Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80//publications/MA052417-LE Arbitration Agreement Enforced on Behalf of Nonsignatory http://www.seyfarth.com:80//publications/MA052417-LE Wed, 24 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The California Court of Appeal has utilized theories of equitable estoppel and agency to hold that an employee must arbitrate claims he asserted against an alleged joint employer, even though that defendant had not signed the employee&rsquo;s arbitration agreement.. </em></p> <p> <strong>The Facts</strong></p> <p> In 2011, Narciso Garcia signed on for temporary work with a staffing agency. His job application contained an agreement to arbitrate any dispute regarding employment laws. He then received an assignment to work for Pexco, LLC, which had not signed the arbitration agreement.</p> <p> In 2014, Garcia, claiming unpaid wages, sued both the staffing agency and Pexco for violations of the Labor Code and unfair business practices. Pexco moved to compel arbitration. The trial court granted the motion. Garcia appealed the order to arbitrate, because Pexco had not signed the arbitration agreement.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed the order to arbitrate. While the general rule is that only a party to an arbitration agreement can invoke it, two exceptions to the rule&mdash;equitable estoppel and agency&mdash;both applied here.</p> <p> <em>Equitable estoppel.</em> A nonsignatory to an arbitration agreement may compel a signatory plaintiff to arbitrate &ldquo;when the causes of action against the nonsignatory are intimately founded in and intertwined with the underlying contract obligations,&rdquo; and when the claims rely on &ldquo;the same facts and are inherently inseparable from the arbitrable claims against signatory defendants.&rdquo; Garcia&rsquo;s claims against Pexco were all intimately &ldquo;founded in and intertwined&rdquo; with his employment relationship with the staffing agency. Garcia alleged identical claims and conduct against both defendants as joint employers, referring to them collectively as &ldquo;defendants,&rdquo; without any distinction. It was thus &ldquo;inequitable for the arbitration about Garcia&rsquo;s assignment with Pexco to proceed with [the staffing agency], while preventing Pexco from participating.&rdquo; This reasoning applied to statutory claims as well as contract claims. &nbsp;</p> <p> <em>Agency.</em> Pexco could also enforce the arbitration agreement under a theory of agency: non-signatories can enforce an arbitration agreement &ldquo;when a plaintiff alleges that a defendant acted as an agent of a party to an arbitration agreement.&rdquo; Garcia had alleged that each defendant was the agent of the other. The Court of Appeal rejected his argument that this allegation was mere boilerplate, particularly in that Garcia alleged identical claims and conduct against both defendants.</p> <p> <strong>What <em>Garcia</em> Means for Employers</strong></p> <p> The <em>Garcia</em> decision is especially important for employers in today&rsquo;s ever-evolving gig economy: it facilitates the enforcement of arbitration agreements by companies utilizing the services of staffing companies that have an arbitration program in place. Companies that retain staffing companies should review the staffing companies&rsquo; employment agreements, to determine whether the company can avail itself of those agreements when responding to legal claims.</p> http://www.seyfarth.com:80//publications/OMM052317-LE President Trump's Budget Includes Proposed Merger of EEOC and OFCCP http://www.seyfarth.com:80//publications/OMM052317-LE Tue, 23 May 2017 00:00:00 -0400 <p> <em>Seyfarth Synopsis:&nbsp; On May 23, 2017, the White House released its proposed budget for the 2018 Fiscal Year.&nbsp; Included in the proposal, which would impose deep cuts to many programs administered by the Department of Labor, was a proposal to merge the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;)&nbsp; into the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;).&nbsp; The proposed budget states that the goal is to create &ldquo;one agency to combat employment discrimination.&rdquo;</em></p> <p> <strong>What is the Future of the OFCCP?</strong></p> <p> The proposed budget calls for the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) to merge into the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;<em>) </em>and form a single organization by the end of the 2018 fiscal year.&nbsp; The proposed budget states that such a merger will create &ldquo;one agency to combat employment discrimination&rdquo; and that the &ldquo;integration of these two agencies will reduce operational redundancies, promote efficiencies, improve services to citizens and strengthen civil rights enforcement.&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; The proposal provides that the EEOC and the OFCCP will work together to &ldquo;collectively coordinate the transition.&rdquo;&nbsp; Even before the merger would take effect, the proposed budget would reduce OFCCP&rsquo;s current budget by $17 million and would cut the number of full time employees from 581 in the 2016 fiscal year to 440 in the 2018 fiscal year.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> <strong>What is the Future of Affirmative Action in Employment?</strong></p> <p> Currently, OFCCP enforces Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;) applicable to federal contractors and subcontractors.&nbsp; Under these requirements, those employers doing business with the government are required to engage in affirmative action and to refrain from discrimination based on a myriad of protected characteristics including race/ethnicity, sex, disability status, veteran status, sexual orientation and gender identity.&nbsp; In contrast, the EEOC has no authority to impose affirmative action requirements and instead, its primary mission is to investigate and resolve non-discrimination laws under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act of 1967, among other federal employment discrimination laws.&nbsp;</p> <p> If the EEOC and OFCCP were to be merged into one combined agency as set forth in the proposed budget, EO 11246 would need to be amended to delegate the enforcement authority which currently rests with the Department of Labor to the EEOC.&nbsp; Likewise, Congressional action would be required to transfer enforcement authority to the EEOC for Section 503 and VEVRAA outside the budgetary process.&nbsp;&nbsp;&nbsp;</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> As noted, the proposal to combine the EEOC and OFCCP is part of the budget from the White House which includes many other proposed changes.&nbsp; The budget will need to be approved by Congress before it becomes effective.&nbsp;</p> <p> The issue was specifically addressed as part of testimony before the House Subcommittee on Workplace Protections, entitled &ldquo;The Need for More Responsible Regulatory and Enforcement Policies at the EEOC,&rdquo; that happened to take place today, the same day the White House submitted its budget to Congress.&nbsp; Interestingly, both the employer community and civil rights activists seem to be on the same side in opposing the proposed merger.&nbsp;&nbsp; When asked about the proposed merger both Camille Olson, a Partner with Seyfarth Shaw, testifying on behalf of the U.S. Chamber of Commerce, and Todd Cox, Director of Policy for the NAACP Legal Defense and Education Fund, Inc., opposed the merger on the grounds that the EEOC and the OFCCP are vastly different organizations with different operational goals, missions and approaches.&nbsp;</p> <p> We will continue to monitor the White House&rsquo;s proposal to merge the EEOC and OFCCP and will provide updates as they occur.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Department of Labor Fiscal Year 2018 Proposed Budget, pg. 23 <em>available at</em> <a href="https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/lab.pdf">https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/lab.pdf</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The budget proposal would continue funding the EEOC at its current level through the 2018 fiscal year</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/OMM052317 How Not to Prove a Mark is Generic. Use of GOOGLE as a Verb Does Not Constitute Genericide http://www.seyfarth.com:80//publications/OMM052317 Tue, 23 May 2017 00:00:00 -0400 <div> <strong>By Roberto S. Terzoli, IP Trademark Specialist</strong></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>Using a trademark as a verb cannot alone render a trademark generic.</em></div> <div> &nbsp;</div> <div> The Ninth Circuit Court of Appeals explained recently in <em>Elliot v. Google</em> that use of the GOOGLE trademark as a verb, &ldquo;e.g. google it,&rdquo; does not alone cause the mark to become generic. &nbsp;The question presented was whether the public&rsquo;s use of &ldquo;google&rdquo; as a verb referred to the Google search engine, or whether it was directed more generally to the covered goods or services, i.e. search engines. In affirming a grant of summary judgment in Google&rsquo;s favor, the Court emphasized the necessary and inherent link between genericide and a particular type of good or service and that trademarks can be used in forms other than adjectives without being rendered generic.&nbsp;</div> <div> &nbsp;</div> <div> Plaintiffs relied on their argument that verb use constitutes generic use as a matter of law and therefore the lower court&rsquo;s ruling in Google&rsquo;s favor was inappropriate. The Court, however, disagreed with this proposition, focusing on two points that Plaintiffs failed to recognize: first, that a claim for genericide &ldquo;must always&rdquo; relate to a particular type of good or service; and second, that verb use does not automatically constitute generic use.</div> <div> &nbsp;</div> <div> A trademark can be cancelled under Section 14(3) of the Lanham Act (15 U.S.C. &sect; 1064(3)) if, <em>inter alia</em>, the trademark becomes a generic name for the type of goods or services rather than an indicator of the source of such goods or services. To determine whether a mark is generic, the Act sets forth the &ldquo;primary significance test&rdquo;: whether the primary significance of the registered mark to the relevant public has become the generic name for the goods or services. The Court emphasized that the recitation of &ldquo;goods or services&rdquo; throughout the Lanham Act required that the primary significance test be interpreted as requiring that the use supporting a claim of genericide relate to the particular type of good or service for which the mark was registered.&nbsp;</div> <div> &nbsp;</div> <div> Thus, the Court emphasized the distinction between the use of &ldquo;google&rdquo; to generally identify search engines, on one hand, and the use of &ldquo;google&rdquo; to generally describe the act of searching the internet, on the other, in holding that even if Plaintiffs could prove that the majority of the relevant public did use &ldquo;google&rdquo; as a verb in a generic sense, this fact alone is insufficient to support a jury finding of genericism.&nbsp;</div> <div> &nbsp;</div> <div> As to the second point regarding verb use of a mark, the Court reasoned that in enacting the primary significance test &nbsp;&ldquo;Congress has instructed us that a speaker might use a trademark as a noun and still use the term in a source-identifying trademark sense.&rdquo; The Court also emphasized that it would not interpret what customers were thinking or the meaning they had when they used a mark as something other than an adjective, i.e. whether they used the mark to generically reference a type of good or service or whether they had a specific source in mind. The burden of proving that mindset remains with the plaintiff. &nbsp;The Court made the point that it was not holding that verb use is &ldquo;categorically irrelevant&rdquo; to a genericness determination, only that the evidence presented by the plaintiffs did not meet their burden. <span class="Apple-tab-span" style="white-space:pre"> </span></div> <div> &nbsp;</div> <div> In forming its decision, the Ninth Circuit appears to embrace a new classification system for verb use into two types: &ldquo;discriminate verbs&rdquo; that are used with a particular brand in mind; or &ldquo;indiscriminate verbs&rdquo; that are used generically without a brand in mind. The Court noted that these novel terms, coined by the district court, &ldquo;properly frame the inquiry as to whether the speaker had a particular source in mind.&rdquo;</div> <div> &nbsp;</div> <div> The Court dismissed plaintiffs arguments relating to the district court&rsquo;s weighing of evidence. The Court held that the evidence presented by Plaintiff in the form of surveys, experts, and media as well as consumer use (the Court highlighted rapper T-Pain&rsquo;s use of the phrase &ldquo;google [his] name&rdquo; in a song) merely bolstered the claim that &ldquo;google&rdquo; was used as a verb. As noted, this alone is not enough to support a finding of genericism by a jury. &nbsp;Similar arguments were dismissed by the Court as unsupportive of the ultimate question.</div> <div> &nbsp;</div> <div> <strong>Takeaways:&nbsp;</strong></div> <div> &nbsp;</div> <ul> <li> Use of a mark as a verb does not automatically render a mark generic, although it is possible that it may be used as evidence of genericism.<span class="Apple-tab-span" style="white-space:pre"> </span><br /> &nbsp;</li> <li> The Ninth Circuit may have a new classification system when analyzing whether verb use is relevant to a genericness inquiry, namely whether the use is discriminate or indiscriminate.<br /> &nbsp;</li> <li> Not all uses of a mark as something other than as an adjective &ndash; such as a noun or verb &ndash; relate to a genericness inquiry; what matters is what the relevant public is thinking when using a mark in such fashion.</li> </ul> http://www.seyfarth.com:80//publications/OMM052317-EB DOL Fiduciary Rule To Become Effective in June http://www.seyfarth.com:80//publications/OMM052317-EB Tue, 23 May 2017 00:00:00 -0400 <div> In early April 2017, the Department of Labor (DOL) extended the applicability date of their final rule defining who serves as a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) (known as the &ldquo;Fiduciary Rule&rdquo;) to June 9, 2017. See our earlier discussion of that action <a href="http://www.seyfarth.com/publications/OMM040617-EB">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> In an opinion piece in the Wall Street Journal published yesterday, Secretary of Labor Alexander Acosta announced that the DOL Fiduciary Rule will not be further delayed past June 9th, noting there is &ldquo;no principled legal basis to change the June 9 date while we seek public input.&rdquo; &nbsp;</div> <div> &nbsp;</div> <div> The delay to June 9th included certain companion pieces to the Fiduciary Rule which provide exemptions to the prohibited transaction restrictions under ERISA&shy;&mdash;the Best Interest Contract Exemption and the Principal Contract Exemption. The April extension made it clear that fiduciaries relying on those exemption only had to comply with the impartial conduct standards through the end of the 2017 year. The remaining conditions would become effective January 1, 2018. However, Secretary Acosta observed that those pieces might be changed after the public notice and comment period, which has been the subject of speculation.&nbsp;</div> <div> &nbsp;</div> <div> Also published yesterday, the DOL issued <a href="https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2017-02">Field Assistance Bulletin 2017-02</a> regarding their temporary enforcement policy on the Fiduciary Rule and companion <a href="https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/coi-transition-period.pdf">FAQs</a>.</div> http://www.seyfarth.com:80//publications/launey-whang-authored-article-daily-journal-052317 Kristina Launey and Daniel Whang authored an article in the Daily Journal http://www.seyfarth.com:80//publications/launey-whang-authored-article-daily-journal-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Kristina Launey and Daniel Whang authored an article &ldquo;Concerns about proposed &lsquo;utilization scheduling&rsquo; bill&rdquo; on May 23 in the Daily Journal on how attentions have turned this year to what they call utilization scheduling - requiring that employers offer additional hours to existing part-time employees before hiring additional employees or temporary workers.</p> http://www.seyfarth.com:80//news/rodriguez-joins-hias-board-052317 Leon Rodriguez Joins HIAS Board of Directors http://www.seyfarth.com:80//news/rodriguez-joins-hias-board-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s Leon Rodriguez, partner in the firm&rsquo;s Labor and Employment department, has joined the board of directors of HIAS, the global Jewish nonprofit that protects refugees.&nbsp;</p> <p> &ldquo;In this time where those working to support the growing number of refugees worldwide are meeting stronger and stronger headwinds, it is humbling to be part of this truly distinguished class of new board members,&rdquo; said Rodriguez. &nbsp;</p> <p> Rodriguez provides regulatory, litigation and strategic advisory services to clients in areas including immigration, health care, and government/congressional investigations. He served as the most recent director of United States Citizenship and Immigration Services (&ldquo;USCIS&rdquo;) &nbsp;from 2014 to 2017. &nbsp;</p> <p> View the HIAS press release <a href="https://www.hias.org/leon-rodriguez-joins-lana-alman-gary-hirschberg-ilan-rosenberg-and-ari-rudolph-newest-members-hias">here</a> for more details.</p> http://www.seyfarth.com:80//news/olson-quoted-politicopro-052317 Camille Olson quoted in PoliticoPro http://www.seyfarth.com:80//news/olson-quoted-politicopro-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 23 story &ldquo;Democrats, businesses see problems with Trump&#39;s EEOC proposal&rdquo; from PolitcoPro on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson criticized part of the President&rsquo;s budget proposal to combine EEOC and OFCCP into one agency to tackle workplace discrimination.</p> http://www.seyfarth.com:80//news/olson-quoted-the-hill-052317 Camille Olson quoted in The Hill http://www.seyfarth.com:80//news/olson-quoted-the-hill-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 23 story &ldquo;Industry groups: Scrap rule for reporting employee pay&rdquo; from The Hill on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee on the legality of employers offering internships without compensation. Olson testified that the EEOC underestimated the cost of its reporting rule by $350 million.</p> <p> <a href="http://thehill.com/regulation/pending-regs/334734-industry-to-congress-eeocs-pay-reporting-rule-is-overly-burdensome">Read the full article here.</a></p> http://www.seyfarth.com:80//news/olson-testify-before-house-subcommittee-on-workforce-protections-052217 Camille Olson to Testify Before House Subcommittee on Workforce Protections http://www.seyfarth.com:80//news/olson-testify-before-house-subcommittee-on-workforce-protections-052217 Mon, 22 May 2017 00:00:00 -0400 <p> On Thursday, May 23, Seyfarth Shaw LLP partner Camille Olson will testify before the U.S. House Subcommittee on Workforce Protections on behalf of the U.S. Chamber of Commerce, where she serves as Chairwoman of its equal employment opportunity policy subcommittee. The House Education and the Workforce Subcommittee hearing, &ldquo;The Need for More Responsible Regulatory and Enforcement Policies at the EEOC,&rdquo; will begin at 10 a.m. ET; more details can be found <a href="http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401651">here</a>. Camille&rsquo;s written testimony will be available on Tuesday, May 23 and the hearing will also be <a href="https://www.youtube.com/watch?v=FCyI26Krr0w">webcast here</a>.</p> <p> Throughout the last decade, Olson has regularly appeared before the United States Senate, the United States House of Representatives, the EEOC, and the United States Department of Labor on her own behalf (as a recognized expert in various fields), and on behalf of the United States Chamber of Commerce and the Society for Human Resource Management. For nearly 30 years, Olson has represented companies nationwide in all areas of litigation, with emphasis on employment discrimination and harassment, wage and hour matters, and independent contractor status.&nbsp;</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> <strong>Contact:&nbsp;</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/weiss-interviewed-wgntv-052217 Philippe Weiss interviewed by WGN-TV http://www.seyfarth.com:80//news/weiss-interviewed-wgntv-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by WGN-TV for a story titled &ldquo;Your Money Matters: Warm weather and dress code disasters&rdquo; on May 22 on some simple strategies to manage workplace attire issues.</p> <p> <a href="http://wgntv.com/2017/05/22/your-money-matters-warm-weather-and-dress-code-disasters/">Listen to the interview here.</a></p> http://www.seyfarth.com:80//news/weiss-quoted-american-lawyer-052217 Philippe Weiss quoted by American Lawyer http://www.seyfarth.com:80//news/weiss-quoted-american-lawyer-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Philippe Weiss was quoted by American Lawyer on May 22 in an article titled &ldquo;The Power Look: Tank Tops, Tattoos and Flip-Flops&rdquo; on just how far can you push a summertime dress code before you jeopardize your professional credibility. Weiss said that just how casual attorneys dress is very much dependent on each firm&#39;s culture.</p> http://www.seyfarth.com:80//news/bizar-quoted-bloomberg-bna-052217 David Bizar quoted by Bloomberg BNA http://www.seyfarth.com:80//news/bizar-quoted-bloomberg-bna-052217 Mon, 22 May 2017 00:00:00 -0400 <p> David Bizar was quoted in a May 22 story &ldquo;U.S.-PHH Tag Team Raises Stakes in Test of CFPB&rsquo;s Constitutionality&rdquo; from Bloomberg BNA on the Trump administration&rsquo;s unusual but not unprecedented decision to weigh in against the CFPB. Bizar said that if the D.C. Circuit adopts the Department of Justice&rsquo;s position and rejects the CFPB&rsquo;s, there likely won&rsquo;t be an appeal to the Supreme Court.&nbsp;</p> <p> <a href="https://www.bna.com/usphh-tag-team-n73014451313/">Read the full article here.</a></p> http://www.seyfarth.com:80//news/usenheimer-quoted-shrm-052217 Gena Usenheimer quoted in SHRM http://www.seyfarth.com:80//news/usenheimer-quoted-shrm-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Gena Usenheimer was quoted in a May 22 story &ldquo;New York Employers Must Prepare for Paid-Family-Leave Program&rdquo; from SHRM on how workers in the state will be eligible for job-protected leave beginning in January 2018. Usenheimer said that first and foremost, employers and HR professionals should be looking out for updates to the final status of the regulations.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-employers-must-prepare-for-paid-family-leave-program.aspx">Read the full article here.</a></p> http://www.seyfarth.com:80//news/sherman-interviewed-podcast-052217 Andrew Sherman interviewed by Square Peg Round Hole http://www.seyfarth.com:80//news/sherman-interviewed-podcast-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Andrew Sherman was interviewed in a May 22 podcast episode titled &ldquo;The Crisis of Disengagement that has an Effect on Small Business&rdquo; from Square Peg Round Hole on some simple yet insightful observations on how businesses and individuals can stay focused on what they do.</p> <p> <a href="http://sprhpodcast.com/ep-018-the-crisis-of-disengagement-that-has-an-effect-on-small-business/">Listen to the full interview here.</a></p> http://www.seyfarth.com:80//publications/LR052217 Between a Rock and a Hard Place: NLRB Finds Employer Violated NLRA in Implementing ACA http://www.seyfarth.com:80//publications/LR052217 Mon, 22 May 2017 00:00:00 -0400 <p> On May 16, 2017, Chairman Miscimarra, Member Pearce, and Member McFerran upheld an Administrative Law Judge&rsquo;s determination that Western Cab Company violated Section 8(a)(5) of the NLRA by failing to give notice and an opportunity to bargain to the United Steelworkers during its 2014 implementation of the Patient Protection and Affordable Care Act (&ldquo;ACA&rdquo;).</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/05/22/between-a-rock-and-a-hard-place-nlrb-finds-employer-violated-nlra-in-implementing-aca/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=81d6a2ebcf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-81d6a2ebcf-73179549">click here</a>.</p> http://www.seyfarth.com:80//publications/MA052217-LE If Pain, Yes Gain—Part XXX: Pittsburgh Sick Time Law Barely Hanging on By a Thread After Appellate Court Decision http://www.seyfarth.com:80//publications/MA052217-LE Mon, 22 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:</em> <em>On May 17, 2017, a panel of judges on the Commonwealth Court of Pennsylvania struck a second blow to Pittsburgh&rsquo;s Paid Sick Days Act, leaving the Act&rsquo;s future in serious jeopardy</em>. &nbsp;</p> <p> The Commonwealth Court of Pennsylvania&rsquo;s May 17, 2017 <a href="https://dlbjbjzgnk95t.cloudfront.net/0925000/925113/79cd16_5-17-17.pdf">decision</a> on the Pittsburgh Paid Sick Days Act (&ldquo;PSDA&rdquo;)<sup>1</sup>&nbsp;affirmed the Allegheny County Court of Common Pleas&rsquo; December 21, 2015 <a href="http://www.seyfarth.com/dir_docs/publications/Pitt_PSLL_Dec2015.pdf">order</a> invalidating the law which would have required employers to provide paid sick leave to all eligible Pittsburgh employees.&nbsp;</p> <p> Pittsburgh is a &ldquo;home rule charter&rdquo; municipality, meaning its authority to regulate businesses is limited unless expressly provided by statewide statute.<sup>2</sup>&nbsp;The City introduced multiple arguments to overcome its home rule charter status.&nbsp; For instance, the City argued that the PSDA falls within its authority to enact public health regulations pertaining to &ldquo;building codes.&rdquo; The Commonwealth Court rejected this argument as out of context, namely, that the City failed to establish a connection between the PSDA and building codes. &nbsp;</p> <p> The City next argued it has the right to promulgate regulations for the general health of its citizens per the state&rsquo;s Second Class City Code.<sup>3</sup>&nbsp;Once again, the Commonwealth Court disagreed.&nbsp; Specifically, the court noted that the PSDA&rsquo;s imposition of &ldquo;numerous affirmative duties&rdquo; on employers was not expressly authorized by statute, and therefore ran afoul of Pennsylvania&rsquo;s Home Rule Charter Law. &nbsp;</p> <p> Finally, the Commonwealth Court also struck down the Service Employees International Union&rsquo;s argument that public policy justifies the PSDA.&nbsp; The court explained that &ldquo;neither the wisdom nor the purpose of the [PSDA] is material&rdquo; to the issue of whether the City had authority to adopt the PSDA.&nbsp; Due to the Home Rule Charter Law and lack of a state statute explicitly authorizing Pittsburgh to enact the PSDA, the Commonwealth Court found that the City lacks any such authority.</p> <p> While not yet filed, it is likely that the City will appeal the Commonwealth Court&rsquo;s decision to the Pennsylvania Supreme Court. &nbsp;If overturned, the PSDA would require employers with 15 or more employees to provide each eligible employee with one hour of paid sick time for every 35 hours the employee works in Pittsburgh, up to 40 hours (i.e., five days) of paid sick leave per year. &nbsp;Employers with fewer than 15 employees would be required to provide their employees with one hour of sick leave for every 35 hours worked in Pittsburgh, up to 24 hours (i.e., three days) of <u>unpaid</u> sick leave per year. &nbsp;After the law&rsquo;s first anniversary, employers with fewer than 15 employees would be required to provide <u>paid</u> sick leave at the same accrual rate and up to the same 24-hour cap as set forth during the law&rsquo;s inaugural year.&nbsp; For more information on the PSDA, see our previous postings <a href="http://www.seyfarth.com/publications/OMM010516-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA080515-LE">here</a>.</p> <p> While this decision does not affect <a href="http://www.seyfarth.com/publications/MA021715-LE">Philadelphia&rsquo;s paid sick leave ordinance</a>, a similar challenge may await the City of Brotherly Love if Pennsylvania courts ultimately put the PSDA to bed.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for guidance on the PSDA and complying with sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>The PSDA was enacted in August 2015 and was originally scheduled to go into effect on January 11, 2016.</p> </div> <div id="ftn2"> <p> <sup>2</sup>Section 2962(f) of the Home Rule Charter Law states, in relevant part, that &ldquo;[a] municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers,&hellip;except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities.&rdquo;</p> </div> <div id="ftn3"> <p> <sup>3</sup><em>See</em> Act of March 7, 1901, P.L. 20, as amended, 53 P.S. &sect;&sect;23101-23175</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/TS052217 Seyfarth Attorneys to Speak at the Management Association’s 2017 Employment Law Conference http://www.seyfarth.com:80//publications/TS052217 Mon, 22 May 2017 00:00:00 -0400 <p> Join Seyfarth Shaw&rsquo;s Trade Secrets Co-Chair Michael D. Wexler and Partner J. Scott Humphrey at the Management Association&rsquo;s 2017 Employment Law Conference on Thursday, September 28, 2017. Mr. Wexler and Mr. Humphrey will discuss significant developments in Illinois and Congress, such as the Defend Trade Secrets Act, that have changed the landscape of trade secret and restrictive covenant enforcement.&nbsp;</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/seyfarth-attorneys-to-speak-at-the-management-associations-2017-employment-law-conference/">click here</a></p> http://www.seyfarth.com:80//publications/TS051917 Joshua Salinas a Panelist for “Trade Secrets in 2017: Recent Legal Trends and Developments LIVE Webcast” http://www.seyfarth.com:80//publications/TS051917 Fri, 19 May 2017 00:00:00 -0400 <p> Seyfarth attorney Joshua Salinas will serve on a panel for &ldquo;Trade Secrets in 2017: Recent Legal Trends and Developments LIVE Webcast,&rdquo; presented by The Knowledge Group, LLC Live Webcast Series, on May 25, 2017.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/joshua-salinas-a-panelist-for-trade-secrets-in-2017-recent-legal-trends-and-developments-live-webcast/">click here</a></p> http://www.seyfarth.com:80//news/glaser-quoted-shrm-051917 Jeffrey Glaser quoted in SHRM http://www.seyfarth.com:80//news/glaser-quoted-shrm-051917 Fri, 19 May 2017 00:00:00 -0400 <p> Jeffrey Glaser was quoted in a May 19 story &ldquo;Tipped P.F. Chang&#39;s Workers Seek Full Minimum Wage&rdquo; from SHRM on a split in appeals courts on whether tipped workers should receive full minimum wage for related &lsquo;back-of-the-house work&rsquo;. Glaser said that plaintiffs&#39; lawyers sometimes want to latch onto the Field Operations Handbook (FOH) as their silver bullet in these types of cases.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/pf-chang-s-tips-minimum-wage.aspx">Read the full article here.</a></p> http://www.seyfarth.com:80//news/devata-quoted-fortune-051917 Pam Devata quoted in Fortune http://www.seyfarth.com:80//news/devata-quoted-fortune-051917 Fri, 19 May 2017 00:00:00 -0400 <p> Pam Devata was quoted in a May 19 story &ldquo;How AI Is Changing Your Job Hunt&rdquo; from Fortune on how artificial intelligence has come to hiring and how scanning a candidate&rsquo;s social media for information about race, religion, sexual orientation, or political affiliation is illegal and can spark complaints of hiring discrimination. Devata said that it&rsquo;s hard to unring the bell and prove that you didn&rsquo;t use that information in an employment decision.&nbsp;</p> <p> <a href="http://fortune.com/2017/05/19/ai-changing-jobs-hiring-recruiting/">Read the full article here.</a></p> http://www.seyfarth.com:80//publications/dacso-digital-health-leader-051817 Sheryl Dacso authored an article in Digital Health Leader http://www.seyfarth.com:80//publications/dacso-digital-health-leader-051817 Thu, 18 May 2017 00:00:00 -0400 <p> Sheryl Dacso authored an article titled &ldquo;Ethical challenges for healthcare lawyers practising in a digital world&rdquo; on May 18 in Digital Health Leader. This article focuses on the healthcare attorney&rsquo;s role and responsibilities when dealing with a rapidly changing digital world.</p> <p> <a href="http://www.cecileparkmedia.com/digital-health-legal/article_template.asp?Contents=Yes&amp;from=ehlp&amp;ID=410">Read the full article here.</a></p> http://www.seyfarth.com:80//publications/WH051817 Georgia Governor Signs Law Preempting Predictive Scheduling Ordinances http://www.seyfarth.com:80//publications/WH051817 Thu, 18 May 2017 00:00:00 -0400 <p> On May 8, 2017, Governor Nathan Deal signed a law expanding the reach of a pre-existing statute that prohibits Georgia localities from passing ordinances affecting worker pay in Georgia. The amendment is in line with a trend of states&rsquo; laws proactively limiting counties&rsquo; and cities&rsquo; abilities to promulgate ordinances that exceed worker protections that state and federal laws provide. \</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/georgia-law-preempting-predictive-scheduling-ordinances/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=739bbee322-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-739bbee322-73179569">click here</a></p> http://www.seyfarth.com:80//publications/mccoy-authored-daily-journal Ryan McCoy authored an article in the Daily Journal http://www.seyfarth.com:80//publications/mccoy-authored-daily-journal Thu, 18 May 2017 00:00:00 -0400 <p> Ryan McCoy authored an article on May 18 titled &ldquo;Local cannabis laws and drug testing pitfalls&rdquo; in the Daily Journal. This article discusses why California employers must consider how employers can enforce their legitimate interest in maintaining a safe, drug-free work environment, while also respecting California&rsquo;s strong public policy in favor of an employee&rsquo;s right to privacy guarding against workplace drug tests.</p> http://www.seyfarth.com:80//publications/EL051817 Seventh Circuit Blazes Truck Driver’s Failure to Hire Claims http://www.seyfarth.com:80//publications/EL051817 Thu, 18 May 2017 00:00:00 -0400 <p> Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court&rsquo;s granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner&rsquo;s claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/seventh-circuit-blazes-truck-drivers-failure-to-hire-claims/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3be44e3d2c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3be44e3d2c-73179553">click here</a>.</p> http://www.seyfarth.com:80//publications/TBT051817 The Week in Weed: May 19, 2017 http://www.seyfarth.com:80//publications/TBT051817 Thu, 18 May 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <ul> <li> Senators from both parties try to ease banking for marijuana businesses<br /> (Reuters UK: Financial Services and Real Estate, 18 May 2017)</li> </ul> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/the-week-in-weed-may-19-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=1560c8fba8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-1560c8fba8-73179537">click here</a>.</p> http://www.seyfarth.com:80//publications/CP051717 Video Killed the Radio Star: Will Automation Kill the Labor Force? http://www.seyfarth.com:80//publications/CP051717 Wed, 17 May 2017 00:00:00 -0400 <p> Many of us remember our neighborhood video store closing its doors, forever changing the way we select our Friday night entertainment. Today, we can stream a new movie release from the comfort of our own home or interact with a large red kiosk after picking up groceries at the local supermarket. Automation seems inevitable and appears to be spanning most industries.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/05/17/video-killed-the-radio-star-will-automation-kill-the-labor-force/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=30900fb2c0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-30900fb2c0-73179533">click here</a>.</p> http://www.seyfarth.com:80//publications/winner-authored-article-PREA-quarterly-051717 Rob Winner authored an article in PREA Quarterly http://www.seyfarth.com:80//publications/winner-authored-article-PREA-quarterly-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Rob Winner authored an article on May 17 titled &ldquo;EB-5 at a Crossroads (Again): Implications for Real Estate Investments&rdquo; in PREA Quarterly reviewing the EB-5 Regional Center Immigrant Investor program&rsquo;s impact on real estate development and investment, especially in light of other regulations such as Basel III that may have the effect of further limiting real estate investment.</p> http://www.seyfarth.com:80//publications/WSE051717 OSHA Proposes to Delay Electronic Submission of Injury and Illness Records http://www.seyfarth.com:80//publications/WSE051717 Wed, 17 May 2017 00:00:00 -0400 <p> OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/breaking-news-osha-proposes-to-delay-electronic-submission-of-injury-and-illness-records/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=6ea2de5f30-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-6ea2de5f30-73179581">click here</a></p> http://www.seyfarth.com:80//publications/milligan-and-salinas-author-article-California-Lawyer Robert Milligan and Joshua Salinas author an article in <i>California Lawyer</i> http://www.seyfarth.com:80//publications/milligan-and-salinas-author-article-California-Lawyer Wed, 17 May 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored an article on May 17 titled &quot;Non-Compete Agreements&rdquo; in <em>California Lawyer</em>. Although California is notorious for outlawing non-competition agreements, the authors explore the limited exceptions which is critical for companies that utilize employment agreements to protect trade secrets and other valuable business assets.</p> <p> <a href="http://www.callawyer.com/2017/05/non-compete-agreements/">Read the full article here.</a></p> http://www.seyfarth.com:80//news/ADA-title-III-report-referenced-mortgage-orb-051717 Seyfarth Shaw’s <i>ADA Title III</i> report referenced in <i>Mortgage Orb</i> http://www.seyfarth.com:80//news/ADA-title-III-report-referenced-mortgage-orb-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s <em>ADA Title III</em> report was referenced in a May 17 story &ldquo;The Mortgage Industry&rsquo;s Next Headache: Website Accessibility Requirements&rdquo; from <em>Mortgage Orb</em> on the new focus on website accessibility in the mortgage industry. The report says that the number of law suits filed under Title III of the ADA, targeting accessibility of all kinds (buildings, as well as websites), increased by 37% in 2016 compared with an 8% year-over-year increase the year before.&nbsp;</p> <p> <a href="http://www.mortgageorb.com/mortgage-industrys-next-headache-website-accessibility-requirements">Read the full article here.</a></p> http://www.seyfarth.com:80//news/milligan-quoted-dice-051717 Robert Milligan quoted in <i>Dice</i> http://www.seyfarth.com:80//news/milligan-quoted-dice-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in a May 17 story &ldquo;Avoiding Landmines When Interviewing with Rivals&rdquo; from <em>Dice</em> on the potential problems you can encounter if you share too much information or inadvertently breach a non-disclosure agreement. Milligan said that it&rsquo;s not uncommon for a rapidly growing company to outgrow its compliance apparatus and that, sometimes, the interviewer hasn&rsquo;t been properly trained on the questions they can and can&rsquo;t ask.</p> <p> <a href="http://insights.dice.com/2017/05/17/avoiding-landmines-job-interview-rivals/">Read the full article here.</a></p> http://www.seyfarth.com:80//news/hendrickson-quoted-associated-press-051717 Christine Hendrickson quoted by the Associated Press http://www.seyfarth.com:80//news/hendrickson-quoted-associated-press-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in a May 17 story &ldquo;What&#39;s Your Past Salary? Lawmakers Want to Ban the Question&rdquo; by the <em>Associated Press</em> on how the job interview question &mdash; how much did you make at your last job? &mdash; is getting banned in some parts of the country. Hendrickson said that she would not be surprised if we see other states and cities consider it.</p> <p> <a href="https://www.nytimes.com/aponline/2017/05/17/business/ap-us-on-the-money-salary-history-bans-qa.html?_r=0">Read the full article here.</a></p> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-bna-051717 Brett Bartlett quoted by Bloomberg BNA http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-bna-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in a May 17 story &ldquo;Blurry, Evolving Joint-Employment Guidance Tough for Employers to Navigate, Experts Say&rdquo; by Bloomberg BNA on how broad federal and judicial interpretations of joint employment seem poised to revert to earlier, narrower definitions, but in the interim employers are struggling to navigate varied guidance on what the relationship means and how it is determined. Bartlett said that risks arising under labor and employment laws, and particularly those affecting employee pay, increase and become perceptively exaggerated when the guardrails are blurry, which is the case with current wage and hour law regarding joint employment.</p> <p> <a href="https://www.bna.com/blurry-evolving-jointemployment-n73014451080/">Read the full article here.</a></p> http://www.seyfarth.com:80//news/milligan-quoted-los-angeles-times-051617 Robert Milligan quoted in the <i>Los Angeles Times</i> http://www.seyfarth.com:80//news/milligan-quoted-los-angeles-times-051617 Tue, 16 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;As Uber and Waymo duke it out in court, the ugly battle over driverless cars is underway,&quot; a May 16 story from the <em>Los Angeles Times</em> on the news that a judge referred Waymo&rsquo;s allegations that Uber stole its proprietary technology to the U.S. Department of Justice for investigation. Milligan said that you don&#39;t normally see a judge make a criminal referral in a trade secrets case.</p> <p> <a href="http://www.latimes.com/business/autos/la-fi-hy-uber-waymo-fight-20170515-story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/TBT051617 Marijuana Farm Employees Face Numerous Health Hazards http://www.seyfarth.com:80//publications/TBT051617 Tue, 16 May 2017 00:00:00 -0400 <p> NIOSH has released a study on the safety and health hazards posed by marijuana growing farms. &nbsp;Of concern for employers are the risks for musculoskeletal disorders, as well as dermal contact exposure to both THC and Botrytis cinerea, a plant pathogen.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/marijuana-farm-employees-face-numerous-health-hazards/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=fa1f0d8fc8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-fa1f0d8fc8-73179537">click here</a>.</p> http://www.seyfarth.com:80//publications/ERISA051517 Grounding Deferential Review in California – No Preemption for Discretionary Clause Ban http://www.seyfarth.com:80//publications/ERISA051517 Mon, 15 May 2017 00:00:00 -0400 <p> In a decision with wide ranging implications, the Ninth Circuit has ruled that a discretionary clause in an employer drafted plan document is subject to, and invalidated by, California&rsquo;s insurance regulation banning discretionary clauses in insured plans.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/15/grounding-deferential-review-in-california-no-preemption-for-discretionary-clause-ban/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=313268567f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-313268567f-73050525">click here</a></p> http://www.seyfarth.com:80//publications/CDL051517 WannaCry Ransomware Attack: What Happened and How to Address http://www.seyfarth.com:80//publications/CDL051517 Mon, 15 May 2017 00:00:00 -0400 <p> Recently, a widespread global ransomware attack has struck hospitals, communication, and other types of companies and government offices around the world, seizing control of affected computers until the victims pay a ransom. &nbsp;This widespread ransomware campaign has affected various organizations with reports of tens of thousands of infections in as many as 99 countries, including the United States, United Kingdom, Spain, Russia, Taiwan, France, and Japan. &nbsp;The software can run in as many as 27 different languages. &nbsp;The latest version of this ransomware variant, known as <em>WannaCry, WCry</em>, or <em>Wanna Decryptor</em>, was discovered the morning of May 12, 2017, by an independent security researcher and has spread rapidly.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/wannacry-ransomware-attack-happened-address/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=e8e273d94a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-e8e273d94a-72857025">click here</a></p> http://www.seyfarth.com:80//publications/EA051517-France Macron: The Winding Road to Labour Reforms http://www.seyfarth.com:80//publications/EA051517-France Mon, 15 May 2017 00:00:00 -0400 <div> On 14 May 2017, French President-elect Emmanuel Macron with a strong 66% majority officially started his five year mandate. His first duty was to appoint a Prime Minister, Edouard Philippe, a Conservative, who will now form a new government. &nbsp;Shortly thereafter, however, the Parliamentary elections of 11 and 18 June 2017 may lead to a government reshuffle to reflect the new composition of Parliament.</div> <div> &nbsp;</div> <div> Employment and Labour is one of the three key focus areas for President Macron. He has pledged to simplify French laws, reform the labour market, and show France is open to business. Macron widely communicated his ambitious programme during his campaign. As he prepares to move into the Presidential Palace, what are the potential reforms that multinationals employing staff in France or companies considering opening for business in France should expect? The overview that follows is based on Macron&rsquo;s official programme, to which we added our comments for background purposes.</div> <div> &nbsp;</div> <div> <strong>Employment reforms - Mixed messages to employers and employees</strong></div> <div> &nbsp;</div> <div> Macron has vowed to make French employment laws more business-friendly, and this is clearly apparent from the following proposals:</div> <div> &nbsp;</div> <ul> <li> Capping damages granted to employees for unfair dismissal claims. By introducing an upper and a lower limit for such damages, the cost of redundancies will be more predictable. Currently, damages are uncapped, and the published guidelines can go up to 24 months&rsquo; salary on top of notice period and statutory indemnity.</li> <li> Cutting payroll taxes on overtime. A similar measure on voluntary overtime was put in place by Conservative President Sarkozy in 2007 under the slogan &ldquo;Work More to Earn More&rdquo;, but removed by Fran&ccedil;ois Hollande as soon as he came into power. In practice, given the cost of payroll taxes, employees&rsquo; net salary was not proportional to the number of hours worked. The reform would hopefully aim to correct this flaw and encourage productivity.&nbsp;</li> <li> Enabling employers to depart from the mandatory minimum protection under the applicable national collective agreement by signing a collective agreement at company or workplace level in areas such as working time, minimum wage, and overtime &nbsp;rates. This was already introduced by the 2016 Macron Law, however, employers still need to negotiate with employee representatives or unions, not just introduce new policies.</li> <li> Introduce a two-strike rule so employers who, on a single occasion, slip up on tax filings or payments are just reminded, not penalised.</li> </ul> <div> &nbsp;</div> <div> There are, however, a number of reforms that will be less pleasing to employers, and are less obvious as to how they will make the French labour market more competitive, such as:</div> <div> &nbsp;</div> <ul> <li> Capping the duration of inbound international assignments to France to one year. &nbsp;Thereafter, employees will need to be on a local French contract. Macron also intends to renegotiate the EU Posted Workers Directive for France to reduce the number of employees working in France but remaining on their home payroll, and not being fully subject to French labour laws;&nbsp;</li> <li> Taxing employers who frequently use temporary contracts instead of permanent employment contracts through an additional levy at company level;</li> <li> Publishing on a &ldquo;shame list&rdquo; the name of companies who do not comply with equal pay. This will force companies to focus more actively on their data, and may in the short term increase salary costs, red tape and lead to a negative public image, but if properly managed could be positive long term;&nbsp;</li> <li> Reducing payroll taxes for employees on minimum wage (currently 1480 Euros per month), and providing for the payment of a 13th month bonus;&nbsp;</li> <li> Increasing employees&rsquo; net salary by lowering the amount of employees&rsquo; contributions, e.g. an employee currently earning a monthly salary of 2,200 Euros will earn an additional 500 Euros net a year. This measure will not reduce employment costs in France for employers. Typically total payroll taxes in France amount to around 70% of gross salary before income tax (compared with around 20% in the UK for a similar level of pay);&nbsp;</li> <li> Removing the tax credit for research programmes in France, which have in the past proved popular in the Pharmaceutical and Tech industries. This reform is to balance the books with the reduced taxes on low salaries;&nbsp;</li> <li> Extending unemployment benefits to all &lsquo;workers&rsquo; such as independent contractors, entrepreneurs or employees who resign from their job. Such measures, which are likely to be very popular, may impact employee retention and ultimately push up the cost of employment for employers, though Macron also announced his intention to restrict both the duration and the conditions under which unemployment benefits are paid out.