Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 http://www.seyfarth.com:80/news/olsonshrm082117 Camille Olson quoted in SHRM http://www.seyfarth.com:80/news/olsonshrm082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Camille Olson was quoted in an August 21 story from SHRM, &quot;Despite Gains, Average Intern Wage Still Below Pre-Recession Level,&quot; on how unpaid intern programs face compliance hurdles. Olson said that the goal is to ensure that companies are not getting around minimum-wage and other employee protection laws by calling workers &#39;interns,&#39; when the work and conditions under which the work is being performed are no different than that of actual employees. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/intern-wages.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/winnerfinkel082117 Robert Winner and Noah Finkel authored an article in Mergers & Acquisitions http://www.seyfarth.com:80/publications/winnerfinkel082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Robert Winner and Noah Finkel authored an August 21 article in Mergers &amp; Acquisitions, &quot;How to manage wage-hour risks in an acquisition.&quot; Winner and Finkel wrote that , in order to understand how to avoid these risks, the acquirer needs to know where to look first, and then protect itself in the definitive documentation. You can read the <a href="https://www.themiddlemarket.com/opinion/how-to-manage-wage-hour-risks-in-an-acquisition?brief=0000015a-289d-d09d-a7fe-ee9f58b00000">full article here</a>.</p> http://www.seyfarth.com:80/publications/shermanmmg082117 Andrew Sherman authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/shermanmmg082117 Mon, 21 Aug 2017 00:00:00 -0400 <p> Andrew Sherman authored an August 21 article in Middle Market Growth, &quot;Don&rsquo;t Let Bored Employees Derail Your Deal.&quot; The article discusses how to address workforce disengagement during M&amp;A due diligence. You can read the <a href="http://middlemarketgrowth.org/bored-employees-derail-deal/">full article here</a>.</p> http://www.seyfarth.com:80/news/bna081717 Annette Tyman, Michael Childers and Matthew Martin quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bna081717 Thu, 17 Aug 2017 00:00:00 -0400 <p> Annette Tyman, Michael Childers and Matthew Martin were quoted in an August 17 story from Bloomberg BNA, &quot;REVISED EEO-1 REPORT: DESPITE UNCERTAINTY, EMPLOYERS SHOULD START TO PREPARE&lt;&#39; on their webinar, &quot;Understanding the New EEO-1 Report: Pay Data and &lsquo;Hours Worked&rsquo; Requirements.&quot; Tyman warned that this statistical data is not going to show a whole lot, if anything at all, about pay discrimination.</p> http://www.seyfarth.com:80/news/ilta081617 Seyfarth Wins 2017 Innovative Law Firm of the Year Award http://www.seyfarth.com:80/news/ilta081617 Wed, 16 Aug 2017 00:00:00 -0400 <p align="center"> <img alt="" src="../../../../../../uploads/siteFiles/inlineimages/IDPA17-winner.png" style="width: 500px; height: 357px;" /></p> <p> &nbsp;</p> <p> CHICAGO (August 16, 2017) -- Seyfarth Shaw LLP has been honored with the 2017 Innovative Law Firm of the Year Award, presented Tuesday evening by the International Legal Technology Association at its annual awards gala.</p> <p> Among the industry&rsquo;s top honors, the award recognizes the law firm that delivered the greatest business value and transformational impact through innovations within their organization. This is the second time in five years that Seyfarth has been named ILTA&rsquo;s Innovative Law Firm of the Year, previously earning the award in 2013.</p> <p> &ldquo;We are proud to be at the forefront of technology that enhances what our lawyers do best: counsel and serve our clients,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> Seyfarth won for two groundbreaking advances in the use of robotics software with SeyfarthLean Consulting:</p> <ol> <li> Deployment of robotic process automation (RPA) software in the legal industry for the first time, while creating a Robotics Center of Excellence to drive best practices around a growing pipeline of RPA projects in the firm;<br /> &nbsp;</li> <li> Development of the &ldquo;Ask Lee&rdquo; chatbot for the firm&rsquo;s SeyfarthLink client collaboration platform, which can answer support questions around the clock, and do so faster and more efficiently.<br /> &nbsp;</li> </ol> <p> To learn more about Seyfarth&rsquo;s Robotics Center of Excellence, visit the&nbsp;<a href="https://www.youtube.com/watch?v=mqa3DlmhYx0&amp;feature=youtu.be">animated video here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 15 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/szybalaw360081517 Robert Szyba quoted in Law360 http://www.seyfarth.com:80/news/szybalaw360081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Robert Szyba was quoted in an August 15 story from Law360, &quot;Spokeo Ruling Deals Blow To Cos. But May Have Silver Lining,&quot; on the Ninth Circuit&#39;s decision that the harm stemming from an allegedly inaccurate consumer report published by Spokeo Inc. was concrete enough to establish standing. Szyba said that the decision affirms the concept that plaintiffs cannot simply get by in these cases by pointing to statutory violations and indicates that courts will likely be a little bit more analytical in terms of the facts alleged in each particular case and place greater emphasis on each plaintiff&#39;s specific allegations of harm or wrongdoing.</p> http://www.seyfarth.com:80/news/shermancnbc081517 Andrew Sherman quoted in CNBC.com http://www.seyfarth.com:80/news/shermancnbc081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in an August 15 story from CNBC.com, &quot;The biggest risk that will determine Tesla&#39;s fate: Elon Musk himself,&quot; on the important steps every company should take to ensure there is no disruption in business if something should happen to their most important asset: the visionary founder and CEO. Sherman said that a fleshed-out management team is essential to business continuity planning if the boss gets sick or injured &mdash; and it will keep everyone sane even when the boss is healthy. You can read the <a href="https://www.cnbc.com/2017/08/15/the-biggest-risk-that-will-determine-teslas-fate-elon-musk-himself.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/CEL-081517 Employer Be Careful - Noncompliance Events Will Be Published http://www.seyfarth.com:80/publications/CEL-081517 Tue, 15 Aug 2017 00:00:00 -0400 <div> The Chinese Ministry of Human Resources and Social Security (&ldquo;<strong>MHRSS</strong>&rdquo;) implemented the <em>Measures on Publication of Significant Violations of Labor and Social Security Laws </em>(&ldquo;<strong>Measures</strong>&rdquo;) effective January 1, 2017. &nbsp;The Measures require local counterparts of MHRSS (&ldquo;<strong>Bureaus</strong>&rdquo;) to record and publicize certain employer violations of labor and social security laws through official websites, local newspapers, television and other media platforms.</div> <div> &nbsp;</div> <div> <strong>What Violations Will Trigger Publication?</strong></div> <div> &nbsp;</div> <div> &ldquo;Significant violations&rdquo; include serious noncompliance with overtime rules, annual leave rules, social security rules, child labor laws and the delay, reduction of or failure to pay required salary, among other rules.&nbsp;</div> <div> &nbsp;</div> <div> However, the Measures do not provide clear parameters regarding which violations fall specifically within the ambit of the legislation. &nbsp;Instead, Bureaus determine the specific application at their discretion.&nbsp;</div> <div> &nbsp;</div> <div> As such, the standards for publication vary widely among cities depending on the local economy and what Bureaus&rsquo; officials happen to deem important. &nbsp;For example, in Beijing an employer&rsquo;s &ldquo;resistance&rdquo; to an inspection is a category covered by the Measures. &nbsp;In Hubei Province, an employer&rsquo;s refusal to pay labor remuneration will be published along with the penalties assessed.</div> <div> &nbsp;</div> <div> <strong>What Information Will Be Published?</strong></div> <div> <ul> <li> Employer&rsquo;s full name, address</li> <li> Employer&rsquo;s unified social credit code (or registration number)</li> <li> Name of employer&rsquo;s legal representative or person in charge</li> <li> Details of violation(s)</li> <li> Fines or other sanctions imposed by authorities (if any)</li> <li> Other relevant information</li> </ul> <div> &nbsp;</div> </div> <div> At the prefecture and county level, Bureaus will announce violators on a quarterly basis. &nbsp;At the national and provincial level, announcements will be biannual.&nbsp;</div> <div> &nbsp;</div> <div> <strong>What Are The Implications For Employers?</strong></div> <div> &nbsp;</div> <div> Publication of violations may cause a series of consequences to the employer, including decreases of the employer&rsquo;s credit, certain penalties, and random inspections by Bureaus.</div> <div> &nbsp;</div> <div> The Measures along with the recent grading statute (<a href="http://www.seyfarth.com/publications/030117-CEL" target="_blank">click here for details</a>) can be considered a strong sign that the Chinese government is establishing a more stringent regime to deter and penalize labor law violations.</div> http://www.seyfarth.com:80/publications/EL081517 To Connect Or Not To Connect, That Is The Non-Solicitation Agreement Question http://www.seyfarth.com:80/publications/EL081517 Tue, 15 Aug 2017 00:00:00 -0400 <p> Employers often wonder how far a non-solicitation agreement can go. It can frustrate employers, who may pay extra money for an employee to sign a non-solicitation agreement, to later learn that their former employees have violated such agreements. &nbsp;And with the rise of social media, and its convergence into the business realm, potential violations through communications between current, prospective, and even previous employees have become more complicated than ever.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/to-connect-or-not-to-connect-that-is-the-non-solicitation-agreement-question/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3219e756ec-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3219e756ec-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/seyfarthsaxman081417 Seyfarth Lawyers Update <i>Illinois Corporate Practice and Forms: The Seyfarth Shaw Manual</i> http://www.seyfarth.com:80/publications/seyfarthsaxman081417 Mon, 14 Aug 2017 00:00:00 -0400 <p> Seyfarth lawyers have updated the annual&nbsp;<em>Illinois Corporate Practice and Forms: The Seyfarth Shaw Manual.&nbsp;</em></p> <p> Led by Seyfarth Corporate partner Suzie Saxman, the Manual brings insightful, instructive discussions, analyses, and strategies for virtually every corporate law situation one may encounter.</p> <p> This exhaustive Manual, with its more than 1,820 pages of valuable content, will help one stay current and efficient by providing appropriate statutes and regulations &ndash; complemented by thorough discussions and analyses of any changing federal or Illinois state laws. Readers are guided through an extensive selection of appropriate corporate forms, using an easy-to-follow format. Included are customizable e-forms, plus planning strategies for a full range of corporations from closely-held private companies to large public companies.</p> <p> Recent Updates Include:</p> <ul> <li> Current legal developments</li> <li> Updated State of Illinois forms for Illinois corporations</li> <li> Added discussion of M&amp;A issues and resources</li> <li> Commentary on recent trade secret developments</li> <li> Executive compensation updates</li> <li> New forms and form updates throughout the Manual</li> </ul> <p> <br /> The Manual can be found <a href="https://www.datatrace.com/illinois-practice-forms-seyfarth-shaw-manual.html">here</a>.</p> http://www.seyfarth.com:80/publications/EL081117 DOT Backs Away From Rulemaking on “Safety Sensitive Positions” in Highway and Rail Transportation http://www.seyfarth.com:80/publications/EL081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> This week the U.S. Department of Transportation has withdrawn its March 10, 2016 Advance Notice of Proposed Rulemaking (ANPR) on the Evaluation of Safety Sensitive Personnel for Moderate-to-Severe Obstructive Sleep Apnea (OSA). 82 Fed. Reg. 37038 (Aug. 8, 2017).</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/dot-backs-away-from-rulemaking-on-safety-sensitive-positions-in-highway-and-rail-transportation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=9bc80f971d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-9bc80f971d-73179553">click here</a>.</p> http://www.seyfarth.com:80/news/zeedj081117 Candice Zee profiled by the Los Angeles Daily Journal http://www.seyfarth.com:80/news/zeedj081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> Candice Zee was profiled in an August 11 story from the Los Angeles Daily Journal, &quot;Ice Warrior.&quot; Seyfarth&#39;s Candice Zee started playing competitive roller hockey in high school, but her passion for the sport soon migrated to the ice. Diane Goodman, an attorney who competes regularly against Zee in all-women&#39;s ice hockey league matches, said that in hockey, you&#39;re looking for openings to move the puck or make a pass or score, and her sense of Zee as an attorney is that she uses some of that same strategic hockey approach to look for openings to settle cases when it&#39;s possible and find creative ways to get things accomplished.</p> http://www.seyfarth.com:80/news/milliganlaw360081117 Robert Milligan quoted in Law360 http://www.seyfarth.com:80/news/milliganlaw360081117 Fri, 11 Aug 2017 00:00:00 -0400 <p> Robert Milligan was quoted in an August 11 story from Law360, &quot;5 New Noncompete Developments Attys Should Know About,&quot; on a California Federal Judge&#39;s ruling on Google Inc.&rsquo;s suit against Uber Technologies Inc. over its self-driving vehicle technology. Milligan said that while the state isn&rsquo;t like to relax its aggressive stance against noncompete agreements, the Uber decision could signal greater toughness on trade secrets theft.</p> http://www.seyfarth.com:80/news/imanage081017 Seyfarth Selects iManage RAVN Self-Service Artificial Intelligence Platform http://www.seyfarth.com:80/news/imanage081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> CHICAGO &ndash; August 10, 2017 &ndash; Seyfarth Shaw LLP in connection with its subsidiary SeyfarthLean Consulting announced today that it is one of the first law firms to select iManage Extract. Seyfarth will use the Artificial Intelligence (AI) platform to perform document review and comparison across all practice areas.</p> <p> iManage Extract uses robots that automatically read, interpret and extract key information from documents and returns a desired business output. Seyfarth will utilize an enhanced feature of the product to train and have complete control of the robot. Using the self-service portal will allow the firm to speed up the data extraction process, increasing productivity within the organization. To read more, visit the <a href="http://imanage.com/wp-content/uploads/2017/08/AmLaw-100-Firm-Seyfarth-Shaw-Selects-iManage-RAVN-Self-Service-Artificial-Intelligence-Platform-to-Drive-Technology-Initiatives-v1.pdf">full press release here</a>.</p> <p> This news follows Seyfarth&rsquo;s earlier agreement with Blue Prism to deploy its industry-leading robotic process automation (RPA) software to the firm, marking the first adoption of Blue Prism&rsquo;s technology for the legal industry. Blue Prism is the leading choice for secure, scalable and transformational digital labor deployments. To read more, visit the <a href="http://www.seyfarth.com/news/seyfarth-shaw-blue-prism-bring-robotic-process-automation-to-legal-industry">full press release here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.</p> <p> Contacts:</p> <p> Brian Kiefer, Director of Public Relations (312) 460-6401, bkiefer@seyfarth.com</p> <p> Martin Grego, Public Relations Manager (312) 460-6659, mgrego@seyfarth.com</p> http://www.seyfarth.com:80/news/boutrossyracuse081017 Andrew Boutros quoted in Syracuse.com http://www.seyfarth.com:80/news/boutrossyracuse081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 10 story from Syracuse.com, &quot;Disputed law forces Syracuse, other colleges to investigate sex cases without cops,&quot; on how Title IX requires schools to investigate allegations of sexual abuse and, if an accuser insists on staying anonymous, the school in many cases is barred from sharing information with police. Boutros said that federal law requires schools to maintain victims&#39; confidentiality if they request it. You can read the <a href="http://www.syracuse.com/su-news/index.ssf/2017/08/syracuse_university_bound_by_federal_law_sometimes_investigate_sex_crimes_withou.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT081017 The Week in Weed: August 11, 2017 http://www.seyfarth.com:80/publications/TBT081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Sessions says he has &lsquo;serious concerns&rsquo; about legal marijuana. Now states wonder what&rsquo;s next</p> <p> (Los Angeles Times: National News, 10 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-11-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=32430cd3d7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-32430cd3d7-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA081017 Nevada Attorney General Takes Dramatic Action to Stop Serial Plaintiff’s ADA Title III Lawsuits http://www.seyfarth.com:80/publications/ADA081017 Thu, 10 Aug 2017 00:00:00 -0400 <p> On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months. &nbsp;The motion to intervene invokes a little-known provision in Title III of the ADA that requires private plaintiffs to &ndash; before filing in federal court &ndash; provide 30 days&rsquo; notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/08/nevada-attorney-general-takes-dramatic-action-to-stop-serial-plaintiffs-ada-title-iii-lawsuits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=ae2661efa7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-ae2661efa7-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM8917-LE When Is a Civil Penalty Not a Civil Penalty? http://www.seyfarth.com:80/publications/OMM8917-LE Wed, 09 Aug 2017 00:00:00 -0400 <p class="BodySingle" style="margin-bottom:6.0pt"> <b><i>Seyfarth Synopsis</i></b><i>: Plaintiffs cannot circumvent arbitration agreements by characterizing claims for statutory damages as claims for civil penalties. The purported PAGA exemption from arbitration agreements applies only to claims for civil penalties that go primarily to the State of California, and not entirely to employees.</i><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>Background<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> The Federal Arbitration Act (&ldquo;FAA&rdquo;) establishes the rule that arbitration agreements must be enforced, even if some state rule says otherwise. The California Supreme Court, in its 2014 decision in <i>Iskanian v. CLS Transportation Los Angeles, LLC</i>, created an exception to the rule when it declined to enforce arbitration agreements that waive representative claims brought under California&rsquo;s Private Attorneys General Act (&ldquo;PAGA&rdquo;). <i>Iskanian </i>reasoned that PAGA claims feature the plaintiff seeking civil penalties for the State of California, which never agreed to waive recovery of those penalties on a representative basis. Although there have been several attempts to have the U.S. Supreme Court reverse <i>Iskanian</i>, it remains the law in California. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> After <i>Iskanian</i>, some employers abandoned efforts to get employees to waive the right to participate in representative actions. The Court of Appeal&rsquo;s decision in <i>Esparza v. KS Industries </i>teaches that this may have been an overreaction to <i>Iskanian</i>. <i>Esparza </i>concludes that some claims characterized as PAGA claims actually involve claims for &ldquo;statutory damages,&rdquo; and not &ldquo;civil penalties.&rdquo; Based on this distinction, <i>Esparza </i>holds that while PAGA suits to obtain &ldquo;civil penalties&rdquo; remain immune to an agreement to arbitrate, suits to obtain penalties that amount to &ldquo;statutory damages&rdquo; are subject to such an agreement.<o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>The Facts<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Richard Esparza, as an &ldquo;aggrieved employee,&rdquo; sued his former employer, KS Industries. He brought a single cause of action under PAGA, in which he sought unpaid wages, civil penalties, and statutory penalties, for failures to provide meal and rest breaks, to pay wages in a timely manner, to provide accurate wage statements, and to reimburse business expenses. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> KS moved to compel enforcement of the parties&rsquo; arbitration agreement. Esparza countered that his suit, as a PAGA action, fell beyond the scope of the FAA and thus was not subject to arbitration, and that the PAGA penalties he sought included unpaid wages. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> KS responded that Esparza was trying to circumvent his arbitration agreement by filing a single cause of action under PAGA and styling the monetary relief sought as civil penalties when, in fact, the relief amounted to victim-specific damages that would go entirely to employees. KS contended that Esparza&rsquo;s claims were subject to the arbitration agreement and did not fall within <i>Iskanian</i>&rsquo;s &ldquo;PAGA exemption&rdquo; from arbitration<i>.</i><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> When the trial court sided with Esparza, KS appealed. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>Appellate Decision</b><o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> The Court of Appeal, reversing the trial court, agreed with KS that because some of Esparza&rsquo;s claims sought individualized, victim-specific relief, those claims were not subject to the &ldquo;PAGA exemption&rdquo; from arbitration that the Court of Appeal believed was created by <i>Iskanian.</i> (In fact, <i>Iskanian</i> did not exempt all PAGA claims from arbitration: <i>Iskanian</i> simply declined to enforce arbitration agreements that <i>waive</i> the ability to pursue PAGA civil penalties on a <i>representative</i> basis. <i>Iskanian</i> thus does not purport to prohibit PAGA claims from being arbitrated on a representative basis).&nbsp; <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> According to the Court of Appeal, the purported &ldquo;PAGA exemption&rdquo; from arbitration applies only to PAGA claims for &ldquo;civil penalties&rdquo;&mdash;monetary relief that goes 75 percent of the penalty to the State of California and 25 percent to aggrieved employees. The Court of Appeal reasoned that because PAGA &ldquo;civil penalties&rdquo; primarily go to the State, the right to waive seeking them on a representative basis cannot be waived by an employee, because the State is not a party to a private arbitration agreement. In contrast, penalties that would go entirely to aggrieved employees are not a &ldquo;civil penalty&rdquo; for purposes of the <i>Iskanian </i>rule. The ability to require Esparza to arbitrate on an individual basis thus turned on the extent to which his claims were truly PAGA claims for &ldquo;civil penalties&rdquo; (going largely to the State) rather than claims for &ldquo;statutory damages&rdquo; (going entirely to aggrieved employees). <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Esparza argued that his claim for unpaid wages was really a PAGA claim for civil penalties because, under Labor Code section 558, civil penalties include the payment of unpaid wages. The Court of Appeal rejected this argument, noting that, while <i>Iskanian</i> did not expressly address whether such unpaid wages are a civil penalty, <i>Iskanian</i> distinguished civil penalties recovered on behalf of the State from statutory damages that go entirely to employees. In the context of the <i>Iskanian </i>rule, the Court of Appeal concluded, the test for a civil penalty is whether the money goes primarily to the State or whether employees could recover all the money in their individual capacities. Unpaid wages, being a victim-specific remedy that employees can recover in an individual capacity, thus cannot qualify as a civil penalty for purposes of the <i>Iskanian </i>rule.<o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Accordingly, under <i>Esparza</i>, PAGA claims for &ldquo;civil penalties,&rdquo; when seeking money allocated primarily to the State, remain immune from mandatory pre-dispute arbitration. But claims for victim-specific &ldquo;statutory damages&rdquo;&mdash;whether or not they are called a &ldquo;penalty&rdquo;&mdash;can be directed to individual arbitration where an arbitration agreement so provides. <o:p></o:p></p> <p class="BodySingle" style="margin-bottom:6.0pt"> <b>What <i>Esparza</i> means for employers<o:p></o:p></b></p> <p class="BodySingle" style="margin-bottom:6.0pt"> Plaintiffs cannot circumvent arbitration agreements simply by characterizing their representative claims for wages or for statutory damages as part of a PAGA action. Thus, plaintiffs still must honor agreements to arbitrate claims that are for individualized relief, even if they style their claim as a PAGA claim for civil penalties. As courts continue to grapple with whether employee arbitration agreements are enforceable as to claims for statutory damages&mdash;whether they appear in the guise of class, collective, or representative actions&mdash;employers should regularly review their arbitration procedures to ensure that they reflect the current state of the law.<o:p></o:p></p> http://www.seyfarth.com:80/publications/basspro080917 Gerald Maatman, Christopher DeGroff and Alex Karasik authored an article in Law360 http://www.seyfarth.com:80/publications/basspro080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> Gerald Maatman, Christopher DeGroff and Alex Karasik authored an August 9 article in Law360, &quot;Employer Takeaways From EEOC&#39;s $10.5M Deal With Bass Pro.&quot; The article discusses how a closer look of the EEOC/Bass Pro Outdoor World settlement terms gives insight into the EEOC&rsquo;s litigation strategies.</p> http://www.seyfarth.com:80/news/babsonbna080917 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna080917 Wed, 09 Aug 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an August 9 story from Bloomberg BNA, &quot;Labor Board Takes On Justice Department in Supreme Court,&quot; on how the NLRB stood its ground in a battle that pits it against the DOJ on whether businesses can force workers to sign contracts with mandatory arbitration clauses preventing them from participating in class and collective litigation. Babson said that the purpose of the NLRA is not to protect class actions and that it&#39;s unfortunate that the board is expending so much resources on what he believes is a misplaced idea.</p> http://www.seyfarth.com:80/news/grossenbacherbna080817 Karla Grossenbacher interviewed by Bloomberg BNA http://www.seyfarth.com:80/news/grossenbacherbna080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Karla Grossenbacher was interviewed August 8th by Bloomberg BNA, &quot;Managing Technology in the Workplace.&quot; Grossenbacher discussed the issues surrounding technology use in the workplace and methods employers can use to safeguard their company&rsquo;s information. You can view the <a href="https://www.bna.com/managing-technology-workplace-m73014462865/?promocode=LIPP101AA&amp;compcontent=Twitter&amp;utm_medium=compcontent&amp;utm_campaign=BloombergBNA">full interview here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360080817 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Marshall Babson was quoted in an August 8 story from Law360, &quot;NLRB Chairman To Exit Agency At Conclusion Of Term,&quot; on the news that Philip Miscimarra, chairman of the National Labor Relations Board, will leave the NLRB when his current term on the labor board expires in December. Babson said that Miscimarra will be missed at the labor board and that his eventual departure raises the ante for the Trump administration in finding a person to fill his spot.</p> http://www.seyfarth.com:80/news/foleyhre080817 Erin Dougherty Foley quoted in Human Resource Executive http://www.seyfarth.com:80/news/foleyhre080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Erin Dougherty Foley was quoted in an August 8 story from Human Resource Executive, &quot;In the Concealed-Carry Crosshairs,&quot; on how employers must walk a fine line between protecting the workplace and respecting workers&#39; Second Amendment rights. Foley said that while there are sure to be a few employees who are worried about potentially working next to someone toting a gun, keeping the lines of communication open via training and ongoing dialogue goes a long way toward assuaging concerns. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362874">full article here</a>.</p> http://www.seyfarth.com:80/news/krameraba080817 Ronald Kramer quoted in ABA http://www.seyfarth.com:80/news/krameraba080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> Ronald Kramer was quoted in an August 8 ABA story, &quot;Complying or violating the law? The case of Sanctuary Cities,&quot; on the panel he will moderate at the ABA Annual Meeting: &ldquo;Sanctuary Cities &ndash; The Role of State &amp; Local Governments in Addressing Undocumented Immigrants.&quot; Kramer said that sanctuary cities are a hot political topic, yet one many do not fully understand. You can read the <a href="https://www.americanbar.org/news/abanews/aba-news-archives/2017/08/complying_or_violati.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/EL080817 EEOC’s Motion For Sanctions Granted Over Employer’s Failure To Preserve And Produce Records http://www.seyfarth.com:80/publications/EL080817 Tue, 08 Aug 2017 00:00:00 -0400 <p> In an EEOC lawsuit alleging that an employer failed to reasonably accommodate its Muslim employees&rsquo; requests for prayer breaks, a federal court in Colorado granted the EEOC&rsquo;s motion for sanctions &mdash; as a result of the employer&rsquo;s failure to preserve and produce various records &mdash; and barred the employer from presenting evidence, testimony, or arguments that unscheduled prayer breaks led to production line slowdowns or stoppages. &nbsp;This ruling provides an important lesson for businesses regarding the preservation of documents in ongoing EEOC litigation.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/eeocs-motion-for-sanctions-granted-over-employers-failure-to-preserve-and-produce-records/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=f5b839fecd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-f5b839fecd-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/bodanskydyer080717 Robert Bodansky and Joseph Dyer authored an article in Middle Market Growth http://www.seyfarth.com:80/publications/bodanskydyer080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> Robert Bodansky and Joseph Dyer authored an August 7 article in Middle Market Growth, &quot;&lsquo;America First&rsquo; and Its Impact on Cross-Border M&amp;A.&quot; The article discusses the Trump administration&rsquo;s focus on &ldquo;America First&rdquo; and its impact on the Committee on Foreign Investment in the United States. You can read the <a href="http://middlemarketgrowth.org/america-first-impact-cross-border-ma/">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA080717-LE Massachusetts Temporarily Imposes Employer Assessments for the Commonwealth’s Medicaid Program http://www.seyfarth.com:80/publications/MA080717-LE Mon, 07 Aug 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>On August 1, Massachusetts Governor Charlie Baker signed into law a measure intended to help the state pay for the costs of the Commonwealth&rsquo;s Medicaid program, referred to as MassHealth, which covers nearly 2 million low income, minor and disabled Massachusetts residents.&nbsp; The law is effective immediately and will impact Massachusetts employers with 6 or more employees.&nbsp;</em></p> <p> Entitled, &ldquo;An Act Further Regulating Employer Contributions to Health Care,&rdquo; the new law is part of an initiative designed to respond to a growing trend of employees shifting from commercial insurance to publicly sponsored coverage because of premium increases.&nbsp; The Act is expected to raise $200 million in employers&rsquo; fees to fund MassHealth in two ways. &nbsp;</p> <ul> <li> First, the law will increase the existing Employer Medical Assistance Contribution (&ldquo;EMAC&rdquo;) from an annual maximum fee of $51 per employee to $71 per employee.&nbsp; EMAC funds are used to subsidize health care to low-income Massachusetts residents.</li> <li> Second, the law will penalize employers with a fine of up to a maximum of $750 for each non-disabled worker who receives health insurance coverage through MassHealth or subsidized coverage instead of through their employer-sponsored health insurance plan.&nbsp; Prior to the passage of the Act, employers were not directly fined if their workers received coverage through MassHealth or the Massachusetts Health Connector instead of through their employer-sponsored plan.</li> </ul> <p> The Act&rsquo;s assessments are scaled back from an earlier proposal that would have taxed employers $2,000 per full-timer who enrolled in MassHealth while eligible for employer-sponsored coverage. Reminiscent of the Fair Share Contribution days that preceded passage of the Affordable Care Act, the Act states that the Department of Unemployment Assistance, &ldquo;in consultation&rdquo; with the Commonwealth Health Insurance Connector Authority, will prepare regulations regarding implementation of the $750 fine.&nbsp; The regulations are expected to specify the number of days that a worker must receive MassHealth or subsidized care in order to trigger the fine.&nbsp; The regulations also are expected to provide guidance on the manner in which employers must pay the $750 fine. &nbsp;It is reported that the regulations will be drafted and finalized in 2017.</p> <p> Despite speculation that the assessments&rsquo; sunset may never arrive, the Act provides that they will expire on December 31, 2019.&nbsp; The Act also reduces scheduled unemployment increases during the same period to offset these increased employer costs.&nbsp; The Governor reports that by signing the controversial assessments into law, he returned the legislature&rsquo;s focus to reforming the economic sustainability of MassHealth. A second part of the initiative, not yet signed into law, sought to push approximately 140,000 low income workers currently on MassHealth onto commercial coverage.</p> <p> <strong>What Employers Can Do Now</strong></p> <p> As employers sharpen their pencils for budgeting purposes, they must account for the impact that this temporary assessment will have on operating costs.&nbsp; Employers may wish to review current EMAC and unemployment insurance liabilities to best evaluate the additional impact these tiered assessments represent.&nbsp; Employers also should review health insurance offerings and employee communications pertaining to those offerings to ensure that that employees are informed of any applicable employer-sponsored benefits.</p> http://www.seyfarth.com:80/publications/WC080717 EEOC’s Motion For Sanctions Granted Over Employer’s Failure To Preserve And Produce Records http://www.seyfarth.com:80/publications/WC080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> In EEOC v. JBS USA, LLC, Case No. 10-CV-02103, 2017 U.S. Dist. LEXIS 122908 (D. Colo. Aug. 4, 2017), the EEOC alleged that JBS USA, LLC (&ldquo;JBS&rdquo;), a meat packing company, discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations. &nbsp;After the EEOC moved for sanctions regarding JBS&rsquo;s failure to produce two types of records relating to delays on JBS&rsquo;s production line, Judge Phillip A. Brimmer of the U.S. District Court for the District of Colorado granted in part the EEOC&rsquo;s motion and barred JBS from presenting evidence, testimony, or argument in its motions, at hearings, or at trial that unscheduled prayer breaks led to production line slowdowns or stoppages.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/08/eeocs-motion-for-sanctions-granted-over-employers-failure-to-preserve-and-produce-records/">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA080717 Two New York Federal Judges Refuse to Dismiss Website Accessibility Cases http://www.seyfarth.com:80/publications/ADA080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> The number of district court judges siding with plaintiffs in website accessibility cases is increasing. On June 13, a Florida federal judge issued the first web accessibility trial verdict against grocer Winn Dixie for having a website that could not be used by the blind plaintiff. &nbsp;Two days later, a California federal judge held that a blind plaintiff&rsquo;s website accessibility lawsuit against retailer Hobby Lobby could proceed to discovery. &nbsp;Now two federal judges in New York have weighed in, denying restaurant Five Guys&rsquo; and retailer Blick&rsquo;s motions to dismiss lawsuits alleging that the defendants&rsquo; inaccessible websites violate the ADA and New York State and City civil rights laws.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/08/two-new-york-federal-judges-refuse-to-dismiss-website-accessibility-cases/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=87a87c35f5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-87a87c35f5-73047125">click here</a>.</p> http://www.seyfarth.com:80/news/launeyatl080717 Kristina Launey quoted in Above the Law http://www.seyfarth.com:80/news/launeyatl080717 Mon, 07 Aug 2017 00:00:00 -0400 <p> Kristina Launey was quoted in an August 7 story from Above the Law, &quot;What I Wish I&rsquo;d Known Before Becoming an Attorney,&quot; on insights that are sure to be helpful to an aspiring attorney. Launey thinks the most important thing for people to know is you&rsquo;re not just an attorney&mdash;you&rsquo;re a business partner with your clients, so being well-rounded and practical are very important. You can read the <a href="http://abovethelaw.com/lawline-cle/2017/08/07/what-i-wish-id-known-before-becoming-an-attorney/8/">full article here</a>.</p> http://www.seyfarth.com:80/news/boutroscbc080617 Andrew Boutros was interviewed by CBC News http://www.seyfarth.com:80/news/boutroscbc080617 Sun, 06 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was interviewed in an August 6 story from CBC News, &quot;Former prosecutor on investigation into alleged Russian election meddling.&quot; Boutros discussed the grand jury investigation into claims of Russian interference in the 2016 U.S. election. You can watch the <a href="http://www.cbc.ca/player/play/1028632643905">full interview here</a>.</p> http://www.seyfarth.com:80/news/weissshrm080417 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in an August 4 story from SHRM, &quot;Summer Outing Fiascos: Raucous Pool Parties, &lsquo;Pin the Tail on the Intern,&rsquo; Lost in a Scavenger Hunt,&quot; on why some companies prohibit alcohol at summer events. Weiss said that he would limit the number of drinks employees are served and designate some managers to not drink so that they can monitor the event and put a stop to any misbehavior that might give rise to visits to HR. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/summer-outings.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/bitarlaw360080417 Karen Bitar quoted in Law360 http://www.seyfarth.com:80/news/bitarlaw360080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Karen Bitar was quoted in an August 4 story from Law360, &quot;Baylor Faces Long Road To Resolving Sex Assault Cases.&quot; Bitar said that this is a situation that has gotten away from itself and there&rsquo;s really been nothing quite like this, explaining how the chronology of how the lawsuits and plaintiffs piled up against Baylor.</p> http://www.seyfarth.com:80/news/weissbna080417 Philippe Weiss quoted in Bloomberg BNA http://www.seyfarth.com:80/news/weissbna080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in an August 4 story from Bloomberg BNA, &quot;Vacated Vacations: Scaling Back Time Off Has Consequences.&quot; Weiss said that employers may cancel vacations because something major occurred. He said that the practical reality is if you don&rsquo;t follow your own policy or handbook you can be at legal jeopardy.</p> http://www.seyfarth.com:80/news/shermangtm080417 Andrew Sherman quoted in Global Trade Magazine http://www.seyfarth.com:80/news/shermangtm080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in an August 4 story in Global Trade Magazine, &quot;Persistence Pays Off,&quot; on export financing in the time of Trump. Sherman said that Cross-border transactions are in a bit of a holding pattern, in part due to politics. You can read the <a href="http://www.globaltrademag.com/banking/persistence-pays-off">full article here</a>.</p> http://www.seyfarth.com:80/news/boutrosvice080417 Andrew Boutros quoted in VICE http://www.seyfarth.com:80/news/boutrosvice080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in an August 4 story from VICE, &quot;Martin Shkreli Was Just Convicted of Fraud.&quot; Boutros said that the defense&#39;s legal strategy was pushing the envelope. You can read the <a href="https://www.vice.com/en_us/article/3knxvk/martin-shkreli-was-just-convicted-of-fraud">full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT080417 The Week in Weed: August 4, 2017 http://www.seyfarth.com:80/publications/TBT080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Marijuana Legalization Law Would Free People Behind Bars for Weed Offenses</p> <p> (Newsweek: All News, 2 August 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/08/the-week-in-weed-august-4-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=221152c38e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-221152c38e-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/MA080417-LE New York City’s Fair Chance Act: Final Rules and Regulations http://www.seyfarth.com:80/publications/MA080417-LE Fri, 04 Aug 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On August 5, 2017, the </em><a href="http://www1.nyc.gov/assets/cchr/downloads/pdf/FC%20rules%206.1.17%20FINAL.pdf"><em>Final Rules and Regulations</em></a><em> for the New York City Fair Chance Act (the &ldquo;FCA&rdquo;) go into effect.&nbsp; The FCA, which is enforced by the New York City Commission on Human Rights (the &ldquo;Commission&rdquo;), makes it unlawful to request or consider an applicant&rsquo;s criminal background prior to a conditional offer of employment and imposes compliance requirements for New York City employers performing background checks on applicants and employees.&nbsp; (See our prior posts </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM061215LE.pdf"><em>here</em></a><em>,&nbsp; </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA092915LE2.pdf"><em>here</em></a><em>, </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM102315LE.pdf"><em>here</em></a><em> and </em><a href="http://www.seyfarth.com/uploads/siteFiles/publications/MA110915LE.pdf"><em>here</em></a><em>).</em></p> <p> <strong>The FCA</strong></p> <p> Under the FCA, employers with at least four employees are prohibited from inquiring about a job applicant&rsquo;s criminal history until after a conditional offer of employment has been made to the applicant.&nbsp; In addition, employers are prohibited from referring to criminal history in job postings, employment applications, or any type of inquiry during the interview process itself.&nbsp; Prohibited inquiries extend to conducting investigations into an applicant&rsquo;s criminal history, such as using publicly available records or conducting searches on the Internet, regardless of whether the investigations are conducted by the employer or a third party.&nbsp; There are narrow exceptions, such as for employers who are required to conduct background screens pursuant to federal, state, or local law, or subject to the rules of a financial self-regulatory organization, such as the SEC or FINRA.&nbsp;</p> <p> In the event that an employer decides to rescind the conditional offer of employment due to an applicant&rsquo;s criminal history, the FCA requires that covered the employer follow certain procedures.&nbsp; The factors outlined in Article 23-A of the New York Correction Law must be taken into consideration in order to reach a determination as to whether there is a &ldquo;direct relationship&rdquo; between the applicant&rsquo;s criminal conviction history and the job duties in question, or an unreasonable risk to people or property that would preclude the applicant from employment.&nbsp; The FCA also sets forth a fair chance process, including providing applicants with a copy of their background check report, an analysis of the factors outlined in Article 23-A (in a form prescribed by the Commission, or one that is reasonably similar) and an opportunity for the applicant to address the criminal history at issue and present mitigating information or material before the offer of employment is rescinded.</p> <p> <strong>New Guidance</strong></p> <p> <strong><em>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Per Se </em></strong><strong>Violations</strong></p> <p> The Commission has identified <em>per se</em> violations, regardless of whether adverse action is actually taken by the employer:</p> <ul> <li> Declaring, printing, or circulating of any solicitation, advertisement, policy, or publication that directly or indirectly expresses (orally or in writing) any limitation or specification in employment regarding criminal history (for example, &ldquo;no felonies,&rdquo; &ldquo;background check required&rdquo;).&nbsp; Importantly, this also applies to out-of-state employers with job postings for positions in New York City.</li> <li> Employing applications that require applicants to consent to employers running background checks or providing information regarding criminal history prior to a conditional offer of employment being issued.&nbsp; This includes the use of a multi-jurisdiction boilerplate application form that inquires as to criminal history, regardless of the use of disclaimers indicating that the applicant should disregard the specific questions if applying for a position subject to the FCA.</li> <li> Making any inquiry or statement relating to an applicant&rsquo;s criminal history before a conditional offer of employment is tendered.</li> <li> Disqualifying an applicant because they refused to respond to a prohibited inquiry regarding criminal history.</li> <li> Using publicly available records or conducting searches on the Internet to learn about an applicant&rsquo;s criminal history.&nbsp; Such searches are prohibited regardless of whether the investigations are conducted by the employer or a third party.</li> <li> Failing to comply with the fair chance process pursuant to the FCA, including providing the candidate with a criminal history report and a copy of the Article 23-A form analysis, or holding the position open for at least three business days from the candidate&rsquo;s receipt of the pre-adverse action notification letter.</li> <li> Changing the requirements of the position after learning of the applicant&rsquo;s criminal history and therefore disqualifying the applicant based upon the revised requirements.</li> </ul> <p> <em>Per se</em> violations may result in employers incurring fines based upon the employer&#39;s size and history of previous violations; they range from $500 to $3,500 for initial violations to $1,000 to $10,000 for repeat violations.&nbsp; Willful, wanton, or malicious actions found on the part of an employer may result in the Commission&rsquo;s imposition of a civil penalty of up to $250,000.&nbsp; Additionally, violations of the FCA may result in compensatory damages, punitive damages, and attorney&rsquo;s fees.&nbsp;</p> <p> <strong>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Non-Convictions and Pending Criminal Charges </strong></p> <p> The Rules emphasize that an employer can never require an applicant to disclose, nor may it consider, non-convictions (<em>i.e.</em>, criminal accusations that are not currently pending, were terminated in favor of the applicant, were adjudicated as a juvenile or resulted in a sealed conviction).&nbsp; Inquiries or consideration of non-convictions would be deemed a <em>per se </em>violation.</p> <p> The fair chance process is NOT applicable to pending criminal charges, however, employers still cannot make inquiry or explore information about such charges before a conditional offer of employment is made.</p> <p> <strong>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Inadvertent or Unsolicited Disclosure</strong></p> <p> If an employer inadvertently learns of an applicant&rsquo;s criminal history without solicitation or inquiry, the employer will not be liable under the FCA.&nbsp; This does not allow the employer to inquire further about the criminal history or rely on the information for hiring purposes without a conditional offer of employment being made.</p> <p> <strong>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Temporary Help Agencies</strong></p> <p> While temporary help agencies must comply with the FCA, the Rules recognize that conditional offers generally only make the applicant available for assignment to agency clients.&nbsp; The Rules clarify that temporary help agencies may consider only the minimum skill requirements and qualifications necessary in order to evaluate convictions to determine whether they are job-related.&nbsp; Temporary help agencies cannot make determinations about an applicant&rsquo;s suitability based upon an employer&rsquo;s preference to disqualify individuals with specific types of convictions.</p> <p> <strong>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Falsification</strong></p> <p> The Rules expressly provide that, &ldquo;[i]f a background check reveals that an applicant has intentionally failed to answer a legitimate question about their conviction history, the employer, employment agency, or agent thereof may revoke the conditional offer or take an adverse employment action.&rdquo;&nbsp; Rescission of the employment offer would still need to comply with the fair chance process under the FCA.</p> <p> <strong>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Rebuttable Presumption</strong></p> <p> The Rules impose a rebuttable presumption that a rescission of a conditional offer of employment was motivated by a candidate&rsquo;s criminal history.&nbsp; In order to rebut the presumption, employers can show that the rescission was based upon a permissible physical examination or material information it could not have reasonably known before extending a conditional offer or evidence that the employer had no knowledge of the candidate&rsquo;s criminal history prior to revocation.</p> <p> <strong>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Enforcement Initiatives</strong></p> <p> The Commission has implemented an early resolution program to allow employers to admit liability for <em>per se</em> violations of the FCA.&nbsp; The employer would have to accept a penalty and enter into an agreement with respect to compliance, however, the Commission reserves the discretion to conduct a full investigation and take a complaint to hearing if an early resolution would not serve the public interest.</p> <p> <strong>Employer Outlook</strong></p> <p> Employers operating in New York City have been legally obligated to comply with the FCA since October 27, 2015, however, they should take this opportunity to review their applications, job postings, policies, practices, and onboarding documents to ensure that they are prepared to comply with the more robust guidance.&nbsp; Additionally, employers should ensure that all recruiting and onboarding personnel and human resource business representatives understand the FCA compliance requirements.</p> http://www.seyfarth.com:80/publications/ts080417a Now Available! 2017-2018 Edition of the Trade Secrets and Non-Competes 50 State Desktop Reference http://www.seyfarth.com:80/publications/ts080417a Fri, 04 Aug 2017 00:00:00 -0400 <p> It has been an extraordinary year regarding trade secret and non-compete issues. We saw more and more cases filed in federal court asserting claims under the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) and for alleged violations of non-competes. Some states passed legislation further narrowing the use of non-compete agreements, and some media outlets, academics, and regulators have continued their criticism of such agreements. We expect over the next year, the law to continue to develop regarding the DTSA&rsquo;s application, definitions, scope, limitations, benefits and interpretation with regard to the immunity provisions. Our 50 State Desktop Reference is a useful guide to know how the law is currently applied in each state.</p> <p> <a href="http://www.tradesecretslaw.com/2017/08/articles/trade-secrets/now-available-2017-2018-edition-of-the-trade-secrets-and-non-competes-50-state-desktop-reference/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=c29816a7b8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-c29816a7b8-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/erisa080417 Plotting A Course To Defeat Claims Of Insurer Bias http://www.seyfarth.com:80/publications/erisa080417 Fri, 04 Aug 2017 00:00:00 -0400 <p> <em>Cooper v. Metropolitan Life Insurance Company</em>, No 16-3429, 2017 WL 2853729 (8th Cir. July 5, 2017), is a fairly typical ERISA long-term disability case, but has unusually strong pro-insurer holdings. On appeal from a summary judgment win for MetLife, the Eight Circuit conclusively rejected the plaintiff&rsquo;s claim that the insurer&rsquo;s dual role as decisionmaker and payor of benefits warranted a closer review of its decision.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/08/04/plotting-a-course-to-defeat-claims-of-insurer-bias/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=219c559804-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-219c559804-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wh080317 Can We Finally Retire the Notions of Construing The FLSA’s Overtime Provisions Broadly But Its Exemptions Narrowly? http://www.seyfarth.com:80/publications/wh080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> As our readers saw <a href="http://www.wagehourlitigation.com/misclassification/making-a-mountain-of-the-administrativeproduction-dichotomy-molehill/" rel="noopener noreferrer" target="_blank">earlier this week</a>, the Ninth Circuit recently issued a decision in <em>McKeen-Chaplin v. Provident Bank</em>, turning the traditional administrative vs. production dichotomy of the administrative exemption on its head. In <em>Provident Bank</em>, the Ninth Circuit held that the bank&rsquo;s mortgage underwriters are not exempt because their duties go to the heart of marketplace offerings rather than the administration of the bank&rsquo;s business.</p> <p> <a href="http://www.wagehourlitigation.com/misclassification/can-we-finally-retire-the-notions-of-construing-the-flsas-overtime-provisions-broadly-but-its-exemptions-narrowly/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=fb31928a28-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-fb31928a28-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc080317 Seyfarth Shaw Submits Comments On Needed Reform To Rule 30(b)(6) http://www.seyfarth.com:80/publications/wc080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> As most employers are aware, Rule 30(b)(6) allows a party to take the deposition of an organization by requiring the designation of an officer, director, managing agent, or other person competent to testify on a potentially wide range of topics requested by the opposing party. &nbsp;</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/seyfarth-shaw-submits-comments-on-needed-reform-to-rule-30b6/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=d0ef240c1f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-d0ef240c1f-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/BTIassociates080317 Seyfarth Associates Recognized by Corporate Counsel in New BTI Report http://www.seyfarth.com:80/news/BTIassociates080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP associates have been ranked among the industry&rsquo;s &ldquo;best&rdquo; by corporate counsel in a new report from BTI Consulting. According to BTI&rsquo;s Law Firms with the Best Associates, top in-house counsel recognized Seyfarth for &ldquo;Standout Associates&rdquo; - those who gain the respect and recognition of clients.</p> <p> &ldquo;This honor is further proof of what we already know here inside the firm: Seyfarth associates are among the most skilled lawyers in the profession, consistently delivering outstanding work while providing excellent client service,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner.</p> <p> BTI&rsquo;s results are based solely on in-depth telephone interviews with leading legal decision makers. You can read the<a href="http://www.bticonsulting.com/themadclientist/the-law-firms-with-the-best-associates"> full report here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/tomaszewski080317 John Tomaszewski quoted in Law360 http://www.seyfarth.com:80/news/tomaszewski080317 Thu, 03 Aug 2017 00:00:00 -0400 <p> John Tomaszewski was quoted in a August 3 story from Law360, &quot;Data Breach Suits Find Easier Path With DC Circ. Ruling,&quot; on how a D.C. Circuit recently embraced the premise that the risk of future harm can be enough to meet the Spokeo standing bar in a data breach case involving a health insurer, deepening a circuit split that&rsquo;s been fueled in part by judges&rsquo; growing familiarity with how such intrusions play out. Tomaszewski said both the bench and the plaintiffs bar have evolved in their understanding of data breaches and the harms they potentially cause.</p> http://www.seyfarth.com:80/news/grossenbacherbna080217 Karla Grossenbacher quoted in Bloomberg BNA http://www.seyfarth.com:80/news/grossenbacherbna080217 Wed, 02 Aug 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in a August 2 story from Bloomberg BNA, &quot;CAN I FIRE SOMEONE FOR TWEETING THAT?,&quot; on her discussion of the &quot;e-workplace&quot; during the National Employment Law Institute&#39;s annual Employment Law Update in Washington, D.C. Grossenbacher said that while most employers by now have in place a policy, or several policies, governing workplace communications, those policies don&#39;t often keep up with the technology.</p> http://www.seyfarth.com:80/publications/CP080217 What’s Up With The DLSE? Latest Enforcement Actions http://www.seyfarth.com:80/publications/CP080217 Wed, 02 Aug 2017 00:00:00 -0400 <p> The DLSE enforces California labor laws. In two recent enforcement actions, the DLSE collectively recovered over one million dollars, so California employers should read on to find out more about this robust administrative agency.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/08/02/whats-up-with-the-dlse-latest-enforcement-actions/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=86c3b18dc8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-86c3b18dc8-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/EL080117 Watch Out: Workplace Smells, ADA Disability, Telecommuting, and an EEOC Lawsuit http://www.seyfarth.com:80/publications/EL080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to &ldquo;correct unlawful employment practices on the basis of disability.&rdquo; &nbsp;In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a &ldquo;qualified individual with a disability,&rdquo; with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/08/watch-out-workplace-smells-ada-disability-telecommuting-and-an-eeoc-lawsuit/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=896cf9ffb8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-896cf9ffb8-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/wc080117 Massachusetts Federal Court Doubles Down On Disparate Impact Ruling Against City Of Boston http://www.seyfarth.com:80/publications/wc080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> In <em>Smith v. City of Boston</em>, Plaintiffs brought suit against their employer, the City of Boston (the &ldquo;City&rdquo;), challenging the City&rsquo;s police promotional exam from sergeant to lieutenant.&nbsp; Plaintiffs alleged that the exam had a disparate impact on racial minorities and was invalid under Title VII of the Civil Rights Act of 1964 (&ldquo;Title VII&rdquo;). &nbsp;</p> <p> <a href="http://www.workplaceclassaction.com/2017/08/massachusetts-federal-court-doubles-down-on-disparate-impact-ruling-against-city-of-boston/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=a9061e546d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-a9061e546d-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wls080117 United we stand. But lawfully. http://www.seyfarth.com:80/publications/wls080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/08/united-we-stand-but-lawfully/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=eb49570606-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-eb49570606-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/equalityillinois080117 Seyfarth Recognized as a Top Illinois Law Firm for LGBTQ Equality by Equality Illinois http://www.seyfarth.com:80/news/equalityillinois080117 Tue, 01 Aug 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP has been recognized as a Top Illinois Law Firm for LGBTQ Equality by Equality Illinois. Equality Illinois recognized law firms in Illinois for leading the way in 2017 in providing a welcoming and fair work environment for LGBTQ employees and for supporting the LGBTQ community.</p> <p> &ldquo;At Seyfarth, commitment to diversity and inclusion is a core value. We strive every day to make the firm inclusive and welcoming for employees and clients, to develop LGBT-inclusive employment and employee-benefit best practices, and to contribute to the LGBT community both through pro-bono work and through our deep commitment to local and national LGBT organizations,&rdquo; said Sam Schwartz-Fenwick, partner and national chair of Seyfarth&rsquo;s LGBT Affinity Group.</p> <p> The recognition results from the annual Equality Illinois Law Firm Survey, which found that more law firms are willing to create affirming work spaces for their own employees, engage the LGBTQ community and demand that the vendors and contractors with whom they work show the same respect. You can read the <a href="http://www.equalityillinois.us/wp-content/uploads/2017/07/Equality-Illinois-Raising-the-Bar-2017.pdf">full Equality Illinois report here</a>.</p> <p> About Seyfarth Shaw LLP</p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/rodriguezlaw360073117 Leon Rodriguez quoted in Law360 http://www.seyfarth.com:80/news/rodriguezlaw360073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 31 story from Law360, &quot;What To Know About New Acting DHS Chief Elaine Duke.&quot; Rodriguez said that while he didn&rsquo;t know Duke personally, the news of her appointments has received positive feedback among his professional circle.</p> http://www.seyfarth.com:80/publications/TS073117 Illinois Employers Should Not Depend on Blue Penciling to Enforce Restrictive Covenants http://www.seyfarth.com:80/publications/TS073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Illinois is one of several jurisdictions that recognizes the authority of courts to blue pencil or judicially modify otherwise unenforceable restrictive covenants to be enforceable. <em>See, e.g. Weitekamp v. Lane</em>, 250 Ill. App. 3d 1017, 1028, 620 N.E.2d 454, 462 (4th Dist. 1993) (affirming judicial modification of 300-mile non-compete to specific county); <em>Arpac Corp. v. Murray</em>, 226 Ill. App. 3d 65, 80, 589 N.E.2d 640, 652 (1st Dist. 1992) (affirming the circuit court&rsquo;s modification of restrictive covenant when it was modified &ldquo;only slightly&rdquo; and holding that the balance of the restrictions were reasonable and necessary to protect Arpac&rsquo;s legitimate business interests).</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/restrictive-covenants/illinois-employers-should-not-depend-on-blue-penciling-to-enforce-restrictive-covenants/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=6f3f5037c3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-6f3f5037c3-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/OMM073117-LE VETS-4212 Report: 2017 Filing Cycle starts August 1, 2017 http://www.seyfarth.com:80/publications/OMM073117-LE Mon, 31 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Tomorrow marks the first day that Federal contractors subject to reporting requirements under the Vietnam Era Veterans&rsquo; Readjustment Assistance Act (VEVRAA or &ldquo;the Act&rdquo;) may file their VETS-4212 reports. &nbsp;Generally, a contractor with a federal contract of $150,000 or more must submit the annual reports, which provide information on the contractor&rsquo;s efforts to hire and employ protected veterans.&nbsp; In 2017, the report must be submitted no later than September 30th.&nbsp;</em></p> <p> <strong>What to file? </strong></p> <p> VEVRAA requires Federal contractors and subcontractors covered by the Act&rsquo;s affirmative action provisions to report annually the number of employees in their workforces who are &ldquo;protected veterans.&rdquo; &nbsp;&ldquo;Protected veteran&rdquo; includes:&nbsp;</p> <ul> <li> Disabled veterans;</li> <li> Active duty wartime or campaign badge veterans;</li> <li> Armed Forces service medal veterans (veterans who, while serving on active duty in the Armed Forces, participated in a United States military operation for which an Armed Forces service medal was awarded pursuant to Executive Order 12985); and</li> <li> Recently separated veterans (veterans within 36 months from discharge or release from active duty).</li> </ul> <p> To complete the VETS-4212 Report, contractors must report employee counts for all full- and part-time employees as of the selected payroll period end date, and aggregated employee counts for all protected veterans.&nbsp;&nbsp; Employee data used for the VETS-4212 Report must be from a pay period with an ending date that is between July 1st and August 31st of the current year.&nbsp; The 12-month period preceding the selected payroll period end date is the 12-month &ldquo;reporting period.&rdquo;</p> <p> Covered contractors must also report the number of new hires and protected veteran hires during the &ldquo;reporting period.&rdquo; &nbsp;An electronic copy of the VETS-4212 Report with instructions is available on the Department of Labor&rsquo;s Veterans&rsquo; Employment &amp; Training Service (VETS) <a href="http://www.dol.gov/vets/vets4212.htm">website</a>.&nbsp;</p> <p> <strong>How to file? </strong></p> <p> Contractors are &ldquo;encouraged&rdquo; to file electronically via the VETS-4212 website, available <a href="http://www.dol.gov/vets/vets4212.htm">here</a>.&nbsp; First time filers must register via the website, found <a href="https://vets4212.dol.gov/vets4212/External/Registration">here</a> to obtain a user name and password to log in to the system.&nbsp; Contractors that have filed the VETS-4212 electronically before may access their account with the most recent user name and password.&nbsp; Additional information on filing the VETS-4212 Report can be found <a href="https://www.dol.gov/vets/vets4212.htm">here</a>.</p> <p> <strong>But what about the EEO-1 Report?</strong></p> <p> Absent any changes, beginning in 2018, employers with more than 100 employees (regardless of Federal contractor status) must submit an EEO-1 &ldquo;Component 2&rdquo; report, which discloses previous year W-2 earnings and Fair Labor Standards Act (FLSA) &ldquo;hours worked&rdquo; for all employees. <a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; Employers will submit information based on an employee workforce snapshot taken from the end of any pay period between October 1st and December 31st, in addition to aggregated W-2 and FLSA &ldquo;hours worked&rdquo; information.&nbsp;&nbsp;</p> <p> In years past, both the VETS-4212 Report and EEO-1 Report had overlapping data collection periods (July-August and July-September respectively) and filing deadlines (September 30th).&nbsp; Due to recent changes to the EEO-1 Report, the survey period for the EEO-1 has changed to <strong>October-December</strong>, and the filing deadline has moved to <strong>March 31, 2018</strong>.</p> <p> For 2017 filings, federal contractors subject to both EEO-1 Component 2 and VETS-4212 requirements will not be able to pull employee demographic data for both reports at the same time.&nbsp; This is just one of many challenges associated with the revised EEO-1 Report.&nbsp;</p> <p> In future years, contractors will be able to align the VETS-4212 and EEO-1 reporting data collection periods; but, the filing deadline for the two reports will still be different unless changed by the DOL.&nbsp; Footnote 49 of the <a href="https://www.gpo.gov/fdsys/pkg/FR-2016-07-14/pdf/2016-16692.pdf">notice</a> published in the Federal Register by the EEOC regarding the EEO-1 report stated:</p> <p style="margin-left:.5in;"> Under regulations implementing VEVRAA, certain federal contractors must report annually on form VETS&ndash;4212 the number of employees and new hires protected under VEVRAA. 41 CFR 61&ndash;300.10(d)(1)&hellip;the regulations allow contractors to select December 31st as the basis for reporting the number of employees and as the ending date of the twelve-month covered period, if the federal contractor has &lsquo;&lsquo;previous written approval from the Equal Employment Opportunity Commission to do so for purposes of submitting the Employer Information Report EEO&ndash;1, Standard Form 100 (EEO&ndash;1 Report).&rsquo;&rsquo; 41 CFR 61&ndash;300.10(d)(2). The implementation notice for the revised EEO&ndash;1 will serve as &lsquo;&lsquo;previous written approval&rsquo;&rsquo; from the EEOC pursuant to this Department of Labor VEVRAA rule.</p> <p> <a href="https://www.dol.gov/vets/contractor/main.htm">VETS FAQ #14</a> confirms the EEOC&rsquo;s statement regarding the VETS-4212 data collection period.&nbsp; While VETS has not issued any public guidance as to how the reporting period realignment will be implemented, DOL officials have confirmed to industry groups that Federal contractors will be able to file their 2018 VETS-4212 reports using the data collected in connection with the 2018 EEO-1 filing if contractors use December 31st as the snapshot date for data collection.</p> <p> For more on the changes to the EEO-1 Report and how employers can prepare themselves for the upcoming filing, please join Seyfarth attorneys for an August 2017 webinar.&nbsp; Topics will include:</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Description and explanation of the new EEO-1 requirements;</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Important considerations that employers should make when preparing their data for filing</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Discussion of how employers may see this data used</p> <p> &bull;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Best practices for government contractors when filing EEO-1 reports</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Note that Federal contractors with between 50 and 99 employees will only be required to submit the current EEO-1 form <u>without</u> the compensation and hours worked data required in the Component 2 report.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/schwartzfenwickaba073117 Sam Schwartz-Fenwick authored an article for the ABA http://www.seyfarth.com:80/publications/schwartzfenwickaba073117 Mon, 31 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick authored an article in the Summer issue of an ABA newsletter, &quot;The Future of the Federal Transgender Benefit Protections.&quot; The article discusses Section 1557 of the Affordable Care Act which prohibits discrimination on the basis of race, color, national origin, sex (including gender identity), age or disability under any health program or activity that receives federal financial assistance.</p> http://www.seyfarth.com:80/publications/EL072817 Employment Law Lookout Readers: Cast Your Vote in the ABA’s Web 100 Competition! http://www.seyfarth.com:80/publications/EL072817 Fri, 28 Jul 2017 00:00:00 -0400 <p> Just a reminder that until July 30, 2017, voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, though this year the contest is a &ldquo;Web 100&rdquo; and will include websites and social media along with legal blogs. We hope you will cast your vote today to help Seyfarth&rsquo;s Employment Law Lookout blog get on the ABA&rsquo;s list for 2017.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/employment-law-lookout-readers-cast-your-vote-in-the-abas-web-100-competition-2/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=ecd40e4edc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-ecd40e4edc-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA072817 Issue 112: Senate Health Care Reform Activity - Three Senators Derail Latest Effort at ACA Repeal http://www.seyfarth.com:80/publications/HCRMA072817 Fri, 28 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and eleventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong> In a dramatic late night, as the clock ticked down on the GOP&rsquo;s legislative window to repeal the ACA, self-proclaimed &ldquo;maverick&rdquo; John McCain joined moderate Republicans Lisa Murkoswki and Susan Collins to narrowly defeat the latest ACA repeal effort, a so-called &ldquo;skinny repeal&rdquo; bill that was released just hours earlier. &nbsp;While we have written this several times before (each time more certain than the last), it now appears the GOP will move on from its failed ACA repeal efforts to focus on other legislative initiatives. &nbsp;</em></div> <div> &nbsp;</div> <div> To understand last night&rsquo;s vote, it&rsquo;s important to take a few steps back and examine the series of events that were set in motion by the Senate&rsquo;s vote to proceed on consideration of the Better Care Reconciliation Act (BCRA) on Tuesday.&nbsp;</div> <div> <div> <br /> <strong>Tuesday, July 25th</strong></div> <ul> <li> With no margin for error, 50 Senate Republicans (plus Vice President Mike Pence, as the tie-breaker) voted to bring an ACA repeal bill to the Senate floor for debate. &nbsp;Majority Leader Mitch McConnell had been intentionally vague in the days leading up to the procedural vote on which bill would be under consideration, sensitive to the fact that every bill proposed thus far lacked the required votes. &nbsp;&nbsp;<br /> &nbsp;</li> <li> To garner the support necessary to move the legislation, McConnell had to rely on Senator John McCain&rsquo;s dramatic last minute return to Washington; (he had been convalescing in Arizona following surgery to remove a blood clot and a brain cancer diagnosis). &nbsp;<br /> &nbsp;</li> <li> Curiously, moments after casting the decisive vote to proceed, McCain took the floor to give a fiery speech blasting the process, expressing his lack of support for the BCRA, and pleading with Senators to return to &ldquo;regular order&rdquo; (passing legislation through a 60 vote majority rather than a simple majority). &nbsp;<br /> &nbsp;</li> <li> Later that same night, the Senate proceeded to vote down a version of the BCRA. &nbsp;This version of the BCRA largely tracked the version we described in <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue110_071417.pdf">Alert 110</a>, but with the addition of a $100 billion fund to help people transition from Medicaid. &nbsp; It appeared the bill needed 60 votes to pass, as it included provisions the Senate parliamentarian had ruled ineligible for passage with only 51 votes. &nbsp;Regardless, the bill fell short, garnering only 43 votes. &nbsp;Notably, given his earlier speech, McCain voted in favor of the bill. &nbsp;</li> </ul> <div> &nbsp;</div> <div> <strong>Wednesday, July 26th</strong></div> <ul> <li> To fulfill a commitment necessary to obtain Senator Rand Paul&rsquo;s vote to proceed, the Senate voted on the so-called &ldquo;Obamacare Repeal Reconciliation Act.&rdquo; &nbsp;This bill was cast as &ldquo;repeal no replace&rdquo;, although it wasn&rsquo;t a full repeal as it only repealed those revenue/budget items eligible for passage with a simple majority. &nbsp;While it was clear from statements earlier in the week that this ORRA bill would not have the votes to pass, it was seen by some as an effort by Senator McConnell to force Senate Republicans to go on record voting against a straight repeal. &nbsp;Most of those same Senators had voted for a very similar bill in 2015, which was subsequently vetoed by President Obama (<a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue111_071817.pdf">see Alert 111</a>). &nbsp;<br /> &nbsp;</li> <li> The ORRA garnered only 45 votes in support, with McCain voting against the bill.</li> </ul> <div> &nbsp;</div> <div> <strong>Thursday, July 27th</strong></div> <ul> <li> Early in the week, when it became evident that neither the BCRA nor the ORRA would have the votes to pass, there were whispers that the Senate was considering voting on a so-called &ldquo;skinny repeal&rdquo; bill. &nbsp;The idea was that the Senate would strip out all objectionable provisions of the earlier bills, focusing only on the lowest common denominators (those provisions most uniformly reviled by all Senate Republicans). &nbsp;The items rumored to be included were the individual mandate, the employer mandate, and the medical device tax. &nbsp;<br /> &nbsp;</li> <li> By Thursday, even though the bill had not yet been released, this path became the only remaining viable option. &nbsp;Senate leadership started expressing optimism about the bill&rsquo;s chances as several of the usual holdouts suggested they might be willing to vote for this bill. &nbsp;<br /> &nbsp;</li> <li> Shortly after close of business, Senators Lindsay Graham, Ron Johnson and John McCain held a surprise press conference, announcing they could not support skinny repeal unless they received assurances from Speaker of the House Paul Ryan that the House would not simply pass skinny repeal &ldquo;as-is.&rdquo; &nbsp;Instead, the three wanted Ryan to guarantee the House would conference with the Senate and come up with a more robust repeal and replace plan that could garner the necessary votes in both chambers of Congress. &nbsp;In other words, the Senators wanted a guarantee that the bill they were about to vote in favor of would never become law. &nbsp;It remained unclear what this solution would be given the months of effort put into trying to make this work, but most viewed this as an effort to simply keep the ball rolling rather than throw in the towel. &nbsp;<br /> &nbsp;</li> <li> After 8 pm Eastern Time, Speaker Ryan released a statement indicating the House was &ldquo;willing&rdquo; to go to conference on the bill. &nbsp;Graham, Johnson and McCain said this statement was insufficient and wanted further reassurances. &nbsp;A few hours later, following a call with Speaker Ryan, Graham and Johnson said they received the necessary assurances. &nbsp;However, McCain indicated he was still unsure and needed to consult with the Arizona governor. &nbsp;<br /> &nbsp;</li> <li> Just before 11 pm Eastern Time (and only a few hours before the expected vote), the Senate finally released the text of the skinny repeal bill, labeled the &ldquo;Health Care Freedom Act.&rdquo; &nbsp; At a high level, the bill included the following:</li> </ul> <ul style="margin-left: 80px;"> <li> Repeal the individual mandate<br /> &nbsp;</li> <li> Repeal the employer mandate (only through 2024 presumably because the Senate needed additional revenue <span style="white-space:pre"> </span>within a ten year window for the bill to be eligible for passage with 51 rather than 60 votes)<br /> &nbsp;</li> <li> Postpone the ACA&rsquo;s medical device tax<br /> &nbsp;</li> <li> Cut off federal funds for Planned Parenthood<br /> &nbsp;</li> <li> Expand an ACA waiver program, giving states the option to roll back certain ACA benefit mandates<br /> &nbsp;</li> <li> Expand HSA funding</li> </ul> <div> <strong>Friday, July 28th</strong></div> <ul> <li> The CBO released a budget score for the HCFA, indicating it would result in 16 million fewer insured by 2026 and a 20% spike in premiums, but that it would save $135 billion over ten years. &nbsp;This last point was key because the bill had to save at least $133 billion (the savings in the House-passed AHCA) to pass with only 51 votes. &nbsp;<br /> &nbsp;</li> <li> In the early hours of the morning, Vice President Mike Pence arrived on the Senate floor, indicating that leadership believed they would have the bare minimum - 50 votes - and that Pence would be the tie-breaker. &nbsp;<br /> &nbsp;</li> <li> What played out next was quite dramatic. &nbsp;As expected, Senate leadership entered the vote without the support of Collins and Murkowski, and they were viewed as firm &ldquo;no&rsquo;s&rdquo;, meaning the Republicans could lose no more votes. &nbsp;<br /> &nbsp;</li> <li> It quickly became apparent that something was amiss as Mike Pence was seen standing by McCain feverishly lobbying him to shift his vote, to no avail. &nbsp;The roll call began, and the remaining Republican Senators fell in line, voting &ldquo;yes&rdquo;. &nbsp;When they reached John McCain, he voted &ldquo;no&rdquo; with a thumbs down, followed by an audible gasp in the room. &nbsp;This was, perhaps, the most riveting moment involving the Maverick since Tom Cruise battled the Russians in Top Gun&trade; (perhaps a fitting analogy on many fronts). &nbsp;<br /> &nbsp;</li> <li> When it became clear the vote would fail, McConnell gave a few remarks expressing his extreme disappointment and blaming the Democrats. &nbsp;<br /> &nbsp;</li> <li> Shortly thereafter, President Trump also tweeted &ldquo;As I said from the beginning, let ObamaCare implode, then deal. Watch!&rdquo;</li> </ul> <div> <div> <strong>What&rsquo;s Next?</strong><br /> &nbsp;</div> <p> Presumably, Congress will finally move on from ACA repeal and focus on tax reform and the remaining legislative backlog that had been building as both Chambers attempted to negotiate a workable health care approach. &nbsp;Things to watch for include:</p> <ul> <li> Several moderate Republicans had expressed support for working in a bipartisan manner to shore up the individual market. &nbsp;Presumably, there would be sufficient bipartisan support to move forward legislation in this space. &nbsp;In fact, the Problem Solvers caucus, a bipartisan group of about 40 House members led by Tom Reed (R-N.Y.) and Josh Gottheimer (D-N.J.), has already been meeting about ways to fix the ACA. &nbsp;It&rsquo;s unclear whether President Trump would veto any such efforts.<br /> &nbsp;</li> <li> The Trump Administration is now in the awkward position of implementing and enforcing a law that it abhors. &nbsp;This leaves many unanswered questions, including:</li> </ul> <ul style="margin-left: 80px;"> <li> Will the IRS enforce the individual and employer mandates?<br /> &nbsp;</li> <li> Will the Trump Administration continue to allocate funding for Marketplace subsidies (and will it continue <span style="white-space:pre"> </span>to do so only on a monthly basis or will it allocate long-term funding providing insurance carriers with the <span style="white-space:pre"> </span>reassurances necessary to commit to future participation)?&nbsp;<br /> &nbsp;</li> <li> Will the regulatory agencies attempt to roll back or soften earlier guidance implementing the ACA?<br /> &nbsp;</li> <li> Some Republicans have indicated they will continue their efforts to repeal the ACA. &nbsp;We would also expect that tax reform could include some targeted repeal of certain ACA taxes (such as the ACA&rsquo;s tax on high earners).&nbsp;</li> </ul> <div> &nbsp;</div> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA072817-LE Governor Baker Signs Into Law the Massachusetts Pregnant Workers Fairness Act http://www.seyfarth.com:80/publications/MA072817-LE Fri, 28 Jul 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Effective April 1, 2018, Massachusetts will expand its anti-discrimination statute to specifically prohibit the discrimination against, refusal to hire, and the termination of individuals due to pregnancy or pregnancy-related conditions (including lactation or the need to express breast milk for a nursing child). Employers also will be required to provide reasonable accommodations to pregnant workers for conditions related to pregnancy. Massachusetts will join approximately twenty other states and the District of Columbia in expanding protections against pregnancy-related discrimination.</em></div> <div> &nbsp;</div> <div> On July 27, 2017, Governor Baker signed into law the Pregnant Workers Fairness Act, which will take effect on April 1, 2018. The law will expand the Commonwealth&rsquo;s anti-discrimination statute, making it unlawful for an employer to discriminate against, refuse to hire, or terminate an individual due to pregnancy or pregnancy-related conditions, including lactation or the need to express breast milk for a nursing child.</div> <div> &nbsp;</div> <div> An employer will be required to provide a reasonable accommodation for an employee&rsquo;s &ldquo;pregnancy or any condition related to the employee&rsquo;s pregnancy,&rdquo; if the employee requests such an accommodation and provided that the requested accommodation would not impose an undue hardship on the employer. Employers will be required to engage in a timely, good faith, and interactive process to determine an effective, reasonable accommodation. However, the statute includes a non-exhaustive list of potential accommodations:</div> <div> &nbsp;</div> <ul> <li> More frequent or longer paid or unpaid breaks;</li> <li> Time off to attend to a pregnancy complication or recover from childbirth, with or without pay;</li> <li> &nbsp;Acquisition or modification of equipment or seating;</li> <li> A temporary transfer to a less strenuous or hazardous position;</li> <li> Job restructuring;</li> <li> Light duty;</li> <li> Private non-bathroom space for expressing breast milk;</li> <li> Assistance with manual labor; and</li> <li> Modification of work schedule.</li> </ul> <div> &nbsp;</div> <div> In addition, the law will prohibit employers from:</div> <div> &nbsp;</div> <ul> <li> Taking an adverse action against an employee (including failing to reinstate to the original or equivalent position) for requesting or using a reasonable accommodation;</li> <li> Denying an employment opportunity because of the need for a reasonable accommodation related to the employee&rsquo;s pregnancy or pregnancy-related condition;</li> <li> Requiring an employee to accept an accommodation that the employee chooses not to accept if that accommodation is unnecessary to enable the employee to perform the essential functions of the job;</li> <li> Requiring an employee to take leave if another reasonable accommodation could be provided without imposing undue hardship on the employer; and</li> <li> Refusing to hire a person because of pregnancy or a pregnancy-related condition, so long as that person could otherwise perform the essential functions with a reasonable accommodation, and doing so would not impose an undue hardship on the employer.</li> </ul> <div> An employer will be able to deny a requested accommodation if it can demonstrate that the requested accommodation would impose an undue hardship. Whether an accommodation would impose an undue hardship depends on the cost of the accommodation, the financial resources of the employer, the overall size of the employer&rsquo;s business with respect to number of employees, the nature of the employer&rsquo;s facilities, and the impact of the accommodation on the employer&rsquo;s operations.</div> <div> Further, the law specifies that employers will not be required to displace a more senior employee in order to grant an accommodation, or promote an employee who cannot perform the essential functions of the job with or without reasonable</div> <div> accommodation.</div> <div> &nbsp;</div> <div> As part of the interactive process, employers will be permitted to require documentation from an appropriate health care provider regarding most requested accommodations. However, an employer will be <u>prohibited</u> from requiring documentation for four accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.</div> <div> &nbsp;</div> <div> Employers are required to distribute written notice to employees (through a handbook, pamphlet, or other means) of their rights to be free from discrimination in relation to pregnancy and pregnancy-related conditions, including the right to a reasonable accommodation for pregnancy-related conditions. Moreover, employers must provide written notice to new employees at or prior to commencement of their employment, and to employees who notify the employer of a pregnancy or pregnancy-related condition within ten days of such notification.</div> <div> &nbsp;</div> <div> With its enactment, the law will allow individuals to pursue claims for discrimination on the basis of pregnancy or pregnancy related conditions like any other claim of discrimination under Section 4 of General Laws Chapter 151B, the state antidiscrimination</div> <div> law, and potentially recover damages, attorneys&rsquo; fees, costs, and injunctive relief.</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/conleylaw360072817 Ben Conley quoted in Law360 http://www.seyfarth.com:80/news/conleylaw360072817 Fri, 28 Jul 2017 00:00:00 -0400 <p> Ben Conley was quoted in a July 28 story from Law360, &quot;Attys Predict Next Steps After ACA Repeal Failure.&quot; Conley said that, while the Trump administration can make some regulatory adjustments on the margins, he expects that the core of the law will remain intact, and the regulatory agencies only have so much flexibility given the existing statutory and regulatory framework.</p> http://www.seyfarth.com:80/news/schwartzfenwickshrm072717 Sam Schwartz-Fenwick quoted in SHRM http://www.seyfarth.com:80/news/schwartzfenwickshrm072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a July 27 story from SHRM, &quot;Trump&rsquo;s Tweets Against Transgender Troops May Lead to Workplace Backlash,&quot; on how the marginalization of transgender people in the federal workforce might be mirrored in the civilian workplace. Schwartz-Fenwick said the new policy likely will be challenged as a form of sex discrimination barred by the Equal Protection Clause of the 14th Amendment. You can read the <a href="http://Sam Schwartz-Fenwick was quoted in a July 27 story from SHRM, &quot;Trump’s Tweets Against Transgender Troops May Lead to Workplace Backlash,&quot; on how the marginalization of transgender people in the federal workforce might be mirrored in the civilian workplace. Schwartz-Fenwick said the new policy likely will be challenged as a form of sex discrimination barred by the Equal Protection Clause of the 14th Amendment. You can read the full article here: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/trump-tweets-transgender-ban-military.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360072717 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 27 story from Law360, &quot;New Joint-Employer Bill Has Worker Advocates Leery,&quot; on the news that House lawmakers introduced a bill to narrow the definition of joint employment under federal wage and labor law. Babson said that the new bill would give employers an extra measure of confidence that their contractual relationships for the efficient running of their businesses do not expose them to liability that&rsquo;s not their own.</p> http://www.seyfarth.com:80/publications/WC072717 Cutting Class: Teachers’ Motion For Class Certification Denied In Race Discrimination Class Action http://www.seyfarth.com:80/publications/WC072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> In Gittens v. The School Board of Lee County, Florida, No. 2:16-CV-412, 2017 U.S. Dist. LEXIS 115987 (M.D. Fla. July 7, 2017), Plaintiffs brought suit against their employer, the School Board of Lee County, Florida (&ldquo;School District&rdquo;), alleging that the School District discriminated against them on the basis of their race, i.e., African-American. &nbsp;After Plaintiffs moved for class certification, Judge Mac R. McCoy of the U.S. District Court for the Middle District of Florida denied their motion, finding that Plaintiffs &ldquo;fail[ed] to provide the necessary glue to hold the putative class claims together under [the] commonality analysis,&rdquo; that was set forth in Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). &nbsp;Id. at *34.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/07/cutting-class-teachers-motion-for-class-certification-denied-in-race-discrimination-class-action/">click here</a>.</p> http://www.seyfarth.com:80/publications/EA072717-UK UK Employment Tribunal Fees Abolished with Immediate Effect http://www.seyfarth.com:80/publications/EA072717-UK Thu, 27 Jul 2017 00:00:00 -0400 <div> <em>The regime by which claimants in the UK bring employment-related claims is set for radical change after the UK&rsquo;s highest court ruled that the current fee system is unlawful. With immediate effect, claimants no longer have to pay fees to bring claims in the Employment Tribunals. A spike in claims is expected.</em></div> <div> &nbsp;</div> <div> In <em>R (on the application of UNISON) v Lord Chancellor 2017</em>, the Supreme Court (the highest legal authority in the UK) has unanimously ruled that the Employment Tribunal (ET) fee regime introduced by the government 4 years ago is unlawful. &nbsp;The fee regime required those bringing claims in the ET, and those appealing to the Employment Appeal Tribunal (EAT), to pay fees on filing a claim and at hearing stage (subject to very limited exemptions). This ruling means that, if and until a replacement scheme is put in place, with <u>immediate effect</u>, no fees are payable in the Tribunal system. &nbsp;Further, the UK government will have to reimburse all fees that have been paid to date, estimated to be around &pound;30m. &nbsp;</div> <div> &nbsp;</div> <div> <strong>How did this decision come about?</strong></div> <div> &nbsp;</div> <div> The UK government introduced the Tribunal fee system in 2013 with a stated aim of reducing &ldquo;unmeritorious&rdquo; employee claims and funding the cost of the Tribunal system. &nbsp;This was coupled with a requirement that employees seek to conciliate claims before being allowed to litigate. The volume of Tribunal claims has since reduced by 70%. &nbsp;A major UK trade union, UNISON, challenged the legality of the fee regime on the basis that it unreasonably restricted access to justice under both UK law and EU law, and that it discriminated against women because higher fees were payable to bring discrimination claims. &nbsp;The challenge has now succeeded on all counts in the UK&rsquo;s highest court, the Supreme Court.</div> <div> &nbsp;</div> <div> The court held that the fee regime was not justified. &nbsp;The aims of the scheme were not met, and the level of the fees was disproportionate to the (often low) value of claims and to average incomes in the UK.</div> <div> &nbsp;</div> <div> The requirement to conciliate claims (via a third party, ACAS) remains in place and is not impacted by this decision.</div> <div> &nbsp;</div> <div> <strong>What are the implications for employers?</strong></div> <div> &nbsp;</div> <div> Put simply, we are likely to see a noticeable rise in claims brought against employers over the coming months, which may possibly then reduce if the government introduces a revised, lower fee regime. There is also an open question as to whether employees who are outside the time limit to bring claims can argue they should be allowed to bring claims now, on the basis they were deterred from bringing claims by the fee regime.&nbsp;</div> <div> &nbsp;</div> <div> Given the expected uptick in litigation, employers need to take extra care to avoid prompting employee claims, and to identify and resolve valid claims at an early stage.</div> http://www.seyfarth.com:80/publications/ADA072717 Justice Department Says Vending Machines Are Not Places Of Public Accommodation—And So Much More http://www.seyfarth.com:80/publications/ADA072717 Thu, 27 Jul 2017 00:00:00 -0400 <p> The Supreme Court recently asked the U.S. Department of Justice (DOJ) to weigh in on whether vending machines are places of public accommodation covered by Title III of the ADA. &nbsp;The Court&rsquo;s request related to a pending a Petition for Certiorari filed by a blind plaintiff who unsuccessfully sued Coca-Cola for allegedly owning and/or operating vending machines that are not independently usable by the blind. &nbsp;Both the District Court and the Fifth Circuit had concluded that such machines are not public accommodations under the ADA.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/07/justice-department-says-vending-machines-are-not-places-of-public-accommodation-and-so-much-more/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=c05b6db1cf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-c05b6db1cf-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/LR072617 A Changing of the Guard: DC Circuit Finds that Casino Security Technicians Are “Guards” Under the NLRA. http://www.seyfarth.com:80/publications/LR072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> The D.C. Circuit Court of Appeals applied a broad definition of who constitutes a statutory &ldquo;guard&rdquo; under the NLRA, finding that security technicians at two Las Vegas casinos were guards who could not be represented by a non-guard union.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/07/26/a-changing-of-the-guard-dc-circuit-finds-that-casino-security-technicians-are-guards-under-the-nlra/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=cec9c2a3fe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-cec9c2a3fe-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/CP072617 San Francisco-Peculiarities: The City’s Ultra-Unique Employment Landscape http://www.seyfarth.com:80/publications/CP072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> As if high rent and California&rsquo;s peculiar laws were not enough to worry about, San Francisco employers must also comply with City-specific ordinances. Trailblazing City requirements often exceed state laws and have sometimes been harbingers of state-level enactments. One might say that San Francisco, with its distinctive laws, is to California what California is to the rest of the country. We highlight the Big Eight SFO peculiarities, below.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/26/san-francisco-peculiarities-the-citys-ultra-unique-employment-landscape/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=d4d9fded7e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-d4d9fded7e-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/passantinotlnt072617 Alex Passantino authored an article in TLNT http://www.seyfarth.com:80/publications/passantinotlnt072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino authored a July 26 article in TLNT, &quot;Labor Department Asks Employers For Input On Revising Overtime Rules.&quot; The article discusses the U.S. Department of Labor&#39;s anticipated Request for Information on the White-Collar Overtime Exemption. You can read the <a href="https://www.eremedia.com/tlnt/labor-department-asks-employers-for-input-on-revising-overtime-rules/">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM072617-LE UPDATE: San Francisco’s Salary History Ban Signed Into Law http://www.seyfarth.com:80/publications/OMM072617-LE Wed, 26 Jul 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>Mayor Ed Lee signed the &ldquo;Parity in Pay Ordinance&rdquo; (&ldquo;Ordinance&rdquo;) on July 19, 2017, prohibiting employers from inquiring about a job applicant&rsquo;s salary history. The law will go into effect on July 1, 2018 (with attendant penalties to take effect on January 1, 2019).</em></div> <div> &nbsp;</div> <div> <strong>What is Forbidden?</strong></div> <div> &nbsp;</div> <div> The ordinance bans employers, those with contracts with the City, and their agents from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant, and from asking applicants about their current or past salary. The ordinance also prohibits disclosing a current or former employee&rsquo;s salary history without that employee&rsquo;s authorization, unless the salary history is publicly available.