Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80/news/nelson052318 Seyfarth Adds Labor & Employment Partner Scott Nelson in Houston http://www.seyfarth.com:80/news/nelson052318 Wed, 23 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Firm Continues Growth of Houston Office </span></em></p> <p> <strong>HOUSTON (May 23, 2018)</strong> -- Seyfarth Shaw LLP announced today the arrival of partner Scott Nelson to the Labor &amp; Employment department in Houston. Nelson joins from Baker McKenzie LLP, where he was a partner in Houston and also served until recently as leader of the firm&rsquo;s domestic U.S. Employment Counseling and Litigation practice.</p> <p> Nelson brings significant experience with domestic and international labor and employment matters, as well as complex commercial litigation, to Seyfarth&rsquo;s growing Houston office. Earlier this month, former AccessHealth general counsel Janice Suchyta joined Seyfarth in Houston, further bolstering the region&rsquo;s second largest health care practice as ranked by the <em><a href="https://www.bizjournals.com/houston/subscriber-only/2017/12/01/largest-houston-area-health-care-law.html">Houston Business Journal</a>.</em></p> <p> &ldquo;We are excited to welcome Scott to our growing platform in Houston,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. &ldquo;He is a trusted counselor and dynamic leader in employment law with experience handling matters around the globe.&rdquo;</p> <p> &ldquo;As both a veteran litigator and advisor, Scott has grown into one of the region&rsquo;s top authorities on employment and compliance-related issues facing clients in jurisdictions around the world,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He&rsquo;s a natural fit as we expand our Labor &amp; Employment team in Houston, where we&rsquo;ve long had a strong presence and look forward to serving more clients in the future.&rdquo;</p> <p> Among Nelson&#39;s more notable cases, he successfully defended multinational chemical companies in one of the largest employee trade secrets cases to ever go to a jury trial, a case in which plaintiffs sought $800 million through economic espionage-type trade secrets claims. He also achieved a total bench trial victory in a large ERISA &sect; 204(h) notice class action in which plaintiffs sought a recovery in excess of $200 million.</p> <p> <em>Texas Monthly</em> magazine has recognized Nelson as a Texas Super Lawyer and the Texas Board of Legal Specialization has board certified him in labor and employment law.</p> <p> An accomplished litigator, Nelson has prevailed in a wide variety of cases before trial courts, appellate courts, arbitrators, and government agencies. He has litigated all major types of employment law claims, wage and hour claims, ERISA claims, whistleblower claims, non-compete and trade secrets cases, class actions, collective actions, traditional labor law (union-related) matters, and complex commercial litigation matters.</p> <p> Nelson also serves as a trusted, regular advisor on compliance and strategy issues, and frequently manages large international legal matters. In addition, he supervises internal company investigations and often trains groups of executives.</p> <p> Nelson received his J.D., <em>cum laude</em>, from the Creighton University School of Law and earned his B.S.B.A., <em>magna cum laude</em>, from Creighton University.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/finkelcc052318 Noah Finkel quoted in Corporate Counsel http://www.seyfarth.com:80/news/finkelcc052318 Wed, 23 May 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a May 23 story from Corporate Counsel, &quot;High Court Approval of Class Action Waivers in Landmark Case Seen as Victory for Companies,&quot; on how the U.S. Supreme Court held that companies have the right to compel employees to sign waivers that prevent them from bringing class action lawsuits against their employers. Finkel said that it&rsquo;s a significant victory for employers in that those that have arbitration agreements that contain class and collective action waivers are now able to enforce them without any question.</p> http://www.seyfarth.com:80/news/blockchain052218 Seyfarth Launches Blockchain Technologies Team http://www.seyfarth.com:80/news/blockchain052218 Tue, 22 May 2018 00:00:00 -0400 <p> <strong>(May 22, 2018)</strong> -- Seyfarth Shaw LLP announced today the formal launch of its Blockchain Technologies team, an interdisciplinary group of lawyers who counsel clients and interface with regulators to address legal issues raised by blockchain technology.</p> <p> Seyfarth&rsquo;s Blockchain Technologies team comprises attorneys with a variety of legal practices &ndash; including Corporate, Securities, Labor &amp; Employment, Litigation, Derivatives, Real Estate, Banking, International, Tax, Employee Benefits and Immigration Compliance &ndash; dedicated to helping clients navigate the uncharted and largely unregulated waters of this rapidly evolving technology, and corresponding regulation. The team has substantial experience representing entities using blockchain and have advised clients on an extensive range of legal operational aspects, including cybersecurity, data storage and transfer, software licensing and distribution, stored value transfer, initial coin offerings (&ldquo;ICOs&rdquo;), encryption, and law and regulation related to these and other business activities.</p> <p> &ldquo;A popular topic at water coolers across the globe, blockchain technology promises to change the way companies conduct a suite of business operations,&rdquo; said Richard Lutkus, co-lead of the firm&rsquo;s Blockchain Technologies team and a Certified Ethical Hacker (CEH). &ldquo;As the demand for services related to this emerging technology increase, we have assembled a group of excellent legal talent poised to help clients navigate this new corporate environment.&rdquo;</p> <p> Members of the Blockchain Technologies team are thought leaders in trust modeling, capital formation, and cryptocurrency markets as well as teachers, authors and guides to clients within a range of industries. They have helped early adopters of blockchain technology work within regulatory frameworks and manage risks. Clients include many data-driven businesses, such as health care and benefits providers, financial institutions, hedge funds and other investment vehicles, insurance markets, clearing houses, and technology companies.</p> <p> &ldquo;The business community has continued to embrace blockchain technology, forecasting its impact on a wide array of industries,&rdquo; said Angelo Paparelli, co-lead of the firm&rsquo;s Blockchain Technologies team and a member of the firm&rsquo;s Business Immigration practice group. &ldquo;Facing an unfamiliar future enterprise, clients can engage our cross-disciplinary team for practical solutions to the variety of issues created by this technological shift.&rdquo;</p> <p> To learn more about Seyfarth&rsquo;s Blockchain Technologies Team visit: <a href="http://www.seyfarth.com/BlockchainTechnologies">http://www.seyfarth.com/BlockchainTechnologies </a>.</p> <p> The Blockchain Technologies team is one of the first initiatives of Seyfarth&rsquo;s Future Enterprise, a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to emerging technologies. Last week, Seyfarth released the key findings of its Future Enterprise survey. See full survey results and verbatims at <a href="https://www.futureenterprise.com/home#h-survey">https://www.futureenterprise.com/home#h-survey</a>.</p> <p> <strong>About Future Enterprise </strong></p> <p> As emerging technologies such as artificial intelligence, virtual reality, blockchain, and cryptocurrencies become more common and the needs of the massive multigenerational global workforce begin to shift, business and legal leaders must invest in strategies that will support building new capabilities at the cross-section of people power and machine power. Future Enterprise by Seyfarth Shaw is a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to those emerging technologies. It leverages each and every department, practice group and industry group in the firm. <a href="https://www.futureenterprise.com/">https://www.futureenterprise.com/</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/bartlettbna052218 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlettbna052218 Tue, 22 May 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in a May 22 story from Bloomberg BNA, &quot;Supreme Court Warms Up &lsquo;Thousands&rsquo; of Frozen Worker Claims,&quot; on the U.S. Supreme Court&rsquo;s decision to legalize class action waivers in mandatory arbitration agreements. Bartlett said that for employers with pending class and collective actions in federal court and that have rolled out arbitration plans containing waivers, this ruling signifies the moment when it becomes critical to re-examine defense strategies.</p> http://www.seyfarth.com:80/news/weisswgnradio052218 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgnradio052218 Tue, 22 May 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed May 22nd on WGN Radio, &quot;Wintrust Business Lunch 5/22/18: &#39;Intern Indigestion&#39;.&quot; Philippe Weiss shed some light on the extra work and care it takes for companies to hire interns. You can listen to the full interview at <a href="http://wgnradio.com/2018/05/22/the-wintrust-business-lunch-5-22-18-intern-indigestion-first-female-nyse-president-being-counter-intuitive/">Min. 8:35 here</a>.</p> http://www.seyfarth.com:80/news/babsonbloomberglaw052218 Marshall Babson quoted in Bloomberg Law http://www.seyfarth.com:80/news/babsonbloomberglaw052218 Tue, 22 May 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a May 22 story from Bloomberg Law, &quot;Did High Court Signal a Further Cutback of Worker Rights?,&quot; on the Supreme Court&rsquo;s decision to okay the use of mandatory arbitration and class action waivers in employment agreements. Babson said that it would be a mistake to read the court&rsquo;s recent opinion as &ldquo;unduly limiting&rdquo; the scope of protected activity under the National Labor Relations Act.</p> http://www.seyfarth.com:80/news/adaaba052218 Seyfarth's ADA Title III blog referenced in ABA Bank Marketing http://www.seyfarth.com:80/news/adaaba052218 Tue, 22 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III blog was referenced in a May 22 story from ABA Bank Marketing, &quot;Avoiding the Website Accessibility Shakedown.&quot; According to Seyfarth, ADA lawsuits increased by 37% between 2015 and 2016. By May 2017, ADA lawsuits increased by 18%, and the numbers are steadily climbing. In 2017, there were at least 814 ADA Title III website lawsuits filed. You can read the <a href="https://ababankmarketing.com/insights/avoiding-the-website-accessibility-shakedown/">full article here</a>.</p> http://www.seyfarth.com:80/publications/tomaszewskiilta052218 John Tomaszewski authored an article in ILTA's Peer to Peer Magazine http://www.seyfarth.com:80/publications/tomaszewskiilta052218 Tue, 22 May 2018 00:00:00 -0400 <p> John Tomaszewski authored an article in the Spring issue of ILTA&#39;s Peer to Peer Magazine, &quot;Connected Devices and the Increasing Regulatory Focus on Cybersecurity.&quot; You can read the <a href="http://epubs.iltanet.org/i/984836-spring-2018/32?_ga=2.151415793.994475548.1527017767-1321985393.1522866732">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT052218 Not So Fast: Maine Legislature Overrides Governor’s Veto of Recreational Marijuana Law http://www.seyfarth.com:80/publications/TBT052218 Tue, 22 May 2018 00:00:00 -0400 <p> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana,&rdquo; and joined a handful of other states, including California, to have legalized the recreational use, retail sale and taxation of marijuana. The voter-approved law would have allowed persons 21 years of age or older to use or possess up to 2&frac12; ounces of marijuana, consume marijuana in nonpublic places (including a private residence), and grow, at the person&rsquo;s residence, up to 6 flowering marijuana plants (and up to 12 immature plants). It also would have legalized the purchase of marijuana or marijuana seedlings or plants from retail marijuana stores and cultivation facilities.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/not-so-fast-maine-legislature-overrides-governors-veto-of-recreational-marijuana-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA052118-LE A Class Waiver Can Be A Condition of Employment http://www.seyfarth.com:80/publications/MA052118-LE Mon, 21 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em>&nbsp; In one of the most significant employment cases in memory, a sharply divided United States Supreme Court held today that employers may require employees, as a condition of employment, to enter into arbitration agreements that contain waivers of the ability to participate in a class or collective action under various employment statutes.</em></p> <p> There is no longer any reason under the law why an employer cannot require its employees to waive the ability to bring a class or collective action under federal, state, and local employment laws.</p> <p> While there are certain exceptions (explained below), the United States Supreme Court today removed the last potential legal barrier to the enforcement of class waivers in the employment sphere.&nbsp; <a href="https://www.supremecourt.gov/opinions/17pdf/16-285_q8l1.pdf">In a 5-4 decision authored by Justice Neil Gorsuch</a>, it held in three cases consolidated for review that requiring employees to agree to arbitration agreements with class waivers does not violate the National Labor Relations Act (&ldquo;NLRA&rdquo;) and that such agreements are fully enforceable.</p> <p> The only foreseeable barrier to enforcement of a class waiver would be federal legislation amending the Federal Arbitration Act (&ldquo;FAA&rdquo;) or state legislation permitting private attorney general actions such as California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;).&nbsp; Employers who maintain mandatory arbitration programs with class waivers can be assured for the time being that those waivers provide a valid defense to a collective or class action.&nbsp; Employers who do not have such arbitration programs need to be aware of this significant development in the employment law landscape and at least consider whether an arbitration program with a class waiver is appropriate for them.</p> <p> Be aware, however, that a class waiver in an arbitration program does not mean the end of all multi-claimant litigation.&nbsp; As those with operations in California know, employees who have entered into class waivers with their employers nevertheless may bring PAGA actions in that state.&nbsp; Likewise, agency-initiated actions are not impacted, leaving the Department of Labor and the Equal Employment Opportunity Commission free to pursue relief under the statutes they enforce on behalf of employees regardless of whether those employees have entered into class waivers.&nbsp; Meanwhile, some plaintiff-side attorneys have become skilled at bringing dozens of single-claimant arbitration matters against an employer at the same time, which might cost an employer more than defending a collective or class action in court.</p> <p> An arbitration program with a class waiver isn&rsquo;t necessarily for every employer.&nbsp; But this ruling certainly will cause more employers to adopt arbitration programs with class waivers, and likely will reduce the number of class and collective actions employers face.</p> <p> <strong>The Path Leading to the Decision</strong></p> <p> Beginning with its 2011 decision in <a href="https://www.wagehourlitigation.com/arbitration-agreements/how-to-learn-to-stop-worrying-about-wage-hour-class-actions-and-love-arbitration/"><em>AT&amp;T Mobility v. Concepcion</em></a>, the Supreme Court has blessed the validity and enforceability of class waivers in arbitration agreements.&nbsp; This was followed by decisions in <a href="https://www.supremecourt.gov/opinions/11pdf/10-948.pdf"><em>CompuCredit Corp. v. Greenwood</em> </a>and <a href="https://www.wagehourlitigation.com/arbitration-agreements/class-arbitration-waivers-of-any-colors-are-enforceable/"><em>American Express Co. v. Italian Colors Restaurant</em></a>, where the Supreme Court forged jurisprudence that made class waivers seem unassailable in the commercial context.&nbsp; But because none of the cases involving class waivers before the Supreme Court were in the employment context, uncertainty existed as to whether class waivers in mandatory employment arbitration agreements were enforceable.&nbsp;</p> <p> This uncertainty was amplified by the National Labor Relations Board&rsquo;s 2012 decision in <em>D.R. Horton</em>, which rejected workplace class waivers.&nbsp; In the Board&rsquo;s view, class waivers prevent employees from engaging in protected concerted activity in violation of Section 7 of the NLRA.&nbsp; The Board continued to press its view even after the <a href="https://www.wagehourlitigation.com/arbitration-agreements/game-over-flsa-collective-action-waivers-get-seal-of-approval-from-second-circuit/">Second</a>, <a href="https://www.wagehourlitigation.com/arbitration-agreements/fifth-circuit-stands-pat-again-rejects-nlrb-attempt-to-void-class-and-collective-action-waive/">Fifth</a>, and <a href="https://www.wagehourlitigation.com/arbitration-agreements/another-win-for-arbitration-of-flsa-claims-on-an-individual-basis/">Eighth </a>Circuits refused to enforce the rule.&nbsp; Then in 2016, the Seventh Circuit created a circuit split with its decision in <em>Lewis v. Epic Systems Corp.</em>, which held that the right to bring a class or collective action is protected concerted activity under the NLRA, and that class waivers violate that right.&nbsp; The Sixth and Ninth Circuit followed the Seventh Circuit&rsquo;s reasoning, deepening the split.</p> <p> <a href="https://www.wagehourlitigation.com/arbitration-agreements/will-the-supreme-court-finally-remove-doubt-that-an-employer-can-mandate-that-employees-enter-into-arbitration-agreements-with-class-waivers/">The Supreme Court granted cert in three cases </a>to resolve the issue of whether employers who require employees to arbitrate claims on an individual basis are preventing employees from engaging in protected concerted activity in violation of the NLRA.&nbsp; On October 2, 2017, <a href="https://www.wagehourlitigation.com/arbitration-agreements/class-waivers-at-the-divided-supreme-court-employers-cautiously-optimistic/">the Supreme Court heard oral argument</a>, and today it issued its decision in a split that is just as close as the circuit split below.</p> <p> <strong>The Court&rsquo;s Reasoning</strong></p> <p> The Supreme Court began with the premise that the Federal Arbitration Act (FAA) is unequivocal in its mandate that courts enforce arbitration agreements.&nbsp; The Court&rsquo;s majority decision rejected the argument that the NLRA overrides that command by rendering a class waiver unlawful.&nbsp; In the majority&rsquo;s view, Section 7 of the NLRA does not create a right to pursue a collective or class action.&nbsp; Rather, Section 7 focuses on the right to organize unions and bargain collectively and does not mention&nbsp; class or collective action procedures, the majority reasoned.&nbsp;</p> <p> Section 7&rsquo;s catch-all provision that employees&nbsp; must be permitted to engage in &ldquo;other concerted activities for the purpose of . . . other mutual aid or protection&rdquo; does not protect the right to participate in a class action because it only protects activities similar to those explicitly listed in Section 7 and thus reaches only to &ldquo;things employees do for themselves in the course of exercising their right to free association in the workplace.&rdquo;</p> <p> The majority supported its holding with other observations, including that: class and collective action procedures were &ldquo;hardly known&rdquo; in 1935 when the NLRA was passed; the NLRA states no rules on class or collective action, in contrast to the regulatory regime it imposes surrounding other concerted activities; and the collective action procedures under the Fair Labor Standards Act (&ldquo;FLSA&rdquo;) -- the statute under which the employees&rsquo; underlying causes of action arise -- is just like the collective action procedures under the Age Discrimination in Employment Act, which the Supreme Court previously has held does not prohibit mandatory individual arbitration.&nbsp;</p> <p> At bottom, the Court&rsquo;s majority was unwilling to infer a Section 7 right to a class or collective action based on &ldquo;vague terms or ancillary provisions&rdquo; that would &ldquo;dictate the particulars of dispute resolution procedures in Article III courts or arbitration proceedings--matters that are usually left to, <em>e.g.</em>, the Federal Rules of Civil Procedure, the Arbitration Act, and the FLSA.&rdquo;</p> <p> The reasoning of the majority, as articulated by Justice Gorsuch, is broader than some expected.&nbsp; His majority opinion does not merely hold that between conflicting rights and interests of the FAA and NLRA, the FAA wins.&nbsp; Rather, the majority suggests that there may not be any Section 7 right to pursue a collective or class action in the first place.&nbsp; This raises the question of whether a collective or class action waiver that is<em> not</em> contained within an arbitration program may be enforceable.</p> <p> <strong>The Dissent</strong></p> <p> As expected, Justices Ginsburg, Kagan, Sotomayor, and Breyer dissented in an opinion authored by Justice Ginsburg.&nbsp; The dissent focused on the circumstances that are unique to the employment context, including what Justice Ginsburg refers to as the &ldquo;extreme imbalance once prevalent in our Nation&rsquo;s workplaces,&rdquo; and the reasons Congress enacted the NLRA in the first place, to &ldquo;place employers and employees on more equal footing.&rdquo;&nbsp; Of paramount importance was the NLRA&rsquo;s recognition that an individual employee has unequal bargaining power against the employer, and that the right to engage in concerted activities levels the playing field.</p> <p> In the dissent&rsquo;s view, class and collective actions qualify as concerted activities because in these actions, employees band together to improve their working conditions by holding employers accountable for violations of employment law.</p> <p> <strong>What Should Employers Do</strong></p> <p> Employers will undoubtedly be asking:&nbsp; what does this decision mean for me?&nbsp; The answer depends on many factors, and like arbitration agreements themselves, there is no one answer that fits all.</p> <p> For employers that already maintain a mandatory arbitration agreement with a class waiver, the Supreme Court&rsquo;s decision has minimal impact.&nbsp; A well-drafted agreement that does not overreach will be enforced.&nbsp; While there are no longer any barriers to enforcing mandatory class waivers, the Supreme Court&rsquo;s decision will not save a poorly drafted arbitration agreement.&nbsp; In many states, an arbitration agreement still can be found unenforceable if it is both procedurally and substantively unconscionable under state law principles.&nbsp; Some courts in some states may find that an arbitration agreement that is mandatory in nature is procedurally unconscionable, which makes it imperative that there is nothing in the arbitration agreement that can be substantively unconscionable.</p> <p> Employers that have a voluntary arbitration agreement with a class waiver should consider whether making the arbitration program mandatory could yield additional benefits.&nbsp; If almost all employees participate in a voluntary arbitration program with a class waiver, the additional risk of a mandatory program &ndash; whether due to procedural unconscionability concerns or employee relations issues &ndash; may not outweigh the marginal benefit.&nbsp; But if the number of employees who opt out of or refuse to sign a voluntary arbitration agreement with a class waiver is higher than an employer is comfortable with, a mandatory program should be considered.&nbsp; This is particularly true for employers in the Ninth Circuit, which gave a hat-tip to the NLRA by permitting class waivers so long as employees could opt out of the arbitration agreement.&nbsp; An opt-out procedure, however, is no longer required in light of the Supreme Court&rsquo;s decision.</p> <p> Employers that maintain arbitration programs without a class waiver should strongly consider revising their agreement to include a class waiver.&nbsp; An arbitration agreement without a class waiver leaves open the worst possible outcome, which is class arbitration.&nbsp; The potential exposure in any class action is too high to inject any uncertainty as to whether the parties intended to permit class arbitration or not.&nbsp; And an employer may want a court, rather than an arbitrator with potential financial incentive, to decide whether the parties intended to permit class arbitration.&nbsp; An express class waiver likely would avoid these issues.&nbsp; If an employer has an arbitration agreement already in place, there is now no reason to omit a class waiver.</p> <p> For everyone else who has been waiting for the Supreme Court&rsquo;s decision before deciding what to do, there are various factors to consider.&nbsp; The threshold question is whether to even have an arbitration program.&nbsp; There are certainly many benefits to arbitration.&nbsp; These include quicker resolution of claims, more predictable outcomes compared to a jury, arguably lower attorneys&rsquo; fees to take a case through completion in arbitration than in court, and greater chance of keeping the proceedings and outcome confidential.&nbsp;</p> <p> But there also are numerous downsides to arbitration that employers have to consider.&nbsp; Arbitrator fees can be very significant, and in states like California, the employer must pay all of the arbitrator fees.&nbsp;&nbsp; Some plaintiffs&rsquo; attorneys have resorted to filing a large number of individual arbitrations to make the arbitration process exorbitantly expensive for employers.&nbsp; Arbitrators also can be less likely to grant dispositive motions because they may feel a claimant has a right to take his or her claim through the evidentiary hearing (the equivalent of a trial in arbitration).</p> <p> Another question is what the scope of the arbitration program should be.&nbsp; Given the costs associated with arbitration, some employers may want to limit an arbitration program to just wage and hour claims, which have the greatest likelihood of being brought as class claims.&nbsp; In addition, current federal and state legislative headwinds are pushing against mandatory arbitration of sexual harassment and other Title VII claims.&nbsp; Certain Department of Defense contractors have long been banned from imposing such agreements, and the State of New York recently passed legislation that seeks to prohibit private employers from requiring arbitration of sexual harassment claims.&nbsp; While state laws of this type are susceptible to preemption by the Federal Arbitration Act, federal bans have been proposed, and employers may wish to sidestep the controversy altogether by considering wage-hour only arbitration agreements.&nbsp; In this way, discrimination claims, which usually are brought on a single-plaintiff basis, could then be excluded from the arbitration program if the additional costs associated with arbitration exceed the confidentiality benefit of arbitration.</p> <p> Employers considering implementing an arbitration program also need to be aware of the various exceptions.&nbsp; The FAA does not apply to certain employees, most notably transportation workers.&nbsp; In California, PAGA representative actions are not subject to class waivers and cannot be arbitrated.&nbsp; Complaints and charges filed with governmental agencies are not subject to arbitration agreements.</p> <p> While there are many factors to consider, the Supreme Court&rsquo;s decision today assures employers that arbitration agreements with class waivers remain a valuable option for employers interested in reducing potential class and collective action exposure.</p> <p> *<em>Seyfarth Shaw LLP is counsel for Epic Systems Corp. in the Lewis case at the district and appellate courts and is co-counsel for Epic at the Supreme Court.</em></p> http://www.seyfarth.com:80/publications/CP052118 Who Are My Clients? Avoiding Stormy Privilege Issues With California Employees http://www.seyfarth.com:80/publications/CP052118 Mon, 21 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Given recent headlines, a storm could be brewing over the boundaries of the attorney-client privilege in some parts of the country. California employers can avoid this vortex, at least when dealing with their current and former employees. Both can be part of the &ldquo;corporate client&rdquo; for purposes of attorney-client privilege, so long as communications with counsel meet a few requirements.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/05/21/who-are-my-clients-avoiding-stormy-privilege-issues-with-california-employees/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lindvall052118 New York Patent Litigator Scott Lindvall Joins Seyfarth http://www.seyfarth.com:80/news/lindvall052118 Mon, 21 May 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Scott Lindvall has joined the firm&rsquo;s Litigation department in New York as partner and chair of Seyfarth&rsquo;s Intellectual Property Trial practice. Lindvall comes from Arnold &amp; Porter LLP, where he was a partner in its Patent Litigation group in New York.</p> <p> For more than 30 years, Lindvall&rsquo;s practice has focused on high-stakes patent litigation concerning a large collection of technologies on behalf of some of the largest telecommunications, aerospace, automotive, pharmaceutical, and software companies in the world. A veteran in first chair jury and bench trials, Lindvall has tried a substantial number of noteworthy patent infringement cases to favorable verdict.</p> <p> &ldquo;Scott has successfully litigated complex patent matters for some of the largest global technology and telecommunications companies,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;He adds considerable value to our intellectual property practice and his extensive patent trial experience brings another dimension to our national litigation bench.&rdquo;</p> <p> In addition to patent litigation, Lindvall has represented technology companies in trade secret jury trials and has advised key members of the pharmaceutical industry in Hatch-Waxman litigation. Prior to his legal career, Lindvall worked at a major aerospace company as a research engineer involved in computational fluid dynamics.</p> <p> &ldquo;We are delighted to welcome Scott to our team. His celebrated patent litigation practice nicely compliments the full suite of services we offer clients here on the East Coast and throughout the country,&rdquo; said Lorie Almon, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> A member of the Board of Trustees at the Marshall-Wythe School of Law Foundation, Lindvall received his J.D. from William &amp; Mary Law School where he served as an editor at the <em>William and Mary Law Review</em>. He earned a M.S. in Mechanical Engineering from Washington University and received a B.S. in Aerospace Engineering, <em>cum laude</em>, from Virginia Tech.</p> <p> &ldquo;Those that know Scott praise his trial skills and legal acumen, describing him as a true trial lawyer with patent credentials. He joins an already talented IP group both nationally, as well as in New York,&rdquo; said John Napoli, co-managing partner of Seyfarth&rsquo;s New York office.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/vuab052118 Minh Vu quoted in American Banker http://www.seyfarth.com:80/news/vuab052118 Mon, 21 May 2018 00:00:00 -0400 <p> Minh Vu was quoted in a May 21 story from American Banker, &quot;Banks are sitting ducks for ADA lawsuits.&quot; Vu said that website pages for submitting job applications are an emerging area of liability for financial institutions and other private companies.</p> http://www.seyfarth.com:80/news/rodriguezmh051918 Leon Rodriguez quoted in Modern Healthcare http://www.seyfarth.com:80/news/rodriguezmh051918 Sat, 19 May 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a May 19 story from Modern Healthcare, &quot;What do U.S. immigration policies mean for the healthcare workforce?,&quot; on how some believe the increased difficulty in procuring a visa has likely caused some prospective medical graduates to seek job opportunities in other countries. Rodriguez said that he thinks that&#39;s a real risk, especially if things get more restrictive than they have already been. You can read the <a href="http://www.modernhealthcare.com/article/20180519/NEWS/180519929/what-do-u-s-immigration-policies-mean-for-the-healthcare-workforce">full article here</a>.</p> http://www.seyfarth.com:80/news/weisslaw360051818 Philippe Weiss quoted in Law360 http://www.seyfarth.com:80/news/weisslaw360051818 Fri, 18 May 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a May 18 story from Law360, &quot;Summer Dress Codes: 5 Tips For Employers.&quot; Weiss said that businesses should first consider whether they even need a summer dress code to supplement the version they use for the rest of the year.</p> http://www.seyfarth.com:80/news/casciarilaw360051818 Mark Casciari quoted in Law360 http://www.seyfarth.com:80/news/casciarilaw360051818 Fri, 18 May 2018 00:00:00 -0400 <p> Mark Casciari was quoted in a May 18 story from Law360, &quot;USC, Workers Battle At The 9th Circ.: A Cheat Sheet, &quot; on the oral arguments involving a case where University of Southern California workers brought a $150 million proposed class action claiming the school mismanaged their retirement savings and the question of whether the plan participants&#39; claims should be kicked from federal court into arbitration. Casciari said that the judge&#39;s musing on whether an individual can argue a fiduciary breach claim on behalf of a plan in arbitration will likely be something the court&#39;s going to grapple with when they come down with the decision.</p> http://www.seyfarth.com:80/publications/WSE051818 OSHA Schedules Public Meeting and Requests Comments on Whistleblower Issues in the Trucking and Railroad Industries http://www.seyfarth.com:80/publications/WSE051818 Fri, 18 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA has scheduled a meeting on June 12, 2018, in Washington, D.C., to solicit comments and suggestions from stakeholders in the trucking and railroad industries, on whistleblower issues within OSHA&rsquo;s purview. 83 Fed. Reg. 19838 (May 4, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/whistleblower/osha-schedules-public-meeting-and-requests-comments-on-whistleblower-issues-in-the-trucking-and-railroad-industries/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS051818 Trade Secrets Audit http://www.seyfarth.com:80/publications/TS051818 Fri, 18 May 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/intellectual-property/trade-secrets-audit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL051718 Shock Value: How to Protect Your Company from a Negligence Lawsuit on Account of an AED (Automated External Defibrillator) http://www.seyfarth.com:80/publications/EL051718 Thu, 17 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers are widely installing AEDs to protect employees and visitors, but some states require strict compliance with AED regulations to insulate employers form tort liability.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/05/shock-value-how-to-protect-your-company-from-a-negligence-lawsuit-on-account-of-an-aed-automated-external-defibrillator/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT051718 The Week in Weed: May 18, 2018 http://www.seyfarth.com:80/publications/TBT051718 Thu, 17 May 2018 00:00:00 -0400 <p> Welcome back to The Weed in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/the-week-in-weed-may-18-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM051618-LE Silver Lining in a California Wage and Hour Cloud http://www.seyfarth.com:80/publications/OMM051618-LE Wed, 16 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>Employers adopting an Alternative Workweek Schedule (AWS) must follow the specific rules in the applicable wage order or face liability for unpaid overtime. But employees cannot recover penalties for accurate wage statements, even if the statements do not record unpaid wages that are due. Maldonado v. Epsilon Plastics, Inc.</em></p> <p> <strong>Legal Background</strong></p> <p> California Labor Code section 511 provides that an employer may adopt an AWS only if two-thirds of the affected employees approve the AWS in a secret vote. Specific AWS requirements appear in the applicable wage orders.</p> <p> Wage Order 1, for the manufacturing industry, permits adoption of an AWS only upon satisfying these requirements: (1) the employer proposes an AWS in writing, (2) two-thirds of the affected employees vote to adopt the proposed AWS, in a secret ballot conducted during regular working hours at the work site, (3) the employer has made a written disclosure regarding the effects of the proposed arrangement on wages, hours, and benefits, and has held at least one meeting at least 14 days before the vote, (4) the results of the election have been timely reported to the Division of Labor Statistics and Research, (5) employees have not been required to work the new hours for at least 30 days after election results were announced, and (6) the employer has not coerced any employee&rsquo;s vote.</p> <p> Labor Code section 226, meanwhile, requires that employers issue wage statements for each pay period that accurately record such things as the wages earned, the number of hours the employee has worked, and the pay rate assigned to each hour of work.</p> <p> <strong>The Facts</strong></p> <p> Olvin Maldonado operated a production machine for Epsilon Plastics, Inc., manufacturing plastic bags. Maldonado worked under an AWS by which employees worked 12-hour shifts that paid them at their regular rate for their first 10 hours of work and at an overtime rate for the next two hours.</p> <p> Maldonado sued Epsilon on behalf of a class of production employees, claiming unpaid daily overtime wages for the time worked after eight hours. The lawsuit involved four periods in which Epsilon&rsquo;s plant operated on an AWS.</p> <p> The first period began in April 2007. The AWS then in effect had been in place since Epsilon acquired the plant from Apple Plastics in 2002. The trial court found no evidence that Apple had met the AWS requirements of a written disclosure, a meeting, a vote, a 30-day waiting period, or a report to the state. In January 2008, Epsilon conducted a revote to confirm the employees&rsquo; agreement to the AWS. There was a secret ballot, preceded by a written memo, but there was no evidence of a pre-vote meeting. In addition, a supervisor voted even though he was salaried exempt, and thus was not an employee subject to the AWS.</p> <p> The second period ran for about a month in 2009. As to this period, Epsilon&rsquo;s HR administrator prepared a memo stating that the plant would be moving to a 12-hour shift and would be &ldquo;conducting this election&rdquo; to get &ldquo;employee input.&rdquo; The memo continued: &ldquo;Below please indicate if you agree with the twelve hour shift schedule or if you disagree with it.&rdquo; The memo explained the terms of the AWS, but failed to specify that without adoption of the AWS, overtime pay on the 12-hour shift would begin after the first eight hours. The HR administrator met with each shift of employees, but not until the same day they voted for the AWS. There was evidence that employees were coerced into voting yes, and the AWS went into effect six days after the vote.</p> <p> The third period covered two weeks in 2010, but Epsilon did not conduct a vote for this period.</p> <p> The plant returned to an AWS for a fourth, two-year period between 2011 and 2013. A vote was conducted eight days after this AWS took effect.</p> <p> The trial court concluded that, as to all four periods, the AWS had not been adopted in accordance with the applicable wage order. The court awarded unpaid overtime, interest, penalties for untimely termination pay and inaccurate wage statement penalties, and attorney&rsquo;s fees. As to the wage statements, the trial court awarded penalties. The court found that the statements were inaccurate because whenever the plant was on the AWS the wage statements did not properly indicate the ninth and tenth hours were overtime hours. The trial court further concluded the employees had suffered injury from this violation because they were not paid all of the overtime wages they were due.</p> <p> Epsilon appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal rejected Epsilon&rsquo;s argument that Maldonado had failed to prove that Epsilon&rsquo;s predecessor, Apple, had failed to comply with AWS requirements. It was Epsilon&mdash;not Maldonado&mdash;who had the burden of proof as to whether Apple had complied. Epsilon failed to meet its burden as to the initial period of the AWS, as well as to the later periods.</p> <p> The Court of Appeal agreed with Epsilon, however, about the wage statements. The wage statements did correctly recorded the hours actually worked and the pay actually received. That was good enough. There was no further requirement that the wage statement show what the employees <em>should </em>have been paid.</p> <p> The Court of Appeal reasoned that if failure to pay overtime wages at the appropriate rate generates an injury that justifies penalties for an inadequate wage statement, then there would be an apparent unintentional double recovery. The Court of Appeal concluded that while the invalid AWS mandated that the employees receive unpaid overtime wages, interest, and attorney&rsquo;s fees, that violation did not mandate an award of penalties for wage statements that accurately recorded the hours worked and the pay received.</p> <p> <strong>What <em>Maldonado </em>Means for Employers</strong></p> <p> Wage order procedures for an AWS must be followed to a &ldquo;T&rdquo; to avoid liability for overtime wages. A company purchasing a company already using an AWS should look for evidence that the AWS was properly adopted; a successor company cannot assume that its predecessor correctly followed all the prescribed procedures.</p> <p> The silver lining of this decision is the commonsense approach the Court of Appeal took as to the wage statements. Wage statements need only record what employees actually got paid, not what they <em>should</em> have been paid.</p> <p> Among the implications of this ruling would be that employers should not be liable for wage statements that fail to record premium pay employees should have received during a pay period in which the employer failed to provide a meal or rest break. First, as <em>Maldonado </em>clearly implies, recording pay employees <em>should </em>have received is not the function of a wage statement. Second, of course (and this is an issue <em>Maldonado </em>does not reach), money paid to compensate for breaks is, properly understood, not wages earned. The harshness of the <em>Maldonado </em>ruling on AWS issues as to Labor Code section 511 is thus counterbalanced by a sensible reading of Section 226.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/lazarcsm051618 Bart Lazar quoted in Christian Science Monitor http://www.seyfarth.com:80/news/lazarcsm051618 Wed, 16 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 16 story from Christian Science Monitor, &quot;Europe&rsquo;s new data privacy law,&quot; on how the GDPR subjects any company, regardless of where it&rsquo;s based, to fines of up to &euro;20 million (about $24 million) if it is judged to be noncompliant when engaging with EU customers. Lazar said that being sure of which consumers are located in the EU is complicated. You can read the <a href="https://www.csmonitor.com/Technology/2018/0516/Europe-s-new-data-privacy-law">full article here</a>.</p> http://www.seyfarth.com:80/news/fesurveytr051618 Seyfarth's Future Enterprise Survey profiled in TechRepublic http://www.seyfarth.com:80/news/fesurveytr051618 Wed, 16 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Future Enterprise Survey was profiled in a May 16 story from TechRepublic, &quot;62% of business leaders say automation, AI will have biggest impact on operations.&quot; Nearly half of the respondents in Seyfarth&#39;s survey said cybersecurity would be their biggest challenge over the next five years. You can read the <a href="https://www.techrepublic.com/article/62-of-business-leaders-say-automation-ai-will-have-biggest-impact-on-operations/">full article here</a>.</p> http://www.seyfarth.com:80/news/cockroftnlj051618 Andrew Cockroft quoted in the National Law Journal http://www.seyfarth.com:80/news/cockroftnlj051618 Wed, 16 May 2018 00:00:00 -0400 <p> Andrew Cockroft was quoted in a May 16 story from the National Law Journal, &quot;4 Considerations as Trump&#39;s Labor Board Mulls Joint-Employer Rulemaking.&quot; Cockroft said that while the board rarely has used rulemaking to establish standards under the NLRA, the importance of the joint-employer standard to businesses&rsquo; ability to function in the modern economy makes the issue a prime candidate for this seldom exercised power.</p> http://www.seyfarth.com:80/news/fesurvey051518 Business Leaders are More Hopeful on Industry Shifts in 2018, According to Seyfarth Shaw Future Enterprise Survey http://www.seyfarth.com:80/news/fesurvey051518 Tue, 15 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Survey respondents in sectors ranging from finance and technology to real estate and health care shared opinions on the changes and challenges their companies face. </span></em></p> <p> <strong>May 15, 2018</strong> &ndash; According to survey findings released today by Seyfarth Shaw, the majority of business leaders are more &ldquo;hopeful&rdquo; about the future of enterprise than last year, with 84 percent expressing optimism compared to 70 percent in 2017.</p> <p> As work, business, and the economy continue to be transformed by emerging technologies and cultural shifts, Seyfarth once again took the pulse of business leaders to see how they are adapting to this rapidly changing business landscape. From talent readiness to cybersecurity, Seyfarth&rsquo;s Future Enterprise survey report reflects today&rsquo;s top-of-mind issues for industry leaders across the country.</p> <p> &ldquo;The survey results reflect the sentiment of today&rsquo;s national business community towards the impact of emerging technologies likely to affect their industries, such as robotics, AI, big data and blockchain,&ldquo; said Seyfarth Corporate partner Andrew Sherman.</p> <p> &ldquo;Equipped with a growing economy and another year to digest the impact of the future enterprise, business leaders are more optimistic about impending generational shifts and are even developing a variety of innovative initiatives designed to embrace the ever-changing landscape,&rdquo; said Seyfarth Litigation partner Giovanna Ferrari.</p> <p> From 190-plus respondents, key findings of the Future Enterprise survey include:</p> <ul> <li> <strong>Blossoming Hope</strong>: 84% of respondents are hopeful about future changes to the workplace, compared to 70% in 2017.</li> <li> <strong>Talent Trouble</strong>: More than half (59%) of business leaders surveyed echoed last year&rsquo;s greatest management challenge &mdash; finding and keeping good employees.</li> <li> <strong>Breach Concerns</strong>: 45% of 2018 respondents, as opposed to just 24% in 2017 &mdash; feel cybersecurity will pose their greatest challenge in the next five years.</li> <li> <strong>Bearish on Bitcoin and Blockchain</strong>: Despite the media buzz about bitcoin and blockchain, less than 10% of business leaders are currently using either.</li> <li> <strong>AI Improves Business Operations</strong>: Over the next five years, automation and artificial intelligence will have the biggest impact on business operations and processes, according to 62% of survey participants.</li> </ul> <p> See full survey results and verbatims at <a href="https://www.futureenterprise.com/home#h-survey">https://www.futureenterprise.com/home#h-survey</a>.</p> <p> &ldquo;Last year we broke new ground with the launch of our Future of Work survey, shedding acute insights on how companies are responding to new technology and the demands of a multigenerational and global workforce,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;We were excited to expand this year&rsquo;s survey with additional insight on the management issues that challenge a broader representation of today&rsquo;s industries, and the legal issues impacting business as a whole--from workplace, to real estate, business services and more.&rdquo;</p> <p> <strong>Methodology </strong></p> <p> Seyfarth surveyed in-house legal and business leaders via an online survey for a three-week period between February and March 2018. A total of 193 respondents completed the survey. Respondents included General Counsel, Directors of HR, Associate General Counsel, HR Managers, Presidents, Senior Counsel, VPs, and a number of other roles. Verbatim responses were edited for length and clarity.</p> <p> <strong>About Future Enterprise </strong></p> <p> As emerging technologies such as artificial intelligence, virtual reality, blockchain, and cryptocurrencies become more common and the needs of the massive multigenerational global workforce begin to shift, business and legal leaders must invest in strategies that will support building new capabilities at the cross-section of people power and machine power. Future Enterprise by Seyfarth Shaw is a multi-disciplinary cross-departmental resource for in-house legal and business leaders to navigate issues related to those emerging technologies. It leverages each and every department, practice group and industry group in the firm. <a href="https://www.futureenterprise.com/">https://www.futureenterprise.com/</a>.</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/accvcaward051518 Seyfarth Earns Two 2018 ‘Value Champion’ Awards from Association of Corporate Counsel http://www.seyfarth.com:80/news/accvcaward051518 Tue, 15 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Collaborations with Danaher and 7-Eleven Named Best-In-Class by ACC </span></em></p> <p> The Association of Corporate Counsel (ACC) announced today that Seyfarth Shaw LLP was named a 2018 ACC Value Champion for its collaborative work with Danaher Corporation and 7-Eleven.</p> <p> A component of the ACC Value Challenge, which promotes reconnecting the cost and value of legal services, the ACC Value Champions initiative recognized Seyfarth for two of the 12 law department/law firm collaborations in 2018 that delivered substantial value to their client organizations by cutting spending, improving predictability and achieving better legal outcomes.</p> <p> &ldquo;To be considered best-in-class, a law department must move at the speed of the business client, optimizing every process, controlling every cost, taking advantage of every available piece of data,&rdquo; said Catherine J. Moynihan, associate vice president of legal management services at ACC. &ldquo;These Champions use leading management practices &ndash; writing applications, leveraging AI, and applying sophisticated sourcing and staffing models &ndash; to help the businesses they serve succeed.&rdquo;</p> <p> &ldquo;Working alongside talented in-house teams at Danaher and 7-Eleven, we are honored to be recognized by the Association of Corporate Counsel,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;These Value Champion efforts demonstrate how our focus on applied innovation continues to drive real results for our clients.&rdquo;</p> <p> Seyfarth&rsquo;s 2018 ACC Value Champion collaborations:</p> <ul> <li> <strong>Danaher Corporation + Seyfarth Shaw LLP</strong> &mdash; Built a three-tier service delivery model to optimize efficiency and effectiveness in addressing labor and employment issues. The model includes toolkits on critical areas of the law, best practices, templates and process maps; an internal portal for easy access to the toolkit for Danaher HR clients; and a Global ER4HR Helpline for real-time legal advice on routine labor and employment issues, as well as knowledge management. Through this model, the Danaher labor and employment legal function re-captured over 17 work-weeks of attorney time, yielding a cost savings of almost 60 percent.</li> </ul> <ul> <li> <strong>7-Eleven + Seyfarth Shaw LLP</strong> &mdash; Streamlined 7-Eleven&rsquo;s law department to better support the company&rsquo;s real estate portfolio of more than 10,000 properties. The team applied a value-based sourcing and staffing model, realigning workflow based on type of matter. Through flat fees and lean six sigma process improvement initiatives, 7-Eleven saw outside spend drop, and new store deal fall-through rates plummeted from 25 percent to near 1 percent.</li> </ul> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Communications, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/publications/MA051418-LE Recent New York State and New York City Anti-Sexual Harassment Legislation: Now What? http://www.seyfarth.com:80/publications/MA051418-LE Mon, 14 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong>:&nbsp; <em>New York Governor Andrew M. Cuomo and New York City Mayor Bill de Blasio have each signed new laws designed to combat workplace sexual harassment.&nbsp; Together, these new laws have resulted in sweeping changes to City and State law governing employers in the State and City.</em></p> <p> Both New York State and New York City have enacted comprehensive legislation targeting workplace sexual harassment.&nbsp; On April 12, 2018, Governor Andrew M. Cuomo signed a bill enacting anti-sexual harassment legislation.&nbsp; On May 9, 2018, Mayor Bill de Blasio signed the Stop Sexual Harassment in NYC Act, which is a collection of eleven pieces of legislation.&nbsp; With that law officially on the books, employers in the State and City now know the effective dates of the various provisions the laws enact, with some provisions effective immediately and others taking effect on future dates.&nbsp; Our previous Alerts on these laws, linked <a href="http://www.seyfarth.com/publications/MA040518-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA041718-LE2">here</a>, outlined the key provisions of both the State and City laws.&nbsp; Below is a brief re-cap of the State and City provisions, highlighting their effective dates.</p> <p> <strong>Key Provisions of New York State <a href="https://www.nysenate.gov/legislation/bills/2017/s7507">Law</a></strong></p> <p> <em>Extension of Protections to Non-Employees</em> -- Effective Immediately</p> <p> The law adds Section 296-D to the New York State Executive Law.&nbsp; Section 296-D imposes upon all employers liability for sex-based harassment experienced by non-employees, such as contractors, vendors, or consultants.</p> <p> <em>Prohibition of Mandatory Arbitration Clauses</em> -- Effective July 11, 2018</p> <p> The law adds Section 7515 to the Civil Practice Law and Rules (&ldquo;CPLR&rdquo;).&nbsp; It provides that, &ldquo;except where inconsistent with federal law,&rdquo; employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment.&nbsp; The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.</p> <p> <em>Prohibition of Non-Disclosure Agreements</em> -- Effective July 11, 2018</p> <p> The law adds Section 5-336 to the General Obligations Law and Section 5003-b to the CPLR.&nbsp; These provisions prohibit employers from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality.&nbsp; If the complainant requests confidentiality, the complainant must have 21 days to consider the terms, and 7 days to revoke the agreement.</p> <p> <em>Mandatory Sexual Harassment Prevention Policy and Training Program</em> -- Effective October 9, 2018</p> <p> The law amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.</p> <p> Every employer must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.</p> <p> <em>Prevention of Sexual Harassment By Bidders for State Contracts </em>-- Effective January 1, 2019</p> <p> The law amends the State Finance Law to require that, for every bid made to the State, <em>where competitive bidding is required</em>, the bidder must certify that it has a written sexual harassment policy and provides annual sexual harassment prevention training to all employees.&nbsp; Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.</p> <p> <strong>Key Provisions of Stop Sexual Harassment in NYC Act</strong></p> <p> <em>Expansion of the Statute of Limitations</em> -- Effective Immediately</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3355441&amp;GUID=35B10B56-040F-4219-9764-7C41CEB100D5&amp;Options=&amp;Search=">Act</a> amends section 8-109(e) of the City Code to expand the statute of limitations for claims of gender-based harassment from one year to three years after the alleged harassing conduct occurred.</p> <p> <em>Increased Coverage</em> -- Effective Immediately</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354940&amp;GUID=EE51AA28-8FAA-41FE-B063-BE965FAED119&amp;Options=&amp;Search=">Act</a> amends 8-102(5) of the City Code to expand coverage of sexual harassment cases to employers with fewer than four employees.&nbsp; Previously, only employers with four or more employees were covered by the law.</p> <p> <em>Sexual Harassment Poster and Information Sheet</em> -- Effective September 6, 2018</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354924&amp;GUID=CF950C5F-988C-417F-A720-53451ADA064B&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the City Code to require employers to display conspicuously an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas.&nbsp; Employers will also be required to distribute a sexual harassment information sheet to new employees at the time of hire.&nbsp; The Commission will design and post on its website the poster and information sheet, both of which must be in English and Spanish.</p> <p> <em>Mandatory Anti-Sexual Harassment Training</em> -- Effective April 1, 2019</p> <p> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the Administrative Code of the City of New York to require employers with 15 or more employees to conduct annual, interactive anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees.&nbsp; In order to help employers meet this mandate, the New York City Commission on Human Rights is tasked with creating and posting on its website an online, interactive training module.</p> <p> <strong>What Happens Next?</strong></p> <p> The provisions of most direct impact for employers are those that concern mandatory arbitration clauses, NDAs, policies, and training.&nbsp;</p> <p> As we explained in our previous Alert, the Statewide prohibition on mandatory arbitration clauses for sexual harassment claims may be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act.&nbsp; But sorting out that thorny legal issue could take years.&nbsp; In the meantime, and in anticipation of the July effective date of the prohibition, employers that currently have arbitration agreements, or are considering adopting them, should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.</p> <p> New York employers should also review and revise their standard settlement agreements to ensure that they comply with the State law&rsquo;s new prohibition of certain NDAs.&nbsp;</p> <p> The State law will also likely require employers to make substantial revisions to their existing anti-harassment policies and employers without written policies will need to institute them. In addition, all New York State employers will need to comply with the State law&rsquo;s training requirements.&nbsp; All New York City employers with 15 or more employees will similarly need to comply with <em>both </em>the State <em>and</em> the City training requirements.&nbsp; While there is some overlap between those requirements, the State law has an earlier effective date and certain substantive requirements not mandated by the City law, whereas the City law has certain requirements not necessary under the State law.&nbsp; Compliance with both the training and policy requirements will be easier to assess once the model policy and training modules are published by the applicable agencies.</p> <p> The attorneys at Seyfarth Shaw LLP are available to provide assistance with guidance on both the State and City requirements, including ensuring that employers have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</p> http://www.seyfarth.com:80/publications/WC051418 Ninth Circuit Holds That Evidence Supporting Class Certification Need Not Be Admissible http://www.seyfarth.com:80/publications/WC051418 Mon, 14 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In Sali v. Corona Regional Medical Center, No. 15-5640, 2018 U.S. App. LEXIS 11497 (9th Cir. May 3, 2018), a three judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed a district court&rsquo;s decision to deny class certification to a group of nurses. The Ninth Circuit did so based on its holding that the district court should have considered evidence that would be inadmissible at trial under the Federal Rules of Evidence when it decided class certification. This decision, which is at odds with precedent from the Fifth and Seventh Circuits, will make it more difficult for employers in the Ninth Circuit to resist class certification on evidentiary grounds. As a result, employers in the Ninth Circuit will need to emphasize other arguments in resisting class certification. Further, the plaintiffs&rsquo; class action bar is apt to press similar arguments in other circuits based on the holding in Sali.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/ninth-circuit-holds-that-evidence-supporting-class-certification-need-not-be-admissible/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC051318 White Hot Class Arbitration Issues http://www.seyfarth.com:80/publications/WC051318 Sun, 13 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On April 30, 2018, the U.S. Supreme Court granted a writ of certiorari in Lamps Plus Inc. v. Varela, No. 17-988. This matter, which involves the interpretation of workplace arbitration agreements, has the potential to significantly impact class action litigation. In today&rsquo;s video, Partner Jerry Maatman of Seyfarth Shaw explains the legal framework of this case, as well as its importance for employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/white-hot-class-arbitration-issues/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE051118 Robotics, Automation, and Employee Safety for the Future Employer http://www.seyfarth.com:80/publications/FE051118 Fri, 11 May 2018 00:00:00 -0400 <p> The U.S. Occupational Safety and Health Administration&rsquo;s (OSHA) has been working to address potential safety hazards posed by robotics in the workplace for many years. As early as 1987, in OSHA&rsquo;s Guidelines for Robotics Safety, Directive No. STD 01-12-002, OSHA noted that &ldquo;industrial robots can be used to perform hazardous tasks but in doing so they can create new hazards. With the burgeoning use of robots in industry, it is feared that without adequate guarding and personnel training, injury rates for employees working with robots may increase.&rdquo;<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/11/robotics-automation-and-employee-safety-for-the-future-employer">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM051018-LE The Board Initiates The Internal Process To Consider Rulemaking On The Joint-Employer Standard http://www.seyfarth.com:80/publications/OMM051018-LE Thu, 10 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On Wednesday, May 9, 2018, the </em><em>Office of Information and Regulatory Affairs announced that the NLRB is considering rulemaking to establish the standard for determining joint-employer status under the National Labor Relations Act.&nbsp;</em></p> <p> NLRB Chairman, John F. Ring, announced on Wednesday, May 9, 2018, that the Board is considering rulemaking to address the standard for joint-employer status under the National Labor Relations Act.</p> <p> In the announcement, Chairman Ring <a href="https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201804&amp;RIN=3142-AA13">acknowledged </a>the importance of the Board&rsquo;s joint-employer standard as &ldquo;one of the most critical issues in labor law today.&rdquo;&nbsp; Chairman Ring went on to address some concerns voiced by employers following the Board&rsquo;s ruling in <em>Browning-Ferris</em> and more recently with the Board&rsquo;s <a href="https://www.employerlaborrelations.com/2018/02/27/nlrb-vacates-hy-brand-decision-and-restores-for-now-its-broad-browning-ferris-joint-employer-test/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=c6f75be419-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-c6f75be419-73179549">decision to vacate </a><em>Hy-Brand</em>, while noting the importance of the rulemaking to cure the push and pull of the Board&rsquo;s recent joint-employment decisions:</p> <p style="margin-left:.5in;"> The current uncertainty over the standard to be applied in determining joint-employer status under the Act undermines employers&rsquo; willingness to create jobs and expand business opportunities. In my view, notice-and-comment rulemaking offers the best vehicle to fully consider all views on what the standard ought to be. I am committed to working with my colleagues to issue a proposed rule as soon as possible, and I look forward to hearing from all interested parties on this important issue that affects millions of Americans in virtually every sector of the economy.</p> <p> Indeed, as Seyfarth has covered <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA082715LE.pdf">previously</a>, under the existing joint-employer standard the NLRB finds that two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law; and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the Board presently will&ndash;among other factors&ndash;consider whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. This &nbsp;approach, first arrived at by the Board in 2015, vastly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.</p> <p> While the Board rarely has used rulemaking to establish standards under the NLRA, the importance of the joint-employer standard to businesses&rsquo; ability to function in the modern economy makes the issue a prime candidate for this seldom exercised power.</p> <p> Any proposed rule requires approval by a majority of the Board, followed by the issuance of a Notice of Proposed Rulemaking. The Chairman&rsquo;s proposal does not reflect the participation of the two Democratic Board Members, Members Pearce and McFerran.</p> <p> Employers should be aware of this beneficial opportunity to affect potential joint-employment policy and be prepared to offer input on any proposed rule.</p> http://www.seyfarth.com:80/news/rechtinlaw360051018 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360051018 Thu, 10 May 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in a May 10 story from Law360, &quot;Calif. Jury Says Emerson Owes BladeRoom $30M For IP Theft,&quot; on how a California federal jury held that American manufacturing giant Emerson Electric Co. owes U.K.-based BladeRoom Group Ltd. $30 million for stealing trade secrets to build a massive Facebook data center. Rechtin said that that there is a lot of money flying around in the data center industry, with companies trying to differentiate themselves based on their technology.</p> http://www.seyfarth.com:80/news/billowsbna051018 Tracy Billows quoted in Bloomberg BNA http://www.seyfarth.com:80/news/billowsbna051018 Thu, 10 May 2018 00:00:00 -0400 <p> Tracy Billows was quoted in a May 10 story from Bloomberg BNA, &quot;Temp Agencies Moving to Comply With NJ Paid Leave Law.&quot; Billows said that the New Jersey paid leave bill adds an extra layer of management here in terms of that time off for temp agencies.</p> http://www.seyfarth.com:80/news/suchyta050918 Former AccessHealth General Counsel Joins Seyfarth in Houston http://www.seyfarth.com:80/news/suchyta050918 Wed, 09 May 2018 00:00:00 -0400 <p> <em><span style="font-size:14px;">Seyfarth Continues Expansion of Region&rsquo;s Leading Health Care Practice </span></em></p> <p> Seyfarth Shaw LLP announced today the arrival of Janice Suchyta to the Corporate department in Houston, who recently served as general counsel and chief strategy officer of AccessHealth, a federally qualified not-for-profit community health center.</p> <p> In this role, Suchyta oversaw all legal and compliance matters for 16 locations, including four clinical sites, staffed by more than 200 employees serving 27,000 patients each year. Her responsibilities included regulatory oversight of federal and state funding sources, and oversight of AccessHealth&rsquo;s data security and privacy; risk management; regulatory compliance, including Medicare/Medicaid reimbursement; contractual relationships with outside vendors, hospitals, ACOs, and insurance companies.</p> <p> &ldquo;Janice brings a unique and extensive in-house experience to Seyfarth as we expand what is one of the largest health care practices in the region,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. The <em>Houston Business Journal </em>recently ranked Seyfarth as the <a href="https://www.bizjournals.com/houston/subscriber-only/2017/12/01/largest-houston-area-health-care-law.html">second-largest health care practice</a>.</p> <p> &ldquo;As a former general counsel and chief strategy officer, Janice is a leading authority on corporate compliance and governance in the health care industry. She will be a tremendous asset as we guide clients through the demands of today&rsquo;s complex health care landscape at both the federal and state levels,&rdquo; said Steven Meier, chair of Seyfarth&rsquo;s Corporate department.</p> <p> Suchyta also serves as a frequent lecturer at University of Houston College of Nursing, speaking on health law policy trends and issues affecting the health care delivery model and how these trends will impact future nursing professionals.</p> <p> Throughout her career, Suchyta has practiced privately and also served as director of operations for Bashen Corporation, the national human resources consulting firm based in Houston, with a focus on Equal Employment Opportunity (&ldquo;EEO&rdquo;) compliance services. She received her J.D. from the University of Detroit-Mercy School of Law and earned her B.A. from the University of Michigan.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/resurveyforbes050918 Seyfarth's Real Estate Market Sentiment Survey referenced in Forbes http://www.seyfarth.com:80/news/resurveyforbes050918 Wed, 09 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a May 9 story from Forbes, &quot;These Real Estate Segments Could Benefit From The Good Jobs Numbers.&quot; Commercial real estate executives see rising interest rates as their greatest concern for the industry, according to Seyfarth&#39;s survey released early this year. You can read the <a href="https://www.forbes.com/sites/elyrazin/2018/05/09/good-jobs-numbers-signal-extended-economic-recovery-and-these-real-estate-segments-could-benefit/#35b349746ee8">full article here</a>.</p> http://www.seyfarth.com:80/news/farabowlaw360050918 Sara Beiro Farabow quoted in Law360 http://www.seyfarth.com:80/news/farabowlaw360050918 Wed, 09 May 2018 00:00:00 -0400 <p> Sara Beiro Farabow was quoted in a May 9 story from Law360, &quot;Construction Legislation And Regulation To Watch.&quot; Farabow said that Trump&rsquo;s 25 percent tariff on foreign steel affects the whole food chain from property owners down to the lowest-level subcontractors.</p> http://www.seyfarth.com:80/news/johnsonlaw360050918 Randel Johnson quoted in Law360 http://www.seyfarth.com:80/news/johnsonlaw360050918 Wed, 09 May 2018 00:00:00 -0400 <p> Randel Johnson was quoted in a May 9 story from Law360, &quot;Joint Employer Plan, OT Highlight Trump&#39;s Labor Agenda,&quot; on how the National Labor Relations Board plans to issue a rule setting out a test for when affiliated businesses are joint employers and the U.S. Department of Labor will revise how it defines workers&rsquo; base pay when calculating overtime. Johnson said that the Fair Labor Standards Act requires employers to pay overtime-eligible workers at one-and-a-half times their regular rate when they work more than 40 hours, though factors like bonuses complicate deciding what a worker&rsquo;s regular rate is.</p> http://www.seyfarth.com:80/news/liesri050818 Mark Lies quoted in Risk & Insurance http://www.seyfarth.com:80/news/liesri050818 Tue, 08 May 2018 00:00:00 -0400 <p> Mark Lies was quoted in a May 8 story from Risk &amp; Insurance, &quot;11 Critical Risks Facing the Construction Industry,&quot; on Contractual Risk. Sometimes the wording in a contract drawn up between a subcontractor and a general contractor may state that the subcontractor waives its right to the exclusive remedy protections of the Workers&rsquo; Compensation Act. This could then expose the subcontractor to a personal injury claim by its own employee, said Lies. You can read the <a href="http://riskandinsurance.com/11-critical-risks-facing-the-construction-industry/">full article here</a>.</p> <p> &nbsp;</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/morashrm050818 Jennifer Mora authored an article in SHRM http://www.seyfarth.com:80/publications/morashrm050818 Tue, 08 May 2018 00:00:00 -0400 <p> Jennifer Mora authored a May 8 article in SHRM, &quot;Confused About Background Checks in California? Read This.&quot; You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/background-checks-employment-screening-california.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM050818-EB DOL Issues Temporary Enforcement Policy for Fiduciary Advice Rule http://www.seyfarth.com:80/publications/OMM050818-EB Tue, 08 May 2018 00:00:00 -0400 <div> On May 7, 2018, the Department of Labor (the &ldquo;DOL&rdquo;) issued a temporary non-enforcement policy regarding its investment advice fiduciary regulation (the &ldquo;Fiduciary Rule&rdquo;) in Field Assistance Bulletin 2018-02. This guidance was issued in response to the expected action by the Court of Appeals for the Fifth Circuit to implement its opinion vacating the Fiduciary Rule and its related exemptions. <a href="http://www.seyfarth.com/publications/OMM032318-EB">Click here</a> for our prior alert discussing the Fifth Circuit&rsquo;s decision.</div> <div> &nbsp;</div> <div> The DOL stated that from June 9, 2017, until additional guidance is issued, it will not pursue any actions &ldquo;against investment advice fiduciaries who are working diligently and in good faith to comply with the impartial conduct standards for transactions that would have been exempted&rdquo; in the Best Interest Contract Exemption or the Principal Transactions Exemption. Further, the DOL will not treat such investment advice fiduciaries as violating the prohibited transaction rules.&nbsp; Investment advice fiduciaries may rely on other available exemptions not affected by the Fifth Circuit&rsquo;s decision, but they are not required to do so.</div> <div> &nbsp;</div> <div> Finally, the DOL explained that it is continuing to consider what other types of temporary or permanent prohibited transaction relief is needed for investment advice fiduciaries. Unfortunately, the guidance does not provide any insight into how the DOL will approach the definition of investment advice fiduciary in the future. This is especially unclear given that the Securities and Exchange Commission released two proposed rules on April 18, 2018, designed to clarify the fiduciary duties that an investment adviser owes its clients under the Investment Advisers Act of 1940.</div> http://www.seyfarth.com:80/publications/mancinowm050718 Douglas Mancino authored an article in Wealth Management http://www.seyfarth.com:80/publications/mancinowm050718 Mon, 07 May 2018 00:00:00 -0400 <p> Douglas Mancino authored a May 7 article in Wealth Management, &quot;Achieving Philanthropic Goals When Selling a Business,&quot; discussing three case studies that illustrate unique potential opportunities. You can read the <a href="http://http://www.wealthmanagement.com/high-net-worth/achieving-philanthropic-goals-when-selling-business">full article here.</a></p> http://www.seyfarth.com:80/publications/MA050718-LE If Pain, Yes Gain—Part XLVII: New York and New Jersey Paid Sick Leave in Full Bloom http://www.seyfarth.com:80/publications/MA050718-LE Mon, 07 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>: </strong><em>As New York City&rsquo;s amended paid sick leave ordinance, now called the Earned Safe and Sick Time Act, went into effect on May 5, just days earlier New Jersey officially became home to the tenth statewide paid sick leave law in the nation.&nbsp; Elsewhere in New York, Westchester and Albany counties have taken steps toward passing local paid sick leave ordinances.</em></p> <p> Spring is in full bloom and so is paid sick leave in New York and New Jersey.&nbsp; Here&rsquo;s the latest:</p> <p> <strong>(1) New Jersey</strong></p> <p> On May 2, 2018, Governor Phil Murphy signed into law the New Jersey Paid Sick Leave Act (&ldquo;NJ PSL&rdquo;), making New Jersey the tenth state with a paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; The New Jersey Assembly passed the NJ PSL bill on March 26, 2018 and the Senate followed suit on April 12, 2018.&nbsp; The NJ PSL law goes into effect on the 180th day following enactment, i.e., October 29, 2018.&nbsp; At that time, the NJ PSL law will preempt the state&rsquo;s 13 existing and any future municipal paid sick leave ordinances.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> The NJ PSL law will require covered employers to allow eligible employees to accrue paid sick leave at least as fast as one hour of sick leave for every 30 hours worked, up to 40 hours per year. Employers will not be required to permit employees to use more than 40 hours of paid sick leave in any benefit year or carry over more than 40 hours of unused sick leave to the following benefit year. Although employers may frontload 40 hours of sick leave on the first day of the benefit year, instead of allowing employees to accrue the leave, the law does not allow employers to adopt a &ldquo;use it or lose it&rdquo; approach.&nbsp; If an employer chooses to frontload sick leave, it must either <strong>(1)</strong> pay the employee for the full amount of unused earned sick leave in the final month of the benefit year, or <strong>(2)</strong> permit the employee to carry over unused sick leave to the next benefit year.</p> <p> For more information on the New Jersey PSL law&rsquo;s substantive requirements, please see our prior alerts <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA032818LE.pdf">here</a> and <a href="http://www.seyfarth.com/publications/MA041318-LE">here</a>.</p> <p> <strong>(2) New York </strong></p> <p> (A) <u>New York City</u></p> <p> New York City&rsquo;s paid sick leave ordinance has been in effect since April 2014. The ordinance, as amended, is now called the Earned Safe and Sick Time Act (&ldquo;ESSTA&rdquo;), and became effective on May 5, 2018. &nbsp;Among other developments, ESSTA allows eligible employees to use paid leave for certain absences where the employee or his/her covered family member is a victim of a family offense matter, sexual offense, stalking, or human trafficking.&nbsp; ESSTA also expands the definition of covered family member for both sick and safe time absences.</p> <p> In the final hours before the May 5 effective date, NYC released an <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/about/PaidSickLeave-MandatoryNotice-English.pdf">updated model paid sick leave notice</a>, which employers can use to satisfy ESSTA&rsquo;s notice obligations. &nbsp;Covered New York City employers must provide employees hired on or after May 5 with notice of their paid safe and sick time rights under ESSTA. Covered employers also must provide the updated paid safe and sick time notice to existing employees within 30 days of ESSTA&rsquo;s effective date, i.e., June 4, 2018.</p> <p> For more information regarding ESSTA, please see our prior alerts <a href="http://www.seyfarth.com/publications/OMM11917-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA102017-LE">here</a>.</p> <p> (B) <u>Westchester and Albany Counties</u></p> <p> In February 2018, Westchester re-introduced the Employee Earned Paid Sick Time (&ldquo;EEPST&rdquo;) bill, which was introduced last year but failed to pass. With a political shift in the Westchester legislature, Westchester may become the second jurisdiction in New York State to require paid sick leave.</p> <p> The EEPST bill, if passed, would provide most employees, as defined in section 190(2) of the New York Labor Law, who work in Westchester County for more than 80 hours in a calendar year, with paid sick leave.&nbsp; Eligible employees would begin to accrue sick leave at the start of employment or 90 days after the ordinance goes into effect, whichever is later. Employers would need to allow accrual at least as fast as one hour of paid sick leave for every 30 hours worked. Covered employers with five or more employees would need to provide up to 40 hours of <u>paid</u> sick leave per year, while employers with fewer than five employees would need to provide up to 40 hours of <u>unpaid</u> sick leave per year. Although employers may frontload sick leave instead of allowing employees to accrue it, it appears that frontloading sick leave would not get rid of employers&rsquo; carryover obligations.&nbsp; Employees would be permitted to carry over any earned but unused time at year-end, unless the employer pays an employee for the unused time <u>and</u> frontloads sick leave at the beginning of the subsequent year.</p> <p> We will continue to monitor and provide updates on EEPST bill developments.</p> <p> Similarly, Albany County recently introduced paid sick leave legislation, called the Albany County Paid Sick Leave Act (&ldquo;PSLA&rdquo;), that would require employers in the County to provide certain employees with paid sick leave. &nbsp;Under the current draft PSLA, eligible employees would be entitled to accrue one hour of sick leave for every 30 hours worked, with accrual and usage thresholds varying based on the size of the employer as follows:</p> <ul> <li> Employers with ten or more employees would need to allow employees to earn and use up to 72 hours of <u>paid</u> sick leave in a year;</li> <li> Employers with fewer than ten but more than five employees would need to allow employees to earn and use up to 40 hours of <u>paid</u> sick leave in a year; and</li> <li> Employers with five or fewer employees would need to allow employees to earn and use (1) up to 40 hours of <u>unpaid</u> sick leave during the first year after the PSLA goes into effect, (2) up to 24 hours of <u>paid</u> sick leave and 16 hours of <u>unpaid</u> sick leave during the second year after the PSLA goes into effect; (3) up to 32 hours of <u>paid</u> sick leave and 8 hours of <u>unpaid</u> sick leave during the third year after the PSLA goes into effect; and (4) 40 hours of <u>paid</u> sick leave each year thereafter.&nbsp; Employees would need to accrue paid sick leave prior to accruing unpaid sick leave, and would be entitled to decide whether to use paid or unpaid sick leave for a particular absence.</li> </ul> <p> Although employers may frontload sick leave, as an alternative to accrual, it appears that frontloading the leave would not get rid of the employers&rsquo; carryover obligations. Employers covered by the PSLA would need to allow employees to carry over any earned but unused sick leave at year-end. Like the proposed Westchester County EEPST, the current draft PSLA states that no carryover is required if the employer pays an employee for unused time <u>and</u> frontloads a sufficient amount of sick leave at the beginning of the subsequent year.</p> <p> In light of these recent New York and New Jersey paid sick leave developments, employers should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and sick leave requirements generally.</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The nine states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>; and (9) <a href="http://www.seyfarth.com/publications/MA020918-LE">Maryland</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The Maryland statewide paid sick leave law went into effect on February 11, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The New Jersey municipal paid sick leave ordinances that will be preempted when the NJ PSL law goes into effect are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; (8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth; and (13) New Brunswick.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/FE050718 Store Politics http://www.seyfarth.com:80/publications/FE050718 Mon, 07 May 2018 00:00:00 -0400 <p> Today, far fewer businesses follow Jordan&rsquo;s example. A few have overtly aligned with a political philosophy. Others have taken public stands on specific issues, such as the hundreds of corporations and employer organizations who filed an amicus brief asking the Supreme Court to strike down bans on same-sex marriage. Still others have made arguably &ldquo;political&rdquo; choices regarding company policies, like retailers who recently stopped selling certain semi-automatic rifles&mdash;a decision that many interpreted as supporting gun control efforts.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/7/future-employer-store-politics">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM050718-LIT FDA Menu Labeling Rules to Unfreeze http://www.seyfarth.com:80/publications/OMM050718-LIT Mon, 07 May 2018 00:00:00 -0400 <div> Certain restaurants, grocers, and other food establishments will soon be required to comply with the Food and Drug Administration&rsquo;s (&ldquo;FDA&rdquo;) menu labeling rules. The FDA previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining out. Last year, the FDA extended the compliance deadline to <strong>May 7, 2018</strong>.&nbsp;</div> <div> &nbsp;</div> <div> The prior compliance extension was in response, in part, to a last minute petition by a group of major grocers and retailers who argued that the menu labeling rules were overly broad and encompassed too many businesses, did not properly clarify what constitutes a &ldquo;menu,&rdquo; and were expected to cause significant costs for compliance.</div> <div> &nbsp;</div> <div> In February 2018, the House passed the <a href="https://www.gpo.gov/fdsys/pkg/BILLS-115hr772rh/pdf/BILLS-115hr772rh.pdf">Common Sense Nutrition Disclosure Act (H.R. 772)</a>, which would ease compliance under the menu labeling rules. For example, food establishments that provide entrees in multiple varieties (e.g., bowls, sandwiches, or salads) would only need to disclose the calories per serving or based on how the item is commonly ordered. The bill would also remove any criminal penalties, preempt civil litigation and any state menu labeling laws, and allow violators 90 days to cure any noncompliance under the menu labeling rules. The bill would further allow food establishments whose customers primarily off-site (e.g., online) to make the required disclosures in a remote location only (e.g., online menu) and remove the requirement for additional on-site, written disclosures.&nbsp; &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> H.R. 772 still needs to pass the Senate, and it does not appear that any further extensions will be granted before the May 7, 2018, compliance deadline. Indeed, it appears the Trump administration has <a href="https://www.forbes.com/forbes/welcome/?toURL=https://www.forbes.com/sites/phillempert/2017/11/08/trump-administration-supports-obama-era-menu-labeling-and-the-industry-is-blindsided">no plans to intervene</a> with the rollout of the menu labeling rules.&nbsp;</div> <div> &nbsp;</div> <div> With the compliance date fast approaching, companies that are subject to the menu labeling rules should ensure their menu boards and menus comply with the menu labeling rules. The following is a list of the key requirements under the rules:</div> <div> &nbsp;</div> <ol> <li> Applies to all restaurants and similar retail food establishments nationwide with (a) 20 or more locations, (b) doing business under the same name, and (c) offering for sale substantially the same menu items (similar but separate rules have also been enacted for food sold from vending machines).&nbsp;</li> <li> All menu boards must clearly and conspicuously contain the following two statements: (a) &ldquo;2,000 calories a day is used for general nutrition advice, but calorie needs vary,&rdquo; and &ldquo;Additional written nutrition information available upon request.&rdquo;&nbsp;&nbsp;</li> <li> &ldquo;Menu boards&rdquo; subject to these disclosure requirements are defined as all primary writings from which the consumer makes his or her order sections (e.g., in-store menu boards, Internet menus, takeaway menus).</li> <li> Calorie information must be clearly and conspicuously displayed next to the name or price of &ldquo;standard menu items&rdquo; (i.e., routinely included on menu or offered, excluding condiments, daily specials, temporary menu items, custom order, and customary market test foods, and food offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days to test consumer acceptance), but no specific color, font size, or contrasting background is required.</li> <li> Calorie information must be declared on signs adjacent to foods on display and self-serve foods (e.g. salad bars, buffets) that are standard menu items.&nbsp;</li> <li> When a menu or menu board lists flavors or varieties for an entire individual variable menu item, the calories must typically be declared separately for each listed flavor or variety, or flavors and varieties may be grouped together as a single listing if they have the same calorie content.</li> <li> If the menu or menu board does not list flavors or varieties, and only includes a general description of the variable menu item (e.g., &ldquo;soft drinks&rdquo;), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., &ldquo;150/200 calories&rdquo;), or as a range where more than two options are available (e.g., &ldquo;100-250 calories&rdquo;).</li> <li> The following written nutrition information must be available to consumers upon their request: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.</li> <li> Finally, &ldquo;[w]hen a standard menu item, including a beverage, is listed on a menu or menu board by name with different sizes, or each size has its own price, each size would constitute a standard menu item rather than a different flavor, variety, or combination, and each standard menu item must include a calorie declaration.&rdquo;</li> <li> A covered establishment must have a reasonable basis for its nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined.&nbsp;</li> <li> Violations may result in enforcement actions for injunctive relief and criminal and civil penalties.</li> </ol> <div> &nbsp;</div> http://www.seyfarth.com:80/news/fritzct050718 Kevin Fritz quoted in the Chicago Tribune http://www.seyfarth.com:80/news/fritzct050718 Mon, 07 May 2018 00:00:00 -0400 <p> Kevin Fritz was quoted in a May 7 story from the Chicago Tribune, &quot;Trump hotel in Chicago sued for alleged ADA violations.&quot; Fritz said that the problem is that when you settle one case, there is a business next door. You can read the <a href="http://www.chicagotribune.com/business/ct-biz-trump-hotel-chicago-ada-lawsuit-20180507-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/launeyvillamornocalrecord050618 Kristina Launey and Myra Villamor quoted in the Northern California Record http://www.seyfarth.com:80/news/launeyvillamornocalrecord050618 Sun, 06 May 2018 00:00:00 -0400 <p> Kristina Launey and Myra Villamor was quoted in a May 6 story from the Northern California Record, &quot;&#39;Tsunami&#39; of ADA lawsuits regarding website accessibility.&quot; Launey and Villamor said that lawsuits filed under California&#39;s Fair Employment Act is an extension of the tsunami of website accessibility demand letters and lawsuits pursued under Title III, involving the same technological and other issues, as well as the same plaintiffs and plaintiffs&rsquo; attorneys. You can read the <a href="https://norcalrecord.com/stories/511408438-tsunami-of-ada-lawsuits-regarding-website-accessibility">full article here</a>.</p> http://www.seyfarth.com:80/news/payequityxperthr050418 Seyfarth's “Trends and Developments in Pay Equity Litigation” report referenced in Xpert HR http://www.seyfarth.com:80/news/payequityxperthr050418 Fri, 04 May 2018 00:00:00 -0400 <p> Seyfarth&#39;s &ldquo;Trends and Developments in Pay Equity Litigation&rdquo; report was referenced in a May 4 story from Xpert HR, &quot;Pay Equity Efforts Gain Momentum.&quot; Seyfarth&#39;s report found that more states are passing or strengthening their equal pay laws. You can read the <a href="https://www.xperthr.com/blog/2018/05/04/12682/?cmpid=SOC%7CUSAG%7CHUGMN-2017-0203-2017_twitter_generic_tracking">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC050418 Empire State Employer Emerges Victorious In Equal Pay Act Lawsuit http://www.seyfarth.com:80/publications/WC050418 Fri, 04 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In an Equal Pay Act collective action lawsuit brought by female school crossing guards against the City of New York, who alleged they were paid less than male traffic enforcement agents, a federal district court in New York recently granted the City of New York&rsquo;s motion for summary judgment, finding that significant differences between the two positions warranted the pay differential.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/05/empire-state-employer-emerges-victorious-in-equal-pay-act-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM050318-EB Relief Provided for 2018 Family HSA Contribution Limit http://www.seyfarth.com:80/publications/OMM050318-EB Thu, 03 May 2018 00:00:00 -0400 <div> On April 26, 2018 the IRS issued Revenue Procedure 2018-27 providing transition relief for the 2018 limit on Health Savings Account (&ldquo;HSA&rdquo;) contributions for family coverage.&nbsp; The guidance allows individuals to continue to treat the family coverage limit as $6,900 for 2018.</div> <div> &nbsp;</div> <div> As previously explained in our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM040518EB.pdf">One Minute Memo</a>, in March 2018, the IRS retroactively reduced the amount of contributions permitted by account-holders with family coverage from $6,900 to $6,850.&nbsp; This $50 mid-year reduction caused both administrative burden for employers and possible negative tax ramifications for employees who relied on the earlier announced limit.&nbsp;</div> <div> &nbsp;</div> <div> Under the guidance, if an individual receives a distribution from an HSA of an excess contribution (with earnings) based on the lower $6,850 limit announced in March, then the employee has the following options:</div> <div> &nbsp;</div> <ol> <li> <strong>Repay</strong></li> </ol> <ul> <li> Repay the distribution to the HSA by April 15, 2019; and</li> <li> Treat the distribution as a mistake under IRS Notice 2004-50, meaning the repayment is not included in the employee&rsquo;s gross income and is not subject to additional taxes applicable to repayments.&nbsp;&nbsp;</li> </ul> <div> If repaid, an employer does not need to report the distribution on Form 1099-SA or Form 8889.</div> <ol start="2"> <li> <strong>Not Repay</strong></li> </ol> <ul> <li> Not repay the distribution to the HSA, but treat the distribution as an excess contribution which was returned before the due date of the individual&rsquo;s tax return (provided the distribution is received on or before the due date); and&nbsp;&nbsp;</li> <li> The excess contribution will not be included in gross income or subject to the 20% excise tax.</li> </ul> <div> However, if the distribution from the HSA was attributable to employer contributions (including employee contributions through a cafeteria plan), and the employer treats $6,900 as the limit for 2018, then the amount distributed as an excess contribution will be included in income and be subject to the 20% excise tax unless the amount distributed is used to pay qualified medical expenses.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Employers with high deductible health plans will want to inform their employees about the updated 2018 HSA family contribution limit.&nbsp; Employees who previously reduced their 2018 HSA family contribution limit may want to increase their election for the new $6,900 limit.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA050318-LE New Jersey Governor Signs Executive Order Establishing Employee Misclassification Task Force http://www.seyfarth.com:80/publications/MA050318-LE Thu, 03 May 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On May 3, 2018, Governor Phil Murphy signed an Executive Order establishing the Task Force on Employee Misclassification, which is effective immediately.&nbsp; At the signing in Edison, New Jersey, Governor Murphy explained that this measure is intended to crack down on &ldquo;unscrupulous contractors who engage in 1099 fraud.&rdquo;&nbsp; The Governor&rsquo;s message: &ldquo;If you practice 1099 fraud, we&rsquo;re either going to bring you into compliance or we&rsquo;re going to put you out of business.&rdquo;&nbsp;</em></p> <p> Less than 24 hours after New Jersey became the tenth state to have a statewide paid sick leave law, Governor Murphy signed an <a href="http://nj.gov/infobank/eo/056murphy/pdf/EO-25.pdf">Executive Order</a> establishing the Task Force on Employee Misclassification.&nbsp; The Task Force is comprised of 12 members from various New Jersey administrative agencies, and is New Jersey&rsquo;s latest measure aimed at increasing employee protections in what the Governor described as an ongoing effort to make New Jersey a model for the nation, both on the issue of misclassification and other employee protections.&nbsp;</p> <p> Just prior to signing the Executive Order, Governor Murphy explained that his team had looked to other states with similar task forces, such as New York and Massachusetts.