by lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year&rsquo;s report compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2016.</p> <p> Degroff said that the EEOC enters 2017 somewhat vulnerable to congressional criticism because its enforcement numbers dropped in fiscal 2016 while its case backlog remained roughly the same, at more than 70,000 pending discrimination charges. Gagnon said that the EEOC&rsquo;s revised enforcement plan might have been the agency&rsquo;s biggest event in 2016.</p> <p> <a href="https://www.bna.com/eeoc-keep-bigcase-n73014449715/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/mitchell-elected-president-coalition-women-initiative-new-york Cynthia Mitchell Elected President of the Coalition of Women’s Initiatives in Law’s New York Chapter http://www.seyfarth.com:80//news/mitchell-elected-president-coalition-women-initiative-new-york Thu, 12 Jan 2017 00:00:00 -0400 <div> Seyfarth Shaw&rsquo;s Cynthia Mitchell, partner and co-lead of the firm&rsquo;s national Health Care Real Estate &amp; Finance practice, was elecetd President of the Coalition of Women&rsquo;s Initiatives in Law&rsquo;s New York Chapter. Mitchell previously served as Vice President in 2016 and has a 1-year term as President. In addition, Seyfarth&rsquo;s Elizabeth Schrero will co-chair the Programming Committee and Stephanie Grimaldi will co-chair the Associates Committee, as they both did last year</div> <div> &nbsp;</div> <div> The Coalition of Women&rsquo;s Initiatives in Law is a non-profit membership association bringing together women&rsquo;s initiatives in law firms and companies of all sizes. The Coalition was originally launched in Chicago in 2008 by a group of leaders&rsquo; in their firms&rsquo; women&rsquo;s initiatives. Today, in addition to the Chicago chapter, the Coalition also has a chapter in New York. The Coalition brings together women lawyers in all areas of the law to advance the initiatives of its members through networking, professional development and community outreach activities. Across the two regions, more than 120 law firms and companies participate in the Coalition annually. To read more information, <a href="http://www.thewomenscoalition.com/.">visit here</a>.&nbsp;</div> <div> &nbsp;</div> <div> Mitchell focuses on representing clients across the country in the acquisition and disposition of various types of commercial real property, including healthcare facilities, office buildings, industrial properties, and mixed-use apartment buildings, and on the real estate-related aspects of transactions pertaining to corporate sales, acquisitions, and mergers. She also represents landlords and tenants in commercial use and commercial lease transactions, and lenders and borrowers in real estate finance matters.</div> http://www.seyfarth.com:80//news/seyfarth-lawyers-highly-ranked-2017-chambers-asia-pacific Seyfarth Lawyers Highly Ranked Again in 2017 Chambers Asia-Pacific http://www.seyfarth.com:80//news/seyfarth-lawyers-highly-ranked-2017-chambers-asia-pacific Thu, 12 Jan 2017 00:00:00 -0400 <div> Seyfarth is pleased to announce that partners in both the Sydney and Melbourne offices were recognised as leading employment lawyers in the 2017 Chambers Asia-Pacific rankings. The firm was again highly ranked in the Chambers &ldquo;Australian Employment&rdquo; practice category. A complete list of those partners ranked as top in their field is listed below.</div> <div> &nbsp;</div> <div> <strong>Sydney</strong></div> <div> Rachel Bernasconi</div> <div> Paul Cutrone</div> <div> Darren Perry</div> <div> &nbsp;</div> <div> <strong>Melbourne</strong></div> <div> Chris Gardner</div> <div> Henry Skene</div> <div> Michael Tamvakologos</div> http://www.seyfarth.com:80//news/devata-quoted-SHRM-011217 Pam Devata quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/devata-quoted-SHRM-011217 Thu, 12 Jan 2017 00:00:00 -0400 <div> Pam Devata was quoted in &quot;Do Ban the Box Laws Work,&quot; a January 12 story from <em>SHRM </em>on how more cities and states are limiting criminal history inquiries in the hiring process. Devata said that most employers had already removed the criminal history question from their job application form after the Equal Employment Opportunity Commission issued criminal history guidance in April 2012.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/do-ban-the-box-laws-work.aspx">You can read the full article here</a>.