</div> <div> &nbsp;</div> <div> <strong>Changes to the Ordinance</strong></div> <div> &nbsp;</div> <div> The ordinance has evolved since its initial introduction in April 2017, as discussed <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">here</a>, with the Government Audit and Oversight Committee weighing in on the final version of the ordinance that was presented to the Supervisors for a vote. The following highlights reflect the most significant changes to the revised <a href="https://sfgov.legistar.com/View.ashx?M=F&amp;ID=5276508&amp;GUID=E138BD49-C709-4371-941A-0865F7C5B4E8">version</a> of the salary history ban:</div> <div> &nbsp;</div> <div> &bull; The salary history ban covers an application for any type of job for wages, including temporary or seasonal work and commissioned work.</div> <div> &nbsp;</div> <div> &bull; The ordinance no longer impacts just those seeking employment within the geographic boundaries of the City. Now, if the sought after employment will be performed on City property or under contract funded by the City, employers may not ask about the applicant&rsquo;s current or past salary. According to Supervisor Mark Farrell&rsquo;s legislative aide, &ldquo;City property&rdquo; includes San Francisco Airport, although the airport is technically outside the city limits.</div> <div> &nbsp;</div> <div> &bull; The revised ordinance clarifies that the ban will not prohibit a prospective employer and applicant from discussing the applicant&rsquo;s pay expectations or any financial benefit the applicant would have to forego in order to take the new job (e.g., unvested equity or a future bonus through a current employer).</div> <div> &nbsp;</div> <div> &bull; If an applicant voluntarily, and without prompting by the prospective employer, discloses the applicant&rsquo;s salary history, the ordinance now permits the employer to consider that information. However, the ordinance clarifies that salary history by itself cannot be used to justify paying any employee of a different sex, race or ethnicity less than an applicant or prospective employee for doing substantially similar work under similar working conditions, in accordance with California Labor Code Section 1197.5.</div> <div> &nbsp;</div> <div> &bull; The ordinance instructs the City&rsquo;s Office of Labor Standards Enforcement (the &ldquo;OLSE&rdquo;) to create a posting detailing applicants&rsquo; rights that the employer must display in a conspicuous place.</div> <div> &nbsp;</div> <div> &bull; Penalties are now even steeper. Starting in January 2019, employers who violate the ordinance face penalties ranging from $100 to $500 per employee per violation. While contractors with the City may only be fined between $50 and $100 per violation, the City also can exercise the option to terminate the contract for violations of the salary ban with all outstanding moneys due being forfeited and retained by the City.</div> <div> &nbsp;</div> <div> &bull; If a single act by an employer impacts multiple applicants at the same time&mdash;e.g., if a written job application for a particular position includes a question about the applicant&rsquo;s salary history&mdash;the OLSE has the discretion to treat that violation as a single violation.</div> <div> &nbsp;</div> <div> Employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices.</div> <div> &nbsp;</div> <div> We are tracking these efforts in the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">50-State Desktop Pay Equity Reference.</a></div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/rooneychronicle072617 Seyfarth Shaw profiled in the Houston Chronicle http://www.seyfarth.com:80/news/rooneychronicle072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw was profiled in a July 26 story from the Houston Chronicle, &quot;Seyfarth Shaw adopts NFL &quot;Rooney Rule&quot; to spur minority hiring.&quot; Seyfarth Shaw imposed the rule two years ago with its labor and employment section, the biggest department. Maechtlen said the firm is expanding the places in which it recruits new lawyers, going beyond typical law school recruiting efforts or spreading the word through friends. You can read the <a href="http://www.chron.com/business/bizfeed/article/Seyfarth-Shaw-adopts-NFL-Rooney-Rule-to-spur-11387030.php">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinoshrm072617 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 26 story from SHRM, &quot;DOL Asks if Multiple Salary Levels for Overtime Exemptions Are a Good Idea,&quot; on how the request for information also seeks reaction to automatic updates of overtime rule. Passantino said that employing a cost-of-living-based salary test certainly would address a number of the concerns raised by employers in the previous go-round. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ot-rfi-multiple-salary-levels.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinohre072617 Alex Passantino quoted by Human Resource Executive http://www.seyfarth.com:80/news/passantinohre072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 26 story from Human Resource Executive, &quot;Comment Period Begins for OT Rule,&quot; on how the Department of Labor is expected to publish in the Federal Register its anticipated Request for Information on its overtime rule. Passantino said that the issues the DOL seeks comment on include whether the 2004 salary test should be updated based on inflation, and if so, which measure of inflation; whether duties test changes would be necessary if the increase was based on inflation; and other questions. You can read the <a href="http://blog.hreonline.com/2017/07/26/comment-period-begins-for-ot-rule/">full article here</a>.</p> http://www.seyfarth.com:80/news/tomaszewskibna072617 John Tomaszewski quoted in Bloomberg BNA http://www.seyfarth.com:80/news/tomaszewskibna072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> John Tomaszewski was quoted in a July 26 story from Bloomberg BNA, &quot;Corporate Cyber Risk Disclosures Jump Dramatically in 2017,&quot; on how more public companies described &ldquo;cybersecurity&rdquo; as a risk in their financial disclosures in the first half of 2017 than in all of 2016, suggesting that board and C-suite fears over data breaches may be escalating. Tomaszewski said that the increasing prevalence of corporate warnings about cyber threats also reflects that in this day and age, all businesses are data businesses.</p> http://www.seyfarth.com:80/news/seyfarthprobono072617 Seyfarth profiled in Bloomberg Law http://www.seyfarth.com:80/news/seyfarthprobono072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Seyfarth was profiled in a July 26 story from Bloomberg Law, &quot;Seyfarth Shaw Pro Bono Gets Big Win for Inmate.&quot; Seyfarth came out of the second of two settlement conferences with a big win for their client, who&#39;d been injured while in custody at a supermax state prison in California. Michael Wahlander said that it was a very collaborative experience working with the client. Tripper Ortman said that this work was life-changing and reminded us why we went to law school in the first place.</p> http://www.seyfarth.com:80/news/schwartzfenwickbna072617 Sam Schwartz-Fenwick quoted in Bloomberg BNA http://www.seyfarth.com:80/news/schwartzfenwickbna072617 Wed, 26 Jul 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a July 26 story from Bloomberg BNA, &quot;After Military Ban, Are Transgender Health Protections Next?,&quot; on how the President&#39;s announced ban on transgender people serving in the military is adding to speculation that a health care regulation benefiting transgender people may be on the chopping block. Schwartz-Fenwick thinks that it is very likely that HHS is going to try to unwind the Section 1557 regulations that address transgender protections.</p> http://www.seyfarth.com:80/news/workingmother072517 Seyfarth Named as a 2017 “Best Law Firm for Women” by Working Mother http://www.seyfarth.com:80/news/workingmother072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced that for the seventh consecutive year, the firm was named among <em>Working Mother</em>&rsquo;s annual list of &ldquo;Best Law Firms for Women&rdquo; in recognition of using best practices in retaining and promoting women lawyers. The annual list recognizes 50 U.S. law firms for their advancement of women and implementation of work-life balance initiatives.</p> <p> The full list of the 2017 <em>Working Mother</em> &ldquo;Best Law Firms for Women&rdquo; is posted <a href="http://www.workingmother.com/best-law-firms-for-women-2017">here</a> with highlights on representation of women and women of color in key leadership roles, and usage and promotion rates for reduced-hour lawyers, among other key points. For the first time, Working Mother worked in collaboration with the <em>ABA Journal</em> as a knowledge partner. In this year&rsquo;s report on the top 50 law firms, Seyfarth is recognized for the following:</p> <p> <em>Learning to be mindful, resilient and community-minded are all aspects of this firm&rsquo;s SeyfarthLife initiative, which uses affinity groups, benefits, courses and other resources to add balance to attorneys&rsquo; lives. Unlimited vacation, alternative schedules and 18 weeks&rsquo; primary-caregiver leave help too. </em></p> <p> &ldquo;We are honored to be consistently recognized for our diversity initiatives which enable the highest levels of performance and career satisfaction for all attorneys,&rdquo; said Ellen McLaughlin, national chair of Seyfarth Women&rsquo;s Network. &ldquo;Seyfarth women hold significant leadership roles within the firm and are paving the way for our next generation of women leaders.&rdquo;</p> <p> Law firms completed an extensive application in the areas of workforce profile, flexibility and development and retention of women. Best Law Firms were selected from a pool of self-selected applicant firms with 50 or more lawyers in the U.S. Statistics reported are aggregated from data provided by the firms collected from the full year of 2016.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/mclaughlin072517 Ellen McLaughlin quoted in Working Mother http://www.seyfarth.com:80/news/mclaughlin072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Ellen McLaughlin was quoted in a July 25 story from Working Mother, &quot;The State of Flexible Work at Law Firms,&quot; on how at the Best Law Firms for Women, attorneys at all levels work from home and with reduced hours. McLaughlin said that remote work allows Seyfarth to get and keep a bunch of talented women&mdash;in particular, staff attorneys who are given the chance to become associates. You can read the <a href="http://www.workingmother.com/best-law-firms-flex-equity">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinobna072517 Alex Passantino quoted in Bloomberg BNA http://www.seyfarth.com:80/news/passantinobna072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 25 story from Bloomberg BNA, &quot;Labor Department Goes Live With Request for Overtime Rule Input,&quot; on how some of the employer commenters who weighed in on DOL&rsquo;s 2015 proposed rule suggested setting several salary levels depending on a region&rsquo;s cost of living or on the number of employees at the business. Passantino said that by seeking input on this very topic in the new RFI, the department isn&rsquo;t necessarily indicating that it&rsquo;s leaning towards going in that direction for the new rule.</p> http://www.seyfarth.com:80/publications/OMM072517-LE Premium Processing Resumes for Cap-Exempt H-1B Employers http://www.seyfarth.com:80/publications/OMM072517-LE Tue, 25 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On July 24, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it would resume premium processing for H-1B petitions for certain cap-exempt employers effective immediately.</em></p> <p> USCIS temporarily suspended premium processing of H-1B petitions on April 1, 2017.&nbsp; USCIS implemented the temporary hold to address significant backlogs in case processing.&nbsp; At this time, USCIS has reinstated premium processing for H-1B petitions filed by certain cap-exempt employers.&nbsp; An employer is &ldquo;cap-exempt&rdquo; if it falls into one of the following categories:</p> <ul> <li> An institution of higher education;</li> <li> A nonprofit related to or affiliated with an institution of higher education; or</li> <li> A nonprofit research or governmental research organization.</li> </ul> <p> In addition, premium processing will resume for petitions in which the foreign worker will be employed at a qualifying cap-exempt institution, organization, or entity.</p> <p> USCIS stated that it plans to resume premium processing for other H-1B petitions in the coming months as workloads permit.&nbsp; USCIS made a similar announcement in June 2017 permitting the filing of premium processing for H-1Bs filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency (IGA) waivers.</p> <p> <strong>Summary</strong></p> <p> Premium processing of H-1B petitions for cap-exempt employers and petitions filed on behalf of physicians under the waiver programs has resumed. &nbsp;At this time, all other H-1B petitions can only be filed using regular processing. Seyfarth Shaw LLP will continue to monitor USCIS announcements with regard to resuming the premium processing of other types of H-1B petitions.</p> http://www.seyfarth.com:80/publications/RD072517-LE Refusal To Hire Medical Pot Users Just Got Riskier–At Least In Rhode Island http://www.seyfarth.com:80/publications/RD072517-LE Tue, 25 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On May 23, 2017, in <a href="https://scholar.google.com/scholar_case?case=2618145862518467720&amp;q=Callaghan+v.+Darlington+Fabrics+Co&amp;hl=en&amp;as_sdt=400006">Callaghan v. Darlington Fabrics Co</a>., a Rhode Island Superior Court issued a unique decision regarding employer obligations to medical marijuana users. </em></p> <p> The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles&rsquo; song &ldquo;With A Little Help From My Friends&rdquo;: &ldquo;<em>I get high with a little help from my friends</em>.&rdquo;&nbsp; In the 32-page opinion followed this witty opening, the Court held that an employer&rsquo;s refusal to hire an individual based on her medical marijuana use violated <a href="http://webserver.rilin.state.ri.us/Statutes/TITLE21/21-28.6/INDEX.HTM">Rhode Island&rsquo;s medical marijuana statute</a>, and the employer&rsquo;s conduct may have amounted to disability discrimination under the&nbsp;<a href="http://webserver.rilin.state.ri.us/Statutes/TITLE42/42-112/INDEX.HTM">Rhode Island Civil Rights Act</a>&nbsp;(&ldquo;RICRA&rdquo;).</p> <p> The Plaintiff, Christine Callaghan, applied for a position as an intern with Darlington Fabrics. &nbsp;During her interviews, she disclosed to the company that she used medical marijuana and would test positive for it in her pre-employment drug test.&nbsp; The company refused to hire her. &nbsp;Callaghan filed a complaint alleging disability discrimination under the RICRA and seeking a declaratory judgment that the company&rsquo;s refusal to hire her based on her medical marijuana use violated the Hawkins-Slater Act&ndash;Rhode Island&rsquo;s medical marijuana statute.&nbsp; Like its counterparts in numerous other states, the Hawkins-Slater Act prohibits an employer from refusing to employ &ldquo;a person solely for his or her status as a [medical marijuana] cardholder.&rdquo;</p> <p> The Court addressed two primary questions. The first question was whether the Hawkins-Slater Act creates a private right of action that allows an individual to file a lawsuit in court for alleged violations of the statute.&nbsp; The second question was whether a refusal to hire an applicant based on medical marijuana use could amount to disability discrimination under the RICRA.&nbsp; The Court answered yes to both questions.</p> <p> Addressing the private right of action question, the Court acknowledged that the Hawkins-Slater Act does not contain any express language authorizing an individual to sue an employer for violation of the statute.&nbsp; The Court also acknowledged the general principle against assuming that a private right of action exists when the legislature chose not to create one.&nbsp; On the other hand, the Court also recognized the legal principle that a court should not attribute to the legislature an intent to enact a meaningless statute. &nbsp;Ultimately, the Court concluded that the Hawkins-Slater Act would be meaningless if it does not allow a private person to sue an employer for violating the statute.&nbsp; Thus, the Court held that an implied private right of action exists under the Hawkins-Slater Act, and the employer violated the law by refusing to hire Callaghan because of her medical marijuana use.&nbsp; In so holding, the Court rejected the notion that there is a meaningful distinction between a medical marijuana &ldquo;cardholder&rdquo; and a medical marijuana &ldquo;user.&rdquo;&nbsp; The Hawkins-Slater Act, according to the Court, protects medical marijuana cardholders who use marijuana because a physician has recommended it. The Court therefore granted a declaratory judgment in Callaghan&rsquo;s favor.</p> <p> As for Callaghan&rsquo;s claim of disability discrimination under the RICRA, the employer moved for summary judgment on several grounds.&nbsp; The company argued, relying on the Americans with Disabilities Act, that active drug use is not a disability. The Court rejected this argument, reasoning that the RICRA defines disability more broadly than the Americans with Disabilities Act.&nbsp; It also reasoned that an individual must have a &ldquo;debilitating medical condition&rdquo; to qualify as a cardholder under the Hawkins-Slater Act.&nbsp; Accordingly, the employer could have inferred that Callaghan was disabled, and thus, could have discriminated against her on that basis.</p> <p> The Court also rejected the employer&rsquo;s argument that Callaghan was not a &ldquo;qualified individual&rdquo; with a disability because she engaged in the use of illegal drugs.&nbsp; The Court concluded that, unlike other disability discrimination laws, the RICRA does not protect only &ldquo;qualified individuals&rdquo; with disabilities, but rather all persons with disabilities.&nbsp; Thus, the Court concluded that the employer&rsquo;s defense was inapplicable to Callaghan&rsquo;s claims.</p> <p> Perhaps most notably, the Court rejected the employer&rsquo;s argument that the federal <a href="https://www.deadiversion.usdoj.gov/21cfr/21usc/">Controlled Substances Act</a> (&ldquo;CSA&rdquo;), which classifies marijuana as an illegal drug, preempts the Hawkins-Slater Act. &nbsp;The Court reasoned that the CSA is not intended to preempt state law unless it is in positive conflict with the CSA.&nbsp; Because the Hawkins-Slater Act does not require the employer to violate the CSA, the Court held that the CSA does not preempt the Hawkins-Slater Act.</p> <p> In light of its conclusions, the Court denied the employer&rsquo;s motion for summary judgment on Callaghan&rsquo;s disability discrimination claim under the RICRA.&nbsp; Callaghan did not more for summary judgment in her favor on this claim, but the Court observed that &ldquo;but for [Callaghan&rsquo;s] disability&ndash;which her physician has determined should be treated by medical marijuana&ndash;[Callaghan] seemingly would have been hired for the internship position.&rdquo;</p> <p> While the <em>Callaghan</em> decision is not binding on any other courts, it is noteworthy.&nbsp; It goes against the weight of authority from courts in other states in its analysis of the interplay between medical marijuana and anti-discrimination laws.&nbsp; More importantly, it does so in a way that could require many employers with operations in Rhode Island (and perhaps other states) to change their policies regarding the hiring and continued employment of medical marijuana users.&nbsp; If appealed, will the decision hold up?&nbsp; Will other courts in other states issue similar decisions?&nbsp; Time will tell.</p> http://www.seyfarth.com:80/publications/wc072517 D.C. Circuit Finds That Absent Class Members May Intervene On Appeal To Pursue Rule 23(f) Petition Abandoned By Class Representative http://www.seyfarth.com:80/publications/wc072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> In <a href="https://www.cadc.uscourts.gov/internet/opinions.nsf/E1EE2A1D9BDCAB49852581640051B0B3/$file/15-8009.pdf"><em>Harrington v. Sessions</em></a>, No. 15-8009, No. 16-5285 &amp; No. 16-5286, 2017 U.S. App. LEXIS 13111 (D.C. Cir. July 21, 2017), the D.C. Circuit addressed whether it had jurisdiction to rule upon absent class members&rsquo; motion to intervene in an appellate court proceeding to pursue a Rule 23(f) petition abandoned by a settling named plaintiff-appellant.</p> <p> <a href="http://www.workplaceclassaction.com/2017/07/d-c-circuit-finds-that-absent-class-members-may-intervene-on-appeal-to-pursue-rule-23f-petition-abandoned-by-class-representative/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=7f2821bf16-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-7f2821bf16-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH072517 DOL Seeks Comment on Overtime Rule http://www.seyfarth.com:80/publications/WH072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> On July 26, 2017, the U.S. Department of Labor will publish its anticipated&nbsp;<a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/RFI-2017.pdf" rel="noopener noreferrer" target="_blank">Request for Information</a> on the White-Collar Overtime Exemption in the Federal Register.&nbsp;The RFI will give the regulated community 60 days to provide its comments in response.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/dol-seeks-comment-on-ot-rule/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8f0f0b8301-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8f0f0b8301-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL072517 Refusal To Hire Medical Pot Users Just Got Riskier–At Least In Rhode Island http://www.seyfarth.com:80/publications/EL072517 Tue, 25 Jul 2017 00:00:00 -0400 <p> The Judge who penned the decision began his analysis by quoting a 1967 lyric from The Beatles&rsquo; song &ldquo;With A Little Help From My Friends&rdquo;: &ldquo;I get high with a little help from my friends.&rdquo; &nbsp;In the 32-page opinion followed this witty opening, the Court held that an employer&rsquo;s refusal to hire an individual based on her medical marijuana use violated Rhode Island&rsquo;s medical marijuana statute, and the employer&rsquo;s conduct may have amounted to disability discrimination under the Rhode Island Civil Rights Act (&ldquo;RICRA&rdquo;).</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/refusal-to-hire-medical-pot-users-just-got-riskier-at-least-in-rhode-island/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=34ddbe0deb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-34ddbe0deb-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/BIGIMM072417 The Known and Unknown Future of the EB-5 Immigrant Investment Program at USCIS and the USCIS Ombudsman http://www.seyfarth.com:80/publications/BIGIMM072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Memes, apocrypha, obfuscation, head feints, hand-wringing, and supposition: These are the misleading and unreliable stuff of the Interweb. To a great extent, alas, they also infect the EB-5 ecospace. This article will avoid conjecture and look at the few hard facts we know about Trump Administration appointees and the positions they will hold, while encouraging EB-5 stakeholders momentarily to suspend their hopes and fears.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/07/the-known-and-unknown-future-of-the-eb-5-immigrant-investment-program-at-uscis-and-the-uscis-ombudsman/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=4cde6441b0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-4cde6441b0-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/WH072417 SCOTUS Puts the Class Action Waiver Issue at the Top of Its Agenda http://www.seyfarth.com:80/publications/WH072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Perhaps signaling the importance of the issue for American businesses and jurisprudence, the U.S. Supreme Court&lrm;&nbsp;chose the&nbsp;<a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/calendar.pdf" rel="noopener noreferrer" target="_blank">first day of its term beginning in October</a> as the date to set oral arguments in three petitions&nbsp;for certiorari asking whether employees can be required to waive their rights via arbitration agreements to file class and collective actions against their employers.</p> <p> <a href="http://www.wagehourlitigation.com/arbitration-agreements/class-action-waiver-at-the-top/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=29a0853b0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-29a0853b0c-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ERISA072417 The Supreme Court Indirectly Stiffens A Fiduciary Breach Time Limit And Helps ERISA Fiduciaries In The Process http://www.seyfarth.com:80/publications/ERISA072417 Mon, 24 Jul 2017 00:00:00 -0400 <p> Statutes of repose begin to run after a defendant&rsquo;s last culpable act or omission&ndash;regardless of when a plaintiff is injured&mdash;and give defendants a complete defense to any lawsuit commenced after the repose limitations period. ERISA Section 413 provides a six-year statute of repose for fiduciary breach claims, with a narrow exception, &ldquo;in the case of fraud or concealment.&rdquo; If the exception applies, the claim may be brought within six years of discovery of the breach.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/07/24/the-supreme-court-indirectly-stiffens-a-fiduciary-breach-time-limit-and-helps-erisa-fiduciaries-in-the-process/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=ab21aca883-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-ab21aca883-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA072417-LE2 Hirer of Independent Contractor Not Liable to Injured Contractor Employee http://www.seyfarth.com:80/publications/MA072417-LE2 Mon, 24 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The California Court of Appeal upheld the Privette doctrine, holding that an independent contractor&rsquo;s employee generally may not recover tort damages for work-related injuries from the contractor&rsquo;s hirer.</em></p> <p> <strong>The Facts</strong></p> <p> Bernie Alvarez, a marine mechanic, worked for Pacific Crane Maintenance Company. Evergreen Container Terminal&mdash;operating a marine container terminal in the Port of Los Angeles&mdash;had contracted with Pacific Crane to provide maintenance services at the terminal. The contract said that Pacific Crane would use its best efforts to prevent injury to its employees and would comply with all safety rules and regulations. The contract did not address any obligation by Evergreen to ensure safe conditions at the terminal.</p> <p> Alvarez injured himself when he drove a maintenance van into a shipping container. He sued Evergreen for negligently obstructing the driving lane with the shipping container.</p> <p> Evergreen successfully moved for summary judgment, citing the <em>Privette</em> doctrine. Alvarez appealed, arguing that the <em>Privette</em> doctrine did not apply because Evergreen retained control over safety conditions at the worksite and affirmatively contributed to his injuries.</p> <p> <strong>The Court Of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed summary judgment. In <em>Privette v. Superior Court</em>, a 1993 case, the California Supreme Court held that an independent contractor&rsquo;s employee generally may not sue the contractor&rsquo;s hirer to recover tort damages for work-related injuries. <em>Privette</em> recognizes the principle that the hirer of an independent contractor generally has no right to control the details of the work the independent contractor will provide, and presumptively delegates to the contractor the duty to provide a safe workplace for the contractor&rsquo;s employees.</p> <p> An exception&mdash;the retained-control exception&mdash;applies where the hirer retains control over the independent contractor&rsquo;s work and safety conditions at the worksite. This exception can apply when the hirer actively participates in, or asserts control over, how the job should be done, or otherwise interferes with the manner and means of accomplishing the work. The exception also can apply when the hirer fails to undertake a promised safety measure at the worksite. But the exception did not apply here, as Alvarez did not present evidence that Evergreen (1) directed him to perform his work in any particular manner, or (2)&nbsp;promised (and failed) to undertake any safety measure at the worksite. Rather, it was the independent contractor, Pacific Crane, that was responsible, under its contract, for Alvarez&rsquo;s safety on the job.</p> <p> <strong>What <em>Alvarez</em> Means For Employers</strong></p> <p> <em>Alvarez</em> is important for reiterating that, in today&rsquo;s ever-evolving gig economy, an independent contractor&rsquo;s employees generally may not recover tort damages for work-related injuries from the contractor&rsquo;s hirer. Companies that retain staffing companies should (1) review the staffing companies&rsquo; employment agreements to determine whether any promise to undertake safety measures are provided for, and (2) be wary of dictating the manner in which a job or assignment should be completed.</p> http://www.seyfarth.com:80/publications/MA072417-LE Possible Workforce Impact from DACA and TPS Elimination http://www.seyfarth.com:80/publications/MA072417-LE Mon, 24 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The combination of the Trump Administration re-examination of grants of Temporary Protected Status to nearly 340,000 foreign nationals, and the recent threats by Texas and ten other States to challenge the Deferred Action for Childhood Arrivals policy in federal court, could lead to the exit from the legal workforce of nearly one million people over the next two and a half years.&nbsp; </em></p> <p> In shortening the grant of Temporary Protected Status for certain Haitian nationals to six months, rather than the statutorily authorized (and customary) eighteen months, the Administration explicitly signaled its intention to closely review and very possibly curtail all grants of Temporary Protected Status (&ldquo;TPS&rdquo;).&nbsp;&nbsp; TPS is a provision of the immigration code which affords temporary relief (in renewable cycles of 18 months) from deportation, along with work authorization, to nationals of countries that have suffered catastrophic events such as natural disasters and armed conflict.&nbsp; As of 2015,&nbsp; the latest year that the Department of Homeland Security submitted a report to Congress on TPS, 340,000 people were living in the U.S. under TPS, including 212,000 from El Salvador, 64,000 from Honduras and 58,000 from Haiti.&nbsp; Currently, El Salvador TPS is set to expire on March 9, 2018; Honduras on January 5, 2018; and Haiti on January 22, 2018.&nbsp;&nbsp;&nbsp; It is accordingly possible that most TPS recipients will have lost their status by the end of the second quarter of FY2018.</p> <p> The administration&rsquo;s reexamination of the TPS program coincides with pressures to either halt the Deferred Action for Childhood Arrivals (DACA) policy immediately or to cease accepting applications for either first-time or renewed DACA.&nbsp;&nbsp; The DACA policy announced by the Obama Administration in June 2012 has enabled nearly 780,000 individuals -- often called &ldquo;Dreamers&rdquo; who came to the U.S. as children, but were in the U.S. illegally, to remain, work and study in the U.S. for renewable periods of two years.&nbsp; Currently, it is estimated that 645,000 DACA recipients are working in the U.S.&nbsp;&nbsp; &nbsp;</p> <p> President Trump campaigned aggressively on a promise to end DACA, and his administration has repeatedly said that the program is &ldquo;under review.&rdquo;&nbsp; Notwithstanding, since inauguration day, the DACA policy has continued in full force.&nbsp; Many have applied for and in most cases received either first-time DACA grants or renewals.</p> <p> On June 29, 2017, Texas attorney general Ken Paxton and the attorneys general of ten other states sent a letter to U.S. Attorney General Jeff Sessions, giving the administration an ultimatum as to the DACA program.&nbsp; The letter notified the administration that if it did not&nbsp; cease accepting new DACA requests and DACA renewal requests, the signatory States would seek to amend the complaint currently pending before&nbsp; federal district court Judge Andrew Hanen&nbsp; in the Southern District of Texas which&nbsp; resulted in the halt of other Obama administration deferred action policies.&nbsp; The earlier challenges sought an injunction of the implementation of policies initiated by the Obama administration called the Deferred Action for Parental Accountability and expanded DACA that would have offered relief from deportation and work authorization&nbsp; for nearly 5,000,000 undocumented individuals in addition to those already receiving DACA.&nbsp; Judge Hanen moved swiftly and without hesitation to impose a temporary restraining order on the programs.&nbsp; Judge Hanen&rsquo;s TRO was sustained by the 5th Circuit Court of Appeals and ultimately by the Supreme Court.&nbsp; Given Judge Hanen&rsquo;s decision as to the other deferred action policies and his reasoning underlying those decisions, there is a strong likelihood that he will ultimately decide that DACA should be halted as well.&nbsp; &nbsp;</p> <p> It is not yet known how the administration will respond to the Texas DACA challenge, however, Homeland Security Secretary John Kelly has apparently advised the Congressional Hispanic Caucus that he does not believe that the program could withstand a legal challenge and has called on Congress to take action to provide direct statutory authority for the program if it wishes it to survive.</p> <p> Should the administration acquiesce to Texas&rsquo; demand, then significant numbers of recipients will begin immediately to lose their relief from deportation and their work authorization, with particularly large numbers losing their status&nbsp; throughout calendar year 2019.&nbsp;&nbsp; If on the other hand, the matter actually does end up in Court, then the administration could: 1) fight Texas&rsquo; demand, attempting to distinguish the DACA program from other similar Obama era initiatives; 2) take no position which would essentially amount to an acquiescence to Texas&rsquo; position; and 3) actually acquiesce to Texas&rsquo; position.&nbsp;&nbsp; The latter two positions could very well result in an immediate end to the program, although it is likely that organizations advocating for DACA recipients will seek to intervene in the case in support of continuing the DACA policy.</p> <p> In any event, the combination of the threats to TPS and to DACA mean that as many 1,000,000 workers could lose U.S. work authorization over approximately a two and one half year period.</p> <p> On July 20, 2017, Republican Senator Lindsay Graham and Democratic Senator Richard Durbin introduced the &ldquo;Dream Act of 2017&rdquo;&nbsp; (S.1615) (&ldquo;the Act&rdquo;) which if passed and signed would resolve the threat to current DACA holders.&nbsp; The Act provides conditional permanent residence for prior DACA recipients as well as those who in the future meet the eligibility requirements of the current DACA policy.&nbsp; It also provides for the removal of conditions on permanent residency for individuals who demonstrate written and oral English proficiency and who have either acquired a college degree, have completed two years in a degree program, have served honorably for two years in the military, or who have been employed for an aggregate of 13 years. It is not clear whether the ACT would pass either house of Congress.&nbsp; Additionally, President Trump has indicated that he is not prepared to sign legislation of this nature at the present time.</p> http://www.seyfarth.com:80/publications/OMM072117-HL New “Site Neutrality” Proposed Rule Would Slash Hospital Outpatient Payments for Off-Campus Services by 50% http://www.seyfarth.com:80/publications/OMM072117-HL Fri, 21 Jul 2017 00:00:00 -0400 <p> In a proposed rule published in the <em>Federal Register</em> on July 21, 2017, the Centers for Medicare &amp; Medicaid Services (&ldquo;CMS&rdquo;) moved to cut payments for most services provided by off-campus locations of hospitals by 50 percent.&nbsp; CMS would spare only:&nbsp; (i) dedicated off-campus emergency departments of hospitals; (ii) grandfathered provider-based facilities in operation prior to November 2, 2015; and (iii) facilities within 250 yards of a remote location of a hospital.&nbsp; The cuts will be effective in calendar year 2018.<br /> <br /> The deadline to submit comments to the proposed rule is September 11, 2017.&nbsp; We are presently developing comments to the rule.&nbsp; If you would like to participate in our preparation of comments, please contact your Seyfarth attorney or William B. Eck, whose contact information is listed below.&nbsp; We welcome and encourage your input and insight.<br /> <br /> As you know, in Section 603 of the Bipartisan Budget Act of 2015, Congress enacted certain &ldquo;site neutrality&rdquo; amendments to the Medicare Act.&nbsp; In general, site neutrality means that Medicare payment rates for a given service will not vary based on treatment setting, for certain outpatient services that are also furnished in physician offices, without a justifiable reason for the variance.&nbsp; CMS initially interpreted these amendments so as to assure access to needed hospital outpatient services.<br /> <br /> However, for calendar year 2018, CMS has proposed decreasing the hospital payment rates by 50 percent.&nbsp; In 2016 CMS established a &ldquo;relativity adjuster,&rdquo; to decrease rates paid for the hospital facility (not professional) component by 50 percent.</p> <p> For calendar year 2018, CMS is proposing to revise the relativity adjuster to be 25 percent of the outpatient prospective payment system rate for hospitals.&nbsp; The preamble to the proposed regulation notes a number of potential issues regarding this formulation, which we will address in our comments.&nbsp; Primary among these is access to care, which will be impaired by a 25 percent payment rate, particularly in areas that rely upon hospital outpatient centers for services.&nbsp; Our comments will be furnished in August or early September, once we receive further input from our hospital and health system&nbsp; clients.<br /> <br /> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM072117-LE A Ban on Ban-the-Box Laws? Texas and Indiana Introduce Legislation That Would Prohibit Municipal and County Ban-the-Box Laws Within Their States http://www.seyfarth.com:80/publications/OMM072117-LE Fri, 21 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong>In recent years, numerous cities and counties have enacted ordinances restricting the ability of public and private employers to inquire into the criminal histories of applicants during various stages of the job application process&mdash;the so-called &ldquo;ban-the-box&rdquo; laws. &nbsp;Recently, however, two state legislatures have gone against the grain. State legislatures in Indiana and Texas recently introduced new state-wide legislation meant to create conformity within their borders by prohibiting municipalities and counties from micro-managing the particular steps involved in private employers&rsquo; hiring with regard to the prohibition, limitation, or regulation of background screening.&nbsp;</em></p> <p> <strong>Indiana Senate Bill 312</strong></p> <p> As of July 1, 2017, local governments can no longer issue ban-the-box ordinances in Indiana. <a href="https://iga.in.gov/legislative/2017/bills/senate/312#document-051d9997">Senate Bill 312</a> prohibits political subdivisions (including counties, municipalities, and townships) from enacting ordinances that interfere with an employer&rsquo;s ability to obtain or use criminal history information during the hiring process (to the extent allowed by state or federal law).&nbsp; Accordingly, the <a href="http://www.indy.gov/eGov/Council/Proposals/Documents/2014/PROP14-004.pdf">Indianapolis Ban the Box Ordinance</a>, previously applicable to both the public sector and private employers holding vendor contracts with Indianapolis and Marion County, Indiana since February 2014, has been preempted.</p> <p> <strong>Austin&rsquo;s Fair Chance Hiring Ordinance</strong></p> <p> In March of 2016, the Austin City Council passed a Fair Chance Hiring Ordinance prohibiting the use of criminal history check boxes on job applications.&nbsp; (See prior post <a href="http://www.seyfarth.com/publications/OMM040516-LE">here</a>.)&nbsp; The Fair Chance Hiring Ordinance recently dodged a bullet; the Legislature of the State of Texas had introduced similar legislature to Indiana&rsquo;s and the original wording of House Bill 91 in committee had included a ban on such ordinances.&nbsp; Over time, the caption of the bill was no longer accurate, since it also included &ldquo;occupational licensing requirements and an applicant&rsquo;s criminal history.&rdquo;&nbsp; The Texas Senate deleted the portion of the bill that would prohibit ban-the-box ordinances so the bill once again matched its caption and the Senate went on to pass House Bill 91 on May 23, 2017.</p> <p> <strong>Employer Outlook</strong></p> <p> As counties and municipalities have passed individual, and at times conflicting, ban-the-box ordinances, a patchwork of legal obligations, requirements, and prohibitions has resulted for certain regional and national employers.&nbsp; This patchwork can impose significant compliance issues.&nbsp; Indiana and Texas appear to have recognized this issue, and have made efforts to create consistency within their states.&nbsp; Based on the success of the recent Indiana legislation, other states seeking to create consistency and reduce burdens on employers may bring similar legislation (rather than be deterred by the Texas legislature&rsquo;s defeated attempt).&nbsp;</p> <p> Additionally, similar themes can be seen: The Pennsylvania Senate passed a <a href="http://www.legis.state.pa.us/cfdocs/billinfo/BillInfo.cfm?syear=2017&amp;sind=0&amp;body=S&amp;type=B&amp;bn=241">Bill</a> in February that would amend the Commonwealth&#39;s Equal Pay Act and which would allow employers to inquire into prospective employee&#39;s wage histories.&nbsp; Significantly, the Bill contains a preemption clause which provides that &ldquo;[t]he provisions of this act shall preempt and supersede any local ordinance or rule concerning the subject matter of this Act.&rdquo;&nbsp; If enacted, this preemption language will sound the death knell to Philadelphia&rsquo;s Salary History Ban Ordinance, originally scheduled to take effective May 23, 2017 (but currently stayed pending legal <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM062317LE.pdf">challenge</a>).</p> <p> Overall, the goal of legislative and regulatory consistency is positive for employers who, at times, can be subject to various levels of regulation in the various jurisdictions in which they operate.&nbsp; Clarity and consistency pave the way for compliance, and create a welcoming atmosphere for current and new employers.&nbsp;</p> http://www.seyfarth.com:80/publications/MA072117-LE New York Workers’ Compensation Board Releases Final Regulations for Paid Family Leave Law http://www.seyfarth.com:80/publications/MA072117-LE Fri, 21 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The final regulations were released for the New York Paid Family Leave law, which will be effective January 1, 2018.&nbsp; The regulations contain few substantive changes from the revised proposed regulations, and many uncertainties remain.&nbsp; </em></p> <p> New York&rsquo;s Workers Compensation Board (the &ldquo;Board&rdquo;) has just released the much-anticipated <a href="http://www.wcb.ny.gov/PFL/pfl-regs-text.jsp">final regulations </a>for the Paid Family Leave (&ldquo;PFL&rdquo;) law, with few substantive changes from the last round of revised regulations. &nbsp;The Board&rsquo;s written response to the public comments indicates, however, that further guidance may be forthcoming as to the meaning and application of the final regulations.&nbsp; For more detailed information about the law and regulations, see our prior alerts on the <a href="http://www.seyfarth.com/publications/MA041916-LE">law&rsquo;s passage</a>, <a href="http://www.seyfarth.com/publications/MA031017-LE">the proposed regulations</a>, <a href="http://www.seyfarth.com/publications/MA060117-LE">revised regulations</a>, and <a href="http://www.seyfarth.com/publications/OMM060217-LE2">employee contribution amount</a>.</p> <p> Key changes set out in the final regulations follow.</p> <p> <strong>Eligibility:</strong></p> <p> Employees who work 20 or more hours per week become eligible for PFL after 26 consecutive work weeks.&nbsp; Employees who work fewer than 20 hours per week become eligible for PFL after 175 days of employment.&nbsp;&nbsp;</p> <p> The final regulations clarify that the use of scheduled vacation time or other paid time off approved by the employer should be counted towards both the 26 consecutive work week and 175 days-worked thresholds for PFL eligibility.&nbsp; In the same vein, the regulations clarify that periods of statutory short term disability will not be counted as weeks of employment or days worked for determining eligibility for PFL.</p> <p> Under the final regulations, employers are <em>required</em> to provide employees with the option to waive PFL benefits where the employee&rsquo;s schedule does not allow the employee to reach the thresholds for PFL eligibility listed above. &nbsp;Employees are not, however, required to sign the waiver.&nbsp; The Board did not alter the provision that if an employee&rsquo;s schedules changes, such that he or she will become eligible for PFL, the previously signed waiver becomes invalid within eight weeks of the change and the employer can recoup the employee contribution amount back to the date of hire, after notifying the employee of its intent to do so.</p> <p> The final regulations clarify that where periods of absence from employment are due to the nature of the employment, such as semester breaks, and when employment is not terminated during these periods, the breaks do not restart the period of employment for purposes of eligibility for paid family leave.</p> <p> While no change was made with regard to eligibility based on the location of employees, the Board clarified that employees who work in New York State, with only incidental work outside the state, are eligible for PFL, whereas employees who work in another state, who only incidentally work in New York, are not covered. &nbsp;The Board offered the following guidance, as well:&nbsp; if an employee does not perform his or her work in any one particular state, he or she is eligible if some of his or her work is performed in New York and the employee is either: (1) based in New York; (2) controlled from New York; or (3) the employee lives in New York. &nbsp;The Board indicated it will add additional examples as they arise to the published answers to frequently asked questions on the program&rsquo;s webpage. &nbsp;</p> <p> <strong>Complaint Procedure: </strong></p> <p> The final regulations require that before an employee may file a complaint of discrimination with the Board under Workers&rsquo; Compensation Law Section 120, he or she must first file a written request for his or her employer to come into compliance with PFL.&nbsp; The written request is a condition precedent to bringing a discrimination claim, and an employer&rsquo;s response to the request (or expiration of 30 day time period in which to respond) triggers an aggrieved employee&rsquo;s two year statute of limitations period to file a discrimination claim with the Board.</p> <p> There is no time limit, however, in which to file this written request.&nbsp; The time in which to file does not appear cabined by the two year statute of limitations period.&nbsp; In conjunction, we read these requirements as creating a virtually unending statute of limitations period for PFL claims to be brought before the Board.&nbsp; Although Seyfarth submitted a comment to the Board on this issue, the Board did not provide a substantive response.</p> <p> <strong>Interplay With FMLA and NYC ESTA:</strong></p> <p> The final regulations did little to further clarify the interplay between PFL and Family Medical Leave Act (&ldquo;FMLA&rdquo;).&nbsp; For example, PFL requires that an employee be returned to the &ldquo;same or comparable&rdquo; position following leave.&nbsp; FMLA requires that an employee be returned to the &ldquo;same or equivalent&rdquo; position following leave.&nbsp; Especially during periods when FMLA and PFL run concurrently, this differing standard is likely to cause confusion. &nbsp;Seyfarth Shaw requested guidance on whether &ldquo;same or comparable&rdquo; has the same meaning as the FMLA&rsquo;s &ldquo;same or equivalent&rdquo; language.&nbsp; The Board stated that it will issue further guidance on this, but did not revise the regulation. &nbsp;</p> <p> The final regulations also did not clarify how New York City employers should treat leave under the NYC Earned Sick Time Act (&ldquo;ESTA&rdquo;) when leave under ESTA is taken for a PFL qualifying reason.&nbsp; In particular, ESTA requires in most cases that time off be provided at full pay.&nbsp; In contrast, PFL requires employees to be given the choice of using accrued leave <em>or</em> to receive PFL benefits from the carrier.&nbsp; The regulations remain unclear on this point.</p> <p> <strong>What&rsquo;s Next for Employers:</strong></p> <p> Employers must implement a PFL policy and obtain coverage for PFL benefits before the effective date of January 1, 2018.&nbsp; Now that final regulations have been issued, employers should begin drafting policies and considering PFL&rsquo;s interplay with other leave policies, especially FMLA.&nbsp; As of July 1, 2017, employers are free, but are not required, to deduct employee contributions towards the cost of a PFL premium.&nbsp; Be on the lookout for additional Seyfarth alerts on this topic and an upcoming webinar covering the final regulations.</p> http://www.seyfarth.com:80/publications/ADA072117 DOJ Places Website Rulemaking on the “Inactive” List http://www.seyfarth.com:80/publications/ADA072117 Fri, 21 Jul 2017 00:00:00 -0400 <p> Federal agencies typically provide public notice of the regulations that are under development twice a year in the Unified Regulatory Agenda. The first Agenda the Trump Administration issued, which went online July 20, 2017, contains some very noteworthy changes from the last such Agenda, issued by the Obama Administration.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/07/doj-places-website-rulemaking-on-the-inactive-list/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=39301ef00c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-39301ef00c-73047125">click here</a>.</p> http://www.seyfarth.com:80/news/rooney072117 Seyfarth Shaw profiled in the National Law Journal http://www.seyfarth.com:80/news/rooney072117 Fri, 21 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw was profiled in a July 21 story from the National Law Journal, &quot;Seyfarth Shaw&#39;s &#39;Rooney Presumption&#39; Drives Sudden Surge in Minority Hiring.&quot; Since the pilot program was put in place last year in the labor and employment department, Seyfarth&#39;s largest department, the number of minority associate hires has nearly doubled. Maechtlen said that she is seeing firms paying attention and partnerships among organizations &mdash; law firms or corporations &mdash; coming together around diversity and inclusion. You can read the <a href="http://www.nationallawjournal.com/id=1202793676737?slreturn=20170624102737">full article here</a>.</p> http://www.seyfarth.com:80/news/lutkus072017 Richard Lutkus quoted in Legaltech News http://www.seyfarth.com:80/news/lutkus072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in a July 20 story from Legaltech News, &quot;Service Disruptions to WhatsApp in China Raise Wider Censorship Concerns,&quot; on apps facing government pressure and the ways users and companies can encourage private messaging. Lutkus recommended companies put work-arounds to circumvent censorship, change networking framework as often as is practical to avoid detection, or utilize pseudo-VPN/proxy to work around it, which may work for a time.</p> http://www.seyfarth.com:80/publications/EL072017 Court Rules Request for Religious Accommodation Is Not “Protected Activity” for Title VII Retaliation http://www.seyfarth.com:80/publications/EL072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law. &nbsp;On July 6, 2017, the Court ruled, and agreed with the employer.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/court-rules-request-for-religious-accommodation-is-not-protected-activity-for-title-vii-retaliation/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=ce3ce6bc4c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-ce3ce6bc4c-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/MA072017-LE ALJ Narrows OFCCP’s Request for Google Employee and Pay Data http://www.seyfarth.com:80/publications/MA072017-LE Thu, 20 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Last Friday, an administrative law judge limited the amount of information that the OFCCP may seek from Google in its on-going compliance audit because the agency failed demonstrate relevance or justify the burden of its latest data requests.&nbsp; The disputed data requests sought contact information for more than 25,000 employees at Google&rsquo;s CA headquarters, as well as job and salary information dating back to 1998.&nbsp; For Federal contractors, the 43-page decision offers a window into the depth and breadth of OFCCP data requests, particularly with regard to pay. </em></p> <p> On July 14th, &nbsp;an Administrative Law Judge (&ldquo;ALJ&rdquo;) denied certain data requests by the Office of Federal Contract Compliance Program (&ldquo;OFCCP&rdquo;) that sought massive amounts of pay-related data from Google in connection with a routine compliance audit.&nbsp; In his <a href="https://www.oalj.dol.gov/Decisions/ALJ/OFC/2017/OFCCP_-_SAN_FRANCISC_v_GOOGLE_INC_2017OFC00004_(JUL_14_2017)_195652_CADEC_SD.PDF">decision and order</a>, ALJ Steven Berlin took the agency to task over its demands for employee salary and job history dating back more than 20 years &ldquo;without a minimal showing of relevance.&rdquo;&nbsp; He also narrowed the OFCCP&rsquo;s June 2016 request for contact information for all employees at Google&rsquo;s Mountain View, CA headquarters&mdash;approximately 25,000 people&mdash;citing both relevance and concerns about employee privacy.&nbsp;&nbsp;</p> <p> <strong>The Disputed OFCCP Data Requests</strong></p> <p> Since the audit began in September 2015, the OFCCP issued extensive data requests seeking detailed information for employees at Google&rsquo;s headquarters.&nbsp; After Google responded to the agency&rsquo;s initial requests with extensive employee data, the agency asked for still more information in June 2016.&nbsp; Specifically, the OFCCP requested that Google provide:</p> <ul> <li> An employee report as of September 1, 2014 (one year earlier than the employee report that Google initially submitted) containing over 50 categories of data on each of the 19,539 people employed at that time such as market salaries for jobs, value of stock options, and educational history;</li> <li> A list of all starting salaries, salary changes, starting jobs and job changes for each person employed on either September 1, 2014 or September 1, 2015;</li> <li> The name, address, telephone number, and personal email of each person employed on either September 1, 2014 or September 1, 2015.</li> </ul> <p> Google refused to comply with the requests on the grounds that they were overly broad and went beyond the scope of what was relevant in the audit.&nbsp; Google also claimed that the OFCCP&rsquo;s request for contact information presented unnecessary risks to the privacy interests of its employees.&nbsp; The OFCCP then initiated a lawsuit to compel Google to disclose the requested information.&nbsp;</p> <p> <strong>Most of the OFCCP&rsquo;s Broad Pay Data Requests Not Supported</strong></p> <p> As made clear by both the OFCCP and the ALJ during the ensuing litigation, the agency&rsquo;s expansive requests were made in connection with its on-going compliance audit:&nbsp; There has been no finding that Google engaged in unlawful discrimination or failed to meet its affirmative action obligations.&nbsp; &nbsp;Rather, OFCCP representatives testified that additional information was needed to further investigate supposed &ldquo;systemic compensation disparities against women&rdquo; identified by its preliminary analyses of Google&rsquo;s data.&nbsp; Without the disputed information, the OFCCP claimed, it could not investigate if the alleged pay disparities were ongoing, how far back they went, or their potential causes. The OFCCP also argued that it needed salary and job histories going back to 1998 to investigate whether Google&rsquo;s practice of pegging compensation increases to market percentages caused pay disparities (that may have been created by how an employee&rsquo;s initial salary was set), to widen over time.<a href="#_ftn1" name="_ftnref1" title="">[1]</a></p> <p> The ALJ found no support for either theory, explaining that &ldquo;OFCCP&rsquo;s salary history, job history, and related requests exceed even the considerable deference owed OFCCP on a determination of relevance&rdquo; and &ldquo;create an unreasonable burden on Google and its employees.&rdquo;&nbsp; In so finding, the ALJ denied the OFCCP&rsquo;s requests for salary and job history back to 1998.&nbsp; The ALJ noted that Google did not even become a government contractor until 2007 and held that OFCCP remedial authority did not pre-date contractor status.&nbsp; &nbsp;</p> <p> <strong>Google Is Required to Produce Limited Employee Contact Information </strong></p> <p> Despite the decision tipping in Google&rsquo;s favor in many respects, the ALJ still ordered that Google produce a limited subset of employee data under the original OFCCP data request for employee contact information.&nbsp; Google contested the OFCCP&rsquo;s request for contact information for <u>all</u> employees at Google&rsquo;s headquarters&mdash;approximately 25,000.&nbsp; The OFCCP testified that contact information for all employees was needed so that the agency could interview employees about compensation issues without Google knowing who was being interviewed, and, in turn, avoid any retaliation concerns.&nbsp; The ALJ agreed with the OFCCP&rsquo;s theory that asking for contact information for a large number of employees allowed interviewed employees to &ldquo;hid[e] in plain sight.&rdquo;&nbsp; Yet, he found that a smaller list would accomplish the same purpose.&nbsp; To that end, the decision limits the request for contact information to 5,000 employees.<a href="#_ftn2" name="_ftnref2" title="">[2]</a> &nbsp;&nbsp;</p> <p> <strong>What this Decision Means for Federal Contractors</strong></p> <p> For Federal contractors seeking guidance on just how much data they must share during an OFCCP compliance audit, the decision offers some guidance as to how to respond to the OFCCP&rsquo;s requests for excessive information and data.&nbsp; At the very least, this decision should hamper the OFCCP&rsquo;s interest in engaging in limitless fishing expeditions absent an articulated basis for onerous data requests.&nbsp;</p> <p> At the same time, the case illustrates that Federal contractors still bear significant costs when subject to an OFCCP compliance audit, in part due to the agency&rsquo;s aggressive focus on alleged pay discrimination issues.&nbsp; During the litigation, Google submitted evidence that it spent more than 2,300 hours and approximately $500,000 responding to the OFCCP&rsquo;s data requests to date.&nbsp; This is true even though the requests were made in connection with a routine compliance audit, and were <u>not</u> related to any findings of discriminatory pay practices or any complaint.&nbsp;</p> <p> The ALJ decision marks a victory for Google, but not an end to the OFCCP&rsquo;s investigation.&nbsp; We will continue to monitor this case and provide updates with any important developments.</p> <p> In the meantime, if you have questions about best practices for OFCCP compliance and audit defense, please contact a member of Seyfarth&rsquo;s Organizational Strategy &amp; Analytics Team or your Seyfarth relationship partner.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The OFCCP argued that it was entitled to investigate continuing violations as far back as the employee&rsquo;s date of hire because of the rolling amendment to the statute of limitations for ongoing compensation discrimination created by the Fair Pay Act, (The Lily Ledbetter Act) however, ALJ Berlin concluded that the Fair Pay Act does not apply to claims brought under E.O. 11246.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> After considering the initial 5,000 employees, the OFCCP may request contact information on up to 3,000 additional employees.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/ts072017 The Neutral Corner: Using Forensic Neutrals in Trade Secret Disputes http://www.seyfarth.com:80/publications/ts072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> The dirty secret of trade secret disputes is that even if you win, it can be difficult to get back to where you started. It&rsquo;s like closing the stable door after the horses have run off with trade secret disputes. A court or arbitration panel may not have trouble reaching findings of fact and conclusions of law, but the secrets are still out there.&nbsp;</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/trade-secrets/the-neutral-corner-using-forensic-neutrals-in-trade-secret-disputes/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d5e9d6ec10-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d5e9d6ec10-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WH072017 What’s on the Agenda? Tips and OT http://www.seyfarth.com:80/publications/WH072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> Each spring and fall, Washington waits with bated breath as the Executive Branch releases its regulatory agenda. As the first pronouncement of some of the specifics of the Trump Administration&rsquo;s regulatory plans, this year&rsquo;s agenda was anticipated more than most.</p> <p> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/whats-on-the-agenda/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=26600c9cd3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-26600c9cd3-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TBT072017 Is Medical Marijuana A Reasonable Accommodation? Mass. Court Says … Possibly http://www.seyfarth.com:80/publications/TBT072017 Thu, 20 Jul 2017 00:00:00 -0400 <p> On July 17, 2017, the Massachusetts Supreme Judicial Court (&ldquo;SJC&rdquo;), the highest state court in Massachusetts, held that an employer could be liable for disability discrimination by declining employment based on an individual&rsquo;s off-duty medical marijuana use. This is a landmark decision, which has major implications for employers with drug testing programs and drug-free workplace policies.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/07/is-medical-marijuana-a-reasonable-accommodation-mass-court-says-possibly/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7637d8be60-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7637d8be60-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT72017a The Week in Weed: July 21, 2017 http://www.seyfarth.com:80/publications/TBT72017a Thu, 20 Jul 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Tax revenue for legal weed sales in Colorado exceeds $500M</p> <p> (The Hill: News, 19 July 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/07/the-week-in-weed-july-21-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=7637d8be60-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-7637d8be60-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/CP071917 New National Origin Discrimination Regs: FEHC Hears Public Comments http://www.seyfarth.com:80/publications/CP071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> The FEHC kicked off its third meeting of the year, this time in San Francisco. Prominent on the agenda: the proposed and rapidly advancing national origin discrimination regulations. As stated in the FEHC&rsquo;s notice of the meeting: &ldquo;The overall objective of the proposed amendments is to describe how the [FEHA] applies to the protected class of national origin in the employment context, primarily by centralizing and codifying existing law, clarifying terms, and making technical corrections.&rdquo;</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/19/new-national-origin-discrimination-regs-fehc-hears-public-comments/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=cb187679f2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-cb187679f2-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/MA071917-LE Employers Must Use New I-9 by September 18, 2017 http://www.seyfarth.com:80/publications/MA071917-LE Wed, 19 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>USCIS released a revised version of Form I-9 that employers must use to verify identity and employment authorization of new hires effective September 18, 2017. There are no substantive changes from the current Form I-9, which USCIS issued in November 2016 and considered a major overhaul.&nbsp; Employers are urged to utilize the roll out of the new Form I-9 as an opportunity to offer I-9, E-Verify and Antidiscrimination training, to assess their state of immigration compliance and to address necessary remediation</em>.&nbsp;&nbsp;&nbsp;</p> <p> As expected, the U.S. Citizenship and Immigration Services (USCIS)&nbsp; released a revised version of Form I-9, Employment Eligibility Verification, on July 17.&nbsp; Employers can use this <a href="https://www.uscis.gov/i-9">new Form I-9</a> or continue using the&nbsp; Form I-9 with a revision date of 11/14/16 N through September 17.&nbsp; As of September 18, employers may only use the new form with a revision date of<strong> 07/17/17 N; no other versions will be acceptable.&nbsp; </strong>The issuance of the new form does not necessitate employers&nbsp; &ldquo;redoing&rdquo; previously completed Form I-9s, this is going forward only.&nbsp;</p> <p> <u><strong>What&rsquo;s New?</strong></u></p> <p> In the <a href="https://www.uscis.gov/i-9">Form I-9 instructions</a>:</p> <ul> <li> Updated the name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) to Immigrant and Employee Rights Section (IER). &nbsp;Given the lack of any true substantive updates, it appears this name change is the main reason for the form update.</li> <li> Removed &ldquo;the end of&rdquo; from the phrase &ldquo;the first day of employment.&rdquo;</li> </ul> <p> In the List of Acceptable Documents:</p> <ul> <li> Added the Consular Report of Birth Abroad (Form FS-240) to List C and made it easy to select Form FS-240 from the drop-down menus available in List C of Sections 2 and 3 (in the dynamic Form I-9) and to identify it in E-Verify.</li> <li> Combined the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) into selection C #2 in List C.</li> <li> Renumbered all List C documents except the Social Security card into an easier format.</li> </ul> <p> In the new <a href="https://preview.uscis.gov/i-9-central/handbook-employers-m-274">M-274</a>, Handbook for Employers:</p> <ul> <li> USCIS reflected these changes and endeavored to simplify the format.</li> </ul> <p> <u><strong>What&rsquo;s the Same?</strong></u></p> <p> N<strong>o changes to storage -</strong> which means that employers may still keep Form I-9s in a single format or a combination of formats, such as paper, microfilm or microfiche, or electronic.&nbsp; For paper I-9s, we continue to recommend a three &ldquo;binder system&rdquo; consisting of Active, Reverifications and Terminated I-9s.&nbsp; Employer should keep all of the forms separate from personnel folders and safeguarded due to privacy concerns.</p> <p> For electronic users, this version&rsquo;s updates should not be as difficult as the one released in November of 2016.&nbsp; However, it is important to note that keeping up with version changes, as well as USCIS directives on how to record certain status updates or other bits and pieces of information, &nbsp;is clearly an issue for some <strong>Electronic I-9 vendors. </strong>&nbsp;For those employers considering electronic systems, or already using an electronic I-9, it is critical to conduct due diligence to ensure that the product complies with the regulations and guidance.&nbsp; Not all systems meet the electronic I-9 regulations, and the mere fact a large vendor sells the product does not necessarily render the product compliant.&nbsp; We expect that Immigration and Customs Enforcement (ICE) will begin to develop and showcase an expertise in this area in the near future.&nbsp;</p> <p> <strong>No changes to retention</strong> - which means that employers should retain all Form I-9&rsquo;s for active employees as well as all Form I-9&rsquo;s for terminated employees for three years from the date of hire or one year from the date of termination, whichever is later.</p> <p> <strong>No relief for employers with remote workforces -</strong> which means that the person who completes Section 2 must see the new hire in person, the original documents presented for Section 2, and record the documents in Section 2.&nbsp; No Skype, no Facetime, no WhatsApp, no Instagraming, no scanning and no faxing.</p> <p> <u><strong>What Should We Do Now? </strong></u></p> <p> The 60 day transition period for employers and electronic I-9 vendors provided by the government should be used for more than deprecating the old Form and introducing the 7/17/17 version before September 18, 2017.&nbsp; In fact, we recommend that companies immediately begin to use the new Form and notify their HR and other staff of the change.&nbsp; This is an excellent opportunity to also offer I-9, antidiscrimination and E-Verify related trainings as well as to review immigration related policies and handbooks (or to start thinking about developing them).&nbsp; Given the focus on compliance by the new administration, immigration related efforts should prove time and money well spent.&nbsp; There is speculation that increased worksite enforcement, greater scrutiny and less tolerance for companies with I-9 related issues is on the horizon. &nbsp;Now is the time to schedule experienced immigration compliance counsel for an on-site proactive I-9 review, including access to those that own the I-9 &ldquo;process&rdquo; on the ground.&nbsp; This review should include observations focusing on the implementation of well-intended standard operating procedures.&nbsp; Site visits and /or direct discussions are critical to assessing and identifying potential I-9 related &nbsp;liabilities.&nbsp; The chance to remediate on your own timeline, and not that of the government, is priceless; proactive remediation is key.</p> http://www.seyfarth.com:80/news/rodriguez071917 Leon Rodriguez quoted in Politico http://www.seyfarth.com:80/news/rodriguez071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 19 story from Politico, &quot;Supreme Court won&#39;t let Trump travel ban hit grandparents,&quot; on how the Supreme Court has rejected the Trump administration&rsquo;s effort to subject foreigners who are grandparents or cousins of Americans to the president&rsquo;s travel ban executive order, but will allow the administration to block many refugees for now. Rodriguez said that he sees a signal being sent to the Trump White House that its policy is unlikely to score a clean victory if the justices rule on the merits. You can read the <a href="http://www.politico.com/story/2017/07/19/scotus-wont-let-trump-travel-ban-hit-grandparents-240719">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360071917 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatmanlaw360071917 Wed, 19 Jul 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 19 story from Law360, &quot;Dukes&#39; Pioneering Pay Bias Suit Leaves Lasting Legacy,&quot; on the impact of the landmark Dukes discrimination class action Supreme Court case. Maatman said the high court&#39;s decision in Dukes&#39; case has become the 800-pound gorilla in every courtroom and has been statistically the most cited case in workplace class action litigation since the high court&#39;s 2011 ruling was issued.</p> http://www.seyfarth.com:80/news/maechtlen071817 Laura Maechtlen quoted in Human Resource Executive http://www.seyfarth.com:80/news/maechtlen071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in a July 18 story from Human Resource Executive, &quot;Who&rsquo;s Afraid of Automation?,&quot; on a 2017 Randstad Employer Brand Research study which found 76 percent of respondents saying they don&rsquo;t fear automation. Maechtlen said that automation should be seen as an opportunity to augment an organization&rsquo;s talent, not to supplant its employees. You can read the <a href="http://blog.hreonline.com/2017/07/18/whos-afraid-automation/">full article here</a>.</p> http://www.seyfarth.com:80/news/bizar071817 David Bizar quoted in Business Insurance http://www.seyfarth.com:80/news/bizar071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> David Bizar was quoted in a July 18 story from Business Insurance, &quot;Financial institution class actions could spike with rule change,&quot; on how a Consumer Financial Protection Bureau rule issued last week that precludes class action waivers in arbitration agreements in many consumer financial services contracts is expected to lead to an increase in class action litigation. Bizar said that the rule is going to produce the exact opposite result the consumer advocates and the bureau are claiming they intend to achieve. You can read the <a href="http://www.businessinsurance.com/article/20170718/NEWS06/912314527/Financial-institution-class-actions-could-spike-with-rule-change">full article here</a>.</p> http://www.seyfarth.com:80/news/gatx071817 Seyfarth Represents GATX in its Move to Chicago’s Willis Tower http://www.seyfarth.com:80/news/gatx071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> CHICAGO - (July 18, 2017) - Seyfarth Shaw LLP represented GATX, a global leader in railcar leasing, in the move of its corporate headquarters to Chicago&rsquo;s iconic Willis Tower. GATX will lease 90,000 square feet on two full floors in the tower.</p> <p> Earlier this year, Seyfarth represented ESD, a global leading engineering design firm, and the National Restaurant Association, the largest foodservice trade association in the world, in their respective moves to Willis Tower. ESD will occupy over 46,000 square feet of new space on the entire 53rd floor and a portion of the 54th floor. The National Restaurant Association leased close to 51,000 square feet of office space on the 36th floor.</p> <p> Seyfarth Real Estate partner Kelly Bufton represented GATX.</p> http://www.seyfarth.com:80/publications/MA071817-LE Massachusetts Supreme Judicial Court Rules That Employers May Need To Accommodate Off-Duty Medical Marijuana Use http://www.seyfarth.com:80/publications/MA071817-LE Tue, 18 Jul 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>On July 17, 2017, the Massachusetts Supreme Judicial Court held that an employer could be liable under the Massachusetts Anti-Discrimination Act for disability discrimination by declining employment based on an individual&rsquo;s off-duty medical marijuana use.&nbsp; This landmark decision runs contrary to the majority of courts in other states that have considered similar questions, given that marijuana continues to be an illegal drug under federal law.&nbsp; Massachusetts employers with drug testing programs and drug-free workplace policies will need to reassess their policies and consider reasonably accommodating individuals&rsquo; off-duty medical marijuana use as a result of this decision.</em></p> <p> Marijuana use and possession are illegal under federal law.&nbsp; Like heroin, marijuana is a Schedule I substance under the Controlled Substances Act, meaning it has no accepted medical use and it has a high potential for abuse. &nbsp;Doctors cannot lawfully prescribe marijuana to patients under federal law. &nbsp;Notwithstanding, on July 17, 2017, the Massachusetts Supreme Judicial Court (SJC) held that employers may have to allow employees to engage in off-duty use of marijuana for medical purposes.&nbsp; In <em>Barbuto v. Advantage Sales and Marketing</em>, the SJC reasoned that tolerating off-duty medical marijuana use may be a &ldquo;reasonable accommodation&rdquo; of a disability under the Massachusetts anti-discrimination statute.&nbsp;</p> <p> Cristina Barbuto, a woman diagnosed with Crohn&rsquo;s disease and Irritable Bowel Syndrome, accepted an offer for an office job with Advantage Sales and Marketing.&nbsp; According to Barbuto&rsquo;s complaint, the company sent her for a drug test.&nbsp; Barbuto told the company that she would test positive for marijuana because she uses it to treat her loss of appetite due to her medical conditions.&nbsp; She noted that she would never use marijuana during or before work.&nbsp; A supervisor responded that Barbuto&rsquo;s marijuana use &ldquo;should not be a problem.&rdquo;&nbsp; After Barbuto completed her first day of work, however, the company terminated her employment for testing positive for marijuana, stating &ldquo;we follow federal law, not state law.&rdquo; &nbsp;Among other things, Barbuto&rsquo;s complaint alleges that the company (1) discriminated against her on the basis of her disability in violation of the Massachusetts Fair Employment Practices Law (&ldquo;Anti-Discrimination Law&rdquo;); (2) violated the Massachusetts law that authorizes qualified individuals to use marijuana for medical reasons, An Act for the Humanitarian Medical Use of Marijuana (&ldquo;Medical Marijuana Act&rdquo;); and (3) terminated her employment in violation of public policy.</p> <p> The company moved to dismiss Barbuto&rsquo;s claims.&nbsp; It argued that Barbuto&rsquo;s discrimination claims must fail because she was not a &ldquo;qualified&rdquo; handicapped person.&nbsp; The company maintained that the only accommodation Barbuto requested--use of marijuana--is a federal crime, and therefore was facially unreasonable.&nbsp; The company also argued that it terminated her employment not because of her handicap but rather because she failed a drug test that all employees must pass. &nbsp;Regarding Barbuto&rsquo;s Medical Marijuana Act claim, the company argued that the law does not provide a private right of action, and that it merely decriminalizes medical marijuana use.&nbsp; Relying on similar logic, the company argued that Barbuto&rsquo;s public policy claim must fail.&nbsp; It asserted that the Medical Marijuana Act expresses no clear public policy that would forbid an employer from terminating an employee.&nbsp; The trial court agreed with the company and dismissed these claims.</p> <p> The SJC disagreed with the trial court&rsquo;s conclusion that employers need not tolerate medical marijuana use as a reasonable accommodation under the Anti-Discrimination Law.&nbsp; The SJC held that marijuana&rsquo;s illegality under federal law does not make it per se unreasonable to allow its off-duty medical use as an accommodation under the Anti-Discrimination Law.&nbsp; According to the SJC, the &ldquo;only person at risk of Federal criminal prosecution for her possession of medical marijuana is the employee.&rdquo;&nbsp; An employer has no risk of criminal prosecution by permitting off-duty use of medical marijuana, which many states deem to have an accepted use in treating certain medical conditions.&nbsp; The SJC also concluded that, even if accommodating medical marijuana use were facially unreasonable, &ldquo;the employer here still owed the plaintiff an obligation under Massachusetts the Anti-Discrimination Law], before it terminated her employment, to participate in the interactive process to explore with her whether there was an alternative, equally effective medication she could use.&rdquo;&nbsp; Indeed, the SJC held that the failure to explore alternative accommodations alone is enough to support a handicap discrimination claim.&nbsp;</p> <p> The SJC also rejected the company&rsquo;s attempt to rely on its neutral drug testing policy.&nbsp; The SJC reasoned that &ldquo;where a handicapped employee needs medication to alleviate or manage the medical condition that renders her handicapped, and the employer fires her because company policy prohibits the use of this medication, the law does not ignore the fact that the policy resulted in a person being denied employment because of her handicap.&rdquo;&nbsp; In effect, the SJC refused to distinguish between Barbuto&rsquo;s disabilities and the treatment for the loss of appetite that she experiences because of them.</p> <p> Notably, the SJC limited its ruling.&nbsp; It held--consistent with the language in the Medical Marijuana Act--that employers have no obligation to accommodate on-the-job use of marijuana.&nbsp; The SJC also observed that its ruling &ldquo;does not necessarily mean that the employee will prevail in proving handicap discrimination.&rdquo;&nbsp; The SJC stated that the company could present evidence at summary judgment or trial to show that Barbuto&rsquo;s use of medical marijuana would impose an undue hardship.&nbsp; As examples, the SJC mentioned that an employer could prove that medical marijuana use would impair an employee&rsquo;s performance, create an &ldquo;unacceptably significant&rdquo; safety risk, or violate the employer&rsquo;s &ldquo;contractual or statutory obligations.&rdquo;&nbsp; The SJC also noted that the recent legalization of marijuana for recreational purposes in Massachusetts was irrelevant to the issues on appeal.</p> <p> The SJC agreed with the trial court&rsquo;s conclusions that (1) there is no private right of action under the Medical Marijuana Act, and (2) the Medical Marijuana Act does not give rise to a public policy claim.&nbsp; The SJC reasoned that while the Medical Marijuana Act decriminalizes medical marijuana use, it is silent concerning whether an individual can sue an employer under the Act.&nbsp; The Massachusetts Legislature was aware of its ability to create a private right of action, but it did not do so.&nbsp; The SJC further held that it would not recognize a public policy claim given the statutory action available under the Anti-Discrimination Law.</p> <p> The <em>Barbuto</em> decision departs from federal law regarding disability discrimination and the decisions from most courts in other states that have addressed similar claims.&nbsp; Employers need not tolerate off-duty use of medical marijuana as an accommodation under the Americans with Disabilities Act (&ldquo;ADA&rdquo;).&nbsp; Under the ADA, an individual who uses illegal drugs is not a &ldquo;qualified&rdquo; disabled person because marijuana is illegal under the federal Controlled Substances Act, as noted above.&nbsp; Relying on this rationale, at least in part, courts in other states have ruled largely in favor of employers.&nbsp; In <em>Barbuto</em>, the SJC interpreted Massachusetts law to reach a different conclusion.</p> <p> Because of the <em>Barbuto</em> decision, employers should audit their drug testing, hiring, and accommodation policies.&nbsp; At a minimum, Massachusetts employers should engage in the interactive process before taking adverse action based on an applicant or employee failing, or making it known that he or she will fail, a drug test due to off-duty medical marijuana use.&nbsp; Proactive employers may be able to avoid exposure and should consult with counsel before taking action.</p> http://www.seyfarth.com:80/publications/HCRMA071817 Issue 111: Is Health Care Reform DOA? http://www.seyfarth.com:80/publications/HCRMA071817 Tue, 18 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and eleventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>The Republican&rsquo;s efforts to repeal and replace the Affordable Care Act may be dead on arrival. &nbsp;The defection of a total of four Senators from support of BCRA 2.0 means that bill has no chance of passage. &nbsp;A pure repeal bill (like that in 2015) is now on the table, but three Senators have already come out against that course of action.&nbsp;</em></div> <div> &nbsp;</div> <div> We recently provided an analysis of the Republican party&rsquo;s efforts to repeal and replace Obamacare through the House&rsquo;s <a href="http://www.seyfarth.com/uploads/siteFiles/publications/87a6d085-bc6d-48b2-a51d-6b67aaac732c_HealthCareReformManagementAlert_Issue109_050517.pdf">American Health Care Act (&ldquo;AHCA&rdquo;)</a> and the Senate&rsquo;s <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HCRMA_Issue110_071417.pdf">Better Care Reconciliation Act (&ldquo;BCRA&rdquo;)</a>. &nbsp;Senators Rand Paul (KY) and Susan Collins (ME) immediately announced their opposition to BCRA 2.0 leaving Senator Mitch McConnell with the absolute minimum 50 Republican senators he needed to move the BCRA forward. &nbsp;Last night two more Republicans announced their opposition to the BCRA -- Senators Mike Lee (UT) and Jerry Moran (KS) -- effectively killing any chance of passage of the BCRA repeal and replace bill. &nbsp;While Republicans share a general animosity toward the Affordable Care Act (&ldquo;ACA&rdquo;), they are not united in their solutions to the ACA problem. &nbsp;Conservatives, led primarily by Senator Paul, favor a complete repeal of the ACA, while moderates hope to keep some of the more popular provisions and not lose the coverage expansions gained under the ACA. BCRA 2.0 had attempted to craft legislation that united these disparate Republican goals, but without success. &nbsp;</div> <div> &nbsp;</div> <div> Following Senators Lee and Moran&rsquo;s announcement, Senator McConnell and President Trump both signaled a change in course and advocated a complete repeal of the ACA with a two year sunset provision to allow them time to craft new health care reform legislation. &nbsp;Senator McConnell (who as recently as two weeks ago criticized full repeal as a possible avenue) would put in front of the legislature the same bill that was passed in 2015, at a time when the stakes were not as high knowing the bill would be vetoed by President Obama. &nbsp;</div> <div> &nbsp;</div> <div> While a full repeal would appeal to the conservative faction in the party, it is far from clear that Senator McConnell has enough votes among the moderates to accomplish repeal in the current environment. &nbsp;There is early word that three Republican senators (Collins, Capito and Murkowski) have already gone on record that they would oppose a repeal then replace scenario. &nbsp;Further, the numbers do not look good even compared to the AHCA and BCRA. &nbsp;Back in 2015, the Congressional Budget Office scored the full repeal bill and found that, in just the first year following enactment and before the ACA would be cancelled, 18 million more people would lose coverage and premiums would increase by 20-25% relative to projections under the ACA. &nbsp;In ten years, 32 million more people would lose insurance and premiums would double.</div> <div> &nbsp;</div> <div> In light of last night&rsquo;s and this morning&rsquo;s developments, the chance of repeal (with or without replacement) of the ACA is becoming remote. &nbsp;For planning and compliance purposes, employers should assume that the ACA remains the law of the land for the foreseeable future. &nbsp;Any health care reform changes would take the form of agency guidance, or bi-partisan legislative efforts which are likely to be far less comprehensive in scope.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WH071817 Money for Nothing! Court Allows Employees to Pursue Lawsuit Despite DOL Settlement http://www.seyfarth.com:80/publications/WH071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> In <em><a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/Chan-et-al-v-A-Taste-of-Mao-Inc-et-al.pdf" rel="noopener noreferrer" target="_blank">Wai Hung Chan v. A Taste of Mao, Inc.</a></em>, five employees asserted FLSA claims for unpaid minimum wage and overtime.&nbsp; Before the lawsuit was filed, the employer agreed with the DOL to pay back wages of $38,883.80 to 19 of its employees, including four of the five plaintiffs in the lawsuit. &nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/settlement/money-for-nothing-court-allows-employees-to-pursue-lawsuit-despite-dol-settlement/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=6cae198977-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-6cae198977-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/IMM071817 Employers Must Use New I-9 by September 18, 2017 http://www.seyfarth.com:80/publications/IMM071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> As expected, the U.S. Citizenship and Immigration Services (USCIS) &nbsp;released a revised version of Form I-9, Employment Eligibility Verification, on July 17. &nbsp;Employers can use this new Form I-9 or continue using the &nbsp;Form I-9 with a revision date of 11/14/16 N through September 17. &nbsp;As of September 18, employers may only use the new form with a revision date of 07/17/17 N; no other versions will be acceptable. &nbsp;The issuance of the new form does not necessitate employers &nbsp;&ldquo;redoing&rdquo; previously completed Form I-9s, this is going forward only.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/07/employers-must-use-new-i-9-by-september-18-2017/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=2cc80ae48a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-2cc80ae48a-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/EL071817 Texas Supreme Court Disputes Reach of Obergefell in Employee Benefits Case http://www.seyfarth.com:80/publications/EL071817 Tue, 18 Jul 2017 00:00:00 -0400 <p> In a provocative opinion, in Pidgeon v. Turner, No. 15-0688, the Texas Supreme Court held that Obergefell v. Hodges, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/texas-supreme-court-disputes-reach-of-obergefell-in-employee-benefits-case/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3939bb3c12-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3939bb3c12-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM071717-LE The Consumer Financial Protection Bureau’s Summer Gift to Plaintiff’s Counsel http://www.seyfarth.com:80/publications/OMM071717-LE Mon, 17 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp;&nbsp;The Consumer Financial Protection Bureau issued a final rule that exposes financial services companies to increased litigation by banning the use of arbitration agreements to block consumer class actions. Companies must revise their consumer contracts to include language informing consumers of their right to bring or participate in class actions. The rule becomes effective August 10, 2017, unless rescinded by Congress.</em></p> <div> The Consumer Financial Protection Bureau (&quot;CFPB&quot;) is ordering financial services companies to pull out a red pen and redraft all mandatory arbitration clauses in agreements for consumer financial products and services. As expected, the CFPB published&nbsp;<a href="https://s3.amazonaws.com/files.consumerfinance.gov/f/documents/201707_cfpb_Arbitration-Agreements-Rule.pdf">rule</a>&nbsp;prohibiting the use of pre-dispute arbitration agreements to block consumer class actions. The rule, which could be overruled before it takes effect, will likely increase compliance costs and litigation risks for businesses.</div> <div> &nbsp;</div> <div> The final arbitration rule is the result of section 1028(b) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (&ldquo;Dodd-Frank Act&rdquo;), wherein Congress directed the CFPB to study pre-dispute arbitration agreements and afterward authorized the CFPB to issue regulations restricting the use of arbitration agreements. The CFPB concluded that consumers rarely pursue claims on an individual basis because the individual amounts in dispute are low and that arbitration clauses typically waive the consumers&rsquo; right to seek relief on a class basis. According to the CFPB, these factors in combination effectively prevent consumers from obtaining any relief for valid claims. The CFPB drafted the rule to address these perceived concerns.</div> <div> &nbsp;</div> <div> <div> According to CFPB Director <a href="https://www.consumerfinance.gov/about-us/newsroom/cfpb-issues-rule-ban-companies-using-arbitration-clauses-deny-groups-people-their-day-court/">Richard Cordray</a>, &ldquo;Our new rule will stop companies from sidestepping the courts and ensure that people who are harmed together can take action together,&rdquo; but Senator <a href="http://thehill.com/policy/finance/341437-gop-senator-announces-effort-to-repeal-consumer-bureau-arbitration-rule">Tom Cotton</a> (R-AR), a member of the Senate Banking Committee, called the rule an &ldquo;anti-business regulation that will prompt frivolous lawsuits while hurting consumers.&rdquo;</div> <div> &nbsp;</div> </div> <p> <strong>KEY PROVISIONS IN THE RULE</strong></p> <p> The rule prohibits the inclusion of class-action waivers in pre-dispute arbitration agreements (cue plaintiff&rsquo;s counsel applauding the potential of new class action work). &nbsp;The rule requires covered providers to include the following notification in pre-dispute arbitration agreements:</p> <p style="margin-left:.5in;"> &ldquo;We agree that neither we nor anyone else will rely on this agreement to stop you from being part of a class action case in court. You may file a class action in court or you may be a member of a class action filed by someone else.&rdquo;</p> <p> The rule provides for a variation of this language where a customer may purchase more than one product or service or the customer has an existing pre-dispute agreement with the provider. Accordingly, this new requirement does not apply to pre-dispute agreements that already exist or products and services that were first provided before implementation of the rule.</p> <p> In addition to modifying pre-dispute arbitration agreements, the new rule mandates that covered providers submit filings attributable to a consumer arbitration claim or court proceeding involving consumer financial products or services covered by the rule, including but not limited to, the claim and any counterclaim, answer, and the pre-dispute arbitration agreement, and judgment or award. Such documents must be provided to the CFPB within 60 days of the provider filing the record with the arbitrator or court. In turn, the CFPB will be establishing and maintaining a repository of the records provided, which is expected to be made publically available by July 1, 2019.</p> <p> The final rule applies to providers--individuals, partnerships, companies, or other entities as defined in 12 U.S.C. 5481(19)--of certain consumer financial products and services in the &ldquo;core consumer financial markets of lending money, storing money, and moving or exchanging money.&rdquo; &nbsp;Excluded providers generally include persons or entities governed by the Securities and Exchange Commission or Commodity Futures Trading Commission, such as registered brokers or investment advisers. &nbsp;</p> <p> <strong>IMPLEMENTATION TIMING</strong></p> <div> Unless rescinded, the final rule will become effective 60 days after the rule is published in the Federal Register and will apply to agreements entered into after the end of the 180-day period measured from the effective date. Thus, if the rule is published in the Federal Register this month, it will likely begin applying to new agreements sometime in March 2018.</div> <div> &nbsp;</div> <div> Because there is strong opposition to the rule, however, the rule could be rescinded before it becomes effective. Under the Congressional Review Act (&quot;CRA&rdquo;), Congress can override the rule by a simple majority vote and the President&rsquo;s signature within 60 legislative days of the rule&rsquo;s publication in the Federal Register. Republicans in the House and Senate, including Senate Banking Committee Chairman Mike Crapo (R-ID) and House Financial Services Committee Chairman <a href="https://financialservices.house.gov/news/email/show.aspx?ID=WWIDJWTXSZENYPQDFQFC3RGLMQ">Jeb Hensarling</a> (R-TX) , have indicated that they will use the CRA to rescind the rule. If that effort is successful, the rule will not become effective. The CFPB will be prevented from imposing the rule and further barred from revisiting the subject regulation until permitted by Congress to do so. We are following this effort and will provide a future update.</div> <div> &nbsp;</div> <p> <strong>PREPARATION &amp; COMPLIANCE</strong></p> <p> Despite uncertainty as to whether the rule will go into play, covered providers should be proactive and prepare for compliance under the new rule. Noncompliance could subject covered providers to litigation and regulatory investigations.&nbsp; Covered providers should redraft their &nbsp;pre-dispute agreements to comport with the new rule, revise record-keeping policies to ensure maintenance of the records required for submission to the CFPB, and conduct&nbsp; training to apprise representatives of the new rule.</p> http://www.seyfarth.com:80/news/brar071717 Energy and Healthcare Litigator Kip Brar Joins Seyfarth in Houston http://www.seyfarth.com:80/news/brar071717 Mon, 17 Jul 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced today that Kip Brar has joined the firm&rsquo;s Litigation department as a partner in Seyfarth&rsquo;s Houston office. Kip comes from Strasburger &amp; Price, LLP, where he served as a partner in Houston.</p> <p> Kip&rsquo;s practice focuses on high-stakes commercial litigation within the energy oil and gas, healthcare, and manufacturing industries. He has advised oil service companies, large petro-chemical producers, shipping corporations, offshore construction companies, and terminal operators facing a broad range of legal complexities. Kip also represents prominent healthcare systems and physician networks in both litigation and corporate matters.</p> <p> &ldquo;Kip is a very talented litigator with significant trial experience,&rdquo; said Kate Perrelli, chair of Seyfarth&rsquo;s Litigation department. &ldquo;He is joining a remarkable group of litigators in Houston who are quickly expanding their energy and healthcare services well beyond the Houston market.&rdquo;</p> <p> &ldquo;We are excited to welcome Kip to our team, Kip is dynamic and versatile, and fits our bench beautifully, especially with his health industry clients and expertise,&rdquo; said Mark Coffin, managing partner of Seyfarth&rsquo;s Houston office. &ldquo;His litigation practice further deepens our capabilities in the important healthcare and energy sectors in Houston.&rdquo;</p> <p> Kip received his J.D. from Baylor Law School where he was an Editor of the <em>Baylor Law Review</em>. He earned a B.A., with special honors, from the University of Texas. Kip serves as a Board of Director for the Southern District of Texas Chapter of the Federal Bar Association and is the Chamber Chats Committee Chair.</p> <p> <strong>About Seyfarth Shaw LLP </strong></p> <p> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> http://www.seyfarth.com:80/news/saxman071717 Suzie Saxman quoted in Mergermarket http://www.seyfarth.com:80/news/saxman071717 Mon, 17 Jul 2017 00:00:00 -0400 <p> Suzie Saxman was quoted in a July 17 story from Mergermarket, &quot;The Deals, The Data &amp; The Drivers: Industrials slowed by fewer mega-deals,&quot; on the main transactions and trends in the Industrials and Chemicals sectors in 2Q17. Saxman said that relatively low interest rates and the availability of capital continue to fuel US companies in M&amp;A activities.</p> http://www.seyfarth.com:80/news/hoppe071417 Timothy Hoppe quoted in SHRM http://www.seyfarth.com:80/news/hoppe071417 Fri, 14 Jul 2017 00:00:00 -0400 <p> Timothy Hoppe was quoted in a July 14 story from SHRM, &quot;Victoria&rsquo;s Secret to Pay $12 Million to California On Call Workers,&quot; on how some cities have stepped in to pass legislation requiring employers to provide work schedules in advance or pay penalties. Hoppe said that the piecemeal legislation creates headaches for employers that operate in multiple locations. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/victoria%E2%80%99s-secret-to-pay-$12-million-to-california-on-call-workers.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/foodusa071417 Jay Connolly, Ed Maluf and Owen Wolfe authored an article in FoodNavigator-USA http://www.seyfarth.com:80/publications/foodusa071417 Fri, 14 Jul 2017 00:00:00 -0400 <p> Jay Connolly, Ed Maluf and Owen Wolfe authored a July 14 article in FoodNavigator-USA, &quot;GMO labeling... What we know and what may happen next.