</li> </ul> <div> &nbsp;</div> <div> <strong>What to expect next?</strong></div> <div> &nbsp;</div> <div> Employers should brace themselves for changes in the employment and labour law arena. However, at this stage nothing is set in stone, and the reforms may be slow and more modest than as described above. &nbsp;France does not have the equivalent of a US &ldquo;Presidential Decree&rdquo;, so Macron and his government will need to get the Parliament&rsquo;s buy in. The famous &ldquo;Article 49.3&rdquo; process, which enables a government to force its programme through Parliament without lengthy debates, will be a valuable weapon; however, when triggered in the absence of a majority vote, the government would need to be dissolved, so it is a double-edged &nbsp;sword. Last but not least, two additional considerations are of significant importance in France: &ldquo;the power of the street&rdquo;, i.e. strikes and demonstrations coordinated by unions that can bring France to a halt for weeks or months; and the Constitutional Council, which can annul any law deemed unconstitutional. Macron has already experienced the annulment of his &ldquo;Macron law&rdquo; on 23 articles including the capping of dismissal damages in August 2015.</div> http://www.seyfarth.com:80//publications/WLS051517 The trend is your friend: why enterprise bargaining is down http://www.seyfarth.com:80//publications/WLS051517 Mon, 15 May 2017 00:00:00 -0400 <p> Enterprise bargaining is down. That&rsquo;s the big call out from the Department of Employment Report on Enterprise Bargaining February 2017. Comparing private sector agreement numbers from 2014 there is a reduction by a third overall, with close to 50% less in retail and construction and around 20% in most sectors.</p> <p> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/05/why-enterprise-bargaining-is-down/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=070dba7ac0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-070dba7ac0-73050585">click here</a></p> http://www.seyfarth.com:80//news/grossenbacher-quoted-SHRM-051517 Karla Grossenbacher quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/grossenbacher-quoted-SHRM-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in &quot;Reviewing Employee E-Mails: When You Should, When You Shouldn&#39;t,&quot; a May 15 story from <em>SHRM </em>on whether an employer should view the contents of personal e-mail accounts on company-owned computers. Grossenbacher said that state laws addressing invasion of privacy may forbid an employer from intruding into the private e-mails of an employee if that intrusion would be &quot;highly offensive to a reasonable person.&quot;</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/reviewing-employee-e-mails-when-you-should-when-you-shouldnt.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-law360-051517 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;3 Employer Takeaways From The High Court&#39;s FAA Ruling,&quot; a May 15 story from <em>Law360</em> on the U.S. Supreme Court&rsquo;s decision affirming that the Federal Arbitration Act blocks states from making arbitration agreements harder to enforce than other contracts. Maatman said that it sure looks like they&rsquo;re talking in terms of a very pro-arbitration stance, so his sense is this may well foreshadow what&rsquo;s going to occur in the late fall on that trilogy of cases.</p> http://www.seyfarth.com:80//publications/presidential-pulse Presidential Pulse http://www.seyfarth.com:80//publications/presidential-pulse Mon, 15 May 2017 00:00:00 -0400 <table border="0" cellpadding="2" cellspacing="2" style="width: 570px; height: 314px;"> <tbody> <tr> <td colspan="1" rowspan="1" style="text-align: center;"> <img alt="Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/CrainPresPulseBanner.png" style="width: 500px; height: 172px;" title="Mergers &amp; Acquisitons Header" /></td> </tr> <tr> </tr> <tr> </tr> <tr> <td> <table border="0" cellpadding="2" cellspacing="2" style="width: 608px; height: 890px;"> <tbody> <tr> <td style="width: 260px; vertical-align: top;"> <p> &nbsp;</p> <p> <em>Welcome to Seyfarth Shaw&rsquo;s Presidential Pulse Digest, a round-up of analysis by Seyfarth&rsquo;s leading policy team on the business impact of President Donald Trump&rsquo;s policy agenda. President Trump is following through rapidly on his campaign pledge to immediately overhaul, overturn and eliminate a long list of federal laws and regulations. The political, legal and business ramifications of President Trump&rsquo;s new administration are being felt by businesses and individuals across the United States and around the world.&nbsp;</em></p> <p> <em>Our attorneys will continue to monitor these developments and will keep you informed of the impact of these changes. Subscribe by clicking the button below to receive the Presidential Pulse Digest.</em></p> <p> &nbsp;</p> <div style="text-align: center;"> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=jnClo_aWrJA_LJhZLwuUI798M7uWfIc1XNAzdJz9p2ifRCWrtSPNOdbL9zagrSol" target="_blank"><img alt="Subscribe to Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/RedSubscribeButton.jpg" style="width: 165px; height: 40px;" /></a></p> <p> &nbsp;</p> <div> <hr /> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">OSHA &ldquo;Removes&rdquo; Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Workplace Safety and Environmental Law Alert Blog - May 9, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court&rsquo;s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.environmentalsafetyupdate.com/investigationsinspections/osha-removes-late-term-rule-which-allowed-osha-to-cite-injury-recordkeeping-violations-going-back-five-years/">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">House Passes Modified Version of AHCA - Bill to Proceed to Senate</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Health Care Reform Management Alert - May 5, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On May 4th, House Republicans were finally able to pass a modified version of the American Health Care Act (&ldquo;AHCA&rdquo;) on the thinnest of margins. To muster the votes, the Republicans had to make a series of tweaks to the bill that were requested by both the conservative Freedom Caucus as well as the more moderate Tuesday Group. Most notably, the AHCA (as modified) would permit states to opt-out of the Affordable Care Act&rsquo;s (ACA&rsquo;s) community rating and essential health benefits (EHB) requirements. To minimize the potential impact on persons with pre-existing condition exclusions (who would likely pay more in the absence of these standards), the AHCA allocates billions of dollars that states may use to establish high risk pools. The bill now proceeds to the Senate where it faces additional challenges is what is typically a more independent, deliberative legislative body.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/HCRMA050517">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Cash Now or Paid Time Off Later? House Passes FLSA Amendment to Permit Private Sector Comp Time</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Wage &amp; Hour Litigation Blog - May 5, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On May 2, 2017, the House of Representatives passed a bill amending the Fair Labor Standards Act to permit private employees to choose to take paid time off instead of monetary overtime compensation when working more than 40 hours in one week. Passed along party lines in the House, the bill would still need to pass the Senate, making its future somewhat uncertain. Should the Senate approve it, the Trump Administration has already signaled its support for the bill.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.wagehourlitigation.com/overtime/cash-now-or-paid-time-off-later/?utm_source=Seyfarth%20Shaw%20-%20Wage%20%26%20Hour%20Litigation&amp;utm_campaign=5c81a6470b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-5c81a6470b-73050573">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div style="text-align: left;"> <br /> <strong style="text-align: left; color: rgb(0, 52, 121); font-size: 24px;">Acosta Takes the Helm</strong></div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Wage &amp; Hour Litigation Blog - May 4, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em> The Senate confirmed Alexander Acosta as the 27th United States Secretary of Labor. Filling the final post in President Trump&rsquo;s cabinet, Acosta will lead a Department of Labor that has, since inauguration, operated without political leadership in the Secretary role. With Secretary Acosta in place, the DOL now has a leader to advance the new administration&rsquo;s agenda. Here, we offer a brief introduction to Secretary Acosta, as well an overview of the action and opportunity employers may expect on the wage and hour front over the next few months.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/acosta-takes-the-helm/?utm_source=Seyfarth%20Shaw%20-%20Wage%20%26%20Hour%20Litigation&amp;utm_campaign=60d8a50e33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-60d8a50e33-73050573">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <hr /> <p style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">See You in September: Rohrabacher-Farr Amendment in Budget Deal</strong></p> </div> </div> <div> <h3> <span style="color:#ff0000;"><em>The Blunt Truth Blog - May 1, 2017</em></span></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em> The appointment of Jeff Sessions as Attorney General created a great deal of uncertainty in the medical marijuana community. One point of particular concern was the Rohrabacher-Farr Amendment, and while its long term future may still be unclear, its immediate future is settled since it was included in the Consolidated Appropriations Act of 2017.</div> <div> &nbsp;</div> <div> <a href="http://www.blunttruthlaw.com/2017/05/see-you-in-september-rohrabacher-farr-amendment-in-budget-deal/#more-2087">Read Full Blog Post</a></div> <div> &nbsp;</div> <div> <hr /> <p> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Heather MacDougall Re-Nominated as Chair of the Occupational Safety and Health Review Commission</strong></p> </div> <div> <h3> <span style="color:#ff0000;"><em>Workplace Safety and Environmental Law Alert Blog - April 26, 2017</em></span></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;In a move that may be employer-friendly, President Trump has re-nominated Heather MacDougall to the OSHRC. MacDougall represents a Republican vote on cases appealed before the Commission.</div> <div> &nbsp;</div> <div> <a href="http://www.environmentalsafetyupdate.com/osha-compliance/heather-macdougall-re-nominated-as-chair-of-the-occupational-safety-and-health-review-commission/?utm_source=Seyfarth%20Shaw%20-%20Workplace%20Safety%20and%20Environmental%20Law%20Alert%20Blog&amp;utm_campaign=efceb759a4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-efceb759a4-71407177">Read Full Blog Post</a></div> <div> &nbsp;</div> <hr /> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Seyfarth Corporate Partner Andrew J. Sherman Testified Before The House Committee on Small Business</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>&nbsp;</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;On April 27, Seyfarth Shaw LLP Corporate partner Andrew J. Sherman testified before the U.S. House Committee on Small Business during a hearing held on &ldquo;Small Business: The Key to Economic Growth,&rdquo; The full hearing can be viewed <a href="http://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399879">here</a> (Mr. Sherman&rsquo;s testimony begins at minute 31:32) and his written testimony is available <a href="https://smallbusiness.house.gov/uploadedfiles/4-27-17_sherman_testimony.pdf">here</a>.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="#">&nbsp;</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">There is still time to register! First 100 &amp; Beyond: Seyfarth&rsquo;s Strategy &amp; Planning Summit For Businesses</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Seyfarth&#39;s Chicago Office - May 25, 2017</em></span></h3> <div style="text-align: left;"> &nbsp;Businesses of all sizes and across industries are wondering how they will navigate and strategically position themselves for the next four years and beyond. Please join Seyfarth Shaw&rsquo;s leading policy team, including a former Director of U.S. Citizenship &amp; Immigration Services and a former Assistant U.S. Attorney, along with other prominent thought leaders, for this full-day Summit in review of the &ldquo;change management&rdquo; period of President Donald Trump&rsquo;s Administration and in preparation for the evolving legal and business landscape to come.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> For more information and registration, <a href="http://www.seyfarth.com/events/CHIPP052517">click here</a></div> <div style="text-align: left;"> &nbsp;</div> </div> <div> <div> <p> &nbsp;</p> </div> </div> </div> </div> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> <p> &nbsp;</p> <h2> &nbsp;</h2> http://www.seyfarth.com:80//news/maechtlen-quoted-human-resource-executive-051217 Laura Maechtlen quoted in <i>Human Resource Executive</i> http://www.seyfarth.com:80//news/maechtlen-quoted-human-resource-executive-051217 Fri, 12 May 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in &quot;The Future is Flexible,&quot; a May 12 story from <em>Human Resource Executive</em> on the firm&rsquo;s Future of Work Outlook Survey. According to survey findings, 72 percent of respondents saying that automation and artificial intelligence will force their organizations to reshape the size and makeup of their workforce in the next five years. Maechtlen said that for HR leaders, the key will be to determine the ways in which we can approach the work that we have to get done with a different toolkit to get that work done.</p> <p> <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362399">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/boutros-and-schleppenbach-authored-article-bloomberg-white-collar-crime-report-051217 Andrew Boutros and John Schleppenbach authored an article in <i>Bloomberg White Collar Crime Report</i> http://www.seyfarth.com:80//publications/boutros-and-schleppenbach-authored-article-bloomberg-white-collar-crime-report-051217 Fri, 12 May 2017 00:00:00 -0400 <p> Andrew Boutros and John Schleppenbach authored &quot;The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a &#39;High Priority&#39;,&quot; an article on May 12 in <em>Bloomberg White Collar Crime Report</em>. This article offers cutting-edge observations regarding recent executive orders from President Trump directing the DOJ and its law enforcement partners to &ldquo;vigorously enforce&rdquo; the country&rsquo;s trade laws.</p> http://www.seyfarth.com:80//publications/ReaList-May2017 The ReaList - Volume 1, Edition 2 http://www.seyfarth.com:80//publications/ReaList-May2017 Fri, 12 May 2017 00:00:00 -0400 <p> <span style="font-size:14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice.&nbsp;<span style="font-family: Arial, sans-serif;">The ReaList newsletter covers New York real estate news, events, and trends.</span></span><br /> &nbsp;</p> <p> <o:p></o:p></p> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>EB-5 Program Temporarily Extended Without Change</strong><br /> On May 5, 2017, President Trump signed into law H.R. 244, which authorizes appropriations to fund essential government operations and programs that were set to expire on May 5, 2017. H.R. 244 includes reauthorization, without change, for the EB-5 Regional Center Immigrant Investor Program (the &ldquo;EB-5 Program&rdquo;).&nbsp; The EB-5 Program allows foreign investors to obtain U.S. permanent residency if they (i) invest $1 million into a &ldquo;new commercial enterprise&rdquo; (or $500,000 if the new commercial enterprise is located in a targeted employment area &ndash; either in a rural area or one or more census tracts experiencing high unemployment) and (ii) can document that their investment created a minimum of ten full-time jobs over a two-year period.&nbsp; These EB-5 investments are a common source of funding for large real estate developments in major cities across the U.S., including Manhattan, San Francisco, Los Angeles, and Dallas.&nbsp; This relatively less expensive source of financing is attractive to large real estate developers because foreign investors are willing to accept below market returns in exchange for the potential to earn a U.S. green card.<br /> <br /> Many successful, high-profile developments have utilized EB-5 financing. Notable examples include: the 17,000,000 square foot, $20 billion Hudson Yards mixed-use development; a massive $8 billion shipyard development in San Francisco; a 179-room 219,000 square foot luxury hotel in lower Manhattan; a 958,000 square foot mixed-use development in Brooklyn, which will include a public school; and an 800-foot tall luxury residential high-rise building in Manhattan&rsquo;s Lower East Side neighborhood.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/EB-5-Immigrant-Investment">Seyfarth&#39;s EB-5 Immigrant Investment specialty team</a>&nbsp;or <a href="mailto:aberg@seyfarth.com">Andrew L.&nbsp;Berg</a>, <a href="mailto:mclark@seyfarth.com">Michael T. Clark</a>, <a href="mailto:dlurie@seyfarth.com">Dawn M. Lurie</a>, <a href="mailto:apaparelli@seyfarth.com">Angelo A. Paparelli</a>, or <a href="mailto:rwinner@seyfarth.com">Robert S. Winner</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Tax:</strong></p> <p> <strong>Revived: the Return of &quot;421-a&quot; as the Affordable New York Housing Program</strong><br /> On April 7, 2017, Governor Cuomo reached an agreement with the New York State Legislature to revive the 421-a tax exemption program, now titled the &ldquo;Affordable New York Housing Program&rdquo; <a href="http://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/GPB1-AFFORDABLEHOUSINGPROGRAM-BILL.pdf">(click here for a link to the NY Assembly Bill)</a>. Like the previous 421-a program, developers may qualify for tax exemptions in exchange for creating a specific percentage of affordable rental units within a newly developed multiple dwelling. Depending on project size and location, the program requires a range of 25% to 30% of units be set aside for persons earning 40% to 130%, adjusted based on family size, of the area median income. The rental units will also be subject to rent stabilization. Governor Cuomo estimates 2,500 new affordable housing units will be created annually.<br /> <br /> Noteworthy changes to 421-a under the Affordable New York Housing Program include the extension of the tax exemption period to 35 years, up from 25 years for qualifying projects, and the requirement of &ldquo;fair wage&rdquo; payments to construction workers on projects with 300 or more units in certain areas of Manhattan, Queens, and Brooklyn.&nbsp; Some estimates claim the Affordable New York Housing Program could cause New York City to lose $2.4 billion in tax revenue annually. The Affordable New York Housing Program is expected to remain in effect until at least 2022.</p> <p> If you have any questions, please contact <a href="mailto:jdreyes@seyfarth.com">Juan Reyes</a> or <a href="mailto:klowe@seyfarth.com">Kaz Lowe</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Litigation:</strong></p> <p> <strong>New York&#39;s &quot;Scaffold Law&quot; May Not Impose Strict Liability&nbsp;</strong><br /> The construction industry has long accepted that the New York scaffold law, N.Y. Labor Law &sect;&sect; 240-241, imposes strict liability upon construction contractors and property owners for injuries suffered by workers who fall or are hit by a falling object as a result of inadequate scaffolding or similar construction structures (such as ladders or temporary staircases).&nbsp; A recent decision by the New York Court of Appeals indicates that this common understanding is wrong.&nbsp;</p> <p> In <a href="http://www.nycourts.gov/ctapps/Decisions/2017/Mar17/27opn17-Decision.pdf">O&rsquo;Brien v. Port Authority, No. 27,</a> a construction worker was injured when he slipped and fell on a temporary staircase that was wet due to rainfall.&nbsp; The worker sued his employer and the property owner, and the parties produced testimony from experts who disagreed about whether the safety measures used on the temporary staircase were adequate to properly protect the worker.&nbsp; A majority of the Court of Appeals reversed the decision of a lower appellate court, and found that the fact that the worker was injured is not, by itself, enough to impose liability where defendants had provided evidence that the safety measures employed were adequate despite the worker&rsquo;s fall.&nbsp; The Court of Appeals held that the trial court was required to weigh the competing evidence about whether the safety measures employed on the staircase were adequate to have properly protected the worker.<br /> <br /> If you have any questions, please contact <a href="mailto:jwolfert@seyfarth.com">Jonathan P. Wolfert</a> or <a href="mailto:owolfe@seyfarth.com">Owen R. Wolfe</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Health Care Real Estate &amp; Finance:</strong></p> <p> <strong>Landlords Adapt to Changes in Medical Leasing Market</strong><br /> In retail leasing, the term &ldquo;medical office&rdquo; was once understood to mean a family medical practice, or perhaps a dentistry practice.&nbsp; However, today the term encompasses a much wider range of health care services, such as medical imaging, dialysis, walk-in clinics, urgent care, and other uses or specialties, most of which are being spun off from hospitals amid a broader healthcare industry restructuring.&nbsp; Several health care services companies have become recognizable brands due to widespread retail visibility.&nbsp; And while landlords welcome this new iteration of health care tenant, many are unprepared for the attendant regulatory and operational considerations.&nbsp; One such consideration is the suitability of existing zoning classifications.&nbsp; For example, a zoning ordinance in suburban Philadelphia has different classifications for &ldquo;medical office,&rdquo; &ldquo;medical center&rdquo; and &ldquo;medical clinic,&rdquo; complicating an otherwise straightforward landlord representation (and in one case, delaying execution of a lease so the landlord could obtain a variance to allow for operation of a dialysis clinic, a use the landlord had incorrectly thought to be permitted as of right).&nbsp; In New York City, however, the same dialysis clinic would be considered an &ldquo;ambulatory diagnostic or treatment health care facility,&rdquo; a subcategory under the &ldquo;community facility&rdquo; umbrella designation that was created to eliminate confusion and to incentivize specific community facilities to locate in areas, such as retail shopping centers, to better serve neighborhood populations while still preserving the character of these residential neighborhoods.&nbsp; As health care services companies continue to expand and become a larger presence in the retail leasing market, it will be incumbent upon health care services companies and their counsel to work with landlords and zoning boards in developing shared practices and expectations to facilitate growth.<br /> <br /> If you have any questions, please contact <a href="mailto:cmitchell@seyfarth.com">Cynthia Mitchell</a> or <a href="mailto:gvoigt@seyfarth.com">Gregory Voigt</a>.</p> http://www.seyfarth.com:80//publications/MA051217-LE Georgia is Not Immune to Sick Leave Laws http://www.seyfarth.com:80//publications/MA051217-LE Fri, 12 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Georgia has a new sick leave law that requires employers to allow the use of available earned sick leave for the care of an employee&rsquo;s immediate family members.</em></p> <p> On May 8, 2017, Governor Nathan Deal signed the latest in a long line of state sick leave laws.&nbsp; Unlike other states in the country with paid sick leave mandates,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> this Georgia law <strong><u>does not</u></strong> create an obligation to provide sick days.&nbsp; Georgia employers can therefore breathe a sigh of relief.&nbsp; Instead, the Act is what is generally referred to as a &ldquo;kin care law,&rdquo; meaning it requires employers that <strong>already</strong> provide their workers with paid sick leave to allow a certain amount of the sick leave to be used to care for immediate family members.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; This new law will take effect on July 1, 2017.&nbsp;</p> <p> Here is an overview of the Georgia Act&rsquo;s key provisions:</p> <ul> <li> Employers that already provide sick leave must allow employees to use<strong> up to 5 days </strong>of earned sick leave per calendar year for the care of immediate family members.</li> <li> Sick leave includes time away from work by an employee, due to his or her own incapacity, illness, or injury, and for which the employee receives regular compensation. <ul> <li> For purposes of this Act, sick leave does not include paid short-term or long-term disability.</li> </ul> </li> <li> Employees are not entitled to use sick leave to care for immediate family members pursuant to this Act until that leave has been earned, and they must comply with the terms of the employer&rsquo;s sick leave policy.</li> <li> Immediate family members include an employee&rsquo;s: child, spouse, grandchild, grandparent, parent, or any dependents (as reflected on the employee&rsquo;s most recent tax return).</li> <li> The Act excludes small businesses (those with <strong>fewer than 25 employees</strong>) and employers that offer stock ownership plans to their employees, but it applies to the State of Georgia and its political subdivisions and instrumentalities.</li> <li> It only applies to employees who work <strong>at least 30 hours </strong>per week.</li> <li> It does not create a new cause of action against an employer.</li> </ul> <p> This Act does not impact businesses that do not offer sick leave, because there is still no mandate in Georgia requiring companies to offer sick days to their employees.&nbsp; But, employers that do provide sick leave to their employees should take steps to ensure compliance, including: (1)&nbsp; reviewing and, as needed, revising existing sick leave policies, and (2) training supervisory and managerial employees and Human Resources professionals on the Act&rsquo;s requirements.</p> <p> With the sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> To date, seven states -- Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, and Washington -- have passed paid sick leave laws mandating that employers provide their employees with a certain amount of paid sick leave.&nbsp; The <a href="http://www.seyfarth.com/publications/MA051017-LE2">Arizona law</a> goes into effect on July 1, 2017, and the Washington law goes into effect on January 1, 2018. &nbsp;The other five laws are already in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Similar laws exist in a number of states, including Illinois (the law became effective on January 1, 2017), California, Washington, and Maryland.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/WC051117 Florida Federal Court Grants Conditional Certification In ADEA Collective Action Following Employer’s Reduction-In-Force http://www.seyfarth.com:80//publications/WC051117 Thu, 11 May 2017 00:00:00 -0400 <p> Following an employer&rsquo;s reduction-in-force that ultimately led to an ADEA collective action after several employees over 50 years old were terminated, a federal district court in Florida recently granted a motion to conditionally certify a collective action of employees who worked at the employer&rsquo;s Tampa, Florida location, but denied a motion to certify a nationwide collective action.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/05/florida-federal-court-grants-conditional-certification-in-adea-collective-action-following-employers-reduction-in-force/">click here</a></p> http://www.seyfarth.com:80//publications/OMM051117-LE The State of Indiana Bans Political Subdivisions From Enacting “Ban the Box” Restrictions http://www.seyfarth.com:80//publications/OMM051117-LE Thu, 11 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp; </strong>Indiana <a href="https://iga.in.gov/legislative/2017/bills/senate/312#document-051d9997">Senate Bill 312</a> (the &ldquo;Bill&rdquo;) provides, among other things, that a political subdivision of the state, including a municipality, may not prohibit an employer from obtaining or using criminal history information during the hiring process to the extent permitted by federal or state law, rules or regulations.&nbsp;</em></p> <p> The Indiana General Assembly recently passed the Bill, which it says was designed to create uniformity within its borders by prohibiting political subdivisions (e.g., counties, municipalities and townships) from adopting &ldquo;ban the box&rdquo; ordinances that restrict employers from inquiring into the criminal histories of applicants.&nbsp; The only Indiana municipality that currently has ban the box restrictions for private employers is Indianapolis/Marion County.&nbsp; The Indianapolis ordinance, passed in 2014, applies to certain private employees that provide services to the city, as well as public employees, and requires criminal history inquiries to either be made after an applicant is selected for an interview or, if no interview will be conducted, after a conditional offer of employment is tendered.&nbsp; That law has now been preempted by SB 312.</p> <p> The new Indiana state law also seeks to protect employers by providing that criminal history information concerning a current or former employee may not be introduced against the employer in a civil action based upon the employee or former employee&rsquo;s conduct if the criminal history information does not have a direct relationship to the underlying facts of the complaint, the criminal records have been sealed, the criminal conviction has been reversed, vacated or expunged, the individual has received a pardon, or the arrest/charge did not result in a criminal conviction.</p> <p> In response to concerns raised by employee rights groups, at the time he signed SB 312, Indiana Governor Eric Holcomb also announced he would sign an executive order banning the box for Indiana state jobs, removing questions about prior arrest and criminal history from job applications for public sector positions. &nbsp;&nbsp;</p> <p> <strong>Employer Outlook</strong></p> <p> Senate Bill 312 will take effect on July 1, 2017.&nbsp; Thereafter, private employers in Indianapolis that provide services to the City of Indianapolis will no longer be required to wait until an interview is conducted or a conditional offer of employment is made to make inquiries regarding criminal history.</p> http://www.seyfarth.com:80//publications/WCCR051117 The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a ‘High Priority' http://www.seyfarth.com:80//publications/WCCR051117 Thu, 11 May 2017 00:00:00 -0400 <div> Andrew Boutros and John Schleppenbach authored &quot;The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a &lsquo;High Priority&#39;,&quot; an article in the May Edition of <em>Bloomberg BNA&rsquo;s White Collar Crime Report.</em></div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/dir_docs/publications/TradeEnforceWCRPublish.pdf#page=1">You can view the full article here</a></div> http://www.seyfarth.com:80//publications/EL051117 New York’s Highest Court Clarifies Who Can Be Liable for Discrimination Based on Criminal History http://www.seyfarth.com:80//publications/EL051117 Thu, 11 May 2017 00:00:00 -0400 <p> On May 4, 2017, New York&rsquo;s highest court, the Court of Appeals, held that the New York State Human Rights Law (NYSHRL) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/new-yorks-highest-court-clarifies-who-can-be-liable-for-discrimination-based-on-criminal-history/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=75afbf79f2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-75afbf79f2-71256185">click here</a></p> http://www.seyfarth.com:80//publications/LR051117 DC Circuit “Busts” NLRB’s Finding of Weingarten Violation by Las Vegas Casino http://www.seyfarth.com:80//publications/LR051117 Thu, 11 May 2017 00:00:00 -0400 <p> A three-member panel of the U.S. Court of Appeals for the D.C. Circuit put the National Labor Relations Board &ldquo;on tilt&rdquo; when it overturned a decision finding that Bellagio, LLC violated Section 8(a)(1) of the NLRA when it interfered with an employee&rsquo;s Weingarten right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right; unlawfully surveilled him; and coercively prevented him from discussing his suspension with other employees.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/05/11/dc-circuit-busts-nlrbs-finding-of-weingarten-violation-by-las-vegas-casino/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=aa6e3db19d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-aa6e3db19d-71423401">click here</a></p> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-051117 Gerald Maatman quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Could College Recruitment Programs Be Considered Unlawful?&quot; &mdash; a May 11 story from <em>SHRM </em>on a whether campus recruiting could make employers liable in age discrimination claims. Maatman said that, in theory, a claim against a college recruiting program could probably be crafted under the right circumstances, but it would be going too far to say that all recruiting on campus would be illegal or a form of age discrimination.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/college-recruitment-programs-adea-pwc.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/milligan-quoted-world-intellectual-property-review-051117 Robert Milligan quoted in <i>World Intellectual Property Review</i> http://www.seyfarth.com:80//news/milligan-quoted-world-intellectual-property-review-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;Defend Trade Secrets Act turns one year old,&quot; a May 11 story from <em>World Intellectual Property Review</em> on the Defend Trade Secrets Act (DTSA) which was signed into law one year ago today. Milligan said that although the DTSA has some of the same provisions as the Uniform Trade Secrets Act, which has been adopted by almost all states, there are some unique provisions in the DTSA&mdash;such as its seizure and whistleblower immunity provisions&mdash;which allow the courts to interpret for the first time.</p> <p> <a href="http://www.worldipreview.com/news/defend-trade-secrets-act-turns-one-year-old-13933">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-bloomberg-BNA-051117 Sam Schwartz-Fenwick quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-bloomberg-BNA-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted &quot;Aetna Beats ERISA Lawsuit Over Transgender Breast Surgery,&quot; in a May 11 story by <em>Bloomberg BNA</em> on the recent news that a transgender woman who sought disability benefits following a breast augmentation surgery lost her lawsuit against an insurance company. Schwartz-Fenwick said that if a decision like this is occurring where both sides agree that some transgender care is medically necessary, that&rsquo;s a real sea change from where the law was just a few years ago.</p> <p> <a href="https://www.bna.com/aetna-beats-erisa-n73014450761/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-secures-68-million-dollar-FINRA-arbitration-win-for-c-l-king Seyfarth Secures $68 Million FINRA Arbitration Win For C.L. King http://www.seyfarth.com:80//news/seyfarth-secures-68-million-dollar-FINRA-arbitration-win-for-c-l-king Wed, 10 May 2017 00:00:00 -0400 <div> BOSTON (May 10, 2017) &ndash; Seyfarth Shaw LLP successfully secured a complete defense verdict in a FINRA arbitration seeking over $68 million for C.L. King &amp; Associates, Inc., a full-service investment bank and self-clearing broker-dealer, in one of the largest and most complex FINRA arbitrations involving a clearing firm in recent years. After 39 days of evidentiary hearings, a three person panel of FINRA arbitrators denied all of the claims by a former customer against C.L. King.</div> <div> &nbsp;</div> <div> The claimants, a number of family accounts, alleged that C.L. King as the custodial and clearing broker for an independent investment adviser failed to prevent significant losses and took additional actions that contributed to those losses. After several weeks of testimony from over fifteen witnesses, including five expert witnesses called by the claimants on issues relating to supervision, margin rules, account management, market variables, hedging and options strategies and damages, the FINRA panel sided completely with C.L. King on all counts and denied the claimants&rsquo; claims in their entirety. <a href="http://www.finra.org/sites/default/files/aao_documents/14-02898.pdf">The full decision can be found here</a>. &nbsp;</div> <div> &nbsp;</div> <div> The Seyfarth Litigation team was led by Boston partner Christopher Robertson and included associate Dallin Wilson in Boston. In addition to the trial team, Seyfarth lawyers Jason Priebe (Chicago), Ryan Tilot (Chicago), and Douglas Rooney (Boston) assisted in the case.&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</div> http://www.seyfarth.com:80//news/barton-quoted-bloomberg-BNA-051117 Eric Barton quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/barton-quoted-bloomberg-BNA-051117 Wed, 10 May 2017 00:00:00 -0400 <p> Eric Barton was quoted in &quot;Trade Secret Cases Surge as Race for New Tech, Top Talent Heats Up,&quot; a May 10 story from <em>Bloomberg BNA</em> on how companies racing to create blockbuster new technologies in fields such as robotics, virtual reality and self-driving cars are increasingly hauling each other into court to protect their trade secrets in a series of legal fights that signal the fierce competition in emerging fields. Barton said that litigation over trade secrets is traceable to increased competition over tech-sector employees&mdash;a prized commodity.</p> <p> <a href="https://www.bna.com/trade-secret-cases-n73014450731/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/milligan-quoted-law360-051017 Robert Milligan quoted in <i>Law360</i> http://www.seyfarth.com:80//news/milligan-quoted-law360-051017 Wed, 10 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;Defend Trade Secrets Act: Lessons From Year 1,&quot; a May 10 story from <em>Law360 </em>on lessons learned over the Defend Trade Secrets Act&rsquo;s (DTSA) first year. Milligan said that the biggest impact that the DTSA has provided is options for clients. He said that while in some instances plaintiffs still pursue such claims in state court, he is seeing more and more plaintiffs elect to pursue such claims under the DTSA.</p> http://www.seyfarth.com:80//publications/ERISA051017 Eighth Circuit Jimmies The Lid On Pandora’s Box http://www.seyfarth.com:80//publications/ERISA051017 Wed, 10 May 2017 00:00:00 -0400 <p> In an opinion that may result in increasingly complex ERISA benefits litigation, the Eighth Circuit has allowed a breach of fiduciary duty claim premised on alleged faulty claims handling practices to proceed in conjunction with a claim for benefits.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/10/eighth-circuit-jimmies-the-lid-on-pandoras-box/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=39ac59c7ab-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-39ac59c7ab-73050525">click here</a></p> http://www.seyfarth.com:80//publications/CP051017 California Supreme Court Set to Address Fate of Independent Contracting http://www.seyfarth.com:80//publications/CP051017 Wed, 10 May 2017 00:00:00 -0400 <p> The California Supreme Court, in Dynamex Operations v. Superior Court, has agreed to address the legal standard for determining whether a worker classified as an independent contractor is really an employee. The Supreme Court&rsquo;s opinion is expected to be significant for anyone thinking of using independent contractors in California.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/05/10/california-supreme-court-set-to-address-fate-of-independent-contracting/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a7da3f784a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a7da3f784a-71410869">click here</a></p> http://www.seyfarth.com:80//publications/MA051017-LE2 If Pain, Yes Gain—Part XXIX: Arizona Announces Draft Sick Leave Rules http://www.seyfarth.com:80//publications/MA051017-LE2 Wed, 10 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Arizona<span class="_Tgc">&mdash;</span>the sixth state with a paid sick leave law<span class="_Tgc">&mdash;h</span>as published its much anticipated Notice of Proposed Rulemaking for its law going into effect on July 1, 2017.&nbsp; &nbsp;&nbsp;</em></p> <p> On July 1, 2017, while employees are enjoying their first taste of summer sun and ocean waves, employers will be managing a different kind of wave, specifically one that will see five paid sick leave laws become effective on this date. Arizona joins Chicago and Cook County, IL and Minneapolis and Saint Paul, MN<a href="#_ftn1" name="_ftnref1" title="">[1]</a> as the jurisdictions fueling this latest sick leave wave. When the tide settles, Arizona will be just the sixth state in the country with a statewide paid sick leave mandate that has gone into effect.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> As employers ready their policies and practices to comply with the impending Arizona Fair Wages and Healthy Families Act (the &ldquo;Act&rdquo;),<a href="#_ftn3" name="_ftnref3" title="">[3]</a> the Industrial Commission of Arizona (the &ldquo;Commission&rdquo;) has taken steps to clarify certain aspects of the Act. Specifically, on May 5, 2017, the Commission released a <a href="http://apps.azsos.gov/public_services/register/2017/18/contents.pdf">Notice of Proposed Rulemaking</a> regarding the Act. While not final, the proposed rules address a number of topics within the Act, including year-end carryover obligations, notice and posting requirements, recordkeeping, and payment of sick time.</p> <p> The public will have until June 5, 2017, to submit comments on the proposed rules. On that same date, the Commission will be hosting an oral proceeding for further discussion on the proposed rules.&nbsp;</p> <p> Here is a summary of the proposed rules&rsquo; key provisions:</p> <ul> <li> <strong>Employment Relationship:</strong> The proposed rules explain that volunteers and certain babysitters are not considered employees under the Act. Relatedly, and while not expressly stated, it appears that the proposed rules also exclude independent contractors from sick leave eligibility under the Act. The proposed rules note that determining whether an employment relationship exists depends on the circumstances of the relationship, and refer employers to factors that can be used to assess the economic dependency of a working relationship.</li> <li> <strong>Accrual and Hours Worked:</strong> The Act requires that employees accrue paid sick leave at least as fast as one hour of sick leave for every 30 hours worked, up to either 40 or 24 hours per year depending on the size of the employer. Under the proposed rules, &ldquo;hours worked&rdquo; is defined to mean all hours for which an employee covered under the Act is employed and required to give to the employer, including all time during which an employee is on duty or at a prescribed work place and all time the employee is suffered or permitted to work.</li> <li> <strong>Year-End Carryover:</strong> The Act states that earned paid sick time shall be carried over to the following year, subject to limitations on usage (i.e., annual usage caps). On its face, this language could be read as not setting any cap on the amount of unused sick time that employers must allow employees to rollover at year-end. However, the proposed rules address this uncertainty and expressly state that employees may carry over up to a maximum of 40 or 24 hours of unused sick time at year-end, depending on the size of the employer. <ul> <li> Relatedly, the proposed rules reiterate that employers can avoid the Act&rsquo;s year-end carryover requirements only if they (a) cash out employees&rsquo; unused sick time at year-end, <strong><u>and</u></strong> (b) provide employees with a lump grant of 40 or 24 sick time hours, depending on the size of the employer, at the start of the new benefit year.</li> </ul> </li> <li> <strong>Reasons for Use:</strong> Arizona employees may use accrued paid sick leave for a number of reasons.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> The proposed rules contain language impacting two of the lesser known reasons for use: <ul> <li> First, employees are permitted to use paid sick leave to care for the employee or a covered family member when it has been determined by health authorities that the individual&rsquo;s presence in the community may jeopardize the health of others due to exposure to a communicable disease, whether or not the individual actually has the disease. The proposed rules define &ldquo;communicable disease&rdquo; to mean a contagious, epidemic or infectious disease required to be reported to the local board of health or Arizona department of health services.</li> <li> Second, employees may use paid sick leave due to closure of the employee&rsquo;s place of business or employee&rsquo;s child&rsquo;s school or place of care by order of a public official due to a public health emergency. The proposed rules include a narrow definition of &ldquo;public health emergency&rdquo;<span class="_Tgc">&mdash;</span>a state of emergency declared by the governor in which there is an occurrence or imminent threat of an illness or health condition caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin and that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.</li> </ul> </li> <li> <strong>Payment of Sick Time:</strong> The Act states in general terms that an emlpoyee should be compensated for used sick leave at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked. This compensation must not be less than federal or state minimum wages. The proposed rules note that shift differentials and premiums that compensate an employee for work performed under differing conditions (such as hazard pay or a shift differential for working at night) must be included when determining an employee&rsquo;s same hourly rate. However, sick time payment need not include additions to an employee&rsquo;s base rate for overtime or holiday pay, bonuses or other types of incentive pay, tips, or gifts. <ul> <li> In addition and notably, the proposed rules provide guidance on calculating the &ldquo;same hourly rate&rdquo; in several circumstances, including for employees paid a single hourly rate, multiple hourly rates, on a salary basis, and on a commission, piece-rate, or fee-for-service basis.&nbsp;</li> </ul> </li> <li> <strong>Posting Requirement:</strong> The proposed rules state that employers must display the Commission&rsquo;s <a href="https://www.azica.gov/sites/default/files/AZ%20Earned%20Paid%20Sick%20Time%20Poster%202017.pdf">model sick leave poster</a> in a conspicuous place in every establishment where employees are employed and where notices to employees are customarily placed. Furthermore, the proposed rules add a &ldquo;small employer&rdquo; exception to the Act&rsquo;s posting requirement stating that the requirement does not apply to a corporation, proprietorship, partnership, joint venture, limited liability company, trust, or association that has less than $500,000 in gross annual revenue.</li> <li> <strong>Recordkeeping Requirement:</strong> The Act requires that employers maintain payroll records showing the (a) hours worked for each day worked, and (b) wages and earned sick time paid to all employees for a period of four years. The proposed rules list additional types of payroll and other records that employers must retain to comply with the Act, including earned paid sick time accrued and used each pay period and current earned paid sick time balance.</li> </ul> <p> As the Act&rsquo;s July 1, 2017, effective date draws closer, employers should take steps now to ensure compliance, including (a) review and, as needed, update existing policies and procedures or, alternatively, create a new paid sick leave policy that complies with the Act, (b) develop systems and procedures to meet the Act&rsquo;s posting and notification requirements, and (c) train supervisory and managerial employees, as well as HR, on the Act&rsquo;s requirements.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> For more information, here are links to our prior alerts on the impending <a href="http://www.laborandemploymentlawcounsel.com/2016/06/the-chicago-paid-sick-leave-ordinance-is-inevitable/">Chicago</a>, <a href="http://www.seyfarth.com/publications/MA042117-LE">Cook County</a>, <a href="http://www.seyfarth.com/publications/MA102016-LE">Minneapolis</a>, and <a href="http://www.seyfarth.com/publications/MA091416-LE">Saint Paul</a> paid sick leave laws.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The five states with paid sick leave laws that are currently in effect are Connecticut, California, Massachusetts, Oregon, and Vermont. In addition, the state of Washington&rsquo;s paid sick leave law is scheduled to become effective on January 1, 2018.