&nbsp; He also clarified that the purpose in creating the Task Force is not necessarily to create &ldquo;more or better laws,&rdquo; but rather to enforce existing laws.&nbsp; He was quick to add, though, that although the intention is not to create new law, if that&rsquo;s what it takes, &ldquo;we&rsquo;re open to that.&rdquo;</p> <p> The Executive Order charges the Task Force with:</p> <p style="margin-left: 40px;"> a. Examining and evaluating existing misclassification enforcement by executive departments and agencies;</p> <p style="margin-left: 40px;"> b. Developing best practices to increase coordination of information and efficient enforcement;</p> <p style="margin-left: 40px;"> c. Developing recommendations to foster compliance, including education efforts; and</p> <p style="margin-left: 40px;"> d. Reviewing existing laws and procedures related to misclassification.</p> <p> <strong><u>Employer Outlook</u></strong></p> <p> Companies who engage independent contracts in New Jersey should heed this as a strong message.&nbsp; Governor Murphy made two things clear about the creation of this Task Force:</p> <p style="margin-left: 40px;"> 1. New Jersey will be looking to &ldquo;put some runs on the board early.&rdquo;&nbsp; He stressed that he is looking to show his commitment to addressing misclassification not just in words, but in action.&nbsp; He added that he is looking for some early successes equivalent to a &ldquo;98-mile-an-hour fastball just below the chin&rdquo; to make a statement demonstrating the strength of this Task Force.</p> <p style="margin-left: 40px;"> 2. Governor Murphy stressed that this measure is intended to help New Jersey workers.&nbsp; But, significantly, he is also looking at this as a way for the State to make money.</p> <p> Any company with independent contractors in New Jersey should review its classification of workers to ensure compliance.&nbsp; In the meantime, we will continue coverage of New Jersey&rsquo;s legislative and executive initiatives.</p> http://www.seyfarth.com:80/publications/WSE050318 All State Plan Employers are Now Required to Electronically File 2017 Form 300A Data http://www.seyfarth.com:80/publications/WSE050318 Thu, 03 May 2018 00:00:00 -0400 <p> Seyfarth Synopsis: To be compliant, employers in State Plans that have not yet adopted OSHA&rsquo;s new rule for electronic filing of injury data for Calendar Year 2017, are required to file in the federal OSHA database.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/all-state-plan-employers-are-now-required-to-electronically-file-2017-form-300a-data/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE050318 Business Immigration: Future Enterprise vs. a Reactionary Administration http://www.seyfarth.com:80/publications/FE050318 Thu, 03 May 2018 00:00:00 -0400 <p> Last week I had the pleasure of attending the Corporate Legal Operations Consortium Annual Conference, which assembled forward-thinking thought leaders in legal operations who embrace the adoption of technology, talent with diverse skill sets, and alternative work arrangements to streamline the delivery of services. Employers across most industries are also adopting the new realities of human capital and technology in order to keep abreast of changing client demands.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/3/business-immigration-future-enterprise-vs-a-reactionary-administration">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/whitmanwexlermhl050318 Robert Whitman and Howard Wexler's blog referenced in Material Handling & Logistics http://www.seyfarth.com:80/news/whitmanwexlermhl050318 Thu, 03 May 2018 00:00:00 -0400 <p> Robert Whitman and Howard Wexler&#39;s blog, &quot;NY Attorney General &ldquo;PAID&rdquo; Lip Service to DOL Initiative,&quot; was referenced in a May 3 story from Material Handling &amp; Logistics, &quot;Labor Department Pay Violation Program Becomes More Problematic,&quot; on how the New York attorney general statement also suggest challenges from states may grow. Whitman and Wexler warn that his comments may cause employers to think twice before joining PAID out of fear of putting themselves on the radar of aggressive state and local government enforcement agencies. You can read the <a href="http://www.mhlnews.com/labor-management/labor-department-pay-violation-program-becomes-more-problematic">full article here</a>.</p> http://www.seyfarth.com:80/news/casciarishrm050318 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm050318 Thu, 03 May 2018 00:00:00 -0400 <p> Joan Casciari was quoted in a May 3 story from SHRM, &quot;Ensure FMLA Medical Certifications Are Complete and Authentic,&quot; on how forged certifications bedevil employers. Casciari said that while the provider might require the employee to sign a Health Insurance Portability and Accountability Act authorization, the employee must cooperate with the authentication process. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/fmla-complete-and-authentic-certifications.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360050218 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360050218 Wed, 02 May 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a May 2 story from Law360, &quot;High Court To Mull Class Arbitration In Data Breach Suit,&quot; on the U.S. Supreme Court recent decision to wade into a data breach lawsuit that hinges on what arbitration agreements have to say for workers to be able to bring class arbitration claims, giving the justices a chance to clarify the high court&#39;s 2010 Stolt-Nielsen ruling and tackle an issue with major implications for employers looking to fend off class actions. Maatman said that the case presents the justices with an opportunity to fill in a gap in the court&rsquo;s views on class arbitration left open by Stolt-Nielsen.</p> http://www.seyfarth.com:80/publications/TS050218 Democratic U.S. Senators Seek to Abolish Non-Compete Agreements http://www.seyfarth.com:80/publications/TS050218 Wed, 02 May 2018 00:00:00 -0400 <p> Democratic U.S. Senators Elizabeth Warren (D-MA), Chris Murphy (D-Conn.), and Ron Wyden (D-Ore.) introduced legislation on April 26, 2018, entitled the Workforce Mobility Act (&ldquo;WMA&rdquo;). Although the text of the WMA is not yet available, according to various press releases, it would prohibit the use of covenants not to compete nationwide. In Senator Warren&rsquo;s press release announcing her co-sponsorship of the bill, Senator Warren stated that &ldquo;[t]hese clauses reduce worker bargaining power, stifle competition and innovation, and hurt Americans striving for better opportunities. I&rsquo;m glad to join Senator Murphy to put an end to these anti-worker, anti-market agreements.&rdquo;<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/05/articles/legislation-2/democratic-u-s-senators-seek-to-abolish-non-compete-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/briggssmarttalkhr050118 Ben Briggs authored an article in SmartTalkHR http://www.seyfarth.com:80/publications/briggssmarttalkhr050118 Tue, 01 May 2018 00:00:00 -0400 <p> Ben Briggs authored a May 1 article in SmartTalkHR, &quot;Best Legal Practices for Separation Agreements During Layoffs.&quot; You can read the <a href="https://www.risesmart.com/blog/best-legal-practices-separation-agreements-during-layoffs?utm_campaign=2017.4.1_OT_Thought_Leader_Blog&amp;utm_content=70815830&amp;utm_medium=social&amp;utm_source=twitter">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM050118-LE High Court Applies “ABC” Test When Assessing Independent Contractor Status http://www.seyfarth.com:80/publications/OMM050118-LE Tue, 01 May 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> The California Supreme Court, in Dynamex Operations v. Superior Court, held that &ldquo;engage, suffer or permit to work&rdquo; determines employee status for Wage Order claims, requiring a defendant disputing employee status to prove</em><em> (A) the </em><em>worker is free from control and direction of the hirer in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity&rsquo;s business; and (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.</em></p> <p> <strong>The Trial Court Decision</strong></p> <p> Delivery drivers Charles Lee and Pedro Chevez sued Dynamex Operations West for unlawfully classifying them and 1,800 other drivers as independent contractors. To argue that they were really employees, they cited California&rsquo;s Industrial Welfare Commission Wage Order No. 9. Their motion for class certification argued that, under <em>Martinez v. Combs</em> (2010), they were employees in that Dynamex knew that they provided services and had negotiated their rates. The trial court certified a class. Dynamex petitioned the Court of Appeal for a writ of mandate.</p> <p> <strong>The Appellate Court Decision</strong></p> <p> The Court of Appeal granted the petition in part, agreeing with Dynamex that the common law definition of employment should control any claim that fell outside the scope of Wage Order No. 9 (such as a claim for reimbursement of employee expenses), and that for any such claim the trial court should reevaluate whether class certification is warranted by applying the common law. That test would examine Dynamex&rsquo;s right to exercise control over the contractor&rsquo;s manner and means of providing services. As to Wage Order-related claims, though, the Court of Appeal denied the petition, determining that the trial court had correctly used the broader &ldquo;engage, suffer, or permit to work&rdquo; standard.</p> <p> <strong>The Issue Before the Supreme Court</strong></p> <p> In reviewing the case, the California Supreme Court defined the issue on appeal as whether, in a misclassification case, a class may be certified based on the expansive definition of employee as outlined in the Wage Order language construed in <em>Martinez v. Combs</em>, or on the basis of the common law test for employment set forth in <em>S. G. Borello &amp; Sons, Inc. v. Department of Industrial Relations</em> (1989). In short, the Supreme Court focused on whether to continue using the <em>Borello </em>test and on what test, if any, to apply instead.</p> <p> The Wage Order definition of employment is broader than the common law&rsquo;s. The Wage Orders define &ldquo;employ&rdquo; broadly to mean &ldquo;to engage, suffer or permit to work.&rdquo; In contrast, <em>Borello</em> focuses instead on a multi-factor balancing test that depends on each situation&rsquo;s unique facts, a test that more readily recognizes the existence of an independent contracting relationship.</p> <p> <strong>The Supreme Court Decision</strong></p> <p> On April 30, 2018, the Supreme Court upheld, and expanded upon, the Court of Appeal&rsquo;s ruling: For Wage Order claims, the &ldquo;engage, suffer or permit&rdquo; standard determines if a worker is an employee or an independent contractor. The Supreme Court also held that, to evaluate whether a worker is an employee under this language, courts should use the so-called ABC test that other jurisdictions have used.</p> <p> The ABC test presumes that a worker hired to perform services is an employee of the hiring business, subject to the hirer&rsquo;s ability to provide all three of the following elements:</p> <p style="margin-left: 40px;"> (A) The worker is free from the hirer&rsquo;s control and direction in connection with performing the work, both under contract and in fact.</p> <p style="margin-left: 40px;"> (B) The worker performs work that is outside the usual course of the hirer&rsquo;s business.</p> <p style="margin-left: 40px;"> (C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.</p> <p> The Supreme Court conceded that the phrase &ldquo;suffer or permit&rdquo; cannot be interpreted literally in a manner that would encompass workers&mdash;such as independent plumbers or electricians&mdash;who have traditionally been viewed as genuine independent contractors and who work only in their own independent business.</p> <p> <strong>What <em>Dynamex</em> Means for Businesses that Have Independent Contractors</strong></p> <p> Businesses now have more guidance in understanding the meaning of &ldquo;suffer or permit to work.&rdquo; Indeed, the ABC test encompasses factors already present in the common law <em>Borello</em> test.</p> <p> For all non-Wage Order claims, the common law test still applies. And the scope of the decision by its nature is limited to those defendants who have hired the plaintiff.</p> http://www.seyfarth.com:80/publications/FE050118 Banking Marijuana Related Business: Are We There Yet? http://www.seyfarth.com:80/publications/FE050118 Tue, 01 May 2018 00:00:00 -0400 <p> No. We are not there yet. Are we making progress? Maybe.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/5/1/banking-marijuana-related-business-are-we-there-yet">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT050118 Banking Marijuana Related Business: Are We There Yet? http://www.seyfarth.com:80/publications/TBT050118 Tue, 01 May 2018 00:00:00 -0400 <p> No. We are not there yet. Are we making progress? Maybe.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/05/banking-marijuana-related-business-are-we-there-yet/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maechtlenabajournal050118 Laura Maechtlen quoted in the ABA Journal http://www.seyfarth.com:80/news/maechtlenabajournal050118 Tue, 01 May 2018 00:00:00 -0400 <p> Laura Maechtlen was quoted in a May 1 story from the ABA Journal, &quot;4 strategies for effectively implementing a mindfulness program.&quot; Maechtlen said that with 24/7 demands, law firms often overlook the importance of their people&rsquo;s physical and mental health, but the fault lines forming now threaten the resiliency of both firms and their people. She continued that the legal market is increasingly demanding, and our continued high performance is dependent upon the well-being, resilience, grit and &lsquo;growth mindset&rsquo; of our talent. You can read the <a href="http://www.abajournal.com/magazine/article/changing_minds_implementing_mindfulness_program">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarscmag050118 Bart Lazar quoted in SC Magazine http://www.seyfarth.com:80/news/lazarscmag050118 Tue, 01 May 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a May 1 story from SC Magazine, &quot;Facebook: When privacy meets profit.&quot; Lazar said that the Facebook situation brings to bear some very basic privacy issues, such as the clarity of privacy notices, and the importance of serious due diligence with respect to any third party or service provider to whom personal information is disclosed. You can read the <a href="https://www.scmagazine.com/facebook-when-privacy-meets-profit/article/762202/">full article here</a>.</p> http://www.seyfarth.com:80/news/liesri050118 Mark Lies quoted in Risk & Insurance http://www.seyfarth.com:80/news/liesri050118 Tue, 01 May 2018 00:00:00 -0400 <p> Mark Lies was quoted in a May 1 story from Risk &amp; Insurance, &quot;To Combat Workplace Violence, Should We Arm Managers?,&quot; on how having an armed manager adds on-the-spot protection, but guns in the workplace could open companies to liability risks. Lies said that a manager is not a sworn law enforcement officer, so the legal immunities that such officers have for liability to themselves and the employer will not attach. You can read the <a href="http://riskandinsurance.com/workplace-violence-arming-managers/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrmhr050118 Camille Olson quoted in SHRM's HR Magazine http://www.seyfarth.com:80/news/olsonshrmhr050118 Tue, 01 May 2018 00:00:00 -0400 <p> Camille Olson was quoted in a story from the May issue of SHRM&#39;s HR Magazine, &quot;HR Tips for Managing Teen Workers,&quot; on how keeping younger workers safe is critical. Olson said that you can&#39;t cut the corner for safety training, even though the length of their employment isn&#39;t going to be as long. You can read the <a href="https://www.shrm.org/hr-today/news/hr-magazine/0518/Pages/hr-tips-for-managing-teen-workers.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/wexlerbloomberglaw043018 Howard Wexler quoted in Bloomberg Law http://www.seyfarth.com:80/news/wexlerbloomberglaw043018 Mon, 30 Apr 2018 00:00:00 -0400 <p> Howard Wexler was quoted in an April 30 story from Bloomberg Law, &quot;New State and Local Laws Require Breastfeeding Accommodations.&quot; Wexler said that he expects this trend to continue, noting that in the first few months of 2018, such legislation has been introduced in Maryland, Pennsylvania, California, Virginia, and New Hampshire.</p> http://www.seyfarth.com:80/publications/WC043018 Kudos For Seyfarth’s Annual Workplace Class Action Litigation Report http://www.seyfarth.com:80/publications/WC043018 Mon, 30 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent review of Seyfarth&rsquo;s 2018 Annual Workplace Class Action Litigation Report, EPLiC called it the &ldquo;bible&rdquo; for class action legal practitioners, corporate counsel, employment practices liability insurers, and anyone who works in related areas.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/kudos-for-seyfarths-annual-workplace-class-action-litigation-report/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM043018-LE Another Change to Massachusetts’ Ban-the-Box Law http://www.seyfarth.com:80/publications/OMM043018-LE Mon, 30 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Effective October 13, 2018, Massachusetts employers will no longer be permitted to inquire about certain misdemeanor convictions and sealed or expunged records for employment purposes.&nbsp;</em></p> <p> Almost ten years ago, Massachusetts became the second state, following Hawaii, to enact a &ldquo;ban-the-box&rdquo; law, so-called because they require employers to remove from job applications any question that asks a job applicant to self-disclose their criminal history. Instead, employers must wait until later in the hiring process to do so, unless the employer is prohibited by law from employing criminal offenders in the position at issue. Since that time, the ban-the-box wave has spread across the nation, with laws most recently enacted in Washington (<a href="http://www.seyfarth.com/publications/MA031418-LE">discussed here</a>) and California (<a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">discussed here</a>).</p> <p> In addition to the ban-the-box law, Massachusetts&rsquo; anti-discrimination law also contained provisions that restricted &ldquo;what&rdquo; employers may inquire about, including:</p> <ul> <li> Any arrest, detention or disposition that did not result in a conviction;</li> <li> A first offense for the following misdemeanors: disturbance of the peace; drunkenness; simple assault; affray; minor traffic violations; and speeding; and</li> <li> Any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than five years prior to the date of the employment application, unless the person was convicted of any crime during that same five-year period.</li> </ul> <p> On April 13, 2018, Governor Charlie Baker signed a criminal justice reform bill, which changed existing law in several respects. Importantly, the amendment reduced the five-year period for inquiring about misdemeanors to three years, which means that employers now may not ask about (whether orally or in writing) any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than three years prior to the date of the employment application, unless the person was convicted of another crime within the three years preceding the inquiry. Moreover, in addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.</p> <p> In addition, any form used by an employer that seeks information about an applicant&rsquo;s criminal history must include the following statement about expunged records, in addition to the statement already required concerning sealed records:</p> <p> &ldquo;An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer &lsquo;no record&rsquo; with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions.&nbsp; An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer &lsquo;no record&rsquo; to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.&rdquo;</p> <p> In addition, the criminal justice reform bill lowers the number of years before an individual can seek to have a criminal record sealed or expunged. Ultimately, this means that employers will have less access to criminal history information in making employment decisions. In response to employers&rsquo; concerns about being held liable for negligent hiring or retention based on criminal history to which they no longer had access, the legislature included a provision in the bill that incorporates presumptions based on employers&rsquo; more limited access to such information.&nbsp; Employers will be presumed not to have notice (or the ability to know) about (i) records that have been sealed or expunged, (ii) records about which employers may not inquire under the anti-discrimination law, or (iii) crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer.&nbsp; &nbsp;</p> <p> Massachusetts employers, and nationwide employers that hire in the state, should immediately review their job applications to ensure they are not inquiring about criminal history information too early in the process. They also should consider reviewing and modifying any pre-hire policies and forms to ensure they are not inquiring about off-limits information and that any written question to applicants that inquires about criminal history contain the required language. Employers in all jurisdictions should stay abreast of ongoing developments in this evolving area of the law.</p> http://www.seyfarth.com:80/news/laplacaft042918 Anthony LaPlaca quoted in the Financial Times http://www.seyfarth.com:80/news/laplacaft042918 Sun, 29 Apr 2018 00:00:00 -0400 <p> Anthony LaPlaca was quoted in an April 29 story from the Financial Times, &quot;Time running out for global steelmakers in US-China trade dispute,&quot; on how many producers so far are unscathed but temporary exemptions given to allies are set to expire. LaPlaca said that, other than China and Russia, it is extremely difficult to predict which exporters are subject to the tariff in the long run. You can read the <a href="https://www.ft.com/content/e52c3cc6-493a-11e8-8ee8-cae73aab7ccb">full article here</a>.</p> http://www.seyfarth.com:80/news/johnsonbloombergbna042718 Randel Johnson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/johnsonbloombergbna042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Randel Johnson was quoted in an April 27 story from Bloomberg BNA, &quot;High Hopes, Hazy Role for Labor Department&rsquo;s Second-in-Command,&quot; on how Patrick Pizzella is facing lofty expectations from the business community that may outweigh his actual influence. Johnson said that he thinks it would be important for Pat to send a signal that there is a new sheriff in town and enforcement needs to be well balanced with voluntary compliance efforts, in terms of helping employers comply with the law.</p> http://www.seyfarth.com:80/news/jutkowitzbisnow042718 Stanley Jutkowitz quoted in Bisnow http://www.seyfarth.com:80/news/jutkowitzbisnow042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in an April 27 story from Bisnow, &quot;Budding Marijuana Businesses Discuss Real Estate, Banking Challenges,&quot; on CREW D.C.&#39;s &quot;Marijuana + CRE: A Pipe Dream?&quot; event. Jutkowitz said that no regional or national bank will touch marijuana businesses, and most of the banks that will are not even banks, they&#39;re credit unions or small local banks. You can read the <a href="https://www.bisnow.com/washington-dc/news/economic-development/marijuana-businesses-face-real-estate-banking-challenges-in-dc-market-87842">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarcci042718 Seyfarth's Workplace Class Action Report referenced in Corporate Compliance Insights http://www.seyfarth.com:80/news/wcarcci042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in an April 27 story from Corporate Compliance Insights, &quot;The Supervisor&rsquo;s Role in Wage and Hour Compliance.&quot; The 2018 Annual Workplace Class Action Litigation Report by Seyfarth Shaw stated that in 2017, settlements and payments of the top 10 private wage and hour lawsuits totaled $574.5 million. You can read the <a href="http://www.corporatecomplianceinsights.com/supervisors-role-wage-hour-compliance/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CCD042718 Fast Food Restaurant Scores A Victory in Dismissal of Food Marketing Class Action http://www.seyfarth.com:80/publications/CCD042718 Fri, 27 Apr 2018 00:00:00 -0400 <p> A federal judge recently held that a plaintiff cannot state a claim for false advertising under Illinois law by cherry picking statements in isolation if, on the whole, the information available to plaintiff dispelled the alleged deception. On April 6, 2018, the Northern District of Illinois dismissed a proposed class action that unsuccessfully claimed that a fast food restaurant and an Illinois franchisee had misrepresented the value of certain value meals. The proposed class action, filed in Illinois in 2016, was one of hundreds of cases filed that year alone in a recent surge in food consumer class action litigation.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/04/fast-food-restaurant-scores-a-victory-in-dismissal-of-food-marketing-class-action/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM042718-LIT A Celebrity Visit to D.C. Calls Attention to Cosmetics Regulations Reform http://www.seyfarth.com:80/publications/OMM042718-LIT Fri, 27 Apr 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong></em> <em>What brings a celebrity to the Hill? A look at the current state of cosmetics regulations and potential effects of the Personal Care Products Safety Act that has gained famous support.</em></div> <div> &nbsp;</div> <div> An unfamiliar but well-known (and beautified) face graced Capitol Hill with her presence this week at a closed briefing before members of Congress. The celebrity traveled to D.C. to speak about the need for greater regulations of the cosmetics industry and joined the Environmental Working Group (EWG) President Ken Cook and Rep. Frank Pallone Jr. of New Jersey at a Congressional briefing.</div> <div> &nbsp;</div> <h2> A Brief Overview of Cosmetics Regulation Today</h2> <div> Currently, personal care products, which extends to cosmetics, toothpaste, shampoo and other &ldquo;daily routine&rdquo; hygiene and beauty items (except soap) are governed by the Food, Drug &amp; Cosmetic Act (FD&amp;C Act) and further governed by the Fair Packaging and Labeling Act (FPLA), which are regulated primarily by the Food and Drug Administration (FDA) and supported by the Federal Trade Commission (FTC).&nbsp;</div> <div> &nbsp;</div> <div> The FD&amp;C Act establishes that products distributed in the U.S. cannot be adulterated (e.g., contain a poisonous or deleterious substance; consist of filthy, putrid, or decomposed substances; or be prepared, packed, or held under insanitary conditions) or misbranded (e.g., labeling is false or misleading or requisite information is not prominently placed on the label). The FPLA requires that each package of household &ldquo;consumer commodities&rdquo; bears a label with a statement identifying the commodity, the name and places of business of the manufacturer, packer, or distributor, and the net quantity amounts of the product&rsquo;s contents. The purpose of the FPLA is to prevent unfair or deceptive packaging and labeling. In addition to the FD&amp;C Act and FPLA, the cosmetics industry is subject to federal and state consumers laws, including the Consumer Product Safety Act (CPSA), Federal Trade Commission Act (FTC Act), and state unfair and deceptive acts or practices.&nbsp;</div> <div> &nbsp;</div> <div> Despite the requirements under these laws, the safety of cosmetics lies largely in the hands of manufacturers, which has raised concerns from consumers and health advocates. The laws in place do not require specific tests to demonstrate the safety of particular products or ingredients. Manufacturers are also not required to share testing or safety information with the public. Recalls of cosmetics are voluntary actions taken by manufacturers or distributors to remove products from the marketplace that are deceptive or defective. The FDA, however, is not authorized to order recalls of cosmetics, but it may request a product recall if a company does not do so voluntarily.&nbsp;</div> <div> &nbsp;</div> <div> The FDA and FTC share limited enforcement responsibilities. The FDA can inspect cosmetic manufacturing facilities to ensure cosmetic production safety and to determine compliance under the FD&amp;C Act or FPLA. The FDA&rsquo;s main authority over the cosmetics industry stems from its ability to take regulatory action against companies that produce adulterated or misbranded products. The same authority exists for the FTC regulating labeling and marketing. In addition, the FTC can conduct investigations in which it maintains a coveted subpoena power, can conduct administrative proceedings, and can pursue civil litigation. The FDA has the ability to pursue legal action through the U.S. Department of Justice in the federal court system to remove adulterated and misbranded cosmetics from the marketplace, and on their own or with the assistance of the U.S. Customs and Border Protection, can &ldquo;seize&rdquo; products that violate the FD&amp;C Act or FPLA.&nbsp;</div> <div> &nbsp;</div> <div> The FDA also maintains the Voluntary Cosmetic Registration Program (VCRP), which is a reporting system for manufacturers, packers and distributors. Users of the VCRP who sell products to consumers in the U.S. can register their facilities where cosmetics are manufactured or packed. Users can also file a Cosmetic Product Ingredient Statement for each product distributed in the U.S. But, as reflected in the title, the VCRP is voluntary, not mandatory.&nbsp;</div> <div> &nbsp;</div> <div> Supplemental efforts to monitor the safety and marketing of the cosmetics industry come from the Cosmetic Ingredient Review (CIR), National Advertising Division (NAD), EWG, and a number of non-governmental organizations. The CIR reviews and assesses the safety of ingredients used in cosmetics and publishes its results in peer-reviewed scientific literature. The NAD examines advertising claims for goods and evaluates consumer complaints, as well as complaints from competing advertisers and local Better Business Bureaus. EWG is a non-profit organization that advocates for a healthier environment through educational campaigns, research, and testing of consumer products.&nbsp;</div> <div> &nbsp;</div> <h2> Cosmetics Reform</h2> <div> About this time last year, Sen. Dianne Feinstein (D-CA) and Sen. Susan Collins (R-ME) introduced the latest version of the Personal Care Products Safety Act (the Bill) to amend the FD&amp;C Act by strengthening the FDA&rsquo;s oversight of cosmetics. The Bill would require products to secure pre-market approval from the FDA before being sold to the public. Currently, cosmetics go straight to market without government testing. In addition to adding the pre-approval hurdle to manufacturers, the Bill would give the FDA tools to further protect consumers. Under the Bill, the FDA would do an annual safety review of five ingredients and contaminants, which would include initially formaldehyde-releasing chemicals and a long-chained paraben. The Bill would further require that personal care product companies register their facilities, permit the FDA to inspect their factories and records, and maintain clean environments for product manufacturing and distribution. To increase transparency and FDA involvement, the Bill would also require that companies disclose their ingredients to the FDA, require specific labeling and warnings for products that contain ingredients not suitable for all populations, require companies to report serious adverse events to the FDA, and allow the FDA to recall dangerous products. To fund these new oversight activities, the Bill would authorize FDA to collect user-fees from personal care products manufacturers similar to what is done for medications and medical devices.</div> <div> &nbsp;</div> <div> Rep. Pete Sessions reintroduced a similar law at the beginning of last year, titled the Cosmetic Modernization Amendments of 2017, which is viewed as the &ldquo;small business&rdquo; alternative to the Senate-proposed Bill.&nbsp;</div> <div> &nbsp;</div> <h2> Final Thoughts</h2> <div> With the current autonomy afforded to the cosmetics industry and the push for greater regulation, manufacturers and distributors should be instilling best practices for reasonable protocols to ensure the safety of their products. A commitment to safe cosmetic products begins at the top (a.k.a. the C-suite) and transpires throughout a company. Evidence of compliance is found in coherent and reasonable written procedures and executed in daily practice by a company, from debating the inclusion of an imported ingredient to scrutinizing over a single word in product packaging. While the Bill suggests that the FDA does not currently pose the biggest threat to manufacturers given the Bill&rsquo;s intent to increase FDA oversight, manufacturers and distributors alike can face threats to their business from other sources. In particular, potential litigation risk arises from consumers, including damaging class actions. This is especially true provided that educated consumers with expansive research tools via the Internet have taken a more vested interest in reading and understanding personal care products. Adhering to thorough product manufacturing and sound legal advice, not only reduces compliance issues but can also prevent consumer complaints and costly litigation. We&rsquo;ll continue keeping our eye on tracking proposed legislation impacting the beauty and wellness industry.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM042618-EB Department of Labor Has More to Say about ESG and Shareholder Rights http://www.seyfarth.com:80/publications/OMM042618-EB Thu, 26 Apr 2018 00:00:00 -0400 <div> On April 23, 2018, the Department of Labor (&ldquo;DOL&rdquo;) issued Field Assistance Bulletin No. 2018-01 (&ldquo;FAB&rdquo;), which clarifies Interpretive Bulletin 2015-01 (relating to a benefit plan selecting investments to promote social policy goals) and Interpretive Bulletin 2016-01 (relating to a benefit plan exercising its shareholder rights).&nbsp;</div> <div> &nbsp;</div> <h2> Environmental, Social, and Governance (&ldquo;ESG&rdquo;) Considerations</h2> <div> Interpretive Bulletin 2015-01 provided that &ldquo;plan fiduciaries are not permitted to sacrifice investment return or take on additional investment risk as a means of using plan investments to promote collateral social policy goals.&rdquo; A fiduciary must determine that an investment is appropriate based on economic factors, and it may only consider ESG factors as tie breakers. ESG may be considered when making an investment if the ESG factors present material business risks or opportunities that bear directly on the economic considerations.<sup>1</sup></div> <div> &nbsp;</div> <div> In the FAB, the DOL warns that &ldquo;fiduciaries must not too readily treat ESG factors as economically relevant to the particular investment choices at issue when making a decision.&rdquo; In other words, fiduciaries must always consider the economic interest of a proposed investment above all else. The FAB analyzes ESG considerations as applied to three specific areas.</div> <div> &nbsp;</div> <ul> <li> <em><strong>Investment Policy Statements.</strong></em> Investment policy statements may include policies regarding how ESG factors may be evaluated in selecting investments. However, there is no requirement to address ESG factors in the investment policy statement. Further, even if the investment policy statement addresses ESG, investment managers and/or other fiduciaries are only required to comply with such policies to the extent that they are consistent with the fiduciary obligations under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;).&nbsp;&nbsp;</li> <li> <em><strong>401(k) Plan Investment Alternatives.</strong></em> A defined contribution plan that intends to comply with Section 404(c) of ERISA may offer an ESG investment alternative. This investment option may be added to the investment menu without foregoing other non-ESG investment options. The ESG-themed investment option still must be prudently selected.</li> <li> <em><strong>Qualified Default Investment Alternatives (&ldquo;QDIA&rdquo;).</strong></em> Selection of an ESG QDIA &ldquo;is not analogous to merely offering participants an additional investment alternative as part of a prudently constructed lineup of investment alternatives&hellip;.&rdquo; The DOL warns against basing the selection of the QDIA on ESG principles, as it could be inconsistent with the fiduciary&rsquo;s duty of loyalty. Specifically, ESG may not be considered with respect to a QDIA if it could potentially result in a lower return or exposure to additional risk.&nbsp;</li> </ul> <p> &nbsp;</p> <h2> Shareholder Engagement Activities</h2> <div> The DOL believes that fiduciaries generally should participate in normal proxy voting activities to prudently manage plan investments. Interpretative Bulletin 2016-01 further contemplates that shareholder activities intended to monitor or influence corporations may be permissible under ERISA if such activities are likely to enhance the economic value of an investment after considering the costs to the plan.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The DOL clarified that Interpretative Bulletin 2016-01 was not intended to suggest that individual plans regularly undertake significant expenses to engage in shareholder activism. Also, investment managers and individual plans should not regularly incur significant plan expenses for activist investment activities (including proxy fights on ESG-related issues). If a proposed shareholder engagement activity could result in significant costs, the fiduciary must believe and document accordingly that the potential economic gain exceeds the potential costs.</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1.&nbsp;For example, a plan fiduciary may consider whether a particular company complies with federal and state laws and regulations when making an investment decision. Presumably, this not only reduces economic investment risk, but it also shows that the company is a good corporate citizen with strong governance.</p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL042618 Michigan Bans Local Ban-the-Box Laws http://www.seyfarth.com:80/publications/EL042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Michigan Governor Rick Snyder recently signed a bill that will prohibit counties and cities from enacting &ldquo;ban-the-box&rdquo; ordinances or other restrictions on the ability of private employers to inquire about criminal history early in the hiring process.&rdquo;<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/michigan-bans-local-ban-the-box-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM042618 More than a Makeover: E-Verify Boast a New, Modernized Look Inside and Out http://www.seyfarth.com:80/publications/IMM042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> In mid-April, United States Citizenship and Immigration Services (USCIS) introduced long awaited enhancements to the program as part of the new &ldquo;modernized E-Verify system&rdquo;. In fact the overhaul is enormous in scope, the new system is entirely separate from the previous itineration of E-Verify. From a data storage location shift to reinforcement of the old infrastructure, the bones of the system are being reinforced. Employers will continue to maintain access to their old data while being able to open cases in the new system. The updates demonstrate USCIS&rsquo; continued focus on improving the system, which makes perfect sense in the face of a possible, nationwide, E-Verify mandate.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/more-than-a-makeover-e-verify-boast-a-new-modernized-look/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT042618 The Week in Weed: April 27, 2018 http://www.seyfarth.com:80/publications/TBT042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/the-week-in-weed-april-27-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/kershawwhitesidelaw042618 Kyllan Kershaw and Kaitlyn Whiteside quoted in Law.com http://www.seyfarth.com:80/news/kershawwhitesidelaw042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Kyllan Kershaw and Kaitlyn Whiteside were quoted in an April 26 story from Law.com, &quot;Labor of Law: NDAs in Focus | #MeToo and the NLRB | Who Got the Work,&quot; on a recent National Labor Relations decision which focused on a pay equity dispute between the Colorado Symphony Association and certain musicians. The board ordered the association to provide the American Federation of Musicians with requested contract information. Kershaw and Whiteside said that employers should note that this case can be seen as emblematic of the increased expectations of a union&rsquo;s responsibilities in the &ldquo;Me Too&rdquo; era.</p> http://www.seyfarth.com:80/news/maatmanbi042618 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi042618 Thu, 26 Apr 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 26 story from Business Insurance, &quot;Background of EEOC general counsel nominee raises concerns,&quot; on the nomination of Sharon Fast Gustafson as general counsel to the U.S. Equal Employment Opportunities Commission. Maatman said that she&rsquo;s an unconventional choice as far as her experience has not been focused on management or employer representation. You can read the <a href="http://www.businessinsurance.com/article/20180426/NEWS06/912320889/Background-of-EEOC-general-counsel-nominee-Sharon-Fast-Gustafson-raises-concerns">full article here</a>.</p> http://www.seyfarth.com:80/news/espositoccr042518 Tonya Esposito quoted in the Cook County Record http://www.seyfarth.com:80/news/espositoccr042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Tonya Esposito was quoted in an April 25 story from the Cook County Record, &quot;Attorney: States will enforce Consumer Financial Protection Bureau standards if feds don&#39;t.&quot; You can read the <a href="https://cookcountyrecord.com/stories/511399288-attorney-states-will-enforce-consumer-financial-protection-bureau-standards-if-feds-don-t">full article here</a>.</p> http://www.seyfarth.com:80/news/rechtinlaw360042518 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in an April 25 story from Law360, &quot;4 Things Lawyers Need To Know About Data Center Deals.&quot; Rechtin said that there is more acceptance by investors and lenders of owning or lending on data centers, so long as the right tenants are in place.</p> http://www.seyfarth.com:80/news/morashrm042518 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in an April 25 story from SHRM, &quot;Employers Increasingly Drop Marijuana Testing of Job Applicants,&quot; on how workers&rsquo; state-law rights for marijuana use are quickly on the rise. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/less-marijuana-testing.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/lazarpolitico042518 Bart Lazar authored an op-ed in Politico http://www.seyfarth.com:80/publications/lazarpolitico042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Bart Lazar authored an April 25 op-ed in Politico, &quot;Why we need a &lsquo;privacy label&rsquo; on the internet,&quot; on how the online world can learn from one of the food industry&rsquo;s big successes. You can read the <a href="https://www.politico.com/agenda/story/2018/04/25/internet-privacy-label-000656">full op-ed here</a>.</p> http://www.seyfarth.com:80/publications/CP042518 California Employers: Beware the Background Check Bugaboos http://www.seyfarth.com:80/publications/CP042518 Wed, 25 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California is rife with regulation of how employers may obtain and consider background check information for use in hiring and personnel decisions. The relatively new California ban-the-box law (effective January 1, 2018) and the older Los Angeles and San Francisco ordinances and amendments to the California Labor Code set strict rules on when and how employers can consider criminal and credit histories in employment. Many details to follow.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/25/california-employers-beware-the-background-check-bugaboos/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS042418 Seyfarth Shaw Attorneys Contribute to ABA’s Annual Trade Secret Law Report http://www.seyfarth.com:80/publications/TS042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth attorneys Robert Milligan, Joshua Salinas, Amy Abeloff, and Olivia Wada contributed to this year&rsquo;s ABA Section of Intellectual Property Law, Trade Secrets and Interferences with Contracts Committee Annual Trade Secret Law Report.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/seyfarth-shaw-attorneys-contribute-to-abas-annual-trade-secret-law-report-2/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL042418 Recent Decision Re-Enforces the Legal Framework for Sexual Harassment Claims http://www.seyfarth.com:80/publications/EL042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In recent months, sexual harassment has seized national headlines and raised significant questions about company policies, procedures, and culture. In response, many companies and HR personnel have questioned how to appropriately respond to complaints of sexual harassment. A recent decision out of the Western District of Wisconsin provides a helpful summary of the state of Title VII, the federal anti-discrimination and harassment law, and the appropriate company response to harassment. Given the national debate and this recent decision, now is a good time for employers to implement some best practices to (1) prevent harassment before it occurs and (2) take appropriate remedial action if it does.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/recent-decision-re-enforces-the-legal-framework-for-sexual-harassment-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC042418 Unsuccessful Successor: Court Finds Employer May Be Liable In EEOC Lawsuit For Its Predecessor’s Conduct Under Title VII http://www.seyfarth.com:80/publications/WC042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A Maryland federal district court recently found that a successor employer could be liable in an EEOC lawsuit for its predecessor&rsquo;s alleged employment discrimination. For employers, this decision is a cautionary tale &mdash; the lesson being that liability for claims of employment discrimination can extend beyond the entity alleged to have been responsible for the conduct to reach a successor entity that played no role in the alleged bad acts. In light of this decision, due diligence in corporate acquisitions is more important than ever. An entity acquiring not only assets but also employees must understand the risks of liability regarding the workforce it is inheriting. As the Court decided here, no matter how explicit the disclaimer of liability, a successor may still be liable in an EEOC lawsuit for the discriminatory acts of its predecessor.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/unsuccessful-successor-court-finds-employer-may-be-liable-in-eeoc-lawsuit-for-its-predecessors-conduct-under-title-vii/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/bogardsmarttalkhr042418 Nicole Bogard authored an article in SmartTalkHR http://www.seyfarth.com:80/publications/bogardsmarttalkhr042418 Tue, 24 Apr 2018 00:00:00 -0400 <p> Nicole Bogard authored an April 24 article in SmartTalkHR, &quot;Avoiding Litigation with ERISA Compliant Severance Plans.&quot; You can read the <a href="https://www.risesmart.com/blog/avoiding-litigation-erisa-compliant-severance-plans?utm_source=bambu&amp;utm_medium=social&amp;utm_campaign=Blog">full article here</a>.</p> http://www.seyfarth.com:80/publications/WC042318 New Class Action Litigation Risks http://www.seyfarth.com:80/publications/WC042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In September 2017, our blog posted a video highlighting an emerging class action litigation risk for employers &ndash; the Illinois Biometric Information Privacy, commonly known as &ldquo;BIPA.&rdquo; Since this time, class action filings under BIPA have exploded, including a potentially-landmark case against social media giant Facebook. Today, Seyfarth Shaw Associate Mike DeMarino discusses the Facebook case, as well as its potential impact on employers, with Partner Jerry Maatman.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/new-class-action-litigation-risks/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS042318a Defend Trade Secrets Act First: Claim Tossed Based on Whistleblower Immunity http://www.seyfarth.com:80/publications/TS042318a Mon, 23 Apr 2018 00:00:00 -0400 <p> In what appears to be a first under the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;), a United States District Judge has thrown out claims against an alleged trade secret thief on the basis of the DTSA&rsquo;s immunity for confidential disclosures to attorneys in the course of investigating a suspected violation of the law. Christian v. Lannett Co., Inc., No. 16-cv-00963-CDJ, 2018 WL 1532849 (E.D. Pa. Mar. 29, 2018).<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/dtsa/defend-trade-secrets-act-first-claim-tossed-based-on-whistleblower-immunity/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS042318 Upcoming Webinar! The Anatomy of a Trade Secret Audit http://www.seyfarth.com:80/publications/TS042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> To address these recurrent issues, Seyfarth Shaw helps clients protect their important assets and effectively manage risk by conducting trade secret audits. Our experience has shown that companies gain tremendous value by taking a proactive, systematic approach to assessing and protecting their trade secret portfolios through a Trade Secret Audit. In Seyfarth&rsquo;s third installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Kate Perrelli, Dawn Mertineit, Justin Beyer, and Andrew Stark will cover the following topics:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/upcoming-webinar-the-anatomy-of-a-trade-secret-audit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA042318 Be Careful of Comments on Healthcare Costs: Sixth Circuit Denies Summary Judgment on ERISA Interference and Retaliation Claims Based on Management Comments that Healthcare Costs are Rising http://www.seyfarth.com:80/publications/ERISA042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: An employer, which had paid medical expenses on behalf of an employee&rsquo;s dependent son, made comments about the company&rsquo;s rising healthcare costs several months before firing the employee. The Sixth Circuit found this was enough to warrant a trial on the employee&rsquo;s ERISA interference and retaliation claims.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/04/23/be-careful-of-comments-on-healthcare-costs-sixth-circuit-denies-summary-judgment-on-erisa-interference-and-retaliation-claims-based-on-management-comments-that-healthcare-costs-are-rising/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/passantinowapo042318 Alex Passantino quoted in the Washington Post http://www.seyfarth.com:80/news/passantinowapo042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Alex Passantino was quoted in an April 23 story from the Washington Post, &quot;Huge federal contractor &lsquo;failed&rsquo; to pay workers $100 million in wages, union says,&quot; on a new complaint which alleges that one of the country&#39;s largest federal contractors misclassified employees at call centers in Kentucky, Florida, Arizona and Texas to suppress their wages. Passantino said that the Service Contract Act, which sets the minimum pay requirements for federal contractors, can confuse companies. He said that there&rsquo;s a lot of opportunity for contractors to make minor mistakes that have big impact. Passantino said that even if you are 98 percent right, that 2 percent can kill you. You can read the <a href="https://www.washingtonpost.com/news/wonk/wp/2018/04/23/huge-federal-contractor-failed-to-pay-workers-100-million-in-wages-union-says/?noredirect=on&amp;utm_term=.93b4c27584ad">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360042318 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360042318 Mon, 23 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 23 story from Law360, &quot;The Next Hy-Brand: 3 Cases That Could Undo Browning-Ferris.&quot; Babson said that it&rsquo;s an issue of great importance to the practicing bar and to the constituents of the agency, and I think it&rsquo;s important for the board to take it up.</p> http://www.seyfarth.com:80/publications/ecklaw360042018 William Eck authored an article in Law360 http://www.seyfarth.com:80/publications/ecklaw360042018 Fri, 20 Apr 2018 00:00:00 -0400 <p> William Eck authored an April 20 article in Law360, &quot;Avoiding Pitfalls In Physician Practice Acquisitions.&quot; Eck writes that once it is decided to acquire a physician practice, among the questions the acquirer and its counsel must consider are the optimal structuring approaches and how to avoid the legal pitfalls that are particular to this sort of transaction.</p> http://www.seyfarth.com:80/publications/WSE042018 Fight Club Rules: Using Restraining Orders to Prevent Workplace Violence http://www.seyfarth.com:80/publications/WSE042018 Fri, 20 Apr 2018 00:00:00 -0400 <p> Introduction: We are posting our colleagues&rsquo; California Peculiarities Employment Law Blog post on workplace violence. While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely. For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause. Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared &mdash; such as where one employee makes threatening statements about a co-worker/manager. But where the employer/employee has obtained a restraining order, the police are more likely to intercede.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-violence/fight-club-rules-using-restraining-orders-to-prevent-workplace-violence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM042018-LE Staffing Agency Class Settlement Bars Subsequent Case Against Agency’s Client http://www.seyfarth.com:80/publications/OMM042018-LE Fri, 20 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Based on the legal principle of res judicata, a prior class action settlement that released a staffing agency and its agents barred a subsequent class action against the staffing agency&rsquo;s client.</em></p> <p> <strong>The Facts</strong></p> <p> The Plaintiffs, Andrew and David Castillo, worked for GCA Services Group, Inc., a temporary staffing agency that places temporary employees with its clients. GCA placed the Castillos on a temporary assignment at Glenair, Inc. Although they worked under Glenair&rsquo;s general oversight and direction, GCA hired, fired, and paid them, based on time records provided by Glenair (which Glenair reviewed for accuracy).</p> <p> The Castillos, in 2013, sued Glenair (but not GCA), claiming&mdash;for themselves and a class of workers&mdash;unpaid minimum wages, unpaid overtime wages, meal and rest break violations, untimely termination wages, and inadequate wage statements. We will call this case &ldquo;<em>Castillo</em>.&rdquo;</p> <p> <strong><em>Gomez</em> Class Action Settlement Agreement </strong></p> <p> The year before <em>Castillo</em> was filed, Judith Gomez and Ernesto Briseno had sued GCA (but not Glenair) in connection with the work they had done for Glenair on behalf of GCA. This lawsuit, which we will call <em>Gomez</em>, alleged the same claims&mdash;on behalf of the same class&mdash;that were later brought in <em>Castillo</em>.</p> <p> In 2014, while <em>Castillo</em>, which was solely against Glenair, was pending, the parties in <em>Gomez</em> entered into a settlement agreement. The <em>Gomez</em> agreement contained a broad release barring class members from asserting wage and hour claims, against GCA and <em>its agents</em>. The Castillos were members of the <em>Gomez</em> settlement class and did not opt out of the <em>Gomez</em> settlement.</p> <p> <strong>Glenair&rsquo;s Motion for Summary Judgment</strong></p> <p> Glenair, citing the <em>Gomez</em> class settlement agreement, moved for summary judgment in <em>Castillo</em>. Glenair argued that it qualified as an agent of GCA that was a released party under the <em>Gomez</em> settlement agreement. The Castillos opposed the motion on the basis that Glenair was not a named party in <em>Gomez</em> and did not contribute to the <em>Gomez</em> settlement. The trial court nonetheless granted summary judgment for Glenair.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> On April 16, 2018, the Court of Appeal affirmed the summary judgment, holding that the <em>Castillo </em>case against Glenair was barred, both as a matter of res judicata and because Glenair was covered by the terms of the broad release contained in the<em> Gomez</em> settlement agreement. The Court of Appeal concluded that all three of the elements of res judicata were met: (1) the <em>Gomez</em> settlement was final and on the merits, (2) the causes of action in <em>Castillo</em> were the same as those at issue in <em>Gomez</em>, and (3) Glenair was in privity with GCA (a party in <em>Gomez</em>) with respect to the subject matter of <em>Castillo</em>. &nbsp;Glenair also was released as a party in <em>Gomez</em>, since it was an agent of GCA. &nbsp;</p> <p> The Court of Appeal reasoned that GCA and Glenair were in privity because the subject matter of <em>Castillo</em> and<em> Gomez</em> were the same: both cases involve the same wage and hour claims arising from the same work performed by the same GCA employees (the Castillos) at GCA&rsquo;s client company Glenair. In addition, by virtue of the settlement in <em>Gomez</em>, the Castillos &nbsp;were compensated for any errors made in the payment of their wages. Further, Glenair was an agent for GCA with respect to GCA&rsquo;s payment of its employees, such as the Castillos, and thus was a released party under the<em> Gomez </em>settlement agreement.</p> <p> <strong>What <em>Castillo</em> Means For Employers</strong></p> <p> The <em>Castillo</em> decision demonstrates that the settlement agreements entered into by temporary employment staffing agencies may have a downstream effect on their clients. Employers facing putative class actions brought by temporary employees would be wise to review any class settlement agreements entered by the plaintiff&rsquo;s staffing agency to determine if any additional defenses exist.</p> http://www.seyfarth.com:80/publications/EL041918 DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/EL041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions. While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal. Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace. Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/doj-announces-first-of-a-number-of-anticipated-no-poach-enforcement-actions-what-should-employers-do-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT041918 The Week in Weed: April 20, 2018 http://www.seyfarth.com:80/publications/TBT041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Welcome to the 4/20 edition of Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/the-week-in-weed-april-20-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM041918 MAY 2018 VISA BULLETIN http://www.seyfarth.com:80/publications/IMM041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Trivia: On May 10, 1877, U.S. President Rutherford B. Hayes had which common piece of technology first installed into the White House?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/may-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LIBOR-041918 LIBOR Discontinuance Update - What You Should Know http://www.seyfarth.com:80/publications/LIBOR-041918 Thu, 19 Apr 2018 00:00:00 -0400 <div> As you likely know by now, in July 2017 the U.K.&rsquo;s Financial Conduct Authority announced that LIBOR will be phased out by 2021.&nbsp; However, as we previously advised in our&nbsp;<a href="http://www.seyfarth.com/publications/LIBOR-092017" target="_blank">September 2017 Alert</a>, lenders need not rush into replacing LIBOR for a new substitute index, as there is an ongoing process to facilitate an orderly transition in the market to a new, replacement index rate in place of LIBOR.</div> <div> <div> &nbsp;</div> <div> On April 13, 2018, the Federal Reserve Bank of New York (the &ldquo;New York Fed&rdquo;) began publishing three new reference rates based on overnight repurchase agreement transactions collateralized by Treasury securities.&nbsp; These new reference rates are the Broad General Collateral Rate (BGCR), the Tri-Party General Collateral Rate (TGCR) and the Secured Overnight Financing Rate (SOFR).&nbsp; The Alternative Reference Rates Committee formed by the Federal Reserve to address LIBOR replacement has identified SOFR as a potential candidate for the LIBOR replacement.&nbsp; The New York Fed describes SOFR as a broad measure of the cost of borrowing cash overnight collateralized by Treasury securities. SOFR includes all trades in the BGCR plus bilateral Treasury repurchase agreement (repo) transactions cleared through the &ldquo;delivery-versus-payment&rdquo; service offered by the Fixed Income Clearing Corporation, which is filtered to remove a portion of transactions considered &ldquo;specials&rdquo; (repo transactions for specific-issue collateral which take place at cash-lending rates below those for general collateral repos because cash providers are willing to accept a lesser return on their cash in order to obtain a particular security).</div> <div> &nbsp;</div> <div> The New York Fed will publish such rates each morning at approximately 8:00 a.m. Eastern Time and will include statistics summarizing the distribution of volumes each day, including the total dollar amount of transactions used to calculate each rate, rounded to the nearest billion, and the volume-weighted 1st, 25th, 75th, and 99th percentiles.</div> <div> &nbsp;</div> <div> While SOFR will not be a direct substitute for LIBOR because it is a secured overnight rate and thus lower than LIBOR, the publishing of this SOFR as a reported index rate is an important milestone in the development of a market for a new reference rate.</div> <div> &nbsp;</div> <div> The takeaway for lenders is to continue monitoring the loan market for adoption of a replacement index rate to LIBOR and continue observing how the discontinuance of LIBOR impacts both existing and new loan documentation.</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WSE041918 Chevron Deference Under Attack at State Level http://www.seyfarth.com:80/publications/WSE041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On April 11, 2018, Arizona Governor Doug Ducey signed into law HB 2238, which amended the state&rsquo;s administrative procedure laws to remove &ldquo;Chevron Deference,&rdquo; so that for disputes involving state administrative law, courts will not be required to defer to an agency&rsquo;s interpretation of an ambiguous statutory provision.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/administrative-procedure-act/chevron-deference-under-attack-at-state-level/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/clarkmoradyehs041918 Brent Clark and Ilana Morady's blog referenced in EHS Today http://www.seyfarth.com:80/news/clarkmoradyehs041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Brent Clark and Ilana Morady&#39;s blog was referenced in EHS Today, &quot;MSHA Issues Final Mine Inspection Rule,&quot; on how the new regulations impose additional requirements but are less burdensome than first proposed. The Seyfarth lawyers point out that while the new regulation imposes new requirements on mine operators, it is notably less burdensome that previous iterations of the workplace examination rule that have been in process for several years. You can read the <a href="http://www.ehstoday.com/safety/msha-issues-final-mine-inspection-rule">full article here</a>.</p> http://www.seyfarth.com:80/news/lorberbloomberglaw041918 Larry Lorber quoted in Bloomberg Law http://www.seyfarth.com:80/news/lorberbloomberglaw041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Larry Lorber was quoted in an April 19 story from Bloomberg Law, &quot;Federal Contractor Auditor&rsquo;s Selection Process Revealed.&quot; Lorber said that he is concerned about the way the office is framing the parent company-independent subsidiary relationship and the categorization of &ldquo;direct&rdquo; and &ldquo;associate&rdquo; establishments.</p> http://www.seyfarth.com:80/news/whitmanxperthr041918 Robert Whitman quoted in XpertHR http://www.seyfarth.com:80/news/whitmanxperthr041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Robert Whitman was quoted in an April 19 story from XpertHR, &quot;New York Passes New Anti-Sexual Harassment Laws.&quot; Whitman said that employers need to take steps quickly to comply with the new provisions. You can read the <a href="https://www.xperthr.com/news/new-york-passes-new-anti-sexual-harassment-laws/32102/">full article here</a>.</p> http://www.seyfarth.com:80/news/lorberbl041918 Lawrence Lorber quoted in Bloomberg Law http://www.seyfarth.com:80/news/lorberbl041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Lawrence Lorber was quoted in an April 19 story from Bloomberg Law, &quot;Labor Dept. to Relax Obama Pay Bias Policy, Hand Reins to Businesses,&quot; on how the Trump administration plans to ease the way it reviews federal contractors for pay discrimination by letting businesses help shape those investigations. Lorber said that it&rsquo;s really a productive step because it will bring them back to dealing with compensation issues as the law requires, rather than just an arbitrary set of methodologies which don&rsquo;t have any basis in the law.</p> http://www.seyfarth.com:80/news/schwartzfenwickbna041918 Sam Schwartz-Fenwick quoted in Bloomberg BNA http://www.seyfarth.com:80/news/schwartzfenwickbna041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in an April 19 story from Bloomberg BNA, &quot;Health Coverage of Medical Pot Remains Unlikely, Despite Demand.&quot; Schwartz-Fenwick said that, because it&rsquo;s illegal at the federal level, it creates a lot of problems for an ERISA plan.</p> http://www.seyfarth.com:80/news/casciarishrm041918 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm041918 Thu, 19 Apr 2018 00:00:00 -0400 <p> Joan Casciari was quoted in an April 19 story from SHRM, &quot;Is &lsquo;I&rsquo;ve Changed Meds&rsquo; an Accommodation Request?&quot; Casciari said that that an employee&#39;s stating &quot;I&#39;ve changed meds&quot; might be sufficient to put the employer on notice that an accommodation is needed. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/changed-meds-accommodation-request.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonpoliticopro041818 Marshall Babson quoted in Politico Pro http://www.seyfarth.com:80/news/babsonpoliticopro041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 18 story from Politico Pro, &quot;OMB tells NLRB to spend less than allocated.&quot; Babson said that he is unaware of a single instance in the past wherein the White House or OMB subjected the NLRB to the budget rescission process.</p> http://www.seyfarth.com:80/news/maechtlenlaw360041818 Laura Maechtlen quoted in Law360 http://www.seyfarth.com:80/news/maechtlenlaw360041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Laura Maechtlen was quoted in an April 18 story from Law360, &quot;Client Push Gets More Firms Into The Labor Lobbying Game.&quot; Maechtlen said that what she has seen in the last couple years, especially with the new federal administration, is questions from clients about how to navigate what&rsquo;s happening in Washington. The Seyfarth Shaw Government Relations and Public Policy Group launched in January.</p> http://www.seyfarth.com:80/publications/TS041818 Federal Court Dismisses CFAA Claims Against Former Executive, Allows CFAA and DTSA Claims Against Competitor in Pharmaceuticals Trade Secret Dispute http://www.seyfarth.com:80/publications/TS041818 Wed, 18 Apr 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.tradesecretslaw.com/2018/04/articles/dtsa/federal-court-dismisses-cfaa-claims-against-former-executive-allows-cfaa-and-dtsa-claims-against-competitor-in-pharmaceuticals-trade-secret-dispute/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP041818 Fight Club Rules: Using Restraining Orders to Prevent Workplace Violence http://www.seyfarth.com:80/publications/CP041818 Wed, 18 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the &ldquo;Fight Club&rdquo; at work.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/18/fight-club-rules-using-restraining-orders-to-prevent-workplace-violence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA041718-LE2 Following State’s Lead, New York City Council Passes “Stop Sexual Harassment in NYC Act” http://www.seyfarth.com:80/publications/MA041718-LE2 Tue, 17 Apr 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The New York City Council has passed, and Mayor Bill de Blasio is expected to sign, a package of eleven bills</em>&mdash;<em>together referred to as the Stop Sexual Harassment in NYC Act</em>&mdash;<em>that will require most private employers to conduct annual sexual harassment training.&nbsp; The legislation also extends the statute of limitations for filing claims of sexual harassment from one year to three, requires employers to display an anti-sexual harassment poster in common areas, requires the Commission on Human Rights to post certain information about sexual harassment, and expands the New York City Human Rights Law&rsquo;s coverage to all employers, regardless of the number of employees.</em></div> <div> &nbsp;</div> <div> The &ldquo;Stop Sexual Harassment in NYC Act,&rdquo; passed by the City Council on April 11, 2018, is a package of eleven bills designed to combat workplace sexual harassment. The Mayor is expected to sign the bill shortly.&nbsp; Following on the heels of the recently enacted <a href="http://www.seyfarth.com/publications/MA040518-LE">New York State</a> anti-sexual harassment legislation, the Act makes a number of significant changes to the law of sexual harassment applicable to employers in the City.</div> <div> &nbsp;</div> <div> The provisions in the bill affecting private employers are summarized briefly below.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Mandatory Anti-Sexual Harassment Training</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354925&amp;GUID=D9986F4A-C3A9-4299-BAA8-5A1B1A1AD31E&amp;Options=&amp;Search=">Act</a> will amend section 8-107 of the Administrative Code of the City of New York to require employers with 15 or more employees to conduct annual anti-sexual harassment training for all employees employed in New York City, including supervisory and managerial employees.&nbsp; Training will be required after 90 days of initial hire for employees who work more than 80 hours in a calendar year, whether or not they work on a full-time or part-time basis.&nbsp; For purposes of this subdivision, the term &ldquo;employee&rdquo; includes interns.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The legislation requires that the training be &ldquo;interactive.&rdquo;&nbsp; While it need not be live or with an in-person instructor, it must qualify as participatory teaching &ldquo;whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program, or other participatory forms of training as determined by the commission.&rdquo;</div> <div> &nbsp;</div> <div> Training must, at a minimum, include the following: (1) an explanation of sexual harassment as a form of unlawful discrimination under city, state, and federal law; (2) a description of sexual harassment, including examples; (3) the employer&rsquo;s internal complaint process as well as the complaint process available through the City Commission on Human Rights, the State Division of Human Rights, and the Equal Employment Opportunity Commission; (4) a prohibition of retaliation and examples of what constitutes retaliation; (5) information concerning bystander intervention; and (6) the responsibilities of and actions that must be taken by supervisory and managerial employees in the prevention of sexual harassment and retaliation.</div> <div> &nbsp;</div> <div> The legislation also requires that employers keep a record of all trainings and signed employee acknowledgements of attendance.&nbsp; The records must be retained for three years and be available, upon request, for inspection by the Commission.</div> <div> &nbsp;</div> <div> The Commission is required to develop an online interactive training module that may be used by employers to satisfy the training component, provided that employers also inform all employees of internal reporting procedures.&nbsp; The module will be available for free to the public and must allow for electronic provision of certification.&nbsp;</div> <div> &nbsp;</div> <div> The legislation also includes two novel additional provisions.&nbsp; First, &ldquo;[a]n employee who has received anti-sexual harassment training within the required training cycle shall not be required to receive additional anti-sexual harassment training at another employer until the next cycle.&rdquo;&nbsp; The legislation does not define &ldquo;cycle,&rdquo; but presumably it means calendar year.&nbsp; Second, any employer that is subject to training requirements in multiple jurisdictions may demonstrate that it is compliant with the legislation by submitting proof that it provides all employees with annual interactive anti-sexual harassment training that is compliant with the training standards set forth under sub-section (b).&nbsp;</div> <div> &nbsp;</div> <div> This legislation will take effect April 1, 2019.</div> <div> &nbsp;</div> <div> <strong>Sexual Harassment Poster</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354924&amp;GUID=CF950C5F-988C-417F-A720-53451ADA064B&amp;Options=&amp;Search=">Act</a> amends section 8-107 of the City Code to require employers to display conspicuously an anti-sexual harassment rights and responsibilities poster in employee break rooms or other common areas.&nbsp; The Commission will design the poster, and each poster must be displayed in English and Spanish.&nbsp; Employers will also be required to distribute a sexual harassment information sheet, developed by the Commission, to new employees at the time of hire.&nbsp; This portion of the law takes effect 120 days after it is signed, provided that the Commission takes all actions necessary for its implementation.</div> <div> &nbsp;</div> <div> <strong>Expansion of the Statute of Limitations</strong></div> <div> &nbsp;</div> <div> The Commission previously did not have jurisdiction over complaints filed more than one year after the alleged unlawful discriminatory practice or act of discriminatory harassment or violence occurred.&nbsp; The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3355441&amp;GUID=35B10B56-040F-4219-9764-7C41CEB100D5&amp;Options=&amp;Search=">Act</a> amends section 8-109(e) of the City Code to give the Commission jurisdiction over claims of gender-based harassment filed within three years after the alleged harassing conduct occurred.&nbsp; This provision takes effect immediately upon the law&rsquo;s enactment.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Increased Coverage</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354940&amp;GUID=EE51AA28-8FAA-41FE-B063-BE965FAED119&amp;Options=&amp;Search=">Act</a> amends 8-102(5) of the City Code to expand coverage of sexual harassment cases to employers with fewer than four employees.&nbsp; Previously, only employers with four or more employees were covered by the law.&nbsp; This amendment aligns the City Human Rights Law with the State law.&nbsp; This amendment takes effect immediately upon final enactment of the law.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Publicly Available Information</strong></div> <div> &nbsp;</div> <div> The <a href="http://legistar.council.nyc.gov/LegislationDetail.aspx?ID=3354920&amp;GUID=4C0C09CB-DEA8-445E-A8D1-DDF6E08AB6A3&amp;Options=&amp;Search=">Act</a> adds section 8-132 to the City Code and requires the Commission to post resources about sexual harassment on its website.&nbsp; The information required includes: an explanation that sexual harassment is a form of unlawful discrimination, specific examples of sexual harassment, a description of the Commission&rsquo;s complaint process, a list of alternate agencies for filing complaints, an explanation that retaliation is prohibited, and bystander intervention education.&nbsp;</div> <div> <strong>&nbsp;</strong></div> <div> <strong>What Happens Next?</strong></div> <div> &nbsp;</div> <div> The provision concerning anti-sexual-harassment training for private employers will likely have the biggest impact on employers.&nbsp; However, because this provision does not take effect until April 1, 2019, employers will have plenty of time to ensure they are in compliance.&nbsp; Once the Commission creates the model training, employers will be able to assess whether their current training materials satisfy the City requirements as well as the State requirements.</div> <div> &nbsp;</div> <div> Those employers that do not already provide training will have to determine whether to utilize the Commission&rsquo;s model or institute a more tailored training program that still meets the training requirements.&nbsp; Employers in multiple jurisdictions should review their existing training programs, if any, to ensure that their New York City locations are compliant.&nbsp; Additionally, employers utilizing interns should assess whether their interns will require training.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The attorneys at Seyfarth Shaw LLP will present a webinar on the new City and State legislation on April 25, 2018 at 1:00 PM EDT.&nbsp; Details will be announced shortly.&nbsp; We are also available to provide any assistance with ensuring that you have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.&nbsp;</div> http://www.seyfarth.com:80/publications/MA041718-LE Franchise “No-Hire” Agreement Class Actions And The Single Enterprise Defense http://www.seyfarth.com:80/publications/MA041718-LE Tue, 17 Apr 2018 00:00:00 -0400 <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box; font-weight: 700;">Seyfarth Synopsis:</span>&nbsp;There are currently pending at least four class actions claiming that provisions contained in franchise agreements prohibiting the hiring of employees of other intrabrand franchisees without the consent of their employer violate the antitrust laws.&nbsp;&nbsp;</span>That being said, in<span style="box-sizing: border-box;">&nbsp;1993 the Ninth Circuit affirmed summary judgment in favor of a franchisor in a similar &ldquo;no-hire&rdquo; case.&nbsp;&nbsp;</span>It<span style="box-sizing: border-box;">&nbsp;reasoned that due to the control the franchisor exercised over its franchisees, the franchisor and its franchisees were incapable of conspiring in violation of Section 1 of the Sherman Act. While the so-called &ldquo;single enterprise&rdquo; defense is potentially available, franchisors should be cognizant that in developing that defense, they may create evidence or admissions that would support a subsequent claim that the franchisors are joint employers of their franchisees&rsquo; employees.&nbsp; In light of the availability of other defenses, franchisor employers should assess whether the joint employer risk is worth accepting in order to pursue the single enterprise defense.&nbsp;</span></span></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Introduction</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="color:#696969;"><span style="box-sizing: border-box;">&ldquo;No-hire&rdquo; (sometimes referred to as &ldquo;no-switching&rdquo;) agreements are contracts between or among employers not to hire each other&rsquo;s employees.&nbsp; A &ldquo;no-poaching&rdquo; agreement is different but similar.&nbsp; It prevents the solicitation of another employers&rsquo; employees, but does not prevent their hire, so long as there was no solicitation.&nbsp; The franchise no-hire agreements typically are limited in duration.&nbsp; For example, in pending litigation against Pizza Hut,&nbsp; it is alleged that the challenged agreement only prohibits hiring anyone who was in a managerial position at another Pizza Hut restaurant at any time during the previous six months.&nbsp;&nbsp;<i style="box-sizing: border-box;">Ion v. Pizza Hut, LLC</i>, Case No. 4:17-cv-00788, Complaint at &para;&nbsp;4,<i style="box-sizing: border-box;">available at</i>&nbsp;</span></span><a href="https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf" style="box-sizing: border-box; color: rgb(0, 116, 211);">https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf</a><span style="box-sizing: border-box; color: rgb(0, 0, 0);">&nbsp;</span><span style="color:#696969;"><span style="box-sizing: border-box;">(last visited on 4/10/2018).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="color:#696969;"><span style="font-family:arial,helvetica,sans-serif;">In 2017, at least three class action cases were brought against separate franchisors alleging that the organizations&rsquo; &ldquo;no-hire&rdquo; agreements suppress wages and violate antitrust laws.&nbsp; And a fourth was filed in January 2018.&nbsp; There may be more to come.&nbsp; In a letter to Attorney General Jeff Sessions dated November 21, 2017, Senators Elizabeth Warren and Cory Booker inquired as to whether DOJ was &ldquo;currently investigating the use of no-poach agreements in the franchise industry.&rdquo;&nbsp; In that correspondence, Senators Warren and Booker cited to a study by Princeton economists that found that &ldquo;fully 58% of the 156 largest franchisors operating around 340,000 franchise units used some form of anti-competitive &lsquo;no-poach&rsquo; agreements.&rdquo;&nbsp; See <a href="https://www.warren.senate.gov./files/documents/2017_11_21_No_Poach.pdf">https://www.warren.senate.gov./files/documents/2017_11_21_No_Poach.pdf</a> (last visited on 4/10/2018).</span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">To prove a violation of Section 1 of the Sherman Act, the plaintiff must show an agreement between or among two or more persons or entities.&nbsp;&nbsp;<i style="box-sizing: border-box;">Monsanto Co. v. Spray-Rite Service Corp.</i>, 465 U.S. 752, 761 (1984).&nbsp; In 1993, a Jack-in-the-Box franchisor successfully defended a challenge to its no-switching agreement on the grounds that the franchisor and its franchisees were a single enterprise and incapable of conspiring in violation of Section&nbsp;1.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams v. I.B. Fischer Nevada</i>, 999 F.2d 445, 447-48 (9th Cir. 1993) (<i style="box-sizing: border-box;">per curiam</i>).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">T<span style="box-sizing: border-box;">hat defense is premised upon the control that a franchisor has over the operations of its franchisees.&nbsp; And the question then is whether developing that defense creates an unacceptable risk of creating evidence or admissions supporting joint employer status.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">The Single Enterprise Defense</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">In the franchise no-hire context, usually there is little dispute that an agreement exists.&nbsp; It is typically contained in the franchise agreements between the franchisor and each of its franchisees.&nbsp; But the parties to the alleged unlawful agreement must also be legally capable of conspiring.&nbsp; In&nbsp;<i style="box-sizing: border-box;">Copperweld Corp. v. Independence Tube Corp.</i>, 467 U.S. 752, 771 (1984), the&nbsp;</span>U.S.&nbsp;<span style="box-sizing: border-box;">Supreme Court held that a parent and its wholly owned subsidiary were incapable of conspiring in violation of Section 1 because their conduct must be viewed as that of a single enterprise.&nbsp; The&nbsp;</span>Supreme&nbsp;<span style="box-sizing: border-box;">Court reasoned that &ldquo;[a] parent and its wholly owned subsidiary have a complete unity of interest.&nbsp; The objectives are common, not disparate; the general corporate actions are guided or determined not by two separate corporate consciousnesses, but one.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>.&nbsp; It therefore reversed the decision of the Seventh Circuit which had affirmed a jury verdict in favor of the plaintiff.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">In 1993, without mentioning&nbsp;<i style="box-sizing: border-box;">Copperweld</i>, the Ninth Circuit extended this single enterprise concept to the franchise environment in a no-hire case.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams</i>, 999 F.2d at 447-48.&nbsp; Other courts have also found that franchisors were incapable of conspiring with their franchisees within the meaning of the Sherman Act.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Danforth &amp; Associates, Inc.,&nbsp; v. Coldwell Banker Real Estate, LLC</i>, Case No. C10-1621, 2011 U.S. Dist. LEXIS 10882, *6-7 (W.D. Wash. Feb. 2, 2011) (franchisor and franchisee cannot conspire within the meaning of the Sherman Act);&nbsp;<i style="box-sizing: border-box;">Search International, Inc. v. Snelling and Snelling, Inc</i>., 168 F. Supp. 2d 621, 626-27 (N.D. Tex. 2001) (unity of interest between franchisor and its franchisees made them incapable of conspiring in violation of the Sherman Act);&nbsp;<i style="box-sizing: border-box;">Hall v. Burger King Corporation</i>, 912 F. Supp. 1509, 1548 (S.D. Fla. 1995) (franchisor and franchisee were incapable of conspiring under the Sherman Act).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">But the authorities cited above do not stand for the broad proposition that franchisors, in general, cannot unlawfully conspire with their franchisees.&nbsp; The district court in&nbsp;<i style="box-sizing: border-box;">Williams</i>&nbsp;itself acknowledged that the issue required an examination of the particular facts.&nbsp;&nbsp;<i style="box-sizing: border-box;">Williams v. I.B. Fischer Nevada</i>, 794 F. Supp. 1026, 1030 (D. Nev. 1992).&nbsp;&nbsp;</span>Likewise<span style="box-sizing: border-box;">, some have opined that the Supreme Court&rsquo;s subsequent decision in&nbsp;<i style="box-sizing: border-box;">American Needle v. National Football League</i>, 560 U.S. 183 (2010), makes it more difficult for franchisors to argue that the franchise system is a single economic enterprise.&nbsp;&nbsp;<i style="box-sizing: border-box;">See&nbsp;</i>B. Block &amp; M. Ridings,&nbsp;<i style="box-sizing: border-box;">Antitrust Conspiracies in Franchise Systems After American Needle</i>, Franchise L.J., Vol.&nbsp;30, No.&nbsp;4 (Spring 2011).&nbsp; In&nbsp;<i style="box-sizing: border-box;">American Needle</i>, the Supreme Court held that the National Football League was not a single enterprise for antitrust purposes regarding certain licensing activities.&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 186.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Thus, while certainly authority exists to support the argument that franchisors cannot conspire with their franchisees in violation of Section 1, the defense may not be successful in every case.&nbsp; And as noted, developing that defense may create evidence or admissions that could be used to support a joint employer argument that could create legal risks for franchisors in other contexts.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Potential Joint Employer Liability</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">There are numerous laws that recognize that an employee can&nbsp;</span>be&nbsp;<span style="box-sizing: border-box;">simultaneously employed by more than one employer.&nbsp; This is referred to as joint or co-employment.&nbsp; If a franchisor is found to be the joint employer of the employees of its franchisee, it could be exposed to liability for, among other things: benefits under the franchisor&rsquo;s benefit plans; Occupational Safety and Health Act (&ldquo;OSHA&rdquo;) violations; violations of the National Labor Relations Act (&ldquo;NLRA&rdquo;); violations of the Fair Labor Standards Act (&ldquo;FLSA&rdquo;); violations of state and federal employment practices statutes; and violations of numerous state laws, depending upon the state.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Franchisors have had notable success in defeating claims that they are a joint employer of their franchisees&rsquo; employees.&nbsp; For example, in&nbsp;<i style="box-sizing: border-box;">Pope v. Espeseth, Inc.</i>, 228 F. Supp. 3d 884, 889-91 (W.D. Wis. 2017), the court held that the franchisor was not a joint employer of the franchisees&rsquo; employees under the FLSA.&nbsp; The court found, among other things, that the franchisor did not exercise control over the franchisees&rsquo; employees&rsquo; working conditions.&nbsp;&nbsp;<i style="box-sizing: border-box;">See also Ochoa v. McDonald&rsquo;s Corp.</i>, 133 F. Supp. 3d 1228, 1235-38 (N.D. Cal. 2015) (franchisor was not joint employer of franchisees&rsquo; employees because, among other things, it did not exercise requisite control of their wages, hours or working conditions).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">But it is difficult to predict whether a joint employer relationship exists.&nbsp; First, the tests vary depending upon the law or statute at issue.&nbsp;&nbsp;<i style="box-sizing: border-box;">Compare Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB No. 156, slip op. at 6 (Dec. 14, 2017),<i style="box-sizing: border-box;">vacated on other grounds by Hy-Brand Industrial Contractors, Ltd.</i>, 366 NLRB No.&nbsp;26 (Feb.&nbsp;26, 2018) (applying common law agency principles)&nbsp;<i style="box-sizing: border-box;">with</i>&nbsp;<i style="box-sizing: border-box;">Barfield v. New York City Health and Hospitals</i>, 537 F.3d 132, 141-43 (2d Cir. 2008) (applying an economic realities test under the FLSA).&nbsp; And even under the same law, the courts sometimes apply different tests depending upon the jurisdiction.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Hall v. DirecTV, LLC</i>, 846 F.3d 757, 766 (4th Cir. 2017) (noting that &ldquo;courts in various jurisdictions within this Circuit and throughout the country [apply] numerous, distinct, multifactor joint employment tests&rdquo; under the FLSA).&nbsp;&nbsp;</span>Likewise,<span style="box-sizing: border-box;">&nbsp;even under the NLRA, the law has fluctuated between a direct and indirect control test.&nbsp;<i style="box-sizing: border-box;">See</i>&nbsp;<i style="box-sizing: border-box;">Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB No. 156, slip op. at 1-8 (Feb.&nbsp;26, 2018).</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">The joint employer tests are also ambiguous.&nbsp; Most of the tests require consideration of multiple factors, no one of which is controlling, and require the decision-maker to consider the &ldquo;totality of circumstances.&rdquo;&nbsp;<i style="box-sizing: border-box;">&nbsp;See, e.g., Barfield</i>, 537 F.3d at 141-42 (noting that the FLSA multifactor test considers the totality of the circumstances).&nbsp;&nbsp;</span>T<span style="box-sizing: border-box;">he courts recognize that this is an inherently ambiguous test that at times leads to arbitrary results.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Salinas v. Commercial Interiors, Inc.</i>, 848 F.3d at 137 (&ldquo;[L]ike other open-ended balancing tests,&rdquo; this universe of nebulous factors test has &ldquo;yield[ed] unpredictable and at times arbitrary results&rdquo;) (internal citations and quotations omitted).</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">But in all of these multifactor tests, one of the factors considered is whether the potential joint employer has the right to, or exercises, &ldquo;control.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">See, e.g., Hy-Brand Industrial Contractors, Ltd.</i>, 365 NLRB 156, slip op. at 35&nbsp; (&ldquo;requires proof that the alleged joint-employer entities have actually&nbsp;<i style="box-sizing: border-box;">exercised</i>&nbsp;joint control over essential employment terms&rdquo;) (emphasis in original);&nbsp;<i style="box-sizing: border-box;">Zheng v Liberty Apparel Co.</i>, 355 F.3d 61, 72 (2d Cir. 2003) (listing factors to consider to ascertain whether alleged joint employer has &ldquo;functional control over workers&rdquo; for purposes of the FLSA).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Certainly, the case can be made that the control necessary to establish the single enterprise defense is not the type of control necessary to support a joint employer finding.&nbsp; For example, a parent-subsidiary relationship is sufficient to establish the single enterprise defense,&nbsp;<i style="box-sizing: border-box;">see, e.g., Copperweld</i>, 467 U.S. at 777, but insufficient to show a joint employer relationship,&nbsp;<i style="box-sizing: border-box;">see Anwar v. Dow Chemical Co.</i>, 876 F.3d 841, 852-53 (6th Cir. 2017) (parent company not joint employer of subsidiary&rsquo;s employees).&nbsp;&nbsp;</span>T<span style="box-sizing: border-box;">o establish the single enterprise defense in the franchise context, the franchisor will have to show that it has substantial control over the franchisees&rsquo; operations.&nbsp; For example, in&nbsp;<i style="box-sizing: border-box;">Williams</i>, the court found that the franchisor exercised &ldquo;almost complete control&rdquo; over all decisions affecting the operation of the restaurants.&nbsp; 794 F. Supp. at 1032.&nbsp; Whether a franchisor can make a similar showing without creating evidence of joint employment is not risk free.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Other Defenses&nbsp;</span>T<span style="box-sizing: border-box;">o&nbsp;</span>T<span style="box-sizing: border-box;">he Antitrust No-Hire Claims May Be Strong</span></span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Normally, an agreement will violate Section 1 of the Sherman Act only if it has an unreasonably adverse effect on competition.&nbsp; The so-called &ldquo;rule of reason&rdquo; standard requires courts, in most cases, to analyze the effect of the agreement on competition in a relevant market and determine whether its anticompetitive effects outweigh its procompetitive benefits in that market.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally Atlantic Richfield Co. v. U.S.A. Petroleum Co.</i>, 495 U.S. 328, 342 (1990).&nbsp; Judicial experience with certain types of agreements, however, has demonstrated that such agreements are so plainly or manifestly anticompetitive that no elaborate study is necessary.&nbsp; Such agreements are conclusively presumed to be unreasonable and are deemed unlawful&nbsp;<i style="box-sizing: border-box;">per se</i>.&nbsp;&nbsp;<i style="box-sizing: border-box;">See, e.g., Business Electronics Corp. v. Sharp Electronics, Corp.</i>, 485 U.S. 717, 723-24 (1988).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Rule&nbsp;</span>O<span style="box-sizing: border-box;">f Reason Analysis Should Apply</span></span></u></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">The rule of reason should apply in determining the antitrust legality of no-hire agreements in the franchise setting.&nbsp; First, the restraint is not naked but rather ancillary to the franchise agreement.&nbsp; In&nbsp;<i style="box-sizing: border-box;">Williams,</i>&nbsp;the agreement&rsquo;s purpose was to prevent raiding after time and expense had been invested in training.&nbsp; 794 F. Supp. at 1092.&nbsp; Ancillary restraints are judged under the rule of reason.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally Eichorn v. AT&amp;T Corp.</i>, 248 F.3d 131, 142-46 (3d Cir. 2001) (ancillary agreements are judged under the rule of reason).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Second, since the agreements are limited to a single brand, they should be viewed as an intrabrand restraint imposed vertically by the franchisor to encourage training by franchisees to assist in competing against other franchise brands.&nbsp; Interbrand, as opposed to intrabrand, competition is &ldquo;the primary concern of antitrust law.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Continental T.V. v. GTE Sylvania Inc.</i>, 433 U.S. 36, 52 n.19 (1977).&nbsp; And nonprice vertical restraints that impose limitations on intrabrand competition are normally judged under the rule of reason.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally</i>&nbsp;ABA Section of Antitrust Law, Antitrust Law Developments, 152-57 (8th ed. 2017) (&ldquo;Developments&rdquo;);&nbsp;<i style="box-sizing: border-box;">see also Bogan v. Hodgkins</i>, 166 F.3d 509, 515 (2d Cir. 1999) (refusing to apply&nbsp;<i style="box-sizing: border-box;">per se</i>&nbsp;rule to antitrust challenge to no-switching agreement).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><i style="box-sizing: border-box;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">Individual Franchisors Do Not Have the Power&nbsp;</span>T</span><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">o Suppress</span><br style="box-sizing: border-box;" /> <u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Wages&nbsp;</span>I<span style="box-sizing: border-box;">n&nbsp;</span>T<span style="box-sizing: border-box;">he Market&nbsp;</span>F<span style="box-sizing: border-box;">or Restaurant Manager Jobs</span></u></span></i></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Under the rule of reason, courts usually require &ldquo;proof of a defendant&rsquo;s market power as a prerequisite for a plaintiff seeking to satisfy its burden of proving likely anticompetitive effect.&rdquo;&nbsp; Developments at 71.&nbsp; Market power is defined as the ability to raise prices above those that would be charged in a competitive market.&nbsp;<i style="box-sizing: border-box;">Id</i>. at 70-71.&nbsp; In the wage suppression context, that translates into the capability of a defendant to lower wages below those that would be paid in a competitive market.&nbsp; Courts rarely find that market power exists if a defendant&rsquo;s market share is under 30 percent.