Seyfarth Shaw http://www.seyfarth.com News for website http://www.seyfarth.com en-us email Copyright 2011 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/OMM062317-LE2 The Future of Dodd- Frank: Where is it Going? http://www.seyfarth.com:80/publications/OMM062317-LE2 Fri, 23 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 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/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/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/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/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 2017, 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/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/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/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/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/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/publications/presidential-pulse Presidential Pulse http://www.seyfarth.com:80/publications/presidential-pulse Mon, 19 Jun 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;">Trump Administration Implements Extreme Vetting Measures for Certain Visa Applicants Requiring Detailed Travel History and Social Media Information</strong></h2> <div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>One Minute Memo - June 16, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;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.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/publications/OMM061617-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;">Event Recap! Seyfarth&rsquo;s First 100 &amp; Beyond: Strategy &amp; Planning Summit for Businesses</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Chicago Office Event - June 15, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Our leading policy team, including a former Director of U.S. Citizenship &amp; Immigration Services and a former Assistant U.S. Attorney, along with other prominent thought leaders, hosted a full-day Summit in review of the &ldquo;change management&rdquo; period of President Donald Trump&rsquo;s Administration and in preparation for the evolving legal and business landscape to come. We have provided links to the recordings and Seyfarth&rsquo;s materials presented as the program for your convenience, as well as supplementary resources.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.seyfarth.com/dir_docs/publications/Seyfarth_Presidential_Pulse_Strategy_Planning_Summit_Materials_May_25.pdf">Access Program Materials &amp; Recordings</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;">Sessions Seeks Repeal of Rohrabacher-Farr</strong></h2> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>The Blunt Truth Blog - June 13, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;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. The Rohrbacher-Farr Amendment (which has been part of appropriations bills since 2014) prohibits the Justice Department from using federal funds to prevent states in which medical marijuana is legal from implementing their own laws that authorize the use, distribution, possession or cultivation of medical marijuana.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.blunttruthlaw.com/2017/06/sessions-seeks-repeal-of-rohrabacher-farr/?utm_source=Seyfarth%20Shaw%20-%20The%20Blunt%20Truth&amp;utm_campaign=12be883973-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-12be883973-72299021">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <hr /> </div> </div> <div style="text-align: left;"> <br /> <strong style="text-align: left; color: rgb(0, 52, 121); font-size: 24px;">DOL Expected to Issue Request for Information on OT Rules</strong></div> <h3 style="text-align: left;"> <span style="color:#ff0000;"><em>Wage &amp; Hour Litigation Blog - June 7, 2017</em></span></h3> <div style="text-align: left;"> <em><strong>Seyfarth Synopsis:</strong></em> 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.</div> <div style="text-align: left;"> &nbsp;</div> <div style="text-align: left;"> <a href="http://www.wagehourlitigation.com/dol-compliancerule-making/request-for-information-on-ot-rules/?utm_source=Seyfarth%20Shaw%20-%20Wage%20%26%20Hour%20Litigation&amp;utm_campaign=0436c28472-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-0436c28472-73179569">Read Full Blog Post</a></div> <div style="text-align: left;"> &nbsp;</div> <hr /> <p style="text-align: left;"> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">The 4th U.S. Circuit Court of Appeals Maintains Nationwide Preliminary Injunction Blocking the Trump Administration&rsquo;s Revised Travel Ban</strong></p> </div> </div> <div> <h3> <span style="color:#ff0000;"><em>One Minute Memo - June 2, 2017</em></span></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em> 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.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/publications/OMM060217-LE">Read Full Alert</a></div> <div> &nbsp;</div> <div> <hr /> <p> <br /> <strong style="color: rgb(0, 52, 121); font-size: 24px;">Midyear Peek: What Has The EEOC Been Up To In FY 2017?</strong></p> </div> <div> <h3> <span style="color:#ff0000;"><em>Workplace Class Action Blog - June 1, 2017</em></span></h3> <div> <em><strong>Seyfarth Synopsis:</strong></em>&nbsp;Reviewing the EEOC&rsquo;s case filings during the first half of the Commission&rsquo;s fiscal year may already reveal some surprising trends, most notably a sharp uptick in the total number of case filings &ndash; up 75% from the same point last year &ndash; and a corresponding increase in systemic cases.</div> <div> &nbsp;</div> <div> <a href="http://www.workplaceclassaction.com/2017/06/midyear-peek-what-has-the-eeoc-been-up-to-in-fy-2017/?utm_source=Seyfarth%20Shaw%20-%20Workplace%20Class%20Action%20Blog&amp;utm_campaign=a6498bf035-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-a6498bf035-73179573">Read Full Blog Post</a></div> <div> &nbsp;</div> <h2 style="text-align: left;"> &nbsp;</h2> <div> <div style="text-align: left;"> &nbsp;</div> </div> </div> </div> </td> </tr> </tbody> </table> </td> </tr> </tbody> </table> <p> &nbsp;</p> <h2> &nbsp;</h2> 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/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/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/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. Teva: 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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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/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 Thomson Reuters Practical Law The Journal, "Internal Investigations 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 Thomson Reuters Practical Law The Journal 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/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/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/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/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/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/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/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/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 800 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/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/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/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/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/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/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/MA052217-LE If Pain, Yes Gain—Part XXX: Pittsburgh Sick Time Law Barely Hanging on By a Thread After Appellate Court Decision http://www.seyfarth.com:80/publications/MA052217-LE Mon, 22 May 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>:</em> <em>On May 17, 2017, a panel of judges on the Commonwealth Court of Pennsylvania struck a second blow to Pittsburgh&rsquo;s Paid Sick Days Act, leaving the Act&rsquo;s future in serious jeopardy</em>. &nbsp;</p> <p> The Commonwealth Court of Pennsylvania&rsquo;s May 17, 2017 <a href="https://dlbjbjzgnk95t.cloudfront.net/0925000/925113/79cd16_5-17-17.pdf">decision</a> on the Pittsburgh Paid Sick Days Act (&ldquo;PSDA&rdquo;)<sup>1</sup>&nbsp;affirmed the Allegheny County Court of Common Pleas&rsquo; December 21, 2015 <a href="http://www.seyfarth.com/dir_docs/publications/Pitt_PSLL_Dec2015.pdf">order</a> invalidating the law which would have required employers to provide paid sick leave to all eligible Pittsburgh employees.&nbsp;</p> <p> Pittsburgh is a &ldquo;home rule charter&rdquo; municipality, meaning its authority to regulate businesses is limited unless expressly provided by statewide statute.<sup>2</sup>&nbsp;The City introduced multiple arguments to overcome its home rule charter status.&nbsp; For instance, the City argued that the PSDA falls within its authority to enact public health regulations pertaining to &ldquo;building codes.&rdquo; The Commonwealth Court rejected this argument as out of context, namely, that the City failed to establish a connection between the PSDA and building codes. &nbsp;</p> <p> The City next argued it has the right to promulgate regulations for the general health of its citizens per the state&rsquo;s Second Class City Code.<sup>3</sup>&nbsp;Once again, the Commonwealth Court disagreed.&nbsp; Specifically, the court noted that the PSDA&rsquo;s imposition of &ldquo;numerous affirmative duties&rdquo; on employers was not expressly authorized by statute, and therefore ran afoul of Pennsylvania&rsquo;s Home Rule Charter Law. &nbsp;</p> <p> Finally, the Commonwealth Court also struck down the Service Employees International Union&rsquo;s argument that public policy justifies the PSDA.&nbsp; The court explained that &ldquo;neither the wisdom nor the purpose of the [PSDA] is material&rdquo; to the issue of whether the City had authority to adopt the PSDA.&nbsp; Due to the Home Rule Charter Law and lack of a state statute explicitly authorizing Pittsburgh to enact the PSDA, the Commonwealth Court found that the City lacks any such authority.</p> <p> While not yet filed, it is likely that the City will appeal the Commonwealth Court&rsquo;s decision to the Pennsylvania Supreme Court. &nbsp;If overturned, the PSDA would require employers with 15 or more employees to provide each eligible employee with one hour of paid sick time for every 35 hours the employee works in Pittsburgh, up to 40 hours (i.e., five days) of paid sick leave per year. &nbsp;Employers with fewer than 15 employees would be required to provide their employees with one hour of sick leave for every 35 hours worked in Pittsburgh, up to 24 hours (i.e., three days) of <u>unpaid</u> sick leave per year. &nbsp;After the law&rsquo;s first anniversary, employers with fewer than 15 employees would be required to provide <u>paid</u> sick leave at the same accrual rate and up to the same 24-hour cap as set forth during the law&rsquo;s inaugural year.&nbsp; For more information on the PSDA, see our previous postings <a href="http://www.seyfarth.com/publications/OMM010516-LE">here</a> and <a href="http://www.seyfarth.com/publications/MA080515-LE">here</a>.</p> <p> While this decision does not affect <a href="http://www.seyfarth.com/publications/MA021715-LE">Philadelphia&rsquo;s paid sick leave ordinance</a>, a similar challenge may await the City of Brotherly Love if Pennsylvania courts ultimately put the PSDA to bed.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for guidance on the PSDA and complying with sick leave requirements generally. To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> <p> &nbsp;</p> <div> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>The PSDA was enacted in August 2015 and was originally scheduled to go into effect on January 11, 2016.</p> </div> <div id="ftn2"> <p> <sup>2</sup>Section 2962(f) of the Home Rule Charter Law states, in relevant part, that &ldquo;[a] municipality which adopts a home rule charter shall not determine duties, responsibilities or requirements placed upon businesses, occupations and employers,&hellip;except as expressly provided by statutes which are applicable in every part of this Commonwealth or which are applicable to all municipalities or to a class or classes of municipalities.&rdquo;</p> </div> <div id="ftn3"> <p> <sup>3</sup><em>See</em> Act of March 7, 1901, P.L. 20, as amended, 53 P.S. &sect;&sect;23101-23175</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/TS052217 Seyfarth Attorneys to Speak at the Management Association’s 2017 Employment Law Conference http://www.seyfarth.com:80/publications/TS052217 Mon, 22 May 2017 00:00:00 -0400 <p> Join Seyfarth Shaw&rsquo;s Trade Secrets Co-Chair Michael D. Wexler and Partner J. Scott Humphrey at the Management Association&rsquo;s 2017 Employment Law Conference on Thursday, September 28, 2017. Mr. Wexler and Mr. Humphrey will discuss significant developments in Illinois and Congress, such as the Defend Trade Secrets Act, that have changed the landscape of trade secret and restrictive covenant enforcement.&nbsp;</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/05/articles/trade-secrets/seyfarth-attorneys-to-speak-at-the-management-associations-2017-employment-law-conference/">click here</a></p> http://www.seyfarth.com:80/publications/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/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/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/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/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/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/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/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/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/publications/ERISA051517 Grounding Deferential Review in California – No Preemption for Discretionary Clause Ban http://www.seyfarth.com:80/publications/ERISA051517 Mon, 15 May 2017 00:00:00 -0400 <p> In a decision with wide ranging implications, the Ninth Circuit has ruled that a discretionary clause in an employer drafted plan document is subject to, and invalidated by, California&rsquo;s insurance regulation banning discretionary clauses in insured plans.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/05/15/grounding-deferential-review-in-california-no-preemption-for-discretionary-clause-ban/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=313268567f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-313268567f-73050525">click here</a></p> http://www.seyfarth.com:80/publications/CDL051517 WannaCry Ransomware Attack: What Happened and How to Address http://www.seyfarth.com:80/publications/CDL051517 Mon, 15 May 2017 00:00:00 -0400 <p> Recently, a widespread global ransomware attack has struck hospitals, communication, and other types of companies and government offices around the world, seizing control of affected computers until the victims pay a ransom. &nbsp;This widespread ransomware campaign has affected various organizations with reports of tens of thousands of infections in as many as 99 countries, including the United States, United Kingdom, Spain, Russia, Taiwan, France, and Japan. &nbsp;The software can run in as many as 27 different languages. &nbsp;The latest version of this ransomware variant, known as <em>WannaCry, WCry</em>, or <em>Wanna Decryptor</em>, was discovered the morning of May 12, 2017, by an independent security researcher and has spread rapidly.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/05/wannacry-ransomware-attack-happened-address/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=e8e273d94a-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-e8e273d94a-72857025">click here</a></p> http://www.seyfarth.com:80/publications/EA051517-France Macron: The Winding Road to Labour Reforms http://www.seyfarth.com:80/publications/EA051517-France Mon, 15 May 2017 00:00:00 -0400 <div> On 14 May 2017, French President-elect Emmanuel Macron with a strong 66% majority officially started his five year mandate. His first duty was to appoint a Prime Minister, Edouard Philippe, a Conservative, who will now form a new government. &nbsp;Shortly thereafter, however, the Parliamentary elections of 11 and 18 June 2017 may lead to a government reshuffle to reflect the new composition of Parliament.</div> <div> &nbsp;</div> <div> Employment and Labour is one of the three key focus areas for President Macron. He has pledged to simplify French laws, reform the labour market, and show France is open to business. Macron widely communicated his ambitious programme during his campaign. As he prepares to move into the Presidential Palace, what are the potential reforms that multinationals employing staff in France or companies considering opening for business in France should expect? The overview that follows is based on Macron&rsquo;s official programme, to which we added our comments for background purposes.</div> <div> &nbsp;</div> <div> <strong>Employment reforms - Mixed messages to employers and employees</strong></div> <div> &nbsp;</div> <div> Macron has vowed to make French employment laws more business-friendly, and this is clearly apparent from the following proposals:</div> <div> &nbsp;</div> <ul> <li> Capping damages granted to employees for unfair dismissal claims. By introducing an upper and a lower limit for such damages, the cost of redundancies will be more predictable. Currently, damages are uncapped, and the published guidelines can go up to 24 months&rsquo; salary on top of notice period and statutory indemnity.</li> <li> Cutting payroll taxes on overtime. A similar measure on voluntary overtime was put in place by Conservative President Sarkozy in 2007 under the slogan &ldquo;Work More to Earn More&rdquo;, but removed by Fran&ccedil;ois Hollande as soon as he came into power. In practice, given the cost of payroll taxes, employees&rsquo; net salary was not proportional to the number of hours worked. The reform would hopefully aim to correct this flaw and encourage productivity.&nbsp;</li> <li> Enabling employers to depart from the mandatory minimum protection under the applicable national collective agreement by signing a collective agreement at company or workplace level in areas such as working time, minimum wage, and overtime &nbsp;rates. This was already introduced by the 2016 Macron Law, however, employers still need to negotiate with employee representatives or unions, not just introduce new policies.</li> <li> Introduce a two-strike rule so employers who, on a single occasion, slip up on tax filings or payments are just reminded, not penalised.</li> </ul> <div> &nbsp;</div> <div> There are, however, a number of reforms that will be less pleasing to employers, and are less obvious as to how they will make the French labour market more competitive, such as:</div> <div> &nbsp;</div> <ul> <li> Capping the duration of inbound international assignments to France to one year. &nbsp;Thereafter, employees will need to be on a local French contract. Macron also intends to renegotiate the EU Posted Workers Directive for France to reduce the number of employees working in France but remaining on their home payroll, and not being fully subject to French labour laws;&nbsp;</li> <li> Taxing employers who frequently use temporary contracts instead of permanent employment contracts through an additional levy at company level;</li> <li> Publishing on a &ldquo;shame list&rdquo; the name of companies who do not comply with equal pay. This will force companies to focus more actively on their data, and may in the short term increase salary costs, red tape and lead to a negative public image, but if properly managed could be positive long term;&nbsp;</li> <li> Reducing payroll taxes for employees on minimum wage (currently 1480 Euros per month), and providing for the payment of a 13th month bonus;&nbsp;</li> <li> Increasing employees&rsquo; net salary by lowering the amount of employees&rsquo; contributions, e.g. an employee currently earning a monthly salary of 2,200 Euros will earn an additional 500 Euros net a year. This measure will not reduce employment costs in France for employers. Typically total payroll taxes in France amount to around 70% of gross salary before income tax (compared with around 20% in the UK for a similar level of pay);&nbsp;</li> <li> Removing the tax credit for research programmes in France, which have in the past proved popular in the Pharmaceutical and Tech industries. This reform is to balance the books with the reduced taxes on low salaries;&nbsp;</li> <li> Extending unemployment benefits to all &lsquo;workers&rsquo; such as independent contractors, entrepreneurs or employees who resign from their job. Such measures, which are likely to be very popular, may impact employee retention and ultimately push up the cost of employment for employers, though Macron also announced his intention to restrict both the duration and the conditions under which unemployment benefits are paid out.</li> </ul> <div> &nbsp;</div> <div> <strong>What to expect next?</strong></div> <div> &nbsp;</div> <div> Employers should brace themselves for changes in the employment and labour law arena. However, at this stage nothing is set in stone, and the reforms may be slow and more modest than as described above. &nbsp;France does not have the equivalent of a US &ldquo;Presidential Decree&rdquo;, so Macron and his government will need to get the Parliament&rsquo;s buy in. The famous &ldquo;Article 49.3&rdquo; process, which enables a government to force its programme through Parliament without lengthy debates, will be a valuable weapon; however, when triggered in the absence of a majority vote, the government would need to be dissolved, so it is a double-edged &nbsp;sword. Last but not least, two additional considerations are of significant importance in France: &ldquo;the power of the street&rdquo;, i.e. strikes and demonstrations coordinated by unions that can bring France to a halt for weeks or months; and the Constitutional Council, which can annul any law deemed unconstitutional. Macron has already experienced the annulment of his &ldquo;Macron law&rdquo; on 23 articles including the capping of dismissal damages in August 2015.</div> http://www.seyfarth.com:80/publications/WLS051517 The trend is your friend: why enterprise bargaining is down http://www.seyfarth.com:80/publications/WLS051517 Mon, 15 May 2017 00:00:00 -0400 <p> Enterprise bargaining is down. That&rsquo;s the big call out from the Department of Employment Report on Enterprise Bargaining February 2017. Comparing private sector agreement numbers from 2014 there is a reduction by a third overall, with close to 50% less in retail and construction and around 20% in most sectors.</p> <p> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/05/why-enterprise-bargaining-is-down/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=070dba7ac0-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-070dba7ac0-73050585">click here</a></p> http://www.seyfarth.com:80/news/grossenbacher-quoted-SHRM-051517 Karla Grossenbacher quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/grossenbacher-quoted-SHRM-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Karla Grossenbacher was quoted in &quot;Reviewing Employee E-Mails: When You Should, When You Shouldn&#39;t,&quot; a May 15 story from <em>SHRM </em>on whether an employer should view the contents of personal e-mail accounts on company-owned computers. Grossenbacher said that state laws addressing invasion of privacy may forbid an employer from intruding into the private e-mails of an employee if that intrusion would be &quot;highly offensive to a reasonable person.&quot;</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/reviewing-employee-e-mails-when-you-should-when-you-shouldnt.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/maatman-quoted-law360-051517 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maatman-quoted-law360-051517 Mon, 15 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;3 Employer Takeaways From The High Court&#39;s FAA Ruling,&quot; a May 15 story from <em>Law360</em> on the U.S. Supreme Court&rsquo;s decision affirming that the Federal Arbitration Act blocks states from making arbitration agreements harder to enforce than other contracts. Maatman said that it sure looks like they&rsquo;re talking in terms of a very pro-arbitration stance, so his sense is this may well foreshadow what&rsquo;s going to occur in the late fall on that trilogy of cases.</p> http://www.seyfarth.com:80/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/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/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/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/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Robert Milligan and Joshua Salinas author an article in <i>Intellectual Property Magazine</i> http://www.seyfarth.com:80/publications/milligan-and-salinas-author-article-intellectual-property-magazine-050417 Thu, 04 May 2017 00:00:00 -0400 <p> Robert Milligan and Joshua Salinas authored &quot;The key to protecting trade secrets,&quot; an article on May 4 in <em>Intellectual Property Magazine</em>. The authors explore why companies must be vigilant and seek advice from counsel to ensure that their trade secret protection agreements remain current with new and changing legal developments.</p> <p> <a href="http://www.intellectualpropertymagazine.com/strategy/the-key-to-protecting-trade-secrets-123806.htm?origin=internalSearch">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM050417-LE Ninth Circuit Holds that Prior Salary Alone May Justify Pay Differential in Equal Pay Act Cases http://www.seyfarth.com:80/publications/OMM050417-LE Thu, 04 May 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong> On April 27, 2017, the Ninth Circuit held that using prior salary alone may support differences in compensation under the Equal Pay Act as a &ldquo;factor other than sex&rdquo; if using prior salary was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy.&rdquo;&nbsp; </em></p> <p> The debate over the lawfulness and utility of using prior salary as a guidepost in setting starting compensation for new employees continues.&nbsp; Last Thursday, the U.S. Court of Appeals for the Ninth Circuit held that using prior salary to set starting pay for new hires may support differences in compensation if its use was &ldquo;reasonable&rdquo; and &ldquo;effectuated a business policy&rdquo; under the federal Equal Pay Act.&nbsp; While using prior salary as a factor for purposes of setting pay may serve legitimate and non-discriminatory business objectives, given the <a href="http://www.seyfarth.com/publications/OMM042517-LE">impending</a> <a href="http://www.seyfarth.com/publications/OMM080116-LE2">city and state law</a> <a href="http://www.seyfarth.com/publications/OMM040617-LE2">bans</a> that will forbid or limit an employer&rsquo;s inquiry into prior salary, the <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">California Fair Pay Act prohibition on using prior salary as the sole justification for pay differences</a>, and split within the federal Circuits on the use of prior salary, we recommend that employers who wish to use prior salary for setting initial compensation carefully consider the full legal landscape.&nbsp;</p> <p> <strong>The Facts Underlying the Ninth Circuit Case</strong></p> <p> The case, <em>Rizo v. Yoviny</em><sup>1</sup><em>,</em>&nbsp;was brought by Aileen Rizo who worked as a math consultant for the Fresno County public schools. The County classified management-level employees in salary levels that contain progressive pay steps.&nbsp; New math consultants were placed into Level 1, which contained ten salary steps with compensation&nbsp; ranging from $62,133 to $81,461. To determine the starting salary for a new consultant, the County considered the candidates&rsquo; most recent prior salary and added 5% to assign the starting salary step within Level 1.</p> <p> Rizo previously worked as a middle school math teacher in Arizona. Consistent with the County&rsquo;s practices, Rizo was to receive a 5% increase over her prior salary.&nbsp; However, doing so would have resulted in a starting salary that was lower than the minimum salary level for new math consultants.&nbsp; The County addressed the issue by setting Rizo&rsquo;s starting salary at the minimum of the Level 1-Step 1 salary range, along with a slight increase to account for her advanced education.</p> <p> Several years later, Rizo learned that at least one of her male colleague&rsquo;s starting salary was set at the &nbsp;Level 1-Step 9 salary range and that the other math consultants, all of whom were male, all earned more than she was paid.&nbsp; After raising internal complaints regarding the disparity between her compensation and that of her male counterparts, Rizo filed suit raising allegations under the federal Equal Pay Act, Title VII, and the California Fair Employment and Housing Act<sup>2</sup>.</p> <p> <strong>The Trial Court Decision</strong></p> <p> The County moved for summary judgment, arguing that although Rizo earned less than her male colleagues, the pay differences were not based on her sex, but were instead based on her prior salary --a &ldquo;factor other than sex.&rdquo; The district court disagreed, holding that, under the Equal Pay Act, prior salary alone can never qualify as a factor other than sex. The district court reasoned that basing one&rsquo;s starting salary exclusively on prior salary carried too great a risk of perpetuating gender-based wage disparities.</p> <p> <strong>The Court of Appeals&rsquo; Decision</strong></p> <p> The Ninth Circuit Court of Appeals reversed and relied on its prior decision in <em>Kouba v. Allstate Insurance Co.</em><sup>3</sup>, which held that an employer can maintain a pay differential based on prior salary (or any other gender-neutral factor) if it shows that the factor effectuates some business policy and if the employer uses the factor &ldquo;reasonably in light of the employer&rsquo;s stated purpose as well as its other practices.&rdquo;&nbsp; The Ninth Circuit held similar reasoning applied to Title VII claims as well.</p> <p> The Ninth Circuit rejected the district court&rsquo;s reasoning that, while <em>Kouba </em>permitted employers to rely on prior salary under certain circumstances, it did not go as far as permitting prior salary <em>alone </em>as a &ldquo;factor other than sex&rdquo; that could support an affirmative defense under the Equal Pay Act.&nbsp; In rejecting the district court&rsquo;s reasoning, the Ninth Circuit concluded that <em>Kouba </em>squarely addressed the issue and concluded that &ldquo;prior salary alone&rdquo; could justify pay disparities if prior salary was used reasonably and served some business policy.&nbsp;</p> <p> In response to Rizo&rsquo;s allegations, the County offered four business reasons for using prior salary to set pay: (1) the criterion was objective; (2) the policy encouraged candidates to leave their prior positions for a 5% salary increase; (3) the policy prevented favoritism and ensured consistency in application; and (4) the policy was a judicious use of taxpayer dollars. In light of its prior decision in <em>Kouba</em>, the Ninth Circuit vacated and remanded the matter to the district court to consider whether the business justifications proffered by the County were reasonable and served their stated purpose.&nbsp;</p> <p> <strong>Why is the <em>Rizo </em>Decision Important?</strong></p> <p> The Ninth Circuit&rsquo;s decision in <em>Rizo</em> is certainly welcome news for many employers who often turn to prior salary as a picture of the market for a particular role and as a proxy for an applicant&rsquo;s skills, experience, and performance in their prior role.&nbsp; Unfortunately, however, employers must navigate a patchwork of federal, state, and local laws that touch on the use of prior salary and the holding is not a blanket endorsement of using prior salary to justify pay differences.&nbsp; Bottom line: proceed with caution.</p> <p> <em>State and Local Law Considerations</em></p> <p> The <em>Rizo</em> decision comes in the middle of a recent wave of state laws and city ordinances aimed at prohibiting employers from even inquiring about wage history during the application and salary negotiation process so employers should be mindful of these potentially conflicting state laws and ordinances.