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> The Act was passed by Arizona voters during the November 8, 2016, election. Follow this link for our summary of the main <a href="http://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave-part-ii/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1742b5ae3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1742b5ae3e-71256185">Arizona paid sick leave law</a> requirements.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> Employees may also use Arizona paid sick leave for (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, and (c) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee&rsquo;s family member.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/MA051017-LE New York’s Highest Court Clarifies Who Can Be Liable for Discrimination Based on Criminal History http://www.seyfarth.com:80//publications/MA051017-LE Wed, 10 May 2017 00:00:00 -0400 <p> <strong><em>S</em></strong><strong><em>eyfarth Synopsis:</em></strong> <em>On May 4, 2017, New York&rsquo;s highest court, the Court of Appeals, held that&nbsp; the New York State Human Rights Law (&ldquo;NYSHRL&rdquo;) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.</em></p> <p> In <a href="http://caselaw.findlaw.com/ny-court-of-appeals/1859335.html"><em>Griffin v. Sirva, Inc.</em></a>, the U.S. Court of Appeals for the Second Circuit (&ldquo;Second Circuit&rdquo;) posed three questions to the New York Court of Appeals (&ldquo;Court of Appeals&rdquo;), New York&rsquo;s highest court, regarding the appropriate interpretation of New York state law, the NYSHRL.&nbsp; Specifically, the Court of Appeals was asked to determine whether (1) Section 296(15) of the NYSHRL, which prohibits discrimination against individuals with prior criminal convictions, is limited to a party&rsquo;s &ldquo;employer&rdquo;; (2) if so, is an &ldquo;employer&rdquo; only a &ldquo;direct employer,&rdquo; or can the coverage extend to other related entities; and (3) does Section 296(6), which provides for aiding and abetting liability, apply to Section 296(15) to impose liability on out-of-state entities that may have a connection to an in-state employer? &nbsp;</p> <p> As background, the direct employer in the case was Astro Moving and Storage Co., who was a contractor for Allied Van Lines.&nbsp; Plaintiffs had convictions for sex crimes with minors, which disqualified them from working for Allied, and Astro terminated their employment because they could not perform services for Allied.&nbsp; Plaintiffs sued Astro, Allied, and Sirva, Inc. (Allied&rsquo;s parent).&nbsp; Among other claims, Plaintiffs alleged discrimination due to their criminal conviction histories, as prohibited by Section 296(15) of the NYSHRL.&nbsp; As is most relevant here, they sued Allied (which was not their direct employer).&nbsp; Thus, since the interpretation of the NYSHRL had not been resolved on this point, the Second Circuit certified its questions to the Court of Appeals.</p> <p> In its response, the Court of Appeals held definitively that Section 296(15) of the NYSHRL is limited to direct employers.&nbsp; Although the statutory text states that &ldquo;any person&rdquo; is prohibited from discriminating, the Court nevertheless found that this language was contextually designed to target direct employers.</p> <p> With respect to the second question, the Court of Appeals clarified who the NYSHRL considers an &ldquo;employer.&rdquo;&nbsp; To make the determination, the Court of Appeals turned to the common law test for determining the employer-employee relationship, as enunciated by New York&rsquo;s Appellate Division, Fourth Department, in <em>State Div. of Human Rights v. GTE Corp.</em>, 109 A.D.2d 1082 (4th Dept. 1985).&nbsp; The test consists of four factors: &ldquo;(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant&rsquo;s conduct.&rdquo;&nbsp; The primary focus on this test, the Court of Appeals quoted the Fourth Department, is the &ldquo;right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter.&rdquo;&nbsp; This pronouncement is noteworthy in that it clarifies the definition of &ldquo;employer&rdquo; for NYSHRL claims.</p> <p> Last, the Court of Appeals turned to the breadth of liability for aiding and abetting, under Section 296(6).&nbsp; The Court noted that one does not need to be a direct employer, or have any employment connection to the plaintiff. The Court pointed out, for example, that in <em>National Org. for Women v. State Div. of Human Rights</em>, 34 N.Y.2d 416 (1974), a newspaper company had no employment relationship with the plaintiff, but was nevertheless found to have aided and abetted discrimination by running two sets of help wanted ads: a separate list of jobs for men, and a separate list of jobs for women, despite the fact that the newspaper did not employ anyone from these ads. The Court also noted that the NYSHRL has an extraterritoriality provision that captures out-of-state actors when their acts have an impact within the state. Thus, an out-of-state entity can be liable for acts that constitute discrimination, or aiding and abetting, that have an impact in New York. &nbsp;This interpretation is not a change in the lower court&rsquo;s opinions, but an affirmation that&nbsp; third party entities should understand that if they have control over hiring decisions, they could be at risk.</p> <p> <strong><u>Outlook and Potential Ramifications</u></strong></p> <p> The Court of Appeals has made certain clarifications that have a potential impact on any employer, as well as any entity who works with another entity that is an employer, where questions surrounding criminal background checks come up that have an impact on employees in New York. Beyond direct employers, who are directly covered by Section 296(15), non-employers, even those outside New York, may nevertheless find themselves ensnared in a claim under the NYSHRL for aiding and abetting. Thus, the ramifications of this decision extend beyond the universe of direct employers, and beyond New York&rsquo;s state lines. Employers within New York would be well-served to revisit their compliance requirements with Section 296(15). Further, any companies who does business with a New York employer, regardless of whether the company is located in or outside of New York, would likewise be well-served to review their business practices for any &ldquo;impact in New York&rdquo; that might run afoul of the NYSHRL.</p> http://www.seyfarth.com:80//publications/OMM050917-LIT Who Knew? An Absolute Assignment of Rents Can Be Absolute http://www.seyfarth.com:80//publications/OMM050917-LIT Tue, 09 May 2017 00:00:00 -0400 <h2> Sixth Circuit Determines that an Absolute Assignment of Rents Perfected Under Michigan State Law Takes Property out of a Bankruptcy Estate &nbsp;(In Re Town Center Flats, LLC, Case No. 16-1812 &mdash; Decided May 2, 2017)</h2> <div> &nbsp;</div> <div> If under state law perfection of an absolute assignment of rents is a transfer of property, then such rents could be excluded from property of a debtor&rsquo;s bankruptcy estate. Debtor Town Center Flats, LLC owns a 53-unit residential apartment complex in Shelby Township, Michigan. Town Center financed construction of the building with a $5.3 million loan from ECP Commercial II LLC. The loan was secured by a mortgage, as well as an agreement to assign rents to the creditor in the event of default (the &ldquo;Agreement&rdquo;). Pursuant to the terms of the Agreement, Town Center &ldquo;irrevocably, absolutely and unconditionally [agreed to] transfer, sell, assign, pledge and convey to Assignee, its successors and assigns, all of the right, title and interest of [Town Center] in &hellip; income of every nature of and from the Project, including, without limitation, minimum rents [and] additional rents&hellip;.&rdquo; The Agreement purported to be a &ldquo;present, absolute and executed grant of the powers herein granted to Assignee,&rdquo; while simultaneously granting a license to Town Center to collect and retain rents until an event of default, at which point the license would &ldquo;automatically terminate without notice to [Town Center].&rdquo;</div> <div> &nbsp;</div> <div> On December 31, 2013, Town Center defaulted on its obligation to repay the loan. On December 22, 2014, ECP sent a notice of default and a request for the payment of rents to all known tenants of the Town Center property. The notice complied with the terms of the Agreement and with section 554.231 of the Michigan Complied Laws, which allows creditors to collect rents directly from tenants of certain mortgaged properties. The following day, ECP recorded the notice documents in Macomb County, Michigan, completing the last step required by the statute to make the assignment of rents binding against both Town Center and the tenants of the property. On January 23, 2015, ECP filed a complaint in the Circuit Court for Macomb County, Michigan, seeking foreclosure and requesting the appointment of a receiver to take possession of the Town Center property. Subsequently, on January 31, 2015, Town Center filed a petition for relief under chapter 11 of the Bankruptcy Code. On the petition date, Town Center owed ECP $5,329,329, plus attorney&rsquo;s fees and costs.</div> <div> &nbsp;</div> <div> At the commencement of the chapter 11 case, ECP and Town Center entered into interim agreement to allow Town Center to continue to collect rent from tenants of the complex, with $15,000 per month used to pay down the debt owed to EPC, and the remainder of the rents to be used for authorized expenses. Town Center defaulted on the interim agreement almost immediately. Consequently, in February 2015, ECP filed a motion to prohibit Town Center from using rents collected after the chapter 11 petition was filed. The bankruptcy court denied the motion, finding that the rents were property of Town Center&rsquo;s bankruptcy estate because an assignment of rents creates a security interest, but does not change ownership. &nbsp;Simply stated, Town Center still had an interest in the rents. On appeal, the district court vacated the order of the bankruptcy court, finding that an assignment of rents is a transfer of ownership under Michigan law, and thus the rents should not be included in the chapter 11 estate. &nbsp;Appeal was then taken to the Sixth Circuit. &nbsp;</div> <div> &nbsp;</div> <div> Property of an estate in bankruptcy is broadly defined by section 541 of the Bankruptcy Code as all legal or equitable interests of the debtor in property as of the commencement of the case. The Sixth Circuit, citing the Supreme Court&rsquo;s decision in Butner v. United States, noted that property rights of a debtor in bankruptcy are determined under the law of the state in which the property is located, which in Town Center is Michigan. Turning to Michigan law, the Court cited section 554.231 of the Michigan Compiled Statutes, which provides, in pertinent part:&nbsp;</div> <div> &nbsp;</div> <blockquote> <div style="text-align: justify; margin-left: 40px;"> [I[n or in connection with any mortgage on commercial or industrial property &hellip; it shall be lawful to assign the rents, or any portion thereof, under any oral or written leases upon the mortgaged property to the mortgagee, as security in addition to the property described in such mortgage. Such assignment of rents shall be binding upon such assignor only in the event of default in the terms and conditions of said mortgage, and shall operate against and be binding upon the occupiers of the premises from the date of filing by the mortgagee in the office of the register of deeds for the county in which the property is located of a notice of default in the terms and conditions of the mortgage and service of a copy of such notice upon the occupiers of the mortgaged premises.&rdquo;&nbsp;</div> </blockquote> <div> &nbsp;</div> <div> Relying on a number of Michigan state court decisions that generally discuss assignment of rents under section 554.231 as ownership transfers, the Court held the rents generated by Town Center&rsquo;s property were not property of its bankruptcy estate because perfection of the assignment of rents by ECP had transferred ownership to ECP.</div> <div> &nbsp;</div> <div> Two key supplemental points were additionally addressed by the Court. First, the Court determined that Town Center&rsquo;s right to receive rents once the mortgage is paid is not a residual property right that would serve to somehow supersede ECP&rsquo;s present ownership interest and bring the rents into the bankruptcy estate. Second, the Court distinguished the Supreme Court&rsquo;s decision in United States v. Whiting Pools. In that case, personal property had been seized by the Internal Revenue Service in satisfaction of a tax lien was determined to be part of the bankruptcy estate because the debtor retained an ownership interest until sale to a bona fide purchaser. The Sixth Circuit concluded by finding that the bankruptcy court&rsquo;s decision was motivated by a policy concern that excluding the assigned rents from the estate would effectively foreclose chapter 11 relief for companies like Town Center that own a single property and receive their sole stream of revenue from rents of that property. &ldquo;We recognize the concern of Town Center&mdash;and the bankruptcy court&mdash;that single-asset real estate entities may have limited options under [c]hapter 11 in this situation. Michigan law, however, is clear on the matter and governs despite other policy concerns.&rdquo;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/WH050917 Battle of the Experts on Class Certification: A Win for Employers http://www.seyfarth.com:80//publications/WH050917 Tue, 09 May 2017 00:00:00 -0400 <p> The California Court of Appeal affirmed a denial of class certification on the ground that the plaintiff&rsquo;s expert report failed to establish claims could be determined on common evidence. The ruling highlights that trial courts are permitted to weigh conflicting evidence related to whether common or individual issues predominate. While expert reports often inform merits questions relating to damages, when those reports are the main source of support for certification, they equally inform issues of liability.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/battle-of-the-experts-on-class-certification-a-win-for-employers/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=fb9278dea5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-fb9278dea5-73050573">click here</a></p> http://www.seyfarth.com:80//publications/EL050917 Justice Gorsuch Likely To Have Significant Impact on Labor and Employment Cases Before the U.S. Supreme Court http://www.seyfarth.com:80//publications/EL050917 Tue, 09 May 2017 00:00:00 -0400 <p> With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari. &nbsp;The addition of Justice Neil Gorsuch is likely to have particular impact in the field of labor and employment law.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/justice-gorsuch-likely-to-have-significant-impact-on-labor-and-employment-cases-before-the-u-s-supreme-court/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=de2172cfcf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-de2172cfcf-71256185">click here</a></p> http://www.seyfarth.com:80//publications/TS050917 Can You Say P-e-c-u-l-i-a-r-i-t-i-e-s? Seyfarth’s Cal-Peculiarities Guide Is Here Highlighting Quirks in California Restrictive Covenant and Trade Secret Law http://www.seyfarth.com:80//publications/TS050917 Tue, 09 May 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP has released its 2017 Edition of <em>Cal-Peculiarities: How California Employment Law Is Different</em>. Included within the publication is an overview of how California law is different in the areas of restrictive covenants , trade secrets, and computer fraud.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/can-you-say-p-e-c-u-l-i-a-r-i-t-i-e-s-seyfarths-cal-peculiarities-guide-is-here-highlighting-quirks-in-california-restrictive-covenant-and-trade-secret-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=7292835996-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-7292835996-73050541">click here</a></p> http://www.seyfarth.com:80//publications/WSE050917 OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years http://www.seyfarth.com:80//publications/WSE050917 Tue, 09 May 2017 00:00:00 -0400 <p> OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court&rsquo;s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/investigationsinspections/osha-removes-late-term-rule-which-allowed-osha-to-cite-injury-recordkeeping-violations-going-back-five-years/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=815a0689ad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-815a0689ad-71407177">click here</a></p> http://www.seyfarth.com:80//publications/ADA050917 2017 Federal ADA Title III Lawsuit Numbers 18% Higher than 2016 http://www.seyfarth.com:80//publications/ADA050917 Tue, 09 May 2017 00:00:00 -0400 <p> The increase of ADA Title III lawsuits in federal court shows no signs of stopping. &nbsp;From January 1 through April 30, 2017, 2629 lawsuits were filed &mdash; 412 more than during the same period in 2016. &nbsp;That&rsquo;s a whopping 18 percent increase. &nbsp;As we previously reported, the total number of lawsuits filed in federal court in 2016 was 6,601 and represented a 37% increase from 2015.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/05/2017-federal-ada-title-iii-lawsuit-numbers-18-higher-than-2016/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=0859a9e7f3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-0859a9e7f3-71256157">click here</a></p> http://www.seyfarth.com:80//news/meier-quoted-law360-050917 Steven Meier quoted by <i>Law360</i> http://www.seyfarth.com:80//news/meier-quoted-law360-050917 Tue, 09 May 2017 00:00:00 -0400 <p> Steven Meier was quoted in &quot;Real Estate Tax Changes Would Create Confusion, Difficulty,&quot; a May 9 story by <em>Law360 </em>on how developers are carefully watching Washington for indications of whether President Donald Trump may attempt to change like-kind exchanges or rules for tax treatment of property expenses. Meier said that he thinks a lot of folks are assuming that immediate expensing means 1031&#39;s going to go away but he thinks there are numerous middle grounds here.</p> http://www.seyfarth.com:80//news/hendrickson-quoted-SHRM-050817 Christine Hendrickson quoted by <i>SHRM</i> http://www.seyfarth.com:80//news/hendrickson-quoted-SHRM-050817 Mon, 08 May 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;New York City Mayor Approves Ban on Salary History Questions,&quot; a May 8 story by <em>SHRM </em>on Mayor Bill de Blasio signing a New York City bill that will prohibit employers in New York City from asking job applicants about their salary history. Hendrickson said that all employers who use prior salary as a touchpoint in setting initial compensation, not just those with operations in New York City, are wise to carefully consider the full legal landscape as they wade into this new approach to pay.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-mayor-approves-ban-on-salary-history-questions.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/petersen-quoted-SHRM-050817 Kyle Petersen quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/petersen-quoted-SHRM-050817 Mon, 08 May 2017 00:00:00 -0400 <p> Kyle Petersen was quoted in &quot;Waiting Periods for Vacation Accruals May Be on the Way Out,&quot; a May 8 story from <em>SHRM </em>on how new employees today often have to work for 90 days to a year before taking time off. Petersen said that employers are moving away from imposing waiting periods for vacation accruals because of the proliferation of paid-sick-leave entitlements.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/vacation-waiting-periods-on-the-wane.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ Too Personal To Proceed: Personal Bankers’ Certification Bid Bounced Again http://www.seyfarth.com:80//publications/ Mon, 08 May 2017 00:00:00 -0400 <div> The Second Circuit recently upheld a district court order denying a bid for class certification by personal bankers claiming their managers refused to approve timesheets with overtime hours, shaved reported overtime hours, and pressured them to work off the clock. Because the company&rsquo;s policy governing (and limiting) overtime work was lawful on its face, the bankers&rsquo; claims hinged on the exercise of managerial discretion in applying those policies. The district court concluded that the plaintiffs failed to demonstrate sufficient uniformity in the exercise of managerial discretion, and the Second Circuit affirmed.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.wagehourlitigation.com/rule-23-class-certification/certification-bid-bounced/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=b9f52ec0f4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-b9f52ec0f4-73050573">click here</a></div> http://www.seyfarth.com:80//publications/OMM050617-LE UPDATE: The Trend Continues: NYC Passes Salary History Ban http://www.seyfarth.com:80//publications/OMM050617-LE Sat, 06 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On May 4, 2017, New York City Mayor Bill de Blasio signed into law the long awaited ban on employers inquiring about a prospective job applicant&rsquo;s prior salary history. The law will go into effect in 180 days on October 31, 2017.&nbsp;</em></p> <p> Halloween just got a little spookier for employers.</p> <p> On May 4, 2017, New York City Mayor Bill de Blasio signed into law the legislation that bans New York City employers from inquiring about or seeking the salary history of job applicants. See our previous alert about the proposed law <a href="http://www.seyfarth.com/publications/OMM040617-LE2">here</a>. The law will go into effect on Halloween, October 31, 2017. While the wording of section 2 of the law may suggest that the City Commission on Human Rights must issue regulations before the law can take effect, both the Mayor and the Commission issued statements indicating that the effective date will be 180 days from the Mayor&rsquo;s signature.</p> <p> It remains to be seen whether the New York City law will face the same legal challenges as its Philadelphia counterpart.&nbsp; Last month, the Chamber of Commerce for Greater Philadelphia filed a federal lawsuit on First Amendment and Due Process grounds against Philadelphia&rsquo;s pay equity Ordinance, which similarly prohibits inquiries into salary history.&nbsp; See our alert on the challenge <a href="http://www.seyfarth.com/publications/OMM042517-LE">here</a>.</p> <p> With the impending city and state law bans not only in NYC and Philadelphia, and but also in <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a> and Puerto Rico that will forbid or limit an employer&rsquo;s inquiry into prior salary, the <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California Fair Pay Act prohibition on using prior salary as the sole justification for pay differences</a>, and <a href="http://www.seyfarth.com/publications/OMM050417-LE">split within the federal Circuits on the use of prior salary</a>, all employers who use prior salary as a touchpoint in setting initial compensation - not just those with operations in NYC - are wise to carefully consider the full legal landscape as they wade into this new approach to pay.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely.&nbsp; We hope you will join Seyfarth&rsquo;s Pay Equity and Workplace Counseling &amp; Solutions Groups for a joint Webinar on May 9th to discuss this litigation and the wave of wage history bans.&nbsp; You can register for <em>The Next Pay Equity Frontier: Salary History Bans </em>webinar <a href="http://www.seyfarth.com/events/Webinar-051917LE">here</a>.</p> http://www.seyfarth.com:80//publications/HCRMA050517 Issue 109: House Passes Modified Version of AHCA - Bill to Proceed to Senate http://www.seyfarth.com:80//publications/HCRMA050517 Fri, 05 May 2017 00:00:00 -0400 <div> <em>This is the one hundred and ninth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong> On May 4th, House Republicans were finally able to pass a modified version of the American Health Care Act (&ldquo;AHCA&rdquo;) on the thinnest of margins. &nbsp;To muster the votes, the Republicans had to make a series of tweaks to the bill that were requested by both the conservative Freedom Caucus as well as the more moderate Tuesday Group. &nbsp;Most notably, the AHCA (as modified) would permit states to opt-out of the Affordable Care Act&rsquo;s (ACA&rsquo;s) community rating and essential health benefits (EHB) requirements. To minimize the potential impact on persons with pre-existing condition exclusions (who would likely pay more in the absence of these standards), the AHCA allocates billions of dollars that states may use to establish high risk pools. The bill now proceeds to the Senate where it faces additional challenges in what is typically a more independent, deliberative legislative body.</em><br /> &nbsp;</div> <div> After a <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue107_03242017.pdf">false start</a> in late March, on May 4th House Republicans were finally able to pass a modified version of the American Health Care Act (&ldquo;AHCA&rdquo;) on the thinnest of margins. &nbsp;To muster the votes, the Republicans had to make a series of tweaks to the bill that were requested by both the conservative Freedom Caucus as well as the more moderate Tuesday Group. &nbsp;See, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue106_03082017.pdf">Issue 106</a> for details on the originally proposed AHCA.</div> <div> &nbsp;</div> <div> <strong>What Changed from the Earlier Bill?</strong></div> <div> &nbsp;</div> <div> Most notably, the AHCA (as modified) would permit states to opt-out of the Affordable Care Act&rsquo;s (ACA&rsquo;s) community rating and essential health benefits (EHB) requirements, as discussed in <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue108_04182017.pdf">Issue 108</a>. &nbsp;The ACA requires all plans in the individual and small group markets to cover all EHBs and generally prohibits carriers from charging sick people more for coverage. &nbsp;To minimize the potential impact on persons with pre-existing condition exclusions (who would likely pay more in the absence of these standards), the AHCA allocates billions of dollars that states may use to establish high risk pools.</div> <div> &nbsp;</div> <div> The amendment originally exempted Congress (whose members must get coverage from the Marketplace) from these changes to the ACA. &nbsp;After a public outcry, the House first voted to remove the Congressional exemption, then voted to pass the AHCA.</div> <div> &nbsp;</div> <div> House Republicans could only afford to lose 21 Republican votes. &nbsp;They lost 20 (and picked up no Democratic support), so the bill passed with a razor-thin 217-213 margin.</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> While it may seem surprising given the efforts required to get to this point, the House vote was always viewed as the easier step in the process. &nbsp;The Senate will now take up the AHCA, and significant hurdles remain. &nbsp;Notably:</div> <div> &nbsp;</div> <ul> <li> <em>CBO Score</em>. &nbsp;Immediately following the House vote, Mitch McConnell announced the Senate would wait for the Congressional Budget Office (CBO) score before voting. &nbsp;Prior to the amendments watering down the pre-existing condition exclusion protections and adding billions of dollars in high-risk pool spending, the CBO score suggested the AHCA would save roughly $300 billion but result in 24 million fewer covered persons over ten years, as compared to the ACA. Most expect the figures in the revised report will be worse. &nbsp;</li> <li> <em>Eligibility for Consideration through Reconciliation.</em> &nbsp;It&rsquo;s unclear whether some of the changes the AHCA makes to the ACA will qualify for inclusion in a Senate reconciliation bill (which generally can only include revenue-related provisions). &nbsp;If the Senate&rsquo;s parliamentarian disagrees that this bill contains exclusively revenue-related provisions, the Senate would need to either modify the bill (which would then need to go back to the House), or pick up 60 votes (requiring Democratic support, which is unlikely). &nbsp;</li> <li> <em>Changes Expected.</em> &nbsp;Putting aside the reconciliation-related concerns, several Republican Senators and President Trump himself have suggested the bill will change in the Senate. &nbsp;Many of these amendments would offset the delicate balance the House is trying to strike to win the necessary votes, meaning the two bodies may not be able to pass the same version of the bill (which would be required). &nbsp;</li> <li> <em>President&rsquo;s Promises.</em> &nbsp;President Trump has promised the AHCA will protect persons with pre-existing conditions. &nbsp;Kaiser Family Foundation is projecting that the billions of dollars allocated to cover people with pre-existing conditions in a separate, high-risk insurance pool will only cover a fraction of the costs. &nbsp;In the past, these high-risk pools have been unsuccessful due to inadequate funding. &nbsp;</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM050517-LIT Hold That Order! FDA Freezes Menu Labeling Rules Until 2018 http://www.seyfarth.com:80//publications/OMM050517-LIT Fri, 05 May 2017 00:00:00 -0400 <div> The Food and Drug Administration (&ldquo;FDA&rdquo;) has extended the compliance date for its menu labeling rules just days before the final rules were set to take effect. The FDA had previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining at restaurants and other similar food establishments. The FDA has extended the compliance deadline to May 7, 2018.</div> <div> &nbsp;</div> <div> The extended compliance date was in response, in part, to a last minute petition by a group of major grocers and retailers who argued that the menu labeling rules were overly broad and encompassed too many businesses, did not properly clarify what constitutes a &ldquo;menu,&rdquo; and were expected to cause significant costs for compliance.&nbsp;</div> <div> &nbsp;</div> <div> The FDA reasoned that the new extension &ldquo;allows for further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule.&rdquo; The FDA has proposed an interim final rule and opened it for public comment. Additional information is available at the <a href="https://www.federalregister.gov/documents/2017/05/04/2017-09029/food-labeling-nutrition-labeling-of-standard-menu-items-in-restaurants-and-similar-retail-food">Federal Register Notice Announcing the May 7, 2018 Compliance Date</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM050517-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/OMM050517-LE Fri, 05 May 2017 00:00:00 -0400 <p> 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 <strong><em>after</em></strong> extending a conditional offer that is <strong><em>only</em></strong> conditioned on the result of the check.</p> <p> The Ordinance became effective on January 22, 2017, however, it will not be enforced until July 1, 2017.&nbsp;&nbsp; Violations between January 22, 2017, and June 30, 2017, may result in a written warning.</p> <p> The City of Los Angeles Bureau of Contract Administration (the &ldquo;BCA&rdquo;) 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> <strong><u>UPDATE:&nbsp; </u></strong><u>Two new documents have been posted to the BCA website:</u></p> <ul> <li> <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Initiative%20for%20Hiring%20FAQ.pdf"><em>FAQs</em></a></li> <li> <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Initiative%20for%20Hiring%20Overview.pdf"><em>Fair Chance Initiative for Hiring Overview</em></a></li> </ul> <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 the notice the BCA provides on its website 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; 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/OMM050517-LE2 New York DOL Challenges Rescindment of Payroll Debit Card and Direct Deposit Regulations http://www.seyfarth.com:80//publications/OMM050517-LE2 Fri, 05 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The New York Department of Labor has mounted a challenge to the successful appeal of its promulgated regulations governing payment to employees via payroll debit cards and direct deposit.&nbsp; The regulations were set to go into effect on March 7, 2017, before they were summarily rescinded by the state Industrial Board of Appeals in February.&nbsp; </em></p> <p> As anticipated, on April 24, the New York Department of Labor (&ldquo;NY DOL&rdquo;) filed <a href="http://www.seyfarth.com/dir_docs/publications/NY_Appeal_OTSC_Verified_Petition_with_Exhibits_A_and_B.pdf">an appeal</a> seeking to reverse the New York Industrial Board of Appeals&rsquo;(the &ldquo;Board&rdquo;) decision to rescind the regulations governing payment of wages by payroll debit card and direct deposit.&nbsp; As previously reported <a href="http://www.seyfarth.com/publications/OMM022117-LE">here</a>, these regulations, which were set to go into effect on March 7, 2017, were rescinded in February.</p> <p> The NY DOL must establish that the Board&rsquo;s decision was &ldquo;an error of law or was arbitrary and capricious,&rdquo; which gives significant deference to the Board&rsquo;s decision.&nbsp;</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/NYDOL-MOL.pdf">The NY DOL&rsquo;s brief</a> largely focuses on the fact that <em>employers</em>, and only if applicable, their <em>agents</em>, are regulated by these provisions.&nbsp; The NY DOL also argues that it has longstanding rules governing payroll debit cards in its opinion letters, and that no legislation was even considered until years after these opinions were issued. Thus, it claims its authority to issue such regulations was well-established.&nbsp;</p> <p> The NY DOL argues that Global Cash Card, the payroll debit card vendor that challenged the regulations, lacked standing to do so.&nbsp; In particular, the NY DOL argues that Global Cash Card is not a &ldquo;person in interest&rdquo; under the Labor Law because it is an agent that contracts with employers to issue payroll debit cards.&nbsp; It notes that the regulation&rsquo;s inclusion of payroll debit card vendors was meant &ldquo;to prevent employers from evading the provision&rsquo;s ban on fees for certain services by imposing such fees indirectly, through their agents.&rdquo;&nbsp; As such, employers cannot fashion a &ldquo;work-around&rdquo; in avoiding compliance with the regulations merely by contracting with a third party to manage its payments to employees via payroll debit card.&nbsp;</p> <p> Also challenged was the Board&rsquo;s finding that the NY DOL went beyond its statutory authority in regulating payroll debit cards.&nbsp; The NY DOL noted that Article 6 of the New York Labor Law requires that workers be paid in full and within a statutorily prescribed time period, that informed consent is required before an employer may require payment by direct deposit, and prohibits unlawful deductions from wages.&nbsp; Under this authority, the NY DOL sought to regulate the imposition of certain fees, which could place encumbrances on employee access to wages.</p> <p> We will continue to track this proceeding as it nears a decision.&nbsp; Global Cash Card has until May 29 to file opposition letters and the NY DOL has until June 12 to file a reply. &nbsp;Until the appeal is decided, employers must rely on the NY DOL opinion letters and statutes which pertain to wage payments generally and payroll debit cards to ensure compliance with the law.&nbsp; As Pennsylvania&rsquo;s payroll debit card law goes into effect on May 5, New York employers are waiting for further clarity.&nbsp; For now, the law regarding payroll debit cards remains in flux in New York.&nbsp; Stay tuned!</p> <p> Finally, employers should also note that the New York City Freelance Isn&rsquo;t Free Act, on which we previously reported<a href="http://www.seyfarth.com/publications/MA110816-LE"> here</a> and <a href="http://www.seyfarth.com/publications/OMM120216">here</a>, will go into effect on May 15, 2017.</p> http://www.seyfarth.com:80//publications/WH050517 Cash Now or Paid Time Off Later? House Passes FLSA Amendment to Permit Private Sector Comp Time http://www.seyfarth.com:80//publications/WH050517 Fri, 05 May 2017 00:00:00 -0400 <p> On May 2, 2017, the House of Representatives passed a bill amending the Fair Labor Standards Act to permit private employees to choose to take paid time off instead of monetary overtime compensation when working more than 40 hours in one week. Passed along party lines in the House, the bill would still need to pass the Senate, making its future somewhat uncertain. Should the Senate approve it, the Trump Administration has already signaled its support for the bill.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/overtime/cash-now-or-paid-time-off-later/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=5c81a6470b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-5c81a6470b-73050573">click here</a></p> http://www.seyfarth.com:80//news/maatman-quoted-national-law-journal-050517 Gerald Maatman quoted in the <i>National Law Journal</i> http://www.seyfarth.com:80//news/maatman-quoted-national-law-journal-050517 Fri, 05 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Court Confronts Scope of EEOC&#39;s Power to Dig Into Company Files,&quot; a May 5 story from the <em>National Law Journal</em> on how a federal appeals court trained an eye on the power of the U.S. Equal Employment Opportunity Commission to subpoena internal documents of companies under investigation, sparking claims of &ldquo;abuse of power&rdquo; and crystallizing tension over the scope of the agency&rsquo;s authority. Maatman said that this case is indicative of the process of the fight between the employer, the community and agency about the proper use of that power to investigate EEOC charges.</p> http://www.seyfarth.com:80//news/lorber-quoted-bloomberg-BNA-050417 Larry Lorber quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/lorber-quoted-bloomberg-BNA-050417 Thu, 04 May 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;To Confirm or Not? That May Be the Question for Some DOL Directors,&quot; a May 4 story in <em>Bloomberg BNA</em> on whether the directors of the DOL&rsquo;s Office of Federal Contract Compliance Programs, Office of Labor-Management Standards and Office of Workers&rsquo; Compensation Programs should require senate confirmation. Lorber said that one possible effect of requiring confirmation for the positions would be to increase congressional oversight of the agencies.</p> <p> <a href="https://www.bna.com/confirm-not-may-n57982087529/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/TS050417 Webinar Recap! Protecting Confidential Information and Client Relationships in the Financial Services Industry http://www.seyfarth.com:80//publications/TS050417 Thu, 04 May 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s second webinar in its series of 2017 Trade Secret Webinars, Seyfarth attorneys Scott Humphrey, Robyn Marsh, and Dawn Mertineit focused on trade secret and client relationship considerations in the banking and financial services industry, with a particular focus on a firm&rsquo;s relationship with its FINRA members. The webinar included practical steps financial institutions can implement to protect trade secrets and client relationships; tips on what to do if your trade secrets are improperly removed or disclosed or if a former employee is violating his/her restrictive covenant agreements; how to prosecute a case against a former employee who is a FINRA member; and the impact of the Protocol for Broker Recruiting on trade secrets and client relationships.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/webinar-recap-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-4/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2373cfafe4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2373cfafe4-73050541">click here</a></p> http://www.seyfarth.com:80//publications/EL050417 Restaurant Wrong To Fire Workers Over Email Criticizing the Restaurant and its Managers http://www.seyfarth.com:80//publications/EL050417 Thu, 04 May 2017 00:00:00 -0400 <p> Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker&rsquo;s email that complained about their terms and conditions of employment.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/restaurant-wrong-to-fire-workers-over-email-criticizing-the-restaurant-and-its-managers/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=65203b5bd0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-65203b5bd0-71256185">click here</a></p> http://www.seyfarth.com:80//publications/ Acosta Takes the Helm http://www.seyfarth.com:80//publications/ Thu, 04 May 2017 00:00:00 -0400 <p> Last Thursday, the Senate confirmed Alexander Acosta as the 27th United States Secretary of Labor. Filling the final post in President Trump&rsquo;s cabinet, Acosta will lead a Department of Labor that has, since inauguration, operated without political leadership in the Secretary role. With Secretary Acosta in place, the DOL now has a leader to advance the new administration&rsquo;s agenda. Here, we offer a brief introduction to Secretary Acosta, as well an overview of the action and opportunity employers may expect on the wage and hour front over the next few months.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/acosta-takes-the-helm/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=60d8a50e33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-60d8a50e33-73050573">click here</a></p> http://www.seyfarth.com:80//publications/CDL050417 Court Orders Enterprise to Engage in Forensic Imaging and Analysis http://www.seyfarth.com:80//publications/CDL050417 Thu, 04 May 2017 00:00:00 -0400 <p> In<em> Realpage Inc. v. Enter. Risk Control, LLC, </em>2017 BL 102339 (E.D. Tex. 2017), the court ordered Enterprise Risk Control, LLC (&ldquo;Enterprise&rdquo;) to produce forensic images of devices used by a former Realpage employee to a forensic neutral in order to determine whether any source code was recoverable pertaining to Realpage&rsquo;s allegations of misappropriation.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/court-orders-enterprise-engage-forensic-imaging-analysis/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=522777ab6d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-522777ab6d-72857025">click here</a></p> http://www.seyfarth.com:80//publications/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Robert Milligan and Joshua Salinas author an article in <i>Intellectual Property Magazine</i> http://www.seyfarth.com:80//publications/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Thu, 04 May 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored &quot;The key to protecting trade secrets,&quot; an article on May 4 in <em>Intellectual Property Magazine</em>. The authors explore why companies must be vigilant and seek advice from counsel to ensure that their trade secret protection agreements remain current with new and changing legal developments.</p> <p> <a href="http://www.intellectualpropertymagazine.com/strategy/the-key-to-protecting-trade-secrets-123806.htm?origin=internalSearch">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM050417-LE Ninth Circuit Holds that Prior Salary Alone May Justify Pay Differential in Equal Pay Act Cases http://www.seyfarth.com:80//publications/OMM050417-LE Thu, 04 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On April 27, 2017, the Ninth Circuit held that using prior salary alone may support differences in compensation under the Equal Pay Act as a &ldquo;factor other than sex&rdquo; if using prior salary was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy.&rdquo;&nbsp; </em></p> <p> The debate over the lawfulness and utility of using prior salary as a guidepost in setting starting compensation for new employees continues.&nbsp; Last Thursday, the U.S. Court of Appeals for the Ninth Circuit held that using prior salary to set starting pay for new hires may support differences in compensation if its use was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy&rdquo; under the federal Equal Pay Act.&nbsp; While using prior salary as a factor for purposes of setting pay may serve legitimate and non-discriminatory business objectives, given the <a href="http://www.seyfarth.com/publications/OMM042517-LE">impending</a> <a href="http://www.seyfarth.com/publications/OMM080116-LE2">city and state law</a> <a href="http://www.seyfarth.com/publications/OMM040617-LE2">bans</a> that will forbid or limit an employer&rsquo;s inquiry into prior salary, the <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California Fair Pay Act prohibition on using prior salary as the sole justification for pay differences</a>, and split within the federal Circuits on the use of prior salary, we recommend that employers who wish to use prior salary for setting initial compensation carefully consider the full legal landscape.&nbsp;</p> <p> <strong>The Facts Underlying the Ninth Circuit Case</strong></p> <p> The case, <em>Rizo v. Yoviny</em><sup>1</sup><em>,</em>&nbsp;was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps.&nbsp; New math consultants were placed into Level 1, which contained ten salary steps with compensation&nbsp; ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates&rsquo; most recent prior salary and added 5% to assign the starting salary step within Level 1.</p> <p> Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County&rsquo;s practices, Rizo was to receive a 5% increase over her prior salary.&nbsp; However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants.&nbsp; The County addressed the issue by setting Rizo&rsquo;s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.</p> <p> Several years later, Rizo learned that at least one of her male colleague&rsquo;s starting salary was set at the &nbsp;Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid.&nbsp; After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act<sup>2</sup>.</p> <p> <strong>The Trial Court Decision</strong></p> <p> The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary --a &ldquo;factor other than sex.&rdquo; The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one&rsquo;s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.</p> <p> <strong>The Court of Appeals&rsquo; Decision</strong></p> <p> The Ninth Circuit Court of Appeals reversed and relied on its prior decision in <em>Kouba v. Allstate Insurance Co.</em><sup>3</sup>, which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor &ldquo;reasonably in light of the employer&rsquo;s stated purpose as well as its other practices.&rdquo;&nbsp; The Ninth Circuit held similar reasoning applied to Title VII claims as well.</p> <p> The Ninth Circuit rejected the district court&rsquo;s reasoning that, while <em>Kouba </em>permitted employers to rely on prior salary under certain circumstances, it did not go as far as permitting prior salary <em>alone </em>as a &ldquo;factor other than sex&rdquo; that could support an affirmative defense under the Equal Pay Act.&nbsp; In rejecting the district court&rsquo;s reasoning, the Ninth Circuit concluded that <em>Kouba </em>squarely addressed the issue and concluded that &ldquo;prior salary alone&rdquo; could justify pay disparities if prior salary was used reasonably and served some business policy.&nbsp;</p> <p> In response to Rizo&rsquo;s allegations, the County offered four business reasons for using prior salary to set pay: (1) the criterion was objective; (2) the policy encouraged candidates to leave their prior positions for a 5% salary increase; (3) the policy prevented favoritism and ensured consistency in application; and (4) the policy was a judicious use of taxpayer dollars. In light of its prior decision in <em>Kouba</em>, the Ninth Circuit vacated and remanded the matter to the district court to consider whether the business justifications proffered by the County were reasonable and served their stated purpose.&nbsp;</p> <p> <strong>Why is the <em>Rizo </em>Decision Important?</strong></p> <p> The Ninth Circuit&rsquo;s decision in <em>Rizo</em> is certainly welcome news for many employers who often turn to prior salary as a picture of the market for a particular role and as a proxy for an applicant&rsquo;s skills, experience, and performance in their prior role.&nbsp; Unfortunately, however, employers must navigate a patchwork of federal, state, and local laws that touch on the use of prior salary and the holding is not a blanket endorsement of using prior salary to justify pay differences.&nbsp; Bottom line: proceed with caution.</p> <p> <em>State and Local Law Considerations</em></p> <p> The <em>Rizo</em> decision comes in the middle of a recent wave of state laws and city ordinances aimed at prohibiting employers from even inquiring about wage history during the application and salary negotiation process so employers should be mindful of these potentially conflicting state laws and ordinances.&nbsp;</p> <p> For instance, there are state and city ordinances banning the use of prior history in setting starting wages in <a href="http://www.seyfarth.com/publications/OMM042517-LE">Philadelphia</a>, <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>&nbsp;and&nbsp;Puerto Rico that will soon take effect, and similar bans are under consideration <a href="http://www.seyfarth.com/dir_docs/publications/PE_01262017.pdf">in many other jurisdictions</a>, including <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">San Francisco</a>.&nbsp;</p> <p> Also, the Ninth Circuit&rsquo;s decision in <em>Rizo</em>, is squarely at odds with the California Fair Pay Act, <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">which expressly prohibits employers from justifying pay differences based solely on prior salary</a>.&nbsp;</p> <p> <em>Federal Law Considerations</em></p> <p> There are also federal law considerations.</p> <p> First, the <em>Rizo c</em>ourt made clear that there is not a bright-line rule that allows employers to rely on prior salary in setting starting wages.