</div> http://www.seyfarth.com:80//news/weiss-interviewed-wgn-radio-011217 Philippe Weiss interviewed by <i>WGN Radio</i> http://www.seyfarth.com:80//news/weiss-interviewed-wgn-radio-011217 Thu, 12 Jan 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by <em>WGN Radio</em> on January 12 to discuss the new Illinois Employee Sick Leave Act. You can listen to the interview from Wintrust Business Lunch <a href="http://wgnradio.com/2017/01/12/wintrust-business-lunch-11217-whats-happening-with-twitter-and-a-look-at-the-original-iphones-rocky-start/">here</a>, starting at minute 21:40.</p> http://www.seyfarth.com:80//news/2017-Workplace-Class-Action-Litigation-Report-Release Wage And Hour Settlement Values Skyrocket: Seyfarth Releases 13th Annual Workplace Class Action Litigation Report </br> <i>Impact of Political Change-Over and Six Key Trends in Workplace Class Action Litigation for 2017</i> http://www.seyfarth.com:80//news/2017-Workplace-Class-Action-Litigation-Report-Release Wed, 11 Jan 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP has released its 13th annual edition of the <em>Workplace Class Action Litigation Report</em>, which is recognized as the nation&rsquo;s most complete guide to workplace-related complex litigation. In this year&rsquo;s Report, Seyfarth analyzed 1,331 class action rulings on a circuit-by-circuit and state-by-state basis to capture key themes from 2016 and emerging litigation trends facing U.S. companies in 2017.</p> <p> Described as the &ldquo;definitive source of information on employment class action litigation&rdquo; and a resource that &ldquo;no practitioner who deals with employment claims. . . should be without&rdquo; by <em>EPLiC Magazine</em>, Seyfarth&rsquo;s Report is the sole compendium in the U.S. dedicated exclusively to workplace class action litigation. In its largest edition to date, the 881-page Report is the &ldquo;go to&rdquo; research and resource guide for businesses and their corporate counsel facing complex litigation in the coming year.</p> <p> &ldquo;The U.S. Supreme Court decided several cases in 2016 that favored workers bringing class actions, which in turn portend significant challenges for employers facing these exposures in 2017,&rdquo; said Seyfarth&rsquo;s Gerald L. Maatman, Jr., co-chair of its Class Action Defense Group and author of the Report. &ldquo;While settlements were down for employment discrimination and ERISA class actions and government enforcement litigation, settlement numbers were up for wage &amp; hour class actions and collective actions.&rdquo;</p> <p> &ldquo;With the change-over from a Democratic White House to a Republican one and the second most filings of wage &amp; hour litigation over the past decade, 2017 is sure to present twists and turns for employers in dealing with these types of litigation issues.&rdquo;</p> <p> An overview of workplace class action litigation developments in 2016 reveals six key trends outlined in the Seyfarth Report for 2017:</p> <ol> <li> Class action dynamics increasingly have been shaped and influenced by recent rulings of the U.S. Supreme Court. Over the past several years, the Supreme Court has accepted more cases for review &ndash; and issued more rulings &ndash; than ever before that have impacted the prosecution and defense of class actions and government enforcement litigation. Plaintiffs&rsquo; lawyers scored several significant victories in 2016 that will make class actions easier to prosecute and result in more certification orders.</li> <li> The monetary value of the top employment-related class action settlements declined significantly in 2016 after they reached all-time highs in 2014 and 2015. However, wage &amp; hour settlements increased significantly.</li> <li> Federal and state courts issued more favorable class certification rulings for the plaintiffs&rsquo; bar in 2016 than in past years. &nbsp;However, employers did better in decertification motions than in past years.</li> <li> Overall complex employment-related litigation filings were flat in 2016 after several years of increased filings. For the first time in over a decade, wage &amp; hour filings declined.</li> <li> Wage &amp; hour certification decisions in 2016 increased geometrically as compared to last year. This manifests the focus of the plaintiffs&rsquo; bar in wage &amp; hour compliance issues.</li> <li> Government enforcement lawsuits brought by the DOL and EEOC continued the aggressive litigation programs of both agencies, but by sheer numbers of cases, their enforcement activities were arguably limited in their effectiveness, at least when measured by lawsuit filings and recoveries compared to previous years.</li> </ol> <p> Again available as a downloadable eBook, the Seyfarth Report is fully searchable, compatible with all major devices, allows readers to bookmark useful sections for easy future reference, and includes a number of other features, such as note-taking, highlighting and more.