&nbsp;</p> <p> For instance, there are state and city ordinances banning the use of prior history in setting starting wages in <a href="http://www.seyfarth.com/publications/OMM042517-LE">Philadelphia</a>, <a href="http://www.seyfarth.com/publications/OMM040617-LE2">New York City</a>, <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Massachusetts</a>&nbsp;and&nbsp;Puerto Rico that will soon take effect, and similar bans are under consideration <a href="http://www.seyfarth.com/dir_docs/publications/PE_01262017.pdf">in many other jurisdictions</a>, including <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">San Francisco</a>.&nbsp;</p> <p> Also, the Ninth Circuit&rsquo;s decision in <em>Rizo</em>, is squarely at odds with the California Fair Pay Act, <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog102716(1).pdf">which expressly prohibits employers from justifying pay differences based solely on prior salary</a>.&nbsp;</p> <p> <em>Federal Law Considerations</em></p> <p> There are also federal law considerations.</p> <p> First, the <em>Rizo c</em>ourt made clear that there is not a bright-line rule that allows employers to rely on prior salary in setting starting wages.&nbsp; The burden will be on the employer to persuade the fact finder that prior salary information was (1) used reasonably, and (2) serves a business purpose.&nbsp; Accordingly, employers should clearly define the business reason why they wish to rely on prior salary information and ensure that it is being used reasonably to set compensation.</p> <p> Employers should be aware that there is a federal Circuit court split on the use of prior salary. &nbsp;The Tenth and Eleventh Circuits have held that the Equal Pay Act precludes employers from relying solely on prior salary, whereas others, like the Seventh and Eighth Circuits, have ruled that such reliance does not by itself violate the Equal Pay Act<sup>4</sup>.</p> <p> <strong>What Does this Mean for Employers?</strong></p> <p> Careful evaluation of your policies and practices around the use of prior salary is encouraged.&nbsp; Given the maze of federal, state and local laws that govern the use of wage history, employers should evaluate the laws that apply to their operations to ensure they are not unwittingly running afoul of these potentially conflicting obligations.&nbsp; The state and city ordinances may require modification of your employment applications and background screening materials.&nbsp;</p> <p> The <em>Rizo</em> decision and the looming salary bans make it more important than ever for employers to ensure they have a clear compensation philosophy, a defined compensation structure, and a method of making equitable starting salary decisions.&nbsp; Once employers have the structure in place, ensuring internal equity is much easier and can be pressure tested with proactive pay equity audits undertaken with legal counsel.</p> <p> Seyfarth Shaw is tracking this emerging area of law closely.&nbsp; We hope you will join Seyfarth&rsquo;s Pay Equity and Workplace Counseling &amp; Solutions Groups for a joint Webinar on May 9th to discuss this litigation and the wave of wage history bans.&nbsp; You can register for <em>The Next Pay Equity Frontier: Salary History Bans </em>webinar <a href="http://www.seyfarth.com/events/Webinar-051917LE">here</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <sup>1</sup>No. 16-15372, 2017 WL 1505068 at *1 (9th Cir. April 27, 2017)</p> <p> <sup>2</sup>The Ninth Circuit panel explained that they limited their discussion to Rizo&rsquo;s Equal Pay Act claim because Title VII claims alleging that a plaintiff has been denied equal pay for substantially equal work are adjudicated according to Equal Pay Act standards.&nbsp; <em>See</em> <em>Id.</em> at n. 2.</p> </div> <div id="ftn3"> <p> <sup>3</sup>691 F.2d 873 (9th Cir. 1982)</p> </div> <div id="ftn4"> <p> <sup>4</sup><em>Cf. Riser v. QEP Energy, </em>776 F.3d 1191, 1199 (10th Cir. 2015), <em>quoting Angove v. Williams-Sonoma, Inc</em>., 70 F. App&rsquo;x 500, 508 (10th Cir.2003) (unpublished) (holding that the Equal Pay Act &ldquo;precludes an employer from relying solely upon a prior salary to justify pay disparity.&rdquo;) and <em>Irby v. Bittick</em>, 44 F.3d 949 (11th Cir. 1995), quoting <em>Glenn</em> <em>v. General Motors Corp</em>., 841 F.2d 1567, 1571 &amp; n. 9; (&ldquo;We have consistently held that &lsquo;prior salary alone cannot justify pay disparity&rsquo; under the EPA.&rdquo;)<em> with Wernsing v. Department of Human Servs, </em>427 F.3d 466, 471 (7th Cir. 2005) (holding that relying on differences in prior salary, absent any evidence of discrimination, is permitted) and <em>Taylor v. White , </em>321 F.3d 710, 720 (8th Cir. 2003) (&ldquo;we believe a case-by case analysis of reliance on prior salary or salary retention policies with careful attention to alleged gender-based practices preserves the business freedoms Congress intended to protect when it adopted the catch-all &ldquo;factor other than sex&rdquo; affirmative defense.&rdquo;)</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/WC050317 Dueling Fifth Circuit Panel Deadlocks, No Rehearing For Bass Pro In “Big Fish” EEOC Case http://www.seyfarth.com:80/publications/WC050317 Wed, 03 May 2017 00:00:00 -0400 <p> After a Fifth Circuit decision affirming a ruling by a U.S. District Court in Texas allowed the EEOC to seek compensatory and punitive damages in its high-profile Title VII pattern or practice race discrimination lawsuit against Bass Pro, a deadlocked Fifth Circuit denied Bass Pro&rsquo;s petition for a rehearing en banc. &nbsp;The highly contentious dissenting opinion, which prompted a response from the panel in favor of denying the rehearing, is a must-read for employers regarding judicial views on the damages the EEOC can seek in Title VII pattern or practice of discrimination litigation.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/05/dueling-fifth-circuit-panel-deadlocks-no-rehearing-for-bass-pro-in-big-fish-eeoc-case/">click here</a></p> http://www.seyfarth.com:80/publications/WH050317 Don’t Judge a Conditional Certification Motion by Its Cover http://www.seyfarth.com:80/publications/WH050317 Wed, 03 May 2017 00:00:00 -0400 <p> A New York federal court denied a motion for conditional certification of a nationwide collective action against Barnes &amp; Noble. The ruling highlights that, even though the burden for &ldquo;first stage&rdquo; certification is modest, courts may not approve such motions without evidence that the named plaintiffs are similarly situated to the putative collective action members they wish to represent.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/conditional-certification-defenses/dont-judge-a-conditional-certification-motion-by-its-cover/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=dd12119267-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-dd12119267-73050573">click here</a></p> http://www.seyfarth.com:80/publications/bond-authored-article-intellectual-property-watch-050317 Wayne Bond authored an article in <i>Intellectual Property Watch</i> http://www.seyfarth.com:80/publications/bond-authored-article-intellectual-property-watch-050317 Wed, 03 May 2017 00:00:00 -0400 <p> Wayne Bond authored &quot;Enlisting Government Help To Protect Your Trade Secrets,&quot; an article on May 3 in <em>Intellectual Property Watch</em>. The article discusses how both State Attorneys General and Federal Prosecutors have tools at their disposal that let them bring the full force of the government to a business&rsquo; side when its intellectual property rights are violated.</p> <p> <a href="https://www.ip-watch.org/2017/05/03/enlisting-government-help-protect-trade-secrets/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Seyfarth’s Andrew S. Boutros Authors <i>The ABA Compliance Officer’s Deskbook</i> <br><br><i>A Comprehensive Guidance For Understanding and Managing Risk</i> http://www.seyfarth.com:80/news/seyfarth-andrew-boutros-authors-the-ABA-compliance-officer-deskbook Wed, 03 May 2017 00:00:00 -0400 <div> <strong>Seyfarth Shaw Partner and National Co-Chair of the firm&rsquo;s White Collar, Internal Investigations and False Claims Team, Andrew S. Boutros</strong>, has just published an important compliance text, <strong><em>The ABA Compliance Officer&#39;s Deskbook</em></strong>, written alongside co-authors T. Markus Funk from Perkins Coie and Professor James T. O&rsquo;Reilly.</div> <div> &nbsp;</div> <div> Recognizing that compliance is one of the most crucial functions within the modern-day company, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> is a user-friendly, practical, and real-world focused deskbook written for today&rsquo;s compliance professional. Whether working in a big or small, private or public, established or rapidly-growing organization, the Book&rsquo;s aim is to empower compliance professionals to better understand the regulatory and enforcement landscapes in which they operate. The Book identifies compliance pitfalls and challenges across industries, subject matters, and corporate infrastructures and recommends practical solutions for today&rsquo;s most high-profile, hot-button compliance topics. &nbsp;In doing so, the Book covers the waterfront of topics such as:</div> <div> &nbsp;</div> <ul> <li> The Role of the Compliance Professional in Today&#39;s Organization &nbsp;&nbsp;</li> <li> Labor Exploitation and CSR</li> <li> The Foreign Corrupt Practices Act (&quot;FCPA&quot;) and U.S. Travel Act</li> <li> Dodd-Frank and Sarbanes-Oxley Financial Regulation</li> <li> Health Care</li> <li> Pharmaceutical, Medical, and Food Products</li> <li> Product Safety</li> <li> Environmental Regulation</li> <li> Government Contracts</li> <li> Nonprofit Entities</li> <li> Privacy and Data Security</li> <li> Preserving Legal Privilege</li> <li> Addressing Law Enforcement Activities</li> <li> Immunity Issues in Corporate Compliance</li> <li> Crimes of False Certification</li> <li> International Transactions Compliance: OFAC Sanctions</li> <li> The Corporate Whistleblower</li> <li> Corporate Voluntary Disclosures</li> <li> Department of Justice FCPA Pilot Program for Cooperation</li> <li> Deferred Prosecution Agreements, Non-Prosecution Agreements, and Corporate Integrity Agreements</li> <li> Structuring Compliance Programs to Meet and Exceed Statutory Obligations</li> </ul> <div> &nbsp;</div> <div> Whether a new or seasoned compliance professional, in-house lawyer, outside counsel, regulator, or member of management, <em>The ABA Compliance Officer&rsquo;s Deskbook</em> covers key compliance concepts in a manner that is both thorough and easily-digestible.</div> <div> &nbsp;</div> <div> <strong>Andrew S. Boutros</strong> is the National Co-Chair of Seyfarth Shaw LLP&rsquo;s White Collar, Internal Investigations, and False Claims Team. He is an accomplished trial attorney and litigator, Foreign Corrupt Practices Act (FCPA) pioneer, Lecturer in Law at the University of Chicago Law School, and former law clerk on the Sixth Circuit Court of Appeals. Boutros is active with the American Bar Association, including being a voting Member of the ABA Criminal Justice Section Council and Co-Founder and National Co-Chair of the ABA&rsquo;s Global Anti-Corruption Committee. A former federal financial fraud prosecutor, Boutros successfully prosecuted a variety of high-profile cases, including what are regarded as the nation&rsquo;s largest criminal customs, trade, and antidumping duty fraud cases, which <em>Bloomberg Businessweek</em> also described as &ldquo;the largest food fraud in U.S. history.&rdquo; &nbsp;</div> <div> &nbsp;</div> <div> In addition to being a Member of the American Law Institute, Boutros is the recipient of the ABA&rsquo;s <em>Norm Maleng Minister of Justice Award</em> and the Federal Law Enforcement Officers Association (FLEOA) <em>National Prosecutorial Award</em>. &nbsp;Boutros now represents clients in their most sensitive and important white collar matters; internal investigations, including those arising under the FCPA and other anti-corruption laws; and complex litigations. He also provides strategic counseling and advice to clients in a variety of industries and conducts comprehensive compliance audits, including in the areas of corporate social responsibility, country of origin matters, and supply chain integrity.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://shop.americanbar.org/eBus/Store/ProductDetails.aspx?productId=268758182&amp;term=5090160">Please click here</a> for details on how to order &ldquo;The ABA Compliance Officer&#39;s Deskbook.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80/news/maatman-quoted-law360-050217 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maatman-quoted-law360-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;The Rising Costs Of Tamping Down Class Actions,&quot; a May 2 story from <em>Law360 </em>on how class actions remain a potent weapon against companies in several practice areas, including the securities, employment and consumer protection spaces, where filings continue to be robust despite changes in class action law, according to separate studies. While the number of FLSA filings declined from 8,954 in 2015 to 8,308 in 2016, the 2016 tally is still the second-biggest annual tally for FLSA lawsuits, according to the firm&rsquo;s Workplace Class Action Report. Maatman said that most Fortune 1000 companies do business in New York and California, and the epicenters of workplace class action litigation are the Ninth and Second circuits &mdash; the Northern District of California and the Southern District of New York &mdash; where the case law is more plaintiff friendly than in other circuits.</p> http://www.seyfarth.com:80/news/weiss-interviewed-WGN-Radio-050217 Philippe Weiss interviewed by <i>WGN Radio</i> http://www.seyfarth.com:80/news/weiss-interviewed-WGN-Radio-050217 Tue, 02 May 2017 00:00:00 -0400 <p> Philippe Weiss was interviewed by <em>WGN Radio</em> on May 2 to discuss ways to handle customer cataclysms. You can listen to the interview, &quot;Wintrust Business Lunch 5/2/17: POTUS Tweets, MET Gala &amp; Customer Complaints,&quot; <a href="http://wgnradio.com/2017/05/02/wintrust-business-lunch-5217-potus-tweets-met-gala-customer-complaints/">at minute 22 here</a>.</p> http://www.seyfarth.com:80/publications/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/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/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/WSE042117 Processing Plant Crosses Its Wires — Safety Board Finds Company “Did Not Follow Procedures” http://www.seyfarth.com:80/publications/WSE042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> The CSB found deficiencies in the facility&rsquo;s design and labeling of the chemical loading stations, and failure to follow the company&rsquo;s written chemical unloading procedures.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/chemical-safety/processing-plant-crosses-its-wires/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=62847f6970-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-62847f6970-71407177">click here</a></p> http://www.seyfarth.com:80/publications/IMM042117 Potential Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees http://www.seyfarth.com:80/publications/IMM042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> If Congress fails to pass a funding bill by midnight on Friday, April 28, resulting in a federal government shutdown, it would trigger numerous immigration-related ripple effects on employers, both large and small. The federal government, through its various agencies, plays a key role in authorizing and regulating the employment of foreign citizens in the United States. Employers should be aware of how the federal government shutdown could affect their ability to hire, verify and maintain the status of foreign national employees.</p> <p> To read the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/potential-government-shutdown-immigration-consequences-for-employers-and-their-foreign-national-employees/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=47f9b46b3e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-47f9b46b3e-73050561">click here</a></p> http://www.seyfarth.com:80/publications/MA042117-LE If Pain, Yes Gain—Part XXVIII: Cook County Releases Draft Sick Leave Regulations http://www.seyfarth.com:80/publications/MA042117-LE Fri, 21 Apr 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>As the Cook County Earned Sick Leave Ordinance&rsquo;s July 1, 2017 effective date nears, the County has released draft regulations seeking to clarify and expand certain aspects of the Ordinance, including the complex year-end carryover and annual usage cap requirements.&nbsp; </em></p> <p> On July 1, 2017, two municipal Illinois paid sick leave ordinances&mdash;one in <a href="http://www.seyfarth.com/publications/MA062116-LE">Chicago, IL</a> and the other in <a href="http://www.seyfarth.com/publications/MA102016-LE">Cook County, IL</a>&mdash;are scheduled to go into effect.&nbsp; The two ordinances are largely similar in their substantive requirements, although there are a few technical differences.&nbsp; &nbsp;</p> <p> The city of Chicago has not yet published administrative guidance on its sick leave ordinance.&nbsp; However, on April 10, 2017, the Cook County Commission on Human Rights (the &ldquo;Commission&rdquo;) released draft regulations on the Cook County Earned Sick Leave Ordinance (&ldquo;CC ESLO&rdquo;).&nbsp; The Commission notes that the regulations are subject to revision based on public comment and that it will publish final regulations by June 1, 2017.&nbsp; We, of course, will keep you posted on these future developments.&nbsp;</p> <p> In the meantime, here are some of the highlights of the Cook County draft sick leave regulations:</p> <ul> <li> <strong>Benefit Year:</strong> The draft regulations state that the paid sick leave benefit year can be a calendar year, fiscal year, or any other established 12-month period.&nbsp; However, the draft regulations also define the term &ldquo;accrual period&rdquo; as being the 12 month period in which an employee accrues paid sick leave.&nbsp; This &ldquo;accrual period&rdquo; can be based on employees&rsquo; anniversary dates or the employer&rsquo;s benefit year.&nbsp; However and notably, in order for employers to unify employees&rsquo; &ldquo;accrual period&rdquo; with the company&rsquo;s &ldquo;benefit year,&rdquo; certain criteria must be met.</li> <li> <strong>Covered Employees:</strong> The draft regulations state that an individual will be covered under the CC ESLO if he/she satisfies several standards, including, but not limited to, working for a covered employer for at least two hours in any two week period while physically located in the geographic boundaries of Cook County.&nbsp; Importantly, when discussing the &ldquo;location of work&rdquo; component, the draft regulations note that the &ldquo;Commission will <u>not</u> consider work that an individual performs within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo; (emphasis added).&nbsp; This is significant given that several municipalities within Cook County have recently opted out of compliance with the Ordinance.</li> <li> <strong>Covered Employers:</strong> The draft regulations reiterate that to be a covered employer under the CC ESLO the employer must, among other things, have at least one place of business within Cook County.&nbsp; The draft regulations discuss this &ldquo;place of business&rdquo; requirement in detail and note that a residence may be a place of business.&nbsp; Notably, and as with its analysis of covered employees, the draft regulations state that the &ldquo;Commission will not consider an employer&rsquo;s place or places of business that are within the geographic boundaries of a municipality that has lawfully preempted the Ordinance.&rdquo;</li> <li> <strong>Where Employees Can Use Earned Sick Leave:</strong> The draft regulations state that once an employee is entitled to use earned paid sick leave (the CC ESLO allows employers to set a 180-day usage waiting period for new hires), the employee can use that sick leave &ldquo;in <u>any</u> location (i.e., within or outside of Cook County).&rdquo; (emphasis added).&nbsp; This would be a significant departure from many, if not all, existing paid sick leave laws, which only require employers to permit employees to use accrued paid sick leave when they are working within the specific paid sick leave jurisdiction.</li> <li> <strong>When Employees Accrue Earned Sick Leave:</strong> By comparison to the above &ldquo;location of use&rdquo; standard, the draft regulations state that employers are not required to provide employees with paid sick leave for work performed outside of Cook County (or within the geographic boundaries of a municipality that has lawfully preempted the Ordinance).</li> <li> <strong>Accrual, Usage and Carryover Caps:</strong>&nbsp; The CC ESLO provides that employers must allow employees to accrue up to at least 40 hours of paid sick leave in a given year at a rate of at least one hour for every 40 hours worked, and that employees must be allowed to carry over to the following 12-month accrual period half of their unused, accrued sick leave, up to a maximum of 20 hours.&nbsp; The CC ESLO also imposes a 40-hour annual usage cap on sick leave.&nbsp; Where an employer is subject to the Family Medical Leave Act (&ldquo;FMLA&rdquo;), employees are allowed to carry over up to 40 hours of additional unused, accrued sick leave, and then use an additional 20 hours of sick leave in the subsequent year (i.e., 60 total hours).&nbsp; There is language in the CC ESLO stating that certain amounts of this time must be used exclusively for FMLA-eligible purposes. <ul> <li> <u>Newly Defined Terms</u>: The draft regulations define new terms titled (a) &ldquo;FMLA-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any purpose under the FMLA, (b) &ldquo;Ordinance-Restricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used for any reason under the CC ESLO, and (c) &ldquo;Unrestricted Earned Sick Leave,&rdquo; which refers to paid leave received by an employee that can be used both for reasons under the FMLA or the CC ESLO.&nbsp; While helpful, the latter term is <strong>not</strong> referred to in the draft regulations outside of the initial definition section.</li> <li> <u>Frontloading Sick Leave and Impact on Accrual</u>: The draft regulations expressly state that employers can choose to frontload earned sick leave to employees, as opposed to using an accrual system.&nbsp; According to the draft regulations, employers will be deemed in compliance if they award each employee the maximum amount of paid sick leave the employee would have accrued during the benefit year.&nbsp; Any Covered Employee who will work at least 1,600 hours during the year would have to be&nbsp; awarded 40 hours of Earned Sick Leave under this methodology.&nbsp; Notably, the draft regulations state that employers who use a frontloading system will need to meet certain criteria in order to use a single, standardized 12-month accrual period for all employees.</li> <li> <u>Year-End Carryover</u>: The draft regulations state that FMLA covered employers should calculate the amount of sick leave that must be carried over at year-end by following two steps.&nbsp; First, the employer must permit an employee to carry over half of his or her total unused accrued sick leave to the next accrual period, up to a maximum of 20 hours.&nbsp; This 20 hours is &ldquo;Ordinance- Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Second, if an employee has additional accrued, unused sick leave, the employer must permit up to 40 additional hours to carryover.&nbsp; This additional time, up to 40 hours, is &ldquo;FMLA-Restricted Earned Sick Leave&rdquo; as defined above.&nbsp; Despite discussing these separate buckets of paid leave for purposes of year-end carryover, the draft regulations note that during a current accrual period, FMLA covered employers are <strong>not</strong> required to track an employee&rsquo;s use of sick leave as either Ordinance-Restricted or FMLA-Restricted as long as the time can be used for all reasons under the FMLA and CC ESLO.</li> <li> <u>Frontloading Sick Leave and Impact on Year-End Carryover</u>: The draft regulations state that employers can avoid conducting individualized year-end carryover calculations if each employee receives a frontloaded lump grant of sick leave at the start of each accrual period that is equal to the maximum amount the employee would have carried over.&nbsp; The draft regulations note that FMLA covered employers that award at least 20 hours of Ordinance-Restricted Earned Sick Leave and at least 40 hours of FMLA-Restricted Earned Sick Leave at the start of each accrual period typically do not need to carry over unused, accrued sick leave. <ul> <li> <u>Note</u>: While the draft regulations do not expressly address whether an employer alternatively can provide a 60-hour annual lump grant of sick leave that can be used for reasons under both the FMLA or CC ESLO, they do state that the draft regulations should not be construed as prohibiting an employer from allowing an employee to use &ldquo;Earned Sick Leave, Ordinance-Restricted Earned Sick Leave, and/or FMLA-Restricted Earned Sick Leave for purposes other than those described [in the draft regulations].&rdquo;</li> </ul> </li> <li> <u>Frontloading as an Alternative to <strong>Both</strong> Accrual and Year-End Carryover</u>: According to the draft regulations, an employer may choose, at the beginning of each accrual period, to immediately grant the maximum annual amount to which its employees could be entitled for both accrual during the current accrual period <strong>and</strong> carryover from the prior accrual period.&nbsp; Specifically, the draft regulations state that an FMLA covered employer may comply by awarding its employees 60 hours of Ordinance-Restricted Earned Sick Leave and 40 hours of FMLA-Restricted Earned Sick Leave at the start of the accrual period.&nbsp; While not expressly stated in the draft regulations, it appears that employers who opt for this approach still could apply the CC ESLO&rsquo;s 60-hour annual usage cap.</li> </ul> </li> <li> <strong>Covered Family Members:</strong> Like most existing paid sick leave laws, the CC ESLO allows employees to use sick leave for illnesses and injuries of certain family members.&nbsp; Among the CC ESLO&rsquo;s covered family members is any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.&nbsp; The draft regulations define &ldquo;close association&rdquo; and explain that the Commission will determine if such an association exists based on the length of time of a particular relationship and other factors, such as whether the employee provided personal care or financial support for or previously lived with the individual.&nbsp;</li> </ul> <p> Given the complexity of the CC ESLO and draft regulations, Cook County employers should take steps now to ensure that they will be able to achieve full compliance with the CC ESLO by the July 1, 2017 effective date.&nbsp; These are among the actions to consider:</p> <ul> <li> Determine if the municipality in Cook County where you have operations has lawfully preempted (i.e., opted out of) the CC ESLO.</li> <li> If the CC ESLO applies to your municipality within the County, review existing policies and procedures immediately to ensure that they meet at least the minimum requirements or develop a new paid sick leave policy that complies with the CC ESLO.</li> <li> Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking earned sick leave.</li> <li> Prepare to comply with the CC ESLO&rsquo;s posting and notification requirements and monitor the Commission&rsquo;s website for template notices and other guidance and updates on the CC ESLO.</li> <li> Train supervisory and managerial employees, as well as HR, on the CC ESLO requirements.</li> <li> Await further guidance, including final regulations, from the Commission and update policies and practices to comply with any finalized advice.</li> </ul> <p> Illinois has been an hot bed of sick leave activity in recent months and the trend shows no signs of slowing down.&nbsp;</p> <p> In January 2017, the <a href="http://www.seyfarth.com/publications/OMM011317-LE">Illinois Employee Sick Leave Act</a> (&ldquo;ESLA&rdquo;) went into effect. While the title suggests that this is a statewide paid sick leave law, it does not actually mandate that employers provide paid sick leave.&nbsp; Instead, the ESLA requires employers that have sick pay policies or benefits to allow employees to use a portion of that time to cover family member illnesses -- essentially establishing a &ldquo;kin care&rdquo; law as exists in certain other states.</p> <p> The state legislature is currently considering an actual statewide sick leave mandate, titled the <a href="http://www.laborandemploymentlawcounsel.com/2017/04/illinois-catches-the-paid-sick-leave-bill-bug/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=a9cb68119e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-a9cb68119e-71256185">Healthy Workplace Act</a> (House Bill 2771/Senate Bill 1296).&nbsp; While still in its early legislative stages, if passed, the proposed law would require that private employers provide employees with a minimum of five paid sick days each year.</p> <p> With the paid sick leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this law and sick leave requirements generally.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.</p> http://www.seyfarth.com:80/news/boutros-quoted-redlands-bulldog-042117 Andrew Boutros quoted in the <i>Redlands Bulldog</i> http://www.seyfarth.com:80/news/boutros-quoted-redlands-bulldog-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Andrew Boutros was quoted in &quot;Title IX Policy at the University of Redlands Explained,&quot; an April 21 story from the Redlands Bulldog on how Issues of Title IX compliance and trends of sexual assault on college campuses have become a top priority for many universities around the country. Boutros said that there may be cases where a school needs to potentially take extra precautions to ensure that there is no actual or perceived conflicts of interest. He said this may be the case when the victim is alleging misconduct by a faculty member or employee of the university.</p> <p> <a href="http://www.theredlandsbulldog.com/title-ix-policy-university-redlands-explained/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/mcgurn-quoted-boston-globe-042117 Kristin McGurn quoted in the <i>Boston Globe</i> http://www.seyfarth.com:80/news/mcgurn-quoted-boston-globe-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Kristin McGurn was quoted in &quot;What to do when the boss cancels your vacation,&quot; an April 21 story from the <em>Boston Globe</em> on whether an employer can ask you to cancel your vacation plans. McGurn said that many Massachusetts retailers impose black-out periods during which employees are instructed not to schedule vacation, for example because customer traffic is expected to be heavy during certain seasons.</p> <p> <a href="http://www.bostonglobe.com/business/2017/04/21/jobdoc/9QjUr414CT8aBGQ61phsQM/story.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/hendrickson-quoted-business-news-daily-042117 Christine Hendrickson quoted by <i>Business News Daily</i> http://www.seyfarth.com:80/news/hendrickson-quoted-business-news-daily-042117 Fri, 21 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Closing the Wage Gap: Salary Negotiation Tips for Women,&quot; an April 21 story by <em>Business News Daily</em> on New York City&rsquo;s approved measure that will prohibit companies from asking job applicants about their previous salary history. Hendrickson notes there is criticism of the bill because it&#39;s believed that it will not eliminate any wage gap, but will instead create greater reliance on salary negotiation.</p> <p> <a href="http://www.businessnewsdaily.com/9325-women-salary-negotiation-tips.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/EL042017 OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence http://www.seyfarth.com:80/publications/EL042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence. &nbsp;The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH&rsquo;s guidance for determining the potential for workplace violence.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/osha-updates-its-enforcement-procedures-directive-for-exposure-to-workplace-violence/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=7f6b4a3a40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-7f6b4a3a40-71256185">click here</a></p> http://www.seyfarth.com:80/publications/MA042017-LE Refusal to Rescind Employee’s Resignation Not an Adverse Employment Action http://www.seyfarth.com:80/publications/MA042017-LE Thu, 20 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>: The California Court of Appeal has held that an employer&rsquo;s refusal to honor an employee&rsquo;s rescission of a voluntary resignation is not an adverse employment action under the Fair Employment and Housing Act. <strong>Featherstone v. Southern California Permanente Medical Group.