&nbsp; The burden will be on the employer to persuade the fact finder that prior salary information was (1) used reasonably, and (2) serves a business purpose.&nbsp; Accordingly, employers should clearly define the business reason why they wish to rely on prior salary information and ensure that it is being used reasonably to set compensation.</p> <p> Employers should be aware that there is a federal Circuit court split on the use of prior salary. &nbsp;The Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas others, like the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act<sup>4</sup>.</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> Careful evaluation of your policies and practices around the use of prior salary is encouraged.&nbsp; Given the maze of federal, state and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.&nbsp; The state and city ordinances may require modification of your employment applications and background screening materials.&nbsp;</p> <p> The <em>Rizo</em> decision and the looming salary bans make it more important than ever for employers to ensure they have a clear compensation philosophy, a defined compensation structure, and a method of making equitable starting salary decisions.&nbsp; Once employers have the structure in place, ensuring internal equity is much easier and can be pressure tested with proactive pay equity audits undertaken with legal counsel.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely.&nbsp; We hope you will join Seyfarth&rsquo;s Pay Equity and Workplace Counseling &amp; Solutions Groups for a joint Webinar on May 9th to discuss this litigation and the wave of wage history bans.&nbsp; You can register for <em>The Next Pay Equity Frontier: Salary History Bans </em>webinar <a href="http://www.seyfarth.com/events/Webinar-051917LE">here</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>No. 16-15372, 2017 WL 1505068 at *1 (9th Cir. April 27, 2017)</p> <p> <sup>2</sup>The Ninth Circuit panel explained that they limited their discussion to Rizo&rsquo;s Equal Pay Act claim because Title VII claims alleging that a plaintiff has been denied equal pay for substantially equal work are adjudicated according to Equal Pay Act standards.&nbsp; <em>See</em> <em>Id.</em> at n. 2.</p> </div> <div id="ftn3"> <p> <sup>3</sup>691 F.2d 873 (9th Cir. 1982)</p> </div> <div id="ftn4"> <p> <sup>4</sup><em>Cf. Riser v. QEP Energy, </em>776 F.3d 1191, 1199 (10th Cir. 2015), <em>quoting Angove v. Williams-Sonoma, Inc</em>., 70 F. App&rsquo;x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act &ldquo;precludes an employer from relying solely upon a prior salary to justify pay disparity.&rdquo;) and <em>Irby v. Bittick</em>, 44 F.3d 949 (11th Cir. 1995), quoting <em>Glenn</em> <em>v. General Motors Corp</em>., 841 F.2d 1567, 1571 &amp; n. 9; (&ldquo;We have consistently held that &lsquo;prior salary alone cannot justify pay disparity&rsquo; under the EPA.&rdquo;)<em> with Wernsing v. Department of Human Servs, </em>427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and <em>Taylor v. White , </em>321 F.3d 710, 720 (8th Cir. 2003) (&ldquo;we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all &ldquo;factor other than sex&rdquo; affirmative defense.&rdquo;)</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/WC050317 Dueling Fifth Circuit Panel Deadlocks, No Rehearing For Bass Pro In “Big Fish” EEOC Case http://www.seyfarth.com:80//publications/WC050317 Wed, 03 May 2017 00:00:00 -0400 <p> After a Fifth Circuit decision affirming a ruling by a U.S. District Court in Texas allowed the EEOC to seek compensatory and punitive damages in its high-profile Title VII pattern or practice race discrimination lawsuit against Bass Pro, a deadlocked Fifth Circuit denied Bass Pro&rsquo;s petition for a rehearing en banc. &nbsp;The highly contentious dissenting opinion, which prompted a response from the panel in favor of denying the rehearing, is a must-read for employers regarding judicial views on the damages the EEOC can seek in Title VII pattern or practice of discrimination litigation.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/05/dueling-fifth-circuit-panel-deadlocks-no-rehearing-for-bass-pro-in-big-fish-eeoc-case/">click here</a></p> http://www.seyfarth.com:80//publications/WH050317 Don’t Judge a Conditional Certification Motion by Its Cover http://www.seyfarth.com:80//publications/WH050317 Wed, 03 May 2017 00:00:00 -0400 <p> A New York federal court denied a motion for conditional certification of a nationwide collective action against Barnes &amp; Noble. The ruling highlights that, even though the burden for &ldquo;first stage&rdquo; certification is modest, courts may not approve such motions without evidence that the named plaintiffs are similarly situated to the putative collective action members they wish to represent.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/conditional-certification-defenses/dont-judge-a-conditional-certification-motion-by-its-cover/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=dd12119267-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-dd12119267-73050573">click here</a></p> http://www.seyfarth.com:80//publications/bond-authored-article-intellectual-property-watch-050317 Wayne Bond authored an article in <i>Intellectual Property Watch</i> http://www.seyfarth.com:80//publications/bond-authored-article-intellectual-property-watch-050317 Wed, 03 May 2017 00:00:00 -0400 <p> Wayne Bond authored &quot;Enlisting Government Help To Protect Your Trade Secrets,&quot; an article on May 3 in <em>Intellectual Property Watch</em>. The article discusses how both State Attorneys General and Federal Prosecutors have tools at their disposal that let them bring the full force of the government to a business&rsquo; side when its intellectual property rights are violated.</p> <p> <a href="https://www.ip-watch.org/2017/05/03/enlisting-government-help-protect-trade-secrets/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Seyfarth’s Andrew S. Boutros Authors <i>The ABA Compliance Officer’s Deskbook</i> <br><br><i>A Comprehensive Guidance For Understanding and Managing Risk</i> http://www.seyfarth.com:80//news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Wed, 03 May 2017 00:00:00 -0400 <div> <strong>Seyfarth Shaw Partner and National Co-Chair of the firm&rsquo;s White Collar, Internal Investigations and False Claims Team, Andrew S. Boutros</strong>, has just published an important compliance text, <strong><em>The ABA Compliance Officer&#39;s Deskbook</em></strong>, written alongside co-authors T. Markus Funk from Perkins Coie and Professor James T. O&rsquo;Reilly.</div> <div> &nbsp;</div> <div> Recognizing that compliance is one of the most crucial functions within the modern-day company, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> is a user-friendly, practical, and real-world focused deskbook written for today&rsquo;s compliance professional. Whether working in a big or small, private or public, established or rapidly-growing organization, the Book&rsquo;s aim is to empower compliance professionals to better understand the regulatory and enforcement landscapes in which they operate. The Book identifies compliance pitfalls and challenges across industries, subject matters, and corporate infrastructures and recommends practical solutions for today&rsquo;s most high-profile, hot-button compliance topics. &nbsp;In doing so, the Book covers the waterfront of topics such as:</div> <div> &nbsp;</div> <ul> <li> The Role of the Compliance Professional in Today&#39;s Organization &nbsp;&nbsp;</li> <li> Labor Exploitation and CSR</li> <li> The Foreign Corrupt Practices Act (&quot;FCPA&quot;) and U.S. Travel Act</li> <li> Dodd-Frank and Sarbanes-Oxley Financial Regulation</li> <li> Health Care</li> <li> Pharmaceutical, Medical, and Food Products</li> <li> Product Safety</li> <li> Environmental Regulation</li> <li> Government Contracts</li> <li> Nonprofit Entities</li> <li> Privacy and Data Security</li> <li> Preserving Legal Privilege</li> <li> Addressing Law Enforcement Activities</li> <li> Immunity Issues in Corporate Compliance</li> <li> Crimes of False Certification</li> <li> International Transactions Compliance: OFAC Sanctions</li> <li> The Corporate Whistleblower</li> <li> Corporate Voluntary Disclosures</li> <li> Department of Justice FCPA Pilot Program for Cooperation</li> <li> Deferred Prosecution Agreements, Non-Prosecution Agreements, and Corporate Integrity Agreements</li> <li> Structuring Compliance Programs to Meet and Exceed Statutory Obligations</li> </ul> <div> &nbsp;</div> <div> Whether a new or seasoned compliance professional, in-house lawyer, outside counsel, regulator, or member of management, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> covers key compliance concepts in a manner that is both thorough and easily-digestible.</div> <div> &nbsp;</div> <div> <strong>Andrew S. Boutros</strong> is the National Co-Chair of Seyfarth Shaw LLP&rsquo;s White Collar, Internal Investigations, and False Claims Team. He is an accomplished trial attorney and litigator, Foreign Corrupt Practices Act (FCPA) pioneer, Lecturer in Law at the University of Chicago Law School, and former law clerk on the Sixth Circuit Court of Appeals. Boutros is active with the American Bar Association, including being a voting Member of the ABA Criminal Justice Section Council and Co-Founder and National Co-Chair of the ABA&rsquo;s Global Anti-Corruption Committee. A former federal financial fraud prosecutor, Boutros successfully prosecuted a variety of high-profile cases, including what are regarded as the nation&rsquo;s largest criminal customs, trade, and antidumping duty fraud cases, which <em>Bloomberg Businessweek</em> also described as &ldquo;the largest food fraud in U.S. history.&rdquo; &nbsp;</div> <div> &nbsp;</div> <div> In addition to being a Member of the American Law Institute, Boutros is the recipient of the ABA&rsquo;s <em>Norm Maleng Minister of Justice Award</em> and the Federal Law Enforcement Officers Association (FLEOA) <em>National Prosecutorial Award</em>. &nbsp;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;</div> <div> &nbsp;</div> <div> <a href="https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=268758182&amp;term=5090160">Please click here</a> for details on how to order &ldquo;The ABA Compliance Officer&#39;s Deskbook.&rdquo;&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 has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80//news/maatman-quoted-law360-050217 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;The Rising Costs Of Tamping Down Class Actions,&quot; a May 2 story from <em>Law360 </em>on how class actions remain a potent weapon against companies in several practice areas, including the securities, employment and consumer protection spaces, where filings continue to be robust despite changes in class action law, according to separate studies. While the number of FLSA filings declined from 8,954 in 2015 to 8,308 in 2016, the 2016 tally is still the second-biggest annual tally for FLSA lawsuits, according to the firm&rsquo;s Workplace Class Action Report. Maatman said that most Fortune 1000 companies do business in New York and California, and the epicenters of workplace class action litigation are the Ninth and Second circuits &mdash; the Northern District of California and the Southern District of New York &mdash; where the case law is more plaintiff friendly than in other circuits.</p> http://www.seyfarth.com:80//news/weiss-interviewed-WGN-Radio-050217 Philippe Weiss interviewed by <i>WGN Radio</i> http://www.seyfarth.com:80//news/weiss-interviewed-WGN-Radio-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by <em>WGN Radio</em> on May 2 to discuss ways to handle customer cataclysms. You can listen to the interview, &quot;Wintrust Business Lunch 5/2/17: POTUS Tweets, MET Gala &amp; Customer Complaints,&quot; <a href="http://wgnradio.com/2017/05/02/wintrust-business-lunch-5217-potus-tweets-met-gala-customer-complaints/">at minute 22 here</a>.</p> http://www.seyfarth.com:80//publications/CP050217 Random Drug Tests (Still) Not Advisable In Most California Workplaces http://www.seyfarth.com:80//publications/CP050217 Tue, 02 May 2017 00:00:00 -0400 <p> California public policy, stated in our Constitution, strongly favors the right of privacy. But employers have their own legitimate interest in maintaining a safe, drug-free work environment. So what&rsquo;s the blunt truth about random drug testing in California?</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/05/02/random-drug-tests-still-not-advisable/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=8f345b4216-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-8f345b4216-71410869">click here</a></p> http://www.seyfarth.com:80//publications/WH050217 Sleeping on the Job? New York Court Finds Home Healthcare Employees Entitled to Pay for Each Hour on Overnight Shifts http://www.seyfarth.com:80//publications/WH050217 Tue, 02 May 2017 00:00:00 -0400 <p> A New York appeals court held that home healthcare employees who work overnight shifts are entitled to pay for all hours in a client&rsquo;s home in a 24-hour period&mdash;including sleep and meal periods. The previously accepted interpretation of New York law allowed employers to pay 13 hours for a 24-hour shift so long as specified meal and sleep periods were provided.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/">click here</a></p> http://www.seyfarth.com:80//publications/TBT050117 See You in September: Rohrabacher-Farr Amendment in Budget Deal http://www.seyfarth.com:80//publications/TBT050117 Mon, 01 May 2017 00:00:00 -0400 <p> The appointment of Jeff Sessions as Attorney General created a great deal of uncertainty in the medical marijuana community. &nbsp;Sessions has a long history of opposing the legalization of marijuana, whether for medical or recreational purposes. &nbsp;&ldquo;Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide,&rdquo; Sessions said in an interview with radio talk show host Hugh Hewitt in March.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/05/see-you-in-september-rohrabacher-farr-amendment-in-budget-deal/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=9a5481ee3d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-9a5481ee3d-71540589">click here</a></p> http://www.seyfarth.com:80//publications/LR50117 Second Circuit Holds NLRB Did Not Err in its Finding that Facebook Posting that Supervisor is a “Nasty Mother F***er” and “F*** His Mother” was Protected Concerted Activity http://www.seyfarth.com:80//publications/LR50117 Mon, 01 May 2017 00:00:00 -0400 <p> A server whose &ldquo;conduct [sat] at the outer bounds of protected, union-related comments&rdquo; when he posted that his manager is a &ldquo;nasty mother f***er&rdquo; and &ldquo;f*** his mother and his entire f***ing family,&rdquo; was not &ldquo;opprobrious enough&rdquo; to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in <em>NLRB v. Pier Sixty, LLC,</em> No. 15-1841 (2nd Cir. Apr. 21, 2017).</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/05/01/second-circuit-holds-nlrb-did-not-err-in-its-finding-that-facebook-posting-that-supervisor-is-a-nasty-mother-fer-and-f-his-mother-was-protected-concerted-activity/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4a79a07d24-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4a79a07d24-71423401">click here</a></p> http://www.seyfarth.com:80//publications/WH050117 SDNY Pancakes Parties’ Attempt to Bypass Cheeks: Requires Approval of Rule 68 Settlement http://www.seyfarth.com:80//publications/WH050117 Mon, 01 May 2017 00:00:00 -0400 <p> Under Rule 68, a party defending a claim can make an &ldquo;offer of judgment&rdquo; to the other party. If the other party accepts the offer, the clerk must enter judgment pursuant to the offer&rsquo;s terms. However, if the offered party rejects the offer and obtains a less favorable judgment at trial, that party must then pay the costs incurred by the offering party after the offer was made. Courts have explained that the purpose of Rule 68 is to prompt parties to evaluate the risks and costs of litigation and to balance those risks against the likelihood of success.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/settlement/sdny-requires-approval-of-rule-68-settlement/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=0adedba8f1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-0adedba8f1-73050573">click here</a></p> http://www.seyfarth.com:80//publications/CDL050117 Protect Your People: Newest Workday Scam Reroutes Employee Direct Deposit Funds http://www.seyfarth.com:80//publications/CDL050117 Mon, 01 May 2017 00:00:00 -0400 <p> Another week, another well-concocted phishing scam. &nbsp;The most recent fraudulent activity targeted businesses that use Workday, though this is not a breach or vulnerability in Workday itself. &nbsp;Specifically, the attack involves a well-crafted spam email that is sent to employees purporting to be from the CFO, CEO, or Head of HR or similar. &nbsp; Sometimes the emails include the name, title, and other personal information of the &ldquo;sender&rdquo; that we believe might be harvested from LinkedIn or other business databases. The email asks employees to use a link in the phishing email or attached PDF to log into a fake Workday website that looks legitimate. &nbsp;The threat actors who run the fake Workday website then use the user name and password to log into the Workday account as the employee and change their direct deposit bank/ACH information to another bank, relatable Green Dot, or similar credit card.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/protect-people-newest-workday-scam-reroutes-employee-direct-deposit-funds/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=3591247b33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-3591247b33-72857025">click here</a></p> http://www.seyfarth.com:80//publications/smith-authored-article-international-law-office-050117 Jason Smith authored an article in <i>International Law Office</i> http://www.seyfarth.com:80//publications/smith-authored-article-international-law-office-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Jason Smith authored &quot;Why understanding economic loss doctrine is critical for construction professionals,&quot; an article on May 1 in <em>International Law Office</em>. The article discusses the economic loss doctrine which is widely misunderstood and often misapplied.</p> <p> <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/Why-understanding-economic-loss-doctrine-is-critical-for-construction-professionals">You can view the full article here</a>.</p> http://www.seyfarth.com:80//news/sonneborn-and-hirsch-quoted-chicago-lawyer-050117 Amanda Sonneborn and Cory Hirsch quoted by <i>Chicago Lawyer</i> http://www.seyfarth.com:80//news/sonneborn-and-hirsch-quoted-chicago-lawyer-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Amanda Sonneborn and Cory Hirsch were quoted in &quot;Made to order: How Seyfarth Shaw tailored its new Willis Tower office space,&quot; a May 1 story by <em>Chicago Lawyer</em> on the firm&rsquo;s official move of its Chicago office to the Willis Tower. Sonneborn said that the firm believes staff and lawyers together make a firm work well, and this space allows us to break down the barriers to make that happen. Hirsch said that there was a lot of money put in to making conference rooms easier to use while also maintaining the portability factor.</p> <p> <a href="http://www.chicagolawyermagazine.com/Articles/2017/05/CL0517_Spaces">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/olson-quoted-SHRM-050117 Camille Olson quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/olson-quoted-SHRM-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in &quot;Employers: Is Your Unpaid Internship Program Legal?&quot; &mdash; a May 1 story from <em>SHRM </em>on the legality of employers offering internships without compensation. Olson said that when developing an unpaid internship program and related policies, employers should ensure they&#39;re in compliance with federal, state, and local laws that govern whether their program participants truly are interns.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/is-your-unpaid-internship-program-legal.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/lucano-quoted-MA-Lawyer-050117 Andrew Lucano quoted in The M&A Lawyer http://www.seyfarth.com:80//news/lucano-quoted-MA-Lawyer-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Andrew Lucano was quoted in a May 1 story &ldquo;The Middle-Market M&amp;A Picture: 2017&rdquo; from The M&amp;A Lawyer on the firm&rsquo;s Middle-Market M&amp;A SurveyBook. The Survey found a number of trends, including a slight year-over-year increase in the amount of indemnity escrow amounts. Lucano noted that despite the decline in volume, 2016 was still a robust year for middle-market M&amp;A.</p> http://www.seyfarth.com:80//news/weiss-quoted-nation-restaurant-news-042817 Philippe Weiss quoted by <i>Nation’s Restaurant News</i> http://www.seyfarth.com:80//news/weiss-quoted-nation-restaurant-news-042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;How to avoid a customer service catastrophe,&quot; an April 28 article in <em>Nation&rsquo;s Restaurant News</em> on how training, protocols and a generous spirit can defuse explosive situations. Weiss said that at a time when most people have mobile phones handy to take photos or videos of any potential customer service catastrophe, it has become more important than ever for restaurant operators to train their staff to defuse potentially explosive situations before they become news.</p> <p> <a href="http://www.nrn.com/operations/how-avoid-customer-service-catastrophe">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WC042817 Dealing With Problem Employees and Employee Problems: What Employers Need To Know http://www.seyfarth.com:80//publications/WC042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Employees are only human &mdash; misconduct, theft, harassment, discrimination, and even criminal conduct are a fact of life, even in the workplace. &nbsp;Companies confronted with allegations of workplace misconduct must consider the manner of responding to the allegations and the means by which they will be investigated.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/dealing-with-problem-employees-and-employee-problems-what-employers-need-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=0e72c3889a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-0e72c3889a-73050581">click here</a></p> http://www.seyfarth.com:80//publications/WH042817 Budget Blues: Planning for a Possible Government Shutdown http://www.seyfarth.com:80//publications/WH042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a long-term funding bill, we could be facing a federal government shutdown with no money flowing to fund non-essential services. While it seems the crisis may be averted for now &mdash; with a short-term spending bill that would keep the lights on for another week &mdash; the potential for a shutdown still looms. &nbsp;And with it comes concern for many private-sector employers with federal contracts. &nbsp;If the money dries up, employers may need to consider cost-saving measures, such as temporary furloughs, reductions in hours, or reduced pay.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/salary-basis/budget-blues-planning-for-a-possible-government-shutdown/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=3e73c7aa02-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-3e73c7aa02-71257989">click here</a></p> http://www.seyfarth.com:80//publications/solowey-authored-article-association-of-corporate-counsel-ACC-042817 Dawn Solowey authored an article in <i>ACC</i> http://www.seyfarth.com:80//publications/solowey-authored-article-association-of-corporate-counsel-ACC-042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Dawn Solowey authored &quot;Ten Steps for Developing a Settlement Strategy for Employment Claims,&quot; an article on April 28 in <em>ACC </em>about 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://www.acc.com/legalresources/publications/topten/steps-for-developing-a-settlement-strategy.cfm">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/ERISA042717 Fifth Circuit: Discretionary Ban Does Not Mandate De Novo Review http://www.seyfarth.com:80//publications/ERISA042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> In<em> Ariana M. v. Humana Health Plan of Texas, Inc.,</em> No. 16-20174 (5th Cir. Apr. 21, 2017), the Firth Circuit concluded that Texas&rsquo; ban on discretionary clauses in certain insurance policies did not require a <em>de novo</em> review of the defendant administrator&rsquo;s factual determinations in an ERISA claim for benefits.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/04/27/fifth-circuit-discretionary-ban-does-not-mandate-de-novo-review/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=8f99096fd0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-8f99096fd0-73050525">click here</a></p> http://www.seyfarth.com:80//publications/rodriguez-authored-op-ed-washington-examiner-050117 Leon Rodriguez authored an op-ed in the <i>Washington Examiner</i> http://www.seyfarth.com:80//publications/rodriguez-authored-op-ed-washington-examiner-050117 Thu, 27 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez authored &quot;Where immigration, jobs and infrastructure meet,&quot; an op-ed on April 27 in the <em>Washington Examiner</em> on how the immigrant investor program known as EB-5 is due to expire at week&#39;s end.</p> <p> <a href="http://www.washingtonexaminer.com/where-immigration-jobs-and-infrastructure-meet/article/2621520">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/EL042717 Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not http://www.seyfarth.com:80//publications/EL042717 Thu, 27 Apr 2017 00:00:00 -0400 http://www.seyfarth.com:80//publications/TS042717 Enlisting Government Help to Protect Your Trade Secrets http://www.seyfarth.com:80//publications/TS042717 Thu, 27 Apr 2017 00:00:00 -0400 <div> &ldquo;I&rsquo;m from the government and I&rsquo;m here to help.&rdquo; Yeah, right.[1]</div> <div> &nbsp;</div> <div> Most businesses think protecting their intellectual property is their own responsibility, and it is. But what about when your intellectual property rights are violated by an evildoer? Who are you going to call? While your obvious choice will be the law firm sponsoring this blog, you might also be able to get help from your local prosecutor.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/intellectual-property/enlisting-government-help-to-protect-your-trade-secrets/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=aa20180f2f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-aa20180f2f-73050541">click here</a></div> http://www.seyfarth.com:80//news/sherman-quoted-CNBC-042717 Andrew Sherman quoted by <i>CNBC.com</i> http://www.seyfarth.com:80//news/sherman-quoted-CNBC-042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Musk&#39;s &#39;out of cash&#39; dilemma many business founders love to share,&quot; an April 27 story from <em>CNBC.com</em> on business owners&rsquo; difficult decision to sell a piece or even all of their company. Sherman said many entrepreneurs need to turn to the equity markets to solve cash flow problems, reaching out to angels, angel networks, online funding or private placements, especially when they lack real estate or inventory or equipment to pledge as collateral.</p> <p> <a href="http://www.cnbc.com/2017/04/27/the-crucial-decision-teslas-elon-musk-had-to-make-when-he-was-broke.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/sherman-quoted-inside-sources-042717 Andrew Sherman quoted by <i>Inside Sources</i> http://www.seyfarth.com:80//news/sherman-quoted-inside-sources-042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> Andrew Sherman&rsquo;s testimony before the House Small Business Committee Subcommittee on Economic Growth, Tax, and Capital was covered in &quot;Republicans Explore What Drives Economic Growth,&quot; an April 27 story from <em>Inside Sources</em>. Sherman said that turning to present day trends, 2017 has seen a widespread but tempered increase in confidence among small business owners regarding the economy and overall trends in business investment.</p> <p> <a href="http://www.insidesources.com/republicans-explore-makes-economy-grow/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/sherman-to-testify-before-house-committee-on-small-business Andrew J. Sherman To Testify Before The House Committee on Small Business http://www.seyfarth.com:80//news/sherman-to-testify-before-house-committee-on-small-business Wed, 26 Apr 2017 00:00:00 -0400 <div> WASHINGTON, D.C. - On Thursday, April 27, Seyfarth Shaw LLP partner Andrew J. Sherman will testify before the U.S. House Committee on Small Business. The House Subcommittee on Economic Growth, Tax, and Capital Access hearing, &ldquo;Small Business: The Key to Economic Growth,&rdquo; is scheduled to begin at 10:00 a.m. ET. Sherman&rsquo;s written testimony will be available on Thursday, April 27 and the hearing will also be&nbsp;<a href="http://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399879">webcast here</a>.</div> <div> &nbsp;</div> <div> Sherman is chair of the firm&rsquo;s Washington, D.C. Corporate department. He focuses his practice on issues affecting business growth for companies at all stages, including developing strategies for licensing and leveraging intellectual property and technology assets, intellectual asset management and harvesting, as well as international corporate transactional and franchising matters.</div> <div> &nbsp;</div> <div> Seyfarth&rsquo;s Corporate department focuses on areas such as commercial transactions, corporate counseling, financing, international business, investment management, mergers and acquisitions, securities, and tax planning.</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> <div> &nbsp;</div> <div> <strong>Contact:&nbsp;</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/paparelli-quoted-law360-042617 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/paparelli-quoted-law360-042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;After 100 Days, Immigration Changes Will Be Up To Congress,&quot; an April 26 story from <em>Law360 </em>on how the President&rsquo;s immigration changes are dependent on congressional action. Paparelli said that what the executive order did on the H-1Bs was to mark off turf, but that turf can&#39;t be tilled until Congress intervenes.&nbsp;</p> http://www.seyfarth.com:80//news/rodriguez-quoted-the-capital-and-main-042617 Leon Rodriguez quoted by the <i>Capital and Main</i> http://www.seyfarth.com:80//news/rodriguez-quoted-the-capital-and-main-042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Fire and ICE: California Gets Ready for Workplace Immigration Raids,&quot; an April 26 story from <em>Capital and Main</em> on an immigration raid at the end of February in the suburbs of Jackson, Mississippi and in nearby Meridian. Rodriguez said that the administration has been very clear about its intention to broaden the classes of individuals who could be subject to deportation.</p> <p> <a href="http://capitalandmain.com/fire-and-ice-california-gets-ready-for-workplace-immigration-raids-0426">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/TS042617 Webinar Recap! Simple Measures for Protecting Intellectual Property and Trade Secrets http://www.seyfarth.com:80//publications/TS042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Every day, companies unknowingly give up intellectual property and trade secrets which they could have otherwise protected with simple processes. Poor R&amp;D policies may not capture patent rights on a company invention. A faulty or simply outdated employment agreement may not protect a customer list used by an employee who leaves for a competitor. These pitfalls are easily avoidable by implementing measures on the front end and educating employees on the basics of intangible property and how to protect it.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/webinar-recap-simple-measures-for-protecting-intellectual-property-and-trade-secrets/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=349d2f9516-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-349d2f9516-73050541">click here</a></p> http://www.seyfarth.com:80//publications/WSE042617 Heather MacDougall Re-Nominated as Chair of the Occupational Safety and Health Review Commission http://www.seyfarth.com:80//publications/WSE042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Heather L. MacDougall has recently been re-nominated by President Trump to the Occupational Safety and Health Review Commission (OSHRC). &nbsp;McDougall was originally nominated to the OSHRC in 2014 by then-President Obama and confirmed unanimously by the Senate. &nbsp;MacDougall had then been designated as acting Chair of the OSHRC. Her previous term was set to expire in January 2017.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/heather-macdougall-re-nominated-as-chair-of-the-occupational-safety-and-health-review-commission/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=efceb759a4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-efceb759a4-71407177">click here</a></p> http://www.seyfarth.com:80//publications/WLS042617 Victorian OHS enforcement: why change the game plan when your team is on top? http://www.seyfarth.com:80//publications/WLS042617 Wed, 26 Apr 2017 00:00:00 -0400 <div> On Friday 24 March, Western Bulldogs kicked off their 2016 premiership defence with a tenacious win against Collingwood. Round 1 of the 2017 AFL season also coincided with the introduction of the WorkSafe Legislation Amendment Bill 2017 (VIC).</div> <div> &nbsp;</div> <div> This Bill includes changes to the rules by which WorkSafe Victoria can prosecute alleged indictable offences against the OHS Act outside the current two year limitation period.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/04/victorian-ohs-enforcement-why-change-the-game-plan-when-your-team-is-on-top/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=f2300883a6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-f2300883a6-73050585">click here</a></div> http://www.seyfarth.com:80//publications/OMM042517-LE Businesses Challenge Philadelphia Law Prohibiting Inquiry into Prospective Employee’s Wage History http://www.seyfarth.com:80//publications/OMM042517-LE Tue, 25 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong> Businesses banded together to challenge, on First Amendment and Due Process grounds, the pay equity Ordinance which would ban inquiries into prospective employees&rsquo; prior salaries.&nbsp; The Ordinance, which was set to go into effect on May 23, has been stayed until the pending motion for preliminary injunction is decided. &nbsp;</em></p> <p> Following Philadelphia&rsquo;s passage of a pay equity Ordinance that prohibits inquiries into salary history (on which we previously reported <a href="http://www.seyfarth.com/publications/OMM012717LE">here</a>), businesses are challenging the Ordinance.&nbsp; The law was slated to go into effect on May 23, 2017, but on April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the &ldquo;Chamber&rdquo;) filed a federal lawsuit seeking to enjoin the law on numerous grounds discussed below. &nbsp;On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stays the effective date of the new law until resolution of the motion for preliminary injunction.&nbsp;</p> <p> The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia and Pennsylvania Human Relations Commission, No. 17-01548 (E.D. Pa. April 6, 2017) was filed against the City and the city&rsquo;s Commission on Human Relations, alleging the law violates the First Amendment, the Due Process Clause of the Fourteenth Amendment, the Commerce Clause, Pennsylvania&rsquo;s First Class City Home Rule Act, and the state&rsquo;s Constitution.&nbsp; The challenge to the Ordinance casts doubt on its intended effect, which is to lessen the wage gap between men and women.&nbsp; The complaint details the burden on businesses and the relative low impact which the Chamber expects the law to have on the gender pay disparity.&nbsp; In fact, the Chamber claims that the Ordinance will reduce hiring within Philadelphia overall, rather than ameliorating the wage gap.</p> <p> The Philadelphia Ordinance makes it unlawful for an employer or employment agency to inquire about or require disclosure of an applicant&rsquo;s wage history, condition employment on such a disclosure, rely on prior wages in determining the wages for that individual at any point in the hiring process (absent the applicant&rsquo;s &ldquo;knowing and willing&rdquo; disclosure), or retaliate against an applicant for refusing to provide his or her wage history to a prospective employer.</p> <p> <strong><em>First Amendment Challenge</em></strong></p> <p> According to the Chamber, the Ordinance unconstitutionally limits employers&rsquo; ability to inquire about or rely on an applicant&rsquo;s wage history, and seeks to prevent employers from communicating to employees the importance which prior salary has on employers&rsquo; decisions.&nbsp; The complaint points out that the Ordinance does not contemplate applicants such as a high-level executive who must be lured away from his or her current employer, or a partner in a law firm with the &ldquo;lock step&rdquo; compensation structure.&nbsp; The Chamber contends these are examples of situations where an inquiry into and reliance on wage history &ldquo;could not possibly perpetuate wage disparities caused by gender discrimination.&rdquo;&nbsp; Further, the complaint alleges that the Ordinance is &ldquo;substantially underinclusive&rdquo; because employers are permitted to rely on wage history information which is disclosed &ldquo;knowingly and willingly&rdquo; by applicants, even if, for example, these individuals were in fact subject to gender discrimination.&nbsp; At bottom, the complaint alleges that the law is unconstitutional because it could have achieved its objectives through other means &ldquo;more directly targeted at the problem of gender discrimination and that would have restricted far less employer speech.&rdquo;&nbsp;</p> <p> <strong><em>The Ordinance&rsquo;s Reach Extends Outside Philadelphia&rsquo;s Borders</em></strong></p> <p> Further, the Chamber argues that the Ordinance violates the Due Process Clause of the Fourteenth Amendment.&nbsp; In particular, the Chamber alleges that the language in the Ordinance which permits employers to rely on an applicant&rsquo;s wage history if it is &ldquo;knowingly and willingly disclosed&rdquo; is impermissibly vague.&nbsp; The Chamber additionally alleges that the Ordinance applies beyond Philadelphia, and even Pennsylvania&rsquo;s borders, since out-of-state employers may also be subject to the law if they &ldquo;do business&rdquo; in Philadelphia.&nbsp; Therefore, the Chamber contends, the Ordinance violates the Commerce Clause, since it &ldquo;penalizes speech occurring wholly outside the boundaries of Pennsylvania.&rdquo;&nbsp;</p> <p> The Chamber finally alleges that the extraterritorial reach of the Ordinance violates the Pennsylvania Constitution and the Home Rule Act, which together prohibit a city from exercising its power with respect to individuals who do not live or work in the City.&nbsp;</p> <p> <strong><em>The Commonwealth&rsquo;s Legislative Efforts</em></strong></p> <p> The Pennsylvania Senate passed a <a href="http://www.legis.state.pa.us/cfdocs/billinfo/BillInfo.cfm?syear=2017&amp;sind=0&amp;body=S&amp;type=B&amp;bn=241">Bill</a> in February that would amend the Commonwealth&#39;s Equal Pay Act and which would <strong>not</strong> prohibit employers from inquiring into prospective employee&#39;s wage histories. Significantly, the Bill contains a preemption clause which provides that &quot;[t]he provisions of this act shall preempt and supersede any local ordinance or rule concerning the subject matter of this Act.&quot;&nbsp; If enacted, this preemption language also would sound the death knell to the Ordinance.</p> <p> <strong><em>What Does This Mean for Employers?</em></strong></p> <p> Bans on inquiries into past wages are springing up across the country--including in <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, and perhaps soon in San Francisco.&nbsp;</p> <p> Even where inquiries into prior wages are legal, allegations of disparate employment decisions which were based on an applicant&rsquo;s prior salary may be problematic for employers.&nbsp; While prior salary may be useful for employers who are looking to hire a specific type of candidate, such as a high-level executive, due to state and local laws prohibiting such inquiries, there is a potential risk involved in relying on this information.&nbsp; We will continue to track this lawsuit as it moves through the courts.&nbsp;</p> <p> &nbsp;</p> <p> Join Seyfarth&rsquo;s Pay Equity Group for a <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cejL3iKd4ATYVnXHJJnKIbdnuxS_41Db1HqFZzsQtTTB&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cSBHXCK-qB1KjIaCdTNqT86bTNHXmRnNYf12wTi2urjl&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cSBHXCK-qB1KjIaCdTNqT86bTNHXmRnNYf12wTi2urjl">Webinar</a> on May 9th to discuss the wave of wage history bans and to discuss how you can prepare.</p> http://www.seyfarth.com:80//publications/EL042517 Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees (Blog Post) http://www.seyfarth.com:80//publications/EL042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/potential-government-shutdown-immigration-consequences-for-employers-and-their-foreign-national-employees/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=183cb89c7b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-183cb89c7b-71256185">click here</a></p> http://www.seyfarth.com:80//publications/CDL042517 Lessons from the FTC’s First Enforcement Action Against an IoT Company http://www.seyfarth.com:80//publications/CDL042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> On January 5, 2017, the Federal Trade Commission (FTC) sued for permanent injunction a Taiwan-based computer networking equipment manufacturer D-Link Corporation and its U.S. subsidiary, alleging that D-Link&rsquo;s inadequate security measures left its wireless routers and IP cameras used to monitor private areas of homes and businesses vulnerable to hackers, thereby compromising U.S. consumers&rsquo; privacy.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/lessons-ftcs-first-enforcement-action-iot-company/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=0481cf5b9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-0481cf5b9a-72857025">click here</a></p> http://www.seyfarth.com:80//news/esposito-quoted-natural-products-insider-042517 Tonya Esposito quoted by <i>Natural Products Insider</i> http://www.seyfarth.com:80//news/esposito-quoted-natural-products-insider-042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> Tonya Esposito was quoted in &quot;Marketers of Weight Loss System Settle with FTC,&quot; an April 25 story by <em>Natural Products Insider</em> on her representation of NutriMost who reached a FTC settlement. Esposito said that NutriMost is committed to complying with the law&mdash;including any FTC regulations&mdash;to the highest extent possible, and also very committed to transparency as it relates to its customers and their health and wellbeing.</p> <p> <a href="https://www.naturalproductsinsider.com/blogs/insider-law/2017/04/marketers-of-weight-loss-system-settle-with-ftc.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/degroff-and-karasik-quoted-cook-county-record-042417 Chris DeGroff and Alex Karasik were quoted in the <i>Cook County Record</i> http://www.seyfarth.com:80//news/degroff-and-karasik-quoted-cook-county-record-042417 Mon, 24 Apr 2017 00:00:00 -0400 <p> Chris DeGroff and Alex Karasik were quoted in &quot;Dollar General ruling strengthens EEOC&#39;s hand to widen discrimination claims into &#39;fishing expeditions&#39;,&quot; an April 24 story from the <em>Cook County Record</em> on how the ruling of a Chicago federal judge in favor of an Equal Employment Opportunity Commission enforcement case against retail giant Dollar General will strengthen the EEOC&rsquo;s hand in bids to widen single claims of employment discrimination into company-wide fishing expeditions. DeGroff said that the court ruling extends beyond the Dollar General case. Karasik said that companies should not just lay down when the EEOC starts proceedings against them.</p> <p> <a href="http://cookcountyrecord.com/stories/511106934-dollar-general-ruling-strengthens-eeoc-s-hand-to-widen-discrimination-claims-into-fishing-expeditions">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WC042417 Eighth Circuit Decides That Arbitration Agreements Cover ADEA Collective Actions http://www.seyfarth.com:80//publications/WC042417 Mon, 24 Apr 2017 00:00:00 -0400 <p> After thirty-three former employees who signed release agreements requiring individual arbitration of ADEA claims collectively sued their employer for age discrimination, the employer moved to compel individual arbitration. The District Court denied the company&rsquo;s motion. The U.S. Court of Appeals for the Eighth Circuit reversed because it found that the ADEA did not contain a &ldquo;contrary congressional command&rdquo; overriding the FAA&rsquo;s mandate to enforce arbitration agreements.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/eighth-circuit-decides-that-arbitration-agreements-cover-adea-collective-actions/">click here</a></p> http://www.seyfarth.com:80//publications/OMM042417-LE Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80//publications/OMM042417-LE Mon, 24 Apr 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>If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</em></p> <p> <strong>Background</strong></p> <p> A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only &ldquo;essential&rdquo; government workers would report to work until Congress passes a spending bill.</p> <p> <strong>U.S. Citizenship and Immigration Services (USCIS)</strong></p> <p> USCIS would be minimally impacted because it is largely a user-fee funded service. &nbsp;The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required -- such as the H-1B that requires a Labor Condition Application (LCA) -&shy;may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.</p> <p> E-Verify, USCIS&rsquo; free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS &nbsp;issued guidance suspending the &ldquo;three day rule&rdquo; &nbsp;for any case affected by the shutdown.&nbsp; Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.</p> <p> Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.</p> <p> Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.</p> <p> <strong>Department of Labor</strong></p> <p> Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. <strong>OFLC would neither accept nor process any applications or related materials</strong>, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications).&nbsp; &nbsp;<strong>OFLC&rsquo;s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts</strong>. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.</p> <p> <strong>Department of State (DOS)</strong></p> <p> Visa issuance should continue, at least temporarily. &nbsp;Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.</p> <p> <strong>Department of Justice (DOJ)</strong></p> <p> DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.</p> http://www.seyfarth.com:80//publications/WSE042117 Processing Plant Crosses Its Wires — Safety Board Finds Company “Did Not Follow Procedures” http://www.seyfarth.com:80//publications/WSE042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> The CSB found deficiencies in the facility&rsquo;s design and labeling of the chemical loading stations, and failure to follow the company&rsquo;s written chemical unloading procedures.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/chemical-safety/processing-plant-crosses-its-wires/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=62847f6970-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-62847f6970-71407177">click here</a></p> http://www.seyfarth.com:80//publications/IMM042117 Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80//publications/IMM042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</p> <p> To read the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/potential-government-shutdown-immigration-consequences-for-employers-and-their-foreign-national-employees/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=47f9b46b3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-47f9b46b3e-73050561">click here</a></p> http://www.seyfarth.com:80//publications/MA042117-LE If Pain, Yes Gain—Part XXVIII: Cook County Releases Draft Sick Leave Regulations http://www.seyfarth.com:80//publications/MA042117-LE Fri, 21 Apr 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>As the Cook County Earned Sick Leave Ordinance&rsquo;s July 1, 2017 effective date nears, the County has released draft regulations seeking to clarify and expand certain aspects of the Ordinance, including the complex year-end carryover and annual usage cap requirements.&nbsp; </em></p> <p> On July 1, 2017, two municipal Illinois paid sick leave ordinances&mdash;one in <a href="http://www.seyfarth.com/publications/MA062116-LE">Chicago, IL</a> and the other in <a href="http://www.seyfarth.com/publications/MA102016-LE">Cook County, IL</a>&mdash;are scheduled to go into effect.&nbsp; The two ordinances are largely similar in their substantive requirements, although there are a few technical differences.&nbsp; &nbsp;</p> <p> The city of Chicago has not yet published administrative guidance on its sick leave ordinance.&nbsp; However, on April 10, 2017, the Cook County Commission on Human Rights (the &ldquo;Commission&rdquo;) released draft regulations on the Cook County Earned Sick Leave Ordinance (&ldquo;CC ESLO&rdquo;).&nbsp; The Commission notes that the regulations are subject to revision based on public comment and that it will publish final regulations by June 1, 2017.&nbsp; We, of course, will keep you posted on these future developments.