</p> <p> To order the Workplace Class Action Litigation Report, please <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=VxSiQZn8RhNHA8EDQ0dNWcRuyEzFR5DWddlqGLwl57g">click here</a>.</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 850 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media. For more information, please visit <a href="http://www.seyfarth.com/">www.seyfarth.com</a>.&nbsp;</p> <p> <strong>Contacts:</strong></p> <p> Brian Kiefer, Director of Public Relations<br /> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager<br /> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80//news/maatman-quoted-2nd-law360-011117 Gerald Maatman quoted in 2nd <i>Law360</i> story http://www.seyfarth.com:80//news/maatman-quoted-2nd-law360-011117 Wed, 11 Jan 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Seyfarth Shaw Says High Court Had Big Class Impact In 2016,&quot; a January 11 story from <em>Law360 </em>about Seyfarth&rsquo;s Workplace Class Action Litigation Report. The report includes numerous takeaways from the year that was in employment class-action litigation, noting shrinking settlements in the largest class actions, another surge of wage class actions being certified and changes to the number and type of complex, employment-related suits being filed. Maatman said that when it comes to the DOL, it was equally if not more aggressive than the EEOC and did a better job in terms of the scorecard, in terms of recovery.</p> http://www.seyfarth.com:80//news/maatman-quoted-law360-011117 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-011117 Wed, 11 Jan 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Biggest Workplace Class Settlements Trend Down In 2016,&quot; a January 11 story from <em>Law360 </em>on Seyfarth&rsquo;s Workplace Class Action Litigation Report. The report says that the biggest workplace class-action settlements brought in nearly 30 percent less money for workers in 2016 compared to 2015 as plaintiff&rsquo;s attorneys struggled with the heightened bar for certification set by the Supreme Court in Wal-Mart v. Dukes. Maatman said that it&rsquo;s kind of a bit of a perfect storm on the wage-and-hour front.</p> http://www.seyfarth.com:80//news/workplace-class-action-report-in-business-insurance-011117 Seyfarth’s annual <i>Workplace Class Action Report</i> was featured in <i>Business Insurance</i> http://www.seyfarth.com:80//news/workplace-class-action-report-in-business-insurance-011117 Wed, 11 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual Workplace Class Action Report was featured in &quot;Class action certifications more successful in 2016,&quot; a January 11 story by Business Insurance. Authored by Gerald Maatman, this year&rsquo;s report says that federal and state courts issued more favorable class certification rulings for the plaintiffs bar in 2016 than in previous years.</p> <p> <a href="http://www.businessinsurance.com/article/20170111/NEWS06/912311372/Class-action-certifications-more-successful-in-2016-Seyfarth-Shaw">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CP011117 Transparency in Terminology and Treating Transgender Employees Fairly http://www.seyfarth.com:80//publications/CP011117 Wed, 11 Jan 2017 00:00:00 -0400 <p> The Basics. Everyone in the workplace must be mindful of using accurate terminology when talking about gender and gender identity. Here are some common terms that are a good starting point for having respectful conversations.&#39;</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/01/11/transparency-in-terminology-and-treating-transgender-employees-fairly/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=b8cd0b44b0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-b8cd0b44b0-71410869">click here</a></p> http://www.seyfarth.com:80//publications/WC011117a What Keeps Executives, Corporate Counsel, and HR Professionals Up At Night – Pre-Order Our 13th Annual Workplace Class Action Report Today http://www.seyfarth.com:80//publications/WC011117a Wed, 11 Jan 2017 00:00:00 -0400 <p> With the publication of our Annual Workplace Class Action Report, the reaction from clients and loyal blog readers has been fantastic. The Report has been reported widely by the media year after year. Our upcoming February 21st webinar on the Report already has 500 participants signed up! The report manifests the notion that workplace class action litigation is one of those workplace issues that keep executives, corporate counsel, and HR professionals up at night.