</strong></em></p> <p> <strong>The Facts</strong></p> <p> Ruth Featherstone claimed that she suffered a temporary disability from an adverse drug reaction that altered her mental state. While in an altered state, she orally resigned from her position with Southern California Permanente Medical Group. At SCPMG&rsquo;s request, Featherstone confirmed her resignation in writing. SCPMG then processed and completed Featherstone&rsquo;s voluntary termination paperwork on the day of her resignation. A few days thereafter, Featherstone asked SCPMG to rescind her resignation. SCPMG declined to do so.</p> <p> Featherstone sued SCPMG on a claim that its refusal to rescind her resignation was a discriminatory act forbidden by the Fair Employment and Housing Act and public policy. The trial court granted SCPMG&rsquo;s motion for summary judgment and Featherstone appealed.</p> <p> <strong>The Court of Appeal&rsquo;s Decision</strong></p> <p> The Court of Appeal affirmed summary judgment for SCPMG on two independent grounds.</p> <p> <em>First</em>, the refusal to allow Featherstone to rescind her resignation was not an adverse employment action. To establish a <em>prima facie </em>case for disparate treatment discrimination, a FEHA plaintiff must establish that (1) she suffers from a disability, (2) she is otherwise qualified to do her job, (3) she suffered an adverse employment action, and (4) the employer harbored discriminatory intent. As to element (3), the Court of Appeal held that &ldquo;refusing to allow a former employee to rescind a voluntary discharge&mdash;that is, a resignation free of employer coercion or misconduct&mdash;is not an adverse employment action.&rdquo; This result followed from analogous federal law&mdash;the ADA and Title VII&mdash;which courts have interpreted to mean that an employer&rsquo;s refusal to allow an employee to rescind a resignation is not an adverse employment action. The Court of Appeal further noted that SCPMG did not coerce Featherstone&rsquo;s resignation and was not contractually obligated to permit rescission of her resignation.</p> <p> <em>Second</em>, the Court of Appeal also found that Featherstone failed to raise a triable issue of fact as to whether those who accepted and processed her resignation knew of her alleged disability when they took those actions.</p> <p> <strong>What <em>Featherstone </em>Means for Employers</strong></p> <p> <em>Featherstone</em> holds that refusing to rescind a resignation that is voluntary and non-coerced is not an adverse employment action under FEHA. <em>Featherstone</em> will prove useful in defending claims by plaintiffs that involve similar employer actions that do not clearly qualify as adverse employment actions under California law. <em>Featherstone</em> also highlights the importance of promptly accepting and processing employee resignations.</p> http://www.seyfarth.com:80/publications/ADA042017 Accessible Icon Update: New Federal Guidance Deepens Quandary for Businesses Facing Contradictory State Requirements http://www.seyfarth.com:80/publications/ADA042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> As we previously reported, New York State and more recently, Connecticut, passed legislation requiring the use of the &ldquo;Accessible Icon&rdquo; in lieu of the traditional International Symbol of Access (&ldquo;ISA&rdquo;) in new construction and alterations whenever an accessibility sign is required by code. &nbsp;But Title III of the ADA and the Architectural Barriers Act (&ldquo;ABA&rdquo;), which apply to public accommodations facilities and federally-funded facilities, respectively, still require the use of the ISA. &nbsp;Specifically, the ADA and ABA require that the ISA be used to label and provide direction to certain accessible spaces and elements, such as restrooms, parking spaces, and check-out aisles.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/04/accessible-icon-update-new-federal-guidance-deepens-quandary-for-businesses-facing-contradictory-state-requirements/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=3fe9b691bd-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-3fe9b691bd-71256157">click here</a></p> http://www.seyfarth.com:80/publications/CP042017 Legislature Finds More Opportunity to Work: AB 5 Moves Along http://www.seyfarth.com:80/publications/CP042017 Thu, 20 Apr 2017 00:00:00 -0400 <p> The California Assembly Committee on Labor and Employment yesterday heard and approved AB 5, The Opportunity to Work Act, as it continues to move through the legislative process.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/20/legislature-finds-more-opportunity-to-work-ab-5-moves-along/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=febba7a7c8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-febba7a7c8-71410869">click here</a></p> http://www.seyfarth.com:80/publications/hendrickson-and-savadjian-authored-article-for-HR-041917 Christine Hendrickson and Lisa Savadjian authored an article for <i>HR.com</i> http://www.seyfarth.com:80/publications/hendrickson-and-savadjian-authored-article-for-HR-041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson and Lisa Savadjian authored &quot;Salary History Ban: Will It Eliminate Pay Gap?: What the ban means,&quot; an article on April 19 for <em>HR.com</em>. The article discusses the New York City Council&rsquo;s approval of a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process.</p> <p> <a href="https://www.hr.com/en/magazines/talent_acquisition/april_2017_talent_acquisition/salary-history-ban-will-it-eliminate-pay-gap-what-_j1osxwy6.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM041917-LIT Entering the FDCPA Safe Harbor Just Got More Difficult in the Second Circuit http://www.seyfarth.com:80/publications/OMM041917-LIT Wed, 19 Apr 2017 00:00:00 -0400 <p> The Second Circuit&rsquo;s recent opinion in <em>Carlin v. Davidson Fink LLP</em>, No. 15-3105-cv (2d Cir. Mar. 29, 2017), has important ramifications for the debt collection industry.&nbsp;</p> <p> <em>Carlin</em>, a putative class action, addressed the adequacy of a Fair Debt Collection Practice Act (&ldquo;FDCPA&rdquo;) initial notice sent per Title 15, U.S.C., &sect;&nbsp;1692g, which requires a debt collector to send a written notice to a consumer as or within five days of its initial communication with a consumer in connection with the collection of any debt, containing the amount of the debt, the name of the creditor to whom the debt is owed, and certain information about the consumer&rsquo;s rights.</p> <p> In <em>Carlin</em>, the initial notice set forth a &ldquo;Total Amount Due&rdquo; as a dollar figure, but added that such amount &ldquo;may include estimated fees, costs, additional payments and/or escrow disbursements . . . which are not yet due&rdquo; and apprised the consumer that if he paid the total amount specified to be due by a certain date, he would get a refund of any charges and fees that had not been incurred as of the time of payment.&nbsp; The Second Circuit held that because the initial notice did &ldquo;not specify what the &lsquo;estimated fees, costs, [and] additional payments&rsquo; are&rdquo; the &ldquo;least sophisticated consumer&rdquo; would not be able to determine from the initial notice how any additional &ldquo;fees are calculated, whether they may be disputed, or what provision of the note gives rise to them.&rdquo;&nbsp;</p> <p> The Second Circuit kept the &ldquo;safe harbor&rdquo; language it had approved just a year before in <em>Avila v. Riexinger &amp; Assoc., LLC</em>, 817 F.3d 72 (2d Cir. 2016), that if the initial notice advises the consumer that &ldquo;the amount of the debt stated in the letter will increase over time, or clearly states that the holder of the debt will accept payment of the amount set forth in full satisfaction of the debt if payment is made by a specified date,&rdquo; a debt collector is insulated from &sect; 1692g liability.&nbsp; But it found that this initial notice fell outside the safe harbor because it only provided &ldquo;that the Total Amount Due <em>may</em> include <em>estimated</em> fees and costs&rdquo; and failed to provide &ldquo;clarity as to whether new fees and costs are accruing&rdquo; or on what basis they would accrue.&nbsp; By its use of the words &ldquo;may&rdquo; and &ldquo;estimated,&rdquo; the initial notice only informed the consumer of a theoretical amount that might or might not be due.&nbsp; The court concluded that the initial notice effectively told the consumer that he would have to pay the amount demanded and wait to see whether a refund would be issued to determine how much he actually owed.</p> <p> Significantly, the Court recognized that the language of this initial notice may well be commonplace in the debt collection industry, but found that provided no insulation to liability under the FDCPA.</p> <p> Consumer debt collectors should review their initial notices, and prepare for the possibility of suit.&nbsp;</p> http://www.seyfarth.com:80/publications/OMM041917-LE Trump Administration Issues “Buy American and Hire American” Executive Order http://www.seyfarth.com:80/publications/OMM041917-LE Wed, 19 Apr 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>: The EO orders the Departments of State, Justice, Labor, and Homeland Security to propose new rules and issue new guidance to &ldquo;protect the interests of U.S. workers&rdquo; and &ldquo;promote the functioning of the H-1B visa program.&rdquo;</em></p> <p> On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance &ldquo;as soon as practicable and consistent with applicable law&rdquo; to &ldquo;protect the interests of U.S. workers,&rdquo; within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to &ldquo;suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid&rdquo; foreign nationals.&nbsp; &nbsp;</p> <p> The EO neither creates any specific new requirements for employers nor directs the affected agencies to take any action other than prepare substantive proposals at a future uncertain date. According to statements made by the President and Senior Administration Officials, the EO aims to dismantle the computer generated H-1B visa lottery system and the current four-tiered prevailing wage system as well as ferreting out fraud and abuse within the existing H-1B program.&nbsp; Implementation of such recommendations would require congressional action. &nbsp;&nbsp;</p> <p> Seyfarth Shaw will continue to closely monitor the Departments reactions to the EO, and we will provide updates as developments occur.</p> http://www.seyfarth.com:80/publications/TS041917 Don’t Forget to Establish Personal Jurisdiction in Defend Trade Secrets Act Cases http://www.seyfarth.com:80/publications/TS041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> It is well known that 18 U.S.C. &sect; 1836, et seq. (the Defend Trade Secrets Act or &ldquo;DTSA&rdquo;) finally provides a mechanism for pursing trade secret claims in federal court. A recent decision, however, serves as an excellent reminder that failure to establish personal jurisdiction over a defendant will nevertheless result in dismissal of your DTSA claim&mdash;and potentially your entire case. So, before you rush off and file that DTSA claim in your local federal court, carefully consider if it&rsquo;s really the right court after all.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/dtsa/dont-forget-to-establish-personal-jurisdiction-in-defend-trade-secret-act-cases/">click here</a></p> http://www.seyfarth.com:80/publications/IMM041917 Trump Administration Issues “Buy American and Hire American” Executive Order (Blog Post) http://www.seyfarth.com:80/publications/IMM041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance &ldquo;as soon as practicable and consistent with applicable law&rdquo; to &ldquo;protect the interests of U.S. workers,&rdquo; within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to &ldquo;suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid&rdquo; foreign nationals.</p> <p> To read the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/trump-administration-issues-buy-american-and-hire-american-executive-order/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=b7a8e04d31-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-b7a8e04d31-73050561">click here</a></p> http://www.seyfarth.com:80/publications/PE041917 Pay Equity: New San Francisco Legislation Would Ban Employers From Seeking Salary History http://www.seyfarth.com:80/publications/PE041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> San Francisco appears to be jumping on the bandwagon of its East Coast brethren by banning employers from considering the wage history of job applicants. On the heels of the passage of a similar salary ban in New York City and a new California state law prohibiting employers from relying on prior salary alone to justify differences in pay, San Francisco is considering removing prior salary information from the job application process entirely.</p> <p> To read the full blog post, <a href="http://www.seyfarth.com/uploads/siteFiles/inlinefiles/PEmicroblog041917.pdf">click here</a>.</p> http://www.seyfarth.com:80/news/hendrickson-quoted-bloomberg-BNA-042017 Christine Hendrickson quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/hendrickson-quoted-bloomberg-BNA-042017 Wed, 19 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Google Case Puts Salary History Under Microscope,&quot; an April 19 story by <em>Bloomberg BNA</em> on whether an employer that bases compensation on salary history can use that as a defense if it&rsquo;s later sued for pay bias. Hendrickson said that companies can use wage history as a touch point in determining a salary offer in legitimate and non-discriminatory ways.</p> <p> <a href="https://www.bna.com/google-case-puts-n57982086848/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/paparelli-interviewed-bloomberg-radio-041917 Angelo Paparelli was interviewed by <i>Bloomberg Radio</i> http://www.seyfarth.com:80/news/paparelli-interviewed-bloomberg-radio-041917 Wed, 19 Apr 2017 00:00:00 -0400 <p> Angelo Paparelli was interviewed in &quot;New Executive Order Target U.S. Visa System,&quot; an April 19 segment from <em>Bloomberg Radio</em> on President Trump&rsquo;s &quot;Buy American, Hire American&quot; executive order, and how it will impact visas for American companies.</p> <p> <a href="https://www.bloomberg.com/news/audio/2017-04-19/new-executive-order-target-u-s-visa-system-audio">You can listen to the full interview here</a>.</p> http://www.seyfarth.com:80/news/regan-quoted-northern-california-record-041817 Colleen Regan was quoted in the <i>Northern California Record</i> http://www.seyfarth.com:80/news/regan-quoted-northern-california-record-041817 Wed, 19 Apr 2017 00:00:00 -0400 <p> Colleen Regan was quoted in &quot;Ruling in reasonable accommodation for disabilities reversed,&quot; an April 19 story from the <em>Northern California Record</em> on the reversal of a ruling that provided for reasonable accommodation for employees with disabled associates. Regan said that both the ADA and the FEHA prohibit an employer to deny equal jobs or benefits to an individual because of their relationship to or association with a disabled person.</p> <p> <a href="http://norcalrecord.com/stories/511104498-ruling-in-reasonable-accommodation-for-disabilities-reversed">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/launey-interviewed-leftfoot-041817 Kristina Launey interviewed on <i>LeftFoot</i> http://www.seyfarth.com:80/news/launey-interviewed-leftfoot-041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Kristina Launey was interviewed on &quot;Loosen Up &ndash; a conversation with Kristina Launey of Seyfarth,&quot; an April 18 podcast episode on <em>LeftFoot </em>about the importance of having fun with business development.</p> <p> <a href="http://www.leftfoot.net/kristina-launey/">You can listen to the full podcast episode here</a>.</p> http://www.seyfarth.com:80/news/milligan-quoted-financier-worldwide-050117 Robert Milligan quoted in <i>Financier Worldwide</i> http://www.seyfarth.com:80/news/milligan-quoted-financier-worldwide-050117 Tue, 18 Apr 2017 00:00:00 -0400 <div> Robert Milligan was quoted in &quot;Understanding the Defend Trade Secrets Act,&quot; a May 1 story from <em>Financier Worldwide</em> on the Defend Trade Secrets Act (DTSA), an amendment of the Economic Espionage Act (EEA) which has created a private civil cause of action for trade secret misappropriation.</div> <div> &nbsp;</div> <div> Milligan said that the DTSA was introduced in response to, among other things, the reportedly growing rise in trade secret theft from foreign hackers, nation states and rogue employees interested in obtaining US businesses&rsquo; trade secrets.&nbsp;</div> <div> &nbsp;</div> <div> <a href="https://www.financierworldwide.com/understanding-the-defend-trade-secrets-act#.WPd2UPnythF">You can read the full article here</a>.</div> http://www.seyfarth.com:80/news/jutkowitz-quoted-SHRM-041817 Stanley Jutkowitz quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/jutkowitz-quoted-SHRM-041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Stanley Jutkowitz was quoted in &quot;Some Employers Accommodate Medical Marijuana Users,&quot; an April 18 story from <em>SHRM </em>on how accommodations aren&rsquo;t required under federal or state laws, but some state laws permit them. Jutkowitz said that many states regulate the form of medical marijuana that may be consumed and generally prohibit smoking, so an employer would probably not need a smoking room.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/accommodating-medical-marijuana-users.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/WSE041817 OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence http://www.seyfarth.com:80/publications/WSE041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence. &nbsp;The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH&rsquo;s guidance for determining the potential for workplace violence.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/workplace-violence/osha-updates-enforcement-directive/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=0d961c364f-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-0d961c364f-71407177">click here</a></p> http://www.seyfarth.com:80/publications/HCRMA-041817 Issue 108: HHS Moves Ahead In Face of ACA Uncertainty http://www.seyfarth.com:80/publications/HCRMA-041817 Tue, 18 Apr 2017 00:00:00 -0400 <div> This is the one hundred and eighth issue in our series of alerts for employers on selected topics on health care reform. &nbsp;(<a href="http://www.seyfarth.com/Healthcare-Reform-Team">Click here</a> to access our general Summary of Health Care Reform and other issues in this series.) &nbsp;This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</div> <div> &nbsp;</div> <div> So, what is going on with the ACA Repeal and Replace efforts in recent days? When Paul Ryan faced defection in his own party from members of the Freedom Caucus who believed his American Health Care Act (AHCA) didn&rsquo;t go far enough, <a href="http://www.seyfarth.com/publications/HRCMA-032417">the bill was abruptly pulled</a> from consideration by the House. The GOP faced the harsh reality of a splintered party where moderates (faced with pressure from their constituents at home) are looking for a solution that would retain much of the ACA&rsquo;s expanded coverage at a reduced cost, and where farther right conservatives want the federal government out of the business of individuals&rsquo; health care entirely. The AHCA seemed to accomplish neither camp&rsquo;s goals, causing a loss of coverage at a potentially higher cost for individuals.</div> <div> &nbsp;</div> <div> Trying to save President Trump&rsquo;s reputation as a deal maker, the White House seemed to move into the driver&rsquo;s seat meeting with members of the Freedom Caucus in early April. The White House allegedly made several concessions to the Freedom Caucus, including allowing states to apply for waivers from the essential health benefits standards, which required insurance policies to cover certain types of benefits, and the community rating restrictions, which limited the ability of insurers to charge more to sick people. Those changes, of course, would not necessarily play well with the GOP moderates, and Congress was allowed to adjourn on April 7th without any further movement. Even so, during the Congressional recess President Trump has indicated he still hopes to address health care reform prior to moving on to tax reform later this year.&nbsp;</div> <div> &nbsp;</div> <div> In the face of this uncertainty with the future of the ACA, the Department of Health and Human Services (HHS) and the Centers for Medicare &amp; Medicaid Services (CMS) have moved ahead with finalizing their proposed changes to ACA rules.&nbsp;<a href="https://www.federalregister.gov/documents/2017/04/18/2017-07712/patient-protection-and-affordable-care-act-market-stabilization">The final rules</a>, published on April 18, 2017 and effective June 17, 2017, primarily impact the individual and small group markets. &nbsp;The agencies perceive that individuals are not maintaining their coverage on the exchanges or enrolling only after discovering a health problem, contributing to the increase in the cost of premiums. As a result, the final rules make a number of discreet changes to improve the risk pool, including:&nbsp;</div> <div> &nbsp;</div> <ul> <li> <strong>Open Enrollment Period.</strong> Shortening the annual open enrollment period, which currently runs from November 1st to the following January 15th, to one which starts on November 1st and closes before the policy year starts on December 15th. This change will take place for the 2018 benefit year, but was already the rule for years starting in 2019.</li> <li> <strong>Special Enrollment in HealthCare.gov.</strong> All of those seeking to enroll in an exchange maintained on HealthCare.gov in a special enrollment period will be subject to pre-enrollment verification (from a pilot sample of 50%). State-based exchanges will remain free to determine whether and how to implement pre-enrollment verification of eligibility for a special enrollment period. Several other changes will be made to the rules surrounding special enrollment periods.&nbsp;</li> <li> <strong>Premium Debt.</strong> Insurers will be allowed to apply a premium payment to an individual&rsquo;s past debt for coverage from that issuer (or a related issuer) before counting the payment toward the newly elected coverage, without being deemed to violate the guaranteed availability requirement.&nbsp;</li> <li> <strong>Actuarial Value.</strong> The final rules increase the de minimis variation in the actuarial values used to determine the metal levels of coverage for the 2018 benefit year and beyond, to allow issuers greater flexibility in designing new plan options.&nbsp;</li> </ul> <div> &nbsp;</div> <div> Other changes in the final rules are &ldquo;intended to affirm the traditional role of States in overseeing their health insurance markets while reducing the regulatory burden of participating in Exchanges for issuers.&rdquo; These changes impact Qualifying Health Plans.&nbsp;</div> <div> &nbsp;</div> <ul> <li> <strong>Network Adequacy.</strong> The agencies will defer to the states with sufficient network adequacy review.&nbsp;</li> <li> <strong>Essential Community Providers.</strong> Issuers will be allowed to continue to use a write-in process to identify essential community providers who are not on the agency&rsquo;s list, and will lower the standard to 20% (from 30%), making it easier to build a provider network. &nbsp;</li> </ul> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/TBT041817 Unions Find The Grass On The Other Side of Prop 64 Particularly Green http://www.seyfarth.com:80/publications/TBT041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> Recently, the San Francisco Chronicle published an interesting story examining two fronts on which labor unions are trying to cash in on the passage of Prop 64 in November 2016, which legalized the sale and personal use of recreational marijuana in California. With its passing, California is poised to become the largest, most lucrative market for marijuana products in the United States (assuming the successes of craft beer and fine wines are fair markers). Nearly six months later, the industry is in its infancy with much to be decided on cannabis&rsquo; regulation.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/04/unions-find-the-grass-on-the-other-side-of-prop-64-particularly-green/">click here</a></p> http://www.seyfarth.com:80/publications/CP041817 2017 California Labor and Employment Legislative Update: What to Watch http://www.seyfarth.com:80/publications/CP041817 Tue, 18 Apr 2017 00:00:00 -0400 <p> California Legislators were, as always, very busy in the first few months of the 2017-18 Legislative Session, introducing well over 2000 bills by the February 17th bill introduction deadline. But, in comparison to prior years, the calendar has been surprisingly light for heavy-hitter labor and employment bills. The Legislature returned to work on April 17, after its spring break, and continued to push bills out of the house of origin in advance of the June 2nd deadline.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/18/2017-california-labor-and-employment-legislative-update-what-to-watch/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=7faf93d1d2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-7faf93d1d2-71410869">click here</a></p> http://www.seyfarth.com:80/publications/boutros-and-schleppenbach-authored-article-finance-digest-041817 Andrew Boutros and John Schleppenbach authored an article in <i>Finance Digest</i> http://www.seyfarth.com:80/publications/boutros-and-schleppenbach-authored-article-finance-digest-041817 Tue, 18 Apr 2017 00:00:00 -0400 <div> Andrew Boutros and John Schleppenbach authored &quot;President Trump Signs Executive Orders On Trade And Designates Trade And Customs Law Violations As Law Enforcement &#39;High Priority&#39;,&quot; an article on April 18 in <em>Finance Digest</em>. This article discusses the Administration&#39;s new Executive Orders which will lead to increased criminal and other enforcement actions involving trade, customs, antidumping duties, and countervailing duties practices.</div> <div> &nbsp;</div> <div> <a href="https://www.financedigest.com/president-trump-signs-executive-orders-on-trade-and-designates-trade-and-customs-law-violations-as-law-enforcement-high-priority.html">You can read the full article here</a>.</div> http://www.seyfarth.com:80/publications/TS041717 Are My Customer Lists a Trade Secret? http://www.seyfarth.com:80/publications/TS041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> A lawyer&rsquo;s favorite phrase might be &ldquo;it depends.&rdquo; And when an employer asks whether its customer lists qualify as a trade secret, &ldquo;it depends&rdquo; is often the answer. But even if it&rsquo;s difficult to definitively state whether customer lists qualify as a trade secret, the converse&mdash;whether customer lists might not constitute a trade secret&mdash;can be helpful to assessing how much protection a court will provide.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/are-my-customer-lists-a-trade-secret/?utm_source=Seyfarth+Shaw+-+Trading+Secrets&amp;utm_campaign=e77c2b91f9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0298dd2892-e77c2b91f9-73050541">click here</a></p> http://www.seyfarth.com:80/publications/IMM041717 USCIS Receives 199,000 H-1B Cap Petitions and Completes Lottery Process (Blog Post) http://www.seyfarth.com:80/publications/IMM041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2018, which begins on October 1, 2017. &nbsp;This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap. &nbsp;However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.</p> <p> To reasd the entire blog post, <a href="http://www.bigimmigrationlawblog.com/2017/04/uscis-receives-199000-h-1b-cap-petitions-and-completes-lottery-process/?utm_source=Seyfarth+Shaw+-+BIG+Immigration+Law+Blog&amp;utm_campaign=1ac8304cd6-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_12ee41b37b-1ac8304cd6-73050561">click here</a></p> http://www.seyfarth.com:80/publications/OMM041717-LIT2 Third Circuit Holds That Post-Petition Filing of NJ Construction Lien Violates the Automatic Stay http://www.seyfarth.com:80/publications/OMM041717-LIT2 Mon, 17 Apr 2017 00:00:00 -0400 <div> On March 30, the Third Circuit Court of Appeals filed an opinion regarding whether the filing of a mechanic&rsquo;s lien after the commencement of a bankruptcy case violates the automatic stay. Given the frequent involvement of &nbsp;many companies in Delaware bankruptcy cases, you should be aware of the Third Circuit&rsquo;s ruling.</div> <div> &nbsp;</div> <div> The Third Circuit case, <em>In re Linear Electric Company, Inc.</em>, concerns the relationship between New Jersey construction lien law and federal bankruptcy law. Under New Jersey law, any contractor, subcontractor, or supplier who provides work, services, material, or equipment pursuant to a contract is entitled to a lien for the value of the work or services performed or materials or equipment furnished, in accordance with the contract, based upon the contract price. Linear Electric was a contractor to whom two suppliers, Cooper Electrical Supply Co. and Samson Electrical Supply Co., Inc., sold electrical materials that Linear Electric incorporated into several construction projects. On July 1, 2015, Linear Electric filed a petition in bankruptcy under chapter 11 of the United States Bankruptcy Code. As of that date, Linear Electric had not fully paid Cooper and Samson. On July 15, 2015, Cooper and Samson filed construction liens on the developments into which Linear Electric had incorporated the electrical materials supplied by Cooper and Samson. Linear Electric moved to vacate the lien filings as having violated the automatic stay of the Bankruptcy Code, which stays, among other things, any act to create, perfect, or enforce any lien against property of the estate. The bankruptcy court granted the motion, holding the liens to be void ab initio for violation of the automatic stay. On appeal, the district court affirmed, and the Third Circuit also affirmed.</div> <div> &nbsp;</div> <div> The Bankruptcy Code provides an exception to the stay of the filing of liens. Specifically, section 363(b)(3) of the Code provides that the filing of a petition in bankruptcy does not stay any act to perfect, or to maintain or continue the perfection of, an interest in property to the extent that the trustee&rsquo;s or debtor-in-possession&rsquo;s rights and powers are subject to such perfection under section 546(b) of the Code. Section 546(b)(1) in turn provides that the rights of a trustee or&nbsp;</div> <div> debtor-in-possession to avoid a lien are subject to any generally applicable law that (A) permits perfection of an interest in property to be effective against an entity that acquires rights in such property before the date of perfection; or (B) provides for the maintenance or continuation of perfection of an interest in property to be effective against an entity that acquires rights in such property before the date on which action is taken to effect such maintenance or continuation. Cooper and Samson argued that these sections authorized the post-petition filing of their construction liens.</div> <div> &nbsp;</div> <div> Cooper and Samson relied upon <em>In re Yobe Electric, Inc.