&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 71.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">To prove that a defendant has market power, the plaintiff must normally establish a relevant market, both in terms of the product involved and the geographic scope.&nbsp; The product market must include all products that are reasonably interchangeable.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally id</i>. at 583-88.&nbsp; Significantly, &ldquo;relevant markets generally cannot be limited to a single manufacturer&rsquo;s products.&rdquo;&nbsp;&nbsp;<i style="box-sizing: border-box;">Id</i>. at 591.&nbsp; In the franchise no-hire cases, that means that the product market must include jobs provided by all employers who offer positions that are reasonable substitutes for one another.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="color:#696969;"><span style="box-sizing: border-box;">The plaintiffs in the pending franchise no-hire cases claim that specialized training renders jobs at other franchises unreasonable substitutes.&nbsp;&nbsp;<i style="box-sizing: border-box;">E.g., Ion v. Pizza Hut, LLC</i>, Case No.&nbsp;4:17-cv-00788, Complaint at &para;&para;&nbsp;80-81,&nbsp;<i style="box-sizing: border-box;">available at</i></span></span><a href="https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf" style="box-sizing: border-box; color: rgb(0, 116, 211);"><span style="color:#696969;">https://www.classaction.org/media/ion-v-pizza-hut-llc.pdf</span></a><span style="color:#696969;"><span style="box-sizing: border-box;">&nbsp;(last visited on 4/10/2018).&nbsp; Thus, the plaintiffs are necessarily contending that the relevant product market is limited only to jobs at the defendant franchisor&rsquo;s franchisees.&nbsp; But to accept this argument the court would have to adopt the disfavored single brand market, and plaintiffs have failed to prevail on similar arguments in at least three other no-hire cases.&nbsp;&nbsp;<i style="box-sizing: border-box;">See Eichorn</i>, 248 F.3d at 148 (rejecting argument that relevant market was limited to jobs at AT&amp;T and its affiliates);&nbsp;<i style="box-sizing: border-box;">Bogan</i>, 166 F.3d at 516 (affirming summary judgment in a no-switching agreement case because plaintiffs were unable to show that the &ldquo;specialized training and expertise&rdquo; was sufficient to create an antitrust submarket consisting of agent positions provided by a single insurance company);&nbsp;</span></span></span></span><span style="color:#696969;"><em style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">In re: Compensation of Managerial &amp; Technical Employees Antitrust Litigation </em><span style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">(&ldquo;</span><em style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">CMT</em><span style="font-family: Arial, Verdana, sans-serif; font-size: 12px;">&rdquo;), No. 02-CV-2924 (GEB), 2008 U.S. Dist. LEXIS 63633 at *29-31 (D.N.J. Aug.&nbsp;20, 2008) (granting summary judgment to defendants because plaintiffs had not shown that the relevant market was limited to jobs in the oil and petrochemical industry).</span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;"><span style="box-sizing: border-box;">It is also highly unlikely that a plaintiff can show that any single franchisor possesses market power (<i style="box-sizing: border-box;">i.e.,&nbsp;</i>the ability to suppress wages) in the market for supervisor jobs, or even for manager or supervisor positions limited to&nbsp;</span>such establishments.&nbsp;<span style="box-sizing: border-box;">Certainly, no franchisor possesses 30 percent or more of either of those markets.</span></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">Plaintiffs may try to avoid this outcome by arguing that they can demonstrate actual anticompetitive effects resulting from the no-hire agreements with direct evidence, making a showing of market power unnecessary.&nbsp;&nbsp;<i style="box-sizing: border-box;">See generally&nbsp;</i>Developments at 68-70 (noting that some cases have acknowledged that proof of actual competitive harm can obviate the need to show market power even when restraints are not naked restrictions on price or output).&nbsp; But such a showing is difficult to make and has been rejected in at least one wage suppression case involving the exchange of wage information because the plaintiffs were unable to show that the relevant market was limited to jobs in the oil and petrochemical industry.&nbsp;&nbsp;<i style="box-sizing: border-box;">See CMT</i>, 2008 U.S. Dist. LEXIS 63633 at *23-26;&nbsp;<i style="box-sizing: border-box;">see also</i>Developments at 68-70 (&ldquo;attempts to prove substantial, actual anticompetitive effects have often been unsuccessful,&rdquo; citing cases).</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">For these reasons, franchisors have very strong arguments that no-hire agreements limited to their own franchisees that are limited in duration and designed to create incentives for franchisees to provide training do not violate the antitrust laws.&nbsp; Thus, franchisor defendants in these cases should carefully consider whether it is necessary to pursue the single enterprise defense and risk creating evidence that could support a joint employer argument in other contexts.</span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box; font-weight: 700;"><u style="box-sizing: border-box;"><span style="box-sizing: border-box;">Conclusion</span></u></span></span></span></span></p> <p style="box-sizing: border-box; margin-top: 0px; padding-top: 0px; margin-bottom: 20px; padding-bottom: 0px; font-family: proxima-nova-1, proxima-nova-2, helvetica, arial; font-size: 18px;"> <span style="color:#696969;"><span style="font-size:12px;"><span style="font-family:arial,helvetica,sans-serif;"><span style="box-sizing: border-box;">While each case will turn on its own facts, franchisors may have strong defenses available to them to resist antitrust challenges to their no-hire agreements.&nbsp; One of those defenses is the single enterprise defense, but pursuing that defense may create evidence that could be used against the franchisor in a subsequent joint employer claim.&nbsp; And, it is difficult to predict the potential adverse effects of creating that evidence given the current ambiguity and evolving nature of the joint employer doctrine.&nbsp; Thus, before raising the single enterprise defense, franchisors should carefully analyze the strength of that and other available defenses to the no-hire claim and weigh that against the risk of a joint employer claim.</span></span></span></span></p> http://www.seyfarth.com:80/publications/EL041718 Beyond Title III: Website Accessibility Lawsuits Filed Alleging Inaccessible Online Employment Applications http://www.seyfarth.com:80/publications/EL041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Plaintiffs who pursued numerous web accessibility actions under Title III of the ADA are now using website accessibility to test the limits of a different area of law &ndash; employment law &ndash; California&rsquo;s Fair Employment and Housing Act.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/beyond-title-iii-website-accessibility-lawsuits-filed-alleging-inaccessible-online-employment-applications/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/mandelkersyfywire041718 Lawrence Mandelker quoted in SyFy Wire http://www.seyfarth.com:80/news/mandelkersyfywire041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Lawrence Mandelker was quoted in an April 17 story from SyFy Wire, &quot;What would Batman and Iron Man pay in taxes?&quot; Both have inherited considerable wealth, which Mandelker says can affect what they&#39;ve owed to the states and feds. You can read the <a href="http://www.syfy.com/syfywire/what-would-batman-and-iron-man-pay-in-taxes">full article here</a>.</p> http://www.seyfarth.com:80/news/gurelllaw360041718 Marc Gurell quoted in Law360 http://www.seyfarth.com:80/news/gurelllaw360041718 Tue, 17 Apr 2018 00:00:00 -0400 <p> Marc Gurell was quoted in an April 17 story from Law360, &quot;Steel Tariff Fears Wreaking Havoc On Construction Market.&quot; Gurell said that aluminum and steel tariffs would logically increase the costs of construction in markets that rely on such materials, thereby affecting profitability in the real estate industry.</p> http://www.seyfarth.com:80/news/lazarslate041618 Bart Lazar quoted in Slate http://www.seyfarth.com:80/news/lazarslate041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in an April 16 story from Slate, &quot;Before Facebook, There Was GeoCities,&quot; on how the FTC&rsquo;s 1998 case against an early web pioneer laid the groundwork for data privacy discussions today. Lazar, who defended GeoCities, credits this case with having a big influence on the development of the online privacy domain moving forward. You can read the <a href="https://slate.com/technology/2018/04/the-ftcs-1998-case-against-geocities-laid-the-groundwork-for-facebook-debates-today.html">full article here</a>.</p> http://www.seyfarth.com:80/news/yangncr041618 Simon Yang quoted in the Northern California Record http://www.seyfarth.com:80/news/yangncr041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Simon Yang was quoted in an April 16 story from the Northern California Record, &quot;California legislators seek to reform &#39;controversial&#39; Private Attorney General Act.&quot; Yang said that, while reform is most certainly needed, the current system protects the Act in a way that reform will be difficult to enact. You can read the <a href="https://norcalrecord.com/stories/511391999-california-legislators-seek-to-reform-controversial-private-attorney-general-act">full article here</a>.</p> http://www.seyfarth.com:80/news/lacortenews041618 Andrew Boutros and Jay Schleppenbach quoted in LaCorte News http://www.seyfarth.com:80/news/lacortenews041618 Mon, 16 Apr 2018 00:00:00 -0400 <p> Andrew Boutros and Jay Schleppenbach were quoted in an April 16 story from LaCorte News, &quot;Foreign agent registrations see sharp increase amid special counsel&rsquo;s Russia probe.&quot; The findings are consistent with a new analysis from Boutros and Schleppenbach, who recently published a piece titled, &ldquo;Department of Justice &amp; Congress Signal Possibility of Increased Foreign Agents Registration Act Enforcement in 2018 and Beyond&rdquo; for Bloomberg Law. Boutros said that Sen. Grassley&rsquo;s push to expand and beef up the Foreign Agents Registration Act (FARA) suggests that maybe this is the beginning of a new renaissance in the government bringing FARA charges. You can read the <a href="https://www.lacortenews.com/2018/04/16/foreign-agent-registrations-see-sharp-increase-amid-special-counsels-russia-probe/">full article here</a>.</p> http://www.seyfarth.com:80/news/kayswglt041318 Danielle Kays interviewed by WGLT http://www.seyfarth.com:80/news/kayswglt041318 Fri, 13 Apr 2018 00:00:00 -0400 <p> Danielle Kays was interviewed April 13th by WGLT, &quot;Sexual Harassment, Other Workplace Issues Are Focus Of Employment Law Summit.&quot; Kays discussed the McLean County Bar Association, Chamber of Commerce and Bloomington-Normal Human Resource Council&#39;s upcoming summit on employment law. You can listen to the <a href="http://wglt.org/post/sexual-harassment-other-workplace-issues-are-focus-employment-law-summit#stream/0">full interview here</a>.</p> http://www.seyfarth.com:80/publications/MA041318-LE If Pain, Yes Gain—Part XLVI: New Jersey Becomes Tenth State to Pass Paid Sick Leave Law http://www.seyfarth.com:80/publications/MA041318-LE Fri, 13 Apr 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Yesterday, the New Jersey Senate joined the state Assembly in passing a bill that would impose statewide paid sick leave obligations on private employers and, notably, preempt all current and future municipal paid sick leave ordinances. The final step before New Jersey becomes the tenth state with a statewide sick leave mandate is for Governor Phil Murphy to sign the bill.&nbsp; He is expected to do so in the coming days. Once signed, Garden State employers will have 180 days until the paid sick leave requirements begin.</em></p> <p> After years of frequent paid sick leave symptoms, including passing 13 municipal paid sick leave ordinances and often exploring the <a href="http://www.seyfarth.com/publications/MA122815-LE">possibility</a> of a statewide paid sick leave standard, New Jersey is on the verge of finally catching the nation&rsquo;s paid sick leave bug and becoming the latest state to enact a statewide paid sick leave law. &nbsp;The updated prognosis follows yesterday&rsquo;s successful New Jersey Senate vote on Bill A1827 (the &ldquo;Bill&rdquo; or the &ldquo;PSL Law&rdquo;)&mdash;a statewide sick leave mandate that would require employers to provide employees in New Jersey with paid sick leave.&nbsp; The Senate vote followed the example set by the New Jersey Assembly, which <a href="http://www.seyfarth.com/publications/MA032818-LE">voted on and passed the Bill last month</a>.</p> <p> The Bill now awaits Governor Phil Murphy&rsquo;s signature.&nbsp; Unlike his predecessor, New Jersey employers should not expect that Governor Murphy will cure their looming sick leave woes as he is expected to sign the Bill in the near future.&nbsp; Once the Bill is signed, the Garden State will officially be home to the country&rsquo;s tenth paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The Bill will take effect on the 180th day following its enactment. Assuming it is signed by Governor Murphy before the end of the month, New Jersey employers&rsquo; paid sick leave obligations will begin sometime in mid to late-October 2018.&nbsp;</p> <p> Notably, and after some potential uncertainty due to a related, but not identical Senate sick leave bill, the new state PSL Law will preempt all existing and future municipal sick leave ordinances. In other words,&nbsp; when the PSL Law goes into effect later this year, it will preempt the state&rsquo;s 13 existing municipal paid sick leave ordinances.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; Thus, while the introduction of a new statewide PSL Law will impose sick leave burdens on numerous businesses previously immune to such standards, a silver lining for employers with operations in any of the 13 New Jersey sick leave municipalities is that they have avoided a potential sick leave patchwork.</p> <p> Here are some highlights of the New Jersey PSL Law:</p> <ul> <li> <strong>Employee Eligibility:</strong> &ldquo;Employee&rdquo; is defined broadly and means &ldquo;any individual engaged in service to an employer in the business of the employer for compensation.&rdquo; &nbsp;The PSL Law excludes certain employees in the construction industry who are under a collective bargaining agreement, certain per diem health care employees, and certain public employees.</li> <li> <strong>Covered Employer: </strong>&ldquo;Employer&rdquo; is also broadly defined and includes persons or entities that employ employees in New Jersey.</li> <li> <strong>Accrual, Usage and Carryover:</strong> <ul> <li> <strong>Start of Accrual: </strong>The PSL Law states that sick leave accrual will start on the later of the law&rsquo;s effective date or the date the employee&rsquo;s employment begins.&nbsp;</li> <li> <strong>Usage Waiting Period: </strong>Employees are entitled to begin using paid sick leave on the 120th calendar day after the start of their employment.&nbsp; This means that existing employees who have been employed for at least 120 calendar days at the time the PSL Law goes into effect will be entitled to use paid sick leave as it accrues.</li> <li> <strong>Accrual Rate and Cap: </strong>All employees working for an employer in New Jersey are entitled to accrue one hour of sick leave for every 30 hours worked, up to 40 hours per year.&nbsp;</li> <li> <strong>Usage and Carryover Caps: </strong>An employer is not required to permit employees to use more than 40 hours of paid sick leave in any benefit year or carry over more than 40 hours of unused sick leave at year-end.</li> </ul> </li> <li> <strong>Frontloading:</strong> While an employer may frontload an employee with the full amount of earned sick leave on the first day of each benefit year to avoid the accrual process, it does not appear that the PSL Law allows employers with a frontloading system to adopt a &ldquo;use it or lose it&rdquo; approach for unused sick leave at the end of the year. &nbsp;The PSL Law states that if the employer chooses to frontload the required amount of sick leave at the start of each year, it must either <strong>(1) </strong>pay the employee for the full amount of unused earned sick leave in the final month of the benefit year; or <strong>(2)</strong> permit the employee to carry over unused sick leave to the next benefit year.</li> <li> <strong>Payout at Year-End: </strong>Employers can, but are not required to, offer employees a payment of unused earned sick leave in the final month of the employer&rsquo;s benefit year. The employee then has 10 calendar days from the date of the offer to either <strong>(1)</strong> accept the payment in full, <strong>(2)</strong> accept the payment for 50 percent of the amount of unused earned sick leave, or <strong>(3)</strong> decline the payment. If the employee chooses options (2) or (3), up to 40 hours of unused, unpaid earned sick leave will carry over to the next benefit year.</li> <li> <strong>Reasons for Use:&nbsp; </strong>An employee must be permitted to use earned sick leave for any of the following reasons: <ul> <li> For diagnosis, care, or treatment of, or recovery from, an employee&rsquo;s mental or physical illness, injury or other adverse health condition or for preventive medical care for the employee;</li> <li> For the employee to aid or care for a covered family member during diagnosis, care, or treatment of, or recovery from, the family member&rsquo;s mental or physical illness, injury or adverse health condition, or during preventive medical care for the family member;</li> <li> Certain absences resulting from the employee or a covered family member&rsquo;s status as a victim of domestic or sexual violence;</li> <li> Closures of the employee&rsquo;s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee&rsquo;s family member in need of care by the employee, would jeopardize the health of others;</li> <li> For time needed by the employee to attend his/her child&rsquo;s school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child&rsquo;s education, or to attend a meeting regarding care provided to the child in connection with the child&rsquo;s health conditions or disability.</li> </ul> </li> <li> <strong>Family Member:</strong> Covered family member includes: <strong>(1) </strong>child; <strong>(2) </strong>grandchild; <strong>(3)</strong> sibling; <strong>(4)</strong> spouse; <strong>(5) </strong>domestic partner; <strong>(6) </strong>civil union partner;<strong> (7)</strong> parent; <strong>(8)</strong> grandparent; <strong>(9)</strong> spouse, domestic partner, or civil union partner of a parent or grandparent of the employee; <strong>(10)</strong> a sibling of a spouse, domestic partner, or civil union partner of the employee; or <strong>(11)</strong> any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship. A number of these terms have definitions under the PSL Law.</li> <li> <strong>Use of PTO:</strong> The PSL Law states that employers can use non-sick paid leave programs (i.e., PTO, vacation, etc.) for compliance if the leave is fully paid, accrues at a sufficient rate, and can be used for the same purposes set forth under the law and &ldquo;in the manner provided&rdquo; by the law.</li> <li> <strong>Payment of Sick Leave:</strong> Employers will be required to pay an employee for earned sick time at the same rate of pay and with the same benefits as the employee normally earns, except such payment must not be less than the minimum wage.</li> <li> <strong>Increments of Use:</strong> Unlike many existing paid sick leave laws and ordinances, the PSL Law states than an employer may choose the increments in which its employees must use paid sick leave, limited only by the number of hours the employee would have worked. In other words, the increment of use cannot exceed the number of hours the employee was scheduled to work and would have worked had he/she not used sick leave.</li> <li> <strong>Notice to Employer: </strong> <ul> <li> <strong>Foreseeable Absences: </strong>For foreseeable sick leave absences (i.e., a scheduled doctor&rsquo;s appointment), employers may require employees to provide advance notice of their intention to use paid sick leave, up to seven days prior to the date the leave is expected to begin, and the expected duration of the leave. Employers can require employees to make a reasonable effort to schedule the use of earned sick leave in a manner that does not unduly disrupt the employer&rsquo;s operations.&nbsp; Notably, the PSL Law also allows employers to prohibit employees from using earned sick leave for foreseeable absences on certain dates, and states that employers may require employees to provide reasonable documentation if they have an unforeseeable need for sick leave on those dates.</li> <li> <strong>Unforeseeable Absences: </strong>For unforeseeable sick leave absences, employers can require that employees provide notice of their intention to use sick leave as soon as practicable.&nbsp; The PSL Law expressly states that employers that require notice for unforeseeable sick leave absences must notify employees of this requirement.</li> </ul> </li> <li> <strong>Documentation: </strong>Employers may require employees to submit reasonable documentation if they use paid sick leave for three or more consecutive days, or, as noted above, if the employee uses sick leave for an unforeseeable absence on certain dates that the employer does not permit employees to take sick leave for foreseeable absences. The PSL Law provides examples of what is considered reasonable documentation based on the nature of the protected absence.</li> <li> <strong>Collective Bargaining Agreements (CBA):</strong> The PSL Law states it does not apply to employees covered by a CBA in effect at the time the PSL law goes into effect until the CBA expires. The PSL law further notes that employees or employee representatives may waive the rights or benefits provided under the law during the negotiation of a CBA.</li> <li> <strong>Retaliation: </strong>The PSL Law prohibits any retaliatory personnel action or discrimination against an employee because the employee requests or uses paid sick leave in accordance with the law or, and significantly, the employer&rsquo;s own earned sick leave policy.</li> <li> <strong>Notice and Posting: </strong>The PSL Law requires that employers provide notice to employees and display a poster of employees rights under the law. Specifically, employers must provide each employee with a written copy of the notice <strong>(1)</strong> not later than 30 days after the state issues the model notice, <strong>(2)</strong> at the time of the employee&rsquo;s hiring, if he/she is hired after the model notice is issued, and <strong>(3)</strong> at any time when first requested by the employee.&nbsp;</li> <li> <strong>Recordkeeping: </strong>Employers must maintain certain paid sick leave records for a period of at least five years.&nbsp;</li> <li> <strong>Termination of Employment: </strong>Employers are not required to cash out any earned, unused paid sick leave upon separation of employment. However, if an employee is rehired by the employer within six months of separation, any accrued, unused paid sick leave must be reinstated to the employee.</li> </ul> <p> Employers should take steps now to comply with the requirements of PSL Law before the law&rsquo;s expected mid-October 2018 effective date. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the PSL Law.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the PSL Law.</li> <li> Monitor the New Jersey Department of Labor and Workforce Development website for information on the PSL Law, including a model poster/notice and proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> We will continue to monitor and provide updates on New Jersey paid sick leave developments as the effective date approaches and any changes that take place thereafter.&nbsp;</p> <p> As the paid sick leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The nine states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>; and (9) <a href="http://www.seyfarth.com/publications/MA020918-LE">Maryland</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The Maryland statewide paid sick leave law went into effect on February 11, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The New Jersey municipalities with current paid sick leave ordinances are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; &nbsp;(8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth, and (13) New Brunswick.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/TS041318 Franchise “No-Hire” Agreement Class Actions And The Single Enterprise Defense http://www.seyfarth.com:80/publications/TS041318 Fri, 13 Apr 2018 00:00:00 -0400 <p> This post originally appeared on the Workplace Class Action blog.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/restrictive-covenants/franchise-no-hire-agreement-class-actions-and-the-single-enterprise-defense/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM041218-LE DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/OMM041218-LE Thu, 12 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions.&nbsp; While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal.&nbsp; Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace.&nbsp; Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.</em></p> <p> In January 2018, Makan Delrahim, the Assistant Attorney General for the Antitrust Division, said that the Department Of Justice (&ldquo;DOJ&rdquo;) had been very active in reviewing potential antitrust violations resulting from agreements among employers not to compete for workers.&nbsp; (We previously reported on this announcement <a href="http://www.seyfarth.com/publications/MA012518-LE">here</a> and <a href="http://www.seyfarth.com/dir_docs/publications/PoachEmployeesPublishWCR.PDF">here</a>.)&nbsp; He said that he was &ldquo;shocked&rdquo; at how many there were and that in the coming months there would be announcements of enforcement actions.&nbsp; He also mentioned that if the conduct occurred or continued after issuance of the October 2016 joint DOJ and Federal Trade Commission (&ldquo;FTC&rdquo;) Antitrust Guidance for Human Resource Professionals (the &ldquo;Joint Guidance&rdquo;), the DOJ may treat those agreements as criminal.</p> <p> On April 3, 2018, the first of these announcements was made.&nbsp; <em>See</em> &ldquo;Justice Department Requires Knorr and Wabtec to Terminate Unlawful Agreements Not to Compete for Employees,&rdquo; available <a href="http://www.justice.gov/opa/pr/justice-department-requires-knorr-and-wabtec-terminate-unlawful-agreements-not-compete">here</a> (&quot;News Release&rdquo;).&nbsp; The DOJ advised that it filed a complaint in which it alleged that Knorr-Bremse AG (&ldquo;Knorr&rdquo;), Westinghouse Air Brake Technologies Corporation (&ldquo;Wabtec&rdquo;) and Faiveley Transport S.A., before it was acquired by Wabtec, entered into agreements not to compete for each other&rsquo;s employees (&ldquo;no-poach&rdquo; agreements).&nbsp; The DOJ contends that these were naked agreements &ndash; <em>i.e.,</em> not reasonably necessary for a separate, legitimate business transaction or collaboration &ndash; and amounted to <em>per se</em> violations of Section 1 of the Sherman Act.&nbsp; With the Complaint DOJ also filed a Competitive Impact Statement; Explanation of Consent Decree; and Stipulation and Proposed Final Judgment.&nbsp; (<em>See</em> News Release.)</p> <p> As noted, Mr. Delrahim stated that there were a number of these investigations ongoing, and in the News Release said that this Complaint was &ldquo;part of a broader investigation by the Antitrust Division into naked agreements not to compete for employees.&rdquo;&nbsp; So more of these announcements can be expected, and some may be announcements of criminal prosecutions.</p> <p> <strong>Many Employees Are Unaware That the Antitrust Laws Apply to the Employment Market</strong></p> <p> Often some business executives and human resource professionals are unaware that the antitrust laws apply to the workplace.&nbsp; Executives who would never consider discussing prices with their competitors are unaware that discussing wages or salaries could have antitrust risks.&nbsp; Similarly, employee covenants not to compete are commonplace and many executives have them in their own employment contracts.&nbsp; So unless they have received specific training, an executive may be unaware of the antitrust risks associated with no-poaching agreements.&nbsp; And up until recently even the most elaborate and detailed antitrust compliance policies that strictly prohibited discussing prices rarely addressed the exchange of wage and salary information or prohibited no-poaching agreements.</p> <p> But the DOJ and FTC have now greatly ratcheted up their enforcement efforts with respect to alleged restraints in the employment market.&nbsp; And with the DOJ and FTC taking the position that naked no-poaching agreements are <em>per se</em> unlawful and subject to criminal prosecution, the antitrust risks have been greatly increased &mdash; not to mention the costly class actions that are likely to follow any settlement with the DOJ.</p> <p> <strong>Employers Should Investigate and Implement Compliance Programs</strong></p> <p> Thus, employers can no longer ignore the risk.&nbsp; If they have not already done so, employers should consider:</p> <ol> <li> Conducting an internal investigation to determine whether the company is engaging in the informal gathering of wage, salary or benefit information; or whether it has entered into any no-poach agreements.&nbsp; The investigation should be conducted or closely supervised by counsel with steps taken to preserve the attorney-client privilege.&nbsp; Also, if it is discovered that the company has engaged in any &ldquo;naked&rdquo; wage-fixing or no-poaching agreements on or after October&nbsp;25, 2016, then criminal counsel should be consulted as DOJ may treat such conduct as criminal.</li> <li> Implementing an antitrust compliance program that ensures that all management and human resources personnel are aware that they cannot: (1) engage in a naked wage, salary or benefits-fixing agreement with any other unrelated employer; (2) engage in the gathering or exchange of wage, salary or benefits information without full compliance with the Joint Guidance; or (3) enter into any no-poach agreement without prior approval of counsel.&nbsp; Such individuals should, on an annual basis, be required to acknowledge in writing that they are aware of these prohibitions.&nbsp; Also, anyone hired or transferred into any of these positions should be made aware of these prohibitions at the time they are hired or transferred.&nbsp; These employees should also be advised that the DOJ is likely to treat naked wage/salary/benefit-fixing and no-poaching agreements as criminal and employees could be sentenced to prison for engaging in such conduct.</li> </ol> http://www.seyfarth.com:80/publications/OMM041218-LIT States Moving To Fill Perceived Void in CFPB Enforcement http://www.seyfarth.com:80/publications/OMM041218-LIT Thu, 12 Apr 2018 00:00:00 -0400 <div> In response to &ldquo;the void left by the Trump Administration&rsquo;s pullback of the [CFPB],&rdquo; the New Jersey Attorney General recently <a href="http://www.nj.gov/governor/news/news/562018/approved/20180327c_newleadership.shtml">announced</a> that Paul R. Rodriguez will be serve at the Director of the New Jersey Division of Consumer Affairs, the state&rsquo;s lead consumer protection agency. Mr. Rodriguez will serve as the Acting Director of the Division beginning on June 1, 2018, until he is confirmed by the New Jersey Senate. This appointment fulfills one of Governor Phil Murphy&rsquo;s promises to create a &ldquo;state-level CFPB&rdquo; in New Jersey.</div> <div> &nbsp;</div> <div> Several other state attorneys general, including those in California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Mexico, North Carolina, Oregon, Vermont, Virginia, and Washington, have <a href="http://www.seyfarth.com/dir_docs/publications/State_AGs_Announcement_re_CFPB.pdf">announced</a> that they intend to fill any void resulting from leadership changes at the CFPB by continuing to vigorously enforce federal consumer protection laws, as well as the consumer protection laws of their respective states. This sentiment was memorialized in a December 14, 2017, letter from the attorneys general to President Trump expressing their support for the CFPB&rsquo;s mission and their disapproval of Mick Mulvaney&#39;s appointment as CFPB Acting Director.&nbsp;</div> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor and report on this potential state-level CFPB formation trend and related enforcement activity.&nbsp;</div> http://www.seyfarth.com:80/publications/eba041218 Nicole Bogard, Diane Dygert, Peter Varney and Joy Sellstrom authored an article in Employee Benefit Adviser http://www.seyfarth.com:80/publications/eba041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Nicole Bogard, Diane Dygert, Peter Varney and Joy Sellstrom authored an April 12 article in Employee Benefit Adviser, &quot;IRS retroactively reduces HSA contribution limit.&quot; You can read the <a href="https://www.employeebenefitadviser.com/opinion/irs-retroactively-reduces-hsa-contribution-limit">full article here</a>.</p> http://www.seyfarth.com:80/publications/FE041218 Why “Future Proofing” Is a Myth http://www.seyfarth.com:80/publications/FE041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> In this environment, there is a soothsaying comfort in taking measures that might &ldquo;future proof&rdquo; your organisation from the potentially terrifying effects of change and disruption.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/4/11/why-future-proofing-is-a-myth">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD041218 States Moving To Fill Perceived Void in CFPB Enforcement http://www.seyfarth.com:80/publications/CCD041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> In response to &ldquo;the void left by the Trump Administration&rsquo;s pullback of the [CFPB],&rdquo; the New Jersey Attorney General recently announced that Paul R. Rodriguez will be serve at the Director of the New Jersey Division of Consumer Affairs, the state&rsquo;s lead consumer protection agency. Mr. Rodriguez will serve as the Acting Director of the Division beginning on June 1, 2018, until he is confirmed by the New Jersey Senate. This appointment fulfills one of Governor Phil Murphy&rsquo;s promises to create a &ldquo;state-level CFPB&rdquo; in New Jersey.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/04/states-moving-to-fill-perceived-void-in-cfpb-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR041218 How Will Organized Labor Reorganize? http://www.seyfarth.com:80/publications/LR041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Unions represent only 6.5% of all private sector employees. However, rather than focusing on the past and why its fortunes have declined, a more interesting question may be what organized labor is actively doing to reverse this trend.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/04/12/how-will-organized-labor-reorganize/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM041218-LE2 USCIS Completes the H-1B Cap Random Selection Process for FY 2019 http://www.seyfarth.com:80/publications/OMM041218-LE2 Thu, 12 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> USCIS completes the lottery process and received 190,098 H-1B cap petitions.</em></p> <p> On April 12, 2018, United States Citizenship and Immigration Services (USCIS) announced that it received 190,098 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2019, which begins on October 1, 2018.&nbsp; This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap.&nbsp; The number of petitions decreased slightly again this year, down from more than 199,000 petitions filed for Fiscal Year 2018.</p> <p> In addition, USCIS announced that they completed a computer-generated random selection process -- the lottery -- for all cap-subject filings received from Monday, April 2 through Friday, April 6, 2018 to determine which filings to adjudicate.&nbsp; USCIS first conducted the lottery process for H-1B petitions subject to the Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees.&nbsp; Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.&nbsp; USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/IMM041218 USCIS Completes the H-1B Cap Random Selection Process for FY 2019 http://www.seyfarth.com:80/publications/IMM041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: USCIS completes the lottery process and received 190,098 H-1B cap petitions.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/04/uscis-completes-the-h-1b-cap-random-selection-process-for-fy-2019/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/epdnlj041218 Camille Olson, Matthew Gagnon and Annette Tyman quoted in the National Law Journal http://www.seyfarth.com:80/news/epdnlj041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Camille Olson, Matthew Gagnon and Annette Tyman were quoted in an April 12 story from the National Law Journal, &quot;Ruling on Salary History Fuels Renewed Focus on Gender Pay Inequities.&quot; The Seyfarth attorneys, speaking on an Equal Pay Day webinar, said understanding pay discrepancies isn&rsquo;t always clear-cut.</p> http://www.seyfarth.com:80/news/launeyncr041218 Kristina Launey quoted in the Northern California Record http://www.seyfarth.com:80/news/launeyncr041218 Thu, 12 Apr 2018 00:00:00 -0400 <p> Kristina Launey was quoted in an April 12 story from the Northern California Record, &quot;Small business often hurt by serial plaintiffs in ADA violation suits, expert says,&quot; on how companies throughout California have been suffering due to the occurrence of serial plaintiffs, individuals hired to find violations of requirements under the Americans with Disabilities Act. Launey explained the challenges surrounding these types of cases in California. You can read the <a href="https://norcalrecord.com/stories/511363777-small-business-often-hurt-by-serial-plaintiffs-in-ada-violation-suits-expert-says">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA041118-LE Equal Pay Day 2018: Introducing Seyfarth’s Trends and Developments in Pay Equity Litigation Report and the 2nd Annual 50-State Pay Equity Desktop Reference http://www.seyfarth.com:80/publications/MA041118-LE Wed, 11 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Seyfarth&rsquo;s Pay Equity Group is pleased to release two reference guides: the <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">2018 Trends and Developments in Pay Equity Litigation Report</a> and the <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference.</a></em></p> <p> Yesterday, April 10, 2018, was Equal Pay Day.&nbsp; While there are limitations of the statistic that underlies the event, there seems to be no limit to the focus on pay equity.&nbsp; To help understand the legal landscape as it stands today, the Seyfarth Pay Equity Group is pleased to share two guides to help enhance your compliance efforts: the <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">2018 Trends and Developments in Pay Equity Litigation Report</a> and the <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference. </a></p> <p> As we reflect on Equal Pay Day this year, and think ahead to the future, certain trends emerge:&nbsp;</p> <ul> <li> <strong>Amped-Up Pay Laws</strong>: While California, New York, and Massachusetts led the way in adopting stricter state pay equity laws, other states, including Maryland and Oregon, soon followed suit.&nbsp; The trend continues into 2018 with New Jersey and Washington passing similarly onerous laws in recent weeks. &nbsp;Laws banning employers from asking candidates for employment about prior salary is another trend.&nbsp; Laws have been enacted in nine jurisdictions and several other states are considering similar salary history bans. &nbsp;The <a href="http://www.seyfarth.com/dir_docs/publications/PayEquity_50State.pdf">2nd Annual 50-State Pay Equity Desktop Reference </a>outlines these changes.&nbsp;</li> <li> <strong>Litigation Uptick: </strong>Not surprisingly, concurrent with these new laws and developments, the Seyfarth Pay Equity Group has seen an increased interest by the plaintiff&rsquo;s bar in litigation under the federal Equal Pay Act and analogous state laws. The primary targets for this new wave of litigation have been firms in the legal and tech industries. Those cases are already generating new and intriguing law that has the potential to reshape the landscape of pay equity litigation, including whether and how those claims can be maintained as collective or class actions. The <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">Trends and Developments in Pay Equity Litigation Report</a> &nbsp;outlines these cases and trends.</li> <li> <strong>Federal Circuit Split on Pay Factors</strong>:&nbsp; Recent cases demonstrate that <a href="http://www.seyfarth.com/publications/OMM050417-LE">Federal circuit courts are split</a> on whether prior salary can be used as a factor that justifies differences in pay under the federal Equal Pay Act.&nbsp; Just yesterday, <a href="file:///C:/NRPortbl/SEY1/MBAILEY/cdn.ca9.uscourts.gov/datastore/opinions/2018/04/09/16-15372.pdf">the Ninth Circuit changed course </a>in an <em>en banc</em> decision, and held that an employee&rsquo;s prior salary does not constitute a &ldquo;factor other than sex&rdquo; upon which a wage differential may be based under the statutory &ldquo;catchall&rdquo; exception in the federal Equal Pay Act. &nbsp;The <a href="http://www.seyfarth.com/dir_docs/publications/Trends_PayEquityLitigation_April2018.pdf">Trends and Developments in Pay Equity Litigation Report</a> has up-to-date information on this circuit split and the new <em>Rizo</em> decision.&nbsp; Stay tuned to see this in the Supreme Court.</li> <li> <strong>A Push Towards Greater Transparency and More Structure</strong>: The benefit to having more defined pay structures and being more transparent about pay is that it often helps demystify what has long been thought to be a taboo topic.&nbsp; Structure also provides an opportunity to reassure employees about their pay, if they are paid in line with their peers, and helps employers identify any concerns that may have been unintentionally overlooked.&nbsp; Lastly, employers are weighing <a href="https://www.laborandemploymentlawcounsel.com/2016/04/pay-equity-communications-aka-what-do-i-say/">voluntary</a> or mandatory <a href="http://www.seyfarth.com/publications/PEG020817">(like in the U.K.</a>) disclosures about pay. &nbsp;This raises additional concerns and, at the same time, provides additional opportunities. We expect this trend to continue.</li> </ul> <p> All of the members of the Pay Equity Group look forward to working with you and partnering with you in navigating these issues in 2018 and beyond.&nbsp; We hope you find the guides useful in this journey.</p> <p> <em>Christine Hendrickson and Annette Tyman co-chair </em><a href="http://www.seyfarth.com/pay-equity-group"><em>Seyfarth&rsquo;s Pay Equity Group</em></a><em>.&nbsp; For 20 years, Seyfarth&rsquo;s Pay Equity Group has led the legal industry in fair pay analysis, thought leadership, and client advocacy.&nbsp;</em></p> http://www.seyfarth.com:80/publications/CP041118 Time Again to Flex Those Pecs! 2018 Edition of Cal-Pecs Book Is Here! http://www.seyfarth.com:80/publications/CP041118 Wed, 11 Apr 2018 00:00:00 -0400 <p> We&rsquo;re pleased to announce that the 2018 version of our Cal-Peculiarities: How California Employment Law is Different, your indispensable California employment law guide, is arriving next week, to coincide with our annual update Webinar on the same subject. This edition, like its predecessors, aims to help private employers understand what&rsquo;s peculiar about California employment law. In the 2018 Edition, we continue to highlight recent court decisions and legislative developments, and how they may impact you and your business.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/11/time-again-to-flex-those-pecs-2018-edition-of-cal-pecs-book-is-here/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT041118 Maine Employers Receive Little Guidance From Department of Labor on New Recreational Marijuana Law http://www.seyfarth.com:80/publications/TBT041118 Wed, 11 Apr 2018 00:00:00 -0400 <p> As previously reported here, on November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act became the first law of its kind in the nation to protect employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/maine-employers-receive-little-guidance-from-department-of-labor-on-new-recreational-marijuana-law/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM041018-LIT Smoke Signals Out of Washington Suggest Increased Enforcement of the Foreign Agents Registration Act http://www.seyfarth.com:80/publications/OMM041018-LIT Tue, 10 Apr 2018 00:00:00 -0400 <div> Following the October 27, 2017, indictment of Paul Manafort, legal experts and savvy political actors alike expressed surprise to see charges brought under the Foreign Agents Registration Act (FARA), a seldom-used statue enacted in 1938 to combat the rise of Nazi propaganda activity in the United States. In the nearly 50 years between 1966 and 2015, only seven criminal prosecutions had ever been brought under FARA, and only one of those resulted in a conviction at trial. The charges against Manafort appear to have led to a substantial uptick of new FARA filings; since Special Counsel Robert Mueller started his probe in May 2017 through the present, approximately 100 new registrants have filed under FARA, which represents a 75 percent increase in new registrants as compared to the same period a year earlier.</div> <div> &nbsp;</div> <div> In addition, late last year Iowa&rsquo;s U.S. Senator and Chairman of the Senate Judiciary Committee, Chuck Grassley, introduced a bill that seeks to strengthen FARA by giving the Justice Department&rsquo;s FARA unit the power to issue civil investigative demands and directing the Attorney General to &ldquo;develop and implement a comprehensive strategy to improve the enforcement and administration of&rdquo; FARA. Significantly, the bill would also remove one of FARA&rsquo;s current and often-used exemptions, which allows agents for foreign entities to avoid the requirement to complete detailed FARA filings by instead filing an abbreviated form under the Lobbying Disclosure Act. Senator Grassley&rsquo;s bill follows a similar March 2017 bill introduced by New Hampshire&rsquo;s U.S. Senator Jeanne Shaheen, suggesting that there is some level of bipartisan support for FARA&rsquo;s increased enforcement.&nbsp;</div> <div> &nbsp;</div> <div> In light of these signs of increased FARA enforcement, companies and those who do business internationally would do well to consult with experienced counsel about the statute, which contains broad language that brings a wide range of entities and individuals within its scope. For example:</div> <div> &nbsp;</div> <ul> <li> With certain exemptions, FARA requires all agents of foreign principals to file registration statements with the Attorney General within ten days of becoming an agent, with periodic updates to follow.&nbsp;&nbsp;</li> <li> &ldquo;Foreign principals&rdquo; are broadly defined to include all foreign governments, political parties, people, and organizations.&nbsp;&nbsp;</li> <li> &ldquo;Agents&rdquo; encompass all those who (1) engage in political activities in the United States, (2) act as public relations representatives, (3) solicit or dispense contributions or other things of value, or (4) interact with a U.S. government agency on behalf of a foreign principal.&nbsp;&nbsp;</li> </ul> <div> &nbsp;</div> <div> Thus, companies and individuals&mdash;particularly those in media&mdash;must pay particularly close attention to whether they may have FARA-filing responsibilities of which they have previously been unaware or lackadaisical. In the alternative, to the extent a company or individual potentially falls within one of FARA&rsquo;s exemptions (and there are several), that entity or person would be well served to avoid taking a do-it-yourself approach to these intricate legal questions.&nbsp;</div> <div> &nbsp;</div> <div> For the full version of this article, which originally appeared in <em>Bloomberg Law White Collar Report</em>, 13 WCR 260 (March 30, 2018), <a href="http://www.seyfarth.com/dir_docs/publications/180402-WCCR.pdf">click here</a>.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WC041018 DOJ Announces First Of A Number Of Anticipated No-Poach Enforcement Actions – What Should Employers Do Now? http://www.seyfarth.com:80/publications/WC041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: True to his word, the Assistant Attorney General for the Antitrust Division of the U.S. Department of Justice has announced the first of a number of anticipated no-poach enforcement actions. While this was a civil proceeding, the Department of Justice has said that in some cases it may treat the conduct as criminal. Many executives and HR professionals are unaware that the antitrust laws apply to the employment marketplace. Thus, if they have not done so already, employers should consider the implementation of compliance programs to make sure that appropriate employees are aware of these developments and risks.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/04/doj-announces-first-of-a-number-of-anticipated-no-poach-enforcement-actions-what-should-employers-do-now/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL041018 Equal Pay Day 2018: Introducing Seyfarth’s Trends and Developments in Pay Equity Litigation Report http://www.seyfarth.com:80/publications/EL041018 Tue, 10 Apr 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/equal-pay-day-2018-introducing-seyfarths-trends-and-developments-in-pay-equity-litigation-report/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/tymancosmo041018 Annette Tyman quoted in Cosmopolitan http://www.seyfarth.com:80/news/tymancosmo041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Annette Tyman was quoted in an April 10 story from Cosmopolitan, &quot;Everything That Needs to Change for Women to Finally Get Equal Pay.&quot; Tyman said that being upfront and willing to have a discussion about pay often helps demystify what has long been a taboo topic and provides an opportunity to fix anything that may have been overlooked. You can read the <a href="https://www.cosmopolitan.com/politics/a19725492/ways-to-fix-the-wage-gap/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarplansponsor041018 Seyfarth's Workplace Class Action Report referenced in PlanSponsor http://www.seyfarth.com:80/news/wcarplansponsor041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was referenced in an April 10 story from PlanSponsor, &quot;Fiduciary Governance Group Launched by Stradley Ronon.&quot; As laid out in a Seyfarth&#39;s Workplace Class Action Report, plaintiffs found some significant success in 2017 when it came to winning ERISA class certification. You can read the <a href="https://www.plansponsor.com/fiduciary-governance-group-launched-stradley-ronon/">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonpoliticopro041018 Marshall Babson quoted in PoliticoPro http://www.seyfarth.com:80/news/babsonpoliticopro041018 Tue, 10 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 10 story from PoliticoPro, &quot;War at the NLRB Back,&quot; on a NLRB general counsel&#39;s proposal of additional restrictions on the decision-making power of regional officials, such as requiring all cases go through headquarters for initial review. Babson said that if you&#39;re talking about injecting another level of review, that could slow things down.</p> http://www.seyfarth.com:80/news/goodfellowpennrecord040918 James Goodfellow quoted in the Penn Record http://www.seyfarth.com:80/news/goodfellowpennrecord040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> James Goodfellow was quoted in an April 9 story from the Penn Record, &quot;Third Circuit gives ERISA plan administrators a win,&quot; on how the U.S. Court of Appeals for the Third Circuit affirmed a district court&rsquo;s decision to deny a claim for long-term disability benefits. Goodfellow said that it wasn&#39;t a surprise, but it was a victory for benefits plan administrators. You can read the full article here: https://pennrecord.com/stories/511381113-third-circuit-gives-erisa-plan-administrators-a-win</p> http://www.seyfarth.com:80/news/hendersonbloombergbna040918 Joshua Henderson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/hendersonbloombergbna040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Joshua Henderson was quoted in an April 9 story from Bloomberg BNA, &quot;California High Court Ruling Could Set Off Worker Safety Lawsuits,&quot; on how employees can sue employers for workplace safety violations under state&#39;s consumer laws. Henderson said that this case raises the possibility that employees who have allegedly suffered a workplace injury, or brought a Cal/OSHA issue can go to court for it.</p> http://www.seyfarth.com:80/news/lazarlaw360040918 Bart Lazar quoted in Law360 http://www.seyfarth.com:80/news/lazarlaw360040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in an April 9 story from Law360, &quot;4 Things To Watch As Facebook CEO Heads To Congress,&quot; on the FTC, which in recent years has policed privacy issues by accusing firms of unfair or deceptive business practices. Lazar said that the agency could release a list of baseline principles about what sorts of data collection practices are presumed not to be permitted without clear consent.</p> http://www.seyfarth.com:80/publications/MA040918-LIT The State of Buy America: Changes to New York’s Domestic Preference Regime for Public Works and Infrastructure Projects http://www.seyfarth.com:80/publications/MA040918-LIT Mon, 09 Apr 2018 00:00:00 -0400 <div> The state of New York has adopted legislation tightening the regulatory regime governing the use of steel in construction and infrastructure projects, including structural steel, structural iron, reinforcing steel, and the like. Effective April 1, 2018, the New York Buy American Act (&ldquo;NYBAA&rdquo;) imposes domestic preference requirements on any state construction project valued over $100,000 and any state road or bridge project over $1 million. This alert generally outlines the applicability, substantive requirements, and limited grounds for exemption to the NYBAA.&nbsp; &nbsp;</div> <div> &nbsp;</div> <h2> Applicability of the NYBAA</h2> <div> The first step in navigating the NYBAA is to determine whether domestic preference requirements even apply. In summation, the NYBAA governs: (1) public projects; (2) that reach specified monetary threshold; and (3) which are for the construction, reconstruction, alteration, repair, or maintenance of public works and infrastructure located in New York.<sup>1</sup></div> <div> &nbsp;&nbsp;</div> <h3> Monetary Threshold</h3> <div> The NYBAA only applies to contracts awarded by an agency of the state of New York, and which trigger the monetary thresholds set forth in the statute. For vertical construction, the NYBAA applies to any contract for the &ldquo;construction, reconstruction, alteration, repair, maintenance, or improvement of any public works&rdquo; and which is over $100,000.<sup>2</sup> With the exception of infrastructure projects, this $100,000 threshold applies to every state contract, regardless of the letting agency. With respect to the construction, reconstruction, repair, or alteration of surface roads and bridges, the NYBAA only applies to public contracts valued over $1 million. The $1 million threshold applies only to contracts awarded by the New York Department of Transportation (DoT), the Office of General Services, or the State University of New York Construction Fund.<sup>3</sup>&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> Timing of the Solicitation, Bid, and Award</h3> <div> The NYBAA only covers public works contracts that are &ldquo;executed and entered into&rdquo; on or after April 1, 2018. However, the state legislature explicitly chose to exclude contracts that were solicited or awarded prior to April 1, 2018. Thus, the NYBAA does not apply to projects for which a contractor has, before April 1, 2018: (1) already received a request for proposals; (2) already submitted a bid, or; (3) already received a notice of award.<sup>4</sup> The NYBAA also expressly excludes &ldquo;projects that have commenced project design and environmental studies&rdquo; prior to April 1, 2018. Finally, the NYBAA includes a sunset provision that automatically repeals its provisions as applied to contracts let, bid, or awarded on or after April 15, 2020.</div> <div> &nbsp;</div> <h2> Substantive Requirements of the NYBAA</h2> <h3> What construction materials are covered by the NYBAA?</h3> <div> For vertical construction, the NYBAA covers &ldquo;structural steel, reinforcing steel and/or other major steel items to be incorporated in the work of the contract.&rdquo;<sup>5</sup> For road and bridge projects, the NYBAA covers the &ldquo;structural iron and structural steel used or supplied in the performance of the contract or any subcontract thereto and permanently incorporated into such surface bridge or road.&rdquo;<sup>6</sup> Thus, the NYBAA governs virtually all steel components in public works construction including, without limitation, structural columns, beams, and angles; trusses and joists; steel rebar and framing; stainless steel piping; and prefabricated steel components.&nbsp;</div> <div> &nbsp;</div> <h3> When is a steel item &ldquo;incorporated in the work&rdquo;?</h3> <div> The domestic preferences for steel only applies to items that are to become a permanent fixture in a building, bridge, or road. The statute explains that an iron or steel product is permanently incorporated when it &ldquo;is required to remain in place at the end of the project contract, in a fixed location, affixed to public work to which it was incorporated.&rdquo;<sup>7</sup> On the other hand, steel products that can be moved from one location to another are not fixtures. For practical purposes, the vast majority of steel items utilized in construction are likely to be &ldquo;incorporated into the work&rdquo; at the end of the project.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> What does it mean to be &ldquo;made in whole or substantial part in the United States?&rdquo;</h3> <div> Under the NYBAA, covered steel articles for both vertical and horizontal construction &ldquo;shall be produced or made in whole or substantial part in the United States, its territories or possessions.&rdquo;<sup>8</sup>&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> Specifically as it relates to structural components, the NYBAA provides that &ldquo;all manufacturing must take place in the United States, from the initial melting stage through the application of coatings, except metallurgical processes involving the refinement of steel activities.&rdquo;<sup>9</sup> This provision effectively preempts outright the importation of structural steel for covered projects. However, unlike the federal Buy American/Buy America regime, Subsection 5 of the NYBAA does not require bidders and contractors to certify that all structural iron or steel is made in whole or in substantial part in the United States.<sup>10</sup></div> <div> &nbsp;</div> <h2> Grounds for Exemptions to the NYBAA</h2> <div> The exemptions to the NYBAA generally mirror the principal exemptions set forth in the federal Buy American Act,<sup>12</sup>&nbsp;though the exemptions in New York are somewhat more expansive. The head of any agency constructing public works has sole discretion to determine that the NYBAA requirements should not apply because: (1) domestic preferences would not be in the public interest; (2) imposing the preferences would result in unreasonable costs; (3) the iron and steel products cannot be produced in the United States in sufficient and reasonably available quantities and of satisfactory quality; (4) the requirements would result in the loss or reduction of federal funding for the subject contract or the ability to obtain such federal funding; (5) there is an immediate or urgent need for structural steel or structural iron; (6) obtaining the steel or iron product in the United States would increase the cost of the contract by an unreasonable amount; (7) steel or iron is necessary for the operation of or repairs of critical infrastructure that is necessary to avoid a delay in the delivery of critical services that could compromise the public welfare, or; (8) a reciprocal trade agreement or treaty has been negotiated by the state or federal government for nondiscriminatory governmental procurement practices.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1. Importantly, even where the New York State NYBAA does not apply, federal Buy America/Buy American requirements may govern any public works project that receives partial funding from federal appropriations, or which is subsidized by the U.S. Department of Transportation.</p> <p> 2.&nbsp;N.Y. State Fin. Law &sect; 146.1; see N.Y. State Pub. Authorities Law &sect; 2603-a.</p> <p> 3.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 4.&nbsp;<em>Id.</em> &sect; 1, 5, cmt. 451.</p> <p> 5.&nbsp;<em>Id.</em> &sect; 146.1.</p> <p> 6.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 7.&nbsp;<em>Id.</em></p> <p> 8.&nbsp;<em>Id.</em></p> <p> 9.&nbsp;<em>Id.</em> &sect; 146.2.</p> <p> 10.&nbsp;<em>Id.</em> &sect; 146.5.</p> <p> 11.&nbsp;41 U.S.C.&sect; 10a, <em>et seq.</em></p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM040918-LE New Jersey Court Expands Coverage: New Jersey Law Against Discrimination May Apply to Telecommuter Located in Massachusetts http://www.seyfarth.com:80/publications/OMM040918-LE Mon, 09 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On April 2, 2018, the New Jersey Appellate Division reversed an order granting summary judgment to Defendant Legal Cost Control, Inc., finding that New Jersey&rsquo;s Law Against Discrimination (LAD) may apply to an employee who lived outside New Jersey, worked outside New Jersey, and had not traveled to New Jersey in the last seven years. </em></p> <p> <strong>Case Analysis</strong></p> <p> In <a href="https://www.judiciary.state.nj.us/attorneys/assets/opinions/appellate/unpublished/a1377-16.pdf"><em>Trevejo v. Legal Cost Control</em></a>, No. A-1377-16T4, 2018 WL 1569640 (App. Div. Apr. 2, 2018), the employee/plaintiff lived in Massachusetts and worked from her home for a Haddonfield, New Jersey based company. Although the plaintiff had visited New Jersey a few times on business, she had not been to New Jersey in the past seven years with the company. On this basis, the trial court granted the company&rsquo;s motion for summary judgment, commenting that &ldquo;[S]he&rsquo;s not an inhabitant&hellip;Not even close&hellip;,&rdquo; and thus declining to find that the LAD applied to the plaintiff.</p> <p> The Appellate Division disagreed, finding that the LAD&rsquo;s text (as opposed to legislative history) indicates that it applies to &ldquo;persons,&rdquo; not &ldquo;inhabitants&rdquo; of New Jersey, and that the LAD&rsquo;s &ldquo;predominant goal &hellip; &lsquo;is nothing less than the eradication of the cancer of discrimination in the workplace.&rdquo; The court thus refocused the inquiry on the company&rsquo;s alleged conduct, noting that in addition to protecting &ldquo;aggrieved employees,&rdquo; the LAD furthers the &ldquo;public&rsquo;s strong interest in a discrimination-free workplace.&rdquo; The court also noted that the plaintiff&rsquo;s telecommuting arrangement warranted further discovery on questions such as: where plaintiff&rsquo;s co-employees worked, whether other employees worked from home, the nature of the software used by the plaintiff and other employees to conduct business, the location of the company&rsquo;s servers, the location of the company&rsquo;s internet service provider, who made the decision to terminate plaintiff and the basis for the decision, as well as other questions targeted at finding whether plaintiff had a &ldquo;virtual&rdquo; presence in New Jersey (since she did not have an actual presence) that might support coverage by the LAD. With that, summary judgment was reversed and the case was sent back to the trial court for further discovery.</p> <p> <strong>Potential Implications </strong></p> <p> As the workforce and work arrangements within our economy change, courts must necessarily analyze how preexisting laws apply in new factual contexts. New Jersey courts&rsquo; willingness to assert extraterritorial jurisdiction over out-of-state defendants and activities is not new. For instance, back in 2012, the Appellate Division held that a foreign company, with no official operations in New Jersey, was &ldquo;doing business in New Jersey&rdquo; because it employed a single telecommuting employee who lived full-time in New Jersey. <em>See Telebright Corporation Inc. v. Director, New Jersey Division of Taxation</em>, 424 N.J. Super. 384 (App. Div. 2012).</p> <p> Looking further back, in <em>Mehlman v. Mobil Oil Corp. et al.</em>, 153 N.J. 163 (1998), the New Jersey Supreme Court held that New Jersey&rsquo;s Conscientious Employee Protection Act (CEPA) protected a New Jersey Mobil Oil employee who was discharged in New Jersey after raising concerns about Mobil Oil&rsquo;s Japanese subsidiary while he was on a business trip in Japan. According to the Supreme Court, &ldquo;Under CEPA, the wrongful conduct is the employer&rsquo;s retaliatory action, and we decline to impose artificial geographical limits on the harm or illegality that the objecting employee sought to avoid.&rdquo; <em>Id</em>. at 196.</p> <p> The Appellate Division&rsquo;s decision <em>Trevejo </em>brings questions about the reach of New Jersey&rsquo;s discrimination and employment related laws full-circle. It appears now that such laws will be applied to (1) foreign companies with employees in New Jersey, (2) companies with operations in New Jersey, whose employees travel outside New Jersey, and (3) companies with operations in New Jersey and employees <em>who have little to no contact with the state</em>.</p> <p> Thus, <em>Trevejo</em> represents yet another example, alongside <em>Telebright</em> and <em>Mehlman</em>, of New Jersey courts&rsquo; expansive interpretations of the nuanced grey areas of New Jersey law. Employers, both those located in New Jersey and those who have even one employee in New Jersey, should be mindful of <em>any</em> contacts either they or their employees have with New Jersey, as such contacts (even in a case like <em>Trevejo</em>, which were seemingly nonexistent) could trigger protection under New Jersey law.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WSE040918 Operators Beware! MSHA Issues Final Rule on Examinations of Working Places in Metal and Nonmetal Mines http://www.seyfarth.com:80/publications/WSE040918 Mon, 09 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: MSHA just announced its Final Rule on Examinations of Working Places in Metal and Nonmetal Mines. 83 Fed. Reg. 15055 (April 9, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/msha-compliance/operators-beware-msha-issues-final-rule-on-examinations-of-working-places-in-metal-and-nonmetal-mines/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE040618 Drive Much? NIOSH Focus on Workplace Safety for Employees Who Drive for Their Job http://www.seyfarth.com:80/publications/WSE040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/workplace-policies-and-processes/drive-much-niosh-focus-on-workplace-safety-for-employees-who-drive-for-their-job/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS040618 Texas Supreme Court Declines to Take Up Case Requesting that a Plaintiff Describe the Elements of Any Trade Secret Process That It Claims Was Misappropriated http://www.seyfarth.com:80/publications/TS040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Late last week, the Texas Supreme Court denied a petition for mandamus in which the petitioner sought an order compelling a plaintiff to identify the specific trade secrets it contends were misappropriated, bucking what petitioner claimed is a &ldquo;growing consensus&rdquo; among the states.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/texas-supreme-court-declines-to-take-up-case-requesting-that-a-plaintiff-describe-the-elements-of-any-trade-secret-process-that-it-claims-was-misappropriated/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanbloombergbna040618 Gerald Maatman quoted in Bloomberg BNA http://www.seyfarth.com:80/news/maatmanbloombergbna040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in an April 6 story from Bloomberg BNA, &quot;California Is Fertile Ground for Employment Lawyers.&quot; Maatman said that other sources of business for employment lawyers are California&rsquo;s new salary history ban, which prohibits employers from asking job applicants about their prior salaries, and employers&rsquo; fear of sexual harassment claims.</p> http://www.seyfarth.com:80/news/weisswgn040618 Philippe Weiss interviewed on WGN Radio http://www.seyfarth.com:80/news/weisswgn040618 Fri, 06 Apr 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed April 6th on WGN Radio, &quot;Wintrust Business Lunch 4/6/18: Learning From The Blackhawks.&quot; Weiss supported the recent Blackhawks move to reach deep into their lineup for an emergency goalie. You can listen to the full interview at minute 23:40 <a href="http://wgnradio.com/2018/04/06/wintrust-business-lunch-4-6-18-1-in-5-protest-managing-the-masters-learning-from-the-blackhawks/">here</a>.</p> http://www.seyfarth.com:80/news/masurveygbfr040518 Seyfarth's Middle-Market M&A SurveyBook featured in Global Banking & Finance Review http://www.seyfarth.com:80/news/masurveygbfr040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Middle-Market M&amp;A SurveyBook was featured in an April 5 story from Global Banking &amp; Finance Review, &quot;Seller-Favorable Deal Environment Persists According to Seyfarth&rsquo;s Middle-Market M&amp;A Survey.&quot; The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017. You can read the <a href="https://www.globalbankingandfinance.com/seller-favorable-deal-environment-persists-according-to-seyfarths-middle-market-ma-survey/">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbloomberglaw040518 Brett Bartlett quoted in Bloomberg Law http://www.seyfarth.com:80/news/bartlettbloomberglaw040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in an April 5 story from Bloomberg Law, &quot;Supreme Court&rsquo;s Wage, Hour Shift: More Than Minor Tuneup,&quot; on how the U.S. Supreme Court abandoned a long-standing canon for how to apply exemptions to the Fair Labor Standards Act&rsquo;s minimum wage and overtime requirements. Bartlett said that for employers, long-standing advice to take appropriate steps in classifying employees as exempt or nonexempt still stands. You can read the <a href="https://biglawbusiness.com/supreme-courts-wage-hour-shift-more-than-minor-tuneup/">full article here</a>.</p> http://www.seyfarth.com:80/news/rechtinlaw360040518 Michael Rechtin quoted in Law360 http://www.seyfarth.com:80/news/rechtinlaw360040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Michael Rechtin was quoted in an April 5 story from Law360, &quot;Facebook Stole Data Center Ideas, BladeRoom CEO Testifies.&quot; Rechtin said that as tech giants grapple with the growth of their data holdings, the market for energy-efficient data centers that can be up and running quickly increases.</p> http://www.seyfarth.com:80/publications/TBT040518 Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use http://www.seyfarth.com:80/publications/TBT040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now &ldquo;No.&rdquo;<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/04/budding-development-states-requiring-employers-to-tolerate-medical-cannabis-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA040518-LE In a Nod to the #MeToo Movement, New York Legislature Passes Comprehensive Anti-Sexual Harassment Legislation http://www.seyfarth.com:80/publications/MA040518-LE Thu, 05 Apr 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em> </strong>&nbsp;<em>The New York Legislature has passed, and Governor Andrew M. Cuomo is expected to sign, a bill that will, among other things, prohibit all employers from requiring employees to arbitrate claims of sexual harassment.&nbsp; The bill will also prohibit employers from including non-disclosure agreements in settlements of sexual harassment claims, unless requested by the complainant.&nbsp; Additionally, the bill will require state contractors to implement sexual harassment training and&nbsp; policies</em>, <em>extend protections to non-employees, such as contractors or vendors, and require the Department of Labor to draft a model anti-sexual harassment policy and training program.&nbsp;</em></p> <p> As part of a <a href="https://www.nysenate.gov/legislation/bills/2017/s7507">bill</a>&nbsp;establishing the 2018-19 budget, the New York State Legislature has included provisions making sweeping changes to the law governing workplace sexual harassment.&nbsp; The new legislation, among other things, prohibits mandatory arbitration of sexual harassment complaints and prohibits non-disclosure agreements (NDAs) in settlements of lawsuits involving sexual harassment allegations unless the victim requests confidentiality.&nbsp; The legislation will also expand protections to independent contractors and create a uniform sexual harassment policy and training for businesses.&nbsp;</p> <p> The provisions in the bill affecting private employers are summarized briefly below.&nbsp; In contrast to an earlier version of the bill, the final enactment does not provide a definition of &ldquo;sexual harassment.&rdquo;&nbsp; While the Governor is expected to sign the bill shortly, the timetable remains uncertain, and it is possible, although unlikely, that changes in the fluid political environment in <a href="https://www.nytimes.com/2018/04/04/nyregion/new-york-state-senate-democrats.html">Albany</a>&nbsp;could prompt some revisions.&nbsp;</p> <p> <strong>Prevention of Sexual Harassment By Bidders for State Contracts</strong></p> <p> Subpart A amends the State Finance Law to require that, for every bid made to the State or any public department or agency of the State, where competitive bidding is required, the bidder must submit a certification, under penalty of perjury, that it has implemented a written sexual harassment policy and provides annual sexual harassment prevention training to all employees.&nbsp; The written policy must meet the requirements of Section 201-g of the New York Labor Law (see the discussion of Subpart E below).</p> <p> Where competitive bidding is not required, the certification requirement is at the discretion of the department, agency or official.&nbsp; While the bill states that a bid shall not be considered, and a contract may not be awarded, where the bidder has not complied with the certification provision, it does permit the bidder to provide an explanation of its failure to provide the certification, suggesting that the absence of a certification may not be fatal to a successful bid.</p> <p> This section will take effect on the first of January after the date on which it becomes law.</p> <p> <strong>Prohibition of Mandatory Arbitration Clauses</strong></p> <p> Subpart B adds Section 7515 to the Civil Practice Law and Rules (&ldquo;CPLR&rdquo;).&nbsp; It provides that, &ldquo;except where inconsistent with federal law,&rdquo; employers are prohibited from including, in any contracts with employees, provisions that mandate arbitration for allegations or claims of sexual harassment.&nbsp; The law also declares null and void clauses in existing contracts that mandate arbitration of sexual harassment claims.&nbsp; Mandatory arbitration clauses requiring arbitration of claims other than sexual harassment are unaffected by the new legislation.&nbsp;&nbsp;The law will take effect on the 90th day after the bill becomes law.</p> <p> <strong>Prohibition of Non-Disclosure Agreements</strong></p> <p> Subpart D, effective on the 90th day after it becomes law, adds Section 5-336 to the General Obligations Law (&ldquo;GOL&rdquo;) and Section 5003-b to the CPLR.&nbsp; Under GOL Section 5-336, employers are prohibited from including an NDA in any settlement of a sexual harassment claim unless the complainant requests confidentiality.&nbsp; If the complainant requests confidentiality, the terms must first be provided to all parties.&nbsp; The complainant then has 21 days to consider the terms, and, after 21 days, if the term is still the complainant&rsquo;s preference, the condition must be memorialized in an agreement signed by all parties.&nbsp; The complainant then has 7 days to revoke the agreement, which shall not be effective or enforceable until the revocation period expires.&nbsp; GOL Section 5-336 appears to apply to settlements of <em>all</em> claims of sexual harassment, not just those filed in court.</p> <p> CPLR Section 5003-b includes the same provisions as GOL Section 5-336, but applies to settlements of sexual harassment <em>lawsuits</em>.</p> <p> <strong>Mandatory Sexual Harassment Prevention Policy and Training Program</strong></p> <p> Subpart E amends the Labor Law by adding Section 201-g, which requires the Department of Labor, in consultation with the Division of Human Rights, to produce a model sexual harassment prevention policy and a model sexual harassment prevention training program.</p> <p> The model policy must include, among other things: information concerning the federal and state statutory provisions on sexual harassment; examples of what constitutes unlawful sexual harassment; a standard complaint form; a procedure for investigation of complaints; rights of redress and all available forums for adjudicating sexual harassment complaints; and a prohibition of retaliation.</p> <p> Similarly, the training program must be interactive and cover specific topics, including the following: examples of conduct that would be unlawful; the federal and state statutory provisions concerning sexual harassment; remedies available to victims of sexual harassment; and rights of redress and all available forums for adjudicating complaints.</p> <p> <em>Every employer</em> must either adopt the model policy and training program, or establish a policy and training program that equals or exceeds the minimum standards provided by the models.&nbsp; Employers are also required to provide all employees with a written copy of the policy and training on an annual basis.&nbsp; This Section takes effect on the 180th day after it becomes law. &nbsp;</p> <p> <strong>Extension of Protections to Non-Employees and Individual Liability</strong></p> <p> Currently, non-employees, such as contractors, vendors, or consultants, are not covered by State law prohibiting sexual harassment.&nbsp; Subpart F, which will take effect immediately and apply to all employers in the State, extends protections to such non-employees by amending the Executive Law.&nbsp; Under new Section 296-D, an employer may be liable to non-employees when the employer, its agents, or supervisors knew or should have known that non-employees were subjected to sexual harassment in the employer&rsquo;s workplace, and the employer failed to take immediate and appropriate corrective actions.</p> <p> <strong>What Happens Next?</strong></p> <p> For the most part, the various sections of the bill will not go into effect until at least three months after the Governor&rsquo;s signature, allowing employers sufficient time to ensure compliance.&nbsp; The provision of most immediate potential impact for employers concerns mandatory arbitration clauses.&nbsp; While an outright prohibition on such clauses, even one limited to sexual harassment claims, would be vulnerable to a legal challenge based on preemption by the Federal Arbitration Act, the bill includes the proviso &ldquo;except where inconsistent with federal law.&rdquo;&nbsp; Sorting out the legal issues around that proviso could, of course, take years to resolve.&nbsp; (A bill pending in the U.S. Senate, co-sponsored by New York&rsquo;s Kirsten Gillibrand, would amend the FAA to outlaw arbitration clauses with respect to sexual harassment claims.&nbsp; If that is enacted, then preemption issues involving the New York provision would likely be moot.)&nbsp; In the meantime, employers should consult with legal counsel to assess whether to revise their agreements and/or policies and to be cognizant of the impact the law may have on pre-existing agreements.</p> <p> Employers should similarly consider reviewing and revising their standard settlement agreements, at least as they pertain to employees within New York State, to ensure that they comply with subpart D&rsquo;s prohibition of NDAs.&nbsp; This revision to standard settlement practice comes on the heels of recent changes at the federal level, where the 2017 tax reform law <a href="http://www.seyfarth.com/publications/RD011918-CORP">prohibits the deduction of any payments</a> related to sexual harassment or sexual abuse settlements where an NDA is used.</p> <p> Once the New York Department of Labor publishes the model policy and training program, employers will need to ensure that their existing sexual harassment policies, as well as their training for employees, are in compliance with the models. &nbsp;For those employers who do not have written policies or do not provide training, they will need to institute both.&nbsp;</p> <p> Employers utilizing contractors, vendors, or consultants should also consider revising their policies to account for the broader scope of who can file claims under the new law.&nbsp; Given that this provision goes into effect immediately upon passage of the bill, employers should consider making such amendments sooner rather than later.</p> <p> The attorneys at Seyfarth Shaw LLP are preparing a Webinar on the new legislation.&nbsp; Details will be announced shortly.&nbsp; We are also available to provide any assistance with ensuring that you have robust policies in place regarding anti-harassment in the workplace and procedures to effectively respond to complaints.&nbsp; We can also provide interactive anti-harassment training tailored to your company&rsquo;s specific business and needs.</p> http://www.seyfarth.com:80/publications/OMM040518-EB IRS Retroactively Reduces HSA Contribution Limit; Transition Relief May Follow http://www.seyfarth.com:80/publications/OMM040518-EB Thu, 05 Apr 2018 00:00:00 -0400 <div> Last year, the IRS published the calendar year 2018 health savings account (HSA) contribution limits for individual and family coverage.&nbsp; <em>Rev. Proc. 2017-37, I.R.B. 2017-21 (5/4/2017)</em>. Ten months later and well into the start of the 2018 year, in response to changes under the 2017 Tax Cuts and Jobs Act,&nbsp; the IRS reduced by $50 the 2018 limit on HSA contributions for family coverage. <em>Rev. Proc. 2018-18, I.R.B. 2018-10 (3/5/2018)</em>. Although the HSA contribution limit for individual coverage remains at $3,450, the maximum contribution for family coverage dropped from $6,900 to $6,850. The reduction took effect immediately.&nbsp;</div> <div> &nbsp;</div> <div> The amount of the reduction is small, but employees with family coverage in an HSA may feel the effects in their tax bills for 2018. To the extent contributions to an HSA exceed the annual limit, the amount of those excess contributions is included in the employee&rsquo;s taxable income and subject to an additional 6% excise tax. Absent transition relief from the IRS, to avoid the negative tax ramifications of the lowered contribution limit, the employee will need to receive a distribution from the HSA during 2018 in the amount contributions exceed $6,850, plus any earnings on that amount. The excise tax is cumulative, so for every future year the excess contribution remains in the HSA, the employee will be subject again to the excise tax.</div> <div> &nbsp;</div> <div> Transition relief could be on the horizon. In mid-March, two members of the House Ways and Means Committee, Representatives Mike Kelly (R-PA) and Erik Paulsen (R-MN), wrote to Treasury Secretary Steven Mnuchin, identifying burdens the mid-year limit change inflicts on employees and employers and requesting a delay until 2019 of enforcement of the new contribution limit. Joining Reps. Kelly and Paulsen, the American Benefits Council, a prominent organization representing hundreds of plan sponsors and service providers (and of which Seyfarth Shaw is a member), likewise sought an enforcement delay or similar transition relief from Treasury and the IRS. Treasury and the IRS have acknowledged the concerns voiced by the Representatives and the American Benefits Council and expedited their consideration of potential transition relief.&nbsp;</div> <div> &nbsp;</div> <div> In light of the high-profile feedback regulators are receiving and the regulators&rsquo; concomitant discussions of transition relief, we do not believe employers and service providers need to take immediate action on the HSA limit reduction. Unless they have already implemented modifications to accommodate the new limit, for the present, sponsors and administrators may prefer to hold off on HSA program changes to see whether relief is forthcoming.&nbsp;</div> <div> &nbsp;</div> <div> If, however, a sponsor or administrator prefers to take action now on the HSA limit change, we suggest a few steps to help minimize the effects of contribution limit reduction:</div> <div> &nbsp;</div> <ul> <li> Notify employees electing family HDHP coverage of the reduced HSA contribution limit;<br /> &nbsp;</li> <li> Evaluate whether payroll and plan administration systems require modifications to accommodate the reduced limit for the balance of 2018; and <ul> <li> <strong>For employers forwarding contributions monthly:</strong> For employees who have already contributed more than $571 (1/12 of $6,850) per month during 2018, advise employees to modify their monthly elections for the remainder of the year so they do not exceed $6,850 for the year; or<br /> &nbsp;</li> <li> <strong>For employers funding HSAs in full at the beginning of the plan year:</strong> Contact the HSA custodian and request a return of excess contributions. If the custodian is unwilling to return excess contributions at the employer&rsquo;s request, advise affected employees to contact the custodian and request a return of excess contributions.</li> </ul> </li> </ul> <div> &nbsp;</div> <div> We anticipate decisions on transition relief to occur shortly. We will continue following the developments out of Washington and will publicize promptly any significant germane announcements from Treasury or the IRS.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM040518-LE San Francisco Amends “Fair Chance Ordinance” to Align with Portions of California’s New Statewide Ban-the-Box Law http://www.seyfarth.com:80/publications/OMM040518-LE Thu, 05 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;</em><em>On April 3, 2018, San Francisco amended its Fair Chance Ordinance to align, in some respects, with California&rsquo;s new ban-the-box law. San Francisco employers with more than five employees still must be mindful of the Ordinance&rsquo;s provisions that go beyond the broader state law.</em></p> <p> As previously reported <a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">here</a>,&nbsp;California&rsquo;s statewide ban-the-box law (AB 1008) went into effect on January 1, 2018. That law requires employers with five or more employees (subject to few exceptions) to:</p> <ul> <li> wait until <strong><em>after a conditional offer of employment</em></strong>&nbsp;is made to inquire about an applicant&rsquo;s criminal history, which means asking the applicant directly whether the applicant have been convicted of a crime, ordering a criminal history background check, or making any other inquiry about an applicant&rsquo;s criminal history;</li> <li> conduct an individualized assessment of an applicant&rsquo;s conviction to determine whether it has a &ldquo;direct and adverse relationship with the specific duties of the job that justify denying the applicant the position&rdquo;;</li> <li> notify the applicant of any potential adverse action based on the conviction history, which must, among other things, identify the conviction at issue, include a copy of any conviction history report (regardless of the source), and state the deadline for the applicant to provide additional information, such as evidence of inaccuracy, rehabilitation or other mitigating circumstances; and</li> <li> after waiting the requisite time period, notify the applicant of any final adverse action, which must, among other things, describe any existing procedure the employer has to challenge the decision or request reconsideration and notify the applicant of the right to file a complaint with the Department of Fair Employment and Housing.</li> </ul> <p> Los Angeles and San Francisco have their own ban-the-box laws. In some respects, both provide stronger protections to job applicants, especially Los Angeles. However, in some ways, California&rsquo;s new law protects job applicants more favorably than does San Francisco. Because of this, on April 3, 2018, the City and County of San Francisco Board of Supervisors approved amendments to its Fair Chance Ordinance (Article 49) to align with the California law (in some respects). The amendments are effective October 1, 2018.</p> <p> The Board amended the San Francisco Fair Chance Ordinance in the following ways:</p> <ul> <li> It reduced the number of employees needed to qualify as a covered employer from twenty to five (the same number required to qualify for coverage under California&rsquo;s law).</li> <li> Although the original version of the Ordinance allowed employers to inquire about criminal history after either a live interview or a conditional offer, the Ordinance now requires that, consistent with California law, covered employers wait until<strong><em> after a conditional offer</em></strong> of employment is made to make any such inquiry.&nbsp;</li> <li> For any violations occurring after the effective date of the amended Ordinance (October 1, 2018), employers are subject to increased penalties for non-compliance: $500 for the first violation; $1,000 for the second violation; and $2,000 for any subsequent violations (under the initial Ordinance, the maximum penalty was $50). If more than one applicant or employee is impacted by an alleged violation, the penalties apply to <strong><em>each</em></strong> employee or applicant.</li> <li> The initial Ordinance granted to the Office of Labor Standards Enforcement (&ldquo;OLSE&rdquo;) the right to file a civil action against an employer to recover any legal or equitable relief that may be appropriate to remedy the violation, including, but not limited to, reinstatement, back pay and attorney&rsquo;s fees and costs. The amended Ordinance now grants that same right to file a civil action to aggrieved individuals, provided that he or she files a complaint with the OLSE and exhausts their administrative remedies.</li> </ul> <p> In some respects, however, San Francisco&rsquo;s Ordinance provides <strong><em>greater</em></strong> protections to job applicants than does California law. Subject to very few exceptions, all California employers are prohibited from considering certain types of criminal history information, including arrests that did not lead to a conviction, juvenile records, non-felony marijuana convictions that are older than two years, and diversions or deferrals. San Francisco, however, currently goes beyond this by barring covered employers from considering convictions that are more than seven years old (measured from the date of sentencing) and infractions.</p> <p> The Board further amended the Ordinance to add a new category of &ldquo;off limits&rdquo; information: &ldquo;A conviction that arises out of conduct that has been decriminalized since the date of the Conviction,&rdquo; measured from the date of sentencing. The amendment provides examples of such convictions to include those for certain marijuana and cannabis offenses. San Francisco employers will now have to evaluate any potentially disqualifying conviction to determine whether the charge at issue was decriminalized post-conviction.</p> <p> <strong>Next Steps</strong></p> <p> Most immediately, San Francisco employers, particularly those with fewer than twenty employees, should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks. Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.</p> <div> <div> <div id="_com_1" uage="JavaScript"> <p> &nbsp;</p> </div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL040518 California Federal District Court Does Not ‘like’ Facebook’s Standing Argument in Illinois Biometric Information Privacy Act Case http://www.seyfarth.com:80/publications/EL040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In light of the uncertainties surrounding lawsuits alleging violations of the Illinois Information Biometric Privacy Act (BIPA), the Northern District of California has taken a firm position on a plaintiff&rsquo;s Article III standing. U.S. District Judge James Donato delivered opinions in In re Facebook Biometric Info. Privacy Litig., Case No. 15-CV-03747; 2018 U.S. Dist. LEXIS 30727 (N.D. Cal. Feb. 26, 2018) and Gullen v. Facebook Inc., Case No. 16-CV-00937; 2018 U.S. Dist. LEXIS 34792 (N.D. Cal. March 2, 2018), denying Facebook&rsquo;s motions to dismiss for lack of subject matter jurisdiction in both cases. The court held that plaintiffs&rsquo; Article III standing was satisfied through mere collection of biometric information.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/california-federal-district-court-does-not-like-facebooks-standing-argument-in-illinois-biometric-information-privacy-act-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO040518 Now Available! Seyfarth Shaw’s BioLoquitur Bulletin: Drugs Available in 2018 for Generic Competition http://www.seyfarth.com:80/publications/BIO040518 Thu, 05 Apr 2018 00:00:00 -0400 <p> Seyfarth Shaw is pleased to announce The BioLoquitur Bulletin: Drugs Available in 2018 for Generic Competition, published by the Life Sciences team. The BioLoquitur Bulletin provides a brief overview of selected New Chemical Entities (NCE) that were approved by the FDA in the year 2014. While not every NCE will be a target for NCE-1 litigation, the Dissection Guide offers information about the drug products, indications, and Orange Book patents.<br /> <br /> <a href="https://www.bioloquitur.com/now-available-seyfarth-shaws-bioloquitur-bulletin-drugs-available-2018-generic-competition/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS040418 Seyfarth Trade Secrets Attorneys to Participate in ITechLaw 2018 World Technology Law Conference in Seattle http://www.seyfarth.com:80/publications/TS040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2018 World Technology Conference in Seattle, May 16-18.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/trade-secrets/seyfarth-trade-secrets-attorneys-to-participate-in-itechlaw-2018-world-technology-law-conference-in-seattle/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP040418 Budding Development: States Requiring Employers to Tolerate Medical Cannabis Use http://www.seyfarth.com:80/publications/CP040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Can employers deny employment to people who use cannabis under a medical prescription authorized by state law? In more and more states, the answer is now &ldquo;No.&rdquo;<br /> <br /> <a href="https://www.calpeculiarities.com/2018/04/04/budding-development-states-requiring-employers-to-tolerate-medical-cannabis-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/Dacso040418 Sheryl Dasco co-authors paper on Value-Based Purchasing and Bundled Services/Payments – Reconciling Interests of Participating Providers http://www.seyfarth.com:80/publications/Dacso040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> On April 4, 2018, Sheryl Tatar Dacso presented on a white paper she co-authored titled, &ldquo;Value-Based Purchasing and Bundled Services/Payments &ndash; Reconciling Interests of Participating Providers&rdquo; at The University of Texas School of Law&#39;s 30th Annual Health Law Conference.</p> <div> With increasing pressure to do more with less, health care systems are continuing to focus efforts on finding innovative ways to increase quality while reducing costs. One ongoing trend is the movement toward innovative incentive payment models, including value-based care purchasing and bundled payment arrangements. The goal of such models is to achieve cost reductions based on a higher level of patient care coordination.</div> <div> &nbsp;</div> <div> Despite 2017 bringing a fair amount of political uncertainty regarding the Centers for Medicare &amp; Medicaid Services (CMS)&rsquo;s commitment to value-based reimbursement and bundled payment arrangements, for the time being, it appears these alternative payment models are here to stay. The new Secretary of Health and Human Services (HHS), Alex Azar, has re-affirmed his support of value-based care. While the Trump Administration is not pursuing alternative payment models as ambitiously as the Obama administration, they are not backing away either &ndash; recognizing the need to continue cost reductions while moving away from strictly fee-for-service payment models. Additionally, we are seeing more commercial payors, employer self-funded plans and provider organizations continue to move forward with value-based payment models fueled by the incentives of the Affordable Care Act (ACA) for development of Accountable Care Organizations (ACO).</div> <div> &nbsp;</div> <div> In this paper, we will look into how value-based care and alternative pricing arrangements are structured and discuss the options and challenges associated with potential risk sharing, legal and practical considerations.