&quot; The article discusses one of the hottest topics in the food, beverage and dietary supplement industries, for both producers and advertisers: the disclosure of genetically modified organisms, or &lsquo;GMOs,&rsquo; in these products. You can read the <a href="http://www.foodnavigator-usa.com/Regulation/GUEST-ARTICLE-GMO-labeling-what-happens-next">full article here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA071417 Issue 110: Senate Efforts at Health Care Reform http://www.seyfarth.com:80/publications/HCRMA071417 Fri, 14 Jul 2017 00:00:00 -0400 <div> <em>This is the one hundred and tenth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong>&nbsp;The epicenter of the health care repeal and replace effort has moved from the House of Representatives to the Senate. &nbsp;After several weeks of drafting behind closed doors, the Senate introduced the Better Care Reconciliation Act (BCRA) a few weeks ago, which faced immediate and heavy criticism. &nbsp;Seeing that he did not have enough votes to move the BCRA forward, Senator Mitch McConnell pulled the bill back to consider certain amendments to appease objections from various law makers. &nbsp;That effort has resulted in BCRA 2.0 released on Thursday, July 13th.</em></div> <div> &nbsp;</div> <div> In early May, the House passed the baton to the Senate on the Republicans&rsquo; repeal and replace efforts. The Senate was almost uniformly disdainful of the House efforts that produced the <a href="http://www.seyfarth.com/uploads/siteFiles/publications/87a6d085-bc6d-48b2-a51d-6b67aaac732c_HealthCareReformManagementAlert_Issue109_050517.pdf">American Health Care Act (&ldquo;AHCA&rdquo;)</a>. Even President Trump labelled it a &ldquo;mean&rdquo; bill. A small group in the Senate quickly went to work conducting their legislative efforts in secrecy (from fellow Republicans as well as Democrats) and many were holding out hope that the Senate would scrap the AHCA and create meaningful reform. However, the iterations of the Senate health care reform bill eventually released (the latest version of their Better Care Reconciliation Act, or &ldquo;BCRA&rdquo;, just this week) continue a similar approach as the House bill. The deep cuts to Medicaid remain and the Congressional Budget Office (CBO) score of the (first version of the) BCRA predicts 22 million fewer Americans will have coverage in ten years (as compared to the ACA) -- just slightly better than the 23 million under the AHCA.&nbsp;</div> <div> &nbsp;</div> <div> Almost immediately Republican Senators were publicly stating their opposition to the BCRA. &nbsp;A few were concerned with the loss of Medicaid coverage that would impact their states, others concerned that the opioid epidemic was not addressed, and still others felt the roll back of the ACA provisions did not go far enough. &nbsp;BCRA 2.0 was released on Thursday, July 13th, to try to meet some of those objections and retain the 50 Republican votes needed to pass. &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> <strong>What Changed from BCRA 1.0 to BCRA 2.0?</strong></div> <div> &nbsp;</div> <div> Notable changes to the originally-drafted BCRA include:</div> <div> &nbsp;</div> <ul> <li> <em>Cruz Amendment. </em>&nbsp;Most notably, BCRA 2.0 includes a controversial amendment drafted by Senator Ted Cruz that creates a two-track structure -- one for policies offered on the Exchanges and another for insured policies not on an Exchange. &nbsp;Insurers will be allowed to issue policies that do not cover all essential health benefits and that take into account a person&rsquo;s health status, claims history, and disability condition (that is, take into account pre-existing conditions) as long as they also maintain compliant plans on the Exchanges. &nbsp;As a result, individuals with pre-existing conditions may not have affordable access to coverage except perhaps through the Exchanges. &nbsp;This change could certainly impact the individual market but it also has the potential to impact the group market (e.g., for employers fully-insuring health insurance coverage). &nbsp;BCRA 2.0 attempts to handle this concern by allocating funds to the Exchanges for high-risk claims -- a risk pool approach. &nbsp;What remains unclear is whether this proposal creates two risk pools or a single risk pool (covering both compliant and non-compliant plans). &nbsp;A last minute revision appears to have modified the Cruz amendment to lump both populations into the same risk pool. &nbsp;This change has led to some confusion among insurance carriers and even Senator Mike Lee (who was an ardent supporter of this amendment as originally proposed) as to how this might work. &nbsp;<br /> &nbsp;</li> <li> <em>Retention of ACA&rsquo;s Taxes on High Earners.</em> &nbsp;BCRA 2.0 also keeps some of the taxes in place that supported the ACA structure. &nbsp;The 3.8% tax on investment income and the 0.9% Medicare tax on high wage earners will remain in place, as will the deduction limit on salaries for insurance company executives. &nbsp;<br /> &nbsp;</li> <li> <em>Opioid Funding.</em> &nbsp;BCRA 2.0 increases the funding pool for addressing the opioid epidemic from $2 billion to $45 billion. &nbsp;<br /> &nbsp;</li> <li> <em>Use of HSAs for Premiums.</em> &nbsp;BCRA 2.0 would permit persons to use health savings account balances to pay health insurance premiums. &nbsp;<br /> &nbsp;</li> </ul> <div> <strong>What&rsquo;s Not Changing from BCRA 1.0?</strong></div> <div> &nbsp;</div> <div> Notably, in what could be a potential sticking point for moderate Republicans, the funding cuts to Medicaid and per capita cap system stay in place under BCRA 2.0. &nbsp;However, in the event of a public health emergency, state spending on related costs would not count towards the caps. &nbsp;It&rsquo;s unclear whether this tweak would be enough to win over moderate holdouts. &nbsp;</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> The CBO score on BCRA 2.0 has not come out yet. &nbsp;Some in the Senate are suggesting that the Department of Health and Human Services (HHS) should score the bill (or, at the very least, the Cruz Amendment) instead of the non-partisan CBO as it will be a faster process. &nbsp;That suggestion has met with pushback.&nbsp;</div> <div> &nbsp;</div> <div> If enough Republicans are swayed by the changes in BCRA 2.0 to get 50 votes, the Senate will likely vote next week (or before their August recess). &nbsp;If the 50 votes are not there, Senator Mitch McConnell may be forced to work with Democrats to get a meaningful reform effort off the ground.&nbsp;</div> <div> &nbsp;</div> <div> As of today, two Senate Republicans (conservative Rand Paul and moderate Susan Collins) have indicated they would not vote to move the bill to the floor for debate. &nbsp;This procedural vote will be crucial, because once the measure moves to the floor, Senator McConnell has more flexibility to cut deals with individual Senators to pick off opposition. &nbsp;</div> <div> &nbsp;</div> <div> <em>An updated (and necessarily simplified) chart comparing the ACA against the AHCA and BCRA can be found in the document linked below.</em></div> <div> &nbsp;</div> <div> &nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM071317-LE San Francisco’s Salary History Ban “Finally Passes” After Two Rounds of Votes http://www.seyfarth.com:80/publications/OMM071317-LE Thu, 13 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: San Francisco is likely to be the next jurisdiction to prohibit employers from asking job applicants about wage history.&nbsp; If signed by the Mayor, as expected, the law will go into effect on July 1, 2018 (with attendant penalties to take effect on January 1, 2019).</em></p> <p> On July 11, 2017, the Board of Supervisors for the City and County of San Francisco (the &ldquo;City&rdquo;) passed the &ldquo;Parity in Pay Ordinance,&rdquo; prohibiting employers from inquiring about a job applicant&rsquo;s salary history.</p> <p> Several erroneous reports by others indicated that the ordinance passed on June 27, 2017. Supervisors in San Francisco, however, get two bites at the apple before an ordinance is passed. After an ordinance is out of committee, it is presented for a first reading and the supervisors cast their initial vote. Here, the Parity in Pay Ordinance &ldquo;Passed On First Reading&rdquo; on June 27, 2017. Thereafter, the ordinance was put up for a second vote at the next Board of Supervisors Meeting 14 days later on July 11, 2017, where it was &ldquo;Finally Passed.&rdquo; Even after these two hurdles, the ordinance still is not law. The ordinance now needs to be presented to the Mayor for enactment.</p> <p> <strong>What is Forbidden?</strong><br /> <br /> The ordinance would ban employers, those with contracts with the City, and their agents from considering current or past salary of an applicant in determining whether to hire an applicant or what salary to offer the applicant, and from asking applicants about their current or past salary.&nbsp; The ordinance would also to prohibit disclosing a current or former employee&rsquo;s salary history without that employee&rsquo;s authorization unless the salary history is publicly available.</p> <p> <strong>Changes to the Ordinance</strong></p> <p> The ordinance has evolved since its initial introduction in April 2017, as discussed <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">here</a>, with the Government Audit and Oversight Committee weighing in on the final version of the ordinance that was presented to the Supervisors for a vote. The following highlights reflect the most significant changes to the revised <a href="https://sfgov.legistar.com/View.ashx?M=F&amp;ID=5276508&amp;GUID=E138BD49-C709-4371-941A-0865F7C5B4E8">version</a> of the salary history ban:</p> <ul> <li> The salary history ban covers an application for any type of job for wages, including temporary or seasonal work and commissioned work.</li> <li> The ordinance no longer solely impacts those seeking employment within the geographic boundaries of the City.&nbsp; Now, if the sought after employment will be performed on City property or under contract funded by the City, employers may not ask about the applicant&rsquo;s current or past salary.&nbsp; According to Supervisor Mark Farrell&rsquo;s legislative aide, &ldquo;City property&rdquo; includes San Francisco Airport, although the airport is technically outside the city limits.</li> <li> The revised ordinance clarifies that the ban will not prohibit a prospective employer and applicant from discussing the applicant&rsquo;s pay expectations or any financial benefit the applicant would have to forego in order to take the new job (e.g., unvested equity or a future bonus through a current employer).</li> <li> If an applicant voluntarily, and without prompting by the prospective employer, discloses his/her salary history, the ordinance now permits the employer to consider that information.&nbsp; However, the ordinance clarifies that Salary History by itself cannot be used to justify paying any employee of a different sex, race or ethnicity less than such Applicant or prospective employee for doing substantially similar work under similar working conditions, in accordance with California Labor Code Section 1197.5.</li> <li> The ordinance instructs the City&rsquo;s Office of Labor Standards Enforcement (the &ldquo;OLSE&rdquo;) to create a posting detailing applicants&rsquo; rights that the employer must display in a conspicuous place.</li> <li> Penalties are now even steeper.&nbsp; Starting in January 2019, employers who violate the ordinance face penalties ranging from $100 to $500 per employee per violation.&nbsp; While contractors with the City may only be charged between $50 and $100 per violation, the City also can exercise the option to terminate the contract for violations of the salary ban with all outstanding moneys due being forfeited and retained by the City.</li> <li> If a single act by an employer impacts multiple applicants at the same time&mdash;e.g., if a written job application for a particular position includes a question about the applicant&rsquo;s salary history&mdash;the OLSE has the discretion to treat that violation as a single violation.</li> </ul> <p> <strong>Implementation Timing</strong></p> <p> If signed by the Mayor, as expected, the law will go into effect on July 1, 2018&mdash;with attendant penalties to take effect on January 1, 2019&mdash;thereby joining <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>,&nbsp; <a href="http://www.seyfarth.com/publications/OMM012717LE">Philadelphia</a>,&nbsp; <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM062317LE.pdf">Delaware</a>, Puerto Rico, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM060817LE2.pdf">Oregon</a> and <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a> in banning employers from asking applicants about their salary history.&nbsp; Employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices. &nbsp;</p> <p> We are tracking these efforts in the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">50-State Desktop Pay Equity Reference</a>.</p> http://www.seyfarth.com:80/publications/MA071317-LE Newly Adopted “Freelance Isn’t Free” Rules Rife with Preemption Issues Under FAA http://www.seyfarth.com:80/publications/MA071317-LE Thu, 13 Jul 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Regulatory rules issued in connection with New York City&rsquo;s Freelance Isn&rsquo;t Free Act seek to prohibit arbitration of claims under the Act and class action waivers in contracts covered by the law.&nbsp; U.S. Supreme Court precedent strongly suggests this rule is preempted by the Federal Arbitration Act.</em></p> <p> Earlier this month, the New York City Department of Consumer Affairs (&ldquo;DCA&rdquo;) issued <a href="http://rules.cityofnewyork.us/sites/default/files/adopted_rules_pdf/dca_notice_of_adoption_-_freelance_isn_t_free_act_-_.pdf">Rules</a> implementing the Freelance Isn&rsquo;t Free Act.&nbsp; Among other notable provisions, the Rules prohibit arbitration and the use of class action waivers in contracts governed by the Act.</p> <p> As noted in our previous alerts (available <a href="http://www.seyfarth.com/publications/OMM120216">here</a> and <a href="http://www.seyfarth.com/publications/MA110816-LE">here</a>), the Freelance Isn&rsquo;t Free Act, which took effect on May 15, 2017, grants various protections for freelancers in New York City.&nbsp;</p> <p> <u><strong><em>Key Provisions in the Rules </em></strong></u></p> <p> <strong><em>Coverage</em></strong></p> <p> The Rules make clear that a &ldquo;freelance worker is entitled to the protections of the [Act] regardless of immigration status.&rdquo;&nbsp; The Rules also expand the definition of retaliation to include &ldquo;any adverse action relating to perceived immigration status or work authorization.&rdquo;</p> <p> <strong><em>Adverse Action</em></strong></p> <p> The definition of &ldquo;adverse action&rdquo; under the law for purposes of retaliation was expanded beyond the act or action by a hiring party, to include any action by a hiring party, its actual or apparent agent, or any other person acting directly or indirectly on behalf of a hiring party.&nbsp;</p> <p> Further, the anti-retaliation provisions extend to a hiring party that takes any action reasonably likely to deter a freelance worker from exercising or attempting to exercise any right under the Act, regardless of whether that hiring person previously has been a party to a contract with the freelance worker, or was the subject of a complaint by the freelance worker.</p> <p> <strong><em>Contract Value</em></strong></p> <p> The Rules also clarify that for purposes of determining whether a contract falls under the scope of the Act, its value includes the &ldquo;reasonable value of all or actual anticipated services, costs for supplies and any other expenses under the contract.&rdquo;</p> <p> When determining civil penalties, the value of the underlying contract &ldquo;shall include the reasonable value of all services performed and/or anticipated, and reasonable costs for supplies and any other expenses reasonably incurred by the freelancer worker.&rdquo;</p> <p> <strong><em>Prohibition Against Arbitration? </em></strong></p> <p> The Rules provide that any contract entered into by a hiring party and a freelance worker may not include any waiver or limitation of rights under the Act.&nbsp; The <a href="https://www1.nyc.gov/assets/dca/downloads/pdf/workers/FAQs-Freelance.pdf">FAQs</a> issued by the DCA seemingly interpret this language to prohibit contractual language that waives a freelancer worker&rsquo;s rights to participate in a lawsuit.&nbsp;</p> <p> The Rules go on to prohibit class action waivers, by deeming void any contractual language that &ldquo;waives or limits a freelance workers&rsquo; right to participate in or receive money or any other relief from any class, collective or representative proceeding.&rdquo;&nbsp;</p> <p> It is unclear how these Rules, separately or in the aggregate, can survive preemption under the Federal Arbitration Act (&ldquo;FAA&rdquo;).&nbsp; In 2011, the Supreme Court held that a California rule that operated to preclude enforcement of class action waivers in consumer arbitration agreements was preempted by the FAA.&nbsp; <em>See AT&amp;T Mobility LLC v. Concepcion</em>, 563 U.S. 333 (2011).&nbsp; The Court held that when a &ldquo;state law prohibits outright the arbitration of a particular type of claim, . . . [t]he conflicting rule is displaced by the FAA.&rdquo;&nbsp; The Court unequivocally stated that &ldquo;[r]equiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.&rdquo;&nbsp; Notably, in <em>Concepcion</em>, the Court did not have the opportunity to consider a rule that outright prohibited arbitration, as the Rules issued by the DCA do.&nbsp;&nbsp;</p> <p> The Rules also declare as void any contractual provision that seeks to limit &ldquo;any other procedural right normally afforded to a party in a civil or administrative action,&rdquo; including such rights under the New York Civil Practice Law and Rules and the Federal Rules of Civil Procedure.&nbsp; This provision is likely aimed at contractual provisions which curtail the availability or scope of discovery in arbitration or the availability of jury trials.&nbsp; These provisions may be subject to FAA preemption as well, although the outcome of such a legal challenge is not as clear.</p> <p> <strong><em>Conclusion </em></strong></p> <p> As of this writing, the Rules are slated to take effect on July 24, 2017.&nbsp; Employers who hire freelance workers or independent contractors in New York City should take steps to implement the Rules by the effective date. &nbsp;With respect to the arbitration provisions of the Rules, employers that wish to include arbitration clauses and class action waivers should consult with counsel to discuss their legal options.</p> http://www.seyfarth.com:80/publications/ERISA070717 Texas Supreme Court Disputes Reach of Obergefell in Employee Benefits Case http://www.seyfarth.com:80/publications/ERISA070717 Thu, 13 Jul 2017 00:00:00 -0400 <p> In a provocative opinion, in <em>Pidgeon v. Turner</em>, No. 15-0688, the Texas Supreme Court held that <em>Obergefell v. Hodges</em>, 135 S. Ct. 2584 (2015), does not necessarily require state governments to extend marital benefits to same-sex married couples.</p> <p> <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/07/07/texas-supreme-court-disputes-reach-of-obergefell-in-employee-benefits-case/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=6ce9e0578e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-6ce9e0578e-73179521">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL071317 Employment Law Lookout Readers: Cast Your Vote in the ABA’s Web 100 Competition! http://www.seyfarth.com:80/publications/EL071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> Voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, though this year the contest is a &ldquo;Web 100&rdquo; and will include websites and social media along with legal blogs. We hope you will cast your vote today to help Seyfarth&rsquo;s Employment Law Lookout blog get on the ABA&rsquo;s list for 2017.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/employment-law-lookout-readers-cast-your-vote-in-the-abas-web-100-competition/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=704aca0677-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-704aca0677-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/wh071317 Should I Stay or Should I Go Now: Federal Court Denies Class Certification to Supervisors Claiming In-Store Meal Breaks Violate Massachusetts Law http://www.seyfarth.com:80/publications/wh071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> The plaintiffs in <em>Romulus</em> alleged that as Shift Supervisors, they were required to remain in the store during certain of their unpaid meal breaks, particularly during times when no other managers were present in the store.&nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/mealrest-breaks/should-i-stay-or-should-i-go/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=67fbf09bc9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-67fbf09bc9-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/solowey071317 Dawn Solowey authored an article in Massachusetts Lawyers Weekly http://www.seyfarth.com:80/publications/solowey071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> Dawn Solowey authored a July 13 article in Massachusetts Lawyers Weekly, &quot;10 steps for preparing for an appellate argument.&quot; The article discusses how preparation for an appellate argument should go far beyond just re-reading the briefs and making an outline.</p> http://www.seyfarth.com:80/news/bufton071317 Seyfarth Represents Shure in its Expansion into Downtown Chicago http://www.seyfarth.com:80/news/bufton071317 Thu, 13 Jul 2017 00:00:00 -0400 <p> CHICAGO - (July 13, 2017) - Seyfarth Shaw LLP represented Shure Incorporated, the world&rsquo;s leading microphone manufacturer, in its office expansion to 125 S. Clark St. in downtown Chicago. The global leader for superior audio electronics leased 35,000 square feet in the renovated National, a 20-story building that was once home to the headquarters of Chicago Public Schools.</p> <p> Seyfarth Real Estate partner Kelly Bufton represented Shure Incorporated.</p> http://www.seyfarth.com:80/news/degroff071217 Christopher DeGroff quoted in the Cook County Record http://www.seyfarth.com:80/news/degroff071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Christopher DeGroff was quoted in July 12 story from the Cook County Record, &quot;Expert: Companies&#39; anti-discrimination policy should be part of culture,&quot; on why businesses should proactively adopt strategic hiring rules. DeGroff said that employers absolutely should be aware that the EEOC is keeping a close eye on the hiring practices of businesses. You can read the <a href="http://cookcountyrecord.com/stories/511141444-expert-companies-anti-discrimination-policy-should-be-part-of-culture">full article here</a>.</p> http://www.seyfarth.com:80/news/weiss071217 Philippe Weiss interviewed by WGN Radio http://www.seyfarth.com:80/news/weiss071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed on July 12 by WGN Radio on a recent study about the level of weariness women and men feel spending one-on-one time with the opposite sex. You can listen to the <a href="http://wgnradio.com/2017/07/12/wintrust-business-lunch-71217-il-31st-for-business-lsd-inappropriate-work-situations/">full segment at minute 19:50 here</a>.</p> http://www.seyfarth.com:80/news/laken071217 Ashley Laken quoted in Human Resource Executive http://www.seyfarth.com:80/news/laken071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Ashley Laken was quoted in a July 12 story from Human Resource Executive, &quot;Is the Persuader Rule in Peril?&quot; on the Department of Labor&#39;s recently issued notice of proposed rulemaking that would formally rescind the Obama administration&#39;s so-called persuader rule. Laken said that the final persuader rule would have left employers and their advisors often guessing about what needed to be reported, would have required employers and their outside lawyers to periodically and publicly disclose confidential information about their relationships for any activities that were newly reportable, and would therefore have discouraged employers from seeking needed legal advice. You can read the <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362778">full article here</a>.</p> http://www.seyfarth.com:80/news/babsonlaw360071217 Marshall Babson quoted in Law360 http://www.seyfarth.com:80/news/babsonlaw360071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 12 story from Law360, &quot;Tough Questions Expected For Trump&#39;s NLRB, DOL Picks,&quot; on the Senate confirmation hearings for the President&#39;s picks to fill the National Labor Relations Board&#39;s two vacancies. Babson said that he would be surprised if these nominees, like any prior nominees to the NLRB, or even judicial nominee, would express an opinion on a particular matter.</p> http://www.seyfarth.com:80/news/babsonbna071217 Marshall Babson quoted in Bloomberg BNA http://www.seyfarth.com:80/news/babsonbna071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a July 12 story from Bloomberg BNA, &quot;Combined Hearing for Three Labor Nominees Slammed by Democrats,&quot; on the Senate confirmation hearings for the President&#39;s two appointments to the NLRB. Babson said that they&rsquo;re very experienced labor practitioners&mdash;one from the Hill and one from private practice. You can read the <a href="https://www.bna.com/combined-hearing-three-n73014461637/">full article here</a>.</p> http://www.seyfarth.com:80/publications/CP071217 Need Cool Relief From Summer Heat? Try a Refreshing Handbook Update! http://www.seyfarth.com:80/publications/CP071217 Wed, 12 Jul 2017 00:00:00 -0400 <p> Although there&rsquo;s no right or wrong time to do a handbook update, we recommend them annually. Might as well take the opportunity when operations are typically slower, summertime, to give your handbook a shine. We&rsquo;ve highlighted a few areas upon which to focus when you do so.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/07/12/need-cool-relief-from-summer-heat-try-a-refreshing-handbook-update/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=e278993aac-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-e278993aac-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/WH071117 The Tenth Circuit Takes the DOL Tipping Rule Off the Menu http://www.seyfarth.com:80/publications/WH071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> In <em>Marlow v. The New Food Guy, Inc.</em>, a unanimous <a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/07/Tenth-Circuit.pdf" rel="noopener noreferrer" target="_blank">Tenth Circuit</a>&nbsp;panel (decided by two judges instead of three due to Justice Gorsuch&rsquo;s ascension) held that an employer that pays its employees at least minimum wage does not violate the FLSA by retaining customer tips. The Tenth Circuit first found that the catering company, Relish, complied with the FLSA by paying the employee $12 an hour, which is above minimum wage, and held that Section 203(m) of the FLSA, which regulates tips when tips are used to satisfy the minimum hourly wage, does not apply in this case.</p> <p> <a href="http://www.wagehourlitigation.com/service-chargesgratuities/the-tenth-circuit-takes-the-dol-tipping-rule-off-the-menu/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=dc336908cb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-dc336908cb-73179569">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wc071117 Calling All Readers! The Workplace Class Action Blog Is In The Running For The ABA Journal Blawg 100 Award! http://www.seyfarth.com:80/publications/wc071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> Voting is open for the American Bar Association&rsquo;s annual 100 Best Legal Blogs competition, and we hope you will cast your vote today to help Seyfarth&rsquo;s Workplace Class Action blog get on the ABA&rsquo;s list for 2017.</p> <p> <a href="http://www.workplaceclassaction.com/2017/07/calling-all-readers-the-workplace-class-action-blog-is-in-the-running-for-the-aba-journal-blawg-100-award-3/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=9134ecdd3f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-9134ecdd3f-73179573">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071117 The Third Circuit Addresses the Defend Trade Secrets Act and Appears to Have Applied the Inevitable Disclosure Doctrine http://www.seyfarth.com:80/publications/TS071117 Tue, 11 Jul 2017 00:00:00 -0400 <p> The Defend Trade Secrets Act (DTSA) states very clearly that an injunction issued pursuant thereto may not &ldquo;prevent a person from entering into an employment relationship,&rdquo; and that any conditions placed on a former employee&rsquo;s employment in an injunction must be based on &ldquo;evidence of threatened misappropriation <em>and not merely on the information the person knows</em>.&rdquo; (Emphasis added). This language appears to bar injunctive relief under the DTSA based on the &ldquo;inevitable disclosure doctrine,&rdquo; which in some states permits a court to enjoin a former employee from working for a competitor&mdash;even in the absence of a signed non-compete agreement&mdash;if it can be established that the employee would &ldquo;inevitably&rdquo; (even if inadvertently) use his or her former employer&rsquo;s trade secrets on behalf of a new employer. As a result, when the statute was first enacted, many commentators assumed that claims based on the inevitable disclosure doctrine would quickly be shot down. In practice, however, that does not appear to be the case. At the very least, some recent federal court decisions have sown confusion around this issue.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/the-third-circuit-addresses-the-defend-trade-secrets-act-and-appears-to-have-applied-the-inevitable-disclosure-doctrine/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=04e031db0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-04e031db0c-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/TS071017 Robert Milligan to Present “Effective Use of Non-Compete Agreements by International Employers” Webinar http://www.seyfarth.com:80/publications/TS071017 Mon, 10 Jul 2017 00:00:00 -0400 <p> Robert B. Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group, will be a speaker for the &ldquo;Effective Use of Non-Compete Agreements by International Employers&rdquo; webinar presented by Practicing Law Institute (&ldquo;PLI&rdquo;) on August 10, 2017 at 1:00 p.m. Eastern.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/noncompete-enforceability/robert-milligan-to-present-effective-use-of-non-compete-agreements-by-international-employers-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=04e031db0c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-04e031db0c-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/WLS071317 The future of work: managing a workforce that is away half the year http://www.seyfarth.com:80/publications/WLS071317 Mon, 10 Jul 2017 00:00:00 -0400 <p> The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business &ndash; another is the movement towards arranging their life so that they spend substantial periods of time not working at all.</p> <p> <a href="http://www.workplacelawandstrategy.com.au/2017/07/managing-a-workforce-that-is-away-half-the-year/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=d5734e1db7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-d5734e1db7-73179577">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/presidential-pulse Presidential Pulse http://www.seyfarth.com:80/publications/presidential-pulse Mon, 10 Jul 2017 00:00:00 -0400 <table border="0" cellpadding="2" cellspacing="2" style="width: 570px; height: 314px;"> <tbody> <tr> <td colspan="1" rowspan="1" style="text-align: center;"> <img alt="Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/CrainPresPulseBanner.png" style="width: 500px; height: 172px;" title="Mergers &amp; Acquisitons Header" /></td> </tr> <tr> </tr> <tr> </tr> <tr> <td> <table border="0" cellpadding="2" cellspacing="2" style="width: 608px; height: 890px;"> <tbody> <tr> <td style="width: 260px; vertical-align: top;"> <p> &nbsp;</p> <p> <em>Welcome to Seyfarth Shaw&rsquo;s Presidential Pulse Digest, a round-up of analysis by Seyfarth&rsquo;s leading policy team on the business impact of President Donald Trump&rsquo;s policy agenda. President Trump is following through rapidly on his campaign pledge to immediately overhaul, overturn and eliminate a long list of federal laws and regulations. The political, legal and business ramifications of President Trump&rsquo;s new administration are being felt by businesses and individuals across the United States and around the world.&nbsp;</em></p> <p> <em>Our attorneys will continue to monitor these developments and will keep you informed of the impact of these changes. Subscribe by clicking the button below to receive the Presidential Pulse Digest.</em></p> <p> &nbsp;</p> <div style="text-align: center;"> <p> <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=jnClo_aWrJA_LJhZLwuUI798M7uWfIc1XNAzdJz9p2ifRCWrtSPNOdbL9zagrSol" target="_blank"><img alt="Subscribe to Presidential Pulse" src="http://www.seyfarth.com/dir_docs/publications/RedSubscribeButton.jpg" style="width: 165px; height: 40px;" /></a></p> <p> &nbsp;</p> <div> <hr /> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Management-Side Attorney Nominated for Final Seat on NLRB</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Employer Labor Relations Blog - June 29, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">The Future of Dodd-Frank: Where is it Going?</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>One Minute Memo - June 26, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Steve Mnuchin, the Secretary of the Treasury, put forth the first of several Reports proposing financial reforms. Much of the Report makes sweeping changes to Dodd- Frank, the legislation put in place after the 2008 financial crisis. The Report comes on the heels of the Financial Choice Act, introduced by House Republicans, which also proposes repealing key provisions of Dodd-Frank. These actions are the opening salvo in what is expected to be a protracted and complicated effort to curb the regulations that make up Dodd-Frank, which is considered by many Republicans to be legislation which has stifled economic growth and hurt the banking industry. This One Minute Memo will update you on both initiatives, including efforts to curb the power of the CFPB.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM062617-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div> <h2 style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Travel Ban Update: The United States Supreme Court Will Hear The Appeal Over President Donald Trump&rsquo;s Revised Travel Ban Next Term And Reinstates Parts Of The Ban</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>One Minute Memo - June 26, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;U.S. Supreme Court will hear oral arguments on the Travel Ban in their next term. Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM062617-LE2">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div style="text-align: left;"> <br /> <strong style="text-align: left; color: rgb(0, 52, 121); font-size: 24px;">DOL Withdraws Guidance on Independent Contractors and Joint Employers: What It Means and What Employers Should Do Now</strong></div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Management Alert - June 20, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em> United States Secretary of Labor Alexander Acosta recently withdrew the federal Wage &amp; Hour Division&rsquo;s (WHD) Obama-era guidance documents on independent contractors and joint employment. Those documents, known as Administrator Interpretations, set forth WHD&rsquo;s understanding of the concepts involved in determining &ldquo;employer&rdquo; status under the Fair Labor Standards Act. By now, you have likely seen the numerous immediate reactions of lawyers and other commentators published in the wake of the withdrawals. Ours was among them. Now that there has been some time to give deeper contemplation to the withdrawals, this Alert offers a more detailed analysis of what happened and what it means.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/MA062017-LE">Read Full Alert</a></div> <div style="text-align: left;"> &nbsp;</div> <hr /> </div> </div> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> <p> &nbsp;</p> <h2> &nbsp;</h2> http://www.seyfarth.com:80/publications/ts070717 California Federal Court Finds CUTSA Preemption on Unfair Competition Claim in Uber Row http://www.seyfarth.com:80/publications/ts070717 Fri, 07 Jul 2017 00:00:00 -0400 <p> Uber&rsquo;s ongoing battle with Waymo in the Northern District of California federal court over technology used in self-driving cars provided another significant decision concerning the broad scope of trade secret preemption under California state law.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/california-federal-court-finds-cutsa-preemption-on-unfair-competition-claim-in-uber-row/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/wse070717 OSHA Releases PSM Guidance for Explosives and Pyrotechnics Manufacturing and for Storage Facilities http://www.seyfarth.com:80/publications/wse070717 Fri, 07 Jul 2017 00:00:00 -0400 <p> OSHA recently released guidance documents on <a href="https://www.osha.gov/Publications/OSHA3912.pdf">Process Safety Management for Explosives and Pyrotechnics Manufacturing</a> (PSM Explosive Pyrotechnics Guidance) (OSHA 3912-03 2017), and the <a href="https://www.osha.gov/Publications/OSHA3909.pdf">Process Safety Management for Storage Facilities</a> (PSM Storage Guidance)&nbsp;(OSHA 3909-03 2017).</p> <p> <a href="http://www.environmentalsafetyupdate.com/atf/osha-releases-psm-guidance-for-explosives-and-pyrotechnics-manufacturing-and-for-storage-facilities/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=7ed3fcb9d8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-7ed3fcb9d8-73179581">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/MA070717-LIT Nevada Adds Requirements for Valid Non-Competition Agreements and Allows Blue-Penciling http://www.seyfarth.com:80/publications/MA070717-LIT Fri, 07 Jul 2017 00:00:00 -0400 <div> On June 3, 2017, Governor Sandoval signed Assembly Bill 276 into law, amending Nevada Revised Statute 613, which governs non-competition agreements. Notably, the law adds requirements to the enforceability and validity of non-competition agreements, and now allows courts to &ldquo;blue-pencil,&rdquo; directly at odds with Nevada Supreme Court&rsquo;s recent decision in <em>Golden Road Motor Inn, Inc. v. Islam</em>, 376 P.3d 151 (Nev. 2016).</div> <div> &nbsp;</div> <h2> <em>Golden Road Motor Inn</em> and Blue-Penciling &nbsp;</h2> <div> In <em>Golden Road Motor Inn</em>, the Nevada Supreme Court refused to adopt the blue pencil doctrine, which refers to a court&rsquo;s ability to strike or modify unreasonable or overly broad clauses in a non-compete agreement, and enforce the revised or modified agreement. The Court refused to blue pencil for the employer because the court viewed it as inappropriate to rewrite the parties&rsquo; contract, as courts generally are not empowered to make private agreements. The Court held that an unreasonable clause in a non-competition agreement rendered the entire agreement unenforceable. Now, under Nevada&rsquo;s amended law, the court is empowered to revise a non-competition agreement to the extent necessary and to enforce the revised agreement.&nbsp;</div> <div> &nbsp;</div> <div> The <em>Golden Road Motor Inn</em> Court expressly noted that the Georgia Legislature &ldquo;implemented laws attempting to advance blue penciling in Georgia courts,&rdquo; but the provision, which stated that courts must reform unlawful contracts, was held unconstitutional. A revised provision, stating that courts may blue pencil, &ldquo;did not affect Georgia&rsquo;s precedent,&rdquo; allowing for the survival of the courts&rsquo; anti-blue-pencil rule.&nbsp;</div> <div> &nbsp;</div> <div> Given the practice of some Nevada judges against blue-penciling, the impact of this change to Nevada law is uncertain, as some courts may not do as they are empowered to. Thus, Nevada employers should still ensure their non-compete agreements contain appropriate specificity.</div> <div> &nbsp;</div> <h2> Four Requirements for Enforceable Non-Competes</h2> <div> The law also establishes rules for valid non-competition agreements. Under the new law, a non-competition agreement is void and unenforceable unless the agreement satisfies four requirements. The agreement must:&nbsp;</div> <div style="margin-left: 40px;"> &nbsp;</div> <div style="margin-left: 40px;"> (1) be supported by valuable consideration;&nbsp;</div> <div style="margin-left: 40px;"> (2) not impose a restraint greater than what is required to protect the employer;&nbsp;</div> <div style="margin-left: 40px;"> (3) not impose an undue hardship on the employee; and&nbsp;</div> <div style="margin-left: 40px;"> (4) impose restrictions that are appropriate in relation to the valuable consideration supporting the agreement.</div> <div> &nbsp;</div> <div> In addition, the law provides that a non-competition agreement is only enforceable during the time in which the employer is paying the employee&rsquo;s salary, benefits, or equivalent compensation if an employee is terminated because of a reduction in force, reorganization, or similar restructuring.</div> <div> &nbsp;</div> <h2> Limits on Restricting Former Employees&rsquo; Contact with Customers&nbsp;</h2> <div> Finally, the law limits the reach of employers over former employees&rsquo; contact with customers. A non-competition agreement may not restrict a former employee from providing services to a former customer or client if:&nbsp;</div> <div> &nbsp;</div> <div style="margin-left: 40px;"> (1) the former employee did not solicit the former customer or client;&nbsp;</div> <div style="margin-left: 40px;"> (2) the customer or client voluntarily chose to leave and seek the services of the employee; and&nbsp;</div> <div style="margin-left: 40px;"> (3) the former employee is otherwise complying with the non-competition agreement.</div> <div> &nbsp;</div> <div> In light of these changes, employers should review their existing non-competition agreements for compliance with the updated Nevada law and ensure that their agreements and practices are consistent with the new law&rsquo;s requirements. &nbsp;&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/ts070617b Nevada Enacts New Non-Compete Law http://www.seyfarth.com:80/publications/ts070617b Thu, 06 Jul 2017 00:00:00 -0400 <p> On June 3, 2017, Governor Sandoval signed Assembly Bill 276 into law, amending Nevada Revised Statute 613, which governs non-competition agreements. Notably, the law adds requirements to the enforceability and validity of non-competition agreements, and importantly, now allows courts to &ldquo;blue-pencil&rdquo; non-competition agreements,&nbsp;overturning Nevada Supreme Court&rsquo;s recent decision in <em>Golden Road Motor Inn, Inc. v. Islam</em>.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/noncompete-enforceability/nevada-enacts-new-non-compete-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts070617a Robert Milligan to Present “Growing Importance of Trade Secrets in Protecting Emerging Technology” Webinar http://www.seyfarth.com:80/publications/ts070617a Thu, 06 Jul 2017 00:00:00 -0400 <p> Robert B. Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group, will be a panelist for the &ldquo;Growing Importance of Trade Secrets in Protecting Emerging Technology&rdquo; webinar presented by ITechLaw&rsquo;s Intellectual Property Committee on July 11, 2017 at 11:00 a.m. Eastern.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/dtsa/robert-milligan-to-present-growing-importance-of-trade-secrets-in-protecting-emerging-technology-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=f2bf3ce696-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-f2bf3ce696-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/ts070617 Technically Speaking, Cybersecurity Isn’t About Speaking Technically http://www.seyfarth.com:80/publications/ts070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> These days cybersecurity seems to be all about technology. Pen testing, firewalls, port scanning, SIEM, zero-day, IPS, AES256, SHA, DMZ, NIDS, TLS, SS7 &ndash; I&rsquo;ll stop. I could go on, but you get the idea. And I have a vested interest in keeping your attention.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/cybersecurity/technically-speaking-cybersecurity-isnt-about-speaking-technically/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2a0146c678-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2a0146c678-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/news/maatman070617 Gerald Maatman quoted in Law360 http://www.seyfarth.com:80/news/maatman070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in a July 6 story from Law360, &quot;The Biggest Employment Cases In The First Half Of 2017,&quot; on the the need for employers to take religious accommodation requests seriously. Maatman said that most employers respect their obligation to reasonably accommodate disabilities, but may not be as serious about their similar obligation to accommodate an employee&rsquo;s religious beliefs.</p> http://www.seyfarth.com:80/news/leon070617 Leon Rodriguez quoted in Reveal News http://www.seyfarth.com:80/news/leon070617 Thu, 06 Jul 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a July 6 story from Reveal News, &quot;A judge said these kids get a green card. ICE says they get deported,&quot; on how U.S. immigration officials are seeking to deport children who have received a special status for vulnerable migrants and are in the final stages of getting their green cards. Rodriguez said that the immigration administration is saying they don&rsquo;t care &ndash; that the risks that lie beyond the border are not their problem. You can read the <a href="https://www.revealnews.org/article/a-judge-said-these-kids-get-a-green-card-ice-says-they-get-deported/">full article here</a>.</p> http://www.seyfarth.com:80/news/passshrm070517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passshrm070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 5 story from SHRM, &quot;DOJ Abandons Defense of Increased Salary Level in 2016 Overtime Rule.&quot; Passantino said that Labor departments in Republican and Democrat administrations alike have asserted the ability to set a salary level as part of the white-collar exemption tests. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/dol-right-to-set-salary-threshold.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinoshrm070517 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantinoshrm070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a July 5 story from SHRM, &quot;Revival of Opinion Letters Signals DOL Will Listen to Employers More Closely.&quot; Passantino said that, by reviving opinion letters, the Department of Labor (DOL) is sending the message that it genuinely wants to hear from employers on the compliance issues troubling them. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/opinion-letters-return.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/ts070517 Webinar Recap! Protecting Your Trade Secrets in the Pharmaceutical Industry http://www.seyfarth.com:80/publications/ts070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s third webinar in its series of 2017 Trade Secrets Webinars, Seyfarth attorneys Justin Beyer, Marcus Mintz, Dean Fanelli, and Thomas Haag focused on how to define and protect trade secrets in the pharmaceutical industry, including: reviewing significant civil and criminal cases in the industry, discussing how federal and state trade secret statutes and decisions may impact the protection of trade secrets, and suggested best practices for protecting trade secrets from invention through sale.</p> <p> <a href="http://www.tradesecretslaw.com/2017/07/articles/trade-secrets/webinar-recap-protecting-your-trade-secrets-in-the-pharmaceutical-industry/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2a0146c678-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2a0146c678-73179565">Read the full blog post.</a></p> http://www.seyfarth.com:80/publications/EL070517 11th Circuit Reminds Employers: Proceed Cautiously When Terminating Employees Shortly After FMLA Leave http://www.seyfarth.com:80/publications/EL070517 Wed, 05 Jul 2017 00:00:00 -0400 <p> In Jones v. Gulf Coast Health Care of Delaware, LLC, No. 16-11142 (11th Cir. Apr. 19, 2017), Rodney Jones brought suit against his former employer, Accentia Health and Rehabilitation Center of Tampa Bay (Accentia), a long-term-care nursing facility, in Florida state court. &nbsp;Jones alleged that in suspending and later terminating him, Accentia interfered with the exercise of his rights under the Family Medical Leave Act (FMLA) and retaliated against him for asserting those rights. Accentia removed the action to the United States District Court for the Middle District of Florida, and moved for summary judgment on both of Jones&rsquo;s claims.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/07/11th-circuit-reminds-employers-proceed-cautiously-when-terminating-employees-shortly-after-fmla-leave/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8be5789724-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8be5789724-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/GPW070317 “Opening Clauses” and the GDPR – It Might Not Be As Easy As We Thought http://www.seyfarth.com:80/publications/GPW070317 Mon, 03 Jul 2017 00:00:00 -0400 <p> The General Data Protection Regulation is coming, and along with it, a significant expectation of increased harmonization in the privacy rules across the EU. Considering the 60-plus articles which directly impose obligations on controllers and processors, this isn&rsquo;t an unreasonable sentiment. However (as is often the case with the EU), reality is a bit more complicated than what the expectations reflect.</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/07/opening-clauses-and-the-gdpr-it-might-not-be-as-easy-as-we-thought/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=dd1f85a656-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-dd1f85a656-73179561">click here</a>.</p> http://www.seyfarth.com:80/news/paparellilaw360070317 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparellilaw360070317 Mon, 03 Jul 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a July 3 story from Law360, &quot;The Biggest Immigration Policy Developments In 2017 So Far.&quot; Paparelli said that the actions the new Administration has taken since January signal clear priorities for the future, although the policies themselves may not have had immediately profound effects.</p> http://www.seyfarth.com:80/publications/WLS070217 The future of work: when will I be able to pay employees in Bitcoin? http://www.seyfarth.com:80/publications/WLS070217 Sun, 02 Jul 2017 00:00:00 -0400 <p> We have been watching with close interest the exponential expansion of crypto-currencies. These instruments, such as Bitcoin, Ethereum and Litecoin, are methods of secure, electronic transfer of value between individuals using advanced digital encryption techniques &ndash; without any central regulation by government.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/07/the-future-of-work-when-will-i-be-able-to-pay-my-employees-in-bitcoin/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=1e92aaeee2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-1e92aaeee2-73179577">click here</a>.</p> http://www.seyfarth.com:80/publications/kaplan070117 Mitchell Kaplan authored an article in The Banking Law Journal http://www.seyfarth.com:80/publications/kaplan070117 Sat, 01 Jul 2017 00:00:00 -0400 <p> Mitchell Kaplan authored a July 1 article in The Banking Law Journal, &quot;Construction Loan Guarantees.&quot; The article discusses several different types of guarantees that may be required by lenders in order to minimize payment and performance risks associated with construction loans. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Kaplan_072017.pdf">full article here</a>.</p> http://www.seyfarth.com:80/news/nethery070117 Allegra Nethery quoted in The American Lawyer http://www.seyfarth.com:80/news/nethery070117 Sat, 01 Jul 2017 00:00:00 -0400 <p> Allegra Nethery was quoted in a July 1 story from The American Lawyer, &quot;Big Law&#39;s Pro Bono Hours Tick Upward,&quot; on The American Lawyer&#39;s latest Pro Bono Survey. Nethery forecasts that The American Lawyer&#39;s next survey will show a surge in pro bono hours and participation among large law firms&mdash;particularly in areas where government enforcement and policy priorities put strain on the low income and vulnerable people who are often the clients in pro bono matters.</p> http://www.seyfarth.com:80/news/jutkowitz063017 Stanley Jutkowitz quoted in The Recorder http://www.seyfarth.com:80/news/jutkowitz063017 Fri, 30 Jun 2017 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in a June 30 story from The Recorder, &quot;A Denver Credit Union Won&#39;t Retreat in Marijuana Banking Fight,&quot; on how a federal appellate panel recently breathed some life into a Denver-based credit union&rsquo;s efforts to open its doors, one day, to marijuana-related businesses. Jutkowitz said that the appellate ruling is not a big deal in terms of clarifying the state-federal conflict over marijuana banking.</p> http://www.seyfarth.com:80/news/talibart063017 Peter Talibart quoted in Bloomberg BNA http://www.seyfarth.com:80/news/talibart063017 Fri, 30 Jun 2017 00:00:00 -0400 <p> Peter Talibart was quoted in a June 30 story from Bloomberg BNA, &quot;ONE SIZE FITS ALL? AN ELUSIVE GOAL FOR GLOBAL HR POLICIES,&quot; on how companies must be pragmatic about achieving uniformity if they also want their policies to be effective and lawful anywhere in the world. Talibart said that the biggest challenge that companies face when trying to draft global policies is that local statutes can differ widely between jurisdictions.</p> http://www.seyfarth.com:80/news/bartlettbna062917 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlettbna062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in a June 29 story from Bloomberg BNA, &quot;Employers May Feel Safe Surrendering to New Labor Department,&quot; on the possibility the DOL brings back the controversial self-reporting practice. Bartlett said that some businesses will never surrender to the government regardless of the administration.</p> http://www.seyfarth.com:80/publications/LR062917 Management-Side Attorney Nominated for Final Seat on NLRB http://www.seyfarth.com:80/publications/LR062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> President Trump has nominated a candidate for the final remaining vacancy on the five-member National Labor Relations Board, who, if confirmed, would give the Republicans a 3-2 majority on the NLRB.&nbsp;</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/06/29/management-side-attorney-nominated-for-final-seat-on-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=271e5909d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-271e5909d2-73202965">click here</a>.</p> http://www.seyfarth.com:80/publications/CP062917 No Summer Break for Employers: New Duties Start July 2017 http://www.seyfarth.com:80/publications/CP062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> Employers must now notify employees of workplace rights regarding domestic violence victims.&nbsp;</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/29/no-summer-break-for-employers-new-duties-start-july-2017/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=170f8b60f8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-170f8b60f8-73202953">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062917-LE If Pain, Yes Gain—Part XXXIII: Sick of This Yet? Chicago Releases Final Sick Leave Rules and Model Notice http://www.seyfarth.com:80/publications/OMM062917-LE Thu, 29 Jun 2017 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i> With the July 1, 2017 effective date only two days away, Chicago has at long last published its final paid sick leave rules.&nbsp; These rules, along with the city&rsquo;s model notice, should be incorporated into employers&rsquo; sick leave programs as they prepare for compliance. </i><o:p></o:p></p> <p class="BodySingle"> On June 28, 2017, Chicago released its final paid sick leave rules (the &ldquo;Final Rules&rdquo;). The Final Rules were issued after the conclusion of a public comment period on Chicago&rsquo;s <a href="http://www.seyfarth.com/publications/MA052617-LE">draft sick leave rules</a>.&nbsp; Employers should assess and take the Final Rules into account as they prepare for the Chicago Paid Sick Leave Ordinance&rsquo;s (&ldquo;PSLO&rdquo;) July 1, 2017 effective date.<o:p></o:p></p> <p class="BodySingle"> On July 1, Chicago will join Cook County in moving forward with its paid sick leave requirements for covered employers.&nbsp; Cook County released its own <a href="http://www.seyfarth.com/publications/MA060717-LE">final paid sick leave rules</a> earlier this month.&nbsp; <o:p></o:p></p> <p class="BodySingle"> Chicago also recently published a <a href="https://www.cityofchicago.org/content/dam/city/depts/bacp/Consumer%20Information/pslnoticefinal060717.pdf">model notice</a> that employers can use to satisfy the PSLO&rsquo;s notice and posting requirements. As a reminder, the PSLO requires employers to provide employees with individualized notice of certain sick leave rights when the first paycheck subject to the PSLO is issued to employees.&nbsp; In addition, employers must post the model notice in a conspicuous place at their Chicago business facilities.&middot;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>Interplay with Cook County Earned Sick Leave Ordinance:</strong> One antidote prescribed by the Final Rules is guidance on how employers should handle the overlapping Chicago and Cook County paid sick leave requirements.&nbsp; The Final Rules expressly state that &ldquo;[i]n the case of a conflict between the [PSLO] and the Cook County Earned Sick Leave Ordinance, the [PSLO] shall prevail within the City.&rdquo;</p> <ul> <li> <strong>&ldquo;Calendar Year&rdquo; and &ldquo;Benefit Year&rdquo; Definitions:</strong> The Final Rules define the terms &ldquo;calendar year&rdquo; and &ldquo;benefit year&rdquo; as follows: (a) &ldquo;Calendar year&rdquo; means twelve calendar months beginning at any point; and (b) &ldquo;Benefit year&rdquo; means the period that an employer sets so that all employees are synchronized to have benefits granted at the same time.</li> <li> <strong>Union Employees:</strong> The Final Rules confirm the city&rsquo;s draft paid sick leave rules&rsquo; provision about employer obligations with respect to union employees. The Final Rules explain that the PSLO does not apply to hours worked by employees covered by a collective bargaining agreement (&ldquo;CBA&rdquo;) in force on July 1, 2017.&nbsp; Employees covered by CBAs entered into after June 30, 2017 will be entitled to the PSLO&rsquo;s benefits (assuming they otherwise satisfy the law&rsquo;s eligibility and coverage standards) unless the CBA expressly waives the PSLO&rsquo;s requirements in clear and unambiguous terms.</li> <li> <strong>&ldquo;Paid Time Off&rdquo;:</strong> The Final Rules define the term &ldquo;paid time off&rdquo; to include time that an employer provides to an employee that can be used for any and all reasons in the PSLO, as well as other reasons. The Final Rules explain that where an employer&rsquo;s Paid Time Off policy meets or exceeds the PSLO&rsquo;s requirements on (1) accrual / grant of hours of paid sick leave, (2) carryover of paid sick leave from one year to the next, and (3) usage of paid sick leave, the employer does not need to provide additional leave &ldquo;or [follow] the record requirements.&rdquo; Importantly, the Final Rules expressly state that &ldquo;other requirements of the [PSLO]&hellip;must still be followed.&rdquo;</li> <li> &nbsp;<strong>Accrual of Sick Time:</strong> The Final Rules note that only hours worked within the City of Chicago count toward accrual of paid sick leave and that employers are not required to allow accrual of paid sick leave when an employee is absent on paid or unpaid leave.</li> <li style="margin-left: 80px;"> <u>Salaried, Exempt Employees</u>: Notably, the Final Rules state that salaried, exempt employees should accrue one hour of paid sick leave for each week of employment. However, where &ldquo;the salaried position is for an amount different from 40 hours worked per week,&hellip;the rate of accrual shall be 1 hour for every 40 hours of salaried work.&rdquo;</li> <li> <strong>Frontloading and Usage of Sick Leave:</strong> The Final Rules explain that employers subject to the Family and Medical Leave Act (&ldquo;FMLA&rdquo;) can avoid the PSLO&rsquo;s accrual and carryover requirements if they (a) grant covered employees 40 hours of paid sick leave no later than 180 days after the covered employee began working for the employer, <strong><u>and</u></strong> (b) make available an additional 20 hours of paid sick leave at the beginning of each subsequent benefit year to be used for FMLA purposes. In other words, the Final Rules state that employers that frontload their employees with 60 hours of paid sick leave at the start of each year will be able to avoid the PSLO&rsquo;s carryover and accrual requirements.&nbsp; Where employers do not allow employees to use the full 60-hour grant of paid sick leave for all protected reasons, including those under the FMLA, the Final Rules include complex language about tracking the reasons for which the paid sick leave is used.</li> <li> <strong>Year-End Carryover:</strong> The Final Rules state that employers must allow newly hired employees to carry over all of their earned, unused paid sick leave, up to 20 hours, at year-end. In other words, when dealing with new hires employers cannot take advantage of the PSLO&rsquo;s normal carryover provision where the unused balance gets halved. In addition, the Final Rules reiterate that a maximum of 20 hours of regular paid sick leave and 40 hours of paid sick leave for FMLA purposes may be carried over from one year to the next if a covered employee works for an employer that is subject to FMLA.</li> <li> <strong>Covered Family Member:</strong> The PSLO contains a broad list of covered family members, which includes, among other relationships, any other individual related by blood or whose close association with the employee is the equivalent of a family relationship. The Final Rules confirm that, as was noted in the city&rsquo;s draft paid sick leave rules, family member may also include a godchild, godparent, and co-parent.</li> <li> <strong>Payment of Sick Time: </strong>Employers are required to pay employees for used paid sick leave no later than the next regular payroll period beginning after the use of sick leave.</li> <li style="margin-left: 80px;"> <u>Commissioned Employees</u>: The Final Rules state that for employees who are paid on a commission basis, whether base wage plus commission or commission only, the employer must pay the employees for used paid sick leave at the hourly rate of pay based on the base wage or the applicable minimum wage, whichever is greater.</li> <li> <strong>No Reinstatement Upon Rehire:</strong> The Final Rules confirm that, unlike many paid sick leave laws and ordinances, employers have discretion when deciding whether previously earned, unused paid sick leave becomes available to a covered employee upon rehire.</li> <li> <strong>Recordkeeping Requirements:</strong> Like the Chicago draft paid sick leave rules, the Final Rules contain a provision explaining covered employers&rsquo; recordkeeping obligations.&nbsp; Employers must maintain at least 12 different types of records for a period of not less than five years. These records include the: (a) date each covered employee was eligible to use paid sick leave; (b) Number of hours of paid sick leave accrued by or awarded to each covered employee; and (c) Dates and number of hours each covered employee used paid sick leave.</li> </ul> <p> Chicago employers should take steps now to ensure that they will be able to achieve full compliance with the PSLO by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the PSLO.</li> <li> Determine whether to have a single combined policy or separate policies for Chicago and Cook County locations.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking paid sick leave.</li> <li> Prepare to comply with the PSLO&rsquo;s posting and notification requirements.</li> <li> Train supervisory and managerial employees, as well as HR, on the PSLO requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <p class="BodySingle"> <o:p></o:p></p> http://www.seyfarth.com:80/publications/MA062917-LE2 If Pain, Yes Gain–Part XXXIV: Arizona Publishes Supplemental Proposed Sick Leave Rules http://www.seyfarth.com:80/publications/MA062917-LE2 Thu, 29 Jun 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: On June 27, 2017, Arizona released a Notice of Supplemental Proposed Rulemaking interpreting and enforcing its new paid sick leave law, which goes into effect July 1, 2017.</em></p> <p> On June 27, 2017, Arizona published a <a href="https://www.azica.gov/sites/default/files/media/062317%20Notice%20Proposed%20Supplemental%20Rulemaking.pdf">Notice of Supplemental Proposed Rulemaking</a> which amends several sections of the Fair Wages and Healthy Families Act (&ldquo;the Act&rdquo;) and will be useful for employers as they wade into paid sick leave waters over the holiday weekend.&nbsp; The Notice of Supplemental Proposed Rulemaking (the &ldquo;supplemental proposed rules&rdquo;), while not a final set of rules, expands on the Industrial Commission of Arizona&rsquo;s (the &ldquo;Commission&rdquo;) paid sick leave <a href="http://www.seyfarth.com/publications/MA051017-LE2">Notice of Proposed Rulemaking</a>, which was published in May 2017.</p> <p> Here is a summary of the key updates in Arizona&rsquo;s paid sick leave supplemental proposed rules:</p> <ul> <li> <strong>Equivalent Paid Time Off</strong>: First, the supplemental proposed rules now include the phrase &ldquo;equivalent paid time off&rdquo; (defined below) when referencing earned paid sick time. This is a helpful development for employers seeking to use their current paid time off or other paid leave policies for Arizona sick leave compliance.</li> <li> <strong>Definitions:</strong> The supplemental proposed rules also add the following definitions: <ul> <li> &ldquo;<strong>Amount of earned paid sick time available to the employee</strong>&rdquo; means the amount of earned paid sick time or equivalent paid time off that is available to the employee for use <em>in the current year</em>.&nbsp; This definition, along with the two that immediately follow, will assist employers as they prepare to satisfy the Act&rsquo;s burdensome paystub notice requirements.</li> <li> &ldquo;<strong>Amount of earned paid sick time taken by the employee to date in the year</strong>&rdquo; means the amount of earned paid sick time or equivalent paid time off taken by the employee to date <em>in the current year</em>.</li> <li> &ldquo;<strong>Amount of pay the employee has received as earned paid sick time</strong>&rdquo; means the amount of pay the employee has received as earned paid sick time or equivalent paid time off to date<em> in the current year</em>.</li> <li> &ldquo;<strong>Employee&rsquo;s regular paycheck</strong>&rdquo; is defined as a regular payroll record that is readily available to employees and contains the information set forth in the Act&rsquo;s paystub notice requirements.&nbsp; The supplemental proposed rules clarify that physical or electronic paychecks or paystubs are permitted.</li> <li> &ldquo;<strong>Equivalent paid time off</strong>&rdquo; &ldquo;means paid time off provided under a paid leave policy, such as a PTO policy, that makes available an amount of paid leave sufficient to meet the accrual requirements of the Act that may be used for the same purposes and under the same conditions as earned paid sick time.&rdquo;</li> <li> &ldquo;<strong>Heath care professional</strong>&rdquo; means a physician, physician&rsquo;s assistant, registered nurse practitioner, certified nurse midwife who is a registered nurse practitioner, licensed dentist, or a behavioral health provider practicing as a psychologist, clinical social worker, family therapist, or professional counselor.</li> <li> &ldquo;<strong>Smallest increment that the employer&rsquo;s payroll system uses to account for absences or use of other time</strong>&rdquo; means the smallest increment of time that an employer utilizes, either by policy or practice, to account for employees&rsquo; absences or use of other PTO.&nbsp; This clarification will aid employers in determining what minimum increment of use they must set in order to satisfy the Act.</li> <li> <strong>Same Hourly Rate:</strong> The supplemental proposed rules also amend and reorganize the definition of &ldquo;same hourly rate&rdquo; by: (1) modifying the methods for determining &ldquo;same hourly rate&rdquo; to result in hourly rates, not lump sums; (2) referencing minimum wage in each method of determining &ldquo;same hourly rate&rdquo;; (3) amending the method for determining &ldquo;same hourly rate&rdquo; for salaried employees; (4) modifying and adding an option for determining &ldquo;same hourly rate&rdquo; for commission, piece-rate, or fee-for-service employees; and (5) adding language clarifying that &ldquo;same hourly rate&rdquo; does not include bonuses, tips, gifts, or certain other types of incentive pay.</li> </ul> </li> <li> <strong>Frontloading</strong>: The supplemental proposed rules change Section R20-5-1206&rsquo;s title to reference the ability to &ldquo;front load&rdquo; earned paid sick time, and add subsections F, G, and H to address procedures for front loading earned paid sick time and the effect of front loading on accrual and carry over requirements. The supplemental proposed rules also amend prior proposed subsection H (now subsection I) to address: (1) an employer&rsquo;s carry over obligations; (2) an employer&rsquo;s ability to permit greater carry over than that required by the Act; and (3) the impact of carry over on accrual, usage rights, and usage limits. <ul> <li> <strong>Subsection F: </strong>This subsection notably states that an employer can prorate the amount of paid sick time it provides to new hires. Specifically, an employer is not required to provide employees with additional earned paid sick time during the year in which the employee was hired if the employer provides the employee for immediate use by his or her 90th day of employment an amount of earned paid sick time that meets or exceeds the employer&rsquo;s reasonable projection of how much paid sick time the employee would have accrued from the date of hire through the end of the employer&rsquo;s benefit year at a rate of one hour for every 30 hours worked. If the employer&rsquo;s projection is too low, it must provide the employee with the difference between the projection and the actual amount of sick time the employee would have earned.</li> <li> <strong>Subsections G and I: </strong>The combination of these two subsections is the most interesting and noteworthy aspect of the supplemental proposed rules. Subsection G states that an employer that frontloads its workers at least 40 hours of paid sick leave at the start of each year is <strong><u>not</u></strong> required to provide carryover or additional accrual. Significantly, Subsection I then states that &ldquo;unless an employer: (1) elects to pay an employee for unused earned paid sick time or equivalent paid time off at the end of a year pursuant to A.R.S. &sect; 23-372(D)(4); <strong><u>or</u></strong> (2) meets the requirements of subsections (G) or (H), unused earned paid sick time and equivalent paid time off may be carried over to the next year&hellip;&rdquo;&nbsp; Based on this language, it appears that if an employer frontloads its employees with 40 hours of paid sick leave at the start of each benefit year, it does <strong><u>not</u></strong> have to either allow year-end carryover or cash out unused sick time at year end.&nbsp; Although still in draft form, this is a welcome proposed update for Arizona employers. <ul> <li> Employers should be aware of a potential side effect of the above proposed language stating that frontloading 40 hours of paid sick leave each year alone will absolve their year-end carryover requirements.&nbsp; The cover page to the supplemental proposed rules states that &ldquo;[t]he Act authorizes the [Commission] to &lsquo;enforce and implement&rsquo; both the minimum wage and earned paid sick time provisions and promulgate regulations consistent with the articles.&rdquo; Unfortunately, the above proposed amendment, which is certainly favorable to employers, could be read as inconsistent with the Act&rsquo;s provision on year-end carryover.&nbsp; That being said, because the Commission is tasked with enforcing the Act, and the updated frontloading language was proposed by the Commission itself, if this same language appears in Arizona&rsquo;s final sick leave rules, employers likely can take advantage of the language in practice barring any future contrary judicial interpretations or administrative guidance.&nbsp;</li> </ul> </li> </ul> </li> <li> <strong>Recordkeeping</strong>: The supplemental proposed rules make several updates to employers&rsquo; recordkeeping requirements, including adding a requirement to maintain records concerning employees&rsquo; earned paid sick time balances. The supplemental proposed rules state that employers also should retain records of: (1) the amount of earned paid sick time available to the employee; (2) the amount of earned paid sick time taken by the employee to date in the year, and (3) the amount of pay the employee has received as earned paid sick time.</li> </ul> <p> The Act goes into effect this Saturday, July 1, 2017. While unlikely that the state will release final paid sick leave rules before the effective date, employers nevertheless should continue to monitor the Commission&rsquo;s sick leave website and otherwise take steps to comply with the Act by July 1.</p> <p> To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/publications/wc062917 U.S. Supreme Court’s Narrow Application Of Specific Jurisdiction Will Impede Forum Shopping In Class Actions http://www.seyfarth.com:80/publications/wc062917 Thu, 29 Jun 2017 00:00:00 -0400 <p> In&nbsp;<a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/06/16-466_1qm1.pdf"><em>Bristol-Myers Squibb Company v. Superior Court of California, et al.,</em>&nbsp;</a>No. 16-466 (U.S. June 19, 2017), 86 California residents and 592 non-residents from 33 other states sued Bristol-Myers in California &nbsp;state court, asserting California state law claims for product liability, negligent representation, and misleading advertising.<em>&nbsp;Id</em>. at 2. Plaintiffs specifically alleged that the company&rsquo;s drug, Plavix, damaged their health.&nbsp;</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/u-s-supreme-courts-narrow-application-of-specific-jurisdiction-will-impede-forum-shopping-in-class-actions/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=b225e50a47-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-b225e50a47-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT063017 The Week in Weed: June 30, 2017 http://www.seyfarth.com:80/publications/TBT063017 Thu, 29 Jun 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/the-week-in-weed-june-30-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=eaa8601b78-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-eaa8601b78-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062917-RE HVCRE: Some Answers on the Horizon? http://www.seyfarth.com:80/publications/OMM062917-RE Thu, 29 Jun 2017 00:00:00 -0400 <div> Since its implementation, the High Volatility Commercial Real Estate (HVCRE) rules have created certain questions and concerns for banks and borrowers alike in real estate lending transactions. &nbsp;Bi-partisan legislation (H.R. 2148) introduced by Congressmen Robert Pittenger (R-NC) and David Scott (D-GA)<sup>1</sup> in the House of Representatives would address some of the market issues arising out of the rules&rsquo; provisions.&nbsp;</div> <div> &nbsp;</div> <div> Currently, a loan to a borrower for acquisition, development or construction (commonly referred to as an ADC loan) may avoid HVCRE classification with its accompanying heightened reserve requirements by, among other things, satisfying a regulatory agency-set maximum LTV and by a borrower demonstrating that it has (i) contributed cash or unencumbered readily marketable assets, (ii) paid certain development expenses out of pocket, or (iii) contributed land, all aggregating at least 15% of the real estate&rsquo;s &ldquo;as completed&rdquo; appraised value. &nbsp;</div> <div> &nbsp;</div> <div> HVCRE&rsquo;s 15% rule presents a number of concerns including that (i) it restricts a borrower&rsquo;s ability to include the full value of the real property as equity, (ii) it traps a borrower&rsquo;s initial capital (equity) contribution as well as capital &ldquo;internally generated&rdquo; by the project throughout the life of the loan, and (iii) it fails to define adequately when a loan converts to permanent financing and thereafter becomes exempt from HVCRE. &nbsp;Let&rsquo;s explore these three concerns further.</div> <div> &nbsp;</div> <div> First, current language penalizes borrowers as it does not permit contribution credit for the appreciation in value of the land. &nbsp;H.R. 2148 revises the definition of &ldquo;value of real property&rdquo; to include the appraised value of the real property regardless of whether the value comes from cash used to purchase the property or its appreciation.&nbsp;</div> <div> &nbsp;</div> <div> Second, the existing rule requires that &nbsp;all contributed equity remain in the project until the loan is paid in full or the loan is converted to permanent financing. &nbsp;Regardless of a lender&rsquo;s equity requirements in construction lending generally, the application of HVCRE can serve to trap a borrower&rsquo;s cash in the project and restrict the parties&rsquo; ability to negotiate for any return of capital consistent with the lender&rsquo;s applicable underwriting guidelines. &nbsp;For example, if the applicable construction loan requires the borrower to contribute equity in the amount of 40% of the project&rsquo;s as-completed appraised value, and the borrower has negotiated with the lender for an earnout at stabilization that would reduce the borrower&rsquo;s equity to 15% of the as-completed appraised value, the current HVCRE rules would prohibit lender from advancing the earnout. &nbsp;H.R. 2148 does not appear to prohibit internally-generated capital from being withdrawn from the project. &nbsp;While it&rsquo;s not free from doubt, H.R. 2148 can be read to mean that capital contributed over and above the 15% threshold need not remain in the project so long as the borrower continues to satisfy the minimum equity requirement of 15%. &nbsp;Therefore, and returning to our example, the new bill may permit the lender to advance the negotiated earnout.</div> <div> &nbsp;</div> <div> Third, while H.R. 2148 provides that a loan on property where construction has been completed and with sufficient cash flow to support debt service and property expenses may be reclassified as a non-HVCRE ADC loan in accordance with the bank&rsquo;s applicable permanent loan underwriting criteria, the bill does not define when a project is considered &ldquo;complete&rdquo;. &nbsp;The current Frequently Asked Questions<sup>2</sup> state that a certificate of occupancy is not sufficient to transform an HVCRE loan into permanent financing. &nbsp;Accordingly, questions remain as to whether a project will be considered complete at the time the lender advances a final draw, when an open punchlist is complete, or when some other test is met.</div> <div> &nbsp;</div> <div> The new bill also seeks to better define HVCRE ADC loans generally, as well as to provide for an exemption to loans made prior to January 1, 2015. &nbsp;Additionally, new acquisition financings or refinancings, in each case of an existing income producing property, secured by a mortgage on such property, may be excluded should the bill become law. &nbsp;Similarly, mortgage loans for improvements to existing income-producing real property would not be HVCRE if the property&rsquo;s cash flow covered debt service and expenses, as determined by the lender in accordance with its underwriting criteria for permanent financing.&nbsp;</div> <div> &nbsp;</div> <div> Interestingly, the proposed legislation does not address the issue of whether mezzanine debt can be treated as a qualifying capital contribution or whether preferred equity may be treated the same as common equity for HVCRE purposes.</div> <div> &nbsp;</div> <div> Although a number of industry groups have lent their support in favor of H.R. 2148 and would welcome the changes incorporated therein, it remains to be seen whether the bill will be reported to the full House by the House Committee on Financial Services, and if so reported, whether it will be in the same form as it was introduced. &nbsp;Currently, no similar bill has been introduced in the Senate. &nbsp;Those following the bill&rsquo;s progression should not dismiss the possibility that in lieu of its passage, changes may come about in the form of agency rulemaking or additional or replacement FAQs. &nbsp;Alternatively, if the Financial CHOICE Act of 2017, recently passed by the House, ultimately becomes law, certain banks may be exempt from the HVCRE rules altogether. &nbsp;In the meantime, lenders and borrowers will continue to face questions and concerns as they close ADC loans.</div> <div> &nbsp;</div> <div> ___________</div> <div> &nbsp;</div> <div> <sup>1</sup> Additional co-sponsors include Mark Walker (R-NC), Dennis Ross (R-FL), Ann Wagner (R-MO), Andy Barr (R-KY), Scott Tipton (R-CO), and Steve Stivers (R-OH).</div> <div> <sup>2</sup>&nbsp;Frequently Asked Questions on the Regulatory Capital Rule dated April 6, 2015, issued by the Office of the Comptroller of the Currency, the Federal Reserve Board, and the Federal Deposit Insurance Corporation.</div> http://www.seyfarth.com:80/publications/OMM062917-INTL Changes to the UK PSC Regime http://www.seyfarth.com:80/publications/OMM062917-INTL Thu, 29 Jun 2017 00:00:00 -0400 <div> In April last year, the UK Government introduced changes to the Companies Act 2006 requiring most companies and LLPs to produce, keep and maintain a register of any people or relevant legal entities that have significant control over that company or LLP (broadly through holding over 25% of shares or voting rights, or otherwise having the right to exercise significant control). &nbsp; Our Client Alert outlining the &lsquo;People with Significant Control&rsquo; (or PSC) regime can be viewed <a href="http://www.seyfarth.com/publications/MA032316-INT">here</a>.</div> <div> &nbsp;</div> <div> On June 26, 2017, regulations extending the PSC regime came into force in order for the UK to comply with the European Fourth Money Laundering Directive ((EU) 2015/849). The regulations introduce three significant changes to the PSC regime:</div> <div> &nbsp;</div> <ul> <li> Extending the PSC regime to certain companies listed on Alternative Investment Market (AIM) and the NEX Exchange Growth Market (NEX);</li> <li> Extending the PSC regime to Scottish limited partnerships, general Scottish partnerships where all partners are corporate bodies and to UK unregistered companies;</li> <li> Requiring each entity subject to the PSC regime to update its PSC register within 14 days of any change occurring and to notify Companies House of such changes within a further 14 days.</li> </ul> <div> &nbsp;</div> <div> Those entities already subject to the PSC regime and those new entities referred to above will have to comply with the obligations to maintain and file the required information from July 24, 2017, following an initial four week transitional period. &nbsp;During the period to July 24, 2017, the entities referred to above should identify their PSCs and, within 14 days from the date the relevant information is obtained, create their own PSC register. &nbsp;They will then have a further 14 days to notify the PSC information to Companies House.</div> <div> &nbsp;</div> <div> The requirement for a company to file PSC information as part of its annual Confirmation Statement has been removed. In filing a Confirmation Statement, the company must now confirm that it has complied with the requirement to file all changes to its PSC register.&nbsp;</div> <div> &nbsp;</div> <div> Companies traded on an EEA regulated market and other specified markets will remain exempt from the PSC regime. &nbsp;Similarly, non-UK incorporated companies traded on AIM will stay outside the scope of the PSC regime.</div> <div> &nbsp;</div> <div> The amended PSC regime will result in a significant change to the disclosure of M&amp;A transactions. &nbsp;Whereas previously a target company would not disclose a change of ownership in the company until it filed its annual Confirmation Statement, a target will now be required to update its PSC register within 14 days of a change of control and notify that change to Companies House within a further 14 days. &nbsp;Accordingly, a change of control will now become public within 28 days of closing.</div> http://www.seyfarth.com:80/publications/ts062817 Illinois Federal Court Allows Inevitable Disclosure Theory in Defend Trade Secrets Act Case http://www.seyfarth.com:80/publications/ts062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> On May 11, 2017, a <a href="http://www.seyfarth.com/dir_docs/publications/MolonvNidec.pdf">Northern District of Illinois federal court</a> ruled that a Plaintiff properly alleged misappropriation under both the federal Defend Trade Secrets Act (DTSA) and the Illinois Trade Secrets Act (ITSA) in a <a href="http://www.noncompetereport.com/wp-content/uploads/sites/635/2017/05/Molon-Motor-v.-Nidec-Motor-ND-Ill.-05.11.17.pdf">case</a> where the employee downloaded files onto a personal thumb drive and then went to a competitor.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/dtsa/illinois-federal-court-allows-inevitable-disclosure-theory-in-defend-trade-secrets-act-case/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=ab81118fad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-ab81118fad-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/TheReaList-June2017 The ReaList - Volume 1, Edition 3 http://www.seyfarth.com:80/publications/TheReaList-June2017 Wed, 28 Jun 2017 00:00:00 -0400 <p> <span style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice.&nbsp;</span><span style="color: rgb(82, 97, 102); font-size: 14px; font-family: Arial, sans-serif;">The ReaList newsletter covers New York real estate news, events, and trends.</span></p> <p> <strong>Construction:</strong></p> <p> <strong>James A. Farley Post Office Building Redevelopment Project</strong><br /> The project documentation for the redevelopment of the James A. Farley Post Office Building has recently been finalized. The Farley Building (the post office building opposite Penn Station) is being transformed by the Empire State Development Corporation into a mixed use facility consisting of a new train station and train hall (Moynihan Station) and commercial space (office, retail and hospitality). The redevelopment of the Farley Building is the first of two steps in implementing Governor Cuomo&rsquo;s vision for the Penn-Farley Complex - the second step of which is the overhaul and renovation of the adjoining Penn Station.<br /> <br /> A joint venture of the Related Companies and Vornado Realty will use Skanska USA for the design-build redevelopment of the Farley Building. The site will be become a world class transportation facility over the next several years. The existing fa&ccedil;ade of the Farley Building will be retained, while the internal area will feature, in addition to the commercial space, a 210,000 square foot train hall (roughly the same size as the Grand Central Station concourse). A key feature of the train hall will be a giant skylight roof. When completed, Moynihan Station in the Farley Building will be the new site for Amtrak&rsquo;s and the Long Island Rail Road&rsquo;s train services in and out of New York City.<br /> <br /> Seyfarth Shaw represented Skanska, USA on the project.</p> <p> If you have any questions please contact <a href="http://www.seyfarth.com/BennettGreenberg">Bennett Greenberg</a> or <a href="http://www.seyfarth.com/AlisonAshford">Alison Ashford</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate:</strong></p> <p> <strong>RPAPL Section 881: Access to Adjacent Property To Install Protective Measures</strong><br /> Property owners often need a license to enter an adjacent property in order to install protective measures in connection with repairs or improvements to their own properties.&nbsp; In that situation, a license agreement is typically negotiated between the two adjacent owners.&nbsp; However, if such an agreement cannot be reached, New York&rsquo;s Real Property Actions and Proceedings Law Section 881 (&ldquo;Section 881&rdquo;) allows the owner seeking to perform the improvements or repairs to commence a special proceeding in New York Supreme Court to obtain a court-ordered license to enter the adjacent property.<br /> <br /> Typically, Section 881 license applications to install protective measures on adjacent properties are granted.&nbsp; The courts will grant an access license necessitated by elective developments and improvements on the adjacent property, not just mandatory work (such as fa&ccedil;ade repairs in connection with New York City&rsquo;s Local Law 11). Courts have recognized the rights of owners to improve their property, not just their obligations to maintain it.&nbsp; Accordingly, licenses to install protective measures on adjacent property pursuant to Section 881 have been granted for both maintenance and improvements.&nbsp; However, courts have imposed various conditions on the grant of such licenses including, providing insurance, indemnities, undertakings and limiting the scope and duration of work.<br /> <br /> In <a href="http://www.nycourts.gov/reporter/3dseries/2016/2016_02926.htm"><em>DDG Warren v. Assouline Ritz</em></a><em>,&nbsp;</em>the&nbsp;Appellate Division, First Department&nbsp;also recognized that the owner whose property needs to be accessed has neither sought the intrusion nor derives any benefit from it and, accordingly, should not have to bear the costs resulting from the access.&nbsp; Those costs include attorneys&rsquo; fees, engineering fees, architectural fees and compensation for loss of, or diminished use of, parts of the property, such as yards, terraces, balconies and roof decks.<br /> <br /> The Appellate Division, First Department in <a href="http://law.justia.com/cases/new-york/appellate-division-first-department/2017/3721-161136-15.html"><em>In re Van Dorn Holdings, LLC v. 152 W. 58th Owners Corp</em>.</a>,&nbsp;recently reiterated the foregoing by affirming an award of a monthly license fee until work was completed to an owner deprived of the use of a portion of his property.&nbsp; The Appellate Division also affirmed the award of attorneys&rsquo; fees and engineers&rsquo; fees, noting that an adjacent property owner &ldquo;should not be put in a position of either having to incur the costs of a design professional to ensure [the] work will not endanger his property, or having to grant access without being able to conduct a meaningful review of [the] plans.&rdquo;<br /> <br /> If you have any questions please contact <a href="http://www.seyfarth.com/AdrianZuckerman">Adrian Zuckerman</a> or <a href="http://www.seyfarth.com/ThomasGleason">Tom Gleason</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>Purchasers of Real Property Should Carefully Consider Their Choice of Business Entity</strong><br /> Purchasers of real property should carefully consider the business entity they will use to acquire and hold such property.&nbsp; Entity choice has important ramifications for a business and its owners, including but not limited to issues impacting management, taxation, distributions of property, limitations on ownership, and owner liability.&nbsp; The following are some issues to take into account with respect to whether to acquire real property or other assets using (1) an S corporation; (2) a limited liability company (LLC); or (3) a limited partnership (LP).&nbsp; These are some of the more common choices; however, there are other possibilities (e.g., C corporations and general partnerships) that are beyond the scope of this summary.&nbsp; Because the optimal choice of entity will depend on a purchaser&rsquo;s particular situation and plans, consultation with knowledgeable professionals is important before a final determination is made.<br /> &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;<br /> S corporations and LLCs offer their owners protection from personal liability for the entity&rsquo;s obligations.&nbsp; LPs offer such protection to their limited partners, but not their general partners.&nbsp; In addition, S corporations and LLCs offer their owners the opportunity to actively participate in the management and operation of the business; however, LPs require their limited partners to assume passive roles while the general partner assumes the management role.&nbsp; S corporations and LLCs may be formed and owned by a single shareholder or member (in such case, an LLC will be disregarded as a separate entity for federal income tax purposes but still considered a separate entity for liability purposes) while a limited partnership must have at least two partners, with at least one partner as a general partner.&nbsp; There are restrictions relating to S corporations (e.g., with respect to who may be shareholders, and issuing more than one class of equity) that are not applicable to LLCs and LPs.<br /> &nbsp;<br /> All three entities considered offer pass-through tax treatment to their owners such that no federal income taxes are paid at the business level.&nbsp; Rather, profit or loss passes through to the tax returns of the entity&rsquo;s owners.&nbsp; S corporations may offer advantages over LLCs and LPs because shareholders can be treated as employees (which is not possible in a tax partnership) and paid a reasonable salary.&nbsp; Earnings in excess of any salaries generally will not be subject to self-employment tax.&nbsp; Other important tax issues that should be considered include relevant state taxation, and the possibility of special allocations of profit and loss (not available in S corporations).</p> <p> In many instances, LLCs and LPs will offer more flexibility for their owners than an S corporation with respect to investments in real estate (and LLCs will frequently represent the most flexible option).&nbsp; While S corporations, LLCs and LPs all allow for tax-free contributions of property to such entities by their shareholders, members, or partners, respectively, S corporations generally cannot distribute such property to their shareholders without giving rise to a taxable event for such shareholders if the value of the property exceeds its basis.&nbsp; LLCs and LPs, on the other hand, offer the potential for tax-free distributions of assets, including real property, to their members/partners.&nbsp; There are, however, certain circumstances in which an S corporation may nevertheless be preferable to an LLC or an LP.&nbsp; For all of the foregoing reasons, and more, it is important to be attentive to choice of entity and consult with advisors as needed.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/StanleyBloch">Stan Bloch</a> or <a href="http://www.seyfarth.com/JoshuaLake">Josh Lake</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Litigation:</strong></p> <p> <strong>Additional Insureds May Be Covered Only As To Injuries &ldquo;Proximately Caused&rdquo; by the Named Insured</strong><br /> Many in the construction industry have accepted that insurance policies providing coverage to additional insureds for bodily injury caused in whole or in part by the named insured include coverage for injuries arising from any act or omission by the named insured that contributed in some way to the injury.&nbsp; However, a recent decision by the New York Court of Appeals indicates that, at least for some insurance policies, only acts or omissions that would give rise to legal liability on the part of the named insured are covered.</p> <p> In <a href="https://www.nycourts.gov/ctapps/Decisions/2017/Jun17/57opn17-Decision.pdf"><em>The Burlington Insurance Company v. NYC Transit Authority, et al.</em></a><em>,</em> the New York City Transit Authority (&ldquo;NYCTA&rdquo;) and other New York City entities were listed as additional insureds on an insurance policy taken out by a private contractor, Breaking Solutions, Inc. (&ldquo;BSI&rdquo;) in connection with a construction project.&nbsp; The policy provided NYCTA and the other additional insureds with insurance coverage for bodily injuries &ldquo;caused, in whole or in part, by&rdquo; the &ldquo;acts or omissions&rdquo; of BSI.&nbsp; During construction, an NYCTA employee was injured when a BSI machine touched an electrical cable and set off an explosion.&nbsp; BSI had not acted negligently, and was not liable to the employee, because there was no way BSI could have known about the cable -- it was buried as a result of <em>NYCTA&rsquo;s</em> negligence.&nbsp; NYCTA nonetheless argued that the insurance policy should cover the employee&rsquo;s injury because the injury would not have occurred but for BSI&rsquo;s operation of its machine.&nbsp;</p> <p> The Court of Appeals, with one judge dissenting, concluded that, based upon the language of the insurance policy, it was not enough for BSI&rsquo;s actions to be a &ldquo;but for&rdquo; cause of the injury.&nbsp; To be covered by the insurance policy, the named insured&rsquo;s actions would have to be a &ldquo;proximate cause&rdquo; of the employee&rsquo;s injury -- in other words, the named insured must have acted in a manner that would make the named insured legally at fault for the injury, such as by acting negligently.&nbsp;</p> <p> The <em>Burlington</em> decision is based upon specific policy language.&nbsp; It is accordingly critical to review the policy language at issue in a particular case.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/JonathanWolfert">Jonathan P. Wolfert</a>&nbsp;or <a href="http://www.seyfarth.com/OwenWolfe">Owen R. Wolfe</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/EL062817 French Employment Law Reforms Awaited Under Macron’s Presidency http://www.seyfarth.com:80/publications/EL062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> French Employers should brace themselves for changes in the employment and labour law arena. However at this stage nothing is set in stone, and any reforms may be slow in coming.&nbsp; As France does not have the equivalent of a US &ldquo;Presidential Decree,&rdquo; Macron&rsquo;s government will need to get the Parliament&rsquo;s buy in.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/french-employment-law-reforms-awaited-under-macrons-presidency/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=cf93ed29b4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-cf93ed29b4-73202969">click here</a>.</p> http://www.seyfarth.com:80/publications/CDL062817 What You Need to Know About the Petya Ransomware Attack http://www.seyfarth.com:80/publications/CDL062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Yesterday, organizations around the world were hit by yet another ransomware attack.&nbsp; Similar to the recent WannaCry attacks, the Petya attack works to encrypt documents and files and subsequently demands a ransom to unlock them.&nbsp; Unlike WannaCry, it is believed that the Petya attack spreads internally through an organization (rather than across the Internet) using a vulnerability called &ldquo;EternalBlue&rdquo; in Microsoft Windows.&nbsp;</p> <p> To read the full blog post, <a href="http://www.carpedatumlaw.com/2017/06/need-know-petya-ransomware-attack/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=3b564ecf5a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-3b564ecf5a-73202957">click here</a>.</p> http://www.seyfarth.com:80/publications/BIO062817 <em>Sandoz v. Amgen</em>: The Latest in Biosimilar “Dances” http://www.seyfarth.com:80/publications/BIO062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Finding against the Federal Circuit once again on a patent case, the Supreme Court issued a unanimous decision in <a href="https://www.supremecourt.gov/opinions/16pdf/15-1039_1b8e.pdf"><em>Sandoz v. Amgen </em></a>relating to the interpretation of the Biologics Price Competition and Innovation Act of 2009 (&ldquo;BPCIA&rdquo;) in its first decision on the Act.