</em>, where the Third Circuit affirmed a bankruptcy court&rsquo;s determination that the post-petition filing of a mechanic&rsquo;s lien under Pennsylvania law did not violate the automatic stay. The facts in <em>Yobe</em> are analogous to Linear Electric: a subcontractor filed a mechanic&rsquo;s lien after a general contractor filed a bankruptcy case. &nbsp;However, the Third Circuit distinguished <em>Yobe</em> from <em>Linear Electric</em>. In <em>Yobe</em>, the post-petition lien filed under Pennsylvania law related back to &ldquo;the date of visible commencement upon the ground of the work of erecting or constructing the improvement,&rdquo; which, in <em>Yobe</em>, occurred prepetition. The construction liens filed by Cooper and Samson under New Jersey law were effective as of their post-petition filing date and did not relate back. The Third Circuit held that if under applicable State law the post-petition filing of a mechanic&rsquo;s lien would not relate back to a date prior to the filing of the bankruptcy case, then the automatic stay of section 362(a)(4) applies, and the filing is prohibited. If under applicable State law the post-petition filing of a mechanic&rsquo;s lien would relate back to a prepetition date, then the section 362(b)(3) exception to the automatic stay would apply, and the lien can be filed. &nbsp;</div> <div> &nbsp;</div> <div> There are two important points discussed by the Court that are not part of its holding. First, under New Jersey law, the construction liens filed by Cooper and Samson attached to the accounts receivable owed by the property owner to the debtor contractor, i.e. they attached to property of the debtor. They did not attach to the non-debtor owner&rsquo;s real property or improvements. The Court made clear in its discussion that the filing of a mechanic&rsquo;s lien, or any other lien, that under State law does not attach to a debtor&rsquo;s property is not barred by the automatic stay. Second, &nbsp;the Court emphasized that its ruling relates to lien creation or perfection and not to enforcement or maintenance.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/OMM041717-LE USCIS Receives 199,000 H-1B Cap Petitions and Completes Lottery Process http://www.seyfarth.com:80/publications/OMM041717-LE Mon, 17 Apr 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>: USCIS completes the lottery process and receives 199,000 H-1B cap petitions.</em></p> <p> On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &ldquo;caps&rdquo;) for Fiscal Year 2018, which begins on October 1, 2017.&nbsp; This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s cap.&nbsp; However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.</p> <p> In addition, USCIS announced that they completed a computer-generated random selection process -- the lottery -- for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings to adjudicate.&nbsp; USCIS first conducted the lottery process for H-1B petitions subject to the Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees.&nbsp; Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.&nbsp; USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.&nbsp;</p> <p> For additional background information on the H-1B visa program and the cap, please see our previous One Minute Memo titled, <a href="http://www.seyfarth.com/publications/MA011717-LE">&ldquo;H-1B Work Permit Filings: Will You Beat the Cap?&rdquo;</a></p> http://www.seyfarth.com:80/news/rodriguez-quoted-wall-street-journal-041717 Leon Rodriguez quoted by the <i>Wall Street Journal</i> http://www.seyfarth.com:80/news/rodriguez-quoted-wall-street-journal-041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Ahead of Trump&#39;s order, H-1B applications to US drop for the first time,&quot; an April 17 story from the <em>Wall Street Journal</em> on how the number of applications for the H-1B visas used by high-tech companies and others to bring highly skilled workers to the U.S. dropped this year after years on the rise, the government said Monday. Rodriguez said that it is definitely a stark drop after years of an upward trend.</p> <p> <a href="https://www.wsj.com/articles/h-1b-visa-applications-drop-1492472611?tesla=y">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/bitar-quoted-am-law-daily-041717 Karen Bitar quoted in the <i>Am Law Daily</i> http://www.seyfarth.com:80/news/bitar-quoted-am-law-daily-041717 Mon, 17 Apr 2017 00:00:00 -0400 <p> Karen Bitar was quoted in &quot;Study Shows Big Law Women Pulled to Certain Practice Areas,&quot; an April 17 story from the <em>Am Law Daily</em> on a recent study which found that women still lag significantly behind their male counterparts in certain key Big Law practice areas. Clients who are spread across the country mean that female litigators can be forced to spend a significant amount of time away from home, something that Bitar said leads many women to opt out of high-stakes and national litigation proceedings or self-select a practice that is more grounded in one geographic area.</p> <p> <a href="http://www.americanlawyer.com/id=1202783889472/Study-Shows-Big-Law-Women-Pulled-to-Certain-Practice-Areas">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/CDL041617 WG6 MEMBERSHIP-BUILDING EVENT, CHICAGO, IL http://www.seyfarth.com:80/publications/CDL041617 Sun, 16 Apr 2017 00:00:00 -0400 <p> Topic: Interactive Dialogue concerning The Sedona Conference&reg; International Litigation Principles (Transitional Edition): Practical Help for Companies with the EU General Data Protection Regulation and Privacy Shield</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/wg6-membership-building-event-chicago-il/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=b6a5dc7c33-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-b6a5dc7c33-72857025">click here</a></p> http://www.seyfarth.com:80/publications/olson-authored-article-USA-today-041617 Camille Olson authored an article in <i>USA Today</i> http://www.seyfarth.com:80/publications/olson-authored-article-USA-today-041617 Sun, 16 Apr 2017 00:00:00 -0400 <p> Camille Olson authored &quot;New rule, more unnecessary work: Second Look,&quot; an article on April 16 in <em>USA Today</em> on the U.S. Chamber of Commerce&rsquo;s request to the Office of Management and Budget to repeal or delay the Equal Employment Opportunity Commission&rsquo;s new EEO-1 form (which would require employers with 100 or more employees to report employee compensation and hours worked information). Olson said that the form will not promote equal pay because the data being collected &mdash; at enormous cost &mdash; is useless for that purpose.&nbsp;</p> <p> <a href="https://www.usatoday.com/story/opinion/2017/04/16/new-rule-unnecessary-work-second-look/100437656/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/hendrickson-quoted-wall-street-journal-041517 Christine Hendrickson quoted by the <i>Wall Street Journal</i> http://www.seyfarth.com:80/news/hendrickson-quoted-wall-street-journal-041517 Sat, 15 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Cities Push Employers to Ignore Pay History,&quot; an April 15 story by the <em>Wall Street Journal</em> on how companies have variously declared their commitment to rooting out gender-pay disparities by analyzing how hiring and promotion practices affect employees&rsquo; careers and earnings. Hendrickson said that has provided momentum to lawmakers&rsquo; efforts to bolster equal-pay protections by targeting specific practices that may exacerbate the wage gap.</p> <p> <a href="https://www.wsj.com/articles/cities-push-employers-to-ignore-pay-history-1492254003">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/MA041417-LE Changes to Massachusetts CORI Regulations http://www.seyfarth.com:80/publications/MA041417-LE Fri, 14 Apr 2017 00:00:00 -0400 <p class="BodySingle"> <b><i>Seyfarth Synopsis:</i></b><i>&nbsp; The Massachusetts Department of Criminal Justice Information Services recently amended the provisions of the Commonwealth&rsquo;s CORI regulations that govern how employers conduct criminal history checks.&nbsp; Employers should review their CORI practices to ensure compliance with these amended regulations, the key provisions of which are highlighted herein. <o:p></o:p></i></p> <p class="BodySingle"> As most Massachusetts employers know, in May 2012 the legislature passed sweeping reform to the Commonwealth&rsquo;s Criminal Offender Record Information (CORI) law.&nbsp; Shortly thereafter, the Department of Criminal Justice Information Services (DCJIS) issued regulations implementing the new law.&nbsp; The DCJIS recently proposed changes to those original regulations, and the final amended regulations have now been issued by the Secretary of State&rsquo;s Office. &nbsp;&nbsp;While many of the revisions address non-substantive housekeeping matters, a number of changes will require employers to modify their criminal history background check process.&nbsp;&nbsp; <o:p></o:p></p> <p class="BodySingle"> The following changes will have the biggest impact on employers:</p> <p class="BodySingle"> <strong>Who is an Employee? &nbsp;</strong></p> <p class="BodySingle"> The regulations expand the definition of employee to include not only traditional employees and volunteers, but also contractors, subcontractors, vendors, and special state, county or municipal employees.&nbsp; DCJIS has indicated that including contractors, sub-contractors and vendors in the definition of employee is consistent with the Criminal Record Review Board&rsquo;s (CRRB) interpretation and is meant to provide employers with the authority to run background checks on individuals holding or applying for such positions.&nbsp; From the employers&rsquo; perspective, DCJIS has expanded the definition of employee well beyond its traditional meaning, and in a manner that is at odds with the definition of this term under other state and federal laws, leading to possible uncertainty for employers.</p> <p class="BodySingle"> <strong>What is CORI?</strong></p> <p> The prior regulations did not define &ldquo;Criminal Offender Record Information,&rdquo; beyond a list of examples of information included or excluded from CORI.&nbsp;&nbsp; Although the regulations now define CORI, the definition continues to leave some uncertainty as to what information, outside of that specifically provided by DCJIS, constitutes CORI.&nbsp; The regulations continue to exclude published records of public court, judicial or administrative proceedings from the definition of CORI.&nbsp; Most employers have interpreted this to mean that information obtained directly from state or federal courts (the primary source of criminal history information provided by background screening companies) is not CORI and, thus, not subject to the rules regulating the use of CORI obtained from DCJIS.&nbsp; Despite public comments asking for DCJIS to make this exception more explicit, it declined to do so.</p> <p class="BodySingle"> The regulations also now specifically exclude from the definition of CORI, information related to criminal proceedings that were initiated against an individual before he or she turned 18, unless the individual is adjudicated as an adult.&nbsp; Prior to the revisions, this threshold was 17.&nbsp; This change was part of a larger effort by the legislature to expand juvenile jurisdiction until an individual turns 18.</p> <p class="BodySingle"> <strong>&quot;Need to Know&rdquo; List and New iCORI Agency Agreement</strong>:</p> <p> The revised regulations require employers to enter into an iCORI Agency Agreement prior to obtaining and/or renewing electronic access to the iCORI system.&nbsp; The iCORI Agency Agreement will, at a minimum, include the employer&rsquo;s representation that:&nbsp; (1) it will comply with the CORI laws and regulations; (2) it will maintain an up to date &ldquo;need to know&rdquo; list of staff that the employer has authorized to request, receive or review CORI information and to provide all staff on the &ldquo;need to know&rdquo; list with all CORI training materials; (3) it will only request the level of CORI access authorized under statute or by the DCJIS; and (4) it (and any individual users of the employer&rsquo;s iCORI account) will be liable for any violations of the CORI law or regulations.&nbsp;</p> <p> The &ldquo;need to know&rdquo; list provision specifically requires that employers maintain a list of employees with access to CORI,&nbsp; update the list, at least, every six months, and provide it to the DCJIS upon request.&nbsp; The DCJIS had previously included this requirement in its Model CORI Policy (available on its website), but has now codified this requirement in the regulations.&nbsp;</p> <p class="BodySingle"> The DCJIS has not yet issued the iCORI Agency Agreement, which may include additional requirements.&nbsp;</p> <p class="BodySingle"> <strong>CORI Acknowledgment Forms:</strong></p> <p class="BodySingle"> DCJIS has made several changes to the regulations that affect the collection, use and destruction of CORI Acknowledgment Forms.</p> <ul> <li class="BodySingle"> The new regulations specifically permit employers to collect CORI Acknowledgment Forms electronically, including as part of an employer&rsquo;s electronic job application.&nbsp; Although allowing electronic collection of these forms is a positive step, employers should be cautious about collecting date of birth and other demographic information required for CORI Acknowledgment Forms in the course of a job application and need to ensure that any background check forms meet the requirements of other laws including the federal Fair Credit Reporting Act.</li> <li> The DCJIS maintains Model CORI Acknowledgment forms on its website.&nbsp; The new regulations contemplate that employers may either use the model forms or incorporate the language into its own form.&nbsp;</li> <li> The regulations continue to require that employers verify the identity of individuals for whom they run a background check by reviewing a suitable form of government issued identification.&nbsp; The new regulations now specify that suitable forms of identification must contain a photograph, and that in the event that an individual does not have a suitable form of government issued identification, an employer may verify identity by reviewing either the individual&rsquo;s birth certificate or social security card.&nbsp; To the extent that an employer cannot do this verification in person, the regulations continue to allow an individual to submit a notarized Acknowledgment Form, either in written form or electronically.</li> <li> Under the prior regulations, employers could submit a new request for a CORI check within one year of an individual having signed the CORI Acknowledgment Form, but were required to provide the individual with written notice at least 72 hours before submitting the request.&nbsp; The new regulations eliminate the 72-hour notice requirement and allow employers to run an additional check provided that the employer notifies the subject on the Acknowledgment Form that a CORI check may be requested within one year.&nbsp; DCJIS has indicated it will revise the CORI Acknowledgment Form available on its website to reflect this change.&nbsp; For checks conducted after one year, employers must submit a new CORI Acknowledgment Form; however, if the information on the form exactly matches the information on the expired CORI Acknowledgement Form, an employer is not required to verify the individual&rsquo;s identity a second time.&nbsp;</li> <li> The new regulations clarify that in addition to destroying all CORI reports, employers must also destroy all CORI Acknowledgment Forms. The regulations also specify acceptable means of destroying hard copies and electronically stored CORI.</li> </ul> <p> <strong>Storing CORI in the Cloud</strong>:&nbsp;</p> <p> In recognition of changing technology, DCJIS now permits employers to store CORI using cloud storage methods.&nbsp; DCJIS requires employers using cloud storage to have a written agreement with the provider and that the storage method provide for encryption and password protection.&nbsp; The regulations initially required that all cloud storage agreements be reviewed and approved by DCJIS.&nbsp; Following receipt of public comments, DCJIS amended the proposed regulation to remove this requirement and will instead issue guidelines regarding such cloud storage agreements and will require employers to make these agreements available to DCJIS upon request.&nbsp;</p> <p> <strong>Additional Information for Pre-Adverse Action Notices: </strong></p> <p> Currently, employers that contemplate adverse action against an employee because of information in a CORI report obtained through DCJIS are required to provide the subject of that report with certain information, including identifying the information in the report that is the basis for potential adverse action.&nbsp; Previously, the requirement to specifically identify this information did not apply to criminal history information obtained from a source other than DCJIS.&nbsp; The new regulations require that employers who obtain CORI &nbsp;identify the specific information that is the basis for the potential adverse action, even when criminal history information is obtained from a source other than DCJIS.&nbsp; The regulations do not seem to extend this requirement to background screening companies that are required only to identify the information in the &ldquo;subject&rsquo;s CORI&rdquo; that is the basis for the potential adverse action.&nbsp; The regulations do, however, now require background screening companies to identify the source of criminal history information.&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;</p> <p> The regulations also continue to require employers (assuming the employer acts as a decision-maker or has direct contact with the subject of the background check) that conduct five or more criminal background checks to maintain a background check policy and to provide of copy of the policy with pre-adverse action notifications.&nbsp; This is the case whether CORI is obtained from DCJIS or any other source.&nbsp; DCJIS has, however, limited the requirement that an employer provide DCJIS <em>Information Concerning the Process in Correcting a Criminal Record</em> to those instances where CORI is considered as part of a potential adverse action.&nbsp; Employers should review their pre-adverse action notifications to ensure they comply with these requirements.</p> <p> <strong>Obtaining CORI from Background Screening Companies:</strong></p> <p> The regulations continue to allow background screening companies to obtain CORI on behalf of employers, but maintain the restrictions on the storage of this information which led many background screening companies to cease providing CORI.&nbsp; Specifically, the regulations continue to prohibit background screening companies from electronically or physically storing CORI results, unless the background screening company is authorized by the employer to act as the decision maker.&nbsp; In practice, employers very rarely enlist background check companies to act in this capacity, and many background check companies are hesitant to take on this role.&nbsp; Despite public comments asking DCJIS to reconsider this restriction, the regulations continue to impose this barrier to employers that use background screening companies.</p> <p> Additionally, the regulations have made clear that an employer must provide a statement to the background screening company indicating whether the annual salary of the position for which the subject is being screened is either above or below $75,000.&nbsp;</p> <p> Employers should work with their legal counsel and background check providers to ensure that their procedures and forms are in compliance with these new changes. &nbsp;</p> <p class="BodySingle"> <o:p></o:p></p> http://www.seyfarth.com:80/publications/BIO041417 Legislative Overview: First Quarter 2017 http://www.seyfarth.com:80/publications/BIO041417 Fri, 14 Apr 2017 00:00:00 -0400 <p> One goal of BioLoquitur is to provide commentary and analysis on important developments in U.S. law affecting the pharmaceutical and biologics industry. It can be easy to forget that legal developments are not limited to the latest court decisions or agency actions, however. &nbsp;The most profound changes in U.S. law arise from legislation. &nbsp; This post thus provides a snapshot of relevant legislative proposals for the first quarter in 2017.</p> <p> To read the entire blog post, <a href="http://www.bioloquitur.com/legislative-overview-first-quarter-2017/?utm_source=Seyfarth+Shaw+-+BioLoquitur&amp;utm_campaign=f9f5eee87b-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2a29f7eb44-f9f5eee87b-73099029">click here</a></p> http://www.seyfarth.com:80/publications/wilson-miller-silveira-authored-article-aim-blog-041317 Jean Wilson, Barry Miller and Alison Silveira authored an article for <i>AIM Blog</i> http://www.seyfarth.com:80/publications/wilson-miller-silveira-authored-article-aim-blog-041317 Thu, 13 Apr 2017 00:00:00 -0400 <p> Jean Wilson, Barry Miller and Alison Silveira authored &quot;State Readies New Rules on Background Checks,&quot; an article on April 13 for <em>AIM Blog</em>. &nbsp;This article discusses the Department of Criminal Justice Information Services&rsquo; (DCJIS) new rules for the Criminal Offender Record Information (CORI) law, which regulates the ability of employers to conduct criminal background checks.</p> <p> <a href="http://blog.aimnet.org/aim-issueconnect/state-readies-new-rules-on-background-checks?platform=hootsuite">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/WC041317 Plaintiffs’ Counsel Garner $15 Million Attorneys’ Fee Award For Largest TCPA Settlement In History http://www.seyfarth.com:80/publications/WC041317 Thu, 13 Apr 2017 00:00:00 -0400 <div> In what is being billed as the &ldquo;largest and strongest TCPA settlement in history,&rdquo; Judge Kennelly of the U.S. District Court for the Northern District of Illinois recently granted Plaintiffs&rsquo; counsel a minimum of $15.26 million in attorneys&rsquo; fees. &nbsp;However, the Court refused to depart from the &ldquo;sliding-scale structure,&rdquo; which has become the standard model in the Seventh Circuit for awarding fees in class actions, and declined to award Plaintiffs&rsquo; counsel one-third of the common fund (or $24.5 million) as requested.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/plaintiffs-counsel-garner-15-million-attorneys-fee-award-for-largest-tcpa-settlement-in-history/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=ce8a42b111-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-ce8a42b111-73050581">click here</a></div> http://www.seyfarth.com:80/news/foley-quoted-techworld-041317 Erin Dougherty Foley quoted by <i>Techworld</i> http://www.seyfarth.com:80/news/foley-quoted-techworld-041317 Thu, 13 Apr 2017 00:00:00 -0400 <p> Erin Dougherty Foley was quoted in &quot;5 ways your company can defuse a social media crisis,&quot; an April 13 story from <em>Techworld </em>on the critical steps employers can take to defuse a social media crisis. Foley said that the biggest mistake an employer makes is to shoot first and ask questions later.</p> <p> <a href="https://www.techworld.com.au/article/617684/5-ways-your-company-can-defuse-social-media-crisis/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/mcgurn-quoted-boston-dot-com-041217 Kristin McGurn quoted in <i>Boston.com</i> http://www.seyfarth.com:80/news/mcgurn-quoted-boston-dot-com-041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Kristin McGurn was quoted in &quot;When your Employer Cancels your Vacation,&quot; an April 12 story from <em>Boston.com</em> on whether an employer can ask you to cancel your vacation plans. McGurn said that many Massachusetts retailers impose black-out periods during which employees are instructed not to schedule vacation, for example because customer traffic is expected to be heavy during certain seasons.</p> <p> <a href="https://www.boston.com/jobs/job-doc/2017/04/12/when-your-employer-cancels-your-vacation">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/hoffman-quoted-bloomberg-BNA-041217 Valerie Hoffman quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/hoffman-quoted-bloomberg-BNA-041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Valerie Hoffman is quoted in &quot;Qualcomm&rsquo;s Private Settlement of Pay Bias Claim Enough for DOL,&quot; an April 12 story from <em>Bloomberg BNA</em> on Qualcomm Inc. agreeing to resolve Labor Department sex discrimination in pay allegations by tying the administrative settlement to a private $19.5 million class action settlement negotiated last year, according to agency documents published April 11. Hoffman said that the unusual settlement represents what could be a coming trend.</p> <p> <a href="https://www.bna.com/qualcomms-private-settlement-n57982086559/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/CCD041217 Employer Defeats Novel TCPA Class Action http://www.seyfarth.com:80/publications/CCD041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> In a first-of-its kind ruling, an employer recently secured the dismissal with prejudice of what is believed to be one of the first Telephone Consumer Protection Act class actions ever brought against a company while acting as an employer &ndash; specifically in this instance, the use of robo-calls to contact applicants about employment opportunities. The ruling ought to be required reading for corporate counsel in order to understand this emerging risk and to craft strategies to protect companies against such claims.</p> <p> To read the entire blog post, <a href="http://www.consumerclassdefense.com/2017/04/employer-defeats-novel-tcpa-class-action/?utm_source=Seyfarth+Shaw+-+Consumer+Class+Defense+Blog&amp;utm_campaign=10e8680914-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_2001c8ab9a-10e8680914-71256169">click here</a></p> http://www.seyfarth.com:80/publications/CP041217 Marijuana at Work: Testing of (and for) Mary Jane http://www.seyfarth.com:80/publications/CP041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> Last November, California voters passed Proposition 64&mdash;the Adult Use of Marijuana Act. The new law permits individuals over the age of 21 to possess up to one ounce of marijuana or eight grams of marijuana concentrates. California households, regardless of how many people reside there, can grow up to six plants at a time.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/12/marijuana-at-work-testing-of-and-for-mary-jane/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=8463306567-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-8463306567-71410869">click here</a></p> http://www.seyfarth.com:80/publications/WC041217 Denial Of Defenses: Illinois Court OK’s EEOC’s Pre-Suit Procedures http://www.seyfarth.com:80/publications/WC041217 Wed, 12 Apr 2017 00:00:00 -0400 <p> An increasingly common issue in EEOC litigation against employers involves the scope of the Commission&rsquo;s lawsuits as related to the charges of discrimination, as well as the EEOC&rsquo;s conciliation efforts, or lack thereof. &nbsp;In EEOC v. Dolgencorp, LLC, No. 13-CV-4307 (N.D. Ill. Apr. 10, 2017), the EEOC moved for partial summary judgment regarding two defenses enumerated by the defendant, Dolgencorp, LLC (&ldquo;Dollar General&rdquo;): (1) the EEOC&rsquo;s claims were barred as beyond the scope of the charges of discrimination and investigation; and (2) the EEOC failed to satisfy its Title VII pre-suit duty to conciliate with the employer.</p> <p> To read the full blog post, <a href="http://www.workplaceclassaction.com/2017/04/denial-of-defenses-illinois-court-oks-eeocs-pre-suit-procedures/">click here</a>.</p> http://www.seyfarth.com:80/publications/CDL041717 International Privacy Panel & Reception http://www.seyfarth.com:80/publications/CDL041717 Wed, 12 Apr 2017 00:00:00 -0400 <p> The New Sedona Conference&reg; Transitional International Litigation Principles: &nbsp;Practical Help for Companies Preparing for 2018 EU General Data Protection Regulation (GDPR) &amp; Navigating EU Privacy Shield Requirements.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/international-privacy-panel-reception/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=d7d9f4421d-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-d7d9f4421d-72857025">click here</a></p> http://www.seyfarth.com:80/publications/ReaList-April2017 The ReaList - Volume 1, Edition 1 http://www.seyfarth.com:80/publications/ReaList-April2017 Wed, 12 Apr 2017 00:00:00 -0400 <p> <span style="font-size:14px;">A publication of Seyfarth Shaw&#39;s New York Real Estate Practice. The ReaList newsletter covers New York real estate news, events, and trends.</span><br /> &nbsp;</p> <p> <strong>Real Estate Litigation:</strong></p> <p> <strong>&ldquo;Subject to&rdquo; Written Agreement Requirement May Not Require Written Agreement </strong><br /> A party that wishes to make its obligation subject to execution of a written agreement executed by both parties can do so, but must express that intent clearly and unmistakably. In <a href="http://www.nycourts.gov/ctapps/Decisions/2016/Dec16/191opn16-Decision.pdf">Stone Hill Capital Management v. The Bank of the West</a>, a bank sold a syndicated loan at auction, making its acceptance &quot;subject to&quot; execution of a written agreement. The bank ultimately changed its mind, and no formal written agreement was ever executed. The Court of Appeals nevertheless granted the winning bidder summary judgment, holding that the phrase &quot;subject to&quot; was insufficient to manifest the required unmistakable intent not to be bound until execution of a definitive agreement.</p> <p> If you have any questions, please contact <a href="mailto:jwolfert@seyfarth.com">Jonathan Wolfert</a> or <a href="mailto:skinne@seyfarth.com">Sarah Kinne</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Real Estate Finance:</strong></p> <p> <strong>Mortgage Recording Taxation Without Complication</strong><br /> The current framework of collecting mortgage recording tax in New York State overly complicates real estate transactions. The&nbsp;assignment and consolidation of mortgage process allows for the possibility of (i) double taxation (particularly in the residential market), (ii) defects in the mortgage chain complicating foreclosures and title insurance, and (iii) mercurial lenders and sellers insisting on&nbsp;being compensated for a portion of the mortgage tax &ldquo;savings&rdquo;.</p> <p> New York is one of only seven states, not including the District of Columbia, that require a mortgage recording tax to be paid on the principal amount of a loan secured by a mortgage, subject to certain qualifications. <a href="http://codes.findlaw.com/ny/tax-law/#!tid=NF7A62B6786854C5DB8C3D883A64A5227">Article 11 of New York State&rsquo;s Tax Law</a> allows for mortgage recording tax to be paid on the difference between the unpaid principal amount of an existing mortgage and the principal amount of the new mortgage loan.</p> <p> In the abstract, determining the correct amount of mortgage tax is a matter of rudimentary arithmetic. In practice, preserving the benefit of mortgage tax previously paid has developed into a Kafkaesque labyrinth of vintage notes, mortgages, allonges, consolidations, amendments, and affidavits.</p> <p> One method of simplifying mortgage tax payment and documentation is to distill the paperwork into a one-page affidavit. A mortgagor would sign an affidavit that complies with Section 255 of New York State Tax Law&nbsp;and Section 275 of New York Real Property Law by stating (i) the unpaid principal balance of the existing mortgage pursuant to a payoff letter attached as an exhibit thereto and that the proper mortgage tax was paid thereon, (ii) the new loan amount, (iii) the amount of mortgage tax to be paid at closing on the difference thereto, (iv) that assignee has not acted as a nominee of the mortgagor under the mortgage, and (v) the mortgage being assigned continues to secure a bona fide obligation.</p> <p> The District of Columbia has already implemented a similar streamlined practice for collecting mortgage tax, effectively eliminating the burden of the mortgage assignment and consolidation process, while still ensuring compliance with the spirit of <a href="http://codes.findlaw.com/ny/tax-law/tax-sect-255.html">Section 255</a> and <a href="http://codes.findlaw.com/ny/real-property-law/rpp-sect-275.html">Section 275</a>. The audacity of the taxes imposed by the Stamp Act stirred the American colonies into open rebellion; the least we can do is cut down on the paperwork.</p> <p> If you have any questions, please contact <a href="mailto:cderzie@seyfarth.com">Cyril Derzie</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Condominiums and Cooperatives:</strong></p> <p> <strong>Appellate Division Affirms Condominium Board&rsquo;s Rights To Foreclose Unit And Collect Rent From Defaulting Unit Owner</strong><br /> The Appellate Division, in <a href="http://nycourts.gov/reporter/3dseries/2017/2017_00257.htm">Heywood Condominium v. Wozencraft</a>, affirmed a condominium board&rsquo;s rights to (i) foreclose on a condominium unit whose owner had failed to pay common charges and (ii) evict the unit owner from the unit for having failed to pay fair market rent for his use and occupancy of the unit. The Appellate Division based its opinion not only on the Condominium Act (<a href="http://codes.findlaw.com/ny/real-property-law/rpp-sect-339-aa.html">Real Property Law &sect; 339 aa</a>), but also on the bylaws of the condominium. The bylaws specifically provided that the condominium had the right to file a lien against the unit for unpaid common charges, interest, legal fees, costs and expenses incurred in collecting its common charges, the right to foreclose the lien and the right to appoint a receiver. The Appellate Division also upheld the right of the condominium to restrict the defaulting unit owner&rsquo;s use of non-essential building amenities pursuant to the terms of the house rules.