&nbsp;</p> <p> In the meantime, here are some of the highlights of the Cook County draft sick leave regulations:</p> <ul> <li> <strong>Benefit Year:</strong> The draft regulations state that the paid sick leave benefit year can be a calendar year, fiscal year, or any other established 12-month period.&nbsp; However, the draft regulations also define the term &ldquo;accrual period&rdquo; as being the 12 month period in which an employee accrues paid sick leave.&nbsp; This &ldquo;accrual period&rdquo; can be based on employees&rsquo; anniversary dates or the employer&rsquo;s benefit year.&nbsp; However and notably, in order for employers to unify employees&rsquo; &ldquo;accrual period&rdquo; with the company&rsquo;s &ldquo;benefit year,&rdquo; certain criteria must be met.</li> <li> <strong>Covered Employees:</strong> The draft regulations state that an individual will be covered under the CC ESLO if he/she satisfies several standards, including, but not limited to, working for a covered employer for at least two hours in any two week period while physically located in the geographic boundaries of Cook County.&nbsp; Importantly, when discussing the &ldquo;location of work&rdquo; component, the draft regulations note that the &ldquo;Commission will <u>not</u> consider work that an individual performs within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo; (emphasis added).&nbsp; This is significant given that several municipalities within Cook County have recently opted out of compliance with the Ordinance.</li> <li> <strong>Covered Employers:</strong> The draft regulations reiterate that to be a covered employer under the CC ESLO the employer must, among other things, have at least one place of business within Cook County.&nbsp; The draft regulations discuss this &ldquo;place of business&rdquo; requirement in detail and note that a residence may be a place of business.&nbsp; Notably, and as with its analysis of covered employees, the draft regulations state that the &ldquo;Commission will not consider an employer&rsquo;s place or places of business that are within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo;</li> <li> <strong>Where Employees Can Use Earned Sick Leave:</strong> The draft regulations state that once an employee is entitled to use earned paid sick leave (the CC ESLO allows employers to set a 180-day usage waiting period for new hires), the employee can use that sick leave &ldquo;in <u>any</u> location (i.e., within or outside of Cook County).&rdquo; (emphasis added).&nbsp; This would be a significant departure from many, if not all, existing paid sick leave laws, which only require employers to permit employees to use accrued paid sick leave when they are working within the specific paid sick leave jurisdiction.</li> <li> <strong>When Employees Accrue Earned Sick Leave:</strong> By comparison to the above &ldquo;location of use&rdquo; standard, the draft regulations state that employers are not required to provide employees with paid sick leave for work performed outside of Cook County (or within the geographic boundaries of a municipality that has lawfully preempted the Ordinance).</li> <li> <strong>Accrual, Usage and Carryover Caps:</strong>&nbsp; The CC ESLO provides that employers must allow employees to accrue up to at least 40 hours of paid sick leave in a given year at a rate of at least one hour for every 40 hours worked, and that employees must be allowed to carry over to the following 12-month accrual period half of their unused, accrued sick leave, up to a maximum of 20 hours.&nbsp; The CC ESLO also imposes a 40-hour annual usage cap on sick leave.&nbsp; Where an employer is subject to the Family Medical Leave Act (&ldquo;FMLA&rdquo;), employees are allowed to carry over up to 40 hours of additional unused, accrued sick leave, and then use an additional 20 hours of sick leave in the subsequent year (i.e., 60 total hours).&nbsp; There is language in the CC ESLO stating that certain amounts of this time must be used exclusively for FMLA-eligible purposes. <ul> <li> <u>Newly Defined Terms</u>: The draft regulations define new terms titled (a) &ldquo;FMLA-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any purpose under the FMLA, (b) &ldquo;Ordinance-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any reason under the CC ESLO, and (c) &ldquo;Unrestricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used both for reasons under the FMLA or the CC ESLO.&nbsp; While helpful, the latter term is <strong>not</strong> referred to in the draft regulations outside of the initial definition section.</li> <li> <u>Frontloading Sick Leave and Impact on Accrual</u>: The draft regulations expressly state that employers can choose to frontload earned sick leave to employees, as opposed to using an accrual system.&nbsp; According to the draft regulations, employers will be deemed in compliance if they award each employee the maximum amount of paid sick leave the employee would have accrued during the benefit year.&nbsp; Any Covered Employee who will work at least 1,600 hours during the year would have to be&nbsp; awarded 40 hours of Earned Sick Leave under this methodology.&nbsp; Notably, the draft regulations state that employers who use a frontloading system will need to meet certain criteria in order to use a single, standardized 12-month accrual period for all employees.</li> <li> <u>Year-End Carryover</u>: The draft regulations state that FMLA covered employers should calculate the amount of sick leave that must be carried over at year-end by following two steps.&nbsp; First, the employer must permit an employee to carry over half of his or her total unused accrued sick leave to the next accrual period, up to a maximum of 20 hours.&nbsp; This 20 hours is &ldquo;Ordinance- Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Second, if an employee has additional accrued, unused sick leave, the employer must permit up to 40 additional hours to carryover.&nbsp; This additional time, up to 40 hours, is &ldquo;FMLA-Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Despite discussing these separate buckets of paid leave for purposes of year-end carryover, the draft regulations note that during a current accrual period, FMLA covered employers are <strong>not</strong> required to track an employee&rsquo;s use of sick leave as either Ordinance-Restricted or FMLA-Restricted as long as the time can be used for all reasons under the FMLA and CC ESLO.</li> <li> <u>Frontloading Sick Leave and Impact on Year-End Carryover</u>: The draft regulations state that employers can avoid conducting individualized year-end carryover calculations if each employee receives a frontloaded lump grant of sick leave at the start of each accrual period that is equal to the maximum amount the employee would have carried over.&nbsp; The draft regulations note that FMLA covered employers that award at least 20 hours of Ordinance-Restricted Earned Sick Leave and at least 40 hours of FMLA-Restricted Earned Sick Leave at the start of each accrual period typically do not need to carry over unused, accrued sick leave. <ul> <li> <u>Note</u>: While the draft regulations do not expressly address whether an employer alternatively can provide a 60-hour annual lump grant of sick leave that can be used for reasons under both the FMLA or CC ESLO, they do state that the draft regulations should not be construed as prohibiting an employer from allowing an employee to use &ldquo;Earned Sick Leave, Ordinance-Restricted Earned Sick Leave, and/or FMLA-Restricted Earned Sick Leave for purposes other than those described [in the draft regulations].&rdquo;</li> </ul> </li> <li> <u>Frontloading as an Alternative to <strong>Both</strong> Accrual and Year-End Carryover</u>: According to the draft regulations, an employer may choose, at the beginning of each accrual period, to immediately grant the maximum annual amount to which its employees could be entitled for both accrual during the current accrual period <strong>and</strong> carryover from the prior accrual period.&nbsp; Specifically, the draft regulations state that an FMLA covered employer may comply by awarding its employees 60 hours of Ordinance-Restricted Earned Sick Leave and 40 hours of FMLA-Restricted Earned Sick Leave at the start of the accrual period.&nbsp; While not expressly stated in the draft regulations, it appears that employers who opt for this approach still could apply the CC ESLO&rsquo;s 60-hour annual usage cap.</li> </ul> </li> <li> <strong>Covered Family Members:</strong> Like most existing paid sick leave laws, the CC ESLO allows employees to use sick leave for illnesses and injuries of certain family members.&nbsp; Among the CC ESLO&rsquo;s covered family members is any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.&nbsp; The draft regulations define &ldquo;close association&rdquo; and explain that the Commission will determine if such an association exists based on the length of time of a particular relationship and other factors, such as whether the employee provided personal care or financial support for or previously lived with the individual.&nbsp;</li> </ul> <p> Given the complexity of the CC ESLO and draft regulations, Cook County employers should take steps now to ensure that they will be able to achieve full compliance with the CC ESLO by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Determine if the municipality in Cook County where you have operations has lawfully preempted (i.e., opted out of) the CC ESLO.</li> <li> If the CC ESLO applies to your municipality within the County, review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the CC ESLO.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking earned sick leave.</li> <li> Prepare to comply with the CC ESLO&rsquo;s posting and notification requirements and monitor the Commission&rsquo;s website for template notices and other guidance and updates on the CC ESLO.</li> <li> Train supervisory and managerial employees, as well as HR, on the CC ESLO requirements.</li> <li> Await further guidance, including final regulations, from the Commission and update policies and practices to comply with any finalized advice.</li> </ul> <p> Illinois has been an hot bed of sick leave activity in recent months and the trend shows no signs of slowing down.&nbsp;</p> <p> In January 2017, the <a href="http://www.seyfarth.com/publications/OMM011317-LE">Illinois Employee Sick Leave Act</a> (&ldquo;ESLA&rdquo;) went into effect. While the title suggests that this is a statewide paid sick leave law, it does not actually mandate that employers provide paid sick leave.&nbsp; Instead, the ESLA requires employers that have sick pay policies or benefits to allow employees to use a portion of that time to cover family member illnesses -- essentially establishing a &ldquo;kin care&rdquo; law as exists in certain other states.</p> <p> The state legislature is currently considering an actual statewide sick leave mandate, titled the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/illinois-catches-the-paid-sick-leave-bill-bug/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=a9cb68119e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-a9cb68119e-71256185">Healthy Workplace Act</a> (House Bill 2771/Senate Bill 1296).&nbsp; While still in its early legislative stages, if passed, the proposed law would require that private employers provide employees with a minimum of five paid sick days each year.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80//news/boutros-quoted-redlands-bulldog-042117 Andrew Boutros quoted in the <i>Redlands Bulldog</i> http://www.seyfarth.com:80//news/boutros-quoted-redlands-bulldog-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in &quot;Title IX Policy at the University of Redlands Explained,&quot; an April 21 story from the Redlands Bulldog on how Issues of Title IX compliance and trends of sexual assault on college campuses have become a top priority for many universities around the country. Boutros said that there may be cases where a school needs to potentially take extra precautions to ensure that there is no actual or perceived conflicts of interest. He said this may be the case when the victim is alleging misconduct by a faculty member or employee of the university.</p> <p> <a href="http://www.theredlandsbulldog.com/title-ix-policy-university-redlands-explained/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/mcgurn-quoted-boston-globe-042117 Kristin McGurn quoted in the <i>Boston Globe</i> http://www.seyfarth.com:80//news/mcgurn-quoted-boston-globe-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Kristin McGurn was quoted in &quot;What to do when the boss cancels your vacation,&quot; an April 21 story from the <em>Boston Globe</em> on whether an employer can ask you to cancel your vacation plans. McGurn said that many Massachusetts retailers impose black-out periods during which employees are instructed not to schedule vacation, for example because customer traffic is expected to be heavy during certain seasons.</p> <p> <a href="http://www.bostonglobe.com/business/2017/04/21/jobdoc/9QjUr414CT8aBGQ61phsQM/story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/hendrickson-quoted-business-news-daily-042117 Christine Hendrickson quoted by <i>Business News Daily</i> http://www.seyfarth.com:80//news/hendrickson-quoted-business-news-daily-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Closing the Wage Gap: Salary Negotiation Tips for Women,&quot; an April 21 story by <em>Business News Daily</em> on New York City&rsquo;s approved measure that will prohibit companies from asking job applicants about their previous salary history. Hendrickson notes there is criticism of the bill because it&#39;s believed that it will not eliminate any wage gap, but will instead create greater reliance on salary negotiation.</p> <p> <a href="http://www.businessnewsdaily.com/9325-women-salary-negotiation-tips.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/EL042017 OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence http://www.seyfarth.com:80//publications/EL042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence. &nbsp;The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH&rsquo;s guidance for determining the potential for workplace violence.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/osha-updates-its-enforcement-procedures-directive-for-exposure-to-workplace-violence/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=7f6b4a3a40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-7f6b4a3a40-71256185">click here</a></p> http://www.seyfarth.com:80//publications/MA042017-LE Refusal to Rescind Employee’s Resignation Not an Adverse Employment Action http://www.seyfarth.com:80//publications/MA042017-LE Thu, 20 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The California Court of Appeal has held that an employer&rsquo;s refusal to honor an employee&rsquo;s rescission of a voluntary resignation is not an adverse employment action under the Fair Employment and Housing Act. <strong>Featherstone v. Southern California Permanente Medical Group.</strong></em></p> <p> <strong>The Facts</strong></p> <p> Ruth Featherstone claimed that she suffered a temporary disability from an adverse drug reaction that altered her mental state. While in an altered state, she orally resigned from her position with Southern California Permanente Medical Group. At SCPMG&rsquo;s request, Featherstone confirmed her resignation in writing. SCPMG then processed and completed Featherstone&rsquo;s voluntary termination paperwork on the day of her resignation. A few days thereafter, Featherstone asked SCPMG to rescind her resignation. SCPMG declined to do so.</p> <p> Featherstone sued SCPMG on a claim that its refusal to rescind her resignation was a discriminatory act forbidden by the Fair Employment and Housing Act and public policy. The trial court granted SCPMG&rsquo;s motion for summary judgment and Featherstone appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed summary judgment for SCPMG on two independent grounds.</p> <p> <em>First</em>, the refusal to allow Featherstone to rescind her resignation was not an adverse employment action. To establish a <em>prima facie </em>case for disparate treatment discrimination, a FEHA plaintiff must establish that (1) she suffers from a disability, (2) she is otherwise qualified to do her job, (3) she suffered an adverse employment action, and (4) the employer harbored discriminatory intent. As to element (3), the Court of Appeal held that &ldquo;refusing to allow a former employee to rescind a voluntary discharge&mdash;that is, a resignation free of employer coercion or misconduct&mdash;is not an adverse employment action.&rdquo; This result followed from analogous federal law&mdash;the ADA and Title VII&mdash;which courts have interpreted to mean that an employer&rsquo;s refusal to allow an employee to rescind a resignation is not an adverse employment action. The Court of Appeal further noted that SCPMG did not coerce Featherstone&rsquo;s resignation and was not contractually obligated to permit rescission of her resignation.</p> <p> <em>Second</em>, the Court of Appeal also found that Featherstone failed to raise a triable issue of fact as to whether those who accepted and processed her resignation knew of her alleged disability when they took those actions.</p> <p> <strong>What <em>Featherstone </em>Means for Employers</strong></p> <p> <em>Featherstone</em> holds that refusing to rescind a resignation that is voluntary and non-coerced is not an adverse employment action under FEHA. <em>Featherstone</em> will prove useful in defending claims by plaintiffs that involve similar employer actions that do not clearly qualify as adverse employment actions under California law. <em>Featherstone</em> also highlights the importance of promptly accepting and processing employee resignations.</p> http://www.seyfarth.com:80//publications/ADA042017 Accessible Icon Update: New Federal Guidance Deepens Quandary for Businesses Facing Contradictory State Requirements http://www.seyfarth.com:80//publications/ADA042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> As we previously reported, New York State and more recently, Connecticut, passed legislation requiring the use of the &ldquo;Accessible Icon&rdquo; in lieu of the traditional International Symbol of Access (&ldquo;ISA&rdquo;) in new construction and alterations whenever an accessibility sign is required by code. &nbsp;But Title III of the ADA and the Architectural Barriers Act (&ldquo;ABA&rdquo;), which apply to public accommodations facilities and federally-funded facilities, respectively, still require the use of the ISA. &nbsp;Specifically, the ADA and ABA require that the ISA be used to label and provide direction to certain accessible spaces and elements, such as restrooms, parking spaces, and check-out aisles.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/04/accessible-icon-update-new-federal-guidance-deepens-quandary-for-businesses-facing-contradictory-state-requirements/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=3fe9b691bd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-3fe9b691bd-71256157">click here</a></p> http://www.seyfarth.com:80//publications/CP042017 Legislature Finds More Opportunity to Work: AB 5 Moves Along http://www.seyfarth.com:80//publications/CP042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> The California Assembly Committee on Labor and Employment yesterday heard and approved AB 5, The Opportunity to Work Act, as it continues to move through the legislative process.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/20/legislature-finds-more-opportunity-to-work-ab-5-moves-along/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=febba7a7c8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-febba7a7c8-71410869">click here</a></p> http://www.seyfarth.com:80//publications/OMM041917-LIT Entering the FDCPA Safe Harbor Just Got More Difficult in the Second Circuit http://www.seyfarth.com:80//publications/OMM041917-LIT Wed, 19 Apr 2017 00:00:00 -0400 <p> The Second Circuit&rsquo;s recent opinion in <em>Carlin v. Davidson Fink LLP</em>, No. 15-3105-cv (2d Cir. Mar. 29, 2017), has important ramifications for the debt collection industry.&nbsp;</p> <p> <em>Carlin</em>, a putative class action, addressed the adequacy of a Fair Debt Collection Practice Act (&ldquo;FDCPA&rdquo;) initial notice sent per Title 15, U.S.C., &sect;&nbsp;1692g, which requires a debt collector to send a written notice to a consumer as or within five days of its initial communication with a consumer in connection with the collection of any debt, containing the amount of the debt, the name of the creditor to whom the debt is owed, and certain information about the consumer&rsquo;s rights.</p> <p> In <em>Carlin</em>, the initial notice set forth a &ldquo;Total Amount Due&rdquo; as a dollar figure, but added that such amount &ldquo;may include estimated fees, costs, additional payments and/or escrow disbursements . . . which are not yet due&rdquo; and apprised the consumer that if he paid the total amount specified to be due by a certain date, he would get a refund of any charges and fees that had not been incurred as of the time of payment.&nbsp; The Second Circuit held that because the initial notice did &ldquo;not specify what the &lsquo;estimated fees, costs, [and] additional payments&rsquo; are&rdquo; the &ldquo;least sophisticated consumer&rdquo; would not be able to determine from the initial notice how any additional &ldquo;fees are calculated, whether they may be disputed, or what provision of the note gives rise to them.&rdquo;&nbsp;</p> <p> The Second Circuit kept the &ldquo;safe harbor&rdquo; language it had approved just a year before in <em>Avila v. Riexinger &amp; Assoc., LLC</em>, 817 F.3d 72 (2d Cir. 2016), that if the initial notice advises the consumer that &ldquo;the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date,&rdquo; a debt collector is insulated from &sect; 1692g liability.&nbsp; But it found that this initial notice fell outside the safe harbor because it only provided &ldquo;that the Total Amount Due <em>may</em> include <em>estimated</em> fees and costs&rdquo; and failed to provide &ldquo;clarity as to whether new fees and costs are accruing&rdquo; or on what basis they would accrue.&nbsp; By its use of the words &ldquo;may&rdquo; and &ldquo;estimated,&rdquo; the initial notice only informed the consumer of a theoretical amount that might or might not be due.&nbsp; The court concluded that the initial notice effectively told the consumer that he would have to pay the amount demanded and wait to see whether a refund would be issued to determine how much he actually owed.</p> <p> Significantly, the Court recognized that the language of this initial notice may well be commonplace in the debt collection industry, but found that provided no insulation to liability under the FDCPA.</p> <p> Consumer debt collectors should review their initial notices, and prepare for the possibility of suit.&nbsp;</p> http://www.seyfarth.com:80//publications/OMM041917-LE Trump Administration Issues “Buy American and Hire American” Executive Order http://www.seyfarth.com:80//publications/OMM041917-LE Wed, 19 Apr 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>: The EO orders the Departments of State, Justice, Labor, and Homeland Security to propose new rules and issue new guidance to &ldquo;protect the interests of U.S. workers&rdquo; and &ldquo;promote the functioning of the H-1B visa program.&rdquo;</em></p> <p> On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance &ldquo;as soon as practicable and consistent with applicable law&rdquo; to &ldquo;protect the interests of U.S. workers,&rdquo; within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to &ldquo;suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid&rdquo; foreign nationals.&nbsp; &nbsp;</p> <p> The EO neither creates any specific new requirements for employers nor directs the affected agencies to take any action other than prepare substantive proposals at a future uncertain date. According to statements made by the President and Senior Administration Officials, the EO aims to dismantle the computer generated H-1B visa lottery system and the current four-tiered prevailing wage system as well as ferreting out fraud and abuse within the existing H-1B program.&nbsp; Implementation of such recommendations would require congressional action. &nbsp;&nbsp;</p> <p> Seyfarth Shaw will continue to closely monitor the Departments reactions to the EO, and we will provide updates as developments occur.</p> http://www.seyfarth.com:80//publications/TS041917 Don’t Forget to Establish Personal Jurisdiction in Defend Trade Secrets Act Cases http://www.seyfarth.com:80//publications/TS041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> It is well known that 18 U.S.C. &sect; 1836, et seq. (the Defend Trade Secrets Act or &ldquo;DTSA&rdquo;) finally provides a mechanism for pursing trade secret claims in federal court. A recent decision, however, serves as an excellent reminder that failure to establish personal jurisdiction over a defendant will nevertheless result in dismissal of your DTSA claim&mdash;and potentially your entire case. So, before you rush off and file that DTSA claim in your local federal court, carefully consider if it&rsquo;s really the right court after all.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/dtsa/dont-forget-to-establish-personal-jurisdiction-in-defend-trade-secret-act-cases/">click here</a></p> http://www.seyfarth.com:80//publications/IMM041917 Trump Administration Issues “Buy American and Hire American” Executive Order (Blog Post) http://www.seyfarth.com:80//publications/IMM041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance &ldquo;as soon as practicable and consistent with applicable law&rdquo; to &ldquo;protect the interests of U.S. workers,&rdquo; within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to &ldquo;suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid&rdquo; foreign nationals.</p> <p> To read the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/trump-administration-issues-buy-american-and-hire-american-executive-order/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=b7a8e04d31-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-b7a8e04d31-73050561">click here</a></p> http://www.seyfarth.com:80//publications/hendrickson-and-savadjian-authored-article-for-HR-041917 Christine Hendrickson and Lisa Savadjian authored an article for <i>HR.com</i> http://www.seyfarth.com:80//publications/hendrickson-and-savadjian-authored-article-for-HR-041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson and Lisa Savadjian authored &quot;Salary History Ban: Will It Eliminate Pay Gap?: What the ban means,&quot; an article on April 19 for <em>HR.com</em>. The article discusses the New York City Council&rsquo;s approval of a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process.</p> <p> <a href="https://www.hr.com/en/magazines/talent_acquisition/april_2017_talent_acquisition/salary-history-ban-will-it-eliminate-pay-gap-what-_j1osxwy6.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/hendrickson-quoted-bloomberg-BNA-042017 Christine Hendrickson quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/hendrickson-quoted-bloomberg-BNA-042017 Wed, 19 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Google Case Puts Salary History Under Microscope,&quot; an April 19 story by <em>Bloomberg BNA</em> on whether an employer that bases compensation on salary history can use that as a defense if it&rsquo;s later sued for pay bias. Hendrickson said that companies can use wage history as a touch point in determining a salary offer in legitimate and non-discriminatory ways.</p> <p> <a href="https://www.bna.com/google-case-puts-n57982086848/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/paparelli-interviewed-bloomberg-radio-041917 Angelo Paparelli was interviewed by <i>Bloomberg Radio</i> http://www.seyfarth.com:80//news/paparelli-interviewed-bloomberg-radio-041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> Angelo Paparelli was interviewed in &quot;New Executive Order Target U.S. Visa System,&quot; an April 19 segment from <em>Bloomberg Radio</em> on President Trump&rsquo;s &quot;Buy American, Hire American&quot; executive order, and how it will impact visas for American companies.</p> <p> <a href="https://www.bloomberg.com/news/audio/2017-04-19/new-executive-order-target-u-s-visa-system-audio">You can listen to the full interview here</a>.</p> http://www.seyfarth.com:80//news/regan-quoted-northern-california-record-041817 Colleen Regan was quoted in the <i>Northern California Record</i> http://www.seyfarth.com:80//news/regan-quoted-northern-california-record-041817 Wed, 19 Apr 2017 00:00:00 -0400 <p> Colleen Regan was quoted in &quot;Ruling in reasonable accommodation for disabilities reversed,&quot; an April 19 story from the <em>Northern California Record</em> on the reversal of a ruling that provided for reasonable accommodation for employees with disabled associates. Regan said that both the ADA and the FEHA prohibit an employer to deny equal jobs or benefits to an individual because of their relationship to or association with a disabled person.</p> <p> <a href="http://norcalrecord.com/stories/511104498-ruling-in-reasonable-accommodation-for-disabilities-reversed">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/launey-interviewed-leftfoot-041817 Kristina Launey interviewed on <i>LeftFoot</i> http://www.seyfarth.com:80//news/launey-interviewed-leftfoot-041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Kristina Launey was interviewed on &quot;Loosen Up &ndash; a conversation with Kristina Launey of Seyfarth,&quot; an April 18 podcast episode on <em>LeftFoot </em>about the importance of having fun with business development.</p> <p> <a href="http://www.leftfoot.net/kristina-launey/">You can listen to the full podcast episode here</a>.</p> http://www.seyfarth.com:80//news/milligan-quoted-financier-worldwide-050117 Robert Milligan quoted in <i>Financier Worldwide</i> http://www.seyfarth.com:80//news/milligan-quoted-financier-worldwide-050117 Tue, 18 Apr 2017 00:00:00 -0400 <div> Robert Milligan was quoted in &quot;Understanding the Defend Trade Secrets Act,&quot; a May 1 story from <em>Financier Worldwide</em> on the Defend Trade Secrets Act (DTSA), an amendment of the Economic Espionage Act (EEA) which has created a private civil cause of action for trade secret misappropriation.</div> <div> &nbsp;</div> <div> Milligan said that the DTSA was introduced in response to, among other things, the reportedly growing rise in trade secret theft from foreign hackers, nation states and rogue employees interested in obtaining US businesses&rsquo; trade secrets.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://www.financierworldwide.com/understanding-the-defend-trade-secrets-act#.WPd2UPnythF">You can read the full article here</a>.</div> http://www.seyfarth.com:80//news/jutkowitz-quoted-SHRM-041817 Stanley Jutkowitz quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/jutkowitz-quoted-SHRM-041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in &quot;Some Employers Accommodate Medical Marijuana Users,&quot; an April 18 story from <em>SHRM </em>on how accommodations aren&rsquo;t required under federal or state laws, but some state laws permit them. Jutkowitz said that many states regulate the form of medical marijuana that may be consumed and generally prohibit smoking, so an employer would probably not need a smoking room.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/accommodating-medical-marijuana-users.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/boutros-and-schleppenbach-authored-article-finance-digest-041817 Andrew Boutros and John Schleppenbach authored an article in <i>Finance Digest</i> http://www.seyfarth.com:80//publications/boutros-and-schleppenbach-authored-article-finance-digest-041817 Tue, 18 Apr 2017 00:00:00 -0400 <div> Andrew Boutros and John Schleppenbach authored &quot;President Trump Signs Executive Orders On Trade And Designates Trade And Customs Law Violations As Law Enforcement &#39;High Priority&#39;,&quot; an article on April 18 in <em>Finance Digest</em>. This article discusses the Administration&#39;s new Executive Orders which will lead to increased criminal and other enforcement actions involving trade, customs, antidumping duties, and countervailing duties practices.</div> <div> &nbsp;</div> <div> <a href="https://www.financedigest.com/president-trump-signs-executive-orders-on-trade-and-designates-trade-and-customs-law-violations-as-law-enforcement-high-priority.html">You can read the full article here</a>.</div> http://www.seyfarth.com:80//publications/WSE041817 OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence http://www.seyfarth.com:80//publications/WSE041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence. &nbsp;The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH&rsquo;s guidance for determining the potential for workplace violence.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/workplace-violence/osha-updates-enforcement-directive/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=0d961c364f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-0d961c364f-71407177">click here</a></p> http://www.seyfarth.com:80//publications/HCRMA-041817 Issue 108: HHS Moves Ahead In Face of ACA Uncertainty http://www.seyfarth.com:80//publications/HCRMA-041817 Tue, 18 Apr 2017 00:00:00 -0400 <div> This is the one hundred and eighth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(<a href="http://www.seyfarth.com/Healthcare-Reform-Team">Click here</a> to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</div> <div> &nbsp;</div> <div> So, what is going on with the ACA Repeal and Replace efforts in recent days? When Paul Ryan faced defection in his own party from members of the Freedom Caucus who believed his American Health Care Act (AHCA) didn&rsquo;t go far enough, <a href="http://www.seyfarth.com/publications/HRCMA-032417">the bill was abruptly pulled</a> from consideration by the House. The GOP faced the harsh reality of a splintered party where moderates (faced with pressure from their constituents at home) are looking for a solution that would retain much of the ACA&rsquo;s expanded coverage at a reduced cost, and where farther right conservatives want the federal government out of the business of individuals&rsquo; health care entirely. The AHCA seemed to accomplish neither camp&rsquo;s goals, causing a loss of coverage at a potentially higher cost for individuals.</div> <div> &nbsp;</div> <div> Trying to save President Trump&rsquo;s reputation as a deal maker, the White House seemed to move into the driver&rsquo;s seat meeting with members of the Freedom Caucus in early April. The White House allegedly made several concessions to the Freedom Caucus, including allowing states to apply for waivers from the essential health benefits standards, which required insurance policies to cover certain types of benefits, and the community rating restrictions, which limited the ability of insurers to charge more to sick people. Those changes, of course, would not necessarily play well with the GOP moderates, and Congress was allowed to adjourn on April 7th without any further movement. Even so, during the Congressional recess President Trump has indicated he still hopes to address health care reform prior to moving on to tax reform later this year.&nbsp;</div> <div> &nbsp;</div> <div> In the face of this uncertainty with the future of the ACA, the Department of Health and Human Services (HHS) and the Centers for Medicare &amp; Medicaid Services (CMS) have moved ahead with finalizing their proposed changes to ACA rules.&nbsp;<a href="https://www.federalregister.gov/documents/2017/04/18/2017-07712/patient-protection-and-affordable-care-act-market-stabilization">The final rules</a>, published on April 18, 2017 and effective June 17, 2017, primarily impact the individual and small group markets. &nbsp;The agencies perceive that individuals are not maintaining their coverage on the exchanges or enrolling only after discovering a health problem, contributing to the increase in the cost of premiums. As a result, the final rules make a number of discreet changes to improve the risk pool, including:&nbsp;</div> <div> &nbsp;</div> <ul> <li> <strong>Open Enrollment Period.</strong> Shortening the annual open enrollment period, which currently runs from November 1st to the following January 15th, to one which starts on November 1st and closes before the policy year starts on December 15th. This change will take place for the 2018 benefit year, but was already the rule for years starting in 2019.</li> <li> <strong>Special Enrollment in HealthCare.gov.</strong> All of those seeking to enroll in an exchange maintained on HealthCare.gov in a special enrollment period will be subject to pre-enrollment verification (from a pilot sample of 50%). State-based exchanges will remain free to determine whether and how to implement pre-enrollment verification of eligibility for a special enrollment period. Several other changes will be made to the rules surrounding special enrollment periods.&nbsp;</li> <li> <strong>Premium Debt.</strong> Insurers will be allowed to apply a premium payment to an individual&rsquo;s past debt for coverage from that issuer (or a related issuer) before counting the payment toward the newly elected coverage, without being deemed to violate the guaranteed availability requirement.&nbsp;</li> <li> <strong>Actuarial Value.</strong> The final rules increase the de minimis variation in the actuarial values used to determine the metal levels of coverage for the 2018 benefit year and beyond, to allow issuers greater flexibility in designing new plan options.&nbsp;</li> </ul> <div> &nbsp;</div> <div> Other changes in the final rules are &ldquo;intended to affirm the traditional role of States in overseeing their health insurance markets while reducing the regulatory burden of participating in Exchanges for issuers.&rdquo; These changes impact Qualifying Health Plans.&nbsp;</div> <div> &nbsp;</div> <ul> <li> <strong>Network Adequacy.</strong> The agencies will defer to the states with sufficient network adequacy review.&nbsp;</li> <li> <strong>Essential Community Providers.</strong> Issuers will be allowed to continue to use a write-in process to identify essential community providers who are not on the agency&rsquo;s list, and will lower the standard to 20% (from 30%), making it easier to build a provider network. &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/TBT041817 Unions Find The Grass On The Other Side of Prop 64 Particularly Green http://www.seyfarth.com:80//publications/TBT041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Recently, the San Francisco Chronicle published an interesting story examining two fronts on which labor unions are trying to cash in on the passage of Prop 64 in November 2016, which legalized the sale and personal use of recreational marijuana in California. With its passing, California is poised to become the largest, most lucrative market for marijuana products in the United States (assuming the successes of craft beer and fine wines are fair markers). Nearly six months later, the industry is in its infancy with much to be decided on cannabis&rsquo; regulation.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/04/unions-find-the-grass-on-the-other-side-of-prop-64-particularly-green/">click here</a></p> http://www.seyfarth.com:80//publications/CP041817 2017 California Labor and Employment Legislative Update: What to Watch http://www.seyfarth.com:80//publications/CP041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> California Legislators were, as always, very busy in the first few months of the 2017-18 Legislative Session, introducing well over 2000 bills by the February 17th bill introduction deadline. But, in comparison to prior years, the calendar has been surprisingly light for heavy-hitter labor and employment bills. The Legislature returned to work on April 17, after its spring break, and continued to push bills out of the house of origin in advance of the June 2nd deadline.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/18/2017-california-labor-and-employment-legislative-update-what-to-watch/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=7faf93d1d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-7faf93d1d2-71410869">click here</a></p> http://www.seyfarth.com:80//publications/IMM041717 USCIS Receives 199,000 H-1B Cap Petitions and Completes Lottery Process (Blog Post) http://www.seyfarth.com:80//publications/IMM041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2018, which begins on October 1, 2017. &nbsp;This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap. &nbsp;However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.</p> <p> To reasd the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/uscis-receives-199000-h-1b-cap-petitions-and-completes-lottery-process/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=1ac8304cd6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-1ac8304cd6-73050561">click here</a></p> http://www.seyfarth.com:80//publications/OMM041717-LIT2 Third Circuit Holds That Post-Petition Filing of NJ Construction Lien Violates the Automatic Stay http://www.seyfarth.com:80//publications/OMM041717-LIT2 Mon, 17 Apr 2017 00:00:00 -0400 <div> On March 30, the Third Circuit Court of Appeals filed an opinion regarding whether the filing of a mechanic&rsquo;s lien after the commencement of a bankruptcy case violates the automatic stay. Given the frequent involvement of &nbsp;many companies in Delaware bankruptcy cases, you should be aware of the Third Circuit&rsquo;s ruling.</div> <div> &nbsp;</div> <div> The Third Circuit case, <em>In re Linear Electric Company, Inc.</em>, concerns the relationship between New Jersey construction lien law and federal bankruptcy law. Under New Jersey law, any contractor, subcontractor, or supplier who provides work, services, material, or equipment pursuant to a contract is entitled to a lien for the value of the work or services performed or materials or equipment furnished, in accordance with the contract, based upon the contract price. Linear Electric was a contractor to whom two suppliers, Cooper Electrical Supply Co. and Samson Electrical Supply Co., Inc., sold electrical materials that Linear Electric incorporated into several construction projects. On July 1, 2015, Linear Electric filed a petition in bankruptcy under chapter 11 of the United States Bankruptcy Code. As of that date, Linear Electric had not fully paid Cooper and Samson. On July 15, 2015, Cooper and Samson filed construction liens on the developments into which Linear Electric had incorporated the electrical materials supplied by Cooper and Samson. Linear Electric moved to vacate the lien filings as having violated the automatic stay of the Bankruptcy Code, which stays, among other things, any act to create, perfect, or enforce any lien against property of the estate. The bankruptcy court granted the motion, holding the liens to be void ab initio for violation of the automatic stay. On appeal, the district court affirmed, and the Third Circuit also affirmed.</div> <div> &nbsp;</div> <div> The Bankruptcy Code provides an exception to the stay of the filing of liens. Specifically, section 363(b)(3) of the Code provides that the filing of a petition in bankruptcy does not stay any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee&rsquo;s or debtor-in-possession&rsquo;s rights and powers are subject to such perfection under section 546(b) of the Code. Section 546(b)(1) in turn provides that the rights of a trustee or&nbsp;</div> <div> debtor-in-possession to avoid a lien are subject to any generally applicable law that (A) permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection; or (B) provides for the maintenance or continuation of perfection of an interest in property to be effective against an entity that acquires rights in such property before the date on which action is taken to effect such maintenance or continuation. Cooper and Samson argued that these sections authorized the post-petition filing of their construction liens.</div> <div> &nbsp;</div> <div> Cooper and Samson relied upon <em>In re Yobe Electric, Inc.</em>, where the Third Circuit affirmed a bankruptcy court&rsquo;s determination that the post-petition filing of a mechanic&rsquo;s lien under Pennsylvania law did not violate the automatic stay. The facts in <em>Yobe</em> are analogous to Linear Electric: a subcontractor filed a mechanic&rsquo;s lien after a general contractor filed a bankruptcy case. &nbsp;However, the Third Circuit distinguished <em>Yobe</em> from <em>Linear Electric</em>. In <em>Yobe</em>, the post-petition lien filed under Pennsylvania law related back to &ldquo;the date of visible commencement upon the ground of the work of erecting or constructing the improvement,&rdquo; which, in <em>Yobe</em>, occurred prepetition. The construction liens filed by Cooper and Samson under New Jersey law were effective as of their post-petition filing date and did not relate back. The Third Circuit held that if under applicable State law the post-petition filing of a mechanic&rsquo;s lien would not relate back to a date prior to the filing of the bankruptcy case, then the automatic stay of section 362(a)(4) applies, and the filing is prohibited. If under applicable State law the post-petition filing of a mechanic&rsquo;s lien would relate back to a prepetition date, then the section 362(b)(3) exception to the automatic stay would apply, and the lien can be filed. &nbsp;</div> <div> &nbsp;</div> <div> There are two important points discussed by the Court that are not part of its holding. First, under New Jersey law, the construction liens filed by Cooper and Samson attached to the accounts receivable owed by the property owner to the debtor contractor, i.e. they attached to property of the debtor. They did not attach to the non-debtor owner&rsquo;s real property or improvements. The Court made clear in its discussion that the filing of a mechanic&rsquo;s lien, or any other lien, that under State law does not attach to a debtor&rsquo;s property is not barred by the automatic stay. Second, &nbsp;the Court emphasized that its ruling relates to lien creation or perfection and not to enforcement or maintenance.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM041717-LE USCIS Receives 199,000 H-1B Cap Petitions and Completes Lottery Process http://www.seyfarth.com:80//publications/OMM041717-LE Mon, 17 Apr 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 completes the lottery process and receives 199,000 H-1B cap petitions.</em></p> <p> On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2018, which begins on October 1, 2017.&nbsp; This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap.&nbsp; However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.</p> <p> In addition, USCIS announced that they completed a computer-generated random selection process -- the lottery -- for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings to adjudicate.&nbsp; USCIS first conducted the lottery process for H-1B petitions subject to the Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees.&nbsp; Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.&nbsp; USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.&nbsp;</p> <p> For additional background information on the H-1B visa program and the cap, please see our previous One Minute Memo titled, <a href="http://www.seyfarth.com/publications/MA011717-LE">&ldquo;H-1B Work Permit Filings: Will You Beat the Cap?&rdquo;</a></p> http://www.seyfarth.com:80//publications/TS041717 Are My Customer Lists a Trade Secret? http://www.seyfarth.com:80//publications/TS041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> A lawyer&rsquo;s favorite phrase might be &ldquo;it depends.&rdquo; And when an employer asks whether its customer lists qualify as a trade secret, &ldquo;it depends&rdquo; is often the answer. But even if it&rsquo;s difficult to definitively state whether customer lists qualify as a trade secret, the converse&mdash;whether customer lists might not constitute a trade secret&mdash;can be helpful to assessing how much protection a court will provide.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/are-my-customer-lists-a-trade-secret/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=e77c2b91f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-e77c2b91f9-73050541">click here</a></p> http://www.seyfarth.com:80//news/rodriguez-quoted-wall-street-journal-041717 Leon Rodriguez quoted by the <i>Wall Street Journal</i> http://www.seyfarth.com:80//news/rodriguez-quoted-wall-street-journal-041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Ahead of Trump&#39;s order, H-1B applications to US drop for the first time,&quot; an April 17 story from the <em>Wall Street Journal</em> on how the number of applications for the H-1B visas used by high-tech companies and others to bring highly skilled workers to the U.S. dropped this year after years on the rise, the government said Monday. Rodriguez said that it is definitely a stark drop after years of an upward trend.</p> <p> <a href="https://www.wsj.com/articles/h-1b-visa-applications-drop-1492472611?tesla=y">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/bitar-quoted-am-law-daily-041717 Karen Bitar quoted in the <i>Am Law Daily</i> http://www.seyfarth.com:80//news/bitar-quoted-am-law-daily-041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> Karen Bitar was quoted in &quot;Study Shows Big Law Women Pulled to Certain Practice Areas,&quot; an April 17 story from the <em>Am Law Daily</em> on a recent study which found that women still lag significantly behind their male counterparts in certain key Big Law practice areas. Clients who are spread across the country mean that female litigators can be forced to spend a significant amount of time away from home, something that Bitar said leads many women to opt out of high-stakes and national litigation proceedings or self-select a practice that is more grounded in one geographic area.