&nbsp; The Supreme Court&rsquo;s&nbsp;decision firmly establishes the availability of a third biosimilar &ldquo;dance,&rdquo; at least as far as Federal law is concerned.</p> <p> To read the full blog post, <a href="http://www.bioloquitur.com/sandoz-v-amgen-latest-biosimilar-dances/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=ae6c9cb731-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-ae6c9cb731-73202949">click here</a>.</p> http://www.seyfarth.com:80/publications/ada062817 Plaintiffs Score Another Victory in a Website Accessibility Lawsuit http://www.seyfarth.com:80/publications/ada062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Within a week after a Florida federal judge handed down a <a href="http://www.adatitleiii.com/2017/06/first-federal-court-rules-that-having-an-inaccessible-website-violates-title-iii-of-the-ada/" target="_blank">trial verdict</a>&nbsp;finding that Winn Dixie had violated Title III of the ADA by having a website that could not be used by the blind plaintiff, U.S. District Judge John Walter of the Central District of California <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/06/Hobby-Lobby-Order.pdf" target="_blank">ruled</a>&nbsp;that blind plaintiff Sean Gorecki could continue his lawsuit against retailer Hobby Lobby about the accessibility of its website. &nbsp;</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/plaintiffs-score-another-victory-in-a-website-accessibility-lawsuit/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=ab5d8d95c0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-ab5d8d95c0-73202941">click here</a>.</p> http://www.seyfarth.com:80/news/passantino062817 Alex Passantino quoted in SHRM http://www.seyfarth.com:80/news/passantino062817 Wed, 28 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 28 story from SHRM, &quot;Labor Department Seeks More Information on Overtime Rule,&quot; on how new developments on the overtime rule could be brewing, as the U.S. Department of Labor (DOL) recently sent a request for information (RFI) on the 2016 overtime rule to the Office of Information and Regulatory Affairs. Passantino said that more rulemaking is certainly a possibility, but noted that there is no requirement that anything be done. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-rfi.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/leonbloomberg062717 Leon Rodriguez quoted in Bloomberg http://www.seyfarth.com:80/news/leonbloomberg062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 27 story from Bloomberg, &quot;Trump Travel Ban Ruling Yields &lsquo;Bona Fide&rsquo; Government Confusion,&quot; on the Supreme Court&rsquo;s decision to allow the government to deny entry to people from six countries who don&rsquo;t have existing ties to the U.S. -- language that requires the government to figure out what it means to have a &ldquo;bona fide&rdquo; relationship with American residents or entities. Rodriguez said that you have to take an order that at the end of the day is pretty vague and translate it into something that real people can implement, in real time. You can read the <a href="https://www.bloomberg.com/news/articles/2017-06-27/trump-travel-ban-ruling-yields-bona-fide-government-confusion">full article here</a>.</p> http://www.seyfarth.com:80/news/lutkus062717 Richard Lutkus quoted in Law360 http://www.seyfarth.com:80/news/lutkus062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in a June 27 story from Law360, &quot;Apple, Cisco Insurance Venture Could Cue Competitors,&quot; on how Apple and Cisco Systems are pushing for companies using their products to receive a discount on cybersecurity insurance. Lutkus said that if there is any discount, it will be based on circumstances where the insurer has the opportunity to know more about the integration and how it reacts in real-life penetration tests.</p> http://www.seyfarth.com:80/news/rodriguezreuters062717 Leon Rodriguez quoted in Reuters http://www.seyfarth.com:80/news/rodriguezreuters062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 27 story from Reuters, &quot;Some would-be immigrants left in limbo after Supreme Court travel ban order,&quot; on how diversity visa applicants are among those in limbo after the Supreme Court&#39;s travel ban ruling. Rodriguez said that, absolutely, diversity visas will be affected. You can read the <a href="https://www.reuters.com/article/us-usa-court-immigration-visas-idUSKBN19I2VJ">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/news/perellis062717 Andrew Perellis quoted in Compliance Week http://www.seyfarth.com:80/news/perellis062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Andrew Perellis was quoted in a June 27 story from Compliance Week, &quot;New DOJ policy limits settlement relief options,&quot; on whether the EPA will decide to follow the Justice Department&#39;s lead or continue allowing third-party SEPs in administrative enforcement actions. Perrellis said that while this memo doesn&#39;t directly affect the EPA&#39;s SEP policy for settlements that don&#39;t involve the Department of Justice, you may see that the EPA is more reluctant to proceed down that path.</p> http://www.seyfarth.com:80/publications/TBT0622717 New York Medical Marijuana: Can the Fire Keep Burning? http://www.seyfarth.com:80/publications/TBT0622717 Tue, 27 Jun 2017 00:00:00 -0400 <p> New York state&rsquo;s Medical Marijuana Program historically has been one of the most restrictive in the United States with strict limitations on the number of licensed producers and various barriers preventing patients from accessing medical cannabis. However, recent expansions to New York&rsquo;s qualifying conditions and changes to the licensing requirements for medical professionals will allow more patients to participate in the program. &nbsp;</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/new-york-medical-marijuana-can-the-fire-keep-burning/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=17ded3fbe2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-17ded3fbe2-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/ada062717 Utah Is a New Hotbed of ADA Title III Federal Suits http://www.seyfarth.com:80/publications/ada062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Utah used to be a good place for public accommodations that did not want to be sued for ADA Title III violations.&nbsp; In 2013, 2014, and 2015 combined, plaintiffs only filed a total of eight such lawsuits in federal court (1, 6, and 1, respectively). &nbsp;</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/utah-is-a-new-hotbed-of-ada-title-iii-federal-suits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=484eea781f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-484eea781f-73202941">click here</a>.</p> http://www.seyfarth.com:80/publications/wse062717 OSHA Delays Electronic Filing Date for Injury and Illness Records Until December 1, 2017 http://www.seyfarth.com:80/publications/wse062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Under OSHA&rsquo;s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA. &nbsp;</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-delays-electronic-filing-date-for-injury-and-illness-records-until-december-1-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=133dce4134-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-133dce4134-73179581">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062717 DOL Sends OT Request for Information to White House for Review http://www.seyfarth.com:80/publications/WH062717 Tue, 27 Jun 2017 00:00:00 -0400 <p> Today, the DOL&rsquo;s Wage &amp; Hour Division (WHD) sent its <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/request-for-information-on-ot-rules/" target="_blank">anticipated</a> <a href="https://www.dol.gov/newsroom/releases/opa/opa20170627" target="_blank">Request for Information (RFI) on the overtime rule</a> to the Office of Management and Budget&rsquo;s Office of Information and Regulatory Affairs (OIRA). Review of the RFI by OIRA is one of the final steps before publication in the Federal Register.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/ot-rfi-to-white-house/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=ad33d4be39-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-ad33d4be39-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062617b They’re Back … DOL Announces the Return of Opinion Letters http://www.seyfarth.com:80/publications/WH062617b Tue, 27 Jun 2017 00:00:00 -0400 <p> In the second bit of wage hour news today, and in advance of Secretary Acosta&rsquo;s hearing before a Senate Appropriations subcommittee, the Department of Labor announced&nbsp;<a href="https://www.dol.gov/newsroom/releases/whd/whd20170627" target="_blank">the return of opinion letters</a>.&nbsp;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/the-return-of-opinion-letters/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=2e63d773ed-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-2e63d773ed-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/corpcouns062617 Kristina Launey and Daniel Whang authored an article in Corporate Counsel http://www.seyfarth.com:80/publications/corpcouns062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Kristina Launey and Daniel Whang authored a June 26 article in Corporate Counsel, &quot;A Possible Landmine for Employers: The Opportunity to Work Act.&quot; The article discusses the California Legislature&#39;s proposed Opportunity to Work Act.</p> http://www.seyfarth.com:80/publications/WLS062617 The Future of Work: Using the Gig Economy to Your Advantage http://www.seyfarth.com:80/publications/WLS062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy &ndash; that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years.</p> <p> To read the full blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/06/the-future-of-work-using-the-gig-economy-to-your-advantage/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=4b1342a030-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-4b1342a030-73179577">click here</a>.</p> http://www.seyfarth.com:80/publications/WH062617 Mandatory Arbitration, Class Waivers, and the Future of Wage-Hour Litigation: 6th Circuit Shows One Reason Why High Court Rejection of D.R. Horton Theory Would Not Kill Collective Actions http://www.seyfarth.com:80/publications/WH062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Employers have faced questions about the enforceability of arbitration agreements with class and collective action waivers since the NLRB&rsquo;s highly controversial <em>D.R. Horton</em> decision in 2012, which held that the waivers violate employees&rsquo; right to engage in protected concerted activity.&nbsp;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/arbitration-agreements/dr-horton-theory-collective-actions/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=869271dca4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-869271dca4-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/ilo062617 Jonathan Wolfert and Owen Wolfe authored an article in International Law Office http://www.seyfarth.com:80/publications/ilo062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Jonathan Wolfert and Owen Wolfe authored a June 26 article in International Law Office, &quot;New York&#39;s scaffold law may not impose strict liability.&quot; The article discusses a recent decision by the New York Court of Appeals which indicates that the common understanding of the New York scaffold law is wrong. You can read the <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/New-Yorks-scaffold-law-may-not-impose-strict-liability?utm_source=Twitter&amp;utm_medium=Tweet&amp;utm_content=Newsletter-35748&amp;utm_campaign=Twitter-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM062617-LE The Future of Dodd-Frank: Where is it Going? http://www.seyfarth.com:80/publications/OMM062617-LE Mon, 26 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Just last week Steve Mnuchin, the Secretary of the Treasury, put forth the first of several Reports proposing financial reforms.&nbsp; Much of the Report makes sweeping changes to Dodd- Frank, the legislation put in place after the 2008 financial crisis.&nbsp; The Report comes on the heels of the Financial Choice Act, introduced by House Republicans, which also proposes repealing key provisions of Dodd-Frank. &nbsp;These actions are the opening salvo in what is expected to be a protracted and complicated effort to curb the regulations that make up Dodd-Frank, which is considered by many Republicans &nbsp;to be legislation which has stifled economic growth and hurt the banking industry.&nbsp; This One Minute Memo will update you on both initiatives, including efforts to curb the power of the CFPB.</em></p> <p> When Steve Mnuchin was selected as Treasury Secretary in November 2016 one of the big questions raised was what would happen to Dodd-Frank, the 2010 sweeping legislative initiative of the Obama administration intended to prevent the recurrence of events that caused the 2008 financial crisis. &nbsp;Last week the Trump administration issued a 149 page Report outlining its goals for financial reform and discussing proposed changes to the legislation. &nbsp;The Report, prepared &nbsp;by Mnuchin, who had been&nbsp;tasked to provide these recommendations by the President, mostly calls for rolling back the new powers Congress gave to regulatory agencies as a result of Dodd-Frank. Ensuring his view was clear,&nbsp; Mnuchin told a Senate panel after release of the Report that, if he &ldquo;were King for a day,&rdquo; he would repeal Dodd-Frank in its entirety.</p> <p> <strong>The Report</strong></p> <p> The Report recommended reducing the powers of the Consumer Financial Protection Bureau. Since its inception the Bureau has recovered almost $12 billion dollars as a result of the aggressive stance it has taken with respect to enforcement actions it commenced on behalf of consumers. &nbsp;Mnuchin recommended abolishing the agency&rsquo;s independent funding stream and that it be replaced by a more traditional congressional appropriations process. &nbsp;He also urged that&nbsp;the President expressly be given the authority to fire the Bureau&rsquo;s director, where this authority is presently being questioned.&nbsp;Also, in keeping with his initial observations about Dodd-Frank in November, the Report also recommended reducing the oversight of large financial institutions, and providing more regulatory relief to&nbsp;smaller banks, so as to loosen restrictions with respect to mortgage lending.&nbsp; Concerns about decreased lending as a result of Dodd-Frank were a large part of Mnuchin&rsquo; s platform when nominated.&nbsp; It was recently reported in the Wall Street Journal that three million first-time home buyers were shut out of the market over the past decade due to credit tightening, which has created a major drag on&nbsp;the housing market. &nbsp;The Report also urges other changes to regulations affecting lending, noting that many of the regulations are now too conservative, including a rule that requires companies that pool and securitize mortgages to retain a portion of these loans to protect against loan failure.&nbsp; Many Republicans lauded these recommendations because they think the lifting of these regulations will significantly improve the housing market, reduce the cost of loans, and allow for&nbsp;improved economic growth.</p> <p> Another significant recommendation concerns oversight of the Financial Stability Oversight Council, which was created by Dodd-Frank to ensure that risks that might be missed by individual regulatory agencies overseeing one industry are more quickly identified when there is shared oversight by the larger group.&nbsp; The Treasury Secretary is the Chairman of the Council which includes the heads of the Federal Reserve, the FDIC, the Office of the Comptroller of the Currency, and five other regulators. &nbsp;The group has the power to identify any entity as a potential risk to the financial system and subject that entity&nbsp;to the same level of regulation that is now imposed on our largest financial institutions. &nbsp;The group&#39;s role, the Report suggested,&nbsp; &ldquo;should be broadened&rdquo;&nbsp; to allow it to pick one agency to lead in situations where several agencies may be involved, and to coordinate data sharing among them.&nbsp; Not surprisingly Mnuchin&rsquo;s Treasury Department seems to be the natural choice for that role, and Mnuchin has not suggested otherwise.</p> <p> <strong>The Cabinet and the Congress</strong></p> <p> Interestingly, giving the Council more power is at odds with many Republicans in Congress who have attempted to limit the power of the Council since Dodd-Frank was enacted, calling it unaccountable, capricious and lacking in transparency.&nbsp; Only days before the Report was issued House Republicans passed the Financial Choice Act (&ldquo;the Act&rdquo;) a bill that would largely replace Dodd-Frank, but which contains a provision to eliminate the Council&#39;s power to designate entities requiring &nbsp;more regulation, and which subjects the Council to greater oversight and accountability. How the disagreement between the Treasury and Congress will play out on this issue &nbsp;remains to be seen.</p> <p> In some respects the Report calls for many of the same changes as the Act, but in some areas it is more moderate than the House&rsquo;s proposal. &nbsp;The Act, for example, would repeal the controversial&nbsp;Volcker Rule which restricts banks from certain speculative trading. &nbsp;The Act seeks to repeal the&nbsp;trading restrictions in their entirety. &nbsp;Mnuchin recommended loosening these restrictions, &nbsp;which regulators could do on their own, but did not urge a full repeal, which would require Congressional approval. &nbsp;This may suggest that Mnuchin is prepared to take a more measured approach in&nbsp;changing Dodd-Frank, but also one more likely to succeed in light of an expected filibuster by Democrats intent on protecting Dodd-Frank in the Senate.&nbsp;</p> <p> In what might show as an effort to homogenize the Report&#39;s recommendations with that of the pending Republican legislation, the Treasury Department recommended&nbsp; replicating a key provision of the Act, &nbsp;to allow for an amount of capital banks must hold as a cushion against future losses, which amounts, if met, would exempt banks from much &nbsp;regulatory oversight.</p> <p> And both the Act and the Report are lockstep in other areas, most notably the recommendation to significantly rein in the CFPB. &nbsp;Such a move is strongly opposed by Congressional&nbsp;Democrats who say that the recommendations as to the CFPB would serve to&nbsp;weaken Dodd-Frank, and will,&nbsp;in the words of Sen. Elizabeth Warren, a huge proponent of the Bureau at its inception, &ldquo;make it easier for big banks to cheat their customers and spark another financial meltdown.&rdquo;</p> <p> The take away from the Report, and also from the proposed legislation, is that many of the reforms that were a hallmark of the Obama administration are, slowly but surely, going to be stripped away. &nbsp;First on the list is the CFPB, which was heralded as the new regulatory Sheriff in town only a few short years ago. &nbsp;But whether it be&nbsp;President Trump or Treasury Secretary Mnuchin, or still unknown players in a reinvigorated Republican Congress, it is now clear that a new Sheriff has trumped the old one.</p> http://www.seyfarth.com:80/publications/OMM062617-LE2 Travel Ban Update: The United States Supreme Court Will Hear The Appeal Over President Donald Trump’s Revised Travel Ban Next Term And Reinstates Parts Of The Ban http://www.seyfarth.com:80/publications/OMM062617-LE2 Mon, 26 Jun 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; U.S. Supreme Court will hear oral arguments on the Travel Ban in their next term.</em></p> <p> Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</p> <p> Further, the Court has reinstated the travel ban for the six countries, but only insofar as it relates to foreign nationals who lack a bona fide relationship with a U.S. person or entity.&nbsp; Examples of individuals who do possess a bona fide relationship with a U.S. entity include students enrolled at U.S. universities and employees of U.S. companies.&nbsp; Conversely, foreign nationals from the affected countries wishing to visit solely for tourism may encounter significant challenges entering the U.S.</p> <p> This ruling will not impact U.S. employers that employ foreign nationals from any of the affected countries.&nbsp; U.S. employers may continue to sponsor their employees for employment-based visa petitions, and employees may continue to apply for work visas at U.S. Embassies and Consulates. However, all foreign nationals from these countries should nevertheless exercise caution when travelling to the U.S., as they can expect to face lengthy delays and questioning at the border as part of the administration&rsquo;s ongoing &ldquo;extreme vetting&rdquo; measures.</p> <p> Seyfarth Shaw is monitoring the developments closely, and will publish updated information accordingly.</p> http://www.seyfarth.com:80/publications/IMM062617 The United States Supreme Court Will Hear the Appeal Over President Donald Trump’s Revised Travel Ban Next Term and Reinstates Parts of the Ban http://www.seyfarth.com:80/publications/IMM062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Shortly before its summer recess, the United States Supreme Court agreed to hear oral arguments on the Trump administration&rsquo;s revised travel ban against nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen. The hearing is expected to take place this fall.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/the-united-states-supreme-court-will-hear-the-appeal-over-president-donald-trumps-revised-travel-ban-next-term-and-reinstates-parts-of-the-ban/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=0b3cb7f012-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-0b3cb7f012-73202945">click here</a>.</p> http://www.seyfarth.com:80/news/boutros062617 Seyfarth’s Andrew S. Boutros Leads Release of ABA Criminal Justice Section Task Force Recommendations on College Due Process Rights and Victim Protection http://www.seyfarth.com:80/news/boutros062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> CHICAGO (June 26, 2017) - Led by Seyfarth Shaw LLP partner Andrew S. Boutros, the firm&rsquo;s National Co-Chair of the White Collar, Internal Investigations and False Claims Team, the American Bar Association (ABA) Criminal Justice Section Task Force on College Due Process Rights and Victim Protections has completed its mandate and released a unanimously-approved set of recommendations. The Task Force also included Seyfarth Shaw attorney Bridget Maricich.</p> <p> Universally endorsed for publication by the ABA Criminal Justice Section Council, the Task Force recommendations urge the nation&rsquo;s nearly 5,000 private and public colleges and universities to adopt a fair and balanced disciplinary system in sexual misconduct cases that includes procedural and substantive due process protections for the accused while protecting the rights and interests of the victim. &nbsp;You can read the recommendations and report <a href="https://www.americanbar.org/content/dam/aba/publications/criminaljustice/2017/ABA-Due-Process-Task-Force-Recommendations-and-Report.authcheckdam.pdf">here</a>. Highlights include:</p> <ul> <li> The Task Force recommends having an adjudicatory hearing in which at least three people other than the investigator decide whether a violation occurred. Schools should require a unanimous vote for a finding of responsibility.</li> <li> The Task Force recommends that the complainant and respondent not be allowed to question one another or other witnesses directly, but should be given an ongoing opportunity during the proceeding to offer questions to be asked through the decision-maker(s), who will determine whether to ask them. The investigator should be available for questioning by the decision-maker(s) and the parties.</li> <li> The Task Force spent considerable time discussing the standard of proof to be used by decision-maker(s) in determining whether a violation occurred. In light of concerns raised about both preponderance and clear and convincing evidence, the Task Force believes that it is best to avoid labels and instead articulate the appropriate basis for a finding of responsibility. In a model where there is only one decision-maker, the Task Force believes that there should be a higher standard of proof.</li> </ul> <p> &ldquo;The college and university community has been grappling for decades with how to fairly and effectively ensure fair process protections for both victims and the accused in sexual misconduct cases,&rdquo; said Task Force Chair Andrew S. Boutros. &nbsp;&nbsp;</p> <p> &ldquo;On behalf of the entire Task Force and its members, we are all immensely proud to have played a part in helping the nation&rsquo;s thousands of higher education institutions and their approximately 21 million students in this important and complex area of law and policy,&rdquo; said Boutros.</p> <p> The ABA Criminal Justice Section established the Task Force on College Due Process Rights and Victim Protections to develop guidelines and recommendations to ensure due process for both the victim and the accused in college campus sexual misconduct cases. You can read more about the Task Force <a href="https://www.americanbar.org/groups/criminal_justice/committees/campus.html">here</a>.</p> <p> Seyfarth&rsquo;s White Collar, Internal Investigations, and False Claims Team represents colleges, universities, and other schools in matters involving allegations of Title IX violations, sexual assault on college campuses, and other allegations of student or school improprieties. In addition, the Team provides cutting-edge advice to clients (both companies and individuals) in all varieties of white collar matters, government enforcement defense, trials, internal investigations, and complex litigations, including matters involving fraud, embezzlement, the FCPA, insider trading, other securities violations, healthcare violations, customs fraud, trade secret theft, environmental crimes, and the False Claims Act, among others.</p> http://www.seyfarth.com:80/news/smith062617 Cameron Smith quoted in Bloomberg http://www.seyfarth.com:80/news/smith062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Cameron Smith was quoted in a June 26 story from Bloomberg on how dozens of major U.S. companies are encouraging a federal court to declare discrimination based on sexual orientation illegal. Smith said that if the Second Circuit joins the Seventh circuit in holding that Title VII includes sexual orientation, then that&rsquo;s a big deal. You can read the <a href="https://www.bloomberg.com/news/articles/2017-06-26/morgan-stanley-microsoft-cbs-back-legal-shield-for-gay-workers">full article here</a>.</p> http://www.seyfarth.com:80/news/leon062617 Leon Rodriguez quoted in Courthouse News Service http://www.seyfarth.com:80/news/leon062617 Mon, 26 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 26 story from Courthouse News Service, &quot;Taking Up Trump Travel Ban, High Court Puts Injunctions on Ice,&quot; on how the Supreme Court took up the controversial travel ban case as its last act before summer recess. Rodriguez said that we will all have to watch closely how the Supreme Court&rsquo;s reversal of the lower Court&rsquo;s injunction will work. You can read the<a href="http://www.courthousenews.com/supreme-court-takes-trump-travel-ban/"> full article here</a>.</p> http://www.seyfarth.com:80/news/ESD062317 Seyfarth Represents ESD in its Move to Willis Tower http://www.seyfarth.com:80/news/ESD062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> CHICAGO - (June 23, 2017) - Seyfarth Shaw LLP represented ESD, a global leading engineering design firm, in its move to iconic Willis Tower. ESD will occupy over 46,000 square feet of new space on the entire 53rd floor and a portion of the 54th floor.</p> <p> Earlier this year, Seyfarth represented the National Restaurant Association, the largest foodservice trade association in the world, in its move to Willis Tower. The National Restaurant Association leased close to 51,000 square feet of office space on the 36th floor.</p> <p> Seyfarth Chicago partner Jay Gitles represented both ESD and the National Restaurant Association.</p> http://www.seyfarth.com:80/news/conley062317 Ben Conley was quoted in SHRM http://www.seyfarth.com:80/news/conley062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Ben Conley was quoted in a June 23 story from SHRM, &quot;Senate Health Care Bill Would End Employer Mandate Penalty, Keep Cadillac Tax,&quot; on how the health care bill released by the Senate this week closely hews to the bill that was narrowly approved by the House, at least with regard to employer-sponsored group health plans. Conley said the Senate proposal largely mirrors the House measure with some significant differences. You can read the <a href="https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/senate-bcra-mandates-reporting-taxes.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/robertson062317 Christopher Robertson quoted in the New York Law Journal http://www.seyfarth.com:80/news/robertson062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Christopher Robertson was quoted in a June 23 story from the New York Law Journal, &quot;How Second Circuit&#39;s &#39;Stadnick&#39; Decision Provides Securities Clarity,&quot; on how the U.S. Court of Appeals for the Second Circuit set down the sole standard for dealing with Section 11 of the U.S. Securities Act, which holds an issue liable for excluding or providing untrue information in a registration statement.&nbsp;</p> http://www.seyfarth.com:80/news/seidman062317 Joshua Seidman quoted in the Cook County Record http://www.seyfarth.com:80/news/seidman062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Joshua Seidman was quoted in a June 23 story from the Cook County Record, &quot;Cook County paid sick leave ordinance takes effect July 1; employers should learn the rules, lawyer says,&quot; on the Cook County&rsquo;s approved paid sick leave &ldquo;Interpretative and Procedural Rules&rdquo; which will officially go into effect on July 1. Seidman said that managers and HR personnel also should be trained on any changes to the employer&rsquo;s sick leave policy and practices, and on how to respond to employee sick leave questions in the coming months. You can read the <a href="http://cookcountyrecord.com/stories/511129875-cook-county-paid-sick-leave-ordinance-takes-effect-july-1-employers-should-learn-the-rules-lawyer-says">full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM062317-LE The Baton Passes Back to the East Coast: Prior Salary Ban Passed in Delaware and Philadelphia Law Suit Challenging Prior Salary Ban Back On http://www.seyfarth.com:80/publications/OMM062317-LE Fri, 23 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: There have been two big updates on the prior salary front. First, Delaware joins the growing number of states and local jurisdictions with its enactment of a law preventing employers from requesting salary history of job applicants.&nbsp; The law will take effect in December 2017.&nbsp; Second, the Chamber of Commerce for Greater Philadelphia revived its constitutional challenge to Philadelphia&rsquo;s pay equity ordinance. The United States District Court for the Eastern District of Pennsylvania had previously concluded that the Chamber could not pursue a suit seeking to block the ordinance because the Chamber, in the court&rsquo;s eyes, did not allege that it or any of its member companies would suffer specific harm if the ordinance went into effect.&nbsp; In response, the Chamber has filed an amended complaint, alleging that the ordinance would interfere with the employee hiring by both the Chamber itself and by a number of its members.&nbsp; The ordinance remains on hold.&nbsp; Stay tuned for further developments.</em></p> <p> <strong>Delaware Passes Prior Salary Ban</strong></p> <p> Last week, Delaware&rsquo;s Governor, John Carney, signed into law <a href="http://legis.delaware.gov/BillDetail?legislationId=25664">legislation</a> that will prevent employers from requesting the salary history of job applicants.&nbsp; Similar bans have been passed in <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM060817-LE">Philadelphia (under challenge)</a>, Puerto Rico, and earlier this month, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/OMM060817LE2.pdf">Oregon</a>.&nbsp; The law will go into effect in December 2017, right on the heels of New York City&rsquo;s law, which goes into effect this Halloween.</p> <p> The Delaware law will make it an unlawful employment practices for an employer or an employer&rsquo;s agent to &ldquo;seek&rdquo; the compensation history from an applicant or the applicant&rsquo;s current or former employer.&nbsp; As with laws in other jurisdictions, employers are still permitted to ask about salary expectations and, as they are in some jurisdictions, employers are permitted to confirm compensation history after an offer of employment with terms of compensation has been extended to the applicant and accepted.</p> <p> The Delaware law will also make it illegal to screen applicants based on their compensation histories (i.e., to disposition a candidate because their prior salary was either too high or too low).&nbsp;</p> <p> One novel approach taken by the Delaware law is that it provides a safe harbor for actions taken by the employer&rsquo;s agent.&nbsp; If the employer can demonstrate that the employer&rsquo;s agent was informed of the requirements of the Delaware law, and instructed to comply, then the employer is not liable for actions taken by an agent in violation of this section. Therefore, employers may wish to consider revising their contracts with staffing agencies and recruiting companies to include terms obligating the staffing or recruiting company to comply with the requirements of the Delaware law.</p> <p> The civil penalties for violations of the Delaware law are between $1,000 and $5,000 for the first offense, and between $5,000 and $10,000 for each subsequent violation.</p> <p> <strong>Revival of Lawsuit Challenging Philadelphia Salary History Ban Ordinance</strong></p> <p> In other pay equity news, the lawsuit challenging the Philadelphia salary history inquiry ban has been revived following its dismissal earlier this month.&nbsp;</p> <p> The City of Philadelphia passed an Ordinance that prohibits inquiries into salary history.&nbsp; The Ordinance was slated to go into effect on May 23, 2017, as we have previously reported <a href="http://www.seyfarth.com/publications/OMM060817-LE">here</a>.</p> <p> On April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the &ldquo;Chamber&rdquo;) <a href="http://www.seyfarth.com/publications/OMM042517-LE">filed a federal lawsuit seeking to enjoin the law</a>.&nbsp; On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stayed the effective date of the new law until resolution of the motion for preliminary injunction. On May 30, 2017, the court dismissed the Chamber&rsquo;s complaint with prejudice, finding that Supreme Court and Third Circuit precedent &ldquo;require the identification of a member who has suffered or will suffer harm in cases brought by an association on behalf of its members,&rdquo; but granting the Chamber the ability to file an Amended complaint.</p> <p> Last week, the Chamber<a href="http://www.seyfarth.com/dir_docs/publications/chamber_amended_complaint_june_2013_2017.pdf"> filed an amended complaint</a> and moved for <a href="http://www.seyfarth.com/dir_docs/publications/Amended_Motion_for_Prelim_Inj_Philly.pdf">another preliminary injunction</a>.&nbsp; The City&rsquo;s opposition to the motion is due August 4, 2017.&nbsp; In the amended complaint and the new motion for preliminary injunction, the Chamber claims that the Chamber has legal standing because both the Chamber itself and a number of its member companies will be harmed by the Ordinance.&nbsp;</p> <p> We will continue to track this lawsuit as it moves through the courts.</p> http://www.seyfarth.com:80/publications/WH062317 And on the Seventh Day, Let Them Rest… or Work—If They Want! http://www.seyfarth.com:80/publications/WH062317 Fri, 23 Jun 2017 00:00:00 -0400 <p> Last month in <a href="http://www.wagehourlitigation.com/wp-content/uploads/sites/215/2017/06/S224611.pdf" target="_blank">Mendoza v. Nordstrom, Inc.</a>, the California Supreme Court addressed three questions about California&rsquo;s &ldquo;day of rest&rdquo; statutes that prohibit employers from causing employees &ldquo;to work more than six days in seven.&rdquo;</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/state-claims/on-the-seventh-day-let-them-rest-or-work/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=04e8b24c97-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-04e8b24c97-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062217 Upcoming Webinar! Trade Secret Protection: What Every Employer Needs to Know http://www.seyfarth.com:80/publications/ts062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Trade secret identification and protection is more critical than ever for employers. Technology is consuming the way we do business, and new laws concerning trade secrets and the content of employment agreements make trade secret identification and protection more critical than ever.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/upcoming-webinar-trade-secret-protection-what-every-employer-needs-to-know/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=787ccc62bb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-787ccc62bb-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/tbt062217 The Week in Weed: June 23, 2017 http://www.seyfarth.com:80/publications/tbt062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/the-week-in-weed-june-23-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=358f9285e9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-358f9285e9-73179557">click here</a>.</p> http://www.seyfarth.com:80/publications/MA062117-LIT Texas Legislature Clarifies and Expands the Texas Uniform Trade Secrets Act http://www.seyfarth.com:80/publications/MA062117-LIT Thu, 22 Jun 2017 00:00:00 -0400 <div> On May 19, 2017, Texas Governor Greg Abbott signed into law several amendments to the Texas Uniform Trade Secrets Act (&ldquo;TUTSA&rdquo;), located in Chapter 134A of the Texas Civil Practice &amp; Remedies Code. The amendments go into effect on September 1, 2017. In doing so, Texas has aligned its statute more closely with federal law and codified recent judicial interpretations of the law.</div> <div> &nbsp;</div> <div> Two events precipitated the amendments, one legislative, one judicial. In the first, Congress passed the Defend Trade Secrets Act (&ldquo;DTSA&rdquo;) in May 2016, which provides a federal cause of action for trade-secret misappropriation. In the second, the Texas Supreme Court announced in <em>In re M-I L.L.C.</em>, 505 S.W.3d 569 (Tex. 2016) that a presumption exists that a party is authorized to participate and assist in the defense of a trade-secret misappropriation claim under TUTSA, which presumption cannot be surmounted unless the trial court considers a seven-factor balancing test. These events resulted in the following key changes to the TUTSA:</div> <div> &nbsp;</div> <div> <strong>Trade Secret &nbsp;</strong></div> <div> The amended TUTSA expands the definition of &ldquo;trade secret&rdquo; to more closely harmonize Texas law with the DTSA&rsquo;s definition. Specifically, the Texas Legislature added to the definition &ldquo;all forms and types of information&rdquo; including, by way of example, &ldquo;business, scientific, technical, economic, or engineering information,&rdquo; design, prototype, plan, program device, code, or procedure, &ldquo;whether tangible or intangible and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing.&rdquo; There remain, however, several important differences between the amended TUTSA and the DTSA. First, the revised TUTSA definition of trade secrets lists illustrative examples of the form or type of information that can constitute a trade secret, whereas &sect; 1839(3) of the DTSA confines a trade secret as &ldquo;financial, business, scientific, technical, economic, or engineering information.&rdquo; Second, in contrast to the DTSA, TUTSA includes a &ldquo;list of actual or potential customers or suppliers&rdquo; as an example of trade-secret information. Third, a trade secret under TUTSA, unlike the DTSA, need not be &ldquo;related to a product or service used in, or intended for use in, interstate or foreign commerce.&rdquo;</div> <div> &nbsp;</div> <div> <strong>Injunctive Relief &nbsp;</strong></div> <div> TUTSA generally allows for injunctive relief from actual or threatened misappropriation. The amendment, however, preserves and clarifies the common-law rule that an employee cannot be enjoined &ldquo;from using the general knowledge, skill, and experience acquired during employment.&rdquo; <em>Sharma v. Vinmar Int&rsquo;l, Ltd.</em>, 231 S.W.3d 405, 424 (Tex. App.&mdash;Houston [14th Dist.] 2007, pet. dism&rsquo;d).</div> <div> &nbsp;</div> <div> <strong>Willful and Malicious Misappropriation &nbsp;</strong></div> <div> Under the pre-amendment TUTSA, a trade-secret owner must establish &ldquo;willful and malicious&rdquo; misappropriation as a precondition to an award of exemplary damages and attorney&rsquo;s fees. The amendments clarifies that &ldquo;willful and malicious misappropriation,&rdquo; means &ldquo;intentional misappropriation resulting from the conscious disregard of the rights of the owner of the trade secret,&rdquo; which definition is derived from the Seventh Circuit&rsquo;s definition in <em>Learning Curve Toys, Inc. v. PlayWood Toys, Inc.</em>, 342 F.3d 714, 730 (7th Cir. 2003) (applying the Illinois Uniform Trade Secret Act). The amended TUTSA also defines the phrase, previously undefined by TUTSA, that triggers an award of exemplary damages&mdash;&ldquo;clear and convincing evidence&rdquo;&mdash;by using the definition in section 41.001(2) of the Texas Civil Practice and Remedies Code.</div> <div> &nbsp;</div> <div> <strong>Trade Secret &ldquo;Owner&rdquo; &nbsp;</strong></div> <div> The amendment, which relies on the modified definition of &ldquo;owner&rdquo; found in the DTSA, provides that an &ldquo;owner&rdquo; of a trade secret is a &ldquo;person or entity in whom or in which rightful, legal, or equitable title to, or the right to enforce rights in, the trade secret is reposed.&rdquo; Thus, the amendment clarifies that certain nonowners, such as licensees, may be entitled to file a claim for trade-secret misappropriation under TUTSA.</div> <div> &nbsp;</div> <div> <strong>Seven-Factor Balancing Test &nbsp;</strong></div> <div> The amendment codifies the Texas Supreme Court&rsquo;s holding in <em>In re M-I L.L.C.</em>, which sets out a seven-factor balancing test that courts must consider before excluding a party or a party&rsquo;s representative at any stage of the proceedings, including discovery, pretrial, or trial. The revised TUTSA presumes that parties are allowed to participate and be present during proceedings and may not be excluded until after a court considers the following seven factors:</div> <div style="margin-left: 80px;"> (1) the value of an owner&rsquo;s alleged trade secret;</div> <div style="margin-left: 80px;"> (2) the degree of competitive harm an owner would suffer from the dissemination of the owner&rsquo;s alleged trade secret to the other party;</div> <div style="margin-left: 80px;"> (3) whether the owner is alleging that the other party is already in possession of the alleged trade secret;</div> <div style="margin-left: 80px;"> (4) whether a party&rsquo;s representative acts as a competitive decision maker;</div> <div style="margin-left: 80px;"> (5) the degree to which a party&rsquo;s defense would be impaired by limiting that party&rsquo;s access to the alleged trade secret;</div> <div style="margin-left: 80px;"> (6) whether a party or a party&rsquo;s representative possesses specialized expertise that would not be available to a party&rsquo;s outside expert; and</div> <div style="margin-left: 80px;"> (7) the stage of the action.</div> <div> &nbsp;</div> <div> TUTSA, as amended, is now one of the most modern and comprehensive laws governing trade secrets in the United States.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/news/casciari062217 Joan Casciari quoted in SHRM http://www.seyfarth.com:80/news/casciari062217 Thu, 22 Jun 2017 00:00:00 -0400 <p> Joan Casciari was quoted in a June 22 story from SHRM, &quot;FMLA Abuse: Serving Jail Time, Moonlighting, Vacationing and More,&quot; on how, even if the real reasons for FMLA leave seem outrageous, courts may rule against employers. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/fmla-abuse-odd-reasons.aspx">full article here</a>.</p> http://www.seyfarth.com:80/publications/LR062117 DOL Issues Notice of Proposed Rulemaking to Rescind Obama Administration’s Final Persuader Rule http://www.seyfarth.com:80/publications/LR062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Last year, we reported extensively on the Department of Labor&rsquo;s final persuader rule, which was scheduled to take effect on July 1, 2016 and would have required certain public reporting by employers and their consultants (including attorneys). However, as we reported in late June 2016, a federal district court in Texas issued a nationwide preliminary injunction preventing the rule from taking effect.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/06/21/dol-issues-notice-of-proposed-rulemaking-to-rescind-obama-administrations-final-persuader-rule/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4cd73ca62a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4cd73ca62a-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/IMM062117 BIG Immigration Law Blog: Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers http://www.seyfarth.com:80/publications/IMM062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Immigration, Refugees and Citizenship Canada (&ldquo;IRCC&rdquo;) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (&ldquo;LMIA&rdquo;)-exempt work permit applications and two brand new work permit exemptions, as part of Canada&rsquo;s Global Skills Strategy.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/canada-launches-global-skills-strategy-to-fast-track-short-term-entry-of-high-skilled-workers/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=a60d34d55b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-a60d34d55b-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/CP062117 Hot Off The Press! DFEH’s Annual Report http://www.seyfarth.com:80/publications/CP062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> The DFEH hails as the largest state civil rights agency in the country, with 220 full-time employees operating out of five offices throughout California. Its annual report makes clear that its core work is litigation. It sues chiefly under the Fair Employment and Housing Act, California&rsquo;s more expansive version of federal anti-discrimination law, and also sues under the Unruh Civil Rights Act, the Disabled Persons Act, and the Ralph Civil Rights Act.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/21/hot-off-the-press-dfehs-annual-report/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=e1eff26aef-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-e1eff26aef-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062117 The Latest East Coast/West Coast Conflict: Massachusetts Courts Consider the Application of California Law in Non-Compete Litigation http://www.seyfarth.com:80/publications/ts062117 Wed, 21 Jun 2017 00:00:00 -0400 <p> Hearkening back to the rivalry between the Boston Celtics and Los Angeles Lakers in the 1980s, Massachusetts courts (as well as others around the country) have increasingly been asked to analyze the application of California law in litigation related to non-competition agreements. As many readers of this blog know, non-competition agreements are generally not enforceable under California law.&nbsp;</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/noncompete-enforceability/the-latest-east-coastwest-coast-conflict-massachusetts-courts-consider-the-application-of-california-law-in-non-compete-litigation/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=dad7d644d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-dad7d644d4-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM062117-LE Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers http://www.seyfarth.com:80/publications/OMM062117-LE Wed, 21 Jun 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Canadian government instituted a new, immediately effective Global Skills Strategy to facilitate entry of skilled workers.</em></p> <p> <em>The following alert is directed to organizations with a presence in Canada or who anticipate the need to place talent at a Canadian work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world. If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> Immigration, Refugees and Citizenship Canada (&ldquo;IRCC&rdquo;) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (&ldquo;LMIA&rdquo;)-exempt work permit applications and two brand new work permit exemptions, as part of Canada&rsquo;s Global Skills Strategy.</p> <p> <strong><u>Two-Week Work Permit Processing Standard</u></strong></p> <p> Certain LMIA-exempt work permit applications made outside of Canada at a Canadian Consulate are now eligible for expedited two-week processing, including LMIA-exempt work permit applications for employees performing work at Skill Level 0 or A of the National Occupational Classification (&ldquo;NOC&rdquo;). Therefore, NAFTA Professionals and Intra-company Transferees in high-skilled occupations, such as IT professionals, Management Consultants and senior managers, can benefit from this new processing standard.&nbsp; Historically, and for those not eligible for the new two-week standard, it would typically take about ten weeks at the Consulate General of Canada in New York.</p> <p> In addition, corresponding applications for any accompanying family members, including open work permits for spouses and study permits for dependents, are eligible for two-week processing. Applications made inside Canada are not eligible for this new, expedited two-week processing.</p> <p> Please note there is no additional premium processing fee for applications eligible for expedited two-week processing.</p> <p> <strong><u>Single-Entry Short-Term Work Permit Exemption for High Skilled Workers</u></strong></p> <p> Workers with a job offer for a position under NOC Skill Level 0 or A are now eligible for a work permit exemption of up to 15 consecutive calendar days every six (6) months, or up to 30 consecutive calendar days every 12 months. This means that workers who qualify for this exemption may work in Canada within these timeframes without first obtaining a work permit.&nbsp; Individuals must apply for this exemption from outside of Canada or at a port of entry. This exemption is not available for applicants submitting applications from within Canada.</p> <p> Individuals must carry significant documentation to demonstrate eligibility for this exemption, including a detailed support statement from a related Canadian entity or Canadian client.&nbsp; Individuals can benefit from this exemption only once in a 6 month or 12 month period (as described above), as consecutive exemptions are not permitted. IRCC has confirmed to our office that individuals must provide evidence that they have not used this exemption in either the previous 6 or 12 months, depending on whether a 15 day or 30 day exemption is sought.&nbsp;</p> <p> <strong><u>120-Day Work Permit Exemption for Researchers</u></strong></p> <p> Researchers invited to perform research at a publicly-funded degree granting Canadian post-secondary institution or affiliated research institution are now eligible for a work permit exemption for up to 120 consecutive calendar days every 12 months.</p> <p> Given the immediate effective date of these changes, it will take several weeks before immigration officers at the port of entry become familiar with them, and perhaps longer before we fully understand the ways in which they will be implemented in practice. We will share additional guidance as it becomes available.</p> http://www.seyfarth.com:80/publications/EL062017 One Minute Memo: Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information http://www.seyfarth.com:80/publications/EL062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/one-minute-memo-extreme-vetting-measures-to-include-questionnaires-asking-for-detailed-travel-history-and-social-media-information/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=af3cf6e333-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-af3cf6e333-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/MA062017-LE DOL Withdraws Guidance on Independent Contractors and Joint Employers: What It Means and What Employers Should Do Now http://www.seyfarth.com:80/publications/MA062017-LE Tue, 20 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: United States Secretary of Labor Alexander Acosta recently withdrew the federal Wage &amp; Hour Division&rsquo;s (WHD) Obama-era guidance documents on independent contractors and joint employment.&nbsp; Those documents, known as Administrator Interpretations, set forth WHD&rsquo;s understanding of the concepts involved in determining &ldquo;employer&rdquo; status under the Fair Labor Standards Act.&nbsp; By now, you have likely seen the numerous immediate reactions of lawyers and other commentators published in the wake of the withdrawals.&nbsp; <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/dol-withdraws-guidance-on-je-ic/">Ours was among them</a>.&nbsp; Now that there has been some time to give deeper contemplation to the withdrawals, this Alert offers a more detailed analysis of what happened and what it means.</em></p> <p> <strong>What happened last week?</strong></p> <p> On June 7, 2017, Secretary Acosta announced the withdrawal of the 2015 and 2016 Administrator Interpretations on independent contractors &nbsp;and joint employment.&nbsp; The press release announcing the withdrawal noted that &ldquo;[r]emoval of the administrator interpretations does not change the legal responsibilities of employers under the [law], as reflected in the department&rsquo;s long-standing regulations and case law. The department will continue to fully and fairly enforce all laws within its jurisdiction . . .&rdquo;</p> <p> <strong>What were the Administrator Interpretations?</strong></p> <p> Administrator Interpretations first made an appearance at WHD in 2010.&nbsp; In part, they were replacements for opinion letters, which had been issued for decades in response to specific requests made by the regulated community and could potentially be a complete defense to liability or liquidated damages under the FLSA. &nbsp;In contrast to the fact-specific (and, thus, more helpful to the requestor) analysis provided in opinion letters, the AIs were sweeping statements of policy, intended to &ldquo;provide meaningful and comprehensive guidance and compliance assistance to the broadest number of employers and employees.&rdquo;&nbsp;</p> <p> The AIs, however, including those on independent contractors and joint employment, were not regulations and did not go through notice-and-comment rulemaking. As a result, they could be (and can continue to be) withdrawn as easily as they were issued.</p> <p> The AI on independent contractors was issued in 2015 and represented the first comprehensive statement of WHD&rsquo;s understanding of that issue.&nbsp; There, WHD took the multi-factor &ldquo;economic realities&rdquo; test that courts commonly used to interpret the issue and added an extremely expansive reading of the FLSA&rsquo;s &ldquo;suffer or permit to work&rdquo; definition of &ldquo;employ.&rdquo; The end result of that combination was intended to severely restrict the use of independent contractors under federal law and to require businesses to reclassify workers as employees subject to the minimum wage and overtime requirements of the FLSA.</p> <p> In early 2016, WHD issued an AI on joint employment that took a similarly expansive view of the law.&nbsp; Again, WHD applied the economic realities test and&nbsp; explained the scope of joint employment as being &ldquo;as broad as possible.&rdquo;&nbsp; This created concern among upper-tier contractors, franchisors, staffing agencies, lenders, and private equity firms, among others, that &nbsp;they could be tagged with joint employer exposure in relationships where there had previously been little risk.&nbsp;</p> <p> <a href="http://www.wagehourlitigation.com/independent-contractors/dol-issues-guidance-on-ic-classification-interpreting-most-as-employees">As we noted</a> at the time the <a href="http://www.wagehourlitigation.com/joint-employment/another-momentous-ai">AIs were issued</a>, however, the true impact of the AIs would be seen as courts had the opportunity to consider WHD&rsquo;s position and determine whether to accept it.&nbsp; As mere guidance documents issued by WHD (as opposed to regulations, for example), the AIs ultimately were reliant upon acceptance by the courts to have any lasting legacy.</p> <p> <strong>What does the withdrawal of the AIs mean?</strong></p> <p> Initially, the withdrawal is simply the removal of WHD&rsquo;s positions on these issues.&nbsp; There have been no replacement guidance documents issued in which WHD takes a different position.</p> <p> The withdrawal may also portend a shift in focus by WHD investigators.&nbsp; The AIs took the most expansive understanding of employment possible, ultimately seeking to interfere with traditional contractual and other business relationships.&nbsp; Eliminating that understanding signals to the investigative staff that they should not spend limited resources focused on those relationships.</p> <p> Finally, the withdrawal of the AIs means that most courts will not even have the opportunity to consider -- whether formally or informally -- WHD&rsquo;s positions.&nbsp; This does not necessarily mean that courts will reach different decisions; it means only that, when reaching that decision, they will be unable to rely upon WHD&rsquo;s statements.&nbsp; Of course, there may be a handful of cases in which AIs continue to have relevance, and, thus, have some continued influence on the development of the law in this area:&nbsp; for example, any pending cases or cases addressing relationships during the short time when the AIs existed.&nbsp; Such cases, however, are likely to have a fairly limited impact given the AIs&rsquo; withdrawal.&nbsp;&nbsp;&nbsp;&nbsp;</p> <p> <strong>How does this impact employers?</strong></p> <p> Although the withdrawal of the AIs is certainly good news for employers, it would be premature to celebrate.&nbsp; Neither the issue of independent contractor misclassification nor the concerns over joint employment have been eliminated.&nbsp; Plaintiffs&rsquo; attorneys will continue to bring misclassification cases; they also will continue to seek to apply joint employment principles broadly.&nbsp; Unless and until WHD issues replacement guidance, it will be up to the courts to create the parameters, and those parameters are likely to be inconsistent, varying from within the federal judiciary and by applicable state laws.&nbsp; And the parameters need not necessarily be more employer-friendly; in some circumstances, the AI standards may actually have been better for employers.&nbsp; For example, <a href="http://www.wagehourlitigation.com/joint-employment/fourth-circuit-joint-employment/">in a recent case</a>, the Fourth Circuit appears to have created a new joint employment test that has the potential to force federal courts within that Circuit to conclude that a joint employment relationship exists in almost any case where two or more businesses derive the benefit of work done by an employee of one of them.&nbsp; That case is unchanged by the AIs&rsquo; withdrawal.</p> <p> Also unaffected by the withdrawal of the AIs are the myriad standards for independent contractor and joint employment in other federal, state, and local contexts.&nbsp; For example, the EEOC and NLRB have had a significant focus on these issues in the past several years.&nbsp; Although it is certainly possible that (once fully constituted) the EEOC and NLRB, may follow DOL&rsquo;s lead and dial back their focus, but there is no guarantee that they will do so.&nbsp; Unless and until that happens, employers should continue to comply with those requirements.&nbsp;</p> <p> In addition, many state governments have had intense focus on the issues, with state legislatures passing laws that, for example, more strictly apply independent contractor standards.&nbsp; State agencies enforcing these laws have taken more aggressive stances on their application and have sought increased penalties for classifying workers as independent contractors.&nbsp; For example, in Massachusetts, the requirements for independent contractor status are particularly restrictive and employers are subject to treble damages for violations; in California, where the standards are similarly restrictive, willful violations are subject to statutory penalties of $5,000 to $15,000; and, in New York City, repeat violations could result in penalties (in addition to damages) up to $25,000.&nbsp; In the potential absence of federal focus on these issues, other state and local governments may follow suit, using the withdrawal as an opportunity to &ldquo;fill the gap&rdquo; and pursue a more expansive understanding of the employment relationship, with more consequential penalties for failing to comply with that understanding.</p> <p> As a result, employers cannot take their eyes off of these issues.&nbsp; They should continue to review independent contractor relationships, to analyze agreements with third parties, and to determine whether they are exercising &ldquo;too much&rdquo; control over the employees of other entities, such as subcontractors, franchisees, and down-stream companies with whom they do business.&nbsp;</p> <p> Finally, employers should continue to monitor development on these issues in federal, state, and local legislatures, governing bodies, and regulatory agencies.&nbsp; Particularly at the state and local level, independent contractor and joint employment issues will continue to be front and center.</p> http://www.seyfarth.com:80/publications/wse062017 “Controlling Employer” Doctrine Reviewed and Vacated by OSHRC Law Judge http://www.seyfarth.com:80/publications/wse062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan&rsquo;s decision, in <a href="https://www.oshrc.gov/decisions/html_2017/15-1638.html"><em>Hensel Phelps Construction Co.</em></a>, Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a &ldquo;controlling employer.&rdquo; &nbsp;</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/osha-litigation/controlling-employer-doctrine-reviewed-and-vacated-by-oshrc-law-judge/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=99c9563574-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-99c9563574-73179581">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062017 Trading Secrets Blog: Texas Legislature Clarifies and Expands the Texas Uniform Trade Secrets Act http://www.seyfarth.com:80/publications/ts062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> On May 19, 2017, Texas Governor Greg Abbott signed into law several amendments to the Texas Uniform Trade Secrets Act (&ldquo;TUTSA&rdquo;), located in Chapter 134A of the Texas Civil Practice &amp; Remedies Code. The amendments go into effect on September 1, 2017.&nbsp; In doing so, Texas has aligned its statute more closely with federal law and codified recent judicial interpretations of the law.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/legislation-2/texas-legislature-clarifies-and-expands-the-texas-uniform-trade-secrets-act/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=a362e4554f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-a362e4554f-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/ts062017a Trade Secret Survey of In-House Counsel http://www.seyfarth.com:80/publications/ts062017a Tue, 20 Jun 2017 00:00:00 -0400 <p> Friends of our blog are conducting&nbsp;a survey of lawyers who work in-house at companies and who have some experience with trade secret law.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/trade-secret-survey-of-in-house-counsel/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=dad7d644d4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-dad7d644d4-73179565">click here</a>.</p> http://www.seyfarth.com:80/news/babson062017 Marshall Babson quoted in the New York Times http://www.seyfarth.com:80/news/babson062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a June 20 story from the New York Times, &quot;Trump Takes Steps to Undo Obama Legacy on Labor,&quot; on the nomination of Marvin Kaplan, a lawyer serving on a federal health and safety commission, to one of two vacant seats on the NLRB. Babson found Kaplan to be very thoughtful and careful and said that it is hardly unprecedented for a congressional aide to ascend to the labor board. You can read the <a href="https://mobile.nytimes.com/2017/06/20/business/nlrb-trump-labor.html?_r=0&amp;referer">full article here</a>.</p> http://www.seyfarth.com:80/news/gart062017 Ron Gart quoted in Law360 http://www.seyfarth.com:80/news/gart062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> Ron Gart was quoted in a June 20 story from Law360, &quot;Regulatory Reform May Level The Bank-Nonbank Playing Field,&quot; on a bill recently introduced in the U.S. House of Representatives which would make clear that loans made to reposition assets are not HVCRE loans. Gart said that anything that will get lenders lending, particularly in the construction loan area, which has been adversely impacted the most, is a step in the right direction.</p> http://www.seyfarth.com:80/news/passantinowlj062017 Alex Passantino quoted in Westlaw Journal Employment http://www.seyfarth.com:80/news/passantinowlj062017 Tue, 20 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 20 story from Westlaw Journal Employment, &quot;U.S. Labor Department rescinds Obama-era rule on &#39;joint employment&#39;.&quot; Passantino said that the withdrawal does not change the law; it simply removes as the DOL&#39;s position those statements made in the AIs.</p> http://www.seyfarth.com:80/publications/mills061917 John Mills authored an article in International Law Office http://www.seyfarth.com:80/publications/mills061917 Mon, 19 Jun 2017 00:00:00 -0400 <p> John Mills authored a June 19 article in International Law Office, &quot;Third Circuit holds post-petition filing of New Jersey construction lien violates automatic stay.&quot; The article analyzes a Third Circuit Court of Appeals opinion regarding whether the filing of a mechanic&#39;s lien after the commencement of a bankruptcy case violated the automatic stay. You can read the <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/Third-Circuit-holds-post-petition-filing-of-New-Jersey-construction-lien-violates-automatic-stay?utm_source=Twitter&amp;utm_medium=Tweet&amp;utm_content=Newsletter-35695&amp;utm_campaign=Twitter-2017">full article here</a>.</p> http://www.seyfarth.com:80/publications/law360061917 Jerry Maatman, Andrew Scroggins and Christopher DeGroff authored an article in Law360 http://www.seyfarth.com:80/publications/law360061917 Mon, 19 Jun 2017 00:00:00 -0400 <p> Jerry Maatman, Andrew Scroggins and Christopher DeGroff authored a June 19 article in Law360, &quot;What Employers Can Learn From EEOC Enforcement Timelines.&quot; The article discusses the firm&#39;s first of its kind, in-depth analysis of EEOC docket statistics that sheds new light on how quickly the EEOC moves matters from letter of determination, through conciliation, to litigation.</p> http://www.seyfarth.com:80/publications/EL061617 The Antichrist at Work: 4th Circuit Affirms Judgment Against Employer for Failing to Accommodate Employee’s Religious Belief Regarding “Mark of the Beast” http://www.seyfarth.com:80/publications/EL061617 Fri, 16 Jun 2017 00:00:00 -0400 <p> On June 12, 2017, in EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a damages award of almost $600,000 against an employer for failing to accommodate an employee&rsquo;s religious belief that a biometric hand scanner would tag him with the &ldquo;Mark of the Beast,&rdquo; contrary to his evangelical Christian religious beliefs.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/the-antichrist-at-work-4th-circuit-affirms-judgment-against-employer-for-failing-to-accommodate-employees-religious-belief-regarding-mark-of-the-beast/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=9b9edf945b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-9b9edf945b-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/IMM061617 Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information http://www.seyfarth.com:80/publications/IMM061617 Fri, 16 Jun 2017 00:00:00 -0400 <p> As part of the Trump Administration&rsquo;s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and includes the applicant&rsquo;s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visit; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past five years.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/extreme-vetting-measures-to-include-questionnaires-asking-for-detailed-travel-history-and-social-media-information/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=ef8793fb58-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-ef8793fb58-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM061617-LE Trump Administration Implements Extreme Vetting Measures For Certain Visa Applicants Requiring Detailed Travel History And Social Media Information http://www.seyfarth.com:80/publications/OMM061617-LE Fri, 16 Jun 2017 00:00:00 -0400 <p> <strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">To stay up-to-date on Immigration developments,&nbsp;<a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer;">sign up</a>&nbsp;for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.</em></p> <p> As part of the Trump Administration&rsquo;s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance.&nbsp; The information requested in the new, supplemental questionnaire is extensive, and requires disclosure of the applicant&rsquo;s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visits; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past 5 years.</p> <p> Consular officers will not require all visa applicants to complete the supplemental questionnaire. As part of the visa application interview and screening process, consular officers will decide when the individual visa applicant&rsquo;s background warrants additional security checks. Previous travel by the visa applicant to areas controlled by terrorist groups is expected to make it more likely that the consular officer will request completion of the supplemental questionnaire. The U.S. Department of State estimates that approximately 65,000 people (less than 1% of 13 million visa applicants worldwide) may be requested to complete the supplemental questionnaire each year.</p> <p> When a consular officer determines that the supplemental questionnaire is necessary, s/he is expected to inform the visa applicant, allow the applicant to complete the supplemental questionnaire offsite and email the completed document so that visa processing may resume. Although the supplemental questionnaire states that providing the requested information is voluntary, failure to provide the requested information will likely result in a denial of the visa application.&nbsp;</p> <p> We expect that such extensive security screening of some visa applicants will increase uncertainty in visa application outcomes and contribute to delays in appointment availability and visa processing times at U.S. Consulates and Embassies worldwide. Use of the supplemental questionnaire has been approved through the end of November 2017 and is expected to be extended.</p> http://www.seyfarth.com:80/publications/wse061917 DOJ to No Longer Allow Settlements to Include Contributions to Third Parties, Thereby Threatening the Future of SEPs http://www.seyfarth.com:80/publications/wse061917 Fri, 16 Jun 2017 00:00:00 -0400 <p> Attorney General Jeff Sessions issued <a href="https://www.justice.gov/opa/press-release/file/971826/download">a memo</a> last week to all Department of Justice staff and 94 U.S. Attorney&rsquo;s Offices, prohibiting payments to nongovernmental entities that are not a party to the litigation as part of a negotiated settlement.&nbsp;</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/environmental-litigation/doj-to-no-longer-allow-settlements-to-include-contributions-to-third-parties-thereby-threatening-the-future-of-seps/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=69dbdac223-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-69dbdac223-73179581">click here</a>.</p> http://www.seyfarth.com:80/news/talibart061617 Peter Talibart quoted by the Canadian Bar Association http://www.seyfarth.com:80/news/talibart061617 Fri, 16 Jun 2017 00:00:00 -0400 <p> Peter Talibart was quoted in a June 16 story by the Canadian Bar Association, &quot;Modern slavery: How many slaves work for you?,&quot; on his participation on the panel, &ldquo;Modern Slavery in Supply Chains: Trends in Global Corporate Liability and Legislation.&rdquo; Talibart said that we know more about the quality of the wood in our chairs than we do about the health and safety and security of the men, women and children who made them. You can read the <a href="http://nationalmagazine.ca/Articles/June-2017/Modern-Slavery-How-Many-Slaves-Work-for-You.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/yap061517 Julie Yap quoted in Bloomberg http://www.seyfarth.com:80/news/yap061517 Thu, 15 Jun 2017 00:00:00 -0400 <p> Julie Yap was quoted in a June 15 story from Bloomberg on whether courts will embrace the EEOC&rsquo;s view of what constitutes a discriminatory parental leave policy. Yap said that Until there&rsquo;s a critical mass of cases that result in judicial opinions, she thinks it&rsquo;s anyone&rsquo;s guess whether we&rsquo;ll get a consensus from circuit courts or the Supreme Court. You can read the <a href="https://www.bloomberg.com/news/articles/2017-06-15/jpmorgan-chase-discriminates-against-dads-aclu-complaint-says">full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguezworkforce061517 Leon Rodriguez quoted in Workforce http://www.seyfarth.com:80/news/rodriguezworkforce061517 Thu, 15 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 15 story from Workforce, &quot;HR Rethinks H-1B Ahead of Expected Reforms,&quot; on how supporters and opponents of the current H-1B system have introduced bills that would expand or curtail the program respectively. Rodriguez said that it&rsquo;s a tossup whether a Congress that&rsquo;s divided over it and many other issues will be able to accomplish anything this term. You can read the <a href="http://www.workforce.com/2017/06/15/hr-rethinks-h-1b-ahead-expected-reforms/">full article here</a>.</p> http://www.seyfarth.com:80/publications/wc061517 More “Mark of the Beast” – Fourth Circuit Affirms Denial Of Employer’s Post-Verdict Motions In EEOC’s Anti-Christ Discrimination Case http://www.seyfarth.com:80/publications/wc061517 Thu, 15 Jun 2017 00:00:00 -0400 <p> Most religious accommodation lawsuits brought by the EEOC against employers concern mainstream religions. But when the EEOC successfully sues an employer for failing to accommodate an employee&rsquo;s Anti-Christ fears, employers need to pay attention, especially when that cases involves a jury verdict awarding over $586,000 in total damages (as we blogged about <a href="http://www.workplaceclassaction.com/2016/02/judgment-day-dooms-employer-no-new-trial-in-eeoc-case-after-finding-of-failure-to-accommodate-anti-christ-fears/">here</a>).</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/more-mark-of-the-beast-fourth-circuit-affirms-denial-of-employers-post-verdict-motions-in-eeocs-anti-christ-discrimination-case/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=46aa30107b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-46aa30107b-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM061517-LIT Sandoz v. Amgen: Supreme Court Nixes Post-Approval Waiting Period for Biosimilars http://www.seyfarth.com:80/publications/OMM061517-LIT Thu, 15 Jun 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> &nbsp;In its first opinion relating to the Biologics Price Competition and Innovation Act of 2009 (&ldquo;BPCIA&rdquo;), the Supreme Court in Sandoz Inc. v. Amgen Inc. provided a win to biosimilar companies, eliminating the Federal Circuit&rsquo;s requirement that the company wait to launch its product until 180 days after FDA approval. &nbsp;The Sandoz decision also keeps alive, however, the possibility that the brand biologic company could compel biosimilar applicants to produce their application and manufacturing information under state law. &nbsp;The Federal Circuit must address that concern on remand.</em></div> <div> &nbsp;&nbsp;</div> <div> Finding against the Federal Circuit once again on a patent case, the Supreme Court this week issued a unanimous decision in <em><a href="https://www.supremecourt.gov/opinions/16pdf/15-1039_1b8e.pdf">Sandoz v. Amgen</a></em> relating to the interpretation of the Biologics Price Competition and Innovation Act of 2009 (&ldquo;BPCIA&rdquo;). &nbsp;The BPCIA provides the mechanism by which companies can bring to market &ldquo;biosimilar&rdquo; compounds, i.e., products that can compete with biological drugs much the same way as generic drugs compete with traditional &ldquo;brand&rdquo; pharmaceutical products.</div> <div> &nbsp;</div> <div> The Supreme Court considered two issues. &nbsp;First, the biosimilar applicant, Sandoz, challenged the Federal Circuit&rsquo;s interpretation of the BPCIA as requiring an applicant to wait until after the FDA approved its biosimilar application before providing the requisite 180-day notice of commercial marketing to the brand company. &nbsp;This meant that a biosimilar applicant had to wait an additional 180 days after its application was granted before it could launch a competing product. &nbsp;The FDA cannot approve (&ldquo;license&rdquo;) a biosimilar product until twelve years after the biologic was first approved by the agency. &nbsp;Thus, the Federal Circuit&rsquo;s decision effectively provided the brand manufacturer with 12&frac12; years rather than 12 years of market exclusivity.</div> <div> &nbsp;</div> <div> The Supreme Court reversed the Federal Circuit and explicitly determined that applicants can provide notice before or after FDA approval. &nbsp;According to the Supreme Court, the pertinent statutory language in the BPCIA has two separate requirements: &nbsp;(1) that the biosimilar application is &ldquo;licensed&rdquo; before it is marketed; and (2) that the biosimilar applicant gives notice 180 days before marketing occurs. &nbsp;The Federal Circuit thus erred in requiring licensure before notice could be given.</div> <div> &nbsp;</div> <div> The second issue tackled by the Supreme Court relates to the &ldquo;patent dance&rdquo; provisions of the BPCIA. &nbsp;The &ldquo;patent dance&rdquo; is a statutory scheme through which the biosimilar applicant and the brand manufacturer exchange information and legal theories until deciding upon which patents to litigate first. &nbsp;Sandoz refused to provide the biosimilar application and manufacturing information contemplated in the dance, leading Amgen to seek an injunction under federal and state law to compel participation. &nbsp;The district court and Federal Circuit determined that an injunction was not available.</div> <div> &nbsp;</div> <div> On cross-appeal, the Supreme Court agreed with the Federal Circuit that injunctions under federal law are not permitted, but remanded the case to review state law remedies. &nbsp;According to the Court, the BPCIA allows the brand company immediately to bring a declaratory judgment action against the biosimilar applicant if they do not provide their application and manufacturing information. &nbsp;This remedy deprives the applicant of the ability to control the scope of the litigation (i.e., which patents to litigate) and the timing of the suit. &nbsp;The Supreme Court determined that the remedy of immediate suit was the only federal remedy contemplated for an applicant&rsquo;s failure to dance. &nbsp;The Supreme Court remanded the case to address whether non-compliance with the BPCIA can be considered a violation of California law entitling Amgen to an injunction and/or whether the BPCIA&rsquo;s remedy pre-empts any state law remedies.</div> <div> &nbsp; &nbsp;</div> <div> <strong>Takeaways:</strong></div> <div> &nbsp;</div> <ul> <li> Biosimilar applicants can submit notice of intent to market before or after FDA approval of their biosimilar products.<br /> &nbsp;</li> <li> Under federal law, failing to comply with the &ldquo;patent dance&rdquo; provisions of the Biologics Price Competition and Innovation Act of 2009 cannot be enforced by an injunction. &nbsp;Whether state law could compel the dancing remains to be determined on remand.&nbsp;</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WC061417 Sixth Circuit Signs Off On EEOC Subpoena In UPS Disability Discrimination Case http://www.seyfarth.com:80/publications/WC061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> As we discussed in recent blog posts (here, here, and here), the EEOC has been aggressive in issuing expansive subpoenas that seek company-wide information from employers, as opposed to limiting the subpoena to seek information about an individual charging party. &nbsp;In the latest round of EEOC versus employer subpoena litigation, in EEOC v. United Parcel Service, Inc., No. 16-2132, 2017 U.S. App. LEXIS 10280 (6th Cir. June 9, 2017), the U.S. Court of Appeals for the Sixth Circuit affirmed a decision of the U.S. District Court for the Eastern District of Michigan granting the EEOC&rsquo;s application to enforce a subpoena that sought company-wide information, even though investigation concerned a single employee&rsquo;s charge of discrimination.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/sixth-circuit-signs-off-on-eeoc-subpoena-in-ups-disability-discrimination-case/">click here</a>.</p> http://www.seyfarth.com:80/publications/ts061517 Emerging Issues In the Defend Trade Secrets Act’s Second Year http://www.seyfarth.com:80/publications/ts061517 Wed, 14 Jun 2017 00:00:00 -0400 <p> One year after its enactment, the Defend Trade Secrets Act (DTSA) 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., <em>ex parte</em> seizure of property), that were not previously available under state trade secret laws. The less than 70 reported DTSA cases to date provide an early glimpse into how courts may interpret the statute going forward and what early concerns about the statute may have been exaggerated.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/dtsa/emerging-issues-in-the-defend-trade-secrets-acts-second-year/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=7e206df6e9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-7e206df6e9-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/cp061417 Scary as Dinosaurs: California’s Genetic Information Discrimination Code http://www.seyfarth.com:80/publications/cp061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> For most of us, exposure to &ldquo;DNA&rdquo; dates back to high school science class or dinosaur theme park movies. Many of us would not know how to begin to explain the intricacies of the human genome, including how different nucleotides form the basis of DNA, or how they cause characteristics in multi-cellular organisms.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/14/scary-as-dinosaurs-californias-genetic-information-discrimination-code/">click here</a>.</p> http://www.seyfarth.com:80/publications/ts061417a Briefing Recap! Trade Secret Protection: What Every California Employer Needs to Know http://www.seyfarth.com:80/publications/ts061417a Wed, 14 Jun 2017 00:00:00 -0400 <p> In a series of breakfast briefings, Seyfarth attorneys Robert Milligan, Joshua Salinas, and Scott Atkinson, joined by Jim Vaughn, one of California&rsquo;s leading computer forensic experts, discussed how to navigate the tricky waters and provided best practices for trade secret protection.&nbsp;</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/dtsa/briefing-recap-trade-secret-protection-what-every-california-employer-needs-to-know/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=7e206df6e9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-7e206df6e9-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/wse061617 U.S. EPA Delay’s Effectiveness of Obama Era Chemical Safety Regulation http://www.seyfarth.com:80/publications/wse061617 Wed, 14 Jun 2017 00:00:00 -0400 <p> The U.S. Environmental Protection Agency&rsquo;s new rules to strengthen the Clean Air Act&rsquo;s Risk Management Program (RMP), 40 C.F.R. Part 68, were first adopted on January 13, 2017 (<a href="https://www.gpo.gov/fdsys/pkg/FR-2017-01-13/pdf/2016-31426.pdf">82 Fed. Reg. 4594</a>), after the proposed regulations were published for notice and comment on March 14, 2016.</p> <p> To read the full blog post, <a href="http://www.environmentalsafetyupdate.com/caa/u-s-epa-delays-effectiveness-of-obama-era-chemical-safety-regulation/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=8dc8761f5d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-8dc8761f5d-73179581">click here</a>.</p> http://www.seyfarth.com:80/publications/061417-CEL China Employment Law Alert: New Work Permit Policy for Expats in China http://www.seyfarth.com:80/publications/061417-CEL Wed, 14 Jun 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong> A new Work Permit Policy (Policy) is being implemented in China.&nbsp; The Policy had been initially implemented from October 2016 to March 2017 through a <a href="http://english.gov.cn/state_council/ministries/2016/09/09/content_281475437528287.htm">pilot program</a>&nbsp;in a number of regions including Shanghai, Beijing, Tianjin, and Shenzhen. &nbsp;Nationwide implementation of the Policy commenced on April 1, 2017.</p> <p> <strong>Policy Features&nbsp; </strong></p> <p> The Policy consists of two main features: (1) expats working in China will now be issued a single multipurpose &ldquo;Work Permit&rdquo;, and (2) expats will be categorized into three different groups that will now affect how easy it is for them to get a Work Permit.</p> <p> <em>Multipurpose Work Permit</em></p> <p> Expat workers in China were classified previously as either (i) foreign employees eligible for an &ldquo;Employment Permit,&rdquo; or (ii) foreign employees eligible for an &ldquo;Expert Permit.&rdquo; These two permits are now combined into one &ldquo;Work Permit&rdquo; that will be assigned to foreign applicants through the issuance of identification (ID) cards with unique ID numbers. Each ID card will belong to one foreign individual for life. Foreign employees with existing work permits may elect to maintain their existing permits until their expiration dates or may convert them to new Work Permits.</p> <p> Shanghai, assuming a leading role in the Policy, issued its first Work Permit to a faculty member of the SJTU-ParisTech Elite Institute of Technology at Shanghai Jiaotong University in November 2016.</p> <p> Since the full implementation of the unified application across the country on April 1, the new multipurpose Work Permit Policy has been well received and instituted in more than ten provinces of China.</p> <p> <em>3-Tier Classification System</em></p> <p> Under the Policy, foreign applicants will be divided into three categories based on a scoring system. Credits will be assigned to applicants for Work Permits based on their education, background, salary level, age, time spent working in China, and Chinese language fluency. Many cities now operating under the policy have issued local standards for the scoring system.</p> <p> <u>Category A</u> applies to foreign high-end talent, such as expats selected by China&rsquo;s talent-import plan, expats with internationally recognized awards, leading figures in the science and technology industry, and successful entrepreneurs.&nbsp; There is no limit to the number of expats in this category who may receive Work Permits.</p> <p> <u>Category B</u> applies to foreign professionals. Examples include workers who hold a bachelor&rsquo;s (or higher) degree and have two years of full time experience related to the work to be performed. The number of expats in this category who may receive Work Permits will vary depending on market demand.</p> <p> <u>Category C</u> applies to the remaining types of foreign workers, who are typically non-technical or service workers hired on a temporary or seasonal basis. The number of expats in this category who may receive Work Permits is significantly restricted and subject to a quota.</p> <p> <strong>Implications for Multinational Employers</strong></p> <p> The Policy aims to both streamline current administrative procedures and attract high-end foreign talent to China. Expats whose skills are urgently needed in Chinese labor markets are being encouraged to work in China through the now less restrictive permitting process and easier application protocols.</p> <p> Multinational employers should note that the Policy is early in the implementation process.&nbsp; Employers should pay close attention to the changing application rules and procedures, and be mindful that when hiring foreign workers in different parts of China the rules will be different.</p> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/RD061417-LE First Federal Court Rules That Having An Inaccessible Website Violates Title III Of The ADA http://www.seyfarth.com:80/publications/RD061417-LE Wed, 14 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp; </strong>The first impression trial verdict finding retailer Winn-Dixie liable under Title III of the ADA for having an inaccessible website suggests that public accommodations should focus on their website accessibility efforts now.</em></p> <p> On June 13, 2017, Florida federal District Court Judge Robert Scola issued a 13-page <a href="http://www.adatitleiii.com/wp-content/uploads/sites/121/2017/06/16-cv-23020-63-Verdict-Order_WinnDixie.pdf">Verdict and Order</a> finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.&nbsp; Mr. Gil is blind and uses screen reader software to access websites.&nbsp; Judge Scola ordered injunctive relief, including a draft three-year injunction we have included below, and awarded Mr. Gil his attorneys&rsquo; fees and costs.&nbsp;</p> <p> Although the decision is not binding on any other federal courts or judges - not even in the same judicial district - it is significant for a number of reasons.</p> <p> First, it is the first decision to hold, after a full trial, that a public accommodation violated Title III of the ADA by having an inaccessible website.&nbsp; To the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real.</p> <p> Second, the draft injunction adopts the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility standard that Winn-Dixie must meet in making its website accessible.&nbsp; WCAG 2.0 AA is a set of guidelines developed by a private group of accessibility experts and has not been adopted as the legal standard for public accommodation websites, although it has been incorporated into many consent decrees, settlement agreements, and is the standard the Department of Justice referenced in the Title II rulemaking process.&nbsp; The court&rsquo;s adoption of this set of guidelines further points to WCAG 2.0 AA as the <em>de facto </em>standard for website accessibility.</p> <p> Third, the court did not consider the $250,000 cost of making the website accessible to be an undue burden.&nbsp; The court said this cost &ldquo;pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.&rdquo;</p> <p> Fourth, commenting on an issue causing many businesses concern, the court held Winn-Dixie responsible for the entire website&rsquo;s lack of accessibility even though parts of the website are operated by third party vendors.&nbsp; It stated: &ldquo;[M]any, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.&rdquo;</p> <p> The court issued the following draft injunction, and ordered the parties to confer about the deadlines to be inserted in the blanks.&nbsp;</p> <p> Pursuant to the terms of this Order and Injunction, Winn-Dixie, Inc.:</p> <p style="margin-left: 40px;"> <em>1. Shall not, no later than _____(date) _____, deny individuals with disabilities, including the Plaintiff, the opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets, and smart phones.</em></p> <p style="margin-left: 40px;"> <em>2. Shall not, no later than &nbsp;_____(date) _____, provide individuals with disabilities, including the Plaintiff, an unequal opportunity to participate and benefit from the goods, services, facilities, privileges, advantages, and accommodations provided through its website www.winndixie.com. The website must be accessible by individuals with disabilities who use computers, laptops, tablets and smart phones.</em></p> <p style="margin-left: 40px;"> <em>3. No later than &nbsp;_____(date) _____, shall adopt and implement a Web Accessibility Policy which ensures that its website conforms with the WCAG 2.0 criteria.&nbsp;</em></p> <p style="margin-left: 40px;"> <em>4. No later than &nbsp;_____(date) _____, shall require any third party vendors who participate on its website to be fully accessible to the disabled by conforming with WCAG 2.0 criteria.</em></p> <p style="margin-left: 40px;"> <em>5. No later than &nbsp;_____(date) _____, shall make publicly available and directly link from the www.winndixie.com homepage, a statement of WinnDixie&rsquo;s Accessibility Policy to ensure the persons with disabilities have full and equal enjoyment of its website and shall accompany the public policy statement with an accessible means of submitting accessibility questions and problems.</em></p> <p style="margin-left: 40px;"> <em>6. No later than &nbsp;_____(date) _____, and at least once yearly thereafter, shall provide mandatory web accessibility training to all employees who write or develop programs or code for, or who publish final content to, www.winndixie.com on how to conform all web content and services with WCAG 2.0 criteria.</em></p> <p style="margin-left: 40px;"> <em>7. No later than &nbsp;_____(date) _____, and at least once every three months thereafter, shall conduct automated accessibility tests of its website to identify any instances where the website is no longer in conformance with WCAG 2.0.</em></p> <p style="margin-left: 40px;"> <em>8. If the Plaintiff believes the Injunction has been violated, he shall give notice (including reasonable particulars) to the Defendant of such violation. The Defendant shall have 30 days from the notice to investigate and correct any alleged violations. If the Defendant fails to correct the violation, the Plaintiff may then seek relief from the Court.</em></p> <p style="margin-left: 40px;"> <em>9. In light of what the Court has already found to be the Defendant&rsquo;s sincere and serious intent to make its website accessible to all, this Injunction will expire in three years.</em></p> <p> In the absence of any regulations setting forth the requirements for a website accessibility program, this injunction, once finalized, will provide a judicially-approved framework for such a program for those public accommodations that want to adopt one.</p> http://www.seyfarth.com:80/publications/EL061417 China Employment Law Alert: New Work Permit Policy for Expats in China http://www.seyfarth.com:80/publications/EL061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> The Policy consists of two main features: (1) expats working in China will now be issued a single multipurpose &ldquo;Work Permit&rdquo;, and (2) expats will be categorized into three different groups that will now affect how easy it is for them to get a Work Permit.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/china-employment-law-alert-new-work-permit-policy-for-expats-in-china/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=2cad547a2d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-2cad547a2d-73179553">click here</a>.</p> http://www.seyfarth.com:80/news/rodriguezfierce061417 Leon Rodriguez quoted in FierceHealthcare http://www.seyfarth.com:80/news/rodriguezfierce061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in a June 14 story from FierceHealthcare, &quot;HHS is considering changes to OCR&rsquo;s &#39;wall of shame&#39;&mdash;and experts are divided on the impact,&quot; on how the Department of Health and Human Services is exploring potential changes to the agency&rsquo;s &ldquo;wall of shame,&rdquo; a legislatively mandated website that tracks healthcare data breaches dating back to 2009. Rodriguez questioned whether changes would undermine the portal&rsquo;s objectives&mdash;to inform the public and understand why a data breach occurred. You can read the <a href="http://www.fiercehealthcare.com/regulatory/hhs-ocr-wall-shame-breach-portal-data-breach-cybersecurity-hitech-act">full article here</a>.</p> http://www.seyfarth.com:80/news/mcconnell061417 Kathleen McConnell quoted in Legaltech News http://www.seyfarth.com:80/news/mcconnell061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> Kathleen McConnell was quoted in a June 14 story from Legaltech News, &quot;The Present and Future of Analytics at Today&rsquo;s Law Firms,&quot; on her Legalweek West panel where she discussed strategies and predictions for analytics in e-discovery, litigation and more. McConnell said that one of her team&#39;s main goals with e-discovery analytics actually has nothing to do with production for litigation, but rather seeing whether litigation is actually necessary in the first place. You can read the <a href="http://www.legaltechnews.com/id=1202789826041/The-Present-and-Future-of-Analytics-at-Todays-Law-Firms?mcode=1202617074729&amp;curindex=2&amp;curpage=ALL">full article here</a>.</p> http://www.seyfarth.com:80/publications/CDL061417 Department of Homeland Security and FBI Release Alert Regarding North Korean “Hidden Cobra” Cyber Attacks http://www.seyfarth.com:80/publications/CDL061417 Wed, 14 Jun 2017 00:00:00 -0400 <p> On June 13, 2017, the Department of Homeland Security published an alert regarding malicious cyber activity by the North Korean government, known as Hidden Cobra. &nbsp;Per the DHS and FBI, Hidden Cobra uses cyber operations to the government and military&rsquo;s advantage by exfiltrating data and causing disruptive cyber intrusions.</p> <p> To read the full blog post, <a href="http://www.carpedatumlaw.com/2017/06/department-homeland-security-fbi-release-alert-regarding-north-korean-hidden-cobra-cyber-attacks/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=dddb8f606a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-dddb8f606a-73179541">click here</a>.</p> http://www.seyfarth.com:80/news/vu061317 Minh Vu quoted in the Wall Street Journal http://www.seyfarth.com:80/news/vu061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> Minh Vu was quoted in a June 13 story from the Wall Street Journal, &quot;Judge Backs Making Consumer Websites Accessible to Blind,&quot; on a recent ruling that must make its website accessible to the blind, following an unprecedented trial over a gray area of accessibility law. Vu said that the ruling is definitely a game-changer and it sends a signal to other companies that there&rsquo;s a very real possibility a judge could find this way. You can read the <a href="https://www.wsj.com/articles/judges-ruling-aids-push-to-make-consumer-websites-accessible-to-blind-1497382218">full article here</a>.</p> http://www.seyfarth.com:80/news/vuforbes061317 Minh Vu quoted in Forbes http://www.seyfarth.com:80/news/vuforbes061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> Minh Vu was quoted in a June 13 story from Forbes, &quot;First-Of-Its-Kind Trial Goes Plaintiff&#39;s Way; Winn-Dixie Must Update Website For The Blind,&quot; on a recent ruling for a blind man who has filed nearly 70 lawsuits alleging that various companies&rsquo; websites violate the Americans with Disabilities Act. Vu said that to the extent that businesses are considering whether to settle or litigate these cases, this decision makes the possibility of an adverse verdict much more real. You can read the <a href="https://www.forbes.com/sites/legalnewsline/2017/06/13/first-of-its-kind-trial-goes-plaintiffs-way-winn-dixie-must-update-website-for-the-blind/#4e3831c1b38a">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinobi061317 Alex Passantino quoted in Business Insurance http://www.seyfarth.com:80/news/passantinobi061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 13 story from Business Insurance, &quot;Employers welcome Labor&rsquo;s move on joint employment, independent contractors,&quot; on the U.S. Department of Labor&rsquo;s withdrawal of the Obama administration&rsquo;s joint employment and independent contractors guidances that expanded the definition of employees is a welcome relief to employers. Passantino said that its impact is hard to evaluate at this point because while they&rsquo;ve taken their thumb off the scale, they have not, as of yet, taken a position that is different. You can read the <a href="http://www.businessinsurance.com/article/20170613/NEWS06/912313900/Employers-welcome-joint-employment-independent-contractors-DOL-change">full article here</a>.