&nbsp;Heywood is distinguishable from other similar condominium foreclosure cases where the condominium was unable to obtain a foreclosure judgment that included attorneys&rsquo; fees, late fees and interest because the condominium&rsquo;s bylaws failed to provide for these additional costs.<br /> <br /> If you have any questions, please contact <a href="mailto:dgreenstein@seyfarth.com">Dennis Greenstein</a> or <a href="mailto:tgleason@seyfarth.com">Tom Gleason</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Health Care Real Estate &amp; Finance:</strong></p> <p> <strong>BoomerCare? Baby Boomer Senior Housing Affordability Issues</strong><br /> As the &quot;Baby Boomer&quot; generation continues to age and enter retirement, the need for senior housing and long-term care facilities offering services to residents across the socioeconomic spectrum continues to grow. One of the critical questions facing health care facility owners and developers is how to provide affordable long-term care for low and middle income patients. This question has become&nbsp; particularly relevant in light of potential reductions to, or restructuring of, Medicaid funding. While the senior housing industry recognizes this growing community of&nbsp;socioeconomically&nbsp;diverse patients requiring care, there are financial obstacles to facilities desiring to serve this community. An innovative solution that some health care financiers are working on with local housing authorities is to layer in low income based tax credits and/or Section 8 vouchers into new senior housing development projects. While this structure would likely subject the facilities to additional governmental restrictions, it could offer a reasonable incentive to providers to care for a growing part of the population in a financially viable manner.</p> <p> If you have any questions, please contact <a href="mailto:cmitchell@seyfarth.com">Cynthia Mitchell</a> or <a href="mailto:edahill@seyfarth.com">Elizabeth Dahill</a>.</p> <div align="center"> <hr align="center" size="2" width="100%" /> </div> <p> <strong>Development:</strong></p> <p> <strong>Decision Deadlocks and Exit Rights in JV Agreements: A Balancing Act</strong><br /> When documenting a joint venture (JV) care must be taken so that the decision making deadlock remedies and the parties&rsquo; exit rights from the JV complement each other.&nbsp; There are buy/sell provisions designed to &ldquo;encourage&rdquo; the parties to resolve major decision deadlocks or remove the deadlock through the buyout of one of the parties from the JV.&nbsp; If there is a decision deadlock, the basic buy/sell provisions&nbsp;allow either party to offer a buyout price for the other party&rsquo;s JV interest.&nbsp; The offeree party may either accept the buyout offer or turn it around and buyout the offeror party&rsquo;s JV interest.&nbsp; JV documents also typically allow the parties to exit the JV via (i) a sale of their respective JV interests, subject to the other party&rsquo;s right of first refusal or right of first offer as well as drag-along and tag-along rights, and (ii) a property level forced sale provision upon economic stabilization of the property.&nbsp; The decision making deadlock remedies and the parties&rsquo; exit rights from the JV must be appropriately integrated into the JV so an exit right cannot be used to thwart or undermine the decision making deadlock remedies.</p> <p> If you have any questions, please contact <a href="mailto:mborden@seyfarth.com">Miles Borden</a>.</p> http://www.seyfarth.com:80/publications/MA041117-LE California Supreme Court Invalidates Contractual Waivers Of Public Injunctive Relief http://www.seyfarth.com:80/publications/MA041117-LE Tue, 11 Apr 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis</em></strong><em>: No California contractual provision, including one in an arbitration agreement, can waive the statutory right to seek injunctive relief to protect the general public. </em>McGill v. Citibank, N.A.<em> (April 6, 2017).</em></p> <p> <strong>The Facts</strong></p> <p> Sharon McGill had a Citibank credit card. The account had a &ldquo;credit protector&rdquo; plan, by which Citibank would defer certain amounts on the credit card account if a qualifying condition occurred, such as divorce, hospitalization, or unemployment.</p> <p> In 2001, Citibank gave notice to McGill that their disputes would be subject to arbitration unless she opted out. She did not do so, either in 2001, or when Citibank gave renewed notices in 2005 and in 2007. In 2011, McGill filed a class action against Citibank based on how it handled her account following her loss of a job in 2008. By the time McGill sued, the arbitration agreement provided that disputes would be handled &ldquo;on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.&rdquo; By way of emphasis, the agreement stated: &ldquo;Claims must be brought in the name of an individual person or entity and must proceed on an individual (non-class, non-representative) basis. The arbitrator will not award relief for or against anyone who is not a party.&rdquo;</p> <p> McGill alleged claims under California&rsquo;s Unfair Competition Law (&ldquo;UCL&rdquo;), Consumer Legal Remedies Act (&ldquo;CLRA&rdquo;), and false advertising law. McGill sought an injunction prohibiting Citibank from continuing &ldquo;illegal and deceptive practices&rdquo; against the public.</p> <p> <strong>Trial and Appellate Court Decisions</strong></p> <p> Citibank, invoking the arbitration agreement, petitioned to compel McGill to arbitrate her claim on an individual basis. The trial court ordered her to arbitrate all claims other than those for injunctive relief under the UCL, the CLRA, and the false advertising law. The trial court held that, under the <em>Broughton-Cruz</em> rule, agreements to arbitrate claims for public injunctive relief under these statutes are not enforceable.</p> <p> On Citibank&rsquo;s appeal, the Court of Appeal reversed, directing the trial court to compel all claims to arbitration because the Federal Arbitration Act (&ldquo;FAA&rdquo;) preempts the <em>Broughton-Cruz</em> rule. McGill then filed a petition for review, asserting (1) that the Court of Appeal erred in finding FAA preemption of the <em>Broughton-Cruz</em> rule, and (2) the arbitration provision is invalid and unenforceable because it waives her right to seek public injunctive relief in any forum.</p> <p> <strong>The California Supreme Court Decision</strong></p> <p> The Supreme Court did not address the first issue (FAA preemption). And even as to the second issue, the Supreme Court did not reach the issue of whether there was an enforceable agreement to arbitrate, but rather decided that a contractual waiver of the right to seek a public injunction was unenforceable, regardless of whether that waiver appears in an arbitration agreement. The Supreme Court&rsquo;s decision on this narrow issue was unanimous.</p> <p> The Supreme Court began by noting that the three statutes at issue (the UCL, the CLRA, the false advertising law) all authorize injunctions to protect the general public. These public injunctions&mdash;which benefit a plaintiff only incidentally, as a member of the general public&mdash;differ from private injunctive relief, which resolves the plaintiff&rsquo;s private dispute and benefits the public, if at all, only incidentally. The <em>Broughton-Cruz</em> rule holds that agreements to arbitrate claims for public injunctive relief under the statutes in question are not enforceable.</p> <p> Although the Supreme Court had agreed to review whether this <em>Broughton-Cruz </em>rule is FAA-preempted, the Supreme Court concluded that the rule was not relevant here, because Citibank&rsquo;s arbitration agreement did not refer claims for public injunctions to arbitration, but rather banned such claims <em>in any forum</em>.</p> <p> Viewed in this light, the case was <em>not </em>about what an enforceable arbitration agreement would look like, but rather whether <em>any kind</em> of agreement could effectively waive the right to seek a public injunction. The Supreme Court concluded: &ldquo;the arbitration provision here at issue is invalid and unenforceable under state law insofar as it purports to waive McGill&rsquo;s statutory right to seek such relief.&rdquo; That result followed from Civil Code section 3513, which states that &ldquo;a law established for a public reason cannot be contravened by a private agreement.&rdquo; The Supreme Court reasoned that the three statutes in question, in authorizing public injunctive relief, did so for a public reason.</p> <p> The Supreme Court found this result consistent with the FAA. Although the FAA requires courts to treat arbitration agreements on a par with other contracts and to enforce them according to their terms, the FAA also permits arbitration agreements to be declared unenforceable &ldquo;upon such grounds as exist at law or in equity for the revocation of any contract.&rdquo; In this case, Civil Code section 3513 would provide a ground to revoke any provision, whether it appears in an arbitration agreement or some other kind of agreement. Thus, the Supreme Court concluded, the FAA did not preempt a California anti-waiver rule protecting the right to pursue a public injunction.</p> <p> Nor, the Supreme Court concluded, would an anti-waiver rule regarding public injunctions interfere with the fundamental attributes of arbitration (as the old <em>Discover Bank</em> anti-waiver rule had with respect to class actions).</p> <p> The existence of an anti-waiver rule with respect to public injunctions did&nbsp; not necessarily mean that the Citibank arbitration agreement was unenforceable. The Supreme Court expressly declined to decide that question and left it to be resolved on remand to the Court of Appeal.</p> <p> <strong>What <em>McGill </em>Means for Employers</strong></p> <p> <em>McGill </em>is important for what it did not decide as well as for what it did decide. First, <em>McGill </em>does <em>not </em>invalidate agreements that would have the arbitrator decide whether to issue a public injunction. All that would stand in the way of such an arbitration agreement would be the <em>Broughton-Cruz</em> rule, the continuing viability of which is suspect. That rule is FAA-preempted, according to the (now depublished) Court of Appeal decision in <em>McGill</em>, and the Supreme Court&rsquo;s decision avoids endorsing that rule.</p> <p> Second, <em>McGill </em>does <em>not </em>say that an arbitration agreement containing an invalid ban on public injunctive relief would necessarily be unenforceable. Courts often sever an unenforceable provision from an arbitration agreement and enforce the remainder of the agreement. Whether courts can thus save an arbitration agreement depends on the surrounding circumstances.</p> <p> <em>McGill </em>does counsel that employers, whether in the form of an arbitration agreement or in some other sort of agreement, cannot require employees to waive their right to seek injunctions that would be primarily for the benefit of the public, and only incidentally of benefit for the employee.</p> http://www.seyfarth.com:80/publications/MA041117-INTL New UK Limited Partnership for Private Funds http://www.seyfarth.com:80/publications/MA041117-INTL Tue, 11 Apr 2017 00:00:00 -0400 <div> On 6 April 2017, a new form of limited partnership came into existence with the introduction of a &lsquo;private fund limited partnership&rsquo; (PFLP) under the <em>Legislative Reform (Private Fund Limited Partnership) Order 2017 (LRO)</em>. &nbsp;The PFLP is intended to make the limited partnership structure more attractive for asset managers and investors by reducing some of the administrative and financial burdens of the LP structure and by clarifying which activities a limited partner can undertake without losing or risking its limited liability. The Government hopes that the new PFLP structure will make the UK an attractive domicile for funds compared to other jurisdictions.</div> <div> &nbsp;</div> <div> <strong>Designation as a PFLP</strong></div> <div> &nbsp;</div> <div> Existing and new UK limited partnerships may elect to be designated as a PFLP if two &lsquo;private fund conditions&rsquo; are satisfied, namely:</div> <div> &nbsp;</div> <ul> <li> It is constituted by an agreement in writing; and&nbsp;</li> <li> It is a collective investment scheme (as defined in section 235 of the <em>Financial services and Markets Act 2000 </em>(FSMA). &nbsp;</li> </ul> <div> &nbsp;</div> <div> It is expected that most funds and co-investment and alternative investment vehicles will satisfy these conditions.</div> <div> &nbsp;</div> <div> An existing LP may choose to apply for PFLP status if it fulfils the above conditions by application to Companies House in the UK. &nbsp;Similarly, a new LP may apply to Companies House for registration as a PFLP. &nbsp;Once registered and designated, the registrar will issue a certificate of registration and a certificate of designation as a PFLP or a combined certificate.</div> <div> &nbsp;</div> <div> An LP that is designated as a PFLP will not be able to reverse the process and return to LP status.</div> <div> &nbsp;</div> <div> <strong>Advantages of a PFLP</strong></div> <div> &nbsp; &nbsp;&nbsp;</div> <div> <em>Non-exhaustive &lsquo;white list&rsquo; of permitted activities</em> - In a traditional LP a limited partner may not take part in the management of the LP&rsquo;s business without becoming liable for the LP&rsquo;s debts, and there has, until now, been uncertainty as to which activities would amount to &lsquo;taking part in the management&rsquo; of the LP. &nbsp;For PFLPs section 6A of the LRO sets out a non-exhaustive &lsquo;white list&rsquo; of activities a limited partner of a PFLP may carry on without being considered to take part in the management of the business and without losing its limited liability. &nbsp;The &lsquo;white list&rsquo; of activities is particularly intended to cover institutional investors which have a strong interest in the relevant fund and have obligations to their own members or investors. &nbsp;The &lsquo;white list&rsquo; includes:</div> <div> &nbsp;</div> <ul> <li> Taking part in a decision about the variation or waiver of a term of the partnership agreement or associated documents, changes to the general nature of the partnership business, an entity becoming or ceasing to be a partner and &nbsp;termination or extension of the term of the partnership;</li> <li> Appointing a person to wind up the partnership;</li> <li> Enforcing an entitlement under the partnership agreement;</li> <li> Entering into, or acting under, a contract with the other partners in the partnership;</li> <li> Providing surety or acting as guarantor for the partnership;</li> <li> Approving the accounts of the partnership;</li> <li> Reviewing or approving a valuation of the partnership&rsquo;s assets; &nbsp;</li> <li> Taking part in a decision regarding changes in persons responsible for the day-to-day management of the partnership;&nbsp;</li> <li> Appointing or nominating a person to represent the limited partner on a committee; and&nbsp;</li> <li> Taking part in a decision about how the partnership should exercise any right as an investor in another collective investment scheme. &nbsp; &nbsp;</li> </ul> <div> &nbsp;</div> <div> <em>No capital contributions -</em> Unlike for traditional LPs, in a PFLP limited partners are not required to contribute any capital to the PFLP, and any capital contributed may be withdrawn during the life of the PFLP;</div> <div> &nbsp;</div> <div> <em>No need to file Gazette notices -</em> The LRO has removed the obligation to file a Gazette notice on a transfer of an interest by a limited partner of a PFLP. However, the requirement to file remains where any person will cease to be a general partner in a PFLP.&nbsp;</div> <div> &nbsp;</div> <div> <em>Administrative burdens removed -</em> Unlike LPs which are not PFLPs, a PFLP is not required to file notices at Companies House of changes to the partnership&rsquo;s business or term of the partnership or details of capital contributed by any limited partner.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Disadvantages of a PFLP?</strong></div> <div> &nbsp; &nbsp;&nbsp;</div> <div> Although there don&rsquo;t appear to be any disadvantages with funds registering to be designated as a PFLP, existing funds (as with new funds) will incur some administrative time and costs in re-designating an LP as a PFLP. It will depend on the terms of the relevant partnership agreement, but there may be a requirement to notify or obtain the consent of the limited partners before applying for a re-designation. &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> <strong>Winding-up a PFLP</strong></div> <div> &nbsp;</div> <div> The requirement for limited partners to obtain a court order to wind-up a limited partnership when there is no general partner does not apply to a PFLP. The LRO grants the limited partners of a PFLP the power to authorise a third party to wind-up the partnership on their behalf.</div> http://www.seyfarth.com:80/publications/WC041117 D.C. Court Certifies Three Classes In Race Discrimination Class Action Involving Criminal Background Policy http://www.seyfarth.com:80/publications/WC041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> In a class action alleging that the criminal background policy of Washington D.C.&rsquo;s local transit authority had a disparate impact on African-Americans, a federal district court recently certified three classes of African-American employees and applicants despite the employer&rsquo;s workforce being 75% African-American. The ruling &ndash; in L<em>ittle v. Washington Metropolitan Area Transit Authority</em>, No. 14-1289, 2017 U.S. Dist. LEXIS 48637 (D.D.C. Mar. 31, 2017), is a &ldquo;must read&rdquo; for employers that use hiring screens.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/d-c-court-certifies-three-classes-in-race-discrimination-class-action-involving-criminal-background-policy/">click here</a></p> http://www.seyfarth.com:80/publications/ADA041117 Florida Courts Rule ADA Covers Websites With Nexus To Physical Store http://www.seyfarth.com:80/publications/ADA041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> The Eleventh Circuit Court of Appeals (which includes Florida, Alabama, and Georgia) has yet to decide whether and to what extent Title III of the ADA applies to websites of public accommodations, but recent rulings from three different federal judges in Florida do provide insight on where the judges in that circuit may draw the lines.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/04/florida-courts-rule-ada-covers-websites-with-nexus-to-physical-store/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=3043d018e5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-3043d018e5-71256157">click here</a></p> http://www.seyfarth.com:80/publications/EL041117 Are Your Employees Texting? The Risks To Employers In Taking Workplace Communications Offline http://www.seyfarth.com:80/publications/EL041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Given the issues workplace texting presents for employers, employers would be wise to make clear in their policies what method of communication employees may use in the workplace for business purposes. If texting is allowed or tolerated in the workplace, employers need to review their policies relating to employee communication and record retention to make sure texts, in additional to email, are covered.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/are-your-employees-texting-the-risks-to-employers-in-taking-workplace-communications-offline/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=93af582c32-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-93af582c32-71256185">click here</a></p> http://www.seyfarth.com:80/news/maatman-quoted-westlaw-journal-employment-041117 Gerald Maatman quoted in <i>Westlaw Journal Employment</i> http://www.seyfarth.com:80/news/maatman-quoted-westlaw-journal-employment-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court Oks narrow review of EEOC subpoena rulings,&quot; an April 11 story from <em>Westlaw Journal Employment</em> on a U.S. Supreme Court ruling that says appellate courts should defer to district court decisions regarding EEOC subpoena requests and only consider if the lower court abused its discretion in approving or denying a subpoena. Maatman said that the Supreme Court&rsquo;s decision will make it more difficult to overturn a district court&rsquo;s decision on an employer&rsquo;s challenge to an EEOC subpoena.</p> http://www.seyfarth.com:80/news/babson-quoted-law360-041117 Marshall Babson quoted by <i>Law360</i> http://www.seyfarth.com:80/news/babson-quoted-law360-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Marshall Babson was quoted in &quot;GOP Rage At Obama&#39;s Labor Board Could Cost Trump&#39;s NLRB,&quot; an April 11 story in <em>Law360 </em>on how there&rsquo;s a sense in the GOP-controlled Capitol that the Obama NLRB board made too many pro-union decisions, something that could lead Congress to exact revenge via the NLRB&#39;s budget, which would hamper the agency and force difficult decisions about how to administer federal labor law. Babson said that there&rsquo;s enough residual anger among the politicians on the Hill, particularly Republicans, at what the National Labor Relations Board has done during the last eight years.</p> http://www.seyfarth.com:80/news/maatman-quoted-cook-county-record-041117 Gerald Maatman quoted in the <i>Cook County Record</i> http://www.seyfarth.com:80/news/maatman-quoted-cook-county-record-041117 Tue, 11 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Judge tosses TCPA lawsuit vs Kelly Services over robocalls to job applicants,&quot; an April 11 story from the <em>Cook County Record</em> on a U.S. District Court judge dismissal of a robocalling lawsuit against an employment services company, which had been accused of violating federal law by using an automated dialer to call the mobile phones of people who had applied for jobs. Maatman said that this case is a first of its kind because typically these kinds of cases involve robocalls about advertisements.</p> <p> <a href="http://cookcountyrecord.com/stories/511103216-judge-tosses-tcpa-lawsuit-vs-kelly-services-over-robocalls-to-job-applicants">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/real-estate-lawyer-tyler-stradling-joins-seyfarth Real Estate Lawyer Tyler Stradling Joins Seyfarth http://www.seyfarth.com:80/news/real-estate-lawyer-tyler-stradling-joins-seyfarth Mon, 10 Apr 2017 00:00:00 -0400 <div> Seyfarth Shaw LLP announced today the arrival of partner Tyler Stradling to the real estate practice in Boston. Stradling joins from Fennemore Craig, PC where he was a director and equity partner.</div> <div> &nbsp;</div> <div> Stradling&rsquo;s practice concentrates on real estate transactions representing property owners and developers in connection with retail leasing, commercial and real estate development, convenience store development, covenants and easements, condominium, and property acquisitions and sales.</div> <div> &nbsp;</div> <div> &ldquo;Tyler is an excellent transactional lawyer and is joining a team that is handling an increasing volume of national real estate deals for clients,&rdquo; said Paul Mattingly, chair of Seyfarth&rsquo;s Real Estate department. &ldquo;His addition aligns with our strategic goal to expand our leasing capabilities and provide quality value and service to our clients across the country.&rdquo;</div> <div> &nbsp;</div> <div> Earlier in his career, Stradling served as a judicial law clerk to the Honorable Chief Justice Charles E. Jones of the Arizona Supreme Court.</div> <div> &nbsp;</div> <div> &ldquo;Our real estate group is eager to collaborate with Tyler on the surge of complex real estate transactions we manage across our national platform,&rdquo; said Russell Swapp, managing partner of Seyfarth&rsquo;s Boston office.&nbsp;</div> <div> &nbsp;</div> <div> Stradling received his J.D., <em>magna cum laude</em>, from Brigham Young University and earned his B.A., summa cum laude, from Arizona State University.&nbsp;</div> <div> &nbsp;</div> <div> With more than 140 real estate lawyers across the country, Seyfarth has one of the largest real estate practices in the United States. Both national and local in scope, Seyfarth provides a full range of services including development, construction, leasing, acquisitions, dispositions, financing, and joint ventures.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80/news/clark-simonsen-curtis-young-quoted-business-insurance-041017 Brent Clark, Craig Simonsen, James Curtis and Adam Young quoted in <i>Business Insurance</i> http://www.seyfarth.com:80/news/clark-simonsen-curtis-young-quoted-business-insurance-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Brent Clark, Craig Simonsen, James Curtis and Adam Young were quoted in &quot;Lawsuit over OSHA electronic records rule delayed,&quot; an April 10 story by <em>Business Insurance</em> on how a Texas court has granted a request for a 60-day delay in litigation over the U.S. Occupational Safety and Health Administration&rsquo;s electronic record-keeping rule. They noted that, while it remains to be seen how either of these legal challenges will fare, the business community has shown a willingness to strongly oppose this new rule &mdash; a rule that has been widely criticized as emblematic of regulatory overreach.</p> <p> <a href="http://www.businessinsurance.com/article/20170410/NEWS08/912312842/OSHA-electronic-record-keeping-rule-lawsuit-delayed">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/maatman-mentioned-bloomberg-BNA-daily-labor-report-041017 Gerald Maatman mentioned in <i>Bloomberg BNA Daily Labor Report</i> http://www.seyfarth.com:80/news/maatman-mentioned-bloomberg-BNA-daily-labor-report-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Bull&#39;s-Eye on Gender Pay Gap; Laws, Lawsuits Proliferating,&quot; an April 10 story from <em>Bloomberg BNA Daily Labor Report</em> on how class-action litigators and shareholder activists are pushing for pay equity in the courtroom and in shareholder resolutions. Maatman said that how companies compensate workers is likely the number one area where the plaintiffs&rsquo; bar and governmental enforcement litigators are bringing class actions.</p> <p> <a href="http://news.bna.com/dlln/DLLNWB/split_display.adp?fedfid=109160444&amp;vname=dlrnotallissues&amp;jd=a0m2f3a0n3&amp;split=0">You can view the full article here</a>.</p> http://www.seyfarth.com:80/publications/CP041017 Flex Your Pecs! The 2017 Edition of Cal-Peculiarities Has Arrived! http://www.seyfarth.com:80/publications/CP041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Fresh off the presses we bring to you the latest and greatest version of our beloved<strong><em> Cal-Peculiarities: How California Employment Law is Different</em></strong>, your California employment law roadmap. It is created to help private employers who do business in California steer through the nuances of California employment law. In the 2017 Edition, we continue to highlight recent court decisions and legislative developments. Don&rsquo;t get caught in the driver&rsquo;s seat without it!</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/10/flex-your-pecs-the-2017-edition-of-cal-peculiarities-has-arrived/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=db59d652f8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-db59d652f8-71410869">click here</a></p> http://www.seyfarth.com:80/publications/hendrickson-and-savadjian-authored-article-for-finance-digest-041017 Christine Hendrickson and Lisa Savadjian authored an article for <i>Finance Digest</i> http://www.seyfarth.com:80/publications/hendrickson-and-savadjian-authored-article-for-finance-digest-041017 Mon, 10 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson and Lisa Savadjian authored &quot;The Trend Continues: NYC Passes Salary History Ban,&quot; an article on April 10 for <em>Finance Digest</em>. &nbsp;This article discusses the New York City Council&rsquo;s approval of a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process.</p> <p> <a href="https://www.financedigest.com/the-trend-continues-nyc-passes-salary-history-ban.html">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM041717-LIT Last Minute Challenge to FDA Menu Labeling Rules http://www.seyfarth.com:80/publications/OMM041717-LIT Mon, 10 Apr 2017 00:00:00 -0400 <div> A group of major grocers and retailers has recently petitioned the Food and Drug Administration (&ldquo;FDA&rdquo;) to stay and reconsider its new menu labeling rules. The FDA had previously finalized new menu labeling rules in connection with the Affordable Care Act to make calorie and nutrition information more available for consumers when dining out. After multiple extensions, the current compliance and enforcement date for the menu labeling rules is <strong>May 5, 2017</strong>.&nbsp;</div> <div> &nbsp;</div> <div> The nationwide menu labeling rules were initially welcomed by the restaurant industry because the rules were expected to provide nationwide uniformity and harmony to the patchwork rise of various state and local laws and regulations regarding calorie and nutritional disclosures. The petitioner grocers and retailers argue, however, that the new menu labeling rules are overly broad and encompass too many businesses, do not properly clarify what constitutes a &ldquo;menu,&rdquo; and will cause significant costs for compliance. &nbsp;</div> <div> &nbsp;</div> <div> With the compliance and enforcement date fast approaching, companies that are subject to the menu labeling rules should ensure their menu boards and menus comply with the new labeling rules regardless of the pending petition. Such companies should also ensure they have a reasonable basis for any nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined. Indeed, these menu disclosure issues are already being closely followed by the plaintiff&rsquo;s bar, who continue to file consumer class actions that allege misrepresentations of calorie and nutrition disclosures. &nbsp; &nbsp;</div> <div> &nbsp;</div> <div> The following is a list of the key requirements under the new menu labeling rules:</div> <ol> <li> Applies to all restaurants and similar retail food establishments nationwide with (a) 20 or more locations, (b) doing business under the same name, and (c) offering for sale substantially the same menu items (similar but separate rules have also been enacted for food sold from vending machines).</li> <li> All menu boards must clearly and conspicuously contain the following two statements: (a) &ldquo;2,000 calories a day is used for general nutrition advice, but calorie needs vary,&rdquo; and &ldquo;Additional written nutrition information available upon request.&rdquo; &nbsp;</li> <li> &ldquo;Menu boards&rdquo; subject to these disclosure requirements are defined as all primary writings from which the consumer makes his or her order sections (e.g., in-store menu boards, Internet menus, takeaway menus).</li> <li> Calorie information must be clearly and conspicuously displayed next to the name or price of &ldquo;standard menu items&rdquo; (i.e., routinely included on menu or offered, excluding condiments, daily specials, temporary menu items, custom order, and customary market test foods, and food offered for sale for less than a total of 60 days per calendar year or fewer than 90 consecutive days to test consumer acceptance), but no specific color, font size, or contrasting background is required.</li> <li> Calorie information must be declared on signs adjacent to foods on display and self-serve foods (e.g. salad bars, buffets) that are standard menu items.&nbsp;</li> <li> When a menu or menu board lists flavors or varieties for an entire individual variable menu item, the calories must typically be declared separately for each listed flavor or variety, or flavors and varieties may be grouped together as a single listing if they have the same calorie content.