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/what-keeps-executives-corporate-counsel-and-hr-professionals-up-at-night-pre-order-our-13th-annual-workplace-class-action-report-today/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=73f10f9cc1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-73f10f9cc1-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/WC011117 It’s Here – Seyfarth’s 2017 Workplace Class Action Report http://www.seyfarth.com:80//publications/WC011117 Wed, 11 Jan 2017 00:00:00 -0400 <p> Our 2017 Workplace Class Action Report is now available.</p> <p> At 881 pages, our 13th Annual Report analyzes 1,331 rulings and is our biggest and best Report ever.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/01/its-here-seyfarths-2017-workplace-class-action-report/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=4950f6d600-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-4950f6d600-71256717">click here</a>.</p> http://www.seyfarth.com:80//publications/TS011017 Save the Date: Seyfarth Attorneys to Speak at AIPLA Trade Secret Law Summit in Atlanta http://www.seyfarth.com:80//publications/TS011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> Seyfarth attorneys Erik Weibust and Eric Barton will be presenting on trade secret and noncompete legislative updates at the American Intellectual Property Law Association&rsquo;s 2017 Trade Secret Summit, being held on March 2-3, 2017 at Emory University in Atlanta, Georgia.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/01/articles/trade-secrets/save-the-date-seyfarth-attorneys-to-speak-at-aipla-trade-secret-law-summit-in-atlanta/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=29108b9803-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-29108b9803-71256389">click here</a>.</p> http://www.seyfarth.com:80//publications/CDL011017b Top Five Data Breach Trend Predictions for 2017 http://www.seyfarth.com:80//publications/CDL011017b Tue, 10 Jan 2017 00:00:00 -0400 <p> As we begin the new year, companies are continuing to survey the ever-changing data-breach landscape and assess their own preparedness for the worst. And with data security threats becoming more complex, sophisticated, and diverse every year, it is no small task. For those of you wondering what data breach trends might look like this year, and what to do to avoid them, Experian Data Breach Resolution, drawing on its experience with over 17,000 data breaches over the last decade, offered the following five predictions in its <a href="http://www.experian.com/assets/data-breach/white-papers/2017-experian-data-breach-industry-forecast.pdf">2017 Data Breach Industry Forecast</a>.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/top-five-data-breach-trend-predictions-2017/">click here</a>.</p> http://www.seyfarth.com:80//publications/WH011017 Vacation Policies Are Not All-Inclusive; Seventh Circuit Denies Bid to Certify Class And Affirms Summary Judgment on Part-Time Claims http://www.seyfarth.com:80//publications/WH011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> Employers who offer vacation benefits have been subject to confusing and inconsistent rulings about eligibility requirements and accrual of benefits, along with litigation from enterprising plaintiffs&rsquo; class action lawyers seeking to take advantage of such uncertainty. On January 5, 2017, the U.S. Court of Appeals for the Seventh Circuit provided some welcome clarity when it rendered an employer-friendly decision in McCaster v. Darden Restaurants, Inc., No. 15-3258 (7th Cir. Jan. 5, 2017).</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/state-claims/vacation-policies-not-all-inclusive/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=9f207e4b53-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-9f207e4b53-71256393">click here</a>.</p> http://www.seyfarth.com:80//publications/CDL011017 US Indicts Romanian and Chinese Cybercriminals http://www.seyfarth.com:80//publications/CDL011017 Tue, 10 Jan 2017 00:00:00 -0400 <div> December 2016 brought the US government some progress on prosecuting foreign cybercriminals. &nbsp;Last month, three Romanians were extradited to face charges in the US for running a cybercrime ring using custom-built malware and money mules to steal at least $4 million. &nbsp;Chinese authorities also got their hands on one of three Chinese citizens charged by the US with insider trading on confidential information gleaned from the servers and networks of law firms involved in M&amp;A work. &nbsp;The US is seeking the extradition of the apprehended hacker by the Chinese government.