</p> <p> <a href="http://www.americanlawyer.com/id=1202783889472/Study-Shows-Big-Law-Women-Pulled-to-Certain-Practice-Areas">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CDL041617 WG6 MEMBERSHIP-BUILDING EVENT, CHICAGO, IL http://www.seyfarth.com:80//publications/CDL041617 Sun, 16 Apr 2017 00:00:00 -0400 <p> Topic: Interactive Dialogue concerning The Sedona Conference&reg; International Litigation Principles (Transitional Edition): Practical Help for Companies with the EU General Data Protection Regulation and Privacy Shield</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/wg6-membership-building-event-chicago-il/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=b6a5dc7c33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-b6a5dc7c33-72857025">click here</a></p> http://www.seyfarth.com:80//publications/olson-authored-article-USA-today-041617 Camille Olson authored an article in <i>USA Today</i> http://www.seyfarth.com:80//publications/olson-authored-article-USA-today-041617 Sun, 16 Apr 2017 00:00:00 -0400 <p> Camille Olson authored &quot;New rule, more unnecessary work: Second Look,&quot; an article on April 16 in <em>USA Today</em> on the U.S. Chamber of Commerce&rsquo;s request to the Office of Management and Budget to repeal or delay the Equal Employment Opportunity Commission&rsquo;s new EEO-1 form (which would require employers with 100 or more employees to report employee compensation and hours worked information). Olson said that the form will not promote equal pay because the data being collected &mdash; at enormous cost &mdash; is useless for that purpose.&nbsp;</p> <p> <a href="https://www.usatoday.com/story/opinion/2017/04/16/new-rule-unnecessary-work-second-look/100437656/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/hendrickson-quoted-wall-street-journal-041517 Christine Hendrickson quoted by the <i>Wall Street Journal</i> http://www.seyfarth.com:80//news/hendrickson-quoted-wall-street-journal-041517 Sat, 15 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Cities Push Employers to Ignore Pay History,&quot; an April 15 story by the <em>Wall Street Journal</em> on how companies have variously declared their commitment to rooting out gender-pay disparities by analyzing how hiring and promotion practices affect employees&rsquo; careers and earnings. Hendrickson said that has provided momentum to lawmakers&rsquo; efforts to bolster equal-pay protections by targeting specific practices that may exacerbate the wage gap.</p> <p> <a href="https://www.wsj.com/articles/cities-push-employers-to-ignore-pay-history-1492254003">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/BIO041417 Legislative Overview: First Quarter 2017 http://www.seyfarth.com:80//publications/BIO041417 Fri, 14 Apr 2017 00:00:00 -0400 <p> One goal of BioLoquitur is to provide commentary and analysis on important developments in U.S. law affecting the pharmaceutical and biologics industry. It can be easy to forget that legal developments are not limited to the latest court decisions or agency actions, however. &nbsp;The most profound changes in U.S. law arise from legislation. &nbsp; This post thus provides a snapshot of relevant legislative proposals for the first quarter in 2017.</p> <p> To read the entire blog post, <a href="http://www.bioloquitur.com/legislative-overview-first-quarter-2017/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=f9f5eee87b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-f9f5eee87b-73099029">click here</a></p> http://www.seyfarth.com:80//publications/MA041417-LE Changes to Massachusetts CORI Regulations http://www.seyfarth.com:80//publications/MA041417-LE Fri, 14 Apr 2017 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i>&nbsp; The Massachusetts Department of Criminal Justice Information Services recently amended the provisions of the Commonwealth&rsquo;s CORI regulations that govern how employers conduct criminal history checks.&nbsp; Employers should review their CORI practices to ensure compliance with these amended regulations, the key provisions of which are highlighted herein. <o:p></o:p></i></p> <p class="BodySingle"> As most Massachusetts employers know, in May 2012 the legislature passed sweeping reform to the Commonwealth&rsquo;s Criminal Offender Record Information (CORI) law.&nbsp; Shortly thereafter, the Department of Criminal Justice Information Services (DCJIS) issued regulations implementing the new law.&nbsp; The DCJIS recently proposed changes to those original regulations, and the final amended regulations have now been issued by the Secretary of State&rsquo;s Office. &nbsp;&nbsp;While many of the revisions address non-substantive housekeeping matters, a number of changes will require employers to modify their criminal history background check process.&nbsp;&nbsp; <o:p></o:p></p> <p class="BodySingle"> The following changes will have the biggest impact on employers:</p> <p class="BodySingle"> <strong>Who is an Employee? &nbsp;</strong></p> <p class="BodySingle"> The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees.&nbsp; DCJIS has indicated that including contractors, sub-contractors and vendors in the definition of employee is consistent with the Criminal Record Review Board&rsquo;s (CRRB) interpretation and is meant to provide employers with the authority to run background checks on individuals holding or applying for such positions.&nbsp; From the employers&rsquo; perspective, DCJIS has expanded the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers.</p> <p class="BodySingle"> <strong>What is CORI?</strong></p> <p> The prior regulations did not define &ldquo;Criminal Offender Record Information,&rdquo; beyond a list of examples of information included or excluded from CORI.&nbsp;&nbsp; Although the regulations now define CORI, the definition continues to leave some uncertainty as to what information, outside of that specifically provided by DCJIS, constitutes CORI.&nbsp; The regulations continue to exclude published records of public court, judicial or administrative proceedings from the definition of CORI.&nbsp; Most employers have interpreted this to mean that information obtained directly from state or federal courts (the primary source of criminal history information provided by background screening companies) is not CORI and, thus, not subject to the rules regulating the use of CORI obtained from DCJIS.&nbsp; Despite public comments asking for DCJIS to make this exception more explicit, it declined to do so.</p> <p class="BodySingle"> The regulations also now specifically exclude from the definition of CORI, information related to criminal proceedings that were initiated against an individual before he or she turned 18, unless the individual is adjudicated as an adult.&nbsp; Prior to the revisions, this threshold was 17.&nbsp; This change was part of a larger effort by the legislature to expand juvenile jurisdiction until an individual turns 18.</p> <p class="BodySingle"> <strong>&quot;Need to Know&rdquo; List and New iCORI Agency Agreement</strong>:</p> <p> The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system.&nbsp; The iCORI Agency Agreement will, at a minimum, include the employer&rsquo;s representation that:&nbsp; (1) it will comply with the CORI laws and regulations; (2) it will maintain an up to date &ldquo;need to know&rdquo; list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the &ldquo;need to know&rdquo; list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it (and any individual users of the employer&rsquo;s iCORI account) will be liable for any violations of the CORI law or regulations.&nbsp;</p> <p> The &ldquo;need to know&rdquo; list provision specifically requires that employers maintain a list of employees with access to CORI,&nbsp; update the list, at least, every six months, and provide it to the DCJIS upon request.&nbsp; The DCJIS had previously included this requirement in its Model CORI Policy (available on its website), but has now codified this requirement in the regulations.&nbsp;</p> <p class="BodySingle"> The DCJIS has not yet issued the iCORI Agency Agreement, which may include additional requirements.&nbsp;</p> <p class="BodySingle"> <strong>CORI Acknowledgment Forms:</strong></p> <p class="BodySingle"> DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.</p> <ul> <li class="BodySingle"> The new regulations specifically permit employers to collect CORI Acknowledgment Forms electronically, including as part of an employer&rsquo;s electronic job application.&nbsp; Although allowing electronic collection of these forms is a positive step, employers should be cautious about collecting date of birth and other demographic information required for CORI Acknowledgment Forms in the course of a job application and need to ensure that any background check forms meet the requirements of other laws including the federal Fair Credit Reporting Act.</li> <li> The DCJIS maintains Model CORI Acknowledgment forms on its website.&nbsp; The new regulations contemplate that employers may either use the model forms or incorporate the language into its own form.&nbsp;</li> <li> The regulations continue to require that employers verify the identity of individuals for whom they run a background check by reviewing a suitable form of government issued identification.&nbsp; The new regulations now specify that suitable forms of identification must contain a photograph, and that in the event that an individual does not have a suitable form of government issued identification, an employer may verify identity by reviewing either the individual&rsquo;s birth certificate or social security card.&nbsp; To the extent that an employer cannot do this verification in person, the regulations continue to allow an individual to submit a notarized Acknowledgment Form, either in written form or electronically.</li> <li> Under the prior regulations, employers could submit a new request for a CORI check within one year of an individual having signed the CORI Acknowledgment Form, but were required to provide the individual with written notice at least 72 hours before submitting the request.&nbsp; The new regulations eliminate the 72-hour notice requirement and allow employers to run an additional check provided that the employer notifies the subject on the Acknowledgment Form that a CORI check may be requested within one year.&nbsp; DCJIS has indicated it will revise the CORI Acknowledgment Form available on its website to reflect this change.&nbsp; For checks conducted after one year, employers must submit a new CORI Acknowledgment Form; however, if the information on the form exactly matches the information on the expired CORI Acknowledgement Form, an employer is not required to verify the individual&rsquo;s identity a second time.&nbsp;</li> <li> The new regulations clarify that in addition to destroying all CORI reports, employers must also destroy all CORI Acknowledgment Forms. The regulations also specify acceptable means of destroying hard copies and electronically stored CORI.</li> </ul> <p> <strong>Storing CORI in the Cloud</strong>:&nbsp;</p> <p> In recognition of changing technology, DCJIS now permits employers to store CORI using cloud storage methods.&nbsp; DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection.&nbsp; The regulations initially required that all cloud storage agreements be reviewed and approved by DCJIS.&nbsp; Following receipt of public comments, DCJIS amended the proposed regulation to remove this requirement and will instead issue guidelines regarding such cloud storage agreements and will require employers to make these agreements available to DCJIS upon request.&nbsp;</p> <p> <strong>Additional Information for Pre-Adverse Action Notices: </strong></p> <p> Currently, employers that contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action.&nbsp; Previously, the requirement to specifically identify this information did not apply to criminal history information obtained from a source other than DCJIS.&nbsp; The new regulations require that employers who obtain CORI &nbsp;identify the specific information that is the basis for the potential adverse action, even when criminal history information is obtained from a source other than DCJIS.&nbsp; The regulations do not seem to extend this requirement to background screening companies that are required only to identify the information in the &ldquo;subject&rsquo;s CORI&rdquo; that is the basis for the potential adverse action.&nbsp; The regulations do, however, now require background screening companies to identify the source of criminal history information.&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;</p> <p> The regulations also continue to require employers (assuming the employer acts as a decision-maker or has direct contact with the subject of the background check) that conduct five or more criminal background checks to maintain a background check policy and to provide of copy of the policy with pre-adverse action notifications.&nbsp; This is the case whether CORI is obtained from DCJIS or any other source.&nbsp; DCJIS has, however, limited the requirement that an employer provide DCJIS <em>Information Concerning the Process in Correcting a Criminal Record</em> to those instances where CORI is considered as part of a potential adverse action.&nbsp; Employers should review their pre-adverse action notifications to ensure they comply with these requirements.</p> <p> <strong>Obtaining CORI from Background Screening Companies:</strong></p> <p> The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information which led many background screening companies to cease providing CORI.&nbsp; Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker.&nbsp; In practice, employers very rarely enlist background check companies to act in this capacity, and many background check companies are hesitant to take on this role.&nbsp; Despite public comments asking DCJIS to reconsider this restriction, the regulations continue to impose this barrier to employers that use background screening companies.</p> <p> Additionally, the regulations have made clear that an employer must provide a statement to the background screening company indicating whether the annual salary of the position for which the subject is being screened is either above or below $75,000.&nbsp;</p> <p> Employers should work with their legal counsel and background check providers to ensure that their procedures and forms are in compliance with these new changes. &nbsp;</p> <p class="BodySingle"> <o:p></o:p></p> http://www.seyfarth.com:80//publications/wilson-miller-silveira-authored-article-aim-blog-041317 Jean Wilson, Barry Miller and Alison Silveira authored an article for <i>AIM Blog</i> http://www.seyfarth.com:80//publications/wilson-miller-silveira-authored-article-aim-blog-041317 Thu, 13 Apr 2017 00:00:00 -0400 <p> Jean Wilson, Barry Miller and Alison Silveira authored &quot;State Readies New Rules on Background Checks,&quot; an article on April 13 for <em>AIM Blog</em>. &nbsp;This article discusses the Department of Criminal Justice Information Services&rsquo; (DCJIS) new rules for the Criminal Offender Record Information (CORI) law, which regulates the ability of employers to conduct criminal background checks.</p> <p> <a href="http://blog.aimnet.org/aim-issueconnect/state-readies-new-rules-on-background-checks?platform=hootsuite">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WC041317 Plaintiffs’ Counsel Garner $15 Million Attorneys’ Fee Award For Largest TCPA Settlement In History http://www.seyfarth.com:80//publications/WC041317 Thu, 13 Apr 2017 00:00:00 -0400 <div> In what is being billed as the &ldquo;largest and strongest TCPA settlement in history,&rdquo; Judge Kennelly of the U.S. District Court for the Northern District of Illinois recently granted Plaintiffs&rsquo; counsel a minimum of $15.26 million in attorneys&rsquo; fees. &nbsp;However, the Court refused to depart from the &ldquo;sliding-scale structure,&rdquo; which has become the standard model in the Seventh Circuit for awarding fees in class actions, and declined to award Plaintiffs&rsquo; counsel one-third of the common fund (or $24.5 million) as requested.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/plaintiffs-counsel-garner-15-million-attorneys-fee-award-for-largest-tcpa-settlement-in-history/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=ce8a42b111-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-ce8a42b111-73050581">click here</a></div> http://www.seyfarth.com:80//news/foley-quoted-techworld-041317 Erin Dougherty Foley quoted by <i>Techworld</i> http://www.seyfarth.com:80//news/foley-quoted-techworld-041317 Thu, 13 Apr 2017 00:00:00 -0400 <p> Erin Dougherty Foley was quoted in &quot;5 ways your company can defuse a social media crisis,&quot; an April 13 story from <em>Techworld </em>on the critical steps employers can take to defuse a social media crisis. Foley said that the biggest mistake an employer makes is to shoot first and ask questions later.</p> <p> <a href="https://www.techworld.com.au/article/617684/5-ways-your-company-can-defuse-social-media-crisis/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/mcgurn-quoted-boston-dot-com-041217 Kristin McGurn quoted in <i>Boston.com</i> http://www.seyfarth.com:80//news/mcgurn-quoted-boston-dot-com-041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Kristin McGurn was quoted in &quot;When your Employer Cancels your Vacation,&quot; an April 12 story from <em>Boston.com</em> on whether an employer can ask you to cancel your vacation plans. McGurn said that many Massachusetts retailers impose black-out periods during which employees are instructed not to schedule vacation, for example because customer traffic is expected to be heavy during certain seasons.</p> <p> <a href="https://www.boston.com/jobs/job-doc/2017/04/12/when-your-employer-cancels-your-vacation">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/hoffman-quoted-bloomberg-BNA-041217 Valerie Hoffman quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/hoffman-quoted-bloomberg-BNA-041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Valerie Hoffman is quoted in &quot;Qualcomm&rsquo;s Private Settlement of Pay Bias Claim Enough for DOL,&quot; an April 12 story from <em>Bloomberg BNA</em> on Qualcomm Inc. agreeing to resolve Labor Department sex discrimination in pay allegations by tying the administrative settlement to a private $19.5 million class action settlement negotiated last year, according to agency documents published April 11. Hoffman said that the unusual settlement represents what could be a coming trend.</p> <p> <a href="https://www.bna.com/qualcomms-private-settlement-n57982086559/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/CCD041217 Employer Defeats Novel TCPA Class Action http://www.seyfarth.com:80//publications/CCD041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> In a first-of-its kind ruling, an employer recently secured the dismissal with prejudice of what is believed to be one of the first Telephone Consumer Protection Act class actions ever brought against a company while acting as an employer &ndash; specifically in this instance, the use of robo-calls to contact applicants about employment opportunities. The ruling ought to be required reading for corporate counsel in order to understand this emerging risk and to craft strategies to protect companies against such claims.</p> <p> To read the entire blog post, <a href="http://www.consumerclassdefense.com/2017/04/employer-defeats-novel-tcpa-class-action/?utm_source=Seyfarth+Shaw+-+Consumer+Class+Defense+Blog&amp;utm_campaign=10e8680914-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2001c8ab9a-10e8680914-71256169">click here</a></p> http://www.seyfarth.com:80//publications/CP041217 Marijuana at Work: Testing of (and for) Mary Jane http://www.seyfarth.com:80//publications/CP041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Last November, California voters passed Proposition 64&mdash;the Adult Use of Marijuana Act. The new law permits individuals over the age of 21 to possess up to one ounce of marijuana or eight grams of marijuana concentrates. California households, regardless of how many people reside there, can grow up to six plants at a time.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/12/marijuana-at-work-testing-of-and-for-mary-jane/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=8463306567-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-8463306567-71410869">click here</a></p> http://www.seyfarth.com:80//publications/WC041217 Denial Of Defenses: Illinois Court OK’s EEOC’s Pre-Suit Procedures http://www.seyfarth.com:80//publications/WC041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> An increasingly common issue in EEOC litigation against employers involves the scope of the Commission&rsquo;s lawsuits as related to the charges of discrimination, as well as the EEOC&rsquo;s conciliation efforts, or lack thereof. &nbsp;In EEOC v. Dolgencorp, LLC, No. 13-CV-4307 (N.D. Ill. Apr. 10, 2017), the EEOC moved for partial summary judgment regarding two defenses enumerated by the defendant, Dolgencorp, LLC (&ldquo;Dollar General&rdquo;): (1) the EEOC&rsquo;s claims were barred as beyond the scope of the charges of discrimination and investigation; and (2) the EEOC failed to satisfy its Title VII pre-suit duty to conciliate with the employer.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/04/denial-of-defenses-illinois-court-oks-eeocs-pre-suit-procedures/">click here</a>.</p> http://www.seyfarth.com:80//publications/CDL041717 International Privacy Panel & Reception http://www.seyfarth.com:80//publications/CDL041717 Wed, 12 Apr 2017 00:00:00 -0400 <p> The New Sedona Conference&reg; Transitional International Litigation Principles: &nbsp;Practical Help for Companies Preparing for 2018 EU General Data Protection Regulation (GDPR) &amp; Navigating EU Privacy Shield Requirements.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/international-privacy-panel-reception/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=d7d9f4421d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-d7d9f4421d-72857025">click here</a></p> http://www.seyfarth.com:80//publications/ReaList-April2017 The ReaList - Volume 1, Edition 1 http://www.seyfarth.com:80//publications/ReaList-April2017 Wed, 12 Apr 2017 00:00:00 -0400 <p> <span style="font-size:14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice. The ReaList newsletter covers New York real estate news, events, and trends.</span><br /> &nbsp;</p> <p> <strong>Real Estate Litigation:</strong></p> <p> <strong>&ldquo;Subject to&rdquo; Written Agreement Requirement May Not Require Written Agreement </strong><br /> A party that wishes to make its obligation subject to execution of a written agreement executed by both parties can do so, but must express that intent clearly and unmistakably. In <a href="http://www.nycourts.gov/ctapps/Decisions/2016/Dec16/191opn16-Decision.pdf">Stone Hill Capital Management v. The Bank of the West</a>, a bank sold a syndicated loan at auction, making its acceptance &quot;subject to&quot; execution of a written agreement. The bank ultimately changed its mind, and no formal written agreement was ever executed. The Court of Appeals nevertheless granted the winning bidder summary judgment, holding that the phrase &quot;subject to&quot; was insufficient to manifest the required unmistakable intent not to be bound until execution of a definitive agreement.</p> <p> If you have any questions, please contact <a href="mailto:jwolfert@seyfarth.com">Jonathan Wolfert</a> or <a href="mailto:skinne@seyfarth.com">Sarah Kinne</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>Mortgage Recording Taxation Without Complication</strong><br /> The current framework of collecting mortgage recording tax in New York State overly complicates real estate transactions. The&nbsp;assignment and consolidation of mortgage process allows for the possibility of (i) double taxation (particularly in the residential market), (ii) defects in the mortgage chain complicating foreclosures and title insurance, and (iii) mercurial lenders and sellers insisting on&nbsp;being compensated for a portion of the mortgage tax &ldquo;savings&rdquo;.</p> <p> New York is one of only seven states, not including the District of Columbia, that require a mortgage recording tax to be paid on the principal amount of a loan secured by a mortgage, subject to certain qualifications. <a href="http://codes.findlaw.com/ny/tax-law/#!tid=NF7A62B6786854C5DB8C3D883A64A5227">Article 11 of New York State&rsquo;s Tax Law</a> allows for mortgage recording tax to be paid on the difference between the unpaid principal amount of an existing mortgage and the principal amount of the new mortgage loan.</p> <p> In the abstract, determining the correct amount of mortgage tax is a matter of rudimentary arithmetic. In practice, preserving the benefit of mortgage tax previously paid has developed into a Kafkaesque labyrinth of vintage notes, mortgages, allonges, consolidations, amendments, and affidavits.</p> <p> One method of simplifying mortgage tax payment and documentation is to distill the paperwork into a one-page affidavit. A mortgagor would sign an affidavit that complies with Section 255 of New York State Tax Law&nbsp;and Section 275 of New York Real Property Law by stating (i) the unpaid principal balance of the existing mortgage pursuant to a payoff letter attached as an exhibit thereto and that the proper mortgage tax was paid thereon, (ii) the new loan amount, (iii) the amount of mortgage tax to be paid at closing on the difference thereto, (iv) that assignee has not acted as a nominee of the mortgagor under the mortgage, and (v) the mortgage being assigned continues to secure a bona fide obligation.</p> <p> The District of Columbia has already implemented a similar streamlined practice for collecting mortgage tax, effectively eliminating the burden of the mortgage assignment and consolidation process, while still ensuring compliance with the spirit of <a href="http://codes.findlaw.com/ny/tax-law/tax-sect-255.html">Section 255</a> and <a href="http://codes.findlaw.com/ny/real-property-law/rpp-sect-275.html">Section 275</a>. The audacity of the taxes imposed by the Stamp Act stirred the American colonies into open rebellion; the least we can do is cut down on the paperwork.</p> <p> If you have any questions, please contact <a href="mailto:cderzie@seyfarth.com">Cyril Derzie</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Condominiums and Cooperatives:</strong></p> <p> <strong>Appellate Division Affirms Condominium Board&rsquo;s Rights To Foreclose Unit And Collect Rent From Defaulting Unit Owner</strong><br /> The Appellate Division, in <a href="http://nycourts.gov/reporter/3dseries/2017/2017_00257.htm">Heywood Condominium v. Wozencraft</a>, affirmed a condominium board&rsquo;s rights to (i) foreclose on a condominium unit whose owner had failed to pay common charges and (ii) evict the unit owner from the unit for having failed to pay fair market rent for his use and occupancy of the unit. The Appellate Division based its opinion not only on the Condominium Act (<a href="http://codes.findlaw.com/ny/real-property-law/rpp-sect-339-aa.html">Real Property Law &sect; 339 aa</a>), but also on the bylaws of the condominium. The bylaws specifically provided that the condominium had the right to file a lien against the unit for unpaid common charges, interest, legal fees, costs and expenses incurred in collecting its common charges, the right to foreclose the lien and the right to appoint a receiver. The Appellate Division also upheld the right of the condominium to restrict the defaulting unit owner&rsquo;s use of non-essential building amenities pursuant to the terms of the house rules.&nbsp;Heywood is distinguishable from other similar condominium foreclosure cases where the condominium was unable to obtain a foreclosure judgment that included attorneys&rsquo; fees, late fees and interest because the condominium&rsquo;s bylaws failed to provide for these additional costs.<br /> <br /> If you have any questions, please contact <a href="mailto:dgreenstein@seyfarth.com">Dennis Greenstein</a> or <a href="mailto:tgleason@seyfarth.com">Tom Gleason</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Health Care Real Estate &amp; Finance:</strong></p> <p> <strong>BoomerCare? Baby Boomer Senior Housing Affordability Issues</strong><br /> As the &quot;Baby Boomer&quot; generation continues to age and enter retirement, the need for senior housing and long-term care facilities offering services to residents across the socioeconomic spectrum continues to grow. One of the critical questions facing health care facility owners and developers is how to provide affordable long-term care for low and middle income patients. This question has become&nbsp; particularly relevant in light of potential reductions to, or restructuring of, Medicaid funding. While the senior housing industry recognizes this growing community of&nbsp;socioeconomically&nbsp;diverse patients requiring care, there are financial obstacles to facilities desiring to serve this community. An innovative solution that some health care financiers are working on with local housing authorities is to layer in low income based tax credits and/or Section 8 vouchers into new senior housing development projects. While this structure would likely subject the facilities to additional governmental restrictions, it could offer a reasonable incentive to providers to care for a growing part of the population in a financially viable manner.</p> <p> If you have any questions, please contact <a href="mailto:cmitchell@seyfarth.com">Cynthia Mitchell</a> or <a href="mailto:edahill@seyfarth.com">Elizabeth Dahill</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Development:</strong></p> <p> <strong>Decision Deadlocks and Exit Rights in JV Agreements: A Balancing Act</strong><br /> When documenting a joint venture (JV) care must be taken so that the decision making deadlock remedies and the parties&rsquo; exit rights from the JV complement each other.&nbsp; There are buy/sell provisions designed to &ldquo;encourage&rdquo; the parties to resolve major decision deadlocks or remove the deadlock through the buyout of one of the parties from the JV.&nbsp; If there is a decision deadlock, the basic buy/sell provisions&nbsp;allow either party to offer a buyout price for the other party&rsquo;s JV interest.&nbsp; The offeree party may either accept the buyout offer or turn it around and buyout the offeror party&rsquo;s JV interest.&nbsp; JV documents also typically allow the parties to exit the JV via (i) a sale of their respective JV interests, subject to the other party&rsquo;s right of first refusal or right of first offer as well as drag-along and tag-along rights, and (ii) a property level forced sale provision upon economic stabilization of the property.&nbsp; The decision making deadlock remedies and the parties&rsquo; exit rights from the JV must be appropriately integrated into the JV so an exit right cannot be used to thwart or undermine the decision making deadlock remedies.</p> <p> If you have any questions, please contact <a href="mailto:mborden@seyfarth.com">Miles Borden</a>.</p> http://www.seyfarth.com:80//publications/MA041117-LE California Supreme Court Invalidates Contractual Waivers Of Public Injunctive Relief http://www.seyfarth.com:80//publications/MA041117-LE Tue, 11 Apr 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: No California contractual provision, including one in an arbitration agreement, can waive the statutory right to seek injunctive relief to protect the general public. </em>McGill v. Citibank, N.A.<em> (April 6, 2017).</em></p> <p> <strong>The Facts</strong></p> <p> Sharon McGill had a Citibank credit card. The account had a &ldquo;credit protector&rdquo; plan, by which Citibank would defer certain amounts on the credit card account if a qualifying condition occurred, such as divorce, hospitalization, or unemployment.</p> <p> In 2001, Citibank gave notice to McGill that their disputes would be subject to arbitration unless she opted out. She did not do so, either in 2001, or when Citibank gave renewed notices in 2005 and in 2007. In 2011, McGill filed a class action against Citibank based on how it handled her account following her loss of a job in 2008. By the time McGill sued, the arbitration agreement provided that disputes would be handled &ldquo;on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.&rdquo; By way of emphasis, the agreement stated: &ldquo;Claims must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party.&rdquo;</p> <p> McGill alleged claims under California&rsquo;s Unfair Competition Law (&ldquo;UCL&rdquo;), Consumer Legal Remedies Act (&ldquo;CLRA&rdquo;), and false advertising law. McGill sought an injunction prohibiting Citibank from continuing &ldquo;illegal and deceptive practices&rdquo; against the public.</p> <p> <strong>Trial and Appellate Court Decisions</strong></p> <p> Citibank, invoking the arbitration agreement, petitioned to compel McGill to arbitrate her claim on an individual basis. The trial court ordered her to arbitrate all claims other than those for injunctive relief under the UCL, the CLRA, and the false advertising law. The trial court held that, under the <em>Broughton-Cruz</em> rule, agreements to arbitrate claims for public injunctive relief under these statutes are not enforceable.</p> <p> On Citibank&rsquo;s appeal, the Court of Appeal reversed, directing the trial court to compel all claims to arbitration because the Federal Arbitration Act (&ldquo;FAA&rdquo;) preempts the <em>Broughton-Cruz</em> rule. McGill then filed a petition for review, asserting (1) that the Court of Appeal erred in finding FAA preemption of the <em>Broughton-Cruz</em> rule, and (2) the arbitration provision is invalid and unenforceable because it waives her right to seek public injunctive relief in any forum.</p> <p> <strong>The California Supreme Court Decision</strong></p> <p> The Supreme Court did not address the first issue (FAA preemption). And even as to the second issue, the Supreme Court did not reach the issue of whether there was an enforceable agreement to arbitrate, but rather decided that a contractual waiver of the right to seek a public injunction was unenforceable, regardless of whether that waiver appears in an arbitration agreement. The Supreme Court&rsquo;s decision on this narrow issue was unanimous.</p> <p> The Supreme Court began by noting that the three statutes at issue (the UCL, the CLRA, the false advertising law) all authorize injunctions to protect the general public. These public injunctions&mdash;which benefit a plaintiff only incidentally, as a member of the general public&mdash;differ from private injunctive relief, which resolves the plaintiff&rsquo;s private dispute and benefits the public, if at all, only incidentally. The <em>Broughton-Cruz</em> rule holds that agreements to arbitrate claims for public injunctive relief under the statutes in question are not enforceable.</p> <p> Although the Supreme Court had agreed to review whether this <em>Broughton-Cruz </em>rule is FAA-preempted, the Supreme Court concluded that the rule was not relevant here, because Citibank&rsquo;s arbitration agreement did not refer claims for public injunctions to arbitration, but rather banned such claims <em>in any forum</em>.</p> <p> Viewed in this light, the case was <em>not </em>about what an enforceable arbitration agreement would look like, but rather whether <em>any kind</em> of agreement could effectively waive the right to seek a public injunction. The Supreme Court concluded: &ldquo;the arbitration provision here at issue is invalid and unenforceable under state law insofar as it purports to waive McGill&rsquo;s statutory right to seek such relief.&rdquo; That result followed from Civil Code section 3513, which states that &ldquo;a law established for a public reason cannot be contravened by a private agreement.&rdquo; The Supreme Court reasoned that the three statutes in question, in authorizing public injunctive relief, did so for a public reason.</p> <p> The Supreme Court found this result consistent with the FAA. Although the FAA requires courts to treat arbitration agreements on a par with other contracts and to enforce them according to their terms, the FAA also permits arbitration agreements to be declared unenforceable &ldquo;upon such grounds as exist at law or in equity for the revocation of any contract.&rdquo; In this case, Civil Code section 3513 would provide a ground to revoke any provision, whether it appears in an arbitration agreement or some other kind of agreement. Thus, the Supreme Court concluded, the FAA did not preempt a California anti-waiver rule protecting the right to pursue a public injunction.</p> <p> Nor, the Supreme Court concluded, would an anti-waiver rule regarding public injunctions interfere with the fundamental attributes of arbitration (as the old <em>Discover Bank</em> anti-waiver rule had with respect to class actions).</p> <p> The existence of an anti-waiver rule with respect to public injunctions did&nbsp; not necessarily mean that the Citibank arbitration agreement was unenforceable. The Supreme Court expressly declined to decide that question and left it to be resolved on remand to the Court of Appeal.</p> <p> <strong>What <em>McGill </em>Means for Employers</strong></p> <p> <em>McGill </em>is important for what it did not decide as well as for what it did decide. First, <em>McGill </em>does <em>not </em>invalidate agreements that would have the arbitrator decide whether to issue a public injunction. All that would stand in the way of such an arbitration agreement would be the <em>Broughton-Cruz</em> rule, the continuing viability of which is suspect. That rule is FAA-preempted, according to the (now depublished) Court of Appeal decision in <em>McGill</em>, and the Supreme Court&rsquo;s decision avoids endorsing that rule.</p> <p> Second, <em>McGill </em>does <em>not </em>say that an arbitration agreement containing an invalid ban on public injunctive relief would necessarily be unenforceable. Courts often sever an unenforceable provision from an arbitration agreement and enforce the remainder of the agreement. Whether courts can thus save an arbitration agreement depends on the surrounding circumstances.</p> <p> <em>McGill </em>does counsel that employers, whether in the form of an arbitration agreement or in some other sort of agreement, cannot require employees to waive their right to seek injunctions that would be primarily for the benefit of the public, and only incidentally of benefit for the employee.</p> http://www.seyfarth.com:80//publications/MA041117-INTL New UK Limited Partnership for Private Funds http://www.seyfarth.com:80//publications/MA041117-INTL Tue, 11 Apr 2017 00:00:00 -0400 <div> On 6 April 2017, a new form of limited partnership came into existence with the introduction of a &lsquo;private fund limited partnership&rsquo; (PFLP) under the <em>Legislative Reform (Private Fund Limited Partnership) Order 2017 (LRO)</em>. &nbsp;The PFLP is intended to make the limited partnership structure more attractive for asset managers and investors by reducing some of the administrative and financial burdens of the LP structure and by clarifying which activities a limited partner can undertake without losing or risking its limited liability. The Government hopes that the new PFLP structure will make the UK an attractive domicile for funds compared to other jurisdictions.</div> <div> &nbsp;</div> <div> <strong>Designation as a PFLP</strong></div> <div> &nbsp;</div> <div> Existing and new UK limited partnerships may elect to be designated as a PFLP if two &lsquo;private fund conditions&rsquo; are satisfied, namely:</div> <div> &nbsp;</div> <ul> <li> It is constituted by an agreement in writing; and&nbsp;</li> <li> It is a collective investment scheme (as defined in section 235 of the <em>Financial services and Markets Act 2000 </em>(FSMA). &nbsp;</li> </ul> <div> &nbsp;</div> <div> It is expected that most funds and co-investment and alternative investment vehicles will satisfy these conditions.</div> <div> &nbsp;</div> <div> An existing LP may choose to apply for PFLP status if it fulfils the above conditions by application to Companies House in the UK. &nbsp;Similarly, a new LP may apply to Companies House for registration as a PFLP. &nbsp;Once registered and designated, the registrar will issue a certificate of registration and a certificate of designation as a PFLP or a combined certificate.</div> <div> &nbsp;</div> <div> An LP that is designated as a PFLP will not be able to reverse the process and return to LP status.</div> <div> &nbsp;</div> <div> <strong>Advantages of a PFLP</strong></div> <div> &nbsp; &nbsp;&nbsp;</div> <div> <em>Non-exhaustive &lsquo;white list&rsquo; of permitted activities</em> - In a traditional LP a limited partner may not take part in the management of the LP&rsquo;s business without becoming liable for the LP&rsquo;s debts, and there has, until now, been uncertainty as to which activities would amount to &lsquo;taking part in the management&rsquo; of the LP. &nbsp;For PFLPs section 6A of the LRO sets out a non-exhaustive &lsquo;white list&rsquo; of activities a limited partner of a PFLP may carry on without being considered to take part in the management of the business and without losing its limited liability. &nbsp;The &lsquo;white list&rsquo; of activities is particularly intended to cover institutional investors which have a strong interest in the relevant fund and have obligations to their own members or investors. &nbsp;The &lsquo;white list&rsquo; includes:</div> <div> &nbsp;</div> <ul> <li> Taking part in a decision about the variation or waiver of a term of the partnership agreement or associated documents, changes to the general nature of the partnership business, an entity becoming or ceasing to be a partner and &nbsp;termination or extension of the term of the partnership;</li> <li> Appointing a person to wind up the partnership;</li> <li> Enforcing an entitlement under the partnership agreement;</li> <li> Entering into, or acting under, a contract with the other partners in the partnership;</li> <li> Providing surety or acting as guarantor for the partnership;</li> <li> Approving the accounts of the partnership;</li> <li> Reviewing or approving a valuation of the partnership&rsquo;s assets; &nbsp;</li> <li> Taking part in a decision regarding changes in persons responsible for the day-to-day management of the partnership;&nbsp;</li> <li> Appointing or nominating a person to represent the limited partner on a committee; and&nbsp;</li> <li> Taking part in a decision about how the partnership should exercise any right as an investor in another collective investment scheme. &nbsp; &nbsp;</li> </ul> <div> &nbsp;</div> <div> <em>No capital contributions -</em> Unlike for traditional LPs, in a PFLP limited partners are not required to contribute any capital to the PFLP, and any capital contributed may be withdrawn during the life of the PFLP;</div> <div> &nbsp;</div> <div> <em>No need to file Gazette notices -</em> The LRO has removed the obligation to file a Gazette notice on a transfer of an interest by a limited partner of a PFLP. However, the requirement to file remains where any person will cease to be a general partner in a PFLP.&nbsp;</div> <div> &nbsp;</div> <div> <em>Administrative burdens removed -</em> Unlike LPs which are not PFLPs, a PFLP is not required to file notices at Companies House of changes to the partnership&rsquo;s business or term of the partnership or details of capital contributed by any limited partner.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Disadvantages of a PFLP?</strong></div> <div> &nbsp; &nbsp;&nbsp;</div> <div> Although there don&rsquo;t appear to be any disadvantages with funds registering to be designated as a PFLP, existing funds (as with new funds) will incur some administrative time and costs in re-designating an LP as a PFLP. It will depend on the terms of the relevant partnership agreement, but there may be a requirement to notify or obtain the consent of the limited partners before applying for a re-designation. &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Winding-up a PFLP</strong></div> <div> &nbsp;</div> <div> The requirement for limited partners to obtain a court order to wind-up a limited partnership when there is no general partner does not apply to a PFLP. The LRO grants the limited partners of a PFLP the power to authorise a third party to wind-up the partnership on their behalf.</div> http://www.seyfarth.com:80//publications/WC041117 D.C. Court Certifies Three Classes In Race Discrimination Class Action Involving Criminal Background Policy http://www.seyfarth.com:80//publications/WC041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> In a class action alleging that the criminal background policy of Washington D.C.&rsquo;s local transit authority had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer&rsquo;s workforce being 75% African-American. The ruling &ndash; in L<em>ittle v. Washington Metropolitan Area Transit Authority</em>, No. 14-1289, 2017 U.S. Dist. LEXIS 48637 (D.D.C. Mar. 31, 2017), is a &ldquo;must read&rdquo; for employers that use hiring screens.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/d-c-court-certifies-three-classes-in-race-discrimination-class-action-involving-criminal-background-policy/">click here</a></p> http://www.seyfarth.com:80//publications/ADA041117 Florida Courts Rule ADA Covers Websites With Nexus To Physical Store http://www.seyfarth.com:80//publications/ADA041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> The Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/04/florida-courts-rule-ada-covers-websites-with-nexus-to-physical-store/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=3043d018e5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-3043d018e5-71256157">click here</a></p> http://www.seyfarth.com:80//publications/EL041117 Are Your Employees Texting? The Risks To Employers In Taking Workplace Communications Offline http://www.seyfarth.com:80//publications/EL041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/are-your-employees-texting-the-risks-to-employers-in-taking-workplace-communications-offline/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=93af582c32-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-93af582c32-71256185">click here</a></p> http://www.seyfarth.com:80//news/maatman-quoted-westlaw-journal-employment-041117 Gerald Maatman quoted in <i>Westlaw Journal Employment</i> http://www.seyfarth.com:80//news/maatman-quoted-westlaw-journal-employment-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court Oks narrow review of EEOC subpoena rulings,&quot; an April 11 story from <em>Westlaw Journal Employment</em> on a U.S. Supreme Court ruling that says appellate courts should defer to district court decisions regarding EEOC subpoena requests and only consider if the lower court abused its discretion in approving or denying a subpoena. Maatman said that the Supreme Court&rsquo;s decision will make it more difficult to overturn a district court&rsquo;s decision on an employer&rsquo;s challenge to an EEOC subpoena.</p> http://www.seyfarth.com:80//news/babson-quoted-law360-041117 Marshall Babson quoted by <i>Law360</i> http://www.seyfarth.com:80//news/babson-quoted-law360-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Marshall Babson was quoted in &quot;GOP Rage At Obama&#39;s Labor Board Could Cost Trump&#39;s NLRB,&quot; an April 11 story in <em>Law360 </em>on how there&rsquo;s a sense in the GOP-controlled Capitol that the Obama NLRB board made too many pro-union decisions, something that could lead Congress to exact revenge via the NLRB&#39;s budget, which would hamper the agency and force difficult decisions about how to administer federal labor law. Babson said that there&rsquo;s enough residual anger among the politicians on the Hill, particularly Republicans, at what the National Labor Relations Board has done during the last eight years.</p> http://www.seyfarth.com:80//news/maatman-quoted-cook-county-record-041117 Gerald Maatman quoted in the <i>Cook County Record</i> http://www.seyfarth.com:80//news/maatman-quoted-cook-county-record-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Judge tosses TCPA lawsuit vs Kelly Services over robocalls to job applicants,&quot; an April 11 story from the <em>Cook County Record</em> on a U.S. District Court judge dismissal of a robocalling lawsuit against an employment services company, which had been accused of violating federal law by using an automated dialer to call the mobile phones of people who had applied for jobs. Maatman said that this case is a first of its kind because typically these kinds of cases involve robocalls about advertisements.</p> <p> <a href="http://cookcountyrecord.com/stories/511103216-judge-tosses-tcpa-lawsuit-vs-kelly-services-over-robocalls-to-job-applicants">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/real-estate-lawyer-tyler-stradling-joins-seyfarth Real Estate Lawyer Tyler Stradling Joins Seyfarth http://www.seyfarth.com:80//news/real-estate-lawyer-tyler-stradling-joins-seyfarth Mon, 10 Apr 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP announced today the arrival of partner Tyler Stradling to the real estate practice in Boston. Stradling joins from Fennemore Craig, PC where he was a director and equity partner.</div> <div> &nbsp;</div> <div> Stradling&rsquo;s practice concentrates on real estate transactions representing property owners and developers in connection with retail leasing, commercial and real estate development, convenience store development, covenants and easements, condominium, and property acquisitions and sales.</div> <div> &nbsp;</div> <div> &ldquo;Tyler is an excellent transactional lawyer and is joining a team that is handling an increasing volume of national real estate deals for clients,&rdquo; said Paul Mattingly, chair of Seyfarth&rsquo;s Real Estate department. &ldquo;His addition aligns with our strategic goal to expand our leasing capabilities and provide quality value and service to our clients across the country.