</li> <li> If the menu or menu board does not list flavors or varieties, and only includes a general description of the variable menu item (e.g. , &ldquo;soft drinks&rdquo;), the calories must be declared for each option with a slash between the two calorie declarations where only two options are available (e.g., &ldquo;150/200 calories&rdquo;), or as a range where more than two options are available (e.g., &ldquo;100-250 calories&rdquo;).</li> <li> The following written nutrition information must be available to consumers upon their request: total calories, calories from fat, total fat, saturated fat, trans fat, cholesterol, sodium, total carbohydrates, fiber, sugars, and protein.</li> <li> Finally, &ldquo;[w]hen a standard menu item, including a beverage, is listed on a menu or menu board by name with different sizes, or each size has its own price, each size would constitute a standard menu item rather than a different flavor, variety, or combination, and each standard menu item must include a calorie declaration.&rdquo;</li> <li> A covered establishment must have a reasonable basis for its nutrient content declarations and take reasonable steps to ensure that the method of preparation and amount of a standard menu item adheres to the factors on which nutrient values were determined. &nbsp;</li> <li> Violations may result in enforcement actions for injunctive relief and criminal and civil penalties.&nbsp;</li> </ol> http://www.seyfarth.com:80/publications/WC040917 Court Uses Novel Issue Certification Device To Sidestep Individualized Issues Otherwise Precluding Class Certification http://www.seyfarth.com:80/publications/WC040917 Sun, 09 Apr 2017 00:00:00 -0400 <p> A group of female truck drivers sued their employer for policies allegedly resulting in a hostile work environment for and retaliation against women who complained of sexual harassment on the job. &nbsp;Under Rules 23(b)(3) and 23(c)(4), the U.S. District Court for the Northern District of Iowa certified both a hostile work environment class and retaliation class on issues relating to the employer&rsquo;s liability. &nbsp;Such certification was made possible by the drivers&rsquo; bifurcation proposal, which involved a representative trial on aspects of liability and individualized trials on remaining aspects of liability and damages. &nbsp;Employers should take note that there is a trend among some federal courts to use Rule 23 in novel ways to certify classes of employees to avoid confronting issues that, traditionally, would preclude class certification.</p> <p> To read the entiore blog post, <a href="http://www.workplaceclassaction.com/2017/04/court-uses-novel-issue-certification-device-to-sidestep-individualized-issues-otherwise-precluding-class-certification/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=f9e07f2257-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-f9e07f2257-73050581">click here</a></p> http://www.seyfarth.com:80/publications/WSE040717 OSHA Delays Enforcement of Crystalline Silica Standard for Construction http://www.seyfarth.com:80/publications/WSE040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Crystalline silica is a staple of our modern society. &nbsp;OSHA notes that it&rsquo;s a common mineral that is found in many naturally occurring materials, and used in many industrial products and at construction sites. &nbsp;Materials such as sand, concrete, stone and mortar contain crystalline silica. Crystalline silica is also used to make products like glass, pottery, ceramics, bricks, concrete and artificial stone. &nbsp;Industrial sand is also used in certain foundry work and hydraulic fracturing (fracking) operations. &nbsp;OSHA estimates that 2.3 million workers are exposed to crystalline silica on the job.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/chemical-safety/osha-delays-enforcement-of-crystalline-silica-standard-for-construction/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=61dd355e07-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-61dd355e07-71407177">click here</a></p> http://www.seyfarth.com:80/publications/OMM040717 President Trump Signs Executive Orders on Trade and Designates Trade and Customs Law Violations as Law Enforcement “High Priority” http://www.seyfarth.com:80/publications/OMM040717 Fri, 07 Apr 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> Fulfilling early-made campaign promises, President Donald J. Trump issued two Executive Orders on March 31, 2017 that demonstrate his administration&rsquo;s commitment to combatting unfair trade practices. In particular, and with far-reaching implications, one of the President&rsquo;s Executive Orders directs the Attorney General to &ldquo;ensure that Federal prosecutors accord a high priority to prosecuting significant offenses related to violations of trade laws.&rdquo; The same Executive Order also directs the Secretary of Homeland Security, through the Commissioner of Customs and Border Protection, to &ldquo;develop and implement a strategy and plan for combating violations of United States trade and customs laws.&rdquo;</em></div> <div> &nbsp;</div> <div> These Executive Orders are of significant consequence because federal law prohibits any person or company from receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of imported merchandise knowing the merchandise to have been imported into the United States contrary to law. As we have been predicting -- and borrowing from other areas of law enforcement success, such as the enforcement of the Foreign Corrupt Practices Act (FCPA) -- we believe these Executive Orders will lead to increased criminal and other enforcement actions involving trade, customs, antidumping duties, and countervailing duties practices.</div> <div> &nbsp;</div> <div> On March 31, 2017, President Trump issued two Executive Orders in furtherance of his campaign promises to combat unfair trade practices that contribute to the United States&rsquo; trade deficit and &ldquo;expose United States employers to unfair competition and deprive the Federal Government of lawful revenue.&rdquo; Among the Executives Orders&rsquo; clear announcements is this: Federal prosecutors and other law enforcement partners must &ldquo;vigorously enforce[e] our Nation&rsquo;s trade laws.&rdquo;</div> <div> &nbsp;</div> <div> In this regard: The first Executive Order focuses on studying and better understanding the scope and magnitude of the problem; among other actions, it directs the Secretary of Commerce and the U.S. Trade Representative to submit a report to the President on the foreign trading partners with which the United States has a significant trade deficit. In particular, the report is to &ldquo;address the major causes of the trade deficit, including, as applicable, differential tariffs, non-tariff barriers, injurious dumping, injurious government subsidization, intellectual property theft, forced technology transfer, denial of worker rights and labor standards, and any other form of discrimination against the commerce of the United States or other factors contributing to the deficit.&rdquo;</div> <div> &nbsp;</div> <div> The second Executive Order announces a law enforcement policy shift: &ldquo;The Attorney General, in consultation with the Secretary of Homeland Security, shall develop recommended prosecution practices and allocate appropriate resources to ensure that Federal prosecutors accord a high priority to prosecuting significant offenses related to violations of trade laws.&rdquo; Similarly, the Executive Order directs the Department of Justice&rsquo;s law enforcement partners, Homeland Security Investigations and Customs and Border Protection, to &ldquo;develop and implement a strategy and plan for combating violations of United States trade and customs laws for goods and for enabling interdiction and disposal, including through methods other than seizure, of inadmissible merchandise entering through any mode of transportation[.]&rdquo;</div> <div> &nbsp;</div> <div> In announcing this new law enforcement priority, the Executive Order singles out the assessment and collection of antidumping and countervailing duties as areas especially prone to fraud and abuse. Antidumping duties are owed when a foreign manufacturer sells goods in the United States at less than fair value, causing injury to the domestic industry for those goods. Countervailing duties occur when a foreign government provides assistance and subsidies, such as tax breaks, to manufacturers that export goods to the United States, enabling the manufacturers to sell the goods cheaper than domestic manufacturers. The Order notes the past difficulties the United States has had in collecting these duties, especially where companies lack assets in the United States. To improve the United States government&rsquo;s collection of antidumping and countervailing duties, the Executive Order directs the Secretary of Homeland Security and others to develop a system whereby certain importers would be required to post a bond as security for any potential duties before being allowed to</div> <div> import to the United States.</div> <div> &nbsp;</div> <div> From an enforcement standpoint, the implications of the President&rsquo;s Executive Orders are far-reaching and extend well beyond abuses in antidumping and countervailing duties. This is because federal law criminalizes both:</div> <div> &nbsp;</div> <ul> <li> the fraudulent and knowing importation of merchandise <em><strong>&ldquo;contrary to law&rdquo; and</strong></em></li> <li> the <em><strong>receipt, concealment, purchase, or sale</strong></em> (or any action that &ldquo;in any manner facilitate[s] the transportation, concealment or sale&rdquo;) of any imported merchandise knowing the merchandise entered the United States <em><strong>&ldquo;contrary to law.&rdquo;</strong></em></li> </ul> <div> &nbsp;</div> <div> That means that federal prosecutors not only can prosecute those involved in abuses involving the importation of goods into the United States, but anyone in the supply chain who receives, conceals, buys, sells, or transports those goods after importation. And, the government&rsquo;s ability to investigate and prosecute individuals and companies is not just limited to violations involving tariffs and duties, but extends to a wide spectrum of violations involving imported merchandise, including: intellectual property theft; counterfeiting activities; violations involving country-of-origin markings, product substitutions, and product labeling requirements; food fraud; and forced, child, or abusive overseas labor practices, among others.</div> <div> &nbsp;</div> <div> Click on the links below to read the full text of these Orders.</div> <div> &nbsp;</div> <div> <div> <a href="https://www.whitehouse.gov/the-press-office/2017/03/31/presidential-executive-order-establishing-enhanced-collection-and">Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Law</a></div> <div> &nbsp;</div> <div> <a href="https://www.whitehouse.gov/the-press-office/2017/03/31/presidential-executive-order-regarding-omnibus-report-significant-trade">Omnibus Report on Significant Trade Deficits</a></div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM040717-EB Exempt Stock Compensation Limits May Increase http://www.seyfarth.com:80/publications/OMM040717-EB Fri, 07 Apr 2017 00:00:00 -0400 <div> On April 4, 2017, the House of Representatives passed H.R. 1343, entitled the Encouraging Employee Ownership Act of 2017, increasing the number of shares that can be granted as compensation by an issuer to its employees without registration. &nbsp;</div> <div> &nbsp;</div> <div> For background, Rule 701 under the Securities Act of 1933 currently provides a mechanism for non-public companies to offer and sell their securities for the purpose of providing compensation to their own employees without the need to register those securities. The idea behind the Rule was to help small start-up companies avoid complex reporting and disclosure requirements to register their securities when their only sales were to their own employees. As a result, &nbsp;Rule 701 arrangements are thought of as compensatory plans, and a copy of the plan must be delivered to each employee investor. &nbsp;There are limits on how much may be sold in any 12-month period, but if the company believes sales under the plan will exceed $5,000,000 in a coming 12-month period, the company must disclose risk factors and certain financial statements to the employee investors.</div> <div> &nbsp;</div> <div> The new legislation would double the $5,000,000 figure to $10,000,000 before a company would have to reveal financial information. Those in favor of the bill point out that the limit has not been adjusted since 1999, and the new limit would be indexed for changes in the Consumer Price Index. They also argue that the increased limit will help small companies recruit talent by being able to offer increased equity stakes. Those against the bill believe it would limit transparency and companies who wish to compensate their employees with large amounts of equity should have to disclose the risks of that equity.&nbsp;</div> <div> &nbsp;</div> <div> The Senate will now take up the matter where an identical bill (S. 488) awaits their review.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA040717-LE H-1B Quota Reached http://www.seyfarth.com:80/publications/MA040717-LE Fri, 07 Apr 2017 00:00:00 -0400 <p> <strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">To stay up-to-date on Immigration developments,<a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer;">&nbsp;sign up</a>&nbsp;for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;">Seyfarth Synopsis:&nbsp;</strong>USCIS announced today that it has reached the FY 2018 H-1B Cap.</em></p> <p> On April 7, 2017, United States Citizenship &amp; Immigration Services (USCIS) announced that it received sufficient H-1B petitions to meet both the Master&rsquo;s and regular H-1B quotas (or &quot;caps&quot;) for Fiscal Year 2018, which begins on October 1, 2017. This means that USCIS received more than 85,000 H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master&rsquo;s H-1B cap. USCIS will use a computer-generated random selection process for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings will be adjudicated.<br /> <br /> USCIS will apply the lottery process first to cases subject to the H-1B Master&rsquo;s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master&rsquo;s degrees or higher degrees. Any Master&rsquo;s cap petitions not selected in the Master&rsquo;s lottery will be eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa. It is anticipated that USCIS will begin to issue receipt notices in May.</p> <p> For additional background information on the H-1B visa program and the cap, please see our previous Client Alert titled, <a href="http://www.seyfarth.com/publications/MA011717-LE">&ldquo;H-1B Work Permit Filings: Will You Beat the Cap?&rdquo;</a></p> http://www.seyfarth.com:80/publications/grossenbacher-authored-article-Law360-040717 Karla Grossenbacher authored an article in <i>Law360</i> http://www.seyfarth.com:80/publications/grossenbacher-authored-article-Law360-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Karla Grossenbacher authored &quot;Employer Risks When Workplace Communications Go Offline,&quot; an article on April 7 in <em>Law360 </em>on how employers, who allow employees to text in the workplace, will need to think about how they will access, view and preserve employee texts in the same manner that they do with emails.</p> http://www.seyfarth.com:80/news/hendrickson-quoted-new-york-law-journal-0407117 Christine Hendrickson quoted by the <i>New York Law Journal</i> http://www.seyfarth.com:80/news/hendrickson-quoted-new-york-law-journal-0407117 Fri, 07 Apr 2017 00:00:00 -0400 <p> Christine Hendrickson was quoted in &quot;Employment Law Experts Question Bill Banning Salary History Questions for Job Applicants,&quot; an April 7 story by the <em>New York Law Journal</em> on whether a New York City bill banning the city&#39;s private employers from asking job applicants about their salary histories would narrow the wage gap among male and female workers and those of different races, as hoped for by the bill&#39;s proponents. Hendrickson said that the New York City bill is a policy solution that looks a lot better on paper than it will be in practice.</p> http://www.seyfarth.com:80/news/seyfarth-middle-market-mergers-and-acquistions-surveybook-featured-in-deal-lawyers-040717 Seyfarth’s Middle-Market M&A SurveyBook featured in <i>Deal Lawyers</i> http://www.seyfarth.com:80/news/seyfarth-middle-market-mergers-and-acquistions-surveybook-featured-in-deal-lawyers-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Middle-Market M&amp;A SurveyBook was featured in &quot;Survey: Middle-Market Private Deal Terms,&quot; an April 7 story from <em>Deal Lawyers.</em> The Survey suggests that while the current M&amp;A environment is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than 2015.</p> <p> <a href="https://www.deallawyers.com/blog/2017/04/survey-middle-market-private-deal-terms.html">You can view the full article here</a>.</p> http://www.seyfarth.com:80/news/clark-and-simonsen-quoted-material-handling-and-logistics-040717 Brent Clark and Craig Simonsen quoted in <i>Material Handling & Logistics</i> http://www.seyfarth.com:80/news/clark-and-simonsen-quoted-material-handling-and-logistics-040717 Fri, 07 Apr 2017 00:00:00 -0400 <p> Brent Clark and Craig Simonsen were quoted in &quot;Republican Regulatory Reform Agenda Advances Under the Radar,&quot; an April 7 story by <em>Material Handling &amp; Logistics</em> on how the agency recently sought to publicize a renewed safety campaign encouraging employer emulation of best practices and adoption of a systemic approach to promoting health and safety. Clark and Simonsen noted that whether this news release and these associated webpages signal a change in the overall approach OSHA will take under President Trump&rsquo;s new Administration is yet to be seen, but this is not the tone we have seen from OSHA in the last several years.</p> <p> <a href="http://mhlnews.com/transportation-distribution/republican-regulatory-reform-agenda-advances-under-radar">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/maatman-quoted-in-hr-dive-040617 Gerald Maatman quoted in <i>HR Dive</i> http://www.seyfarth.com:80/news/maatman-quoted-in-hr-dive-040617 Thu, 06 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court gives district courts more control over EEOC subpoenas,&quot; an April 6 story from <em>HR Dive</em> on the U.S. Supreme Court concluding that appeals courts should take their cue from district court rulings on whether to uphold Equal Employment Opportunity Commission (EEOC) subpoenas. Maatman said that a district court&rsquo;s decision to uphold or deny an EEOC subpoena will be more difficult to overturn on appeal.</p> <p> <a href="http://www.hrdive.com/news/supreme-court-gives-district-courts-more-control-over-eeoc-subpoenas/439874/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM040617-LE UPDATE: D.C. Fair Credit in Employment Amendment Act Prohibits Inquiry Into Prospective and Current Employees’ Credit Information http://www.seyfarth.com:80/publications/OMM040617-LE Thu, 06 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:&nbsp;</strong>The District of Columbia has become the newest jurisdiction to prohibit employers from inquiring into their job applicants&rsquo; and current employees&rsquo; credit information.&nbsp;</em></p> <p> <strong>Update:&nbsp;</strong><em>The law became effective on March 17, 2017.</em></p> <p> <strong>The Act</strong></p> <p> On February 15, 2017, D.C. Mayor Muriel Bowser signed <a href="http://lims.dccouncil.us/Download/33953/B21-0244-Amendment1.pdf">B21-0244</a> (now known as <a href="http://www.dcregs.dc.gov/Gateway/NoticeHome.aspx?noticeid=6429177">A21-0673</a>), &ldquo;The Fair Credit in Employment Amendment Act of 2016&rdquo; (the &ldquo;Act&rdquo;), amending the D.C. Human Rights Act of 1977 to prohibit employers, including employment agencies and labor organizations, from taking discriminatory action against prospective and current employees based on their credit information (defined as &ldquo;any written, oral, or other communication of information bearing on an employee&rsquo;s creditworthiness, credit standing, credit capacity, or credit history&rdquo;).&nbsp; Specifically, employers are prohibited from directly or indirectly requiring, requesting, suggesting, or causing any employee to submit credit information and from using, accepting, referring to or inquiring into credit information unless the particular position is exempt from the law&rsquo;s prohibitions.</p> <p> <strong>Exemptions</strong></p> <p align="left"> Employers are permitted to inquire into an applicant&rsquo;s or employee&rsquo;s credit history is permitted if the position falls under one of the following exemptions:</p> <ul> <li> The employer is otherwise required by D.C. law to require, request, suggest or cause the employee to submit credit information, or use, accept, refer to or inquire into an employee&rsquo;s credit information;&nbsp;</li> <li> The&nbsp;employee is applying for a position as or is employed as a police officer, as a special police office or campus police officer, or in a position with law enforcement function;</li> <li> For&nbsp;employees within the Office of the Chief Financial Officer of D.C.;</li> <li> The employee is required to possess a security clearance under D.C. law:</li> <li> <o:p>For&nbsp;disclosures by D.C. government employees of their credit information to the Board of Ethics and Government Accountability or the Office of the Inspector General, or the agencies&rsquo; use of such disclosures;</o:p></li> <li> For&nbsp;financial institutions, where the position involves access to personal financial information.&nbsp; Financial institutions are defined as &ldquo;a bank, savings institution, credit union, foreign bank, trust company, non-depository financial institution, or any other person which is regulated, supervised, examined, or licensed [or which has applied to be regulated, supervised, examined, or licensed] by the Department of Insurance, Securities, and Banking; . . . which is subject to the regulation, supervision, examination, or licensure by the Department of Insurance, Securities, and Banking; or which is engaged in an activity covered by the D.C. Banking Code;&rdquo; or</li> <li> Where an employer requests or receives credit information pursuant to lawful subpoena, court order or law enforcement investigation.&nbsp;&nbsp;</li> </ul> <p> &nbsp;</p> <p> <strong>Potential Damages</strong></p> <p> The D.C. Office of Human Rights will investigate charges of violations of the Act.&nbsp; An employer who is found to have violated the law may be subject to fines ranging from $1,000 to $5,000.&nbsp; Specifically, employers will face a $1,000 fine for the first violation, a $2,500 fine for the second violation, and a $5,000 for each violation thereafter.&nbsp; Most significantly, individuals also will have a private right of action for violations of the Act, just as they would for any other unlawful discriminatory employment practice under the D.C. Human Rights Act.&nbsp;</p> <p> <strong>Employer Outlook</strong></p> <p> D.C. employers should review their practices to ensure compliance with the new requirements, including that their employment practices do not directly or indirectly request credit information unless an exemption is met. Employers who seek credit information for positions that fall into one of the exemptions to the Act should also review the new requirements for compliance and additional process guidance.&nbsp; Additionally, employers should review their applications and other employment-related documents to ensure that there are no references to the procurement or use of credit information.&nbsp; Employers in multi-state jurisdictions should ensure compliance both with this Act and with the laws of other applicable jurisdictions that regulate employers&rsquo; use of credit information. &nbsp;</p> http://www.seyfarth.com:80/publications/OMM040617-EB DOL Fiduciary Rule Officially Delayed http://www.seyfarth.com:80/publications/OMM040617-EB Thu, 06 Apr 2017 00:00:00 -0400 <div> On April 4, 2017, the Department of Labor (&ldquo;DOL&rdquo;) issued a final rule extending by 60 days the applicability date of the final &ldquo;fiduciary&rdquo; regulation published a year ago (known colloquially as the &ldquo;Fiduciary Rule&rdquo;). Originally, the effective date for the Fiduciary Rule was April 10, 2017, and now the revised effective date is June 9, 2017.</div> <div> &nbsp;</div> <div> The Fiduciary Rule defines who is a fiduciary under the Employee Retirement Income Security Act of 1974, as amended (&ldquo;ERISA&rdquo;) by reason of providing investment advice to ERISA plans. The new fiduciary definition also impacts IRAs because this definition would govern for purposes of determining whether a transaction involving an IRA violates the &nbsp;prohibited transaction rules &nbsp;under the Internal Revenue Code of 1986, as amended. <a href="http://www.seyfarth.com/publications/MA041816-EB">Click here</a> for our prior alert discussing the Fiduciary Rule.</div> <div> &nbsp;</div> <div> The DOL also extended the applicability date for the Best Interest Contract Exemption, the Principal Contract Exemption, and the other revised exemptions that are companion parts to the Fiduciary Rule by 60 days. Further, the DOL requires fiduciaries relying on the new and revised exemptions to comply only with the impartial conduct standards in the exemptions during a transition period from June 9, 2017, through January 1, 2018. Fiduciaries are not required to comply with the remaining conditions of these exemptions (i.e., written disclosures and representations) until January 1, 2018. &nbsp;</div> <div> &nbsp;</div> <div> This extension is a response to a memorandum from President Trump to the DOL directing an examination of the Fiduciary Rule to determine whether it may adversely bear on Americans&rsquo; ability to obtain retirement information and financial advice. &nbsp;In response to the directive, the DOL proposed a 60-days extension of the applicability of the Fiduciary Rule and related prohibited transaction exemptions on March 2, 2017. The DOL received approximately 193,000 comments on this proposed delay. According to the DOL, 178,000 commenters opposed any delay, but the DOL chose to delay the effective date anyway.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/WSE040617 Judge Continues Case Challenging OSHA Electronic Record-Keeping Rule – Employers Must Comply With July 1 Electronic Reporting Deadline http://www.seyfarth.com:80/publications/WSE040617 Thu, 06 Apr 2017 00:00:00 -0400 <p> A Texas federal court won&rsquo;t decide the legality of OSHA&rsquo;s rule regarding the &ldquo;Tracking of Workplace Injuries and Illnesses&rdquo; until after the July 1, 2017 deadline for employers to comply with the rule.</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/judge-continues-case-challenging-osha-electronic-record-keeping-rule/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=cb6de5a3c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-cb6de5a3c2-71407177">click here</a></p> http://www.seyfarth.com:80/publications/EL040617 Illinois Catches The Paid Sick Leave Bill Bug http://www.seyfarth.com:80/publications/EL040617 Thu, 06 Apr 2017 00:00:00 -0400 <div> The Illinois General Assembly will consider the proposed Healthy Workplace Act which, if passed into law, will require most Illinois employers to provide paid sick leave to their employees.</div> <div> &nbsp;</div> <div> Illinois legislators have caught the paid sick leave bug that has been going around the Country. Sponsors from both chambers of the Illinois legislature have introduced a bill called the Healthy Workplace Act which, if adopted, will mandate paid sick leave for Illinois workers.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/illinois-catches-the-paid-sick-leave-bill-bug/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=a9cb68119e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-a9cb68119e-71256185">click here</a></div> http://www.seyfarth.com:80/publications/OMM040617-LE2 The Trend Continues: NYC Passes Salary History Ban http://www.seyfarth.com:80/publications/OMM040617-LE2 Thu, 06 Apr 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> &nbsp;The New York City Council passed a law that prohibits employers with New York operations from inquiring or relying on a job applicant&rsquo;s wage or salary history.&nbsp;</em></div> <div> &nbsp;</div> <div> In a move anticipated for <a href="http://www.seyfarth.com/publications/OMM081816-LE">months</a>, and a day after Equal Pay Day, the New York City Council approved a salary history &ldquo;ban&rdquo; making it illegal for any employer or employment agency in New York City to inquire about a job applicant&rsquo;s salary history and employee benefits in the interview process. &nbsp;</div> <div> &nbsp;</div> <div> The bill was first introduced on August 16, 2016, in an attempt to prohibit employers from inquiring about a prospective employee&rsquo;s salary history on a job application. The proposed bill closely followed a provision from Massachusetts&rsquo; amendments to its <a href="http://www.seyfarth.com/publications/OMM080116-LE2">Equal Pay Act</a> (and similar provisions in <a href="http://www.seyfarth.com/publications/OMM011217-LE">Philadelphia</a>), which prohibit employers operating in those states from requesting the compensation history of prospective employees, unless the prospective employee has &ldquo;voluntarily&rdquo; disclosed such information.&nbsp;</div> <div> &nbsp;</div> <div> On Wednesday, April 5, 2017, after months of debate and public comment, the New York City Council approved the passage of the bill. &nbsp;The bill formally amends the New York City Human Rights Law, Title 8 of the Administrative Code of the City of New York, which prohibits discrimination in New York City. &nbsp;1253-A now makes it a discriminatory employment practice for an employer to:</div> <div> &nbsp;</div> <div> (1) inquire about the salary history of an applicant for employment, which includes either asking the applicant directly about his or her salary history or conducting a search of publicly available records or reports; or&nbsp;</div> <div> &nbsp;</div> <div> (2) rely on the salary history of an applicant in determining that applicant&rsquo;s salary at any stage in the employment process, unless the applicant &ldquo;unprompted&rdquo; and &ldquo;willingly&rdquo; discloses his or her prior salary information.</div> <div> The law applies to all employers, both public and private. &nbsp;It is slated to go into effect 180 days after it is signed. We expect that it will be signed by Mayor de Blasio without delay, which would put the implementation in October 2017.</div> <div> &nbsp;</div> <div> Proponents of the law champion it as a way to eliminate the &ldquo;pay gap,&rdquo; arguing that an employer&rsquo;s use of an applicant&rsquo;s previous salary history could lead to gender-based wage discrimination under the theory that applicants would be paid based on their past earnings, rather than what they would be offered if judged on a blank slate. &nbsp;Many others criticize the bill because they believe that it will not eliminate any wage gap but will instead create greater reliance on salary negotiation.</div> <div> &nbsp;</div> <div> The New York City Commission on Human Rights, the agency charged with ferreting out discrimination in the five boroughs, will be enforcing the new law. &nbsp;The commission will impose a civil penalty of up to $125,000 for an unintentional violation, and up to $250,000 for an &ldquo;intentional malicious violation.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Introduction 1253-A also comes off the heels of two other significant pieces of New York legislation. &nbsp;On November 4, 2016 Mayor Bill de Blasio signed Executive Order 21 that bans questions regarding an applicant&rsquo;s salary history prior to conditional employment. &nbsp;Importantly, this only applied to public-sector applicants. &nbsp;Introduction 1253-A therefore closes the gap. &nbsp;On January 9, 2017, Governor Andrew Cuomo approved Executive Order 161, also in an effort to ensure pay equity by State employers. &nbsp;The Order prohibits State entities from asking or mandating an applicant to &ldquo;provide his or her current compensation, or any prior compensation history,&rdquo; before offering a conditional offer of employment with compensation. &nbsp;The concern is that, due to the identifiable wage gap between men and women, asking about previous salary history sets a unconscious line in the sand as a starting place for candidates, thus perpetuating the discrimination. &nbsp;</div> <div> &nbsp;</div> <div> This development certainly follows the trend of the pay-equity movement taking place in cities and states nationwide. &nbsp; In light of the City&rsquo;s new focus on prior salary history information, employers should be mindful of these new restrictions and evaluate how the new legislation may impact their practices. &nbsp;We are tracking these efforts in the 50-State Desktop Pay Equity Reference, which was <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">released</a> earlier this week.