</p> http://www.seyfarth.com:80/publications/ADA061317 First Federal Court Rules That Having An Inaccessible Website Violates Title III Of The ADA http://www.seyfarth.com:80/publications/ADA061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> As we reported yesterday, Florida federal District Court Judge Robert Scola last week presided over the first trial in the history of the ADA about an allegedly inaccessible website. &nbsp;Today, Judge Scola issued a 13-page Verdict and Order finding that grocer Winn-Dixie violated Title III of the ADA by having a website that was not useable by plaintiff Juan Carlos Gil to download coupons, order prescriptions, and find store locations.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/first-federal-court-rules-that-having-an-inaccessible-website-violates-title-iii-of-the-ada/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=5bef3ce134-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-5bef3ce134-73047125">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT061317 Sessions Seeks Repeal of Rohrabacher-Farr http://www.seyfarth.com:80/publications/TBT061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> Attorney General Jeff Sessions is in the news for two reasons today: he&rsquo;s testifying before the Senate Intelligence Committee on his possible links to Russia and a letter he wrote to Congress indicating his disapproval of the Rohrabacher-Farr Amendment has surfaced.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/06/sessions-seeks-repeal-of-rohrabacher-farr/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=12be883973-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-12be883973-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/WC061317 Sixth Circuit Shuts Down EEOC’s Appeal In Sex Harassment Suit http://www.seyfarth.com:80/publications/WC061317 Tue, 13 Jun 2017 00:00:00 -0400 <p> In EEOC v. AutoZone, Inc., No. 16-6387 (6th Cir. June 9, 2017), the EEOC alleged that AutoZone was liable under Title VII for a store manager&rsquo;s alleged sexual harassment of three female employees. &nbsp;After the U.S. District Court for the Western District of Tennessee granted the employer&rsquo;s motion for summary judgment, the EEOC appealed.&nbsp;</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/sixth-circuit-shuts-down-eeocs-appeal-in-sex-harassment-suit/">click here</a>.</p> http://www.seyfarth.com:80/publications/SCGL061317 Securities and Corporate Governance Litigation Quarterly http://www.seyfarth.com:80/publications/SCGL061317 Tue, 13 Jun 2017 00:00:00 -0400 <div> <em>Welcome to the seventh issue of Securities and Corporate Governance Litigation Quarterly, Seyfarth&rsquo;s quarterly publication of the Securities &amp; Financial Litigation Group focusing on decisions or other items of interest for corporate and transactional lawyers. Each summary below is followed by key practice takeaways. &nbsp;</em></div> <div> &nbsp;</div> <div> <strong>Delaware Chancery Court Clarifies Roadmap for Avoiding Challenges to Director Compensation Decisions</strong></div> <div> &nbsp;</div> <div> In a much awaited decision, the Delaware Court of Chancery recently decided <a href="http://courts.delaware.gov/Opinions/Download.aspx?id=255120"><em>In re Investors Bancorp. Inc. Stockholder Litig.</em></a>, No 12327-VCS (Del. Ch. April 5, 2017), in which it applied the business judgment standard of review and rejected the stockholders&rsquo; challenge to compensation amounts the directors set for themselves. &nbsp;</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/uploads/siteFiles/publications/SecuritiesandCorporateGovernanceLitigationQuarterly_June2017.pdf">Read Full Newsletter</a></div> http://www.seyfarth.com:80/publications/MA061317-LE Seventh Circuit Affirms Likelihood of Success that School’s Bathroom Policy Violates Title IX and Equal Protection Clause http://www.seyfarth.com:80/publications/MA061317-LE Tue, 13 Jun 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: The Seventh Circuit affirmed that a transgender student demonstrated a likelihood of success on claims that his school district&rsquo;s decision to prohibit him from using the boys&rsquo; restroom violated both Title IX and the Constitution&rsquo;s Equal Protection Clause.</em></p> <p> In <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2017/D05-30/C:16-3522:J:Williams:aut:T:fnOp:N:1971382:S:0"><em>Whitaker v. Kenosha Unified School District No. 1 Board of Education</em></a>, a transgender high school student alleged that his school district informed him that, because he was listed as &ldquo;female&rdquo; in the school&rsquo;s records and had not undergone a surgical transition--a procedure prohibited for minors--he could use only the girls&rsquo; restroom or a gender neutral bathroom.&nbsp; The Complaint asserted that this violated his civil rights under Title IX and the Equal Protection Clause of the Fourteenth Amendment. &nbsp;One month after initiating the case, the student filed a motion for preliminary injunction.&nbsp; The next day, the school district filed a motion to dismiss.&nbsp; The United States District Court for the Eastern District of Wisconsin denied the motion to dismiss and granted the preliminary injunction.</p> <p> On May 30, 2017, the United States Court of Appeals for the Seventh Circuit affirmed the district court&rsquo;s decision.&nbsp; The Seventh Circuit declined to hear an appeal on the motion to dismiss, concluding it was not &ldquo;inextricably intertwined&rdquo; with the preliminary injunction ruling.&nbsp;</p> <p> In affirming the lower court&rsquo;s ruling, the appellate court held that the student met his burden by making a threshold showing in support of the preliminary injunction.&nbsp; First, because two experts opined that use of the boys&rsquo; restroom was integral to his &ldquo;transition and emotional well-being,&rdquo; the student was likely to suffer irreparable harm without an injunction.&nbsp; Second, any harm the student would face without an injunction could not be remedied by an after-the-fact award of monetary damages because he provided evidence that he had contemplated suicide and this potential harm cannot be adequately remedied by legal relief.&nbsp; Third, the student&rsquo;s chances of success on his Title IX and Equal Protection Clause claims were &ldquo;better than negligible.&rdquo;&nbsp;</p> <p> Regarding Title IX, the court analogized to Title VII, finding that current case law did not foreclose the student from bringing his claim on a theory of sex stereotyping, as articulated by the Supreme Court in <a href="https://supreme.justia.com/cases/federal/us/490/228/case.html"><em>Price Waterhouse v. Hopkins</em></a>. &nbsp;With regard to the Equal Protection Clause, the court found the school district&rsquo;s policy was a classification based on sex and thus merited application of heightened scrutiny, noting that &ldquo;[w]hen a sex-based classification is used, the burden rests with the state to demonstrate that its proffered justification is &lsquo;exceedingly persuasive.&rsquo;&rdquo;&nbsp;</p> <p> The Seventh Circuit rejected the school district&rsquo;s argument that the student&rsquo;s presence in the boys&rsquo; restroom infringed on the privacy of other students. &nbsp;In so doing, the court recognized the legitimate interest a school district has in ensuring bathroom privacy rights are protected, but noted that the &ldquo;interest must be weighed against the facts of the case and not just examined in the abstract, to determine whether the justification is genuine.&rdquo;&nbsp; The Seventh Circuit reviewed the record and concluded that the &ldquo;School District&rsquo;s privacy argument is based on sheer conjecture and abstraction,&rdquo; citing the fact that the student had used the restroom for months without issue and that the school district presented no evidence that his presence was any more intrusive than that of &ldquo;an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.&rdquo;</p> <p> The decision suggests that, although the present administration has backed away from interpreting Title IX to prohibit discrimination based on transgender status, private litigants may find support for this theory in court.&nbsp; Further, <em>Whitaker</em> may be indicative of a growing trend in the Seventh Circuit to take an expansive view of coverage of LGBT status under civil rights laws.&nbsp; For example, just over two months ago, the court concluded in its <em>en banc</em> <a href="http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&amp;Path=Y2017/D04-04/C:15-1720:J:Flaum:con:T:fnOp:N:1942256:S:0">decision</a> in <em>Hively v. Ivy Tech Community College of Indiana</em>--a decision cited in <em>Whitaker</em>--that Title VII covers sexual orientation discrimination.&nbsp; Stay tuned for further developments in this rapidly evolving area of the law.</p> http://www.seyfarth.com:80/publications/wc061217 U.S. Supreme Court Rules That Plaintiffs’ Voluntary Dismissal Does Not Transform A Decision Denying Class Certification Into An Appealable Final Decision http://www.seyfarth.com:80/publications/wc061217 Mon, 12 Jun 2017 00:00:00 -0400 <p> In <em><a href="http://www.workplaceclassaction.com/wp-content/uploads/sites/214/2017/06/Microsoft-v.-Baker-et-al.pdf">Microsoft Corp. v. Baker</a>,</em> No. 15-457, 582 U.S. ___ (2017), the Supreme Court was confronted with the question of whether courts of appeal have jurisdiction to review an order denying class certification after the named plaintiffs&nbsp; have voluntary dismissed their claims with prejudice.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/u-s-supreme-court-rules-that-plaintiffs-voluntary-dismissal-does-not-transform-a-decision-denying-class-certification-into-an-appealable-final-decision/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=40dda38ba6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-40dda38ba6-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/LR061217 To Search A Supervisor’s Phone Or To Not Search A Supervisor’s Phone? That Is The Question http://www.seyfarth.com:80/publications/LR061217 Mon, 12 Jun 2017 00:00:00 -0400 <p> Under the Board&rsquo;s Election Rules employers are now required to supply a plethora of information to a union prior to a representation election, including &ldquo;available home and personal cellular (&lsquo;cell&rsquo;) telephone numbers of all eligible voters.&rdquo; For some employers, this information may be readily accessible and it can be produced to the union with ease. For others, finding the cellular phone numbers of eligible voters may not be so easy.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/06/12/to-search-a-supervisors-phone-or-to-not-search-a-supervisors-phone-that-is-the-question/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=634c51c524-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-634c51c524-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/ADA061217 First Public Accommodations Website Accessibility Case Goes To Trial In Florida http://www.seyfarth.com:80/publications/ADA061217 Mon, 12 Jun 2017 00:00:00 -0400 <p> Last week, U.S. District Judge Robert Scola presided over &mdash; to the best of our knowledge &mdash; the first trial in the history of the ADA about the accessibility of a public accommodation&rsquo;s website in the case captioned Gil v. Winn Dixie Stores, Inc.</p> <p> To read the full blog post, <a href="http://www.adatitleiii.com/2017/06/first-public-accommodations-website-accessibility-case-goes-to-trial-in-florida/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=8e08ffa091-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-8e08ffa091-73047125">click here</a>.</p> http://www.seyfarth.com:80/news/weissshrm061217 Philippe Weiss quoted in SHRM http://www.seyfarth.com:80/news/weissshrm061217 Mon, 12 Jun 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in a June 12 story from SHRM, &quot;Tell Employees What Not to Wear This Summer,&quot; on what&rsquo;s acceptable under the summer dress code in the workplace. Weiss said that most organizations permit jeans and denim dresses year-round, but overly revealing or overly snug clothes should be avoided. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/tell-employees-what-not-to-wear.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlett061217 Brett Bartlett quoted in Bloomberg BNA http://www.seyfarth.com:80/news/bartlett061217 Mon, 12 Jun 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in a June 12 story from Bloomberg BNA, &quot;Wage-Hour Enforcement Erratic With No Trump Appointment Yet,&quot; on how a shortage of Trump Labor Department officials may be muddling wage enforcement in parts of the country. Bartlett said that investigators had made overtures that they would be looking deeply at joint employment issues, and those inquiries became more quiet as the year turned and virtually disappeared in terms of the questions around joint employment after inauguration. You can read the <a href="https://www.bna.com/wagehour-enforcement-erratic-n73014453172/">full article here</a>.</p> http://www.seyfarth.com:80/news/sherman060917 Andrew Sherman quoted in CNBC.com http://www.seyfarth.com:80/news/sherman060917 Fri, 09 Jun 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in a June 9 story from CNBC.com, &quot;Why the majority of small-business owners love Trump&#39;s tax plan,&quot; on why taxes are such a big priority for entrepreneurs. Sherman said that taxes have a direct impact on the bottom line and growth and the ability to compete globally. You can read the <a href="http://www.cnbc.com/2017/06/09/the-reason-small-business-owners-love-trumps-tax-plan.html">full article here</a>.</p> http://www.seyfarth.com:80/news/weiss060917 Philippe Weiss interviewed on WIND AM 560 http://www.seyfarth.com:80/news/weiss060917 Fri, 09 Jun 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed on WIND AM 560 on how businesses can prevent bad customer experiences. You can listen to the <a href="http://barrymoltz.com/2017/06/433-small-business-radio-show/">full interview (segment 2) here</a>.</p> http://www.seyfarth.com:80/news/milligan060917 Robert Milligan quoted in BuzzFeed http://www.seyfarth.com:80/news/milligan060917 Fri, 09 Jun 2017 00:00:00 -0400 <p> Robert Milligan was quoted in a June 9 story from BuzzFeed, &quot;NowThis Forbids Staff From Taking Jobs At Other News Outlets,&quot; on how new hires at social news outlet must sign a contract that forbids them from taking a job at other media places. Milligan said that employers typically pursue legal action over non-competes on a case-by-case basis, depending on jurisdiction and how the worker leaves the company. You can read the <a href="https://www.buzzfeed.com/coralewis/nowthis-news-noncompete?fromNewsdog=1&amp;utm_term=.uakoAVBB1#.dr4WEqbbG">full article here</a>.</p> http://www.seyfarth.com:80/publications/ts060917 Trade Secrets May Retain Protections Despite Disclosure to Single Competitor http://www.seyfarth.com:80/publications/ts060917 Fri, 09 Jun 2017 00:00:00 -0400 <p> The Ninth Circuit recently held in <em><a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/05/14-10367.pdf">United States v. Liew</a>&nbsp;</em>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.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/dtsa/trade-secrets-may-retain-protections-despite-disclosure-to-single-competitor/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=253f5e14cc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-253f5e14cc-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/ts060817 Seyfarth’s Trade Secrets Group Earns Top Tier Ranking from Legal 500 Second Year in Row http://www.seyfarth.com:80/publications/ts060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> The&nbsp;2017 edition of&nbsp;<em>The Legal 500 United States</em>&nbsp;recommends Seyfarth Shaw&rsquo;s Trade Secrets group as one of the best in the country. Nationally, for the second consecutive year, our Trade Secrets practice earned Top Tier.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/seyfarths-trade-secrets-group-earns-top-tier-ranking-from-legal-500-second-year-in-row/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=253f5e14cc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-253f5e14cc-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM060817-LE UPDATE: Lawsuit Challenging Philadelphia Salary History Ban Ordinance Dismissed http://www.seyfarth.com:80/publications/OMM060817-LE Thu, 08 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: UPDATE: The United States District Court for the Eastern District of Pennsylvania dismissed the challenge to the Philadelphia ordinance on May 30, 2017 based upon the Chamber of Commerce for Greater Philadelphia&rsquo;s alleged failure to show it has standing to bring the lawsuit (i.e., it did not allege that a member actually makes inquiries or relies on wage history, not does it identify who will suffer specific harm as a result of the ordinance).&nbsp; The Chamber of Commerce has until Tuesday, June 13, 2017 to file an amended complaint, with the effective date of the ordinance remaining on hold,&nbsp; Stay tuned for further developments.</em></p> <p> Following Philadelphia&rsquo;s passage of a pay equity Ordinance that prohibits inquiries into salary history (on which we previously reported <a href="http://www.seyfarth.com/publications/OMM012717LE">here</a>), businesses are challenging the Ordinance.&nbsp; The law was slated to go into effect on May 23, 2017, but on April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the &ldquo;Chamber&rdquo;) filed a federal lawsuit seeking to enjoin the law on numerous grounds discussed below. &nbsp;On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stays the effective date of the new law until resolution of the motion for preliminary injunction.&nbsp;</p> <p> The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia and Pennsylvania Human Relations Commission, No. 17-01548 (E.D. Pa. April 6, 2017) was filed against the City and the city&rsquo;s Commission on Human Relations, alleging the law violates the First Amendment, the Due Process Clause of the Fourteenth Amendment, the Commerce Clause, Pennsylvania&rsquo;s First Class City Home Rule Act, and the state&rsquo;s Constitution.&nbsp; The challenge to the Ordinance casts doubt on its intended effect, which is to lessen the wage gap between men and women.&nbsp; The complaint details the burden on businesses and the relative low impact which the Chamber expects the law to have on the gender pay disparity.&nbsp; In fact, the Chamber claims that the Ordinance will reduce hiring within Philadelphia overall, rather than ameliorating the wage gap.</p> <p> The Philadelphia Ordinance makes it unlawful for an employer or employment agency to inquire about or require disclosure of an applicant&rsquo;s wage history, condition employment on such a disclosure, rely on prior wages in determining the wages for that individual at any point in the hiring process (absent the applicant&rsquo;s &ldquo;knowing and willing&rdquo; disclosure), or retaliate against an applicant for refusing to provide his or her wage history to a prospective employer.</p> <p> <strong>First Amendment Challenge</strong></p> <p> According to the Chamber, the Ordinance unconstitutionally limits employers&rsquo; ability to inquire about or rely on an applicant&rsquo;s wage history, and seeks to prevent employers from communicating to employees the importance which prior salary has on employers&rsquo; decisions.&nbsp; The complaint points out that the Ordinance does not contemplate applicants such as a high-level executive who must be lured away from his or her current employer, or a partner in a law firm with the &ldquo;lock step&rdquo; compensation structure.&nbsp; The Chamber contends these are examples of situations where an inquiry into and reliance on wage history &ldquo;could not possibly perpetuate wage disparities caused by gender discrimination.&rdquo;&nbsp; Further, the complaint alleges that the Ordinance is &ldquo;substantially underinclusive&rdquo; because employers are permitted to rely on wage history information which is disclosed &ldquo;knowingly and willingly&rdquo; by applicants, even if, for example, these individuals were in fact subject to gender discrimination.&nbsp; At bottom, the complaint alleges that the law is unconstitutional because it could have achieved its objectives through other means &ldquo;more directly targeted at the problem of gender discrimination and that would have restricted far less employer speech.&rdquo;&nbsp;</p> <p> <strong>The Ordinance&rsquo;s Reach Extends Outside Philadelphia&rsquo;s Borders</strong></p> <p> Further, the Chamber argues that the Ordinance violates the Due Process Clause of the Fourteenth Amendment.&nbsp; In particular, the Chamber alleges that the language in the Ordinance which permits employers to rely on an applicant&rsquo;s wage history if it is &ldquo;knowingly and willingly disclosed&rdquo; is impermissibly vague.&nbsp; The Chamber additionally alleges that the Ordinance applies beyond Philadelphia, and even Pennsylvania&rsquo;s borders, since out-of-state employers may also be subject to the law if they &ldquo;do business&rdquo; in Philadelphia.&nbsp; Therefore, the Chamber contends, the Ordinance violates the Commerce Clause, since it &ldquo;penalizes speech occurring wholly outside the boundaries of Pennsylvania.&rdquo;&nbsp;</p> <p> The Chamber finally alleges that the extraterritorial reach of the Ordinance violates the Pennsylvania Constitution and the Home Rule Act, which together prohibit a city from exercising its power with respect to individuals who do not live or work in the City.&nbsp;</p> <p> <strong>The Commonwealth&rsquo;s Legislative Efforts</strong></p> <p> The Pennsylvania Senate passed a <a href="http://www.legis.state.pa.us/cfdocs/billinfo/BillInfo.cfm?syear=2017&amp;sind=0&amp;body=S&amp;type=B&amp;bn=241">Bill</a> in February that would amend the Commonwealth&#39;s Equal Pay Act and which would <strong>not</strong> prohibit employers from inquiring into prospective employee&#39;s wage histories. Significantly, the Bill contains a preemption clause which provides that &quot;[t]he provisions of this act shall preempt and supersede any local ordinance or rule concerning the subject matter of this Act.&quot;&nbsp; If enacted, this preemption language also would sound the death knell to the Ordinance.</p> <p> <strong>What Does This Mean for Employers?</strong></p> <p> Bans on inquiries into past wages are springing up across the country--including in <a>New York</a> City, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, and perhaps soon in San Francisco.&nbsp;</p> <p> Even where inquiries into prior wages are legal, allegations of disparate employment decisions which were based on an applicant&rsquo;s prior salary may be problematic for employers.&nbsp; While prior salary may be useful for employers who are looking to hire a specific type of candidate, such as a high-level executive, due to state and local laws prohibiting such inquiries, there is a potential risk involved in relying on this information.&nbsp; We will continue to track this lawsuit as it moves through the courts.</p> http://www.seyfarth.com:80/publications/OMM060817-LE2 The Pay Equity March on the West Coast Begins: Oregon Signs Expansive Equal Pay Law and San Francisco Considers Salary History Ban http://www.seyfarth.com:80/publications/OMM060817-LE2 Thu, 08 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The West Coast is turning back to pay equity. Last year, California led the charge and became the <a href="http://www.seyfarth.com/publications/MA100715-LE">first state to adopt a more onerous pay equity law</a>. The East Coast then joined, with stringent pay laws enacted in <a href="http://www.seyfarth.com/publications/OMM050815-LE">New York</a>, <a href="http://seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, and <a href="http://seyfarth.com/publications/EL052416">Maryland</a> and prior salary bans enacted in <a href="http://www.seyfarth.com/publications/OMM040617-LE2">NYC</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, <a href="http://www.seyfarth.com/publications/OMM060817-LE">Philadelphia (under challenge)</a>, and Puerto Rico.</em>&nbsp;</p> <p> The West Coast returns. In the past week, Oregon&rsquo;s Governor signed into law a sweeping new pay equity law and San Francisco introduced a salary history ban.</p> <p> <strong>Oregon Governor Signs Equal Pay Act of 2017</strong></p> <p> Oregon enacted what may be the country&rsquo;s most onerous pay equity law. On June 1st, Oregon&rsquo;s Governor signed <a href="https://olis.leg.state.or.us/liz/2017R1/Downloads/MeasureDocument/HB2005/Enrolled">House Bill 2005</a>, also called the Oregon Equal Pay Act of 2017, which not only includes a prior salary ban but also expands pay equity protections to more protected classes.</p> <p> The Oregon law forbids paying wages in a manner that discriminates against a member of a protected class. This includes paying wages or other compensation &ldquo;to any employee at a rate greater than which the employer pays wages or other compensation to employees of a protected class for work of comparable character,&rdquo; unless the difference is: (1) based on a bona fide factor; (2) related to the position in question; and (3) based on the specifically enumerated factors outlined in the law, which are:</p> <p style="margin-left:.5in;"> (a) A seniority system;</p> <p style="margin-left:.5in;"> (b) A merit system;</p> <p style="margin-left:.5in;"> (c) A system that measures earnings by quantity or quality of production, including piece-rate work;</p> <p style="margin-left:.5in;"> (d) Workplace locations;</p> <p style="margin-left:.5in;"> (e) Travel, if travel is necessary and regular for the employee;</p> <p style="margin-left:.5in;"> (f) Education;</p> <p style="margin-left:.5in;"> (g) Training;</p> <p style="margin-left:.5in;"> (h) Experience; or</p> <p style="margin-left:.5in;"> (i) Any combination of the factors described in this subsection, if the combination of factors accounts for the entire compensation differential.</p> <p> The Oregon law also prohibits inquiries into prior salary. Under the law, employers cannot screen job applicants based on current or past compensation or determine compensation for a position based on the current or past compensation of a prospective employee. Further, employers are forbidden from seeking this information from the current or former employer of the applicant. That said, the Oregon law is explicit that it is not intended to prevent an employer from confirming prior compensation after the employer makes an offer of employment that includes an amount of compensation, so long as prior authorization is obtained.</p> <p> There are several things that make the Oregon law unique. First, the law has a very expansive definition of &ldquo;protected class.&rdquo; The Oregon law prohibits pay discrimination based not only on gender, race, national origin or color but also on religion, sexual orientation, marital status, veteran status, disability or age. The impact of this expansion, especially were it to expand to other jurisdictions, cannot be overstated.&nbsp;</p> <p> Second, the law gives employers who conduct a pay equity analysis a limited safe harbor. This safe harbor only limits damages but is not a complete defense to a violation under the Act. Under the law, if there is a pay discrimination complaint, the employer may file a motion to disallow an award of compensatory and punitive damages. This will be granted if the employer demonstrates, by a preponderance of the evidence, that it completed a pay equity analysis for the relevant protected class, that was reasonable in detail and in scope in light of the size of the employer, that eliminated the wage differentials for the plaintiff. The employer must also demonstrate that it has made reasonable and substantial progress toward eliminating wage differentials for the protected class asserted by the plaintiff. The court may still award back pay for the two-year period immediately preceding the filing of the action and may allow the prevailing plaintiff costs and reasonable attorney fees.</p> <p> There is also a posting requirement. The Oregon Bureau of Labor and Industries will provide a template that meets the required notice provisions. The template is not yet available.</p> <p> Most of the changes, including the discrimination provisions of the law and the posting requirements, become effective on January 1, 2019. The salary history ban will go into effect 91 days after the Oregon legislature adjourns for this session, which is expected to be later this month, putting the effective date in late September 2017. However, a private right of action for violations of the salary history ban do not go into effect until January 1, 2024.</p> <p> <strong>San Francisco Considers a Prior Salary Ban</strong></p> <p> In April of this year, <a href="http://www.seyfarth.com/publications/PE041917">San Francisco Board of Supervisors</a> introduced a &ldquo;Parity in Pay Ordinance,&rdquo; which would prohibit San Francisco employers from inquiring about job applicant&rsquo;s salary history during the application process. Yesterday, Supervisor Farrell was expected to present the proposed ordinance to San Francisco&rsquo;s Government Audit and Oversight Committee. Seyfarth attorneys attended the Committee hearing. During the hearing, Supervisor Farrell announced that the ordinance is still on track but is being further revised to expand the definition of &ldquo;employer&rdquo; to include employers located outside the geographic boundaries of San Francisco who have contractual ties to San Francisco. A legislative aide confirmed that the expansion is likely to include employers at San Francisco International Airport, which is technically outside the city and county limits.</p> <p> Dr. Emily Murase, Director of the San Francisco Department on the Status of Women, spoke on behalf of the ordinance at the Committee hearing, reiterating gender and racial pay disparity statistics. &nbsp;While three additional individuals also voiced their approval during the public comment portion, no one spoke in opposition to the ordinance.</p> <p> The presentation of a revised version is anticipated during the Committee&rsquo;s next hearing, later this month. Once through the Committee, the ordinance will be called to a vote. We will continue to provide updates as the legislative process unfolds.</p> <p> If you are interested in learning more about San Francisco&rsquo;s ordinance and the future of pay equity in California, join Chantelle Egan on June 21 for an in-person and webcasted CLE event at the Bar Association of San Francisco. You can sign-up<a href="https://www.sfbar.org/calendar/eventdetail.aspx?id=B171431/B171431"> here</a>.</p> <p> We will stay watchful and will alert you as more develops on the West Coast.</p> <p> <strong>Seyfarth&rsquo;s Pay Equity Group</strong> leads the legal industry in fair pay analysis, thought leadership, and client advocacy. For more than twenty years, we have partnered with our clients to proactively address these developments and minimize risk.</p> http://www.seyfarth.com:80/publications/wse060817 OSHA Schedules First “Safe + Sound Week” http://www.seyfarth.com:80/publications/wse060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> We had blogged previously on OSHA&rsquo;s launch of the &ldquo;<a href="https://www.osha.gov/shpcampaign/">Safe and Sound Campaign</a>&rdquo; webpage, calling on employers to review their safety and health programs to protect workers, and reduce workplace injuries and deaths, and its &ldquo;<a href="https://www.osha.gov/shpguidelines/">Recommended Practices for Safety and Health Programs</a>&rdquo; webpage.</p> <p> To read the full bog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-schedules-first-safe-sound-week/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=65ec3efd06-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-65ec3efd06-73179581">click here</a>.</p> http://www.seyfarth.com:80/news/weiss060817 Philippe Weiss quoted in the Chicago Tribune, "All eyes on Washington for Comey testimony — even at work" http://www.seyfarth.com:80/news/weiss060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in a June 8 story from the Chicago Tribune on how former FBI Director James Comey&#39;s highly anticipated testimony before the Senate intelligence committee could prove to be a distraction as employees tune in to the hearing and tune out their work. Weiss said that managers should consider what policies or expectations are in place in their offices. You can read the <a href="http://www.chicagotribune.com/business/ct-comey-testimony-0608-biz-20170607-story.html">full article here</a>.</p> http://www.seyfarth.com:80/news/boutros060817 Andrew Boutros interviewed on WTTW's "Chicago Tonight" http://www.seyfarth.com:80/news/boutros060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> Andrew Boutros was interviewed on the June 8 episode of WTTW&#39;s &quot;Chicago Tonight&quot; discussing former FBI Director James Comey&#39;s testimony before the Senate Intelligence Committee. You can watch the <a href="http://video.wttw.com/video/3001646436/">full segment here</a>.</p> http://www.seyfarth.com:80/news/paparelli060817 Angelo Paparelli quoted in Law360 http://www.seyfarth.com:80/news/paparelli060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in a June 8 story from Law360, &quot;With New Visa Questionnaire, Expect Delays And Uncertainty,&quot; on the Trump administration getting approval to ask visa applicants new, in-depth vetting questions, including for their social media information. Paparelli suspects this will result in delays, not only to the population, but also to the other visa applicants whose processes can&#39;t move as quickly, because consular officers with insufficient funding or support take longer to process everyone else&#39;s visas.</p> http://www.seyfarth.com:80/news/passantino060817 Alex Passantino quoted in the Washington Post http://www.seyfarth.com:80/news/passantino060817 Thu, 08 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 8 story from the Washington Post, &quot;Trump officials quietly scrap Obama-era plan to protect fast food workers,&quot; on the Labor Department rescinding Obama-era guidelines that suggested corporations be held more accountable for franchise workers who don their uniforms. Passantino said that removal of the guidance signals a stark reversal from the previous administration&#39;s efforts to expand the application of the laws it enforced to the maximum extent possible. You can read the <a href="https://www.washingtonpost.com/news/wonk/wp/2017/06/08/the-latest-sign-trumps-labor-department-will-be-nothing-like-obamas/?utm_term=.86e126734cac">full article here</a>.</p> http://www.seyfarth.com:80/news/passantino060717 Alex Passantino quoted in USA Today http://www.seyfarth.com:80/news/passantino060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 7 story from USA Today , &quot;Worker-friendly rules scrapped by Labor Dept.&quot;, on the news that the Labor Department rescinded guidance, issued by the Labor Department last year under President Obama, that held franchise companies as well as franchisees liable for wage and hour violations. Passantino said that Labor&rsquo;s decision will make it tougher for workers to win such lawsuits because they won&rsquo;t be able to point to evidence under wage and hour laws that franchise companies are joint employers. You can read the <a href="https://www.usatoday.com/story/money/2017/06/07/worker-friendly-rules-scrapped-labor-dept/102604962/">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinobuzzfeed060717 Alex Passantino quoted in BuzzFeed, "The Trump Administration Just Did McDonald's And Uber A Big Favor" http://www.seyfarth.com:80/news/passantinobuzzfeed060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 7 story from BuzzFeed on the Trump administration&#39;s withdrawal of Obama-era legal interpretations that said millions of American workers should be treated as employees of the corporations they work for. Passantino said that the shift will likely result in the Department of Labor pursuing fewer cases at the national level, and more cases ending at the local level, without efforts to pursue up-chain to a corporate franchisor or upper tier contractor. You can read the <a href="https://www.buzzfeed.com/coralewis/trumps-labor-department-just-did-mcdonalds-and-uber-a-big?utm_term=.eqLm8Ovm6#.stN2Aj42a">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinoinc060717 Alex Passantino quoted in Inc.com, "McDonald's Gets a Big Break Today" http://www.seyfarth.com:80/news/passantinoinc060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 7 story from Inc.com on the Trump Administration&#39;s withdrawal of the U.S. Department of Labor&#39;s 2015 and 2016 informal guidance on joint employment and independent contractors. Passantino said that the withdrawal likely indicates a changing focus in the Department&#39;s enforcement efforts away from the &#39;fissured&#39; industry initiative of the Obama Administration. You can read the <a href="https://www.inc.com/erik-sherman/mcdonalds-gets-a-big-break-today.html">full article here</a>.</p> http://www.seyfarth.com:80/news/passantinolaw360060717 Alex Passantino quoted in Law360, "3 Takeaways From DOL's Nix Of Obama-Era Memos" http://www.seyfarth.com:80/news/passantinolaw360060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Alex Passantino was quoted in a June 7 story from Law360 on the U.S. Department of Labor&#39;s withdrawal of two Obama-era guidances which seek to curb the misclassification of employees as independent contractors and broadening liability for joint employment. Passantino said that the guidance withdrawals do not change the law in any way, but still indirectly signal a shift in the agency&#39;s priorities.</p> http://www.seyfarth.com:80/news/mansfield060717 Seyfarth Joins Diversity Lab on Mansfield Rule Diversity Initiative http://www.seyfarth.com:80/news/mansfield060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP announced that it will partner with Diversity Lab to formally pilot the Mansfield Rule diversity initiative.</p> <p> Named after Arabella Mansfield, the first woman admitted to the practice of law in the United States, the Mansfield Rule is a variation of the NFL&rsquo;s &ldquo;Rooney Rule.&rdquo; The Mansfield Rule challenges law firms to measure participation of women and attorneys of color among those seeking leadership and governance roles, equity partner promotions, and lateral positions. Law firms that successfully pilot the Mansfield Rule over the next year will be designated &ldquo;Mansfield Certified&rdquo; and have the opportunity to send their recently promoted diverse partners to a two-day Client Forum in late 2018 to build relationships with and learn from influential in-house counsel. Currently, 30 law firms and over 45 in-house counsel have joined the pilot. You can learn more about this initiative <a href="http://www.diversitylab.com/wp-content/uploads/2015/08/Mansfield-Rule-Press-Release-For-Distribution-6-7-17-Diversity-Lab.pdf">here</a>.</p> <p> As part of Seyfarth&rsquo;s commitment to diversity and inclusion and its focus on continuous improvement in this area, the firm agreed to participate in the pilot. The Seyfarth pilot is intended to improve on the support provided to all attorneys who are interested in serving in leadership or governance roles, the equity partnership or as a lateral to the firm.</p> <p> Diversity Lab creates and experiments with innovative ways to close the gender gap and boost diversity in law firms and legal departments by leveraging data, behavioral science, and design thinking.</p> http://www.seyfarth.com:80/publications/7208 DOL Expected to Issue Request for Information on OT Rules http://www.seyfarth.com:80/publications/7208 Wed, 07 Jun 2017 00:00:00 -0400 <p> During his Wednesday hearing before a House Appropriations Subcommittee, in which he addressed the Trump Administration&rsquo;s proposed budget for DOL, Secretary Alexander Acosta informed the committee that the Department planned to issue a Request for Information (RFI) regarding the currently enjoined overtime rules. The anticipated timetable is 2-3 weeks, but it is unclear whether that represents the timetable before the RFI is submitted to the Office of Management and Budget for review and approval or actual publication.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/request-for-information-on-ot-rules/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=0436c28472-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-0436c28472-73179569">click here</a>.&nbsp;</p> http://www.seyfarth.com:80/publications/wc060717 Third-Party Litigation Funding: Are Businesses At Risk For More Class Actions? http://www.seyfarth.com:80/publications/wc060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> <strong>Seyfarth Synopsis:</strong> American and international courts have been debating the tentative legality of disclosing third-party litigation funding. In this vlog video, Seyfarth Shaw Associate Alex Karasik sits down with class action litigator Jerry Maatman to discuss what third-party litigation is, what it means for businesses, and the tactics that businesses can use to get in front of this phenomenon.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/third-party-litigation-funding-are-businesses-at-risk-for-more-class-actions/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=907da02417-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-907da02417-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/ts060717 Upcoming Webinar! Protecting Your Trade Secrets in the Pharmaceutical Industry http://www.seyfarth.com:80/publications/ts060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s third installment in its 2017 Trade Secrets Webinar Series, Seyfarth attorneys Justin K. Beyer, Dean Fanelli, Thomas Haag, and Marcus Mintz will focus on defining and protecting trade secrets in the pharmaceutical industry.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/06/articles/trade-secrets/upcoming-webinar-protecting-your-trade-secrets-in-the-pharmaceutical-industry/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d043e8161e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d043e8161e-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/WH060717 DOL Withdraws Guidance on Joint Employment, Independent Contractors http://www.seyfarth.com:80/publications/WH060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> On June 7, <a href="https://www.dol.gov/newsroom/releases/opa/opa20170607" target="_blank">Department of Labor Secretary Alexander Acosta announced the withdrawal</a> of the DOL&rsquo;s 2015 and 2016 Administrator Interpretations (&ldquo;AIs&rdquo;) on joint employment and independent contractors.&nbsp;These documents were statements of the Wage &amp; Hour Division&rsquo;s interpretations of the FLSA&rsquo;s (and Migrant and Seasonal Agricultural Worker Protection Act&rsquo;s) definitions of &ldquo;employ,&rdquo; &ldquo;employer,&rdquo; and &ldquo;employee.&rdquo;&nbsp;The withdrawal does not change the law; it simply removes as the DOL&rsquo;s position those statements made in the AIs.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/dol-withdraws-guidance-on-je-ic/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=44c4a3770e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-44c4a3770e-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/MA060717-LE If Pain, Yes Gain—Part XXXII: Cook County Releases Final Sick Leave Rules and Model Notice http://www.seyfarth.com:80/publications/MA060717-LE Wed, 07 Jun 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> The Cook County Earned Sick Leave Ordinance is one of several paid sick leave laws going into effect on July 1, 2017.&nbsp; In advance of the effective date, Cook County recently published its final paid sick leave rules and model notice. </em></p> <p> On May 25, 2017, Cook County released a copy of its approved paid sick leave &ldquo;Interpretative and Procedural Rules&rdquo; (the &ldquo;Final Rules&rdquo;). The Final Rules were issued after the conclusion of a public comment period on the County&rsquo;s draft sick leave rules.&nbsp; Employers should assess and take the Final Rules into account as they prepare for the County&rsquo;s Earned Sick Leave Ordinance&rsquo;s (&ldquo;ESLO&rdquo;) July 1, 2017 effective date.</p> <p> On July 1, Cook County will join Chicago as the only municipalities in the state of Illinois with paid sick leave ordinances that are in effect.&nbsp; Chicago has released its own <a href="http://www.seyfarth.com/publications/MA052617-LE">draft paid sick leave rules</a>, which are open for public comment until June 16, 2017.&nbsp; Consequently, Chicago employers will be waiting until at least June 16 for the City&rsquo;s final paid sick leave rules.&nbsp; We, of course, will keep you posted on any developments.</p> <p> Cook County also recently published a <a href="http://www.seyfarth.com/dir_docs/publications/Cook_County_Earned_Sick_Leave_Model_Notice.PDF">model notice</a> that employers can use to satisfy the ESLO&rsquo;s posting and notice requirements. As described in more detail below, the ESLO requires employers to provide employees with individualized notice of certain sick leave rights at various times, including upon commencement of employment, and post the model notice in a conspicuous place at their Cook County business facilities.</p> <p> Here are some of the main requirements of the ESLO&rsquo;s Final Rules:</p> <ul> <li> <strong>Benefit Year:</strong> Unlike the County&rsquo;s draft sick leave rules, the Final Rules opted to remove a definition of &ldquo;benefit year&rdquo; that expressly allowed employers to set their sick leave benefit year as a calendar or fiscal year. The Final Rules do maintain a definition of the term &ldquo;accrual period,&rdquo; although it is directly tied to the 12-month period in which an employee accrues paid sick leave and is based on an employee&rsquo;s date of initial accrual.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; Recognizing that certain employers will not want (or be able to follow) such a rigid accrual period, the Final Rules added a section discussing how employers can transition employees from the above standard &ldquo;accrual period&rdquo; to one that is based on calendar year, fiscal year, anniversary date, etc.&nbsp; The procedure focuses on ensuring that the employees&rsquo; sick leave benefits are not worse off than they were prior to the transition.</li> <li> <a><strong>Covered Employees:</strong>&nbsp;</a> The Final Rules state that an individual will be covered under the ESLO if he or she meets certain criteria, including, but not limited to, working for a covered employer for at least two hours in any two week period while physically present in the geographic boundaries of Cook County.&nbsp; Importantly, and as was noted in the County&rsquo;s draft sick leave rules, the Final Rules confirm that the County &ldquo;will <u>not</u> consider work that an individual performs within the geographic boundaries of a municipality that has lawfully preempted the Ordinance&rdquo; when determining employee coverage. (emphasis added).<a href="#_ftn2" name="_ftnref2" title="">[2]</a></li> <li> <strong>Covered Employers:</strong> According to the Final Rules, a covered employer under the ESLO must, among other things, have at least one place of business within Cook County.&nbsp; Interestingly, in a departure from the County&rsquo;s draft sick leave rules, the Final Rules <u>removed</u> a sentence expressly stating that the &ldquo;Commission will not consider an employer&rsquo;s place or places of business that are within the geographic boundaries of a municipality that has lawfully preempted the Ordinance&rdquo; when assessing coverage.&nbsp; Despite this deletion, Cook County employers with operations in a municipality that has opted out of complying with the ESLO remain shielded from the ESLO based on Article VII, Section 6(c) of the <a href="http://www.ilga.gov/commission/lrb/con7.htm">Illinois Constitution</a><a href="#_ftn3" name="_ftnref3" title="">[3]</a> and the Final Rules&rsquo; provision stating that &ldquo;the Commission will not consider an employer to be a Covered Employer if&hellip;federal or state law preempts the employer from being covered by the Ordinance.&rdquo;</li> <li> <strong>Where Employees Can Use Earned Sick Leave:</strong> A unique component of the Final Rules that was previewed in the County&rsquo;s draft sick leave rules is the mandate impacting where covered employees can use accrued paid sick leave.&nbsp; Unlike most, if not all, existing paid sick leave laws, the Final Rules state that once an employee is entitled to use earned paid sick leave, the employee can use that sick leave while working &ldquo;in <u>any</u> location (i.e., within or outside of Cook County).&rdquo; (emphasis added).&nbsp;</li> <li> <a><strong>When Employees Accrue Earned Sick Leave:</strong></a>&nbsp; The Final Rules confirm that employers are not required to allow employees to accrue paid sick leave for work performed outside of Cook County (or within the geographic boundaries of a municipality that has lawfully preempted the Ordinance).&nbsp; Despite this provision, it likely will be very difficult for certain employers to parse accrual based on where an employee is working during a given workweek.&nbsp;</li> <li> <strong>Accrual, Usage and Carryover Caps:</strong>&nbsp; The Final Rules maintain many of the County&rsquo;s draft sick leave rules&rsquo; new terms and provisions related to accrual, use and carryover of paid sick leave.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> <ul> <li> <a><u>Newly Defined Terms</u></a>: Like the draft rules, the Final Rules define several terms related to the ESLO&rsquo;s complicated carry over and annual usage requirements for employers covered by the Family and Medical Leave Act (&ldquo;FMLA&rdquo;).&nbsp; These terms include (a) &ldquo;FMLA-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any purpose under the FMLA, and (b) &ldquo;Ordinance-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any reason under the CC ESLO.&nbsp; The Final Rules removed a stray definition titled &ldquo;Unrestricted Earned Sick Leave&rdquo; that existed in the County&rsquo;s draft sick leave rules.</li> <li> <u>Frontloading Sick Leave</u>: The Final Rules confirm that employers can choose to frontload earned sick leave to employees, as opposed to using an accrual system.&nbsp; <a>To avoid tracking accrual, </a>an employer must award an employee the maximum amount of sick leave the employee could accrue during the accrual period (this amount will be 40 hours for any employee who works at least 1,600 hours during the year in Cook County).&nbsp; <a>Similarly, to avoid year-end carryover</a>, the Final Rules note that FMLA covered employers must award at least 20 hours of Ordinance-Restricted Earned Sick Leave and at least 40 hours of FMLA-Restricted Earned Sick Leave at the start of each accrual period.&nbsp; Therefore, <a>and as confirmed by the Final Rules, to avoid both accrual and year-end carryove</a>r, an FMLA covered employer must award its employees 60 hours of Ordinance-Restricted Earned Sick Leave and 40 hours of FMLA-Restricted Earned Sick Leave, or a total of 100 total hours of paid leave at the start of each accrual period/year.</li> <li> <a><u>Year-End Carryover</u>: </a>The Final Rules contain instructions for employers to follow in complying with the ESLO&rsquo;s complex year-end carryover requirements involving &ldquo;Ordinance- Restricted Earned Sick Leave&rdquo; and &ldquo;FMLA-Restricted Earned Sick Leave&rdquo; as defined above.<a href="#_ftn5" name="_ftnref5" title="">[5]</a>&nbsp; One provision employers must adhere to is that at the end of each accrual period, an FMLA covered employer should calculate the number of hours available for Ordinance-Restricted Earned Sick Leave carryover before calculating the carryover hours for FMLA-Restricted Earned Sick Leave.</li> <li> <a><u>Existing Paid Leave Policy</u>:&nbsp;</a> A key update in the Final Rules compared to the County&rsquo;s draft sick leave rules is a provision dealing with &ldquo;multi-purpose paid time off.&rdquo;&nbsp; The Final Rules reiterate that FMLA covered employers are only required to allow employees to use up to 60 hours of earned sick leave in a year.&nbsp; As a result, the Final Rules indicate that the County typically will consider a PTO policy that provides employees with at least 7.5 days (i.e., 60 hours) of PTO each accrual period that can be used for the purposes under the ESLO, FMLA, or for other leave purposes (e.g., vacation), and that satisfies the ESLO&rsquo;s substantive, technical standards (e.g., increment use, notice obligations, documentation requirements, etc.), to be compliant.</li> </ul> </li> <li> <a><strong>Covered Family Members</strong></a><strong>:</strong> The ESLO allows employees to use available sick leave to care for an individual related by blood or whose close association with the employee is the equivalent of a family relationship. The Final Rules list several factors to be considered when evaluating if such an association exists.&nbsp; These factors include: (a) whether, for some significant period of time, the employee provided uncompensated personal care for the individual; (b) the individual provided such care for the employee; (c) the employee and the individual lived together and shared financial and household responsibilities or one provided financial support for the other; and/or (d) whether the employee and the individual would be considered &ldquo;Family member[s]&rdquo; as that term is used in federal sick leave regulations (e.g., 5 C.F.R. &sect; 630.201(b)).&nbsp;</li> <li> <a><strong>Increments</strong></a> <strong>of Use:</strong> The ESLO states that employers can set a reasonable minimum increment for using paid sick leave, not to exceed four hours per day.&nbsp; Significantly, the Final Rules appear to clarify that if an employee has less than four hours of accrued sick leave and the employer has established a minimum use increment of four hours, then the employee will not be able to use earned sick leave at that time.&nbsp; However, if an employer has not established a written policy stating a minimum increment for its employees&rsquo; use of paid sick leave, it will be presumed that paid sick leave can be used in one-hour increments.</li> <li> <strong>E<a>mployee Notice of Foreseeable and Unforeseeable Absences:</a></strong>&nbsp; The Final Rules state that an employer&rsquo;s policy regarding the amount and type of notice employees must provide when using available sick leave for foreseeable and unforeseeable absences will be deemed unreasonable if, among other things, it is not in writing.</li> <li> <a><strong>Notice and Posting Requirements:</strong></a> As noted above, the ESLO comes with both notice and posting obligations.&nbsp; Importantly, the Final Rules state that, in addition to providing employees with notice of certain sick leave rights upon commencement of employment, employers also must provide covered employees with the same notice <u>at least once per calendar year thereafter</u>.&nbsp; &nbsp;&nbsp;</li> <li> <a><strong>Recordkeeping Requirement:</strong></a> The Final Rules impose recordkeeping obligations on &ldquo;moderately sophisticated&rdquo; covered employers.<a href="#_ftn6" name="_ftnref6" title="">[6]</a>&nbsp; In particular, such employers must maintain records demonstrating, among other things, (1) the number of hours of paid sick leave each covered employee was awarded, (2) the number of hours of paid sick leave each covered employee used, and (3) the date upon which the sick leave was used.&nbsp; Employers must maintain these records for at least three years.</li> <li> <strong>Employer Rights to Enforce Sick Leave Policy:</strong> The Final Rules contain several provisions that explicitly acknowledge certain employer rights when it comes to enforcing their sick leave policies.&nbsp; F<a>or instance</a>, the Final Rules explain that the ESLO does not shield a covered employee from adverse employment actions that are unrelated to the exercise of rights established or protected by the ESLO, including poor work performance, unexcused absenteeism and other failures to meet an employer&rsquo;s reasonable expectations.&nbsp; <a>Additionally</a>, the Final Rules state that an employer will not be in violation of the ESLO if it (a) denies a covered employee&rsquo;s request to use sick leave for a foreseeable absence where the employee failed to provide reasonable notice, or (b) disciplines an employee for using sick leave for an unprotected purpose.</li> <li> <strong>Separation of Employment:</strong> <a>While employers are not required to compensate employees for any earned, unused paid sick leave upon separation of employment</a>, the Final Rules discuss how employers should treat unused sick leave benefits when an employee is rehired after separation.&nbsp; <a>Specifically and unlike many existing paid sick leave laws, the Final Rules state that employers are <u>not</u> required to restore unused sick leave when an employee is rehired within 120 days from separation of employment, unless it appears that the employer separated the employee to prevent him or her from using accrued paid sick leave.</a> <a href="#_ftn7" name="_ftnref7" title="">[7]</a></li> </ul> <p> Cook County employers should take steps now to ensure that they will be able to achieve full compliance with the Cook County ESLO and Final Rules by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Determine if the municipality in Cook County where you have operations has lawfully preempted (i.e., opted out of) the ESLO.</li> <li> If the ESLO applies to your municipality within the County, review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the ESLO.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking earned sick leave.</li> <li> Prepare to comply with the ESLO&rsquo;s posting and notice requirements.</li> <li> Train supervisory and managerial employees, as well as HR, on the ESLO&rsquo;s requirements.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> An employee&rsquo;s &ldquo;date of initial accrual&rdquo; is the later of (a) July 1, 2017, (b) the first calendar day after his or her start of employment, or (c) when the employee first becomes a &ldquo;covered employee&rdquo; as set forth in the ESLO and Final Rules.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> A growing number of municipalities within Cook County have opted out of compliance with the ESLO in recent months.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Article VII, Section 6(c) of the Illinois Constitution states that &ldquo;if a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction.&rdquo;&nbsp;</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> A more detailed discussion of the ESLO&rsquo;s accrual, usage and carryover requirements can be found <a href="http://www.seyfarth.com/publications/MA042117-LE">here </a>and <a href="http://www.seyfarth.com/publications/MA102016-LE">here</a>.</p> </div> <div id="ftn5"> <p> <a href="#_ftnref5" name="_ftn5" title="">[5]</a> The Final Rules&rsquo; provisions on year-end carryover largely track those from the County&rsquo;s draft sick leave rules. A more detailed examination of these requirements can be found <a href="http://www.seyfarth.com/publications/MA042117-LE">here</a>.</p> </div> <div id="ftn6"> <p> <a href="#_ftnref6" name="_ftn6" title="">[6]</a> It is presumed that any covered employer who does business in any corporate form or any natural person who employs more than four covered employees is moderately sophisticated.</p> </div> <div id="ftn7"> <p> <a href="#_ftnref7" name="_ftn7" title="">[7]</a> By comparison, the Final Rules state that an employee who is rehired by the same employer within 120 days since his or her separation from service will be considered to have continued his or her employment with that employer for purposes of coverage, eligibility, and usage waiting period.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/GPW060717 Seyfarth’s Global Privacy & Security Team Earns National Ranking from Legal 500 http://www.seyfarth.com:80/publications/GPW060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> The 2017 edition of <em>The Legal 500</em> United States recommends Seyfarth Shaw&rsquo;s Global Privacy &amp; Security Team as one of the best in the country for Cyber Law (including data protection and privacy). In addition, based on feedback from corporate counsel, the co-chairs of Seyfarth&rsquo;s group, <a href="http://www.seyfarth.com/ScottCarlson">Scott A. Carlson</a> and <a href="http://www.seyfarth.com/JohnPTomaszewski">John P. Tomaszewski</a>, and Seyfarth partners <a href="http://www.seyfarth.com/KarlaGrossenbacher">Karla Grossenbacher</a> (head of Seyfarth&rsquo;s National Workplace Privacy Team) and <a href="http://www.seyfarth.com/RichardLutkus">Richard D. Lutkus</a> were recommended in the <a href="http://www.legal500.com/firms/50888/offices/50535">editorial</a>. Richard Lutkus is also listed as one of 14 &ldquo;Next Generation Lawyers.&rdquo;</p> <p> To read the full blog post, <a href="http://www.globalprivacywatch.com/2017/06/seyfarths-global-privacy-security-team-earns-national-ranking-from-legal-500/?utm_source=Seyfarth+Shaw+-+The+Global+Privacy+Watch&amp;utm_campaign=27965b221c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_96fbafbd4b-27965b221c-73179561">click here</a>.</p> http://www.seyfarth.com:80/publications/CDL060717 Seyfarth’s Global Privacy & Security Team Earns National Ranking from Legal 500 http://www.seyfarth.com:80/publications/CDL060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> The 2017 edition of The Legal 500 United States recommends Seyfarth Shaw&rsquo;s Global Privacy &amp; Security Team as one of the best in the country for Cyber Law (including data protection and privacy).</p> <p> To read the full blog post, <a href="http://www.carpedatumlaw.com/2017/06/seyfarths-global-privacy-security-team-earns-national-ranking-legal-500/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=8fb1681264-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-8fb1681264-73179541">click here</a>.</p> http://www.seyfarth.com:80/publications/CP060717 2017 Labor & Employment Legislative Update: House of Origin Deadline http://www.seyfarth.com:80/publications/CP060717 Wed, 07 Jun 2017 00:00:00 -0400 <p> Friday, June 2, marked the last day for bills in the California Legislature to pass out of their house of origin&mdash;the Senate or Assembly&mdash;and continue the legislative process for a shot at becoming a new California Peculiarity. Pay equity and Ban The Box bills lead the list of bills approved to continue moving through the process.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/06/07/2017-labor-employment-legislative-update-house-of-origin-deadline/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=05dcd16d40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-05dcd16d40-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM060717-LIT Supreme Court Limits SEC Disgorgement Orders With Five-Year Statute of Limitations http://www.seyfarth.com:80/publications/OMM060717-LIT Wed, 07 Jun 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: &nbsp;</strong>On June 5, 2017, the United States Supreme Court resolved a split among the federal circuit courts by unanimously holding that disgorgement collected by the Securities and Exchange Commission is subject to the five-year statute of limitations on civil penalties.</em></div> <div> &nbsp;</div> <div> On June 5, 2017, the United States Supreme Court decided <em>Kokesh v. Securities and Exchange Commission</em>, No. 16-529, unanimously holding that disgorgement collected by the SEC is subject to the five-year statute of limitations on civil penalties. &nbsp;In an opinion written by Justice Sonia Sotomayor, the Court overruled the decision of the Tenth Circuit Court of Appeals on this issue, which had been in conflict with the Eleventh Circuit&rsquo;s earlier opinion addressing the same topic.</div> <div> &nbsp;</div> <div> The justices concluded that SEC disgorgement is a penalty by examining &ldquo;whether the wrong sought to be redressed is a wrong to the public, or a wrong to the individual&rdquo; and whether it is sought &ldquo;for the purpose of punishment, and to deter others from offending in like manner&rdquo; rather than to compensate victims. &nbsp;As to the first point, the Court noted that disgorgement is generally imposed as a consequence for violating public laws and that, although funds disgorged may be returned to aggrieved investors, they may also be sent to the Treasury, suggesting that the wrong redressed is public rather than solely individual. &nbsp;As to the second point, the Court observed that SEC disgorgement often does not simply return a victim to the status quo, but actually exceeds the profits the defendant gained from his or her violations, such as by failing to take into account that defendant&rsquo;s expenses. &nbsp;Thus, the Court concluded, disgorgement constitutes a punitive sanction, not a remedial measure, and is subject to the statute of limitations applicable to civil penalties under 28 U.S.C. &sect; 2462.</div> <div> &nbsp;</div> <div> The impact of the ruling will be substantial in the <em>Kokesh </em>matter, as $29.9 million of the $34.9 million judgment resulted from violations outside the five-year limitations period. &nbsp;It may be even more consequential in future cases, as the SEC will now be precluded from seeking any disgorgement nationwide for any conduct more than five-years old. &nbsp;As the Court noted, the SEC has continued to seek disgorgement broadly despite the fact that it has been authorized to seek -- and has been seeking -- monetary civil penalties since 1990. &nbsp;In fact, the SEC has sought disgorgement broadly; opposed restrictions on how disgorgement should be calculated; and sought disgorgement for not just amounts gained by the defendant, but those gained by third parties as a result of the defendant&rsquo;s misconduct, such as in insider trading cases. &nbsp;With the Court&rsquo;s ruling in <em>Kokesh</em>, it is likely that these practices will be further curtailed on a moving forward basis.</div> <div> &nbsp;</div> <div> Additionally, in resolving the case the Court stated in a footnote that &ldquo;[n]othing in this opinion should be interpreted as an opinion on whether courts possess authority to order disgorgement in SEC enforcement proceedings or on whether courts have properly applied disgorgement principles in this context.&rdquo; &nbsp;This footnote may serve to motivate the defense bar to further challenge the SEC&rsquo;s ability to seek disgorgement by suggesting that at least some members of the Court may question whether disgorgement has properly been allowed and calculated under current case law. &nbsp;As such, it is possible that the <em>Kokesh </em>decision may be just the beginning -- and not the end -- of the road when it comes to limiting SEC disgorgement.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/solowey060617 Dawn Solowey authored an article in Law360, "10 Employer Religious Accommodation Questions Answered" http://www.seyfarth.com:80/publications/solowey060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> Dawn Solowey authored a June 6 article in Law360 on the answers to the top 10 religious accommodation questions that employers ask.</p> http://www.seyfarth.com:80/publications/EL060617 One Minute Memo: The 4th U.S. Circuit Court of Appeals Maintains Nationwide Preliminary Injunction Blocking the Trump Administration’s Revised Travel Ban http://www.seyfarth.com:80/publications/EL060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> On May 25, 2017, the U.S. Court of Appeals for the 4th Circuit ruled that President Trump&rsquo;s travel ban should remain on hold, upholding a preliminary injunction issued in March 2017 by a lower court.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/one-minute-memo-the-4th-u-s-circuit-court-of-appeals-maintains-nationwide-preliminary-injunction-blocking-the-trump-administrations-revised-travel-ban/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=6af341a073-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-6af341a073-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/ERISA060617 The Supreme Court's Church Plan Decision http://www.seyfarth.com:80/publications/ERISA060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> On June 5, 2017, the Supreme Court unanimously held that a pension benefits plan need not be established by a church in order to qualify as a church plan exempt from ERISA funding and other rules, reversing three Courts of Appeal decisions to the contrary. <em>Advocate Health Network v. Stapleton</em>, No. 16-74 &mdash; S. Ct. &mdash; (June 5, 2017).</p> <p> To read the full blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/06/06/the-supreme-courts-church-plan-decision/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=381506024b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-381506024b-73179521">click here</a>.</p> http://www.seyfarth.com:80/publications/WH060617 No Good Deed Goes Unpunished – The Supreme Court May Decide Whether Payments for Meal Breaks Can Offset Alleged Off-The-Clock Work http://www.seyfarth.com:80/publications/WH060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> Pending before the United States Supreme Court is a petition for writ of certiorari asking the Court to determine whether an employer may use payments for <em>bona fide</em> meal periods as an offset/credit against compensable work time.&nbsp;If the Supreme Court accepts the case, it would also provide an excellent opportunity for the Court to address repeat questions regarding the level of deference owed to statutory interpretations by agencies advanced for the first time in litigation and whether pay practices not expressly prohibited by the FLSA are permissible.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/off-the-clock-issues/no-good-deed-goes-unpunished/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=8e6f068dbb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-8e6f068dbb-73179569">click here</a>.</p> http://www.seyfarth.com:80/news/ssaw060617 Seyfarth Shaw At Work's survey referenced in Fast Company, "Here’s What To Wear To Your New Job" http://www.seyfarth.com:80/news/ssaw060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> Seyfarth Shaw At Work&#39;s survey was referenced in a June 6 story from Fast Company on how to dress when you&rsquo;re struggling to figure out your new office dress code. The survey found more than 50% of managers reported being uncomfortable when they had to deal with employees sporting overly revealing/casual summer clothing. You can read the <a href="https://www.fastcompany.com/40425821/heres-what-to-wear-to-your-new-job">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/news/ada060617 Seyfarth's ADA Title III report referenced in Quartz, "Republicans think disabled Americans are gaming the system, so they want to make the ADA harder to enforce" http://www.seyfarth.com:80/news/ada060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> Seyfarth&#39;s ADA Title III report referenced in a June 6 story from Quartz on the Judiciary Committee of the United States House of Representatives is considering a major reform of the American With Disabilities Act (ADA) of 1990&mdash;a federal law which prohibits discrimination against individuals with disabilities in the public sphere. According to the report, ADA Title III lawsuits surged 37% in 2016. You can read the <a href="https://qz.com/994853/republicans-in-congress-think-the-americans-with-disabilities-act-is-too-easy-to-game-so-they-want-to-make-it-harder-to-enforce/">full article here</a>.</p> http://www.seyfarth.com:80/news/weissrecalculating060617 Philippe Weiss interviewed on Recalculating For Small Business http://www.seyfarth.com:80/news/weissrecalculating060617 Tue, 06 Jun 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed on June 6th&#39;s Recalculating For Small Business on summer dress code. You can listen to the <a href="https://player.fm/series/amfm-247-podcast-archive/recalculating-for-small-business-6617">full interview here</a>.</p> http://www.seyfarth.com:80/news/maatman060517 Gerald Maatman quoted in SHRM, "More CEOs Being Fired for Ethical Lapses, Study Finds " http://www.seyfarth.com:80/news/maatman060517 Mon, 05 Jun 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in a June 5 story from SHRM on the five trends that have contributed to the rise in CEO terminations. Of the five trends, Maatman believes that social media and the 24/7 news cycle are the two main drivers in lawsuits that lead to firings. You can read the <a href="https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/Pages/CEOs-fired-2017.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/metlife060517 Marcantonio Barnes quoted in Bloomberg BNA, "MetLife, Seyfarth Shaw Start Summer Job Program for Diverse Law Students" http://www.seyfarth.com:80/news/metlife060517 Mon, 05 Jun 2017 00:00:00 -0400 <p> Marcantonio Barnes was quoted in a June 5 feature story from Bloomberg BNA on the 2017 Seyfarth/MetLife 1L Summer Fellowship Program. A diverse first-year law student will spend half the summer working at Seyfarth&#39;s New York office and the other half of the summer working at MetLife&#39;s legal affairs office, also in New York. Barnes said that what&#39;s novel here is that Seyfarth is collaborating at every step with a client.</p> http://www.seyfarth.com:80/news/weiss060217 Philippe Weiss quoted in Small Business Digest, "Minimizing Dress Code Problems At Work" http://www.seyfarth.com:80/news/weiss060217 Fri, 02 Jun 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in a June 2 story from Small Business Digest on how company leaders and managers can effectively prepare for and respond to dress-related employee issues, questions and complaints. Weiss said that the highest-risk factors often relate to rash or irresponsible responses by management - as opposed to the underlying summer clothing choices made by employees.</p> http://www.seyfarth.com:80/news/robertson060217 Christopher Robertson was quoted in Hedge Fund Legal & Compliance Digest, "Modified High Water Marks: Current Trends, Provisions, Investor Attitudes and Operational Considerations" http://www.seyfarth.com:80/news/robertson060217 Fri, 02 Jun 2017 00:00:00 -0400 <p> Christopher Robertson was quoted in a June 2 story from Hedge Fund Legal &amp; Compliance Digest on modified high water marks. Robertson said that whether a manager must regain a multiple of a prior high water mark to charge full performance fees depends on the provision&rsquo;s terms.</p> http://www.seyfarth.com:80/publications/EL060217 Management Alert: Texas Supreme Court Rules That There Is No Cause of Action For “Compelled Self-Defamation” In Texas http://www.seyfarth.com:80/publications/EL060217 Fri, 02 Jun 2017 00:00:00 -0400 <p> Recently, and as a matter of first impression, the Texas Supreme Court decided whether Texas recognizes a claim for compelled self-defamation&mdash;it does not. &nbsp;A typical defamation claim requires: &nbsp;(1) the publication of a false statement of fact to a third party; (2) that was defamatory concerning the plaintiff; (3) with the requisite degree of fault; and (4) damages, in some cases.&nbsp;</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/06/management-alert-texas-supreme-court-rules-that-there-is-no-cause-of-action-for-compelled-self-defamation-in-texas/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3cb0b0f663-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3cb0b0f663-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM060217-LE The 4th U.S. Circuit Court of Appeals Maintains Nationwide Preliminary Injunction Blocking the Trump Administration's Revised Travel Ban http://www.seyfarth.com:80/publications/OMM060217-LE Fri, 02 Jun 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis: </strong>On May 25, 2017, the U.S. Court of Appeals for the 4th Circuit ruled that President Trump&rsquo;s travel ban should remain on hold, upholding a preliminary injunction issued in March 2017 by a lower court.</em></p> <p> The order in question is the Trump Administration&rsquo;s revised Executive Order of March 6, 2017&nbsp; (&ldquo;revised EO&rdquo;). The revised EO would have temporarily restricted certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a period of 90 days. The revised EO sought to resolve constitutional issues and ambiguities related to the initial Executive Order signed on January 27, 2017. &nbsp;</p> <p> In early May 2017, a 13-judge panel of the 4th Circuit heard arguments over the revised EO and on May 25, 2017, the court issued its decision to uphold the preliminary injunction.&nbsp; Writing on behalf of the majority, Chief Judge Roger Gregory stated that the travel ban &ldquo;drips with religious intolerance, animus, and discrimination.&rdquo;&nbsp; The judges ruled 10-3 to affirm in substantial part the earlier decisions that had blocked the ban, citing the violation of the First Amendment as authority to decline reinstatement of the travel ban.&nbsp; The court rejected the Trump Administration&rsquo;s argument that the travel ban was a matter of national security.</p> <p> The Trump Administration can seek Supreme Court review of the Fourth Court decision. If the Supreme Court decides to hear the case, arguments would not commence until the Fall 2017 term. &nbsp;</p> <p> More information on the revised EO can be found in our <a href="http://www.seyfarth.com/publications/OMM030617-IMM">prior alert</a> on the topic. Seyfarth Shaw will continue to keep our clients informed on further developments.</p> http://www.seyfarth.com:80/publications/OMM060217-LE2 Employee Contribution Amount Released for New York Paid Family Leave http://www.seyfarth.com:80/publications/OMM060217-LE2 Fri, 02 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis: </strong>The New York State Department of Financial Services has set the amount of the maximum weekly employee contribution at 0.126% of an employee&rsquo;s average weekly wage or the statewide average weekly wage, whichever is less. </em></p> <p> As expected, in a <a href="http://www.dfs.ny.gov/insurance/r_other/dec_prem_rate_flb_06012017.pdf">decision</a> dated June 1, 2017, the Superintendent of the New York Department of Financial Services (&ldquo;DFS&rdquo;) has set the weekly employee contribution amount and the premium rate for Paid Family Leave at 0.126% of an employee&rsquo;s average weekly wage, or the statewide average weekly wage, whichever is less, for 2018.&nbsp;</p> <p> Consistent with DFS&rsquo; final regulations adopted on May 31, 2017, the Superintendent has set the amount for the employee contribution to be a percentage of employee income.&nbsp; For those earning less than the statewide average weekly wage, the contribution will be a percentage of the income they earn.&nbsp; For those earning more, the contribution amount will be capped at 0.126% of the statewide average weekly wage.&nbsp; Beginning in 2018, the rate will be published by September 1 each year for the following January 1.&nbsp;</p> <p> The statewide average weekly wage is reported by the New York State Department of Labor on July 1 of each year pursuant to Workers&rsquo; Compensation Law &sect; 2(16).&nbsp; The statewide average weekly wage for<a href="https://labor.ny.gov/stats/avg_wkly_wage.shtm"> 2016</a> is $1,305.92.&nbsp;</p> <p> Employers should note that they are permitted, but not required, to begin collecting premiums on July 1, 2017, for the 2018 benefit year in advance of the law&rsquo;s January 1, 2018 effective date pursuant to the proposed regulations.&nbsp; See our earlier alerts on the<a href="http://www.seyfarth.com/publications/MA041916-LE"> law </a>, <a href="http://www.seyfarth.com/publications/MA031017-LE">proposed regulations</a>, and <a href="http://www.seyfarth.com/publications/MA060117-LE">revised proposed regulations</a> for more information.&nbsp; We will continue to track further developments with New York&rsquo;s Paid Family Leave Law as they occur.&nbsp;</p> http://www.seyfarth.com:80/publications/MA060117-LE3 Texas Supreme Court Rules That There Is No Cause of Action For “Compelled Self-Defamation” In Texas http://www.seyfarth.com:80/publications/MA060117-LE3 Thu, 01 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: Compelled self-defamation claims most commonly occur in the wrongful termination context, when plaintiffs allege they are required to defame themselves to prospective employers because they are required to tell such employers the reasons for their discharge.&nbsp; &nbsp;However, in a win for employers, the Texas Supreme Court recently ruled that Texas does not recognize such a claim, joining the majority of states and providing certainty to Texas employers.</em></p> <p> Recently, and as a matter of first impression, the Texas Supreme Court decided whether Texas recognizes a claim for compelled self-defamation&mdash;it does not.&nbsp; A typical defamation claim requires:&nbsp; (1) the publication of a false statement of fact to a third party; (2) that was defamatory concerning the plaintiff; (3) with the requisite degree of fault; and (4) damages, in some cases.&nbsp; Claims for compelled self-defamation generally occur in wrongful termination lawsuits, when plaintiffs allege that their former employer terminated them for false reasons and they were subsequently required to disclose the false reason to prospective employers, thereby harming their reputations. The majority of courts to address the issue, however, have declined to accept the theory of compelled self-defamation, and the Texas Supreme Court found it to be incompatible with the at-will employment doctrine and unwise as a matter of policy.</p> <p> In <em>Exxon Mobil, et al. v. Rincones</em>, following a failed drug test, a former refinery technician, Gilberto Rincones, brought suit against his employer, WHM Custom Services, Inc.; the owner of the refinery at which he had worked, Exxon Mobil; and the drug-testing administrator, DISA, Inc. In April 2010, Rincones failed a random drug test, testing positive for marijuana.&nbsp; Rincones alleged that he did not use illegal drugs, that the sample tested was not his, and that he witnessed &ldquo;questionable&rdquo; testing procedures.&nbsp; He submitted a urine test to a private doctor, which came back negative for marijuana use, although at a substantial higher screening threshold.&nbsp; After filing a discrimination claim with the Texas Workforce Commission, Rincones brought suit, asserting a claim of &ldquo;compelled self-defamation&rdquo; against his former employer based on the fact that he was forced to inform prospective employers that he had been terminated for a failed drug test.</p> <p> The trial court granted summary judgment for WHM, Exxon, and DISA, finding that Rincones had failed to sustain his claims, and it issued a take-nothing judgment.&nbsp; On appeal, the Corpus Christi Court of Appeals reinstated Rincones lawsuit, reversing the trial court&rsquo;s judgment on multiple grounds, including &ldquo;that Texas law recognizes a cause of action for defamation based on compelled self-publication in certain limited circumstances.&rdquo;&nbsp; The Texas Supreme Court reversed the Court of Appeals on all counts, reinstating the trial court&rsquo;s final take-nothing judgment against Rincones.</p> <p> In reaching its decision, the Texas Supreme Court analyzed&mdash;for the first time&mdash;whether Texas recognizes the tort of self-defamation.&nbsp; The Supreme Court found that Texas does not, for the following reasons:</p> <ul> <li> First, the Supreme Court reaffirmed its prior rule &ldquo;that if the publication of which the plaintiff complains was consented to, authorized, invited or procured by the plaintiff, he cannot recover for injuries sustained by reason of the publication.&rdquo;</li> <li> Second, the Court stated that if it recognized self-defamation, the Court &ldquo;would risk discouraging plaintiffs from mitigating damages to their own reputations.&rdquo;&nbsp; In other words, self-defamation would allow any employee who disagrees with the reason for his termination to unilaterally create an actionable tort against his former employer, even if the former employer does not publish the reason for the termination.</li> <li> Third, the Supreme Court found self-defamation to be incompatible with Texas&rsquo; employment at-will doctrine.&nbsp; In short, the employment at-will doctrine allows an employer to terminate an employee for any non-discriminatory reason; it does not require an employer &ldquo;to be reasonable, or even careful, in making its terminations decisions.&rdquo; However, the self-defamation doctrine would require employers to conduct investigations and make accurate findings before taking any adverse employment action.</li> <li> Fourth, the Court determined that recognizing compelled self-defamation would &ldquo;stifle workplace communication.&rdquo;&nbsp; Employers would be incentivized to adopt policies of only &ldquo;name, rank, and serial number references,&rdquo; rather than engage in honest evaluation and communication about employee performance, for fear of being sued.</li> </ul> <p> The supreme court explained that compelled self-defamation is not truly a stand-alone tort in any event, as the Court of Appeals mistakenly appeared to assume.&nbsp; Instead, it is best understood as an exception to the requirement in defamation cases that there be a publication of a false statement of fact to a third party.&nbsp; And the Court found that such a publication <em>by the plaintiff</em> cannot establish a defamation claim in Texas.</p> <p> Consequently, Texas joins the majority of United States jurisdictions that have declined to recognize compelled self-defamation as a viable cause of action.&nbsp; The Texas Supreme Court&rsquo;s decision injects certainty into the tort of defamation, and it allows employers to continue to take appropriate disciplinary action, including termination, when employees engage in inappropriate conduct.</p> http://www.seyfarth.com:80/publications/MA060117-LE2 California Supreme Court Defines “Day of Rest” Requirements http://www.seyfarth.com:80/publications/MA060117-LE2 Thu, 01 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: In</em> Mendoza v. Nordstrom, Inc<em>., the Supreme Court resolved three unsettled questions concerning how to read California&rsquo;s &ldquo;day of rest&rdquo; statutes: (1) Employees are entitled to one day of rest during each workweek, as opposed to one day of rest in every seven on a rolling basis. (2) An employer satisfies the &ldquo;six hours or less&rdquo; exception to the &ldquo;day of rest&rdquo; requirement only if every daily shift in a given workweek is six or fewer hours. (3) Employers cannot coerce employees to forgo a day of rest, but they will not face liability if an employee chooses to work seven straight days in a single workweek.</em></p> <p> <strong>The Facts</strong></p> <p> Chris Mendoza and Megan Gordon were retail employees. Mendoza was a barista and later a sales representative. Gordon worked as a sales associate. Both employees occasionally were asked to fill in for another employee, resulting in them working more than six consecutive days. During the weeks this occurred, some of their shifts were six hours or less.</p> <p> <strong>The Lower Court Decisions</strong></p> <p> The employees sued in federal district court for alleged violations of California Labor Code Sections 551 and 552. These sections require employers to provide employees &ldquo;one day&rsquo;s rest&rdquo; in seven days, and prohibit employers from &ldquo;causing&rdquo; employees to work more than six days in seven. Labor Code Section 556 provides an exception to these &ldquo;day of rest&rdquo; requirements &ldquo;when the total hours of employment do not exceed 30 hours in any week or six hours in any day thereof.&rdquo;</p> <p> When the district court rejected these claims, the employees appealed. The Ninth Circuit, unsure how to interpret the statute, asked the California Supreme Court to resolve three unsettled questions:</p> <ol> <li> Is the &ldquo;day of rest&rdquo; calculated by the seven-day workweek, or does it apply on a rolling basis to any seven-consecutive-day period?</li> <li> Does the Section 556 exception apply so long as an employee works six hours or less on at least one day of the applicable workweek, or does it apply only when an employee works no more than six hours on each and every day of the workweek?</li> <li> What does it mean for an employer to &ldquo;cause&rdquo; an employee to go without a day of rest?</li> </ol> <p> <strong>The California Supreme Court Decision</strong></p> <p> The Supreme Court issued a unanimous decision that, on the whole, was favorable to the employer&rsquo;s position. As the decision adds clarity to the &ldquo;day of rest&rdquo; requirements, employers should be better apply to comply with them than before the Supreme Court ruled.</p> <p> First, the Supreme Court, rejecting the employees&rsquo; contention, held that a day of rest is guaranteed for each seven-day employer-established workweek, not for any &ldquo;rolling&rdquo; seven-day period. In reaching this result, the Supreme Court concluded that &ldquo;the Legislature intended to ensure employees &hellip; a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.&rdquo; Thus, periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited. The Supreme Court further clarified that rest days &ldquo;need not fall on every seventh day and can be spaced out differently in a calendar month, so long as the number of rest days received by the employee amounts to the number of calendar days divided by seven.&rdquo;</p> <p> Second, the Supreme Court clarified that the &ldquo;six hour&rdquo; exception applies only when an employee works no more than 30 hours in the workweek and no more than six hours on each day of the workweek.</p> <p> Third, the Supreme Court, picking a middle ground between the opposing contentions of the parties, defined what it means for an employer to &ldquo;cause&rdquo; its employees to work more than six days in seven. The Supreme Court explained that &ldquo;an employer&rsquo;s obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right&quot;. But an employer is not liable simply because an employee chooses to work a seventh day.</p> <p> According to the Supreme Court, an employer &ldquo;causes&rdquo; an employee to go without a day of rest when it induces the employee to forgo an entitled day of rest. &ldquo;An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.&rdquo; In other words, employers cannot coerce employees to forgo a day of rest, but they will not face liability if an employee, who is aware of the rest-day requirements, nonetheless chooses to work seven days in a row.</p> <p> <strong>What<em> Mendoza v. Nordstrom, Inc</em>. Means for Employers</strong></p> <p> Employers should carefully review their scheduling practices to assess whether they have employees (exempt and non-exempt) working periods of seven consecutive days or more. Employers should also ensure that their employment policies notify employees of their right to a &ldquo;day of rest&rdquo; so they can establish that an employee made an informed decision to forgo a day of rest. Finally, employers should consider obtaining a written waiver from an employee before agreeing to allow the employee to forgo a day of rest in a given workweek.</p> <p> Of more general interest, the Supreme Court made three observations regarding the interpretation of the California Labor Code that could be welcome to employers in future cases. First, in adopting the workweek as the framework for counting the seven days, the Supreme Court noted that this method would be the one most congenial to an employer&rsquo;s administration of time records. Second, in determining the scope of the statute, the Supreme Court acknowledged that the relevant sections can trigger criminal penalties and for that reason should be interpreted with special care. Third, the Supreme Court rejected the employees&rsquo; ambitious argument that the Labor Code should always be interpreted in such a way as to maximize liability. The Supreme Court recognized that an expansive interpretation is improper when the legislative intent indicates a narrower reading of the statute.</p> http://www.seyfarth.com:80/publications/BIG060117 The 4th U.S. Circuit Court of Appeals Maintains Nationwide Preliminary Injunction Blocking the Trump Administration’s Revised Travel Ban http://www.seyfarth.com:80/publications/BIG060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> The order in question is the Trump Administration&rsquo;s revised Executive Order of March 6, 2017 (&ldquo;revised EO&rdquo;). The revised EO would have temporarily restricted certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a period of 90 days. The revised EO sought to resolve constitutional issues and ambiguities related to the initial Executive Order signed on January 27, 2017.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/06/the-4th-u-s-circuit-court-of-appeals-maintains-nationwide-preliminary-injunction-blocking-the-trump-administrations-revised-travel-ban/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=121acbd197-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-121acbd197-73179525">click here</a>.</p> http://www.seyfarth.com:80/publications/WC060217 Midyear Peek: What Has The EEOC Been Up To In FY 2017? http://www.seyfarth.com:80/publications/WC060217 Thu, 01 Jun 2017 00:00:00 -0400 <p> March 31 was the mid-point of the EEOC&rsquo;s fiscal year. Given the significant changes brought to the federal government by the Trump Administration, we sharpened our pencils and examined the EEOC&rsquo;s case filings during the first half of FY 2017 and compared those filings to the first half of FY 2016 to see what changes, if any, the new administration has wrought.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/06/midyear-peek-what-has-the-eeoc-been-up-to-in-fy-2017/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=a6498bf035-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-a6498bf035-73179573">click here.</a></p> http://www.seyfarth.com:80/publications/markel060117 Gregory Markel and Heather Murray authored an article in Practical Law The Journal, "Internal Investigations: Best Practices for Special Committees" http://www.seyfarth.com:80/publications/markel060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Gregory Markel and Heather Murray authored a June 1 article in Practical Law The Journal, &quot;Internal Investigations: Best Practices for Special Committees,&quot; on how companies often form special committees to conduct independent internal investigations into potential misconduct. The article discusses why understanding the key issues and best practices involved in this process is essential for companies and their counsel to avoid the pitfalls that threaten the effectiveness of these committee-run investigastions. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/InternalInvestigations_SpecialCommittees.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/goldmanwolfert060117 Arren Goldman and Jonathan Wolfert authored an article in the Real Estate Finance Journal, "Can and Will Be Used Against You: The Importance of Pre-Negotiation Agreements for Troubled Commercial Loans" http://www.seyfarth.com:80/publications/goldmanwolfert060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Arren Goldman and Jonathan Wolfert authored an article in the June issue of the Real Estate Finance Journal. The article explores some key components to a pre-negotiation agreement. You can read the <a href="http://www.seyfarth.com/dir_docs/publications/Goldman_Spring2017.pdf">full article here</a>.</p> http://www.seyfarth.com:80/publications/milliganalm060117 Robert Milligan and Joshua Salinas authored an article in ALM Intellectual Property Strategist, "Emerging Issues In the DTSA's Second Year" http://www.seyfarth.com:80/publications/milliganalm060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored an article in the June issue of ALM Intellectual Property Strategist. The article discusses the Defend Trade Secrets Act (DTSA), one year after its enactment, and how it continues to be one of the most significant and closely followed developments in trade secret law. You can read the <a href="http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/06/01/emerging-issues-in-the-dtsas-second-year/">full article here</a>.</p> http://www.seyfarth.com:80/publications/MA060117-LE Revised Regulations Issued for New York Paid Family Leave Law http://www.seyfarth.com:80/publications/MA060117-LE Thu, 01 Jun 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On May 25, 2017, the Workers&rsquo; Compensation Board, incorporating comments from Seyfarth Shaw LLP and other industry groups, proposed another set of revised regulations for New York&rsquo;s Paid Family Leave Law.&nbsp; The Notice and Comment period extends until June 23, 2017. &nbsp;Paid Family Leave&rsquo;s effective date of January 1, 2018 remains unchanged.</em></p> <p> New York&rsquo;s Paid Family Leave Law (&ldquo;PFL&rdquo;) will be fully phased in by 2021, at which time it will provide eligible employees with up to 12 weeks of job protected paid leave in a 52-consecutive week period. &nbsp;When fully implemented, PFL will entitle eligible employees to receive up to 67% of their average weekly wage <em>or</em> the state average weekly wage, whichever is less. &nbsp;Further details about the law remain available in our prior alerts distributed on <a href="http://www.seyfarth.com/publications/MA031017-LE">March 10, 2017</a> and <a href="http://www.seyfarth.com/publications/MA041916-LE">April 19, 2016</a><em>.</em>&nbsp; The key changes included in the <a href="http://www.wcb.ny.gov/PFL/pfl-regs-text-revised.jsp">revised regulations</a> are as follows.</p> <p> <strong>Paid Family Leave Definitions</strong></p> <p> In response to comments by industry groups, the revised regulations expand the definition of &ldquo;wages&rdquo; to require that tips or gratuities be included as wages if the employee is engaged in employment in which tips and gratuities customarily constitute part of his or her pay. The previous version&rsquo;s definition of wages was limited to the reasonable value of board, rent, housing, or similar advantage received under the contract of hiring in addition to the stipulated money rate.</p> <p> Employees can still look forward to an expansive definition of &ldquo;family member,&rdquo; as the Board expressly rejected comments requesting the definition be narrowed to track the FMLA, under which a qualifying family member is a spouse (as defined under state law), child, or parent.&nbsp; Under PFL &ldquo;family member&rdquo; includes a child, parent, grandparent, grandchild, spouse, or domestic partner.&nbsp;</p> <p> <strong>Employee Eligibility</strong></p> <p> The revised regulations further eliminate the labels &ldquo;Full-Time&rdquo; and &ldquo;Part-Time&rdquo; for employees. The regulations provide instead that an employee of a covered employer whose regular employment schedule is 20 or more hours per week will become eligible to take family leave during his or her employment provided that the employee has been employed for at least 26 consecutive work weeks.&nbsp;</p> <p> In contrast, an employee of a covered employer whose regular employment schedule is fewer than 20 hours per week will become eligible to take family leave after 175 days of employment.&nbsp; &nbsp;An employee who does not reach these thresholds may waive family leave benefits, as discussed below.</p> <p> <strong>Family Leave Waiver</strong></p> <p> In line with the elimination of &ldquo;Full-Time&rdquo; and &ldquo;Part-Time&rdquo; definitions, the revised regulations now specify that an employee of a covered employer may be provided the option to file a waiver of family leave benefits (i) when his or her regular employment schedule is 20 hours or more per week but the employee will not work 26 consecutive weeks, or (ii) when his or her regular employment schedule is less than 20 hours per week and the employee will not work 175 days in a 52 consecutive week period. &nbsp;The other provisions relating to the original waiver provisions are unchanged.