</div> <div> &nbsp;</div> <div> <a href="http://www.bankinfosecurity.com/romanian-cybercrime-suspects-extradited-to-face-us-charges-a-9594">It is reported</a> that the three Romanians were arrested by the Romanian National Police following an eight-year FBI investigation. &nbsp;A 21-count indictment awaited them upon their extradition to Ohio, unsealed on December 17, 2016, charging them with wire fraud, identity theft, money laundering and trafficking in counterfeit goods or services. &nbsp;Known as the Bayrob Group, they allegedly used phishing attacks and malware to rob their victims. &nbsp;Disseminating its Bayrob Trojan through emails made to look like legitimate sources (e.g. Western Union, Norton Antivirus and the U.S. Internal Revenue Service), they prompted the recipient to click on an attached file, which upon clicking released the Bayrob Trojan to roam around their computers. &nbsp;Later versions of the Bayrob Trojan harnessed the infected computer&rsquo;s processing power to mine for cryptocurrency. &nbsp;Symantec&rsquo;s security response team, which worked in conjunction with the US government on the investigation, estimates the total losses over eight years to be as much as $35 million, sending 11 million malicious emails and running a botnet composed of 300,000 infected PCs.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/us-indicts-romanian-chinese-cybercriminals/">click here</a>.</div> http://www.seyfarth.com:80//publications/PTAB011017 PTAB’s Decision on Obviousness of Eye Drop Patent http://www.seyfarth.com:80//publications/PTAB011017 Tue, 10 Jan 2017 00:00:00 -0400 <div> <em>Inter partes</em> reviews (IPRs) held in the Patent Trial and Appeal Board (PTAB) of the U.S. Patent and Trademark Office are frequently associated with contemporaneous patent infringement litigations in district courts. The case, <em>Akorn, Inc. v. Senju Pharmaceutical Co., Ltd.</em>, discussed in the current post is an example of such a scenario. After Akorn, Inc. (&ldquo;Akorn&rdquo;) was sued for infringement of U.S. Patent No. 6,114,319 (&ldquo;the &lsquo;319 patent&rdquo;) owned by Senju Pharmaceutical Co., Ltd., and Mitsubishi Chemical Corporation, Akorn petitioned for IPR of the &lsquo;319 patent in the PTAB on the grounds that some of the claims of the patent were unpatentable for obviousness over the prior art, U.S. Patent 5,556,848 (&ldquo;the &lsquo;848 patent&rdquo;) and international patent application publication WO 95/31211 (&ldquo;Ding&rdquo;). The PTAB issued a Final Written Decision in the IPR on November 22, 2016, (Case IPR2015-01205) holding that Akorn had shown that the challenged claims were unpatentable under 35 USC &sect;103(a) as obvious over the prior art. &nbsp;</div> <div> &nbsp;</div> <div> The challenged claims of the &lsquo;319 patent were directed toward an emulsion of difluprednate, which is a steroid. Claim 1 and 18 are representative and are summarized below. For the sake of brevity, the claim elements are not reproduced in their entirety.&nbsp;</div> <div> &nbsp;</div> <div> For more information on this blog, click the link below.</div> http://www.seyfarth.com:80//publications/EL011017 N.Y. Appellate Court Scopes Out Liability: Using Criminal Convictions in Employment http://www.seyfarth.com:80//publications/EL011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> In <em>Griffin v. Sirva, Inc.,</em> 835 F.3d 283 (2016), the United States Court of Appeals for the Second Circuit certified several questions to the New York Court of Appeals, seeking clarification on provisions of the New York States Human Rights Law relating to consideration of criminal convictions in hiring.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/01/n-y-appellate-court-scopes-out-liability-using-criminal-convictions-in-employment/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=90c4050db1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-90c4050db1-71256185">click here</a></p> http://www.seyfarth.com:80//publications/TBT011017 New York is Lighting A Fire Under its Budding Cannabis Industry http://www.seyfarth.com:80//publications/TBT011017 Tue, 10 Jan 2017 00:00:00 -0400 <div> As we enter a new year, and approach the one year anniversary of New York&rsquo;s Medical Marijuana Program, &nbsp;we are given an opportunity to look back and reflect on the performance of the program, and what lies ahead.</div> <div> &nbsp;</div> <div> In some ways, the program has been vastly successful. &nbsp;As of January 3, 2016, 807 practitioners have registered for the Medical Marijuana Program, and 12,067 patients have been certified by their practitioners.