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA040517-LE Seventh Circuit Finds Discrimination on the Basis of Sexual Orientation Prohibited by the Civil Rights Act http://www.seyfarth.com:80/publications/MA040517-LE Wed, 05 Apr 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis</strong>:&nbsp; The Seventh Circuit becomes the first appellate court to hold that discrimination on the basis of sexual orientation is prohibited as sex discrimination under Title VII.&nbsp; The decision establishes a circuit split that may ultimately lead to Supreme Court review.</em></p> <p> On Tuesday, April 4, 2017, in a landmark <em>en banc </em>decision, the Seventh Circuit became the first appellate court to decide that discrimination on the basis of sexual orientation is a form of sex discrimination, forbidden by Title VII of the Civil Rights Act of 1964.</p> <p> <strong>Background</strong></p> <p> In reaching this seminal decision, the court reversed the district court&rsquo;s decision dismissing Kimberly Hively&rsquo;s suit against her former employer, Ivy Tech Community College.&nbsp; Hively was an adjunct professor and openly lesbian.&nbsp; She applied for six full-time positions over the course of five years, and was passed over each time.&nbsp; In July 2014, her part-time adjunct contract was not renewed.&nbsp; She filed a charge with the EEOC claiming she was discriminated against because of her sexual orientation, and received a right-to-sue letter.</p> <p> <strong>Litigation History</strong></p> <p> Hively proceeded <em>pro se</em> in the Northern District of Indiana.&nbsp; Ivy Tech brought a motion to dismiss, claiming that sexual orientation is not a protected class under Title VII or section 1981.&nbsp; The district court agreed, holding that under Seventh Circuit precedent, <em>Hamner v. St. Vincent Hosp. and Health Care Center, Inc.</em>, 224 F.3d 701, 704 (7th Cir. 2000), Title VII did not prohibit discrimination based on &ldquo;one&rsquo;s sexuality or sexual orientation.&rdquo;&nbsp; The court granted the motion to dismiss without leave to amend.</p> <p> Hively appealed, represented by the Lambda Legal Defense &amp; Education Fund.&nbsp; In July 2016, a panel of the Seventh Circuit affirmed, but suggested that the issue was more complicated than simply following precedent.&nbsp; The court ultimately relied on <em>Hamner</em> and other similar authority, but also examined the EEOC&rsquo;s 2015 decision in <em>Baldwin v. Foxx</em>, EEOC Appeal No. 0120133080, in which the EEOC determined that &ldquo;sexual orientation discrimination is sex discrimination because it necessarily entails treating an employee less favorably because of the employee&rsquo;s sex.&rdquo;&nbsp; The panel expressly noted the difficulty in separating discrimination on the basis of gender norms, which was already illegal under Title VII, versus discrimination based on sexual orientation, which was not.&nbsp; The panel also noted how recent Supreme Court decisions created the paradoxical situation where an LGB person could be legally married to a person of the same sex, but could also be legally fired for getting married.&nbsp; Nonetheless, the panel found that it was ultimately bound by previous precedent, and declined to find that Title VII prohibited discrimination based on sexual orientation.</p> <p> <strong>The <em>En Banc</em> Decision</strong></p> <p> In seeking <em>en banc </em>review, Hively asked the Seventh Circuit to revisit its precedent, in light of the EEOC&rsquo;s decision in <em>Baldwin</em>, as well as the dramatic change in Supreme Court jurisprudence regarding the treatment of LGB people, as manifested in the marriage equality decisions.&nbsp;</p> <p> The Seventh Circuit, in an opinion by Chief Judge Wood, largely adopted the EEOC&rsquo;s rationale&nbsp; presented in <em>Baldwin</em>.&nbsp; The court found that sexual orientation discrimination was a form of sex stereotyping and thus barred under Title VII.&nbsp; To reach this conclusion, the court applied the &ldquo;comparative method&rdquo; approach.&nbsp; The court examined the counterfactual &ldquo;situation in which Hively is a man, but everything else stays the same:&nbsp; in particular, the sex or gender of the partner.&rdquo;&nbsp; The court found that Hively&rsquo;s non-conformity to the female stereotype &mdash; that she should have a male partner &mdash; was cognizable as sex discrimination under the gender non-conformity line of cases.</p> <p> The court also adopted Hively&rsquo;s theory that discrimination based on sexual orientation is sex discrimination under the associational theory.&nbsp; The court examined the application of this line of cases, beginning with <em>Loving v. Virginia</em>, 388 U.S. 1 (1967), and found that the Civil Rights Act prohibits discrimination based on the sex of someone with whom a plaintiff associates. The court noted that it was inapposite that the <em>Loving </em>line of cases dealt with associational race discrimination, rather than sex discrimination.</p> <p> In reversing its previous precedent such as <em>Hamner</em>, the court noted both the Supreme Court&rsquo;s recent marriage equality decisions, as well as the EEOC&rsquo;s action in <em>Baldwin</em>, and stated that &ldquo;this court sits <em>en banc</em> to consider what the correct rule of law is now in light of the Supreme Court&rsquo;s authoritative interpretations, not what someone thought it meant one, ten, or twenty years ago.&rdquo;</p> <p> The court was unpersuaded by the notion that Congress has not expressly added the phrase &ldquo;sexual orientation&rdquo; to the list of protected categories under the Civil Rights Act, while it has used the phrase in other legislation.&nbsp; Instead, the court noted that the &ldquo;goalposts&rdquo; of Title VII &ldquo;have been moving over the years,&rdquo; but the key concept &mdash; &ldquo;no <em>sex</em> discrimination&rdquo; &mdash; remains.</p> <p> The Court declined to decide whether there would be an exemption if Ivy Tech were a religious employer, and whether the meaning of discrimination in the context of the provision of social or public services might be the same.</p> <p> <strong>A Path To The Supreme Court?</strong></p> <p> The Seventh Circuit is now at odds with the Eleventh Circuit&rsquo;s recent decision in <em>Evans v. Georgia Regional Hospital</em>, which held that Title VII does not cover discrimination based on sexual orientation.&nbsp; The Second Circuit also recently declined to interpret Title VII as covering sexual orientation discrimination, but left open the possibility that certain allegations regarding gender stereotyping related to sexual orientation may state a claim.&nbsp;</p> <p> Although a circuit split is thus emerging, it appears that Ivy Tech is not planning to seek certiorari. It is thus unlikely that this case will be the vehicle for Supreme Court to resolve the circuit split. However, it is possible that a petition for certiorari will be filed in <em>Evans</em>. If such a petition is filed it is likely to stress the circuit split that has emerged with <em>Hively.</em></p> <p> <strong>Key Takeaways</strong></p> <p> In light of <em>Hivley</em>, discrimination based on sexual orientation is now prohibited under Title VII in the Seventh Circuit.&nbsp; However, the issue remains in flux in the rest of the country.</p> <p> Absent Supreme Court review or legislative action by Congress, it is likely that the law will remain unsettled.&nbsp; Employers should consult with counsel to evaluate their internal policies, practices, and procedures with an eye toward sexual orientation claims.</p> http://www.seyfarth.com:80/publications/TBT04052017 More Green on the Horizon for Illinois MMJ Businesses and Lawmakers http://www.seyfarth.com:80/publications/TBT04052017 Wed, 05 Apr 2017 00:00:00 -0400 <p> A federal judge from the U.S. Northern District of Illinois recently ruled that an Illinois state law banning (i) medical cannabis cultivation centers and dispensaries from making campaign contributions to any political committee established to promote a candidate for public office, and (ii) candidates and political committees from receiving such contributions, violated the First Amendment of the U.S. Constitution.</p> <p> To read the entire blog post, <a href="http://www.blunttruthlaw.com/2017/04/more-green-on-the-horizon-for-illinois-mmj-businesses-and-lawmakers/?utm_source=Seyfarth+Shaw+-+The+Blunt+Truth&amp;utm_campaign=bbb77807c2-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b58220fdbe-bbb77807c2-71540589">click here&nbsp;</a></p> http://www.seyfarth.com:80/news/maatman-quoted-employment-law-daily-040517 Gerald Maatman quoted in <i>Employment Law Daily</i> http://www.seyfarth.com:80/news/maatman-quoted-employment-law-daily-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Appellate review of EEOC subpoena must be for abuse of discretion, not de novo,&quot; an April 5 story from <em>Employment Law Daily</em> on the Supreme Court ruling that a district court&rsquo;s decision whether to enforce or quash an EEOC subpoena should be reviewed for abuse of discretion, not de novo. Maatman said that the Supreme Court&rsquo;s adoption of the abuse of discretion standard has real-world, practical implications for employers facing administrative investigations.</p> <p> <a href="http://www.employmentlawdaily.com/index.php/news/appellate-review-of-eeoc-subpoena-must-be-for-abuse-of-discretion-not-de-novo/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/maatman-quoted-SHRM-040517 Gerald Maatman quoted in <i>SHRM</i> http://www.seyfarth.com:80/news/maatman-quoted-SHRM-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court Bolsters District Court Determinations on EEOC Subpoenas,&quot; an April 5 story from <em>SHRM </em>on the Supreme Court ruling that said appeals courts ordinarily should defer to district court rulings on whether the agency&#39;s subpoenas are irrelevant or too burdensome. Maatman said that a district court&#39;s ruling for or against an employer challenging an EEOC subpoena will be more difficult to overturn on an appeal under the new standard.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/supreme-court-eeoc-subpoenas.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/seyfarth-middle-market-mergers-and-acquistions-surveybook-private-company-director-040517 Seyfarth’s Middle-Market M&A SurveyBook featured in <i>Private Company Director</i> http://www.seyfarth.com:80/news/seyfarth-middle-market-mergers-and-acquistions-surveybook-private-company-director-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Middle-Market M&amp;A SurveyBook was featured in &quot;Mid-Market M&amp;As: Still a Seller&rsquo;s Market,&quot; an April 5 story from <em>Private Company Director</em>. The SurveyBook said that while the current private company mergers and acquisitions environment is competitive among buyers and is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than in 2015.</p> <p> <a href="http://Seyfarth’s Middle-Market M&amp;A SurveyBook was featured in &quot;Mid-Market M&amp;As: Still a Seller’s Market,&quot; an April 5 story from Private Company Director. The SurveyBook said that while the current private company mergers and acquisitions environment is competitive among buyers and is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than in 2015. You can view the full article here:">You can view the full article here</a>.</p> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-business-insurance-040517 Sam Schwartz-Fenwick quoted by <i>Business Insurance</i> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-business-insurance-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Sexual orientation deserves Title VII protections: 7th Circuit,&quot; an April 5 story by <em>Business Insurance</em> on a ground-breaking ruling, where an en banc 7th U.S. Circuit Court of Appeals in Chicago held that sexual orientation is protected under Title VII of the Civil Rights Act of 1964. Schwartz-Fenwick said that employers in the 7th Circuit should look at their nondiscrimination policies in light of this ruling.</p> <p> <a href="http://www.businessinsurance.com/article/20170405/NEWS06/912312784/Sexual-orientation-deserves-Title-VII-protections-7th-Circuit-Appeals-Court-rule">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/dygert-mentioned-in-politico-040517 Diane Dygert mentioned in <i>Politico</i> http://www.seyfarth.com:80/news/dygert-mentioned-in-politico-040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> Diane Dygert was mentioned in &quot;Illinois Playbook,&quot; an April 5 story by <em>Politico </em>on the must-read rundown of political news in the Land of Lincoln. Dygert participated in a CEO Roundtable-Chicago panel discussing the First 100 Days of the Trump presidency.</p> <p> <a href="http://www.politico.com/tipsheets/illinois-playbook/2017/04/politico-illinois-playbook-gop-flirts-with-rauner-primary-rahms-first-in-the-nation-school-mandate-pawars-new-video-219595">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/TS040517 $1.2 Million Dispute Between West Mountain Environmental and the Shanghai Hehui Environmental Technology http://www.seyfarth.com:80/publications/TS040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> An environmental remediation technologies company is in the midst of litigation in Chinese courts over a $1.2 million contract to provide its technology to a Chinese company. According to the Chinese entity, the technology provider failed to deliver the unit in a &ldquo;timeframe that was agreed.&rdquo;</p> <p> To read the entire log post, <a href="http://www.tradesecretslaw.com/2017/04/articles/trade-secrets/1-2-million-dispute-between-west-mountain-environmental-and-the-shanghai-hehui-environmental-technology/">click here</a></p> http://www.seyfarth.com:80/publications/CDL040517 The Sedona Conference WG6 Issues “Transitional” International Litigation Principles http://www.seyfarth.com:80/publications/CDL040517 Wed, 05 Apr 2017 00:00:00 -0400 <p> n January 2017, The Sedona Conference Working Group on International Electronic Information Management, Discovery, and Disclosure (WG6) issued the much-anticipated <em>International Litigation Principles on Discovery, Disclosure &amp; Data Protection in Civil Litigation (Transitional Edition).</em> This publication updates the 2011 &nbsp;International Litigation Principles, which preceded the 2013 Snowden revelations and the Schrems decision invalidating the U.S.-EU Safe Harbor. &nbsp;It also incorporates adoption and implementation of the EU-U.S. Privacy Shield, and the approval of the EU General Data Protection Regulation (GDPR), which is set to replace the 1995 EU Data Privacy Directive in May 2018. &nbsp;Many of these developments are consistent with the focus on &ldquo;proportionality&rdquo; of discovery in the 2015 amendments of the U.S. Federal Rules of Civil Procedure.</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/04/sedona-conference-wg6-issues-transitional-international-litigation-principles/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=315b761aab-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-315b761aab-72857025">click here</a></p> http://www.seyfarth.com:80/publications/WH040417 New York Court Delivers Denial Of Certification In Papa John’s Drivers’ Class Action http://www.seyfarth.com:80/publications/WH040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> In 2016, approximately 80% of conditional certification motions were granted in the Second Circuit. Plaintiffs undoubtedly have a low bar to hurdle to obtain conditional certification under section 16(b) of the FLSA. &nbsp;It is a hurdle nonetheless, and some courts have shown a willingness to look closely at plaintiffs&rsquo; proffered evidence to ensure that a factual nexus exists that binds together the members of a putative collective action. &nbsp;In<em> Durling, et al. v. Papa John&rsquo;s International, Inc.,</em> Judge Cathy Seibel of the U.S. District Court for the Southern District of New York rejected Plaintiffs&rsquo; motion for conditional certification of a nationwide collective action that would have included drivers employed at corporate-owned stores and stores operated by franchisees. &nbsp;The Court concluded that Plaintiffs&rsquo; evidence did not support a finding that the named plaintiffs were similarly situated to thousands of drivers employed by hundreds of different employers.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/joint-employment/denial-of-certification-in-drivers-class-action/">click here</a></p> http://www.seyfarth.com:80/publications/CP040417 FEHC Discusses Regs On Transgender Identity and National Origin Discrimination http://www.seyfarth.com:80/publications/CP040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> On March 30, 2017, the California Fair Employment and Housing Council (&ldquo;FEHC&rdquo;) considered proposed regulations on transgender employees. The FEHC also discussed draft regulations on national origin discrimination in the workplace.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/04/04/fehc-discusses-regs-on-transgender-identity-and-national-origin-discrimination/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=7696cab3e5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-7696cab3e5-71410869">click here</a></p> http://www.seyfarth.com:80/publications/LR040417 NLRB Finds That Fast-Food Company Must Allow Employees To Wear “Fight For $15” Buttons http://www.seyfarth.com:80/publications/LR040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> NLRB rules that fast-food company violated the National Labor Relations Act by maintaining a rule prohibiting employees from wearing unauthorized buttons or insignia and by instructing an employee to remove his &ldquo;Fight For $15&rdquo; button.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/04/04/nlrb-finds-that-fast-food-company-must-allow-employees-to-wear-fight-for-15-buttons/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=4db9d94115-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-4db9d94115-71423401">click here</a></p> http://www.seyfarth.com:80/publications/WC040417 U.S. Supreme Court Holds That An Abuse-Of-Discretion Standard Applies To Review Of EEOC Subpoenas http://www.seyfarth.com:80/publications/WC040417 Tue, 04 Apr 2017 00:00:00 -0400 <p> This case arose out of a Title VII charge brought by a woman who worked as a &ldquo;cigarette selector,&rdquo; a physically demanding job, requiring employees to lift, pack, and move large bins of products. After the charging party returned from three months of maternity leave, she was required to undergo a physical capabilities evaluation that was required for all new employees and employees returning from leave or otherwise away from the physically demanding aspects of their job for more than 30 days, regardless of reason. The charging party was allowed three times to meet the level required for her position, but failed each time. &nbsp;McLane then terminated her employment.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/04/u-s-supreme-court-holds-that-an-abuse-of-discretion-standard-applies-to-review-of-eeoc-subpoenas/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=0ea8aa54dc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-0ea8aa54dc-73050581">click here</a></p> http://www.seyfarth.com:80/publications/EL040417 Equal Pay Day 2017: Introducing Seyfarth’s 50-State Pay Equity Desktop Reference http://www.seyfarth.com:80/publications/EL040417 Tue, 04 Apr 2017 00:00:00 -0400 <div> Today, April 4th, is Equal Pay Day. &nbsp;In commemoration, Seyfarth&rsquo;s Pay Equity Group &nbsp;is introducing a 50-State Pay Equity Desktop Reference.</div> <div> &nbsp;</div> <div> Pay equity may be on the minds and lips of your employees today, as today is Equal Pay Day.</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/04/equal-pay-day-2017-introducing-seyfarths-50-state-pay-equity-desktop-reference/">click here</a></div> http://www.seyfarth.com:80/publications/RD040417-LIT Supreme Court Says Credit Card Surcharge Ban Regulates Free Speech http://www.seyfarth.com:80/publications/RD040417-LIT Tue, 04 Apr 2017 00:00:00 -0400 <div> The Supreme Court in <em>Expressions Hair Design et al. v. Schneiderman</em> held that New York&rsquo;s law prohibiting credit card surcharging (General Business Law &sect;5 18) regulates speech, and on Wednesday asked the Second Circuit to determine whether a New York law limiting retailers ability to post their credit card transaction pricing scheme survives First Amendment scrutiny. The Court limited its review of New York General Business Law &sect;518&rsquo;s constitutionality under the First Amendment to the specific situation of dual pricing asserted by petitioner merchants. In the end, the Court unanimously decided the preliminary issue that &sect;518 regulates speech rather than conduct and kicked the constitutionality determination back to the Second Circuit.&nbsp;</div> <div> &nbsp;</div> <div> Section 518 provides that &ldquo;[n]o seller in any sales transaction may impose a surcharge on a holder who elects to use a credit card in lieu of payment by cash, check, or similar means.&rdquo; The Second Circuit decided that &sect;518 regulated the conduct of imposing a surcharge and not speech. Under that analysis, the Second Circuit did not reach the First Amendment speech question.</div> <div> &nbsp;</div> <div> In reversing the Second Circuit, the Supreme Court found that &sect;518 blocked petitioner merchants from posting that they add a surcharge to customers who pay with credit cards, but did not block the merchants from posting the credit card price as the sticker price and giving a &lsquo;discount&rsquo; to those who pay with cash. Based on those findings, the Court reasoned that &sect;518 does not regulate conduct - &ldquo;the amount that a store could collect&rdquo; - but instead regulates speech - &ldquo;how the sellers may communicate their prices.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> While the Court held that &sect;518 regulates speech it did not opine on the First Amendment question. Because the Second Circuit never reached the First Amendment question, the Supreme Court could not review a decision. Therefore, the Court kicked the First Amendment question to the Second Circuit consistent with the decision that &sect;518 regulates speech.</div> <div> &nbsp;</div> <div> As an as-applied challenge specific to whether the statute unconstitutionally limits merchants asserted practice, a ruling in favor of the merchants would not necessarily strike down the law but merely limit its scope, thereby carving out the merchant&rsquo;s asserted pricing model. It is unclear at this time what teeth &sect;518 would have with such a limitation or how an adverse ruling would affect its overall enforceability. &nbsp;</div> <div> &nbsp;</div> <div> Justice Sotomayor, in a concurring opinion, highlighted the ambiguity in the law and the Court&rsquo;s &ldquo;quarter-loaf outcome&rdquo; in the decision. She suggested that the Second Circuit request the New York state appeals court to certify the actual definition and scope of the &nbsp;law before coming to its decision. The ambiguity in the law which led to the quarter-loaf outcome could be removed with a clear understanding of the law which is left to the New York courts.</div> <div> &nbsp;</div> <div> In addition to New York, California, Colorado, Connecticut, Florida, Kansas, Massachusetts, Maine, Oklahoma and Texas also prohibit credit card surcharging. &nbsp;While the Supreme Court&rsquo;s decision in <em>Expressions Hair Design</em> does not directly impact the &ldquo;no-surcharge&rdquo; laws in those states, the ruling provides additional support to merchants and retailers seeking to invalidate those laws.&nbsp;</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/LR040317 NLRB Restrictions on Employer Requests of Confidentiality in Workplace Investigations Remain After D.C. Circuit Decision http://www.seyfarth.com:80/publications/LR040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> The Court of Appeals for the D.C. Circuit affirmed in part and rejected in part the National Labor Relations Board&rsquo;s Banner Estrella decision regarding an employer&rsquo;s requirement of confidentiality during workplace investigations. In doing so, the Court did not address, and essentially left intact, both the Board&rsquo;s prohibition of blanket confidentiality instructions, and its requirement that employers determine the need for confidentiality on a case-by-case basis.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/04/03/nlrb-restrictions-on-employer-requests-of-confidentiality-in-workplace-investigations-remain-after-d-c-circuit-decision/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=cc030e7959-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-cc030e7959-71423401">click here</a></p> http://www.seyfarth.com:80/news/seyfarth-moves-to-willis-tower Seyfarth Moves to Willis Tower http://www.seyfarth.com:80/news/seyfarth-moves-to-willis-tower Mon, 03 Apr 2017 00:00:00 -0400 <div> <em>Firm Embraces &lsquo;Future of Work&rsquo; with Collaborative, Innovative Design</em></div> <div> &nbsp;</div> <div> CHICAGO (April 3, 2017) &ndash; Seyfarth Shaw LLP announced today that the firm has completed its move to the iconic Willis Tower, relocating from the Citadel Center located at 131 S. Dearborn.&nbsp;</div> <div> &nbsp;</div> <div> Designed by Gensler, one of the world&rsquo;s premier architecture and design firms, the new space reflects Seyfarth&rsquo;s innovative and collaborative culture. Seyfarth now occupies floors 38 and 76 - 80 of Willis Tower, and the layout features collaboration and technology lounges, cutting-edge technology, first-class amenities and unrivaled 360-degree panoramic views of Chicago.</div> <div> &nbsp;</div> <div> &ldquo;We embraced the creativity, flexibility and mobility of our lawyers and professionals to design a space that matches our unique culture,&rdquo; said Amanda Sonneborn, Seyfarth&rsquo;s Chicago office co-managing partner. &ldquo;The re-imagined space represents not just the law firm of the future, but the future of work, and it&rsquo;s exciting to share it with our colleagues and clients.&rdquo;</div> <div> &nbsp;</div> <div> With no corner offices, the floorplan is specially designed to maximize Willis Tower&rsquo;s abundant natural light throughout all interior and exterior offices. All offices and workstations also feature standing desks and dual-monitors.&nbsp;</div> <div> &nbsp;</div> <div> Founded in Chicago in 1945, Seyfarth has grown into a global law firm with more than 900 lawyers across 14 offices, including over 200 lawyers in Chicago as the firm continues growing its presence locally.</div> <div> &nbsp;</div> <div> &ldquo;The firm is proud of its Midwest heritage, and we&rsquo;re excited to call Chicago&rsquo;s most recognizable landmark our home,&rdquo; said Cory Hirsch, co-managing partner of Seyfarth&rsquo;s Chicago office. &ldquo;The office has been carefully designed to meet the current and future needs of Seyfarth, while creating efficiencies in the way we work.&rdquo;</div> <div> &nbsp;</div> <div> &ldquo;As the firm&rsquo;s platform continues to grow and evolve, we are committed to transforming our real estate portfolio into a competitive advantage for the firm and our clients,&rdquo; said Pete Miller, Seyfarth&rsquo;s chair and managing partner. &ldquo;Willis Tower represents our most ambitious effort yet, emphasizing technology and efficiency over square footage, and we&rsquo;re delighted with the result.&rdquo;</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80/news/maatman-quoted-law360-040317 Gerald Maatman quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maatman-quoted-law360-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Justices&#39; EEOC Subpoena Ruling Ups Ante At Trial Court,&quot; an April 3 story from <em>Law360 </em>on the U.S. Supreme Court&#39;s ruling that decisions to enforce or quash U.S. Equal Employment Opportunity Commission subpoenas can&#39;t be evaluated from square one on appeal. Maatman said that a district court&#39;s ruling, whether it be for or against an employer, will be decidedly more difficult to overturn on an appeal under the standard espoused by the high court in the ruling.</p> http://www.seyfarth.com:80/news/maatman-mentioned-business-insurance-040317 Gerald Maatman mentioned in <i>Business Insurance</i> http://www.seyfarth.com:80/news/maatman-mentioned-business-insurance-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Gerald Maatman was quoted in &quot;Supreme Court subpoena ruling favors EEOC,&quot; an April 3 story from <em>Business Insurance</em> on the U.S. Supreme Court ruling that said a federal appeals court should review a lower court&rsquo;s decision to enforce or quash a U.S. Equal Employment Opportunity Commission subpoena on the basis of abuse of discretion, rather than the &ldquo;more searching&rdquo; de novo form of review. Maatman said that the case law in most of the circuits gives the EEOC very wide latitude on the information it deems necessary to investigate EEOC charges, and this ruling makes it much harder for anyone who loses at the District Court level to have that ruling reversed.</p> <p> <a href="http://www.businessinsurance.com/article/20170403/NEWS06/912312733/Supreme-Court-subpoena-ruling-favors-EEOC-abuse-of-discretion-de-novo-review">You can view the full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguez-interviewed-nation-restaurant-news-040317 Leon Rodriguez was interviewed by <i>Nation’s Restaurant News</i> http://www.seyfarth.com:80/news/rodriguez-interviewed-nation-restaurant-news-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was interviewed in &quot;Restaurants brace for more worksite raids,&quot; an April 3 story from <em>Nation&rsquo;s Restaurant News</em> on how the current political environment could affect immigration and what it means for restaurant operators. Rodriguez said that restaurant operators and their workers should be concerned.</p> <p> <a href="http://www.nrn.com/workforce/restaurants-brace-more-worksite-raids">You can view the full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguez-quoted-daily-journal-040317 Leon Rodriguez quoted by the <i>Daily Journal</i> http://www.seyfarth.com:80/news/rodriguez-quoted-daily-journal-040317 Mon, 03 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Chief Justice gets US official reply,&quot; an April 3 story from the <em>Daily Journal</em> on how the U.S. Attorney General and DHS Secretary challenged a recent California courthouse &lsquo;stalking&rsquo; claim and said that federal immigration agents will continue to make arrests in state courts and other public places. Rodriguez said that DHS is following a 2011 memo that generally limits immigration law enforcement in so-called &ldquo;sensitive locations&rdquo; such as hospitals, schools, religious buildings, funerals and weddings.</p> http://www.seyfarth.com:80/news/bodansky-fanelli-haag-quoted-washington-lawyer-040117 Robert Bodansky, Dean Fanelli and Thomas Haag were quoted in <i>Washington Lawyer</i> http://www.seyfarth.com:80/news/bodansky-fanelli-haag-quoted-washington-lawyer-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Robert Bodansky, Dean Fanelli and Thomas Haag were quoted in &quot;In Mergers We Trust,&quot; an April 1 story from <em>Washington Lawyer</em> on how law firms consolidate to keep their edge. Seyfarth expanded its office in the nation&rsquo;s capital by picking up four partners at Fanelli Haas PLLC. The deal met clear client needs on both sides and created a growth path going forward that Seyfarth is building upon with yet more hires.</p> <p> <a href="http://washingtonlawyer.dcbar.org/april2017/index.php#/28">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/fanelli-and-haag-quoted-washington-lawyer-040117 Dean Fanelli and Thomas Haag were quoted in <i>Washington Lawyer</i> http://www.seyfarth.com:80/news/fanelli-and-haag-quoted-washington-lawyer-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Dean Fanelli and Thomas Haag were quoted in &quot;When Law Firms Combine,&quot; an April 1 story from <em>Washington Lawyer</em> offering their reflections on joining Seyfarth in October 2016.