</p> <p> <strong>Collective Bargaining Agreements (&ldquo;CBA&rdquo;)</strong></p> <p> The revised regulations continue to provide that an employer who provides paid family leave benefits under a CBA is relieved from providing PFL if the CBA provides benefits that are at least as favorable as the benefits under PFL.&nbsp;&nbsp;</p> <p> The revised regulations clarify that a CBA may provide rules related to PFL that differ from the requirements in the law. &nbsp;The revised regulations permit employees to collectively establish their eligibility for PFL benefits through actual time worked at any employer covered by the CBA, so long as the time period does not extend beyond 26 consecutive work weeks or 175 day thresholds discussed above.</p> <p> Further, a CBA may provide that the union, acting as the employer, may be responsible for all time records and payroll deductions related to the administration of PFL. &nbsp;Where a CBA does not provide a different rule, the PFL regulations will govern its use.</p> <p> <strong>Use of Leave</strong></p> <p> The revised regulations change the requirement that when an employee takes intermittent family leave, the employee need only provide notice of the need for leave at the <em>start</em> of PFL.&nbsp; Now, the regulations specify that an employer may require the employee to provide notice as soon as practicable before <em>each day</em> of intermittent leave.&nbsp; The regulations still do not provide for leave to be taken in increments smaller than a day.&nbsp;</p> <p> In response to a question submitted by Seyfarth Shaw during the initial comment period, a representative from the Board noted that if an employee takes leave pursuant to company policy prior to the effective date of the law, this leave will not count against the employee&rsquo;s maximum benefit, and the employee may take an additional 8 weeks of leave in 2018 for any qualifying reason.&nbsp; For example, an employee may take the maximum amount of bonding leave offered by his or her employer in 2017, and then, so long as it is within twelve months of the birth or placement of a child, take an additional eight weeks of bonding leave in 2018.&nbsp; While this is a one-time exception for 2018 due to the law&rsquo;s effective date, employers should keep this in mind in the coming months.</p> <p> <strong>Use of Accruals for Family Leave Benefits</strong></p> <p> Critically, the revised regulations now specify that an employer covered by the federal Family Medical Leave Act (&ldquo;FMLA&rdquo;) that designates a concurrent period of family leave for PFL and FMLA may charge an employee&rsquo;s accrued paid time off in accordance with the provisions of the FMLA.&nbsp; From a practical standpoint, this means that most employers with FMLA policies providing for exhaustion of paid leave before taking FMLA on an unpaid basis will not have to revise their FMLA policies. &nbsp;</p> <p> However, two important caveats follow.&nbsp; First, only those employers that are covered by the FMLA (<em>i.e.</em>, with fifty or more employees in twenty or more workweeks in the current or preceding calendar year, and certain public employers) are permitted to follow FMLA rules on use of accrued but unused time off.&nbsp; Second, these rules will only apply when an employee taking PFL leave is taking it for an FMLA-qualifying reason and the leaves are running concurrently.</p> <p> The revised regulations remain silent on the interplay between PFL and the New York City Earned Sick Time Act (&ldquo;ESTA&rdquo;), which provides up to 40 hours of sick leave, at full pay, to certain New York City employees.&nbsp; Despite our questions as to whether ESTA time may run concurrently with PFL, the Board has not addressed this potential issue in the revised regulations.&nbsp; Absent further clarification from the Board, employers covered by ESTA should assume that eligible employees are entitled to any applicable ESTA time as well as PFL, and that such time <em>may not</em> run concurrently.</p> <p> <strong>Reinstatement Following Leave</strong></p> <p> The revised regulations still do not address reinstatement obligations for &ldquo;key employees.&rdquo;&nbsp; Under the FMLA &ldquo;key employees&rdquo; may be denied reinstatement based upon a finding that &ldquo;substantial and grievous economic injury&rdquo; will result if the employee is reinstated.</p> <p> <strong>Procedure for Complaints Regarding Reinstatement</strong></p> <p> The earlier version of the regulations required an employee who was not reinstated to their position following a period of PFL to file a formal request for reinstatement with the Board within 120 days of the failure to reinstate.&nbsp; This formal request operated as a condition precedent to bringing a discrimination claim under the Workers&rsquo; Compensation Law, and an employer&rsquo;s response to the formal request (or expiration of the time period in which to respond) triggered an aggrieved employee&rsquo;s 2 year statute of limitations period to file a discrimination claim with the Board.&nbsp;</p> <p> The Board received several comments challenging this formal request requirement.&nbsp; In response, the Board eliminated the 120-day requirement for filing a formal request.&nbsp; The Board did not, however, change the requirement that a formal request must be made prior to filing a discrimination complaint at the Board.&nbsp; Similarly, the revised regulations still provide that an employer&rsquo;s response to the formal request (or expiration of the time period in which to respond) triggers an aggrieved employee&rsquo;s 2 year statute of limitations period to file a discrimination claim with the Board.&nbsp; This apparent oversight will certainly be the subject of further comments to the Board.</p> <p> <strong>Weekly Contribution Amounts</strong></p> <p> On May 31, 2017, the New York State Department of Financial Services (&ldquo;DFS&rdquo;) adopted <a href="http://www.dfs.ny.gov/insurance/r_prop/rp211txt.pdf">final regulations</a> which detail the method by which the employee contribution will be calculated.&nbsp; The amount of the contribution is calculated using a &ldquo;community rate,&rdquo; which does not consider as a factor the utilization or expected utilization of PFL benefits. Nonetheless, the Superintendent of Financial Services has discretion as to which methodology to use to set the rate, and may prescribe either a defined dollar amount per employee or a percentage of the employee&rsquo;s average weekly wage.&nbsp;</p> <p> DFS&rsquo; final regulations continue to provide that the amount of the employee contribution is expected to be set by June 1, 2017, but has not set the amount as of this morning.&nbsp; Look out for an update detailing the amount once it is set.&nbsp;</p> <p> <strong>Conclusion</strong></p> <p> Employers should be aware that, as of this writing, the permissible amount of the employee contribution is still expected to be set by June 1, and employers have the option of beginning deductions on July 1.&nbsp; Additionally, we have been advised that the Board is continuing to consider the appropriate tax treatment of PFL benefits.&nbsp; As with the last round of regulations, Seyfarth Shaw intends to submit comments on the revised regulations.&nbsp; We will report on PFL taxation policy and the amount of the employee contribution once set, and continue to track the progress of the regulations following the conclusion of comment period.</p> http://www.seyfarth.com:80/news/sherman060117 Andrew Sherman quoted in Financier Worldwide, “Cross-border M&A boom in Q1” http://www.seyfarth.com:80/news/sherman060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in a June 1 story from Financier Worldwide on cross-border dealmaking recorded its strongest start to the year in a decade, up 7 percent in Q1 2017 compared with 2016. Sherman said that sectors to watch include technology, energy, infrastructure and defense. You can read the <a href="https://www.financierworldwide.com/cross-border-ma-boom-in-q1#.WSWb0v6GOzk">full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarth060117 Seyfarth featured in The Bar Association of San Francisco's Justice & Diversity Center, "Seyfarth Shaw Helps Client Gain Freedom" http://www.seyfarth.com:80/news/seyfarth060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Seyfarth was featured in the June 1 issue of&nbsp;The Bar Association of San Francisco&#39;s Justice &amp; Diversity Center. Seyfarth&#39;s San Francisco team and the Justice &amp; Diversity Center&rsquo;s Federal Pro Bono Project successfully helped a pro bono client resolve a case and regain his freedom from prison. After settlement conferences and more trial preparation, including retaining experts, the firm was able to settle the case for a notable amount. The team continued to support the client and submitted letters of support for his recently granted parole. You can read the <a href="http://blog.sfbar.org/2017/05/19/seyfarth-shaw-helps-client-gain-freedom/">full story here</a>.</p> http://www.seyfarth.com:80/publications/paparelli060117 Angelo Paparelli authored an article in IIUSA Magazine http://www.seyfarth.com:80/publications/paparelli060117 Thu, 01 Jun 2017 00:00:00 -0400 <p> Angelo Paparelli authored a June 1 article in IIUSA Magazine, &quot;The Known and Unknown Future of the EB-5 Immigrant Investment Program at USCIS and the Office of the USCIS Ombudsman&quot;. The article looks at the hard facts regarding the Administration&#39;s appointees and the positions they will hold. You can read the <a href="https://iiusa.org/magazine/">full article on p. 39 here</a>.</p> http://www.seyfarth.com:80/news/weiss053117 Philippe Weiss interviewed by WGN Radio, "Wintrust Business Lunch 5/31/17: Dressing Appropriately" http://www.seyfarth.com:80/news/weiss053117 Wed, 31 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by WGN Radio on May 31 to discuss summer dress code in the workplace as the weather heats up. You can listen to the interview at minute 25:05 <a href="http://wgnradio.com/2017/05/31/wintrust-business-lunch-53117-reverse-mortgages-outcome-health-dressing-appropriately/">here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360053117 Gerald Maatman, Andrew Scroggins and Christopher DeGroff’s new study referenced in Law360, “Changes Employers, Workers Want To See At EEO Agencies” http://www.seyfarth.com:80/news/maatmanlaw360053117 Wed, 31 May 2017 00:00:00 -0400 <p> Gerald Maatman, Andrew Scroggins and Christopher DeGroff&rsquo;s new study was&nbsp;referenced in a May 31 story from Law360. The study found that the time it takes different offices to investigate complaints, negotiate and file suits can vary widely, making agency action unpredictable for employers. Maatman said that you&rsquo;re dealing with an entity, as opposed to a different decision-maker in Phoenix, different decision-maker in Philadelphia, who view the issue differently yet they both work for the same agency.</p> http://www.seyfarth.com:80/publications/ERISA053117 Eight Circuit Grants Slight Reprieve to Mother of Transgender Son in ACA Discrimination Suit http://www.seyfarth.com:80/publications/ERISA053117 Wed, 31 May 2017 00:00:00 -0400 <p> The Eighth Circuit granted a potentially short-lived reprieve to a plaintiff challenging a blanket exclusion for transgender services contained in her employer&rsquo;s health plan. The case, <em>Tovar v. Essentia Health, et al</em>, No. 16-3186 (8th Cir. May 24, 2017), allowed part of the plaintiff&rsquo;s claim alleging a violation under Section 1557 of the ACA to proceed by remanding it to the district court.</p> <p> To read the full blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/31/eighth-circuit-grants-slight-reprieve-to-mother-of-transgender-son-in-aca-discrimination-suit/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=bb14099833-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-bb14099833-73179521">click here</a>.</p> http://www.seyfarth.com:80/publications/WH053117 Court Grounds O’Hare Janitors’ Collective Action For Off-the-Clock Work http://www.seyfarth.com:80/publications/WH053117 Wed, 31 May 2017 00:00:00 -0400 <p> Since at least October 2010, Scrub provided janitorial services at O&rsquo;Hare airport. It did so pursuant to three types of contracts: (1) a contract with the City of Chicago to clean the domestic terminals; (2) contracts with airlines to clean gates; and (3) contracts with airlines to clean airplanes.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/decertification/ohare-collective-grounded/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=58653e5fb7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-58653e5fb7-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/MA053117-LE Shifty Business: NYC Restricts Shift Scheduling for Retailers and Fast Food Chains http://www.seyfarth.com:80/publications/MA053117-LE Wed, 31 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Five new laws in New York City will impose strict limits on shift scheduling for fast food and retail industry employees. The laws will be effective 180 days after their signing, on November 26, 2017.</em></p> <p> Effective November 26, 2017, chain fast food employers and retail employers will face numerous limitations on scheduling their employees&rsquo; shifts. Fast food employers will be required to make and post shift schedules in advance, pay premiums for last-minute shift changes, offer open shifts to current employees before hiring new ones, avoid scheduling &ldquo;clopening&rdquo; shifts, and deduct and remit voluntary contributions from employees to not-for-profits. Retail employers will effectively be banned from on-call scheduling.</p> <p> These restrictions are part of a package of five bills, passed by the New York City Council and signed by Mayor Bill de Blasio, known collectively as &ldquo;Fair Workweek&rdquo; legislation.&nbsp; The laws will be administered by the Office of Labor Standards within the New York City Department of Consumer Affairs.&nbsp;</p> <p> <strong>Fast Food Provisions</strong></p> <p> <strong>Covered Employers and Employees</strong></p> <p> &ldquo;Fast food&rdquo; establishments are defined as those whose primary purpose is serving food or drink items; where patrons order and pay before eating, taking out, or getting delivery; and that are part of a chain of 30 or more establishments nationally. The affected employees are those whose duties include customer service, cooking, preparing food or drinks, delivery, security, stocking supplies or equipment, and cleaning or routine maintenance. Salaried employees are not covered.</p> <p> <strong>Advance Scheduling Requirement</strong></p> <p> Employers will be required to provide fast food employees with a written estimate of the number of hours the employee will work each week and the expected dates, times, and locations of those hours. Any long-term or indefinite changes to those estimates must be updated as soon as possible and before the employee receives the first work schedule following that change.</p> <p> Employers will also be required to provide employees, by their first day of work, with written notice of a work schedule containing regular and on-call shifts. The employer then must provide notice at least 14 days before the first day of any new schedule, with all anticipated regular or on-call shifts.</p> <p> Employers will be required to provide written notice of the work schedule by posting it in a conspicuous place and sending it to each employee (including electronically if the employer regularly communicates scheduling information this way). Employers must also update these schedules within 24 hours of knowledge of a change or as soon as practicable for changes effective within 24 hours, provide a copy to affected employees, and post the revised schedule. Upon an employee&rsquo;s request, employers will have to provide that employee&rsquo;s work schedule for any week worked in the past three years, in writing, and the most current version of work schedules of <em>all</em> employees in the same establishment. &nbsp;</p> <p> The law allows employees to decline to work any hours not included in these schedules. If an employee agrees to work hours not in those schedules, the employer must obtain written consent by the start of the shift.</p> <p> <strong>Schedule Change Premiums</strong></p> <p> Employers will be required to make premium payments to any employee affected by a change in the work schedule. These premiums are <em>in addition to </em>the employee&rsquo;s regular pay, must be paid at the same time as regular wages are paid, and must be noted separately on wage statements.</p> <p> These premiums vary based on how far in advance a shift change is communicated and the type of change:</p> <ul> <li> Between 14 days and 7 days in advance: $10 to $20 per change</li> <li> Between 7 days and 24 hours in advance: $15 to $45 per change</li> <li> Less than 24 hours in advance: $75 per change</li> </ul> <p> Employers will not be required to provide schedule change premiums in the following circumstances: the employer&rsquo;s operations cannot begin or continue due to certain emergency conditions; the employee requested a schedule change in writing; two employees voluntarily traded shifts; or the employer is required to provide overtime pay for the changed shift.</p> <p> <strong>Access to Hours </strong></p> <p> An employer must offer current employees the opportunity to serve regular and on call shifts before hiring new employees or subcontractors to perform the work. Generally, this means the employer must post a notice of these shifts for three consecutive days and provide an electronic copy to each employee. The notice must contain information about the number of available shifts; the schedule; whether they will occur at the same time weekly; the anticipated length of time coverage will be required; how and when employees should notify the employer of their interest; the criteria used to distribute them; and certain details about how shifts will be distributed.&nbsp;</p> <p> Employees from any location within the fast food chain may accept the shifts or any subset thereof in those three days, but those at the location of the open shifts will have priority. After three days, but more than 24 hours prior to the start of the shifts, employers may make shifts available to employees from other locations. Only after this process is completed may the employer hire new employees or subcontractors for any remaining shifts. Employers may avoid these waiting periods by obtaining written confirmation from a set of employees that they do not accept the shifts offered.</p> <p> These provisions do not apply if the anticipated shift would require employees to be paid at the time-and-a-half overtime rate.</p> <p> Employers are also encouraged to make reasonable efforts to offer training opportunities to workers on the skills and experience for work if the employer regularly has additional needs.</p> <p> <strong>Banning &ldquo;Clopening&rdquo; Shifts </strong></p> <p> Employers cannot require fast food employees to work &ldquo;clopening&rdquo; shifts: two shifts with fewer than 11 hours between the time the first shift ends and the second shift begins, when the first shift ends on the previous day or spans two calendar days. However, employees may submit a written request or consent to work such a shift. Otherwise, the employer must pay the employee $100 for each instance an employee works a clopening shift.</p> <p> <strong>Voluntary Contributions </strong></p> <p> Fast food employers will be required to deduct and remit voluntary contributions to not-for-profits from employees&rsquo; paychecks. Employees or not-for-profits may submit a form to the employer authorizing deductions from a consenting employee&rsquo;s paycheck. The authorization form must include: the employee&rsquo;s signature; the employee&rsquo;s name and address; the amount, frequency, and start date of the contribution; the not-for-profit&rsquo;s name, address, email address, web address, phone number, and a contact for employees who want to revoke authorization; and a statement that contributions are voluntary and authorization to deduct may be revoked at any time in writing.&nbsp;</p> <p> Employees may revoke the authorization in writing with the not-for-profit, which must then submit it to the employer. Within five business days of receiving any authorization or revocation, employers must provide a copy of it to the relevant employee. Employers will be required to begin or end deductions by the first pay period after 15 days from having received the notice. Employers will only be required to honor an authorization once per pay period and for contributions of at least $3 for employees paid each week (or $6 if paid every two weeks). The Office of Labor Standards is expected to create rules on the processing fees for deduction and remittance, for which employers will be able to request reimbursement from the not-for-profit.</p> <p> The Office of Labor Standards will create a notice of employee rights under this law, and employers will be required to distribute and post this written notice. The law further imposes recordkeeping obligations on employers. For two years, employers must keep the following records: deduction authorizations and revocations made; remittances; deductions; a copy of the authorization; and proof of distribution of the required notice to employees.</p> <p> <strong>Retail Provisions</strong></p> <p> <strong>Covered Employers and Employees</strong></p> <p> &nbsp;&ldquo;Retail&rdquo; employers are those with 20 or more employees that are engaged primarily in the sale of consumer goods at a store within New York City.</p> <p> <strong>Banning On-Call Shifts</strong></p> <p> The law effectively bans on-call scheduling for retail employees. An on-call shift is defined as any period other than a regular shift when the employer requires the employee to be available to work. Retail employers may no longer do the following:</p> <ul> <li> Schedule an employee for any on-call shift;</li> <li> Cancel any employee&rsquo;s regular shift within 72 hours of its scheduled start;</li> <li> Require an employee to work with fewer than 72 hours of notice (unless the employee consents in writing); or</li> <li> Require an employee to contact the employer to confirm whether the employee should report for a regular shift fewer than 72 hours before the shift.</li> </ul> <p> The law still allows retail employers to grant time off requests, permit employees to trade shifts, and make changes to employees&rsquo; work schedules with less than 72 hours&rsquo; notice if the employer&rsquo;s operations cannot begin or continue due to a limited number of reasons.</p> <p> Retail employers will be required to provide a written work schedule 72 hours in advance of the first shift on that schedule, post it in a conspicuous place, update the schedule for any changes, and notify employees affected by any schedule changes. Employers that regularly communicate scheduling information electronically will also be required to transmit the work schedule electronically. Additionally, employers must provide employees, upon request, with a written work schedule for any week worked in the past three years. The law has a carve-out for employees covered by collective bargaining agreements that waive the provisions of this law and address employee scheduling.</p> <p> <strong>General Provisions </strong></p> <p> <em>Retaliation prohibited</em>: Employers are prohibited from taking adverse actions against employees who engage in activities protected by these laws.</p> <p> <em>Notice and posting</em>: The Office of Labor Standards will make available notices for employers to post in the workplace informing employees of their rights under each of the enacted laws. These notices will be made available to download and post before the effective date. &nbsp;</p> <p> <em>Recordkeeping</em>: Employers must retain records documenting their compliance with these laws for three years.</p> <p> <em>Investigation and penalties</em>: The Office of Labor Standards will investigate any complaints received under these laws. If the Office finds violations of the laws, it may assess remedies including compensatory damages for employees, rescission of employee discipline, and civil penalties payable to the City of up to $1,000 per violation, or up to $15,000 where an employer engages in a pattern or practice of violations. Any person may bring a civil action for violations of these laws.</p> <p> <strong>Implications for Employers</strong></p> <p> Employers should prepare to revise their written policies in accordance with the Fair Workweek legislation, and may receive questions from employees in advance of implementation. We will continue to track implementation of the legislation, and advise of any updates.</p> http://www.seyfarth.com:80/publications/OMM053117-LIT High Court Limits Where Patent Suits Can Be Filed http://www.seyfarth.com:80/publications/OMM053117-LIT Wed, 31 May 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis: </strong>&nbsp;Venue in a patent litigation is limited to the alleged infringer&rsquo;s state of incorporation or where the defendant has committed infringing acts and has a regular and established place of business.</em></div> <div> &nbsp;</div> <div> Less than two months after oral argument, the Supreme Court issued a unanimous decision on May 22, 2017, in <em>TC Heartland LLC v. Kraft Foods Group Brands LLC</em>, uprooting long-standing precedent that allowed patent owners to sue anywhere there was personal jurisdiction over the alleged infringer. &nbsp;The Court held that venue is only proper in the state where the alleged infringer is incorporated or where it has both committed acts of infringement and has a regular and established place of business. &nbsp;</div> <div> &nbsp;</div> <div> By taking this stand, it is possible that the Supreme Court will prevail where the Federal Circuit and Congress have failed and curb &ldquo;patent troll litigation&rdquo; in patent-friendly district courts like the Eastern District of Texas by non-practicing entities (&ldquo;NPEs&rdquo;).</div> <div> &nbsp;</div> <div> <strong>Evolution of Patent Venue Laws</strong></div> <div> &nbsp;</div> <div> The issue in <em>TC Heartland</em> can be traced to an 1897 venue statute for patent infringement cases. &nbsp;Previously, patent litigations were treated like any other federal case for venue purposes.</div> <div> &nbsp;</div> <div> Venue refers to the proper or most convenient location for a case or trial. &nbsp;It is designed to keep litigation near the defendant or the site of the action that gave rise to the suit. &nbsp;In 1897, Congress approved a separate patent venue statute, which established venue (1) where the alleged infringer was an &ldquo;inhabitant&rdquo; or (2) where the defendant both committed the act(s) of infringement and maintained a &ldquo;regular and established place of business.&rdquo; &nbsp;In 1948, Congress made a slight non-substantive revision, replacing &ldquo;inhabit[]&rdquo; with &ldquo;resides.&rdquo; &nbsp;Previous Supreme Court decisions determined that the pre-1948 and post-1948 statute was the exclusive venue provision for patent infringement actions and that &ldquo;inhabit&rdquo; and &ldquo;resides&rdquo; both mean the place of the alleged infringer&rsquo;s incorporation.</div> <div> &nbsp;</div> <div> The 1948 patent venue statute, 28 U.S.C. &sect; 1400(b), has not been modified since its enactment. &nbsp;It reads:</div> <div> &nbsp;</div> <div> <table align="center" border="0" cellpadding="1" cellspacing="1" style="width:500px;"> <tbody> <tr> <td> Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.&nbsp;</td> </tr> </tbody> </table> <p> <br /> In contrast to the patent venue statute, the generally applicable venue statute has undergone more recent revisions. &nbsp;For example, in 1988, Congress expanded the location where a defendant can and should be sued. &nbsp;The general venue statute modified the definition of &ldquo;resides&rdquo; by expanding residence to include &ldquo;any judicial district in which such defendant is subject to the court&rsquo;s personal jurisdiction.&rdquo; Personal jurisdiction can include places where the defendant has directed its actions, for example, where the product at issue is in the stream of commerce.&nbsp;</p> <p> Two years later, in <em>VE Holding Corp. v. Johnson Gas Appliance Co.</em>, the Federal Circuit evaluated whether the 1988 change to the general venue statute affected the patent-specific venue provision. The end result was to make venue proper for patent litigation anywhere the defendant is subject to personal jurisdiction rather than the more restricted definition of &ldquo;resides&rdquo; as the place of incorporation.&nbsp;</p> </div> <div> Over the last 27 years, attorneys have associated <em>VE Holding</em>. with an increase in forum shopping -- once venue became easier to establish, plaintiffs brought suit in places thought to provide advantages in terms of procedure, outcome, or otherwise. For example, <em>VE Holding</em> is said to have contributed to the rise of the Eastern District of Texas as a go-to district for patent owners. The Eastern District of Texas offers streamlined patent litigation procedures and a reputation for patent holder wins. &nbsp;It is not a populous district, nor a place of incorporation or a principal place of business for most defendants. &nbsp;But recent statistics show that it is the second most common forum for patent litigation disputes, trailing only <em>inter partes</em> review and post-grant review proceedings before the Patent Trial and Appeal Board.</div> <div> &nbsp;</div> <div> After <em>VE Holding</em>, the Federal Circuit continued to field cases concerning venue. &nbsp;In light of the rise of &ldquo;troll&rdquo; litigation by NPEs filed in plaintiff-friendly forums, it attempted to limit venue by finding that retaining jurisdiction under certain circumstances was an abuse of discretion. &nbsp;Congress also tried to limit patent venue in an attempt to curb NPE litigation. &nbsp;But its several attempts at legislation failed.</div> <div> &nbsp;</div> <div> <strong>TC Heartland</strong></div> <div> &nbsp;</div> <div> <em>TC Heartland </em>allowed the Supreme Court a second chance to evaluate <em>VE Holding</em>. (and provided an opportunity to combat forum-shopping in patent litigation matters). &nbsp;In <em>TC Heartland</em>, Kraft Food Group Brands LLC (&ldquo;Kraft&rdquo;) brought suit against TC Heartland, LLC (&ldquo;TC Heartland&rdquo;) in the District Court of Delaware. &nbsp;TC Heartland moved to dismiss the suit or at least transfer the case -- the company was incorporated in Indiana, maintained headquarters in Indiana, and less than 2% of the allegedly infringing product ended up in Delaware. The district court denied the motion, and TC Heartland appealed.</div> <div> &nbsp;</div> <div> On appeal, the Federal Circuit addressed the effect of another set of amendments to the general venue statute made in 2011. &nbsp;At that time, Congress added language stating that the general venue statute applied &ldquo;[e]xcept as otherwise provided by law.&rdquo; TC Heartland argued that the new language made the general venue statute inapplicable where other venue statutes existed, such as the patent venue statute. &nbsp;The Federal Circuit rejected TC Heartland&rsquo;s arguments, reaffirming<em> VE Holding</em>. According to the court, the patent venue statute did not define the term &ldquo;resides&rdquo; and thus looking to the general venue statute for guidance would not defy the &ldquo;otherwise provided by law&rdquo; language added in 2011.</div> <div> &nbsp;</div> <div> By an 8-0 vote, the Supreme Court reversed the Federal Circuit, and overturned the precedent of <em>VE Holding</em>. In its place, the Supreme Court determined that the term &ldquo;resides&rdquo; for purposes of the patent venue statute should be interpreted to mean the state of incorporation of the defendant. &nbsp;Under <em>TC Heartland</em>, plaintiffs alleging patent infringement must therefore file suit where the defendant resides (<em>i.e</em>., their state of incorporation) rather than wherever personal jurisdiction exists. &nbsp;Alternatively, a plaintiff can make use of the second location for venue provided by Section 1400(b): &nbsp;where the defendant has committed acts of infringement and has a regular and established place of business.</div> <div> &nbsp;</div> <div> <strong>Takeaways:</strong></div> <ul> <li> Patent litigation venue is governed solely by 28 U.S.C. &sect; 1400(b).<br /> &nbsp;</li> <li> For domestic corporations, venue in patent litigation is proper only (1) where the alleged infringer is incorporated or (2) where the alleged infringer has committed acts of infringement and has a regular and established place of business.<br /> &nbsp;</li> <li> <em>TC Heartland</em> is likely to shift patent litigation away from courts with very minimal ties to the district, and toward states where many domestic corporations are incorporated.</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/CP053117 Beat the Summer Heat: Vacation, Heat-Related Illness, Company-Sponsored Events http://www.seyfarth.com:80/publications/CP053117 Wed, 31 May 2017 00:00:00 -0400 <p> Summer is just getting started, and with it come special circumstances California employers should keep in mind. Vacations, hot weather, and company-sponsored events are among the summertime activities that raise employment issues. Here are some tips to beat the heat this summer.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/05/31/beat-the-summer-heat-vacation-heat-related-illness-company-sponsored-events/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=24ae1d367a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-24ae1d367a-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/EL053117 Fourth Circuit Decision Reiterates That Filling Employee’s Position During Leave And Re-Assigning Employee To A Different But Equivalent Position After Leave Is Okay Under The FMLA http://www.seyfarth.com:80/publications/EL053117 Wed, 31 May 2017 00:00:00 -0400 <p> A recurring issue for employers is whether to fill an employee&rsquo;s position while that employee is absent on a leave covered by the Family and Medical Leave Act (&ldquo;FMLA&rdquo;) and, if so, what position can be offered to the employee upon return to work that will satisfy the &ldquo;equivalent position&rdquo; alternative requirement under the FMLA. In a recently published opinion, the Fourth Circuit Court of Appeals has provided some helpful guidance.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/fourth-circuit-decision-reiterates-that-filling-employees-position-during-leave-and-re-assigning-employee-to-a-different-but-equivalent-position-after-leave-is-okay-under-the-fmla/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8803ca31c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8803ca31c2-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/WH053017 The Ninth Circuit Goes All In. Will the Supreme Court Call? http://www.seyfarth.com:80/publications/WH053017 Tue, 30 May 2017 00:00:00 -0400 <p> A pending petition for writ of certiorari gives the U.S. Supreme Court a second opportunity to establish two important Fair Labor Standards Act issues: <em>first</em>, administrative agencies and courts should not lightly disregard decades of established practice when interpreting the FLSA, and <em>second</em>, the old canard that &ldquo;exemptions should be narrowly construed against employers&rdquo; should finally be put to bed. Employers across the country are hoping that the Supreme Court takes up <em>Navarro, et al. v. Encino Motorcars, LLC</em> &nbsp;for the second time. And with the addition of Justice Gorsuch to the Court, the time may be ripe to address these issues.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/misclassification/the-ninth-circuit-goes-all-in-will-the-supreme-court-call/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=e2518e4c07-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-e2518e4c07-73179569">click here</a>.</p> http://www.seyfarth.com:80/news/olson053017 Camille Olson quoted in SHRM, "SHRM to Congress: EEO-1’s Pay Reporting Will Be Misleading, Burdensome" http://www.seyfarth.com:80/news/olson053017 Tue, 30 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May&nbsp;30 story from SHRM on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson testified that the EEOC estimated the cost of compliance at $53.5 million per year, while the Chamber ballparked it at $400.8 million annually. You can read the <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/shrm-eeo-1-pay-reporting.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/ada053017 Seyfarth Shaw’s ADA Title III report referenced in the Florida Record, "Former NFL star filed over 100 lawsuits against businesses not ADA compliant" http://www.seyfarth.com:80/news/ada053017 Tue, 30 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s ADA Title III report was referenced in a May 30 story from the Florida Record on how a Former NFL star sued over 100 businesses for federal Americans with Disabilities Act (ADA) violations over a year ago. In an analysis conducted by Seyfarth Shaw LLP, ADA lawsuits increased by 37 percent nationwide in 2016. You can read the <a href="http://flarecord.com/stories/511118981-former-nfl-star-filed-over-100-lawsuits-against-businesses-not-ada-compliant">full article here</a>.</p> http://www.seyfarth.com:80/news/bartlett053017 Brett Bartlett interviewed on Legal Talk Network, "The Trickle-down Effect: Anticipating the Impact of the Trump Administration on the Legal Field" http://www.seyfarth.com:80/news/bartlett053017 Tue, 30 May 2017 00:00:00 -0400 <p> Brett Bartlett was interviewed in a May 30 Legal Talk Network podcast. Bartlett shared insights on the possible implications for corporate law departments, law firms, and the legal workplace during the Trump Administration. He also forecast the practice areas poised for growth and shared his expertise on emerging job opportunities for specialized legal professionals. You can listen to the <a href="https://legaltalknetwork.com/podcasts/robert-half-legal-report/2017/05/the-trickle-down-effect-anticipating-the-impact-of-the-trump-administration-on-the-legal-field/">full podcast episode here</a>.</p> http://www.seyfarth.com:80/news/weiss052617 Philippe Weiss quoted in HR Daily Advisor, "Infographic: Minimizing Dress Code Mishaps at Work, Warm Weather Tips" http://www.seyfarth.com:80/news/weiss052617 Fri, 26 May 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in a May 26 story from HR Daily Advisor on Seyfarth Shaw at Work&#39; survey which revealed that more than 50% of managers have experienced obstacles or discomfort when dealing with employees sporting overly revealing/casual summer clothing. You can read the <a href="http://hrdailyadvisor.blr.com/infographic/infographic-minimizing-dress-code-mishaps-work-warm-weather-tips/">full article here</a>.</p> http://www.seyfarth.com:80/news/bitar052617 Karen Bitar quoted in the Waco Tribune-Herald, "One year since shake-up: Baylor community reflects on sexual assault scandal" http://www.seyfarth.com:80/news/bitar052617 Fri, 26 May 2017 00:00:00 -0400 <p> Karen Bitar was quoted in a May 26 story from the Waco Tribune-Herald on the news that Baylor faces six Title IX lawsuits with 15 plaintiffs, all former students alleging sexual or physical violence and unresponsive university officials. Bitar thinks that schools are grappling with how to deal with Title IX. You can read the <a href="http://www.wacotrib.com/news/higher_education/one-year-since-shake-up-baylor-community-reflects-on-sexual/article_c7a22b41-c192-5ec5-85e3-ac4beb47beb9.html">full article here</a>.</p> http://www.seyfarth.com:80/publications/ts052617 Robert Milligan to Present “Trade Secret Mediations in 2017: What You Need to Know” Webinar http://www.seyfarth.com:80/publications/ts052617 Fri, 26 May 2017 00:00:00 -0400 <p> Robert Milligan, Seyfarth Partner and Co-Chair of the Trade Secrets, Computer Fraud &amp; Non-Competes Practice Group, will be a panelist for the &ldquo;Trade Secret Mediations in 2017: What You Need to Know&rdquo; webinar presented by The Knowledge Group, LLC Live Webcast Series on July 14, 2017.</p> <p> To read the full blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/robert-milligan-to-present-trade-secret-mediations-in-2017-what-you-need-to-know-webinar/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=d53d8417a3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-d53d8417a3-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/WH052617 Wage and Hour Takeaways from Trump Post 100 Day Symposium http://www.seyfarth.com:80/publications/WH052617 Fri, 26 May 2017 00:00:00 -0400 <p> In May 25, 2017, Noah Finkel spoke at our full-day summit about what to expect from the DOL under the new administration. Noah&rsquo;s forecast: &ldquo;They say that the policy is the people, and we don&rsquo;t yet have the people.&rdquo; We have a Secretary of Labor and an interim Solicitor of Labor, but are still waiting for the President to fill the two most important wage and hour law positions: the Administrator and Deputy Administrator of the Wage and Hour Division (&ldquo;WHD&rdquo;). While we wait to see who will be at the WHD&rsquo;s helm, we should not expect any policy changes from the WHD, but should continue to be vigilant about developments in the courts.</p> <p> To read the full blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/wage-and-hour-takeaways-from-trump-post-100-day-symposium/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=ce549f2788-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-ce549f2788-73179569">click here</a>.</p> http://www.seyfarth.com:80/publications/TBT052617 The Week in Weed: May 26, 2017 http://www.seyfarth.com:80/publications/TBT052617 Fri, 26 May 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <p> Vermont governor snuffs legal pot, tells lawmakers to &lsquo;get it right&rsquo;<br /> (Reuters: US News, 25 May 2017)</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/the-week-in-weed-may-26-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=26d9fb6fd1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-26d9fb6fd1-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/LR052617 New Jersey Appellate Division Declines to Find Section 301 Pre-Emption of Discrimination and Retaliation Claims http://www.seyfarth.com:80/publications/LR052617 Fri, 26 May 2017 00:00:00 -0400 <p> In a published opinion issued on May 9, 2017, the three-judge panel of the New Jersey Appellate Division held that a union member&rsquo;s Law Against Discrimination (&ldquo;LAD&rdquo;) and Workers&rsquo; Compensation Law (&ldquo;WCL&rdquo;) claims were not preempted by Section 301 of the Labor Management and Relations Act (&ldquo;LMRA&rdquo;), despite the presence of an applicable collective bargaining agreement (&ldquo;CBA&rdquo;) and potential CBA-based defenses available to the employer.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/05/26/new-jersey-appellate-division-declines-to-find-section-301-pre-emption-of-discrimination-and-retaliation-claims/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=2b25f5ec1f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-2b25f5ec1f-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/EL052617 Seyfarth Attorneys Discuss Effect Of Trump Administration On Employers http://www.seyfarth.com:80/publications/EL052617 Fri, 26 May 2017 00:00:00 -0400 <p> On May 25, 2017, Seyfarth attorneys Chris DeGroff, Noah Finkel, and Brad Livingston presented their insights on how the Trump administration will affect employers. &nbsp;Specifically, they discussed the effect the Trump administration is having and will have on the EEOC, the DOL&rsquo;s Wage and Hour Division, and the NLRB.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/seyfarth-attorneys-discuss-effect-of-trump-administration-on-employers/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=211a3b1c15-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-211a3b1c15-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/BIO052617 Venue in ANDA Litigation: Will TC Heartland Be a Sea Change or Just a Drop in the Bucket? http://www.seyfarth.com:80/publications/BIO052617 Fri, 26 May 2017 00:00:00 -0400 <p> Less than two months after oral argument, the Supreme Court issued a unanimous decision on Monday, May 22, 2017, in TC Heartland LLC v. Kraft Foods Group Brands LLC, uprooting long-standing Federal Circuit precedent regarding proper venue for patent infringement cases. &nbsp;While the TC Heartland decision certainly portends a shift away from certain district courts, its effects may very well be minimal with respect to Paragraph IV litigation.</p> <p> To read the full blog post, <a href="http://www.bioloquitur.com/venue-anda-litigation-will-tc-heartland-cause-sea-change-just-drop-bucket/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=b413fb511e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-b413fb511e-73179529">click here</a>.</p> http://www.seyfarth.com:80/publications/PP-CORP-052617 Strategic Planning in Uncertain Times: A “How To” for Businesses http://www.seyfarth.com:80/publications/PP-CORP-052617 Fri, 26 May 2017 00:00:00 -0400 <div> If you are a company whose growth, profitability, operating costs or business model is directly or indirectly affected by what happens in national politics, how are you prepared to engage in effective business and strategic planning amidst uncertainty?&nbsp;</div> <div> &nbsp;</div> <div> As part of Seyfarth&rsquo;s &ldquo;<a href="http://www.seyfarth.com/events/CHIPP052517" target="_blank">First 100 &amp; Beyond: Strategy &amp; Planning Summit For Businesses</a>&rdquo; that took place on May 25, Andrew Sherman, a corporate partner in Seyfarth&rsquo;s D.C. office, discussed a checklist of issues to help business leaders and in-house legal departments plan more effectively:</div> <div> &nbsp;</div> <div> <strong>Business &amp; Financial Planning</strong></div> <ul> <li> How does political unpredictability, social divisiveness, and general societal uneasiness directly or indirectly affect your growth plans, consumer and business spending? What olive branches can you extend to mend wounds or close the gaps?</li> <li> How should capital and resources be allocated for 2018 - 2020?</li> <li> What is your business tolerance for risk from a governance and cultural perspective? How should your enterprise risk management (ERM) program be adjusted?</li> <li> How will tax reform affect your business plan&rsquo;s productivity, consumer demand and profitability?</li> <li> How will your cross-border transactions and global expansion plans be affected by populism, nationalism, border controls, immigration reforms, and possibly border taxes, tariffs or duties?</li> <li> How has political unpredictability affected your targeted consumer behaviors, employee retention and engagement, and the behavior or loyalty of key strategic or channel partner relationships?</li> <li> How have technological developments, consumer trends or economic cycles (which exist and evolve outside of the political ecosystem) affected your growth strategies or business model?</li> <li> How can you leverage your intangible assets to stay a step (or two) ahead of potential change in your ecosystem?</li> </ul> <div> <br /> <strong>New Industry&nbsp;</strong></div> <ul> <li> What steps can be taken to shift business models towards un-regulated or less-regulated (such as drones, robotics, driverless vehicles, etc.) areas of the marketplace (&ldquo;self-help&rdquo; regulation strategies) rather than waiting for regulatory reform?</li> </ul> <div> <br /> <strong>A Shifting Workforce</strong></div> <ul> <li> How will robotics, automation, artificial intelligence and social media affect the demographics and critical skills that your workforce requires? How will the speed and pace of change affect your company&rsquo;s ability to remain competitive in a shifting marketplace? &nbsp;</li> <li> Does your business plan reflect the fact that millennials will represent a majority of the workforce by 2022? &nbsp;</li> <li> For the in-house legal department of a middle-market or larger company, how should resources be allocated and what capabilities should be brought in-house vs. outsourced? How should priorities and performance metrics be adjusted?</li> </ul> http://www.seyfarth.com:80/publications/052617-CCL Export of Personal Information and Important Data - A Draft Data Control Rule for Public Consultation http://www.seyfarth.com:80/publications/052617-CCL Fri, 26 May 2017 00:00:00 -0400 <div> All enterprises in China may soon be subject to a new rule governing how they export personal information and important data. &nbsp;Under the draft rules, companies that export data will have to undergo regular self-assessments of their security controls on data and in certain circumstances may have to be assessed by the authorities as well.</div> <div> &nbsp;</div> <div> On April 11, 2017, a draft &ldquo;Measures on Security Assessment with respect to the Export of Personal Information and Important Data&rdquo; (the &ldquo;Measures&rdquo;) were issued by the State Internet Information Office for public consultation. &nbsp;Drafted in accordance with the newly issued Cyber Security Law<sup>1</sup>, the Measures provide greater detail how the Chinese government may regulate the outbound transmission of personal information and important data.</div> <div> &nbsp;</div> <div> The Measures do the following:</div> <div> &nbsp;</div> <div> <strong>1. Define and regulate the &ldquo;Outbound Transmission of Data&rdquo;&nbsp;</strong></div> <div> &nbsp;</div> <div> &ldquo;Outbound Transmission of Data&rdquo; is defined to occur when a network operator provides personal information and important data (collected and generated during its operation within China) to any entity, organization or person located overseas.&nbsp;</div> <div> &nbsp;</div> <div> The definition is therefore focused on the result (i.e., the information and data are obtained by an overseas party), instead of the method of transmission (i.e., regardless of whether the information and data are sent by a domestic party to an overseas party, are made accessible for an overseas party to download, or saved to any physical media that is then delivered overseas, etc.).</div> <div> &nbsp;</div> <div> <strong>2. Self-assessment by Operator</strong></div> <div> &nbsp;</div> <div> A network operator is required to conduct a security assessment before any individual Outbound Transmission of Data, as well as regular overall assessments at least once a year.&nbsp;</div> <div> &nbsp;</div> <div> The Measures do not provide any detailed requirements in terms of the assessment method and standards, but only list several topics that are supposed to be included in the assessment (e.g., the reason the Outbound Transmission of Data is necessary, the nature, quantity and scope of the information and data, the overseas recipient&rsquo;s capacity to properly keep and manage the transmitted information and data, and any risks associated with the overseas transmission). &nbsp;</div> <div> &nbsp;</div> <div> <strong>3. Special Assessment by Supervisory Authority&nbsp;</strong></div> <div> &nbsp;</div> <div> Under following circumstances, operators are required to report to relevant supervisory authorities for a special assessment:</div> <div> &nbsp;</div> <div> (i) the data involves (one-off or cumulatively) personal information of 500,000 or more people;&nbsp;</div> <div> (ii) the size of data is more than 1,000GB<sup>2</sup>;&nbsp;</div> <div> (iii) the data concerns nuclear facilities, chemistry biology, national defense, public health, large-scale project activities<sup>3</sup>, marine environment and sensitive geographic information data;</div> <div> (iv) network security data relating to critical information infrastructures, including system vulnerabilities, security defense and other network security data;</div> <div> (v) the providing operator is a critical information infrastructure operator; or</div> <div> (vi) other circumstances that may affect national security and social public interests.</div> <div> &nbsp;</div> <div> <strong>Our Observations and Recommendations</strong></div> <div> &nbsp;</div> <div> Effectively, the draft Measures clarify that multinationals operating in China must follow the rules governing data transmission as long as they need to transmit any &ldquo;personal information and important data&rdquo; overseas<sup>4</sup>.&nbsp;</div> <div> &nbsp;</div> <div> The term &ldquo;important data&rdquo; is not yet fully defined. The draft Measures define it as &ldquo;data that is closely related to national security, economic development, and social and public interests, with specific reference to relevant national standards and important data identification guidelines.&rdquo;</div> <div> &nbsp;</div> <div> Currently the Measures are only a draft for the purpose of public consultation. &nbsp;Please let us know if you have any comments on the proposed Measures, as we have the opportunity to discuss such issues with the authorities.</div> <div> &nbsp;</div> <div> ______________________</div> <div> <div> <sup>1</sup> Article 2 of the Cyber Security Law (issued on November 7, 2016 and effective from June 1, 2017) provides that &ldquo;the operator of a critical information infrastructure shall store within the territory of the PRC personal information and important data collected and generated during its operation within the territory of the PRC. Where such information and data have to be provided overseas for business purpose, security assessment shall be conducted pursuant to the measures developed by the Cyberspace Administration of China together with competent departments of the State Council...&rdquo;&nbsp;</div> <div> For more information on the Cyber Security Law, please refer to our previous alert dated November 30, 2016 at <a href="http://www.seyfarth.com/publications/113016-CEL" target="_blank">http://www.seyfarth.com/publications/113016-CEL</a>.</div> </div> <div> <sup>2</sup> The draft Measures do not clarify if such a size threshold is one-off or will be measured cumulatively over a certain period of time.</div> <div> <sup>3</sup> &nbsp;The specific standards defining &ldquo;large-scale&rdquo; projects are not provided in the draft Measures.</div> <div> <sup>4</sup> When the Cyber Security Law was promulgated, it was unclear from the its provisions if multinationals are &ldquo;operators of critical information infrastructure&rdquo; regulated by such new law. &nbsp;The draft Measures, however, will definitely cover multinationals.</div> http://www.seyfarth.com:80/publications/MA052617-LE If Pain, Yes Gain—Part XXXI: Grab Your First Aid Kit, Chicago Draft Sick Leave Rules Have Arrived http://www.seyfarth.com:80/publications/MA052617-LE Fri, 26 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> After months of anticipation and without much notice, Chicago has published its long-awaited draft paid sick leave rules. The Chicago Minimum Wage and Paid Sick Leave Ordinance is set to become effective on July 1, 2017.</em></p> <p> While no amount of multivitamins or antibiotics will save employers from the impending Chicago Minimum Wage and Paid Sick Leave Ordinance (&ldquo;PSLO&rdquo;),<a href="#_ftn1" name="_ftnref1" title="">[1]</a> on May 22, 2017, the City of Chicago provided businesses with some relief in the form of <a href="https://www.cityofchicago.org/content/dam/city/depts/bacp/Consumer%20Information/mwpslrulesrapsdraftforpublication05222017.pdf">draft paid sick leave rules</a> (the &ldquo;Draft Rules&rdquo;).&nbsp; &nbsp;The city will be accepting public comments on the Draft Rules until June 16, 2017&mdash;a mere two weeks before the PSLO goes into effect.</p> <p> On July 1, Cook County, IL will join Chicago as the only municipalities in the state of Illinois with paid sick leave ordinances that are in effect.&nbsp; <a href="http://www.seyfarth.com/publications/MA042117-LE">Cook County&rsquo;s draft sick leave regulations</a> were released in mid-April 2017 and the County is expected to release final regulations by June 1.&nbsp; We, of course, will keep you posted on these future developments.</p> <p> In the meantime, here are some of the highlights of the Chicago Draft Rules and what employers need to know about interaction between the Chicago PSLO and the Cook County Sick Leave Ordinance.</p> <ul> <li> <strong>Conflicts Between Chicago PSLO and Cook County Sick Leave Ordinance:</strong> Article VII, Section 6(c) of the <a href="http://www.ilga.gov/commission/lrb/con7.htm">Illinois Constitution</a> states that &ldquo;if a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail within its jurisdiction.&rdquo;&nbsp; Therefore, to the extent the Chicago PSLO and Cook County sick leave ordinance impose differing obligations on covered Chicago employers, it is likely that the Chicago PSLO will govern. Unfortunately for covered Chicago employers that are also covered employers under the Cook County ordinance for locations outside of the City of Chicago, the Illinois Constitution&rsquo;s language does not provide a remedy for reconciling distinctions between the laws.</li> <li> <strong>Exclusions and Union Employees:</strong> The Draft Rules list several types of workers that are excluded from the PSLO. Notably, the Draft Rules clarify that the PSLO does not apply to hours worked by employees covered by a collective bargaining agreement (&ldquo;CBA&rdquo;) in force on July 1, 2017.&nbsp; Employees covered by CBAs entered into after June 30, 2017 will be entitled to the PSLO&rsquo;s benefits (assuming they otherwise satisfy the law&rsquo;s eligibility and coverage standards) unless the CBA expressly waives the PSLO&rsquo;s requirements in clear and unambiguous terms.</li> <li> <strong>Accrual of Paid Sick Leave:</strong> Under the PSLO, eligible employees accrue paid sick leave at a rate of at least one hour of sick leave for every 40 hours worked. The Draft Rules confirm that only hours worked within the City of Chicago count toward accrual of paid sick leave. Moreover, employers are not required to allow accrual of paid sick leave when an employee is absent on paid or unpaid leave.</li> <li> <strong>Frontloading Paid Sick Leave:</strong> A major development in the Draft Rules is the language discussing covered employers&rsquo; ability to comply with the PSLO via a frontloaded lump grant system.&nbsp; The Draft Rules state that employers may choose to immediately grant their employees paid sick leave or PTO at the start of the benefit year in lieu of following an accrual model.&nbsp; In particular, the Draft Rules explain that if an employer frontloads its newly hired employees a 40-hour lump grant of paid leave within 180 days of the employees&rsquo; start of employment, and 60 hours of paid leave at the start of each subsequent benefit year, then the employer is not required to track sick leave accrual or follow the PSLO&rsquo;s complicated year-end carryover obligations.&nbsp; Note that the paid leave must be available for use in the manner at least as set forth in the PSLO.&nbsp; This is in contrast with the Cook County Sick Leave Ordinance which requires employers to frontload 100 hours to remove carryover obligations.</li> <li> <strong>Year-End Carryover:</strong> Where an employer opts to follow an accrual system, it must still follow the PSLO&rsquo;s carryover requirements.&nbsp; The PSLO provides that employees must be allowed to carry over to the following benefit year half of their unused, accrued sick leave, up to a maximum of 20 hours.&nbsp; Where an employer is subject to the Family Medical Leave Act (&ldquo;FMLA&rdquo;), employees are allowed to carry over up to 40 hours of additional unused, accrued sick leave (i.e., 60 total hours) into the subsequent year.&nbsp; There is language in the PSLO stating that certain amounts of this carried over time must be used exclusively for FMLA-eligible purposes. <ul> <li> <u>Draft Rules</u>: The Draft Rules explain that employers who are subject to the PSLO&rsquo;s carryover requirements must round up any odd number of unused paid sick leave at year-end to the next even number.&nbsp; This will allow the employer to ensure that employees carryover full increments of unused sick leave.&nbsp; In addition, while the Draft Rules suggest that employees have the option of carrying over unused paid sick leave for use under the PSLO or for use under the FMLA, an employer can require that employees notify the employer of this choice at the start of the benefit year.</li> </ul> </li> <li> <strong>Annual Usage Cap:</strong> While the PSLO states that an employee is entitled to use no more than 40 hours of paid sick leave in a given year, the Draft Rules state, without reference to the PSLO&rsquo;s FMLA exception, that a covered employee may use a maximum annual amount of 60 hours of paid sick leave.&nbsp; The Draft Rules explicitly allow an employer that grants its workers greater paid sick leave hours than the PSLO&rsquo;s minimum requirement to limit the PSLO-required usage standards to the number of hours guaranteed by the PSLO.</li> <li> <strong>Covered Family Member:</strong> The PSLO contains a broad list of covered family members, which includes, among other relationships, any other individual related by blood or whose close association with the employee is the equivalent of a family relationship. The Draft Rules expressly state that family member may also include a godchild, godparent, and co-parent.</li> <li> <strong>Payment of Sick Leave:</strong> The Draft Rules state that paid sick leave must be paid no later than the next regular payroll period beginning after the paid sick leave was used by the employee.</li> <li> <strong>Reinstatement of Unused Sick Leave Upon Rehire:</strong> Unlike many paid sick leave laws and ordinances, the PSLO lacks a provision discussing whether an employer must reinstate its employees earned, unused paid sick leave if they are rehired within a certain amount of time after separation of employment. The Draft Rules, however, clarify this grey area and note that employers have discretion when deciding whether previously earned, unused paid sick leave becomes available to a covered employee upon rehire.</li> <li> <strong>Notice and Posting Requirements:</strong> The Draft Rules state that the Commissioner of the Chicago Department of Business Affairs and Consumer Protection shall prepare a model notice employers can use to comply with the PSLO&rsquo;s notice and posting requirements.&nbsp; The model notice will be published on the city&rsquo;s <a href="https://www.cityofchicago.org/city/en/depts/bacp/supp_info/minimumwage.html">minimum wage website</a>, presumably before the July 1 effective date.</li> <li> <strong>Recordkeeping Requirements:</strong> The PSLO is silent on covered employers&rsquo; specific recordkeeping obligations. The Draft Rules break this silence and note that employers must maintain at least 12 different types of records for a period of not less than five years.&nbsp; Among the required records are the date each covered employee was eligible to use paid sick leave and the dates and number of hours each covered employee used paid sick leave.</li> </ul> <p> Chicago employers should take steps now to ensure that they will be able to achieve full compliance with the PSLO by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the PSLO.</li> <li> Determine whether to have a single combined policy or separate policies for Chicago and Cook County locations.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking paid sick leave.</li> <li> Prepare to comply with the PSLO&rsquo;s posting and notification requirements and monitor the city&rsquo;s <a href="https://www.cityofchicago.org/city/en/depts/bacp/supp_info/minimumwage.html">minimum wage website</a> for model notices and other sick leave guidance and updates.</li> <li> Train supervisory and managerial employees, as well as HR, on the PSLO requirements.</li> <li> Await further guidance, including final rules regulations, from the Chicago Department of Business Affairs and Consumer Protection, and update policies and practices to comply with any finalized advice.</li> </ul> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> For more information, see our <a href="http://www.laborandemploymentlawcounsel.com/2016/06/the-chicago-paid-sick-leave-ordinance-is-inevitable/">prior alert</a> on the Chicago PSLO.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/TS052517 Great Employee or Insider Threat? http://www.seyfarth.com:80/publications/TS052517 Thu, 25 May 2017 00:00:00 -0400 <p> As a special feature of our blog&mdash;special guest postings by experts, clients, and other professionals&mdash;please enjoy this blog entry from Charlie Platt, a director at iDiscovery Solutions and a Certified Ethical Hacker. He advises clients on data analytics, digital forensics, and cybersecurity.</p> <p> To read the full blog post,&nbsp;<a href="http://www.tradesecretslaw.com/2017/05/articles/cybersecurity/great-employee-or-insider-threat/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=973aa4ebf6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-973aa4ebf6-73179565">click here</a>.</p> http://www.seyfarth.com:80/publications/WC052517 Following U.S. Supreme Court Review, Ninth Circuit Remands EEOC Subpoena Case http://www.seyfarth.com:80/publications/WC052517 Thu, 25 May 2017 00:00:00 -0400 <p> After the U.S. Supreme Court clarified in <em>McLane Co. v. EEOC</em>, No. 15-1248, 2017 U.S. LEXIS 2327 (U.S. 2017), that the scope of review for employers facing EEOC administrative subpoenas was the abuse-of-discretion standard, a relatively high bar of review, the Ninth Circuit applied that standard of review on remand and vacated the District Court&rsquo;s original decision that denied the enforcement of an EEOC subpoena.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/05/following-u-s-supreme-court-review-ninth-circuit-remands-eeoc-subpoena-case/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=9e2a1444f2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-9e2a1444f2-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/MA052517-LE New Jersey Appellate Division Declines to Find Section 301 Pre-Emption of Discrimination and Retaliation Claims http://www.seyfarth.com:80/publications/MA052517-LE Thu, 25 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> The New Jersey Appellate Division reinstated plaintiff&rsquo;s state law discrimination and retaliation claims, finding the claims were not pre-empted by Section 301 of the LMRA.</em></p> <p> In a published opinion issued on May 9, 2017, the three-judge panel of the New Jersey Appellate Division held that a union member&rsquo;s Law Against Discrimination (&ldquo;LAD&rdquo;) and Workers&rsquo; Compensation Law (&ldquo;WCL&rdquo;) claims were not preempted by Section 301 of the Labor Management and Relations Act (&ldquo;LMRA&rdquo;), despite the presence of an applicable collective bargaining agreement (&ldquo;CBA&rdquo;) and potential CBA-based defenses available to the employer.</p> <p> The plaintiff was employed as a commercial truck driver, and was a member of Teamsters Local Union No. 813.&nbsp; Following a workplace injury, he was cleared for light duty work, so long as it did not involve commercial driving. The plaintiff then filed a workers&rsquo; compensation claim with the New Jersey Department of Labor and Workforce Development, Division of Workers&rsquo; Compensation.&nbsp;</p> <p> Three months after filing the workers&rsquo; compensation claim, the company asked plaintiff to leave work, and by letter to the union, indicated that plaintiff would need to be recertified for duty as required by Department of Transportation (&ldquo;DOT&rdquo;) regulations before returning to work.&nbsp; The company scheduled an independent medical examination, but the plaintiff declined to undergo the exam, and therefore, was not returned to work.</p> <p> The union filed a grievance challenging the company&rsquo;s failure to reinstate the plaintiff.&nbsp; The grievance proceeded to arbitration, and was denied by the arbitrator who concluded that&nbsp; reinstatement would require examination and recertification pursuant to the DOT regulations.&nbsp;&nbsp;</p> <p> The plaintiff then sued in New Jersey Superior Court alleging unlawful discrimination under the LAD and retaliation under the WCL. Concluding that the claims were pre-empted, the trial judge dismissed the complaint for lack of subject matter jurisdiction.&nbsp; The plaintiff appealed.</p> <p> The question before the Appellate Division was whether the trial judge correctly concluded that the LAD and WCL claims were pre-empted under Section 301 of the LMRA, which pre-empts claims that require an interpretation of a collective bargaining agreement.&nbsp;</p> <p> The court first looked to the elements of the plaintiff&rsquo;s claim that the company retaliated against him based on his workers&rsquo; compensation claim, which required showing that (i) he made, or attempted to make, a claim for workers&rsquo; compensation, and (ii) he was discharged for making that claim.</p> <p> According to the court, under U.S. Supreme Court precedent in <em>Lingle v. Norge Div. of Magic Chef</em>, 486 U.S. 399 (1988), each of these is a &ldquo;purely factual inquiry,&rdquo; and therefore, requires no interpretation of the CBA.&nbsp; Plus, plaintiff did not make any mention of any provision of the CBA in his complaint. &nbsp;So, his WCL claim was not pre-empted under Section 301.</p> <p> The court then turned to the LAD claim, which proved to be a more difficult question.&nbsp; To establish a <em>prima facie</em> LAD claim, the plaintiff had to demonstrate (i) he was disabled; (ii) he was objectively qualified for his former position; (ii) he was terminated; and (iv) the company sought a replacement. &nbsp;Although the court determined that each of these also presented a &ldquo;purely factual inquiry,&rdquo; the court recognized that the company may have a CBA-based defense based the CBA&rsquo;s requirement that employees promptly comply with DOT physicals. Further, whether the plaintiff was &ldquo;objectively qualified&rdquo; for the position potentially implicated the CBA.</p> <p> Ultimately, however, the appellate court determined that neither the requirement that the plaintiff was objectively qualified nor the company&rsquo;s potential defenses required an interpretation of the CBA that would preempt the claim. &nbsp;As noted by the New Jersey Supreme Court in <em>Puglia v. Elk Pipeline, Inc.</em>, 226 N.J. 258, 279 (2016), &ldquo;&hellip;a CBA-based defense is ordinarily insufficient to preempt an independent state-law action.&rdquo;</p> <p> Further, the CBA was not the only source, or even the primary source of the plaintiff&rsquo;s duty to recertify.&nbsp; Instead, it was DOT regulations that set forth the requirement and &ldquo;To the extent an interpretation of them is required, federal law [and not the CBA] must be applied.&rdquo;</p> <p> Looking forward, unionized employers in New Jersey who are defending against claims under state law thus face additional hurdles stemming from decisions like <em>Hejda v. Bell Container Corporation</em>. For example, a Section 301 claim, which is a claim under a federal statute, could be removable to federal court.&nbsp; Without the Section 301 claim, a defendant thus loses a potential basis for removal.&nbsp; Additionally, where CBAs otherwise provide an administrative process that must be utilized before a Section 301 claim is filed, employers may lose the ability to enforce the administrative remedies provisions, or otherwise have a lawsuit dismissed if the administrative remedies were not exhausted. Last, unionized employees have a greater ability to circumvent Section 301&rsquo;s limitation to contract-based remedies, and instead seek the full panoply of tort-based remedies that the LAD affords plaintiffs. Accordingly, the dynamics for any employer with an organized workforce that is defending a claim under New Jersey state law have shifted further in the direction of state-law protections, and away from the uniformity and precedent of the LMRA.</p> <p> <em>Hejda v. Bell Container Corporation</em>, while not a sea change in the law, is representative of the both the trend in New Jersey of courts declining to find Section 301 pre-emption, as well as the courts&rsquo; interpretation of the LAD as a wide-reaching, liberally-construed source of employee protections.</p> http://www.seyfarth.com:80/publications/EL052517 Change to Occur Slowly at NLRB http://www.seyfarth.com:80/publications/EL052517 Thu, 25 May 2017 00:00:00 -0400 <p> At today&rsquo;s client symposium on legal developments after 100+ days of the Trump Administration, Brad Livingston, the Chair of Seyfarth Shaw&rsquo;s Labor Relations Practice Group, explained that change will occur &mdash; albeit slowly &mdash; with the National Labor Relations Board (&ldquo;NLRB&rdquo; or &ldquo;Board&rdquo;). &nbsp;And he said that the question is whether there will be time for a Trump Board to restore some balance to decisions reached over the past eight years that many believe have been the most pro-union in the agency&rsquo;s history.</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/05/25/change-to-occur-slowly-at-nlrb/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=9ac48d849f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-9ac48d849f-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/IMM052517 Seyfarth Business Immigration Group Partners Jim King and Leon Rodriguez Discuss Immigration Trends Before Chicago Area Business Leaders http://www.seyfarth.com:80/publications/IMM052517 Thu, 25 May 2017 00:00:00 -0400 <p> At a program held today at Seyfarth Shaw&rsquo;s offices in Chicago, partners Jim King and Leon Rodriguez discussed rapidly developing changes in business immigration in the first 100 days of the Trump administration. &nbsp;King serves as co-chair of the Business Immigration Group and Rodriguez is the most recent director of United States Citizenship and Immigration Services.</p> <p> To read the full blog post, <a href="http://www.bigimmigrationlawblog.com/2017/05/seyfarth-business-immigration-group-partners-jim-king-and-leon-rodriguez-discuss-immigration-trends-before-chicago-area-business-leaders/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=08d06e90a4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-08d06e90a4-73179525">click here</a>.</p> http://www.seyfarth.com:80/news/seyfarth-metlife-announce-new-fellowship-diversity-052517 Seyfarth and MetLife Announce New Fellowship to Advance Diversity http://www.seyfarth.com:80/news/seyfarth-metlife-announce-new-fellowship-diversity-052517 Thu, 25 May 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP and MetLife, Inc. (NYSE: MET) announced today the 2017 Seyfarth/MetLife 1L Summer Fellowship Program. The fellowship will provide law students from diverse backgrounds with a wider-range of law firm and in-house corporate legal experience.&nbsp;</p> <p> The Seyfarth/MetLife Fellowship advances the commitment by both Seyfarth and MetLife to further diversify their respective organizations and the broader legal profession. A diverse and inclusive work environment is critical to how each organization does business, central to the clients and customers they serve and representative of the communities in which their professionals live and work.&nbsp;</p> <p> &ldquo;Diversity initiatives across the legal profession should offer the same level of innovation and opportunities for collaboration that drive our respective businesses,&rdquo; said Marcantonio Barnes, senior counsel at Seyfarth who spearheaded the Seyfarth/MetLife Fellowship. &nbsp;&ldquo;The Seyfarth-MetLife relationship is as much a reflection of our joint commitment in this area as it is a demonstration of our intent to work together to improve diversity results across the legal profession.&rdquo;&nbsp;</p> <p> The 10-week paid fellowship will provide a first-year law student with unique, first-hand experience working alongside lawyers at Seyfarth&rsquo;s firm and MetLife&rsquo;s Legal Affairs organization in New York City.&nbsp;</p> <p> &ldquo;Partnering with Seyfarth is a natural fit for both of our organizations and aligned with our commitment to accelerating diversity within the legal profession,&rdquo; said Ricardo Anzaldua, executive vice president and general counsel, MetLife, Inc. &ldquo;The fellowship will help students build well-rounded skillsets as they pursue legal careers while also strengthening the pipeline of diverse future leaders throughout our profession.&rdquo;&nbsp;</p> <p> &ldquo;Diversity of people and ideas are paramount to delivering higher value throughout our profession, and we&rsquo;re honored to work with the dedicated team at MetLife in providing a unique new experience for our fellows,&rdquo; said Laura Maechtlen, co-chair of Seyfarth&rsquo;s Diversity &amp; Inclusion Action Team. &nbsp;</p> <p> The Seyfarth/MetLife Fellow will work on a variety of matters and projects and participate in meetings with clients and business partners. The fellow will also shadow lawyers at both organizations to gain practical, hands-on experience. The summer fellow will begin the fellowship at Seyfarth&rsquo;s office and conclude at MetLife&rsquo;s global headquarters.</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> <strong>About MetLife</strong><br /> MetLife, Inc. (NYSE: MET), through its subsidiaries and affiliates (&quot;MetLife&quot;), is one of the largest life insurance companies in the world. Founded in 1868, MetLife is a global provider of life insurance, annuities, employee benefits and asset management. Serving approximately 100 million customers, MetLife has operations in nearly 50 countries and holds leading market positions in the United States, Japan, Latin America, Asia, Europe and the Middle East. For more information, visit www.metlife.com.<a href="https://www.metlife.com/">https://www.metlife.com/</a></p> http://www.seyfarth.com:80/news/Rabe-40-LGBT-052517 Scott Rabe Named One of the Best LGBT Lawyers Under 40 http://www.seyfarth.com:80/news/Rabe-40-LGBT-052517 Thu, 25 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s Scott Rabe, partner in the firm&rsquo;s Labor and Employment department in New York, was selected as one of the Best LGBT Lawyers Under 40 &ndash; Class of 2017 by the National LGBT Bar Association. The Best LGBT Lawyers Under 40 - Class of 2017 will be recognized at a special awards ceremony on Thursday, August 3, 2017 in conjunction with the 2017 Lavender Law Conference &amp; Career Fair.</p> <p> Each year, the LGBT Bar recognizes 40 LGBT legal professionals (practicing lawyers, law professors, corporate counsel, members of the judiciary, politicians, etc.) under the age of 40 who have distinguished themselves in their field and have demonstrated a profound commitment to LGBT equality.</p> <p> Rabe&rsquo;s primary focus is defending employers, including a number of Fortune 500 companies, in a wide range of employment discrimination, harassment, and wage and hour matters brought under various federal and state statutes, including Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act, 42. U.S.C. Section 1981, the Fair Labor Standards Act, the Equal Pay Act, the Employee Retirement Income Security Act, the New York Labor Law, the Minnesota Human Rights Act, the New Jersey Law Against Discrimination, and the Conscientious Employee Protection Act, among others.</p> <p> Rabe has been recognized as a &ldquo;Rising Star&rdquo; by New York Metro Super Lawyers for four years running. He serves on the Board of Directors for The Drama Club, is an active member of LAMBDA Legal&rsquo;s Young Professionals Council, the Firm&rsquo;s Diversity and Inclusion Action Team, and the LGBT Bar Association. He regularly represents indigenous clients and non-profit organizations in a variety of pro bono matters.</p> <p> The National LGBT Bar Association is a national association of lawyers, judges and other legal professionals, law students, activists and affiliated lesbian, gay, bisexual and transgender legal organizations. The LGBT Bar promotes justice in and through the legal profession for the LGBT community in all its diversity. You can read more <a href="http://lgbtbar.org/">here</a>.</p> http://www.seyfarth.com:80/news/babasonbb052417 Marshall Babson quoted by Bloomberg BusinessWeek, “Lawmakers Ask Justices to Take Up Veterans' Workplace Rights” http://www.seyfarth.com:80/news/babasonbb052417 Wed, 24 May 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a May 24 story in Bloomberg BusinessWeek on how eighteen lawmakers are testing their luck at the Supreme Court, asking the justices to take up a case on whether military reservists&rsquo; unfair dismissal claims can be forced into arbitration by their civilian bosses. Babson said he hopes the justices will grant the defendant&rsquo;s petition and then rule against him, establishing a fresh precedent in favor of arbitration. You can read the <a href="https://www.bloomberg.com/news/articles/2017-05-24/lawmakers-ask-justices-to-take-up-veterans-workplace-rights">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonbna052417 Camille Olson quoted in Bloomberg BNA, “Time for the EEOC to Move in a New Direction?” http://www.seyfarth.com:80/news/olsonbna052417 Wed, 24 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 24 story from Bloomberg BNA on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson testified that he lack of attention to individual bias charges also lead to a significant drop in the number of lawsuits on the merits filed by the EEOC under Obama. You can read the <a href="https://www.bna.com/time-eeoc-move-n73014451441/">full article here</a>.</p> http://www.seyfarth.com:80/news/olsonshrm052417 Camille Olson quoted in SHRM, “Employer and Civil Rights Groups Oppose Merger of EEOC and OFCCP” http://www.seyfarth.com:80/news/olsonshrm052417 Wed, 24 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 24 story from SHRM on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson testified that numerous companies have contacted the Chamber with concerns about merging the EEOC and OFCCP agencies. You can read the <a href="https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/merger-EEOC-OFCCP-opposed.aspx">full article here</a>.</p> http://www.seyfarth.com:80/news/burritt052417 Jason Burritt quoted in Politico, “Morning Shift” http://www.seyfarth.com:80/news/burritt052417 Wed, 24 May 2017 00:00:00 -0400 <p> Jason Burritt was quoted in a May 24 story from Politico on how the Labor Department may soon start charging fees to employers who seek to hire foreign workers, according to a proposal included in the President&rsquo;s budget. Burritt said that employers antsy for workers are not eager to pay more in fees, but the Labor Department could make them palatable. You can read the <a href="http://www.politico.com/tipsheets/morning-shift/2017/05/24/everything-you-need-to-know-about-trumps-budget-220486">full article here</a>.</p> http://www.seyfarth.com:80/news/babsobbna052417 Marshall Babson quoted by Bloomberg BNA, “Labor Board Funding Cut 6 Percent in Trump Budget Plan” http://www.seyfarth.com:80/news/babsobbna052417 Wed, 24 May 2017 00:00:00 -0400 <p> Marshall Babson was quoted in a May 24 story in Bloomberg BNA on how the National Labor Relations Board funding would drop nearly 6 percent under the President&rsquo;s budget proposal released May 23rd. Babson said that the proposed budget cuts for the NLRB are unfortunate. You can read the <a href="https://www.bna.com/labor-board-funding-n73014451456/">full article here</a>.</p> http://www.seyfarth.com:80/news/maatmanlaw360052417 Gerald Maatman, Andrew Scroggins and Christopher DeGroff’s new study featured in Law360, “EEOC's Speed Varies Office To Office, Seyfarth Study Says” http://www.seyfarth.com:80/news/maatmanlaw360052417 Wed, 24 May 2017 00:00:00 -0400 <p> Gerald Maatman, Andrew Scroggins and Christopher DeGroff&rsquo;s new study was featured in a May 24 story from Law360. According to the study, the time it takes for the U.S. Equal Employment Opportunity Commission to resolve an enforcement action can vary depending on which regional office is handling the charge. Maatman said that dealing with the EEOC is like buying real estate: location, location, location.</p> http://www.seyfarth.com:80/news/schwartzfenwick052417 Sam Schwartz-Fenwick quoted in Bloomberg BNA, "Transgender Treatment Coverage Dispute Revived" http://www.seyfarth.com:80/news/schwartzfenwick052417 Wed, 24 May 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in a May 24 story from Bloomberg BNA on how a nurse got a second chance to argue her health plan violated Obamacare&#39;s ant-discrimination provision by refusing to provide coverage for her son&#39;s transgender dysphoria treatment. Schwartz-Fenwick said that the decision was a significant defeat for the plantiffs&#39; bar because the party in the best position to bring a lawsuit of this type would be a parent who has health coverage through his or her employer.</p> http://www.seyfarth.com:80/publications/TBT052417 Reading the Signs: Is a Marijuana Crackdown in Our Future? http://www.seyfarth.com:80/publications/TBT052417 Wed, 24 May 2017 00:00:00 -0400 <p> We recently reported on the inclusion of the Rohrabacher-Farr Amendment in the current Congressional budget deal. &nbsp;The controversy over whether the Justice Department should be permitted to enforce federal laws in states where marijuana is legal for medical purposes only seemed settled, at least until the Consolidated Appropriations Act of 2017 expires in late September. &nbsp;Due to the signing statement that President Trump issued when approving the Act, however, we may have blogged too soon.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/reading-the-signs-is-a-marijuana-crackdown-in-our-future/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=ddea00976e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-ddea00976e-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/CP052417 Picking a Fight: How California Makes Employment Law Peculiar http://www.seyfarth.com:80/publications/CP052417 Wed, 24 May 2017 00:00:00 -0400 <p> In 1846, American settlers in Mexican Alta California staged the Bear Flag Revolt. They declared an independent republic, seeking freedom from Mexico. The rebels got lucky: the Mexican-American War soon intervened to dislodge the California territory from Mexican control. California, in 1850, became our thirty-first state.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/05/24/picking-a-fight-how-california-makes-employment-law-peculiar/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=88569c362a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-88569c362a-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/MA052417-LE Arbitration Agreement Enforced on Behalf of Nonsignatory http://www.seyfarth.com:80/publications/MA052417-LE Wed, 24 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>The California Court of Appeal has utilized theories of equitable estoppel and agency to hold that an employee must arbitrate claims he asserted against an alleged joint employer, even though that defendant had not signed the employee&rsquo;s arbitration agreement.. </em></p> <p> <strong>The Facts</strong></p> <p> In 2011, Narciso Garcia signed on for temporary work with a staffing agency. His job application contained an agreement to arbitrate any dispute regarding employment laws. He then received an assignment to work for Pexco, LLC, which had not signed the arbitration agreement.</p> <p> In 2014, Garcia, claiming unpaid wages, sued both the staffing agency and Pexco for violations of the Labor Code and unfair business practices. Pexco moved to compel arbitration. The trial court granted the motion. Garcia appealed the order to arbitrate, because Pexco had not signed the arbitration agreement.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed the order to arbitrate. While the general rule is that only a party to an arbitration agreement can invoke it, two exceptions to the rule&mdash;equitable estoppel and agency&mdash;both applied here.</p> <p> <em>Equitable estoppel.</em> A nonsignatory to an arbitration agreement may compel a signatory plaintiff to arbitrate &ldquo;when the causes of action against the nonsignatory are intimately founded in and intertwined with the underlying contract obligations,&rdquo; and when the claims rely on &ldquo;the same facts and are inherently inseparable from the arbitrable claims against signatory defendants.&rdquo; Garcia&rsquo;s claims against Pexco were all intimately &ldquo;founded in and intertwined&rdquo; with his employment relationship with the staffing agency. Garcia alleged identical claims and conduct against both defendants as joint employers, referring to them collectively as &ldquo;defendants,&rdquo; without any distinction. It was thus &ldquo;inequitable for the arbitration about Garcia&rsquo;s assignment with Pexco to proceed with [the staffing agency], while preventing Pexco from participating.&rdquo; This reasoning applied to statutory claims as well as contract claims. &nbsp;</p> <p> <em>Agency.</em> Pexco could also enforce the arbitration agreement under a theory of agency: non-signatories can enforce an arbitration agreement &ldquo;when a plaintiff alleges that a defendant acted as an agent of a party to an arbitration agreement.&rdquo; Garcia had alleged that each defendant was the agent of the other. The Court of Appeal rejected his argument that this allegation was mere boilerplate, particularly in that Garcia alleged identical claims and conduct against both defendants.</p> <p> <strong>What <em>Garcia</em> Means for Employers</strong></p> <p> The <em>Garcia</em> decision is especially important for employers in today&rsquo;s ever-evolving gig economy: it facilitates the enforcement of arbitration agreements by companies utilizing the services of staffing companies that have an arbitration program in place. Companies that retain staffing companies should review the staffing companies&rsquo; employment agreements, to determine whether the company can avail itself of those agreements when responding to legal claims.</p> http://www.seyfarth.com:80/publications/EL052317 Anti-Muslim Rhetoric in the Workplace: An Employer’s Guide to Risks & Prevention http://www.seyfarth.com:80/publications/EL052317 Tue, 23 May 2017 00:00:00 -0400 <p> In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents. &nbsp;The employee&rsquo;s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/anti-muslim-rhetoric-in-the-workplace-an-employers-guide-to-risks-prevention/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=8ccc69fd7a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-8ccc69fd7a-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/OMM052317 How Not to Prove a Mark is Generic. Use of GOOGLE as a Verb Does Not Constitute Genericide http://www.seyfarth.com:80/publications/OMM052317 Tue, 23 May 2017 00:00:00 -0400 <div> <strong>By Roberto S. Terzoli, IP Trademark Specialist</strong></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>Using a trademark as a verb cannot alone render a trademark generic.</em></div> <div> &nbsp;</div> <div> The Ninth Circuit Court of Appeals explained recently in <em>Elliot v. Google</em> that use of the GOOGLE trademark as a verb, &ldquo;e.g. google it,&rdquo; does not alone cause the mark to become generic. &nbsp;The question presented was whether the public&rsquo;s use of &ldquo;google&rdquo; as a verb referred to the Google search engine, or whether it was directed more generally to the covered goods or services, i.e. search engines. In affirming a grant of summary judgment in Google&rsquo;s favor, the Court emphasized the necessary and inherent link between genericide and a particular type of good or service and that trademarks can be used in forms other than adjectives without being rendered generic.&nbsp;</div> <div> &nbsp;</div> <div> Plaintiffs relied on their argument that verb use constitutes generic use as a matter of law and therefore the lower court&rsquo;s ruling in Google&rsquo;s favor was inappropriate. The Court, however, disagreed with this proposition, focusing on two points that Plaintiffs failed to recognize: first, that a claim for genericide &ldquo;must always&rdquo; relate to a particular type of good or service; and second, that verb use does not automatically constitute generic use.</div> <div> &nbsp;</div> <div> A trademark can be cancelled under Section 14(3) of the Lanham Act (15 U.S.C. &sect; 1064(3)) if, <em>inter alia</em>, the trademark becomes a generic name for the type of goods or services rather than an indicator of the source of such goods or services. To determine whether a mark is generic, the Act sets forth the &ldquo;primary significance test&rdquo;: whether the primary significance of the registered mark to the relevant public has become the generic name for the goods or services. The Court emphasized that the recitation of &ldquo;goods or services&rdquo; throughout the Lanham Act required that the primary significance test be interpreted as requiring that the use supporting a claim of genericide relate to the particular type of good or service for which the mark was registered.&nbsp;</div> <div> &nbsp;</div> <div> Thus, the Court emphasized the distinction between the use of &ldquo;google&rdquo; to generally identify search engines, on one hand, and the use of &ldquo;google&rdquo; to generally describe the act of searching the internet, on the other, in holding that even if Plaintiffs could prove that the majority of the relevant public did use &ldquo;google&rdquo; as a verb in a generic sense, this fact alone is insufficient to support a jury finding of genericism.&nbsp;</div> <div> &nbsp;</div> <div> As to the second point regarding verb use of a mark, the Court reasoned that in enacting the primary significance test &nbsp;&ldquo;Congress has instructed us that a speaker might use a trademark as a noun and still use the term in a source-identifying trademark sense.&rdquo; The Court also emphasized that it would not interpret what customers were thinking or the meaning they had when they used a mark as something other than an adjective, i.e. whether they used the mark to generically reference a type of good or service or whether they had a specific source in mind. The burden of proving that mindset remains with the plaintiff. &nbsp;The Court made the point that it was not holding that verb use is &ldquo;categorically irrelevant&rdquo; to a genericness determination, only that the evidence presented by the plaintiffs did not meet their burden. <span class="Apple-tab-span" style="white-space:pre"> </span></div> <div> &nbsp;</div> <div> In forming its decision, the Ninth Circuit appears to embrace a new classification system for verb use into two types: &ldquo;discriminate verbs&rdquo; that are used with a particular brand in mind; or &ldquo;indiscriminate verbs&rdquo; that are used generically without a brand in mind. The Court noted that these novel terms, coined by the district court, &ldquo;properly frame the inquiry as to whether the speaker had a particular source in mind.&rdquo;</div> <div> &nbsp;</div> <div> The Court dismissed plaintiffs arguments relating to the district court&rsquo;s weighing of evidence. The Court held that the evidence presented by Plaintiff in the form of surveys, experts, and media as well as consumer use (the Court highlighted rapper T-Pain&rsquo;s use of the phrase &ldquo;google [his] name&rdquo; in a song) merely bolstered the claim that &ldquo;google&rdquo; was used as a verb. As noted, this alone is not enough to support a finding of genericism by a jury. &nbsp;Similar arguments were dismissed by the Court as unsupportive of the ultimate question.</div> <div> &nbsp;</div> <div> <strong>Takeaways:&nbsp;</strong></div> <div> &nbsp;</div> <ul> <li> Use of a mark as a verb does not automatically render a mark generic, although it is possible that it may be used as evidence of genericism.<span class="Apple-tab-span" style="white-space:pre"> </span><br /> &nbsp;</li> <li> The Ninth Circuit may have a new classification system when analyzing whether verb use is relevant to a genericness inquiry, namely whether the use is discriminate or indiscriminate.<br /> &nbsp;</li> <li> Not all uses of a mark as something other than as an adjective &ndash; such as a noun or verb &ndash; relate to a genericness inquiry; what matters is what the relevant public is thinking when using a mark in such fashion.</li> </ul> http://www.seyfarth.com:80/publications/OMM052317-EB DOL Fiduciary Rule To Become Effective in June http://www.seyfarth.com:80/publications/OMM052317-EB Tue, 23 May 2017 00:00:00 -0400 <div> In early April 2017, the Department of Labor (DOL) extended the applicability date of their final rule defining who serves as a fiduciary under the Employee Retirement Income Security Act of 1974 (ERISA) (known as the &ldquo;Fiduciary Rule&rdquo;) to June 9, 2017. See our earlier discussion of that action <a href="http://www.seyfarth.com/publications/OMM040617-EB">here</a>.&nbsp;</div> <div> &nbsp;</div> <div> In an opinion piece in the Wall Street Journal published yesterday, Secretary of Labor Alexander Acosta announced that the DOL Fiduciary Rule will not be further delayed past June 9th, noting there is &ldquo;no principled legal basis to change the June 9 date while we seek public input.&rdquo; &nbsp;</div> <div> &nbsp;</div> <div> The delay to June 9th included certain companion pieces to the Fiduciary Rule which provide exemptions to the prohibited transaction restrictions under ERISA&shy;&mdash;the Best Interest Contract Exemption and the Principal Contract Exemption. The April extension made it clear that fiduciaries relying on those exemption only had to comply with the impartial conduct standards through the end of the 2017 year. The remaining conditions would become effective January 1, 2018. However, Secretary Acosta observed that those pieces might be changed after the public notice and comment period, which has been the subject of speculation.&nbsp;</div> <div> &nbsp;</div> <div> Also published yesterday, the DOL issued <a href="https://www.dol.gov/agencies/ebsa/employers-and-advisers/guidance/field-assistance-bulletins/2017-02">Field Assistance Bulletin 2017-02</a> regarding their temporary enforcement policy on the Fiduciary Rule and companion <a href="https://www.dol.gov/sites/default/files/ebsa/about-ebsa/our-activities/resource-center/faqs/coi-transition-period.pdf">FAQs</a>.</div> http://www.seyfarth.com:80/publications/OMM052317-LE President Trump's Budget Includes Proposed Merger of EEOC and OFCCP http://www.seyfarth.com:80/publications/OMM052317-LE Tue, 23 May 2017 00:00:00 -0400 <p> <em>Seyfarth Synopsis:&nbsp; On May 23, 2017, the White House released its proposed budget for the 2018 Fiscal Year.&nbsp; Included in the proposal, which would impose deep cuts to many programs administered by the Department of Labor, was a proposal to merge the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;)&nbsp; into the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;).&nbsp; The proposed budget states that the goal is to create &ldquo;one agency to combat employment discrimination.&rdquo;</em></p> <p> <strong>What is the Future of the OFCCP?</strong></p> <p> The proposed budget calls for the Office of Federal Contract Compliance Programs (&ldquo;OFCCP&rdquo;) to merge into the Equal Employment Opportunity Commission (&ldquo;EEOC&rdquo;<em>) </em>and form a single organization by the end of the 2018 fiscal year.&nbsp; The proposed budget states that such a merger will create &ldquo;one agency to combat employment discrimination&rdquo; and that the &ldquo;integration of these two agencies will reduce operational redundancies, promote efficiencies, improve services to citizens and strengthen civil rights enforcement.&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; The proposal provides that the EEOC and the OFCCP will work together to &ldquo;collectively coordinate the transition.&rdquo;&nbsp; Even before the merger would take effect, the proposed budget would reduce OFCCP&rsquo;s current budget by $17 million and would cut the number of full time employees from 581 in the 2016 fiscal year to 440 in the 2018 fiscal year.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> <strong>What is the Future of Affirmative Action in Employment?</strong></p> <p> Currently, OFCCP enforces Executive Order 11246 (&ldquo;EO 11246&rdquo;), Section 503 of the Rehabilitation Act (&ldquo;Section 503&rdquo;), and the Vietnam Era Veterans Readjustment Assistance Act (&ldquo;VEVRAA&rdquo;) applicable to federal contractors and subcontractors.&nbsp; Under these requirements, those employers doing business with the government are required to engage in affirmative action and to refrain from discrimination based on a myriad of protected characteristics including race/ethnicity, sex, disability status, veteran status, sexual orientation and gender identity.