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/uploads/siteFiles/publications/06_Walker_et_al_HL18_pap.pdf">Click here</a> to read the entire paper.</div> http://www.seyfarth.com:80/publications/smitharnoldlegal500ihlawyer040418 Jason Smith and Edward Arnold authored a Q&A in The Legal 500 and The In-House Lawyer http://www.seyfarth.com:80/publications/smitharnoldlegal500ihlawyer040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Jason Smith and Edward Arnold authored an April 4 Q&amp;A in The Legal 500 and The In-House Lawyer, &quot;United States: Construction,&quot; on an overview to construction law in the United States. The Q&amp;A covers termination requirements and obligations, permits and licence, procurement, financing and security, and disputes as well as insight and opinion on challenges and opportunities. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Comparative_Legal_Guide-April_04_2018.pdf">full Q&amp;A here</a>.</p> http://www.seyfarth.com:80/news/milliganshrm040418 Robert Milligan quoted in SHRM http://www.seyfarth.com:80/news/milliganshrm040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a April 4 story from SHRM, &quot;Employers Should Carefully Craft Noncompetes ,&quot; on how businesses should also consider using less restrictive covenants. Milligan said that employers should make sure that their agreement is thoughtful and reflects the legitimate business interests of their company. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/Employers-Should-Carefully-Craft-Noncompetes.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/tymanbloomberglaw040418 Annette Tyman quoted in Bloomberg Law http://www.seyfarth.com:80/news/tymanbloomberglaw040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Annette Tyman was quoted in a April 4 story from Bloomberg Law, &quot;Compensation Managers Have Direct Connection With Pay Equity Movement,&quot; on how advocates of pay equity will call attention to the gender gap in compensation by marking Equal Pay Day on April 10. Tyman said that state laws on pay equity are growing and worker advocates are calling for more pay transparency in the workplace.</p> http://www.seyfarth.com:80/news/babsonbloombergbna040418 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbloombergbna040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Marshall Babson was quoted in an April 4 story from Bloomberg BNA, &quot;Can Labor Contracts Help Sinclair TV Anchors Dodge Edicts?&quot; Babson said that Sinclair anchors would have a tough time proving their resistance to reading company-mandated stories or promotions is protected activity under the NLRA.</p> http://www.seyfarth.com:80/news/resurveyco040418 Seyfarth's Real Estate Market Sentiment Survey referenced in the Commercial Observer http://www.seyfarth.com:80/news/resurveyco040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in an April 4 story from the Commercial Observer, &quot;The 50 Most Important Figures of Commercial Real Estate Finance,&quot; on new Federal Reserve Chairman Jerome Powell. The Seyfarth survey of 150 real estate executives found that 82 percent expect the Fed Funds rate will climb at least twice this year with 39 percent expecting at least three increases. And after the Fed raised rates right on schedule at its March 21 meeting, that forecast seems right on target. You can read the <a href="https://commercialobserver.com/2018/04/power-50-commercial-real-estate-finane-2018/#slide51">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezquartz040418 Leon Rodriguez quoted in Quartz http://www.seyfarth.com:80/news/rodriguezquartz040418 Wed, 04 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in an April 4 story from Quartz, &quot;This year, the H-1B visa will find fewer takers among India&rsquo;s big IT companies.&quot; Rodriguez said that the Indian IT industry already began a contraction in H-1B applications during last year&rsquo;s cap season. You can read the <a href="https://qz.com/1244109/this-year-the-h-1b-visa-will-find-fewer-takers-among-indias-big-it-companies/">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarcw040318 Bart Lazar quoted in Compliance Week http://www.seyfarth.com:80/news/lazarcw040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a April 3 story from Compliance Week, &quot;Facebook&rsquo;s data problems open door to domestic regulation of tech firms.&quot; Lazar said that the Facebook situation brings to bear some very basic privacy issues, such as the clarity of privacy notices and the importance of serious due diligence with respect to any third party or service provider to whom personal information is disclosed. Lazar stresses that companies need to seriously consider the &ldquo;blocking and tackling of privacy.&rdquo; You can read the <a href="https://www.complianceweek.com/news/news-article/facebook%E2%80%99s-data-problems-open-door-to-domestic-regulation-of-tech-firms#.WsORjOSWyUk">full article here</a>.</p> http://www.seyfarth.com:80/news/masurveybook040318 Seller-Favorable Deal Environment Persists According to Seyfarth’s Middle-Market M&A Survey http://www.seyfarth.com:80/news/masurveybook040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Leading law firm Seyfarth Shaw LLP has published the 5th edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017.</p> <p> The Survey focuses on key deal terms comprising the &ldquo;indemnity package&rdquo; included in almost all private target acquisition agreements to address a seller&rsquo;s potential post-closing liability to a buyer, and set the parameters of a buyer&rsquo;s ability to claw back purchase price from a seller.</p> <p> The data analyzed in this Survey suggests that, similar to the trend of recent years, the environment for private target middle-market M&amp;A continues to be seller friendly. The purchase of representation and warranty (&ldquo;R&amp;W&rdquo;) insurance continues to be a powerful tool used by buyers to make their acquisition proposal more attractive, and this year&rsquo;s data indicated a significant increase in deals using R&amp;W insurance. Of course, the terms of the typical indemnity package are greatly impacted when R&amp;W insurance is utilized. For example, the indemnity escrow amount and indemnity cap size are typically drastically lower in transactions using R&amp;W insurance as compared to transactions that do not use such insurance. Accordingly, Seyfarth&rsquo;s Survey highlights the impact of R&amp;W insurance on certain deal terms and separately addresses the results for deals not utilizing R&amp;W insurance.</p> <p> In deals not using R&amp;W insurance, this year&rsquo;s Survey showed consistency with prior years for a number of deal terms with the general representation and warranty survival periods holding steady in the 12 -18 month range, continued high usage of true deductible indemnity baskets, and a median indemnity cap size of 10% of purchase price. To view Seyfarth&rsquo;s 2018 Middle-Market M&amp;A SurveyBook, please <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1" target="_blank">visit here</a>.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/conleylaw360040318 Ben Conley quoted in Law360 http://www.seyfarth.com:80/news/conleylaw360040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Ben Conley was quoted in a April 3 story from Law360, &quot;5 Regulations Benefits Attorneys Need To Watch,&quot; on Affordable Care Act revisions. Conley said that, responding to directives from the Trump administration, federal regulators are expected to give nonaffiliated companies more freedom to enter into associated health plans &mdash; allowing smaller businesses to pull themselves out of the more tightly regulated small group market &mdash; and loosen restrictions on short-term, limited-duration health care policies.</p> http://www.seyfarth.com:80/news/gagnonmaatmanlaw360040318 Matthew Gagnon and Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/gagnonmaatmanlaw360040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> Matthew Gagnon and Gerald Maatman were quoted in a April 3 story from Law360, &quot;Google Pay Equity Case May Be Blueprint For Class Actions.&quot; Gagnon said that it could become a sort of blueprint for what other plaintiffs counsel may consider doing. Maatman said that the ruling is a big deal in California but warned that it&#39;s dangerous to assume the same theory will work in other jurisdictions.</p> http://www.seyfarth.com:80/publications/MASurveyBook-2018 Seller-Favorable Deal Environment Persists According to Seyfarth’s Middle-Market M&A Survey http://www.seyfarth.com:80/publications/MASurveyBook-2018 Tue, 03 Apr 2018 00:00:00 -0400 <div> Leading law firm Seyfarth Shaw LLP has published the 5th edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 120 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2017.</div> <div> &nbsp;</div> <div> The Survey focuses on key deal terms comprising the &ldquo;indemnity package&rdquo; included in almost all private target acquisition agreements to address a seller&rsquo;s potential post-closing liability to a buyer, and set the parameters of a buyer&rsquo;s ability to claw back purchase price from a seller.</div> <div> &nbsp;</div> <div> The data analyzed in this Survey suggests that, similar to the trend of recent years, the environment for private target middle-market M&amp;A continues to be seller friendly. The purchase of representation and warranty (&ldquo;R&amp;W&rdquo;) insurance continues to be a powerful tool used by buyers to make their acquisition proposal more attractive, and this year&rsquo;s data indicated a significant increase in deals using R&amp;W insurance. Of course, the terms of the typical indemnity package are greatly impacted when R&amp;W insurance is utilized. For example, the indemnity escrow amount and indemnity cap size are typically drastically lower in transactions using R&amp;W insurance as compared to transactions that do not use such insurance. Accordingly, Seyfarth&rsquo;s Survey highlights the impact of R&amp;W insurance on certain deal terms and separately addresses the results for deals not utilizing R&amp;W insurance.</div> <div> &nbsp;</div> <div> In deals not using R&amp;W insurance, this year&rsquo;s Survey showed consistency with prior years for a number of deal terms with the general representation and warranty survival periods holding steady in the 12 -18 month range, continued high usage of true deductible indemnity baskets, and a median indemnity cap size of 10% of purchase price. To view Seyfarth&rsquo;s 2018 Middle-Market M&amp;A SurveyBook, please <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1" target="_blank">visit here</a>.</div> http://www.seyfarth.com:80/publications/EL040318 Massachusetts Recreational Pot Regulations Offer Little Guidance To Employers http://www.seyfarth.com:80/publications/EL040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> On March 9, 2018, the Massachusetts Cannabis Control Commission (&ldquo;CCC&rdquo;) filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State. According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018. The Regulations will become effective upon publication. While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/04/massachusetts-recreational-pot-regulations-offer-little-guidance-to-employers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS040318 The Valuation of Trade Secrets http://www.seyfarth.com:80/publications/TS040318 Tue, 03 Apr 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Donal O&rsquo;Connell, Managing Director of Chawton Innovation Services Ltd., and Oliver Treidler, Managing Director of TP&amp;C GmbH.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/04/articles/intellectual-property/the-valuation-of-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA040218-LE New Governor, New Result: New Jersey Legislature Passes Pay Equity Bill http://www.seyfarth.com:80/publications/MA040218-LE Mon, 02 Apr 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: On March 26, 2018, the New Jersey Legislature passed Senate Bill 104, entitled the &ldquo;Diane B. Allen Equal Pay Act,&rdquo; an act modifying the Law Against Discrimination to promote equal pay for <u>all</u> protected classes under the LAD rather than being limited to gender. &nbsp;Governor Phil Murphy is widely expected to sign the measure into law, which is set to become effective July 1, 2018.</em></p> <p> New Jersey passed an all-encompassing new pay equity law.&nbsp; The bill, <a href="http://www.seyfarth.com/dir_docs/publications/104_R2.pdf">S 104</a>, was first introduced in Committee on January 9, 2018.&nbsp; Because Governor Murphy recently issued an Executive Order requiring equal pay in state agencies, he is expected to continue the momentum began in the Legislature and sign the bill into law.</p> <p> <strong>Protected Characteristics Expanded Beyond Gender and Race/Ethnicity</strong></p> <p> The law prohibits pay disparities based upon any protected characteristic protected by the New Jersey Law Against Discrimination (&ldquo;LAD&rdquo;), and <em>is not limited to gender</em>.&nbsp; Additional protected characteristics under the LAD include race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy or breastfeeding, sex, gender identity or expression, and disability.&nbsp;&nbsp; However, the LAD broadly defines protected characteristics and they are not limited to the list above.&nbsp; This change separates the New Jersey law from federal law and laws in other jurisdictions, like <a href="http://www.seyfarth.com/publications/MA112415-LE">New York</a> or <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California</a>, which limit coverage to sex or sex and race. The <a href="http://www.seyfarth.com/publications/MA112415-LE">Oregon</a> law prohibits pay discrimination based on gender, race, national origin or color and also on religion, sexual orientation, marital status, veteran status, disability or age.</p> <p> The law prohibits employers from paying employees who are members of a protected class at a lower rate of compensation, including benefits, than employees who are not members of the protected class &ldquo;for substantially similar work, when viewed as a composite of skill, effort and responsibility.&rdquo;&nbsp; The differential may be justified by:</p> <ul> <li> A seniority system,</li> <li> A merit system, or</li> <li> A bona fide factor other than a protected characteristic, such as education, experience, training, or the quantity or quality of production so long as it is job-related, and based on a legitimate business necessity, and if the employer demonstrates that the factor is not based on, and does not perpetuate, a differential in compensation based on sex or any other characteristic of members of a protected class. &nbsp;The law leaves undefined factors which tend to &ldquo;perpetuate&rdquo; pay equity violations. &nbsp;In addition, the bona fide factor must be applied reasonably, and explain the entire pay differential. &nbsp;The factor will not apply if it is demonstrated that there are alternative business practices that would serve the same business purpose without producing the wage differential.&nbsp; Employers may not resolve unexplained pay disparities by lowering compensation of a more highly paid worker.&nbsp; Employers can expect that reliance on a bona fide factor other than a protected characteristic, as described in the law, will present new hurdles and defense challenges in litigation.</li> </ul> <p> <strong>Other Key Changes</strong></p> <p> The law also had other key changes to New Jersey&rsquo;s pay equity law:</p> <ul> <li> The LAD is broader that the Federal Equal Pay Act in numerous ways.&nbsp; For example, it allows for comparisons of pay across all of the employer&rsquo;s operations or facilities (it is unclear whether this is limited to locations within the State).&nbsp; However, the law does not expressly indicate that geographic wage and cost of living data rise to the level of a legitimate, bona fide factor or amount to a legitimate business necessity.</li> <li> The retaliation provision of the LAD was also expanded to protect employees who seek legal advice, share relevant information with legal counsel, or information with a government entity.&nbsp; This provision is not limited to information shared regarding pay equity.</li> <li> The law also specifically prohibits retaliation against any employee for discussing, or disclosing to any other employee or former employee, an attorney seeking legal advice, or any government agency information about any current or former employee regarding job titles, occupational categories, rates of compensation, including benefits, or the protected characteristic of a current or former employee, for any reason, and not solely limited to pursuing legal action or an investigation regarding equal pay.&nbsp;</li> <li> Employers are prohibited from requiring employees to waive or agree to not make such disclosures as a condition of employment, as may be contained in some confidentiality provisions of employment agreements or offer letters.</li> <li> Companies who are state contractors have additional reporting requirements, including compensation and hours worked categorized by gender, race, ethnicity, and job category, for each establishment of the employer.&nbsp; The New Jersey Commission on Labor and Workforce Development will provide a form for employers to provide this information.&nbsp;</li> </ul> <p> <strong>Statute of Limitations</strong></p> <p> The law has extended the statute of limitations for pay equity violations to six years.&nbsp; The proposed amendment also provides that liability will continue to accrue and back pay is available for the entire period of time in which the violation has been continuous, if within the now six-year statute of limitations.&nbsp; Further, the law expressly indicates that it does not prohibit the application of the doctrine of &ldquo;continuing violation&rdquo; or the &ldquo;discovery rule&rdquo; to any appropriate claim.</p> <p> <strong>Damages </strong></p> <p> Further, a jury or the New Jersey Civil Rights Commission must award treble damages where an employer violated the equal pay or expanded non-retaliation provisions of this bill, in addition to back pay and liquidated and common law tort damages which the LAD already provided. &nbsp;As with other LAD claims, there is no requirement to file an administrative charge prior to filing a lawsuit.</p> <p> An unlawful employment practice occurs <em>each occasion</em> that an individual is affected by a discriminatory compensation decision or other practice, which includes, but is not limited to, each occasion that wages, benefits, or other compensation are paid as a result of the decision or practice, thereby increasing damages significantly.&nbsp; The law does not expressly provide for retroactive application prior to the effective date.</p> <p> The bill further prohibits requiring employees or applicants to consent to a shortened statute of limitations or to waive any rights under the LAD, which is not limited to pay equity.&nbsp;</p> <p> <strong>Recommendations to Employers</strong></p> <p> Employers should consider engaging in attorney-client privileged equal pay studies to ensure that compensation differentials can be explained based on legitimate, non-discriminatory reasons.&nbsp; Such studies should also be considered at the time that bonuses, merit increases, and other benefits are being finalized to ensure that potentially violative salary differentials are not unwittingly triggered. &nbsp;</p> <p> <strong>Salary History Ban Under Consideration Again in New Jersey</strong></p> <p> In another notable development, the New Jersey Senate also passed <a href="http://www.seyfarth.com/dir_docs/publications/559_U1.pdf">S559</a>, which proposes amending the LAD to prohibit inquiries into an applicant&rsquo;s prior wages or salary. The New Jersey General Assembly has not yet voted on S559.&nbsp; Specifically, S559 would prohibit any employer from relying on an applicant&rsquo;s salary in determining a salary amount in <em>any</em> stage of the hiring process, including finalizing the employment contract, as well as prevent inquiries about the salary history of the job applicant, including compensation and benefits.</p> <p> This is the second attempt to pass pay equity legislation in New Jersey. &nbsp;As we previously reported <a href="http://www.seyfarth.com/publications/OMM012717NJ-LE">here</a>, former New Jersey Governor Chris Christie vetoed Senate Bill 992, a similar pay equity bill. At the time, the New Jersey Senate was unable to muster up the two-thirds majority&rsquo;s votes to override the veto.</p> <p> These developments follow the trend of the pay equity movement taking place in cities and states nationwide.&nbsp; In light of New Jersey&rsquo;s focus on pay equity, employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices.</p> <p> We hope you will join us on Equal Pay Day, April 10, 2018, for a joint presentation of Seyfarth&rsquo;s Pay Equity and Complex Discrimination Litigation Groups, as we launch our first <em>Trends and Developments in Pay Equity Litigation</em> report. You can register for the Pay Equity Webinar <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cfGo0Huoc9AemtZMBGYbYmKKwxyhzixvzs3veX1oWOhQ&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL">here</a>.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/BIO040218 Good ANDA Submission Practices: Summary of Draft Guidance http://www.seyfarth.com:80/publications/BIO040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> The Food and Drug Administration (FDA), as part of its Drug Competition Action Plan, published a draft guidance detailing good practices for the submission of ANDAs on January 3, 2018. The guidance highlights common, recurring deficiencies that may lead to a delay in the approval of an ANDA and makes recommendations to applicants on how to avoid such deficiencies. A typical ANDA requires an average of four review cycles before approval. The delay happens when ANDAs are submitted without all the information that the FDA needs to determine whether the ANDA meets FDA standards for approval, which leads to additional review cycles.<br /> <br /> <a href="https://www.bioloquitur.com/good-anda-submission-practices-summary-draft-guidance/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH040218 Encino Motorcars, LLC v. Navarro: SCOTUS Puts The Brakes On Faulty FLSA Construction Language http://www.seyfarth.com:80/publications/WH040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers seeking to show that they correctly have classified an employee as exempt from the FLSA&rsquo;s overtime requirements often have faced hostility from courts under the misimpression that FLSA exemptions must be &ldquo;construed narrowly.&rdquo; Today the United Supreme Court put to rest the &ldquo;narrow construction&rdquo; doctrine, signaling to district and appellate courts that FLSA exemptions should be construed plainly as written and without a thumb tilting the scales toward a non-exempt finding.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/encino-motorcars-llc-v-navarro-scotus-puts-the-brakes-on-faulty-flsa-construction-language/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/rodriguezciodive040218 Leon Rodriguez quoted in CIO Dive http://www.seyfarth.com:80/news/rodriguezciodive040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a April 2 story from CIO Dive, &quot;Industry outlook on H-1B changes: Bad for the economy.&quot; Rodriguez said that there will be a mounting pressure to grow the number of immigrants harvested from the H-1B program from within Congress. You can read the <a href="https://www.ciodive.com/news/industry-outlook-on-h-1b-changes-bad-for-the-economy/520313/">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezfc040218 Leon Rodriguez quoted in Fast Company http://www.seyfarth.com:80/news/rodriguezfc040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Leon Rodriguez was quoted in a April 2 story from Fast Company, &quot;This Social Entrepreneur Is Helping Fellow Immigrants Lawyer Up,&quot; on how the U.S. Citizenship and Immigration Services (USCIS) recently announced that it will temporarily suspend premium processing, or fast processing, of H-1B visa petitions. Rodriguez said that the impact of those suspensions, taken together with a number of other burdensome policy changes, will have a severe impact on businesses that are seeking to hire needed professionals through this process. You can read the <a href="https://www.fastcompany.com/40551965/this-social-entrepreneur-is-helping-fellow-immigrants-lawyer-up">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanscrogginsnlj040218 Gerald Maatman and Andrew Scroggins' blog post referenced in the National Law Journal http://www.seyfarth.com:80/news/maatmanscrogginsnlj040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Gerald Maatman and Andrew Scroggins&#39; blog post was referenced in a April 2 story from the National Law Journal, &quot;Sharon Gustafson, EEOC General Counsel Pick, Discloses Law Firm Income, Clients.&quot; The Seyfarth lawyers said in a blog post that the business and employer community&mdash;likely expecting a management-side defense lawyer for EEOC general counsel&mdash;was sure to have &ldquo;prompt discussion&rdquo; about the nomination of Gustafson. Maatman said that Gustafson&rsquo;s financial disclosure and client list confirmed his view that Gustafson was a non-traditional choice for a Republican administration, given that she has principally represented workers in small cases.</p> http://www.seyfarth.com:80/news/fritzcl040218 Kevin Fritz profiled by Chicago Lawyer http://www.seyfarth.com:80/news/fritzcl040218 Mon, 02 Apr 2018 00:00:00 -0400 <p> Kevin Fritz was profiled in a April 2 story from Chicago Lawyer, &quot;&lsquo;Radical confidence&rsquo; : A Seyfarth Shaw associate focuses on doing the job.&quot; You can read the <a href="http://www.seyfarth.com/dir_docs/publications/CL_reprint_Seyfarth_Apr2018.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/jutkowitzshermanfww040118 Stanley Jutkowitz and Andrew Sherman quoted in Financier Worldwide http://www.seyfarth.com:80/news/jutkowitzshermanfww040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Stanley Jutkowitz and Andrew Sherman were quoted in an April 1 cover story from Financier Worldwide, &quot;Trump&rsquo;s tax cuts and the impact on US M&amp;A.&quot; Jutkowitz said that two provisions of the new tax law &ndash; the ability to expense the cost of tangible property and the limitation on the deductibility of business interest &ndash; are particularly relevant. Sherman said that the energy industry pays some of the highest rates of tax, so the cut in the corporate tax rate will make companies in this space more attractive targets. You can read the <a href="https://www.financierworldwide.com/trumps-tax-cuts-and-the-impact-on-us-ma#.WrJoGOSWyUk">full article here</a>.</p> http://www.seyfarth.com:80/publications/luriercbg040118 Dawn Lurie authored an article in the Regional Center Business Journal http://www.seyfarth.com:80/publications/luriercbg040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Dawn Lurie authored an April 1 article in the Regional Center Business Journal, &quot;Best Practices for Redeployment.&quot; The article discusses the rules or processes governing redeployment of investor capital by the new commercial enterprise (NCE) during the sustainment period before adjudication of a foreign investor&rsquo;s I-829 Petition.</p> http://www.seyfarth.com:80/publications/schwartzconfero040118 Richard Schwartz authored an article in Confero Magazine http://www.seyfarth.com:80/publications/schwartzconfero040118 Sun, 01 Apr 2018 00:00:00 -0400 <p> Richard Schwartz authored an April 1 article in Confero Magazine, &quot;Executive Compensation Changes Under The Tax Cuts and Jobs Act of 2017.&quot; You can read the <a href="http://westminster-consulting.com/Publications/Confero/Issue22/executive-compensation-changes-under-the-tax-cuts-and-jobs-act-of-2017">full article here</a>.</p> http://www.seyfarth.com:80/news/weisssbt033118 Philippe Weiss quoted in Small Business Trends http://www.seyfarth.com:80/news/weisssbt033118 Sat, 31 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 31 story from Small Business Trends, &quot;It&rsquo;s Best to Avoid April Fools Day Pranks at your Business, Expert Says.&quot; Weiss said that a boss pranking is offering a complete pranking license to his or her employees. You can read the <a href="https://smallbiztrends.com/2018/03/april-fools-day-pranks-at-work.html">full article here</a>.</p> http://www.seyfarth.com:80/news/whitmanwapo033018 Robert Whitman quoted in the Washington Post http://www.seyfarth.com:80/news/whitmanwapo033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Robert Whitman was quoted in a March 30 story from the Washington Post, &quot;A New York City official wants to give workers the right to ignore after-hours emails,&quot; on a law proposed in New York that would make it illegal for private employers to require workers to check and respond to email and other messages during nonwork hours. Whitman said that he can&rsquo;t imagine how this law could apply to exempt [salaried] employees. You can read the <a href="https://www.washingtonpost.com/news/on-leadership/wp/2018/03/30/a-new-york-official-wants-to-give-workers-the-right-to-ignore-after-hours-email/?utm_term=.918e6ecc519a">full article here</a>.</p> http://www.seyfarth.com:80/news/tonerpolitico033018 Jack Toner quoted in Politico http://www.seyfarth.com:80/news/tonerpolitico033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Jack Toner was quoted in a March 30 story from Politico, &quot;Morning Shift,&quot; on an update on the NLRB wars. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2018/03/30/no-justice-no-peeps-155001">full article here</a>.</p> http://www.seyfarth.com:80/news/recorder033018 Matthew Gagnon, Annette Tyman, Jeffrey Wortman and Kristina Launey's client alert referenced in The Recorder http://www.seyfarth.com:80/news/recorder033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Matthew Gagnon, Annette Tyman, Jeffrey Wortman and Kristina Launey&#39;s client alert was referenced in a March 30 story from The Recorder, &quot;Google Must Face Female Employees&#39; Class Claims Alleging Pay Disparities,&quot; on how a San Francisco judge found allegations sufficient for class claims alleging intentional discrimination. The Seyfarth authors called the ruling against Google &ldquo;a worrying development for employers.&rdquo;</p> http://www.seyfarth.com:80/news/hendricksonlaw360033018 Christine Hendrickson quoted in Law360 http://www.seyfarth.com:80/news/hendricksonlaw360033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Christine Hendrickson was quoted in a March 30 story from Law360, &quot;Step Up On Pay Equity Or Get Caught Flat-Footed, Attys Warn,&quot; on how more states are passing laws making it easier for workers to sue their employers over unfair gaps in pay. Hendrickson said that for employers with global operations, to the extent they&rsquo;re reporting out ... the pay gap info within the U.K, they&rsquo;re getting questions from U.S. employees.</p> http://www.seyfarth.com:80/news/lazarcbsmoneywatch033018 Bart Lazar quoted in CBS MoneyWatch http://www.seyfarth.com:80/news/lazarcbsmoneywatch033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a March 30 story from CBS MoneyWatch, &quot;Everything that&#39;s going wrong for Facebook right now,&quot; on how a handful of advertisers have hit pause on their Facebook relationship. Lazar said that Facebook has proven itself to be a very powerful tool for creating community and for legitimate marketing activities. You can read the <a href="https://www.cbsnews.com/news/everything-thats-going-wrong-for-facebook-right-now/">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA033018-LE California Judge Allows Pay Equity Class Action To Move Forward On Behalf Of Female Google Employees Who Were Employed In Thirty Separate Job Positions http://www.seyfarth.com:80/publications/MA033018-LE Fri, 30 Mar 2018 00:00:00 -0400 <p> <strong>Seyfarth Synopsis:</strong> <em>After initially dismissing a sweeping class action complaint alleging systemic pay discrimination on behalf of &ldquo;all women employed by Google in California,&rdquo; the Court has now decided to allow an amended &ndash; and only somewhat narrowed &ndash; class action to proceed. Key to the Court&rsquo;s decision were the allegations in Plaintiffs&rsquo; amended complaint that Google had a company-wide policy of considering new hires&rsquo; previous salaries when determining starting salary and job level.</em></p> <p> On March 27, 2018, a California Superior Court denied Google&rsquo;s motion to defeat Plaintiffs&rsquo; second attempt to plead a class action alleging wide-ranging gender-based pay discrimination. Although Plaintiffs&rsquo; amended complaint had narrowed their class definition, it still encompassed employees who worked in thirty separate positions, many in which the named Plaintiffs had never worked and about which had no direct knowledge.</p> <p> But Plaintiffs had added allegations that Google maintains a class-wide policy of using prior salary to set salary for new hires. According to the complaint allegations, women in the United States are paid on average no more than 79 cents for each dollar a man is paid, and Google&rsquo;s policy perpetuates this historic pay disparity. That was enough for the California Court to conclude, at least at the pleading stage, that common issues would predominate over individualized issues.</p> <p> <strong>Background</strong></p> <p> Plaintiffs filed their original complaint on September 14, 2017. That complaint pled a sweeping class definition of &ldquo;all women employed by Google in California.&rdquo; Google moved to dismiss the complaint and strike the class allegations, arguing that Plaintiffs fell short of articulating a community of interest when they brought the claim under such a broad category of employees. The Court granted Google&rsquo;s motion to dismiss and to strike class allegations, but also granted plaintiffs leave to amend the complaint within 30 days. &nbsp;</p> <p> Plaintiffs filed an amended complaint on January 1, 2018. The amended complaint narrowed the scope of Plaintiffs&rsquo; class allegations to a class consisting of &ldquo;all women employed by Google in California&rdquo; who have held a &ldquo;Covered Position,&rdquo; that was defined to include all job levels of 30 separate positions, which Plaintiffs grouped into six job families: (1) software engineer, (2) software manager, (3) engineer, (4) program manager, (5) sales, or (6) early childhood education. According to statements reportedly made at the hearing, this &ldquo;narrowed&rdquo; class would still contain at least 5,000 women.</p> <p> Google argued that this class definition was still overbroad because, among other things, the named Plaintiffs never worked in any of the 15 positions associated with two of the included job categories. According to Google, Plaintiffs would have no knowledge of the work performed by employees in those job categories. Nor did Plaintiffs allege any overlap in duties, experience, or qualifications between those job families and the job families in which they actually held positions.</p> <p> Google argued that Plaintiffs&rsquo; lack of personal knowledge about those job families meant that they were merely guessing as to whether individuals in those positions were underpaid. Google also argued that Plaintiffs had failed to allege any facts to show that employees in those job families perform substantially similar or equal work. The Court would therefore have to undertake an individualized analysis to determine for each class member whether the employees&rsquo; positions should be compared at all, and the cause of the alleged pay disparity. Google further took issue with the class-wide intentional discrimination claim on the grounds that Plaintiffs&rsquo; claims arise entirely from their individual experiences unique to them, and do not implicate any company policy or practice.</p> <p> <strong>The Court&rsquo;s Decision</strong></p> <p> The Court disagreed, holding that Plaintiffs had adequately pled a class action on behalf of themselves and a class of women employed by Google in California who held any of the 30 Covered Positions. Critical to the Court&rsquo;s analysis were the allegations Plaintiffs had added to their amended complaint that Google maintained a company-wide policy for setting starting salary that included consideration of an employee&rsquo;s prior salary. Plaintiffs alleged that this policy perpetuates the historical pay disparity between men and women.</p> <p> Plaintiffs alleged that, as a result of this policy, female employees in Covered Positions received a lower starting salary than men in the same job position and level, and that they were assigned lower job levels with lower salary ranges than men who perform substantially equal or similar work. Moreover, because raises are based on a percentage of employees&rsquo; current salaries, they only serve to further perpetuate and widen the gender pay gap.</p> <p> The Court held that this alleged policy was sufficient to withstand a demurrer at the pleading stage that common issues of law and fact predominated over individualized questions. They were also sufficient at this stage in the litigation to create an ascertainable class, which would be easy to identify based on whether employees held one of the 30 Covered Positions. Further, the Court found that plaintiffs had sufficiently pled that their claims are typical of the entire class, because the entire class was alleged to have been subjected to the same compensation policies and practices.</p> <p> Regarding Plaintiffs&#39; allegations of intentional discrimination, the Court relied on the same analysis, finding that the alleged policy of considering an employee&rsquo;s prior pay when deciding starting salary and/or job level, as well as the &ldquo;stereotypes&rdquo; that Google allegedly applied regarding what jobs women can or cannot do, could result in women receiving lower salaries than men. Based on Plaintiffs&rsquo; assertions, the Court found that they stated a claim for intentional discrimination on a class-wide basis sufficient to withstand a demurrer.</p> <p> <strong>Implications For Employers</strong></p> <p> This decision is a worrying development for employers because it could provide a &ldquo;blueprint&rdquo; for how other plaintiffs may attempt to cobble together broad classes that encompass widely disparate job positions, seemingly without regard for the individual job duties or qualifications associated with those positions. Although Plaintiffs&rsquo; amended complaint narrowed (somewhat) the scope of their class definition, that did not appear to have any bearing on the Court&rsquo;s decision. Instead, the key differences between Plaintiffs&rsquo; original complaint and their amended complaint were the new allegations regarding Google&rsquo;s alleged policy of considering prior salary when making initial salary determinations. According to this Court, those allegations were sufficient at the pleading stage to bind together a class of 30 positions, half of which were ones in which the named Plaintiffs had never worked.</p> <p> The historical pay disparity that Plaintiffs alleged in their amended complaint is based on nationwide averages. If consideration of prior salary in the context of that disparity is sufficient to plead a wide-ranging pay equity class, it is hard to see how this type of claim could not be replicated many times over across the country. Although few states have pay equity laws that are as robust and plaintiff-friendly as California&rsquo;s, the real issue is the rigor that must be applied to determine whether class treatment is warranted. If anything, that analysis under the federal Equal Pay Act &ndash; at least at the initial, conditional certification stage &ndash; is less onerous than the requirements under California class action law.</p> <p> Plaintiffs may ultimately fail to maintain their case as a class action when it is subjected to more searching scrutiny at the class certification stage. Indeed, when faced with the evidentiary burden of having to establish that such a policy creates common issues that predominate over individualized issues, evaluation of the appropriateness of class certification may be very different. Nevertheless, it is hard to see how this decision does not give the plaintiffs&rsquo; bar plenty of incentive to try, try, and try again.</p> <p> We hope you will join us on Equal Pay Day, April 10, 2018, for a joint presentation of Seyfarth&rsquo;s Pay Equity and Complex Discrimination Litigation Groups, as we launch our&nbsp; first Trends and Developments in Pay Equity Litigation report. You can register for the Pay Equity Webinar <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cfGo0Huoc9AemtZMBGYbYmKKwxyhzixvzs3veX1oWOhQ&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cT36OJAOI97XkFKwGI4n4gIS8l8iB8tWUVxHnxLoILXL">here</a>.</p> http://www.seyfarth.com:80/publications/bwccr033018 Seyfarth's Andrew Boutros and John Schleppenbach authored an article in Bloomberg White Collar Crime Report http://www.seyfarth.com:80/publications/bwccr033018 Fri, 30 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Andrew Boutros and John Schleppenbach authored a March 30 article in Bloomberg White Collar Crime Report, &quot;Department of Justice &amp; Congress Signal Possibility of Increased Foreign Agents Registration Act Enforcement in 2018 and Beyond.&quot; You can read the <a href="http://www.seyfarth.com/dir_docs/publications/180402-WCCR.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT032918 The Week in Weed: March 30, 2018 http://www.seyfarth.com:80/publications/TBT032918 Thu, 29 Mar 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/the-week-in-weed-march-30-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC032918 Class Action Issues At The U.S. Supreme Court http://www.seyfarth.com:80/publications/WC032918 Thu, 29 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On Monday, March 26, the U.S. Supreme Court focused on two notable class action issues, each with the potential to significantly impact workplace litigation. In today&rsquo;s video vlog, Partner Jerry Maatman of Seyfarth Shaw breaks down the importance of class action tolling issues and the concept of &ldquo;cy pres&rdquo; settlements for employers.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/class-action-issues-at-the-u-s-supreme-court/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL032918 Raging Bull: Getting Beat Up On Glassdoor? http://www.seyfarth.com:80/publications/EL032918 Thu, 29 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/raging-bull-getting-beat-up-on-glassdoor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM032918-LE Client’s Meal Period Failure Doesn’t Result In Staffing Agency Liability http://www.seyfarth.com:80/publications/OMM032918-LE Thu, 29 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: The California Court of Appeal has published an important decision clarifying the employer duty to provide meal periods and the respective responsibilities of staffing agencies and the client companies they serve. Serrano v. Aerotek, Inc.</em></p> <p> <strong>The Facts</strong></p> <p> Norma Serrano worked for Aerotek, a staffing agency that places temporary employees with its clients. Aerotek placed Serrano on a temporary assignment at Bay Bread, a food production facility. In their service agreement, Bay Bread accepted &ldquo;responsibility to control, manage and supervise&rdquo; the temporary workers and to comply with labor laws applying to them. Bay Bread set the work schedule, including meal and rest breaks, for the temporary employees that Aerotek supplied.</p> <p> Before her assignment to Bay Bread, Serrano received Aerotek&rsquo;s employee handbook, which included a policy that temporary workers would be provided with a 30-minute off-duty meal break for any work period of more than five hours, that the meal break would begin no later than the end of the fifth hour of work, and that employees were to inform Aerotek of anything interfering with their ability to take a meal break.</p> <p> While working at Bay Bread, Serrano, as shown by her time records, missed a compliant meal period on most of the days she worked. The Aerotek on-site manager disavowed responsibility for monitoring whether Aerotek&rsquo;s temporary employee took their meal breaks, and stated that Serrano never complained to him about missing meal breaks. Serrano herself admitted that she was unaware of Aerotek ever preventing her from taking a meal break within her first five hours of work. Bay Bread, meanwhile, considered the Aerotek policy irrelevant because Bay Bread itself provided breaks in compliance with California law.</p> <p> <strong>The Trial Court&rsquo;s Decision</strong></p> <p> Serrano sued both Aerotek and Bay Bread under Labor Code sections 226.7 and 512 for failing to provide meal breaks. The trial court granted summary judgment to Aerotek, and Serrano appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal, in a decision that was originally unpublished, affirmed the summary judgment for Aerotek, holding that Aerotek had provided meal breaks in accordance with its duty as spelled out by the California Supreme Court&rsquo;s <em>Brinker </em>decision. The Court of Appeal confirmed that an employer need not &ldquo;police&rdquo; meal breaks, and that an employer&rsquo;s mere knowledge that meal breaks are not being taken does not establish liability. The Court of Appeal concluded that Aerotek had satisfied its obligation to provide meal breaks by (1) having a compliant policy, (2) training employees on the policy, (3) requiring employees to notify Aerotek of any non-compliance, and (4) having a service agreement that required its client, Bay Bread, to comply the law concerning meal breaks.</p> <p> In reaching this conclusion, the Court of Appeal made several observations. First, time records showing a meal-break practice at variance with a meal-break policy does not trigger a duty to see if legal violations have occurred. The Court of Appeal rejected Serrano&rsquo;s argument that such time records create a presumption of violations, as <em>Brinker</em> makes clear that an employer&rsquo;s actual or constructive knowledge of a non-compliant meal-break practice does not establish liability.</p> <p> Second, Aerotek was not vicariously liable for any meal-break violation by Bay Bread. The Court of Appeal rejected Serrano&rsquo;s argument that Aerotek had a &ldquo;nondelegable duty&rdquo; to provide meal breaks to the temporary employees assigned to Bay Bread. Aerotek, as the direct employer, had the duty to provide meal breaks and did not claim to have delegated it.</p> <p> Third, Aerotek would not be liable for missed meal breaks even if Aerotek and Bay Bread were Serrano&rsquo;s joint employers. The Court of Appeal reasoned that one joint employer is not vicariously liable for its co-employer&rsquo;s violation of wage and hour law. Neither the wage order nor the statutes support a conclusion that an employer is liable for the breach of a co-employer&rsquo;s duty.</p> <p> <strong>What <em>Serrano</em> Means for Employers</strong></p> <p> <em>Serrano</em>, previously an unpublished opinion, has now been certified for publication, making it citable in litigation. In the age of the gig economy, <em>Serrano</em> shines some much needed light on the relative roles of employers with respect to a temporary workforce.</p> <p> <em>Serrano</em> clarifies a number of points important to both the provider and the consumer of temporary staffing services. First, both entities should have a written compliant meal-break policy, distributed to all workers, and providing an avenue to report any difficulty with taking meal breaks. Second, the staffing company and client should have clearly defined roles and responsibilities with respect to meal and rest breaks, spelling out who is going to supervise the temporary workers and schedule their breaks.</p> <p> <em>Serrano</em> provides helpful guidance for all employers, not just those using temporary workers. For one thing, failing to review time records or to investigate missed meal breaks does not prevent an employer from showing that it provided meal periods as required by <em>Brinker</em>. Additionally, time records that indicate missed breaks do not create a presumption of a legal violation: the employer&rsquo;s actual or presumed knowledge of missed breaks is irrelevant, because the employer&rsquo;s duty is simply to provide breaks, not to ensure that employees actually take them.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/weisscc032918 Philippe Weiss quoted in Corporate Counsel http://www.seyfarth.com:80/news/weisscc032918 Thu, 29 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 29 story from Corporate Counsel, &quot;Killjoy for April Foolers: The Legal Joke May Be on Your Company.&quot; Weiss said that he has seen office pranks lead to complaints, and sometimes even lawsuits.</p> http://www.seyfarth.com:80/news/weissobj032818 Philippe Weiss quoted in the Orlando Business Journal http://www.seyfarth.com:80/news/weissobj032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 28 story from the Orlando Business Journal, &quot;7 things to know today and tips for handling April Fools&#39; Day office pranks.&quot; Weiss suggests that bosses should resist the urge to prank (because a boss pranking is offering a complete pranking license to his/her employees). You can read the full article here: https://www.bizjournals.com/orlando/news/2018/03/28/7-things-to-know-today-and-tips-for-handlingapril.html</p> http://www.seyfarth.com:80/news/weisshro032818 Philippe Weiss quoted in HumanResources Online http://www.seyfarth.com:80/news/weisshro032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 28 story from HumanResources Online, &quot;How-to: Manage office pranks around April Fools&rsquo; Day.&quot; Weiss provided some tips to help control the risks without killing all the fun. You can read the <a href="http://www.humanresourcesonline.net/how-to-manage-office-pranks-around-april-fools-day/">full article here</a>.</p> http://www.seyfarth.com:80/news/weissshrm032818 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 28 story from SHRM, &quot;Discriminatory April Fools&rsquo; Pranks Are No Joking Matter,&quot; on why following company policies can help head off lawsuits. Weiss said that employers should make sure hijinks don&#39;t discriminate. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/discriminatory-april-fools-pranks.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/rodinehre032818 Joshua Rodine quoted in Human Resource Executive http://www.seyfarth.com:80/news/rodinehre032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Joshua Rodine was quoted in a March 28 story from Human Resource Executive, &quot;Inclusion Issues,&quot; on how the recent call for inclusion riders may not be heeded by many employers outside Hollywood, but could inspire overdue conversations about diversity. Rodine said that the idea is that high-powered actors can demand [through inclusion riders] that both the cast and those working &lsquo;below the line&rsquo; [the crew] demographically reflect society. You can read the <a href="http://hrexecutive.com/inclusion-issues/">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS032818 Webinar Recap! Protecting Confidential Information and Client Relationships in the Financial Services Industry http://www.seyfarth.com:80/publications/TS032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> In Seyfarth&rsquo;s second installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Scott Humphrey, Erik Weibust, and Marcus Mintz 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. In addition, the panel covered what to do if 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.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/03/articles/trade-secrets/webinar-recap-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-5/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC032818 Eleventh Circuit Upholds EEOC Verdict Challenging Employer’s Policy Favoring Current Employees For Open Positions http://www.seyfarth.com:80/publications/WC032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a cautionary tale for all employers, the Eleventh Circuit recently upheld a jury verdict of intentional discrimination in an EEOC lawsuit when an employer hired a current employee who was facing an imminent lay-off, rather than the charging party. The employer&rsquo;s policy was to favor internal candidates who were about to be terminated even if they were not the most qualified or &ldquo;best&rdquo; candidate for the open position. The Eleventh Circuit held that a reasonable jury could have found that the application of that policy was merely a pretext for discrimination.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/eleventh-circuit-upholds-eeoc-verdict-challenging-employers-policy-favoring-current-employees-for-open-positions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA032818-LE If Pain, Yes Gain—Part XLV: New Jersey Revives Statewide Paid Sick Leave Efforts http://www.seyfarth.com:80/publications/MA032818-LE Wed, 28 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Earlier this week, the New Jersey Assembly passed a bill that would impose statewide paid sick leave obligations on private employers. While the bill still must be approved by the New Jersey Senate and signed by the state Governor, after years of unfulfilled sick leave efforts, the state with the greatest number of municipal paid sick leave ordinances could soon be home to the country&rsquo;s tenth statewide paid sick leave law.</em></p> <p> For several years, New Jersey has examined the <a href="http://www.seyfarth.com/publications/MA122815-LE">possibility</a> of providing paid sick leave benefits to employees across the state. However, the combination of former Governor Chris Christie&rsquo;s anti-paid sick leave stance and disagreements on key points between the New Jersey Senate and Assembly has immunized New Jersey from joining the ranks of nine other states that have passed statewide paid sick leave laws.<a href="#_ftn1" name="_ftnref1" title="">[1]</a> &nbsp;This prognosis could soon change.&nbsp; Despite previous unsuccessful efforts, New Jersey has resuscitated its statewide paid sick leave push and, with Governor Phil Murphy at the helm, there is a strong chance the Garden State will soon pass the country&rsquo;s tenth paid sick leave law. &nbsp;</p> <p> On March 26, 2018, the New Jersey Assembly passed Bill A1827 (the &ldquo;Bill&rdquo; or &ldquo;Assembly Bill&rdquo;) that would require employers to provide employees in New Jersey with paid sick leave. The Bill, which according to its terms would take effect on the 180th day following enactment, will also need to be approved by the state Senate and signed by Governor Murphy before becoming law.&nbsp; While A1827 makes its way to the New Jersey Senate, the state Senate has introduced its own paid sick leave bill&mdash;Bill S2171 (the &ldquo;Senate Bill&rdquo;).</p> <p> Notably, the Senate Bill is not identical to the Assembly Bill.&nbsp; As a result, assuming the state Senate passes the Senate Bill and not the Assembly Bill, any differences would need to be reconciled before a bill is sent to Governor Murphy. One significant distinction between the two bills is how they treat preemption of municipal paid sick leave ordinances.&nbsp; Preemption is particularly important for New Jersey employers because the state is home to 13 municipal paid sick leave ordinances&mdash;the most of any state in the country.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> Under the Assembly Bill, all existing and future municipal ordinances would be preempted by the state law.&nbsp; However, under the Senate Bill, the 13 existing municipal ordinances would not be affected by the state law (i.e., they would remain in effect), although new ordinances would be preempted. Any forthcoming New Jersey paid sick leave law that does not preempt the state&rsquo;s existing municipal sick leave ordinances would create compliance challenges for employers as it would be adding to, rather than resolving, the existing patchwork.</p> <p> As we continue to monitor New Jersey&rsquo;s sick leave status, here are some highlights of the Assembly Bill:</p> <ul> <li> <strong>Employee Eligibility:</strong> Employee is defined broadly and means &ldquo;any individual engaged in service to an employer in the business of the employer for compensation.&rdquo;&nbsp; The Assembly Bill excludes certain employees in the construction industry who are under a collective bargaining agreement, certain per diem health care employees, and certain public employees.</li> <li> <strong>Covered Employer: </strong>Employer is also broadly defined and includes persons or entities that employ employees in New Jersey.</li> <li> <strong>Accrual, Usage and Carryover Caps:</strong> All eligible employees working for an employer in New Jersey are entitled to accrue one hour of sick leave for every 30 hours worked, up to 40 hours per year.&nbsp; An employer is not required to permit employees to use more than 40 hours of sick leave in any benefit year or carry over more than 40 hours of unused sick leave at year-end.</li> <li> <strong>Frontloading:</strong> While an employer may frontload an employee with the full amount of earned sick leave on the first day of each benefit year to avoid the accrual process, it does not appear that the Assembly Bill would allow employers with a frontloading system to adopt a &ldquo;use it or lose it&rdquo; approach for unused sick leave at the end of the year. &nbsp;The Assembly Bill states that if the employer chooses to frontload sick leave, it must either <strong>(1) </strong>pay the employee for the full amount of unused earned sick leave in the final month of the benefit year, or <strong>(2)</strong> permit the employee to carry over unused sick leave to the next benefit year.</li> <li> <strong>Reasons for Use:&nbsp; </strong>An employee must be permitted to use earned sick leave for absences for any of the following reasons: <ul> <li> For diagnosis, care, or treatment of, or recovery from, an employee&rsquo;s mental or physical illness, injury or other adverse health condition or for preventive medical care for the employee;</li> <li> For the employee to aid or care for a covered family member during diagnosis, care, or treatment of, or recovery from, the family member&rsquo;s mental or physical illness, injury or adverse health condition, or during preventive medical care for the family member;</li> <li> Certain absences resulting from the employee or a covered family member&rsquo;s status as a victim of domestic or sexual violence;</li> <li> Closures of the employee&rsquo;s workplace, or the school or place of care of a child of the employee, by order of a public official due to an epidemic or other public health emergency, or because of the issuance by a public health authority of a determination that the presence in the community of the employee, or a member of the employee&rsquo;s family in need of care by the employee, would jeopardize the health of others;</li> <li> For time needed by the employee in connection with a child of the employee to attend a school-related conference, meeting, function, or other event requested or required by a school administrator, teacher, or other professional staff member responsible for the child&rsquo;s education, or to attend a meeting regarding care provided to the child in connection with the child&rsquo;s health conditions or disability.</li> </ul> </li> <li> <strong>Family Member:</strong> Covered family member includes: <strong>(1) </strong>child; <strong>(2) </strong>grandchild; <strong>(3)</strong> sibling; <strong>(4)</strong> spouse; <strong>(5) </strong>domestic partner; <strong>(6) </strong>civil union partner;<strong> (7)</strong> parent; <strong>(8)</strong> grandparent; <strong>(9)</strong> spouse, domestic partner, or civil union partner of a parent or grandparent of the employee; <strong>(10)</strong> a sibling of a spouse, domestic partner, or civil union partner of the employee; or <strong>(11)</strong> any other individual related by blood to the employee or whose close association with the employee is the equivalent of a family relationship.</li> </ul> <p> Employers with employees in New Jersey should closely monitor whether the state ultimately passes a statewide paid sick leave law and what impact, if any, the law has on existing and future municipal sick leave ordinances.</p> <p> As the paid sick leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The nine states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>; and (9) <a href="http://www.seyfarth.com/publications/MA020918-LE">Maryland</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The Maryland statewide paid sick leave law went into effect on February 11, 2018. The other six statewide laws are in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The New Jersey municipalities with current paid sick leave ordinances are: (1) Newark; (2) Passaic; (3) East Orange; (4) Paterson; (5) Irvington; (6) Montclair; (7) Trenton; &nbsp;(8) Bloomfield; (9) Jersey City; (10) Morristown; (11) Plainfield; (12) Elizabeth, and (13) New Brunswick.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CP032818 Raging Bull: Getting Beat Up On Glassdoor? http://www.seyfarth.com:80/publications/CP032818 Wed, 28 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Even if bad Glassdoor reviews have you feeling like you need to fight back, employers should stay out of the ring, and instead implement social media policies that clearly define prohibited behavior and disclosures, while spelling out the consequences for violations. Employers must not retaliate against employees for their lawful out-of-office behavior.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/03/28/raging-bull-getting-beat-up-on-glassdoor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA032718-LE VII Before IX: Continuing Saga in Harassment Claim Preemption http://www.seyfarth.com:80/publications/MA032718-LE Tue, 27 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> A recent decision by the U.S. District Court for the Eastern District of Texas, part of the Fifth Circuit Court of Appeals, reaffirmed a growing circuit split regarding whether Title VII of the Civil Rights Act of 1964 preempts concurrent claims raised under Title IX of the Education Amendments Act of 1972.&nbsp; In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler &amp; Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), Judge Amos Mazzant dismissed a former medical resident&rsquo;s Title IX claims of sexual harassment and retaliation against the University of Texas Health Science Center at Tyler on the grounds that Title VII is the exclusive remedy for claims of employment discrimination on the basis of sex in a federally funded educational institutions.&nbsp; While consistent with precedent in the Fifth and Seventh Circuits, the decision stands at odds with prior decisions in the First, Third and Fourth Circuits holding that employees of institutions subject to both Title VII and Title IX may raise such claims under whichever statutory scheme they choose.&nbsp; &nbsp;</em></p> <p> Last March, we wrote about a watershed <a href="http://www.seyfarth.com/publications/MA031317-LE">decision in the U.S. Court of Appeals for the Third Circuit</a> - <em>Doe v. Mercy Catholic Medical Center</em>, No. 16-1247 (3d Cir. 2017) - that held the nondiscrimination and anti-harassment protections of Title IX of the Education Amendment Act of 1972 apply to a private medical hospital&rsquo;s residency programs, even those that lack a formal affiliation to an educational institution where Title IX has historically applied.&nbsp; The decision was also notable for holding that the concurrent applicability of Title VII of the Civil Rights Act of 1964 to such institutions did not preclude the plaintiff in that matter, a former resident, from filing her Title IX claim.&nbsp;&nbsp; The Third Circuit&rsquo;s decision contributed to a growing split among the federal Circuits regarding whether Title VII and its extensive administrative pre-requisites preempt concurrent remedies under Title IX for those individuals employed by institutions subject to both statutes.&nbsp;&nbsp; In <em>Doe</em>, the Third Circuit joined the First and Fourth Circuits in holding that in a covered individual employed by such an institution may seek remedy under whichever statutory scheme he or she chooses.&nbsp; These decisions contradict case law in the Fifth and Seventh Circuits, which have affirmatively held that Title VII and its carefully crafted statutory administrative pre-requisites are the exclusive remedy for sex discrimination claims brought by employees of institutions covered by both Title VII and Title IX.&nbsp;</p> <p> A recent decision by the U.S. District Court for the Eastern District of Texas - within the Fifth Circuit - put this precedent to the test.&nbsp; In <em>Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler &amp; Good Shepherd Med. Ctr.</em>, No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), a former medical resident at the University of Texas Health Science Center (&ldquo;UTHSC&rdquo;) and Good Shepherd Medical Center (&ldquo;Good Shepherd&rdquo;), alleged that her supervising resident subjected her to continuous verbal, physical and sexual harassment and that, when she reported his conduct, the hospital discriminated against her by failing to address the conduct and retaliated against her by suspending her indefinitely from the program.&nbsp; Slabisak asserted that, among other things, UTHSC&nbsp; and Good Shepherd violated her rights under both Title VII and Title IX.&nbsp; UTHSC moved to dismiss Slabisak&rsquo;s Title IX claims on the grounds that Title VII preempted any recovery under Title IX.&nbsp;</p> <p> Judge Amos Mazzant of the Eastern District of Texas agreed.&nbsp; In a brief decision, Judge Mazzant re-affirmed Fifth Circuit precedent, noting &ldquo;the basis for Plaintiff&rsquo;s Title IX claims - deliberate indifference and retaliation - revolve around the allegations that Plaintiff was subjected to a hostile work environment, which UTHSC failed to address and correct; and moreover that UTHSC retaliated against Plaintiff when she informed them of said hostile work environment.&nbsp; Such claims fall within the exclusivity of Title VII - employment discrimination on the basis of sex in a federally funded educational institutions.&rdquo;&nbsp; <em>Id. </em>&nbsp;at *7-8.&nbsp; Judge Mazzant accordingly dismissed Slabisak&rsquo;s Title IX counts, but permitted the Title VII claims to move forward.&nbsp; Of note, none of the parties appeared to challenge the notion that Slabisak, as a resident, was an employee for purposes of Title VII.&nbsp;</p> <p> What does this mean?&nbsp; Medical centers, hospitals, and other healthcare institutions providing accredited teaching and training programs, particularly programs formally affiliated with educational institutions, should be familiar with the precedent in the federal Circuits in which they operate.&nbsp; Though the substantive protections of Title VII and Title IX do not differ substantially, the process for redress, the standards of liability, and the remedies may differ.&nbsp; Most notably, Title VII requires exhaustion of administrative remedies. &nbsp;Employees seeking redress under Title VII must first file a complaint with the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;) or similar state administrative agency prior to filing suit in state or federal court.&nbsp; Title IX includes no such prerequisite.&nbsp; Individuals subject to the protections of Title IX may file a complaint with the Department of Education Office for Civil Rights (the DOE version of the EEOC), but they may opt to forego this step and file suit directly in court.&nbsp; The statute of limitations for Title VII claims - within 180 or 300 days, depending on the state - is much shorter than the statute of limitations for Title IX claims.&nbsp; Title IX does not include its own statutory time limitation and typically follows state tort law limitations, which are usually two or more years. &nbsp;Finally, the type of individual remedies available under Title IX is subject to some murky case law, but generally Title IX plaintiffs may seek actual and compensatory damages, injunctive relief, and attorneys&rsquo; fees.&nbsp;</p> <p> This decision further highlights the importance, particularly in the current climate, of responding effectively and expeditiously to all complaints of discrimination, harassment, and retaliation.&nbsp; Healthcare institutions can mitigate risks associated with such complaints - whether Title VII or Title IX applies - by:</p> <ul> <li> Maintaining wide-open, easily accessible and well-communicated procedures, using multiple avenues, for reporting, investigating, and resolving complaints of discrimination, harassment, and retaliation.&nbsp; &nbsp;</li> <li> Ensuring those physicians, administrators, managers, and faculty who are most likely to witness or hear of reports of risky behavior are well trained in not only what and how to report, but also how to empower bystanders and effectively and sensitively manage those situations and any reports they receive.</li> <li> Documenting the institution&#39;s actions with respect to all reports of discrimination, harassment, and retaliation - from report through investigation and resolution - so that the institution&rsquo;s good actions and consistent approach can be proven in the event of an administrative charge or lawsuit.</li> </ul> http://www.seyfarth.com:80/publications/TBT032718 Massachusetts Recreational Pot Regulations Offer Little Guidance To Employers http://www.seyfarth.com:80/publications/TBT032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> On March 9, 2018, the Massachusetts Cannabis Control Commission (&ldquo;CCC&rdquo;) filed its much anticipated recreational marijuana Regulations with the Massachusetts Secretary of State. According to the CCC, the Regulations are on track to be published in the Massachusetts Register on March 23, 2018. The Regulations will become effective upon publication. While the Regulations are comprehensive in many ways, for most employers the Regulations are most notable for what they lack, namely guidance regarding employer-employee rights and responsibilities.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/massachusetts-recreational-pot-regulations-offer-little-guidance-to-employers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH032718 Oh Thank Heaven, Franchisees Not Employees of 7-Eleven! http://www.seyfarth.com:80/publications/WH032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Earlier this month, a California federal court dismissed the misclassification claims of 7-Eleven franchisees on the pleadings, finding they did not and could not plead facts sufficient to show that they were employees of their franchisor.<br /> <br /> <a href="https://www.wagehourlitigation.com/independent-contractors/oh-thank-heaven/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL032718 VII Before IX: Continuing Saga in Harassment Claim Preemption http://www.seyfarth.com:80/publications/EL032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recent decision by the U.S. District Court for the Eastern District of Texas, part of the Fifth Circuit Court of Appeals, reaffirmed a growing circuit split regarding whether Title VII of the Civil Rights Act of 1964 preempts concurrent claims raised under Title IX of the Education Amendments Act of 1972. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler &amp; Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), Judge Amos Mazzant dismissed a former medical resident&rsquo;s Title IX claims of sexual harassment and retaliation against the University of Texas Health Science Center at Tyler on the grounds that Title VII is the exclusive remedy for claims of employment discrimination on the basis of sex in a federally funded educational institutions. While consistent with precedent in the Fifth and Seventh Circuits, the decision stands at odds with prior decisions in the First, Third and Fourth Circuits holding that employees of institutions subject to both Title VII and Title IX may raise such claims under whichever statutory scheme they choose.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/vii-before-ix-continuing-saga-in-harassment-claim-preemption/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA032718-LIT The President Giveth and The President Taketh Away: Exemptions and Exclusions to the Trump Steel Tariff http://www.seyfarth.com:80/publications/MA032718-LIT Tue, 27 Mar 2018 00:00:00 -0400 <h2> Country-Specific &ldquo;Exemptions&rdquo;</h2> <div> Last week Seyfarth Shaw published an <a href="http://www.seyfarth.com/publications/OMM031618-LIT">alert</a> concerning the 25% global tariff on imported steel articles, which commenced at midnight on March 23, 2018, and which <em>would</em> have applied to the importation of raw steel materials from anywhere other than Canada and Mexico. Twelve hours before the tariff went into effect, the administration granted a temporary reprieve for five additional countries, many of which are major exporters of items covered by the Presidential Proclamation on Adjusting Imports of Steel into the U.S. At least until May 1, 2018, steel articles imported from the European Union, Australia, Brazil, Argentina, and South Korea will be excluded from the tariff.</div> <div> &nbsp;</div> <div> The new country-specific exemptions come after weeks of intense lobbying by foreign leaders and free trade groups, denouncing the imposition of tariffs as a &ldquo;race to the bottom&rdquo; that would be detrimental to the economic interests of both sides.<sup>1</sup> U.S. Trade Representative Robert Lighthizer first publicized the administration&rsquo;s decision to exempt additional trade allies while testifying before the Senate Finance Committee on March 22.<sup>2</sup> When pressed by Senator Wyden, Mr. Lighthizer testified that the imposition of tariffs would be &ldquo;paused,&rdquo; while these five countries negotiate the terms of existing trade deals with the administration. Under the current configuration, Russia, China, Turkey, and, somewhat surprisingly, Japan are the exporters that will be hit hardest by the tariff.<sup>3</sup></div> <div> &nbsp;</div> <h2> Product-Specific &ldquo;Exclusions&rdquo;</h2> <div> Whereas tariff exemptions are country-specific and depend on the progress of negotiations with trade allies, tariff <em>exclusions</em> correlate to specific <em>articles</em> covered by the Proclamation. This alert highlights the important distinction between &ldquo;articles&rdquo; covered by the Proclamation and finished products that fall outside of its scope; and explains the process for applying for a tariff exclusion under the interim rule published by the Department of Commerce on March 19, 2018.<sup>4</sup></div> <div> &nbsp;</div> <h2> Steel Articles Versus Finished Products</h2> <div> Steel importers should take note of the critical distinction between <em>articles</em> and <em>finished products</em>. The Trump tariff applies to a broad list of &ldquo;steel articles&rdquo; set forth in the Harmonized Tariff Schedule (HTSUS) that went into effect on March 1, 2018.<sup>5</sup> By limiting its application to articles, the tariff is aimed toward raw steel materials, the intentional dumping of which is perceived by the administration to undermine the market and prejudice domestic suppliers of cast iron, pig iron, and steel alloys.&nbsp; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Finished steel products are items that are &ldquo;substantially transformed&rdquo; prior to their importation into the United States. An article is substantially transformed any time it emerges from a manufacturing process with a new or distinct name, character, or use.<sup>6</sup> One prime example of a &ldquo;finished product&rdquo; is fabricated structural steel and iron angles used for vertical construction projects, which is coded under Section 7308 of the HTSUS.<sup>7</sup> Section 7308, which is not listed in the Trump Proclamation, governs: &ldquo;Structures (excluding prefabricated buildings of heading 9406) and parts of structures (for example, bridges and bridge sections, lock gates, towers, lattice masts, roofs, roofing frameworks, doors and windows and their frames and thresholds for doors, shutters, balustrades, pillars and columns) of iron or steel; plates, rods, angles, shapes, sections, tubes and the like, <em>prepared for use in structures</em>, of iron or steel.&rdquo;<sup>8</sup> Thus, the manufactured products most typically used for structural steel in vertical construction are not likely subject to the tariff because they have been fully fabricated for their intended use in another country, prior to importation.</div> <div> &nbsp;</div> <div> Raw steel materials that will be rolled, forged, hot-worked, formed, shaped, welded, or drilled in this country, such as to change the character of the article, are likely subject to the tariff. Such articles include things like steel ingots,<sup>9</sup> railway and track construction materials,<sup>10</sup> and stainless steel tubes and pipe.<sup>11</sup> Builders and manufacturers who rely upon these inputs in the greater production scheme will suffer the brunt of the tariff, especially those companies that already entrenched in fixed-price contracts that lack a cost-escalation clause.<sup>12</sup></div> <div> &nbsp;</div> <h2> Applying for a Tariff Exclusion: Procedure and Grounds for Exclusion&nbsp;</h2> <div> To alleviate the impact of the Trump steel tariff, importers may simply reshape their procurement strategy and elect to obtain steel, in whole or to a greater extent, from countries that are exempt from the Proclamation. This boils down to a pure business decision that depends on the type, quantity, and relative supply of the item being imported, as well as other considerations such as transportation costs.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> One potential avenue for obtaining relief from tariffs is to seek an exclusion with the Department of Commerce&rsquo;s Bureau of Industry and Security (BIS). On March 19, 2018, Commerce published an Interim Rule, which authorizes &ldquo;individuals or organizations using steel articles identified in Proclamation 9705 in business activities (e.g., construction, manufacturing, or supplying steel to users) in the United States&rdquo; to submit a request for exclusion to BIS.<sup>13</sup> Notably, this interim rule is open to public comments for those who wish to weigh in on the exclusion procedures or suggest changes to the process. The deadline for public comments on the interim rule is May 18, 2018.</div> <div> &nbsp;</div> <div> Below is a brief summary of the protocol that contractors and manufacturers must follow to obtain a tariff exclusion from BIS.</div> <div> &nbsp;</div> <h3> How and where are exclusion requests filed?&nbsp;</h3> <div> Exclusion requests must be submitted in electronic form, using standard form BIS-2018-0006, a copy of which is available online.<sup>14</sup> The exclusion request should be submitted to BIS through the federal rulemaking portal.<sup>15</sup> All exclusion requests are accessible by the general public, subject to limited clawback of certain personal identifier information, such as social security numbers and employer identifier numbers, as well as classified information and qualified proprietary or confidential business information.<sup>16</sup>&nbsp;&nbsp;</div> <h3> What information must be included with the exclusion request?&nbsp;</h3> <div> The exclusion request must specify the following information: (i) the requester&rsquo;s name, date of submission, and 10-digit HTSUS reporting number for which an exclusion is sought; (ii) the relevant business activities that the requester is engaged in in the United States and which justify its request; and (iii) the grounds supporting the exclusion request. Exclusion requests are limited in length to 25 pages, including all exhibits and attachments.<sup>17</sup></div> <div> &nbsp;</div> <div> The Interim Rule reiterates the limited grounds for exclusion identified in the Proclamation, stating: &ldquo;An exclusion will only be granted if an article is not produced in the United States in a sufficient and reasonably available amount, is not produced in the United States in a satisfactory quality, or for a specific national security consideration.&rdquo;<sup>18</sup> While commenters on the interim rule are free to solicit broader substantive bases for exclusions, obtaining more expansive exclusions will be an uphill battle.</div> <h3> What is the deadline to file an exclusion request and when will I receive a decision?</h3> <div> Under the Interim Rule, there is no time limit for submitting exclusion requests.<sup>19</sup> Of course, as a practical matter, companies must plan around their project schedule to allow the administrative process to run its course. Without providing any guarantees, the Interim Rule states that &ldquo;the review period normally will not exceed 90 days, including adjudication and objections submitted on exclusion requests.&rdquo;<sup>20</sup></div> <h3> Who decides my exclusion request?</h3> <div> BIS is the ultimate arbiter of exclusion requests, subject to input from other federal agencies, including the U.S. International Trade Commission and U.S. Customs and Border Protection (CBP).<sup>21</sup> The Interim Rule provides that BIS will coordinate with CBP to implement any approved exclusion request at the relevant bonded warehouse.</div> <div> &nbsp;</div> <div> The Interim Rule allows third parties (such as competitors or advocacy groups) to intervene in any exclusion request by filing written objections within 30 days after the exclusion requests is posted.<sup>22</sup> When deciding the request, BIS will take into consider arguments in the objections that are &ldquo;directly related to the submitted exclusion request that is subject of the&nbsp; objection.&rdquo;<sup>23</sup> The final disposition of the request must address the comments set forth in any objection.</div> <h3> When does an approved exclusion request go into effect and what does it cover?</h3> <div> Once approved, an exclusion takes effect within 5 business days of publication in the federal rulemaking portal.<sup>24</sup></div> <div> &nbsp;</div> <div> In the event BIS grants an exclusion request, the exclusion is limited to the individual or organization that submitted the request, unless otherwise indicated. For example, if Company A gets approval to import railway track construction materials from China, Company B is not, per se, exempt from the tariff until it obtains an exclusion of its own. The Interim Rule further provides that &ldquo;[s]eparate exclusion requests must also be submitted for products falling in more than one 10-digit HTSUS subheading.&rdquo;<sup>25</sup></div> <h3> How long does the exclusion last?</h3> <div> An approved exclusion presumptively lasts for a period of one year, unless otherwise extended by BIS. As written, the Interim Rule does not establish any distinct or separate procedure for renewing an approved exclusion.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h2> Conclusion: What to Expect Next</h2> <div> The 25% tariff on steel articles will remain in limbo for as long as trade negotiations continue between the administration and the major exporters. What was supposed to be a &ldquo;global&rdquo; tariff has, to a large extent, been swallowed by exclusions to the general rule. Steel articles from Canada and Mexico are likely exempt from the tariff until the President obtains new NAFTA terms that are to his liking (or makes the tariff permanent if he doesn&rsquo;t get his way). Although the administration has temporarily exempted the European Union, Australia, Brazil, Argentina, and South Korea through May 1, 2018, it is distinctly possible that it will extend the exemptions indefinitely if it does not reach new trade deals with these countries in the next month. In short, other than China and Russia, it is extremely difficult to predict which exporters are subject to the tariff in the long run.</div> <div> &nbsp;</div> <div> Contractors who depend on steel imports should first determine whether the imported articles are covered by the relevant sections of the HTSUS. Any steel item that will be substantially transformed in this country will likely be subject to the 25% cost increase. Any item that is a finished product that has undergone all manufacturing process is not likely covered by the Proclamation. Importers should take caution to verify, before estimating and procurement, whether the specific imported items should be coded under the HTSUS sections identified in footnote 5 of this memo.&nbsp;</div> <div> &nbsp;</div> <div> The Interim Rule governing exclusions to the tariff is not set in stone. Any U.S. citizen or company may electronically submit written comments that will be published in the federal rulemaking database and considered by Commerce in determining the terms of the final rule.&nbsp; For the time being, however, the protocols outlined in this bulletin will govern any exclusion request.</div> <div> &nbsp;</div> <div> Seyfarth Shaw will be regularly monitoring developments in the tariff scheme as applied to steel and is always available to address questions, provide strategy recommendations, or navigate the process for exclusion requests.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1. BBC News, <em>U.S. Steel Tariffs: Germany&rsquo;s Merkel Calls for EU Exemption</em>, Mar. 9, 2018, available at: <a href="http://www.bbc.com/news/world-us-canada-43340203">http://www.bbc.com/news/world-us-canada-43340203</a></p> <p> 2. A link to the 2.5-hour testimony is available online at: <a href="https://www.c-span.org/video/?442748-1/us-trade-representative-lighthizer-testifies-steel-aluminum-tariffs">https://www.c-span.org/video/?442748-1/us-trade-representative-lighthizer-testifies-steel-aluminum-tariffs</a></p> <p> 3. Michael Birnbaum, <em>E.U., Brazil, South Korea and Others Get Temporary Exemptions from Trump&rsquo;s Steel Tariffs</em>, Washington Post, Mar. 22, 2018, available at: <a href="https://www.washingtonpost.com/world/europe/eu-brazil-south-korea-and-others-get-temporary-exemptions-from-trumps-steel-tariffs/2018/03/22/9d0fac5a-2de4-11e8-8dc9-3b51e028b845_story.html?utm_term=.10b5d8b9cbeb">https://www.washingtonpost.com/world/europe/eu-brazil-south-korea-and-others-get-temporary-exemptions-from-trumps-steel-tariffs/2018/03/22/9d0fac5a-2de4-11e8-8dc9-3b51e028b845_story.html?utm_term=.10b5d8b9cbeb</a></p> <p> 4. 15 C.F.R. &sect; 705 (Mar. 19, 2018)</p> <p> 5. The official HTSUS in effect as of the date of President Trump&rsquo;s proclamation can be found online at: <a href="https://www.usitc.gov/tata/hts/index.htm">https://www.usitc.gov/tata/hts/index.htm</a>. The steel articles covered by the Proclamation are in Chapter 72 and include the following 6-digit levels: 7206.10 through 7216:50; 7216.99 through 7301:10; 7302:10; 7302.40 through 7302.90; and 7304.10 through 7306.90.</p> <p> 6. The substantial transformation test originated in the Supreme Court&rsquo;s decision in <em>Anheuser-Busch Brewing Ass&rsquo;n v. United States</em>, 207 U.S. 556, 562 (1908) (deciding whether imported corks were &ldquo;articles manufactured or produced in the United States&rdquo; for purposes of assessing duties). This test is used in a number of contexts to determine the place of manufacturing. <em>Jacobs Equipment Co. v. United States</em>, 574 F.2d 1040 (10th Cir. 1978) (assessing whether the act of welding a hoist to a truck constituted &ldquo;manufacturing&rdquo; for purpose of excise tax).<span style="white-space: pre;"> </span></p> <p> 7. To identify the proper coding for common items used in structural steel erection (i.e. angles, flanges, and beams), Seyfarth Shaw consulted with Mr. Sid Dickerson, an expert with over 40 years of experience in the structural steel industry, who has unique insight into the coding process under the HTSUS. Mr. Dickerson is the President of Dickerson Enterprises, Inc., which is based in Austin, Texas, and specializes in structural steel fabrication, engineering, estimating, planning, field erection, and project management for industrial, energy, and infrastructure projects nationwide.</p> <p> 8. HTSUS Section 7308.<span style="white-space: pre;"> </span></p> <p> 9. HTSUS Section 7206.<span style="white-space: pre;"> </span></p> <p> 10. HTSUS Section 7302.</p> <p> 11. HTSUS Section 7304.</p> <p> 12. A cost escalation clause, also known as a price adjustment clause, is a contractual mechanism for shifting the risk of foreseeable increases in the cost of labor or material inputs for construction. With respect to steel, a good example of a cost escalation clause is located at Part 252.216-7000 of the Defense Federal Acquisition Regulation Supplement (DFARS), titled &ldquo;Economic Price Adjustment.&rdquo;</p> <p> 13. <em>Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States; and Filing of Objections to Submitted Exclusion Requests for Steel and Aluminum</em>, 83 Fed. Reg. 53 (Mar. 19, 2018).&nbsp;</p> <p> 14. <a href="https://www.bis.doc.gov/index.php/232-steel">https://www.bis.doc.gov/index.php/232-steel</a>.</p> <p> 15. <a href="http://www.regulations.gov">http://www.regulations.gov</a>.</p> <p> 16. Interim Rule, Part 705(b)(3).</p> <p> 17. <em>Id.</em> Part 705(e).</p> <p> 18. <em>Id.</em> Part 705(c)(5).</p> <p> 19. <em>Id.</em> Part 705(c)(4).<span style="white-space: pre;"> </span></p> <p> 20. <em>Id.</em> Part 705(f)(3).</p> <p> 21. <em>Id.</em><span style="white-space: pre;"> </span></p> <p> 22. <em>Id.</em> Part 705(d)(3) (authorizing objections from &ldquo;[a]ny individual or organization in the United States.&rdquo;)<span style="white-space: pre;"> </span></p> <p> 23. <em>Id.</em> Part 705(d)(1).<span style="white-space: pre;"> </span></p> <p> 24. <em>Id.</em> Part 705(f)(2).</p> <p> 25. <em>Id.</em> Part 705(c)(2).</p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/bitarche032718 Karen Bitar quoted in The Chronicle of Higher Education http://www.seyfarth.com:80/news/bitarche032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> Karen Bitar was quoted in a March 27 story from The Chronicle of Higher Education, &quot;Lurid Charges Against Ex-Dean Mark a Disturbing Turn in Michigan State&rsquo;s Nassar Scandal.&quot; Bitar said that it&rsquo;s troubling that William Strampel possessed a video of Nassar performing a questionable procedure on a patient. You can read the <a href="https://www.chronicle.com/article/Lurid-Charges-Against-Ex-Dean/242945">full article here</a>.</p> http://www.seyfarth.com:80/news/levinsonccb032718 Michael Levinson quoted in Crain's Chicago Business http://www.seyfarth.com:80/news/levinsonccb032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> Michael Levinson was quoted in a March 27 story from Crain&#39;s Chicago Business, &quot;New Lakeview wine bar copied us, says New York chain.&quot; In this case, the ultimate question for the judge is whether similar elements between the two restaurants are functional or ornamental. Levinson said that if they are considered functional, the law is not going to protect the trademark. You can read the <a href="http://www.chicagobusiness.com/article/20180327/BLOGS09/180329882/chicagos-lago-wine-bar-accused-of-copying-new-york-restaurant">full article here</a>.</p> http://www.seyfarth.com:80/news/morashrm032718 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm032718 Tue, 27 Mar 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in a March 27 sotry from SHRM, &quot;California Employers Must Navigate Range of Background Check Laws ,&quot; on how businesses are subject to federal, state and possibly local rules. Regarding employer audits, Mora advises gathering all documents related to the background process and having counsel take a look at them. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/California-Employment-Background-Check-Laws.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarsfchronicle032618 Bart Lazar quoted in the San Francisco Chronicle http://www.seyfarth.com:80/news/lazarsfchronicle032618 Mon, 26 Mar 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a March 26 story from the San Francisco Chronicle, &quot;Facebook faces growing government scrutiny in privacy scandal.&quot; Lazar said that the FTC may have difficulty finding that Facebook was liable for the actions of a third party. You can read the <a href="https://www.sfchronicle.com/business/article/Facebook-faces-growing-government-scrutiny-in-12782652.php">full article here</a>.</p> http://www.seyfarth.com:80/news/lazarscmagazine032618 Bart Lazar quoted in SC Magazine http://www.seyfarth.com:80/news/lazarscmagazine032618 Mon, 26 Mar 2018 00:00:00 -0400 <p> Bart Lazar was quoted in a March 26 story from SC Magazine, &quot;FTC confirms Facebook probe, Common Cause files two complaints against Cambridge Analytica.&quot; Lazar said that the Facebook situation brings to bear some very basic privacy issues, such as the clarity of privacy notices, and the importance of serious due diligence with respect to any third party or service provider to whom personal information is disclosed. You can read the <a href="https://www.scmagazine.com/ftc-confirms-facebook-probe-common-cause-files-two-complaints-against-cambridge-analytica/article/753808/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonnpr032618 Camille Olson interviewed by NPR http://www.seyfarth.com:80/news/olsonnpr032618 Mon, 26 Mar 2018 00:00:00 -0400 <p> Camille Olson was interviewed March 26th by NPR, &quot;Unequal Rights: Contract Workers Have Few Workplace Protections.&quot; Olson said that the same protections where the supervisor and the manager control the workplace, control the worker, is not relevant to the independent contractor relationship. You can listen to the <a href="https://www.npr.org/2018/03/26/593102978/unequal-rights-contract-workers-have-few-workplace-protections">full story here</a>.</p> http://www.seyfarth.com:80/news/rabenyt032418 Scott Rabe quoted in the New York Times http://www.seyfarth.com:80/news/rabenyt032418 Sat, 24 Mar 2018 00:00:00 -0400 <p> Scott Rabe was quoted in a March 24 story from the New York Times, &quot;Transgender Workers Gain New Protection Under Court Ruling,&quot; on a federal appeals court ruling this month which says that transgender people are protected by a civil rights law that bans workplace discrimination based on sex. Rabe said that the ruling is a big win for the Equal Employment Opportunity Commission and for transgender people. You can read the <a href="https://www.nytimes.com/2018/03/24/us/politics/transgender-title-vii.html">full article here</a>.</p> http://www.seyfarth.com:80/news/2017wcarnlj032318 Seyfarth's 2017 Workplace Class Action Litigation Report referenced in the National Law Journal http://www.seyfarth.com:80/news/2017wcarnlj032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s 2017 Workplace Class Action Litigation Report was referenced in a March 23 story from the National Law Journal, &quot;Supreme Court&rsquo;s Employment Contract Case Will Have Broad Reach. Here&rsquo;s How We Know,&quot; on a recent memorandum from the NLRB general counsel&rsquo;s office which identified 152 cases awaiting the Supreme Court decision. Several of theese cases center around wage-and-hour disputes. According to Seyfarth&#39;s report, settlements of wage-and-hour cases have ballooned in recent years.</p> http://www.seyfarth.com:80/news/soloweymillerhrdive032318 Dawn Solowey and Kyla Miller's blog post referenced in HR Dive http://www.seyfarth.com:80/news/soloweymillerhrdive032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Dawn Solowey and Kyla Miller&#39;s blog post was referenced in a March 23 story from HR Dive, &quot;Employers can&#39;t demand clergy notes for flu shot exemptions, feds say.&quot; Solowey and Miller wrote that it&#39;s not a best practice to require a clergy note to support a religious accommodation request, because an employee only needs to have a sincerely held religious belief; it is irrelevant whether an employee is part of an organized religion. You can read the <a href="https://www.hrdive.com/news/employers-cant-demand-clergy-notes-for-flu-shot-exemptions-feds-say/519670/">full article here</a>.</p> <p> &nbsp;</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/maatmanscrogginslaw032318 Gerald Maatman and Andrew Scroggins' blog post referenced in Law.com http://www.seyfarth.com:80/news/maatmanscrogginslaw032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Gerald Maatman and Andrew Scroggins&#39; blog post was referenced in a March 23 story from Law.com, &quot;Labor of Law: Reshaping EEOC,&quot; on Sharon Gustafson, the Trump administration&rsquo;s pick for EEOC general counsel. Maatman and Scroggins said that, to the extent employers had expected the president to announce the appointment of a management-side defense lawyer as the next general counsel of the EEOC, this announcement is sure to prompt discussion amongst the employer community.</p> http://www.seyfarth.com:80/news/finkelbloombergbna032318 Noah Finkel quoted in Bloomberg BNA http://www.seyfarth.com:80/news/finkelbloombergbna032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Noah Finkel was quoted in a March 23 story from Bloomberg BNA, &quot;Budget Brings Ambiguity on Tip-Sharing Issue,&quot; on how a budgetary compromise that quiets the controversy on restaurant tip skimming is now creating an ambiguous path forward for federal wage-and-hour law. Finkel said that he thinks there are some ambiguities that are going to be a breeding ground for litigation.</p> http://www.seyfarth.com:80/publications/OMM032318-EB DOL Fiduciary Advice Rule Vacated by the Fifth Circuit http://www.seyfarth.com:80/publications/OMM032318-EB Fri, 23 Mar 2018 00:00:00 -0400 <div> On March 15, 2018, in <em>Chamber of Commerce of the U.S.A., et al. v. U.S. Department of Labor</em>, the Court of Appeals for the Fifth Circuit invalidated the Department of Labor&rsquo;s (&ldquo;DOL&rdquo;) new investment advice fiduciary regulation (the &ldquo;Fiduciary Rule&rdquo;) in a 2-1 decision.