&rdquo;</div> <div> &nbsp;</div> <div> Earlier in his career, Stradling served as a judicial law clerk to the Honorable Chief Justice Charles E. Jones of the Arizona Supreme Court.</div> <div> &nbsp;</div> <div> &ldquo;Our real estate group is eager to collaborate with Tyler on the surge of complex real estate transactions we manage across our national platform,&rdquo; said Russell Swapp, managing partner of Seyfarth&rsquo;s Boston office.&nbsp;</div> <div> &nbsp;</div> <div> Stradling received his J.D., <em>magna cum laude</em>, from Brigham Young University and earned his B.A., summa cum laude, from Arizona State University.&nbsp;</div> <div> &nbsp;</div> <div> With more than 140 real estate lawyers across the country, Seyfarth has one of the largest real estate practices in the United States. Both national and local in scope, Seyfarth provides a full range of services including development, construction, leasing, acquisitions, dispositions, financing, and joint ventures.</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/clark-simonsen-curtis-young-quoted-business-insurance-041017 Brent Clark, Craig Simonsen, James Curtis and Adam Young quoted in <i>Business Insurance</i> http://www.seyfarth.com:80//news/clark-simonsen-curtis-young-quoted-business-insurance-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Brent Clark, Craig Simonsen, James Curtis and Adam Young were quoted in &quot;Lawsuit over OSHA electronic records rule delayed,&quot; an April 10 story by <em>Business Insurance</em> on how a Texas court has granted a request for a 60-day delay in litigation over the U.S. Occupational Safety and Health Administration&rsquo;s electronic record-keeping rule. They noted that, while it remains to be seen how either of these legal challenges will fare, the business community has shown a willingness to strongly oppose this new rule &mdash; a rule that has been widely criticized as emblematic of regulatory overreach.</p> <p> <a href="http://www.businessinsurance.com/article/20170410/NEWS08/912312842/OSHA-electronic-record-keeping-rule-lawsuit-delayed">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-mentioned-bloomberg-BNA-daily-labor-report-041017 Gerald Maatman mentioned in <i>Bloomberg BNA Daily Labor Report</i> http://www.seyfarth.com:80//news/maatman-mentioned-bloomberg-BNA-daily-labor-report-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Bull&#39;s-Eye on Gender Pay Gap; Laws, Lawsuits Proliferating,&quot; an April 10 story from <em>Bloomberg BNA Daily Labor Report</em> on how class-action litigators and shareholder activists are pushing for pay equity in the courtroom and in shareholder resolutions. Maatman said that how companies compensate workers is likely the number one area where the plaintiffs&rsquo; bar and governmental enforcement litigators are bringing class actions.</p> <p> <a href="http://news.bna.com/dlln/DLLNWB/split_display.adp?fedfid=109160444&amp;vname=dlrnotallissues&amp;jd=a0m2f3a0n3&amp;split=0">You can view the full article here</a>.</p> http://www.seyfarth.com:80//publications/CP041017 Flex Your Pecs! The 2017 Edition of Cal-Peculiarities Has Arrived! http://www.seyfarth.com:80//publications/CP041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Fresh off the presses we bring to you the latest and greatest version of our beloved<strong><em> Cal-Peculiarities: How California Employment Law is Different</em></strong>, your California employment law roadmap. It is created to help private employers who do business in California steer through the nuances of California employment law. In the 2017 Edition, we continue to highlight recent court decisions and legislative developments. Don&rsquo;t get caught in the driver&rsquo;s seat without it!</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/10/flex-your-pecs-the-2017-edition-of-cal-peculiarities-has-arrived/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=db59d652f8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-db59d652f8-71410869">click here</a></p> http://www.seyfarth.com:80//publications/hendrickson-and-savadjian-authored-article-for-finance-digest-041017 Christine Hendrickson and Lisa Savadjian authored an article for <i>Finance Digest</i> http://www.seyfarth.com:80//publications/hendrickson-and-savadjian-authored-article-for-finance-digest-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson and Lisa Savadjian authored &quot;The Trend Continues: NYC Passes Salary History Ban,&quot; an article on April 10 for <em>Finance Digest</em>. &nbsp;This article discusses the New York City Council&rsquo;s approval of a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process.</p> <p> <a href="https://www.financedigest.com/the-trend-continues-nyc-passes-salary-history-ban.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM041717-LIT Last Minute Challenge to FDA Menu Labeling Rules http://www.seyfarth.com:80//publications/OMM041717-LIT Mon, 10 Apr 2017 00:00:00 -0400 <div> A group of major grocers and retailers has recently petitioned the Food and Drug Administration (&ldquo;FDA&rdquo;) to stay and reconsider its new menu labeling rules. The FDA had previously finalized new menu labeling rules in connection with the Affordable Care Act to make calorie and nutrition information more available for consumers when dining out. After multiple extensions, the current compliance and enforcement date for the menu labeling rules is <strong>May 5, 2017</strong>.&nbsp;</div> <div> &nbsp;</div> <div> The nationwide menu labeling rules were initially welcomed by the restaurant industry because the rules were expected to provide nationwide uniformity and harmony to the patchwork rise of various state and local laws and regulations regarding calorie and nutritional disclosures. The petitioner grocers and retailers argue, however, that the new menu labeling rules are overly broad and encompass too many businesses, do not properly clarify what constitutes a &ldquo;menu,&rdquo; and will cause significant costs for compliance. &nbsp;</div> <div> &nbsp;</div> <div> With the compliance and enforcement date fast approaching, companies that are subject to the menu labeling rules should ensure their menu boards and menus comply with the new labeling rules regardless of the pending petition. Such companies should also ensure they have a reasonable basis for any nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined. Indeed, these menu disclosure issues are already being closely followed by the plaintiff&rsquo;s bar, who continue to file consumer class actions that allege misrepresentations of calorie and nutrition disclosures. &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The following is a list of the key requirements under the new menu labeling rules:</div> <ol> <li> Applies to all restaurants and similar retail food establishments nationwide with (a) 20 or more locations, (b) doing business under the same name, and (c) offering for sale substantially the same menu items (similar but separate rules have also been enacted for food sold from vending machines).</li> <li> All menu boards must clearly and conspicuously contain the following two statements: (a) &ldquo;2,000 calories a day is used for general nutrition advice, but calorie needs vary,&rdquo; and &ldquo;Additional written nutrition information available upon request.&rdquo; &nbsp;</li> <li> &ldquo;Menu boards&rdquo; subject to these disclosure requirements are defined as all primary writings from which the consumer makes his or her order sections (e.g., in-store menu boards, Internet menus, takeaway menus).</li> <li> Calorie information must be clearly and conspicuously displayed next to the name or price of &ldquo;standard menu items&rdquo; (i.e., routinely included on menu or offered, excluding condiments, daily specials, temporary menu items, custom order, and customary market test foods, and food offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days to test consumer acceptance), but no specific color, font size, or contrasting background is required.</li> <li> Calorie information must be declared on signs adjacent to foods on display and self-serve foods (e.g. salad bars, buffets) that are standard menu items.&nbsp;</li> <li> When a menu or menu board lists flavors or varieties for an entire individual variable menu item, the calories must typically be declared separately for each listed flavor or variety, or flavors and varieties may be grouped together as a single listing if they have the same calorie content.</li> <li> If the menu or menu board does not list flavors or varieties, and only includes a general description of the variable menu item (e.g. , &ldquo;soft drinks&rdquo;), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., &ldquo;150/200 calories&rdquo;), or as a range where more than two options are available (e.g., &ldquo;100-250 calories&rdquo;).</li> <li> The following written nutrition information must be available to consumers upon their request: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.</li> <li> Finally, &ldquo;[w]hen a standard menu item, including a beverage, is listed on a menu or menu board by name with different sizes, or each size has its own price, each size would constitute a standard menu item rather than a different flavor, variety, or combination, and each standard menu item must include a calorie declaration.&rdquo;</li> <li> A covered establishment must have a reasonable basis for its nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined. &nbsp;</li> <li> Violations may result in enforcement actions for injunctive relief and criminal and civil penalties.&nbsp;</li> </ol> http://www.seyfarth.com:80//publications/WC040917 Court Uses Novel Issue Certification Device To Sidestep Individualized Issues Otherwise Precluding Class Certification http://www.seyfarth.com:80//publications/WC040917 Sun, 09 Apr 2017 00:00:00 -0400 <p> A group of female truck drivers sued their employer for policies allegedly resulting in a hostile work environment for and retaliation against women who complained of sexual harassment on the job. &nbsp;Under Rules 23(b)(3) and 23(c)(4), the U.S. District Court for the Northern District of Iowa certified both a hostile work environment class and retaliation class on issues relating to the employer&rsquo;s liability. &nbsp;Such certification was made possible by the drivers&rsquo; bifurcation proposal, which involved a representative trial on aspects of liability and individualized trials on remaining aspects of liability and damages. &nbsp;Employers should take note that there is a trend among some federal courts to use Rule 23 in novel ways to certify classes of employees to avoid confronting issues that, traditionally, would preclude class certification.</p> <p> To read the entiore blog post, <a href="http://www.workplaceclassaction.com/2017/04/court-uses-novel-issue-certification-device-to-sidestep-individualized-issues-otherwise-precluding-class-certification/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=f9e07f2257-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-f9e07f2257-73050581">click here</a></p> http://www.seyfarth.com:80//publications/WSE040717 OSHA Delays Enforcement of Crystalline Silica Standard for Construction http://www.seyfarth.com:80//publications/WSE040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Crystalline silica is a staple of our modern society. &nbsp;OSHA notes that it&rsquo;s a common mineral that is found in many naturally occurring materials, and used in many industrial products and at construction sites. &nbsp;Materials such as sand, concrete, stone and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. &nbsp;Industrial sand is also used in certain foundry work and hydraulic fracturing (fracking) operations. &nbsp;OSHA estimates that 2.3 million workers are exposed to crystalline silica on the job.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/chemical-safety/osha-delays-enforcement-of-crystalline-silica-standard-for-construction/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=61dd355e07-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-61dd355e07-71407177">click here</a></p> http://www.seyfarth.com:80//publications/OMM040717 President Trump Signs Executive Orders on Trade and Designates Trade and Customs Law Violations as Law Enforcement “High Priority” http://www.seyfarth.com:80//publications/OMM040717 Fri, 07 Apr 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Fulfilling early-made campaign promises, President Donald J. Trump issued two Executive Orders on March 31, 2017 that demonstrate his administration&rsquo;s commitment to combatting unfair trade practices. In particular, and with far-reaching implications, one of the President&rsquo;s Executive Orders directs the Attorney General to &ldquo;ensure that Federal prosecutors accord a high priority to prosecuting significant offenses related to violations of trade laws.&rdquo; The same Executive Order also directs the Secretary of Homeland Security, through the Commissioner of Customs and Border Protection, to &ldquo;develop and implement a strategy and plan for combating violations of United States trade and customs laws.&rdquo;</em></div> <div> &nbsp;</div> <div> These Executive Orders are of significant consequence because federal law prohibits any person or company from receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of imported merchandise knowing the merchandise to have been imported into the United States contrary to law. As we have been predicting -- and borrowing from other areas of law enforcement success, such as the enforcement of the Foreign Corrupt Practices Act (FCPA) -- we believe these Executive Orders will lead to increased criminal and other enforcement actions involving trade, customs, antidumping duties, and countervailing duties practices.</div> <div> &nbsp;</div> <div> On March 31, 2017, President Trump issued two Executive Orders in furtherance of his campaign promises to combat unfair trade practices that contribute to the United States&rsquo; trade deficit and &ldquo;expose United States employers to unfair competition and deprive the Federal Government of lawful revenue.&rdquo; Among the Executives Orders&rsquo; clear announcements is this: Federal prosecutors and other law enforcement partners must &ldquo;vigorously enforce[e] our Nation&rsquo;s trade laws.&rdquo;</div> <div> &nbsp;</div> <div> In this regard: The first Executive Order focuses on studying and better understanding the scope and magnitude of the problem; among other actions, it directs the Secretary of Commerce and the U.S. Trade Representative to submit a report to the President on the foreign trading partners with which the United States has a significant trade deficit. In particular, the report is to &ldquo;address the major causes of the trade deficit, including, as applicable, differential tariffs, non-tariff barriers, injurious dumping, injurious government subsidization, intellectual property theft, forced technology transfer, denial of worker rights and labor standards, and any other form of discrimination against the commerce of the United States or other factors contributing to the deficit.&rdquo;</div> <div> &nbsp;</div> <div> The second Executive Order announces a law enforcement policy shift: &ldquo;The Attorney General, in consultation with the Secretary of Homeland Security, shall develop recommended prosecution practices and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecuting significant offenses related to violations of trade laws.&rdquo; Similarly, the Executive Order directs the Department of Justice&rsquo;s law enforcement partners, Homeland Security Investigations and Customs and Border Protection, to &ldquo;develop and implement a strategy and plan for combating violations of United States trade and customs laws for goods and for enabling interdiction and disposal, including through methods other than seizure, of inadmissible merchandise entering through any mode of transportation[.]&rdquo;</div> <div> &nbsp;</div> <div> In announcing this new law enforcement priority, the Executive Order singles out the assessment and collection of antidumping and countervailing duties as areas especially prone to fraud and abuse. Antidumping duties are owed when a foreign manufacturer sells goods in the United States at less than fair value, causing injury to the domestic industry for those goods. Countervailing duties occur when a foreign government provides assistance and subsidies, such as tax breaks, to manufacturers that export goods to the United States, enabling the manufacturers to sell the goods cheaper than domestic manufacturers. The Order notes the past difficulties the United States has had in collecting these duties, especially where companies lack assets in the United States. To improve the United States government&rsquo;s collection of antidumping and countervailing duties, the Executive Order directs the Secretary of Homeland Security and others to develop a system whereby certain importers would be required to post a bond as security for any potential duties before being allowed to</div> <div> import to the United States.</div> <div> &nbsp;</div> <div> From an enforcement standpoint, the implications of the President&rsquo;s Executive Orders are far-reaching and extend well beyond abuses in antidumping and countervailing duties. This is because federal law criminalizes both:</div> <div> &nbsp;</div> <ul> <li> the fraudulent and knowing importation of merchandise <em><strong>&ldquo;contrary to law&rdquo; and</strong></em></li> <li> the <em><strong>receipt, concealment, purchase, or sale</strong></em> (or any action that &ldquo;in any manner facilitate[s] the transportation, concealment or sale&rdquo;) of any imported merchandise knowing the merchandise entered the United States <em><strong>&ldquo;contrary to law.&rdquo;</strong></em></li> </ul> <div> &nbsp;</div> <div> That means that federal prosecutors not only can prosecute those involved in abuses involving the importation of goods into the United States, but anyone in the supply chain who receives, conceals, buys, sells, or transports those goods after importation. And, the government&rsquo;s ability to investigate and prosecute individuals and companies is not just limited to violations involving tariffs and duties, but extends to a wide spectrum of violations involving imported merchandise, including: intellectual property theft; counterfeiting activities; violations involving country-of-origin markings, product substitutions, and product labeling requirements; food fraud; and forced, child, or abusive overseas labor practices, among others.</div> <div> &nbsp;</div> <div> Click on the links below to read the full text of these Orders.</div> <div> &nbsp;</div> <div> <div> <a href="https://www.whitehouse.gov/the-press-office/2017/03/31/presidential-executive-order-establishing-enhanced-collection-and">Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Law</a></div> <div> &nbsp;</div> <div> <a href="https://www.whitehouse.gov/the-press-office/2017/03/31/presidential-executive-order-regarding-omnibus-report-significant-trade">Omnibus Report on Significant Trade Deficits</a></div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80//publications/OMM040717-EB Exempt Stock Compensation Limits May Increase http://www.seyfarth.com:80//publications/OMM040717-EB Fri, 07 Apr 2017 00:00:00 -0400 <div> On April 4, 2017, the House of Representatives passed H.R. 1343, entitled the Encouraging Employee Ownership Act of 2017, increasing the number of shares that can be granted as compensation by an issuer to its employees without registration. &nbsp;</div> <div> &nbsp;</div> <div> For background, Rule 701 under the Securities Act of 1933 currently provides a mechanism for non-public companies to offer and sell their securities for the purpose of providing compensation to their own employees without the need to register those securities. The idea behind the Rule was to help small start-up companies avoid complex reporting and disclosure requirements to register their securities when their only sales were to their own employees. As a result, &nbsp;Rule 701 arrangements are thought of as compensatory plans, and a copy of the plan must be delivered to each employee investor. &nbsp;There are limits on how much may be sold in any 12-month period, but if the company believes sales under the plan will exceed $5,000,000 in a coming 12-month period, the company must disclose risk factors and certain financial statements to the employee investors.</div> <div> &nbsp;</div> <div> The new legislation would double the $5,000,000 figure to $10,000,000 before a company would have to reveal financial information. Those in favor of the bill point out that the limit has not been adjusted since 1999, and the new limit would be indexed for changes in the Consumer Price Index. They also argue that the increased limit will help small companies recruit talent by being able to offer increased equity stakes. Those against the bill believe it would limit transparency and companies who wish to compensate their employees with large amounts of equity should have to disclose the risks of that equity.&nbsp;</div> <div> &nbsp;</div> <div> The Senate will now take up the matter where an identical bill (S. 488) awaits their review.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/MA040717-LE H-1B Quota Reached http://www.seyfarth.com:80//publications/MA040717-LE Fri, 07 Apr 2017 00:00:00 -0400 <p> <strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">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" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer;">&nbsp;sign up</a>&nbsp;for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">Seyfarth Synopsis:&nbsp;</strong>USCIS announced today that it has reached the FY 2018 H-1B Cap.</em></p> <p> On April 7, 2017, United States Citizenship &amp; Immigration Services (USCIS) announced that it received sufficient H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &quot;caps&quot;) for Fiscal Year 2018, which begins on October 1, 2017. This means that USCIS received more than 85,000 H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s H-1B cap. USCIS will use a computer-generated random selection process for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings will be adjudicated.<br /> <br /> USCIS will apply the lottery process first to cases subject to the H-1B Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees. Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery will be eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa. It is anticipated that USCIS will begin to issue receipt notices in May.</p> <p> For additional background information on the H-1B visa program and the cap, please see our previous Client Alert titled, <a href="http://www.seyfarth.com/publications/MA011717-LE">&ldquo;H-1B Work Permit Filings: Will You Beat the Cap?&rdquo;</a></p> http://www.seyfarth.com:80//publications/grossenbacher-authored-article-Law360-040717 Karla Grossenbacher authored an article in <i>Law360</i> http://www.seyfarth.com:80//publications/grossenbacher-authored-article-Law360-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Karla Grossenbacher authored &quot;Employer Risks When Workplace Communications Go Offline,&quot; an article on April 7 in <em>Law360 </em>on how employers, who allow employees to text in the workplace, will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails.</p> http://www.seyfarth.com:80//news/hendrickson-quoted-new-york-law-journal-0407117 Christine Hendrickson quoted by the <i>New York Law Journal</i> http://www.seyfarth.com:80//news/hendrickson-quoted-new-york-law-journal-0407117 Fri, 07 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Employment Law Experts Question Bill Banning Salary History Questions for Job Applicants,&quot; an April 7 story by the <em>New York Law Journal</em> on whether a New York City bill banning the city&#39;s private employers from asking job applicants about their salary histories would narrow the wage gap among male and female workers and those of different races, as hoped for by the bill&#39;s proponents. Hendrickson said that the New York City bill is a policy solution that looks a lot better on paper than it will be in practice.</p> http://www.seyfarth.com:80//news/seyfarth-middle-market-mergers-and-acquistions-surveybook-featured-in-deal-lawyers-040717 Seyfarth’s Middle-Market M&A SurveyBook featured in <i>Deal Lawyers</i> http://www.seyfarth.com:80//news/seyfarth-middle-market-mergers-and-acquistions-surveybook-featured-in-deal-lawyers-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Middle-Market M&amp;A SurveyBook was featured in &quot;Survey: Middle-Market Private Deal Terms,&quot; an April 7 story from <em>Deal Lawyers.</em> 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 2015.</p> <p> <a href="https://www.deallawyers.com/blog/2017/04/survey-middle-market-private-deal-terms.html">You can view the full article here</a>.</p> http://www.seyfarth.com:80//news/clark-and-simonsen-quoted-material-handling-and-logistics-040717 Brent Clark and Craig Simonsen quoted in <i>Material Handling & Logistics</i> http://www.seyfarth.com:80//news/clark-and-simonsen-quoted-material-handling-and-logistics-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Brent Clark and Craig Simonsen were quoted in &quot;Republican Regulatory Reform Agenda Advances Under the Radar,&quot; an April 7 story by <em>Material Handling &amp; Logistics</em> on how the agency recently sought to publicize a renewed safety campaign encouraging employer emulation of best practices and adoption of a systemic approach to promoting health and safety. Clark and Simonsen noted that whether this news release and these associated webpages signal a change in the overall approach OSHA will take under President Trump&rsquo;s new Administration is yet to be seen, but this is not the tone we have seen from OSHA in the last several years.</p> <p> <a href="http://mhlnews.com/transportation-distribution/republican-regulatory-reform-agenda-advances-under-radar">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-in-hr-dive-040617 Gerald Maatman quoted in <i>HR Dive</i> http://www.seyfarth.com:80//news/maatman-quoted-in-hr-dive-040617 Thu, 06 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court gives district courts more control over EEOC subpoenas,&quot; an April 6 story from <em>HR Dive</em> on the U.S. Supreme Court concluding that appeals courts should take their cue from district court rulings on whether to uphold Equal Employment Opportunity Commission (EEOC) subpoenas. Maatman said that a district court&rsquo;s decision to uphold or deny an EEOC subpoena will be more difficult to overturn on appeal.</p> <p> <a href="http://www.hrdive.com/news/supreme-court-gives-district-courts-more-control-over-eeoc-subpoenas/439874/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WSE040617 Judge Continues Case Challenging OSHA Electronic Record-Keeping Rule – Employers Must Comply With July 1 Electronic Reporting Deadline http://www.seyfarth.com:80//publications/WSE040617 Thu, 06 Apr 2017 00:00:00 -0400 <p> A Texas federal court won&rsquo;t decide the legality of OSHA&rsquo;s rule regarding the &ldquo;Tracking of Workplace Injuries and Illnesses&rdquo; until after the July 1, 2017 deadline for employers to comply with the rule.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/judge-continues-case-challenging-osha-electronic-record-keeping-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=cb6de5a3c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-cb6de5a3c2-71407177">click here</a></p> http://www.seyfarth.com:80//publications/EL040617 Illinois Catches The Paid Sick Leave Bill Bug http://www.seyfarth.com:80//publications/EL040617 Thu, 06 Apr 2017 00:00:00 -0400 <div> The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.</div> <div> &nbsp;</div> <div> Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/illinois-catches-the-paid-sick-leave-bill-bug/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=a9cb68119e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-a9cb68119e-71256185">click here</a></div> http://www.seyfarth.com:80//publications/OMM040617-LE2 The Trend Continues: NYC Passes Salary History Ban http://www.seyfarth.com:80//publications/OMM040617-LE2 Thu, 06 Apr 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> &nbsp;The New York City Council passed a law that prohibits employers with New York operations from inquiring or relying on a job applicant&rsquo;s wage or salary history.&nbsp;</em></div> <div> &nbsp;</div> <div> In a move anticipated for <a href="http://www.seyfarth.com/publications/OMM081816-LE">months</a>, and a day after Equal Pay Day, the New York City Council approved a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process. &nbsp;</div> <div> &nbsp;</div> <div> The bill was first introduced on August 16, 2016, in an attempt to prohibit employers from inquiring about a prospective employee&rsquo;s salary history on a job application. The proposed bill closely followed a provision from Massachusetts&rsquo; amendments to its <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Equal Pay Act</a> (and similar provisions in <a href="http://www.seyfarth.com/publications/OMM011217-LE">Philadelphia</a>), which prohibit employers operating in those states from requesting the compensation history of prospective employees, unless the prospective employee has &ldquo;voluntarily&rdquo; disclosed such information.&nbsp;</div> <div> &nbsp;</div> <div> On Wednesday, April 5, 2017, after months of debate and public comment, the New York City Council approved the passage of the bill. &nbsp;The bill formally amends the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York, which prohibits discrimination in New York City. &nbsp;1253-A now makes it a discriminatory employment practice for an employer to:</div> <div> &nbsp;</div> <div> (1) inquire about the salary history of an applicant for employment, which includes either asking the applicant directly about his or her salary history or conducting a search of publicly available records or reports; or&nbsp;</div> <div> &nbsp;</div> <div> (2) rely on the salary history of an applicant in determining that applicant&rsquo;s salary at any stage in the employment process, unless the applicant &ldquo;unprompted&rdquo; and &ldquo;willingly&rdquo; discloses his or her prior salary information.</div> <div> The law applies to all employers, both public and private. &nbsp;It is slated to go into effect 180 days after it is signed. We expect that it will be signed by Mayor de Blasio without delay, which would put the implementation in October 2017.</div> <div> &nbsp;</div> <div> Proponents of the law champion it as a way to eliminate the &ldquo;pay gap,&rdquo; arguing that an employer&rsquo;s use of an applicant&rsquo;s previous salary history could lead to gender-based wage discrimination under the theory that applicants would be paid based on their past earnings, rather than what they would be offered if judged on a blank slate. &nbsp;Many others criticize the bill because they believe that it will not eliminate any wage gap but will instead create greater reliance on salary negotiation.</div> <div> &nbsp;</div> <div> The New York City Commission on Human Rights, the agency charged with ferreting out discrimination in the five boroughs, will be enforcing the new law. &nbsp;The commission will impose a civil penalty of up to $125,000 for an unintentional violation, and up to $250,000 for an &ldquo;intentional malicious violation.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Introduction 1253-A also comes off the heels of two other significant pieces of New York legislation. &nbsp;On November 4, 2016 Mayor Bill de Blasio signed Executive Order 21 that bans questions regarding an applicant&rsquo;s salary history prior to conditional employment. &nbsp;Importantly, this only applied to public-sector applicants. &nbsp;Introduction 1253-A therefore closes the gap. &nbsp;On January 9, 2017, Governor Andrew Cuomo approved Executive Order 161, also in an effort to ensure pay equity by State employers. &nbsp;The Order prohibits State entities from asking or mandating an applicant to &ldquo;provide his or her current compensation, or any prior compensation history,&rdquo; before offering a conditional offer of employment with compensation. &nbsp;The concern is that, due to the identifiable wage gap between men and women, asking about previous salary history sets a unconscious line in the sand as a starting place for candidates, thus perpetuating the discrimination. &nbsp;</div> <div> &nbsp;</div> <div> This development certainly follows the trend of the pay-equity movement taking place in cities and states nationwide. &nbsp; In light of the City&rsquo;s new focus on prior salary history information, employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices. &nbsp;We are tracking these efforts in the 50-State Desktop Pay Equity Reference, which was <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">released</a> earlier this week.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/OMM040617-LE UPDATE: D.C. Fair Credit in Employment Amendment Act Prohibits Inquiry Into Prospective and Current Employees’ Credit Information http://www.seyfarth.com:80//publications/OMM040617-LE Thu, 06 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong>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;</em></p> <p> <strong>Update:&nbsp;</strong><em>The law became effective on March 17, 2017.</em></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 <a href="http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=6429177">A21-0673</a>), &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> <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;&nbsp;</li> <li> The&nbsp;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&nbsp;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> <o:p>For&nbsp;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;</o:p></li> <li> For&nbsp;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.&nbsp;&nbsp;</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> http://www.seyfarth.com:80//publications/OMM040617-EB DOL Fiduciary Rule Officially Delayed http://www.seyfarth.com:80//publications/OMM040617-EB Thu, 06 Apr 2017 00:00:00 -0400 <div> On April 4, 2017, the Department of Labor (&ldquo;DOL&rdquo;) issued a final rule extending by 60 days the applicability date of the final &ldquo;fiduciary&rdquo; regulation published a year ago (known colloquially as the &ldquo;Fiduciary Rule&rdquo;). Originally, the effective date for the Fiduciary Rule was April 10, 2017, and now the revised effective date is June 9, 2017.</div> <div> &nbsp;</div> <div> The Fiduciary Rule defines who is a fiduciary under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;) by reason of providing investment advice to ERISA plans. The new fiduciary definition also impacts IRAs because this definition would govern for purposes of determining whether a transaction involving an IRA violates the &nbsp;prohibited transaction rules &nbsp;under the Internal Revenue Code of 1986, as amended. <a href="http://www.seyfarth.com/publications/MA041816-EB">Click here</a> for our prior alert discussing the Fiduciary Rule.</div> <div> &nbsp;</div> <div> The DOL also extended the applicability date for the Best Interest Contract Exemption, the Principal Contract Exemption, and the other revised exemptions that are companion parts to the Fiduciary Rule by 60 days. Further, the DOL requires fiduciaries relying on the new and revised exemptions to comply only with the impartial conduct standards in the exemptions during a transition period from June 9, 2017, through January 1, 2018. Fiduciaries are not required to comply with the remaining conditions of these exemptions (i.e., written disclosures and representations) until January 1, 2018. &nbsp;</div> <div> &nbsp;</div> <div> This extension is a response to a memorandum from President Trump to the DOL directing an examination of the Fiduciary Rule to determine whether it may adversely bear on Americans&rsquo; ability to obtain retirement information and financial advice. &nbsp;In response to the directive, the DOL proposed a 60-days extension of the applicability of the Fiduciary Rule and related prohibited transaction exemptions on March 2, 2017. The DOL received approximately 193,000 comments on this proposed delay. According to the DOL, 178,000 commenters opposed any delay, but the DOL chose to delay the effective date anyway.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/TBT04052017 More Green on the Horizon for Illinois MMJ Businesses and Lawmakers http://www.seyfarth.com:80//publications/TBT04052017 Wed, 05 Apr 2017 00:00:00 -0400 <p> A federal judge from the U.S. Northern District of Illinois recently ruled that an Illinois state law banning (i) medical cannabis cultivation centers and dispensaries from making campaign contributions to any political committee established to promote a candidate for public office, and (ii) candidates and political committees from receiving such contributions, violated the First Amendment of the U.S. Constitution.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/04/more-green-on-the-horizon-for-illinois-mmj-businesses-and-lawmakers/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=bbb77807c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-bbb77807c2-71540589">click here&nbsp;</a></p> http://www.seyfarth.com:80//publications/MA040517-LE Seventh Circuit Finds Discrimination on the Basis of Sexual Orientation Prohibited by the Civil Rights Act http://www.seyfarth.com:80//publications/MA040517-LE Wed, 05 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Seventh Circuit becomes the first appellate court to hold that discrimination on the basis of sexual orientation is prohibited as sex discrimination under Title VII.&nbsp; The decision establishes a circuit split that may ultimately lead to Supreme Court review.</em></p> <p> On Tuesday, April 4, 2017, in a landmark <em>en banc </em>decision, the Seventh Circuit became the first appellate court to decide that discrimination on the basis of sexual orientation is a form of sex discrimination, forbidden by Title VII of the Civil Rights Act of 1964.</p> <p> <strong>Background</strong></p> <p> In reaching this seminal decision, the court reversed the district court&rsquo;s decision dismissing Kimberly Hively&rsquo;s suit against her former employer, Ivy Tech Community College.&nbsp; Hively was an adjunct professor and openly lesbian.&nbsp; She applied for six full-time positions over the course of five years, and was passed over each time.&nbsp; In July 2014, her part-time adjunct contract was not renewed.&nbsp; She filed a charge with the EEOC claiming she was discriminated against because of her sexual orientation, and received a right-to-sue letter.</p> <p> <strong>Litigation History</strong></p> <p> Hively proceeded <em>pro se</em> in the Northern District of Indiana.&nbsp; Ivy Tech brought a motion to dismiss, claiming that sexual orientation is not a protected class under Title VII or section 1981.&nbsp; The district court agreed, holding that under Seventh Circuit precedent, <em>Hamner v. St. Vincent Hosp. and Health Care Center, Inc.</em>, 224 F.3d 701, 704 (7th Cir. 2000), Title VII did not prohibit discrimination based on &ldquo;one&rsquo;s sexuality or sexual orientation.&rdquo;&nbsp; The court granted the motion to dismiss without leave to amend.</p> <p> Hively appealed, represented by the Lambda Legal Defense &amp; Education Fund.&nbsp; In July 2016, a panel of the Seventh Circuit affirmed, but suggested that the issue was more complicated than simply following precedent.&nbsp; The court ultimately relied on <em>Hamner</em> and other similar authority, but also examined the EEOC&rsquo;s 2015 decision in <em>Baldwin v. Foxx</em>, EEOC Appeal No. 0120133080, in which the EEOC determined that &ldquo;sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee&rsquo;s sex.&rdquo;&nbsp; The panel expressly noted the difficulty in separating discrimination on the basis of gender norms, which was already illegal under Title VII, versus discrimination based on sexual orientation, which was not.&nbsp; The panel also noted how recent Supreme Court decisions created the paradoxical situation where an LGB person could be legally married to a person of the same sex, but could also be legally fired for getting married.&nbsp; Nonetheless, the panel found that it was ultimately bound by previous precedent, and declined to find that Title VII prohibited discrimination based on sexual orientation.</p> <p> <strong>The <em>En Banc</em> Decision</strong></p> <p> In seeking <em>en banc </em>review, Hively asked the Seventh Circuit to revisit its precedent, in light of the EEOC&rsquo;s decision in <em>Baldwin</em>, as well as the dramatic change in Supreme Court jurisprudence regarding the treatment of LGB people, as manifested in the marriage equality decisions.&nbsp;</p> <p> The Seventh Circuit, in an opinion by Chief Judge Wood, largely adopted the EEOC&rsquo;s rationale&nbsp; presented in <em>Baldwin</em>.&nbsp; The court found that sexual orientation discrimination was a form of sex stereotyping and thus barred under Title VII.&nbsp; To reach this conclusion, the court applied the &ldquo;comparative method&rdquo; approach.&nbsp; The court examined the counterfactual &ldquo;situation in which Hively is a man, but everything else stays the same:&nbsp; in particular, the sex or gender of the partner.&rdquo;&nbsp; The court found that Hively&rsquo;s non-conformity to the female stereotype &mdash; that she should have a male partner &mdash; was cognizable as sex discrimination under the gender non-conformity line of cases.</p> <p> The court also adopted Hively&rsquo;s theory that discrimination based on sexual orientation is sex discrimination under the associational theory.&nbsp; The court examined the application of this line of cases, beginning with <em>Loving v. Virginia</em>, 388 U.S. 1 (1967), and found that the Civil Rights Act prohibits discrimination based on the sex of someone with whom a plaintiff associates. The court noted that it was inapposite that the <em>Loving </em>line of cases dealt with associational race discrimination, rather than sex discrimination.</p> <p> In reversing its previous precedent such as <em>Hamner</em>, the court noted both the Supreme Court&rsquo;s recent marriage equality decisions, as well as the EEOC&rsquo;s action in <em>Baldwin</em>, and stated that &ldquo;this court sits <em>en banc</em> to consider what the correct rule of law is now in light of the Supreme Court&rsquo;s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.&rdquo;</p> <p> The court was unpersuaded by the notion that Congress has not expressly added the phrase &ldquo;sexual orientation&rdquo; to the list of protected categories under the Civil Rights Act, while it has used the phrase in other legislation.&nbsp; Instead, the court noted that the &ldquo;goalposts&rdquo; of Title VII &ldquo;have been moving over the years,&rdquo; but the key concept &mdash; &ldquo;no <em>sex</em> discrimination&rdquo; &mdash; remains.</p> <p> The Court declined to decide whether there would be an exemption if Ivy Tech were a religious employer, and whether the meaning of discrimination in the context of the provision of social or public services might be the same.</p> <p> <strong>A Path To The Supreme Court?</strong></p> <p> The Seventh Circuit is now at odds with the Eleventh Circuit&rsquo;s recent decision in <em>Evans v. Georgia Regional Hospital</em>, which held that Title VII does not cover discrimination based on sexual orientation.&nbsp; The Second Circuit also recently declined to interpret Title VII as covering sexual orientation discrimination, but left open the possibility that certain allegations regarding gender stereotyping related to sexual orientation may state a claim.&nbsp;</p> <p> Although a circuit split is thus emerging, it appears that Ivy Tech is not planning to seek certiorari. It is thus unlikely that this case will be the vehicle for Supreme Court to resolve the circuit split. However, it is possible that a petition for certiorari will be filed in <em>Evans</em>. If such a petition is filed it is likely to stress the circuit split that has emerged with <em>Hively.</em></p> <p> <strong>Key Takeaways</strong></p> <p> In light of <em>Hivley</em>, discrimination based on sexual orientation is now prohibited under Title VII in the Seventh Circuit.&nbsp; However, the issue remains in flux in the rest of the country.</p> <p> Absent Supreme Court review or legislative action by Congress, it is likely that the law will remain unsettled.&nbsp; Employers should consult with counsel to evaluate their internal policies, practices, and procedures with an eye toward sexual orientation claims.</p> http://www.seyfarth.com:80//publications/CDL040517 The Sedona Conference WG6 Issues “Transitional” International Litigation Principles http://www.seyfarth.com:80//publications/CDL040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> n January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated <em>International Litigation Principles on Discovery, Disclosure &amp; Data Protection in Civil Litigation (Transitional Edition).</em> This publication updates the 2011 &nbsp;International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor. &nbsp;It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018. &nbsp;Many of these developments are consistent with the focus on &ldquo;proportionality&rdquo; of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/sedona-conference-wg6-issues-transitional-international-litigation-principles/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=315b761aab-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-315b761aab-72857025">click here</a></p> http://www.seyfarth.com:80//publications/TS040517 $1.2 Million Dispute Between West Mountain Environmental and the Shanghai Hehui Environmental Technology http://www.seyfarth.com:80//publications/TS040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> An environmental remediation technologies company is in the midst of litigation in Chinese courts over a $1.2 million contract to provide its technology to a Chinese company. According to the Chinese entity, the technology provider failed to deliver the unit in a &ldquo;timeframe that was agreed.&rdquo;</p> <p> To read the entire log post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/1-2-million-dispute-between-west-mountain-environmental-and-the-shanghai-hehui-environmental-technology/">click here</a></p> http://www.seyfarth.com:80//news/maatman-quoted-employment-law-daily-040517 Gerald Maatman quoted in <i>Employment Law Daily</i> http://www.seyfarth.com:80//news/maatman-quoted-employment-law-daily-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Appellate review of EEOC subpoena must be for abuse of discretion, not de novo,&quot; an April 5 story from <em>Employment Law Daily</em> on the Supreme Court ruling that a district court&rsquo;s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. Maatman said that the Supreme Court&rsquo;s adoption of the abuse of discretion standard has real-world, practical implications for employers facing administrative investigations.</p> <p> <a href="http://www.employmentlawdaily.com/index.php/news/appellate-review-of-eeoc-subpoena-must-be-for-abuse-of-discretion-not-de-novo/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-040517 Gerald Maatman quoted in <i>SHRM</i> http://www.seyfarth.com:80//news/maatman-quoted-SHRM-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court Bolsters District Court Determinations on EEOC Subpoenas,&quot; an April 5 story from <em>SHRM </em>on the Supreme Court ruling that said appeals courts ordinarily should defer to district court rulings on whether the agency&#39;s subpoenas are irrelevant or too burdensome. Maatman said that a district court&#39;s ruling for or against an employer challenging an EEOC subpoena will be more difficult to overturn on an appeal under the new standard.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/supreme-court-eeoc-subpoenas.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/seyfarth-middle-market-mergers-and-acquistions-surveybook-private-company-director-040517 Seyfarth’s Middle-Market M&A SurveyBook featured in <i>Private Company Director</i> http://www.seyfarth.com:80//news/seyfarth-middle-market-mergers-and-acquistions-surveybook-private-company-director-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Middle-Market M&amp;A SurveyBook was featured in &quot;Mid-Market M&amp;As: Still a Seller&rsquo;s Market,&quot; an April 5 story from <em>Private Company Director</em>. The SurveyBook said that while the current private company mergers and acquisitions environment is competitive among buyers and 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.</p> <p> <a href="http://Seyfarth’s Middle-Market M&amp;A SurveyBook was featured in &quot;Mid-Market M&amp;As: Still a Seller’s Market,&quot; an April 5 story from Private Company Director. The SurveyBook said that while the current private company mergers and acquisitions environment is competitive among buyers and 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. You can view the full article here:">You can view the full article here</a>.</p> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-business-insurance-040517 Sam Schwartz-Fenwick quoted by <i>Business Insurance</i> http://www.seyfarth.com:80//news/schwartz-fenwick-quoted-business-insurance-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Sexual orientation deserves Title VII protections: 7th Circuit,&quot; an April 5 story by <em>Business Insurance</em> on a ground-breaking ruling, where an en banc 7th U.S. Circuit Court of Appeals in Chicago held that sexual orientation is protected under Title VII of the Civil Rights Act of 1964. Schwartz-Fenwick said that employers in the 7th Circuit should look at their nondiscrimination policies in light of this ruling.