&nbsp; In contrast, the EEOC has no authority to impose affirmative action requirements and instead, its primary mission is to investigate and resolve non-discrimination laws under Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Equal Pay Act, the Genetic Information Nondiscrimination Act, and the Age Discrimination in Employment Act of 1967, among other federal employment discrimination laws.&nbsp;</p> <p> If the EEOC and OFCCP were to be merged into one combined agency as set forth in the proposed budget, EO 11246 would need to be amended to delegate the enforcement authority which currently rests with the Department of Labor to the EEOC.&nbsp; Likewise, Congressional action would be required to transfer enforcement authority to the EEOC for Section 503 and VEVRAA outside the budgetary process.&nbsp;&nbsp;&nbsp;</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> As noted, the proposal to combine the EEOC and OFCCP is part of the budget from the White House which includes many other proposed changes.&nbsp; The budget will need to be approved by Congress before it becomes effective.&nbsp;</p> <p> The issue was specifically addressed as part of testimony before the House Subcommittee on Workplace Protections, entitled &ldquo;The Need for More Responsible Regulatory and Enforcement Policies at the EEOC,&rdquo; that happened to take place today, the same day the White House submitted its budget to Congress.&nbsp; Interestingly, both the employer community and civil rights activists seem to be on the same side in opposing the proposed merger.&nbsp;&nbsp; When asked about the proposed merger both Camille Olson, a Partner with Seyfarth Shaw, testifying on behalf of the U.S. Chamber of Commerce, and Todd Cox, Director of Policy for the NAACP Legal Defense and Education Fund, Inc., opposed the merger on the grounds that the EEOC and the OFCCP are vastly different organizations with different operational goals, missions and approaches.&nbsp;</p> <p> We will continue to monitor the White House&rsquo;s proposal to merge the EEOC and OFCCP and will provide updates as they occur.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> Department of Labor Fiscal Year 2018 Proposed Budget, pg. 23 <em>available at</em> <a href="https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/lab.pdf">https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/lab.pdf</a></p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The budget proposal would continue funding the EEOC at its current level through the 2018 fiscal year</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/launey-whang-authored-article-daily-journal-052317 Kristina Launey and Daniel Whang authored an article in the Daily Journal http://www.seyfarth.com:80/publications/launey-whang-authored-article-daily-journal-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Kristina Launey and Daniel Whang authored an article &ldquo;Concerns about proposed &lsquo;utilization scheduling&rsquo; bill&rdquo; on May 23 in the Daily Journal on how attentions have turned this year to what they call utilization scheduling - requiring that employers offer additional hours to existing part-time employees before hiring additional employees or temporary workers.</p> http://www.seyfarth.com:80/publications/wc052317 New Study Of EEOC Enforcement: Demystifying EEOC Determination, Conciliation & Litigation Timeline http://www.seyfarth.com:80/publications/wc052317 Tue, 23 May 2017 00:00:00 -0400 <p> An in-depth analysis by Seyfarth Shaw sheds new light on how quickly the EEOC moves matters from letter of determination, through conciliation, to litigation.&nbsp; For charges that result in litigation, the EEOC spends, on average, just over two months in conciliation.&nbsp; After declaring that conciliation has failed, the EEOC takes, on average, about three months to file suit.&nbsp; However, there are notable differences in speed among the EEOC&rsquo;s district offices.</p> <p> To the read the full blog post, <a href="http://www.workplaceclassaction.com/2017/05/new-study-of-eeoc-enforcement-demystifying-eeoc-determination-conciliation-litigation-timeline/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=fd38f9e8b6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-fd38f9e8b6-73179573">click here</a>.</p> http://www.seyfarth.com:80/publications/skene052317 Henry Skene and Mitchell Brennan authored an article in Best Lawyers, “United We Stand—But Lawfully” http://www.seyfarth.com:80/publications/skene052317 Tue, 23 May 2017 00:00:00 -0400 <p> Henry Skene and Mitchell Brennan authored an article on May 23 in Best Lawyers on how several developments in the last year have reshaped regulation of trade union conduct under the Australian workplace law. You can read the full article here: https://www.bestlawyers.com/Article/1373.</p> http://www.seyfarth.com:80/news/rodriguez-joins-hias-board-052317 Leon Rodriguez Joins HIAS Board of Directors http://www.seyfarth.com:80/news/rodriguez-joins-hias-board-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s Leon Rodriguez, partner in the firm&rsquo;s Labor and Employment department, has joined the board of directors of HIAS, the global Jewish nonprofit that protects refugees.&nbsp;</p> <p> &ldquo;In this time where those working to support the growing number of refugees worldwide are meeting stronger and stronger headwinds, it is humbling to be part of this truly distinguished class of new board members,&rdquo; said Rodriguez. &nbsp;</p> <p> Rodriguez provides regulatory, litigation and strategic advisory services to clients in areas including immigration, health care, and government/congressional investigations. He served as the most recent director of United States Citizenship and Immigration Services (&ldquo;USCIS&rdquo;) &nbsp;from 2014 to 2017. &nbsp;</p> <p> View the HIAS press release <a href="https://www.hias.org/leon-rodriguez-joins-lana-alman-gary-hirschberg-ilan-rosenberg-and-ari-rudolph-newest-members-hias">here</a> for more details.</p> http://www.seyfarth.com:80/news/olson-quoted-politicopro-052317 Camille Olson quoted in PoliticoPro http://www.seyfarth.com:80/news/olson-quoted-politicopro-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 23 story &ldquo;Democrats, businesses see problems with Trump&#39;s EEOC proposal&rdquo; from PolitcoPro on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson criticized part of the President&rsquo;s budget proposal to combine EEOC and OFCCP into one agency to tackle workplace discrimination.</p> http://www.seyfarth.com:80/news/olson-quoted-the-hill-052317 Camille Olson quoted in The Hill http://www.seyfarth.com:80/news/olson-quoted-the-hill-052317 Tue, 23 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in a May 23 story &ldquo;Industry groups: Scrap rule for reporting employee pay&rdquo; from The Hill on her testimony on behalf of the U.S. Chamber of Commerce in front of the House Education and Workforce Committee. Olson testified that the EEOC underestimated the cost of its reporting rule by $350 million.</p> <p> <a href="http://thehill.com/regulation/pending-regs/334734-industry-to-congress-eeocs-pay-reporting-rule-is-overly-burdensome">Read the full article here.</a></p> http://www.seyfarth.com:80/news/olson-testify-before-house-subcommittee-on-workforce-protections-052217 Camille Olson to Testify Before House Subcommittee on Workforce Protections http://www.seyfarth.com:80/news/olson-testify-before-house-subcommittee-on-workforce-protections-052217 Mon, 22 May 2017 00:00:00 -0400 <p> On Thursday, May 23, Seyfarth Shaw LLP partner Camille Olson will testify before the U.S. House Subcommittee on Workforce Protections on behalf of the U.S. Chamber of Commerce, where she serves as Chairwoman of its equal employment opportunity policy subcommittee. The House Education and the Workforce Subcommittee hearing, &ldquo;The Need for More Responsible Regulatory and Enforcement Policies at the EEOC,&rdquo; will begin at 10 a.m. ET; more details can be found <a href="http://edworkforce.house.gov/calendar/eventsingle.aspx?EventID=401651">here</a>. Camille&rsquo;s written testimony will be available on Tuesday, May 23 and the hearing will also be <a href="https://www.youtube.com/watch?v=FCyI26Krr0w">webcast here</a>.</p> <p> Throughout the last decade, Olson has regularly appeared before the United States Senate, the United States House of Representatives, the EEOC, and the United States Department of Labor on her own behalf (as a recognized expert in various fields), and on behalf of the United States Chamber of Commerce and the Society for Human Resource Management. For nearly 30 years, Olson has represented companies nationwide in all areas of litigation, with emphasis on employment discrimination and harassment, wage and hour matters, and independent contractor status.&nbsp;</p> <p> <strong>About Seyfarth Shaw LLP</strong><br /> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</p> <p> <strong>Contact:&nbsp;</strong></p> <p> Brian Kiefer, Director of Public Relations<br /> (312) 460-6401, <a href="mailto:bkiefer@seyfarth.com">bkiefer@seyfarth.com</a></p> <p> Martin Grego, Public Relations Manager<br /> (312) 460-6659, <a href="mailto:mgrego@seyfarth.com">mgrego@seyfarth.com</a></p> http://www.seyfarth.com:80/news/weiss-interviewed-wgntv-052217 Philippe Weiss interviewed by WGN-TV http://www.seyfarth.com:80/news/weiss-interviewed-wgntv-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by WGN-TV for a story titled &ldquo;Your Money Matters: Warm weather and dress code disasters&rdquo; on May 22 on some simple strategies to manage workplace attire issues.</p> <p> <a href="http://wgntv.com/2017/05/22/your-money-matters-warm-weather-and-dress-code-disasters/">Listen to the interview here.</a></p> http://www.seyfarth.com:80/news/weiss-quoted-american-lawyer-052217 Philippe Weiss quoted by American Lawyer http://www.seyfarth.com:80/news/weiss-quoted-american-lawyer-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Philippe Weiss was quoted by American Lawyer on May 22 in an article titled &ldquo;The Power Look: Tank Tops, Tattoos and Flip-Flops&rdquo; on just how far can you push a summertime dress code before you jeopardize your professional credibility. Weiss said that just how casual attorneys dress is very much dependent on each firm&#39;s culture.</p> http://www.seyfarth.com:80/news/bizar-quoted-bloomberg-bna-052217 David Bizar quoted by Bloomberg BNA http://www.seyfarth.com:80/news/bizar-quoted-bloomberg-bna-052217 Mon, 22 May 2017 00:00:00 -0400 <p> David Bizar was quoted in a May 22 story &ldquo;U.S.-PHH Tag Team Raises Stakes in Test of CFPB&rsquo;s Constitutionality&rdquo; from Bloomberg BNA on the Trump administration&rsquo;s unusual but not unprecedented decision to weigh in against the CFPB. Bizar said that if the D.C. Circuit adopts the Department of Justice&rsquo;s position and rejects the CFPB&rsquo;s, there likely won&rsquo;t be an appeal to the Supreme Court.&nbsp;</p> <p> <a href="https://www.bna.com/usphh-tag-team-n73014451313/">Read the full article here.</a></p> http://www.seyfarth.com:80/news/usenheimer-quoted-shrm-052217 Gena Usenheimer quoted in SHRM http://www.seyfarth.com:80/news/usenheimer-quoted-shrm-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Gena Usenheimer was quoted in a May 22 story &ldquo;New York Employers Must Prepare for Paid-Family-Leave Program&rdquo; from SHRM on how workers in the state will be eligible for job-protected leave beginning in January 2018. Usenheimer said that first and foremost, employers and HR professionals should be looking out for updates to the final status of the regulations.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-employers-must-prepare-for-paid-family-leave-program.aspx">Read the full article here.</a></p> http://www.seyfarth.com:80/news/sherman-interviewed-podcast-052217 Andrew Sherman interviewed by Square Peg Round Hole http://www.seyfarth.com:80/news/sherman-interviewed-podcast-052217 Mon, 22 May 2017 00:00:00 -0400 <p> Andrew Sherman was interviewed in a May 22 podcast episode titled &ldquo;The Crisis of Disengagement that has an Effect on Small Business&rdquo; from Square Peg Round Hole on some simple yet insightful observations on how businesses and individuals can stay focused on what they do.</p> <p> <a href="http://sprhpodcast.com/ep-018-the-crisis-of-disengagement-that-has-an-effect-on-small-business/">Listen to the full interview here.</a></p> http://www.seyfarth.com:80/publications/MA052217-LE If Pain, Yes Gain—Part XXX: Pittsburgh Sick Time Law Barely Hanging on By a Thread After Appellate Court Decision http://www.seyfarth.com:80/publications/MA052217-LE Mon, 22 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:</em> <em>On May 17, 2017, a panel of judges on the Commonwealth Court of Pennsylvania struck a second blow to Pittsburgh&rsquo;s Paid Sick Days Act, leaving the Act&rsquo;s future in serious jeopardy</em>. &nbsp;</p> <p> The Commonwealth Court of Pennsylvania&rsquo;s May 17, 2017 <a href="https://dlbjbjzgnk95t.cloudfront.net/0925000/925113/79cd16_5-17-17.pdf">decision</a> on the Pittsburgh Paid Sick Days Act (&ldquo;PSDA&rdquo;)<sup>1</sup>&nbsp;affirmed the Allegheny County Court of Common Pleas&rsquo; December 21, 2015 <a href="http://www.seyfarth.com/dir_docs/publications/Pitt_PSLL_Dec2015.pdf">order</a> invalidating the law which would have required employers to provide paid sick leave to all eligible Pittsburgh employees.&nbsp;</p> <p> Pittsburgh is a &ldquo;home rule charter&rdquo; municipality, meaning its authority to regulate businesses is limited unless expressly provided by statewide statute.<sup>2</sup>&nbsp;The City introduced multiple arguments to overcome its home rule charter status.&nbsp; For instance, the City argued that the PSDA falls within its authority to enact public health regulations pertaining to &ldquo;building codes.&rdquo; The Commonwealth Court rejected this argument as out of context, namely, that the City failed to establish a connection between the PSDA and building codes. &nbsp;</p> <p> The City next argued it has the right to promulgate regulations for the general health of its citizens per the state&rsquo;s Second Class City Code.<sup>3</sup>&nbsp;Once again, the Commonwealth Court disagreed.&nbsp; Specifically, the court noted that the PSDA&rsquo;s imposition of &ldquo;numerous affirmative duties&rdquo; on employers was not expressly authorized by statute, and therefore ran afoul of Pennsylvania&rsquo;s Home Rule Charter Law. &nbsp;</p> <p> Finally, the Commonwealth Court also struck down the Service Employees International Union&rsquo;s argument that public policy justifies the PSDA.&nbsp; The court explained that &ldquo;neither the wisdom nor the purpose of the [PSDA] is material&rdquo; to the issue of whether the City had authority to adopt the PSDA.&nbsp; Due to the Home Rule Charter Law and lack of a state statute explicitly authorizing Pittsburgh to enact the PSDA, the Commonwealth Court found that the City lacks any such authority.</p> <p> While not yet filed, it is likely that the City will appeal the Commonwealth Court&rsquo;s decision to the Pennsylvania Supreme Court. &nbsp;If overturned, the PSDA would require employers with 15 or more employees to provide each eligible employee with one hour of paid sick time for every 35 hours the employee works in Pittsburgh, up to 40 hours (i.e., five days) of paid sick leave per year. &nbsp;Employers with fewer than 15 employees would be required to provide their employees with one hour of sick leave for every 35 hours worked in Pittsburgh, up to 24 hours (i.e., three days) of <u>unpaid</u> sick leave per year. &nbsp;After the law&rsquo;s first anniversary, employers with fewer than 15 employees would be required to provide <u>paid</u> sick leave at the same accrual rate and up to the same 24-hour cap as set forth during the law&rsquo;s inaugural year.&nbsp; For more information on the PSDA, see our previous postings <a href="http://www.seyfarth.com/publications/OMM010516-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA080515-LE">here</a>.</p> <p> While this decision does not affect <a href="http://www.seyfarth.com/publications/MA021715-LE">Philadelphia&rsquo;s paid sick leave ordinance</a>, a similar challenge may await the City of Brotherly Love if Pennsylvania courts ultimately put the PSDA to bed.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for guidance on the PSDA and complying with sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>The PSDA was enacted in August 2015 and was originally scheduled to go into effect on January 11, 2016.</p> </div> <div id="ftn2"> <p> <sup>2</sup>Section 2962(f) of the Home Rule Charter Law states, in relevant part, that &ldquo;[a] municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers,&hellip;except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities.&rdquo;</p> </div> <div id="ftn3"> <p> <sup>3</sup><em>See</em> Act of March 7, 1901, P.L. 20, as amended, 53 P.S. &sect;&sect;23101-23175</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/CDL052217 President Trump Signs Executive Order on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure http://www.seyfarth.com:80/publications/CDL052217 Mon, 22 May 2017 00:00:00 -0400 <p> On May 11, President Trump signed Executive Order (EO) on Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure. This is a significant development for U.S. cybersecurity as it represents a concrete call to action for the government to modernize its information technology, beef up its cybersecurity capabilities, protect our country&rsquo;s critical infrastructure from cyberattacks, and ensure the overall cybersecurity and privacy of the internet for generations to come.</p> <p> To read the full blog post, <a href="http://www.carpedatumlaw.com/2017/05/president-trump-signs-executive-order-strengthening-cybersecurity-federal-networks-critical-infrastructure/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=a986d1e1d7-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-a986d1e1d7-73179541">click here</a>.</p> http://www.seyfarth.com:80/publications/TS052217 Seyfarth Attorneys to Speak at the Management Association’s 2017 Employment Law Conference http://www.seyfarth.com:80/publications/TS052217 Mon, 22 May 2017 00:00:00 -0400 <p> Join Seyfarth Shaw&rsquo;s Trade Secrets Co-Chair Michael D. Wexler and Partner J. Scott Humphrey at the Management Association&rsquo;s 2017 Employment Law Conference on Thursday, September 28, 2017. Mr. Wexler and Mr. Humphrey will discuss significant developments in Illinois and Congress, such as the Defend Trade Secrets Act, that have changed the landscape of trade secret and restrictive covenant enforcement.&nbsp;</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/seyfarth-attorneys-to-speak-at-the-management-associations-2017-employment-law-conference/">click here</a></p> http://www.seyfarth.com:80/publications/LR052217 Between a Rock and a Hard Place: NLRB Finds Employer Violated NLRA in Implementing ACA http://www.seyfarth.com:80/publications/LR052217 Mon, 22 May 2017 00:00:00 -0400 <p> On May 16, 2017, Chairman Miscimarra, Member Pearce, and Member McFerran upheld an Administrative Law Judge&rsquo;s determination that Western Cab Company violated Section 8(a)(5) of the NLRA by failing to give notice and an opportunity to bargain to the United Steelworkers during its 2014 implementation of the Patient Protection and Affordable Care Act (&ldquo;ACA&rdquo;).</p> <p> To read the full blog post, <a href="http://www.employerlaborrelations.com/2017/05/22/between-a-rock-and-a-hard-place-nlrb-finds-employer-violated-nlra-in-implementing-aca/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=81d6a2ebcf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-81d6a2ebcf-73179549">click here</a>.</p> http://www.seyfarth.com:80/publications/TS051917 Joshua Salinas a Panelist for “Trade Secrets in 2017: Recent Legal Trends and Developments LIVE Webcast” http://www.seyfarth.com:80/publications/TS051917 Fri, 19 May 2017 00:00:00 -0400 <p> Seyfarth attorney Joshua Salinas will serve on a panel for &ldquo;Trade Secrets in 2017: Recent Legal Trends and Developments LIVE Webcast,&rdquo; presented by The Knowledge Group, LLC Live Webcast Series, on May 25, 2017.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/joshua-salinas-a-panelist-for-trade-secrets-in-2017-recent-legal-trends-and-developments-live-webcast/">click here</a></p> http://www.seyfarth.com:80/news/glaser-quoted-shrm-051917 Jeffrey Glaser quoted in SHRM http://www.seyfarth.com:80/news/glaser-quoted-shrm-051917 Fri, 19 May 2017 00:00:00 -0400 <p> Jeffrey Glaser was quoted in a May 19 story &ldquo;Tipped P.F. Chang&#39;s Workers Seek Full Minimum Wage&rdquo; from SHRM on a split in appeals courts on whether tipped workers should receive full minimum wage for related &lsquo;back-of-the-house work&rsquo;. Glaser said that plaintiffs&#39; lawyers sometimes want to latch onto the Field Operations Handbook (FOH) as their silver bullet in these types of cases.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/pf-chang-s-tips-minimum-wage.aspx">Read the full article here.</a></p> http://www.seyfarth.com:80/news/devata-quoted-fortune-051917 Pam Devata quoted in Fortune http://www.seyfarth.com:80/news/devata-quoted-fortune-051917 Fri, 19 May 2017 00:00:00 -0400 <p> Pam Devata was quoted in a May 19 story &ldquo;How AI Is Changing Your Job Hunt&rdquo; from Fortune on how artificial intelligence has come to hiring and how scanning a candidate&rsquo;s social media for information about race, religion, sexual orientation, or political affiliation is illegal and can spark complaints of hiring discrimination. Devata said that it&rsquo;s hard to unring the bell and prove that you didn&rsquo;t use that information in an employment decision.&nbsp;</p> <p> <a href="http://fortune.com/2017/05/19/ai-changing-jobs-hiring-recruiting/">Read the full article here.</a></p> http://www.seyfarth.com:80/publications/WH051817 Georgia Governor Signs Law Preempting Predictive Scheduling Ordinances http://www.seyfarth.com:80/publications/WH051817 Thu, 18 May 2017 00:00:00 -0400 <p> On May 8, 2017, Governor Nathan Deal signed a law expanding the reach of a pre-existing statute that prohibits Georgia localities from passing ordinances affecting worker pay in Georgia. The amendment is in line with a trend of states&rsquo; laws proactively limiting counties&rsquo; and cities&rsquo; abilities to promulgate ordinances that exceed worker protections that state and federal laws provide. \</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/georgia-law-preempting-predictive-scheduling-ordinances/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=739bbee322-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-739bbee322-73179569">click here</a></p> http://www.seyfarth.com:80/publications/dacso-digital-health-leader-051817 Sheryl Dacso authored an article in Digital Health Leader http://www.seyfarth.com:80/publications/dacso-digital-health-leader-051817 Thu, 18 May 2017 00:00:00 -0400 <p> Sheryl Dacso authored an article titled &ldquo;Ethical challenges for healthcare lawyers practising in a digital world&rdquo; on May 18 in Digital Health Leader. This article focuses on the healthcare attorney&rsquo;s role and responsibilities when dealing with a rapidly changing digital world.</p> <p> <a href="http://www.cecileparkmedia.com/digital-health-legal/article_template.asp?Contents=Yes&amp;from=ehlp&amp;ID=410">Read the full article here.</a></p> http://www.seyfarth.com:80/publications/TBT051817 The Week in Weed: May 19, 2017 http://www.seyfarth.com:80/publications/TBT051817 Thu, 18 May 2017 00:00:00 -0400 <p> Welcome back to The Week in Weed, your Friday look at what&rsquo;s happening in the world of legalized marijuana.</p> <ul> <li> Senators from both parties try to ease banking for marijuana businesses<br /> (Reuters UK: Financial Services and Real Estate, 18 May 2017)</li> </ul> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/the-week-in-weed-may-19-2017/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=1560c8fba8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-1560c8fba8-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/EL051817 Seventh Circuit Blazes Truck Driver’s Failure to Hire Claims http://www.seyfarth.com:80/publications/EL051817 Thu, 18 May 2017 00:00:00 -0400 <p> Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court&rsquo;s granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner&rsquo;s claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.</p> <p> To read the full blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/seventh-circuit-blazes-truck-drivers-failure-to-hire-claims/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=3be44e3d2c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-3be44e3d2c-73179553">click here</a>.</p> http://www.seyfarth.com:80/publications/mccoy-authored-daily-journal Ryan McCoy authored an article in the Daily Journal http://www.seyfarth.com:80/publications/mccoy-authored-daily-journal Thu, 18 May 2017 00:00:00 -0400 <p> Ryan McCoy authored an article on May 18 titled &ldquo;Local cannabis laws and drug testing pitfalls&rdquo; in the Daily Journal. This article discusses why California employers must consider how employers can enforce their legitimate interest in maintaining a safe, drug-free work environment, while also respecting California&rsquo;s strong public policy in favor of an employee&rsquo;s right to privacy guarding against workplace drug tests.</p> http://www.seyfarth.com:80/publications/CP051717 Video Killed the Radio Star: Will Automation Kill the Labor Force? http://www.seyfarth.com:80/publications/CP051717 Wed, 17 May 2017 00:00:00 -0400 <p> Many of us remember our neighborhood video store closing its doors, forever changing the way we select our Friday night entertainment. Today, we can stream a new movie release from the comfort of our own home or interact with a large red kiosk after picking up groceries at the local supermarket. Automation seems inevitable and appears to be spanning most industries.</p> <p> To read the full blog post, <a href="http://www.calpeculiarities.com/2017/05/17/video-killed-the-radio-star-will-automation-kill-the-labor-force/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=30900fb2c0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-30900fb2c0-73179533">click here</a>.</p> http://www.seyfarth.com:80/publications/winner-authored-article-PREA-quarterly-051717 Rob Winner authored an article in PREA Quarterly http://www.seyfarth.com:80/publications/winner-authored-article-PREA-quarterly-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Rob Winner authored an article on May 17 titled &ldquo;EB-5 at a Crossroads (Again): Implications for Real Estate Investments&rdquo; in PREA Quarterly reviewing the EB-5 Regional Center Immigrant Investor program&rsquo;s impact on real estate development and investment, especially in light of other regulations such as Basel III that may have the effect of further limiting real estate investment.</p> http://www.seyfarth.com:80/publications/WSE051717 OSHA Proposes to Delay Electronic Submission of Injury and Illness Records http://www.seyfarth.com:80/publications/WSE051717 Wed, 17 May 2017 00:00:00 -0400 <p> OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/breaking-news-osha-proposes-to-delay-electronic-submission-of-injury-and-illness-records/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=6ea2de5f30-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-6ea2de5f30-73179581">click here</a></p> http://www.seyfarth.com:80/publications/milligan-and-salinas-author-article-California-Lawyer Robert Milligan and Joshua Salinas author an article in <i>California Lawyer</i> http://www.seyfarth.com:80/publications/milligan-and-salinas-author-article-California-Lawyer Wed, 17 May 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored an article on May 17 titled &quot;Non-Compete Agreements&rdquo; in <em>California Lawyer</em>. Although California is notorious for outlawing non-competition agreements, the authors explore the limited exceptions which is critical for companies that utilize employment agreements to protect trade secrets and other valuable business assets.</p> <p> <a href="http://www.callawyer.com/2017/05/non-compete-agreements/">Read the full article here.</a></p> http://www.seyfarth.com:80/news/ADA-title-III-report-referenced-mortgage-orb-051717 Seyfarth Shaw’s <i>ADA Title III</i> report referenced in <i>Mortgage Orb</i> http://www.seyfarth.com:80/news/ADA-title-III-report-referenced-mortgage-orb-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Seyfarth Shaw&rsquo;s <em>ADA Title III</em> report was referenced in a May 17 story &ldquo;The Mortgage Industry&rsquo;s Next Headache: Website Accessibility Requirements&rdquo; from <em>Mortgage Orb</em> on the new focus on website accessibility in the mortgage industry. The report says that the number of law suits filed under Title III of the ADA, targeting accessibility of all kinds (buildings, as well as websites), increased by 37% in 2016 compared with an 8% year-over-year increase the year before.&nbsp;</p> <p> <a href="http://www.mortgageorb.com/mortgage-industrys-next-headache-website-accessibility-requirements">Read the full article here.</a></p> http://www.seyfarth.com:80/news/milligan-quoted-dice-051717 Robert Milligan quoted in <i>Dice</i> http://www.seyfarth.com:80/news/milligan-quoted-dice-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in a May 17 story &ldquo;Avoiding Landmines When Interviewing with Rivals&rdquo; from <em>Dice</em> on the potential problems you can encounter if you share too much information or inadvertently breach a non-disclosure agreement. Milligan said that it&rsquo;s not uncommon for a rapidly growing company to outgrow its compliance apparatus and that, sometimes, the interviewer hasn&rsquo;t been properly trained on the questions they can and can&rsquo;t ask.</p> <p> <a href="http://insights.dice.com/2017/05/17/avoiding-landmines-job-interview-rivals/">Read the full article here.</a></p> http://www.seyfarth.com:80/news/hendrickson-quoted-associated-press-051717 Christine Hendrickson quoted by the Associated Press http://www.seyfarth.com:80/news/hendrickson-quoted-associated-press-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in a May 17 story &ldquo;What&#39;s Your Past Salary? Lawmakers Want to Ban the Question&rdquo; by the <em>Associated Press</em> on how the job interview question &mdash; how much did you make at your last job? &mdash; is getting banned in some parts of the country. Hendrickson said that she would not be surprised if we see other states and cities consider it.</p> <p> <a href="https://www.nytimes.com/aponline/2017/05/17/business/ap-us-on-the-money-salary-history-bans-qa.html?_r=0">Read the full article here.</a></p> http://www.seyfarth.com:80/news/bartlett-quoted-bloomberg-bna-051717 Brett Bartlett quoted by Bloomberg BNA http://www.seyfarth.com:80/news/bartlett-quoted-bloomberg-bna-051717 Wed, 17 May 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in a May 17 story &ldquo;Blurry, Evolving Joint-Employment Guidance Tough for Employers to Navigate, Experts Say&rdquo; by Bloomberg BNA on how broad federal and judicial interpretations of joint employment seem poised to revert to earlier, narrower definitions, but in the interim employers are struggling to navigate varied guidance on what the relationship means and how it is determined. Bartlett said that risks arising under labor and employment laws, and particularly those affecting employee pay, increase and become perceptively exaggerated when the guardrails are blurry, which is the case with current wage and hour law regarding joint employment.</p> <p> <a href="https://www.bna.com/blurry-evolving-jointemployment-n73014451080/">Read the full article here.</a></p> http://www.seyfarth.com:80/news/milligan-quoted-los-angeles-times-051617 Robert Milligan quoted in the <i>Los Angeles Times</i> http://www.seyfarth.com:80/news/milligan-quoted-los-angeles-times-051617 Tue, 16 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;As Uber and Waymo duke it out in court, the ugly battle over driverless cars is underway,&quot; a May 16 story from the <em>Los Angeles Times</em> on the news that a judge referred Waymo&rsquo;s allegations that Uber stole its proprietary technology to the U.S. Department of Justice for investigation. Milligan said that you don&#39;t normally see a judge make a criminal referral in a trade secrets case.</p> <p> <a href="http://www.latimes.com/business/autos/la-fi-hy-uber-waymo-fight-20170515-story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/TBT051617 Marijuana Farm Employees Face Numerous Health Hazards http://www.seyfarth.com:80/publications/TBT051617 Tue, 16 May 2017 00:00:00 -0400 <p> NIOSH has released a study on the safety and health hazards posed by marijuana growing farms. &nbsp;Of concern for employers are the risks for musculoskeletal disorders, as well as dermal contact exposure to both THC and Botrytis cinerea, a plant pathogen.</p> <p> To read the full blog post, <a href="http://www.blunttruthlaw.com/2017/05/marijuana-farm-employees-face-numerous-health-hazards/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=fa1f0d8fc8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-fa1f0d8fc8-73179537">click here</a>.</p> http://www.seyfarth.com:80/publications/FINRA051617 Ask and You Shall Receive: New York City Contemplates Requiring All Employers to Consider Requests for Flexible Work Arrangements http://www.seyfarth.com:80/publications/FINRA051617 Tue, 16 May 2017 00:00:00 -0400 <p> Following its introduction in December 2016, the New York City Council&rsquo;s Committee on Civil Service on Labor conducted a public hearing on March 3, 2017 regarding a proposed ordinance, Bill No. 1399, which would require all New York City employers to consider employee requests for flexible work arrangements.</p> <p> To read the full blog post, <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/FINRA051617.pdf">click here</a>.</p> http://www.seyfarth.com:80/publications/ERISA051517 Grounding Deferential Review in California – No Preemption for Discretionary Clause Ban http://www.seyfarth.com:80/publications/ERISA051517 Mon, 15 May 2017 00:00:00 -0400 <p> In a decision with wide ranging implications, the Ninth Circuit has ruled that a discretionary clause in an employer drafted plan document is subject to, and invalidated by, California&rsquo;s insurance regulation banning discretionary clauses in insured plans.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/15/grounding-deferential-review-in-california-no-preemption-for-discretionary-clause-ban/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=313268567f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-313268567f-73050525">click here</a></p> http://www.seyfarth.com:80/publications/CDL051517 WannaCry Ransomware Attack: What Happened and How to Address http://www.seyfarth.com:80/publications/CDL051517 Mon, 15 May 2017 00:00:00 -0400 <p> Recently, a widespread global ransomware attack has struck hospitals, communication, and other types of companies and government offices around the world, seizing control of affected computers until the victims pay a ransom. &nbsp;This widespread ransomware campaign has affected various organizations with reports of tens of thousands of infections in as many as 99 countries, including the United States, United Kingdom, Spain, Russia, Taiwan, France, and Japan. &nbsp;The software can run in as many as 27 different languages. &nbsp;The latest version of this ransomware variant, known as <em>WannaCry, WCry</em>, or <em>Wanna Decryptor</em>, was discovered the morning of May 12, 2017, by an independent security researcher and has spread rapidly.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/wannacry-ransomware-attack-happened-address/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=e8e273d94a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-e8e273d94a-72857025">click here</a></p> http://www.seyfarth.com:80/publications/EA051517-France Macron: The Winding Road to Labour Reforms http://www.seyfarth.com:80/publications/EA051517-France Mon, 15 May 2017 00:00:00 -0400 <div> On 14 May 2017, French President-elect Emmanuel Macron with a strong 66% majority officially started his five year mandate. His first duty was to appoint a Prime Minister, Edouard Philippe, a Conservative, who will now form a new government. &nbsp;Shortly thereafter, however, the Parliamentary elections of 11 and 18 June 2017 may lead to a government reshuffle to reflect the new composition of Parliament.</div> <div> &nbsp;</div> <div> Employment and Labour is one of the three key focus areas for President Macron. He has pledged to simplify French laws, reform the labour market, and show France is open to business. Macron widely communicated his ambitious programme during his campaign. As he prepares to move into the Presidential Palace, what are the potential reforms that multinationals employing staff in France or companies considering opening for business in France should expect? The overview that follows is based on Macron&rsquo;s official programme, to which we added our comments for background purposes.</div> <div> &nbsp;</div> <div> <strong>Employment reforms - Mixed messages to employers and employees</strong></div> <div> &nbsp;</div> <div> Macron has vowed to make French employment laws more business-friendly, and this is clearly apparent from the following proposals:</div> <div> &nbsp;</div> <ul> <li> Capping damages granted to employees for unfair dismissal claims. By introducing an upper and a lower limit for such damages, the cost of redundancies will be more predictable. Currently, damages are uncapped, and the published guidelines can go up to 24 months&rsquo; salary on top of notice period and statutory indemnity.</li> <li> Cutting payroll taxes on overtime. A similar measure on voluntary overtime was put in place by Conservative President Sarkozy in 2007 under the slogan &ldquo;Work More to Earn More&rdquo;, but removed by Fran&ccedil;ois Hollande as soon as he came into power. In practice, given the cost of payroll taxes, employees&rsquo; net salary was not proportional to the number of hours worked. The reform would hopefully aim to correct this flaw and encourage productivity.&nbsp;</li> <li> Enabling employers to depart from the mandatory minimum protection under the applicable national collective agreement by signing a collective agreement at company or workplace level in areas such as working time, minimum wage, and overtime &nbsp;rates. This was already introduced by the 2016 Macron Law, however, employers still need to negotiate with employee representatives or unions, not just introduce new policies.</li> <li> Introduce a two-strike rule so employers who, on a single occasion, slip up on tax filings or payments are just reminded, not penalised.</li> </ul> <div> &nbsp;</div> <div> There are, however, a number of reforms that will be less pleasing to employers, and are less obvious as to how they will make the French labour market more competitive, such as:</div> <div> &nbsp;</div> <ul> <li> Capping the duration of inbound international assignments to France to one year. &nbsp;Thereafter, employees will need to be on a local French contract. Macron also intends to renegotiate the EU Posted Workers Directive for France to reduce the number of employees working in France but remaining on their home payroll, and not being fully subject to French labour laws;&nbsp;</li> <li> Taxing employers who frequently use temporary contracts instead of permanent employment contracts through an additional levy at company level;</li> <li> Publishing on a &ldquo;shame list&rdquo; the name of companies who do not comply with equal pay. This will force companies to focus more actively on their data, and may in the short term increase salary costs, red tape and lead to a negative public image, but if properly managed could be positive long term;&nbsp;</li> <li> Reducing payroll taxes for employees on minimum wage (currently 1480 Euros per month), and providing for the payment of a 13th month bonus;&nbsp;</li> <li> Increasing employees&rsquo; net salary by lowering the amount of employees&rsquo; contributions, e.g. an employee currently earning a monthly salary of 2,200 Euros will earn an additional 500 Euros net a year. This measure will not reduce employment costs in France for employers. Typically total payroll taxes in France amount to around 70% of gross salary before income tax (compared with around 20% in the UK for a similar level of pay);&nbsp;</li> <li> Removing the tax credit for research programmes in France, which have in the past proved popular in the Pharmaceutical and Tech industries. This reform is to balance the books with the reduced taxes on low salaries;&nbsp;</li> <li> Extending unemployment benefits to all &lsquo;workers&rsquo; such as independent contractors, entrepreneurs or employees who resign from their job. Such measures, which are likely to be very popular, may impact employee retention and ultimately push up the cost of employment for employers, though Macron also announced his intention to restrict both the duration and the conditions under which unemployment benefits are paid out.</li> </ul> <div> &nbsp;</div> <div> <strong>What to expect next?</strong></div> <div> &nbsp;</div> <div> Employers should brace themselves for changes in the employment and labour law arena. However, at this stage nothing is set in stone, and the reforms may be slow and more modest than as described above. &nbsp;France does not have the equivalent of a US &ldquo;Presidential Decree&rdquo;, so Macron and his government will need to get the Parliament&rsquo;s buy in. The famous &ldquo;Article 49.3&rdquo; process, which enables a government to force its programme through Parliament without lengthy debates, will be a valuable weapon; however, when triggered in the absence of a majority vote, the government would need to be dissolved, so it is a double-edged &nbsp;sword. Last but not least, two additional considerations are of significant importance in France: &ldquo;the power of the street&rdquo;, i.e. strikes and demonstrations coordinated by unions that can bring France to a halt for weeks or months; and the Constitutional Council, which can annul any law deemed unconstitutional. Macron has already experienced the annulment of his &ldquo;Macron law&rdquo; on 23 articles including the capping of dismissal damages in August 2015.</div> http://www.seyfarth.com:80/publications/WLS051517 The trend is your friend: why enterprise bargaining is down http://www.seyfarth.com:80/publications/WLS051517 Mon, 15 May 2017 00:00:00 -0400 <p> Enterprise bargaining is down. That&rsquo;s the big call out from the Department of Employment Report on Enterprise Bargaining February 2017. Comparing private sector agreement numbers from 2014 there is a reduction by a third overall, with close to 50% less in retail and construction and around 20% in most sectors.</p> <p> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/05/why-enterprise-bargaining-is-down/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=070dba7ac0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-070dba7ac0-73050585">click here</a></p> http://www.seyfarth.com:80/publications/rew051517 John Egan and Dennis Greenstein authored an article in Real Estate Weekly http://www.seyfarth.com:80/publications/rew051517 Mon, 15 May 2017 00:00:00 -0400 <p> John Egan and Dennis Greenstein authored a May 15 article in Real Estate Weekly, &quot;Don't get collared by poor &lsquo;no pet' policies.&quot; The article discusses one of the most common accommodation requests for a co-op or condo, to waive its &ldquo;no pet&rdquo; policy to allow residents to live with their emotional support or service animals. You can read the <a href="http://rew-online.com/2017/05/15/don%CA%BCt-get-collared-by-poor-no-pet%CA%BC-policies/">full article here</a>.&nbsp;</p> http://www.seyfarth.com:80/news/grossenbacher-quoted-SHRM-051517 Karla Grossenbacher quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/grossenbacher-quoted-SHRM-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in &quot;Reviewing Employee E-Mails: When You Should, When You Shouldn&#39;t,&quot; a May 15 story from <em>SHRM </em>on whether an employer should view the contents of personal e-mail accounts on company-owned computers. Grossenbacher said that state laws addressing invasion of privacy may forbid an employer from intruding into the private e-mails of an employee if that intrusion would be &quot;highly offensive to a reasonable person.&quot;</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/reviewing-employee-e-mails-when-you-should-when-you-shouldnt.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/maatman-quoted-law360-051517 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maatman-quoted-law360-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;3 Employer Takeaways From The High Court&#39;s FAA Ruling,&quot; a May 15 story from <em>Law360</em> on the U.S. Supreme Court&rsquo;s decision affirming that the Federal Arbitration Act blocks states from making arbitration agreements harder to enforce than other contracts. Maatman said that it sure looks like they&rsquo;re talking in terms of a very pro-arbitration stance, so his sense is this may well foreshadow what&rsquo;s going to occur in the late fall on that trilogy of cases.</p> http://www.seyfarth.com:80/news/maechtlen-quoted-human-resource-executive-051217 Laura Maechtlen quoted in <i>Human Resource Executive</i> http://www.seyfarth.com:80/news/maechtlen-quoted-human-resource-executive-051217 Fri, 12 May 2017 00:00:00 -0400 <p> Laura Maechtlen was quoted in &quot;The Future is Flexible,&quot; a May 12 story from <em>Human Resource Executive</em> on the firm&rsquo;s Future of Work Outlook Survey. According to survey findings, 72 percent of respondents saying that automation and artificial intelligence will force their organizations to reshape the size and makeup of their workforce in the next five years. Maechtlen said that for HR leaders, the key will be to determine the ways in which we can approach the work that we have to get done with a different toolkit to get that work done.</p> <p> <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362399">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/ReaList-May2017 The ReaList - Volume 1, Edition 2 http://www.seyfarth.com:80/publications/ReaList-May2017 Fri, 12 May 2017 00:00:00 -0400 <p> <span style="font-size:14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice.&nbsp;<span style="font-family: Arial, sans-serif;">The ReaList newsletter covers New York real estate news, events, and trends.</span></span><br /> &nbsp;</p> <p> <o:p></o:p></p> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>EB-5 Program Temporarily Extended Without Change</strong><br /> On May 5, 2017, President Trump signed into law H.R. 244, which authorizes appropriations to fund essential government operations and programs that were set to expire on May 5, 2017. H.R. 244 includes reauthorization, without change, for the EB-5 Regional Center Immigrant Investor Program (the &ldquo;EB-5 Program&rdquo;).&nbsp; The EB-5 Program allows foreign investors to obtain U.S. permanent residency if they (i) invest $1 million into a &ldquo;new commercial enterprise&rdquo; (or $500,000 if the new commercial enterprise is located in a targeted employment area &ndash; either in a rural area or one or more census tracts experiencing high unemployment) and (ii) can document that their investment created a minimum of ten full-time jobs over a two-year period.&nbsp; These EB-5 investments are a common source of funding for large real estate developments in major cities across the U.S., including Manhattan, San Francisco, Los Angeles, and Dallas.&nbsp; This relatively less expensive source of financing is attractive to large real estate developers because foreign investors are willing to accept below market returns in exchange for the potential to earn a U.S. green card.<br /> <br /> Many successful, high-profile developments have utilized EB-5 financing. Notable examples include: the 17,000,000 square foot, $20 billion Hudson Yards mixed-use development; a massive $8 billion shipyard development in San Francisco; a 179-room 219,000 square foot luxury hotel in lower Manhattan; a 958,000 square foot mixed-use development in Brooklyn, which will include a public school; and an 800-foot tall luxury residential high-rise building in Manhattan&rsquo;s Lower East Side neighborhood.</p> <p> If you have any questions, please contact <a href="http://www.seyfarth.com/EB-5-Immigrant-Investment">Seyfarth&#39;s EB-5 Immigrant Investment specialty team</a>&nbsp;or <a href="mailto:aberg@seyfarth.com">Andrew L.&nbsp;Berg</a>, <a href="mailto:mclark@seyfarth.com">Michael T. Clark</a>, <a href="mailto:dlurie@seyfarth.com">Dawn M. Lurie</a>, <a href="mailto:apaparelli@seyfarth.com">Angelo A. Paparelli</a>, or <a href="mailto:rwinner@seyfarth.com">Robert S. Winner</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Tax:</strong></p> <p> <strong>Revived: the Return of &quot;421-a&quot; as the Affordable New York Housing Program</strong><br /> On April 7, 2017, Governor Cuomo reached an agreement with the New York State Legislature to revive the 421-a tax exemption program, now titled the &ldquo;Affordable New York Housing Program&rdquo; <a href="http://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/GPB1-AFFORDABLEHOUSINGPROGRAM-BILL.pdf">(click here for a link to the NY Assembly Bill)</a>. Like the previous 421-a program, developers may qualify for tax exemptions in exchange for creating a specific percentage of affordable rental units within a newly developed multiple dwelling. Depending on project size and location, the program requires a range of 25% to 30% of units be set aside for persons earning 40% to 130%, adjusted based on family size, of the area median income. The rental units will also be subject to rent stabilization. Governor Cuomo estimates 2,500 new affordable housing units will be created annually.<br /> <br /> Noteworthy changes to 421-a under the Affordable New York Housing Program include the extension of the tax exemption period to 35 years, up from 25 years for qualifying projects, and the requirement of &ldquo;fair wage&rdquo; payments to construction workers on projects with 300 or more units in certain areas of Manhattan, Queens, and Brooklyn.&nbsp; Some estimates claim the Affordable New York Housing Program could cause New York City to lose $2.4 billion in tax revenue annually. The Affordable New York Housing Program is expected to remain in effect until at least 2022.</p> <p> If you have any questions, please contact <a href="mailto:jdreyes@seyfarth.com">Juan Reyes</a> or <a href="mailto:klowe@seyfarth.com">Kaz Lowe</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Litigation:</strong></p> <p> <strong>New York&#39;s &quot;Scaffold Law&quot; May Not Impose Strict Liability&nbsp;</strong><br /> The construction industry has long accepted that the New York scaffold law, N.Y. Labor Law &sect;&sect; 240-241, imposes strict liability upon construction contractors and property owners for injuries suffered by workers who fall or are hit by a falling object as a result of inadequate scaffolding or similar construction structures (such as ladders or temporary staircases).&nbsp; A recent decision by the New York Court of Appeals indicates that this common understanding is wrong.&nbsp;</p> <p> In <a href="http://www.nycourts.gov/ctapps/Decisions/2017/Mar17/27opn17-Decision.pdf">O&rsquo;Brien v. Port Authority, No. 27,</a> a construction worker was injured when he slipped and fell on a temporary staircase that was wet due to rainfall.&nbsp; The worker sued his employer and the property owner, and the parties produced testimony from experts who disagreed about whether the safety measures used on the temporary staircase were adequate to properly protect the worker.&nbsp; A majority of the Court of Appeals reversed the decision of a lower appellate court, and found that the fact that the worker was injured is not, by itself, enough to impose liability where defendants had provided evidence that the safety measures employed were adequate despite the worker&rsquo;s fall.&nbsp; The Court of Appeals held that the trial court was required to weigh the competing evidence about whether the safety measures employed on the staircase were adequate to have properly protected the worker.<br /> <br /> If you have any questions, please contact <a href="mailto:jwolfert@seyfarth.com">Jonathan P. Wolfert</a> or <a href="mailto:owolfe@seyfarth.com">Owen R. Wolfe</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Health Care Real Estate &amp; Finance:</strong></p> <p> <strong>Landlords Adapt to Changes in Medical Leasing Market</strong><br /> In retail leasing, the term &ldquo;medical office&rdquo; was once understood to mean a family medical practice, or perhaps a dentistry practice.&nbsp; However, today the term encompasses a much wider range of health care services, such as medical imaging, dialysis, walk-in clinics, urgent care, and other uses or specialties, most of which are being spun off from hospitals amid a broader healthcare industry restructuring.&nbsp; Several health care services companies have become recognizable brands due to widespread retail visibility.&nbsp; And while landlords welcome this new iteration of health care tenant, many are unprepared for the attendant regulatory and operational considerations.&nbsp; One such consideration is the suitability of existing zoning classifications.&nbsp; For example, a zoning ordinance in suburban Philadelphia has different classifications for &ldquo;medical office,&rdquo; &ldquo;medical center&rdquo; and &ldquo;medical clinic,&rdquo; complicating an otherwise straightforward landlord representation (and in one case, delaying execution of a lease so the landlord could obtain a variance to allow for operation of a dialysis clinic, a use the landlord had incorrectly thought to be permitted as of right).&nbsp; In New York City, however, the same dialysis clinic would be considered an &ldquo;ambulatory diagnostic or treatment health care facility,&rdquo; a subcategory under the &ldquo;community facility&rdquo; umbrella designation that was created to eliminate confusion and to incentivize specific community facilities to locate in areas, such as retail shopping centers, to better serve neighborhood populations while still preserving the character of these residential neighborhoods.&nbsp; As health care services companies continue to expand and become a larger presence in the retail leasing market, it will be incumbent upon health care services companies and their counsel to work with landlords and zoning boards in developing shared practices and expectations to facilitate growth.<br /> <br /> If you have any questions, please contact <a href="mailto:cmitchell@seyfarth.com">Cynthia Mitchell</a> or <a href="mailto:gvoigt@seyfarth.com">Gregory Voigt</a>.</p> http://www.seyfarth.com:80/publications/MA051217-LE Georgia is Not Immune to Sick Leave Laws http://www.seyfarth.com:80/publications/MA051217-LE Fri, 12 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> Georgia has a new sick leave law that requires employers to allow the use of available earned sick leave for the care of an employee&rsquo;s immediate family members.</em></p> <p> On May 8, 2017, Governor Nathan Deal signed the latest in a long line of state sick leave laws.&nbsp; Unlike other states in the country with paid sick leave mandates,<a href="#_ftn1" name="_ftnref1" title="">[1]</a> this Georgia law <strong><u>does not</u></strong> create an obligation to provide sick days.&nbsp; Georgia employers can therefore breathe a sigh of relief.&nbsp; Instead, the Act is what is generally referred to as a &ldquo;kin care law,&rdquo; meaning it requires employers that <strong>already</strong> provide their workers with paid sick leave to allow a certain amount of the sick leave to be used to care for immediate family members.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp; This new law will take effect on July 1, 2017.&nbsp;</p> <p> Here is an overview of the Georgia Act&rsquo;s key provisions:</p> <ul> <li> Employers that already provide sick leave must allow employees to use<strong> up to 5 days </strong>of earned sick leave per calendar year for the care of immediate family members.</li> <li> Sick leave includes time away from work by an employee, due to his or her own incapacity, illness, or injury, and for which the employee receives regular compensation. <ul> <li> For purposes of this Act, sick leave does not include paid short-term or long-term disability.</li> </ul> </li> <li> Employees are not entitled to use sick leave to care for immediate family members pursuant to this Act until that leave has been earned, and they must comply with the terms of the employer&rsquo;s sick leave policy.</li> <li> Immediate family members include an employee&rsquo;s: child, spouse, grandchild, grandparent, parent, or any dependents (as reflected on the employee&rsquo;s most recent tax return).</li> <li> The Act excludes small businesses (those with <strong>fewer than 25 employees</strong>) and employers that offer stock ownership plans to their employees, but it applies to the State of Georgia and its political subdivisions and instrumentalities.</li> <li> It only applies to employees who work <strong>at least 30 hours </strong>per week.</li> <li> It does not create a new cause of action against an employer.</li> </ul> <p> This Act does not impact businesses that do not offer sick leave, because there is still no mandate in Georgia requiring companies to offer sick days to their employees.&nbsp; But, employers that do provide sick leave to their employees should take steps to ensure compliance, including: (1)&nbsp; reviewing and, as needed, revising existing sick leave policies, and (2) training supervisory and managerial employees and Human Resources professionals on the Act&rsquo;s requirements.</p> <p> With the sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> To date, seven states -- Connecticut, California, Massachusetts, Oregon, Vermont, Arizona, and Washington -- have passed paid sick leave laws mandating that employers provide their employees with a certain amount of paid sick leave.&nbsp; The <a href="http://www.seyfarth.com/publications/MA051017-LE2">Arizona law</a> goes into effect on July 1, 2017, and the Washington law goes into effect on January 1, 2018. &nbsp;The other five laws are already in effect.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Similar laws exist in a number of states, including Illinois (the law became effective on January 1, 2017), California, Washington, and Maryland.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/boutros-and-schleppenbach-authored-article-bloomberg-white-collar-crime-report-051217 Andrew Boutros and John Schleppenbach authored an article in <i>Bloomberg White Collar Crime Report</i> http://www.seyfarth.com:80/publications/boutros-and-schleppenbach-authored-article-bloomberg-white-collar-crime-report-051217 Fri, 12 May 2017 00:00:00 -0400 <p> Andrew Boutros and John Schleppenbach authored &quot;The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a &#39;High Priority&#39;,&quot; an article on May 12 in <em>Bloomberg White Collar Crime Report</em>. This article offers cutting-edge observations regarding recent executive orders from President Trump directing the DOJ and its law enforcement partners to &ldquo;vigorously enforce&rdquo; the country&rsquo;s trade laws.</p> http://www.seyfarth.com:80/publications/LR051117 DC Circuit “Busts” NLRB’s Finding of Weingarten Violation by Las Vegas Casino http://www.seyfarth.com:80/publications/LR051117 Thu, 11 May 2017 00:00:00 -0400 <p> A three-member panel of the U.S. Court of Appeals for the D.C. Circuit put the National Labor Relations Board &ldquo;on tilt&rdquo; when it overturned a decision finding that Bellagio, LLC violated Section 8(a)(1) of the NLRA when it interfered with an employee&rsquo;s Weingarten right to have a union representative present during an investigatory meeting; retaliated against him for invoking that right; unlawfully surveilled him; and coercively prevented him from discussing his suspension with other employees.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/05/11/dc-circuit-busts-nlrbs-finding-of-weingarten-violation-by-las-vegas-casino/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=aa6e3db19d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-aa6e3db19d-71423401">click here</a></p> http://www.seyfarth.com:80/publications/WC051117 Florida Federal Court Grants Conditional Certification In ADEA Collective Action Following Employer’s Reduction-In-Force http://www.seyfarth.com:80/publications/WC051117 Thu, 11 May 2017 00:00:00 -0400 <p> Following an employer&rsquo;s reduction-in-force that ultimately led to an ADEA collective action after several employees over 50 years old were terminated, a federal district court in Florida recently granted a motion to conditionally certify a collective action of employees who worked at the employer&rsquo;s Tampa, Florida location, but denied a motion to certify a nationwide collective action.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/05/florida-federal-court-grants-conditional-certification-in-adea-collective-action-following-employers-reduction-in-force/">click here</a></p> http://www.seyfarth.com:80/publications/OMM051117-LE The State of Indiana Bans Political Subdivisions From Enacting “Ban the Box” Restrictions http://www.seyfarth.com:80/publications/OMM051117-LE Thu, 11 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp; </strong>Indiana <a href="https://iga.in.gov/legislative/2017/bills/senate/312#document-051d9997">Senate Bill 312</a> (the &ldquo;Bill&rdquo;) provides, among other things, that a political subdivision of the state, including a municipality, may not prohibit an employer from obtaining or using criminal history information during the hiring process to the extent permitted by federal or state law, rules or regulations.&nbsp;</em></p> <p> The Indiana General Assembly recently passed the Bill, which it says was designed to create uniformity within its borders by prohibiting political subdivisions (e.g., counties, municipalities and townships) from adopting &ldquo;ban the box&rdquo; ordinances that restrict employers from inquiring into the criminal histories of applicants.&nbsp; The only Indiana municipality that currently has ban the box restrictions for private employers is Indianapolis/Marion County.&nbsp; The Indianapolis ordinance, passed in 2014, applies to certain private employees that provide services to the city, as well as public employees, and requires criminal history inquiries to either be made after an applicant is selected for an interview or, if no interview will be conducted, after a conditional offer of employment is tendered.&nbsp; That law has now been preempted by SB 312.</p> <p> The new Indiana state law also seeks to protect employers by providing that criminal history information concerning a current or former employee may not be introduced against the employer in a civil action based upon the employee or former employee&rsquo;s conduct if the criminal history information does not have a direct relationship to the underlying facts of the complaint, the criminal records have been sealed, the criminal conviction has been reversed, vacated or expunged, the individual has received a pardon, or the arrest/charge did not result in a criminal conviction.</p> <p> In response to concerns raised by employee rights groups, at the time he signed SB 312, Indiana Governor Eric Holcomb also announced he would sign an executive order banning the box for Indiana state jobs, removing questions about prior arrest and criminal history from job applications for public sector positions. &nbsp;&nbsp;</p> <p> <strong>Employer Outlook</strong></p> <p> Senate Bill 312 will take effect on July 1, 2017.&nbsp; Thereafter, private employers in Indianapolis that provide services to the City of Indianapolis will no longer be required to wait until an interview is conducted or a conditional offer of employment is made to make inquiries regarding criminal history.</p> http://www.seyfarth.com:80/publications/WCCR051117 The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a ‘High Priority' http://www.seyfarth.com:80/publications/WCCR051117 Thu, 11 May 2017 00:00:00 -0400 <div> Andrew Boutros and John Schleppenbach authored &quot;The New Face of White Collar Enforcement: President Trump Signs Executive Orders Directing DOJ to Make Trade, Customs Fraud Enforcement a &lsquo;High Priority&#39;,&quot; an article in the May Edition of <em>Bloomberg BNA&rsquo;s White Collar Crime Report.</em></div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/dir_docs/publications/TradeEnforceWCRPublish.pdf#page=1">You can view the full article here</a></div> http://www.seyfarth.com:80/publications/EL051117 New York’s Highest Court Clarifies Who Can Be Liable for Discrimination Based on Criminal History http://www.seyfarth.com:80/publications/EL051117 Thu, 11 May 2017 00:00:00 -0400 <p> On May 4, 2017, New York&rsquo;s highest court, the Court of Appeals, held that the New York State Human Rights Law (NYSHRL) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/new-yorks-highest-court-clarifies-who-can-be-liable-for-discrimination-based-on-criminal-history/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=75afbf79f2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-75afbf79f2-71256185">click here</a></p> http://www.seyfarth.com:80/news/maatman-quoted-SHRM-051117 Gerald Maatman quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/maatman-quoted-SHRM-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Could College Recruitment Programs Be Considered Unlawful?&quot; &mdash; a May 11 story from <em>SHRM </em>on a whether campus recruiting could make employers liable in age discrimination claims. Maatman said that, in theory, a claim against a college recruiting program could probably be crafted under the right circumstances, but it would be going too far to say that all recruiting on campus would be illegal or a form of age discrimination.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/college-recruitment-programs-adea-pwc.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/milligan-quoted-world-intellectual-property-review-051117 Robert Milligan quoted in <i>World Intellectual Property Review</i> http://www.seyfarth.com:80/news/milligan-quoted-world-intellectual-property-review-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;Defend Trade Secrets Act turns one year old,&quot; a May 11 story from <em>World Intellectual Property Review</em> on the Defend Trade Secrets Act (DTSA) which was signed into law one year ago today. Milligan said that although the DTSA has some of the same provisions as the Uniform Trade Secrets Act, which has been adopted by almost all states, there are some unique provisions in the DTSA&mdash;such as its seizure and whistleblower immunity provisions&mdash;which allow the courts to interpret for the first time.</p> <p> <a href="http://www.worldipreview.com/news/defend-trade-secrets-act-turns-one-year-old-13933">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-bloomberg-BNA-051117 Sam Schwartz-Fenwick quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-bloomberg-BNA-051117 Thu, 11 May 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted &quot;Aetna Beats ERISA Lawsuit Over Transgender Breast Surgery,&quot; in a May 11 story by <em>Bloomberg BNA</em> on the recent news that a transgender woman who sought disability benefits following a breast augmentation surgery lost her lawsuit against an insurance company. Schwartz-Fenwick said that if a decision like this is occurring where both sides agree that some transgender care is medically necessary, that&rsquo;s a real sea change from where the law was just a few years ago.</p> <p> <a href="https://www.bna.com/aetna-beats-erisa-n73014450761/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarth-secures-68-million-dollar-FINRA-arbitration-win-for-c-l-king Seyfarth Secures $68 Million FINRA Arbitration Win For C.L. King http://www.seyfarth.com:80/news/seyfarth-secures-68-million-dollar-FINRA-arbitration-win-for-c-l-king Wed, 10 May 2017 00:00:00 -0400 <div> BOSTON (May 10, 2017) &ndash; Seyfarth Shaw LLP successfully secured a complete defense verdict in a FINRA arbitration seeking over $68 million for C.L. King &amp; Associates, Inc., a full-service investment bank and self-clearing broker-dealer, in one of the largest and most complex FINRA arbitrations involving a clearing firm in recent years. After 39 days of evidentiary hearings, a three person panel of FINRA arbitrators denied all of the claims by a former customer against C.L. King.</div> <div> &nbsp;</div> <div> The claimants, a number of family accounts, alleged that C.L. King as the custodial and clearing broker for an independent investment adviser failed to prevent significant losses and took additional actions that contributed to those losses. After several weeks of testimony from over fifteen witnesses, including five expert witnesses called by the claimants on issues relating to supervision, margin rules, account management, market variables, hedging and options strategies and damages, the FINRA panel sided completely with C.L. King on all counts and denied the claimants&rsquo; claims in their entirety. <a href="http://www.finra.org/sites/default/files/aao_documents/14-02898.pdf">The full decision can be found here</a>. &nbsp;</div> <div> &nbsp;</div> <div> The Seyfarth Litigation team was led by Boston partner Christopher Robertson and included associate Dallin Wilson in Boston. In addition to the trial team, Seyfarth lawyers Jason Priebe (Chicago), Ryan Tilot (Chicago), and Douglas Rooney (Boston) assisted in the case.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com&nbsp;</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80/news/barton-quoted-bloomberg-BNA-051117 Eric Barton quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/barton-quoted-bloomberg-BNA-051117 Wed, 10 May 2017 00:00:00 -0400 <p> Eric Barton was quoted in &quot;Trade Secret Cases Surge as Race for New Tech, Top Talent Heats Up,&quot; a May 10 story from <em>Bloomberg BNA</em> on how companies racing to create blockbuster new technologies in fields such as robotics, virtual reality and self-driving cars are increasingly hauling each other into court to protect their trade secrets in a series of legal fights that signal the fierce competition in emerging fields. Barton said that litigation over trade secrets is traceable to increased competition over tech-sector employees&mdash;a prized commodity.</p> <p> <a href="https://www.bna.com/trade-secret-cases-n73014450731/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/milligan-quoted-law360-051017 Robert Milligan quoted in <i>Law360</i> http://www.seyfarth.com:80/news/milligan-quoted-law360-051017 Wed, 10 May 2017 00:00:00 -0400 <p> Robert Milligan was quoted in &quot;Defend Trade Secrets Act: Lessons From Year 1,&quot; a May 10 story from <em>Law360 </em>on lessons learned over the Defend Trade Secrets Act&rsquo;s (DTSA) first year. Milligan said that the biggest impact that the DTSA has provided is options for clients. He said that while in some instances plaintiffs still pursue such claims in state court, he is seeing more and more plaintiffs elect to pursue such claims under the DTSA.</p> http://www.seyfarth.com:80/publications/MA051017-LE2 If Pain, Yes Gain—Part XXIX: Arizona Announces Draft Sick Leave Rules http://www.seyfarth.com:80/publications/MA051017-LE2 Wed, 10 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Arizona<span class="_Tgc">&mdash;</span>the sixth state with a paid sick leave law<span class="_Tgc">&mdash;h</span>as published its much anticipated Notice of Proposed Rulemaking for its law going into effect on July 1, 2017.&nbsp; &nbsp;&nbsp;</em></p> <p> On July 1, 2017, while employees are enjoying their first taste of summer sun and ocean waves, employers will be managing a different kind of wave, specifically one that will see five paid sick leave laws become effective on this date. Arizona joins Chicago and Cook County, IL and Minneapolis and Saint Paul, MN<a href="#_ftn1" name="_ftnref1" title="">[1]</a> as the jurisdictions fueling this latest sick leave wave. When the tide settles, Arizona will be just the sixth state in the country with a statewide paid sick leave mandate that has gone into effect.<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> As employers ready their policies and practices to comply with the impending Arizona Fair Wages and Healthy Families Act (the &ldquo;Act&rdquo;),<a href="#_ftn3" name="_ftnref3" title="">[3]</a> the Industrial Commission of Arizona (the &ldquo;Commission&rdquo;) has taken steps to clarify certain aspects of the Act. Specifically, on May 5, 2017, the Commission released a <a href="http://apps.azsos.gov/public_services/register/2017/18/contents.pdf">Notice of Proposed Rulemaking</a> regarding the Act. While not final, the proposed rules address a number of topics within the Act, including year-end carryover obligations, notice and posting requirements, recordkeeping, and payment of sick time.</p> <p> The public will have until June 5, 2017, to submit comments on the proposed rules. On that same date, the Commission will be hosting an oral proceeding for further discussion on the proposed rules.&nbsp;</p> <p> Here is a summary of the proposed rules&rsquo; key provisions:</p> <ul> <li> <strong>Employment Relationship:</strong> The proposed rules explain that volunteers and certain babysitters are not considered employees under the Act. Relatedly, and while not expressly stated, it appears that the proposed rules also exclude independent contractors from sick leave eligibility under the Act. The proposed rules note that determining whether an employment relationship exists depends on the circumstances of the relationship, and refer employers to factors that can be used to assess the economic dependency of a working relationship.</li> <li> <strong>Accrual and Hours Worked:</strong> The Act requires that employees accrue paid sick leave at least as fast as one hour of sick leave for every 30 hours worked, up to either 40 or 24 hours per year depending on the size of the employer. Under the proposed rules, &ldquo;hours worked&rdquo; is defined to mean all hours for which an employee covered under the Act is employed and required to give to the employer, including all time during which an employee is on duty or at a prescribed work place and all time the employee is suffered or permitted to work.</li> <li> <strong>Year-End Carryover:</strong> The Act states that earned paid sick time shall be carried over to the following year, subject to limitations on usage (i.e., annual usage caps). On its face, this language could be read as not setting any cap on the amount of unused sick time that employers must allow employees to rollover at year-end. However, the proposed rules address this uncertainty and expressly state that employees may carry over up to a maximum of 40 or 24 hours of unused sick time at year-end, depending on the size of the employer. <ul> <li> Relatedly, the proposed rules reiterate that employers can avoid the Act&rsquo;s year-end carryover requirements only if they (a) cash out employees&rsquo; unused sick time at year-end, <strong><u>and</u></strong> (b) provide employees with a lump grant of 40 or 24 sick time hours, depending on the size of the employer, at the start of the new benefit year.</li> </ul> </li> <li> <strong>Reasons for Use:</strong> Arizona employees may use accrued paid sick leave for a number of reasons.<a href="#_ftn4" name="_ftnref4" title="">[4]</a> The proposed rules contain language impacting two of the lesser known reasons for use: <ul> <li> First, employees are permitted to use paid sick leave to care for the employee or a covered family member when it has been determined by health authorities that the individual&rsquo;s presence in the community may jeopardize the health of others due to exposure to a communicable disease, whether or not the individual actually has the disease. The proposed rules define &ldquo;communicable disease&rdquo; to mean a contagious, epidemic or infectious disease required to be reported to the local board of health or Arizona department of health services.</li> <li> Second, employees may use paid sick leave due to closure of the employee&rsquo;s place of business or employee&rsquo;s child&rsquo;s school or place of care by order of a public official due to a public health emergency. The proposed rules include a narrow definition of &ldquo;public health emergency&rdquo;<span class="_Tgc">&mdash;</span>a state of emergency declared by the governor in which there is an occurrence or imminent threat of an illness or health condition caused by bioterrorism, an epidemic or pandemic disease or a highly fatal infectious agent or biological toxin and that poses a substantial risk of a significant number of human fatalities or incidents of permanent or long-term disability.</li> </ul> </li> <li> <strong>Payment of Sick Time:</strong> The Act states in general terms that an emlpoyee should be compensated for used sick leave at the same hourly rate and with the same benefits, including health care benefits, as the employee normally earns during hours worked. This compensation must not be less than federal or state minimum wages. The proposed rules note that shift differentials and premiums that compensate an employee for work performed under differing conditions (such as hazard pay or a shift differential for working at night) must be included when determining an employee&rsquo;s same hourly rate. However, sick time payment need not include additions to an employee&rsquo;s base rate for overtime or holiday pay, bonuses or other types of incentive pay, tips, or gifts. <ul> <li> In addition and notably, the proposed rules provide guidance on calculating the &ldquo;same hourly rate&rdquo; in several circumstances, including for employees paid a single hourly rate, multiple hourly rates, on a salary basis, and on a commission, piece-rate, or fee-for-service basis.&nbsp;</li> </ul> </li> <li> <strong>Posting Requirement:</strong> The proposed rules state that employers must display the Commission&rsquo;s <a href="https://www.azica.gov/sites/default/files/AZ%20Earned%20Paid%20Sick%20Time%20Poster%202017.pdf">model sick leave poster</a> in a conspicuous place in every establishment where employees are employed and where notices to employees are customarily placed. Furthermore, the proposed rules add a &ldquo;small employer&rdquo; exception to the Act&rsquo;s posting requirement stating that the requirement does not apply to a corporation, proprietorship, partnership, joint venture, limited liability company, trust, or association that has less than $500,000 in gross annual revenue.</li> <li> <strong>Recordkeeping Requirement:</strong> The Act requires that employers maintain payroll records showing the (a) hours worked for each day worked, and (b) wages and earned sick time paid to all employees for a period of four years. The proposed rules list additional types of payroll and other records that employers must retain to comply with the Act, including earned paid sick time accrued and used each pay period and current earned paid sick time balance.</li> </ul> <p> As the Act&rsquo;s July 1, 2017, effective date draws closer, employers should take steps now to ensure compliance, including (a) review and, as needed, update existing policies and procedures or, alternatively, create a new paid sick leave policy that complies with the Act, (b) develop systems and procedures to meet the Act&rsquo;s posting and notification requirements, and (c) train supervisory and managerial employees, as well as HR, on the Act&rsquo;s requirements.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> For more information, here are links to our prior alerts on the impending <a href="http://www.laborandemploymentlawcounsel.com/2016/06/the-chicago-paid-sick-leave-ordinance-is-inevitable/">Chicago</a>, <a href="http://www.seyfarth.com/publications/MA042117-LE">Cook County</a>, <a href="http://www.seyfarth.com/publications/MA102016-LE">Minneapolis</a>, and <a href="http://www.seyfarth.com/publications/MA091416-LE">Saint Paul</a> paid sick leave laws.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> The five states with paid sick leave laws that are currently in effect are Connecticut, California, Massachusetts, Oregon, and Vermont. In addition, the state of Washington&rsquo;s paid sick leave law is scheduled to become effective on January 1, 2018.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> The Act was passed by Arizona voters during the November 8, 2016, election. Follow this link for our summary of the main <a href="http://www.laborandemploymentlawcounsel.com/2016/11/2016-election-infected-with-paid-sick-leave-part-ii/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=1742b5ae3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-1742b5ae3e-71256185">Arizona paid sick leave law</a> requirements.</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> Employees may also use Arizona paid sick leave for (a) their own injury, illness, or health condition, (b) the injury, illness, or health condition of a covered family member, and (c) certain absences related to domestic violence, sexual violence, abuse, or stalking of the employee or the employee&rsquo;s family member.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA051017-LE New York’s Highest Court Clarifies Who Can Be Liable for Discrimination Based on Criminal History http://www.seyfarth.com:80/publications/MA051017-LE Wed, 10 May 2017 00:00:00 -0400 <p> <strong><em>S</em></strong><strong><em>eyfarth Synopsis:</em></strong> <em>On May 4, 2017, New York&rsquo;s highest court, the Court of Appeals, held that&nbsp; the New York State Human Rights Law (&ldquo;NYSHRL&rdquo;) prohibits employers from discriminating on the basis of criminal conviction history. Entities that are not direct employers may also be liable, however only for aiding and abetting a violation of the NYSHRL.</em></p> <p> In <a href="http://caselaw.findlaw.com/ny-court-of-appeals/1859335.html"><em>Griffin v. Sirva, Inc.</em></a>, the U.S. Court of Appeals for the Second Circuit (&ldquo;Second Circuit&rdquo;) posed three questions to the New York Court of Appeals (&ldquo;Court of Appeals&rdquo;), New York&rsquo;s highest court, regarding the appropriate interpretation of New York state law, the NYSHRL.&nbsp; Specifically, the Court of Appeals was asked to determine whether (1) Section 296(15) of the NYSHRL, which prohibits discrimination against individuals with prior criminal convictions, is limited to a party&rsquo;s &ldquo;employer&rdquo;; (2) if so, is an &ldquo;employer&rdquo; only a &ldquo;direct employer,&rdquo; or can the coverage extend to other related entities; and (3) does Section 296(6), which provides for aiding and abetting liability, apply to Section 296(15) to impose liability on out-of-state entities that may have a connection to an in-state employer? &nbsp;</p> <p> As background, the direct employer in the case was Astro Moving and Storage Co., who was a contractor for Allied Van Lines.&nbsp; Plaintiffs had convictions for sex crimes with minors, which disqualified them from working for Allied, and Astro terminated their employment because they could not perform services for Allied.&nbsp; Plaintiffs sued Astro, Allied, and Sirva, Inc. (Allied&rsquo;s parent).&nbsp; Among other claims, Plaintiffs alleged discrimination due to their criminal conviction histories, as prohibited by Section 296(15) of the NYSHRL.&nbsp; As is most relevant here, they sued Allied (which was not their direct employer).&nbsp; Thus, since the interpretation of the NYSHRL had not been resolved on this point, the Second Circuit certified its questions to the Court of Appeals.</p> <p> In its response, the Court of Appeals held definitively that Section 296(15) of the NYSHRL is limited to direct employers.&nbsp; Although the statutory text states that &ldquo;any person&rdquo; is prohibited from discriminating, the Court nevertheless found that this language was contextually designed to target direct employers.</p> <p> With respect to the second question, the Court of Appeals clarified who the NYSHRL considers an &ldquo;employer.&rdquo;&nbsp; To make the determination, the Court of Appeals turned to the common law test for determining the employer-employee relationship, as enunciated by New York&rsquo;s Appellate Division, Fourth Department, in <em>State Div. of Human Rights v. GTE Corp.</em>, 109 A.D.2d 1082 (4th Dept. 1985).&nbsp; The test consists of four factors: &ldquo;(1) the selection and engagement of the servant; (2) the payment of salary or wages; (3) the power of dismissal; and (4) the power of control of the servant&rsquo;s conduct.&rdquo;&nbsp; The primary focus on this test, the Court of Appeals quoted the Fourth Department, is the &ldquo;right of control, that is, the right of one person, the master, to order and control another, the servant, in the performance of work by the latter.&rdquo;&nbsp; This pronouncement is noteworthy in that it clarifies the definition of &ldquo;employer&rdquo; for NYSHRL claims.</p> <p> Last, the Court of Appeals turned to the breadth of liability for aiding and abetting, under Section 296(6).&nbsp; The Court noted that one does not need to be a direct employer, or have any employment connection to the plaintiff. The Court pointed out, for example, that in <em>National Org. for Women v. State Div. of Human Rights</em>, 34 N.Y.2d 416 (1974), a newspaper company had no employment relationship with the plaintiff, but was nevertheless found to have aided and abetted discrimination by running two sets of help wanted ads: a separate list of jobs for men, and a separate list of jobs for women, despite the fact that the newspaper did not employ anyone from these ads. The Court also noted that the NYSHRL has an extraterritoriality provision that captures out-of-state actors when their acts have an impact within the state. Thus, an out-of-state entity can be liable for acts that constitute discrimination, or aiding and abetting, that have an impact in New York. &nbsp;This interpretation is not a change in the lower court&rsquo;s opinions, but an affirmation that&nbsp; third party entities should understand that if they have control over hiring decisions, they could be at risk.</p> <p> <strong><u>Outlook and Potential Ramifications</u></strong></p> <p> The Court of Appeals has made certain clarifications that have a potential impact on any employer, as well as any entity who works with another entity that is an employer, where questions surrounding criminal background checks come up that have an impact on employees in New York. Beyond direct employers, who are directly covered by Section 296(15), non-employers, even those outside New York, may nevertheless find themselves ensnared in a claim under the NYSHRL for aiding and abetting. Thus, the ramifications of this decision extend beyond the universe of direct employers, and beyond New York&rsquo;s state lines. Employers within New York would be well-served to revisit their compliance requirements with Section 296(15). Further, any companies who does business with a New York employer, regardless of whether the company is located in or outside of New York, would likewise be well-served to review their business practices for any &ldquo;impact in New York&rdquo; that might run afoul of the NYSHRL.</p> http://www.seyfarth.com:80/publications/ERISA051017 Eighth Circuit Jimmies The Lid On Pandora’s Box http://www.seyfarth.com:80/publications/ERISA051017 Wed, 10 May 2017 00:00:00 -0400 <p> In an opinion that may result in increasingly complex ERISA benefits litigation, the Eighth Circuit has allowed a breach of fiduciary duty claim premised on alleged faulty claims handling practices to proceed in conjunction with a claim for benefits.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/10/eighth-circuit-jimmies-the-lid-on-pandoras-box/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=39ac59c7ab-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-39ac59c7ab-73050525">click here</a></p> http://www.seyfarth.com:80/publications/CP051017 California Supreme Court Set to Address Fate of Independent Contracting http://www.seyfarth.com:80/publications/CP051017 Wed, 10 May 2017 00:00:00 -0400 <p> The California Supreme Court, in Dynamex Operations v. Superior Court, has agreed to address the legal standard for determining whether a worker classified as an independent contractor is really an employee. The Supreme Court&rsquo;s opinion is expected to be significant for anyone thinking of using independent contractors in California.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/05/10/california-supreme-court-set-to-address-fate-of-independent-contracting/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=a7da3f784a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-a7da3f784a-71410869">click here</a></p> http://www.seyfarth.com:80/publications/WSE050917 OSHA “Removes” Late Term Rule Which Allowed OSHA to Cite Injury Recordkeeping Violations Going Back Five-Years http://www.seyfarth.com:80/publications/WSE050917 Tue, 09 May 2017 00:00:00 -0400 <p> OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court&rsquo;s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/investigationsinspections/osha-removes-late-term-rule-which-allowed-osha-to-cite-injury-recordkeeping-violations-going-back-five-years/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=815a0689ad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-815a0689ad-71407177">click here</a></p> http://www.seyfarth.com:80/publications/ADA050917 2017 Federal ADA Title III Lawsuit Numbers 18% Higher than 2016 http://www.seyfarth.com:80/publications/ADA050917 Tue, 09 May 2017 00:00:00 -0400 <p> The increase of ADA Title III lawsuits in federal court shows no signs of stopping. &nbsp;From January 1 through April 30, 2017, 2629 lawsuits were filed &mdash; 412 more than during the same period in 2016. &nbsp;That&rsquo;s a whopping 18 percent increase. &nbsp;As we previously reported, the total number of lawsuits filed in federal court in 2016 was 6,601 and represented a 37% increase from 2015.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/05/2017-federal-ada-title-iii-lawsuit-numbers-18-higher-than-2016/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=0859a9e7f3-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-0859a9e7f3-71256157">click here</a></p> http://www.seyfarth.com:80/publications/OMM050917-LIT Who Knew? An Absolute Assignment of Rents Can Be Absolute http://www.seyfarth.com:80/publications/OMM050917-LIT Tue, 09 May 2017 00:00:00 -0400 <h2> Sixth Circuit Determines that an Absolute Assignment of Rents Perfected Under Michigan State Law Takes Property out of a Bankruptcy Estate &nbsp;(In Re Town Center Flats, LLC, Case No. 16-1812 &mdash; Decided May 2, 2017)</h2> <div> &nbsp;</div> <div> If under state law perfection of an absolute assignment of rents is a transfer of property, then such rents could be excluded from property of a debtor&rsquo;s bankruptcy estate. Debtor Town Center Flats, LLC owns a 53-unit residential apartment complex in Shelby Township, Michigan. Town Center financed construction of the building with a $5.3 million loan from ECP Commercial II LLC. The loan was secured by a mortgage, as well as an agreement to assign rents to the creditor in the event of default (the &ldquo;Agreement&rdquo;). Pursuant to the terms of the Agreement, Town Center &ldquo;irrevocably, absolutely and unconditionally [agreed to] transfer, sell, assign, pledge and convey to Assignee, its successors and assigns, all of the right, title and interest of [Town Center] in &hellip; income of every nature of and from the Project, including, without limitation, minimum rents [and] additional rents&hellip;.&rdquo; The Agreement purported to be a &ldquo;present, absolute and executed grant of the powers herein granted to Assignee,&rdquo; while simultaneously granting a license to Town Center to collect and retain rents until an event of default, at which point the license would &ldquo;automatically terminate without notice to [Town Center].&rdquo;</div> <div> &nbsp;</div> <div> On December 31, 2013, Town Center defaulted on its obligation to repay the loan. On December 22, 2014, ECP sent a notice of default and a request for the payment of rents to all known tenants of the Town Center property. The notice complied with the terms of the Agreement and with section 554.231 of the Michigan Complied Laws, which allows creditors to collect rents directly from tenants of certain mortgaged properties. The following day, ECP recorded the notice documents in Macomb County, Michigan, completing the last step required by the statute to make the assignment of rents binding against both Town Center and the tenants of the property. On January 23, 2015, ECP filed a complaint in the Circuit Court for Macomb County, Michigan, seeking foreclosure and requesting the appointment of a receiver to take possession of the Town Center property. Subsequently, on January 31, 2015, Town Center filed a petition for relief under chapter 11 of the Bankruptcy Code. On the petition date, Town Center owed ECP $5,329,329, plus attorney&rsquo;s fees and costs.</div> <div> &nbsp;</div> <div> At the commencement of the chapter 11 case, ECP and Town Center entered into interim agreement to allow Town Center to continue to collect rent from tenants of the complex, with $15,000 per month used to pay down the debt owed to EPC, and the remainder of the rents to be used for authorized expenses. Town Center defaulted on the interim agreement almost immediately. Consequently, in February 2015, ECP filed a motion to prohibit Town Center from using rents collected after the chapter 11 petition was filed. The bankruptcy court denied the motion, finding that the rents were property of Town Center&rsquo;s bankruptcy estate because an assignment of rents creates a security interest, but does not change ownership. &nbsp;Simply stated, Town Center still had an interest in the rents. On appeal, the district court vacated the order of the bankruptcy court, finding that an assignment of rents is a transfer of ownership under Michigan law, and thus the rents should not be included in the chapter 11 estate. &nbsp;Appeal was then taken to the Sixth Circuit. &nbsp;</div> <div> &nbsp;</div> <div> Property of an estate in bankruptcy is broadly defined by section 541 of the Bankruptcy Code as all legal or equitable interests of the debtor in property as of the commencement of the case. The Sixth Circuit, citing the Supreme Court&rsquo;s decision in Butner v. United States, noted that property rights of a debtor in bankruptcy are determined under the law of the state in which the property is located, which in Town Center is Michigan. Turning to Michigan law, the Court cited section 554.231 of the Michigan Compiled Statutes, which provides, in pertinent part:&nbsp;</div> <div> &nbsp;</div> <blockquote> <div style="text-align: justify; margin-left: 40px;"> [I[n or in connection with any mortgage on commercial or industrial property &hellip; it shall be lawful to assign the rents, or any portion thereof, under any oral or written leases upon the mortgaged property to the mortgagee, as security in addition to the property described in such mortgage. Such assignment of rents shall be binding upon such assignor only in the event of default in the terms and conditions of said mortgage, and shall operate against and be binding upon the occupiers of the premises from the date of filing by the mortgagee in the office of the register of deeds for the county in which the property is located of a notice of default in the terms and conditions of the mortgage and service of a copy of such notice upon the occupiers of the mortgaged premises.&rdquo;&nbsp;</div> </blockquote> <div> &nbsp;</div> <div> Relying on a number of Michigan state court decisions that generally discuss assignment of rents under section 554.231 as ownership transfers, the Court held the rents generated by Town Center&rsquo;s property were not property of its bankruptcy estate because perfection of the assignment of rents by ECP had transferred ownership to ECP.</div> <div> &nbsp;</div> <div> Two key supplemental points were additionally addressed by the Court. First, the Court determined that Town Center&rsquo;s right to receive rents once the mortgage is paid is not a residual property right that would serve to somehow supersede ECP&rsquo;s present ownership interest and bring the rents into the bankruptcy estate. Second, the Court distinguished the Supreme Court&rsquo;s decision in United States v. Whiting Pools. In that case, personal property had been seized by the Internal Revenue Service in satisfaction of a tax lien was determined to be part of the bankruptcy estate because the debtor retained an ownership interest until sale to a bona fide purchaser. The Sixth Circuit concluded by finding that the bankruptcy court&rsquo;s decision was motivated by a policy concern that excluding the assigned rents from the estate would effectively foreclose chapter 11 relief for companies like Town Center that own a single property and receive their sole stream of revenue from rents of that property. &ldquo;We recognize the concern of Town Center&mdash;and the bankruptcy court&mdash;that single-asset real estate entities may have limited options under [c]hapter 11 in this situation. Michigan law, however, is clear on the matter and governs despite other policy concerns.&rdquo;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WH050917 Battle of the Experts on Class Certification: A Win for Employers http://www.seyfarth.com:80/publications/WH050917 Tue, 09 May 2017 00:00:00 -0400 <p> The California Court of Appeal affirmed a denial of class certification on the ground that the plaintiff&rsquo;s expert report failed to establish claims could be determined on common evidence. The ruling highlights that trial courts are permitted to weigh conflicting evidence related to whether common or individual issues predominate. While expert reports often inform merits questions relating to damages, when those reports are the main source of support for certification, they equally inform issues of liability.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/battle-of-the-experts-on-class-certification-a-win-for-employers/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=fb9278dea5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-fb9278dea5-73050573">click here</a></p> http://www.seyfarth.com:80/publications/EL050917 Justice Gorsuch Likely To Have Significant Impact on Labor and Employment Cases Before the U.S. Supreme Court http://www.seyfarth.com:80/publications/EL050917 Tue, 09 May 2017 00:00:00 -0400 <p> With Justice Neil Gorsuch joining the Supreme Court in April, and the apparent re-emergence of a 5-4 split, we expect to see the Court issue more expansive opinions and be less reticent to grant certiorari. &nbsp;The addition of Justice Neil Gorsuch is likely to have particular impact in the field of labor and employment law.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/justice-gorsuch-likely-to-have-significant-impact-on-labor-and-employment-cases-before-the-u-s-supreme-court/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=de2172cfcf-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-de2172cfcf-71256185">click here</a></p> http://www.seyfarth.com:80/publications/TS050917 Can You Say P-e-c-u-l-i-a-r-i-t-i-e-s? Seyfarth’s Cal-Peculiarities Guide Is Here Highlighting Quirks in California Restrictive Covenant and Trade Secret Law http://www.seyfarth.com:80/publications/TS050917 Tue, 09 May 2017 00:00:00 -0400 <p> Seyfarth Shaw LLP has released its 2017 Edition of <em>Cal-Peculiarities: How California Employment Law Is Different</em>. Included within the publication is an overview of how California law is different in the areas of restrictive covenants , trade secrets, and computer fraud.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/can-you-say-p-e-c-u-l-i-a-r-i-t-i-e-s-seyfarths-cal-peculiarities-guide-is-here-highlighting-quirks-in-california-restrictive-covenant-and-trade-secret-law/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=7292835996-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-7292835996-73050541">click here</a></p> http://www.seyfarth.com:80/news/meier-quoted-law360-050917 Steven Meier quoted by <i>Law360</i> http://www.seyfarth.com:80/news/meier-quoted-law360-050917 Tue, 09 May 2017 00:00:00 -0400 <p> Steven Meier was quoted in &quot;Real Estate Tax Changes Would Create Confusion, Difficulty,&quot; a May 9 story by <em>Law360 </em>on how developers are carefully watching Washington for indications of whether President Donald Trump may attempt to change like-kind exchanges or rules for tax treatment of property expenses. Meier said that he thinks a lot of folks are assuming that immediate expensing means 1031&#39;s going to go away but he thinks there are numerous middle grounds here.