</div> <div> &nbsp;</div> <h3> The DOL&rsquo;s Fiduciary Rule</h3> <div> &nbsp;</div> <div> The DOL issued the Fiduciary Rule, which re-defined who is an &ldquo;investment advice fiduciary&rdquo; under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;), on April 6, 2016, after a prolonged rule making process.&nbsp; Click <a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA041516EBpdf.pdf">here </a>for our prior alert discussing the Fiduciary Rule.&nbsp; Following the 2016 Presidential election, the Fiduciary Rule was delayed (originally it was set to take effect on April 10, 2017). See our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM040617EB.pdf">alert</a>. The applicability date for certain aspects of the class prohibited transaction exemptions issued in connection with the Fiduciary Rule was also extended to January 1, 2018.&nbsp; See our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM052317EB.pdf">alert</a>. In November 2017, the DOL announced a further delay of the applicable exemptions and extended temporary relief to fiduciaries working diligently and in good faith to comply with the Rule, to July 1, 2019, in order to give the Department time to review and consider changes.&nbsp;</div> <div> &nbsp;</div> <h3> Invalidated</h3> <div> &nbsp;</div> <div> On March 15, 2018, the Fifth Circuit vacated the Fiduciary Rule (overturning the lower court&rsquo;s decision).&nbsp; The issue addressed by the Court was whether the DOL&rsquo;s expansion of the definition of &ldquo;investment advice fiduciary&rdquo; exceeded the DOL&rsquo;s rulemaking authority under ERISA.&nbsp; The Fifth Circuit concluded that the DOL&rsquo;s new definition directly conflicted with ERISA because it departed from the commonly held understanding of the term &ldquo;fiduciary&rdquo; under the statute. Going further, the Court provided that the DOL&rsquo;s interpretation of &ldquo;fiduciary&rdquo; under ERISA was unreasonable because it arbitrarily expanded the DOL&rsquo;s authority over individual retirement account (IRA) fiduciaries and the concept of investment &ldquo;advice&rdquo; (<em>e.g.</em>, by including products that are sold by financial salespeople and/or insurance agents).</div> <div> &nbsp;</div> <h3> Where Do We Go From Here</h3> <div> &nbsp;</div> <div> With the Fifth Circuit&rsquo;s ruling, the fate of the Fiduciary Rule is uncertain.&nbsp; The DOL may request a rehearing <em>en banc</em> or petition for a writ of certiorari to the United States Supreme Court.&nbsp; There is a limited circuit split with the Tenth Circuit ruling in favor of the DOL on its treatment of fixed indexed annuity sales under the Fiduciary Rule.&nbsp; Alternatively, the DOL may take no action.&nbsp; &nbsp;If the DOL does not take further action, most practitioners believe that the Fiduciary Rule is void.&nbsp; In such case, presumably, the original fiduciary advice regulations, which were issued in 1975, would become effective again. The original regulations defined an investment advice fiduciary as a person rendering ongoing, individualized investment advice pursuant to a mutual agreement and which is used as the primary basis for investment decisions.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WH032318 Introducing the Tip Income Protection Act: Congress’s Misguided Attempt to Turn the FLSA Into a Wage Payment Law http://www.seyfarth.com:80/publications/WH032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: If it becomes law, a new bill will expand the FLSA&rsquo;s tip provisions into areas traditionally regulated by state law and create new areas of ambiguity that could be a breeding ground for yet more wage-hour litigation.<br /> <br /> <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/tip-income-protection-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD032318 D.C. Circuit Rolls Back FCC’s 2015 TCPA Rules http://www.seyfarth.com:80/publications/CCD032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> On March 16, 2018, the D.C Circuit issued a decision invalidating portions of the FCC&rsquo;s 2015 TCPA Omnibus Declaratory Ruling and Order. Notably, the decision overturns as &ldquo;arbitrary and capricious&rdquo; the FCC&rsquo;s definition of an automated telephone dialing system (&ldquo;ATDS&rdquo;) and the one-call safe harbor for calling a phone number that has been reassigned to a non-consenting person. The decision was not a complete victory for businesses as the D.C. Circuit sustained the FCC&rsquo;s order on both consumers&rsquo; ability to revoke consent and the scope of the &ldquo;time-sensitive healthcare call&rdquo; exemption.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/03/d-c-circuit-rolls-back-fccs-2015-tcpa-rules/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL032318 Click To Complain: Using Technology to Outsource Workplace Harassment Grievances http://www.seyfarth.com:80/publications/EL032318 Fri, 23 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers are now being presented with more options to outsource workplace complaints through third party companies and mobile apps. This may create an ease in grievance reporting for the employee, but does not necessarily shield employer liability.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/click-to-complain-using-technology-to-outsource-workplace-harassment-grievances/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM032218-LIT Supreme Court Affirms State Courts’ Jurisdiction Over 1933 Act Claims http://www.seyfarth.com:80/publications/OMM032218-LIT Thu, 22 Mar 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> In a much-awaited decision on which courts and counsel have reached different conclusions for years, the United States Supreme Court held on March 20, 2018 that the Securities Litigation Uniform Standards Act of 1998 (&ldquo;SLUSA&rdquo;) does not strip state courts of jurisdiction over class action law suits brought exclusively under the Securities Act of 1933 (the &ldquo;1933 Act&rdquo;). The Supreme Court additionally held that SLUSA does not permit removal of class action claims brought solely under the 1933 Act from state to federal court. This unanimous decision will significantly impact securities litigation and will likely increase the number of cases bringing 1933 Act claims in state courts.&nbsp;</em></div> <div> &nbsp;</div> <h3> Legal Background</h3> <div> &nbsp;</div> <div> After the enactment of the Private Securities Litigation Reform Act (&ldquo;PSLRA&rdquo;) in 1995, many plaintiffs filed securities cases in state court in an effort to avoid the PSLRA&rsquo;s procedural requirements. In response to these practices, Congress enacted SLUSA, which, among other things, amended the 1933 Act&rsquo;s jurisdictional provision to deprive state courts of concurrent jurisdiction over certain securities class action claims and permitted the removal of certain types of securities class actions to federal court.&nbsp;</div> <div> &nbsp;</div> <h3> Background Regarding the Cyan Lawsuit</h3> <div> &nbsp;</div> <div> Telecommunications company Cyan completed its IPO in 2013 and shortly thereafter plaintiff shareholders brought a securities class action under the 1933 Act in California state court. Cyan argued that the SLUSA amendment eliminated state court jurisdiction over claims brought solely under the 1933 Act. The California Superior Court denied Cyan&rsquo;s motion to dismiss and the state appellate courts denied review of the trial court decision. The Supreme Court granted Cyan&rsquo;s petition for certiorari to answer the question of whether SLUSA&rsquo;s amendment deprived state courts of jurisdiction over class action claims brought exclusively under the 1933 Act. The federal government filed an amicus brief requesting the Supreme Court also decide whether SLUSA allows for the removal of claims brought under the 1933 Act.</div> <div> &nbsp;</div> <h3> Decision</h3> <div> &nbsp;</div> <div> In a unanimous decision, the Supreme Court affirmed the judgment of the court below in holding that &ldquo;SLUSA did nothing to strip state courts of their longstanding jurisdiction to adjudicate class actions alleging only 1933 Act violations,&rdquo; and &ldquo;neither did SLUSA authorize removing such suits from state court to federal court.&rdquo;</div> <div> &nbsp;</div> <div> The Supreme Court indicated that although SLUSA abolished state court jurisdiction over securities class actions based upon state law, it did not abolish concurrent jurisdiction over class actions based on federal law. In an effort to address concerns that permitting state court review of 1933 Act claims would allow plaintiffs to circumvent the procedural requirements of the PSLRA, the Court stated that &ldquo;wherever those suits go forward, the Reform Act&rsquo;s substantive protections necessarily apply.&rdquo;&nbsp; As the Court&rsquo;s opinion also noted, however, certain PSLRA provisions apply only when a suit is brought in federal court. This decision means that defendants that are now forced to litigate in state court will be unable to rely on the full protections of the PSLRA.</div> <div> &nbsp;</div> <h3> Takeaways</h3> <div> &nbsp;</div> <div> The decision will likely increase the number of securities class action claims filed and litigated in state court and means that defendants going forward may face suits in multiple forums.&nbsp;</div> <div> &nbsp;</div> <div> For a link to the opinion in <em>Cyan, Inc. v. Beaver Country Employees Retirement Fund</em>, click <a href="https://www.supremecourt.gov/opinions/slipopinion/17">here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/CP032218 2018 California Legislative Update: It’s Spring! What Bills Have Sprung? http://www.seyfarth.com:80/publications/CP032218 Thu, 22 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Dominating this spring&rsquo;s planting of proposed employment-related legislation are bills aimed at ending sexual harassment and promoting gender equity. Among the secondary crops are bills regarding accommodation, leave, criminal history, and wage and hour law. It threatens to be another bitter fall harvest for California&rsquo;s employer community.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/03/22/2018-california-legislative-update-its-spring-what-bills-have-sprung/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT032218 The Week in Weed: March 23, 2018 http://www.seyfarth.com:80/publications/TBT032218 Thu, 22 Mar 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/the-week-in-weed-march-23-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/vucbsmoneywatch032218 Minh Vu quoted in CBS News Moneywatch http://www.seyfarth.com:80/news/vucbsmoneywatch032218 Thu, 22 Mar 2018 00:00:00 -0400 <p> Minh Vu was quoted in a March 22 story from CBS News Moneywatch, &quot;A flood of lawsuits demand websites accommodate the disabled,&quot; on how hundreds of companies are facing federal class actions filed in recent months alleging that their websites don&#39;t comply with the Americans With Disabilities Act (ADA) because people with physical challenges have difficulties using them. Vu said that, &quot;Businesses have been put in a very difficult place. You cannot wave a magic wand to make your website accessible. There aren&#39;t a lot of people who know how to do it correctly.&quot; You can read the <a href="https://www.cbsnews.com/news/a-flood-of-suits-demand-websites-accommodate-the-disabled/">full article here</a>.</p> http://www.seyfarth.com:80/news/wexlercrainschicago032218 Michael Wexler quoted in Crain's Chicago http://www.seyfarth.com:80/news/wexlercrainschicago032218 Thu, 22 Mar 2018 00:00:00 -0400 <p> Michael Wexler was quoted in a March 22 story from Crain&#39;s Chicago, &quot;Fitness guru Jim Karas sues former employees,&quot; on the news that celebrity trainer Jim Karas, known for his cryotherapy spas and fitness studios, has sued former employees, alleging they are breaking their agreements by joining a new firm. Wexler said that the court will be faced with having to make decisions about whether or not personal trainers have used confidential information in their duties or if they are actually using general skills and knowledge based upon training and experience in the personal training world. You can read the <a href="http://www.chicagobusiness.com/article/20180322/NEWS07/180329948/jim-karas-sues-former-employees">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveycostar032218 Seyfarth's Real Estate Market Sentiment Survey referenced in CoStar http://www.seyfarth.com:80/news/resurveycostar032218 Thu, 22 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a March 22 story from CoStar, &quot;New Fed Chairman Notes Rich Pricing for CRE as Central Bank Follows Through on Raising Interest Rates.&quot; In Seyfarth&#39;s sentiment survey, 80% of respondents expected multiple rate increases, and clearly expect that the increases will begin to weigh on commercial property markets in 2018. You can read the <a href="http://www.costar.com/News/Article/New-Fed-Chairman-Notes-Rich-Pricing-for-CRE-as-Central-Bank-Follows-Through-on-Raising-Interest-Rates/199296">full article here</a>.</p> http://www.seyfarth.com:80/news/weissshrm032118 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm032118 Wed, 21 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 21 story from SHRM, &quot;Some Employees Bet Hundreds on March Madness,&quot; on how office pool fees tend to be small but individual betting sums can be large. Weiss said that office pools aren&#39;t risk-free, noting that there may be religious objections and disgruntled employees blowing the whistle on pools to law enforcement officials. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/employees-bet-hundreds-on-march-madness.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360032118 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360032118 Wed, 21 Mar 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a March 21 story from Law360, &quot;Rollback Of Obama NLRB&#39;s Legacy Hits Speed Bump,&quot; on the recent withdrawal of a landmark ruling because of perceived conflicts stemming from NLRB member Bill Emanuel&#39;s BigLaw background. Babson said that there have been big issues that have come up before with regard to recusal [at other agencies] but not necessarily at the NLRB.</p> http://www.seyfarth.com:80/publications/MA032118-LE USCIS Suspends Premium Processing for Cap-Subject H-1B Petitions Beginning April 2, 2018 http://www.seyfarth.com:80/publications/MA032118-LE Wed, 21 Mar 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> USCIS recently announced that the agency will temporarily suspend premium processing for all H-1B petitions subject to the Fiscal Year (FY) 2019 cap beginning on April 2, 2018.&nbsp; The suspension will only apply to H-1B petitions subject to the cap.&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; &nbsp;</em></div> <div> &nbsp;</div> <div> <strong>1. Does the suspension apply only to cap-subject H-1B petitions?&nbsp;</strong></div> <div> &nbsp;</div> <div> The suspension is limited to FY2019 cap-subject H-1B petitions only.&nbsp; H-1B petitions not subject to the cap seeking to extend status, amend status, change status, consular process, or change employers may still utilize premium processing until further notice.</div> <div> &nbsp;</div> <div> <strong>2. How long will the suspension last?</strong></div> <div> &nbsp;</div> <div> USCIS states that the suspension will last until September 10, 2018.&nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <strong>3. How does this affect the H-1B cap lottery?</strong></div> <div> &nbsp;</div> <div> 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 make it challenging to communicate with USCIS regarding updates and corrections.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>4. 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></div> <div> &nbsp;</div> <div> 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 have work authorization from October 1st until USCIS ultimately approves the H-1B petition.&nbsp; If USCIS lifts the premium processing suspension prior to September 10, 2018, your employer will have the option of submitting a premium processing request to accelerate processing of your H-1B petition.</div> <div> &nbsp;</div> <div> <strong>5. While premium processing is suspended for cap-subject petitions, will USCIS consider any requests to expedite processing?</strong></div> <div> &nbsp;</div> <div> While premium processing is suspended, a petitioner may submit an expedite request if the petitioner can demonstrate one of the following:</div> <ul> <li> Severe financial loss to company or person;</li> <li> Emergency situation;</li> <li> Humanitarian reasons;</li> <li> Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;</li> <li> Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);</li> <li> USCIS error; or</li> <li> Compelling interest of USCIS.</li> </ul> <div> It is the petitioner&rsquo;s responsibility to demonstrate that they meet at least one of the expedite criteria supported by documentary evidence. USCIS reviews all expedite requests on a case-by-case basis and will grant requests at the discretion of USCIS office leadership.</div> <div> &nbsp;</div> <div> <strong>6. Can a premium processing request be submitted for a pending H-1B petition once the suspension is lifted?</strong></div> <div> &nbsp;</div> <div> Yes, once the suspension is lifted, a premium processing request may be submitted at any time.</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/EL032018 A Global Perspective on the Future of Wearable Technology http://www.seyfarth.com:80/publications/EL032018 Tue, 20 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The global market for wearable devices continues to grow and has been embraced not only by consumers but organizations as well. Wearables use in the workplace is here to stay, but employers should consider the risks at the outset.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/a-global-perspective-on-the-future-of-wearable-technology/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/032018-LIT Delaware Supreme Court Elaborates Upon When a Shareholder Vote Is Fully Informed http://www.seyfarth.com:80/publications/032018-LIT Tue, 20 Mar 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp; The Delaware Supreme Court recently held that a shareholder vote on a tender offer was not fully informed where the company did not disclose why its founder, chairman and largest stockholder abstained from approving the merger.&nbsp; The Delaware Supreme Court had previously held that when a transaction is approved by a fully informed, uncoerced vote of the disinterested shareholders, the transaction is subject to the business judgment rule, resulting in a far more deferential review by the court.<sup>1</sup>&nbsp; The Court&rsquo;s recent opinion provides practitioners with additional guidance on what constitutes a &ldquo;fully informed&rdquo; shareholder vote.&nbsp;</em></div> <h3> Background</h3> <div> In 2016, the Board of Directors of a company that was the target of a tender offer (the &ldquo;Company&rdquo;) voted in favor of the Company&rsquo;s sale to Apollo Global Management. The Board vote was unanimous, except for the abstention of the Company&rsquo;s founder.&nbsp; Prior to the vote, the founder expressed concerns that the sale price was suboptimal due to alleged mismanagement issues and that it was not the right time to sell the Company.&nbsp; The Company disclosed the founder&rsquo;s abstention, but did not disclose his reasons for doing so.&nbsp; Plaintiff stockholders commenced an action following the merger claiming that the Board had failed to disclose all material information regarding the merger because the Company did not disclose the reasons for the founder&rsquo;s abstention.&nbsp; The Delaware Chancery Court in dismissing plaintiffs&rsquo; claims held that the reasons behind the abstention were not material, and the vote was fully informed.</div> <div> &nbsp;</div> <div> The Delaware Supreme Court reversed the decision of the Chancery Court because it found the Company&rsquo;s Schedule 14D-9 did not disclose material information regarding why the Company&rsquo;s founder had abstained from approving the merger.&nbsp; The founder&rsquo;s belief that the sale price was suboptimal due to alleged mismanagement issues and that it was not the right time to sell was material and needed to be disclosed in order for the shareholders to be fully informed.&nbsp;</div> <div> &nbsp;</div> <div> The Court cautioned that the reason for a director&rsquo;s dissent or abstention will not always be material and whether a fact must be disclosed requires a contextual analysis as to whether that fact would materially affect the shareholders&rsquo; decision or materially mislead shareholders if not disclosed.&nbsp; &nbsp;However, in this particular instance, the Court found that the lack of disclosure was materially misleading since the Company itself had described the founder as having a &ldquo;unique understanding&rdquo; of the Company&rsquo;s opportunities and challenges, and an &ldquo;in-depth knowledge about [the] business, including [the] customers, operations, key business drivers and long term growth strategies, derived from his 30 years of experience in the vacation ownership industry and his services as [the] founder and former Chief Executive Officer.&rdquo;&nbsp; The Court also indicated that the founder&rsquo;s dissent would have caught a shareholder&rsquo;s attention, since the Schedule 14D-9 contained a detailed explanation of the pros and cons of the deal and why the Board voted in favor of it.&nbsp;</div> <h3> Takeaway</h3> <div> <em>Appel</em> suggests that companies must exercise caution going forward in deciding whether to disclose to shareholders certain facts relating to a director&rsquo;s abstention or dissent.&nbsp; Although a director&rsquo;s dissent may not need to be disclosed in every situation, where the director has a unique and extensive knowledge and the company otherwise provides a detailed description of the pros and cons of a deal, a director&rsquo;s dissent will likely need to be disclosed to shareholders.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> For a full copy of the opinion, click <a href="https://courts.delaware.gov/Opinions/Download.aspx?id=269180">here</a>.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> 1.&nbsp; See <em>Corwin v. KKR Fin. Holdings LLC</em>, 125 A.3d 304 (2015).</p> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM032018-LIT2 Restricted vs. Continuing Guaranty and the Section 727(b) Discharge http://www.seyfarth.com:80/publications/OMM032018-LIT2 Tue, 20 Mar 2018 00:00:00 -0400 <div> Is your guaranty restricted or continuing? A continuing guaranty gives rise to divisible individual transactions, while a restricted guaranty&shy;&mdash;one that concerns a contemplated and specified extension of credit&mdash;arises upon execution of the guaranty. In bankruptcy, as in life, timing is everything. A debtor&rsquo;s liability under a prepetition guaranty agreement for a post-petition advance of credit may depend on the distinction between restricted and continuing, and the distinction may be subtle.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In <em>National Lumber Company v. Reardon</em> (<em>In re Reardon</em>), 566 B.R. 119, 122 (Bankr. D. Mass. 2017), the husband and wife joint debtors (&ldquo;Debtors&rdquo;) signed two separate prepetition guarantee agreement with National Lumber Company (&ldquo;National&rdquo;).&nbsp; <em>Id</em>. at 123&ndash;24. The first (&ldquo;First Guaranty&rdquo;) was illegible, while the second guaranteed the obligations of Beachwood Village Realty Trust (&ldquo;Beachwood&rdquo;) under a construction loan agreement with National for $230,000 for a specific construction project (&ldquo;Second Guaranty&rdquo;). <em>Id</em>. at 123&ndash;24.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In 2009, the Debtors received a chapter 7 discharge.<em> Id</em>. at 125. In 2010, 2011, and 2012, National sold goods to Beachwood on credit. Id. Most such credit was paid; however, a balance of $56,667 remained outstanding. <em>Id</em>. National demanded payment from the Debtors under their guaranties. The Debtors argued that their guaranty liability had been discharged. <em>Id</em>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In deciding the issue, the Bankruptcy Court framed the principal issue to be &ldquo;whether the [Debtors&rsquo;] liability under the guarantees, if any, for postpetition advances of credit is debt that arose before the date of the filing of their bankruptcy petition.&rdquo;<em> Id</em>. at 126. Recognizing that liability for the postpetition advances would have constituted a &ldquo;contingent claim&rdquo; as of the petition date, the Court narrowed its analysis to &ldquo;whether the debt arose when the guaranty was executed or when credit was later extended to the principal obligor.&rdquo;<em> Id</em>. at 127.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The &ldquo;question of when the debt arose is one of federal law as informed by state law.&rdquo;<em> Id</em>. Massachusetts law distinguishes between restricted guarantees and continuing guarantees, and &ldquo;a continuing guaranty would be seen as giving rise to a divisible series of individual transactions, with liability for each extension of credit arising at the time of its extension. Conversely, liability under a restricted guaranty&mdash;one that concerns a contemplated and specified extension of credit&mdash;arises, for purposes of &sect; 727(b), upon execution of the guaranty.&rdquo;<em> Id</em>. at 128.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In applying this analysis, the Court noted that the Second Guaranty guaranteed &ldquo;all present and future&rdquo; obligations under the &ldquo;Loan Documents,&rdquo; which were &ldquo;an Acquisition and Construction Loan Note in the principal amount of [$230,000.00]; a Construction Loan Mortgage and Security Agreement and Assignment; and all other instruments securing or relating to any loan by Lender to Borrower or executed in connection therewith <em>relative to a constructive project at the property known as and/or located at Unit 58, Beechwood Village, Rockland, Massachusetts</em>.&rdquo;<em> Id</em>. at 128 (<em>emphasis added</em>). Based on this language, the Court found that &ldquo;the Second Guaranty is restricted to obligations arising under loan documents relative to the construction of Unit 58 of Beechwood Village.&rdquo;<em> Id</em>.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Although the Second Guaranty provided that it &ldquo;shall operate as a continuing Guaranty,&rdquo; the Court found that such language did not extend or expand the obligations guaranteed by the Debtors. <em>Id</em>. The Second Guaranty only applied credit for the purpose of constructing Unit 58 of Beechwood Village. The Court found that &ldquo;by &lsquo;continuing,&rsquo; [the Second Guaranty] means only that the guaranty &lsquo;shall continue regardless of any reduction (<em>except by payment hereunder</em>) until the obligations have been paid or otherwise discharged&rsquo; and regardless of certain other circumstances.&rdquo; <em>Id</em>. (<em>emphasis added</em>). The Court noted that the phrase &ldquo;except by payment hereunder&rdquo; made &ldquo;clear that the payment of the Obligations would cause the guaranty to terminate.&rdquo; <em>Id</em>. The Court was &ldquo;well satisfied that the Second Guaranty was a restricted guaranty.&rdquo; <em>Id</em>. at 128&ndash;29.&nbsp; The Debtors&rsquo; liability under the Second Guaranty arose upon the execution of the Second Guaranty, and therefore was discharged in the bankruptcy. <em>Id</em>. at 128&ndash;29.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h2> Moral of This Story</h2> <div> &nbsp;</div> <div> A guaranty must be read in context to determine whether it is continuing or restricted and the date the claim arises under the guaranty matters&mdash;not just for discharge, but for statutes of limitation and other date based concepts.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/TBT032018 Dismissal of “Marijuana” Bankruptcy Not Automatic as Bankruptcy Appellate Court Overturns Dismissal of Bankruptcy Case of Landlord Debtor with Dispensary Tenant http://www.seyfarth.com:80/publications/TBT032018 Tue, 20 Mar 2018 00:00:00 -0400 <p> In a noteworthy decision, the Bankruptcy Appellate Panel for the Ninth Circuit overturned a dismissal of a bankruptcy case, which the lower court had dismissed based on its belief that the landlord debtor was receiving rental income from a marijuana dispensary. The decision is significant because it holds that a bankruptcy cannot be dismissed simply because of the mere presence of a marijuana business or related proceeds in the case. Rather, under this decision, the dismissal of a bankruptcy must be supported by specific factual findings that demonstrate that the debtor violated federal law or that the bankruptcy trustee would be required to administer proceeds of a (federally) illegal business.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/dismissal-of-marijuana-bankruptcy-not-automatic-as-bankruptcy-appellate-court-overturns-dismissal-of-bankruptcy-case-of-landlord-debtor-with-dispensary-tenant/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanbloomberglaw032018 Gerald Maatman quoted in Bloomberg Law http://www.seyfarth.com:80/news/maatmanbloomberglaw032018 Tue, 20 Mar 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 20 story from Bloomberg Law, &quot;#MeToo Movement Keeps Employment Lawyers Busy.&quot; Maatman said that, with the heightened awareness of sexual harassment liability, a potential buyer of a company now may consider whether it has a #MeToo problem.</p> http://www.seyfarth.com:80/news/maatmanbi032018 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi032018 Tue, 20 Mar 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 20 story from Business Insurance, &quot;Appellate rulings push transgender fight closer to high court,&quot; on a recent appellate court ruling that a person&rsquo;s transgender status is protected from discrimination under Title VII of the Civil Rights Act of 1964. Maatman said that the latest ruling is one of a series in a book that&rsquo;s being written as to whether the law should be construed broadly and evolve over time, as opposed to being read strictly as it was enacted in 1964. You can read the <a href="http://www.businessinsurance.com/article/20180320/NEWS06/912319952/Appellate-rulings-push-transgender-fight-closer-to-high-court">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbusins032018 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbusins032018 Tue, 20 Mar 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 20 story from Business Insurance, &quot;Trump nominates EEOC general counsel,&quot; on the nomination of Sharon Fast Gustafson to be general counsel of the U.S. Equal Employment Opportunity Commission. Maatman said that it&rsquo;s a curious or unexpected appointment insofar as her involvement in EEOC&rsquo;s litigation seems to be fairly limited. You can read the <a href="http://www.businessinsurance.com/article/20180320/NEWS06/912319993/President-Donald-Trump-nominates-Sharon-Fast-Gustafson-Equal-Employment-Opportun">full article here</a>.</p> http://www.seyfarth.com:80/news/haleybloomberglaw031918 Timothy Haley quoted in Bloomberg Law http://www.seyfarth.com:80/news/haleybloomberglaw031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> Timothy Haley was quoted in a March 19 story from Bloomberg Law, &quot;Employers Should Brace for Slew of Antitrust Class Actions.&quot; Haley said that companies should educate everyone involved in the hiring process on antitrust compliance. You can read the <a href="https://biglawbusiness.com/employers-should-brace-for-slew-of-antitrust-class-actions/">full article here</a>.</p> http://www.seyfarth.com:80/news/jutkowitztbm031918 Stanley Jutkowitz quoted in Tobacco Business Magazine http://www.seyfarth.com:80/news/jutkowitztbm031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in a March 19 story from Tobacco Business Magazine, &quot;Cannabis Under Attack?,&quot; on a January announcement that the Department of Justice is rescinding the Cole Memorandum, causing a ripple of panic to spread across the cannabis community. Jutkowitz said that it could put a damper on investment or mergers and acquisitions activity, but by and large he doesn&#39;t see any serious concern in the industry&mdash;or any serious reason for concern. You can read the <a href="http://tobaccobusiness.com/cannabis-under-attack/">full article here</a>.</p> http://www.seyfarth.com:80/news/wgnweiss031918 Philippe Weiss interviewed by WGN Radio (on behalf of WorkRight Solutions) http://www.seyfarth.com:80/news/wgnweiss031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed March 19th by WGN Radio (speaking on behalf of WorkRight Solutions). The topic was Turnover Troubles. Given the spotlight on Oval Office staff turnover, Weiss provided perspective from the corporate world on how to limit employee attrition. You can listen to the full interview at <a href="http://wgnradio.com/2018/03/19/wintrust-business-lunch-3-19-18-self-driving-hardships-job-turn-over-social-media-pressures/">minute&nbsp;12:14 here</a>.</p> http://www.seyfarth.com:80/publications/BIO031918 “Rigged” Pricing, Contracting and Rebate “Schemes,” and Drug Pricing “Shell Games:” FDA Commissioner Scott Gottlieb Lets Loose on the U.S. Biosimilar Market While Offering Peek at New Policies http://www.seyfarth.com:80/publications/BIO031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> In a few short days, the United States will mark the eight-year anniversary of the Biologics Price Competition and Innovation Act (&ldquo;BPCIA&rdquo;). Signed into law on March 23, 2010, the BPCIA creates a regulatory pathway for the approval of biosimilar drugs in the United States and a mechanism, albeit voluntary, for resolving patent right disputes relating to the innovator biologic products.<br /> <br /> <a href="https://www.bioloquitur.com/rigged-pricing-contracting-rebate-schemes-drug-pricing-shell-games-fda-commissioner-scott-gottlieb-lets-loose-u-s-biosimilar-m/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM031918-LIT New 2018 Customs Directive Provides Greater Protection for Attorney-Client Privileged Materials During U.S. Border Crossings http://www.seyfarth.com:80/publications/OMM031918-LIT Mon, 19 Mar 2018 00:00:00 -0400 <div> <em>This is Part II to our earlier One Minute Memo from November 2017, entitled &ldquo;<a href="http://www.seyfarth.com/publications/omm112817-lit">Recent Ethics Opinion Provides Key Guidance for All Attorneys Crossing the Border with Client Information</a>.&rdquo;&nbsp;</em></div> <div> &nbsp;</div> <div> The recent increase in the number of border searches of electronic devices by United States Customs &amp; Border Protection (CBP) has raised ethical concerns for all attorneys, including in-house counsel. Rule 1.6(c) of the widely-adopted ABA Model Rules of Professional Conduct provides that &ldquo;[a] lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> In November 2017, we reported on a first-of-its kind Formal Ethics Opinion from the Association of the Bar of the City of New York Committee on Professional Ethics that construed New York&rsquo;s version of Rule 1.6(c). That decision concluded that attorneys have an obligation&shy;&mdash;before they cross any borders&mdash;to assess the risk that client information will be breached, the potential harms that could result, and any safeguards that could be implemented.</div> <div> &nbsp;</div> <div> In a positive development, CBP recently issued a new 2018 Directive on inbound and outbound U.S. border searches that provides greater protection for client confidences. The Directive has application to all lawyers who practice in the United States who maintain attorney-client privileged communica-tions. Most notably, the Directive makes clear that:&nbsp;</div> <div> &nbsp;</div> <ul> <li> absent reasonable suspicion of unlawful activity or a national security concern, an officer performing a border search may <u><strong>not</strong></u> connect external equipment to an electronic device to review, copy, and/or analyze its contents;</li> <li> border searches may <u><strong>not</strong></u> include using portable electronic devices to access remotely-stored information; and</li> <li> border officers are <u><strong>required</strong></u> to consult CBP counsel before searching any device as to which a claim of privilege is raised and to seek clarification from the individual asserting this privilege as to specific files, folders, attorney or client names, or other particulars that may assist CBP in identifying privileged information so it can be segregated during a border search.</li> </ul> <div> &nbsp;</div> <div> For the full version of this most recent article, which originally appeared in <em>Bloomberg Law White Collar Report</em>, 13 WCR 221 (March 16, 2018), and contains the authors&rsquo; detailed practical tips for complying with attorney ethical obligations during border crossings, <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosSchleppenbachCBPupdateWCRpublish.pdf">click here</a>.&nbsp;</div> http://www.seyfarth.com:80/publications/FE031918 Hasta La Vista, Baby: Oocyte Cryopreservation as an Employee Benefit Offering http://www.seyfarth.com:80/publications/FE031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> Over the last several years, a handful of companies in competitive industries have begun rolling out oocyte cryopreservation (egg freezing) as an employee benefit offering. The idea is pretty straightforward: young employees may not be ready to have children just yet for any of a number of reasons, but they want to ensure the greatest possible odds of a successful pregnancy if and when they decide to have kids down the road. We&rsquo;ve previously written about some of the employment law considerations on this topic, but this post explores some of the benefits-related considerations that come into play.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/3/9/hasta-la-vista-baby-oocyte-cryopreservation-as-an-employee-benefit-offering">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR031918 Second Circuit Denies NLRB’s Attempt to Issue Bargaining Order Against Novelis Corp. http://www.seyfarth.com:80/publications/LR031918 Mon, 19 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On March 15, 2018, the Second Circuit Court of Appeals issued its decision in Novelis Corp., et al. v. NLRB, et al., upholding several unfair labor practices against Novelis Corp., but due to passage of time and changed circumstances, halting the National Labor Relations Board&rsquo;s efforts to issue a Gissel bargaining order against the Company.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/03/19/second-circuit-denies-nlrbs-attempt-to-issue-bargaining-order-against-novelis-corp/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC031618 How The Contours Of Workplace Discrimination Laws Are In Flux http://www.seyfarth.com:80/publications/WC031618 Fri, 16 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Over the past few weeks, two federal appellate courts have issued major decisions on the scope of workplace discrimination protections covered under Title VII of the Civil Rights Act of 1964 (&ldquo;Title VII&rdquo;). In addition to creating a conflict between various past appellate court precedents, these decisions highlight an ideological divide between two major federal government agencies. In this video blog, Associate Alex Karasik and Partner Jerry Maatman of Seyfarth Shaw discuss the importance of these decisions, and what employers can expect to see in the evolving debate over Title VII protections.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/how-the-contours-of-workplace-discrimination-laws-are-in-flux/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM031618-LIT Trump Administration Signals Exemptions to Steel Tariffs Are a Long Shot http://www.seyfarth.com:80/publications/OMM031618-LIT Fri, 16 Mar 2018 00:00:00 -0400 <div> Builders and manufacturers who rely on imported steel as a major input may want to rethink their procurement strategy in light of an executive domestic preference decree issued last week. Under President Trump&rsquo;s Proclamation on Adjusting Imports of Steel into the United States, virtually any foreign steel articles withdrawn for consumption after midnight on March 23, 2018, will be subject to a 25% tariff, in addition to any other applicable duties, fees, and exactions.<sup>1</sup> Although Canadian and Mexican steel is exempt from the tariff, at least for the time being, those who import steel from competitive markets in Europe, Asia, and Australia will almost certainly be subject to this substantial new cost of using imported alloys, wrought iron, stainless steel, and other steel products covered by the Proclamation.<sup>2</sup>&nbsp; &nbsp;</div> <div> &nbsp;</div> <h2> Legal Authority for the Tariff</h2> <div> The Trade Expansion Act of 1962 authorizes the President to adjust existing duties and import restrictions for any commodity &ldquo;being imported into the United States in such quantities or under such circumstances as to threaten to impair national security.&rdquo;<sup>3</sup> As interpreted by a longstanding Department of Justice Opinion, the trade-security power is not subject to traditional administrative rulemaking requirements of notice, comment, and hearing&mdash;though in this instance, the Commerce Department voluntarily undertook these measures. Parlayed with his inherent power to manage international relations under Article II of the Constitution, the President&rsquo;s right to foster national security via trade restrictions is extremely broad, and likely immune from any constitutional challenge.</div> <div> &nbsp;</div> <h2> The Forecast for Exemptions to the Tariff</h2> <div> Unlike other domestic preference requirements such as the Buy American Act, the Steel Tariff Proclamation does not explicitly provide for any carve-outs or exemptions to the 25% levy (other than for Canadian and Mexican steel). Under the Proclamation, the Commerce Department is required to publish the procedures and parameters for potential tariff exemptions, no later than March 18, 2018. Secretary Ross is currently slated to answer questions regarding the scope of possible exemptions at a House committee hearing, albeit the day before the tariffs go into effect.<sup>4</sup> Thus, steel importers affected by the tariff are unlikely to receive any meaningful guidance on the exemption process before they become bound by the Proclamation.</div> <div> &nbsp;</div> <div> Despite outcry from international trade partners and domestic industry advocates claiming that the tariff will kill jobs and chill investment, the Trump administration does not appear particularly willing to negotiate exemptions beyond those based on imminent national security concerns. The Proclamation cryptically leaves open the possibility of exemptions for those countries allied with the United States and who are willing to entertain &ldquo;a satisfactory alternative means to address the threat to national security,&rdquo; but this vague reference tells us little about the future for country-specific exemptions.&nbsp;</div> <div> &nbsp;</div> <div> Certain industry players have advocated for an exemption to cover articles that are not manufactured in the United States in sufficient quantity or quality for their purposes. For example, the CEO of a major energy builder recently explained how his company will be crippled by the tariff because the type of 26-inch pipe needed for its ongoing oil pipeline projects is only made in three places around the world, none of which are in the U.S.<sup>5</sup> Neither the President nor the Commerce Secretary has indicated one way or another whether the Administration would be willing to entertain an exemption for articles that are primarily manufactured outside the United States.</div> <div> &nbsp;</div> <div> Based on limited statements made by the administration, it appears that exemptions will likely be narrow and limited to instances where the steel tariff will impact national security. Although guidance is still forthcoming, such an exemption could possibly apply to construction projects that implicate national infrastructure, transit, or military facilities and operations.</div> <div> &nbsp;</div> <h2> Monitoring Developments</h2> <div> Seyfarth Shaw will be monitoring the regulatory developments pertinent to the 25% steel tariffs over the next two weeks and beyond. The substantive and procedural measures prescribed by Commerce could have a considerable impact on the cost of doing business, particularly for industrial construction and infrastructure contractors who have already made plans to import structural steel and other components for nascent projects. Stay tuned for additional information as events unfold on Capitol Hill.</div> <div> &nbsp;</div> <div> <hr /> <p> &nbsp;</p> <p> 1.&nbsp;<a href="https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/">https://www.whitehouse.gov/presidential-actions/presidential-proclamation-adjusting-imports-steel-united-states/</a></p> <p> 2.&nbsp;The specified steel articles covered by the Proclamation are those referenced in the Harmonized Tariff Schedule at the following 6-digit levels: 7206.1 through 7216:50; 7216.99 through 7301:10; 7302:10; 7302.40 through 7302.90; and 7304.10 through 7306.90.</p> <p> 3.&nbsp;19 U.S.C. 1862. President Carter&rsquo;s decision to impose tariffs on crude oil imports during the energy crisis of the 1970s is a paramount historical example of the President&rsquo;s trade-security function in action.</p> <p> 4.&nbsp;William Mauldin, U.S. Companies Will Get Few Exclusions to Tariffs, Officials Signal, Wall. St. J., Mar. 14, 2018, <a href="https://www.wsj.com/articles/commerce-officials-signal-few-product-exclusions-to-steel-aluminum-tariffs-will-be-granted-to-u-s-industry-1521045100">https://www.wsj.com/articles/commerce-officials-signal-few-product-exclusions-to-steel-aluminum-tariffs-will-be-granted-to-u-s-industry-1521045100</a></p> <p> 5. Jennifer Kaplan and Naureen S. Malik, Corporate America Makes Its Case that Trump&rsquo;s Tariffs Don&rsquo;t Apply, Bloomberg, Mar. 8, 2018, <a href="https://www.bloomberg.com/news/articles/2018-03-08/with-tariffs-official-corporate-america-argues-they-don-t-apply">https://www.bloomberg.com/news/articles/2018-03-08/with-tariffs-official-corporate-america-argues-they-don-t-apply</a></p> </div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM031618-LE Recent Clarifications to the Workers’ Compensation Board’s Interpretations of New York Paid Family Leave Deductions and Voluntary Coverage http://www.seyfarth.com:80/publications/OMM031618-LE Fri, 16 Mar 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The Board has recently clarified its interpretation of two key provisions of the New York Paid Family Leave (&ldquo;PFL&rdquo;) Law: &nbsp;First, by allowing employers to use the employee&rsquo;s weekly wage as opposed to the average state weekly wage in calculating the employee contribution, and second, by requiring employers who voluntarily provide statutory disability to employees otherwise ineligible for such benefits to provide PFL to those employees as well.</em></p> <p> <strong>Weekly vs. Annual Deduction Cap</strong></p> <p> In accordance with the plain reading of the PFL law, the Board initially interpreted the law to permit employers to take a maximum weekly deduction of up to $1.65 per week.&nbsp; Without issuing any formal guidance, the Board is now providing employers with the <strong>option</strong> of meeting the annual maximum deduction of $85.56 as follows:&nbsp; the employee contribution will be .126% of the employee&rsquo;s weekly wage (rather than the average state weekly wage, which is currently $1,305.92).&nbsp; If an employee earns more wages in a particular week (due to a commission or bonus payment), then the PFL contribution would be larger for that week.&nbsp; Employers would continue taking the deduction until the employee reaches the annual limit of $85.56, at which point the deductions would cease. &nbsp;Of course, it is possible that some employees who earn less than the state average weekly wage will never reach the annual maximum.&nbsp; Note that the NYS Department of Financial Services sets the annual contribution amount each year.&nbsp; A calculator is available here: <a href="https://www.ny.gov/paid-family-leave-calculator">https://www.ny.gov/paid-family-leave-calculator</a>.</p> <p> While employers may want to take advantage of the annual deduction cap to ensure that it is more quickly recouping the entire amount of the PFL premium it is paying on behalf of that employee, it is advisable to notify employees of the change in the deduction amount before, or as soon as possible after, implementation.&nbsp; We understand that many payroll companies are implementing these changes very quickly, and some have stated it is mandatory, which does not appear to be the case.</p> <p> <strong>Voluntary Coverage</strong></p> <p> In addition, the Board interprets N.Y. W.C.L. &sect; 212 to <strong>require</strong> employers who voluntarily provide statutory disability coverage to employees not otherwise covered under the law (for example, teachers and clergy employed by private institutions), to provide PFL coverage for these employees as well.&nbsp; It is unclear if these provisions also apply to public employers.&nbsp;&nbsp;If the employer wishes to collect the employee contribution, then more than one-half of the employees must agree to contribute before the employer can collect the contribution and take the deduction. &nbsp;If an employer wishes to stop providing benefits for the affected employees, the employer may only do so after providing benefits for at least one year and after giving 90 days&rsquo; notice to the Board and the employees.</p> <p> We will continue to monitor the Board&rsquo;s interpretations of PFL and provide updates as needed.</p> http://www.seyfarth.com:80/news/maatmandj031618 Gerald Maatman interviewed on a Daily Journal podcast http://www.seyfarth.com:80/news/maatmandj031618 Fri, 16 Mar 2018 00:00:00 -0400 <p> Gerald Maatman was interviewed on a March 16 Daily Journal podcast, &quot;Sanctuary and Supremacy.&quot; Maatman assesses Tinder&#39;s arguments that its variable pricing model isn&#39;t a civil rights violation, as the dating app company seeks Cal. Supreme Court review. You listen to the <a href="https://www.dailyjournal.com/articles/346574-sanctuary-and-supremacy">full podcast here</a>.</p> http://www.seyfarth.com:80/publications/EL031518 Forcing the Flu Shot? DOJ Sues Over Flu Policy That Requires A Note From The Clergy http://www.seyfarth.com:80/publications/EL031518 Thu, 15 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Department of Justice filed a lawsuit on behalf of a nursing home employee alleging she was forced to receive a flu shot to keep her job when she could not provide a note from a clergy member in support of her request, causing emotional distress that made her fear &ldquo;going to Hell.&rdquo; U.S. v. Ozaukee Cty., No. 2:18-cv-00343, (E.D. Wis. March 6, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/forcing-the-flu-shot-doj-sues-over-flu-policy-that-requires-a-note-from-the-clergy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE031518 Social Media Recruiting and Discrimination: What Employers Need to Know About Micro-Targeting http://www.seyfarth.com:80/publications/FE031518 Thu, 15 Mar 2018 00:00:00 -0400 <p> Social media giants like Facebook, Instagram, LinkedIn, and Twitter tout the ability of their advertising algorithms to allow anyone to produce content and push it to a specific audience of people who may be receptive to the message. For consumer goods and services, corporate marketing departments and third-party agencies are adept at defining and targeting the audience with the greatest return on investment.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/3/2/social-media-recruiting-and-discrimination-what-employers-need-to-know-about-micro-targeting">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE031518 California Hotel Workers Musculoskeletal Injury Prevention Regulation to Take Effect July 1, 2018 http://www.seyfarth.com:80/publications/WSE031518 Thu, 15 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On March 9, 2018, the California Office of Administrative Law approved the new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any &ldquo;musculoskeletal injury.&rdquo; The regulation will take effect on July 1, 2018.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-hotel-workers-musculoskeletal-injury-prevention-regulation-to-take-effect-july-1-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT031518 The Week in Weed: March 16, 2018 http://www.seyfarth.com:80/publications/TBT031518 Thu, 15 Mar 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/the-week-in-weed-march-16-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC031418 School Scores Summary Judgment Win In ADEA Collective Action http://www.seyfarth.com:80/publications/WC031418 Wed, 14 Mar 2018 00:00:00 -0400 <p> Synopsis: In an ADEA collective action alleging that a community college discriminated on the basis of age when it announced it would no longer employ any person receiving an annuity from the State Universities Retirement System (SURS), a federal district court in Illinois granted the college&rsquo;s motion for summary judgment, holding that the decision to discontinue the employment of all SURS annuitants regardless of age did not amount to discrimination.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/school-scores-summary-judgment-win-in-adea-collective-action/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP031418 Can Inclusion Riders Force Demographic Proportionality In Hiring? http://www.seyfarth.com:80/publications/CP031418 Wed, 14 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: With a single utterance at the recent Academy Awards ceremony, &ldquo;inclusion rider&rdquo; entered the popular lexicon. That has led many to wonder, &ldquo;What is an inclusion rider?&rdquo; The next question, of course, is this: &ldquo;Is an inclusion rider enforceable?&rdquo;<br /> <br /> <a href="https://www.calpeculiarities.com/2018/03/14/can-inclusion-riders-force-demographic-proportionality-in-hiring/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA031418-LE Washington State’s New Ban-the-Box Law Completes the West Coast Trend http://www.seyfarth.com:80/publications/MA031418-LE Wed, 14 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> The Washington Governor has just signed a new law prohibiting employers from inquiring about an applicant&rsquo;s criminal history before the applicant is deemed &ldquo;otherwise qualified&rdquo; for the position sought. </em></p> <p> On March 13, 2018, Washington state Governor Jay Inslee signed the Washington &ldquo;Fair Chance Act,&rdquo; which will prohibit employers from asking about arrests or convictions before an applicant is determined otherwise qualified for the position sought. Now, all west coast states, and some west coast cities (such as Los Angeles, Portland and Seattle), have ban-the-box laws, with <a href="http://www.seyfarth.com/publications/OMM062915-LE">Oregon</a>&nbsp;enacting a statewide law effective January 1, 2016, and <a href="https://www.calpeculiarities.com/2017/10/16/california-passes-state-wide-ban-the-box-law/">California</a> following&nbsp;suit, with its comprehensive law effective January 1, 2018. Washington employers should immediately assess whether they are covered by the new law and, if so, whether they need to update their employment applications and other pre-hire screening policies. The Fair Chance Act is effective June 6, 2018.</p> <p> <strong>Coverage</strong></p> <p> The new law broadly defines employer to include &ldquo;public agencies, private individuals, businesses and corporations, contractors, temporary staffing agencies, training and apprenticeship programs, and job placement, referral, and employment agencies.&rdquo;</p> <p> However, the law will not apply to:</p> <ul> <li> Any employer hiring a person who will or may have unsupervised access to children under the age of 18 or a vulnerable adult or person as defined elsewhere in state law;</li> <li> Any employer, including a financial institution, who is expressly permitted or required under any federal or state law to inquire into, consider, or rely on information about an applicant&rsquo;s or employee&rsquo;s criminal record for employment purposes;</li> <li> Certain law enforcement or criminal justice agencies;</li> <li> Employers seeking non-employee volunteers; or</li> <li> Any entity required to comply with the rules or regulations of a self-regulatory organization, as defined in section 3(a)(26) of the Securities and Exchange Act.</li> </ul> <p> <strong>Unlawful Practices</strong></p> <p> The law will make it unlawful for an employer to (1) include any question on any application for employment, (2) inquire either orally or in writing, (3) receive information through a criminal history background check, or (4) otherwise obtain information about an applicant&rsquo;s criminal record (arrests or convictions) until <strong><em>after</em></strong> the employer initially determines that the applicant is &ldquo;otherwise qualified&rdquo; for the position. An applicant is considered &ldquo;otherwise qualified&rdquo; if he or she meets the basic criteria for the position as set out in any job advertisement or job description without consideration of a criminal record. Only after the employer deems the applicant to be &ldquo;otherwise qualified&rdquo; may it inquire into or obtain information about the applicant&rsquo;s criminal record. Any policy or practice that automatically or categorically excludes applicants with a criminal record before they have been deemed &ldquo;otherwise qualified&rdquo; is unlawful.</p> <p> Further, employers may not advertise any job openings in a way that excludes people with criminal records from applying. In this regard, jobs advertisements must not state &ldquo;no felons&rdquo; or &ldquo;no criminal background,&rdquo; or have similar messages.&nbsp;</p> <p> The law makes clear that it should not be viewed as requiring any employer to &ldquo;provide accommodations or job modifications in order to facilitate the employment or continued employment of an applicant or employee with a criminal record or who is facing pending criminal charges.&rdquo;</p> <p> Notably, the law will have no impact on existing local laws that provide &ldquo;additional protections to applicants or employees with criminal records&rdquo; and will not prohibit local governments from enacting such laws in the future. Thus, the new state law will have no impact on the more restrictive Seattle ban-the-box law that became effective in 2013.</p> <p> <strong>Enforcement</strong></p> <p> The law does not provide an aggrieved individual with a private right of action against a covered employer. Rather, the state attorney general will have the power to enforce the law which will include the authority to, among other things, investigate violations and seek remedial relief for an aggrieved individual, issue written civil investigative demands, adopt rules implementing the law (including rules specifying applicable penalties) and pursue administrative sanctions or a lawsuit in court for penalties, costs and attorney&rsquo;s fees.&nbsp;</p> <p> The law provides for a &ldquo;stepped enforcement approach,&rdquo; which means the attorney general will have the authority to initially educate an employer found in violation of the statute, then warn them, and then, if violations continue, take legal, including administrative, action. Penalties range and will start with a notice of violation and offer of agency assistance for the first violation, and then can result in monetary penalties up to $750 for a second violation and up to $1,000 for each subsequent violation.&nbsp;</p> <p> <strong>Next Steps</strong></p> <p> Most immediately, Washington employers should determine whether they need to revise job applications, interview guidelines, and policies and procedures for criminal background checks.</p> <p> Employers throughout the United States, and particularly multi-state employers, should continue to monitor developments in this and related areas of the law, including laws restricting the use of credit history information and the fair credit reporting laws.</p> <div> <br /> <div> <div id="_com_2" uage="JavaScript"> <p> &nbsp;</p> </div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/news/weisshrmorning031418 Philippe Weiss quoted in HR Morning http://www.seyfarth.com:80/news/weisshrmorning031418 Wed, 14 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 14 story from HR Morning, &quot;Bosses will take part in March Madness, but don&rsquo;t want their staff to do the same.&quot; Weiss offered tips to help supervisors manage the madness without encouraging or OKing excessive lags in actual work getting done. You can read the <a href="http://www.hrmorning.com/bosses-will-take-part-in-march-madness-but-dont-want-their-staff-to-do-the-same/">full article here</a>.</p> http://www.seyfarth.com:80/news/weissoklahoman031318 Philippe Weiss quoted in The Oklahoman http://www.seyfarth.com:80/news/weissoklahoman031318 Tue, 13 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 13 story from The Oklahoman, &quot;Ball is in employers&#39; courts when it comes to March Madness.&quot; Weiss said not to force the madness on employees as doing so carries legal risks. You can read the <a href="http://newsok.com/ball-is-in-employers-courts-when-it-comes-to-march-madness/article/5586777">full article here</a>.</p> http://www.seyfarth.com:80/news/stevensgsu031318 Bob Stevens quoted by Georgia State University http://www.seyfarth.com:80/news/stevensgsu031318 Tue, 13 Mar 2018 00:00:00 -0400 <p> Bob Stevens was quoted in a March 13 story by Georgia State University, &quot;Students Compare Mediation and ADR Coursework to Actual Practice.&quot; Stevens said that watching a lawyer take a deposition, argue a motion or conduct a mediation are invaluable lessons for a law student. You can read the <a href="http://news.gsu.edu/2018/03/13/students-compare-mediation-and-adr-coursework-to-actual-practice/">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL031318 Employees are ALSO Required to Engage in the Interactive Process Under the ADA http://www.seyfarth.com:80/publications/EL031318 Tue, 13 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employee committed to taking opioids loses his job and his disability discrimination lawsuit because he refused to consider alternative pain management.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/employees-are-also-required-to-engage-in-the-interactive-process-under-the-ada/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE031318 EPA Proposes Recycling Aerosol Cans as Universal Waste http://www.seyfarth.com:80/publications/WSE031318 Tue, 13 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: EPA announces its proposal to streamline the regulation of hazardous waste aerosol cans by adding them to the list of materials that can be managed under the Universal Waste management system.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-compliance/epa-proposes-recycling-aerosol-cans-as-universal-waste/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM031218-IP Innovation in Hatch-Waxman and ANDA Litigation http://www.seyfarth.com:80/publications/OMM031218-IP Mon, 12 Mar 2018 00:00:00 -0400 <div> The Hatch-Waxman Act was enacted in 1984 to address two main congressional goals: (1) to encourage innovation in pharmaceutical research and development; and (2) to help generic drugs reach the market more quickly. Through amendments to both the patent and the food and drug laws, the Act established several practices intended to provide brand-name firms with incentives to innovate while facilitating the marketing of generic pharmaceuticals. Whether or not it was envisioned at the time, the use of generic drugs in the US has seen a tremendous increase since the enactment of the Act. From about 13% (of all prescriptions) in 1984, use of generic drugs grew to 50% by the late 1990s and currently constitute well over 80% of all prescriptions in the US.</div> <div> &nbsp;</div> <div> Among other things, the Act included elaborate provisions governing the mechanisms through which a potential generic manufacturer may obtain marketing approval for a drug that has been patented by another party. It also put in place an expedited approval processes for generic drugs. In doing so, the Act launched a new type of litigation, &ldquo;Hatch-Waxman&rdquo; or &ldquo;ANDA&rdquo; litigation. The evolution of the US generic drug industry has been shaped, in part, as a result of such litigation proceedings that unfolded many questions critical to understanding the generic approval process.&nbsp;</div> <div> &nbsp;</div> <div> Although generic drug usage is over 80% of all prescriptions in the US, as of 2015 the sale of generics were only a quarter as large as those of patented drugs. In the past several years, the number of ANDA litigations has significantly increased. As an active member of the legal community within the ANDA space, we took a look at the latest developments in the field and now share our observations. In the article titled &ldquo;<a href="http://www.seyfarth.com/uploads/siteFiles/practices/HatchWaxmanandBiosimilarsLitigation_2017YearinReview.PDF">Hatch-Waxman And Biosimilars Litigation: 2017 Year-in-Review</a>,&rdquo; we provide a brief overview of the Hatch-Waxman Act, a summary of the recently released FDA Draft Guidance, a general timeline of Hatch-Waxman and Biosimilars litigation, and summaries of some of the related decisions issued by the U.S. Supreme Court and Court of Appeals for the Federal Circuit in the year 2017. If you would like to order a hard copy of the Year in Review, please see our <a href="https://www.bioloquitur.com/now-available-seyfarth-shaws-hatch-waxman-biosimilars-litigation-2017-year-review/">blog post</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/LR031218 RESTORING “BALANCE” TO THE (WORK)FORCE: THE BOARD CLARIFIES ITS TESTS TO DETERMINE WHEN “PROTECTED ACTIVITY” BECOMES UNPROTECTED http://www.seyfarth.com:80/publications/LR031218 Mon, 12 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Board affirms an employer&rsquo;s decision to discharge an employee for engaging in dishonesty and a security breach. In the process, it clarifies the legal standards to be used when assessing whether non-verbal employee misconduct occurring in the midst of otherwise protected concerted activity loses the protections of the Act.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/03/12/restoring-balance-to-the-workforce-the-board-clarifies-its-tests-to-determine-when-protected-activity-becomes-unprotected/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO031218 Innovation in Hatch-Waxman and ANDA Litigation http://www.seyfarth.com:80/publications/BIO031218 Mon, 12 Mar 2018 00:00:00 -0400 <p> The Hatch-Waxman Act was enacted in 1984 to address two main congressional goals: (1) to encourage innovation in pharmaceutical research and development; and (2) to help generic drugs reach the market more quickly. Through amendments to both the patent and the food and drug laws, the Act established several practices intended to provide brand-name firms with incentives to innovate while facilitating the marketing of generic pharmaceuticals. Whether or not it was envisioned at the time, the use of generic drugs in the US has seen a tremendous increase since the enactment of the Act. From about 13% (of all prescriptions) in 1984, use of generic drugs grew to 50% by the late 1990s and currently constitute well over 80% of all prescriptions in the US.<br /> <br /> <a href="https://www.bioloquitur.com/innovation-hatch-waxman-anda-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/schwartzfenwicknlj031218 Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/schwartzfenwicknlj031218 Mon, 12 Mar 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a March 12 story from the National Law Journal, &quot;A Football Recruit Got Asked About Sexuality. The NFL&#39;s Investigating. The Law Is Muddy.&quot; Schwartz-Fenwick said that it&rsquo;s raising a lot of legal risk if you are taking protected categories into consideration.</p> http://www.seyfarth.com:80/news/maechtlenshrm030918 Laura Maechtlen quoted in SHRM http://www.seyfarth.com:80/news/maechtlenshrm030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> Laura Maechtlen was quoted in a March 9 story from SHRM, &quot;Judge Rules EEOC Background Check Guidance Is Unenforceable, &quot; on the news that a federal judge in Texas has ruled that the Equal Employment Opportunity Commission (EEOC) cannot enforce its 2012 guidance limiting the use of criminal background checks against employers in the state. Maechtlen said that she expects to see more-aggressive enforcement of hiring bans in the wake of this case. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/texas-2012-eeoc-background-check-guidance-unenforceable.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/adabo030918 Seyfarth's ADA Title III blog referenced in the Business Observer http://www.seyfarth.com:80/news/adabo030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III blog was referenced in a March 9 story from the Business Observer, &quot;Hell bound,&quot; on the Americans with Disabilities Act. According to Seyfarth, Florida lawyers filed 25% of ADA cases nationwide in 2016 with 1,663 lawsuits. California, with 2,468 ADA lawsuits, led the nation. You can read the <a href="https://www.businessobserverfl.com/section/detail/hell-bound/">full article here</a>.</p> http://www.seyfarth.com:80/news/milligancns030918 Robert Milligan quoted in Courthouse News Service http://www.seyfarth.com:80/news/milligancns030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a March 9 story from Courthouse News Service, &quot;Worker Mobility &amp; Trade Secrets Still at Odds After Waymo-Uber War.&quot; Milligan conceded the information-sharing model has some merit but asked how are they going to justify it to shareholders. You can read the <a href="https://www.courthousenews.com/worker-mobility-trade-secrets-still-at-odds-after-waymo-uber-war/">full article here</a>.</p> http://www.seyfarth.com:80/news/rabeschwartzfenwickbloomberg030918 Scott Rabe and Sam Schwartz-Fenwick quoted in Bloomberg Law http://www.seyfarth.com:80/news/rabeschwartzfenwickbloomberg030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> Scott Rabe and Sam Schwartz-Fenwick were quoted in a March 9 story from Bloomberg Law,&quot;Trump Justice Dept. Workplace Bias Lawsuits Show Priorities.&quot; Rabe said that, to the extent it reflects the Trump administration&rsquo;s focus in terms of civil rights and the kind of rights it wants to enforce, this sends a message to the world. Schwartz-Fenwick said that the DOJ can choose how to allocate its resources in ways that nudge courts toward adopting interpretations in line with the administration&rsquo;s view.</p> http://www.seyfarth.com:80/publications/EL030918 Sixth Circuit Finds EEOC’s Enforcement of Title VII Does Not Need to “Give Way” to Religious Freedom Restoration Act http://www.seyfarth.com:80/publications/EL030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent decision in EEOC v. R.G. &amp; G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018), the U.S. Court of Appeal for the Sixth Circuit has sent the strong message that the Religious Freedom Restoration Act (RFRA) has minimal impact on the Equal Employment Opportunity Commission&rsquo;s (EEOC) authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act of 1964 (Title VII).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/sixth-circuit-finds-eeocs-enforcement-of-title-vii-does-not-need-to-give-way-to-religious-freedom-restoration-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO030918 FDA’s Office of Generic Drugs: 2017 Annual Report Highlights http://www.seyfarth.com:80/publications/BIO030918 Fri, 09 Mar 2018 00:00:00 -0400 <p> U.S. Food and Drug Administration (FDA) Commissioner, Dr. Scott Gottlieb, has made generic drugs and drug pricing an agency priority by emphasizing the critical value of generic drugs to public health. In 2017, 1027 total generic drugs were approved, which was the highest number of generic drugs approved in a single year.[1] Table 1 below illustrates 2017 approvals by month.<br /> <br /> <a href="https://www.bioloquitur.com/fdas-office-generic-drugs-2017-annual-report-highlights/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC030818 The Sixth Circuit Sides With The EEOC’s Position On Scope Of Title VII Relative To Gender Identity http://www.seyfarth.com:80/publications/WC030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In its recent decision in EEOC v. R.G. &amp; G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018), the U.S. Court of Appeal for the Sixth Circuit has sent the strong message that the Religious Freedom Restoration Act (&ldquo;RFRA&rdquo;) has minimal impact on the Equal Employment Opportunity Commission&rsquo;s (&ldquo;EEOC&rdquo;) authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act of 1964 (&ldquo;Title VII&rdquo;). The ruling is a big win for the EEOC.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/the-sixth-circuit-sides-with-the-eeocs-position-on-scope-of-title-vii-relative-to-gender-identity/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS030818 Industrial relations in an age of automation http://www.seyfarth.com:80/publications/WLS030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Smart businesses will approach the automation process from the front end and engage with their workforce in a manner that ensures the business is able to harness all of the productivity benefits from automation, without suffering the industrial dissention and dislocation which so often coincides with dramatic workplace change.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/03/industrial-relations-in-an-age-of-automation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT030818 The Week in Weed: March 9, 2018 http://www.seyfarth.com:80/publications/TBT030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/the-week-in-weed-march-9-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL030818 Happy International Women’s Day! http://www.seyfarth.com:80/publications/EL030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Seyfarth Shaw&rsquo;s Pay Equity and International Law Groups celebrated International Women&rsquo;s Day a day early with a webinar on Wednesday, March 7, 2018 entitled &ldquo;Pay Equity Around the Globe&rdquo;.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/happy-international-womens-day/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/mlw030818 Barry Miller, Robert Fisher and Hillary Massey authored an article in Massachusetts Lawyers Weekly http://www.seyfarth.com:80/publications/mlw030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Barry Miller, Robert Fisher and Hillary Massey authored a March 8 article in Massachusetts Lawyers Weekly, &quot;Many questions unanswered in AG&#39;s MEPA guidance.&quot; The authors write that management-side attorneys should review the AG&rsquo;s guidance carefully and determine whether to advise their clients to conduct a pay equity audit before the law takes effect.</p> http://www.seyfarth.com:80/news/rabelaw030818 Scott Rabe quoted in Law.com http://www.seyfarth.com:80/news/rabelaw030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Scott Rabe was quoted in a March 8 story from Law.com, &quot;Momentum Builds in Court for LGBT Employees,&quot; on the Sixth Circuit overturning a lower court&#39;s decision that found a funeral home lawfully fired a transgender employee. Rabe said that, while time will tell whether other circuits will adopt a similar interpretation, if the Sixth Circuit&rsquo;s legal rationale is followed, employers will be hard-pressed to defend Title VII claims brought by the EEOC based on the alleged exercise of religious freedom.</p> http://www.seyfarth.com:80/news/lionta030818 Ofer Lion quoted in Tax Analysts http://www.seyfarth.com:80/news/lionta030818 Thu, 08 Mar 2018 00:00:00 -0400 <p> Ofer Lion was quoted in a March 8 story from Tax Analysts, &quot;Will the Nick Saban Tax Apply to Nick Saban?,&quot; on how a new excise tax aimed at the highly paid employees of tax-exempt organizations may not actually hit its most valuable target: college coaches. Lion said that, unlike the tax on unrelated business income, this is a direct tax on their related operations as public universities &mdash; and a direct hit on the doctrine of implied statutory immunity &mdash; perhaps akin to charging the states an excise tax on compensation to their own governors and attorneys general.</p> http://www.seyfarth.com:80/news/resurveyco030718 Seyfarth's Real Estate Market Sentiment Survey referenced in the Commercial Observer http://www.seyfarth.com:80/news/resurveyco030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was referenced in a March 7 story from the Commercial Observer, &quot;In Gateway Cities, Are Investors Seeking Pure Yield&mdash;or Something More Subtle?,&quot; on what the real estate world expects from December 2017&rsquo;s fiscal stimulus&mdash;in the form of corporate and individual tax breaks&mdash;to have on the business cycle. Seyfarth&rsquo;s survey of more than 150 owners, developers and investors found that 58 percent believed the tax cuts would extend the current cycle for another year or two, while 17 percent more thought the effects would be even longer lasting than that. You can read the <a href="https://commercialobserver.com/2018/03/gateway-cities-investors-yield/">full article here</a>.</p> http://www.seyfarth.com:80/news/resurvey030718 Seyfarth's Real Estate Market Sentiment Survey profiled in the Memphis Daily News http://www.seyfarth.com:80/news/resurvey030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a March 7 story from the Memphis Daily News, &quot;Survey: CRE Experts Concerned About Interest Rates.&quot; In the firm&#39;s third annual Real Estate Market Sentiment Survey, which polls an array of commercial real estate executives from around the county, 82 percent of respondents said they expect multiple interest rate increases in 2018. You can read the <a href="https://www.memphisdailynews.com/news/2018/mar/8/survey-cre-experts-concerned-about-interest-rates/">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveyrew030718 Seyfarth's Real Estate Market Sentiment Survey profiled in Real Estate Weekly http://www.seyfarth.com:80/news/resurveyrew030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a March 7 story from Real Estate Weekly, &quot;Rising interest rates give CRE executives grey hair.&quot; As the economy continues to show signs of growth in 2018, commercial real estate executives cite rising interest rates once again as their lead concern for the industry this year, according to Seyfarth&rsquo;s 3rd annual Real Estate Market Sentiment Survey. You can read the <a href="http://rew-online.com/2018/03/07/interest-rates-giving-cre-executives-grey-hair/">full article here</a>.</p> http://www.seyfarth.com:80/news/eeoclaw360030718 Seyfarth's EEOC Report referenced in Law360 http://www.seyfarth.com:80/news/eeoclaw360030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s EEOC Report was referenced in a March 7 story from Law360, &quot;Aviation Co. Wrongly Fired Disabled Worker, EEOC Says.&quot; The EEOC filed 77 cases under the Americans with Disabilities Act in 2017, according to Seyfarth&#39;s report.</p> http://www.seyfarth.com:80/publications/WH030718 Fixed Salaries, Fluctuating Hours, and Beyond: A Federal Court Addresses Common Questions About the Fluctuating Work Week Method of Compensation http://www.seyfarth.com:80/publications/WH030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recent decision by the Southern District of New York clarifies common questions arising from the use of the fixed salary for a fluctuating workweek method of compensation (the &ldquo;FWW&rdquo;): (1) Do isolated pay deductions undermine the fixed salary requirement; (2) Must the employee&rsquo;s hours fluctuate above and below 40 hours; and (3) Do employees have to subjectively understand the overtime pay calculations for there to be a mutual understanding that the fixed salary was intended to cover all hours worked at straight time? Spoiler Alert: This court answered no to each of these questions.<br /> <br /> <a href="https://www.wagehourlitigation.com/overtime/fixed-salaries-fluctuating-hours-and-beyond-a-federal-court-addresses-common-questions-about-the-fluctuating-work-week-method-of-compensation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE030718 OSHA Delays Enforcement of Beryllium Standard Until May http://www.seyfarth.com:80/publications/WSE030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Occupational Safety and Health Administration announced that it is pushing back the effective date of parts of the rule limiting workers&rsquo; exposure to beryllium until May, while it negotiates with manufacturers and groups that have sued over the rule.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/osha-delays-enforcement-of-beryllium-standard-until-may/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS030718 Popular Insulated Cup Manufacturer in Hot Water over Alleged Trade Secret Misappropriation http://www.seyfarth.com:80/publications/TS030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Tervis Tumbler Company, the maker of the infamous insulated tumblers, has found itself in hot water with a former supplier, Trinity Graphic. Trinity filed suit in the Middle District of Florida against Tervis and its new supplier, Southern Graphics, alleging misappropriation of trade secrets under both the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) and Florida trade secret statute along with breach of confidentiality and non-disclosure agreement, fraud, aiding and abetting, and civil conspiracy. Trinity seeks compensatory, exemplary and punitive damages, disgorgement of profits related to the misappropriation and attorney&rsquo;s fees and costs.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/03/articles/dtsa/popular-insulated-cup-manufacturer-in-hot-water-over-alleged-trade-secret-misappropriation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP030718 Into the Weeds: Will California Employment Law Protect Medical Marijuana Users? http://www.seyfarth.com:80/publications/CP030718 Wed, 07 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A proposed bill would amend California employment discrimination law to protect medical marijuana users.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/03/07/into-the-weeds-will-california-employment-law-protect-medical-marijuana-users/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH030618 Tired of Waiting for FLSA Litigation? Meet PAID, WHD’s Pilot Program For Proactive Employers. http://www.seyfarth.com:80/publications/WH030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> On Tuesday, the Wage &amp; Hour Division announced a new program for resolving violations of the FLSA without the need for litigation. The Payroll Audit Independent Determination program&mdash;or &ldquo;PAID&rdquo;&mdash;is intended to facilitate the efficient resolution of overtime and minimum wage claims under the FLSA. The program will be conducted for a six-month pilot period, after which time WHD will review the results and determine how best to proceed.<br /> <br /> <a href="https://www.wagehourlitigation.com/dol-compliancerule-making/meet-paid/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT030618 A Potential P[l]ot Twist for Medical Marijuana and the ADA http://www.seyfarth.com:80/publications/TBT030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> A recently-filed lawsuit in the federal district court in Arizona alleges that an employee&rsquo;s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (&ldquo;ADA&rdquo;). Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/03/a-potential-plot-twist-for-medical-marijuana-and-the-ada/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS030618 3 tips for effective restraints of trade http://www.seyfarth.com:80/publications/WLS030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Their high profile nature means it is timely for big business to re-evaluate their restraints of trade to make sure they are effective &ndash; emphasised by the fact we are seeing movement in many industries (including the legal industry) picking up pace as teams relocate as a result of mergers and the continued impact of globalisation.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/03/3-tips-for-effective-restraints-of-trade/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL030618 A Potential P[l]ot Twist for Medical Marijuana and the ADA http://www.seyfarth.com:80/publications/EL030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recently-filed lawsuit in the federal district court in Arizona alleges that an employee&rsquo;s use of medical marijuana may be permissible under the federal Americans With Disabilities Act (ADA). Although the employee faces an uphill battle, the case presents a challenge to the commonly-held view that the ADA does not support such a claim.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/a-potential-plot-twist-for-medical-marijuana-and-the-ada/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/bartlettlegaltechnews030618 Brett Bartlett quoted in Legaltech News http://www.seyfarth.com:80/news/bartlettlegaltechnews030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in a March 6 story from Legaltech News, &quot;Data (Gold) Mining: The Rise of The Law Firm Data Analytics Teams,&quot; on Bartlett&#39;s partnership with Georgia State University College of Law professor Charlotte Alexander in the school&#39;s new Legal Analytics Lab. Bartlett said that the firm will be looking to hire lawyers out of law school who work in these spaces.</p> http://www.seyfarth.com:80/news/liesshrm030618 Mark Lies quoted in SHRM http://www.seyfarth.com:80/news/liesshrm030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Mark Lies was quoted in a March 6 story from SHRM, &quot;Should Managers Be Armed in the Workplace?,&quot; on how employers could be held liable if someone is injured. Lies said that armed managers would have to have a Firearm Owner Identification card&mdash;and a concealed carry permit to carry a concealed weapon. However, the disadvantages of arming managers are many, Lies said. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/should-managers-be-armed-in-the-workplace.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/meiercorp030618 Seyfarth Appoints Steven Meier Chair of Corporate Department http://www.seyfarth.com:80/news/meiercorp030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> CHICAGO (March 6, 2018) -- Seyfarth Shaw LLP today announced that Steven R. Meier has been named chair of the firm&rsquo;s Corporate department. Since 2014, Meier has served as co-chair of Seyfarth&rsquo;s Tax practice and chair of its Chicago Corporate group.</p> <p> With more than 100 lawyers across the country, Seyfarth&rsquo;s Corporate department serves a diverse client base, ranging from start-up ventures to middle market companies to large multinational corporations, and covering industries including real estate, banking &amp; finance, health care, manufacturing, public/private partnerships, real estate, technology, and telecommunications.</p> <p> A partner in the Chicago office and veteran deal lawyer, Meier has broad experience leading U.S. domestic and cross-border corporate and real estate transactions, and maintains a diverse tax practice involving all aspects of federal taxation.</p> <p> &ldquo;Advising clients that range from institutional investors to public companies to entrepreneurs, Steve&rsquo;s practice reflects the strengths of our platform as a whole, and the opportunities to best align it with our clients&rsquo; needs,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;As a respected and active leader within the firm, Steve also steps into this role at a dynamic time for clients as they look to navigate a new federal tax landscape, and we know his deep experience will be an asset to both clients and the firm.&rdquo;</p> <p> &ldquo;Serving my colleagues and the firm in this new role is among the highest of honors of my career,&rdquo; said Meier. &ldquo;I look forward to working with our remarkably talented Corporate team as we serve our clients across the country and around the globe.&rdquo;</p> <p> In addition to his role as Corporate department chair, Meier will continue to serve as co-chair of Seyfarth&rsquo;s Tax practice. Recognized by <em>The Legal 500</em> for his tax and mergers and acquisitions practices, Meier is a frequent speaker on tax and business issues in real estate securities programs and mergers and acquisitions transactions.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/ssawcnbc030618 Seyfarth Shaw at Work's survey referenced in CNBC.com http://www.seyfarth.com:80/news/ssawcnbc030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Seyfarth Shaw at Work&#39;s survey was referenced in a March 6 story from CNBC.com, &quot;March Madness takes a toll on productivity.&quot; The survey found that March Madness ranked third among tech-related office distractions, directly behind texting and Facebook. The findings are from a poll of more than 400 managers and human resources specialists. You can read the <a href="https://www.cnbc.com/2018/03/06/march-madness-takes-a-toll-on-productivity.html">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveyrealtormag030618 Seyfarth's Real Estate Sentiment Survey profiled in Realtor Magazine http://www.seyfarth.com:80/news/resurveyrealtormag030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Sentiment Survey was profiled in a March 6 story from Realtor Magazine, &quot;Rising Rates Top Commercial Concerns.&quot; According to Seyfarth&#39;s survey, industry insiders expect today&rsquo;s economic factors to force the hand of the new Federal Reserve chair and, consequently, shape their 2018 investment strategies. You can read the <a href="http://realtormag.realtor.org/daily-news/2018/03/06/rising-rates-top-commercial-concerns">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroslaw360030618 Andrew Boutros quoted in Law360 http://www.seyfarth.com:80/news/boutroslaw360030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Andrew Boutros was quoted in a March 6 story from Law360, &quot;Why Doesn&rsquo;t Paul Manafort Cut A Deal?&quot; Boutros said the breadth of the allegations is likely meant to ensure conviction on at least some of the charges.</p> http://www.seyfarth.com:80/news/schwartzfenwicknlj030618 Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/schwartzfenwicknlj030618 Tue, 06 Mar 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a March 6 story from the National Law Journal, &quot;How PwC Handled Its First Transgender Employee Transition in the Workplace,&quot; on how companies craft policies to limit workplace discrimination and ease the transition process for transgender employees, even as the legal landscape remains uncertain. Schwartz-Fenwick said that this is the reality of the workforce now and employers have to have policies, even if the government hasn&rsquo;t caught up or thought about it.</p> http://www.seyfarth.com:80/news/rechtin030518 Michael Rechtin Joins Seyfarth as Chair of Data Center Practice Group in Chicago http://www.seyfarth.com:80/news/rechtin030518 Mon, 05 Mar 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today the arrival of partner Michael D. Rechtin, Jr. to the Real Estate department in Chicago where he will chair the firm&rsquo;s Data Center practice group. Rechtin joins from Baker &amp; McKenzie LLP where he was a partner in Chicago.</p> <p> With more than 25 years of commercial real estate law experience, Rechtin&#39;s practice focuses on data center transactions and leasing, including acquisitions, dispositions, joint ventures, build-to-suit transactions, financings, and development. He advises clients on all agreements connected with data center transactions, including vendor agreements, indefeasible right of use (IRU) agreements, service level agreements (SLA), telco and fiber licenses (long haul and last mile), tax abatement and exemption agreements, service orders, master service agreements (MSA), and meet-me-room-related agreements (MMR).</p> <p> &ldquo;Mike has established himself as one of the foremost experts in international data center law, a significant growth area in the real estate market,&rdquo; said Paul Mattingly, chair of Seyfarth&rsquo;s Real Estate department. &ldquo;He understands the complex technical and operational issues in the data center sector and can help clients navigate the unique concerns and technology involved in these types of transactions. He is an exceptional addition to our national real estate practice.&rdquo;</p> <p> With additional experience in corporate headquarters, office and industrial leasing, Rechtin&rsquo;s clients have included Fortune 500 companies, large broadcasting and cable companies, commercial developers, local and national life insurance companies, REITs, real estate entrepreneurs, and professional services firms. He also regularly handles sales, acquisitions and mortgage financings for investment advisory groups, real estate entrepreneurs and pension funds.</p> <p> &ldquo;We are thrilled to announce the arrival of Mike in Chicago. His outstanding background in the ever-changing industry of data centers instantly enhances the capabilities of our real estate practice group,&rdquo; said Amanda Sonneborn, co-managing partner of Seyfarth&rsquo;s Chicago office.</p> <p> One of the leading national experts on data center transactions, Rechtin currently serves as an adjunct professor at the Northwestern University Graduate School of Engineering as well as a Secretary and Board of Directors Member for North Branch Works. He received his J.D., <em>cum laude</em>, from the University of Notre Dame Law School and earned his B.S. in Economics from the Massachusetts Institute of Technology.</p> <p> &ldquo;Mike is a very accomplished real estate lawyer here in the Midwest and is well-known for his data center transactional work. He adds strength to our local practice and will serve our clients remarkably on the firm&rsquo;s national platform,&rdquo; said Cory Hirsch, co-managing partner of Seyfarth&rsquo;s Chicago office.</p> <p> Seyfarth&rsquo;s Data Center practice group is comprised of attorneys who handle the complex, technical and operational issues surrounding data centers. In this quickly evolving space, Seyfarth represents owners, investors and occupants of data centers in a broad range of matters, including the development, leasing/licensing, financing, purchase or sale of a data center or colocation facility. With practice depth in real estate, technology, finance, energy and data security, the team provides clients with a holistic approach to all data center transactions.</p> <p> With more than 130 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.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/rodinebloombergbna030518 Joshua Rodine quoted in Bloomberg BNA http://www.seyfarth.com:80/news/rodinebloombergbna030518 Mon, 05 Mar 2018 00:00:00 -0400 <p> Joshua Rodine was quoted in a March 5 story from Bloomberg BNA, &quot;California High Court Decision on Overtime Expected Today.&quot; Rodine said that, depending on how the court rules, overtime could become more expensive for employers and more generous for workers.</p> http://www.seyfarth.com:80/news/paparellibna030518 Angelo Paparelli quoted in Bloomberg BNA http://www.seyfarth.com:80/news/paparellibna030518 Mon, 05 Mar 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a March 5 story from Bloomberg BNA, &quot;Calif. Employers Still Struggle With State Immigrant Worker Law,&quot; on California&rsquo;s Immigrant Worker Protection Act (AB 450). Paparelli said that employers are facing a dilemma in which way to proceed. You can read the <a href="https://bnanews.bna.com/daily-labor-report/calif-employers-still-struggle-with-state-immigrant-worker-law">full article here</a>.</p> http://www.seyfarth.com:80/publications/LR030518 A Bronx Lobster Tale: NLRB Vacates Election Results Based on Seven Minute Delay in Voting http://www.seyfarth.com:80/publications/LR030518 Mon, 05 Mar 2018 00:00:00 -0400 <p> Last month, the National Labor Relations Board (&ldquo;NLRB&rdquo;) vacated election results from a representation election because the Board agent opened the polling for a voting session 7 minutes late. The employer lost the election by a vote of 14-12, with one challenged ballot. However, there were 4 eligible voters (who were present in the polling location during the 7-minute delay) who did not vote in the election. Following the election, the employer filed two objections, one of which challenged the election results because the delay in voting resulted in potential disenfranchisement of a dispositive number of voters. At a hearing before a Hearing Officer, there was no evidence presented regarding either the reasons why the employees did not vote or whether any employees complained that they were prevented from voting due to the delay. Thus, the Hearing Officer overruled the employer&rsquo;s objection, and the Regional Director adopted the Hearing Officer&rsquo;s decision.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/03/05/a-bronx-lobster-tale-nlrb-vacates-election-results-based-on-seven-minute-delay-in-voting/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM030518-LE Revisions Planned For The FDIC’s Statement of Policy For Section 19 of The Federal Deposit Insurance Act http://www.seyfarth.com:80/publications/OMM030518-LE Mon, 05 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The FDIC is accepting comments until March 9, 2018 on the proposed revisions to the Statement of Policy for Section 19 of the Federal Deposit Insurance Act; the FDIC is seeking, among other things, to reduce the number of low risk criminal offenses that result in preclusion of individuals who wish to work for or be engaged by an FDIC-insured financial institution that require an application for written consent of the FDIC.