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/01/new-york-is-lighting-a-fire-under-its-budding-cannabis-industry/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7a61f6b6b5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7a61f6b6b5-71540589">click here</a></div> http://www.seyfarth.com:80//publications/ADA011017 WCAG 2.0 AA Is the New Accessibility Standard for Federal Agency Websites http://www.seyfarth.com:80//publications/ADA011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> Businesses working on making their websites accessible to individuals with disabilities often ask us what technical standard they should be using since the ADA Title III regulations do not yet specify a standard. We believe the Department of Justice (&ldquo;DOJ&rdquo;) will likely adopt the Web Content Accessibility Guidelines 2.0 Levels A and AA (&ldquo;WCAG 2.0 AA&rdquo;) &nbsp;as the standard for public accommodations websites for a number of reasons, including the fact that WCAG 2.0 AA is the access standard used in all DOJ settlement agreements and consent decrees about websites and mobile apps.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/wcag-2-0-aa-is-the-new-accessibility-standard-for-federal-agency-websites/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=04df11869d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-04df11869d-71256157">click here</a></p> http://www.seyfarth.com:80//news/seyfarth-eeoc-initiated-litigation-report-in-HR-011017 Seyfarth’s annual EEOC-Initiated Litigation report was referenced in <i>HR.com</i> http://www.seyfarth.com:80//news/seyfarth-eeoc-initiated-litigation-report-in-HR-011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s annual EEOC-Initiated Litigation report was featured in &quot;Seyfarth Issues Annual EEOC Litigation Report, With New Legislative And Political Outlook For 2017,&quot; a January 10 <em>HR.com</em> story. Authored by lawyers Gerald L. Maatman, Jr., Christopher J. DeGroff, and Matthew J. Gagnon, this year&rsquo;s report compiles, analyzes, and categorizes the major case filings and decisions involving the EEOC in 2016.&nbsp;</p> http://www.seyfarth.com:80//news/maatman-q-and-a-reuters-011017 Gerald Maatman participated in a Q&A regarding Seyfarth’s Workplace Class Action Litigation Report in <i>Reuters</i> http://www.seyfarth.com:80//news/maatman-q-and-a-reuters-011017 Tue, 10 Jan 2017 00:00:00 -0400 <div> Seyfarth&rsquo;s Workplace Class Action Litigation Report was profiled in a January 10 Q&amp;A with Gerald Maatman in <em>Reuters</em>. According to Seyfarth Shaw LL&rsquo;s 13th annual edition of the Workplace Class Action Litigation Report, the number of employment-related class actions filed, and the value of the largest settlements, decreased in 2016 for the first time in more than a decade.&nbsp;</div> <div> &nbsp;</div> <div> You can read the full article, &quot;Q&amp;A: Seyfarth Shaw&#39;s Gerald Maatman on employment litigation wave &#39;cresting&#39; in 2016,&quot; <a href="http://www.reuters.com/article/qa-seyfarth-idUSL1N1F00F7">here</a>.</div> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM Sam Schwartz-Fenwick quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-SHRM Tue, 10 Jan 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Texas Lieutenant Governor Launches Effort to Enact &lsquo;Bathroom Bill&rsquo;,&quot; a January 10 story by <em>SHRM</em> on the new legislation which shows continued turmoil over LGBT rights. Schwartz-Fenwick said that the Texas bill signals that the status quo is far from settled as to the right of LGBT individuals in the United States.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/texas-bathroom-bill-introduced.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-bloomberg-bna-011017 Gerald Maatman quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/maatman-quoted-bloomberg-bna-011017 Tue, 10 Jan 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Older Workers Can Sue for Age Bias Even if Comparators Are 40-Plus,&quot; a January 10 story from <em>Bloomberg BNA</em> on a U.S. Court of Appeals for the Third Circuit ruling which states that workers in their 50s can sue under federal age discrimination law when an employment policy inadvertently hits them harder than co-workers in their 40s. Maatman said that the court plunged ahead despite contrary case law and created a circuit split where none existed previously.</p> <p> <a href="https://www.bna.com/older-workers-sue-n73014449636/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ U.S. Access Board Issues Standards for Medical Diagnostic Equipment http://www.seyfarth.com:80//publications/ Mon, 09 Jan 2017 00:00:00 -0400 <p> Today, the U.S. Access Board issued new accessibility standards for medical diagnostic equipment (MDE). The final rule will be effective February 8 &ndash; 30 days from today&rsquo;s publication of the final rule containing the standards in the Federal Register.