</p> http://www.seyfarth.com:80/news/hendrickson-quoted-SHRM-050817 Christine Hendrickson quoted by <i>SHRM</i> http://www.seyfarth.com:80/news/hendrickson-quoted-SHRM-050817 Mon, 08 May 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;New York City Mayor Approves Ban on Salary History Questions,&quot; a May 8 story by <em>SHRM </em>on Mayor Bill de Blasio signing a New York City bill that will prohibit employers in New York City from asking job applicants about their salary history. Hendrickson said that all employers who use prior salary as a touchpoint in setting initial compensation, not just those with operations in New York City, are wise to carefully consider the full legal landscape as they wade into this new approach to pay.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-mayor-approves-ban-on-salary-history-questions.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/petersen-quoted-SHRM-050817 Kyle Petersen quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/petersen-quoted-SHRM-050817 Mon, 08 May 2017 00:00:00 -0400 <p> Kyle Petersen was quoted in &quot;Waiting Periods for Vacation Accruals May Be on the Way Out,&quot; a May 8 story from <em>SHRM </em>on how new employees today often have to work for 90 days to a year before taking time off. Petersen said that employers are moving away from imposing waiting periods for vacation accruals because of the proliferation of paid-sick-leave entitlements.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/vacation-waiting-periods-on-the-wane.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/7110 Too Personal To Proceed: Personal Bankers’ Certification Bid Bounced Again http://www.seyfarth.com:80/publications/7110 Mon, 08 May 2017 00:00:00 -0400 <div> The Second Circuit recently upheld a district court order denying a bid for class certification by personal bankers claiming their managers refused to approve timesheets with overtime hours, shaved reported overtime hours, and pressured them to work off the clock. Because the company&rsquo;s policy governing (and limiting) overtime work was lawful on its face, the bankers&rsquo; claims hinged on the exercise of managerial discretion in applying those policies. The district court concluded that the plaintiffs failed to demonstrate sufficient uniformity in the exercise of managerial discretion, and the Second Circuit affirmed.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.wagehourlitigation.com/rule-23-class-certification/certification-bid-bounced/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=b9f52ec0f4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-b9f52ec0f4-73050573">click here</a></div> http://www.seyfarth.com:80/publications/OMM050617-LE UPDATE: The Trend Continues: NYC Passes Salary History Ban http://www.seyfarth.com:80/publications/OMM050617-LE Sat, 06 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On May 4, 2017, New York City Mayor Bill de Blasio signed into law the long awaited ban on employers inquiring about a prospective job applicant&rsquo;s prior salary history. The law will go into effect in 180 days on October 31, 2017.&nbsp;</em></p> <p> Halloween just got a little spookier for employers.</p> <p> On May 4, 2017, New York City Mayor Bill de Blasio signed into law the legislation that bans New York City employers from inquiring about or seeking the salary history of job applicants. See our previous alert about the proposed law <a href="http://www.seyfarth.com/publications/OMM040617-LE2">here</a>. The law will go into effect on Halloween, October 31, 2017. While the wording of section 2 of the law may suggest that the City Commission on Human Rights must issue regulations before the law can take effect, both the Mayor and the Commission issued statements indicating that the effective date will be 180 days from the Mayor&rsquo;s signature.</p> <p> It remains to be seen whether the New York City law will face the same legal challenges as its Philadelphia counterpart.&nbsp; Last month, the Chamber of Commerce for Greater Philadelphia filed a federal lawsuit on First Amendment and Due Process grounds against Philadelphia&rsquo;s pay equity Ordinance, which similarly prohibits inquiries into salary history.&nbsp; See our alert on the challenge <a href="http://www.seyfarth.com/publications/OMM042517-LE">here</a>.</p> <p> With the impending city and state law bans not only in NYC and Philadelphia, and but also in <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a> and Puerto Rico that will forbid or limit an employer&rsquo;s inquiry into prior salary, the <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California Fair Pay Act prohibition on using prior salary as the sole justification for pay differences</a>, and <a href="http://www.seyfarth.com/publications/OMM050417-LE">split within the federal Circuits on the use of prior salary</a>, all employers who use prior salary as a touchpoint in setting initial compensation - not just those with operations in NYC - are wise to carefully consider the full legal landscape as they wade into this new approach to pay.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely.&nbsp; We hope you will join Seyfarth&rsquo;s Pay Equity and Workplace Counseling &amp; Solutions Groups for a joint Webinar on May 9th to discuss this litigation and the wave of wage history bans.&nbsp; You can register for <em>The Next Pay Equity Frontier: Salary History Bans </em>webinar <a href="http://www.seyfarth.com/events/Webinar-051917LE">here</a>.</p> http://www.seyfarth.com:80/publications/HCRMA050517 Issue 109: House Passes Modified Version of AHCA - Bill to Proceed to Senate http://www.seyfarth.com:80/publications/HCRMA050517 Fri, 05 May 2017 00:00:00 -0400 <div> <em>This is the one hundred and ninth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here </a>to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis:</strong> On May 4th, House Republicans were finally able to pass a modified version of the American Health Care Act (&ldquo;AHCA&rdquo;) on the thinnest of margins. &nbsp;To muster the votes, the Republicans had to make a series of tweaks to the bill that were requested by both the conservative Freedom Caucus as well as the more moderate Tuesday Group. &nbsp;Most notably, the AHCA (as modified) would permit states to opt-out of the Affordable Care Act&rsquo;s (ACA&rsquo;s) community rating and essential health benefits (EHB) requirements. To minimize the potential impact on persons with pre-existing condition exclusions (who would likely pay more in the absence of these standards), the AHCA allocates billions of dollars that states may use to establish high risk pools. The bill now proceeds to the Senate where it faces additional challenges in what is typically a more independent, deliberative legislative body.</em><br /> &nbsp;</div> <div> After a <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue107_03242017.pdf">false start</a> in late March, on May 4th House Republicans were finally able to pass a modified version of the American Health Care Act (&ldquo;AHCA&rdquo;) on the thinnest of margins. &nbsp;To muster the votes, the Republicans had to make a series of tweaks to the bill that were requested by both the conservative Freedom Caucus as well as the more moderate Tuesday Group. &nbsp;See, <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue106_03082017.pdf">Issue 106</a> for details on the originally proposed AHCA.</div> <div> &nbsp;</div> <div> <strong>What Changed from the Earlier Bill?</strong></div> <div> &nbsp;</div> <div> Most notably, the AHCA (as modified) would permit states to opt-out of the Affordable Care Act&rsquo;s (ACA&rsquo;s) community rating and essential health benefits (EHB) requirements, as discussed in <a href="http://www.seyfarth.com/uploads/siteFiles/publications/HealthCareReformManagementAlert_Issue108_04182017.pdf">Issue 108</a>. &nbsp;The ACA requires all plans in the individual and small group markets to cover all EHBs and generally prohibits carriers from charging sick people more for coverage. &nbsp;To minimize the potential impact on persons with pre-existing condition exclusions (who would likely pay more in the absence of these standards), the AHCA allocates billions of dollars that states may use to establish high risk pools.</div> <div> &nbsp;</div> <div> The amendment originally exempted Congress (whose members must get coverage from the Marketplace) from these changes to the ACA. &nbsp;After a public outcry, the House first voted to remove the Congressional exemption, then voted to pass the AHCA.</div> <div> &nbsp;</div> <div> House Republicans could only afford to lose 21 Republican votes. &nbsp;They lost 20 (and picked up no Democratic support), so the bill passed with a razor-thin 217-213 margin.</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> While it may seem surprising given the efforts required to get to this point, the House vote was always viewed as the easier step in the process. &nbsp;The Senate will now take up the AHCA, and significant hurdles remain. &nbsp;Notably:</div> <div> &nbsp;</div> <ul> <li> <em>CBO Score</em>. &nbsp;Immediately following the House vote, Mitch McConnell announced the Senate would wait for the Congressional Budget Office (CBO) score before voting. &nbsp;Prior to the amendments watering down the pre-existing condition exclusion protections and adding billions of dollars in high-risk pool spending, the CBO score suggested the AHCA would save roughly $300 billion but result in 24 million fewer covered persons over ten years, as compared to the ACA. Most expect the figures in the revised report will be worse. &nbsp;</li> <li> <em>Eligibility for Consideration through Reconciliation.</em> &nbsp;It&rsquo;s unclear whether some of the changes the AHCA makes to the ACA will qualify for inclusion in a Senate reconciliation bill (which generally can only include revenue-related provisions). &nbsp;If the Senate&rsquo;s parliamentarian disagrees that this bill contains exclusively revenue-related provisions, the Senate would need to either modify the bill (which would then need to go back to the House), or pick up 60 votes (requiring Democratic support, which is unlikely). &nbsp;</li> <li> <em>Changes Expected.</em> &nbsp;Putting aside the reconciliation-related concerns, several Republican Senators and President Trump himself have suggested the bill will change in the Senate. &nbsp;Many of these amendments would offset the delicate balance the House is trying to strike to win the necessary votes, meaning the two bodies may not be able to pass the same version of the bill (which would be required). &nbsp;</li> <li> <em>President&rsquo;s Promises.</em> &nbsp;President Trump has promised the AHCA will protect persons with pre-existing conditions. &nbsp;Kaiser Family Foundation is projecting that the billions of dollars allocated to cover people with pre-existing conditions in a separate, high-risk insurance pool will only cover a fraction of the costs. &nbsp;In the past, these high-risk pools have been unsuccessful due to inadequate funding. &nbsp;</li> </ul> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM050517-LIT Hold That Order! FDA Freezes Menu Labeling Rules Until 2018 http://www.seyfarth.com:80/publications/OMM050517-LIT Fri, 05 May 2017 00:00:00 -0400 <div> The Food and Drug Administration (&ldquo;FDA&rdquo;) has extended the compliance date for its menu labeling rules just days before the final rules were set to take effect. The FDA had previously finalized menu labeling rules in connection with the Affordable Care Act to make calorie and nutritional information more available to consumers dining at restaurants and other similar food establishments. The FDA has extended the compliance deadline to May 7, 2018.</div> <div> &nbsp;</div> <div> The extended compliance date was in response, in part, to a last minute petition by a group of major grocers and retailers who argued that the menu labeling rules were overly broad and encompassed too many businesses, did not properly clarify what constitutes a &ldquo;menu,&rdquo; and were expected to cause significant costs for compliance.&nbsp;</div> <div> &nbsp;</div> <div> The FDA reasoned that the new extension &ldquo;allows for further consideration of what opportunities there may be to reduce costs and enhance the flexibility of these requirements beyond those reflected in the interim final rule.&rdquo; The FDA has proposed an interim final rule and opened it for public comment. Additional information is available at the <a href="https://www.federalregister.gov/documents/2017/05/04/2017-09029/food-labeling-nutrition-labeling-of-standard-menu-items-in-restaurants-and-similar-retail-food">Federal Register Notice Announcing the May 7, 2018 Compliance Date</a>.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM050517-LE UPDATE: The City of Los Angeles Adopts “Ban the Box,” Prohibiting Criminal Conviction Inquiry Prior to Job Offer http://www.seyfarth.com:80/publications/OMM050517-LE Fri, 05 May 2017 00:00:00 -0400 <p> The Los Angeles <a href="http://clkrep.lacity.org/onlinedocs/2014/14-0746_misc_11-28-2016.pdf">Fair Chance Initiative for Hiring</a> (the &ldquo;Ordinance&rdquo;) imposes a host of new unlawful hiring practices upon private employers regarding inquiries into criminal convictions. Chief among them, an employer may not ask about an applicant&rsquo;s criminal history, use any mode of communication, nor conduct a criminal background check until <strong><em>after</em></strong> extending a conditional offer that is <strong><em>only</em></strong> conditioned on the result of the check.</p> <p> The Ordinance became effective on January 22, 2017, however, it will not be enforced until July 1, 2017.&nbsp;&nbsp; Violations between January 22, 2017, and June 30, 2017, may result in a written warning.</p> <p> The City of Los Angeles Bureau of Contract Administration (the &ldquo;BCA&rdquo;) has posted printable Ordinance <a href="http://bca.lacity.org/index.cfm?nxt=ee&amp;nxt_body=div_occ_eeo_fc_forms.cfm">forms and posters</a> on its website:</p> <ul> <li> <em>Notices to Applicants or Employees for City Contractors</em></li> <li> <em>Notices to Applicants or Employees for Private Employers</em></li> <li> <em>Notice to Rescind Employment Offer - Sample Letter</em></li> <li> <em>Fair Chance Initiative For Hiring Complaint Forms (English/Spanish)</em></li> </ul> <p> <strong><u>UPDATE:&nbsp; </u></strong><u>Two new documents have been posted to the BCA website:</u></p> <ul> <li> <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Initiative%20for%20Hiring%20FAQ.pdf"><em>FAQs</em></a></li> <li> <a href="http://bca.lacity.org/site/pdf/eeo/Fair%20Chance%20Initiative%20for%20Hiring%20Overview.pdf"><em>Fair Chance Initiative for Hiring Overview</em></a></li> </ul> <p> <strong>Coverage</strong></p> <p> The Ordinance applies to any private employer that employs at least 10 individuals, including the owner(s), management, and supervisors, who perform at least two hours of work on average each week within the geographic boundaries of the City: the so-called &ldquo;Covered Employer.&rdquo; The Ordinance also covers job placement and referral agencies and other employment agencies.</p> <p> &ldquo;Employment&rdquo; is defined broadly to include temporary or seasonal work, part-time, contracted or contingent work, work on commission, work through the services of a temporary or other employment agency or any form of vocational or educational training with or without pay.</p> <p> The Ordinance does not cover employers who are required by law to obtain information regarding an applicant&rsquo;s conviction, or those who are prohibited by law from hiring an applicant who has been convicted of a crime. The Ordinance also does not apply to an individual who, because of a criminal conviction, cannot lawfully hold the position, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation. Last, the Ordinance does not apply to an applicant required to possess or use a firearm in the course of employment.</p> <p> <strong>Unlawful Hiring Practices</strong></p> <p> The Ordinance establishes several unlawful practices. Specifically, a Covered Employer is prohibited from inquiring into an individual&rsquo;s criminal background unless and until a conditional offer of employment. Importantly, the conditional offer can be conditioned only on the criminal background check. The &ldquo;inquiry&rdquo; can be any direct or indirect conduct that is intended to gather criminal history information from or about an individual using any mode of communication, such as application forms, interviews, and criminal history reports. Employers can, however, make these inquiries after first making a conditional offer of employment&mdash;that is, after making a job offer that is conditioned <em>only</em> on the employer&rsquo;s evaluation of the individual&rsquo;s criminal history.</p> <p> Further, a Covered Employer cannot take &ldquo;adverse action&rdquo; because of an individual&rsquo;s criminal history without first conducting a &ldquo;written assessment that effectively links the specific aspects&rdquo; of the applicant&rsquo;s criminal history &ldquo;with risks inherent in the duties&rdquo; of the position sought. Here, &ldquo;adverse action&rdquo; means a withdrawal or cancellation of a conditional offer of employment, or a failure or refusal to employ the applicant. In this respect, the Ordinance is similar to the New York City Fair Chance Act.</p> <p> In conducting an individualized assessment, a Covered Employer must, at minimum, consider the factors set forth by the U.S. Equal Employment Opportunity Commission, such as (i) the time that has elapsed since the offense, (ii) the individual&rsquo;s age at the time of the offense, (iii) circumstances surrounding the offense, (iv) the number of offenses for which the individual has been convicted, (v) employment history before and after conviction, (vi) evidence of rehabilitation, and other mitigating factors.&nbsp; But employers must also apply other factors as may be required by rules and guidance issued by the Department of Public Works, Bureau of Contract Administration (&ldquo;Department&rdquo;), who bears administrative responsibilities for this Ordinance.</p> <p> <strong>Employer Assessment of Criminal History</strong></p> <p> As noted, prior to any adverse action, the Ordinance requires a written assessment that effectively links the specific aspects of the applicant&rsquo;s criminal history with risks inherent in the duties of the position sought. A Covered Employer must also provide a &ldquo;Fair Chance Process,&rdquo; which refers to an opportunity to provide information regarding the accuracy of the criminal history information, evidence of rehabilitation, or other mitigating factors. The Covered Employer must wait at least five business days after informing the applicant of the proposed adverse action before taking adverse action. If the applicant provides the information, the Covered Employer must consider it in the written reassessment. If adverse action still will be taken after further consideration, the Covered Employer must notify the applicant of the decision <strong><em>and provide the applicant with a copy of the written reassessment</em></strong>.</p> <p> <strong>Notice and Posting Requirement</strong></p> <p> A Covered Employer must state in all advertisements that it will consider qualified applicants with criminal histories in a manner consistent with the requirements of the Ordinance. Employers also must post the notice the BCA provides on its website informing applicants of the provisions of the Ordinance in a &ldquo;conspicuous place at every workplace, job site or other location in the City under [its] control and visited by ... applicants.&rdquo; Covered Employers must also send a copy of the notice to each labor union with which they have a collective bargaining agreement covering employees located in the City.</p> <p> <strong>Record Retention</strong></p> <p> Covered Employers must retain all records and documents related to applications, written assessments, and reassessments performed pursuant to the Ordinance for three years following the receipt of an job application.</p> <p> <strong>Enforcement and Penalties</strong></p> <p> An applicant or employee alleging a violation of the Ordinance has one year to bring a claim to the Department. The Department is vested with subpoena power for items relevant to its investigation. If the Department determines that an Covered Employer has violated the Ordinance&mdash;whether based upon a complaint or its own investigation&mdash;the Department must issue a written notice to the Covered Employer requiring immediate cure and possibly imposing administrative fines.</p> <p> The Ordinance also provides a private right of action against a Covered Employer, provided the civil action is not brought until administrative remedies are exhausted.&nbsp; Simply put, the individual must have reported the alleged violation within one year to the Department and the administrative enforcement process must be completed or a hearing officer&rsquo;s decision must be rendered, whichever is later. The civil action must be filed within one year of the later of the completion of the Department&rsquo;s enforcement process or the issuance of the hearing officer&rsquo;s decision.</p> <p> Penalties and administrative fines for violations (with the exceptions of notice and record-retention violations) are up to $500 for the first violation, up to $1,000 for the second violation and up to $2,000 for the third and subsequent violations. Violations of the notice and record retention requirement provisions are up to $500 per violation. Amounts are determined based on the willfulness of the employer&rsquo;s action(s) and other material factors determined by the Department.</p> <p> Per the City, civil penalties will not be imposed for violations before July 1, 2017. But those violations may result in a written warning.</p> <p> The Ordinance prohibits retaliation against individuals who complain to the City about an employer&rsquo;s compliance, who oppose any prohibited practices, who participate in a proceeding to enforce their rights, or who otherwise assert any rights under this Ordinance.</p> <p> <strong>Employer Outlook</strong></p> <p> Employers in Los Angeles should review their employment applications and relevant employment forms to ensure compliance with federal, state, and local law, including requirements pertaining to conditional offers outside the context of criminal background checks. Employers who operate in multiple jurisdictions in addition to Los Angeles, such as New York, Philadelphia, San Francisco, Austin or Oregon, should particularly review any standardized forms that may be in use in multiple jurisdictions. Covered employers also should ensure that all hiring and recruiting personnel are aware of &ldquo;ban the box&rdquo; laws&mdash;whether they currently apply to them or not. Employers with questions regarding &ldquo;ban the box&rdquo; should consult with counsel.</p> http://www.seyfarth.com:80/publications/OMM050517-LE2 New York DOL Challenges Rescindment of Payroll Debit Card and Direct Deposit Regulations http://www.seyfarth.com:80/publications/OMM050517-LE2 Fri, 05 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The New York Department of Labor has mounted a challenge to the successful appeal of its promulgated regulations governing payment to employees via payroll debit cards and direct deposit.&nbsp; The regulations were set to go into effect on March 7, 2017, before they were summarily rescinded by the state Industrial Board of Appeals in February.&nbsp; </em></p> <p> As anticipated, on April 24, the New York Department of Labor (&ldquo;NY DOL&rdquo;) filed <a href="http://www.seyfarth.com/dir_docs/publications/NY_Appeal_OTSC_Verified_Petition_with_Exhibits_A_and_B.pdf">an appeal</a> seeking to reverse the New York Industrial Board of Appeals&rsquo;(the &ldquo;Board&rdquo;) decision to rescind the regulations governing payment of wages by payroll debit card and direct deposit.&nbsp; As previously reported <a href="http://www.seyfarth.com/publications/OMM022117-LE">here</a>, these regulations, which were set to go into effect on March 7, 2017, were rescinded in February.</p> <p> The NY DOL must establish that the Board&rsquo;s decision was &ldquo;an error of law or was arbitrary and capricious,&rdquo; which gives significant deference to the Board&rsquo;s decision.&nbsp;</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/NYDOL-MOL.pdf">The NY DOL&rsquo;s brief</a> largely focuses on the fact that <em>employers</em>, and only if applicable, their <em>agents</em>, are regulated by these provisions.&nbsp; The NY DOL also argues that it has longstanding rules governing payroll debit cards in its opinion letters, and that no legislation was even considered until years after these opinions were issued. Thus, it claims its authority to issue such regulations was well-established.&nbsp;</p> <p> The NY DOL argues that Global Cash Card, the payroll debit card vendor that challenged the regulations, lacked standing to do so.&nbsp; In particular, the NY DOL argues that Global Cash Card is not a &ldquo;person in interest&rdquo; under the Labor Law because it is an agent that contracts with employers to issue payroll debit cards.&nbsp; It notes that the regulation&rsquo;s inclusion of payroll debit card vendors was meant &ldquo;to prevent employers from evading the provision&rsquo;s ban on fees for certain services by imposing such fees indirectly, through their agents.&rdquo;&nbsp; As such, employers cannot fashion a &ldquo;work-around&rdquo; in avoiding compliance with the regulations merely by contracting with a third party to manage its payments to employees via payroll debit card.&nbsp;</p> <p> Also challenged was the Board&rsquo;s finding that the NY DOL went beyond its statutory authority in regulating payroll debit cards.&nbsp; The NY DOL noted that Article 6 of the New York Labor Law requires that workers be paid in full and within a statutorily prescribed time period, that informed consent is required before an employer may require payment by direct deposit, and prohibits unlawful deductions from wages.&nbsp; Under this authority, the NY DOL sought to regulate the imposition of certain fees, which could place encumbrances on employee access to wages.</p> <p> We will continue to track this proceeding as it nears a decision.&nbsp; Global Cash Card has until May 29 to file opposition letters and the NY DOL has until June 12 to file a reply. &nbsp;Until the appeal is decided, employers must rely on the NY DOL opinion letters and statutes which pertain to wage payments generally and payroll debit cards to ensure compliance with the law.&nbsp; As Pennsylvania&rsquo;s payroll debit card law goes into effect on May 5, New York employers are waiting for further clarity.&nbsp; For now, the law regarding payroll debit cards remains in flux in New York.&nbsp; Stay tuned!</p> <p> Finally, employers should also note that the New York City Freelance Isn&rsquo;t Free Act, on which we previously reported<a href="http://www.seyfarth.com/publications/MA110816-LE"> here</a> and <a href="http://www.seyfarth.com/publications/OMM120216">here</a>, will go into effect on May 15, 2017.</p> http://www.seyfarth.com:80/publications/WH050517 Cash Now or Paid Time Off Later? House Passes FLSA Amendment to Permit Private Sector Comp Time http://www.seyfarth.com:80/publications/WH050517 Fri, 05 May 2017 00:00:00 -0400 <p> On May 2, 2017, the House of Representatives passed a bill amending the Fair Labor Standards Act to permit private employees to choose to take paid time off instead of monetary overtime compensation when working more than 40 hours in one week. Passed along party lines in the House, the bill would still need to pass the Senate, making its future somewhat uncertain. Should the Senate approve it, the Trump Administration has already signaled its support for the bill.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/overtime/cash-now-or-paid-time-off-later/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=5c81a6470b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-5c81a6470b-73050573">click here</a></p> http://www.seyfarth.com:80/news/maatman-quoted-national-law-journal-050517 Gerald Maatman quoted in the <i>National Law Journal</i> http://www.seyfarth.com:80/news/maatman-quoted-national-law-journal-050517 Fri, 05 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Court Confronts Scope of EEOC&#39;s Power to Dig Into Company Files,&quot; a May 5 story from the <em>National Law Journal</em> on how a federal appeals court trained an eye on the power of the U.S. Equal Employment Opportunity Commission to subpoena internal documents of companies under investigation, sparking claims of &ldquo;abuse of power&rdquo; and crystallizing tension over the scope of the agency&rsquo;s authority. Maatman said that this case is indicative of the process of the fight between the employer, the community and agency about the proper use of that power to investigate EEOC charges.</p> http://www.seyfarth.com:80/news/lorber-quoted-bloomberg-BNA-050417 Larry Lorber quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/lorber-quoted-bloomberg-BNA-050417 Thu, 04 May 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;To Confirm or Not? That May Be the Question for Some DOL Directors,&quot; a May 4 story in <em>Bloomberg BNA</em> on whether the directors of the DOL&rsquo;s Office of Federal Contract Compliance Programs, Office of Labor-Management Standards and Office of Workers&rsquo; Compensation Programs should require senate confirmation. Lorber said that one possible effect of requiring confirmation for the positions would be to increase congressional oversight of the agencies.</p> <p> <a href="https://www.bna.com/confirm-not-may-n57982087529/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/TS050417 Webinar Recap! Protecting Confidential Information and Client Relationships in the Financial Services Industry http://www.seyfarth.com:80/publications/TS050417 Thu, 04 May 2017 00:00:00 -0400 <p> In Seyfarth&rsquo;s second webinar in its series of 2017 Trade Secret Webinars, Seyfarth attorneys Scott Humphrey, Robyn Marsh, and Dawn Mertineit focused on trade secret and client relationship considerations in the banking and financial services industry, with a particular focus on a firm&rsquo;s relationship with its FINRA members. The webinar included practical steps financial institutions can implement to protect trade secrets and client relationships; tips on what to do if your trade secrets are improperly removed or disclosed or if a former employee is violating his/her restrictive covenant agreements; how to prosecute a case against a former employee who is a FINRA member; and the impact of the Protocol for Broker Recruiting on trade secrets and client relationships.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/webinar-recap-protecting-confidential-information-and-client-relationships-in-the-financial-services-industry-4/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=2373cfafe4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-2373cfafe4-73050541">click here</a></p> http://www.seyfarth.com:80/publications/EL050417 Restaurant Wrong To Fire Workers Over Email Criticizing the Restaurant and its Managers http://www.seyfarth.com:80/publications/EL050417 Thu, 04 May 2017 00:00:00 -0400 <p> Employer must reinstate four employees after it terminated the employees for agreeing with a former coworker&rsquo;s email that complained about their terms and conditions of employment.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/05/restaurant-wrong-to-fire-workers-over-email-criticizing-the-restaurant-and-its-managers/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=65203b5bd0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-65203b5bd0-71256185">click here</a></p> http://www.seyfarth.com:80/publications/7101 Acosta Takes the Helm http://www.seyfarth.com:80/publications/7101 Thu, 04 May 2017 00:00:00 -0400 <p> Last Thursday, the Senate confirmed Alexander Acosta as the 27th United States Secretary of Labor. Filling the final post in President Trump&rsquo;s cabinet, Acosta will lead a Department of Labor that has, since inauguration, operated without political leadership in the Secretary role. With Secretary Acosta in place, the DOL now has a leader to advance the new administration&rsquo;s agenda. Here, we offer a brief introduction to Secretary Acosta, as well an overview of the action and opportunity employers may expect on the wage and hour front over the next few months.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/acosta-takes-the-helm/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=60d8a50e33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-60d8a50e33-73050573">click here</a></p> http://www.seyfarth.com:80/publications/CDL050417 Court Orders Enterprise to Engage in Forensic Imaging and Analysis http://www.seyfarth.com:80/publications/CDL050417 Thu, 04 May 2017 00:00:00 -0400 <p> In<em> Realpage Inc. v. Enter. Risk Control, LLC, </em>2017 BL 102339 (E.D. Tex. 2017), the court ordered Enterprise Risk Control, LLC (&ldquo;Enterprise&rdquo;) to produce forensic images of devices used by a former Realpage employee to a forensic neutral in order to determine whether any source code was recoverable pertaining to Realpage&rsquo;s allegations of misappropriation.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/court-orders-enterprise-engage-forensic-imaging-analysis/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=522777ab6d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-522777ab6d-72857025">click here</a></p> http://www.seyfarth.com:80/publications/OMM050417-LE Ninth Circuit Holds that Prior Salary Alone May Justify Pay Differential in Equal Pay Act Cases http://www.seyfarth.com:80/publications/OMM050417-LE Thu, 04 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On April 27, 2017, the Ninth Circuit held that using prior salary alone may support differences in compensation under the Equal Pay Act as a &ldquo;factor other than sex&rdquo; if using prior salary was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy.&rdquo;&nbsp; </em></p> <p> The debate over the lawfulness and utility of using prior salary as a guidepost in setting starting compensation for new employees continues.&nbsp; Last Thursday, the U.S. Court of Appeals for the Ninth Circuit held that using prior salary to set starting pay for new hires may support differences in compensation if its use was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy&rdquo; under the federal Equal Pay Act.&nbsp; While using prior salary as a factor for purposes of setting pay may serve legitimate and non-discriminatory business objectives, given the <a href="http://www.seyfarth.com/publications/OMM042517-LE">impending</a> <a href="http://www.seyfarth.com/publications/OMM080116-LE2">city and state law</a> <a href="http://www.seyfarth.com/publications/OMM040617-LE2">bans</a> that will forbid or limit an employer&rsquo;s inquiry into prior salary, the <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California Fair Pay Act prohibition on using prior salary as the sole justification for pay differences</a>, and split within the federal Circuits on the use of prior salary, we recommend that employers who wish to use prior salary for setting initial compensation carefully consider the full legal landscape.&nbsp;</p> <p> <strong>The Facts Underlying the Ninth Circuit Case</strong></p> <p> The case, <em>Rizo v. Yoviny</em><sup>1</sup><em>,</em>&nbsp;was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps.&nbsp; New math consultants were placed into Level 1, which contained ten salary steps with compensation&nbsp; ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates&rsquo; most recent prior salary and added 5% to assign the starting salary step within Level 1.</p> <p> Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County&rsquo;s practices, Rizo was to receive a 5% increase over her prior salary.&nbsp; However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants.&nbsp; The County addressed the issue by setting Rizo&rsquo;s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.</p> <p> Several years later, Rizo learned that at least one of her male colleague&rsquo;s starting salary was set at the &nbsp;Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid.&nbsp; After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act<sup>2</sup>.</p> <p> <strong>The Trial Court Decision</strong></p> <p> The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary --a &ldquo;factor other than sex.&rdquo; The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one&rsquo;s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.</p> <p> <strong>The Court of Appeals&rsquo; Decision</strong></p> <p> The Ninth Circuit Court of Appeals reversed and relied on its prior decision in <em>Kouba v. Allstate Insurance Co.</em><sup>3</sup>, which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor &ldquo;reasonably in light of the employer&rsquo;s stated purpose as well as its other practices.&rdquo;&nbsp; The Ninth Circuit held similar reasoning applied to Title VII claims as well.</p> <p> The Ninth Circuit rejected the district court&rsquo;s reasoning that, while <em>Kouba </em>permitted employers to rely on prior salary under certain circumstances, it did not go as far as permitting prior salary <em>alone </em>as a &ldquo;factor other than sex&rdquo; that could support an affirmative defense under the Equal Pay Act.&nbsp; In rejecting the district court&rsquo;s reasoning, the Ninth Circuit concluded that <em>Kouba </em>squarely addressed the issue and concluded that &ldquo;prior salary alone&rdquo; could justify pay disparities if prior salary was used reasonably and served some business policy.&nbsp;</p> <p> In response to Rizo&rsquo;s allegations, the County offered four business reasons for using prior salary to set pay: (1) the criterion was objective; (2) the policy encouraged candidates to leave their prior positions for a 5% salary increase; (3) the policy prevented favoritism and ensured consistency in application; and (4) the policy was a judicious use of taxpayer dollars. In light of its prior decision in <em>Kouba</em>, the Ninth Circuit vacated and remanded the matter to the district court to consider whether the business justifications proffered by the County were reasonable and served their stated purpose.&nbsp;</p> <p> <strong>Why is the <em>Rizo </em>Decision Important?</strong></p> <p> The Ninth Circuit&rsquo;s decision in <em>Rizo</em> is certainly welcome news for many employers who often turn to prior salary as a picture of the market for a particular role and as a proxy for an applicant&rsquo;s skills, experience, and performance in their prior role.&nbsp; Unfortunately, however, employers must navigate a patchwork of federal, state, and local laws that touch on the use of prior salary and the holding is not a blanket endorsement of using prior salary to justify pay differences.&nbsp; Bottom line: proceed with caution.</p> <p> <em>State and Local Law Considerations</em></p> <p> The <em>Rizo</em> decision comes in the middle of a recent wave of state laws and city ordinances aimed at prohibiting employers from even inquiring about wage history during the application and salary negotiation process so employers should be mindful of these potentially conflicting state laws and ordinances.&nbsp;</p> <p> For instance, there are state and city ordinances banning the use of prior history in setting starting wages in <a href="http://www.seyfarth.com/publications/OMM042517-LE">Philadelphia</a>, <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>&nbsp;and&nbsp;Puerto Rico that will soon take effect, and similar bans are under consideration <a href="http://www.seyfarth.com/dir_docs/publications/PE_01262017.pdf">in many other jurisdictions</a>, including <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">San Francisco</a>.&nbsp;</p> <p> Also, the Ninth Circuit&rsquo;s decision in <em>Rizo</em>, is squarely at odds with the California Fair Pay Act, <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">which expressly prohibits employers from justifying pay differences based solely on prior salary</a>.&nbsp;</p> <p> <em>Federal Law Considerations</em></p> <p> There are also federal law considerations.</p> <p> First, the <em>Rizo c</em>ourt made clear that there is not a bright-line rule that allows employers to rely on prior salary in setting starting wages.&nbsp; The burden will be on the employer to persuade the fact finder that prior salary information was (1) used reasonably, and (2) serves a business purpose.&nbsp; Accordingly, employers should clearly define the business reason why they wish to rely on prior salary information and ensure that it is being used reasonably to set compensation.</p> <p> Employers should be aware that there is a federal Circuit court split on the use of prior salary. &nbsp;The Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas others, like the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act<sup>4</sup>.</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> Careful evaluation of your policies and practices around the use of prior salary is encouraged.&nbsp; Given the maze of federal, state and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.&nbsp; The state and city ordinances may require modification of your employment applications and background screening materials.&nbsp;</p> <p> The <em>Rizo</em> decision and the looming salary bans make it more important than ever for employers to ensure they have a clear compensation philosophy, a defined compensation structure, and a method of making equitable starting salary decisions.&nbsp; Once employers have the structure in place, ensuring internal equity is much easier and can be pressure tested with proactive pay equity audits undertaken with legal counsel.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely.&nbsp; We hope you will join Seyfarth&rsquo;s Pay Equity and Workplace Counseling &amp; Solutions Groups for a joint Webinar on May 9th to discuss this litigation and the wave of wage history bans.&nbsp; You can register for <em>The Next Pay Equity Frontier: Salary History Bans </em>webinar <a href="http://www.seyfarth.com/events/Webinar-051917LE">here</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>No. 16-15372, 2017 WL 1505068 at *1 (9th Cir. April 27, 2017)</p> <p> <sup>2</sup>The Ninth Circuit panel explained that they limited their discussion to Rizo&rsquo;s Equal Pay Act claim because Title VII claims alleging that a plaintiff has been denied equal pay for substantially equal work are adjudicated according to Equal Pay Act standards.&nbsp; <em>See</em> <em>Id.</em> at n. 2.</p> </div> <div id="ftn3"> <p> <sup>3</sup>691 F.2d 873 (9th Cir. 1982)</p> </div> <div id="ftn4"> <p> <sup>4</sup><em>Cf. Riser v. QEP Energy, </em>776 F.3d 1191, 1199 (10th Cir. 2015), <em>quoting Angove v. Williams-Sonoma, Inc</em>., 70 F. App&rsquo;x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act &ldquo;precludes an employer from relying solely upon a prior salary to justify pay disparity.&rdquo;) and <em>Irby v. Bittick</em>, 44 F.3d 949 (11th Cir. 1995), quoting <em>Glenn</em> <em>v. General Motors Corp</em>., 841 F.2d 1567, 1571 &amp; n. 9; (&ldquo;We have consistently held that &lsquo;prior salary alone cannot justify pay disparity&rsquo; under the EPA.&rdquo;)<em> with Wernsing v. Department of Human Servs, </em>427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and <em>Taylor v. White , </em>321 F.3d 710, 720 (8th Cir. 2003) (&ldquo;we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all &ldquo;factor other than sex&rdquo; affirmative defense.&rdquo;)</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Robert Milligan and Joshua Salinas author an article in <i>Intellectual Property Magazine</i> http://www.seyfarth.com:80/publications/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Thu, 04 May 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored &quot;The key to protecting trade secrets,&quot; an article on May 4 in <em>Intellectual Property Magazine</em>. The authors explore why companies must be vigilant and seek advice from counsel to ensure that their trade secret protection agreements remain current with new and changing legal developments.</p> <p> <a href="http://www.intellectualpropertymagazine.com/strategy/the-key-to-protecting-trade-secrets-123806.htm?origin=internalSearch">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/WC050317 Dueling Fifth Circuit Panel Deadlocks, No Rehearing For Bass Pro In “Big Fish” EEOC Case http://www.seyfarth.com:80/publications/WC050317 Wed, 03 May 2017 00:00:00 -0400 <p> After a Fifth Circuit decision affirming a ruling by a U.S. District Court in Texas allowed the EEOC to seek compensatory and punitive damages in its high-profile Title VII pattern or practice race discrimination lawsuit against Bass Pro, a deadlocked Fifth Circuit denied Bass Pro&rsquo;s petition for a rehearing en banc. &nbsp;The highly contentious dissenting opinion, which prompted a response from the panel in favor of denying the rehearing, is a must-read for employers regarding judicial views on the damages the EEOC can seek in Title VII pattern or practice of discrimination litigation.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/05/dueling-fifth-circuit-panel-deadlocks-no-rehearing-for-bass-pro-in-big-fish-eeoc-case/">click here</a></p> http://www.seyfarth.com:80/publications/WH050317 Don’t Judge a Conditional Certification Motion by Its Cover http://www.seyfarth.com:80/publications/WH050317 Wed, 03 May 2017 00:00:00 -0400 <p> A New York federal court denied a motion for conditional certification of a nationwide collective action against Barnes &amp; Noble. The ruling highlights that, even though the burden for &ldquo;first stage&rdquo; certification is modest, courts may not approve such motions without evidence that the named plaintiffs are similarly situated to the putative collective action members they wish to represent.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/conditional-certification-defenses/dont-judge-a-conditional-certification-motion-by-its-cover/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=dd12119267-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-dd12119267-73050573">click here</a></p> http://www.seyfarth.com:80/publications/bond-authored-article-intellectual-property-watch-050317 Wayne Bond authored an article in <i>Intellectual Property Watch</i> http://www.seyfarth.com:80/publications/bond-authored-article-intellectual-property-watch-050317 Wed, 03 May 2017 00:00:00 -0400 <p> Wayne Bond authored &quot;Enlisting Government Help To Protect Your Trade Secrets,&quot; an article on May 3 in <em>Intellectual Property Watch</em>. The article discusses how both State Attorneys General and Federal Prosecutors have tools at their disposal that let them bring the full force of the government to a business&rsquo; side when its intellectual property rights are violated.</p> <p> <a href="https://www.ip-watch.org/2017/05/03/enlisting-government-help-protect-trade-secrets/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Seyfarth’s Andrew S. Boutros Authors <i>The ABA Compliance Officer’s Deskbook</i> <br><br><i>A Comprehensive Guidance For Understanding and Managing Risk</i> http://www.seyfarth.com:80/news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Wed, 03 May 2017 00:00:00 -0400 <div> <strong>Seyfarth Shaw Partner and National Co-Chair of the firm&rsquo;s White Collar, Internal Investigations and False Claims Team, Andrew S. Boutros</strong>, has just published an important compliance text, <strong><em>The ABA Compliance Officer&#39;s Deskbook</em></strong>, written alongside co-authors T. Markus Funk from Perkins Coie and Professor James T. O&rsquo;Reilly.</div> <div> &nbsp;</div> <div> Recognizing that compliance is one of the most crucial functions within the modern-day company, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> is a user-friendly, practical, and real-world focused deskbook written for today&rsquo;s compliance professional. Whether working in a big or small, private or public, established or rapidly-growing organization, the Book&rsquo;s aim is to empower compliance professionals to better understand the regulatory and enforcement landscapes in which they operate. The Book identifies compliance pitfalls and challenges across industries, subject matters, and corporate infrastructures and recommends practical solutions for today&rsquo;s most high-profile, hot-button compliance topics. &nbsp;In doing so, the Book covers the waterfront of topics such as:</div> <div> &nbsp;</div> <ul> <li> The Role of the Compliance Professional in Today&#39;s Organization &nbsp;&nbsp;</li> <li> Labor Exploitation and CSR</li> <li> The Foreign Corrupt Practices Act (&quot;FCPA&quot;) and U.S. Travel Act</li> <li> Dodd-Frank and Sarbanes-Oxley Financial Regulation</li> <li> Health Care</li> <li> Pharmaceutical, Medical, and Food Products</li> <li> Product Safety</li> <li> Environmental Regulation</li> <li> Government Contracts</li> <li> Nonprofit Entities</li> <li> Privacy and Data Security</li> <li> Preserving Legal Privilege</li> <li> Addressing Law Enforcement Activities</li> <li> Immunity Issues in Corporate Compliance</li> <li> Crimes of False Certification</li> <li> International Transactions Compliance: OFAC Sanctions</li> <li> The Corporate Whistleblower</li> <li> Corporate Voluntary Disclosures</li> <li> Department of Justice FCPA Pilot Program for Cooperation</li> <li> Deferred Prosecution Agreements, Non-Prosecution Agreements, and Corporate Integrity Agreements</li> <li> Structuring Compliance Programs to Meet and Exceed Statutory Obligations</li> </ul> <div> &nbsp;</div> <div> Whether a new or seasoned compliance professional, in-house lawyer, outside counsel, regulator, or member of management, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> covers key compliance concepts in a manner that is both thorough and easily-digestible.</div> <div> &nbsp;</div> <div> <strong>Andrew S. Boutros</strong> is the National Co-Chair of Seyfarth Shaw LLP&rsquo;s White Collar, Internal Investigations, and False Claims Team. He is an accomplished trial attorney and litigator, Foreign Corrupt Practices Act (FCPA) pioneer, Lecturer in Law at the University of Chicago Law School, and former law clerk on the Sixth Circuit Court of Appeals. Boutros is active with the American Bar Association, including being a voting Member of the ABA Criminal Justice Section Council and Co-Founder and National Co-Chair of the ABA&rsquo;s Global Anti-Corruption Committee. A former federal financial fraud prosecutor, Boutros successfully prosecuted a variety of high-profile cases, including what are regarded as the nation&rsquo;s largest criminal customs, trade, and antidumping duty fraud cases, which <em>Bloomberg Businessweek</em> also described as &ldquo;the largest food fraud in U.S. history.&rdquo; &nbsp;</div> <div> &nbsp;</div> <div> In addition to being a Member of the American Law Institute, Boutros is the recipient of the ABA&rsquo;s <em>Norm Maleng Minister of Justice Award</em> and the Federal Law Enforcement Officers Association (FLEOA) <em>National Prosecutorial Award</em>. &nbsp;Boutros now represents clients in their most sensitive and important white collar matters; internal investigations, including those arising under the FCPA and other anti-corruption laws; and complex litigations. He also provides strategic counseling and advice to clients in a variety of industries and conducts comprehensive compliance audits, including in the areas of corporate social responsibility, country of origin matters, and supply chain integrity.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=268758182&amp;term=5090160">Please click here</a> for details on how to order &ldquo;The ABA Compliance Officer&#39;s Deskbook.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80/news/maatman-quoted-law360-050217 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maatman-quoted-law360-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;The Rising Costs Of Tamping Down Class Actions,&quot; a May 2 story from <em>Law360 </em>on how class actions remain a potent weapon against companies in several practice areas, including the securities, employment and consumer protection spaces, where filings continue to be robust despite changes in class action law, according to separate studies. While the number of FLSA filings declined from 8,954 in 2015 to 8,308 in 2016, the 2016 tally is still the second-biggest annual tally for FLSA lawsuits, according to the firm&rsquo;s Workplace Class Action Report. Maatman said that most Fortune 1000 companies do business in New York and California, and the epicenters of workplace class action litigation are the Ninth and Second circuits &mdash; the Northern District of California and the Southern District of New York &mdash; where the case law is more plaintiff friendly than in other circuits.</p> http://www.seyfarth.com:80/news/weiss-interviewed-WGN-Radio-050217 Philippe Weiss interviewed by <i>WGN Radio</i> http://www.seyfarth.com:80/news/weiss-interviewed-WGN-Radio-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by <em>WGN Radio</em> on May 2 to discuss ways to handle customer cataclysms. You can listen to the interview, &quot;Wintrust Business Lunch 5/2/17: POTUS Tweets, MET Gala &amp; Customer Complaints,&quot; <a href="http://wgnradio.com/2017/05/02/wintrust-business-lunch-5217-potus-tweets-met-gala-customer-complaints/">at minute 22 here</a>.</p> http://www.seyfarth.com:80/publications/CP050217 Random Drug Tests (Still) Not Advisable In Most California Workplaces http://www.seyfarth.com:80/publications/CP050217 Tue, 02 May 2017 00:00:00 -0400 <p> California public policy, stated in our Constitution, strongly favors the right of privacy. But employers have their own legitimate interest in maintaining a safe, drug-free work environment. So what&rsquo;s the blunt truth about random drug testing in California?</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/05/02/random-drug-tests-still-not-advisable/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=8f345b4216-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-8f345b4216-71410869">click here</a></p> http://www.seyfarth.com:80/publications/WH050217 Sleeping on the Job? New York Court Finds Home Healthcare Employees Entitled to Pay for Each Hour on Overnight Shifts http://www.seyfarth.com:80/publications/WH050217 Tue, 02 May 2017 00:00:00 -0400 <p> A New York appeals court held that home healthcare employees who work overnight shifts are entitled to pay for all hours in a client&rsquo;s home in a 24-hour period&mdash;including sleep and meal periods. The previously accepted interpretation of New York law allowed employers to pay 13 hours for a 24-hour shift so long as specified meal and sleep periods were provided.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/sleeping-home-healthcare-employees-entitled-to-pay-on-overnight-shifts/">click here</a></p> http://www.seyfarth.com:80/publications/TBT050117 See You in September: Rohrabacher-Farr Amendment in Budget Deal http://www.seyfarth.com:80/publications/TBT050117 Mon, 01 May 2017 00:00:00 -0400 <p> The appointment of Jeff Sessions as Attorney General created a great deal of uncertainty in the medical marijuana community. &nbsp;Sessions has a long history of opposing the legalization of marijuana, whether for medical or recreational purposes. &nbsp;&ldquo;Marijuana is against federal law, and that applies in states where they may have repealed their own anti-marijuana laws. So yes, we will enforce law in an appropriate way nationwide,&rdquo; Sessions said in an interview with radio talk show host Hugh Hewitt in March.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/05/see-you-in-september-rohrabacher-farr-amendment-in-budget-deal/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=9a5481ee3d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-9a5481ee3d-71540589">click here</a></p> http://www.seyfarth.com:80/publications/smith-authored-article-international-law-office-050117 Jason Smith authored an article in <i>International Law Office</i> http://www.seyfarth.com:80/publications/smith-authored-article-international-law-office-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Jason Smith authored &quot;Why understanding economic loss doctrine is critical for construction professionals,&quot; an article on May 1 in <em>International Law Office</em>. The article discusses the economic loss doctrine which is widely misunderstood and often misapplied.</p> <p> <a href="http://www.internationallawoffice.com/Newsletters/Construction/USA/Seyfarth-Shaw-LLP/Why-understanding-economic-loss-doctrine-is-critical-for-construction-professionals">You can view the full article here</a>.</p> http://www.seyfarth.com:80/publications/LR50117 Second Circuit Holds NLRB Did Not Err in its Finding that Facebook Posting that Supervisor is a “Nasty Mother F***er” and “F*** His Mother” was Protected Concerted Activity http://www.seyfarth.com:80/publications/LR50117 Mon, 01 May 2017 00:00:00 -0400 <p> A server whose &ldquo;conduct [sat] at the outer bounds of protected, union-related comments&rdquo; when he posted that his manager is a &ldquo;nasty mother f***er&rdquo; and &ldquo;f*** his mother and his entire f***ing family,&rdquo; was not &ldquo;opprobrious enough&rdquo; to lose the protection of the NLRA, a three-judge panel for the Second Circuit Court of Appeals ruled in <em>NLRB v. Pier Sixty, LLC,</em> No. 15-1841 (2nd Cir. Apr. 21, 2017).</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/05/01/second-circuit-holds-nlrb-did-not-err-in-its-finding-that-facebook-posting-that-supervisor-is-a-nasty-mother-fer-and-f-his-mother-was-protected-concerted-activity/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4a79a07d24-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4a79a07d24-71423401">click here</a></p> http://www.seyfarth.com:80/publications/WH050117 SDNY Pancakes Parties’ Attempt to Bypass Cheeks: Requires Approval of Rule 68 Settlement http://www.seyfarth.com:80/publications/WH050117 Mon, 01 May 2017 00:00:00 -0400 <p> Under Rule 68, a party defending a claim can make an &ldquo;offer of judgment&rdquo; to the other party. If the other party accepts the offer, the clerk must enter judgment pursuant to the offer&rsquo;s terms. However, if the offered party rejects the offer and obtains a less favorable judgment at trial, that party must then pay the costs incurred by the offering party after the offer was made. Courts have explained that the purpose of Rule 68 is to prompt parties to evaluate the risks and costs of litigation and to balance those risks against the likelihood of success.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/settlement/sdny-requires-approval-of-rule-68-settlement/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=0adedba8f1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-0adedba8f1-73050573">click here</a></p> http://www.seyfarth.com:80/publications/CDL050117 Protect Your People: Newest Workday Scam Reroutes Employee Direct Deposit Funds http://www.seyfarth.com:80/publications/CDL050117 Mon, 01 May 2017 00:00:00 -0400 <p> Another week, another well-concocted phishing scam. &nbsp;The most recent fraudulent activity targeted businesses that use Workday, though this is not a breach or vulnerability in Workday itself. &nbsp;Specifically, the attack involves a well-crafted spam email that is sent to employees purporting to be from the CFO, CEO, or Head of HR or similar. &nbsp; Sometimes the emails include the name, title, and other personal information of the &ldquo;sender&rdquo; that we believe might be harvested from LinkedIn or other business databases. The email asks employees to use a link in the phishing email or attached PDF to log into a fake Workday website that looks legitimate. &nbsp;The threat actors who run the fake Workday website then use the user name and password to log into the Workday account as the employee and change their direct deposit bank/ACH information to another bank, relatable Green Dot, or similar credit card.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/protect-people-newest-workday-scam-reroutes-employee-direct-deposit-funds/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=3591247b33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-3591247b33-72857025">click here</a></p> http://www.seyfarth.com:80/news/sonneborn-and-hirsch-quoted-chicago-lawyer-050117 Amanda Sonneborn and Cory Hirsch quoted by <i>Chicago Lawyer</i> http://www.seyfarth.com:80/news/sonneborn-and-hirsch-quoted-chicago-lawyer-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Amanda Sonneborn and Cory Hirsch were quoted in &quot;Made to order: How Seyfarth Shaw tailored its new Willis Tower office space,&quot; a May 1 story by <em>Chicago Lawyer</em> on the firm&rsquo;s official move of its Chicago office to the Willis Tower. Sonneborn said that the firm believes staff and lawyers together make a firm work well, and this space allows us to break down the barriers to make that happen. Hirsch said that there was a lot of money put in to making conference rooms easier to use while also maintaining the portability factor.</p> <p> <a href="http://www.chicagolawyermagazine.com/Articles/2017/05/CL0517_Spaces">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/olson-quoted-SHRM-050117 Camille Olson quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/olson-quoted-SHRM-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Camille Olson was quoted in &quot;Employers: Is Your Unpaid Internship Program Legal?&quot; &mdash; a May 1 story from <em>SHRM </em>on the legality of employers offering internships without compensation. Olson said that when developing an unpaid internship program and related policies, employers should ensure they&#39;re in compliance with federal, state, and local laws that govern whether their program participants truly are interns.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/is-your-unpaid-internship-program-legal.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/lucano-quoted-MA-Lawyer-050117 Andrew Lucano quoted in The M&A Lawyer http://www.seyfarth.com:80/news/lucano-quoted-MA-Lawyer-050117 Mon, 01 May 2017 00:00:00 -0400 <p> Andrew Lucano was quoted in a May 1 story &ldquo;The Middle-Market M&amp;A Picture: 2017&rdquo; from The M&amp;A Lawyer on the firm&rsquo;s Middle-Market M&amp;A SurveyBook. The Survey found a number of trends, including a slight year-over-year increase in the amount of indemnity escrow amounts. Lucano noted that despite the decline in volume, 2016 was still a robust year for middle-market M&amp;A.</p> http://www.seyfarth.com:80/news/weiss-quoted-nation-restaurant-news-042817 Philippe Weiss quoted by <i>Nation’s Restaurant News</i> http://www.seyfarth.com:80/news/weiss-quoted-nation-restaurant-news-042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;How to avoid a customer service catastrophe,&quot; an April 28 article in <em>Nation&rsquo;s Restaurant News</em> on how training, protocols and a generous spirit can defuse explosive situations. Weiss said that at a time when most people have mobile phones handy to take photos or videos of any potential customer service catastrophe, it has become more important than ever for restaurant operators to train their staff to defuse potentially explosive situations before they become news.</p> <p> <a href="http://www.nrn.com/operations/how-avoid-customer-service-catastrophe">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/WC042817 Dealing With Problem Employees and Employee Problems: What Employers Need To Know http://www.seyfarth.com:80/publications/WC042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Employees are only human &mdash; misconduct, theft, harassment, discrimination, and even criminal conduct are a fact of life, even in the workplace. &nbsp;Companies confronted with allegations of workplace misconduct must consider the manner of responding to the allegations and the means by which they will be investigated.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/dealing-with-problem-employees-and-employee-problems-what-employers-need-to-know/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=0e72c3889a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-0e72c3889a-73050581">click here</a></p> http://www.seyfarth.com:80/publications/WH042817 Budget Blues: Planning for a Possible Government Shutdown http://www.seyfarth.com:80/publications/WH042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a long-term funding bill, we could be facing a federal government shutdown with no money flowing to fund non-essential services. While it seems the crisis may be averted for now &mdash; with a short-term spending bill that would keep the lights on for another week &mdash; the potential for a shutdown still looms. &nbsp;And with it comes concern for many private-sector employers with federal contracts. &nbsp;If the money dries up, employers may need to consider cost-saving measures, such as temporary furloughs, reductions in hours, or reduced pay.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/salary-basis/budget-blues-planning-for-a-possible-government-shutdown/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=3e73c7aa02-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-3e73c7aa02-71257989">click here</a></p> http://www.seyfarth.com:80/publications/solowey-authored-article-association-of-corporate-counsel-ACC-042817 Dawn Solowey authored an article in <i>ACC</i> http://www.seyfarth.com:80/publications/solowey-authored-article-association-of-corporate-counsel-ACC-042817 Fri, 28 Apr 2017 00:00:00 -0400 <p> Dawn Solowey authored &quot;Ten Steps for Developing a Settlement Strategy for Employment Claims,&quot; an article on April 28 in <em>ACC </em>about 10 steps to develop a comprehensive strategy for when to settle, and when to go to the mat in litigation, that is in line with the company&rsquo;s broader goals and values.</p> <p> <a href="http://www.acc.com/legalresources/publications/topten/steps-for-developing-a-settlement-strategy.cfm">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/ERISA042717 Fifth Circuit: Discretionary Ban Does Not Mandate De Novo Review http://www.seyfarth.com:80/publications/ERISA042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> In<em> Ariana M. v. Humana Health Plan of Texas, Inc.,</em> No. 16-20174 (5th Cir. Apr. 21, 2017), the Firth Circuit concluded that Texas&rsquo; ban on discretionary clauses in certain insurance policies did not require a <em>de novo</em> review of the defendant administrator&rsquo;s factual determinations in an ERISA claim for benefits.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/04/27/fifth-circuit-discretionary-ban-does-not-mandate-de-novo-review/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=8f99096fd0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-8f99096fd0-73050525">click here</a></p> http://www.seyfarth.com:80/publications/rodriguez-authored-op-ed-washington-examiner-050117 Leon Rodriguez authored an op-ed in the <i>Washington Examiner</i> http://www.seyfarth.com:80/publications/rodriguez-authored-op-ed-washington-examiner-050117 Thu, 27 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez authored &quot;Where immigration, jobs and infrastructure meet,&quot; an op-ed on April 27 in the <em>Washington Examiner</em> on how the immigrant investor program known as EB-5 is due to expire at week&#39;s end.</p> <p> <a href="http://www.washingtonexaminer.com/where-immigration-jobs-and-infrastructure-meet/article/2621520">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/EL042717 Rescind that Job Offer After Her Notice of Pregnancy? Maybe Not http://www.seyfarth.com:80/publications/EL042717 Thu, 27 Apr 2017 00:00:00 -0400 http://www.seyfarth.com:80/publications/TS042717 Enlisting Government Help to Protect Your Trade Secrets http://www.seyfarth.com:80/publications/TS042717 Thu, 27 Apr 2017 00:00:00 -0400 <div> &ldquo;I&rsquo;m from the government and I&rsquo;m here to help.&rdquo; Yeah, right.[1]</div> <div> &nbsp;</div> <div> Most businesses think protecting their intellectual property is their own responsibility, and it is. But what about when your intellectual property rights are violated by an evildoer? Who are you going to call? While your obvious choice will be the law firm sponsoring this blog, you might also be able to get help from your local prosecutor.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/intellectual-property/enlisting-government-help-to-protect-your-trade-secrets/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=aa20180f2f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-aa20180f2f-73050541">click here</a></div> http://www.seyfarth.com:80/news/sherman-quoted-CNBC-042717 Andrew Sherman quoted by <i>CNBC.com</i> http://www.seyfarth.com:80/news/sherman-quoted-CNBC-042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> Andrew Sherman was quoted in &quot;Musk&#39;s &#39;out of cash&#39; dilemma many business founders love to share,&quot; an April 27 story from <em>CNBC.com</em> on business owners&rsquo; difficult decision to sell a piece or even all of their company. Sherman said many entrepreneurs need to turn to the equity markets to solve cash flow problems, reaching out to angels, angel networks, online funding or private placements, especially when they lack real estate or inventory or equipment to pledge as collateral.</p> <p> <a href="http://www.cnbc.com/2017/04/27/the-crucial-decision-teslas-elon-musk-had-to-make-when-he-was-broke.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/sherman-quoted-inside-sources-042717 Andrew Sherman quoted by <i>Inside Sources</i> http://www.seyfarth.com:80/news/sherman-quoted-inside-sources-042717 Thu, 27 Apr 2017 00:00:00 -0400 <p> Andrew Sherman&rsquo;s testimony before the House Small Business Committee Subcommittee on Economic Growth, Tax, and Capital was covered in &quot;Republicans Explore What Drives Economic Growth,&quot; an April 27 story from <em>Inside Sources</em>. Sherman said that turning to present day trends, 2017 has seen a widespread but tempered increase in confidence among small business owners regarding the economy and overall trends in business investment.</p> <p> <a href="http://www.insidesources.com/republicans-explore-makes-economy-grow/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/sherman-to-testify-before-house-committee-on-small-business Andrew J. Sherman To Testify Before The House Committee on Small Business http://www.seyfarth.com:80/news/sherman-to-testify-before-house-committee-on-small-business Wed, 26 Apr 2017 00:00:00 -0400 <div> WASHINGTON, D.C. - On Thursday, April 27, Seyfarth Shaw LLP partner Andrew J. Sherman will testify before the U.S. House Committee on Small Business. The House Subcommittee on Economic Growth, Tax, and Capital Access hearing, &ldquo;Small Business: The Key to Economic Growth,&rdquo; is scheduled to begin at 10:00 a.m. ET. Sherman&rsquo;s written testimony will be available on Thursday, April 27 and the hearing will also be&nbsp;<a href="http://smallbusiness.house.gov/calendar/eventsingle.aspx?EventID=399879">webcast here</a>.</div> <div> &nbsp;</div> <div> Sherman is chair of the firm&rsquo;s Washington, D.C. Corporate department. He focuses his practice on issues affecting business growth for companies at all stages, including developing strategies for licensing and leveraging intellectual property and technology assets, intellectual asset management and harvesting, as well as international corporate transactional and franchising matters.</div> <div> &nbsp;</div> <div> Seyfarth&rsquo;s Corporate department focuses on areas such as commercial transactions, corporate counseling, financing, international business, investment management, mergers and acquisitions, securities, and tax planning.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> <div> &nbsp;</div> <div> <strong>Contact:&nbsp;</strong></div> <div> &nbsp;</div> <div> Brian Kiefer, Director of Public Relations</div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> Martin Grego, Public Relations Manager</div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80/news/paparelli-quoted-law360-042617 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80/news/paparelli-quoted-law360-042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;After 100 Days, Immigration Changes Will Be Up To Congress,&quot; an April 26 story from <em>Law360 </em>on how the President&rsquo;s immigration changes are dependent on congressional action. Paparelli said that what the executive order did on the H-1Bs was to mark off turf, but that turf can&#39;t be tilled until Congress intervenes.&nbsp;</p> http://www.seyfarth.com:80/news/rodriguez-quoted-the-capital-and-main-042617 Leon Rodriguez quoted by the <i>Capital and Main</i> http://www.seyfarth.com:80/news/rodriguez-quoted-the-capital-and-main-042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Fire and ICE: California Gets Ready for Workplace Immigration Raids,&quot; an April 26 story from <em>Capital and Main</em> on an immigration raid at the end of February in the suburbs of Jackson, Mississippi and in nearby Meridian. Rodriguez said that the administration has been very clear about its intention to broaden the classes of individuals who could be subject to deportation.</p> <p> <a href="http://capitalandmain.com/fire-and-ice-california-gets-ready-for-workplace-immigration-raids-0426">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/TS042617 Webinar Recap! Simple Measures for Protecting Intellectual Property and Trade Secrets http://www.seyfarth.com:80/publications/TS042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Every day, companies unknowingly give up intellectual property and trade secrets which they could have otherwise protected with simple processes. Poor R&amp;D policies may not capture patent rights on a company invention. A faulty or simply outdated employment agreement may not protect a customer list used by an employee who leaves for a competitor. These pitfalls are easily avoidable by implementing measures on the front end and educating employees on the basics of intangible property and how to protect it.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/webinar-recap-simple-measures-for-protecting-intellectual-property-and-trade-secrets/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=349d2f9516-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-349d2f9516-73050541">click here</a></p> http://www.seyfarth.com:80/publications/WSE042617 Heather MacDougall Re-Nominated as Chair of the Occupational Safety and Health Review Commission http://www.seyfarth.com:80/publications/WSE042617 Wed, 26 Apr 2017 00:00:00 -0400 <p> Heather L. MacDougall has recently been re-nominated by President Trump to the Occupational Safety and Health Review Commission (OSHRC). &nbsp;McDougall was originally nominated to the OSHRC in 2014 by then-President Obama and confirmed unanimously by the Senate. &nbsp;MacDougall had then been designated as acting Chair of the OSHRC. Her previous term was set to expire in January 2017.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/heather-macdougall-re-nominated-as-chair-of-the-occupational-safety-and-health-review-commission/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=efceb759a4-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-efceb759a4-71407177">click here</a></p> http://www.seyfarth.com:80/publications/WLS042617 Victorian OHS enforcement: why change the game plan when your team is on top? http://www.seyfarth.com:80/publications/WLS042617 Wed, 26 Apr 2017 00:00:00 -0400 <div> On Friday 24 March, Western Bulldogs kicked off their 2016 premiership defence with a tenacious win against Collingwood. Round 1 of the 2017 AFL season also coincided with the introduction of the WorkSafe Legislation Amendment Bill 2017 (VIC).</div> <div> &nbsp;</div> <div> This Bill includes changes to the rules by which WorkSafe Victoria can prosecute alleged indictable offences against the OHS Act outside the current two year limitation period.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/04/victorian-ohs-enforcement-why-change-the-game-plan-when-your-team-is-on-top/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=f2300883a6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-f2300883a6-73050585">click here</a></div> http://www.seyfarth.com:80/publications/OMM042517-LE Businesses Challenge Philadelphia Law Prohibiting Inquiry into Prospective Employee’s Wage History http://www.seyfarth.com:80/publications/OMM042517-LE Tue, 25 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong> Businesses banded together to challenge, on First Amendment and Due Process grounds, the pay equity Ordinance which would ban inquiries into prospective employees&rsquo; prior salaries.&nbsp; The Ordinance, which was set to go into effect on May 23, has been stayed until the pending motion for preliminary injunction is decided. &nbsp;</em></p> <p> Following Philadelphia&rsquo;s passage of a pay equity Ordinance that prohibits inquiries into salary history (on which we previously reported <a href="http://www.seyfarth.com/publications/OMM012717LE">here</a>), businesses are challenging the Ordinance.&nbsp; The law was slated to go into effect on May 23, 2017, but on April 6, 2017, the Chamber of Commerce for Greater Philadelphia (the &ldquo;Chamber&rdquo;) filed a federal lawsuit seeking to enjoin the law on numerous grounds discussed below. &nbsp;On April 19, 2017, the United States District Court for the Eastern District of Pennsylvania entered a stipulated order that stays the effective date of the new law until resolution of the motion for preliminary injunction.&nbsp;</p> <p> The Chamber of Commerce for Greater Philadelphia v. City of Philadelphia and Pennsylvania Human Relations Commission, No. 17-01548 (E.D. Pa. April 6, 2017) was filed against the City and the city&rsquo;s Commission on Human Relations, alleging the law violates the First Amendment, the Due Process Clause of the Fourteenth Amendment, the Commerce Clause, Pennsylvania&rsquo;s First Class City Home Rule Act, and the state&rsquo;s Constitution.&nbsp; The challenge to the Ordinance casts doubt on its intended effect, which is to lessen the wage gap between men and women.&nbsp; The complaint details the burden on businesses and the relative low impact which the Chamber expects the law to have on the gender pay disparity.&nbsp; In fact, the Chamber claims that the Ordinance will reduce hiring within Philadelphia overall, rather than ameliorating the wage gap.</p> <p> The Philadelphia Ordinance makes it unlawful for an employer or employment agency to inquire about or require disclosure of an applicant&rsquo;s wage history, condition employment on such a disclosure, rely on prior wages in determining the wages for that individual at any point in the hiring process (absent the applicant&rsquo;s &ldquo;knowing and willing&rdquo; disclosure), or retaliate against an applicant for refusing to provide his or her wage history to a prospective employer.</p> <p> <strong><em>First Amendment Challenge</em></strong></p> <p> According to the Chamber, the Ordinance unconstitutionally limits employers&rsquo; ability to inquire about or rely on an applicant&rsquo;s wage history, and seeks to prevent employers from communicating to employees the importance which prior salary has on employers&rsquo; decisions.&nbsp; The complaint points out that the Ordinance does not contemplate applicants such as a high-level executive who must be lured away from his or her current employer, or a partner in a law firm with the &ldquo;lock step&rdquo; compensation structure.&nbsp; The Chamber contends these are examples of situations where an inquiry into and reliance on wage history &ldquo;could not possibly perpetuate wage disparities caused by gender discrimination.&rdquo;&nbsp; Further, the complaint alleges that the Ordinance is &ldquo;substantially underinclusive&rdquo; because employers are permitted to rely on wage history information which is disclosed &ldquo;knowingly and willingly&rdquo; by applicants, even if, for example, these individuals were in fact subject to gender discrimination.&nbsp; At bottom, the complaint alleges that the law is unconstitutional because it could have achieved its objectives through other means &ldquo;more directly targeted at the problem of gender discrimination and that would have restricted far less employer speech.&rdquo;&nbsp;</p> <p> <strong><em>The Ordinance&rsquo;s Reach Extends Outside Philadelphia&rsquo;s Borders</em></strong></p> <p> Further, the Chamber argues that the Ordinance violates the Due Process Clause of the Fourteenth Amendment.&nbsp; In particular, the Chamber alleges that the language in the Ordinance which permits employers to rely on an applicant&rsquo;s wage history if it is &ldquo;knowingly and willingly disclosed&rdquo; is impermissibly vague.&nbsp; The Chamber additionally alleges that the Ordinance applies beyond Philadelphia, and even Pennsylvania&rsquo;s borders, since out-of-state employers may also be subject to the law if they &ldquo;do business&rdquo; in Philadelphia.&nbsp; Therefore, the Chamber contends, the Ordinance violates the Commerce Clause, since it &ldquo;penalizes speech occurring wholly outside the boundaries of Pennsylvania.&rdquo;&nbsp;</p> <p> The Chamber finally alleges that the extraterritorial reach of the Ordinance violates the Pennsylvania Constitution and the Home Rule Act, which together prohibit a city from exercising its power with respect to individuals who do not live or work in the City.&nbsp;</p> <p> <strong><em>The Commonwealth&rsquo;s Legislative Efforts</em></strong></p> <p> The Pennsylvania Senate passed a <a href="http://www.legis.state.pa.us/cfdocs/billinfo/BillInfo.cfm?syear=2017&amp;sind=0&amp;body=S&amp;type=B&amp;bn=241">Bill</a> in February that would amend the Commonwealth&#39;s Equal Pay Act and which would <strong>not</strong> prohibit employers from inquiring into prospective employee&#39;s wage histories. Significantly, the Bill contains a preemption clause which provides that &quot;[t]he provisions of this act shall preempt and supersede any local ordinance or rule concerning the subject matter of this Act.&quot;&nbsp; If enacted, this preemption language also would sound the death knell to the Ordinance.</p> <p> <strong><em>What Does This Mean for Employers?</em></strong></p> <p> Bans on inquiries into past wages are springing up across the country--including in <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>, and perhaps soon in San Francisco.&nbsp;</p> <p> Even where inquiries into prior wages are legal, allegations of disparate employment decisions which were based on an applicant&rsquo;s prior salary may be problematic for employers.&nbsp; While prior salary may be useful for employers who are looking to hire a specific type of candidate, such as a high-level executive, due to state and local laws prohibiting such inquiries, there is a potential risk involved in relying on this information.&nbsp; We will continue to track this lawsuit as it moves through the courts.&nbsp;</p> <p> &nbsp;</p> <p> Join Seyfarth&rsquo;s Pay Equity Group for a <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=uERUc0HllBDRj3ZgTU4_cejL3iKd4ATYVnXHJJnKIbdnuxS_41Db1HqFZzsQtTTB&amp;RS_REFERRSID=uERUc0HllBDRj3ZgTU4_cSBHXCK-qB1KjIaCdTNqT86bTNHXmRnNYf12wTi2urjl&amp;RS_REFERRSTYPE=NO&amp;RS_ORIGRSID=uERUc0HllBDRj3ZgTU4_cSBHXCK-qB1KjIaCdTNqT86bTNHXmRnNYf12wTi2urjl">Webinar</a> on May 9th to discuss the wave of wage history bans and to discuss how you can prepare.</p> http://www.seyfarth.com:80/publications/EL042517 Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees (Blog Post) http://www.seyfarth.com:80/publications/EL042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/potential-government-shutdown-immigration-consequences-for-employers-and-their-foreign-national-employees/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=183cb89c7b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-183cb89c7b-71256185">click here</a></p> http://www.seyfarth.com:80/publications/CDL042517 Lessons from the FTC’s First Enforcement Action Against an IoT Company http://www.seyfarth.com:80/publications/CDL042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> On January 5, 2017, the Federal Trade Commission (FTC) sued for permanent injunction a Taiwan-based computer networking equipment manufacturer D-Link Corporation and its U.S. subsidiary, alleging that D-Link&rsquo;s inadequate security measures left its wireless routers and IP cameras used to monitor private areas of homes and businesses vulnerable to hackers, thereby compromising U.S. consumers&rsquo; privacy.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/lessons-ftcs-first-enforcement-action-iot-company/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=0481cf5b9a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-0481cf5b9a-72857025">click here</a></p> http://www.seyfarth.com:80/news/esposito-quoted-natural-products-insider-042517 Tonya Esposito quoted by <i>Natural Products Insider</i> http://www.seyfarth.com:80/news/esposito-quoted-natural-products-insider-042517 Tue, 25 Apr 2017 00:00:00 -0400 <p> Tonya Esposito was quoted in &quot;Marketers of Weight Loss System Settle with FTC,&quot; an April 25 story by <em>Natural Products Insider</em> on her representation of NutriMost who reached a FTC settlement. Esposito said that NutriMost is committed to complying with the law&mdash;including any FTC regulations&mdash;to the highest extent possible, and also very committed to transparency as it relates to its customers and their health and wellbeing.</p> <p> <a href="https://www.naturalproductsinsider.com/blogs/insider-law/2017/04/marketers-of-weight-loss-system-settle-with-ftc.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/degroff-and-karasik-quoted-cook-county-record-042417 Chris DeGroff and Alex Karasik were quoted in the <i>Cook County Record</i> http://www.seyfarth.com:80/news/degroff-and-karasik-quoted-cook-county-record-042417 Mon, 24 Apr 2017 00:00:00 -0400 <p> Chris DeGroff and Alex Karasik were quoted in &quot;Dollar General ruling strengthens EEOC&#39;s hand to widen discrimination claims into &#39;fishing expeditions&#39;,&quot; an April 24 story from the <em>Cook County Record</em> on how the ruling of a Chicago federal judge in favor of an Equal Employment Opportunity Commission enforcement case against retail giant Dollar General will strengthen the EEOC&rsquo;s hand in bids to widen single claims of employment discrimination into company-wide fishing expeditions. DeGroff said that the court ruling extends beyond the Dollar General case. Karasik said that companies should not just lay down when the EEOC starts proceedings against them.</p> <p> <a href="http://cookcountyrecord.com/stories/511106934-dollar-general-ruling-strengthens-eeoc-s-hand-to-widen-discrimination-claims-into-fishing-expeditions">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM042417-LE Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80/publications/OMM042417-LE Mon, 24 Apr 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis: </strong>If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</em></p> <p> <strong>Background</strong></p> <p> A federal government shutdown could begin at midnight on Friday, April 28 if Congress fails to pass a funding bill. This means that, effective Monday, May 1, only &ldquo;essential&rdquo; government workers would report to work until Congress passes a spending bill.</p> <p> <strong>U.S. Citizenship and Immigration Services (USCIS)</strong></p> <p> USCIS would be minimally impacted because it is largely a user-fee funded service. &nbsp;The vast majority of USCIS workers would continue to report to work during a shutdown. This means USCIS would continue to process applications and petitions for immigration benefits, with some processing delays possible. As explained below, however, petitions for which a Department of Labor (DOL) certification is required -- such as the H-1B that requires a Labor Condition Application (LCA) -&shy;may be adversely affected. USCIS has not yet announced whether it would temporarily accept extensions without DOL-certified LCAs, although historically USCIS has not.</p> <p> E-Verify, USCIS&rsquo; free, internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, would be inaccessible during the shutdown. However employers are reminded that they must continue to complete I-9 forms in compliance with the law and when E-Verify becomes available, create cases in the E-Verify system. During a prior shutdown, USCIS &nbsp;issued guidance suspending the &ldquo;three day rule&rdquo; &nbsp;for any case affected by the shutdown.&nbsp; Historically employees caught in the Tentative Non-Confirmations (TNCs) process were provided an extended time period to resolve the issue.</p> <p> Again, employees would still be required to complete Section 1 of the Form I-9 on or before the first day of employment and employers would still need to complete Section 2 of the Form I-9 no later than the third business day after an employee begins working for pay.</p> <p> Other components of the Department of Homeland Security (DHS), such as Customs and Border Protection (CBP) and Immigration Customs Enforcement (ICE) are expected to retain most of their essential staff. CBP has not yet indicated whether it would process immigration applications at the border, such as initial TN and Blanket L applications for Canadian nationals, but it is expected that these adjudications would continue.</p> <p> <strong>Department of Labor</strong></p> <p> Office of Foreign Labor Certification (OFLC) employees, who fall under the umbrella of DOL, are considered non-essential and would be placed in furlough status during the government shutdown. <strong>OFLC would neither accept nor process any applications or related materials</strong>, including LCAs, applications for a prevailing wage determination, applications for temporary employment certification, PERM audit responses or applications for permanent employment certification (.e.g PERM applications).&nbsp; &nbsp;<strong>OFLC&rsquo;s web site, including the iCERT Visa Portal System, would become static and unable to process any requests or allow authorized users to access their online accounts</strong>. Employers with concerns about these deadline-specific functions should consult an immigration attorney with questions about proper maintenance of status during these uncertain times.</p> <p> <strong>Department of State (DOS)</strong></p> <p> Visa issuance should continue, at least temporarily. &nbsp;Domestic and overseas Consular operations should remain fully operational as long as sufficient fees exist to support operations. However, if a passport agency is located in a government building affected by a lapse in appropriations, that facility may become unsupported. The continuance of consular operations in such instances would be treated on a case-by-case basis by the Under Secretary for Management.</p> <p> <strong>Department of Justice (DOJ)</strong></p> <p> DOJ trial attorneys and immigration judges should conduct removal (deportation proceedings) only for individuals in federal custody at least for a short period of time. All other cases would likely be suspended during the shutdown. Similarly, furloughed would be attorneys and staff within the Immigrant and Employee Rights section of DOJ charged with accepting and investigating charges of workplace discrimination arising under the immigration laws.</p> http://www.seyfarth.com:80/publications/WC042417 Eighth Circuit Decides That Arbitration Agreements Cover ADEA Collective Actions http://www.seyfarth.com:80/publications/WC042417 Mon, 24 Apr 2017 00:00:00 -0400 <p> After thirty-three former employees who signed release agreements requiring individual arbitration of ADEA claims collectively sued their employer for age discrimination, the employer moved to compel individual arbitration. The District Court denied the company&rsquo;s motion. The U.S. Court of Appeals for the Eighth Circuit reversed because it found that the ADEA did not contain a &ldquo;contrary congressional command&rdquo; overriding the FAA&rsquo;s mandate to enforce arbitration agreements.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/eighth-circuit-decides-that-arbitration-agreements-cover-adea-collective-actions/">click here</a></p> http://www.seyfarth.com:80/publications/MA042117-LE If Pain, Yes Gain—Part XXVIII: Cook County Releases Draft Sick Leave Regulations http://www.seyfarth.com:80/publications/MA042117-LE Fri, 21 Apr 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>As the Cook County Earned Sick Leave Ordinance&rsquo;s July 1, 2017 effective date nears, the County has released draft regulations seeking to clarify and expand certain aspects of the Ordinance, including the complex year-end carryover and annual usage cap requirements.&nbsp; </em></p> <p> On July 1, 2017, two municipal Illinois paid sick leave ordinances&mdash;one in <a href="http://www.seyfarth.com/publications/MA062116-LE">Chicago, IL</a> and the other in <a href="http://www.seyfarth.com/publications/MA102016-LE">Cook County, IL</a>&mdash;are scheduled to go into effect.&nbsp; The two ordinances are largely similar in their substantive requirements, although there are a few technical differences.&nbsp; &nbsp;</p> <p> The city of Chicago has not yet published administrative guidance on its sick leave ordinance.&nbsp; However, on April 10, 2017, the Cook County Commission on Human Rights (the &ldquo;Commission&rdquo;) released draft regulations on the Cook County Earned Sick Leave Ordinance (&ldquo;CC ESLO&rdquo;).&nbsp; The Commission notes that the regulations are subject to revision based on public comment and that it will publish final regulations by June 1, 2017.&nbsp; We, of course, will keep you posted on these future developments.&nbsp;</p> <p> In the meantime, here are some of the highlights of the Cook County draft sick leave regulations:</p> <ul> <li> <strong>Benefit Year:</strong> The draft regulations state that the paid sick leave benefit year can be a calendar year, fiscal year, or any other established 12-month period.&nbsp; However, the draft regulations also define the term &ldquo;accrual period&rdquo; as being the 12 month period in which an employee accrues paid sick leave.&nbsp; This &ldquo;accrual period&rdquo; can be based on employees&rsquo; anniversary dates or the employer&rsquo;s benefit year.&nbsp; However and notably, in order for employers to unify employees&rsquo; &ldquo;accrual period&rdquo; with the company&rsquo;s &ldquo;benefit year,&rdquo; certain criteria must be met.</li> <li> <strong>Covered Employees:</strong> The draft regulations state that an individual will be covered under the CC ESLO if he/she satisfies several standards, including, but not limited to, working for a covered employer for at least two hours in any two week period while physically located in the geographic boundaries of Cook County.&nbsp; Importantly, when discussing the &ldquo;location of work&rdquo; component, the draft regulations note that the &ldquo;Commission will <u>not</u> consider work that an individual performs within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo; (emphasis added).&nbsp; This is significant given that several municipalities within Cook County have recently opted out of compliance with the Ordinance.</li> <li> <strong>Covered Employers:</strong> The draft regulations reiterate that to be a covered employer under the CC ESLO the employer must, among other things, have at least one place of business within Cook County.&nbsp; The draft regulations discuss this &ldquo;place of business&rdquo; requirement in detail and note that a residence may be a place of business.&nbsp; Notably, and as with its analysis of covered employees, the draft regulations state that the &ldquo;Commission will not consider an employer&rsquo;s place or places of business that are within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo;</li> <li> <strong>Where Employees Can Use Earned Sick Leave:</strong> The draft regulations state that once an employee is entitled to use earned paid sick leave (the CC ESLO allows employers to set a 180-day usage waiting period for new hires), the employee can use that sick leave &ldquo;in <u>any</u> location (i.e., within or outside of Cook County).&rdquo; (emphasis added).&nbsp; This would be a significant departure from many, if not all, existing paid sick leave laws, which only require employers to permit employees to use accrued paid sick leave when they are working within the specific paid sick leave jurisdiction.</li> <li> <strong>When Employees Accrue Earned Sick Leave:</strong> By comparison to the above &ldquo;location of use&rdquo; standard, the draft regulations state that employers are not required to provide employees with paid sick leave for work performed outside of Cook County (or within the geographic boundaries of a municipality that has lawfully preempted the Ordinance).</li> <li> <strong>Accrual, Usage and Carryover Caps:</strong>&nbsp; The CC ESLO provides that employers must allow employees to accrue up to at least 40 hours of paid sick leave in a given year at a rate of at least one hour for every 40 hours worked, and that employees must be allowed to carry over to the following 12-month accrual period half of their unused, accrued sick leave, up to a maximum of 20 hours.&nbsp; The CC ESLO also imposes a 40-hour annual usage cap on sick leave.&nbsp; Where an employer is subject to the Family Medical Leave Act (&ldquo;FMLA&rdquo;), employees are allowed to carry over up to 40 hours of additional unused, accrued sick leave, and then use an additional 20 hours of sick leave in the subsequent year (i.e., 60 total hours).&nbsp; There is language in the CC ESLO stating that certain amounts of this time must be used exclusively for FMLA-eligible purposes. <ul> <li> <u>Newly Defined Terms</u>: The draft regulations define new terms titled (a) &ldquo;FMLA-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any purpose under the FMLA, (b) &ldquo;Ordinance-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any reason under the CC ESLO, and (c) &ldquo;Unrestricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used both for reasons under the FMLA or the CC ESLO.&nbsp; While helpful, the latter term is <strong>not</strong> referred to in the draft regulations outside of the initial definition section.</li> <li> <u>Frontloading Sick Leave and Impact on Accrual</u>: The draft regulations expressly state that employers can choose to frontload earned sick leave to employees, as opposed to using an accrual system.&nbsp; According to the draft regulations, employers will be deemed in compliance if they award each employee the maximum amount of paid sick leave the employee would have accrued during the benefit year.&nbsp; Any Covered Employee who will work at least 1,600 hours during the year would have to be&nbsp; awarded 40 hours of Earned Sick Leave under this methodology.&nbsp; Notably, the draft regulations state that employers who use a frontloading system will need to meet certain criteria in order to use a single, standardized 12-month accrual period for all employees.</li> <li> <u>Year-End Carryover</u>: The draft regulations state that FMLA covered employers should calculate the amount of sick leave that must be carried over at year-end by following two steps.&nbsp; First, the employer must permit an employee to carry over half of his or her total unused accrued sick leave to the next accrual period, up to a maximum of 20 hours.&nbsp; This 20 hours is &ldquo;Ordinance- Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Second, if an employee has additional accrued, unused sick leave, the employer must permit up to 40 additional hours to carryover.&nbsp; This additional time, up to 40 hours, is &ldquo;FMLA-Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Despite discussing these separate buckets of paid leave for purposes of year-end carryover, the draft regulations note that during a current accrual period, FMLA covered employers are <strong>not</strong> required to track an employee&rsquo;s use of sick leave as either Ordinance-Restricted or FMLA-Restricted as long as the time can be used for all reasons under the FMLA and CC ESLO.</li> <li> <u>Frontloading Sick Leave and Impact on Year-End Carryover</u>: The draft regulations state that employers can avoid conducting individualized year-end carryover calculations if each employee receives a frontloaded lump grant of sick leave at the start of each accrual period that is equal to the maximum amount the employee would have carried over.&nbsp; The draft regulations note that FMLA covered employers that award at least 20 hours of Ordinance-Restricted Earned Sick Leave and at least 40 hours of FMLA-Restricted Earned Sick Leave at the start of each accrual period typically do not need to carry over unused, accrued sick leave. <ul> <li> <u>Note</u>: While the draft regulations do not expressly address whether an employer alternatively can provide a 60-hour annual lump grant of sick leave that can be used for reasons under both the FMLA or CC ESLO, they do state that the draft regulations should not be construed as prohibiting an