&nbsp;&nbsp;&nbsp; &nbsp;</em></p> <p> <strong>Section 19</strong></p> <p> Section 19 of the Federal Deposit Insurance Act (<a href="https://www.gpo.gov/fdsys/pkg/USCODE-2016-title12/html/USCODE-2016-title12-chap16-sec1829.htm">12 U.S.C. Section 1829</a>) (&ldquo;Section 19&rdquo;) prohibits, without the prior written consent of the Federal Deposit Insurance Corporation (the &ldquo;FDIC), a person convicted of any criminal offense involving dishonesty or breach of trust or money laundering (covered offenses), or who has agreed to enter into a pretrial diversion or similar program (program entry) in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, owning or controlling, directly or indirectly an insured depository institution (insured institution), or otherwise participating, directly or indirectly, in the conduct of the affairs of the insured institution. &nbsp;In addition, the law forbids an insured institution from permitting such a person to engage in any conduct or to continue any relationship prohibited by Section 19.&nbsp;</p> <p> Section 19 applies, by operation of law, as a statutory bar to participation absent the written consent of the FDIC.&nbsp; Approval is automatically granted and an application will not be required where the covered offense is considered <em>de minimis</em>, because it meets all of the following criteria: (i) There is only one conviction or program entry of record for a covered offense; (ii) The offense was punishable by imprisonment for a term of one year or less and/or a fine of $2,500 or less, and the individual served three (3) days or less of jail time; (iii) The conviction or program was entered at least five years prior to the date an application would otherwise be required; and; (iv) The offense did not involve an insured depository institution or insured credit union.</p> <p> <strong>Proposed Revisions to the Statement of Policy</strong></p> <p> The FDIC has proposed a <a href="https://www.federalregister.gov/documents/2018/01/08/2017-28222/proposed-statement-of-policy-for-participation-in-the-conduct-of-the-affairs-of-an-insured">revised Statement of Policy</a> (&ldquo;SOP&rdquo;) for Section 19. &nbsp;In addition to minor format, technical changes, and clarification, the FDIC is proposing to expand the <em>de minimis</em> exception to include insufficient funds checks of aggregate moderate value (less than $1,000); small dollar, simple theft (where the aggregate value of goods, services and/or currency taken is $500 or less); and isolated, minor offenses committed by young adults (21 years old or younger). &nbsp;</p> <p> The FDIC also is attempting to clarify that:</p> <ul> <li> FDIC-insured institutions may extend conditional offers of employment contingent upon successful background checks and Section 19 screening;</li> <li> Applications for Section 19 waivers will not be considered by the FDIC until all sentencing requirements&nbsp; imposed by either a conviction or program entry are satisfied and the disposition is final; and</li> <li> For purposes of satisfying <em>de minimus</em> criteria, jail time includes any significant restraint on an individual&#39;s freedom of movement which includes, as part of the restriction, confinement where the person may leave temporarily only to perform specific functions or during specified times periods or both.</li> </ul> <p> The SOP also provides guidance relating to expungements and convictions that are set aside or reversed and adds an additional item for consideration when the FDIC evaluates application for waivers.</p> <p> <strong>Comments on the Proposed SOP</strong></p> <p> The FDIC will accept comments through March 9, 2018, via:</p> <ul> <li> <strong>Agency Website</strong>: <a href="https://www.fdic.gov/%E2%80%8Bregulations/%E2%80%8Blaws/%E2%80%8Bfederal/">https://www.fdic.gov/?regulations/?laws/?federal/</a>?. Email: Comments@fdic.gov. Include Section 19 on the subject line of the message.</li> <li> <strong>Mail</strong>: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.</li> <li> <strong>Hand Delivery</strong>: Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7:00 a.m. and 5:00 p.m.</li> </ul> <p> <strong>Pamela Q. Devata is a partner in Seyfarth&rsquo;s Chicago office and Stacey L. Blecher is Counsel in the firm&rsquo;s New York office.&nbsp; If you would like further information or have any questions about compliance with Section 19 of the FDIA, please contact your Seyfarth attorney, or Pamela Devata at </strong><a href="mailto:pdevata@seyfarth.com"><strong>pdevata@seyfarth.com</strong></a> <strong>or Stacey Blecher at </strong><a href="mailto:sblecher@seyfarth.com"><strong>sblecher@seyfarth.com</strong></a><strong>. </strong></p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM030518-LE2 Federal Formula for “Flat Sum” Bonus Overtime Calculation Rejected http://www.seyfarth.com:80/publications/OMM030518-LE2 Mon, 05 Mar 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> California employers must use the formula prescribed by the Division of Labor Standards Enforcement Manual to calculate overtime on flat sum bonuses, not the bonus overtime formula used under federal law.</em></p> <p> California law generally follows federal law as to how employers should calculate overtime pay on nondiscretionary bonuses for non-exempt employees. But California law on calculating bonus overtime has been somewhat unclear in relation to &ldquo;flat sum&rdquo; bonuses. On March 5, 2018, in <em>Alvarado v. Dart Container Corp.</em>, the California Supreme Court decided that a formula invented by the Division of Labor Standards Enforcement&mdash;without engaging in any administrative rulemaking&mdash;is the proper method for calculating bonus overtime pay, and that the DLSE&rsquo;s formula applies retroactively.</p> <p> <strong>The Facts</strong></p> <p> Hector Alvarado worked as an hourly employee for Dart Container, which makes cups, plates, and other food service products. Alvarado earned an attendance bonus of $15 for each full weekend shift he worked. Dart, in calculating overtime pay generated by the bonus, followed the method established by the federal Wage Hour Division in 29 C.F.R. &sect; 778.110. Under the federal formula, the regular rate for a weekly bonus would be the amount of the bonus divided by all weekly hours worked (both straight hours and overtime hours), and the regular rate would divided by two before multiplying it by the number of weekly overtime hours worked to calculate the amount of overtime pay generated by the bonus.</p> <p> Alvarado sued Dart for unpaid bonus overtime. Alvarado argued that, for &ldquo;flat sum&rdquo; bonuses, California employers must determine the regular rate by dividing the bonus by only the straight time hours worked, as specified in the DLSE Manual, and not by the total hours worked.</p> <p> The trial court granted Dart summary judgment, holding that Dart properly used the federal method. The Court of Appeal affirmed, opining that while the DLSE Manual&rsquo;s formula represented a reasonable effort to prevent dilution of the regular rate by overtime hours, the Manual is not binding legal authority. Because no California law required otherwise, the Court of Appeal affirmed Dart&rsquo;s use of the federal method.</p> <p> <strong>The Supreme Court Decision</strong></p> <p> The Supreme Court, reversing the lower courts, adopted the formula proposed in the DLSE Manual, on a theory that the DLSE&rsquo;s formula was necessary to discourage employers from requiring employees to work overtime hours. The Supreme Court announced that an employer, in determining the regular rate on a flat sum bonus, must divide the bonus by only the straight-time hours worked during the period, not by all hours. Moreover, the Supreme Court announced that the regular rate must be multiplied by 1.5, not 0.5, when applied to the number of overtime hours worked during the week. Adding insult to injury, the Supreme Court rejected Dart&rsquo;s request that this judicially unprecedented holding apply prospectively only.</p> <p> The Supreme Court justified its decision by emphasizing California&rsquo;s longstanding policy of discouraging employers from imposing overtime work. To effectuate this policy, the Supreme Court reasoned, a flat sum bonus must be treated as if it were earned on an hourly basis throughout the relevant pay period. The Supreme Court rejected the Court of Appeal&rsquo;s reasoning that no state law governed the issue, because the DLSE&rsquo;s Manual, though not binding legal authority, was interpreting the underlying statutory law, and because courts interpreting that law are free to adopt the DLSE&rsquo;s view if courts find that view persuasive.</p> <p> In a remarkable concurring opinion, four of the Supreme Court&rsquo;s seven justices acknowledged that the &ldquo;spare language&rdquo; of statutory law could have left employers &ldquo;somewhat uncertain about how to proceed,&rdquo; and that the DLSE Manual was not an &ldquo;authoritative construction by a state agency.&rdquo; The four concurring justices further acknowledged that employers who &ldquo;fully intended to comply with state overtime laws&rdquo; &ldquo;may now be faced with substantial penalties&rdquo;&mdash;an &ldquo;unfortunate&rdquo; state of affairs that &ldquo;conceivably could have been avoided had an interpretative regulation of this subject been promulgated through formal APA rulemaking.&rdquo; The concurring justices nonetheless agreed that the Supreme Court&rsquo;s new interpretation should apply retroactively, even if, &ldquo;[r]egrettably,&rdquo; &ldquo;more was not done to help employers meet their statutory responsibilities.&rdquo;</p> <p> <strong>What <em>Alvarado</em> Means For Employers</strong></p> <p> <em>Alvarado </em>is an unwelcome decision that takes a poorly reasoned DLSE provision in a nonbinding manual and declares it to be the law, applied retroactively. This development arguably might visit &ldquo;substantial penalties&rdquo; on employers who were not using the DLSE&rsquo;s flat sum bonus formula, as four justices sadly acknowledge. Now would be a good time to revisit nondiscretionary bonuses for non-exempt employees with the lessons of <em>Alvarado </em>in mind.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WH030518 Federal Formula for “Flat Sum” Bonus Overtime Calculation Rejected http://www.seyfarth.com:80/publications/WH030518 Mon, 05 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: California employers must use the formula prescribed by the Division of Labor Standards Enforcement Manual to calculate overtime on flat sum bonuses, not the bonus overtime formula used under federal law.<br /> <br /> <a href="https://www.wagehourlitigation.com/uncategorized/federal-formula-for-flat-sum-bonus-overtime-calculation-rejected/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC030218 Emerging Trend For Employers: Workplace Antitrust Class Actions http://www.seyfarth.com:80/publications/WC030218 Fri, 02 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Over the past few weeks, we have been covering the release of our 14th Annual Workplace Class Action Litigation Report. Today&rsquo;s post focuses on an emerging trend in the workplace class action space &mdash; regarding workplace antitrust class actions. In this video blog, Associate Ashley Laken of Seyfarth Shaw, joined by Partner Jerry Maatman and Senior Counsel Tim Haley, provides an overview on the expected rise in class action filings alleging no-hire or no-poaching agreements.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/03/emerging-trend-for-employers-workplace-antitrust-class-actions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS030218 Seyfarth Shaw is pleased to announce the publication of the Trading Secrets 2017 Year in Review! http://www.seyfarth.com:80/publications/TS030218 Fri, 02 Mar 2018 00:00:00 -0400 <p> The 2017 Year in Review is a compilation of our significant blog posts from throughout last year and is categorized by specific topics such as: Trade Secrets, Computer Fraud and Abuse Act, Non-Compete &amp; Restrictive Covenants, Legislation, International, and Social Media and Privacy. As demonstrated by our specific blog entries, including our Top Developments/Headlines, Trade Secrets Webinar Series &ndash; Year in Review and our dedicated page concerning DTSA legislation, our blog authors stay on top of the latest developments in this area of law and provide timely and entertaining posts on significant new cases, legal developments, and legislation.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/03/articles/trade-secrets/seyfarth-shaw-is-pleased-to-announce-the-publication-of-the-trading-secrets-2017-year-in-review/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT030218 The Week in Weed: March 2, 2018 http://www.seyfarth.com:80/publications/TBT030218 Fri, 02 Mar 2018 00:00:00 -0400 <div> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</div> <div> &nbsp;</div> <div> <a href="https://www.blunttruthlaw.com/2018/03/the-week-in-weed-march-2-2018/" target="_blank">Read the full blog post.</a></div> http://www.seyfarth.com:80/publications/CDL030218a FAILURE TO ADEQUATELY ADVISE CLIENTS ON THEIR PRESERVATION OBLIGATIONS CAN BE CONSIDERED MALPRACTICE http://www.seyfarth.com:80/publications/CDL030218a Fri, 02 Mar 2018 00:00:00 -0400 <p> Industrial Quick Search, Inc., Michael Meiresonne, and Meiresonne &amp; Associates (collectively &ldquo;Plaintiffs&rdquo;) sued their law firm Miller, Rosado &amp; Alogis, LLP (&ldquo;Defendants&rdquo;) for malpractice. Neil Miller and Chris Rosado, named partners of the firm, were also individually named as Defendants. Defendants represented Plaintiffs in an underlying copyright infringement lawsuit in which default judgement was entered against Plaintiffs for misappropriating confidential information, plagiarizing copyrighted material, and for deliberately destroying potentially relevant documents.<br /> <br /> <a href="https://www.carpedatumlaw.com/2018/03/failure-adequately-advise-clients-preservation-obligations-can-considered-malpractice/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatmanlaw360030218 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360030218 Fri, 02 Mar 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a March 2 story from Law360, &quot;EEOC Enforcement Shift Expected In Trump Admin&#39;s 2nd Year.&quot; Maatman said that the conversation about the treatment of women in the workplace will not die down anytime soon, but it hasn&rsquo;t led to much litigation so far.</p> http://www.seyfarth.com:80/publications/MA030218-LIT Top Developments and Headlines in Trade Secret, Computer Fraud, and Non-Compete Law in 2017 and What We Expect in 2018 http://www.seyfarth.com:80/publications/MA030218-LIT Fri, 02 Mar 2018 00:00:00 -0400 <div> Continuing our annual tradition, we present the top developments and headlines for 2017 and what we expect in 2018 in trade secret, computer fraud, and non-compete law.&nbsp;</div> <div> &nbsp;</div> <div> <table border="1" cellpadding="10" cellspacing="1" style="width:500px;"> <tbody> <tr> <td> <h3> NOW AVAILABLE!</h3> <div> &nbsp;</div> <div> <strong>2017 Trading Secrets Year in Review</strong></div> <div> Seyfarth&rsquo;s Year in Review is a compilation of our significant trade secrets, non-competes, and computer fraud blog posts throughout 2017. To request a pdf, hard copy, or CD of the Review, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=NJ-1o4-Ot7b53OmNDvbhZH0UnkPlTXe_Jn2Rh4TP2_pGX9yb1cioG30SWUI8B8Nm" target="_blank">click here</a>.</div> <div> &nbsp;</div> <div> <strong>2017 Year in Review Trade Secrets Webinar</strong></div> <div> To view the webinar recording and key takeaways, <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/webinar-recap-2017-national-year-in-review-what-you-need-to-know-about-the-recent-cases-developments-in-trade-secrets-non-compete-and-computer-fraud-law/" target="_blank">click here</a>.</div> <div> &nbsp;</div> </td> </tr> </tbody> </table> <p> &nbsp;</p> </div> <h2> 1. Notable Defend Trade Secrets Act Developments</h2> <div> Just nearly two years after its enactment, the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) continues to be one of the most significant and closely followed developments in trade secret law. The statute provides for a federal civil cause of action for trade secret theft, protections for whistleblowers, and new remedies (e.g., ex parte seizure of property), that were not previously available under state trade secret laws.</div> <div> &nbsp;</div> <div> The <em>ex parte</em> seizure provision of the DTSA was one of the most controversial provisions of the statute during its drafting. The provision allows a trade secret holder to request, without notice to the alleged wrongdoer, that a district judge order federal law enforcement officials to seize property to prevent the propagation or dissemination of trade secrets. Opponents of the DTSA argued that the <em>ex parte</em> seizure provision would open the door to abuse by purported &ldquo;trade secret litigation trolls&rdquo; and increase litigation costs. The cases to date involving the seizure provision suggest that those early concerns may not materialize.</div> <div> &nbsp;</div> <div> A rising development with the DTSA concerns its application to alleged misappropriation that occurs both before and after the statute&rsquo;s May 11, 2016, effective date. Federal district courts in multiple jurisdictions have allowed plaintiffs to proceed with DTSA claims, at least partially, when the plaintiffs can sufficiently allege that any wrongful misappropriation occurred after the date of the enactment of the DTSA. See, e.g., <em>IA Technologies, Inc. v. ASUS Computer International</em>, No. 14-CV-03586-BLF, 2017 WL 491172 (N.D. Cal. Feb. 7, 2017) (allowing plaintiff to amend complaint to add DTSA claim after discovery revealed alleged continued misappropriation); but <em>see Avago Techs. United States Inc. v. NanoPrecision Products</em>, No. 16-cv-03737, 2017 WL 412524 (N.D. Cal. Jan. 31, 2017) (dismissing DTSA claim because alleged trade secrets were disclosed before the DTSA came into effect).</div> <div> &nbsp;</div> <div> While the language of the DTSA appears to bar or significantly limit the inevitable disclosure doctrine, some federal district courts have nonetheless used the doctrine as grounds for injunctions. See, e.g., <em>Fres-co Systems USA, Inc. v. Hawkins</em>, 2017 WL 2376568 (3rd Cir. June 1, 2017) (&ldquo;Given the substantial overlap (if not identity) between Hawkins&rsquo;s work for Fres-co and his intended work for Transcontinental&mdash;same role, same industry, and same geographic region&mdash;the District Court was well within its discretion to conclude Hawkins would likely use his confidential knowledge to Fres-co&rsquo;s detriment.&rdquo;); <em>Molon Motor and Coil Corp. v. Nidec Motor Corp.</em>, No. 16 C 03545 (N.D. Ill. May 11, 2017) (&ldquo;allegations on the direct competition between the parties, as well as the allegations on the employment breadth and similarity of Desai&rsquo;s quality control work at the two companies, are enough to trigger the circumstantial inference that the trade secrets inevitably would be disclosed by Desai to Nidec.&rdquo;).</div> <div> &nbsp;</div> <div> The DTSA&rsquo;s whistleblower immunity provision, which protects individuals from criminal or civil liability for disclosing a trade secret if certain conditions are met, continues to be largely untested.</div> <div> &nbsp;</div> <div> We anticipate cases asserting claims under the DTSA will continue to be a hot trend and closely followed in 2018. For further information about the DTSA, please see our desktop reference: &ldquo;<a href="https://www.tradesecretslaw.com/2016/09/articles/dtsa/available-now-2016-defend-trade-secrets-act-reference-guide/">The Defend Trade Secrets Act: What Employers Should Know Now</a>.&rdquo;&nbsp;</div> <div> &nbsp;</div> <h2> 2. Other Notable Trade Secret Cases</h2> <div> The <em>Waymo v. Uber</em> (N.D. Cal.) case was one of the most closely watched trade secret cases last year. The case involved a former Waymo employee who allegedly misappropriated trade secrets concerning self-driving car technology, which Waymo alleged was worth over $2 billion. The case involved disputes over a wide array of issues, such as trade secret preemption, the attorney-client privilege and Fifth Amendment, and the scope of injunctive relief (and non-competes) in California. The case reportedly settled mid-trial in February 2018, which gave Waymo/Google a .34 percent equity stake (approx. $245M) in Uber.</div> <div> &nbsp;</div> <div> The Ninth Circuit in <em>U.S. v. Liew</em> held that it was not plain error for the district court not to instruct the jury that disclosure &ldquo;&lsquo;to even a single recipient who is not legally bound to maintain [a trade secret&rsquo;s] secrecy&rsquo; destroys trade secret protection.&rdquo; As a result, the Ninth Circuit upheld criminal convictions under the (pre-Defend Trade Secrets Act) Economic Espionage Act (&ldquo;EEA&rdquo;) for trade secret misappropriation despite a third-party competitor (who was not bound by any confidentiality obligations) acquiring the trade secret.</div> <div> &nbsp;</div> <div> The <em>Liew</em> case is significant because it illustrates one of the DTSA&rsquo;s substantial changes to the EEA&ndash;the definition of a trade secret. Before the DTSA, trade secrets were defined under the EEA to include information that was subject to reasonable secrecy measures and &ldquo;derive[d] independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public.&rdquo; This case also reminds businesses about the potential risks to trade secrets when selling business assets. Building facilities, electronic devices, and any other equipment sold should be vetted to ensure no valuable company information is inadvertently disclosed.</div> <div> &nbsp;</div> <div> The Wisconsin Supreme Court in <em>North Highland Inc. v. Jefferson Machine &amp; Tool Inc.</em>, 2017 WI 75 (July 6, 2017) affirmed the high summary judgment bar to trade secret misappropriation claims. There, the Court found that the plaintiff had failed to present sufficient evidence of misappropriation or conspiracy to proceed beyond the summary judgment stage. This case puts parties in Wisconsin on notice as to the importance of finding some direct evidence of misappropriation in defeating a motion for summary judgment.</div> <div> &nbsp;</div> <div> The decision in <em>Zenimax Media, Inc. v. Oculus VR, LLC</em>, No. 3:14-CV-1849 (N.D. Texas 2017) illustrates that nondisclosure agreements remain important and can be a powerful alternative when trade secret claims are not successfully. The jury in that case found no liability on the plaintiff&rsquo;s trade secret claim but awarded the plaintiff $200 million in damages for the breach of a nondisclosure agreement. The jury was charged with determining, &ldquo;[w]hat sum of money would fairly and reasonably compensate ZeniMax and ID Software for their injuries that resulted from Oculus&rsquo;s failure to comply with the Non-Disclosure Agreement?&rdquo;</div> <div> &nbsp;</div> <div> For a 50 state survey of non-compete laws, please see our recently updated: &ldquo;<a href="https://www.tradesecretslaw.com/2017/08/articles/trade-secrets/now-available-2017-2018-edition-of-the-trade-secrets-and-non-competes-50-state-desktop-reference/">50 State Desktop Reference: What Businesses Need To Know About Non-Compete and Trade Secrets Laws</a>.&rdquo;</div> <div> &nbsp;</div> <h2> 3. Notable Restrictive Covenant and Forum Selection Clause Cases</h2> <div> The Wisconsin Supreme Court heightened the scrutiny for employee non-solicitation agreements in the state. <em>Manitowoc Company, Inc. v. Lanning</em>, 2018 WL 472928 (Jan. 19, 2018). The case involved an engineer who had been with the plaintiff employer for over 25 years until he left to become a director of engineering with a competitor. The former employee had a non-solicitation of employees covenant with his former employer, which provided: &ldquo;for a period of two years &hellip; (either directly or indirectly) solicit, induce or encourage any employee(s) to terminate their employment with Manitowoc or to accept employment with any competitor, supplier or customer of Manitowoc&hellip;.&rdquo; The Court found the covenant was an unreasonable restraint of trade and, thus, unenforceable. The Court reasoned that the former employee did not have specialized knowledge about all of employer&rsquo;s 13,000 world-wide employees and he did not have a relationship with every employee.</div> <div> &nbsp;</div> <div> Illinois federal district courts continue to reject the controversial <em>Fifield v. Premier Dealer Service</em>, 993 N.E.2d 938 (Il. App (1st) 2013) decision by the Illinois Appellate Court. The court in <em>Fifield</em> held that a restrictive covenant executed by an at-will employee is unenforceable, for lack of adequate consideration, unless the employment relationship lasts at least two years beyond the date of execution. The federal district court for the Northern District of Illinois in <em>Stericycle, Inc. v. Simota</em>, Case No. 16 C 4782 (Oct. 20, 2017) rejected <em>Fifield</em>&rsquo;s two-year bright line test and instead held that the enforcement of a non-compete supported by continued employment requires an individualized, case-by-case assessment. The court reasoned that the Illinois Supreme Court would likely reject the &ldquo;bright line&rdquo; test. The federal district court for the Southern District of Illinois in <em>Apex Physical Therapy v. Ball et al.</em>, Case No. 3:17-cv-119 (Nov. 3, 2017) refused to dismiss claims against two former employees for breach of their restrictive covenants finding the Illinois Supreme Court would most likely reject the arbitrary two year bright-line rule in favor a fact-specific, totality-of-the-circumstances approach to the question of whether there was adequate consideration for the restrictive covenant agreement.</div> <div> &nbsp;</div> <div> Effective January 1, 2017, California&rsquo;s enacted Labor Code Section 925 restrains the ability of employers to require employees to litigate or arbitrate employer disputes outside of California or under the laws of another state, subject to certain exceptions. The statute applies to any agreement that is a condition of employment. Few courts have yet to address the statute because it applies only to agreements entered into, modified, or extended on or after January 1, 2017. One court found the statute inapplicable because the former employee did not agree to the forum selection clause at issue while he was a resident of California. See <em>Mechanix Wear, Inc. v. Performance Fabrics, Inc.</em>, No. 2:16-cv-09152-ODW (SS), 2017 WL 417193 (C.D. Cal., Jan. 31, 2017).</div> <div> &nbsp;</div> <div> Nonetheless, federal district courts continue to uphold valid and enforceable forum selection clauses regardless whether the agreement at issue involves non-competition or other restrictive covenants, even over objections that the forum selection clause purportedly violates any applicable state policies against non-competes. See, e.g., <em>Mostipak v. Badger Daylighting Corp.</em>, No. 217CV00247MCECKD, 2017 WL 4310677 (E.D. Cal. Sept. 28, 2017).</div> <div> &nbsp;</div> <h2> 4. New State Legislation Regarding Restrictive Covenants</h2> <div> Oregon enacted new legislation in 2017 that renders non-competition and non-solicitation covenants void and legally unenforceable for home care workers. West Virginia enacted new legislation that limits non-competes for physicians to one year durations and with geographical restrictions of 30 road miles from the physician&rsquo;s primary place of practice. West Virginia&rsquo;s new law provides exemptions for physicians who are shareholders, owners, partners, members, or directors of a health care practice.</div> <div> &nbsp;</div> <div> On June 3, 2017, Nevada amended Revised Statute 613, which governs non-competition agreements. The new law adds requirements to the enforceability and validity of non-competition agreements, and importantly, now allows courts to &ldquo;blue-pencil&rdquo; non-competition agreements, overturning Nevada Supreme Court&rsquo;s recent decision in <em>Golden Road Motor Inn, Inc. v. Islam</em>. The new law also provides certain limitations on the scope of customer non-solicitation covenants. The new law further provides that a non-competition agreement is only enforceable during the time in which the employer is paying the employee&rsquo;s salary, benefits, or equivalent compensation if an employee is terminated because of a reduction in force, reorganization, or similar restructuring.</div> <div> &nbsp;</div> <div> Pennsylvania and New Jersey both introduced bills that would dramatically limit businesses&rsquo; powers to sign workers to non-competes. These proposed bills are longshots to pass but could be models for other states to follow or for defendants to argue against non-competes.</div> <div> &nbsp;</div> <h2> 5. Vermont&rsquo;s New Social Media Legislation</h2> <div> Vermont joined the growing number of states that have enacted social media privacy laws regulating the use of social media by employers and educational institutions. The bill was signed by Governor Phil Scott on May 17, 2017, and went into effect on January 1, 2018.</div> <div> &nbsp;</div> <div> For applicants and employees, Vermont&rsquo;s new social media law prohibits the required or requested (i) turnover of employee personal account login; (ii) access of account in employer&rsquo;s presence; (iii) divulging of social media content to employer; or (iv) change of privacy settings. An employer may not require an employee or applicant to add anyone to a contacts list. Retaliation against an employee who exercises these rights is also prohibited.</div> <div> &nbsp;</div> <div> Vermont&rsquo;s new social media law does allow, however, social media access when required for compliance with legal and regulatory obligations or investigating alleged unauthorized transfer or disclosure of proprietary information, unlawful harassment, threats of violence, or discrimination. Law enforcement agencies are also permitted to request or require access for screening or fitness determinations and investigations. Employers may request or require turnover of login information for an employer-issued device.</div> <div> There are no remedies mentioned under Vermont&rsquo;s social media law. One notable aspect of the law is that any agreement by an employee to waive his or her rights under the statute is invalid.</div> <div> &nbsp;</div> <div> Given the increasing pervasiveness of social media in the workforce, employers need to stay informed of the varied and ever-evolving legal requirements governing employee use of social media. To provide a starting point for that analysis, we have updated our convenient, one-stop Desktop Reference surveying existing social media privacy laws: &ldquo;<a href="https://www.tradesecretslaw.com/2017/11/articles/social-media-2/now-available-seyfarth-shaws-2017-2018-edition-of-the-social-media-privacy-legislation-desktop-reference/">Social Media Privacy Legislation: What Employers Need to Know Desktop Reference</a>.&rdquo;</div> <div> &nbsp;</div> <h2> 6. The U.S. Supreme Court Declines Review of Two Notable 9th Circuit CFAA Cases</h2> <div> One of the significant developments in 2017 regarding computer fraud law involved things that didn&rsquo;t happen. Specifically, the U.S. Supreme Court declined to review two closely watched computer hacking cases, <em>Nosal v. U.S.</em>, 828 F.3d 865 (9th Cir. 2016) and <em>Power Ventures, Inc. v. Facebook, Inc.</em>, 844 F.3d 1058 (9th Cir. 2016).</div> <div> &nbsp;</div> <div> In <em>Nosal</em>, the 9th Circuit Court of Appeals held that an employee whose computer access credentials were affirmatively revoked by his employer acted &ldquo;without authorization&rdquo; in violation of the Computer Fraud and Abuse Act (&ldquo;CFAA&rdquo;) when he and/or his former employee co-conspirators used the login credentials of a current employee to gain access to the employer&rsquo;s computer systems.</div> <div> &nbsp;</div> <div> In <em>Power Ventures</em>, the 9th Circuit found that Power Ventures (a third-party platform that aggregated information from users&rsquo; various social media accounts) violated the CFAA when it continued to access and scrape data from Facebook&rsquo;s servers &ldquo;after receiving written notification from Facebook&rdquo; and circumventing certain network barriers implemented by Facebook.</div> <div> &nbsp;</div> <div> These cases had the potential to have a significant influence on scope and interpretation of what constitutes authorized access under the CFAA. Indeed, the Supreme Court has yet to weigh in on the over 30-year old computer fraud statute. By declining to review <em>Nosal</em>, the Supreme Court leaves a growing circuit split involving the scope and applicability of the CFAA to former employees that access and/or misuse computer data without permission.</div> <div> &nbsp;</div> <h2> 7. ABA Encourages Encryption of Emails When Transmitting Confidential Client Information</h2> <div> The American Bar Association issued an Ethics Opinion in the Spring of 2017 stressing that lawyers must make reasonable efforts to prevent inadvertent or unauthorized access to confidential information relating to the representation of their clients. The ABA recognized that in the age of constant cybersecurity threats, law firms are targets for hackers for two reasons: (1) they obtain, store and use highly sensitive information about their clients while at times utilizing safeguards to shield that information that may be inferior to those deployed by the client, and (2) the information in their possession is more likely to be of interest to a hacker and likely less voluminous than that held by the client.</div> <div> &nbsp;</div> <div> In examining the applicable Model Rules to explain what factors constitute reasonable efforts when using technology to communicate with clients, the Opinion specifically mentions trade secrets lawyers, noting that they handle client matters involving proprietary information that &ldquo;may present a higher risk of data theft.&rdquo; Trade secrets lawyers must, on a case-by-case basis, analyze how they communicate electronically about client matters and &ldquo;particularly strong protective measures, like encryption, are warranted in some circumstances.&rdquo;</div> <div> &nbsp;</div> <div> The Opinion makes clear that lawyers must have an open exchange of communication with their clients about the security measures their firms are taking to safeguard the clients&rsquo; confidential information. They must recognize that the determination of whether they are making reasonable efforts in enhancing their cybersecurity is a fact-based analysis to be made on a case-by-case basis and may not be uniformly employed.</div> http://www.seyfarth.com:80/publications/MA030218-LE Attorney General Issues Guidance on MEPA: Many Questions Unanswered http://www.seyfarth.com:80/publications/MA030218-LE Fri, 02 Mar 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The Massachusetts Attorney General&rsquo;s office (&ldquo;AGO&rdquo;) issued Guidance on March 1 about the changes to the Massachusetts Equal Pay Act (&ldquo;MEPA&rdquo;) that will take effect July 1.&nbsp; Employers preparing to comply with MEPA should review the AGO&rsquo;s Guidance carefully and determine whether to conduct a pay equity audit before the law takes effect. &nbsp;Employers are also invited to <a href="https://blog.aimnet.org/aim-issueconnect/attorney-general-releases-wage-equity-guidance-for-employers">attend a webinar</a>&nbsp;presented by Genevieve Nadeau, Chief of the Attorney General&rsquo;s Civil Rights Division, the Associated Industries of Massachusetts, and Seyfarth attorneys Rob Fisher and Hillary Massey.</em></p> <p> <strong>Effect of the Guidance</strong></p> <p> The amendments to MEPA expressly instruct the AGO to issue &ldquo;regulations interpreting and applying&rdquo; the statute.&nbsp; Such regulations would be entitled to substantial deference from the courts in interpreting the statute, if they were propounded pursuant to requisite administrative procedures.&nbsp; The AGO has elected not to pursue that course, at least for the time being, and to issue an informal statement of its views regarding the statute.&nbsp; The Guidance is, therefore, not binding on the courts, and judges may disregard the AGO&rsquo;s stated views as stated in that document, to the extent that they are unconvinced by the AGO&rsquo;s reasoning. &nbsp;</p> <p> <strong>Applicability of MEPA</strong></p> <p> The statutory amendments to MEPA do not specify who is covered by the law.&nbsp; In the Guidance, the AGO takes the position that MEPA applies to all employees with a primary place of work in Massachusetts, regardless of where the employees live or whether their employer is located outside of the Commonwealth.&nbsp; The Guidance provides examples, including an assertion that telecommuting to a Massachusetts worksite satisfies the requirement.&nbsp; For new employees, the Guidance advises employers to make a &ldquo;reasonable assessment&rdquo; of employees&rsquo; anticipated primary place of work, without further specifics.</p> <p> <strong>Comparable Work</strong></p> <p> In order to comply with the law, employers must determine which employees perform &ldquo;comparable work&rdquo; to each other.&nbsp; MEPA defines &ldquo;comparable work&rdquo; as work that requires substantially similar skill, effort, <em>and</em> responsibility, and is performed under similar working conditions.&nbsp; Consistent with the AGO&rsquo;s efforts to broaden the statute beyond the concept of equal pay for equal work, the Guidance further defines these terms, explaining that &ldquo;substantially similar&rdquo; means that skill, effort, and responsibility &ldquo;are alike to a great or significant extent, but are not necessarily identical or alike in all respects.&rdquo;&nbsp; Notably, the AGO takes the position that an employer may not determine comparability based on job titles alone:</p> <p style="margin-left:.5in;"> <strong>Q: Can an employer rely on job titles or descriptions to determine which positions are comparable? </strong></p> <p style="margin-left:.5in;"> Not necessarily. A determination as to whether two jobs are &ldquo;comparable&rdquo; under MEPA should focus on the skill, effort, and responsibility actually required to perform the jobs, irrespective of job titles or descriptions. While an employer may not rely on job descriptions alone, job descriptions that accurately reflect the skill, effort, and responsibility required to perform jobs may be helpful in identifying which jobs are comparable.</p> <p> The AGO defines the key terms as follows.</p> <p> <u>Skill</u></p> <p> &ldquo;Skill&rdquo; includes such factors as experience, training, education, and ability that are <em>required to perform the job</em>.&nbsp; As an example, the Guidance explains that employees doing similar work on different lines of business for an employer may be similar, e.g., &ldquo;employees selling different types of insurance may be performing work requiring comparable skill unless one of the types of insurance requires salespeople to have meaningfully different levels or degrees of knowledge or expertise.&rdquo;&nbsp; This assertion emphasizes that scrutiny of an employer&rsquo;s pay practices under MEPA may involve comparison of employees working in entirely different business units, even if the employer would not otherwise consider those employees to be doing similar work. &nbsp;</p> <p> <u>Effort</u></p> <p> The AGO explains that &ldquo;effort&rdquo; refers to the amount of physical or mental exertion (including mental fatigue and stress) needed to perform a job.&nbsp; As an example, the Guidance states that a job that requires standing all day likely does not compare to a sedentary job.&nbsp; Aside from these extremes, the Guidance provides no insights as to how an employer may assess whether two jobs that involve differing types of mental effort (e.g., financial calculations vs. legal research) or different types of physical effort (e.g., occasional heavy lifting vs. long periods of standing) might be deemed similar enough for two jobs to be deemed comparable.&nbsp; Similarly, the Guidance does not discuss how &ldquo;alike&rdquo; the effort required by two different jobs must be in order for the work to be deemed comparable.&nbsp; For example, employers are left to make their own determination as to whether a job that involves occasional lifting of 25 pounds might be comparable to a position that involves lifting 40, 50 or 100 pounds.&nbsp;&nbsp;</p> <p> <u>Responsibility</u></p> <p> &ldquo;Responsibility&rdquo; reflects the &ldquo;degree of discretion or accountability involved in performing the essential functions of a job,&rdquo; including whether an employee supervises others and similar factors.&nbsp; The Guidance explains that an employee responsible for executing legal documents may have a different level of responsibility than an employee who drafts the documents.&nbsp; Again, the Guidance provides no standard by which to determine whether two jobs that involve different levels of responsibility may be similar enough in that regard to be deemed comparable under MEPA.</p> <p> <u>Similar Working Conditions</u></p> <p> &ldquo;Working conditions&rdquo; includes factors such as the &ldquo;physical surroundings and hazards encountered,&rdquo; including extreme temperatures, noise, fumes, heights, and dangerous equipment. According to the AGO, working conditions &ldquo;can take into account meaningful differences in the days or times shifts are scheduled,&rdquo; such as overnight shifts.&nbsp;</p> <p> The Guidance defines each of these terms -- skill, effort, responsibility and working conditions --but does not address how employers should analyze them as a whole.&nbsp; In order to be comparable, jobs must be substantially similar in all of these respects.&nbsp; Thus, the comparability test will fail if employees are different with respect to any one of these factors.&nbsp;</p> <p> <strong>If Work Is Comparable, Wages Must Be &ldquo;Equal&rdquo;</strong></p> <p> According to the AGO, &ldquo;wages&rdquo; includes any type of pay or compensation for work, including profit sharing, deferred compensation, vacation time, car allowances, retirement plans, insurance and the opportunity to participate in benefit programs (whether or not the employee takes advantage of them).&nbsp; The Guidance asserts that compensation must also be paid in the same method:&nbsp; an employer may not pay &ldquo;an employee an extra annual bonus in order to make up for the fact that he or she has a lower base salary.&rdquo;&nbsp; If the AGO&rsquo;s position in this regard is credited, employers are limited in their options for remediating disparities in total compensation between employees, requiring that each component of compensation be equal. &nbsp;This position also leads to the curious result that two employees making exactly the same amount in total compensation may still have significant equal pay claims under the statute.&nbsp; For example, if a man who is paid a salary of $75,000 and a bonus of $25,000 is deemed to be doing work that is comparable to that of a woman who is paid a salary of $25,000 and a bonus of $75,000, both workers will have a claim against the employer for $50,000 per year, plus double damages and attorneys&rsquo; fees, even though their total pay is equal.</p> <p> <strong>Factors Available To Explain Wage Differentials </strong></p> <p> The AGO has offered guidance on the factors -- which, according to the AGO are the <em>only</em> factors -- that employers may use to explain wage differentials between employees of opposite genders performing comparable work:</p> <p> (1) Seniority system</p> <p> A seniority system compensates employees based on their length of service, without reducing seniority based on time due to pregnancy-related conditions and other protected leave.&nbsp; The Guidance explains that a &ldquo;system&rdquo; is must be &ldquo;predetermined or predefined; used by managers or others to make compensation decisions; and uniformly applied in good faith without regard to gender.&rdquo;&nbsp; In other words, according to the AGO, it&rsquo;s not sufficient for seniority to be used after the fact to explain a wage disparity; it must actually be used in <em>determining</em> compensation.&nbsp; Because such formal systems are relatively rare, the AGO&rsquo;s position would significantly limit employers&rsquo; ability to defend pay differentials between employees with differing tenure at the organization.</p> <p> (2) Merit system</p> <p> &ldquo;A merit system is a system that provides for variations in pay based upon employee performance as measured through legitimate, job-related criteria, such as a &ldquo;performance rating plan&rdquo; that takes performance into account in determining pay.&nbsp; Again, performance ratings must actually be used to determine pay, not relied on after the fact in explaining a disparity.</p> <p> The remaining 4 factors are self-explanatory, but there is some helpful language in the Guidance:</p> <p style="margin-left:.5in;"> (3) System that measures earnings by quantity or quality of production, sales, or revenue:&nbsp; includes paying employees differently based on number of hours worked</p> <p style="margin-left:.5in;"> (4) Geographic location in which job is performed</p> <p style="margin-left:.5in;"> (5) Education, training or experience (to the extent such factors are reasonably related to the job):&nbsp; does not include salary history; see below</p> <p style="margin-left:.5in;"> (6) Travel (if a regular and necessary condition of the job)</p> <p> The Guidance explicitly takes the position that changes in the labor market (i.e., unemployment rate and competition for jobs) <em>cannot</em> be used to justify differences in compensation.&nbsp;</p> <p> <strong>Salary History Ban </strong></p> <p> The law prohibits Massachusetts employers from requesting the compensation history of an applicant prior to making an offer, unless the applicant &ldquo;voluntarily&rdquo; discloses such information.&nbsp; The Guidance takes the position that asking about salary &ldquo;expectations&rdquo;&nbsp; is permitted but that employers may not frame the question in a manner designed to elicit information, and that the ban does not apply to internal employees. &nbsp;The Guidance also emphasizes the law&rsquo;s prohibition on using salary history to explain a wage disparity.</p> <p> <strong>New Self-Evaluation Defense</strong></p> <p> MEPA creates an affirmative defense to wage discrimination claims for an employer that has (1) completed a self-evaluation of its pay practices that is &ldquo;reasonable in detail and scope in light of the size of the employer&rdquo; within the three years prior to commencement of the action; and (2) made &ldquo;reasonable progress&rdquo; toward eliminating pay differentials uncovered by the evaluation.&nbsp;</p> <p> The Guidance explains that whether an evaluation is &ldquo;reasonable in detail and scope&rdquo; depends on the &ldquo;size and complexity of an employer&rsquo;s workforce,&rdquo; in light of factors including &ldquo;whether the evaluation includes a reasonable number of jobs and employees,&rdquo; and is &ldquo;reasonably sophisticated.&rdquo;&nbsp; No more specific standards are provided as to what sort of analysis may be deemed &ldquo;reasonable.&rdquo;&nbsp; Given that most employers have never conducted a pay equity assessment, there is no established commercial standard for such assessments, and employers that perform an assessment that is less than fully comprehensive will be left to wonder whether the AGO or the courts may find their efforts to be &ldquo;reasonable.&rdquo; &nbsp;The Guidance further opines that, in order for an employer to take advantage of the defense, its self-evaluation must have included the employees or jobs at issue.&nbsp;</p> <p> Similarly, &ldquo;reasonable progress&rdquo; depends in part on the size and resources of the employer, and must &ldquo;eliminate&rdquo; the wage disparities in a &ldquo;reasonable amount of time.&rdquo;&nbsp; Again, no indication of what period of time may be deemed &ldquo;reasonable&rdquo; for the elimination of disparities is provided.</p> <p> The Guidance makes clear that a reasonable audit that reflects an employer&rsquo;s good faith determination of what jobs/employees are comparable to each other is not subject to second-guessing:&nbsp; &ldquo;Whether or not an employer is eligible for an affirmative defense does not necessarily turn on whether a court ultimately agrees with the employer&rsquo;s analysis of whether jobs are comparable or whether pay differentials are justified under the law, but rather turns on whether the self-evaluation was conducted in good faith and was reasonable in detail and scope.&rdquo;&nbsp; Thus, independent of the self-evaluation defense, employers should consider conducting an assessment at the pre-dispute phase to set the framework as to which employees are comparable to one another.</p> <p> The AGO has published a guide, checklist and calculator intended to assist employers with conducting self-audits.&nbsp; Notably, the most difficult and arguably important part of any audit --identifying comparable jobs -- receives only a few sentences of discussion in the guide.</p> <p> Before using these tools, employers should consider the risks of conducting an audit without the guidance of an attorney.&nbsp; If not adequately protected, any evaluation used to substantiate a defense under MEPA might be used against an employer in litigation under the federal Equal Pay Act or Title VII, which provide no similar defense.&nbsp; Thus, Massachusetts employers should work with counsel in order to protect the assessment process and results with the attorney-client privilege.&nbsp; Without these protections, the self-evaluation (and any wage differentials identified by it) may be discoverable in the event of a lawsuit.&nbsp;</p> <p> <strong>Conclusion</strong></p> <p> Because the effective date for the amendments to MEPA is now less than four months away, employers should review the AGO&rsquo;s Guidance, identify any necessary changes to hiring practices, and consider whether and when to conduct a pay equity audit by consulting with an attorney experienced in such evaluations.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/news/resurveypfw030118 Seyfarth's Real Estate Market Sentiment Survey profiled in Property Funds World http://www.seyfarth.com:80/news/resurveypfw030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a March 1 story from Property Funds World, &quot;Interest rates are top concern for commercial real estate industry, says Seyfarth Shaw survey.&quot; Commercial real estate executives once again see rising interest rates as their lead concern for the industry this year, according to Seyfarth Shaw&rsquo;s 3rd annual Real Estate Market Sentiment Survey. You can read the <a href="https://www.propertyfundsworld.com/2018/03/01/261732/interest-rates-are-top-concern-commercial-real-estate-industry-says-seyfarth-shaw">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveygbfr030118 Seyfarth's Real Estate Market Sentiment Survey profiled in Global Banking & Finance Review http://www.seyfarth.com:80/news/resurveygbfr030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a March 1 story from Global Banking &amp; Fiannce Review, &quot;SEYFARTH REAL ESTATE MARKET SENTIMENT SURVEY REVEALS TOP CONCERNS FOR 2018.&quot; From new tax policy to the rise of ride-sharing, Seyfarth&#39;s survey examined the industry&rsquo;s current market sentiment. You can read the <a href="https://www.globalbankingandfinance.com/seyfarth-real-estate-market-sentiment-survey-reveals-top-concerns-for-2018/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrm030118 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Camille Olson was quoted in a March 1 story from SHRM, &quot;Unpaid Internships: What Employers Need to Know,&quot; on how some state and local laws provide different or additional types of protections to interns. Olson said that, often, the best thing to do is call your state labor department and ask what the requirements are. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/unpaid-internships-new-dol-intern-test.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/vunjlj030118 Minh Vu quoted in the New Jersey Law Journal http://www.seyfarth.com:80/news/vunjlj030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Minh Vu was quoted in a March 1 story from the New Jersey Law Journal, &quot;Are Disabled Persons Collateral Damage in Congress&#39; Bid to Curb ADA Lawsuits?,&quot; on HR 620, the ADA Education and Reform Act of 2017. Vu said that, if adopted in its present form, HR 620 would undoubtedly cut down on the volume of ADA litigation.</p> http://www.seyfarth.com:80/news/gesinskyhrdive030118 Loren Gesinsky quoted in HR Dive http://www.seyfarth.com:80/news/gesinskyhrdive030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Loren Gesinsky was quoted in a March 1 story from HR Dive, &quot;DOL opinion letters: Flawed, but the best option available?&quot; Gesinsky said that the reinstatement of the opinion letter program is one step toward the administration&#39;s stated goal of providing compliance assistance rather than just waiting to claim &quot;gotcha.&quot; You can read the <a href="https://www.hrdive.com/news/dol-opinion-letters-flawed-but-the-best-option-available/517777/">full article here</a>.</p> http://www.seyfarth.com:80/news/weissbenefits030118 Philippe Weiss quoted in Benefits Magazine http://www.seyfarth.com:80/news/weissbenefits030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a March 1 story from Benefits Magazine, &quot;Madness in the Office,&quot; on how many workplaces may be struggling with the question of how to handle march madness. Weiss said that it&#39;s almost unrealistic or foolhardy to expect that you&#39;ll be able to keep it completely outside of the workplace.</p> http://www.seyfarth.com:80/publications/EL030118 “A Telecommute Dispute” – What is a Reasonable Accommodation Under the ADA? http://www.seyfarth.com:80/publications/EL030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Sixth Circuit Court of Appeals recently held that telecommuting can be a reasonable accommodation under the ADA when the employee is able to perform the essential functions of the position remotely and the request is for a finite period. Mosby-Meachem v. Memphis Light, Gas &amp; Water Division, No 17-5483 (6th Cir. 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/03/a-telecommute-dispute-what-is-a-reasonable-accommodation-under-the-ada/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/dacsodhl030118 Sheryl Tatar Dacso authored an article in Digital Health Legal http://www.seyfarth.com:80/publications/dacsodhl030118 Thu, 01 Mar 2018 00:00:00 -0400 <p> Sheryl Tatar Dacso authored a March 1 article in Digital Health Legal, &quot;The new world order in US healthcare: Amazon, Berkshire Hathaway and JPMorgan Chase.&quot; In January 2018, three major companies representing over 1.2 million employees announced their plans to form a nonprofit company to embark on an ambitious venture to take back control over their employees&rsquo; healthcare costs and well-being. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/DHL_March_2018.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE022818 Update From the Midwinter Meeting of the ABA Occupational Safety and Health Law Committee http://www.seyfarth.com:80/publications/WSE022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Here is today&rsquo;s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee&rsquo;s 2018 Midwinter Meeting.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-compliance/update-from-the-midwinter-meeting-of-the-aba-occupational-safety-and-health-law-committee/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP022818 #Time’s Up? Not Yet, For Harassment Claims http://www.seyfarth.com:80/publications/CP022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Legislature has introduced a new bipartisan bill, AB 1870, that would give all employees&mdash;not just those claiming sexual harassment&mdash;three years to file DFEH complaints of unlawful discrimination, instead of the one year provided by current law.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/28/times-up-not-yet-for-harassment-claims/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022818 Seyfarth IP, International, Trade Secrets, and Corporate Attorneys Sponsoring ITechLaw 2018 Asia-Pacific Conference in Hong Kong http://www.seyfarth.com:80/publications/TS022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP is pleased to be a Global Sponsor at ITechLaw&rsquo;s 2018 Asia-Pacific Conference in Hong Kong March 7&ndash;9.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/seyfarth-ip-international-trade-secrets-and-corporate-attorneys-sponsoring-itechlaw-2018-asia-pacific-conference-in-hong-kong/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/reglobest022818 Seyfarth's Real Estate Market Sentiment Survey profiled in GlobeSt.com http://www.seyfarth.com:80/news/reglobest022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a February 28 story from GlobeSt.com, &quot;As Interest Rates Get Set To Rise, CRE Pinpoints Its Threshold For Pain.&quot; The CRE community feels that 150 basis point increase is about as high as it can tolerate before material adverse effects set in, according to Seyfarth Shaw&rsquo;s Real Estate Market Sentiment Survey. You can read the <a href="http://www.globest.com/sites/erikamorphy/2018/02/28/the-threshold-for-pain-as-interest-rates-rise/?slreturn=20180128102544">full article here</a>.</p> http://www.seyfarth.com:80/news/rerejournals022818 Seyfarth’s Real Estate Market Sentiment Survey profiled by REjournals http://www.seyfarth.com:80/news/rerejournals022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth&rsquo;s Real Estate Market Sentiment Survey was profiled in a February 28 story from REjournals, &quot;Seyfarth Shaw: The biggest concern for CRE execs? Rising interest rates.&quot; According to the Seyfarth&#39;s latest Real Estate Market Sentiment Survey rising interest rates top the list of the biggest concern facing commercial real estate executives today. You can read the <a href="http://www.rejournals.com/articles/2018/02/28/seyfarth-shaw-the-biggest-concern-for-cre-execs-rising-interest-rates">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveyicsc022818 Seyfarth's Real Estate Market Sentiment Survey profiled by the International Council of Shopping Centers http://www.seyfarth.com:80/news/resurveyicsc022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a February 28 story by the International Council of Shopping Centers, &quot;Commercial property executives expect three interest rate hikes in 2018: Survey.&quot; Seyfarth&#39;s survey respondents were overwhelmingly hawkish: 98 percent said they expect interest rate increases from the Federal Reserve in 2018, with one-third of real estate executives projecting three increases over the next 12 months. You can read the <a href="https://www.icsc.org/news-and-views/icsc-exchange/commercial-property-executives-expect-three-rate-increases-in-2018-survey">full article here</a>.</p> http://www.seyfarth.com:80/news/resurveyrebusiness022818 Seyfarth's Real Estate Market Sentiment Survey profiled in REBusiness http://www.seyfarth.com:80/news/resurveyrebusiness022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Real Estate Market Sentiment Survey was profiled in a February 28 story from REBusiness, &quot;Seyfarth Real Estate Market Sentiment Survey Reveals CRE Executives&#39; Watchlist for 2018.&quot; According to Seyfarth&#39;s survey, most respondents (58 percent) believe the Tax Cuts and Jobs Act will extend the positive industry cycle one to two years, while another 17 percent see these benefits extending beyond 2020. You can read the <a href="http://emailactivity1.ecn5.com/engines/publicPreview.aspx?blastID=2019439&amp;emailID=246153140">full article here</a>.</p> http://www.seyfarth.com:80/news/schwartzfenwickeld022818 Sam Schwartz-Fenwick quoted in Employment Law Daily http://www.seyfarth.com:80/news/schwartzfenwickeld022818 Wed, 28 Feb 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a February 28 story from Employment Law Daily, &quot;En banc CA-2 says sexual orientation discrimination is &lsquo;because of&rsquo; sex under Title VII,&quot; on how a divided Second Circuit reversed course and held that Title VII prohibits sexual orientation discrimination. Schwartz-Fenwick said that employers must be aware that any allegations concerning sexual orientation discrimination require the same analysis, investigation and response as a traditional sex discrimination complaint. You can read the <a href="http://www.employmentlawdaily.com/index.php/news/en-banc-ca-2-says-sexual-orientation-discrimination-is-because-of-sex-under-title-vii/">full article here</a>.</p> http://www.seyfarth.com:80/news/resurvey022718 Seyfarth Real Estate Market Sentiment Survey Reveals Top Concerns for 2018 http://www.seyfarth.com:80/news/resurvey022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> The first year of the Trump Administration is in the books, and with it came a new tax bill passed into law and soaring stock market records. As the economy continues to show signs of growth in 2018, commercial real estate executives cite rising interest rates once again as their lead concern for the industry this year, according to Seyfarth Shaw&rsquo;s 3rd annual Real Estate Market Sentiment Survey.</p> <p> Consistent with last year&rsquo;s sentiment, respondents are overwhelmingly hawkish: 98 percent expect interest rate increases from the Federal Reserve in 2018, with one third of real estate executives projecting three increases over the next 12 months. As the real estate industry embraces the new Trump tax cuts, low unemployment and stock market success, industry insiders expect today&rsquo;s economic factors to force the hand of the new Fed Chair and, consequently, shape their 2018 investment strategies.</p> <p> From new tax policy to the rise of ride-sharing, Seyfarth Shaw&rsquo;s 2018 Survey examines the industry&rsquo;s current market sentiment:</p> <p> <strong>Pain Point:</strong> Respondents clearly believe that multiple interest rate increases will start to have a material adverse impact on the commercial real estate market. With large questions looming on the federal deficit and budget, 63 percent of commercial real estate executives believe the industry can stomach an increase of 51-150 basis points.</p> <p> <strong>Fundamental Focus:</strong> As a new sheriff takes charge at the Fed, respondents continue to focus on the fundamentals, ranking rising interest rates and CRE supply/demand issues as their top concerns for the industry. Notably, political volatility is a sizable concern while concerns over banking regulations fell and concerns over a wall of maturing CMBS loans appear past their peak.</p> <p> <strong>Trump Tax Turbocharge:</strong> Last year, survey respondents placed tax reform near the top of the heap when it came to the Trump Administration&rsquo;s expected positive impacts on real estate. Now that this has become a reality, most respondents (58 percent) believe that the new Tax Cuts and Jobs Act will extend the positive industry cycle for at least another one to two years -- right into the 2020 presidential election.</p> <p> <strong>Rise of Ride-Sharing:</strong> 43 percent of respondents believe the rise of ride-sharing services will impact their analysis and/or development of property. Due to the efficiency and growing popularity of ride-sharing services, real estate executives are increasingly re-evaluating their properties based on reduced parking needs and proximity to public transportation.</p> <p> <strong>Web Worries:</strong> A credit to the ongoing efforts of the FBI and Homeland Security, cyberattacks have not yet profoundly hit the real estate industry. Despite this, a significant number of survey respondents (46 percent) remain concerned about a cyberattack in 2018 affecting their businesses.</p> <p> <strong>Bearish on Bitcoin: </strong>Although a popular topic at water coolers across the country, a vast majority of respondents (96 percent) report they have no plans to adopt cryptocurrency into their CRE transactions in 2018. Three big reasons why: volatility, lack of understanding, and lack of regulations.</p> <p> <strong>Private Equity Push:</strong> With more third party investment expected this year than 2017, private equity and institutional investors are the top primary sources of equity for respondents in 2018. Jumping from No. 3 to No. 1 this year, private equity is viewed as the preferred source due to its new tax benefits and the current positive economic conditions.</p> <p> <strong>Long and Winding Road:</strong> Most survey respondents (73 percent) report that infrastructure will not be a part of their investment strategy. Although not released at the time of the survey, the Administration&rsquo;s new infrastructure bill places a hefty burden on cities - a potential cause of concern for real estate executives.</p> <p> Seyfarth, which helped clients close more than $30 billion in real estate transactions in 2017, surveyed commercial real estate executives in January. For a full copy of the 2018 Seyfarth Real Estate Market Sentiment Survey, visit <a href="http://viewer.zmags.com/publication/6b43a1ac" target="_blank">here</a>.</p> <p> <strong>About Seyfarth Shaw </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/schwartzfenwicknlj022718 Sam Schwartz-Fenwick quoted in the National Law Journal http://www.seyfarth.com:80/news/schwartzfenwicknlj022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a February 27 story from the National Law Journal, &quot;US Appeals Court Ruling Highlights &#39;Evolving Nature&#39; of Title VII Protections,&quot; on how a New York federal appeals court ruling that said sexual orientation should be protected under federal civil rights laws sharpened the divide among courts and set the stage for a U.S. Supreme Court fight. Schwartz-Fenwick said that, in conducting business during this period of legal uncertainty, employers must be aware that gay, lesbian and bisexual individuals may be protected under federal law in addition to relevant state or local laws, and that any allegations concerning sexual orientation discrimination require the same analysis, investigation and response as a traditional sex discrimination complaint.</p> http://www.seyfarth.com:80/news/turnerhrbr022718 Coby Turner interviewed on Paycom's HR Break Room Podcast http://www.seyfarth.com:80/news/turnerhrbr022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Coby Turner was interviewed February 27th on Paycom&#39;s HR Break Room Podcast, &quot;California Dreaming: Why This State&rsquo;s Laws Matter Nationwide.&quot; Turner, from the firm&#39;s California Peculiarities Employment Law Blog, stoped by the HR Break Room to discuss California laws emerging from the Golden State. You can listen to the <a href="http://paycom.com/resources/podcasts/episode/california-law-matters-nationwide">full interview here</a>.</p> http://www.seyfarth.com:80/news/recostar022718 Seyfarth’s Real Estate Market Sentiment Survey profiled by CoStar http://www.seyfarth.com:80/news/recostar022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Seyfarth&rsquo;s Real Estate Market Sentiment Survey was profiled in a February 27 story from CoStar, &quot;Survey: Expected Interest Rate Increases This Year Remain Top Concern Among CRE Execs.&quot; More than one-third of respondents expect three federal fund rate increases in 2018, according to Seyfarth&#39;s survey. You can read the <a href="http://www.costar.com/News/Article/Survey-Expected-Rate-Increases-This-Year-Likely-to-Have-Material-Adverse-Effect-on-CRE-Markets/198594">full article here</a>.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm022718 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a February 27 story from SHRM, &quot;Title VII Bars Sexual Orientation Discrimination, 2nd Circuit Decides,&quot; on how disagreement among appeals courts are growing. Schwartz-Fenwick recommended that employers increase their sensitivity to issues related to sexual orientation in the workplace during this period of uncertainty. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/2nd-circuit-title-vii-bars-sexual-orientation-discrimination.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/shermanfnr022718 Andrew Sherman interviewed on Federal News Radio http://www.seyfarth.com:80/news/shermanfnr022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Andrew Sherman was interviewed February 27th on Federal News Radio, &quot;Women still lack visibility on company boards.&quot; Sherman discussed the issues of governance, and how you make sure that you avoid mono-culture &mdash; that you get a group of directors that represents the broader interests of the community that a business serves. You can listen to the <a href="https://federalnewsradio.com/whats-working-washington/2018/02/women-still-lack-visibility-on-company-boards/">full interview here</a>.</p> http://www.seyfarth.com:80/news/launeybi022718 Kristina Launey quoted in Business Insurance http://www.seyfarth.com:80/news/launeybi022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Kristina Launey was quoted in a February 27 story from Business Insurance, &quot;Congress addresses ADA nuisance suits in bill, but prospects dim,&quot; on a bill, passed by the U.S. House of Representatives earlier this month, which addresses businesses&rsquo; vulnerability to the numerous so-called &ldquo;drive-by&rdquo; lawsuits filed by plaintiffs charging violations of Title III of the Americans with Disabilities Act. Launey said that the bill, which was intended to provide relief for businesses from these nuisance suits, is something that&rsquo;s been a long time in the making on the federal level. You can read the <a href="http://www.businessinsurance.com/article/20180227/NEWS06/912319463/Congress-addresses-Americans-with-Disabilities-Act-nuisance-lawsuits-with-bill">full article here</a>.</p> http://www.seyfarth.com:80/news/fleischerbna022718 Michael Fleischer quoted in Bloomberg BNA http://www.seyfarth.com:80/news/fleischerbna022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Michael Fleischer was quoted in a February 27 story from Bloomberg BNA, &quot;Sexual Harassment Tax Change Puts Pinch on Confidential Settlements,&quot; on how a new tax law provision, codified as tax code Section 162(q), intended to discourage the use of &ldquo;hush money&rdquo; in sexual harassment settlements could hurt harassment claimants as well as employers. Fleischer said that a large employer might have greater resources to absorb the tax hit under Section 162(q) for a settlement including a nondisclosure pact, while a smaller employer might find it more critical to get the tax deduction, even if it means risking adverse publicity.</p> http://www.seyfarth.com:80/publications/LR022718 NLRB Vacates Hy-Brand Decision and Restores (For Now) Its Broad Browning-Ferris Joint Employer Test http://www.seyfarth.com:80/publications/LR022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Yesterday, the National Labor Relations Board (NLRB or Board) issued an Order vacating the Board&rsquo;s decision in&nbsp;<em>Hy-Brand Industrial Contractors, Ltd. and Brandt Construction Co</em>., 365 NLRB No. 156 (2017), in light of the determination by the Board&rsquo;s Designated Agency Ethics Official that Member William Emanuel is, and should have been, disqualified from participating in the&nbsp;<em>Hy-Brand</em>&nbsp;proceeding.&nbsp;In&nbsp;<em>Hy-Brand</em>, the NLRB had overruled its joint employer test set forth&nbsp;<em>in Browning-Ferris Industries</em>, 362 NLRB No. 186 (2015),and returned to its pre&nbsp;<em>Browning-Ferris</em>test.</p> <p> <a href="https://www.employerlaborrelations.com/2018/02/27/nlrb-vacates-hy-brand-decision-and-restores-for-now-its-broad-browning-ferris-joint-employer-test/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=c6f75be419-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-c6f75be419-73179549">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL022718 Second Circuit Holds That Title VII Bars Sexual Orientation Discrimination http://www.seyfarth.com:80/publications/EL022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In landmark decision, the Second Circuit joins the Seventh Circuit in holding that Title VII prohibits discrimination on the basis of sexual orientation as a subset of sex discrimination.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/second-circuit-holds-that-title-vii-bars-sexual-orientation-discrimination/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT022718 Don’t Get Smoked in Your Next Commercial Marijuana Lease http://www.seyfarth.com:80/publications/TBT022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Twenty nine states plus the District of Columbia have legalized medical marijuana and eight of these states plus D.C. have legalized recreational marijuana. Additional states are considering some form of legalized marijuana use. This has created a new and growing demand for leasing industrial, agricultural and retail properties for growing, manufacturing and dispensing cannabis. Given this growing demand for real estate, it is important to reflect on how many boilerplate provisions in commercial leases are not suited to covering a use that continuously puts state law at odds with federal law.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/dont-get-smoked-in-your-next-commercial-marijuana-lease/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC022718 Federal Court Rules That The EEOC Can Mess With Texas In Felon Hiring Lawsuit http://www.seyfarth.com:80/publications/WC022718 Tue, 27 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a showdown between the State of Texas and the EEOC &ndash; whereby Texas alleged that the EEOC&rsquo;s &ldquo;Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII&rdquo; interfered with its authority to limit the hiring of felons &ndash; a federal district court in Texas recently granted the EEOC&rsquo;s motion for summary judgment, and denied in part Texas&rsquo;s motion for summary judgment and request for declaratory relief.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/federal-court-rules-that-the-eeoc-can-mess-with-texas-in-felon-hiring-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE022618 Telemedicine: Risk and Reward http://www.seyfarth.com:80/publications/FE022618 Mon, 26 Feb 2018 00:00:00 -0400 <p> But healthcare professionals are aging along with the general population and many commentators predict a shortage of trained medical professionals to treat our growing and aging population. When healthcare professionals themselves age out of the workforce, how will the healthcare industry fill this gap and how will these innovations affect the healthcare industry in the long term?<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/23/telemedicine-risk-and-reward">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/millermasseyneih022618 Barry Miller and Hillary Massey authored an article in New England In-House http://www.seyfarth.com:80/publications/millermasseyneih022618 Mon, 26 Feb 2018 00:00:00 -0400 <p> Barry Miller and Hillary Massey authored a February 26 article in New England In-House, &quot;MEPA is coming: an overview of the audit process.&quot; The authors discuss how the best way to avoid pay equity claims &mdash; and take advantage of a unique affirmative defense under the new Massachusetts Equal Pay Act law &mdash; is to conduct a pay equity audit under the protection of the attorney-client privilege. You can read the <a href="http://newenglandinhouse.com/2018/02/26/mepa-is-coming-an-overview-of-the-audit-process/">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS022618 Robert Milligan to Present “Defend Trade Secret Act (DTSA) as it Approaches its Two-Year Anniversary” at Law Seminars International http://www.seyfarth.com:80/publications/TS022618 Mon, 26 Feb 2018 00:00:00 -0400 <p> On March 23, 2018, Robert Milligan, Seyfarth Shaw partner and co-chair of the Trade Secrets, Non-Competes, and Computer Fraud Law Practice Group, will be part of an expert panel at Law Seminars International in Seattle, Washington, on Trade Secrets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/dtsa/robert-milligan-to-present-defend-trade-secret-act-dtsa-as-it-approaches-its-two-year-anniversary-at-law-seminars-international/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022618a Upcoming Webinar! Protecting Confidential Information and Client Relationships in the Financial Services Industry http://www.seyfarth.com:80/publications/TS022618a Mon, 26 Feb 2018 00:00:00 -0400 <p> On Tuesday, March 27, in Seyfarth&rsquo;s second installment in its 2018 Trade Secrets Webinar Series, Seyfarth attorneys Scott Humphrey, Erik Weibust, and Marcus Mintz will focus 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.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/upcoming-webinar-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-6/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/perkins022618 Seyfarth Adds Employee Benefits Litigator S. Bradley Perkins in San Francisco http://www.seyfarth.com:80/news/perkins022618 Mon, 26 Feb 2018 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that S. Bradley Perkins has joined the firm&rsquo;s Labor &amp; Employment department and ERISA and Employee Benefits Litigation group as a partner in San Francisco. Perkins arrives from the Pacific Maritime Association (PMA) where he served as Senior Counsel.</p> <p> Perkins focuses his practice in the areas of employee benefits fiduciary advice, litigation under the Employee Retirement Security Act of 1974 (ERISA), and litigation involving fraudulent and abusive health care providers. He has represented clients in a wide range of ERISA matters in court and in arbitration, including complex class actions and single-plaintiff lawsuits. He has handled matters involving individual pension and welfare benefit claims, severance pay claims, executive compensation disputes, benefit discrimination, and claims regarding plan design and fiduciary responsibility. In the class action realm, he has defended various types of claims, including claims for benefits and claims for breach of fiduciary duty, including 401(k) fee and proprietary fund litigations. In addition, Perkins has experience representing health care plans and payors in health care reimbursement and provider billing litigation involving claims under ERISA, RICO, and state law, including the California Insurance Frauds Prevention Act.</p> <p> &ldquo;Our team has worked closely with Brad for many years during his time at the PMA and are thrilled to officially welcome him to the firm,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &ldquo;He has a tremendous reputation of handling high-stakes employee benefits litigation and brings with him a keen understanding of the growing healthcare fraud issues facing employers today.&rdquo;</p> <p> A regular writer and speaker, Perkins is a member of the International Foundation of Employee Benefits Plans and the American Benefits Council. He currently serves as a contributing editor to <em>Employee Benefits Law</em> and its annual supplements, and he serves as a management co-chair of the Subcommittee on Liability Issues Unique to Welfare Plans of the Employee Benefits Committee of the ABA Section of Labor and Employment Law. Perkins received his J.D. from The George Washington University Law School where he was senior articles editor of <em>The George Washington Law Review</em>. He earned a B.A., <em>cum laude</em>, from Duke University.</p> <p> &ldquo;Brad is a superb lawyer with great relationships here in the Bay Area,&rdquo; said Christian Rowley, managing partner of Seyfarth&rsquo;s San Francisco office. &ldquo;As the changing workforce continues to present challenges for employers nationwide, Brad is exceptionally well-positioned to represent plan sponsors and fiduciaries in every aspect of litigation.&rdquo;</p> <p> Seyfarth&rsquo;s ERISA &amp; Employee Benefits Litigation Practice Group represents many of the largest employers in the United States in complex, high-exposure matters. The team handles a broad range of ERISA class actions, including &ldquo;stock drop,&rdquo; &ldquo;401(k) fees,&rdquo; cash balance and other pension plan design cases, and retiree medical and other welfare benefits litigation. The group also has developed an expertise in challenging and defending withdrawal liability assessments under Title IV of ERISA.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/wcarplanadviser022618 Seyfarth's Workplace Class Action Report profiled in PlanAdviser http://www.seyfarth.com:80/news/wcarplanadviser022618 Mon, 26 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 26 story from PlanAdviser, &quot;Plaintiffs Won the Balance of ERISA Class Certification Motions in 2017.&quot; The number of Employee Retirement Income Security Act lawsuits winning class certification in 2017 far outstripped the number of suits within which class action status was denied; the Report&#39;s author Gerald Maatman offered detailed analysis of all the ongoing cases. You can read the <a href="https://www.planadviser.com/plaintiffs-won-balance-erisa-class-certification-motions-2017/">full article here</a>.</p> http://www.seyfarth.com:80/news/johnsonbloomberglaw Randel Johnson quoted in Bloomberg Law http://www.seyfarth.com:80/news/johnsonbloomberglaw Mon, 26 Feb 2018 00:00:00 -0400 <p> Randel Johnson was quoted in a February 26 story from Bloomberg Law, &quot;Why Business Is Glued to High Court&rsquo;s Public Sector Labor Case,&quot; on the U.S. Supreme Court oral arguments in Janus v. AFSCME where the justices are considering whether public unions can force nonmembers to finance the costs of bargaining for agreements that cover them. Johnson said that, whether it&rsquo;s money from the public sector or the private sector, it&rsquo;s money that goes into political war chests that are often used on Capitol Hill to oppose candidates or policy initiatives that the business community supports. You can read the <a href="https://biglawbusiness.com/why-business-is-glued-to-high-courts-public-sector-labor-case/">full article here</a>.</p> http://www.seyfarth.com:80/publications/LR022318 General Counsel Dishes Up Advice on 43 Charges, Including Google’s Decision to Terminate an Employee for Harassment and a Union’s Shadow Facebook Page http://www.seyfarth.com:80/publications/LR022318 Fri, 23 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In some early spring cleaning, last week the NLRB&rsquo;s Office of General Counsel released 43 memos authored by its Division of Advice meant to provide guidance to regional offices on pending charges. Here are some of the highlights that employers should not miss.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/23/general-counsel-dishes-up-advice-on-43-charges-including-googles-decision-to-terminate-an-employee-for-harassment-and-a-unions-shadow-facebook-page/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA022318-LE2 If Pain, Yes Gain—Part XLIV: Austin Becomes First City In Texas To Mandate Paid Sick Leave http://www.seyfarth.com:80/publications/MA022318-LE2 Fri, 23 Feb 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Catching the paid sick leave bug, on February 16, 2018, Austin became the first Texas city </em><em>&ndash; and the first Southern jurisdiction </em><em>&ndash; to pass a mandatory paid sick leave ordinance, which will take effect on October 1, 2018 for most employers.</em></p> <p> On February 16, 2018, Austin became the first city in Texas &ndash; and the first Southern jurisdiction &ndash; to enact a mandatory sick leave law (the &ldquo;Ordinance&rdquo;). The new Ordinance, which received an overwhelming 9-2 vote, will apply to <em>all</em> private employers. Over 200 residents testified at last week&rsquo;s City Council meeting, the majority expressing support for the legislation. The Ordinance will go into effect on October 1, 2018 for larger businesses, though all employers will eventually be required to comply. As discussed in greater detail below, the main requirements of the ordinance are as follows:</p> <ul> <li> Employees who perform 80 hours of work in Austin during a calendar year are eligible for paid sick leave (&ldquo;PSL&rdquo;).</li> <li> Employees earn one hour of PSL for every 30 hours worked, up to the applicable maximum accrual cap.</li> <li> Employees working for &ldquo;medium to large employers&rdquo; &ndash; those who have more than 15 employees &ndash; can accrue up to <strong>64 hours</strong> (eight days) of PSL. Employees working for &ldquo;small employers&rdquo; &ndash; with 15 or fewer employees &ndash; can accrue up to <strong>48 hours</strong> (six days) of PSL.</li> <li> The Ordinance allows employees to use PSL to care for covered family members&rsquo; physical or mental health conditions, as well as their own, and for covered purposes relating to domestic abuse or sexual assault.</li> </ul> <p> For businesses employing five employees or less, the Ordinance will not take effect until October 1, 2020. After the Ordinance&rsquo;s passage, members of the Texas State Legislature promised to introduce bills in the next legislative session that would preclude municipalities from enacting paid sick leave laws. However, it is unclear how quickly the Texas State Legislature will act.&nbsp;</p> <p> <strong>Which Employers Are Covered Under the Ordinance?</strong></p> <p> All private employers are covered.</p> <p> <strong>Which Employees Are Covered By the Ordinance?</strong></p> <p> An employee who works at least 80 hours in Austin during a calendar year. It includes work performed through a temporary or employment agency, but expressly excludes independent contractors and unpaid interns from coverage.</p> <p> <strong>How Much Sick Time Can Employees Accrue, Use and Carryover? </strong></p> <p> Employees will begin accruing PSL on October 1, 2018 or their commencement of employment, whichever is later. Employees can generally begin using PSL as soon as it is accrued. However, employers can restrict the use of PSL during the first 60 days of employment if the employee has a term of employment for at least one year.</p> <p> All sick time will accrue in hour-unit increments. As noted above, employers with more than 15 employees must allow employees to accrue one hour of PSL for every 30 hours worked up to a maximum of 64 hours. Employees of smaller employers (15 or fewer employees) will accrue PSL at the same rate, but up to a maximum of 48 hours. Employers do not need to provide more than the applicable yearly cap of PSL to an employee.</p> <p> Employers can put certain usage restrictions on the use of PSL, though the Ordinance does not set a minimum increment of use. The Ordinance states that employers are not required to allow the use of PSL on &ldquo;more than 8 calendar days in a given calendar year.&rdquo; Thus, for example, it would not allow employees to use their PSL allotment <em>exclusively</em> in &ldquo;half-day,&rdquo; four-hour increments (which would, for larger employers, result in 16 calendar days of use). The Ordinance does not otherwise address limitations on use of PSL.</p> <p> Employees can carry over all earned and unused PSL into the following year. However, for employers who decide to lump sum grant the maximum amount of PSL at the beginning of a year, carry over is not required.</p> <p> <strong>Under What Circumstances May Employees Use Sick Leave? </strong></p> <p> An employee may use PSL earned under the Ordinance for any of the following reasons:</p> <ul> <li> The employee&rsquo;s or family member&rsquo;s physical or mental illness, injury or health condition, preventative medical or health care;</li> <li> The employee&rsquo;s need to seek medical attention, seek relocation or obtain services of a victim services organization.</li> <li> Time off needed for an employee to participate in legal or court ordered action related to an incident of victimization from domestic abuse, sexual assault, or stalking involving the employee or employee&rsquo;s family member.</li> </ul> <p> The Ordinance defines &ldquo;family member&rdquo; to include an employee&rsquo;s spouse, child, parent, or any other individual related by blood or &ldquo;whose close association with the employee is the equivalent of a family relationship.&rdquo;</p> <p> <strong>What Notice Must Employees Provide When Using Sick Leave? </strong></p> <p> The Ordinance states that employers must provide earned PSL to an employee upon his or her request if that request is timely made &ldquo;before their scheduled work time.&rdquo; It does not provide any detail regarding the manner of such request. Employers cannot prevent the use of PSL for an unforeseeable qualified absence.</p> <p> <strong>Can Employers Require Employees to Provide Medical or Other Documentation?</strong></p> <p> For leave requests of more than three consecutive work days, employers can adopt &ldquo;reasonable verification procedures&rdquo; to establish an employee&rsquo;s qualification for PSL.</p> <p> <strong>What Notice Must Employers Provide?</strong></p> <p> Employers with employee handbooks or policy manuals must include notice of employees&rsquo; rights and remedies under the Ordinance. In addition, employers must post signs describing the Ordinance requirements in at least English and Spanish in a conspicuous place where notices to employees are customarily posted.</p> <p> On a monthly basis, employers are required to provide a statement (electronically or in writing) to each covered employee showing the amount of PSL accrued.</p> <p> <strong>Must Unused Sick Time Be Paid Upon Employment Separation?</strong></p> <p> The Ordinance is silent as to payment of PSL upon termination. Texas law does not require payment of any accrued and used sick time upon separation, absent an agreement stating otherwise.</p> <p> <strong>What Records Must Employers Maintain? </strong></p> <p> The Ordinance requires employers maintain records, in accordance with federal statutes, establishing the amount of earned sick time accrued and used by each covered employee. It does not, however, create a new requirement for certified payroll.</p> <p> <strong>Anti-Retaliation</strong></p> <p> The Ordinance prohibits employers from transferring, demoting, discharging, suspending, reducing hours, or threatening any employee for requesting or using PSL, or for reporting any violations of the Ordinance.</p> <p> <strong>What Employers Should Do</strong></p> <p> Employers with employees working in Austin should begin taking steps now to ensure their policies are in compliance with the Ordinance before the October 1, 2018 effective date. Things to consider include:</p> <ul> <li> Reviewing existing sick leave policies and either implement new policies or revise existing policies to satisfy the Ordinance.</li> <li> Reviewing policies on attendance, anti-retaliation, conduct, and discipline for compliance with the Ordinance.</li> <li> Monitor the Austin City Council website for information on the Ordinance, including any proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> As the paid sick leave landscape continues to expand, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj"><strong>click here</strong></a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/publications/TS022318 UK Reveals Its Future Approach to Trade Secrets http://www.seyfarth.com:80/publications/TS022318 Fri, 23 Feb 2018 00:00:00 -0400 <p> As a special feature of our blog&mdash;guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Jeremy Morton, Partner at Harbottle &amp; Lewis LLP, London, UK.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/international-2/uk-reveals-its-future-approach-to-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA022318-LE New York City Human Rights Law Imposes Stringent Accommodation Requirements for Businesses http://www.seyfarth.com:80/publications/MA022318-LE Fri, 23 Feb 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:&nbsp; On January 19, 2018, the New York City passed a law requiring that businesses engage in &ldquo;cooperative dialogue&rdquo; with individuals with disabilities and in other protected categories in the context of employment, housing and public accommodations.</em></p> <p> The New York City Council recently&nbsp;<a href="https://www1.nyc.gov/assets/cchr/downloads/pdf/amendments/Int.%20No.%20804-A.pdf">amended the New York City Human Rights Law</a>&nbsp;to expressly require that a broad cross section of businesses dialogue with individuals with disabilities and others regarding their accommodation needs. Specifically, housing providers, employers, and public accommodations must comply with a specific protocol for evaluating requests for accommodations by individuals with disabilities.&nbsp; While generally consistent with the requirement that employers engage in the &ldquo;interactive process&rdquo; under Title I of the Americans with Disabilities Act (&ldquo;ADA&rdquo;), the scope of the new law, which will take effect on October 15, 2018, is broader than existing federal requirements.</p> <p> <strong>The &ldquo;Cooperative Dialogue&rdquo; Obligation</strong></p> <p> <u>Here are the key components of the amendment:</u></p> <ul> <li> The new law applies to &ldquo;covered entities,&rdquo; which include housing providers (i.e. owners, landlords, and cooperative and condominium boards), employers, and places of public accommodation (i.e. retailers and other public-facing businesses).</li> <li> The amendment makes it an &ldquo;unlawful discriminatory practice&rdquo; for a covered entity to fail to engage in the &ldquo;cooperative dialogue,&rdquo; which refers to a written or oral dialogue concerning an individual&rsquo;s accommodation needs, the individual&rsquo;s requested accommodation and potential alternatives, and difficulties that potential accommodations may pose for the business.&nbsp;</li> <li> The cooperative dialogue requirement is not only triggered by requests for accommodation, but also when the covered entity is considered on notice of an individual&rsquo;s need for an accommodation.</li> <li> The determination must be made within a &ldquo;reasonable time&rdquo; (the statute does not provide any definition or other guidance as to what qualifies as &ldquo;reasonable&rdquo;).</li> <li> <strong>Significantly, employers and housing providers (not public accommodations) must provide a written final determination identifying any accommodation granted or denied. &nbsp;&nbsp;&nbsp;</strong></li> </ul> <p> <strong>What The Amendment Means For Businesses</strong></p> <p> <em>Housing Providers</em></p> <p> Housing providers must engage in the cooperative dialogue with unit owners, co-op shareholders, tenants, and other residents with disabilities, and issue a written decision.&nbsp; Although it is a best practice to memorialize these communications, some housing providers may not be accustomed to issuing written determinations in every case.&nbsp; These issues arise, for example, when residents &nbsp;have service or emotional support animals in &ldquo;no pet&rdquo; multi-family buildings, or where residents with mobility disabilities request alteration of common areas.&nbsp; The requirement of a timely written determination, and issues concerning when a housing provider is on &ldquo;notice&rdquo; of the need for a potential accommodation, are additional reasons why housing providers should confer with experienced counsel in addressing these issues. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <em>Employers</em></p> <p> Under the amendment, employers are required to engage in the cooperative dialogue with individuals seeking disability-related accommodations, religious accommodations, pregnancy-related accommodations, and accommodations for victims of domestic violence, sex offenses, or stalking.&nbsp; The amendment underscores the need to train managerial and human resource employees to respond appropriately to accommodation requests, including by identifying potential accommodations, interfacing effectively with employees, and memorializing the determination.</p> <p> <em>Places of Public Accommodation</em></p> <p> This category consists of public-facing businesses, including, for example, retailers, hotels, theaters, restaurants, and educational institutions.&nbsp; The ADA already requires that businesses make &ldquo;reasonable modifications&rdquo; to their policies, practices and procedures to facilitate access for patrons with disabilities.&nbsp; Moreover, for certain specific accommodations (such as allowing individuals with service animals to enter premises that prohibit animals), federal regulations and regulatory guidance set forth specific protocols for businesses to evaluate these requests.&nbsp; The interplay between the new law and existing federal requirements under Title III of the ADA is not entirely clear at this early stage.</p> <p> <strong>Conclusion</strong></p> <p> This is an opportune time for businesses to revisit their policies, practices, and procedures, as well as employee training programs, to ensure that they have a sufficient process in place for evaluating accommodation requests.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/BIO022218 Webinar: Bridging the Gap Between EU and U.S. Biotech Inventions Protection http://www.seyfarth.com:80/publications/BIO022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> This webinar is hosted by The Knowledge Group.<br /> <br /> <a href="https://www.bioloquitur.com/webinar-bridging-gap-eu-u-s-biotech-inventions-protection/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT022218 The Week in Weed: February 23, 2018 http://www.seyfarth.com:80/publications/TBT022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-23-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA022218-EB Massive Budget Deal Includes Important Changes to Hardship Withdrawal Rules http://www.seyfarth.com:80/publications/MA022218-EB Thu, 22 Feb 2018 00:00:00 -0400 <div> On Friday, February 9, 2018, the Bipartisan Budget Act of 2018 (the &ldquo;Act&rdquo;) was signed into law by President Trump, ending a brief government shutdown that began at 12:01 a.m. on Thursday, February 8, 2018.&nbsp; In addition to creating a two-year budget deal, the Act includes a number of important employee benefit changes &ndash; most notably to the hardship withdrawal rules for defined contribution plans &ndash; as generally described below.