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/01/u-s-access-board-issues-standards-for-medical-diagnostic-equipment/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=d0836ea684-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-d0836ea684-71256157">click here</a></p> http://www.seyfarth.com:80//publications/CDL010917 Eleventh Circuit Rejects Criminal Defendant’s Claim That Digital Technology Requires Increased Scrutiny Of Federal Prosecutors’ Improper Review of Privileged Emails http://www.seyfarth.com:80//publications/CDL010917 Mon, 09 Jan 2017 00:00:00 -0400 <div> The Eleventh Circuit recently refused to set aside a bank fraud conviction, rejecting defendant&rsquo;s argument that advances in technology should change the way court&rsquo;s adjudicate alleged violations of attorney-client privilege. &nbsp;While the appellate court agreed that defendant&rsquo;s attorney-client privilege was breached by federal prosecutors, the court refused to overturn defendant&rsquo;s 78-month sentence because he had failed to meet his burden to show he was prejudiced by the privilege breach.</div> <div> &nbsp;</div> <div> The defendant, Stephen DeLuca, the president and sole shareholder of Delco Oil, Inc. in Florida, was convicted (after a mistrial) of fraudulently submitting false statement to lending institutions regarding the company&rsquo;s accounts receivable and inventory and obtaining loans on reliance on the fraudulent information.</div> <div> &nbsp;</div> <div> When the FBI raided Defendant&rsquo;s office and seized computers and hard drives prior to his indictment, DeLuca notified the government that the data included privileged communications. The government offered, and DeLuca signed, a stipulation providing a procedure to exclude privileged communications from the investigation. &nbsp;It provided that an FBI computer analyst would segregate any communications to or from DeLuca&rsquo;s attorneys based on a list of attorneys provided by DeLuca. &nbsp;These segregated communications would then go to an FBI &ldquo;filter team&rdquo; who were not members of the prosecution team, who would notify DeLuca if it believed any communications were not privileged, or that the privilege had been waived. &nbsp;DeLuca could then dispute the determination, and the communications at issue would not be provided to the prosecution team until a magistrate judge ruled as to privilege.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/01/eleventh-circuit-rejects-criminal-defendants-claim-digital-technology-requires-increased-scrutiny-federal-prosecutors-improper-review-privileged-emails/">click here</a>.</div> http://www.seyfarth.com:80//publications/MA010617-LE It's a New Year in New York http://www.seyfarth.com:80//publications/MA010617-LE Fri, 06 Jan 2017 00:00:00 -0400 <div> <em>Seyfarth Synopsis: New York employers are facing a host of changes in wage and hour regulations for 2017: an increase to the minimum salary amounts for exempt status; increases in the minimum wage; and changes in the amount of tip, meal and lodgings credits allowed to be taken as an offset to employee wages as well as uniform allowances.</em></div> <div> &nbsp;</div> <div> As we previously informed our loyal <a href="http://www.wagehourlitigation.com/misclassification/ny-dol-approves-salary-increase/">blog subscribers</a>, the New Year has brought a host of changes for New York employers on the wage and hour front: &nbsp;an increase to the minimum salary amounts for exempt status; increases in the minimum wage; and changes in the amount of tip, meal and lodgings credits allowed to be taken as an offset to employee wages as well as uniform allowances.</div> <div> &nbsp;</div> <div> If these changes were not scary enough for employers, Governor Cuomo announced on January 2 the launch of a 200-member multi-agency Minimum Wage Enforcement and Outreach Unit charged with ensuring that all minimum wage workers are paid the proper rate. The Unit will include specially trained staff from a number of state agencies, including the Department of Labor, Department of Taxation, Workers Compensation Board and the Department of State. The staff will educate both workers and businesses on specific requirements included under the new minimum wage rates. &nbsp;According to Governor Cuomo, &ldquo;This new enforcement unit will ensure that workers are being paid what they earned, and employers who flaunt the law will be held accountable.