</p> <p> <a href="http://www.businessinsurance.com/article/20170405/NEWS06/912312784/Sexual-orientation-deserves-Title-VII-protections-7th-Circuit-Appeals-Court-rule">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/dygert-mentioned-in-politico-040517 Diane Dygert mentioned in <i>Politico</i> http://www.seyfarth.com:80//news/dygert-mentioned-in-politico-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Diane Dygert was mentioned in &quot;Illinois Playbook,&quot; an April 5 story by <em>Politico </em>on the must-read rundown of political news in the Land of Lincoln. Dygert participated in a CEO Roundtable-Chicago panel discussing the First 100 Days of the Trump presidency.</p> <p> <a href="http://www.politico.com/tipsheets/illinois-playbook/2017/04/politico-illinois-playbook-gop-flirts-with-rauner-primary-rahms-first-in-the-nation-school-mandate-pawars-new-video-219595">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WH040417 New York Court Delivers Denial Of Certification In Papa John’s Drivers’ Class Action http://www.seyfarth.com:80//publications/WH040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> In 2016, approximately 80% of conditional certification motions were granted in the Second Circuit. Plaintiffs undoubtedly have a low bar to hurdle to obtain conditional certification under section 16(b) of the FLSA. &nbsp;It is a hurdle nonetheless, and some courts have shown a willingness to look closely at plaintiffs&rsquo; proffered evidence to ensure that a factual nexus exists that binds together the members of a putative collective action. &nbsp;In<em> Durling, et al. v. Papa John&rsquo;s International, Inc.,</em> Judge Cathy Seibel of the U.S. District Court for the Southern District of New York rejected Plaintiffs&rsquo; motion for conditional certification of a nationwide collective action that would have included drivers employed at corporate-owned stores and stores operated by franchisees. &nbsp;The Court concluded that Plaintiffs&rsquo; evidence did not support a finding that the named plaintiffs were similarly situated to thousands of drivers employed by hundreds of different employers.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/joint-employment/denial-of-certification-in-drivers-class-action/">click here</a></p> http://www.seyfarth.com:80//publications/CP040417 FEHC Discusses Regs On Transgender Identity and National Origin Discrimination http://www.seyfarth.com:80//publications/CP040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> On March 30, 2017, the California Fair Employment and Housing Council (&ldquo;FEHC&rdquo;) considered proposed regulations on transgender employees. The FEHC also discussed draft regulations on national origin discrimination in the workplace.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/04/fehc-discusses-regs-on-transgender-identity-and-national-origin-discrimination/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=7696cab3e5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-7696cab3e5-71410869">click here</a></p> http://www.seyfarth.com:80//publications/LR040417 NLRB Finds That Fast-Food Company Must Allow Employees To Wear “Fight For $15” Buttons http://www.seyfarth.com:80//publications/LR040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> NLRB rules that fast-food company violated the National Labor Relations Act by maintaining a rule prohibiting employees from wearing unauthorized buttons or insignia and by instructing an employee to remove his &ldquo;Fight For $15&rdquo; button.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/04/04/nlrb-finds-that-fast-food-company-must-allow-employees-to-wear-fight-for-15-buttons/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4db9d94115-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4db9d94115-71423401">click here</a></p> http://www.seyfarth.com:80//publications/WC040417 U.S. Supreme Court Holds That An Abuse-Of-Discretion Standard Applies To Review Of EEOC Subpoenas http://www.seyfarth.com:80//publications/WC040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> This case arose out of a Title VII charge brought by a woman who worked as a &ldquo;cigarette selector,&rdquo; a physically demanding job, requiring employees to lift, pack, and move large bins of products. After the charging party returned from three months of maternity leave, she was required to undergo a physical capabilities evaluation that was required for all new employees and employees returning from leave or otherwise away from the physically demanding aspects of their job for more than 30 days, regardless of reason. The charging party was allowed three times to meet the level required for her position, but failed each time. &nbsp;McLane then terminated her employment.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/u-s-supreme-court-holds-that-an-abuse-of-discretion-standard-applies-to-review-of-eeoc-subpoenas/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=0ea8aa54dc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-0ea8aa54dc-73050581">click here</a></p> http://www.seyfarth.com:80//publications/RD040417-LIT Supreme Court Says Credit Card Surcharge Ban Regulates Free Speech http://www.seyfarth.com:80//publications/RD040417-LIT Tue, 04 Apr 2017 00:00:00 -0400 <div> The Supreme Court in <em>Expressions Hair Design et al. v. Schneiderman</em> held that New York&rsquo;s law prohibiting credit card surcharging (General Business Law &sect;5 18) regulates speech, and on Wednesday asked the Second Circuit to determine whether a New York law limiting retailers ability to post their credit card transaction pricing scheme survives First Amendment scrutiny. The Court limited its review of New York General Business Law &sect;518&rsquo;s constitutionality under the First Amendment to the specific situation of dual pricing asserted by petitioner merchants. In the end, the Court unanimously decided the preliminary issue that &sect;518 regulates speech rather than conduct and kicked the constitutionality determination back to the Second Circuit.&nbsp;</div> <div> &nbsp;</div> <div> Section 518 provides that &ldquo;[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.&rdquo; The Second Circuit decided that &sect;518 regulated the conduct of imposing a surcharge and not speech. Under that analysis, the Second Circuit did not reach the First Amendment speech question.</div> <div> &nbsp;</div> <div> In reversing the Second Circuit, the Supreme Court found that &sect;518 blocked petitioner merchants from posting that they add a surcharge to customers who pay with credit cards, but did not block the merchants from posting the credit card price as the sticker price and giving a &lsquo;discount&rsquo; to those who pay with cash. Based on those findings, the Court reasoned that &sect;518 does not regulate conduct - &ldquo;the amount that a store could collect&rdquo; - but instead regulates speech - &ldquo;how the sellers may communicate their prices.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> While the Court held that &sect;518 regulates speech it did not opine on the First Amendment question. Because the Second Circuit never reached the First Amendment question, the Supreme Court could not review a decision. Therefore, the Court kicked the First Amendment question to the Second Circuit consistent with the decision that &sect;518 regulates speech.</div> <div> &nbsp;</div> <div> As an as-applied challenge specific to whether the statute unconstitutionally limits merchants asserted practice, a ruling in favor of the merchants would not necessarily strike down the law but merely limit its scope, thereby carving out the merchant&rsquo;s asserted pricing model. It is unclear at this time what teeth &sect;518 would have with such a limitation or how an adverse ruling would affect its overall enforceability. &nbsp;</div> <div> &nbsp;</div> <div> Justice Sotomayor, in a concurring opinion, highlighted the ambiguity in the law and the Court&rsquo;s &ldquo;quarter-loaf outcome&rdquo; in the decision. She suggested that the Second Circuit request the New York state appeals court to certify the actual definition and scope of the &nbsp;law before coming to its decision. The ambiguity in the law which led to the quarter-loaf outcome could be removed with a clear understanding of the law which is left to the New York courts.</div> <div> &nbsp;</div> <div> In addition to New York, California, Colorado, Connecticut, Florida, Kansas, Massachusetts, Maine, Oklahoma and Texas also prohibit credit card surcharging. &nbsp;While the Supreme Court&rsquo;s decision in <em>Expressions Hair Design</em> does not directly impact the &ldquo;no-surcharge&rdquo; laws in those states, the ruling provides additional support to merchants and retailers seeking to invalidate those laws.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/EL040417 Equal Pay Day 2017: Introducing Seyfarth’s 50-State Pay Equity Desktop Reference http://www.seyfarth.com:80//publications/EL040417 Tue, 04 Apr 2017 00:00:00 -0400 <div> Today, April 4th, is Equal Pay Day. &nbsp;In commemoration, Seyfarth&rsquo;s Pay Equity Group &nbsp;is introducing a 50-State Pay Equity Desktop Reference.</div> <div> &nbsp;</div> <div> Pay equity may be on the minds and lips of your employees today, as today is Equal Pay Day.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">click here</a></div> http://www.seyfarth.com:80//publications/LR040317 NLRB Restrictions on Employer Requests of Confidentiality in Workplace Investigations Remain After D.C. Circuit Decision http://www.seyfarth.com:80//publications/LR040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> The Court of Appeals for the D.C. Circuit affirmed in part and rejected in part the National Labor Relations Board&rsquo;s Banner Estrella decision regarding an employer&rsquo;s requirement of confidentiality during workplace investigations. In doing so, the Court did not address, and essentially left intact, both the Board&rsquo;s prohibition of blanket confidentiality instructions, and its requirement that employers determine the need for confidentiality on a case-by-case basis.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/04/03/nlrb-restrictions-on-employer-requests-of-confidentiality-in-workplace-investigations-remain-after-d-c-circuit-decision/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=cc030e7959-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-cc030e7959-71423401">click here</a></p> http://www.seyfarth.com:80//news/seyfarth-moves-to-willis-tower Seyfarth Moves to Willis Tower http://www.seyfarth.com:80//news/seyfarth-moves-to-willis-tower Mon, 03 Apr 2017 00:00:00 -0400 <div> <em>Firm Embraces &lsquo;Future of Work&rsquo; with Collaborative, Innovative Design</em></div> <div> &nbsp;</div> <div> CHICAGO (April 3, 2017) &ndash; Seyfarth Shaw LLP announced today that the firm has completed its move to the iconic Willis Tower, relocating from the Citadel Center located at 131 S. Dearborn.&nbsp;</div> <div> &nbsp;</div> <div> Designed by Gensler, one of the world&rsquo;s premier architecture and design firms, the new space reflects Seyfarth&rsquo;s innovative and collaborative culture. Seyfarth now occupies floors 38 and 76 - 80 of Willis Tower, and the layout features collaboration and technology lounges, cutting-edge technology, first-class amenities and unrivaled 360-degree panoramic views of Chicago.</div> <div> &nbsp;</div> <div> &ldquo;We embraced the creativity, flexibility and mobility of our lawyers and professionals to design a space that matches our unique culture,&rdquo; said Amanda Sonneborn, Seyfarth&rsquo;s Chicago office co-managing partner. &ldquo;The re-imagined space represents not just the law firm of the future, but the future of work, and it&rsquo;s exciting to share it with our colleagues and clients.&rdquo;</div> <div> &nbsp;</div> <div> With no corner offices, the floorplan is specially designed to maximize Willis Tower&rsquo;s abundant natural light throughout all interior and exterior offices. All offices and workstations also feature standing desks and dual-monitors.&nbsp;</div> <div> &nbsp;</div> <div> Founded in Chicago in 1945, Seyfarth has grown into a global law firm with more than 900 lawyers across 14 offices, including over 200 lawyers in Chicago as the firm continues growing its presence locally.</div> <div> &nbsp;</div> <div> &ldquo;The firm is proud of its Midwest heritage, and we&rsquo;re excited to call Chicago&rsquo;s most recognizable landmark our home,&rdquo; said Cory Hirsch, co-managing partner of Seyfarth&rsquo;s Chicago office. &ldquo;The office has been carefully designed to meet the current and future needs of Seyfarth, while creating efficiencies in the way we work.&rdquo;</div> <div> &nbsp;</div> <div> &ldquo;As the firm&rsquo;s platform continues to grow and evolve, we are committed to transforming our real estate portfolio into a competitive advantage for the firm and our clients,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;Willis Tower represents our most ambitious effort yet, emphasizing technology and efficiency over square footage, and we&rsquo;re delighted with the result.&rdquo;</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/maatman-quoted-law360-040317 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80//news/maatman-quoted-law360-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Justices&#39; EEOC Subpoena Ruling Ups Ante At Trial Court,&quot; an April 3 story from <em>Law360 </em>on the U.S. Supreme Court&#39;s ruling that decisions to enforce or quash U.S. Equal Employment Opportunity Commission subpoenas can&#39;t be evaluated from square one on appeal. Maatman said that a district court&#39;s ruling, whether it be for or against an employer, will be decidedly more difficult to overturn on an appeal under the standard espoused by the high court in the ruling.</p> http://www.seyfarth.com:80//news/maatman-mentioned-business-insurance-040317 Gerald Maatman mentioned in <i>Business Insurance</i> http://www.seyfarth.com:80//news/maatman-mentioned-business-insurance-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court subpoena ruling favors EEOC,&quot; an April 3 story from <em>Business Insurance</em> on the U.S. Supreme Court ruling that said a federal appeals court should review a lower court&rsquo;s decision to enforce or quash a U.S. Equal Employment Opportunity Commission subpoena on the basis of abuse of discretion, rather than the &ldquo;more searching&rdquo; de novo form of review. Maatman said that the case law in most of the circuits gives the EEOC very wide latitude on the information it deems necessary to investigate EEOC charges, and this ruling makes it much harder for anyone who loses at the District Court level to have that ruling reversed.</p> <p> <a href="http://www.businessinsurance.com/article/20170403/NEWS06/912312733/Supreme-Court-subpoena-ruling-favors-EEOC-abuse-of-discretion-de-novo-review">You can view the full article here</a>.</p> http://www.seyfarth.com:80//news/rodriguez-interviewed-nation-restaurant-news-040317 Leon Rodriguez was interviewed by <i>Nation’s Restaurant News</i> http://www.seyfarth.com:80//news/rodriguez-interviewed-nation-restaurant-news-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was interviewed in &quot;Restaurants brace for more worksite raids,&quot; an April 3 story from <em>Nation&rsquo;s Restaurant News</em> on how the current political environment could affect immigration and what it means for restaurant operators. Rodriguez said that restaurant operators and their workers should be concerned.</p> <p> <a href="http://www.nrn.com/workforce/restaurants-brace-more-worksite-raids">You can view the full article here</a>.</p> http://www.seyfarth.com:80//news/rodriguez-quoted-daily-journal-040317 Leon Rodriguez quoted by the <i>Daily Journal</i> http://www.seyfarth.com:80//news/rodriguez-quoted-daily-journal-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Chief Justice gets US official reply,&quot; an April 3 story from the <em>Daily Journal</em> on how the U.S. Attorney General and DHS Secretary challenged a recent California courthouse &lsquo;stalking&rsquo; claim and said that federal immigration agents will continue to make arrests in state courts and other public places. Rodriguez said that DHS is following a 2011 memo that generally limits immigration law enforcement in so-called &ldquo;sensitive locations&rdquo; such as hospitals, schools, religious buildings, funerals and weddings.</p> http://www.seyfarth.com:80//news/bodansky-fanelli-haag-quoted-washington-lawyer-040117 Robert Bodansky, Dean Fanelli and Thomas Haag were quoted in <i>Washington Lawyer</i> http://www.seyfarth.com:80//news/bodansky-fanelli-haag-quoted-washington-lawyer-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Robert Bodansky, Dean Fanelli and Thomas Haag were quoted in &quot;In Mergers We Trust,&quot; an April 1 story from <em>Washington Lawyer</em> on how law firms consolidate to keep their edge. Seyfarth expanded its office in the nation&rsquo;s capital by picking up four partners at Fanelli Haas PLLC. The deal met clear client needs on both sides and created a growth path going forward that Seyfarth is building upon with yet more hires.</p> <p> <a href="http://washingtonlawyer.dcbar.org/april2017/index.php#/28">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/fanelli-and-haag-quoted-washington-lawyer-040117 Dean Fanelli and Thomas Haag were quoted in <i>Washington Lawyer</i> http://www.seyfarth.com:80//news/fanelli-and-haag-quoted-washington-lawyer-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Dean Fanelli and Thomas Haag were quoted in &quot;When Law Firms Combine,&quot; an April 1 story from <em>Washington Lawyer</em> offering their reflections on joining Seyfarth in October 2016.</p> <p> <a href="http://washingtonlawyer.dcbar.org/april2017/index.php#/36">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/rodriguez-quoted-report-on-patient-privacy-HHS-office-for-civil-rights-040117 Leon Rodriguez quoted by the <i>Report on Patient Privacy</i> about HHS Office for Civil Rights http://www.seyfarth.com:80//news/rodriguez-quoted-report-on-patient-privacy-HHS-office-for-civil-rights-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Enforcement, Audit Program to Move Ahead; Regs, Guidance to Undergo Priority-Setting,&quot; an April 1 story from the <em>Report on Patient Privacy</em> on how the HHS Office for Civil Rights has announced four enforcement actions against errant HIPAA covered entities that have brought in more than $12 million. Rodriguez said that the two most critical things are the number of settlements and the breadth of the basis for the enforcement action.</p> http://www.seyfarth.com:80//news/rodriguez-quoted-report-on-patient-privacy-OCR-director-040117 Leon Rodriguez quoted by the <i>Report on Patient Privacy</i> about OCR Director http://www.seyfarth.com:80//news/rodriguez-quoted-report-on-patient-privacy-OCR-director-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;New OCR Director Vows Focus on Patients As Well AS &lsquo;People&rsquo; at Regulated Entities,&quot; an April 1 story from the <em>Report on Patient Privacy</em> on how the new OCR Director pledged that he would do his best to further cause of civil rights and of health information privacy and security. Rodriguez stands out as the only OCR director who had some HIPAA experience prior to joining OCR.</p> http://www.seyfarth.com:80//news/whitman-quoted-best-review-040117 Robert Whitman quoted in <i>Best’s Review</i> http://www.seyfarth.com:80//news/whitman-quoted-best-review-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Robert Whitman was quoted in &quot;The Gig Is Not Up,&quot; an April 1 story from <em>Best&rsquo;s Review</em> on whether we need a new worker classification given the debate over whether workers are employees or independent contractors intensifies with the rise of the gig economy. Regarding benefits for reclassified employees, Whitman said that depending on how this all shakes out, there could someday also be a push for more portable-type benefits.</p> http://www.seyfarth.com:80//publications/miller-and-califano-authored-article-massachusetts-lawyers-journal-040117 Barry Miller and Anthony Califano authored an article for <i>Massachusetts Lawyers Journal</i> http://www.seyfarth.com:80//publications/miller-and-califano-authored-article-massachusetts-lawyers-journal-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Barry Miller and Anthony Califano authored &quot;A lighter load for motor carriers,&quot; an article on April 1 for Massachusetts Lawyers Journal. This article discusses the Massachusetts independent contractor statute and federal preemption.</p> <p> <a href="http://www.massbar.org/media/1765790/marchapril2017.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/vandewater-authored-article-commercial-leasing-law-and-strategy-040117 Melissa Vandewater authored an article in <i>Commercial Leasing Law & Strategy</i> - Part 2 of 2 http://www.seyfarth.com:80//publications/vandewater-authored-article-commercial-leasing-law-and-strategy-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Melissa Vandewater authored &quot;Work Letter &#39;What Ifs&#39;,&quot; an article on April 1 in <em>Commercial Leasing Law &amp; Strategy</em>. The article discusses how addressing potential Work Letter issues within the contract can pay dividends down the road.</p> <p> <a href="http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/04/01/work-letter-what-ifs/?slreturn=20170402160445">You can read Part Two here</a>.</p> http://www.seyfarth.com:80//publications/WC033117 Tennessee Court Rejects EEOC’s Supersized Subpoena Served On Fast Food Employer http://www.seyfarth.com:80//publications/WC033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> A federal court in Tennessee denied the EEOC&rsquo;s application for an Order to Show Cause why its administrative subpoena should not be enforced. &nbsp;This ruling highlights the importance and benefits of employers understanding the contours of the charges being investigated by the EEOC, so that the employer can guard against improper fishing expeditions.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/tennessee-court-rejects-eeocs-supersized-subpoena-served-on-fast-food-employer/">click here</a></p> http://www.seyfarth.com:80//publications/EL033117 Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents, Employment Law Lookout Blog http://www.seyfarth.com:80//publications/EL033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement. &nbsp; This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur. &nbsp;Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/quick-guidance-what-to-do-in-the-event-of-a-visit-by-the-dhs-ice-agents/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0f6a622cbe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0f6a622cbe-71256185">click here</a></p> http://www.seyfarth.com:80//publications/boutros-storm-schleppenbach-authored-article-bloomberg-white-collar-crime-report-033117 Andrew Boutros, Philip Storm and John Schleppenbach authored an article for <i>Bloomberg’s White Collar Crime Report</i> http://www.seyfarth.com:80//publications/boutros-storm-schleppenbach-authored-article-bloomberg-white-collar-crime-report-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Andrew Boutros, Philip Storm, and John Schleppenbach authored &quot;Adding Meat to the Bone: The Department of Justice Issues New &lsquo;Meatier&rsquo; Guidance on Corporate Compliance Programs,&quot; an article on March 31 for <em>Bloomberg&rsquo;s White Collar Crime Report</em>. &nbsp;This article discusses the importance of having an effective, up-to-date corporate compliance program in advance of a government inquiry or investigation.</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosStormSchleppenbach_033117.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/WC03312017 Employer Defeats Novel TCPA Class Action http://www.seyfarth.com:80//publications/WC03312017 Fri, 31 Mar 2017 00:00:00 -0400 <p> In a first-of-its kind ruling, an employer recently secured the dismissal with prejudice of what is believed to be one of the first Telephone Consumer Protection Act class actions ever brought against a company while acting as an employer &ndash; specifically in this instance, the use of robo-calls to contact applicants about employment opportunities. The ruling ought to be required reading for corporate counsel in order to understand this emerging risk and to craft strategies to protect companies against such claims.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/employer-defeats-novel-tcpa-class-action/">click here</a></p> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-033117 Brett Bartlett quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80//news/bartlett-quoted-bloomberg-BNA-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in &quot;Opinion Letters From DOL Could Help Employers &lsquo;Get-Out-of-Jail Free&rsquo;,&quot; a March 31 story by <em>Bloomberg BNA</em> on the expectation that the Labor Department will revive opinion letters, a common compliance tool which enable companies to present the documents before a judge or investigator as a &ldquo;good faith&rdquo; defense. Bartlett anticipates a flood of opinion letter requests made to the Wage and Hour Division.</p> <p> <a href="https://www.bna.com/opinion-letters-dol-n57982086029/">You can read the full article here</a>.</p> http://www.seyfarth.com:80//news/lurie-quoted-law360-033117 Dawn Lurie was quoted in <i>Law360</i> http://www.seyfarth.com:80//news/lurie-quoted-law360-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Dawn Lurie was quoted in &quot;3 Ways To Prepare For The EB-5 Regional Center Audits,&quot; a March 31 story from <em>Law360 </em>on three tips for how regional centers can prepare for the coming audits. Lurie said that if people are interviewed, the best thing to do is take really, really good notes.</p> http://www.seyfarth.com:80//news/gurell-quoted-law360-033017 Marc Gurell quoted in <i>Law360</i> http://www.seyfarth.com:80//news/gurell-quoted-law360-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Marc Gurell was quoted in &quot;JVs For Partial NYC Tower Stakes Pose Control, Tax Issues,&quot; a March 30 story from <em>Law360 </em>on the number of factors, some functions of market conditions and others based on tax structure, causing more owners of Manhattan trophy properties to enter a joint venture with a new partner and sell, say, a 49 percent stake in the property. Gurell said that while it is clearly attractive to avoid payment of a transfer tax, great caution should be exercised in structuring these transactions.</p> http://www.seyfarth.com:80//news/lorber-quoted-employee-benefit-news-033017 Larry Lorber quoted by <i>Employee Benefit News</i> http://www.seyfarth.com:80//news/lorber-quoted-employee-benefit-news-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;What do the DOL proposed budget cuts mean for employers?&quot; &mdash; a March 30 story in <em>Employee Benefit News</em> on the proposed $2.6 billion reduction to the Department of Labor&rsquo;s 2018 budget, as outlined earlier this month in President Donald Trump&rsquo;s &ldquo;America First&rdquo; spending blueprint. Lorber said that if there is a substantial budget cut, one of the results might be expected to be a reduction of enforcement actions or enforcement staff.</p> <p> <a href="https://www.benefitnews.com/news/what-do-the-dol-budget-cuts-mean-for-employers">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/kramer-and-stevens-authored-article-employee-benefit-adviser-033017 Ronald Kramer and Michael Stevens authored an article in <i>Employee Benefit Adviser</i> http://www.seyfarth.com:80//publications/kramer-and-stevens-authored-article-employee-benefit-adviser-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Ronald Kramer and Michael Stevens authored &quot;Using administrative exhaustion as a defense to statutory ERISA claims,&quot; an article on March 30 in <em>Employee Benefit Adviser</em>. The article discusses a recent decision where the Sixth Circuit joined six other circuit courts in holding that ERISA claims that seek vindication of statutory ERISA rights pertaining to the legality of a plan amendment, as opposed to an interpretation of the plan, are not subject to administrative exhaustion requirements.</p> <p> <a href="https://www.employeebenefitadviser.com/opinion/using-administrative-exhaustion-as-a-defense-to-statutory-erisa-claims">You can read the full article here</a>.</p> http://www.seyfarth.com:80//publications/OMM033017-Antitrust New Sheriffs In Town -- President Trump’s Antitrust Picks http://www.seyfarth.com:80//publications/OMM033017-Antitrust Thu, 30 Mar 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> On Monday, March 27, 2017, the Trump Administration announced the selection of Makan Delrahim to lead the Antitrust Division of the U.S. Department of Justice. &nbsp;This follows the appointment of Abbott (Tad) Lipsky as Acting Director of the Federal Trade Commission&rsquo;s Bureau of Competition. &nbsp;The Antitrust Division the Bureau of Competition are both responsible for enforcing U.S. antitrust laws. &nbsp; Mr. Delrahim&rsquo;s appointment now goes to the Senate Judiciary Committee for review. Assuming he is confirmed, companies involved in merger and acquisition transactions should anticipate a pragmatic approach to merger review from the Antitrust Division and the FTC during the Trump Administration.</em></div> <div> &nbsp;</div> <div> <strong>Biographies</strong></div> <div> Makan Delrahim and Tad Lipsky are well-respected and experienced antitrust attorneys with pro-business backgrounds.</div> <div> &nbsp;</div> <div> Makan Delrahim is the current deputy White House counsel for President Trump. &nbsp;From 2005 until he joined the Trump Administration, Mr. Delrahim worked as an antitrust lawyer and lobbyist, representing large technology companies like Google, pharmaceutical companies and health insurers like Anthem. &nbsp;Mr. Delrahim previously served as deputy assistant attorney general in the Antitrust Division during President George W. Bush&rsquo;s administration.</div> <div> &nbsp;</div> <div> Tad Lipsky became the Acting Director of the FTC&rsquo;s Bureau of Competition effective March 6, 2017. &nbsp;Previously, he focused on antitrust matters as a partner at Latham &amp; Watkins and as chief global antitrust counsel for the Coca-Cola Company. &nbsp;Prior to entering private practice, Mr. Lipsky served in a number of government roles, including as an attorney in the Antitrust Division and as Deputy Assistant Attorney General during President Reagan&rsquo;s administration. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Republican Leanings</strong></div> <div> &nbsp;</div> <div> Mr. Lipinsky recently wrote that &ldquo;U.S. merger review . . . is justly reputed to be the most costly form of merger review in the world. It has become a poster child for agency &lsquo;mission creep&rsquo; and crushing procedural burdens . . . . The burdens of the HSR process&mdash;agency demands for massive document searches, for example&mdash;sometimes reach levels that invite parody.&rdquo; &nbsp;Mr. Delrahim also has called for a nuanced approach to antitrust enforcement, saying that &ldquo;if the law somehow restricts procompetitive behavior or allows anticompetitive behavior because we apply old economy understanding to new-economy technology challenges, we may inadvertently hurt consumers.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Mr. Delrahim&rsquo;s appointment now goes to the Senate Judiciary Committee for review. Assuming he is confirmed, companies involved in merger and acquisition transactions should anticipate a pragmatic approach to merger review from the Antitrust Division and the FTC during the Trump Administration.</div> <div> &nbsp;</div> http://www.seyfarth.com:80//publications/MA033017-LE Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents http://www.seyfarth.com:80//publications/MA033017-LE Thu, 30 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>: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (&ldquo;ICE&rdquo;).&nbsp;&nbsp; This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.&nbsp; Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.</em></p> <p> In light of the Trump Administration&rsquo;s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.&nbsp; To be clear, the Department of Homeland Security&rsquo;s (&ldquo;DHS&rdquo;) Immigration and Customs Enforcement &nbsp;(&ldquo;ICE&rdquo;) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.</p> <p> In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE&rsquo;s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit<a href="#_ftn1" name="_ftnref1" title="">[1]</a> as well as it&rsquo;s E-Verify Monitoring and Compliance branch<a href="#_ftn2" name="_ftnref2" title="">[2]</a>. Additionally, the Department of Justice&rsquo;s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.&nbsp;</p> <p> <strong>Be Prepared</strong></p> <p> Employers must develop and implement strong compliance policies, renew their current policies, assess immigration exposure, consider outside counsel audits of Form I-9, E-Verify and H-1B public access files, if applicable and most relevant to today&rsquo;s climate, plan in advance how to respond when immigration agents visit the company. All personnel, from the those in the reception area to HR managers must be prepared and know what to say and what not to say when DHS agents visit. Training alone will not prepare the business, but rather a targeted step-by-step process, known to all relevant managers and employees, that can be easily followed in the event of a visit will likely yield enhanced results</p> <p> It is important to understand the possible purposes of a DHS visit and how to respond when a DHS Special Agent knocks on your door. The following is a general guide for addressing a visit from an immigration Special Agent. We recommend developing specific process documents to describe the various types of encounters with government agents that a worksite may face. It is also important to consider delineating roles and responsibilities, as well as a global response to investigations and audits.</p> <p> <strong>Keep in mind there will be three main reasons by ICE may visit a worksite:</strong></p> <p style="margin-left: 40px;"> 1. To look for, or take into custody, a particular individual;</p> <p style="margin-left: 40px;"> 2. To issue a Notice of Inspection of a company&rsquo;s Form I-9 document; ICE continues to focus its worksite inspection efforts on employers conducting business in critical infrastructure and national security interest industries/sectors. &nbsp;For example commercial facilities, communications, critical manufacturing, dams, emergency services, government facilities, information technology, nuclear reactors materials and waste and transportation systems remain favorites. Other focus is on employers for whom ICE has received a credible tip or lead. A full overview of the Form I-9 Inspection is discussed in a separate Alert; or</p> <p style="margin-left: 40px;"> 3. To conduct a Worksite Enforcement Action: During these worksite &ldquo;raids&rdquo;, large numbers of Special Agents may descend upon a location, without notice. ICE will obtain indictments, arrest or search warrants, or a commitment from a U.S. Attorney&#39;s Office to prosecute a targeted employer <em>before</em> arresting employees for civil immigration violations at a worksite. The last such &ldquo;Action&rdquo; occurred in Bellingham, Washington in February of 2009 however, it is unknown whether such activity will resume.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> <strong>Designate and Prepare Representative Responders</strong></p> <p> When the government knocks it will serve a company well to have prepared those on site to greet the government visitor. Providing that &ldquo;greeter&rdquo; with a specific list of exactly who needs to be contacted, both immediately at the affected location and/or elsewhere in the company, will minimize confusion. This guidance will be welcomed by your employees. Defining roles, and even providing scripts to greeters and representative responders, may further minimize unnecessary disruption and distress. Responder roles include, but are not limited to, the following individuals:</p> <p style="margin-left: 40px;"> 1.) Receptionist /Front Desk Greeter</p> <p style="margin-left: 40px;"> 2.) Manager(s)</p> <p style="margin-left: 40px;"> 3.) Human Resources Representative</p> <p style="margin-left: 40px;"> 4.) General Counsel, if applicable</p> <p style="margin-left: 40px;"> 5.) Outside Immigration Counsel</p> <p> <strong>Provide Instructions to the Field</strong></p> <p> Employees likely to be approached by government Special Agents, including reception staff and relevant security personnel, should be briefed on the company&rsquo;s protocol for handling a visit targeting an individual, the service of a Notice of Inspection, or another enforcement action. It is critical that companies first discuss the specifics of such a protocol with their immigration counsel in order to address individual considerations and customize a particular response. &nbsp;Advice will be based on a variety of factors including a risk assessment and even a review of your physical plant.</p> <p> Regardless of the type of investigation, all responders must be as cooperative as possible with the government Special Agents. You generally want to provide the government with only that which is necessary to meet their request as outlined in detail below. The initial contact should ascertain the name of the agency visiting and whether or not they have documents to present, as well as the purpose of their visit. You also want to ensure the visit itself does not exceed the scope of the warrant, subpoena, or other written request.</p> <p> The <strong>Receptionist/Greeter </strong>should be instructed that upon the arrival of government Special Agents, s/he should <em>immediately contact the designated Manager</em> and any other Responders. The receptionist&rsquo;s role could end there or could continue to the next steps depending upon the direction of the company.</p> <p style="margin-left:.5in;"> 1. The Greeter should not allow the Special Agents out of the waiting area, but rather make them comfortable while waiting for the Manager or appropriate lead person.</p> <p style="margin-left:.5in;"> 2. Limited questions and answers noting <u>she/he is not authorized to give consent to enter the premises or respond to questions.</u> Special Agents are trained professionals and being overly talkative is not recommended. In some cases the Special Agents may seem threatening, aggressive, or difficult, however there is no need to panic. In other cases, the pair of agents could begin a game of &ldquo;good cop/bad cop&rdquo; right there in the lobby. The Greeter should keep calm and continue to try to reach the manager.</p> <p style="margin-left:.5in;"> 3. If the Special Agent is still aggressive, inform him/her that the company has protocols in place to make sure government inquiries are addressed and request that you be allowed to follow them. On the other hand if the agent is very chatty, keep in mind he/she is really not a friend and there is no need to sit down and engage in conversation. Keep the answers short and direct until a Manager arrives.</p> <p style="margin-left:.5in;"> 4. A direct call to legal counsel should be considered as part of this process for the Greeter.</p> <p style="margin-left:.5in;"> 5. AGAIN, the Greeter should not provide any consent to allow the Special Agents access to anywhere outside of the public entry way space.</p> <p> <strong>The Manager</strong> (or his designee) should ensure legal counsel, headquarters and outside immigration counsel, as designated in your company&rsquo;s individual protocol has been contacted prior to walking out to meet the Special Agents. Mobile phone numbers and specific contact information should be readily accessible. The manager should then greet and escort the Special Agents to a predetermined room/location, which should be as private as possible. The location should be close to an exit of the building where their departure, possibly with an employee, will not cause disruption. Specifically the Manager should then take the following steps:</p> <p style="margin-left:.5in;"> 1. Confirm and/or identify the government agency that dispatched the agent/visitor. Ask the Special Agents for identification and note each person&rsquo;s name, title, agency, and obtain contact information as well a business card.</p> <p style="margin-left:.5in;"> 2. Ask the Special Agents about the purpose of the visit and request subpoena and/or warrant, under which they are acting.&nbsp; The agents MUST present a warrant in order to gain access to the items or individuals they are seeking.</p> <p style="margin-left:.5in;"> 3. Inquire on the nature of the inquiry and ascertain to the extent possible if an individual employee is being or if the agents are investigating the company.</p> <p style="margin-left:.5in;"> 4. Communicate to the government agents that the company will cooperate with the request but that they have/will contact legal counsel to assist them in complying.</p> <p style="margin-left:.5in;"> 5. Determine if the agent is presenting official documents by reading them or scanning to in-house counsel or outside Counsel. If time is short the Manager can take a photo on their phone and text message. If the investigator presents any official documents, they must be read carefully to determine if the document is a Judicial Subpoena (which must be honored) or an Administrative Subpoena (which may be challenged) . Generally, Form I-9 audit requests are administrative and elements of the request may be subject to challenge.</p> <p style="margin-left:.5in;"> 6. An arrest warrant will not authorize its holders to simply wander otherwise private premises. The warrant must describe with specificity the location to be entered and those specifics will limit where an agent can go.&nbsp; &nbsp;Even if the warrant authorizes the arrest of an individual, it must explicitly authorize entry into specific private premises including individual offices, the production floor etc. for such entry to occur.</p> <p style="margin-left:.5in;"> 7. Employees should be reminded not to waive any rights, and provide consent to any activity beyond that described in the warrant.</p> <p style="margin-left:.5in;"> 8. Remember ICE agents must have a valid search warrant or the company&rsquo;s consent to enter non-public areas of the workplace even if the company itself is under investigation.</p> <p style="margin-left:.5in;"> 9. Make contact with the lawyers. Before answering any of the agent&rsquo;s questions, the Manager should first speak with inside counsel or experienced immigration counsel. Counsel may want to come to the location, if possible, or speak by telephone with the investigator.</p> <p style="margin-left:.5in;"> 10. Remember you have three days to turn over your Form I-9s and related documents, even when presented with a subpoena and related Notice of Inspection. Do not EVER waive this time period. Immigration counsel will assist directly and organize the submission to ICE or the requesting agency (sharing of Form I-9 data is limited for privacy purposes, but allowed to be provided to agencies outside of DHS and DOL where there is a criminal investigation involved). Documents will be turned over in an orderly fashion with ICE acknowledging receipt and providing a &ldquo;Chain of Custody&quot;.</p> <p> In summary:</p> <ul> <li> Do not turn over any documents unless a search warrant mandates such action. Again, this will not be the case in the context of an Form I-9 audit.</li> <li> Do not provide any information other than what is exactly asked.</li> <li> Make copies, if possible of anything being taken.</li> <li> Ensure legal counsel is available in real time to consult on any immediate requests.</li> </ul> <p> Companies in specific industries may face additional challenges &nbsp;when responding to government visits. Outside immigration counsel should be consulted to establish customized protocols and practical procedures for your employees, supervisors and managers, and possibly your customers, to follow when faced with visits from ICE, USCIS DOJ or the DOL.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> US Citizenship and Immigration Services conducts site visits where employers have petitioned for work visas on behalf of their employees. These site visits are also likely to rise as the administration focuses on usage of the H-1B and L-1 visa categories but are not the topic of today&rsquo;s article</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> According to the USCIS website, Monitoring and Compliance &ldquo;observes system use to help users comply with the E-Verify&hellip;.E-Verify does not fine employers but may refer cases of suspected misuse, abuse, and/or fraud to appropriate agencies&rdquo; M&amp;C conducts desk reviews and site visits.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Separately employers should consciously decide whether and to what degree they will provide guidance and assistance to employees who may be affected directly or who may have concerns about the government&rsquo;s enforcement policies. &nbsp;This will depend on the location and nature of your business, as well as the composition of your workforce. &nbsp;Companies ought to be considering the need if any, for messaging regarding the administration&rsquo;s immigration policies. Discussions of immigration status and government enforcement, are breakroom fodder and the implications should be understood. Also companies need to consider, what resources if any are being provided to employees and what the impact of certain information, including learning of employee&rsquo;s actual status could have if left unaddressed.</p> </div> </div> <p> &nbsp;</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/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//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//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//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//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/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//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//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//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//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//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//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/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//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/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/workplace-relationship-good-governance Is a workplace relationship ever consistent with good governance http://www.seyfarth.com:80//publications/workplace-relationship-good-governance 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/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/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/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/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//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//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//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/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/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/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/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/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/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/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//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//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/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//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/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/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//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//publications/vandewater-authored-article-commercial-leasing-law-and-strategy-030117 Melissa Vandewater authored an article in <i>Commercial Leasing Law & Strategy</i> - Part 1 of 2 http://www.seyfarth.com:80//publications/vandewater-authored-article-commercial-leasing-law-and-strategy-030117 Wed, 01 Mar 2017 00:00:00 -0400 <p> Melissa Vandewater authored &quot;Work Letter &#39;What Ifs&#39;: Practical Solutions to Possible Problems,&quot; an article on March 1 in <em>Commercial Leasing Law &amp; Strategy</em>. The article summarizes six &quot;what if&quot; scenarios that should be considered by landlords and tenants when negotiating Work Letters.</p> <p> <a href="http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/03/01/work-letter-what-ifs-practical-solutions-to-possible-problems/">You can read Part One here</a>.&nbsp;</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/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/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/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/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>. <a href="http://www.seyfarth.com/dir_docs/publications/PREAQuarterly_022717.pdf">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//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/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/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/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/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//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//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/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/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/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/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/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/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/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//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//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/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 C