</div> <div> &nbsp;</div> <h3> Hardship Withdrawals</h3> <div> &nbsp;</div> <div> Effective for plan years beginning after December 31, 2018, the Act makes a number of changes to the rules governing hardship withdrawals from defined contribution plans (i.e., 401(k) and 403(b) plans).&nbsp; Notably, the Act:</div> <div> &nbsp;</div> <ul> <li> Directs the Department of Treasury to modify IRS regulations to remove the six month suspension requirement for employee contributions to all plans maintained by the employer following a hardship withdrawal.&nbsp;<br /> &nbsp;</li> <li> Amends the Internal Revenue Code to (1) expand the plan assets from which a participant may take a hardship withdrawal to include qualified nonelective contributions (QNECs), qualified matching contributions (QMACs), and earnings on QNECs, QMACs and employee contributions (even if these contributions and earnings were credited to the participant&rsquo;s account after 1988); and (2) provide that a participant may take a hardship withdrawal before requesting a plan loan.&nbsp;</li> </ul> <div> &nbsp;</div> <div> It is worth noting that this is not the first time that we have seen these changes proposed to the hardship withdrawal rules, as some or all of the changes were included in early versions of the tax reform bills that passed in the House and Senate last year.&nbsp; However, those proposed changes did not remain in the final tax reform bill as it worked its way through the legislative process and onto President&rsquo;s Trump desk for signature on December 22, 2017.&nbsp; (Please see our <a href="http://www.seyfarth.com/uploads/siteFiles/publications/TaxReformManagementAlert_Issue4_122117.pdf">previous alert</a> for more information on the final version of the tax reform bill.)</div> <div> &nbsp;</div> <div> It appears that the removal of the six month suspension requirement applies to hardship withdrawals actually made in plan years beginning after 2018.&nbsp; However, it&rsquo;s not clear whether the removal of the six month suspension requirement may also be applied to a suspension that begins in 2018 (or begins in early 2019 as the result of a hardship withdrawal that is made in late 2018), and continues into the 2019 plan year.&nbsp; It also seems that the expansion of sources available for hardship withdrawals and the ability to take a hardship withdrawal before requesting a plan loan may be optional, and not required changes.&nbsp; It would be helpful if the Department of Treasury provided some additional clarification.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Department of Treasury has one year from the enactment date of the Act (i.e., February 9, 2019) to modify the IRS regulations to remove the suspension requirement.&nbsp; In the meantime, it is important that employers consider these changes, and speak with their Seyfarth employee benefits attorney about next steps.&nbsp; We also expect that pre-approved plan providers will be reviewing their underlying base plan documents and adoption agreements in anticipation of these changes, and preparing amendments to these documents.&nbsp;&nbsp;</div> <div> &nbsp;</div> <h3> Additional Highlights</h3> <div> &nbsp;</div> <div> Some of the other notable retirement and health-related provisions within the Act include the following:</div> <div> &nbsp;</div> <ul> <li> <em><strong>Disaster Relief for California Wildfire Victims.</strong></em>&nbsp; The Act provides disaster relief to the victims of the 2017 California wildfires that is similar to the relief provided to victims of Hurricanes Harvey, Maria and Irma under legislation passed last year, including an increased limit for plan loans, the availability of &ldquo;qualified wildfire distributions&rdquo; of up to $100,000 without penalty and the ability to recontribute certain distributions.&nbsp; Plans are not required to offer this relief, but if they choose to do so, a plan amendment reflecting these provisions must be adopted no later than the last day of the first plan year beginning on or after January 1, 2019 (i.e., December 31, 2019 for calendar year plans).<br /> &nbsp;</li> <li> <em><strong>Relief for Improper IRS Levy on Retirement Accounts.</strong></em>&nbsp; Effective January 1, 2018, the Act allows an individual who receives a refund of retirement plan amounts that were subject to a wrongful levy by the IRS to recontribute those amounts (plus interest) to the plan or an IRA to prevent taxation.&nbsp; The amounts must be recontributed by the individuals&rsquo; tax filing deadline (including extensions) for the year of the refund to take advantage of this relief.<br /> &nbsp;</li> <li> <em><strong>Joint Select Committee on Solvency of Multiemployer Pension Plans.</strong></em>&nbsp; The Act establishes a joint Congressional committee to address solvency concerns facing certain multiemployer pension plans and the Pension Benefit Guaranty Corporation.<br /> &nbsp;</li> <li> <em><strong>Children&rsquo;s Health Insurance Program (CHIP).</strong></em>&nbsp; The Act extends CHIP for an additional four years.&nbsp; This extension, in conjunction with the six-year extension that was passed by Congress last month in the bill that ended the January 2018 government shutdown, means that CHIP will now be fully funded through at least fiscal year 2027.</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/nljbitar022218 Karen Bitar authored an article in the National Law Journal http://www.seyfarth.com:80/publications/nljbitar022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Karen Bitar authored a February 22 article in the National Law Journal, &quot;Opinion: MSU Faces Legal Risk as Culpability Questions Are Raised in the Nassar Scandal.&quot; MSU is in the public eye as the survivors of Nassar&#39;s abuse are beginning to question why the school refused to act after many of them came forward to report his misconduct. You can read the <a href="https://www.law.com/nationallawjournal/sites/nationallawjournal/2018/02/22/opinion-msu-faces-considerable-legal-risk-as-questions-are-raised-about-the-schools-culpability-in-the-nassar-scandal/">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL022218 Tenth Circuit Rules Reasonableness of Religious Accommodations Requires Factual Determination http://www.seyfarth.com:80/publications/EL022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a &ldquo;reasonable&rdquo; accommodation of an employee&rsquo;s observance of &ndash; and consequent inability to work on &ndash; the Sabbath. In this case, the Court found that the employer&rsquo;s reliance on neutral paid time off policies and voluntary swift swaps could not be determined &ldquo;reasonable&rdquo; as a matter of law. While the Court&rsquo;s decision remanding the case for further proceedings leaves the ultimate question of &ldquo;reasonableness&rdquo; open, the Court&rsquo;s analysis is instructive for employers facing similar religious accommodation requests. Tabura, et al. v. Kellogg, USA, Case No. 16-4135 (10th Cir. Jan. 17, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/the-tenth-circuit-says-that-the-reasonableness-of-religious-accommodations-relating-to-employees-observance-of-sabbath-requires-factual-determination/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022218 Washington State’s Legislature Rains on Non-Compete Critics’ Parade Yet Again http://www.seyfarth.com:80/publications/TS022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> For the third year in a row, the Washington state legislature failed to pass non-compete legislation, declining to take action on two separate bills that would have severely restricted employers&rsquo; ability to enforce former employees&rsquo; non-competition agreements.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/noncompete-enforceability/washington-states-legislature-rains-on-non-compete-critics-parade-yet-again/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/doyles022218 Seyfarth Earns Top Recognition in 2018 Doyles Guide in Australia http://www.seyfarth.com:80/news/doyles022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Seyfarth is pleased to announce that our Australian team were recognized again as leading employment lawyers in the 2018 <em>Doyles</em> Guide.</p> <p> The firm was named a first tier &lsquo;Leading Employment Law Firm (Employer Representation)&rsquo; in Melbourne and Sydney for the second year in a row. In addition, <em>Doyles</em> recognised the firm as a first tier &ldquo;Workplace Health &amp; Safety Law Firm&rdquo; in Melbourne and Sydney. You can <a href="http://doylesguide.com/?s=Seyfarth+Shaw">read more here</a>.</p> <p> A number of our partners were recognized by the guide, as leaders in their fields.</p> http://www.seyfarth.com:80/news/forbesvu022218 Minh Vu quoted in Forbes http://www.seyfarth.com:80/news/forbesvu022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Minh Vu was quoted in a February 22 story from Forbes, &quot;An &#39;Onslaught&#39; Of Lawsuits From The Blind Is Happening; Blame Obama&#39;s and Trump&#39;s DOJ,&quot; on how the U.S. Department of Justice has yet to release long-promised clarifications on the Americans with Disabilities Act that would help judges handle lawsuits that claim businesses&rsquo; websites are not handicap-accessible. Vu said that the DOJ, under both the Obama and Trump administrations, is responsible for the onslaught of these lawsuits. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2018/02/22/an-onslaught-of-lawsuits-from-the-blind-is-happening-blame-obamas-and-trumps-doj/#37ce101e262a">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360022218 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360022218 Thu, 22 Feb 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a February 22 story from Law360, &quot;4 Things To Know As NLRB Joint Employer Saga Continues,&quot; on the National Labor Relations Board inspector general&#39;s recent conclusion that board member William Emanuel&#39;s ties to a law firm should have precluded him from voting to tighten the board&rsquo;s test for determining joint employment. Babson said he believes the inspector general&#39;s report is dubious at best and reaches the wrong conclusions about what the standard for recusal should be.</p> http://www.seyfarth.com:80/news/oracleada022118 Seyfarth's ADA Title III News & Insights Blog referenced in The Oracle http://www.seyfarth.com:80/news/oracleada022118 Wed, 21 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III News &amp; Insights Blog was referenced in a February 21 story from The Oracle, &quot;New bill targets the disabled,&quot; on H.R.620 &ndash; the ADA Education and Reform Act. Seyfarth&#39;s ADA Title III News &amp; Insights Blog estimated that ADA Title III lawsuits increased by 37 percent in 2016. You can read the <a href="http://www.usforacle.com/news/view.php/1032374/New-bill-targets-the-disabled-">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS022118 In-House Counsel Survey Results: Increased Risk for Trade Secrets http://www.seyfarth.com:80/publications/TS022118 Wed, 21 Feb 2018 00:00:00 -0400 <p> Friends of our blog recently published a first-of-its-kind survey about how in-house counsel view various issues in trade secret law. Approximately 80 in-house counsel completed the 20-question survey, and the results were interesting. More than 75% of respondents said the risks to their company&rsquo;s trade secrets have increased over the past 10 years, with 50% saying the risks have increased significantly. For another example, respondents described their company&rsquo;s current and former employees as those most likely to try to steal that company&rsquo;s trade secrets.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/in-house-counsel-survey-results-increased-risk-for-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS022118a Robert Milligan on the Inaugural Steering Committee of the Sedona Conference’s New Working Group 12 on Trade Secrets http://www.seyfarth.com:80/publications/TS022118a Wed, 21 Feb 2018 00:00:00 -0400 <p> To develop consensus and non-partisan principles for best practices in managing trade secret litigation and well-vetted recommendations for consideration in protecting trade secrets, recognizing that every organization, both large and small, has and uses trade secrets; that trade secret disputes frequently intersect with other important public policies such as employee mobility and international trade; and that trade secret disputes are litigated in both state and federal courts.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/robert-milligan-on-the-inaugural-steering-committee-of-the-sedona-conferences-new-working-group-12-on-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP022118 Robots Are Taking Our Jobs! UBI and the Future Workplace http://www.seyfarth.com:80/publications/CP022118 Wed, 21 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: From Mark Zuckerberg to the mayor of Stockton, the concept of Universal Basic Income is catching fire. What is this newfangled concept, and what can employers expect in the new emerging economy?<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/21/robots-are-taking-our-jobs-ubi-and-the-future-workplace/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS022118 Has the “outer limit” contract reached its expiry date? http://www.seyfarth.com:80/publications/WLS022118 Wed, 21 Feb 2018 00:00:00 -0400 <p> The key takeout is that if the employee does not voluntarily leave employment and the driving force causing the employment to end is a decision or act of the employer, it could be a &ldquo;dismissal&rdquo;, even if the employment ends on the agreed expiry date. In addition to unfair dismissal, this change could also have broader impacts, for example:<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/has-the-outer-limit-contract-reached-its-expiry-date/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM022118-LE Supreme Court Unanimously Confirms Scope of Whistleblower Protection Under Dodd-Frank http://www.seyfarth.com:80/publications/OMM022118-LE Wed, 21 Feb 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> The United States Supreme Court ruled 9-0 today that whistleblowing employees seeking to sue for retaliation under the Dodd-Frank Wall Street Reform and Consumer Protection Act must bring their concerns to the Securities and Exchange Commission before suing their employer.<a href="#_ftn1" name="_ftnref1" style="background-color: rgb(255, 255, 255);" title="">[1]</a>&nbsp; </em>Digital Realty Trust v. Somers<em>, U.S. S. Ct. Case No. 161276 (Feb. 21, 2018).&nbsp; In an opinion by Justice Ruth Bader Ginsburg, the High Court found that Dodd-Frank&#39;s anti-retaliation provision does not extend to an individual who has not first reported a violation of securities laws to the SEC.&nbsp;&nbsp;</em></p> <p> The Court reached this conclusion through straightforward statutory interpretation. &nbsp;Dodd-Frank, the Court first observed, explicitly defines a &ldquo;whistleblower&rdquo; as an individual who provides pertinent information &ldquo;to the Commission.&rdquo; Section 78u-6(a)(6). The statute further instructs that this &ldquo;whistleblower&rdquo; definition &ldquo;shall apply&quot; &quot;[i]n this section&quot;&mdash;that is, throughout Section 78u-6. &nbsp;Consequently, the Court concluded, the statute provides &ldquo;an unequivocal answer&rdquo;&mdash;the only person who can be a whistleblower under Dodd-Frank is an individual who provides information to the SEC.</p> <p> Also in Section 78u-6 are retaliation protections for &ldquo;whistleblowers&rdquo; who engage in one of three types of conduct.&nbsp; Section 78u-6(h)(1)(A).&nbsp; These protections are available to whistleblowers, but not to employees who only complain internally to their employer without also going to the SEC.&nbsp; The Court held, &ldquo;an individual who falls outside the protected category of &lsquo;whistleblowers&rsquo;&rdquo; (<em>i.e.</em>, someone who has not gone to the SEC) is &ldquo;ineligible&rdquo; for protection under the statute even if they engage in the conduct that would otherwise be protected.</p> <p> As the Court found the statutory definition of &ldquo;whistleblower&rdquo; to be &ldquo;clear and conclusive,&rdquo; it declined to &ldquo;accord deference to the contrary view advanced by the SEC.&rdquo;&nbsp; For similar reasons, the Court rejected the invitation of the plaintiff/employee and the U.S. Solicitor General to &ldquo;construe the term &lsquo;whistleblower&rsquo; in its &lsquo;ordinary sense,&rsquo; <em>i.e.</em>, without any SEC-reporting requirement.&rdquo; &nbsp;</p> <p> There were two concurring opinions that the liberal and conservative wings of the Court used to debate whether legislative intent, as found in a Senate Report, should be used to interpret statutes. Justice Sotomayor, joined by Justice Breyer, wrote that &ldquo;even when, as here, a statute&rsquo;s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text.&rdquo;&nbsp; On the other hand, Justice Thomas, joined by Justices Alito and Gorsuch, found no use for legislative history, honing tightly to the words of the statute rather than any extraneous information associated with the statute&#39;s debate or passage in the legislature.&nbsp; Despite this disagreement, the entire Court agreed with the ultimate outcome in this matter.</p> <p> This is a wonderful victory for employers that are governed by the Dodd-Frank Act. Employees still have many ways to secure whistleblower protections, such as under the Sarbanes-Oxley Act and state laws that protect whistleblowers from retaliation.&nbsp; But this opinion reinforces the importance of rigorous statutory interpretation, and is a clear triumph for simple textualism over policy.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a>&nbsp; Seyfarth Shaw represented the employer in this case before the Supreme Court, the Ninth Circuit and the district court.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM022118-HL Texas and CMS Allow More Expansive Uses of Telemedicine http://www.seyfarth.com:80/publications/OMM022118-HL Wed, 21 Feb 2018 00:00:00 -0400 <p> <em>This is the second in a series of alerts from Seyfarth&rsquo;s <a href="http://www.seyfarth.com/healthcare" target="_blank">Health Law</a> practice highlighting significant changes in health care regulations and policy as providers and other industry participants enter 2018.</em></p> <p> Changes to both federal and Texas law which occurred in 2017 will broaden the circumstances under which physicians can make use of telemedicine services.</p> <p> In Texas, a bill (SB 1107) which was passed in May 2017 and effective as of September 1, 2017 marks the end of a long and tortured fight between the Texas Medical Board (&ldquo;TMB&rdquo;) and Teladoc, a national telehealth provider.&nbsp; Teladoc had waged a years-long campaign against the restrictive Texas telemedicine rules before SB 1107 was signed into law.&nbsp; Prior to the new statute and new rules promulgated by the TMB on September 15, 2017, Texas required an initial face-to-face consultation before a practitioner could utilize telemedicine technology.&nbsp; This seriously limited the effectiveness and potential of telemedicine, particularly in Texas&rsquo; rural counties, where physicians and specialists are scarce.</p> <p> The new law (codified in Chapter 111 of the Texas Occupations Code) allows physicians (or other professionals acting under their supervision) to form a valid practitioner-patient relationship via telemedicine technology, without the need for an initial face-to-face meeting or in-person follow-up visit.&nbsp; Physicians must provide patients with information and guidance about obtaining follow-up care, and with the consent of the patient, provide medical records and other information to the patient&rsquo;s primary care physician (if applicable).&nbsp; The TMB will require that all services and professionals providing services via telemedicine meet the same standard of care as if performed in an in-person setting.&nbsp; Importantly, under further revisions to the Texas Insurance Code (which were also part of SB 1107), Texas now prohibits insurers from excluding telemedicine services from coverage if the same service would have been covered if performed in-person, as well as any increases to deductibles, copayments or coinsurance for telemedicine services.</p> <p> The new TMB rules promulgated weeks after SB 1107 went into effect deleted many of the definitions that were key to the more restrictive regulations.&nbsp; The 2017 TMB rules go into greater detail than SB 1107 including on the issue of issuing prescriptions through telemedicine services.&nbsp; As with other types of health care services, the issuance of prescriptions is subject to the same standard of care as a prescription issued after an in-person visit.&nbsp; However, in a nod to concerns about the ongoing opioid crisis, treatment of chronic pain with scheduled drugs via telemedicine is prohibited.&nbsp; The rules likewise emphasize that telemedicine services must meet the same privacy and medical recordkeeping requirements as in-person services, consistent with both Texas and federal law.</p> <p> CMS, which, like Texas, has also restricted coverage for telemedicine services, introduced new opportunities for telemedicine as part of its bundled care payment models focus on hip and knee replacement surgeries.&nbsp; While participating in these programs, hospitals could utilize telehealth as part of a post-operative plan of care regardless of the patient&rsquo;s location (including the patient&rsquo;s home), whereas previously Medicare restricted telemedicine to uses only between two participating facilities.&nbsp; <a href="http://www.seyfarth.com/publications/OMM011018-HL" target="_blank">With CMS recently canceling or reducing the scope of certain bundled payment models</a>, it remains to be seen how much these changes will affect the use of covered telemedicine services.</p> <p> Below is a flowchart showing how and when a physician (or other practitioner) can form a valid practitioner-patient relationship under the new TMB rules.</p> <p align="center"> <img src="http://www.seyfarth.com/dir_docs/publications/OMM022118-HL_Chart.png" width="617px" /></p> http://www.seyfarth.com:80/publications/FE022118 AI Joins the #MeToo Movement http://www.seyfarth.com:80/publications/FE022118 Wed, 21 Feb 2018 00:00:00 -0400 <p> That&rsquo;s the welcome from Spot, a free, web-based chatbot that was recently launched to help individuals report workplace discrimination and harassment. Spot promises users a &ldquo;confidential, unbiased platform&rdquo; to report unwelcome conduct in the workplace, and uses cognitive technology and natural language processing to engage the user with questions about the reported conduct. Spot then privately records the exchange that can later be shared, should the complainant chose to do so.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/21/ai-joins-the-metoo-movement">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ClientAlert022018-TEO Be the Next Paul Newman - Give 100% of Your Business to Your Private Foundation, Newman’s Own Style http://www.seyfarth.com:80/publications/ClientAlert022018-TEO Tue, 20 Feb 2018 00:00:00 -0400 <p class="BodySingle"> The &ldquo;Bipartisan Budget Act of 2018&rdquo; added the &ldquo;Newman&rsquo;s Own&rdquo; exception to the private foundation excess business holdings rule, allowing business owners to make a charitable contribution of 100% of a business to their private foundation, and keep it there in one piece.&nbsp; The business must then give all of its profits &ldquo;upstream&rdquo; to the private foundation, and meet certain other requirements. &nbsp;The new law creates a significant planning opportunity for business owners seeking to convert their company into a social enterprise 100% owned and controlled by their private foundation.<o:p></o:p></p> <p class="BodySingle"> Notwithstanding the 100% private foundation ownership, equity-based incentive compensation can still be utilized by the business, including through the use of phantom stock options.&nbsp; Non-voting stock or options can also be utilized, which could prove highly valuable in the case of a sale of the business by the foundation or an initial public offering (IPO) of 80% or more of the foundation&rsquo;s stock in the business enterprise.&nbsp; In other words, the business can continue to operate and provide incentive compensation as a for-profit company &ndash; a wholly-owned taxable subsidiary that dividends its profits to its parent private foundation.<o:p></o:p></p> <p class="BodySingle"> Also, notwithstanding the independent ownership rules, it appears that the business owner making the contribution can retain ultimate control of the private foundation by retaining the right to appoint and remove a majority or more of the private foundation&rsquo;s board of directors.<o:p></o:p></p> <p class="BodySingle"> In the absence of this exception to the excess business holdings rules, the Newman&rsquo;s Own Foundation would have been forced to sell most of its now nearly ten years old 100% ownership interest in the ubiquitous &ldquo;Newman&rsquo;s Own&rdquo; salad dressing and pasta sauce company.<o:p></o:p></p> <p class="BodySingle"> Note that the parameters of the Newman&rsquo;s Own exception do not need to be met during the 5 or 10 year period during which excess business holdings acquired other than by purchase, such as by gift or bequest, are not yet subject to tax.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Parameters of the &ldquo;Newman&rsquo;s Own&rdquo; Exception</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The tax on excess business holdings no longer applies to a private foundation&rsquo;s holdings in any business enterprise that meets certain ownership rules, distributes all profits to the parent private foundation, and operates independently of the foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> <strong><i>100% Voting Stock Ownership </i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> The ownership requirements are satisfied if: <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (1) 100% of the voting stock in the business enterprise is held by the private foundation at all times during the taxable year; and <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (2) 100% of the private foundation&rsquo;s ownership interests in the business enterprise were acquired other than by purchase (i.e., by gift or bequest).<o:p></o:p></p> <p class="BodySingle"> <strong><i>&ldquo;All Profits to Charity&rdquo;</i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> No later than 120 days after the close of the taxable year, the business enterprise must distribute an amount equal to its &ldquo;net operating income&rdquo; for such taxable year to the private foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> For this purpose, &ldquo;net operating income&rdquo; is the gross income of the business enterprise for the taxable year, reduced by:<o:p></o:p></p> <ol> <li class="Number1"> the deductions for the taxable year directly connected with the production of the income,<br /> <br /> <o:p></o:p></li> <li class="Number1"> the federal income tax imposed on the business enterprise for the taxable year, and<br /> <br /> <o:p></o:p></li> <li class="Number1"> an amount for a reasonable reserve for working capital and other business needs of the business enterprise.<br /> <o:p></o:p></li> </ol> <p class="BodySingle"> <br /> The foundation&rsquo;s receipt of these required dividend distributions is exempt from federal income tax, but the income will be subject to the 2% (or 1%, in certain cases) private foundation excise tax on net investment income.<o:p></o:p></p> <p class="BodySingle"> <strong><i>Independent Operation</i></strong><i><o:p></o:p></i></p> <p class="BodySingle"> The following three independent operation requirements must be met at all times during the taxable year: <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (1) No substantial contributor to the private foundation, or family member of such a contributor, is a director, officer, trustee, manager, employee, or contractor of the business enterprise (or an individual having powers or responsibilities similar to any of the foregoing).&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> In other words, the private foundation&rsquo;s contributing family cannot be on the business enterprise side in any capacity.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (2) At least a majority of the board of directors of the private foundation are not also (i) directors or officers of the business enterprise or (ii) family members of a substantial contributor to the private foundation.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> So, a minority of the private foundation board can be made up of family members of a substantial contributor, and a minority of the foundation&rsquo;s board (the non-substantial contributor/family directors) can also serve as directors and officers of the business enterprise.&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> While the law is silent as to control of the private foundation itself, presumably the foundation, as a nonprofit corporation, could have substantial contributors or their family members serve as statutory members of the private foundation.&nbsp; Those statutory members could have the right to appoint and remove all of the foundation&rsquo;s directors, such that the contributing family maintains ultimate control although constituting only a minority of the foundation&rsquo;s board.&nbsp; Alternatively, the substantial contributor and/or his or her family could hold designation rights with respect to the foundation&rsquo;s board of directors.&nbsp; Of course, regardless of the source of their election, appointment or designation to the board, the directors owe their fiduciary duties to the private foundation and its charitable purposes.<o:p></o:p></p> <p class="BodySingle" style="margin-left:.5in"> (3) There is no loan outstanding from the business enterprise to a substantial contributor to the private foundation or a family member of such a contributor.<o:p></o:p></p> <p class="BodySingle"> Note that the Newman&rsquo;s Own exception does not apply to donor advised funds and certain supporting organizations that are subject to the excess business holdings rules, charitable trusts, or split-interest trusts.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Excess Business Holdings (Generally)</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The excess business holdings rules applicable to private foundations and certain deemed private foundations (e.g., donor advised funds and certain supporting organizations) are designed to limit an individual&rsquo;s ability to retain control of a business enterprise by establishing a private foundation and transferring substantial ownership of the business to such private foundation.<o:p></o:p></p> <p class="BodySingle"> Section 4943 of the Internal Revenue Code limits the percentage interest that a private foundation and its disqualified persons can together own in a business enterprise to 20%, though the limit is increased to 35% if the foundation can demonstrate that an unrelated person or persons have effective control over the business enterprise.&nbsp; A foundation generally has a 5-year period to dispose of excess business holdings acquired other than by purchase, such as by gift or bequest, without being subject to tax on such excess business holdings.&nbsp; This 5-year period may be extended an additional 5 years in limited circumstances, such as an unusually large gift or bequest of diverse business holdings or holdings with complex corporate structures.<o:p></o:p></p> <p class="BodySingle"> The initial tax is equal to 5% of the value of the excess business holdings held during the foundation&rsquo;s applicable taxable year. &nbsp;After the initial tax has been imposed, an excise tax of 200% of the excess holdings is imposed on the foundation if it has not disposed of the remaining excess business holdings by the end of the applicable taxable period.&nbsp; This 200% confiscatory tax ensures that private foundations seek to immediately dispose of any excess business holdings.<o:p></o:p></p> <p class="BodySingle"> <span style="font-size:14px;"><b>Conclusion</b></span><b><o:p></o:p></b></p> <p class="BodySingle"> The new exception appears best suited to situations where an individual is seeking to transfer ownership of a wholly-owned business to a private foundation by gift or bequest, and for the business to pay dividends of all of its profits to the foundation.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Notwithstanding the independent operation requirements, the contributor and his or her family can still maintain ultimate control of the private foundation (through statutory membership interests or director designation rights) while the private foundation retains 100% of the voting interest in the business enterprise.<o:p></o:p></p> <p class="BodySingle"> Also, as a for-profit, the business enterprise can utilize &ldquo;phantom&rdquo; stock or similar equity-based incentive compensation plans for senior executives and other key employees as an alternative to stock options or an employee stock ownership plan (ESOP).&nbsp; Non-voting stock or options can also be utilized and eventually monetized upon a sale of the business by the foundation or an initial public offering (IPO) of 80% or more of the foundation&rsquo;s stock in the business enterprise.&nbsp;&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/LR022018 The Federal Antitrust and Labor Law Double Bind: The Ninth Circuit Hears Oral Argument in Challenge to Seattle’s Ordinance Granting Collective Bargaining Rights to “Gig-Economy” Drivers http://www.seyfarth.com:80/publications/LR022018 Tue, 20 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On Monday, February 5, 2018, the U.S. Chamber of Commerce&rsquo;s lawsuit challenging the City of Seattle&rsquo;s ordinance allowing independent-contractor drivers to engage in collective bargaining was before the U.S. Court of Appeals for the Ninth Circuit for oral argument. The outcome of the litigation could have a far reaching impact on the growth of the &ldquo;gig-economy.&rdquo;<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/20/the-federal-antitrust-and-labor-law-double-bind-the-ninth-circuit-hears-oral-argument-in-challenge-to-seattles-ordinance-granting-collective-bargaining-rights-to-gig-economy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL022018 Eighth Circuit: Employer May “Elaborate” on Explanation for Termination During Litigation http://www.seyfarth.com:80/publications/EL022018 Tue, 20 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a recent decision, the Eighth Circuit held that Title VII does not require an employer to provide an employee a reason for termination at the time of termination, and that an employer is not strictly bound in litigation to whatever reasons may have been provided at the time of termination. Rooney v. Rock Tenn Converting Company, et. al., No,. 16-3631 (8th Cir. Jan. 9, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/eighth-circuit-employer-may-elaborate-on-explanation-for-termination-during-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE022018 District Court Upholds OSHA’s Refusal to Permit Compliance Officer’s Testimony in Personal Injury Case http://www.seyfarth.com:80/publications/WSE022018 Tue, 20 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: OSHA may refuse to allow its compliance officers to testify in civil tort proceedings.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/litigation/district-court-upholds-oshas-refusal-to-permit-compliance-officers-testimony-in-personal-injury-case/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/babsonbloomberg022018 Marshall Babson quoted in Bloomberg http://www.seyfarth.com:80/news/babsonbloomberg022018 Tue, 20 Feb 2018 00:00:00 -0400 <p> Marshall Babson was quoted in a February 20 story from Bloomberg, &quot;Trump Appointee &lsquo;Conflict&rsquo; Throws Key Labor Ruling Into Doubt,&quot; on how the NLRB inspector general David Berry says a Republican board member should have recused himself from a decision protecting companies. Babson said that Berry&rsquo;s conclusions are erroneous, required neither by the law or by ethics requirements. You can read the <a href="https://www.bloomberg.com/news/articles/2018-02-20/trump-appointee-conflict-throws-key-labor-ruling-into-doubt">full article here</a>.</p> http://www.seyfarth.com:80/publications/BIO022018 Webinar: Biosimilar Litigation and Your BPCIA Compliance: Key Strategies In Light of AbbVie v. Boehringer http://www.seyfarth.com:80/publications/BIO022018 Tue, 20 Feb 2018 00:00:00 -0400 <p> This webinar is hosted by The Knowledge Group.<br /> <br /> <a href="https://www.bioloquitur.com/webinar-biosimilar-litigation-bpcia-compliance-key-strategies-light-abbvie-v-boehringer/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/paparellicbs021818 Angelo Paparelli interviewed on CBS News http://www.seyfarth.com:80/news/paparellicbs021818 Sun, 18 Feb 2018 00:00:00 -0400 <p> Angelo Paparelli was interviewed February 18th on CBS News, &quot;Ice Cracking Down On Employers Hiring Undocumented Workers.&quot; You can watch the <a href="https://www.cbsnews.com/video/ice-cracking-down-on-employers-hiring-undocumented-workers/">interview here</a>.</p> http://www.seyfarth.com:80/news/olsoncnbc021818 Camille Olson quoted in CNBC.com http://www.seyfarth.com:80/news/olsoncnbc021818 Sun, 18 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 18 story from CNBC.com, &quot;The gig economy is lacking in this one important respect,&quot; on a recent Senate hearing on &quot;Exploring the &#39;Gig Economy&#39; and the Future of Retirement Savings,&quot; where economists and business leaders proposed ways to fix the alarming reality that many people in this expanding labor market are not preparing for old age. Olson said that there is a near-perfect storm of reasons for why retirement saving is difficult for independent contractors. You can read the <a href="https://www.cnbc.com/2018/02/16/gig-economy-workers-must-get-creative-to-save-for-retirement.html">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc021718 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc021718 Sat, 17 Feb 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed February 17th on CBC News Network, &quot;Special Counsel Robert Mueller indicts 13 Russian nationals.&quot; Boutros discussed the Mueller investigation&#39;s indictment of 13 Russian nationals over meddling in the 2016 presidential election. You can watch the <a href="http://www.cbc.ca/player/play/1168599107549">full interview here</a>.</p> http://www.seyfarth.com:80/news/paparellicnbc021618 Angelo Paparelli quoted in CNBC.com http://www.seyfarth.com:80/news/paparellicnbc021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a February 16 story from CNBC.com, &quot;US agents arrest more than 200 undocumented immigrants, target 122 businesses in California sweep.&quot; Paparelli said that this seems to be a battle between California as a state and the federal government. You can read the <a href="https://www.cnbc.com/2018/02/16/federal-immigration-raids-in-southern-california-target-122-businesses.html">full article here</a>.</p> http://www.seyfarth.com:80/news/vasquezsantosshrm021618 Jinouth Vasquez Santos quoted in SHRM http://www.seyfarth.com:80/news/vasquezsantosshrm021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Jinouth Vasquez Santos was quoted in a February 16 story from SHRM, &quot;Navigate Workers&rsquo; Medical and Recreational Use of Marijuana,&quot; on how California businesses can refuse to hire anyone who fails a pre-employment drug test, provided businesses require all applicants to be tested. Vasquez Santos said that California employers generally can require random drug testing for employees only if they can make a strong argument that drug testing would protect public safety. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/ca-medical-recreational-use-marijuana.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/WLS021618 Bargaining levers – a legal pendulum http://www.seyfarth.com:80/publications/WLS021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> To be fair, finding the right balance in a system which directly effects wage outcomes is difficult. But Labor&rsquo;s legislation cemented collective bargaining as a central platform for agreement making and did away with a statutory regime to make individual agreements. In doing so unions were given the best legislative platform to date to compel employers to bargain &ndash; even with a union that has a minority membership interest in the business.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/bargaining-levers-a-legal-pendulum/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS021618 Top Developments/Headlines in Trade Secret, Computer Fraud, and Non-Compete Law in 2017/2018 http://www.seyfarth.com:80/publications/TS021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Continuing our annual tradition, we present the top developments/headlines for 2017/2018 in trade secret, computer fraud, and non-compete law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/top-developments-headlines-in-trade-secret-computer-fraud-and-non-compete-law-in-2017/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR021618 NLRB Still Seeking Input on Possible Rescission of “Quickie” Election Rule http://www.seyfarth.com:80/publications/LR021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The business community has another opportunity to convince the NLRB to rescind the expedited election rules that have been wreaking havoc on workplaces since 2014, after the agency extended the public comment period to March 19, 2018.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/16/nlrb-still-seeking-input-on-possible-rescission-of-quickie-election-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR021618a NLRB Still Seeking Input on Possible Rescission of “Quickie” Election Rule http://www.seyfarth.com:80/publications/LR021618a Fri, 16 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The business community has another opportunity to convince the NLRB to rescind the expedited election rules that have been wreaking havoc on workplaces since 2014, after the agency extended the public comment period to March 19, 2018.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/16/nlrb-still-seeking-input-on-possible-rescission-of-quickie-election-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/bwccr021618 Katherine Perrelli, Andrew Boutros and John Schleppenbach authored an article in Bloomberg White Collar Crime Report http://www.seyfarth.com:80/publications/bwccr021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Katherine Perrelli, Andrew Boutros and John Schleppenbach authored a February 16 article in Bloomberg White Collar Crime Report, &quot;Hunting Season Begins: DOJ Warns of Criminal Actions Against Companies with Agreements Not to Poach Competitors&#39; Employees.&quot; You can read the <a href="http://www.seyfarth.com/dir_docs/publications/PoachEmployeesPublishWCR.PDF">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/boutrosbloombergwccr021618 Andrew Boutros authored an article in Bloomberg White Collar Crime Report http://www.seyfarth.com:80/publications/boutrosbloombergwccr021618 Fri, 16 Feb 2018 00:00:00 -0400 <p> Andrew Boutros authored a February 16 article in Bloomberg White Collar Crime Report, &quot;The Evolution and Status of &lsquo;Carbon Copy Prosecutions&rsquo;: An Anticorruption Phenomenon Here to Stay.&quot; You can read the <a href="https://dpntax5jbd3l.cloudfront.net/images/content/1/8/v5/186752/BoutrosFunkCarbonCopyPublishWCR.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE021518 California Supreme Court Clears the Way for Employee Cal/OSHA Lawsuits http://www.seyfarth.com:80/publications/WSE021518 Thu, 15 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-supreme-court-clears-the-way-for-employee-cal-osha-lawsuits/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021518 California Continues to Shine Under ICE’s Spotlight http://www.seyfarth.com:80/publications/IMM021518 Thu, 15 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Following the wave of Notices of Inspection (NOI) at 77 Northern California businesses last month, Immigration and Customs Enforcement&rsquo;s (ICE) Homeland Security Investigations (HSI) agents are continuing to spread the cheer with NOIs targeting businesses in Southern California this week. Serving NOIs throughout the greater Los Angeles area, the inspections appear industry agnostic. The NOIs delivered by HSI agents and auditors notify businesses that they must produce their employees&rsquo; Forms I-9, Employment Eligibility Verifications within 72 hours. The notices often include a list requesting additional company information and documents as well.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/california-continues-to-shine-under-ices-spotlight/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021518a March 2018 Visa Bulletin http://www.seyfarth.com:80/publications/IMM021518a Thu, 15 Feb 2018 00:00:00 -0400 <p> Where are we this month?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/march-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT021518 The Week in Weed: February 16, 2018 http://www.seyfarth.com:80/publications/TBT021518 Thu, 15 Feb 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-16-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL021518 Back Pay Burden-New Trial Ordered Where Jury Slashed Plaintiff’s Request for Back Pay http://www.seyfarth.com:80/publications/EL021518 Thu, 15 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Sixth Circuit ordered a new trial in a Title VII case where plaintiff presented evidence he was entitled to back pay, the employer presented no evidence to the contrary, and the jury only awarded a small percentage of plaintiff&rsquo;s ask. In ordering the new trial, the Sixth Circuit noted that the jury cannot &ldquo;infer&rdquo; the plaintiff was entitled to less because it is the employer&rsquo;s burden to show plaintiff did not seek out new employment after termination. Pittington v Great Smoky Mountain, No. 17-5590 (6th Cir. Jan. 24, 2018).<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/back-pay-burden-new-trial-ordered-where-jury-slashed-plaintiffs-request-for-back-pay/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/liesit021518 Mark Lies quoted in Inside Towers http://www.seyfarth.com:80/news/liesit021518 Thu, 15 Feb 2018 00:00:00 -0400 <p> Mark Lies was quoted in a February 15 story from Inside Towers, &quot;Stop Work If You See a Hazard On A Job Site.&quot; Lies said that if any one employer created a hazard and exposed workers to that hazard, they&rsquo;re liable. You can read the <a href="https://insidetowers.com/stop-work-see-hazard-job-site/">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbna021418 Brett Bartlett quoted in Bloomberg BNA Daily Labor Report http://www.seyfarth.com:80/news/bartlettbna021418 Wed, 14 Feb 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in a February 14 story from Bloomberg BNA Daily Labor Report, &quot;Tip-Sharing Rule Leaves Lawyers Hungry for Certainty,&quot; on how restaurants could see a drop in litigation in the short term as the Labor Department considers a plan to rescind an Obama-era regulation that governs &ldquo;tip pooling,&rdquo; or sharing of tips, among restaurant employees. Bartlett said that there could be a downturn in new lawsuits over tipped wages filed in the next few months given the intrinsic uncertainty surrounding the rules.</p> http://www.seyfarth.com:80/publications/TBT021418 The High Court Could Review the IRS’ Power to Investigate and Determine Whether Cannabis Dispensaries Engage in Illegal Activities http://www.seyfarth.com:80/publications/TBT021418 Wed, 14 Feb 2018 00:00:00 -0400 <p> In October 2017, Green Solution Retail, Inc., a cannabis retailer, petitioned the U.S. Supreme Court (SCOTUS) to review a decision which held that the Anti-Injunction Act and Declaratory Judgment Act barred Green Solution&rsquo;s request to enjoin the IRS from enforcing &sect; 280E of the Internal Revenue Code.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-high-court-could-review-the-irs-power-to-investigate-and-determine-whether-cannabis-dispensaries-engage-in-illegal-activities/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP021418 California Employers Beware: W-2 Phishing Scams Skyrocket During Tax Season http://www.seyfarth.com:80/publications/CP021418 Wed, 14 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Employers have been scammed into sending sensitive W-2 information to malicious third parties. This article outlines the key steps California employers must immediately take if subject to this unfortunate event.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/14/california-employers-beware-w-2-phishing-scams-skyrocket-during-tax-season/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021318a Updating Guidelines And Asking For Dough: EEOC’s 2018-2022 Strategic Plan & 2019 Budget Request http://www.seyfarth.com:80/publications/WC021318a Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: This month the EEOC released its 2018-2022 strategic plan, which focuses on preventing and combating discrimination and improving the EEOC&rsquo;s organizational functionality. It also released the agency&rsquo;s 2019 budget request, which mirrors its $363 million dollar request from last year.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/updating-guidelines-and-asking-for-dough-eeocs-2018-2022-strategic-plan-2019-budget-request/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE021318 Corporate Culture and the Board of Directors’ Strategic Role http://www.seyfarth.com:80/publications/FE021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> In today&rsquo;s global and transparent world where companies are under a microscope more so than ever before, leaders must forge a delicate balance between confidence and vulnerability, express hope and optimism, and get engagement back on track to succeed. Boards and company leaders who are focused on the strategic growth of their enterprises have a responsibility to create and foster innovation, engagement, and profitability, yet they often focus on only one or two of these with any real commitment. To create balance and achieve success in all areas, companies must create and promote a healthy corporate culture.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/13/corporate-culture-and-the-board-of-directors-strategic-role">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA021318-LE California Supreme Court Clears the Way for Employee Cal/OSHA Lawsuits http://www.seyfarth.com:80/publications/MA021318-LE Tue, 13 Feb 2018 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis</i></b><i>: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.</i></p> <p class="BodySingle"> <o:p></o:p></p> <p class="BodySingle"> <b>The Facts<o:p></o:p></b></p> <p class="BodySingle"> A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.<o:p></o:p></p> <p class="BodySingle"> Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code. <o:p></o:p></p> <p class="BodySingle"> The DA also filed a civil action against Solus, claiming that Solus had violated California&rsquo;s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making &ldquo;numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,&rdquo; which allowed it to attract and retain customers and employees.<o:p></o:p></p> <p class="BodySingle"> Solus demurred to the DA&rsquo;s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court. &nbsp;<o:p></o:p></p> <p class="BodySingle"> <b>The Supreme Court&rsquo;s Decision</b><o:p></o:p></p> <p class="BodySingle"> A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA&rsquo;s civil action against Solus. Rather, California law preempted federal OSHA&mdash;a sort of reverse preemption.<o:p></o:p></p> <p class="BodySingle"> Understanding the Supreme Court&rsquo;s holding requires a brief summary of federal OSHA&rsquo;s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory &ldquo;floor&rdquo; under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA. <o:p></o:p></p> <p class="BodySingle"> The Supreme Court rejected Solus&rsquo;s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers&rsquo; compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.<o:p></o:p></p> <p class="BodySingle"> The Supreme Court noted that UCL and FAL actions may be brought by both government officials <i>and</i> by persons who have suffered an &ldquo;injury in fact.&rdquo;<o:p></o:p></p> <p class="BodySingle"> <b>What<i> Solus </i>Means For Employers<o:p></o:p></b></p> <p class="BodySingle"> While California law (specifically, PAGA) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.<o:p></o:p></p> <p class="BodySingle"> Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, <i>Solus</i> may result in a spike in workplace safety and health litigation against employers, for several reasons. First, <i>Solus</i> does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims. <o:p></o:p></p> <p class="BodySingle"> Second, nothing in the California Supreme Court&rsquo;s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with &ldquo;the facts and theories to support the alleged violation.&rdquo; Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers. <o:p></o:p></p> <p class="BodySingle"> Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the &ldquo;repose&rdquo; promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.&nbsp;&nbsp;</p> http://www.seyfarth.com:80/publications/WSE021318 States, NRDC, and NWF Sue EPA and Corps on Applicability Date Final Rule http://www.seyfarth.com:80/publications/WSE021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Continuing the fight over the Obama-era Waters of the United States (WOTUS) Rule, the Natural Resources Defense Council, Inc., the National Wildlife Federation, and a host of states, including New York and California have brought lawsuits against the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (USEPA) in response to their final rule to delay the applicability date for the WOTUS Rule. States of New York et al. v. USEPA and Corps (State Litigation), No. 18-cv-1030 (S.D. NY February 6, 2018), and NRDC v USEPA and Corps (Association Litigation), No 18-cv-1048 (S.D. NY February 6, 2018).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/cwa/states-nrdc-and-nwf-sue-epa-and-corps-on-applicability-date-final-rule/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS021318 Court Certifies Class In Duke-UNC No-Hire Workplace Antitrust Lawsuit http://www.seyfarth.com:80/publications/TS021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On February 1, 2018, the U.S. District Court for the Middle District of North Carolina entered an order granting in part, and denying in part, the plaintiff&rsquo;s motion for class certification in a no-hire antitrust case entitled Seaman v. Duke University, 1:15-CV-462, at 1-2 (M.D.N.C. Feb. 1, 2018) (A copy of the decision can be found here.) The case was brought against Duke University, Duke University Health System (collectively &ldquo;Duke&rdquo;), and various University of North Carolina entities and one of its executives (collectively &ldquo;UNC&rdquo;). The complaint alleged that the defendants had entered into an agreement not to hire each other&rsquo;s medical faculty employees in violation of federal antitrust laws. With some notable exceptions it has been difficult for plaintiffs to achieve class certification in wage suppression cases such as Seaman. The ruling is a &ldquo;must read&rdquo; for employers, as the Court&rsquo;s reasoning and conclusions make it difficult to predict whether this case will be helpful to the plaintiffs&rsquo; bar in other cases.</p> <p> &nbsp;</p> <p> <a href="https://www.tradesecretslaw.com/2018/02/articles/noncompete-enforceability/court-certifies-class-in-duke-unc-no-hire-workplace-antitrust-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL021318 Texts From Your Ex? Not So Fast- Make Sure to Preserve your Evidence http://www.seyfarth.com:80/publications/EL021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A case out of the District of Oregon recently dismissed a Plaintiff&rsquo;s sexual harassment and retaliation claims where the allegations relied on manufactured text messages that Plaintiff failed to produce.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/texts-from-your-ex-not-so-fast-make-sure-to-preserve-your-evidence/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021318 Court Certifies Class In Duke-UNC No-Hire Workplace Antitrust Lawsuit http://www.seyfarth.com:80/publications/WC021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On February 1, 2018, the U.S. District Court for the Middle District of North Carolina entered an order granting in part, and denying in part, the plaintiff&rsquo;s motion for class certification in a no-hire antitrust case entitled Seaman v. Duke University, 1:15-CV-462, at 1-2 (M.D.N.C. Feb. 1, 2018) (A copy of the decision can be found here.) The case was brought against Duke University, Duke University Health System (collectively &ldquo;Duke&rdquo;), and various University of North Carolina entities and one of its executives (collectively &ldquo;UNC&rdquo;). The complaint alleged that the defendants had entered into an agreement not to hire each other&rsquo;s medical faculty employees in violation of federal antitrust laws. With some notable exceptions it has been difficult for plaintiffs to achieve class certification in wage suppression cases such as Seaman. The ruling is a &ldquo;must read&rdquo; for employers, as the Court&rsquo;s reasoning and conclusions make it difficult to predict whether this case will be helpful or hurtful to the plaintiffs&rsquo; bar in other cases.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/court-certifies-class-in-duke-unc-no-hire-workplace-antitrust-lawsuit/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA021318 Vindication! Fifth Circuit Reverses Notorious District Court Health Care Fraud Decision http://www.seyfarth.com:80/publications/ERISA021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a major victory for ERISA plans and other payors, the Fifth Circuit recently overturned a district court&rsquo;s notorious decision in favor of a healthcare provider and reinstated a plan administrator&rsquo;s ability to guard against healthcare billing fraud, waste, and abuse.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/02/13/vindication-fifth-circuit-reverses-notorious-district-court-health-care-fraud-decision/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/olsonwe021318 Camille Olson quoted in the Washington Examiner http://www.seyfarth.com:80/news/olsonwe021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 13 story from the Washington Examiner, &quot;Trump administration to tackle &#39;gig economy&#39; this spring.&quot; Before a Senate Health, Education, Labor and Pensions subcommittee hearing, Olson testified that many state, federal and local laws regulating the status of worker relationships effectively prevent those companies that treat workers as independents from providing those workers with access to even non-ERISA employees benefits without undermining the legal status of their business models. You can read the <a href="http://www.washingtonexaminer.com/trump-administration-to-tackle-gig-economy-this-spring/article/2648464">full article here</a>.</p> http://www.seyfarth.com:80/news/milliganlaw360021318 Robert Milligan quoted in Law360 http://www.seyfarth.com:80/news/milliganlaw360021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a February 13 story from Law360, &quot;After Big Waymo Settlement, Uber Criminal Probe Still Looms.&quot; Milligan said that the misconception might be that because the civil case is over, the criminal case is over, too, but that&#39;s just not the case.</p> http://www.seyfarth.com:80/news/casciarishrm021318 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciarishrm021318 Tue, 13 Feb 2018 00:00:00 -0400 <p> Joan Casciari quoted in a February 13 story from SHRM, &quot;The Flu: Coordinate Compliance Among FMLA, ADA, Paid Leave Laws.&quot; Casciari said that most paid-sick-leave laws allow workers to use paid leave to recover from the flu. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/flu-coordinate-compliance-leave-laws.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/ssawwbns021218 Seyfarth Shaw at Work's survey referenced by WBNS-10TV http://www.seyfarth.com:80/news/ssawwbns021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> Seyfarth Shaw at Work&#39;s survey referenced in a February 12 story by WBNS-10TV,&quot;A call to overhaul sexual harassment training in the wake of the #MeToo movement.&quot; Statistics from a 2018 Seyfarth Shaw LLP at Work Survey of 400 managers and bosses in small to mid-sized companies shows trends in the wake of the #MeToo and #TimesUp movements. According to the survey, more than one-third of key managers and bosses surveyed have seen an unexpected increase in internal complaints regarding misconduct, as compared to one year ago. You can read the full article here: https://www.10tv.com/article/call-overhaul-sexual-harassment-training-wake-metoo-movement</p> http://www.seyfarth.com:80/news/wcarcblr021218 Seyfarth's Workplace Class Action Report profiled in Compensation.BLR.com http://www.seyfarth.com:80/news/wcarcblr021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 12 story from Compensation.BLR.com, &ldquo;ERISA Class Actions Settlements Cost Employers Nearly $1 Billion in 2017.&quot; The Report&#39;s author Gerald Maatman said that one certain conclusion is that employment law class action and collective action litigation is becoming ever more sophisticated and will continue to be a source of significant financial exposure to employers well into the future. You can read the <a href="https://compensation.blr.com/Compensation-news/Retirement-Planning/ERISA/ERISA-Class-Actions-Settlements-Cost-Employers-Nea/">full article here</a>.</p> http://www.seyfarth.com:80/news/milligandailyjournal021218 Robert Milligan quoted in the Daily Journal http://www.seyfarth.com:80/news/milligandailyjournal021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a February 12 story from the Daily Journal, &quot;Uber-Waymo settlement may encourage more caution when pursuing employees.&quot; Milligan said that California&#39;s employment mobility law is considered lax compared to most other states because noncompete clauses aren&#39;t allowed there, but the Uber settlement is an indication that it&#39;s still possible to get in trouble by failing to take precautions when adding workers that are highly valued by their previous employers.</p> http://www.seyfarth.com:80/publications/CCD021218 BIPA: Plaintiff’s New Cash Cow http://www.seyfarth.com:80/publications/CCD021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/02/bipa-plaintiffs-new-cash-cow/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/GPW021218 BIPA: Plaintiff’s New Cash Cow http://www.seyfarth.com:80/publications/GPW021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> Since its enactment a decade ago, the Illinois Biometric Information Privacy Act (BIPA) has seen a recent spike in attention from employees and consumers alike. This is due, in large part, to the technological advancements that businesses use to service consumers and keep track of employee time.<br /> <br /> <a href="https://www.globalprivacywatch.com/2018/02/bipa-plaintiffs-new-cash-cow/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM021218 ICE Targets California http://www.seyfarth.com:80/publications/IMM021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> True to its word, last week Immigration and Customs Enforcement (ICE) agents issued Notices of Inspection (NOIs) at seventy-seven Northern California businesses. ICE&rsquo;s Homeland Security Investigations (HSI) agents spread out across northern California, serving NOIs in Sacramento, San Francisco, and San Jose at the end of January. No employees or employers were arrested at the time; instead, HSI agents notified businesses that they are being audited and provided seventy-two hours to produce their employees&rsquo; Forms I-9, Employment Eligibility Verifications.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/ice-targets-california/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT021218 Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment http://www.seyfarth.com:80/publications/TBT021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency&rsquo;s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment. It is seeking public comments.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/cal-osha-drafts-rules-for-the-marijuana-cannabis-industry-and-heat-illness-prevention-in-indoor-places-of-employment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE021218 Will Blockchain Revolutionize Bio/Pharma R&D, Tech Transfer, and IP? http://www.seyfarth.com:80/publications/FE021218 Mon, 12 Feb 2018 00:00:00 -0400 <p> On the one hand, the Winklevoss twins asserted that Bitcoin&rsquo;s price could easily go up another twenty times while Nobel-laureate economist Joseph Stieglitz admonishes that the whole concept should be illegalized all together. Either way, the blockchain open and immutable ledger transaction recording technology itself, is emerging as one of the key aspects of Bitcoin&rsquo;s value proposition and when applied to other areas of business, e.g., by Ethereum, it has the potential to have an enormous impact on the mechanics of information exchange in bio/pharma R&amp;D and as result will change how we approach legal issues of intellectual property and technology transfer.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/8/will-blockchain-revolutionize-biopharma-rd-tech-transfer-and-ip">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC021018 Bloomberg BNA’s Perry Cooper Presents On The “Top Trends In Workplace Class Action Litigation” http://www.seyfarth.com:80/publications/WC021018 Sat, 10 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: This year we were lucky enough to have Perry Cooper, Senior Legal Editor of Bloomberg BNA, as our special guest at Seyfarth Shaw&rsquo;s &ldquo;Top Trends In Workplace Class Action Litigation&rdquo; event. Perry provided our over 1,000 in-person and webcast attendees with an overview of major Supreme Court class action decisions, as well as led the discussion on other important topics for employers including arbitration, ascertainability, and the Fairness in Class Action Litigation Act. Today&rsquo;s post allows our blog readers to watch Perry&rsquo;s entire presentation. Check it out in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/bloomberg-bnas-perry-cooper-presents-on-the-top-trends-in-workplace-class-action-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/lorbernyt021018 Lawrence Lorber quoted in the New York Times http://www.seyfarth.com:80/news/lorbernyt021018 Sat, 10 Feb 2018 00:00:00 -0400 <p> Lawrence Lorber was quoted in a February 10 story from the New York Times, &quot;Administration Imposes Sweeping Limits on Federal Actions Against Companies.&quot; Lorber said that the Labor Department often used guidance documents in enforcing wage and hour laws and laws banning job discrimination by federal contractors. You can read the full article here: https://www.nytimes.com/2018/02/10/us/politics/legal-violations-federal-rules.html</p> http://www.seyfarth.com:80/news/milliganrecorder020918 Robert Milligan quoted in The Recorder http://www.seyfarth.com:80/news/milliganrecorder020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> Robert Milligan was quoted in a February 9 story from The Recorder, &quot;3 Takeaways From the Swift End to Waymo v. Uber.&quot; Milligan said that it was definitely the trade secret trial of the century.</p> http://www.seyfarth.com:80/news/maatmanlaw360020918 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a February 9 story from Law360, &quot;Employers Eagerly Await EEOC Sexual Harassment Guidance.&quot; Maatman said that once released, the harrasment guidance will be in a sense, the EEOC weighing in on the #MeToo-era issue.</p> http://www.seyfarth.com:80/publications/WC020918 Seyfarth Shaw’s Jerry Maatman Presents On The “Top Trends In Workplace Class Action Litigation” http://www.seyfarth.com:80/publications/WC020918 Fri, 09 Feb 2018 00:00:00 -0400 <br /> <br /> <p> <a href="https://www.workplaceclassaction.com/2018/02/seyfarth-shaws-jerry-maatman-presents-on-the-top-trends-in-workplace-class-action-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020918 Massachusetts Highest Court Refuses to Award a Triple Windfall http://www.seyfarth.com:80/publications/WH020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A recent decision by the Massachusetts Supreme Judicial Court limits the scope of the Wage Act to exclude sick time payments and potentially other types of contingent compensation.<br /> <br /> <a href="https://www.wagehourlitigation.com/state-claims/massachusetts-refuses-to-award-triple-windfall/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA020918-LE If Pain, Yes Gain—Part XLIII: Delay Efforts Stall, Maryland Sick Leave Symptoms Set to Begin http://www.seyfarth.com:80/publications/MA020918-LE Fri, 09 Feb 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> Legislative efforts to delay the Maryland Healthy Working Families Act&rsquo;s February 11, 2018 effective date have been unsuccessful thus far. While the state legislature continues to work on an antidote, its prognosis for passing such a bill before February 11 looks bleak. As a result, employers should take steps immediately to meet the Act&rsquo;s requirements by its rapidly approaching effective date.</em></p> <p> On January 12, 2018, Maryland became the <a href="http://www.seyfarth.com/publications/MA011518-LE">ninth state to enact a mandatory paid sick leave law</a>,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> after the Maryland Senate voted to override Governor Larry Hogan&rsquo;s 2017 veto of a paid sick leave bill that was passed during the state&rsquo;s 2017 legislative session.&nbsp; In light of the veto override, the Maryland Healthy Working Families Act (&ldquo;HWFA&rdquo; or the &ldquo;Act&rdquo;) was scheduled to go into effect 30 days after the override, i.e., on February 11, 2018.</p> <p> A 30-day turnaround from enactment to being in effect is uncommon in the paid sick leave landscape, especially for statewide laws.&nbsp; For example, covered employers had more than six months to prepare for the California, Massachusetts, Oregon, and Arizona statewide paid sick leave laws after they were enacted. Rhode Island employers have more than nine months to prepare for the state&rsquo;s paid sick leave law&rsquo;s July 1, 2018 effective date. And Washington employers had more than a year to get ready for the Washington statewide paid sick leave law before it went into effect in January 2018.</p> <p> Aware of the administrative and enforcement challenges created by the current February 11 effective date, the Maryland state Senate proposed Senate Bill (SB) 304.&nbsp; SB 304 is an emergency legislation seeking to delay the implementation of the HWFA.&nbsp; Following amendments in committee and from the full state Senate, SB 304 seeks to delay the Act&rsquo;s effective date until July 1, 2018.</p> <p> Yesterday, the state Senate passed SB 304, as amended. Unfortunately, it must also pass in the Maryland House of Delegates. &nbsp;We will continue to monitor the HWFA effective date and provide any updates on whether this date is extended, either before or after February 11.</p> <p> As a reminder, the Act requires covered employers with 15 or more employees to provide eligible employees with <u>paid</u> sick and safe leave benefits, while employers with fewer than 15 employees must provide eligible employees with <u>unpaid</u> sick and safe leave benefits.&nbsp; All eligible employees are entitled to accrue sick and safe leave at a rate of at least one hour for every 30 hours worked.&nbsp; Under the Act, employers are not required to allow employees to accrue more than 40 hours of sick and safe leave per year, nor are employers required to allow employees&rsquo; bank of accrued, unused sick and safe leave to reach more than 64 hours at any one time.&nbsp; Employers must allow eligible employees to use at least 64 hours of available sick and safe leave in a year.&nbsp; For more information on the HWFA, including the Act&rsquo;s carryover and frontloading requirements, as well as other substantive, technical obligations, please see our <a href="http://www.seyfarth.com/publications/MA011518-LE">prior alert</a>.</p> <p> As of today, there is no cure for the HWFA&rsquo;s February 11 effective date. Accordingly, employers should take steps immediately to comply with the requirements of the HWFA. Here are some steps to consider:</p> <ul> <li> Review existing sick leave policies and either implement new policies or revise existing policies to satisfy the HWFA.</li> <li> Review policies on attendance, anti-retaliation, conduct, and discipline for compliance with the HWFA.</li> <li> Monitor the Maryland Department of Labor and Industry website for information on the HWFA, including a model poster, model notice, and proposed and final regulations.</li> <li> Train supervisory and managerial employees, as well as HR, on the new requirements.</li> </ul> <p> We will continue to monitor and provide updates on Maryland paid sick leave developments as the February 11th effective date approaches and any changes that take place thereafter.&nbsp; To stay up-to-date on Paid Sick Leave developments, sign up for <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">Seyfarth&rsquo;s Paid Sick Leave mailing list</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The other eight states that have passed a statewide mandatory paid sick leave law are: (1) <a href="http://www.seyfarth.com/publications/OMM062714-LE">Connecticut</a>; (2) <a href="https://www.calpeculiarities.com/2015/07/14/at-last-amendments-to-cas-paid-sick-leave-law-signed-by-governor/">California</a>; (3) <a href="http://www.seyfarth.com/publications/MA061915-LE">Massachusetts</a>; (4) <a href="http://www.seyfarth.com/publications/MA121115-LE">Oregon</a>; (5) <a href="http://www.seyfarth.com/publications/MA031716-LE">Vermont</a>; (6) <a href="http://www.seyfarth.com/publications/MA120817-LE">Arizona</a>; (7) <a href="http://www.seyfarth.com/publications/MA102717-LE">Washington</a>; (8) <a href="http://www.seyfarth.com/publications/MA092117-LE">Rhode Island</a>. The Rhode Island governor signed the state&rsquo;s paid sick leave law on September 28, 2017 and it is scheduled to go into effect on July 1, 2018. The Washington statewide paid sick leave law went into effect on January 1, 2018. The other six statewide laws are in effect.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM020918-LE New Jersey’s Conscientious Employee Protection Act Requires Election of Remedies Before Summary Judgment http://www.seyfarth.com:80/publications/OMM020918-LE Fri, 09 Feb 2018 00:00:00 -0400 <p class="BodySingle"> <i><strong>Seyfarth Synopsis</strong>: The U.S. District Court for the District of New Jersey recently held that the proper time for a plaintiff to elect whether to proceed with a statutory whistleblower claim under CEPA, or a common law </i>Pierce<i> claim for wrongful termination, is at the close of discovery, before the summary judgment stage.</i></p> <p class="BodySingle" style="text-align:justify"> In <i>Hrinuk v. Pub. Serv. Elec. &amp; Gas Co.</i>,<i> </i>an <a href="https://law.justia.com/cases/federal/district-courts/new-jersey/njdce/2:2014cv00988/300504/73/">unpublished decision</a> issued on January 30, 2018, the District of New Jersey dismissed a plaintiff&rsquo;s common law<i> </i>wrongful termination claim at the close of discovery, finding that it was preempted by plaintiff&rsquo;s concurrent claim under the Conscientious Employee Protection Act (&ldquo;CEPA&rdquo;). With the common law claim dismissed, the case proceeds to the summary judgment stage in leaner form, with the CEPA claim only. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The plaintiff in the case had been employed as an inspector for thirty-three years, and his job was to monitor residential and business connections at construction sites. He claimed that, given the excessive work load he was assigned, supervisors instructed him to sign off on work that he had not actually inspected and knew had not been done. The plaintiff alleged that he raised these inspection practice problems with his managers, but was instead suspended and ultimately terminated. The plaintiff filed a lawsuit alleging, among other things, a CEPA whistleblower claim and a common law <i>Pierce </i>wrongful termination claim.<o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> In New Jersey, it is not uncommon for plaintiffs to initially plead a CEPA claim as well as a common law <i>Pierce</i> claim. Interestingly, CEPA was a statutory codification of the common law wrongful termination <i>Pierce</i> doctrine, which was established by the New Jersey Supreme Court in <i>Pierce v. Ortho Pharmaceutical</i> in 1980. But, CEPA specifically provides that, &ldquo;the institution of an action in accordance with this act shall be deemed a waiver of the rights and remedies available under . . . under the common law.&rdquo; N.J.S.A. &sect; 34:19-8. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Here, as is common practice, after the parties completed discovery, the defense sought for Plaintiff to elect whether he would proceed under CEPA or <i>Pierce</i>, because, as explained, a Plaintiff must elect his remedy under CEPA. The issue before the District of New Jersey was whether it was necessary for Plaintiff to drop his <i>Pierce </i>claim prior to the summary judgment stage, or, conversely, whether Plaintiff would be allowed to test whether his CEPA claim would survive summary judgment. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> Plaintiff did not make the election, and instead argued that CEPA statute should be interpreted broadly to allow for the viability of the claim to be tested before having to elect. The defense disagreed, and filed a motion for judgment on the pleadings to dismiss the <i>Pierce </i>claim. The court first stated that the &ldquo;[t]he waiver provision in CEPA bars plaintiff from bringing a parallel claim under New Jersey common law when both claims are based on the same conduct.&rdquo; The court reiterated that Plaintiff had to elect between pursuing a remedy under CEPA or common law, because the counts were based on the same alleged conduct. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> In granting the defense&rsquo;s motion, the Court clarified that the close of discovery was the appropriate time for Plaintiff to elect his remedy. The CEPA claim was not considered formally &ldquo;instituted&rdquo; until the close of discovery, because it was only until that time that Plaintiff would have been fully provided with the opportunity to explore the facts at issue. Accordingly, it was after the close of discovery that Plaintiff had to elect whether he wished to proceed with a CEPA claim or common law claim. Concluding that the &ldquo;institution&rdquo; of Plaintiff&rsquo;s CEPA claim pre-empted him from pursuing any other recourse, the judge ultimately dismissed the common law count in the Amended Complaint. <o:p></o:p></p> <p class="BodySingle" style="text-align:justify"> The court&rsquo;s clarification of this point serves as a reminder that a plaintiff does not get two bites of the same apple. While employers may have to conduct discovery with both a CEPA claim and <i>Pierce</i> claim at play, allowing for the broadest amount of discovery possible, nonetheless, at the close of discovery, a plaintiff must elect his choice of remedy. Plaintiffs have incentive to elect CEPA, which allows for attorneys&rsquo; fees with the potential for enhanced fees, as opposed to a common law, <i>Pierce</i> claim, which has no fee shifting mechanism. After discovery is complete, if a plaintiff&rsquo;s complaint still contains overlapping remedies for wrongful termination and CEPA, a motion to strike the common law claim may be warranted.&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/FE020918 Seyfarth Shaw Partner Camille Olson Testifies Before Senate HELP Subcommittee on Behalf of the U.S. Chamber of Commerce http://www.seyfarth.com:80/publications/FE020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> On February 6, 2018, the U.S. Senate Committee on Health, Education, Labor, and Pensions Subcommittee on Primary Health and Retirement Security held a hearing entitled Exploring the &lsquo;Gig Economy&rsquo; and the Future of Retirement Savings. Working together with the U.S. Chamber of Commerce&rsquo;s Employee Benefits Committee and its Technology Engagement Center (C_TEC), Seyfarth partner Camille Olson prepared suggestions for the Subcommittee on how to solve the issues facing gig economy workers, and presented these solutions to the Subcommittee on the Chamber&rsquo;s behalf.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/9/seyfarth-shaw-partner-camille-olson-testifies-before-senate-help-subcommittee-on-behalf-of-the-us-chamber-of-commerce">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020918 Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement http://www.seyfarth.com:80/publications/EL020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/business-friendly-times-usdoj-limits-the-use-of-agency-guidance-documents-in-civil-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020918 Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment http://www.seyfarth.com:80/publications/WSE020918 Fri, 09 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency&rsquo;s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment. It is seeking public comments.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/cal-osha-drafts-rules-for-the-marijuana-cannabis-industry-and-heat-illness-prevention-in-indoor-places-of-employment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC020818 Dollars And Sense: Federal Court Refuses To Enjoin State Court Squabble Over Attorneys’ Fees http://www.seyfarth.com:80/publications/WC020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a TCPA class action where final settlement (including attorneys&rsquo; fees) had already received final approval, a federal district court in California denied class counsel&rsquo;s request to enjoin a pending state court action brought by their former colleague to recoup a portion of the attorneys&rsquo; fees awarded as part of the settlement.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/dollars-and-sense-federal-court-refuses-to-enjoin-state-court-squabble-over-attorneys-fees/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/FE020818 DApps: A Potential Answer to On-Demand Contractor-Employee Questions? http://www.seyfarth.com:80/publications/FE020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> We have previously blogged on opportunities and challenges in the gig economy. The myriad risks&mdash;from independent contractor-employee misclassification to confidential information and privacy protection missteps&mdash;are ever present because fast-growing players in the gig economy are attractive targets for potential plaintiffs seeking a deep pocket and a novel factual or legal issue that might evade a fast or easy resolution.<br /> <br /> <a href="https://www.futureemployer.com/blog/2018/2/2/dapps-a-potential-answer-to-on-demand-contractor-employee-questions">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020818 California Supreme Court Hears Oral Argument to Define “Independent Contractor” http://www.seyfarth.com:80/publications/WH020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Supreme Court heard oral arguments Tuesday morning in Dynamex Operations v. Superior Court, a case addressing the legal standard for determining whether a worker should be classified as an independent contractor or an employee. The opinion will be significant for any entity using independent contractors in California.</p> <p> <a href="https://www.wagehourlitigation.com/independent-contractors/california-supremes-to-define-independent-contractor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO020818 Now Available! Seyfarth Shaw’s Hatch-Waxman and Biosimilars Litigation: 2017 Year-in-Review http://www.seyfarth.com:80/publications/BIO020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> Seyfarth Shaw Offers Hatch-Waxman And Biosimilars Litigation: 2017 Year-in-Review<br /> <br /> <a href="https://www.bioloquitur.com/now-available-seyfarth-shaws-hatch-waxman-biosimilars-litigation-2017-year-review/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020818 The Week in Weed: February 9, 2018 http://www.seyfarth.com:80/publications/TBT020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/the-week-in-weed-february-9-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM20818-LE Kansas City, Missouri Bans the Box for Private Employers http://www.seyfarth.com:80/publications/OMM20818-LE Thu, 08 Feb 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em>:&nbsp;</strong><em>Kansas City, Missouri becomes the latest jurisdiction to &ldquo;ban the box&rdquo; by delaying inquiries into criminal history until an applicant has been deemed qualified -- and has been at least interviewed -- by a prospective employer.</em></p> <p> <strong>Ordinance No. 180034</strong></p> <p> Kansas City, Missouri is the latest jurisdiction to &ldquo;ban the box.&rdquo;&nbsp; <a href="http://cityclerk.kcmo.org/LiveWeb/Documents/Document.aspx?q=IHt5yW%2fwQpduyxYNDuTxlMQbdsERD1G%2fjjDf37FMsawqjhA1eHf90k4dIT18NOZp">Ordinance&nbsp; No. 180034</a> was signed into law on February 1, 2018.&nbsp; Private employers with 6 or more employees may not inquire about criminal history until a determination has been made that an individual is otherwise qualified -- and interviews -- for the position.&nbsp; Alternatively, inquiry may be made of all applicants who are within the final selection pool of candidates from which a position may be filled.&nbsp; The Ordinance will take effect on June 9, 2018.</p> <p> The Ordinance defines employee as &ldquo;any individual employed by an employer, . . . &ldquo; but does not state whether that would include temporary and seasonal work, contract and contingent employment, or work through a temporary or other employment agency.</p> <p> The Ordinance expressly states that it does not apply to jobs where employers are required to exclude applicants with certain criminal convictions from employment due to federal, state, local law or regulations.&nbsp;</p> <p> Additionally, the Ordinance makes it unlawful for an employer to base a decision to hire or promote on an applicant&rsquo;s criminal history, unless the employer can demonstrate that the decision was based on all information available, including consideration of the frequency, recentness and severity of a criminal record and that the record was reasonably related to the duties and responsibilities of the job.</p> <p> Remedies for violation of the Ordinance include reinstatement, back pay, actual damages and civil penalties.</p> <p> <strong>Implications for Employers</strong></p> <p> Employers with employees in Kansas City should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law, especially if using standardized forms across multiple jurisdictions.&nbsp; Impacted employers also should ensure that all hiring and recruiting personnel are aware of &ldquo;ban the box&rdquo; jurisdictions.</p> <p> <strong>Pamela Q. Devata is a partner in Seyfarth&rsquo;s Chicago office and Stacey L. Blecher is Counsel in the firm&rsquo;s New York office.&nbsp; If you would like further information or have any questions about compliance with the Kansas City Ban the Box Ordinance, please contact your Seyfarth attorney, Pamela Devata at </strong><a href="mailto:pdevata@seyfarth.com"><strong>pdevata@seyfarth.com</strong></a> <strong>or Stacey Blecher at </strong><a href="mailto:sblecher@seyfarth.com"><strong>sblecher@seyfarth.com</strong></a><strong>, or anyone on Seyfarth&rsquo;s Background Screening Compliance Team.&nbsp;</strong></p> http://www.seyfarth.com:80/news/olsonara020818 Camille Olson quoted by the American Retirement Association http://www.seyfarth.com:80/news/olsonara020818 Thu, 08 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 8 story from the American Retirement Association, &quot;Senate Panel Explores Ideas to Foster Retirement Savings for &lsquo;Gig&rsquo; Workers.&quot; In her Senate testimony, Olson said that the current legal and regulatory scheme effectively discourages companies who utilize independent workers from offering retirement benefits. You can read the <a href="http://www.asppa-net.org/News/Article/ArticleID/9577">full article here</a>.</p> http://www.seyfarth.com:80/news/nikelpm020718 Jon Meer, Sheryl Skibbe and Michael Afar's blog post referenced in Loss Prevention Media Insider http://www.seyfarth.com:80/news/nikelpm020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> Jon Meer, Sheryl Skibbe and Michael Afar&#39;s blog post was referenced in a February 7 story from Loss Prevention Media Insider, &quot;Security Footage Sinks Employee Lawsuit Targeting Employee Bag Checks.&quot; Seyfarth represented Nike as it prevailed in a class action lawsuit filed by hourly retail workers demanding that the company pay them for the time they spent waiting for loss prevention inspections after clocking out and before leaving stores. In their blog post, the authors write that, for the moment, this ruling is good news for employers who can put away their stop watches when small increments of off-the-clock time are irregular and difficult to record. You can read the <a href="http://losspreventionmedia.com/insider/employee-theft/security-footage-sinks-employee-lawsuit-targeting-employee-bag-checks/">full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE020718 Cal/OSHA Drafts Rules for Workplace Violence Prevention in General Industry http://www.seyfarth.com:80/publications/WSE020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency&rsquo;s draft rules for Workplace Violence Prevention in General Industry. It is seeking public comments.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/cal-osha-drafts-rules-for-workplace-violence-prevention-in-general-industry/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH020718 The Road to FLSA Litigation is Often Paved With Good Intentions http://www.seyfarth.com:80/publications/WH020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> Even as FLSA litigation has surged to historic highs, it is rare to see a nefarious violation of the Act by a manager or supervisor. Far more prevalent, it seems, are stories of managers who, while intending to afford employees freedom and flexibility, instead trip over one of many hurdles scattered across the 1938 legislation. At a time when plaintiffs&rsquo; attorneys are more regularly naming individual managers, not just corporations, as FLSA defendants, preventing these stories is important as ever.<br /> <br /> <a href="https://www.wagehourlitigation.com/overtime/the-road-to-flsa-litigation/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS020718 Seyfarth Takes The 2018 AIPLA Trade Secret Law Summit By Storm http://www.seyfarth.com:80/publications/TS020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> On March 1&ndash;2, 2018, five Seyfarth attorneys will be attending the American Intellectual Property Law Association&rsquo;s annual Trade Secret Law Summit in San Diego, California, one of the preeminent events for trade secret practitioners in the nation. Erik Weibust is on the planning committee for the Summit and will be moderating a panel entitled &ldquo;The Ethics of Law Firm Cybersecurity,&rdquo; featuring Seyfarth&rsquo;s own John Tomaszewski; National Litigation Department chair Kate Perrelli will be participating in a facilitated discussion regarding various problems all trade secret and noncompete practitioners face; and Seyfarth attorneys Dawn Mertineit and Eric Barton will be in attendance as well. Other topics will include:<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/seyfarth-takes-the-2018-aipla-trade-secret-law-summit-by-storm/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP020718 California Supreme Court Hears Oral Argument to Define “Independent Contractor” http://www.seyfarth.com:80/publications/CP020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The California Supreme Court heard oral arguments yesterday morning in Dynamex Operations v. Superior Court, a case addressing the legal standard for determining whether a worker should be classified as an independent contractor or an employee. We expect the Supreme Court&rsquo;s opinion will be significant for any entity using independent contractors in California.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/07/california-supreme-court-hears-oral-argument-to-define-independent-contractor/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020718 Maine Employees Now Protected From Repercussions of Off-Duty Marijuana Use http://www.seyfarth.com:80/publications/TBT020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act contains within it an anti-discrimination in employment provision, which is effective today, February 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/maine-employees-now-protected-from-repercussions-of-off-duty-marijuana-use/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/pp020718 Lawrence Mandelker authored an article in Platinum Properties http://www.seyfarth.com:80/publications/pp020718 Wed, 07 Feb 2018 00:00:00 -0400 <p> Lawrence Mandelker authored a February 7 article in Platinum Properties, &quot;Modern Romance &ndash; Should Non-Married Couples Co-Purchase?&quot; You can read the <a href="https://www.platinumpropertiesnyc.com/blog/modern-romance-should-non-married-couples-co-purchase">full article here</a>.</p> http://www.seyfarth.com:80/publications/TS020618 Report on Sedona Conference on Trade Secrets http://www.seyfarth.com:80/publications/TS020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> On December 6-8, the inaugural Sedona Conference on trade secrets took place in Scottsdale, Arizona. The invitation-only conference brought together outside counsel, in-house counsel, and experts to have an in-depth discussion of developments in trade secrets law.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/trade-secrets/report-on-sedona-conference-on-trade-secrets/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM20618-LE Are Graduate-Students Assistants Employees Under the NLRA? The Answer of the Obama Board Will Not Be the Final Word http://www.seyfarth.com:80/publications/OMM20618-LE Tue, 06 Feb 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: A 2016 decision of the National Labor Relations Board (&ldquo;Board&rdquo;) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (&ldquo;NLRA&rdquo;) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board&rsquo;s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.</em></p> <p> In a landmark ruling, <em>Columbia University</em>, 364 NLRB No. 90 (2016), the Obama Board reversed prior precedent and held that graduate-student assistants at Columbia University were employees and therefore could vote on whether to form a union.&nbsp;After the Union prevailed at the election in December 2016, Columbia filed objections and requested a rerun election. In a decision issued in December 2017, the current Board rejected those objections and certified the Union as the exclusive bargaining representative of the graduate-student assistants. 365 NLRB No. 136.</p> <p> Teeing up the issue of whether graduate-student assistants are employees under the NLRA, Columbia has now refused to bargain with the Union.&nbsp;There is no right to a direct appeal of Board decisions in representation cases, and the only way for the University to obtain review of the earlier election determination is by refusing to bargain with the Union.&nbsp; Presumably, the Union will file an unfair labor practice charge against Columbia that will then lead to an adverse Board decision against Columbia.&nbsp;At that point, the University would be able to ask a federal Court of Appeals to assess whether the Board correctly decided the employee issue in the first instance.</p> <p> While it is not the Board&rsquo;s practice to review representation cases in the context of a refusal to bargain, there is reason to believe that the current Board may revisit whether graduate-student assistants are employees under the NLRA. Both Columbia decisions included vigorous dissents by a Republican Board member. In addition, in a separate December 2017 decision in a case involving Harvard University, another Republican Board member noted his view that Board precedent on the employee-status of students warrants reconsideration.&nbsp;Indeed, the Board had previously gone back and forth on the issue. In <em>Brown University</em>, 342 NLRB 483 (2004), the Board held that graduate-student assistants were not employees. Just two years earlier, in <em>New York University</em>, 332 NLRB 1205 (2000), the Board had held that graduate-student assistants were employees under the NLRA.</p> <p> Regardless of whether the Columbia University decision is revisited through the appeals process or by the Board itself, it is unlikely that the 2016 decision will be the last word on the issue. The final outcome will most certainly impact efforts by unions to organize graduate-student assistants and other students such as residence assistants.&nbsp; The final decision also may impact the cases in which certain college athletes, usually scholarship athletes, are claiming employee status for purposes of state and federal wage-hour laws.</p> http://www.seyfarth.com:80/publications/OMM020617-LIT Win Some, Lose Some: Trump Gets a Loss and a Win in the Fight to Control the CFPB http://www.seyfarth.com:80/publications/OMM020617-LIT Tue, 06 Feb 2018 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> One court upholds protection of Dodd-Frank limiting the President&rsquo;s removal authority, while another court stifles a challenge against Mulvaney serving as acting Director of CFPB.&nbsp;</em></div> <div> &nbsp;</div> <div> Last week, the Trump Administration experienced mixed results in the ongoing litigation over the Consumer Financial Protection Bureau (&ldquo;CFPB&rdquo;).