&rdquo;</div> <div> &nbsp;</div> <div> As a reminder, below is a summary of these recent changes:</div> <div> &nbsp;</div> <div> <strong>Minimum Wage</strong></div> <div> <div> &nbsp;</div> <div> The new &ldquo;tiered&rdquo; minimum wage for New York employers is as follows:</div> <div> &nbsp;</div> <div> <div align="center"> <table border="1" cellpadding="0" cellspacing="0" style="width:244px;" width="244"> <tbody> <tr> <td colspan="2" nowrap="nowrap" rowspan="2" style="width:244px;height:42px;"> <p align="center"> <strong>City of New York,&nbsp;11 or more employees</strong></p> </td> <td height="42" style="height:42px;"> &nbsp;</td> </tr> <tr> <td height="34" style="height:34px;"> &nbsp;</td> </tr> <tr> <td style="width:124px;height:18px;"> <p> <strong>Effective Date</strong></p> </td> <td style="width:120px;height:18px;"> <p> <strong>Minimum Wage</strong></p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:124px;height:18px;"> <p> Dec. 31, 2016</p> </td> <td style="width:120px;height:18px;"> <p> $11.00</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:124px;height:18px;"> <p> Dec. 31, 2017</p> </td> <td style="width:120px;height:18px;"> <p> $13.00</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:124px;height:18px;"> <p> Dec. 31, 2018</p> </td> <td style="width:120px;height:18px;"> <p> $15.00</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> </tbody> </table> </div> <p> &nbsp;</p> <div align="center"> <table border="1" cellpadding="0" cellspacing="0" style="width:244px;" width="244"> <tbody> <tr> <td colspan="2" rowspan="2" style="width:244px;height:42px;"> <p align="center"> <strong>City of New York,&nbsp;10 or fewer employees</strong></p> </td> <td height="42" style="height:42px;"> &nbsp;</td> </tr> <tr> <td height="34" style="height:34px;"> &nbsp;</td> </tr> <tr> <td style="width:115px;height:18px;"> <p> <strong>Effective Date</strong></p> </td> <td style="width:130px;height:18px;"> <p> <strong>Minimum Wage</strong></p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:115px;height:18px;"> <p> Dec. 31, 2016</p> </td> <td style="width:130px;height:18px;"> <p> $10.50</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:115px;height:18px;"> <p> Dec. 31, 2017</p> </td> <td style="width:130px;height:18px;"> <p> $12.00</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:115px;height:18px;"> <p> Dec. 31, 2018</p> </td> <td style="width:130px;height:18px;"> <p> $13.50</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:115px;height:18px;"> <p> Dec. 31, 2019</p> </td> <td style="width:130px;height:18px;"> <p> $15.00</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> </tbody> </table> </div> <p> &nbsp;</p> <table align="center" border="1" cellpadding="0" cellspacing="0" style="width:247px;" width="247"> <tbody> <tr> <td colspan="2" style="width:247px;height:54px;"> <p align="center"> <strong>Nassau, Suffolk, and Westchester counties, regardless of size of employer</strong></p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> <strong>Effective Date</strong></p> </td> <td style="width:133px;height:18px;"> <p> <strong>Minimum Wage</strong></p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2016</p> </td> <td style="width:133px;height:18px;"> <p> $10.00</p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2017</p> </td> <td style="width:133px;height:18px;"> <p> $11.00</p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2018</p> </td> <td style="width:133px;height:18px;"> <p> $12.00</p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2019</p> </td> <td style="width:133px;height:18px;"> <p> $13.00</p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2020</p> </td> <td style="width:133px;height:18px;"> <p> $14.00</p> </td> </tr> <tr> <td style="width:113px;height:18px;"> <p> Dec. 31, 2021</p> </td> <td style="width:133px;height:18px;"> <p> $15.00</p> </td> </tr> </tbody> </table> <div style="clear:both;"> &nbsp;</div> <p> &nbsp;</p> <div align="center"> <table border="1" cellpadding="0" cellspacing="0" style="width:249px;" width="249"> <tbody> <tr> <td colspan="2" style="width:249px;height:54px;"> <p align="center"> <strong>Remainder of state, regardless of size of employer</strong></p> </td> <td height="54" style="height:54px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> <strong>Effective Date</strong></p> </td> <td style="width:139px;height:18px;"> <p> <strong>Minimum Wage</strong></p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> Dec. 31, 2016</p> </td> <td style="width:139px;height:18px;"> <p> $9.70</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> Dec. 31, 2017</p> </td> <td style="width:139px;height:18px;"> <p> $10.40</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> Dec. 31, 2018</p> </td> <td style="width:139px;height:18px;"> <p> $11.10</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> Dec. 31, 2019</p> </td> <td style="width:139px;height:18px;"> <p> $11.80</p> </td> <td height="18" style="height:18px;"> &nbsp;</td> </tr> <tr> <td style="width:111px;height:18px;"> <p> Dec. 31, 2020</p> </