&nbsp; As we&rsquo;ve mentioned in our <a href="http://www.seyfarth.com/ConsumerFinancialServices">prior publications</a>, there are several actions pending that involve the President&rsquo;s authority to control the CFPB.&nbsp; The first action discussed below, which had been languishing in the court for some time, raised the issue of whether the CFPB&rsquo;s structure as an independent agency is constitutional.&nbsp; The Trump Administration lost on this issue for the moment. In the second action, the Trump Administration dodged, at least temporarily, a challenge to President Trump&rsquo;s appointment of current CFPB Director Mick Mulvaney because the court determined that the plaintiff, a non-profit credit union, had no standing to bring its case.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> On January 31, 2018, the United States Court of Appeals for the District of Columbia, sitting <em>en banc</em>, <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf">ruled </a>that the CFPB&rsquo;s structure is constitutional by upholding Dodd-Frank&rsquo;s restriction that the Director of the CFPB can be removed by the President only for cause.&nbsp; The court reasoned that under Dodd-Frank, independence of the agency is persevered and that with Article II, the &ldquo;President [still] retains &lsquo;ample authority to assure&rsquo; that the official &lsquo;is competently performing his or her statutory responsibilities.&rsquo;&rdquo; This ruling is a blow to the Trump Administration&rsquo;s recent efforts to challenge the CFPB&rsquo;s structure on grounds that the director was unaccountable to the executive branch, and that he or she should be subject to removal for any reason and not only for inefficiency, neglect or wrongdoing.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In 2015, PHH Corporation challenged the CFPB&rsquo;s authority after the Bureau levied a $109 million fine against the company for allegedly taking kickbacks for sending customers to mortgage insurers. In October 2016, a three-judge panel of the D.C. Circuit held that the Constitution requires the President to have authority to fire the director for any reason, prompting a rehearing before the full court. Given the Trump Administration&rsquo;s public criticism of the CFPB, the <em>en banc</em> ruling likely won&rsquo;t end the long-running dispute over the bureau.&nbsp; Instead, the case will likely head to the U.S. Supreme Court for the final ruling on this issue. Until then, this decision highlights that the CFPB was established as an <em>independent </em>agency, insulated from the control of the executive branch, and in this particular instance, that agency leadership is protected from at-will removal by the President.&nbsp;</div> <div> &nbsp;</div> <div> Meanwhile, the Trump Administration had its second win over challenges to the President&rsquo;s authority to appoint the CFPB&rsquo;s acting director.&nbsp; On February 2, U.S. District Judge Paul Gardephe of the U.S. District Court for the Southern District of New York <a href="http://www.seyfarth.com/dir_docs/publications/2018-02-01_Lower_East_Side_Decision_SDNY.pdf">dismissed </a>the Lower East Side People&rsquo;s Federal Credit Union lawsuit because the credit union lacked standing to sue.&nbsp; While acknowledging that the credit union was not a &ldquo;mere outsider&rdquo; to the changing agency leadership, the court found that the credit union had not shown that Mulvaney&rsquo;s appointment would adversely affect the credit union.&nbsp; According to the court, the credit union&rsquo;s &ldquo;speculation&rdquo; that Mulvaney may withdraw existing CFPB rules or not enact long-expected CFPB rules &ldquo;is not sufficient to establish an imminent injury&rdquo; necessary for standing.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> This ruling follows on another district court&rsquo;s ruling last month that the President has authority to appoint the CFPB&rsquo;s acting director.&nbsp; The district court rejected Deputy Director Leandra English&rsquo;s claim to be the rightful acting director based on former Director Richard Cordray&rsquo;s attempt to name her as his successor.&nbsp; English has already appealed this ruling and is on the track for an expedited review with initial briefing to be completed by March 6, and the credit union may appeal its dismissal as well.</div> <div> &nbsp;</div> <div> As the fight for control of the CFPB continues, we will keep you apprised of the battles won and lost.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WC020618 Seyfarth Shaw’s Jerry Maatman and Bloomberg’s Perry Cooper Present “Top Trends In Workplace Class Action Litigation Panel Discussion” http://www.seyfarth.com:80/publications/WC020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On February 6, 2018, Seyfarth Shaw Partner Jerry Maatman and Bloomberg Law Senior Legal Editor Perry Cooper presented a timely event on &ldquo;Top Trends In Workplace Class Action Litigation Panel Discussion.&rdquo; The discussions focused on views of cutting edge issues relative to the workplace class action litigation landscape. With nearly 500 people attending either in person at our Chicago office or via our live Webcast, Maatman and Cooper&rsquo;s discussion was a &ldquo;must see&rdquo; for representatives of businesses across the country.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/seyfarth-shaws-jerry-maatman-and-bloombergs-perry-cooper-present-top-trends-in-workplace-class-action-litigation-panel-discussion/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020618 Sexual Harassment Legal Settlements: What Employers Need to Know About the New Tax Act http://www.seyfarth.com:80/publications/EL020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The new Tax Act prohibits employers from deducting payments to individuals alleging sexual harassment or sexual abuse if the settlement or payment requires the Claimant to execute a nondisclosure agreement.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/sexual-harassment-legal-settlements-what-employers-need-to-know-about-the-new-tax-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS020618 Big issues impacting workplaces in 2018 http://www.seyfarth.com:80/publications/WLS020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> In 2016 the CEDA reported that 40% of Australia&rsquo;s workforce could be replaced by automation within the next 10 to 20 years. Of course, automation has been happening since the industrial revolution &ndash; but the nature, pace and scale of automation is now being fuelled by digital disruption. These changes are happening now, or their seeds are being sown in many a workplace.<br /> <br /> <a href="https://www.workplacelawandstrategy.com.au/2018/02/big-issues-impacting-workplaces-in-2018/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT020618 San Francisco DA’s Office to Dismiss Thousands of Marijuana Convictions http://www.seyfarth.com:80/publications/TBT020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> The San Francisco District Attorney&rsquo;s Office has announced that it will retroactively apply Proposition 64, which legalized the possession and recreational use of marijuana in California, to marijuana related misdemeanor and felony convictions dating back to 1975 with immediate effect. As a result, over 3,000 misdemeanor convictions will be dismissed and sealed, and nearly 5,000 felony convictions will be reviewed and potentially reduced.<br /> <br /> <a href="https://www.blunttruthlaw.com/2018/02/san-francisco-das-office-to-dismiss-thousands-of-marijuana-convictions/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR020618 Are Graduate-Students Assistants Employees Under the NLRA? The Answer of the Obama Board Will Not be the Final Word http://www.seyfarth.com:80/publications/LR020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: A 2016 decision of the National Labor Relations Board (&ldquo;Board&rdquo;) finding that the graduate students at Columbia University were employees under the National Labor Relations Act (&ldquo;NLRA&rdquo;) has been teed up for review by the Court of Appeals. In order to obtain appellate review of the Board&rsquo;s decision, Columbia University has refused to bargain with the union certified to represent its graduate-student assistants.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/06/are-graduate-students-assistants-employees-under-the-nlra-the-answer-of-the-obama-board-will-not-be-the-final-word/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD020618 Win Some, Lose Some: Trump Gets a Loss and a Win in the Fight to Control the CFPB http://www.seyfarth.com:80/publications/CCD020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: One court upholds protection of Dodd-Frank limiting the President&rsquo;s removal authority, while another court stifles a challenge against Mulvaney serving as acting Director of CFPB.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/02/win-some-lose-some-trump-gets-a-loss-and-a-win-in-the-fight-to-control-the-cfpb/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wexlerbloomberglaw020618 Howard Wexler quoted in Bloomberg Law http://www.seyfarth.com:80/news/wexlerbloomberglaw020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Howard Wexler was quoted in a February 6 story from Bloomberg Law, &quot;Breast-Feeding Accommodation: New Laws Expand Employer Duties.&quot; Wexler said that he expects this trend of state and local breast-feeding protections to continue. He stated that similar to other areas of the labor and employment law world where a patchwork of state/city/local laws have developed - like minimum wage or paid sick leave - we are seeing a similar trend with respect to accommodations for women who express breast milk at work.</p> http://www.seyfarth.com:80/news/wgnweiss020618 Philippe Weiss interviewed by WGN Radio http://www.seyfarth.com:80/news/wgnweiss020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Philippe Weiss was interviewed February 6th by WGN Radio, &quot;Wintrust Business Lunch 2/6/18: The #MeToo Movement.&quot; Weiss provided perspective from the corporate world with the #MeToo Movement. You can listen to the full interview at <a href="http://wgnradio.com/2018/02/06/wintrust-business-lunch-2-6-18-market-corrections-lady-doritos-the-metoo-movement/">minute 18:30 here</a>.</p> http://www.seyfarth.com:80/news/olsonnlj020618 Camille Olson quoted in the National Law Journal http://www.seyfarth.com:80/news/olsonnlj020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 6 story from the National Law Journal, &quot;US Chamber Pushes Benefits for Gig Workers, but Don&#39;t Call Them Employees.&quot; Olson, on behalf of the U.S. Chamber, told a U.S. Senate subcommittee that the current legal and regulatory scheme effectively discourages companies who utilize independent workers from offering retirement benefits.</p> http://www.seyfarth.com:80/news/olsonpolitico020618 Camille Olson quoted in Politico http://www.seyfarth.com:80/news/olsonpolitico020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 6 story from Politico, &quot;Morning Shift,&quot; on a Senate HELP subcommittee hearing on the gig economy and the future of retirement savings. Olson appeared as a witness on behalf of the U.S. Chamber of Commerce. You can read the <a href="https://www.politico.com/newsletters/morning-shift/2018/02/06/tight-shutdown-timeline-094823">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonhill020618 Camille Olson quoted in The Hill http://www.seyfarth.com:80/news/olsonhill020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Camille Olson was quoted in a February 6 story from The Hill, &quot;Lawmakers eye retirement help for gig economy workers.&quot; Olson, speaking for the Chamber of Commerce said the solution lies in adjusting the definition of an independent contractor. You can read the <a href="http://thehill.com/policy/technology/372663-lawmakers-eye-retirement-help-for-gig-economy-workers">full article here</a>.</p> http://www.seyfarth.com:80/news/mccoylaw360020618 Ryan McCoy quoted in Law360 http://www.seyfarth.com:80/news/mccoylaw360020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Ryan McCoy was quoted in Law360, &quot;Calif. Justices Mull Classification Tests In Dynamex Wage Suit,&quot; on the long-awaited California Supreme Court oral arguments in a case that experts say could bring significant implications for worker classification in the gig-economy era. McCoy said that the Dynamex case has the potential to bring much-needed certainty to how independent contractors are defined.</p> http://www.seyfarth.com:80/news/boutroscbc020618 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc020618 Tue, 06 Feb 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed February 1st on the CBC News Netowrk, &quot;What are the legal consequences of the Nunes memo?&quot; Boutros answers questions about the legal implications of the the Nunes memo - which reveals FBI surveillance activities. You can watch the <a href="http://www.cbc.ca/player/play/1155055683946">full interview here</a>.</p> http://www.seyfarth.com:80/news/wcarshrm020518 Seyfarth's Workplace Class Action Report profiled in SHRM http://www.seyfarth.com:80/news/wcarshrm020518 Mon, 05 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 5 story from SHRM, &quot;Wage and Hour Class Actions Can Cost Employers Millions,&quot; on how the top 10 employment-related lawsuits in 2017 had a combined value of $2.72 billion. The Report&#39;s author Gerald Maatman said that the growth in wage and hour settlements&mdash;which rose the past two years to a combined value of $1.2 billion&mdash;is the No. 1 exposure for corporations heading into 2018. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Wage-and-Hour-Class-Actionss.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonhelp020518 Camille Olson to Testify Before Senate HELP Committee on ‘Gig Economy’ http://www.seyfarth.com:80/news/olsonhelp020518 Mon, 05 Feb 2018 00:00:00 -0400 <p> On Tuesday, February 6, Seyfarth Shaw LLP partner Camille Olson will testify before the U.S. Senate Committee on Health, Education, Labor &amp; Pensions (HELP) on behalf of the U.S. Chamber of Commerce, where she serves as Chairwoman of its equal employment opportunity policy subcommittee.</p> <p> The Senate HELP Committee hearing, &ldquo;Exploring the &lsquo;Gig Economy&rsquo; and the Future of Retirement Savings,&rdquo; will begin at 2:30 p.m. ET; the webcast and more details can be found <a href="https://www.help.senate.gov/hearings/exploring-the-gig-economy-and-the-future-of-retirement-savings">here</a>. Camille&rsquo;s written testimony is available&nbsp;<a href="https://www.help.senate.gov/imo/media/doc/Olson3.pdf">here</a>.&nbsp;</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.</p> <p> The Chamber is the world&rsquo;s largest business federation, representing more than 3 million businesses and organizations of every size, industry sector and geographical region.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/publications/LR020518 Been Harassed? Vote Yes. How Unions Are Leveraging #MeToo To Organize Female Workers http://www.seyfarth.com:80/publications/LR020518 Mon, 05 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Union organizers are increasingly embracing the #MeToo movement as an organizing tool, claiming that unions are the key to eliminating gender inequity and sexual harassment in the workplace.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/05/been-harassed-vote-yes-how-unions-are-leveraging-metoo-to-organize-female-workers/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO020518 Will Blockchain Revolutionize Bio/Pharma R&D, Tech Transfer, and IP? http://www.seyfarth.com:80/publications/BIO020518 Mon, 05 Feb 2018 00:00:00 -0400 <p> As a special feature of our blog, we include special guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry which includes guest author Rolf J. Haag.[1]<br /> <br /> <a href="https://www.bioloquitur.com/will-blockchain-revolutionize-bio-pharma-rd-tech-transfer-ip/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS020518 Seyfarth’s Robert Milligan Co-Edits and Co-Authors New Treatise on Defend Trade Secrets Act http://www.seyfarth.com:80/publications/TS020518 Mon, 05 Feb 2018 00:00:00 -0400 <p> Robert B. Milligan, Partner and Co-Chair of Seyfarth&rsquo;s National Trade Secret, Computer Fraud, and Non-Compete practice group, just finished co-editing and co-authoring a prominent new California trade secret treatise.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/02/articles/dtsa/seyfarths-robert-milligan-co-edits-and-co-authors-new-treatise-on-defend-trade-secrets-act/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP020518a Recent Pay Equity Cases Show That Such Cases Are Ill-Suited For Class Treatment http://www.seyfarth.com:80/publications/CP020518a Mon, 05 Feb 2018 00:00:00 -0400 <p> We&rsquo;re pleased to share a thoughtful look at whether lawsuits alleging illegal pay disparities under California law are suitable as class actions. This post, recently featured on Seyfarth&rsquo;s Pay Equity Issues &amp; Insights Blog, provides some compelling reasons to argue that they&rsquo;re not.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/02/05/recent-pay-equity-cases-show-that-such-cases-are-ill-suited-for-class-treatment/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC020318 California Court “Swipes Left” And Reverses Tinder’s Age-Based Price Discrimination Win http://www.seyfarth.com:80/publications/WC020318 Sat, 03 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a class action lawsuit alleging that Tinder discriminated on the basis of age in violation of California state laws by charging consumers age 30 and over a higher price for Tinder Plus subscriptions, the California Court of Appeal recently reversed the trial court&rsquo;s judgment in favor of Tinder, holding there was no strong public policy that justified the allegedly discriminatory pricing model.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/02/california-court-swipes-left-and-reverses-tinders-age-based-price-discrimination-win/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020218 Business-Friendly Times – USDOJ Limits the Use of Agency Guidance Documents in Civil Enforcement http://www.seyfarth.com:80/publications/WSE020218 Fri, 02 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In another business-friendly move, the U.S. Department of Justice (USDOJ) recently directed its Attorneys to not use its civil enforcement authority for violations based on agency guidance documents.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/osha-enforcement/business-friendly-times-usdoj-limits-the-use-of-agency-guidance-documents-in-civil-enforcement/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WSE020218a U.S. EPA Moves Program Responsibilities Back to Resource-Starved States http://www.seyfarth.com:80/publications/WSE020218a Fri, 02 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a guidance document issued last week, U.S. EPA sets out to deliberately move environmental enforcement responsibilities back to the states. While this may, to local interests, represent a noble purpose, few states are manned and ready to take on additional responsibilities.<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-compliance/u-s-epa-moves-program-responsibilities-back-to-resource-starved-states/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM020218 February 2018 Visa Bulletin http://www.seyfarth.com:80/publications/IMM020218 Fri, 02 Feb 2018 00:00:00 -0400 <p> Where are we this month?<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/02/february-2018-visa-bulletin/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/wcarbenefitspro020218 Seyfarth's Workplace Class Action Report profiled in BenefitsPro.com http://www.seyfarth.com:80/news/wcarbenefitspro020218 Fri, 02 Feb 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a February 2 story from BenefitsPro.com, &quot;Top 10 ERISA class action settlements in 2017.&quot; Seyfarth&#39;s recently released annual report shows church plan cases dominate top settlements. You can read the <a href="http://www.benefitspro.com/2018/02/02/top-10-erisa-class-action-settlements-in-2017?slreturn=1517845374">full article here</a>.</p> http://www.seyfarth.com:80/news/karasikccr020218 Alex Karasik quoted in the Cook County Record http://www.seyfarth.com:80/news/karasikccr020218 Fri, 02 Feb 2018 00:00:00 -0400 <p> Alex Karasik was quoted in a February 2 story from the Cook County Record, &quot;Recent ruling in glutamine powder case could have far-reaching implications for class action cases, lawyer says,&quot; on how a recent ruling by a federal judge that non-Illinois residents cannot participate in a class-action suit has far-reaching implications. Karasik said that for businesses and employers facing nationwide class action lawsuits, this ruling is instructive in regards to strategies to fracture and minimize the class size, and limit potential liability. You can read the <a href="https://cookcountyrecord.com/stories/511327520-recent-ruling-in-glutamine-powder-case-could-have-far-reaching-implications-for-class-action-cases-lawyer-says">full article here</a>.</p> http://www.seyfarth.com:80/news/driznercnbc020118 Paul Drizner quoted in CNBC.com http://www.seyfarth.com:80/news/driznercnbc020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Paul Drizner was quoted in a February 1 story from CNBC.com, &quot;New tax law takes a hatchet to these worker expenses,&quot; on how the new tax code&#39;s impact on employees. Drizner said that many teachers will have to chose between spending less on their classroom or taking home less money. You can read the <a href="https://www.cnbc.com/2018/02/01/unreimbursed-employee-expenses-could-hurt-taxpayers.html">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellisfchronicle020118 Angelo Paparelli quoted in the San Francisco Chronicle http://www.seyfarth.com:80/news/paparellisfchronicle020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a February 1 story from the San Francisco Chronicle, &quot;Immigration agents raid 77 Northern California workplaces; no arrests reported.&quot; Paparelli said that serving 77 notices of inspection on different employers in the last three days within a single area of responsibility, in this case, San Francisco, appears unprecedented. You can read the <a href="https://www.sfgate.com/bayarea/article/ICE-workplace-sweep-hits-Northern-California-12544863.php">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarthcvls020118 Kevin Fritz, Rashal Baz and Kyla Miller profiled by Chicago Volunteer Legal Services http://www.seyfarth.com:80/news/seyfarthcvls020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Kevin Fritz, Rashal Baz and Kyla Miller were profiled in a February 1 story by Chicago Volunteer Legal Services (CVLS), &quot;Team Seyfarth Shaw Reporting For Duty.&quot; Working with CVLS&#39; Guardians Ad Litem (GAL) program, the Seyfarth team helped ensure safe living environments for elderly clients. You can read the <a href="https://www.cvls.org/sites/all/files/newsletter/news18feb.pdf">full story on p. 4 here</a>.</p> http://www.seyfarth.com:80/publications/weissinlander020118 Philippe Weiss authored an article in The Inlander http://www.seyfarth.com:80/publications/weissinlander020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Philippe Weiss authored a February 1 article in The Inlander, &quot;Building A Culture Of Accountable Allies.&quot; Weiss writes that organizations must help employees at all levels to find a voice so that they can react and respond quickly to disrespect on behalf of others. You can read the <a href="http://www.inlandpress.org/stories/building-a-culture-of-accountable-allies,8736">full article&nbsp;here</a>.</p> http://www.seyfarth.com:80/publications/ADA020118 ADA Title III Lawsuits Increase by 14% Percent in 2017 Due Largely to Website Access Lawsuits; Physical Accessibility Legislative Reform Efforts Continue http://www.seyfarth.com:80/publications/ADA020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The number of federal ADA Title III lawsuits continue to surge in 2017, fueled largely by website accessibility claims; while legislative reform efforts continue to mitigate the physical accessibility portion of those lawsuit numbers.<br /> <br /> <a href="https://www.adatitleiii.com/2018/02/ada-title-iii-lawsuits-increase-by-14-percent-in-2017-due-largely-to-website-access-lawsuits-physical-accessibility-legislative-reform-efforts-continue/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/LR020118 Employers Beware: Potential Rise in Union Corporate Campaigns http://www.seyfarth.com:80/publications/LR020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Although many employers may think they can let their guard down a little bit when it comes to the NLRB under the Trump Administration, history suggests otherwise. During the last Republican Administration, labor unions often decided to wage their battles outside the NLRB, using tactics like the &ldquo;corporate campaign.&rdquo; Although corporate campaigns have been around for a long time and continued even during the Obama Administration, union corporate campaign activity during the Bush Administration suggests that employers would be well advised to implement strategies aimed at reducing their vulnerability to such campaigns and effectively responding to such campaigns in the event they become a target.<br /> <br /> <a href="https://www.employerlaborrelations.com/2018/02/01/employers-beware-potential-rise-in-union-corporate-campaigns/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL020118 Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/EL020118 Thu, 01 Feb 2018 00:00:00 -0400 <p> Seyfarth Synopsis: On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (CFPB) Acting Director, Mick Mulvaney, issued a mission statement to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/02/under-new-leadership-cfpb-no-longer-interested-in-pushing-the-envelope-on-consumer-protection-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM020118-LE Maine Employees Now Protected From Repercussions of Off-Duty Marijuana Use http://www.seyfarth.com:80/publications/OMM020118-LE Thu, 01 Feb 2018 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On November 8, 2016, Maine voters approved &ldquo;Question 1 &ndash; An Act to Legalize Marijuana&rdquo; (&ldquo;the Act&rdquo;), which allows for, among other things, the recreational use of marijuana. The Act contains within it an anti-discrimination in employment provision, which is effective today, February 1, 2018, making it the first law of its kind in the nation because it protects employees and applicants from adverse employment action based on their use of off-duty and off-site marijuana.</em><br /> <br /> The Act prohibits employers from refusing to employ or otherwise taking any adverse action against any person age 21 or older based on that individual&rsquo;s &ldquo;consuming marijuana outside the &hellip; employer&rsquo;s &hellip; property.&rdquo; &nbsp;However, the Act permits employers to bar the use and possession of marijuana &ldquo;in the workplace&rdquo; and to &ldquo;discipline employees who are under the influence of marijuana in the workplace.&rdquo; &nbsp;Employers may no longer test job applicants for marijuana. &nbsp;Moreover, according to the Maine Department of Labor, &nbsp;an employee&rsquo;s positive drug test, by itself, will not be sufficient to prove that the employee is &ldquo;under the influence&rdquo; of marijuana. Of course, employers required to&nbsp;comply with federally mandated testing for marijuana (e.g., U.S. Department of Transportation regulated employers) are not subject to the Act.&nbsp;&nbsp;<br /> <br /> As a reminder, Maine employers may drug test applicants and employees if they have a written drug testing policy that has been approved by the Maine Department of Labor. This is no small feat because the policy must, among other things, address specific topics set out in the statute (such as, among others, which positions will be subject to testing, substances tested for and cutoff levels, and the consequences of a positive result), and the employer <strong><em><u>must</u></em></strong> &ldquo;appoint an employee committee to develop a written policy&rdquo; and&nbsp;consult with those employees in the &ldquo;development of any portion of a substance abuse testing policy ... that relates to the employees.&rdquo; However, the employer is not required to consult with the employees on those portions of a policy that relate only to applicants. It is only after the policy is submitted to and approved by the state can the employer drug test Maine applicants and employees.&nbsp;</p> <p> In the meantime, Maine employers that do have a state-approved&nbsp;workplace drug-testing policy should consider (1)&nbsp;modifications to their existing policy, (2) whether to continue testing employees for marijuana, except when the test is based on reasonable suspicion of an impairment at work, (3) immediately discontinuing testing applicants for marijuana and (4) determining how best to address any employee positive test result for marijuana.&nbsp;Maine employers also must continue to be mindful of the state&rsquo;s&nbsp;medical&nbsp;marijuana law. It remains to be seen, however, whether the anti-discrimination portion of the Act will be upheld given the conflict between it and federal law, which still considers marijuana an unlawful controlled substance.&rdquo;</p> http://www.seyfarth.com:80/publications/finkellucehr013118 Noah Finkel and Cheryl Luce authored an article in HR.com http://www.seyfarth.com:80/publications/finkellucehr013118 Wed, 31 Jan 2018 00:00:00 -0400 <p> Noah Finkel and Cheryl Luce authored a January 31 story in HR.com, &quot;Tip Pooling Rule: What Next?: DOL finally sounds the death knell for the rule.&quot; You can read the <a href="https://www.hr.com/en/magazines/legal_compliance_excellence_essentials/february_2018_hr_legal_compliance/tip-pooling-rule-what-next-dol-finally-sounds-the-_jd2tup0n.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA013118-LIT Manhattan District Attorney’s Office Forms New “Work-Related Sexual Violence Team” http://www.seyfarth.com:80/publications/MA013118-LIT Wed, 31 Jan 2018 00:00:00 -0400 <div> In further demonstration of how law enforcement is being faced with new challenges in light of the recent attention paid to work-related sexual violence, Manhattan District Attorney Cyrus R. Vance, Jr., just announced a new effort to engage and encourage alleged victims of work-related sexual violence to report these incidents. His Office will be deploying specially-trained sex crimes prosecutors to swiftly investigate such reports. Staffed by 15 Assistant District Attorneys and a social worker, the Work-Related Sexual Violence Team will be led by seasoned prosecutors with years of experience in the investigation and prosecution of sexual assault.</div> <div> &nbsp;</div> <div> As District Attorney Vance explained, &ldquo;Work-related relationships grant predators unique access to people who are vulnerable to sexual abuse and assault due to the power imbalance inherent in so many work hierarchies. When an act of work-related sexual misconduct constitutes a crime, it is not enough that the abuser loses his job or his industry cachet&mdash;justice demands, and survivors deserve, that criminal abusers be held accountable in court.&rdquo;&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Thanking those who have come forward and the new team he has assembled, Vance noted that these individuals &ldquo;are serving on the front lines of justice as this historic moment of reckoning arrives.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Hoping to garner support for the initiative, Vance introduced Gloria Steinem, noted activist and author. Steinem praised the initiative noting that &ldquo;It puts New York City in the leadership of the country, and more important, increases the safety and dignity of women in the workplace. From the executive suite to the night cleaning crew, justice may be only a phone call away.&rdquo;</div> <div> &nbsp;</div> <h2> The Specifics</h2> <div> Assistant District Attorneys will receive specialized training in &ldquo;Forensic Experiential Trauma Interview&rdquo; (FETI) techniques. FETI is a trauma-informed interviewing practice designed to minimize the use of questions that cause victims to relive their assaults.</div> <div> &nbsp;</div> <div> In addition, Manhattan Sex Crimes Unit prosecutors will regularly conduct trainings to help New Yorkers better identify and report sexual assault. This initiative will now be broadened to focus on workplace-related conduct.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> The Work-Related Sexual Violence Team will encourage anyone who believes a sex crime has occurred in Manhattan to call the District Attorney&rsquo;s Sex Crimes &ldquo;24/7/365&rdquo; Hotline at 212-335-9373. In addition to victims, others who become aware of work-related sexual misconduct&mdash;including company executives and human resources personnel&mdash;are encouraged to call the Hotline.</div> <div> &nbsp;</div> <div> The Work-Related Sexual Violence Team will also work in close collaboration with the New York City Police Department&rsquo;s Special Victims Division. Victims of sexual violence committed anywhere in New York City can also call the NYPD&rsquo;s hotline at 212-267-RAPE.</div> <div> &nbsp;</div> <div> This initiative, the first of its kind in New York, will likely be the prototype for similar initiatives across the country as victims, and society at large, become more aware of, and more vocal in their opposition to, the issue of sexual violence in the workplace.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WSE013118 EPA Withdraws “Once In Always In” Policy for Major HAP Sources http://www.seyfarth.com:80/publications/WSE013118 Wed, 31 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In another example of business-friendly regulatory agency actions, the U.S. Environmental Protection Agency has just rescinded the &ldquo;Seitz Memo&rdquo; associated with the &ldquo;Once In, Always In&rdquo; policy affecting the classification of certain major sources of hazardous air pollutants under section 112 of the Clean Air Act. Memorandum: Reclassification of Major Sources as Area Sources under Section 112 of the Clean Air Act, William L. Wehrum, Assistant Administrator, Office of Air and Radiation, U.S. Environmental Protection Agency (January 25, 2018) (Reclassification Memo).<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/environmental-compliance/epa-withdraws-once-in-always-in-policy/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CP013118 Our Ear in the Crowd: FEHC Hears Comments on New Regulations http://www.seyfarth.com:80/publications/CP013118 Wed, 31 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The Fair Employment and Housing Council issues regulations to implement California&rsquo;s employment and housing anti-discrimination laws, including the FEHA, the CFRA, and the Unruh and Ralph Civil Rights Acts. The FEHC also conducts inquiries and holds hearings on various civil rights issues. The latest FEHC meeting was held on December 11, 2017. Our own correspondent was there, and files this report of coming regulatory attractions in the areas of age discrimination, religious creed discrimination, and national origin discrimination.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/31/our-ear-in-the-crowd-fehc-hears-comments-on-new-regulations/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/weissap013118 Philippe Weiss quoted in the Associated Press http://www.seyfarth.com:80/news/weissap013118 Wed, 31 Jan 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a January 31 story from the Associated Press, &quot;No penalty: Small businesses let sports fans enjoy big games,&quot; on how small business owners and managers are cutting staffers a little slack to chat about big sporting events. Weiss said that a flexible attitude is a good management practice for company owners. You can read the <a href="https://apnews.com/654b39a0e420412d83674b26e4074de7/No-penalty:-Small-businesses-let-sports-fans-enjoy-big-games">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanbi013018 Gerald Maatman quoted in Business Insurance http://www.seyfarth.com:80/news/maatmanbi013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> Gerald Maatman was quoted in a January 30 story from Business Insurance, &quot;One year later: Trump administration continues regulation cuts.&quot; Maatman said that at the U.S. Equal Employment Opportunity Commission, in particular, there will be a claw back from the field with respect to the decision-making on which lawsuits to be filed especially on the systemic front. You can read the <a href="http://www.businessinsurance.com/article/20180130/NEWS06/912318822/One-year-later-Trump-administration-continues-regulation-cuts">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarwje013018 Seyfarth's Workplace Class Action Report profiled in Westlaw Journal Employment http://www.seyfarth.com:80/news/wcarwje013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Repoprt was profiled in a January 30 issue of Westlaw Journal Employment, &quot;Employment-related settlements shattered records in 2017, Seyfarth report says.&quot; The Report&#39;s author Gerald Maatman said that a ruling expected by June from the high court on the validity of class-action waivers in employment agreements could radically reshape the litigation landscape in employers&#39; favor.</p> http://www.seyfarth.com:80/publications/WSE013018 California Moves Closer to Regulating Hotels Toward Musculoskeletal Injury Prevention http://www.seyfarth.com:80/publications/WSE013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any &ldquo;musculoskeletal injury.&rdquo;<br /> <br /> <a href="https://www.environmentalsafetyupdate.com/states/california/california-moves-closer-to-regulating-hotels-toward-musculoskeletal-injury-prevention/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS013018 Wisconsin U.S. Attorneys Actively Prosecuting Trade Secret Theft—With Mixed Results http://www.seyfarth.com:80/publications/TS013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> The United States Attorneys&rsquo; Offices in Wisconsin criminally prosecuted two trade secret theft cases last week. In the Eastern District of Wisconsin (United States of America v. Tan Liu), the United States charged a former employee, Tan Liu, with 12 counts of stealing trade secrets from his former employer, Rockwell Automation, Inc. According to the government, in the last few weeks of his Rockwell employment, and in anticipation of leaving Rockwell for a new employer, Liu downloaded 2,500 files that contained the proprietary software and source code Rockwell uses to operate various systems and controllers.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/wisconsin-u-s-attorneys-actively-prosecuting-trade-secret-theft-with-mixed-results/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA013018 Central District of California Finds No ERISA Preemption Where Determination of Benefits at Termination Is Non-Discretionary http://www.seyfarth.com:80/publications/ERISA013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Claims for benefits at termination may proceed as a breach of contract claim in state court, and avoid ERISA preemption, where the calculations are individualized, straightforward and do not implicate an ongoing administrative scheme.<br /> <br /> <a href="https://www.erisa-employeebenefitslitigationblog.com/2018/01/30/central-district-of-california-finds-no-erisa-preemption-where-determination-of-benefits-at-termination-is-non-discretionary/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL013018 Tenth Circuit Leaves Unresolved When Off-Campus Social Media Posts Can Subject Students to Discipline http://www.seyfarth.com:80/publications/EL013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The U.S. Court of Appeals for the Tenth Circuit&rsquo;s recent opinion in Yeasin v. Durham, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the &ldquo;tension between some students&rsquo; free-speech rights and other students&rsquo; Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.&rdquo; The Court of Appeals did not specify a test to be applied when a student&rsquo;s alleged First Amendment right to free speech intersects another student&rsquo;s alleged right to be free from harassment in a university community, but did affirm the district court&rsquo;s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/tenth-circuit-leaves-unresolved-when-off-campus-social-media-posts-can-subject-students-to-discipline/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO013018 FDA Issues New Guidance for IND Sponsors http://www.seyfarth.com:80/publications/BIO013018 Tue, 30 Jan 2018 00:00:00 -0400 <p> In late December the FDA issued a new guidance, entitled &ldquo;Best Practices for Communication Between IND Sponsors and FDA During Drug Development.&rdquo; The purpose of the guidance is to &ldquo;describe best practices and procedures for timely, transparent, and effective communications between investigational new drug application (IND) sponsors and FDA at critical junctures in drug development.&rdquo; The hope is the guidance facilitates an earlier availability of safe, effective and high-quality drugs to the American public, including biosimilars.<br /> <br /> <a href="https://www.bioloquitur.com/fda-issues-new-guidance-ind-sponsors/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA013018-LE Tenth Circuit Leaves Unresolved When Off-Campus Social Media Posts Can Subject Students to Discipline http://www.seyfarth.com:80/publications/MA013018-LE Tue, 30 Jan 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: The U.S. Court of Appeals for the Tenth Circuit&rsquo;s recent opinion in </em><a href="https://laborandemploymentlawcounsel.lexblogplatform.com/wp-content/uploads/sites/224/2018/01/Yeasin-v-Durham-U-of-Kansas-10-Cir-16-3367.pdf"><em>Yeasin v. Durham</em></a><em>, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the &ldquo;tension between some students&rsquo; free-speech rights and other students&rsquo; Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.&rdquo;&nbsp; The Court of Appeals did not specify a test to be applied when a student&rsquo;s alleged First Amendment right to free speech intersects another student&rsquo;s alleged right to be free from harassment in a university community, but did affirm the district court&rsquo;s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.</em></p> <p> The court specifically refrained from deciding &ldquo;whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.&rdquo;&nbsp; The Court&rsquo;s analysis in this case is of particular interest to public colleges, universities and schools who grapple with managing and balancing student First Amendment rights and the responsibility to maintain an educational environment free from harassment.</p> <p> <strong>Background and Procedural History </strong></p> <p> In November, 2013, Dr. Tammara Durham, Vice Provost for Student Affairs, made a decision to expel Navid Yeasin from the University of Kansas (&ldquo;KU&rdquo;) after her review of a hearing panel&rsquo;s findings of fact based on a preponderance of the evidence that Yeasin had violated KU&rsquo;s sexual harassment policy by engaging in conduct which included posting off-campus social media tweets making derogatory statements about his ex-girlfriend&rsquo;s body, but not naming her.</p> <p> Yeasin proceeded to contest the expulsion in Kansas state court which concluded that the findings, adopted by Dr. Durham, &ldquo;were not supported by substantial evidence&rdquo; and that &ldquo;KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.&rdquo; &nbsp;KU appealed, arguing that its interpretation of &nbsp;KU&rsquo;s Code of Conduct was &ldquo;consistent with the obligations imposed on it under Title IX&rdquo; and allowed for the University to expel Yeasin since its student code allowed for students to be punished for off-campus conduct that violates federal, state, or local law. &nbsp;In September 2015, that court affirmed the lower state court&rsquo;s findings and Yeasin subsequently re-enrolled at KU.</p> <p> Thereafter, Yeasin brought suit in federal court against Dr. Durham under 42 U.S.C. Section 1983 alleging her action to expel him from KU for the content of his on-line, off campus speech violated his First Amendment right to free speech and his Fourteenth Amendment right to substantive due process.&nbsp; He sought monetary damages claiming that KU&rsquo;s wrongful expulsion delayed completion of his education, cost him lost employment and wages, and caused him emotional distress and mental anguish.&nbsp; Dr. Durham moved to dismiss both of Yeasin&rsquo;s claims on qualified-immunity grounds.&nbsp; The federal district court granted Dr. Durham&rsquo;s motion to dismiss, concluding that she did not violate Yeasin&rsquo;s clearly established rights under the First and Fourteenth Amendments.&nbsp; On January 5, 2018, the Tenth Circuit Court of Appeals affirmed.&nbsp;</p> <p> <strong>The Tenth Circuit Court of Appeals Analysis and Findings </strong></p> <p> Qualified immunity protects government officials from liability for civil damages if their conduct &ldquo;does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.&rdquo; In order to overcome this defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, <em>and</em> (2) that the right was clearly established. The Court of Appeals here found that Yeasin&rsquo;s claim failed the second prong of this analysis.</p> <p> In reaching its conclusion, the Court analyzed free speech cases in secondary school and college/university settings including consideration of <a href="https://supreme.justia.com/cases/federal/us/393/503/case.html"><em>Tinker v. Des Moines Indep. Community Sch. Dist.</em></a>, 393 U.S. 503 (1969) (finding that, while secondary-school students retained free-speech rights, schools can still prohibit actions that &ldquo;would materially and substantially disrupt the work and discipline of the school&hellip;&rdquo;); <a href="https://supreme.justia.com/cases/federal/us/551/393/"><em>Morse v. Frederick</em></a>, 551 U.S. 393 (2007) (allowing a K-12 school to discipline a student for flying a banner reading &ldquo;BONG HiTs 4 JESUS&rdquo; at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); <a href="https://www.law.cornell.edu/supremecourt/text/478/675"><em>Bethel Sch. Dist. No. 403 v. Fraser</em></a>, 478 U.S. 675 (1986) (K-12 schools can restrict lewd, vulgar, or indecent speech even without a forecast of disruption); and <a href="https://supreme.justia.com/cases/federal/us/484/260/case.html"><em>Hazelwood Sch. Dist. v. Kuhlmeier</em></a>, 484 U.S. 260, 273 (1988) (allowing public officials to restrict K-12 school-sponsored speech).</p> <p> Yeasin argued that First Amendment cases which allow for the restriction of student speech in the secondary school context cannot be applied in the university context in the same way. Rather, Yeasin argued that cases including <a href="https://supreme.justia.com/cases/federal/us/410/667/"><em>Papish v. Bd. of Curators of the Univ. of Missouri</em></a>, 410 U.S. 667 (1973) (addressing distribution of newspaper in the university setting &ldquo;containing forms of indecent speech&rdquo;); <a href="https://supreme.justia.com/cases/federal/us/454/263/case.html"><em>Widmar v. Vincent</em></a>, 454 U.S. 263 (1981) (addressing a university&rsquo;s refusal to allow a registered religious student group to meet in university buildings); and <em>Healy v. Jame</em>s, 408 U.S. 169 (1972) (addressing a state college&rsquo;s refusal to officially recognize a student group known because of its potential affiliation with a national organization known for campus disruption) should be applied.&nbsp; The Tenth Circuit Court of Appeals distinguished the cases advanced by Yeasin noting that the cases didn&rsquo;t concern &ldquo;university-student conduct that interferes with the rights of other students or risks disrupting campus order.&rdquo;&nbsp; The Court also countered with language from <em>Widmar</em>, quoting <em>Healy</em>, which &ldquo;suggests that the Supreme Court believes that the material-and-substantial-disruption test applies in the university setting.&rdquo;&nbsp; Ultimately, the Tenth Circuit Court of Appeals concluded that Yeasin could not establish that Dr. Durham had violated clearly established law when she took action to expel him, in part, for his off-campus social media tweets.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <p> The Court considered Yeasin&rsquo;s substantive due process argument, and found that it was flawed. The Court reasoned that Yeasin needed to show that the school&rsquo;s decision to expel him was arbitrary, lacked a rational basis, or shocked the conscience. <a href="https://openjurist.org/341/f3d/1197/butler-v-rio-rancho-public-schools-board-of-education"><em>Butler v. Rio Rancho Pub. Sch. Bd. of Educ.</em></a>, 341 F.3d 1197, 1200 (10th Cir. 2003). The court declined to resolve the question of whether Dr. Durham&rsquo;s decision to expel Yeasin violated his right to substantive due process, and limited its opinion to a finding that she violated no clearly established law in doing so.</p> <p> The need for college and university administrators and school officials to navigate their legal obligations when addressing decisions to discipline a student for off-campus speech on social media will no doubt remain a prevailing issue, especially when such conduct implicates the rights of another student to be educated in a harassment-free learning environment.&nbsp; Not surprisingly, KU modified its student code of conduct after this incident to explicitly extend its disciplinary jurisdiction to off-campus incidents.</p> <p> Seyfarth Shaw continues to monitor the developments in the battle between the First Amendment right to freedom of speech and rights under Title IX to an educational environment free of sexual harassment.&nbsp; We will keep our readers apprised.&nbsp; &nbsp;</p> http://www.seyfarth.com:80/publications/OMM013018-LIT Federal Trade Commission Announces 2018 Hart-Scott-Rodino Act Thresholds http://www.seyfarth.com:80/publications/OMM013018-LIT Tue, 30 Jan 2018 00:00:00 -0400 <div> On Friday, January 27, 2018, the Federal Trade Commission (FTC) <a href="https://www.ftc.gov/news-events/press-releases/2018/01/ftc-announces-annual-update-size-transaction-thresholds-premerger">announced</a> the revised &ldquo;size of transaction&rdquo; thresholds for 2018 for reporting proposed mergers and acquisitions under Section 7A of the Clayton Act, as added by the Hart-Scott-Rodino (HSR) Antitrust Improvements Act of 1976 (15 U.S.C. &sect; 18a).</div> <div> &nbsp;</div> <div> Under the size-of-transaction thresholds for 2018, parties must file the required HSR notification with the FTC and U.S. Department of Justice (DOJ) for all transactions valued above $337.6 million. Parties to transactions valued between $84.4 million and $337.6 million must also file the required HSR notification with the FTC and DOJ if they meet the &ldquo;size of parties&rdquo; threshold. For 2018, the size-of-parties thresholds will increase to $16.9 million and $168.8 million.&nbsp;</div> <div> &nbsp;</div> <div> The FTC adjusts these thresholds annually based on changes in gross national product. The new thresholds will become effective on February 28, 2018, and will apply to all transactions that close on or after that effective date.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM012918-LIT Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/OMM012918-LIT Mon, 29 Jan 2018 00:00:00 -0400 <div> On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (&ldquo;CFPB&rdquo;) Acting Director, Mick Mulvaney, issued a <a href="http://www.seyfarth.com/dir_docs/publications/Mulvaney-Memo.pdf">mission statement</a> to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Mulvaney made clear that he did not see the CFPB as the &ldquo;good guys&rdquo; out to fight the &ldquo;bad guys,&rdquo; but instead he noted that the agency would treat both consumers and financial services companies fairly and equally. To that end, the CFPB will focus its enforcement efforts on quantifiable and unavoidable harm to the consumer. Where no such harm exists, the agency will not go looking for excuses to bring lawsuits.</div> <div> &nbsp;</div> <div> With regards to regulation, Mulvaney promised formal rulemaking on which financial institutions and other regulated businesses can rely and less regulation by enforcement. The CFPB will prioritize its efforts on debt collection because of the high number of consumer complaints on that issue. In contrast, Mulvaney noted that only 0.9% of complaints received by the CFPB related to prepaid credit cards and only 2% to payday lending. As such, less focus will be given to those areas.</div> <div> &nbsp;</div> <div> Mulvaney also promised &ldquo;a lot more math in our future,&rdquo; a reference to the Dodd Frank Act&rsquo;s requirement to consider the potential costs and benefits to consumers and covered persons. Mulvaney indicated that a true consideration of costs and benefits likely requires more quantitative analyses into the impact the agency&rsquo;s actions have on the public.</div> <div> &nbsp;</div> <div> Mulvaney&rsquo;s mission statement suggests that unlike under his predecessor, the CFPB will no longer &ldquo;push the envelope.&rdquo; Instead, the CFPB will enforce the law in furtherance of its congressional mandate by regulating more through rulemaking and less through ad hoc enforcement actions.&nbsp; Enforcement through rulemaking should result in a more balanced and fair approach that considers the interests of consumers and businesses alike, while providing certainty and stability with regards to the country&rsquo;s consumer protection laws. Moreover, focusing enforcement on quantifiable harm to consumers is good for business because businesses can focus more on providing services that comply with existing law without concern for what might be coming down the pike from the agency. Time will tell what impact Mulvaney&rsquo;s leadership will have on the future of the CFPB, consumers, and financial services providers.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/TS012918 Are Financial Services Firms Reconsidering the Protocol? http://www.seyfarth.com:80/publications/TS012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> The Protocol for Broker Recruiting (&ldquo;Protocol&rdquo;) allows for reciprocal poaching of brokers. More specifically, if a broker leaves one Protocol firm for another Protocol firm, the broker can a) take certain account information (client names, addresses, telephone numbers, e-mail addresses, and account title information) to his/her new firm and b) solicit the clients he/she serviced at his/her former firm. Naturally then, the Protocol&rsquo;s requirements conflict with confidentiality and restrictive covenant provisions that are commonly found in broker employment agreements and firm policies.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/restrictive-covenants/are-financial-services-firms-reconsidering-the-protocol/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/johnsoncnn012918 Randel Johnson quoted in CNN http://www.seyfarth.com:80/news/johnsoncnn012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Randel Johnson was quoted in a January 29 story from CNN, &quot;Reality sets in that DACA deal might not get done.&quot; Johnson said that he thinks the danger is both sides begin posturing to their respective bases and both sides will walk away earning brownie points with their bases and get nothing done. You can read the <a href="https://www.cnn.com/2018/01/29/politics/daca-deal-reality/index.html">full article here</a>.</p> http://www.seyfarth.com:80/news/bloomberglawjohnson012918 Randel Johnson quoted in Bloomberg Law http://www.seyfarth.com:80/news/bloomberglawjohnson012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Randel Johnson was quoted in a January 29 story from Bloomberg Law, &quot;PUNCHING IN: State of Labor,&quot; on the news that NLRB General Counsel Peter Robb is thinking about overhauling the regional director system. Johnson said that it&rsquo;s important that the general counsel tell regional directors it&rsquo;s time to take a more balanced approach to these cases.</p> http://www.seyfarth.com:80/news/karasikforbes012918 Alex Karasik quoted in Forbes http://www.seyfarth.com:80/news/karasikforbes012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Alex Karasik was quoted in a January 29 story from Forbes, &quot;EEOC Loses Again As It Backs Muslim Women Who Say They Weren&#39;t Hired Because Of Hijabs.&quot; Karasik said that employers should carefully consider any and all requests for accommodations, including requests made during the hiring process. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2018/01/29/eeoc-loses-again-as-it-backs-muslim-women-who-say-they-werent-hired-because-of-hijabs/#3004e6796b89">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlettbloomberglaw012918 Brett Bartlett quoted in Bloomberg Law http://www.seyfarth.com:80/news/bartlettbloomberglaw012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Brett Bartlett was quoted in a January 29 story from Bloomberg Law, &quot;Courts Get Discovery Guidance for Federal Wage Cases,&quot; on how the Federal Judicial Center recently developed a set of protocols for plaintiffs and defendants in wage and hour cases to exchange information and documents early in litigation. Bartlett said that any time you add structure to how a case begins so that parties are forced to exchange information and speak with one another, it becomes more likely that they&rsquo;ll work together.</p> http://www.seyfarth.com:80/news/gesinskyhrdive012918 Loren Gesinsky quoted in HR Dive http://www.seyfarth.com:80/news/gesinskyhrdive012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Loren Gesinsky was quoted in a January 29 story from HR Dive, &quot;Wage and hour gets a shakeup from litigation, state laws,&quot; on how the influx of state and local laws has been the most pressing challenge for HR professionals. Gesinsky said that there is definitely a trend at local and state levels that&rsquo;s really rampant around the country. You can read the <a href="https://www.hrdive.com/news/wage-and-hour-gets-a-shakeup-from-litigation-state-laws/515179/">full article here</a>.</p> http://www.seyfarth.com:80/news/shermanfnr012918 Andrew Sherman interviewed on Federal News Radio http://www.seyfarth.com:80/news/shermanfnr012918 Mon, 29 Jan 2018 00:00:00 -0400 <p> Andrew Sherman was interviewed January 29th on Federal News Radio, &quot;3 pillars of success: human, financial and intellectual capital.&quot; Sherman talks about the sandtraps that every entrepreneur must avoid. You can listen to the <a href="https://federalnewsradio.com/whats-working-washington/2018/01/3-pillars-of-success-human-financial-and-intellectual-capital/">full interview here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc012718 Andrew Boutros interviewed on CBC News Network http://www.seyfarth.com:80/news/boutroscbc012718 Sat, 27 Jan 2018 00:00:00 -0400 <p> Andrew Boutros was interviewed January 27th on CBC News Network, &quot;U.S. President Donald Trump willing to testify in Mueller investigation.&quot; Boutros breaks down what U.S. President Donald Trump testifying under oath to special counsel Robert Mueller could look like. You can watch the <a href="http://www.cbc.ca/player/play/1149631043770">full interview here</a>.</p> http://www.seyfarth.com:80/news/wcarxperthr012618 Seyfarth's Workplace Class Action Report profiled in Xpert HR http://www.seyfarth.com:80/news/wcarxperthr012618 Fri, 26 Jan 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 26 story from Xpert HR, &quot;Workplace Class Action Settlements Escalated in 2017, but Employers Had Wins Too.&quot; The Report&#39;s author Gerald Maatman said that he can tell when an organization fundamentally has a good HR function &ndash; there should be a high number of internal complaints and resolutions and a low number of outside complaints. You can read the <a href="http://www.xperthr.com/blog/2018/01/26/workplace-class-action-settlements-escalated-in-2017-but-employers-had-wins-too/">full article here</a>.</p> http://www.seyfarth.com:80/news/wcarhre012618 Seyfarth's Workplace Class Action Report profiled in Human Resource Executive http://www.seyfarth.com:80/news/wcarhre012618 Fri, 26 Jan 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 26 story from Human Resource Executive, &quot;Workplace Litigation Report Offers Mixed Bag.&quot; The Report&#39;s author Gerald Maatman predicts employers should see a precipitous drop both in the number of filings and in the settlement amounts with respect to those cases in 2018. You can read the <a href="http://hreonline.com/litigation/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CCD012618 Under New Leadership, CFPB No Longer Interested in Pushing the Envelope on Consumer Protection Laws http://www.seyfarth.com:80/publications/CCD012618 Fri, 26 Jan 2018 00:00:00 -0400 <p> On January 23, 2018, the Consumer Financial Protection Bureau&rsquo;s (&ldquo;CFPB&rdquo;) Acting Director, Mick Mulvaney, issued a mission statement to the CFPB redirecting the agency&rsquo;s mission and focus. Mulvaney emphasized that the law mandates the enforcement of consumer protection laws and that, although things would be different under new leadership, the CFPB will continue to fulfill its mandate.<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/under-new-leadership-cfpb-no-longer-interested-in-pushing-the-envelope-on-consumer-protection-laws/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM012618 Auto Extension Influx: Automatic Extension of El Salvador TPS EADs http://www.seyfarth.com:80/publications/IMM012618 Fri, 26 Jan 2018 00:00:00 -0400 <p> United States Citizenship and Immigration Services (USCIS) issued automatic extensions of Employment Authorization Documents (EADs) for Temporary Protected Status (TPS) beneficiaries from Nicaragua, Honduras, Haiti, and most recently, El Salvador. Employers should be prepared to recognize these automatically extended EADs and correctly handle the resulting influx of Form I-9 updates.<br /> <br /> <a href="https://www.bigimmigrationlawblog.com/2018/01/auto-extension-influx-automatic-extension-of-el-salvador-tps-eads/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012618 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court Video http://www.seyfarth.com:80/publications/WC012618 Fri, 26 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Earlier this week, our blog posting analyzed pivotal rulings by the U.S. Supreme Court in 2017, which was the penultimate trend of this year&rsquo;s Workplace Class Action Report (WCAR). In today&rsquo;s finale of the WCAR video series, author Jerry Maatman provides his analysis on the Supreme Court jurisprudence for our readers. In addition to outlining the highlights of 2017, Jerry discusses the importance of the Supreme Court itself, as well as what hot topics employers should monitor in 2018. Watch our video in the link below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court-video/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012518 DOJ To Announce Criminal Enforcement Actions For “No-Poach” Agreements http://www.seyfarth.com:80/publications/WC012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent. Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/doj-to-announce-criminal-enforcement-actions-for-no-poach-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS012518 DOJ to Announce Criminal Enforcement Actions for “No-Poach” Agreements http://www.seyfarth.com:80/publications/TS012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent. Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.<br /> <br /> <a href="https://www.tradesecretslaw.com/2018/01/articles/trade-secrets/doj-to-announce-criminal-enforcement-actions-for-no-poach-agreements/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA012518-LE DOJ To Announce Criminal Enforcement Actions For “No-Poach” Agreements http://www.seyfarth.com:80/publications/MA012518-LE Thu, 25 Jan 2018 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Criminal prosecution of &ldquo;no-poaching/no-hire&rdquo; agreements appears imminent.&nbsp; Employers should investigate their hiring and compensation practices to ensure compliance with recent antitrust pronouncements.</em></p> <p> <strong>Background</strong></p> <p> In October 2016, the U.S. Department of Justice (&ldquo;DOJ&rdquo;) and the Federal Trade Commission (&ldquo;FTC&rdquo;) under the Obama Administration issued a joint Antitrust Guidance for Human Resource Professionals (&ldquo;HR Guidance,&rdquo; available <a href="https://www.justice.gov/atr/file/903511/download">here</a>).&nbsp; Among other things, the HR Guidance announced that so-called &ldquo;naked&rdquo; agreements among employers not to recruit employees or not to compete on employee compensation would be considered <em>per se</em> violations of the antitrust laws and prosecuted criminally.&nbsp;</p> <p> On September 12, 2017, at the Global Antitrust Enforcement Symposium, then Acting Assistant Attorney General Andrew Finch reiterated that such &ldquo;naked&rdquo; agreements may be prosecuted criminally.&nbsp; Thus, although the Trump Administration has withdrawn other Obama-era employment law policy statements (<em>see, e.g</em>., News Release: US Secretary Of Labor Withdraws Joint Employment, Independent Contractor Informal Guidance, available <a href="https://www.dol.gov/newsroom/releases/opa/opa20170607">here</a>), it has adopted the Obama Administration&rsquo;s position as stated in the HR Guidance.</p> <p> <strong>Most Recent Developments</strong></p> <p> According to reported statements by current Assistant Attorney General Makan Delrahim, Finch&rsquo;s comments were not empty words.&nbsp; On January 19, 2018, at a conference sponsored by the Antitrust Research Foundation at George Mason University, Delrahim announced that DOJ had been &ldquo;very active&rdquo; in reviewing potential violations of the antitrust laws resulting from agreements among employers not to compete for workers (reports from that conference are available <a href="https://biglawbusiness.com/justice-dept-is-going-after-no-poach-agreements/">here</a> and <a href="https://www.law360.com/competition/articles/1003788/delrahim-says-criminal-no-poach-cases-are-in-the-works">here</a>).&nbsp;</p> <p> Reportedly, Delrahim went on to say that &ldquo;[i]n the coming couple of months you will see some announcements, and to be honest with you, I&rsquo;ve been shocked about how many of these there are, but they&rsquo;re real.&rdquo;&nbsp; According to Delrahim, if the conduct occurred or continued after issuance of the HR Guidance, the DOJ will treat those agreements as criminal.</p> <p> <strong>Antitrust Legality Of &ldquo;No-Poaching&rdquo; Agreements</strong></p> <p> &ldquo;No-poaching&rdquo; agreements are agreements between or among two or more employers not to solicit each other&rsquo;s employees.&nbsp; They are similar to, but slightly different from, &ldquo;no-hire&rdquo; agreements (sometimes referred to as &ldquo;no-switching&rdquo; agreements).&nbsp; A &ldquo;no-poaching&rdquo; agreement merely prohibits the solicitation of employees; if an employee applies without solicitation, there is no prohibition on hiring that worker.&nbsp; A &ldquo;no-hire&rdquo; agreement prohibits the hiring of the worker even if he or she was not solicited.&nbsp; It appears that the DOJ considers both such agreements &ndash; if they are &ldquo;naked&rdquo; &ndash; to be <em>per se</em> unlawful and subject to criminal prosecution.</p> <p> What is a &ldquo;naked&rdquo; agreement?&nbsp; It is an agreement that stands alone.&nbsp; It is not ancillary to a larger, legitimate collaboration.&nbsp; Ancillary &ldquo;no-hire&rdquo; or &ldquo;no-poaching&rdquo; agreements do not violate the antitrust laws if they are reasonable in scope and duration and are reasonably necessary to further the interests of the legitimate collaboration.&nbsp; For example, in <em>Eichorn v. AT&amp;T Corp</em>., 248 F.3d 131, 146 (3d. Cir. 2001), the Third Circuit held that an agreement on behalf of all AT&amp;T affiliates not to hire or solicit any employees from a company (Paradyne) that it sold to Texas Pacific Group, for a period of eight months after the sale, was lawful under Section 1 of the Sherman Act.&nbsp; The Third Circuit found that the agreement was a legitimate ancillary restraint and that its primary purpose was to ensure that the purchaser could retain the skilled services of the Paradyne employees.&nbsp; It concluded that any restraint on the plaintiffs&rsquo; ability to seek employment at AT&amp;T or its affiliates was incidental to the sale of Paradyne.&nbsp;</p> <p> <strong>Employer Concerns</strong></p> <p> In spite of the publicity given to the issuance of the HR Guidance in 2016 and high-profile class action cases such as <em>In Re High-Tech Employee Antitrust Litigation</em>, No. 11-CV-02509 (&ldquo;High-Tech&rdquo;) (selected case documents available <a href="http://www.cand.uscourts.gov/lhk/hightechemployee">here</a>), human resources personnel and other executives often do not realize that the antitrust laws apply to the employment marketplace.&nbsp; Thus, many simply are not aware that an agreement among employers not to hire employees or to exchange wage information could result in a violation of the antitrust laws.&nbsp; As noted, Delrahim reportedly expressed shock at the number of potential violations DOJ is investigating even after the issuance of the HR Guidance, but this &ldquo;number&rdquo; may simply be the result of a lack of awareness and understanding by employers.</p> <p> In addition to the impending criminal cases, employers subject to an enforcement action should anticipate that civil lawsuits will follow.&nbsp; These will likely be class actions, and if a class is certified, it could expose the employers to substantial monetary liability.&nbsp; This is the pattern that occurred in the <em>High-Tech</em> consolidated cases which resulted in a settlement of $435 million&nbsp; (settlement website available <a href="http://www.hightechemployeelawsuit.com/">here</a>).</p> <p> <strong>Recommendations</strong></p> <p> Employers should consider conducting an internal investigation to ascertain whether they are currently engaging in conduct outlined by the DOJ and the FTC in the HR Guidance as potentially unlawful.&nbsp; The investigation should include investigation of potential wage fixing and wage information sharing in addition to &ldquo;no-poaching/no-hiring&rdquo; agreements.&nbsp; Employers should also make sure that they have an antitrust compliance policy in place that includes instructions on these practices.</p> <p> Seyfarth Shaw has substantial experience advising and defending employers in antitrust matters impacting the employment marketplace, such as those involving wage information sharing and no-hiring agreements.&nbsp; Seyfarth also has substantial experience in handling criminal investigations and prosecutions.&nbsp; Should you have any questions, feel free to contact one of the authors or any Seyfarth Shaw attorney with whom you work.</p> http://www.seyfarth.com:80/publications/EL012518 Webinar – Best Practices for Investigating and Addressing Sexual Harassment Complaints in the Workplace (Sign Up to Reserve Your Spot!) http://www.seyfarth.com:80/publications/EL012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In this February 1, 2018, hot-topic webinar, we will provide a roadmap for conducting legally compliant and effective sexual harassment investigations. There is no cost to attend this program, but registration is required.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/webinar-best-practices-for-investigating-and-addressing-sexual-harassment-complaints-in-the-workplace-sign-up-to-reserve-your-spot/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM012518-LIT Supreme Court to Decide Whether Crime Victims Are Entitled to Mandatory Reimbursement of Internal Investigations Costs http://www.seyfarth.com:80/publications/OMM012518-LIT Thu, 25 Jan 2018 00:00:00 -0400 <div> On January 12, 2018, the United States Supreme Court granted certiorari in <em>Lagos v. United States</em>, No. 16-20146 (2018), which presents the question of whether victims (including corporate victims) are entitled to have their internal investigatory costs reimbursed by defendants under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. &sect; 3663A. This issue has divided the circuit courts for years. The Fifth Circuit and five other federal courts of appeals have concluded that these costs, including fees paid by victims to outside counsel and forensic experts, constitute &ldquo;other expenses incurred during participation in the investigation or prosecution of the offense&rdquo; within the meaning of the MVRA. The D.C. Circuit, meanwhile, has determined that the term &ldquo;investigation&rdquo; in the statute refers to the actual government investigation rather than an internal investigation, and that a company cannot be said to have &ldquo;participated&rdquo; in such an investigation through activities and investigative costs that took place prior to the matter being referred to the government for prosecution.&nbsp;&nbsp;</div> <div> &nbsp;</div> <div> In granting certiorari, the Supreme Court is poised to issue a decision that will have a significant impact on how (and when) corporations investigate potential crimes and report them to the government. If the Court sides with the D.C. Circuit, it will create bottom-line incentives for encouraging early reporting of crimes to the government&mdash;incentives above and beyond those created by the Department of Justice (and its sister agencies) and their policies. If the Court adopts the approach favored by the other circuits, it will give companies greater certainty that their investigative costs will be recoverable (absent a judgment-proof defendant) regardless of how and when the investigation was initiated. Either way, this is certainly a case to watch for corporations everywhere.&nbsp;</div> <div> &nbsp;</div> <div> For the full version of a related article that comprehensively examines the certiorari grant discussed in this Alert and that originally appeared in Bloomberg Law White Collar Crime Report, 13 WCR 57 (Jan. 19, 2018), please <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosSchleppenbachPublishWCR.pdf">click here</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/gppg012518 Former U.S. Chamber of Commerce Senior Vice President Randel Johnson Joins Seyfarth http://www.seyfarth.com:80/news/gppg012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> <span style="font-size:14px;"><em>Firm Launches New Government Relations and Policy Practice Group </em></span></p> <p> <strong>Washington, DC - January 25, 2018</strong> - Randel K. Johnson, former senior vice president for Labor, Immigration, and Employee Benefits at the U.S. Chamber of Commerce, is joining Seyfarth Shaw LLP as a partner in the firm&rsquo;s Labor &amp; Employment department and will help build the firm&rsquo;s new Government Relations and Policy practice group in Washington, D.C. Joining Seyfarth with Johnson is Walter Mullon, former manager of operations for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce. Mullon will serve as Senior Manager, Policy &amp; Government Affairs in the firm&rsquo;s Washington, D.C. office.</p> <p> For the last 20 years, Johnson has served as senior vice president at the U.S. Chamber of Commerce, where he was primarily responsible for labor, immigration, and employee benefits issues pending before Congress and the federal agencies. In this role, Johnson determined the Chamber&rsquo;s position and set strategy on a wide variety of issues, including union-driven initiatives such as card check legislation, ergonomics, and blacklisting regulations; pension funding reform and health care; civil rights and wage and hour; and comprehensive immigration reform, including visa and border policy. Having spent 10 years on Capitol Hill, Johnson regularly testified before Congress, and also served six years as an attorney with the Department of Labor.</p> <p> &ldquo;Many of us at Seyfarth have worked closely with Randy throughout his prestigious career, and his experience on Capitol Hill and longtime insights into labor policy are virtually unmatched in the industry,&rdquo; said Laura Maechtlen, chair of Seyfarth&rsquo;s Labor &amp; Employment department. &quot;He is a fierce advocate for employer issues, but one who has always shown a willingness to build bipartisan coalitions to advance legislation. We are proud to officially welcome him to the firm and we look forward to pairing his policy expertise with our top labor and employment platform.&rdquo;</p> <p> &ldquo;We are thrilled to bring Randy to the firm to help lead our new Government Relations and Policy practice group,&rdquo; said Pete Miller, chair and managing partner of Seyfarth. &ldquo;With a unique window into the most pressing business issues facing corporate America today, Randy is well positioned to guide our clients through the breakneck pace of change in Washington.&rdquo;</p> <p> Before joining the U.S. Chamber of Commerce, Johnson was labor counsel and coordinator for the U.S. House of Representatives Committee on Education and the Workforce where he was responsible for employment policy and legal issues before the committee. His work centered on legislative activity under the Occupational Safety and Health Act, the National Labor Relations Act, the Congressional Accountability Act, the Family and Medical Leave Act, the Fair Labor Standards Act, the Civil Rights Act of 1991, and the Americans with Disabilities Act of 1990. Johnson received his J.D. from the University of Maryland Francis King Carey School of Law and earned a Master of Laws in Labor Relations from the Georgetown University Law Center. He earned a graduate certificate from the Harvard Kennedy School of Government for Senior Managers in Government and is a fellow of the College of Labor and Employment Lawyers. He received his undergraduate degree from Denison University.</p> <p> &ldquo;I am grateful for my many years at the Chamber and I look forward to using the expertise I developed there to start a new practice at Seyfarth Shaw, a firm that I have long respected for its sophisticated legal expertise in employment,&rdquo; said Johnson. &ldquo;Employment issues, particularly in the area of immigration, are at a critical juncture in Washington today and I look forward to representing our clients as they face new challenges arising from government legislation on the horizon.&rdquo;</p> <p> &ldquo;Randy is a well-respected figure on the Hill, and we are excited to have him spearhead our new and developing Government Relations and Policy practice group. His keen insight into labor policy and reputation throughout the Beltway can quickly provide our clients with guidance they can&rsquo;t find anywhere else,&rdquo; said Robert Bodansky, managing partner of Seyfarth&rsquo;s Washington, D.C. office.</p> <p> In his role as manager of operations for Labor, Immigration and Employee Benefits at the U.S. Chamber of Commerce, Walter Mullon helped to coordinate the development of the Chamber&rsquo;s labor and employment policy agenda, working on issues such as the Americans with Disabilities Act, human trafficking, the new economy, joint employer, various immigration reform matters, and retirement policy initiatives related to defined contribution plans.</p> <p> <strong>Seyfarth Shaw&rsquo;s New Government Relations and Policy Practice Group </strong></p> <p> Beginning with the firm&rsquo;s efforts to help draft the Taft-Hartley Act of 1947, Seyfarth attorneys have always been central to the labor and employment policy issues that affect every aspect of employment. Continuing this tradition over the years, the firm has expanded its leadership position in public policy and built expertise across many areas of emerging risk for clients in legislative and regulatory affairs, such as labor arbitrations, pension administration, Title VII of the Civil Rights Act of 1964, immigration, FLSA, EEO, and many others.</p> <p> With the addition of Johnson and Mullon, Seyfarth has formalized this practice, and announced the launch of a new Government Relations and Policy practice group. The goal of the new practice group will be to coordinate Seyfarth Shaw&rsquo;s substantial resources to provide legal expertise to clients regarding the actions of Congress and federal, state, and local administrative agencies. Comprised of Seyfarth attorneys with government relations and policy experience, the team will develop solutions for clients and provide ongoing education and advocacy on policy issues. Specifically, the practice group will be formed to:</p> <ul> <li> Understand, communicate and educate the impact of the policy developments important to employers</li> <li> Track and influence key legislation, regulations and court rulings that impact employers</li> <li> Build coalitions with organizations and individuals who are focused on employer issues, to identify and respond to policy trends</li> <li> Provide analysis and input on legislation and other regulatory developments</li> <li> Provide testimony before Congress and government agencies</li> <li> Author written submissions on key policy issues including amicus briefs, legislative comments to agencies and others</li> <li> Publish studies and reports on important issues to clients</li> </ul> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations, (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager, (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/bitarreuters012518 Karen Bitar quoted in Reuters http://www.seyfarth.com:80/news/bitarreuters012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> Karen Bitar was quoted in a January 25 story from Reuters, &quot;Victim testimony raises settlement pressure in Nassar suit,&quot; on how statutes of limitations often are the biggest impediment to lawsuits over sexual abuse from many years ago. Bitar said that there was danger in pushing such defenses. She stated that all those legal arguments may be extraordinarily valid, but you don&rsquo;t want to give the impression that you got out on a simple legal technicality. You can read the <a href="https://www.reuters.com/article/us-gymnastics-usa-nassar-lawsuits-analys/victim-testimony-raises-settlement-pressure-in-nassar-suit-idUSKBN1FE31S">full article here</a>.</p> http://www.seyfarth.com:80/news/millerbbj012518 Barry Miller quoted in the Boston Business Journal http://www.seyfarth.com:80/news/millerbbj012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> Barry Miller was quoted in a January 25 story from the Boston Business Journal, &quot;#MeToo&#39;s darkest side: Dialogue about workplace sexual harassment overlooks threat of physical assault or rape.&quot; Miller said that typical best practice for companies responding to rape accusations includes keeping the investigations short, keeping accusers up to date on progress, and putting the accused employee on leave.</p> http://www.seyfarth.com:80/publications/TBT012518 Vermont Legislature Legalizes Recreational Marijuana http://www.seyfarth.com:80/publications/TBT012518 Thu, 25 Jan 2018 00:00:00 -0400 <p> On January 22, 2018, Vermont Governor Phil Scott signed H. 511, allowing adults to possess recreational marijuana, making Vermont the first state in the nation to pass such a law in the legislature rather than at the ballot box. Vermont joins eight other states that have legalized recreational marijuana, as well as Washington D.C.&nbsp; Nearly 30 states, including Vermont and Washington D.C., also have medical marijuana laws on the books. Polls show that most Americans favor legalizing marijuana at the national and local levels. An October 2017 Gallup poll found national support for legalization at the federal level to be at almost 64%.</p> <p> <a href="https://www.blunttruthlaw.com/2018/01/vermont-legislature-legalizes-recreational-marijuana/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/liesbi012418 Mark Lies quoted in Business Insurance http://www.seyfarth.com:80/news/liesbi012418 Wed, 24 Jan 2018 00:00:00 -0400 <p> Mark Lies was quoted in a January 24 story from Business Insurance, &quot;California moving forward with broad workplace violence, marijuana rules,&quot; on how the California Division of Occupational Safety and Health is moving to create a new safety standard to prevent and handle workplace violence for general industries. Lies said that other states are looking at similar measures given statistics that show workplace violence to be a growing safety concern for employers. You can read the <a href="http://www.businessinsurance.com/article/20180124/NEWS08/912318703/California-moving-forward-with-broad-workplace-violence-marijuana-rules">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinonlj012418 Alex Passantino quoted in the National Law Journal http://www.seyfarth.com:80/news/passantinonlj012418 Wed, 24 Jan 2018 00:00:00 -0400 <p> Alex Passantino was quoted in a Janaury 24 story from the National Law Journal, &quot;The #MeToo Implications of the Supreme Court&#39;s Workplace Class-Action Case.&quot; On a panel hosted by Bloomberg Law, Passantino said that the pending Supreme Court case is extremely important to employers, particularly as an effort for certainty into the process.</p> http://www.seyfarth.com:80/news/morashrm012418 Jennifer Mora quoted in SHRM http://www.seyfarth.com:80/news/morashrm012418 Wed, 24 Jan 2018 00:00:00 -0400 <p> Jennifer Mora was quoted in a January 24 story from SHRM, &quot;Opioid Testing By Employers Is Becoming More Common.&quot; Mora said that, currently, most employers do not test for opioid use. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/opioid-testing.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP012418 Defamation: Containing Fire and Fury in the Deep Blue State http://www.seyfarth.com:80/publications/CP012418 Wed, 24 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: As Californians grow tragically familiar with wildfire, California employers face another threat of fire in the form of defamation lawsuits. The rapidly burning #MeToo anti-harassment movement, and constant talk in the news about peoples&rsquo; reputations being destroyed, has rained down fire and fury for California employers forced to consider possible defamation lawsuits by current or former employees.<br /> <br /> <a href="https://www.calpeculiarities.com/2018/01/24/defamation-containing-fire-and-fury-in-the-deep-blue-state/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012418 Nixing Nationwide Class Action Claims: Federal Court Ruling Provides Blueprint For Businesses http://www.seyfarth.com:80/publications/WC012418 Wed, 24 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: In a nationwide consumer fraud class action involving false labeling claims under various state laws, a federal district court in Illinois granted the company&rsquo;s motion to dismiss claims relative to a putative national class of plaintiffs, holding it did not have jurisdiction over the claims of the non-resident class of plaintiffs based on the recent U.S. Supreme Court opinion in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S.Ct. 1773 (2017). For businesses and employers facing nationwide class action lawsuits, this ruling is instructive in regards to strategies to fracture and minimize the class size, and limit potential liability.<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/nixing-nationwide-class-action-claims-federal-court-ruling-provides-blueprint-for-businesses/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/CCD012318 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court http://www.seyfarth.com:80/publications/CCD012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The fourth and final key trend from our 14th Annual Workplace Class Action Litigation Report involves rulings by the U.S. Supreme Court. Over the past few years, the country&rsquo;s highest court has issued a number of rulings that impacted the prosecution and defense of class actions in significant ways. Today, we provide readers with an outline of the most important workplace rulings issued by the Supreme Court in 2017, as well as which upcoming decisions employers should watch for in 2018. Read the full breakdown below!<br /> <br /> <a href="https://www.consumerclassdefense.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM012318-LE Spokeo v. Robins: The U.S. Supreme Court Declines An Encore Performance http://www.seyfarth.com:80/publications/OMM012318-LE Tue, 23 Jan 2018 00:00:00 -0400 <p class="BodySingle"> <strong><i>Seyfarth Synopsis</i></strong>: <em>In deciding to deny certiorari to review Spokeo, Inc. v. Robins, No. 17-806 (U.S. 2017), the U.S. Supreme Court has declined to reconsider the standing principles it announced in its landmark 2016 Spokeo opinion, which has led to &ldquo;wide confusion&rdquo; among the lower courts regarding what is a sufficient concrete harm under Article III to establish standing for statutory violations.</em></p> <p class="BodySingle"> On January 22, 2018, the U.S. Supreme Court declined to grant <i>certiorari</i> in <i>Spokeo, Inc. v. Robins</i>, No. 17-806 (U.S. 2017), which we have been watching closely for its potential implications on the future of workplace class action litigation.&nbsp; &nbsp; &nbsp;</p> <p class="BodySingle"> By way of brief background, Plaintiff Thomas Robins, alleged that Spokeo, an internet people search engine, reported inaccurate information about him regarding his marital status and education, among other things. Plaintiff alleged that Spokeo violated the federal Fair Credit Reporting Act (&ldquo;FCRA&rdquo;) by failing to &ldquo;follow reasonable procedures to assure maximum possible accuracy,&rdquo; and that the dissemination of false information could negatively affect his future employment prospects.</p> <p class="BodySingle"> While the district court initially found that Plaintiff did not have standing, the Ninth Circuit later reversed. Spokeo then appealed to the U.S. Supreme Court, which granted <i>certiorari</i> and ultimately reversed and remanded the matter back to the Ninth Circuit for further consideration. We have previously covered the U.S. Supreme Court&rsquo;s grant of <i>certiorari</i> and its oral argument <a href="http://www.seyfarth.com/publications/WC031715">here</a>, <a href="http://www.seyfarth.com/publications/WC042715">here</a>, <a href="http://www.seyfarth.com/publications/OMM042715-LE">here</a>, <a href="http://www.seyfarth.com/publications/EL081115">here</a>, <a href="http://www.seyfarth.com/publications/El103015">here</a>, and <a href="http://www.seyfarth.com/publications/WC110215">here</a>. &nbsp;In <i>Spokeo I</i>, the Supreme Court laid out what qualifies as a tangible or intangible concrete injury for standing purposes and remanded the dispute to the Ninth Circuit to apply the appropriate concreteness standard.&nbsp; We have previously analyzed the U.S. Supreme Court&rsquo;s ruling in <i>Spokeo I</i> <a href="http://www.seyfarth.com/publications/MA051616-LE">here</a>.</p> <p class="BodySingle"> On remand, the Ninth Circuit held that Plaintiff alleged a sufficient concrete harm. The Ninth Circuit found that an intangible harm might constitute a concrete harm under a two-part test that considers whether the statute at issue was established to protect concrete interests, as opposed to procedural rights, and whether the alleged statutory violation actually harms or presents a material risk of harm to such concrete interests. Under this approach, the Ninth Circuit found that that the FCRA protects against the dissemination of false information and that the inaccuracies in this matter were not &ldquo;mere technical violations,&rdquo; but posed a sincere risk of harm.&nbsp; We have discussed the Ninth Circuit&rsquo;s ruling in <i>Spokeo II</i> <a href="http://www.seyfarth.com/publications/wc081617">here</a> and <a href="http://www.seyfarth.com/publications/CCD102417">here</a>.</p> <p class="BodySingle"> Spokeo immediately filed a second petition for <i>certiorari</i> with the U.S. Supreme Court, challenging the Ninth Circuit&rsquo;s<i> Spokeo II</i> ruling.&nbsp; Spokeo argued that the Ninth Circuit wrongly applied standing principles, and that the Supreme Court must resolve a growing confusion among the lower courts since the Supreme Court&rsquo;s initial ruling in <i>Spokeo I</i>.&nbsp; Despite the Ninth Circuit&rsquo;s expansive ruling and the notable divergence in the lower courts, the Supreme Court declined <i>certiorari</i>. We will continue to monitor how <i>Spokeo I</i> influences workplace class action litigation.&nbsp; &nbsp; &nbsp;&nbsp;<o:p></o:p></p> http://www.seyfarth.com:80/publications/EL012318 Ninth Circuit Seeks Guidance on Meal and Rest Periods for Ambulance Attendants http://www.seyfarth.com:80/publications/EL012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: Do ambulance drivers working twenty-four hour shifts have to be available all twenty-four hours, even when they&rsquo;re eating or resting? The Ninth Circuit wants the California Supreme Court&rsquo;s opinion.<br /> <br /> <a href="https://www.laborandemploymentlawcounsel.com/2018/01/ninth-circuit-seeks-guidance-on-meal-and-rest-periods-for-ambulance-attendants/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WC012318 4 Key Trends In Workplace Class Action Litigation For 2017: #4 U.S. Supreme Court http://www.seyfarth.com:80/publications/WC012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Seyfarth Synopsis: The fourth and final key trend from our 14th Annual Workplace Class Action Litigation Report involves rulings by the U.S. Supreme Court. Over the past few years, the country&rsquo;s highest court has issued a number of rulings that impacted the prosecution and defense of class actions in significant ways. Today, we provide readers with an outline of the most important workplace rulings issued by the Supreme Court in 2017, as well as which upcoming decisions employers should watch for in 2018. Read the full breakdown below!<br /> <br /> <a href="https://www.workplaceclassaction.com/2018/01/4-key-trends-in-workplace-class-action-litigation-for-2017-4-u-s-supreme-court/">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/BIO012318 Federal Circuit Opens Door for PTAB Institution Decision Appeals http://www.seyfarth.com:80/publications/BIO012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> The Federal Circuit on Wednesday reversed Court precedent and long held belief that inter partes review (&ldquo;IPR&rdquo;) institution decisions were categorically non-reviewable. The Court, sitting en banc, held that the issue of whether a petitioner is time-barred from filing an IPR petition under 35 U.S.C. &sect; 315(b) is in fact reviewable.[i]<br /> <br /> <a href="https://www.bioloquitur.com/federal-circuit-opens-door-ptab-institution-decision-appeals/">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/partnerpromotions012318 Seyfarth Promotes 11 as Partners http://www.seyfarth.com:80/news/partnerpromotions012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> CHICAGO (January 23, 2018) &mdash; Seyfarth Shaw LLP is pleased to announce today the promotion of 11 of the firm&rsquo;s lawyers to partners across seven offices and five practice departments, effective January 1, 2018.</p> <p> The following have been promoted to partner:&nbsp;</p> <p> &nbsp;</p> <p> <strong>Corporate&nbsp;</strong></p> <p> Chris DeMeo - Houston</p> <p> <strong>International </strong></p> <p> John Tomaszewski - Houston</p> <p> <strong>Labor &amp; Employment </strong></p> <p> Michelle Gergerian - Boston</p> <p> Kyllan Kershaw - Atlanta</p> <p> Eric Lloyd - San Francisco</p> <p> Michael Wahlander - San Francisco</p> <p> Howard Wexler - New York</p> <p> <strong>Litigation </strong></p> <p> Kristine Argentine - Chicago</p> <p> Joseph Escarez - Los Angeles</p> <p> Dawn Mertineit - Boston</p> <p> <strong>Real Estate </strong></p> <p> Tobi Pinsky - Chicago&nbsp;</p> <p> &nbsp;</p> <p> <strong>About Seyfarth Shaw LLP</strong></p> <p> Seyfarth Shaw has more than 850 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com ">bkiefer@seyfarth.com </a></p> <p> Martin Grego, Public Relations Manager (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/wcarhr012318 Seyfarth's Workplace Class Action Report profiled in HR.com http://www.seyfarth.com:80/news/wcarhr012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Seyfarth&#39;s Workplace Class Action Report was profiled in a January 23 story from HR.com, &quot;Workplace Settlements Explode to All-Time High.&quot; The monetary value of workplace class action settlements skyrocketed in 2017. You can read the <a href="https://www.hr.com/en/app/blog/2018/01/workplace-settlements-explode-to-all-time-high_jcrhj4ff.html">full article here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360012318 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Angelo Paparelli was quoted in a January 23 story from Law360, &quot;4 Ways GCs Can Prepare For Potential Worksite Raids.&quot; Paparelli said that if a GC&#39;s organization has previously been the subject of an inspection, understand it could be in the crosshairs of federal enforcement efforts and proceed with caution.</p> http://www.seyfarth.com:80/news/vulegalnewsline012318 Minh Vu quoted in Legal Newsline http://www.seyfarth.com:80/news/vulegalnewsline012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Minh Vu was quoted in a January 23 story from Legal Newsline, &quot;DOJ punts on rulemaking, likely boosting ADA lawsuits and forcing judges to regulate,&quot; on how the Department of Justice has withdrawn proposed rules for accessible websites of public accommodations and state and local governments, in addition to non-fixed equipment and furnishings used in public places. Vu said that the absence of regulations means that the law in this area will be created over the next several years through a patchwork of judicial decisions. You can read the <a href="https://legalnewsline.com/stories/511313337-doj-punts-on-rulemaking-likely-boosting-ada-lawsuits-and-forcing-judges-to-regulate">full article here</a>.</p> http://www.seyfarth.com:80/news/weissshrm012318 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm012318 Tue, 23 Jan 2018 00:00:00 -0400 <p> Philippe Weiss was quoted in a January 23 story from SHRM