</p> <p> <a href="http://washingtonlawyer.dcbar.org/april2017/index.php#/36">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/rodriguez-quoted-report-on-patient-privacy-HHS-office-for-civil-rights-040117 Leon Rodriguez quoted by the <i>Report on Patient Privacy</i> about HHS Office for Civil Rights http://www.seyfarth.com:80/news/rodriguez-quoted-report-on-patient-privacy-HHS-office-for-civil-rights-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;Enforcement, Audit Program to Move Ahead; Regs, Guidance to Undergo Priority-Setting,&quot; an April 1 story from the <em>Report on Patient Privacy</em> on how the HHS Office for Civil Rights has announced four enforcement actions against errant HIPAA covered entities that have brought in more than $12 million. Rodriguez said that the two most critical things are the number of settlements and the breadth of the basis for the enforcement action.</p> http://www.seyfarth.com:80/news/rodriguez-quoted-report-on-patient-privacy-OCR-director-040117 Leon Rodriguez quoted by the <i>Report on Patient Privacy</i> about OCR Director http://www.seyfarth.com:80/news/rodriguez-quoted-report-on-patient-privacy-OCR-director-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Leon Rodriguez was quoted in &quot;New OCR Director Vows Focus on Patients As Well AS &lsquo;People&rsquo; at Regulated Entities,&quot; an April 1 story from the <em>Report on Patient Privacy</em> on how the new OCR Director pledged that he would do his best to further cause of civil rights and of health information privacy and security. Rodriguez stands out as the only OCR director who had some HIPAA experience prior to joining OCR.</p> http://www.seyfarth.com:80/news/whitman-quoted-best-review-040117 Robert Whitman quoted in <i>Best’s Review</i> http://www.seyfarth.com:80/news/whitman-quoted-best-review-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Robert Whitman was quoted in &quot;The Gig Is Not Up,&quot; an April 1 story from <em>Best&rsquo;s Review</em> on whether we need a new worker classification given the debate over whether workers are employees or independent contractors intensifies with the rise of the gig economy. Regarding benefits for reclassified employees, Whitman said that depending on how this all shakes out, there could someday also be a push for more portable-type benefits.</p> http://www.seyfarth.com:80/publications/miller-and-califano-authored-article-massachusetts-lawyers-journal-040117 Barry Miller and Anthony Califano authored an article for <i>Massachusetts Lawyers Journal</i> http://www.seyfarth.com:80/publications/miller-and-califano-authored-article-massachusetts-lawyers-journal-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Barry Miller and Anthony Califano authored &quot;A lighter load for motor carriers,&quot; an article on April 1 for Massachusetts Lawyers Journal. This article discusses the Massachusetts independent contractor statute and federal preemption.</p> <p> <a href="http://www.massbar.org/media/1765790/marchapril2017.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/vandewater-authored-article-commercial-leasing-law-and-strategy-040117 Melissa Vandewater authored an article in <i>Commercial Leasing Law & Strategy</i> - Part 2 of 2 http://www.seyfarth.com:80/publications/vandewater-authored-article-commercial-leasing-law-and-strategy-040117 Sat, 01 Apr 2017 00:00:00 -0400 <p> Melissa Vandewater authored &quot;Work Letter &#39;What Ifs&#39;,&quot; an article on April 1 in <em>Commercial Leasing Law &amp; Strategy</em>. The article discusses how addressing potential Work Letter issues within the contract can pay dividends down the road.</p> <p> <a href="http://www.lawjournalnewsletters.com/sites/lawjournalnewsletters/2017/04/01/work-letter-what-ifs/?slreturn=20170402160445">You can read Part Two here</a>.</p> http://www.seyfarth.com:80/publications/WC033117 Tennessee Court Rejects EEOC’s Supersized Subpoena Served On Fast Food Employer http://www.seyfarth.com:80/publications/WC033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> A federal court in Tennessee denied the EEOC&rsquo;s application for an Order to Show Cause why its administrative subpoena should not be enforced. &nbsp;This ruling highlights the importance and benefits of employers understanding the contours of the charges being investigated by the EEOC, so that the employer can guard against improper fishing expeditions.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/tennessee-court-rejects-eeocs-supersized-subpoena-served-on-fast-food-employer/">click here</a></p> http://www.seyfarth.com:80/publications/EL033117 Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents, Employment Law Lookout Blog http://www.seyfarth.com:80/publications/EL033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement. &nbsp; This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur. &nbsp;Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/quick-guidance-what-to-do-in-the-event-of-a-visit-by-the-dhs-ice-agents/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=0f6a622cbe-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-0f6a622cbe-71256185">click here</a></p> http://www.seyfarth.com:80/publications/boutros-storm-schleppenbach-authored-article-bloomberg-white-collar-crime-report-033117 Andrew Boutros, Philip Storm and John Schleppenbach authored an article for <i>Bloomberg’s White Collar Crime Report</i> http://www.seyfarth.com:80/publications/boutros-storm-schleppenbach-authored-article-bloomberg-white-collar-crime-report-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Andrew Boutros, Philip Storm, and John Schleppenbach authored &quot;Adding Meat to the Bone: The Department of Justice Issues New &lsquo;Meatier&rsquo; Guidance on Corporate Compliance Programs,&quot; an article on March 31 for <em>Bloomberg&rsquo;s White Collar Crime Report</em>. &nbsp;This article discusses the importance of having an effective, up-to-date corporate compliance program in advance of a government inquiry or investigation.</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosStormSchleppenbach_033117.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/WC03312017 Employer Defeats Novel TCPA Class Action http://www.seyfarth.com:80/publications/WC03312017 Fri, 31 Mar 2017 00:00:00 -0400 <p> In a first-of-its kind ruling, an employer recently secured the dismissal with prejudice of what is believed to be one of the first Telephone Consumer Protection Act class actions ever brought against a company while acting as an employer &ndash; specifically in this instance, the use of robo-calls to contact applicants about employment opportunities. The ruling ought to be required reading for corporate counsel in order to understand this emerging risk and to craft strategies to protect companies against such claims.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/employer-defeats-novel-tcpa-class-action/">click here</a></p> http://www.seyfarth.com:80/news/bartlett-quoted-bloomberg-BNA-033117 Brett Bartlett quoted by <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/bartlett-quoted-bloomberg-BNA-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Brett Bartlett was quoted in &quot;Opinion Letters From DOL Could Help Employers &lsquo;Get-Out-of-Jail Free&rsquo;,&quot; a March 31 story by <em>Bloomberg BNA</em> on the expectation that the Labor Department will revive opinion letters, a common compliance tool which enable companies to present the documents before a judge or investigator as a &ldquo;good faith&rdquo; defense. Bartlett anticipates a flood of opinion letter requests made to the Wage and Hour Division.</p> <p> <a href="https://www.bna.com/opinion-letters-dol-n57982086029/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/lurie-quoted-law360-033117 Dawn Lurie was quoted in <i>Law360</i> http://www.seyfarth.com:80/news/lurie-quoted-law360-033117 Fri, 31 Mar 2017 00:00:00 -0400 <p> Dawn Lurie was quoted in &quot;3 Ways To Prepare For The EB-5 Regional Center Audits,&quot; a March 31 story from <em>Law360 </em>on three tips for how regional centers can prepare for the coming audits. Lurie said that if people are interviewed, the best thing to do is take really, really good notes.</p> http://www.seyfarth.com:80/news/gurell-quoted-law360-033017 Marc Gurell quoted in <i>Law360</i> http://www.seyfarth.com:80/news/gurell-quoted-law360-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Marc Gurell was quoted in &quot;JVs For Partial NYC Tower Stakes Pose Control, Tax Issues,&quot; a March 30 story from <em>Law360 </em>on the number of factors, some functions of market conditions and others based on tax structure, causing more owners of Manhattan trophy properties to enter a joint venture with a new partner and sell, say, a 49 percent stake in the property. Gurell said that while it is clearly attractive to avoid payment of a transfer tax, great caution should be exercised in structuring these transactions.</p> http://www.seyfarth.com:80/news/lorber-quoted-employee-benefit-news-033017 Larry Lorber quoted by <i>Employee Benefit News</i> http://www.seyfarth.com:80/news/lorber-quoted-employee-benefit-news-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;What do the DOL proposed budget cuts mean for employers?&quot; &mdash; a March 30 story in <em>Employee Benefit News</em> on the proposed $2.6 billion reduction to the Department of Labor&rsquo;s 2018 budget, as outlined earlier this month in President Donald Trump&rsquo;s &ldquo;America First&rdquo; spending blueprint. Lorber said that if there is a substantial budget cut, one of the results might be expected to be a reduction of enforcement actions or enforcement staff.</p> <p> <a href="https://www.benefitnews.com/news/what-do-the-dol-budget-cuts-mean-for-employers">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/kramer-and-stevens-authored-article-employee-benefit-adviser-033017 Ronald Kramer and Michael Stevens authored an article in <i>Employee Benefit Adviser</i> http://www.seyfarth.com:80/publications/kramer-and-stevens-authored-article-employee-benefit-adviser-033017 Thu, 30 Mar 2017 00:00:00 -0400 <p> Ronald Kramer and Michael Stevens authored &quot;Using administrative exhaustion as a defense to statutory ERISA claims,&quot; an article on March 30 in <em>Employee Benefit Adviser</em>. The article discusses a recent decision where the Sixth Circuit joined six other circuit courts in holding that ERISA claims that seek vindication of statutory ERISA rights pertaining to the legality of a plan amendment, as opposed to an interpretation of the plan, are not subject to administrative exhaustion requirements.</p> <p> <a href="https://www.employeebenefitadviser.com/opinion/using-administrative-exhaustion-as-a-defense-to-statutory-erisa-claims">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/OMM033017-Antitrust New Sheriffs In Town -- President Trump’s Antitrust Picks http://www.seyfarth.com:80/publications/OMM033017-Antitrust Thu, 30 Mar 2017 00:00:00 -0400 <div> <em><strong>Seyfarth Synopsis:</strong> On Monday, March 27, 2017, the Trump Administration announced the selection of Makan Delrahim to lead the Antitrust Division of the U.S. Department of Justice. &nbsp;This follows the appointment of Abbott (Tad) Lipsky as Acting Director of the Federal Trade Commission&rsquo;s Bureau of Competition. &nbsp;The Antitrust Division the Bureau of Competition are both responsible for enforcing U.S. antitrust laws. &nbsp; Mr. Delrahim&rsquo;s appointment now goes to the Senate Judiciary Committee for review. Assuming he is confirmed, companies involved in merger and acquisition transactions should anticipate a pragmatic approach to merger review from the Antitrust Division and the FTC during the Trump Administration.</em></div> <div> &nbsp;</div> <div> <strong>Biographies</strong></div> <div> Makan Delrahim and Tad Lipsky are well-respected and experienced antitrust attorneys with pro-business backgrounds.</div> <div> &nbsp;</div> <div> Makan Delrahim is the current deputy White House counsel for President Trump. &nbsp;From 2005 until he joined the Trump Administration, Mr. Delrahim worked as an antitrust lawyer and lobbyist, representing large technology companies like Google, pharmaceutical companies and health insurers like Anthem. &nbsp;Mr. Delrahim previously served as deputy assistant attorney general in the Antitrust Division during President George W. Bush&rsquo;s administration.</div> <div> &nbsp;</div> <div> Tad Lipsky became the Acting Director of the FTC&rsquo;s Bureau of Competition effective March 6, 2017. &nbsp;Previously, he focused on antitrust matters as a partner at Latham &amp; Watkins and as chief global antitrust counsel for the Coca-Cola Company. &nbsp;Prior to entering private practice, Mr. Lipsky served in a number of government roles, including as an attorney in the Antitrust Division and as Deputy Assistant Attorney General during President Reagan&rsquo;s administration. &nbsp;</div> <div> &nbsp;</div> <div> <strong>Republican Leanings</strong></div> <div> &nbsp;</div> <div> Mr. Lipinsky recently wrote that &ldquo;U.S. merger review . . . is justly reputed to be the most costly form of merger review in the world. It has become a poster child for agency &lsquo;mission creep&rsquo; and crushing procedural burdens . . . . The burdens of the HSR process&mdash;agency demands for massive document searches, for example&mdash;sometimes reach levels that invite parody.&rdquo; &nbsp;Mr. Delrahim also has called for a nuanced approach to antitrust enforcement, saying that &ldquo;if the law somehow restricts procompetitive behavior or allows anticompetitive behavior because we apply old economy understanding to new-economy technology challenges, we may inadvertently hurt consumers.&rdquo;&nbsp;</div> <div> &nbsp;</div> <div> Mr. Delrahim&rsquo;s appointment now goes to the Senate Judiciary Committee for review. Assuming he is confirmed, companies involved in merger and acquisition transactions should anticipate a pragmatic approach to merger review from the Antitrust Division and the FTC during the Trump Administration.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/MA033017-LE Quick Guidance: What To Do In The Event of a Visit By The DHS-ICE Agents http://www.seyfarth.com:80/publications/MA033017-LE Thu, 30 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis</strong>: As the Department of Homeland Security, as well as the administration generally, signals increases in immigration enforcement activity, businesses are advised to implement clear protocols for the conduct of key personnel in the event of a visit by a federal officer, particularly Special Agents of the Department of Homeland Security, Immigration and Customs Enforcement (&ldquo;ICE&rdquo;).&nbsp;&nbsp; This guidance identifies the likely purposes of an ICE visit and sets forth critical steps for key personnel should such a visit occur.&nbsp; Businesses are advised to work with legal counsel to tailor this general guidance to their specific industry and business processes.</em></p> <p> In light of the Trump Administration&rsquo;s promises of increased immigration enforcement, employers and employees are growing more concerned about the prospect of government worksite visits either to effectuate arrests or to conduct investigations and audits.&nbsp; To be clear, the Department of Homeland Security&rsquo;s (&ldquo;DHS&rdquo;) Immigration and Customs Enforcement &nbsp;(&ldquo;ICE&rdquo;) agency has clarified that there has been no directive to initiate worksite enforcement (aka raids) against employers. Notwithstanding, it does appear that recent ICE arrests have swept not only individuals either alleged to have committed a crime or for whom an immigration warrant is outstanding, but also others accompanying the intended arrestee who are found to lack legal status in the U.S.</p> <p> In addition to arrests, other investigative and audit activity looms on the horizon. Chatter continues about a possible increase in Form I-9 audits by ICE&rsquo;s Homeland Security Investigations Unit (HSI), and similar activity by the U.S. Citizenship and Immigration Services Fraud Detection National Security Unit<a href="#_ftn1" name="_ftnref1" title="">[1]</a> as well as it&rsquo;s E-Verify Monitoring and Compliance branch<a href="#_ftn2" name="_ftnref2" title="">[2]</a>. Additionally, the Department of Justice&rsquo;s newly named Employee and Immigrant Rights Office (legacy Office of Special Counsel), will continue to pursue investigations into citizenship, national origin discrimination and document abuse matters. This Alert focuses on a visit by the folks at HSI, a separate Alert will be focused on USCIS site visits and investigative visits by other agencies.&nbsp;</p> <p> <strong>Be Prepared</strong></p> <p> Employers must develop and implement strong compliance policies, renew their current policies, assess immigration exposure, consider outside counsel audits of Form I-9, E-Verify and H-1B public access files, if applicable and most relevant to today&rsquo;s climate, plan in advance how to respond when immigration agents visit the company. All personnel, from the those in the reception area to HR managers must be prepared and know what to say and what not to say when DHS agents visit. Training alone will not prepare the business, but rather a targeted step-by-step process, known to all relevant managers and employees, that can be easily followed in the event of a visit will likely yield enhanced results</p> <p> It is important to understand the possible purposes of a DHS visit and how to respond when a DHS Special Agent knocks on your door. The following is a general guide for addressing a visit from an immigration Special Agent. We recommend developing specific process documents to describe the various types of encounters with government agents that a worksite may face. It is also important to consider delineating roles and responsibilities, as well as a global response to investigations and audits.</p> <p> <strong>Keep in mind there will be three main reasons by ICE may visit a worksite:</strong></p> <p style="margin-left: 40px;"> 1. To look for, or take into custody, a particular individual;</p> <p style="margin-left: 40px;"> 2. To issue a Notice of Inspection of a company&rsquo;s Form I-9 document; ICE continues to focus its worksite inspection efforts on employers conducting business in critical infrastructure and national security interest industries/sectors. &nbsp;For example commercial facilities, communications, critical manufacturing, dams, emergency services, government facilities, information technology, nuclear reactors materials and waste and transportation systems remain favorites. Other focus is on employers for whom ICE has received a credible tip or lead. A full overview of the Form I-9 Inspection is discussed in a separate Alert; or</p> <p style="margin-left: 40px;"> 3. To conduct a Worksite Enforcement Action: During these worksite &ldquo;raids&rdquo;, large numbers of Special Agents may descend upon a location, without notice. ICE will obtain indictments, arrest or search warrants, or a commitment from a U.S. Attorney&#39;s Office to prosecute a targeted employer <em>before</em> arresting employees for civil immigration violations at a worksite. The last such &ldquo;Action&rdquo; occurred in Bellingham, Washington in February of 2009 however, it is unknown whether such activity will resume.<a href="#_ftn3" name="_ftnref3" title="">[3]</a></p> <p> <strong>Designate and Prepare Representative Responders</strong></p> <p> When the government knocks it will serve a company well to have prepared those on site to greet the government visitor. Providing that &ldquo;greeter&rdquo; with a specific list of exactly who needs to be contacted, both immediately at the affected location and/or elsewhere in the company, will minimize confusion. This guidance will be welcomed by your employees. Defining roles, and even providing scripts to greeters and representative responders, may further minimize unnecessary disruption and distress. Responder roles include, but are not limited to, the following individuals:</p> <p style="margin-left: 40px;"> 1.) Receptionist /Front Desk Greeter</p> <p style="margin-left: 40px;"> 2.) Manager(s)</p> <p style="margin-left: 40px;"> 3.) Human Resources Representative</p> <p style="margin-left: 40px;"> 4.) General Counsel, if applicable</p> <p style="margin-left: 40px;"> 5.) Outside Immigration Counsel</p> <p> <strong>Provide Instructions to the Field</strong></p> <p> Employees likely to be approached by government Special Agents, including reception staff and relevant security personnel, should be briefed on the company&rsquo;s protocol for handling a visit targeting an individual, the service of a Notice of Inspection, or another enforcement action. It is critical that companies first discuss the specifics of such a protocol with their immigration counsel in order to address individual considerations and customize a particular response. &nbsp;Advice will be based on a variety of factors including a risk assessment and even a review of your physical plant.</p> <p> Regardless of the type of investigation, all responders must be as cooperative as possible with the government Special Agents. You generally want to provide the government with only that which is necessary to meet their request as outlined in detail below. The initial contact should ascertain the name of the agency visiting and whether or not they have documents to present, as well as the purpose of their visit. You also want to ensure the visit itself does not exceed the scope of the warrant, subpoena, or other written request.</p> <p> The <strong>Receptionist/Greeter </strong>should be instructed that upon the arrival of government Special Agents, s/he should <em>immediately contact the designated Manager</em> and any other Responders. The receptionist&rsquo;s role could end there or could continue to the next steps depending upon the direction of the company.</p> <p style="margin-left:.5in;"> 1. The Greeter should not allow the Special Agents out of the waiting area, but rather make them comfortable while waiting for the Manager or appropriate lead person.</p> <p style="margin-left:.5in;"> 2. Limited questions and answers noting <u>she/he is not authorized to give consent to enter the premises or respond to questions.</u> Special Agents are trained professionals and being overly talkative is not recommended. In some cases the Special Agents may seem threatening, aggressive, or difficult, however there is no need to panic. In other cases, the pair of agents could begin a game of &ldquo;good cop/bad cop&rdquo; right there in the lobby. The Greeter should keep calm and continue to try to reach the manager.</p> <p style="margin-left:.5in;"> 3. If the Special Agent is still aggressive, inform him/her that the company has protocols in place to make sure government inquiries are addressed and request that you be allowed to follow them. On the other hand if the agent is very chatty, keep in mind he/she is really not a friend and there is no need to sit down and engage in conversation. Keep the answers short and direct until a Manager arrives.</p> <p style="margin-left:.5in;"> 4. A direct call to legal counsel should be considered as part of this process for the Greeter.</p> <p style="margin-left:.5in;"> 5. AGAIN, the Greeter should not provide any consent to allow the Special Agents access to anywhere outside of the public entry way space.</p> <p> <strong>The Manager</strong> (or his designee) should ensure legal counsel, headquarters and outside immigration counsel, as designated in your company&rsquo;s individual protocol has been contacted prior to walking out to meet the Special Agents. Mobile phone numbers and specific contact information should be readily accessible. The manager should then greet and escort the Special Agents to a predetermined room/location, which should be as private as possible. The location should be close to an exit of the building where their departure, possibly with an employee, will not cause disruption. Specifically the Manager should then take the following steps:</p> <p style="margin-left:.5in;"> 1. Confirm and/or identify the government agency that dispatched the agent/visitor. Ask the Special Agents for identification and note each person&rsquo;s name, title, agency, and obtain contact information as well a business card.</p> <p style="margin-left:.5in;"> 2. Ask the Special Agents about the purpose of the visit and request subpoena and/or warrant, under which they are acting.&nbsp; The agents MUST present a warrant in order to gain access to the items or individuals they are seeking.</p> <p style="margin-left:.5in;"> 3. Inquire on the nature of the inquiry and ascertain to the extent possible if an individual employee is being or if the agents are investigating the company.</p> <p style="margin-left:.5in;"> 4. Communicate to the government agents that the company will cooperate with the request but that they have/will contact legal counsel to assist them in complying.</p> <p style="margin-left:.5in;"> 5. Determine if the agent is presenting official documents by reading them or scanning to in-house counsel or outside Counsel. If time is short the Manager can take a photo on their phone and text message. If the investigator presents any official documents, they must be read carefully to determine if the document is a Judicial Subpoena (which must be honored) or an Administrative Subpoena (which may be challenged) . Generally, Form I-9 audit requests are administrative and elements of the request may be subject to challenge.</p> <p style="margin-left:.5in;"> 6. An arrest warrant will not authorize its holders to simply wander otherwise private premises. The warrant must describe with specificity the location to be entered and those specifics will limit where an agent can go.&nbsp; &nbsp;Even if the warrant authorizes the arrest of an individual, it must explicitly authorize entry into specific private premises including individual offices, the production floor etc. for such entry to occur.</p> <p style="margin-left:.5in;"> 7. Employees should be reminded not to waive any rights, and provide consent to any activity beyond that described in the warrant.</p> <p style="margin-left:.5in;"> 8. Remember ICE agents must have a valid search warrant or the company&rsquo;s consent to enter non-public areas of the workplace even if the company itself is under investigation.</p> <p style="margin-left:.5in;"> 9. Make contact with the lawyers. Before answering any of the agent&rsquo;s questions, the Manager should first speak with inside counsel or experienced immigration counsel. Counsel may want to come to the location, if possible, or speak by telephone with the investigator.</p> <p style="margin-left:.5in;"> 10. Remember you have three days to turn over your Form I-9s and related documents, even when presented with a subpoena and related Notice of Inspection. Do not EVER waive this time period. Immigration counsel will assist directly and organize the submission to ICE or the requesting agency (sharing of Form I-9 data is limited for privacy purposes, but allowed to be provided to agencies outside of DHS and DOL where there is a criminal investigation involved). Documents will be turned over in an orderly fashion with ICE acknowledging receipt and providing a &ldquo;Chain of Custody&quot;.</p> <p> In summary:</p> <ul> <li> Do not turn over any documents unless a search warrant mandates such action. Again, this will not be the case in the context of an Form I-9 audit.</li> <li> Do not provide any information other than what is exactly asked.</li> <li> Make copies, if possible of anything being taken.</li> <li> Ensure legal counsel is available in real time to consult on any immediate requests.</li> </ul> <p> Companies in specific industries may face additional challenges &nbsp;when responding to government visits. Outside immigration counsel should be consulted to establish customized protocols and practical procedures for your employees, supervisors and managers, and possibly your customers, to follow when faced with visits from ICE, USCIS DOJ or the DOL.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> US Citizenship and Immigration Services conducts site visits where employers have petitioned for work visas on behalf of their employees. These site visits are also likely to rise as the administration focuses on usage of the H-1B and L-1 visa categories but are not the topic of today&rsquo;s article</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> According to the USCIS website, Monitoring and Compliance &ldquo;observes system use to help users comply with the E-Verify&hellip;.E-Verify does not fine employers but may refer cases of suspected misuse, abuse, and/or fraud to appropriate agencies&rdquo; M&amp;C conducts desk reviews and site visits.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> Separately employers should consciously decide whether and to what degree they will provide guidance and assistance to employees who may be affected directly or who may have concerns about the government&rsquo;s enforcement policies. &nbsp;This will depend on the location and nature of your business, as well as the composition of your workforce. &nbsp;Companies ought to be considering the need if any, for messaging regarding the administration&rsquo;s immigration policies. Discussions of immigration status and government enforcement, are breakroom fodder and the implications should be understood. Also companies need to consider, what resources if any are being provided to employees and what the impact of certain information, including learning of employee&rsquo;s actual status could have if left unaddressed.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/MA032917-LE No Turning Back: The Brexit Process Begins http://www.seyfarth.com:80/publications/MA032917-LE Wed, 29 Mar 2017 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility and International Employment Law Practices host attorneys licensed to practice in the UK, Canada, Australia, China, Ireland, Germany, and France. These groups have &nbsp;assisted clients in more than 150 jurisdictions around the world.&nbsp; If we can assist you in international&nbsp; employment or immigration matters, please call your usual Seyfarth contact attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis: </strong></em><em>Today, British Prime Minister Theresa May invoked Article 50, formally starting the two-year negotiation process for the United Kingdom to withdraw from the European Union.</em></p> <p> The UK Government today notified the European Council President of the UK&rsquo;s intention to withdraw from the European Union, in accordance with Article 50 of the Lisbon Treaty. This formally kick-starts the two year negotiation process between the UK and the remaining 27 member states. In Prime Minister Theresa May&rsquo;s address to Parliament, she stated: &ldquo;This is an historic moment from which there can be no turning back.&rdquo;</p> <p> The UK and the EU now have a maximum of two years to negotiate the terms of exit for the UK, during which the UK Government also wants to explore its ongoing relationship and trade terms with the EU.&nbsp; If no agreement has been reached by the end of the two year period, the UK relationship with the EU will become the same as that of any other country under the WTO rules, with no preferential terms, unless the European Council (comprised of the Heads of all Member States) agrees to extend the negotiations. Based on recent UK Government statements, there seems to be an increasing acceptance that terms for the ongoing relationship will not be finalized by the end of March 2019, and some form of transitional arrangement to continue free trade may be necessary. Europe has however indicated this would be for only an additional three years.</p> <p> With respect to immigration, the Prime Minister confirmed the UK government&rsquo;s intention to maintain the common travel area with the Republic of Ireland and that there should be no return to a hard border with Northern Ireland. The UK will introduce measures to control immigration, continuing to attract the &ldquo;brightest and the best&rdquo; to work or study in Britain. The aim will be to manage the immigration process so that the system serves the national interest. Details of the new immigration regime will be decided during the two year negotiation process. In the interim, the existing free movement rights for EU citizens in the UK, and vice versa, will remain unchanged.</p> <p> <strong>What Happens Next? </strong></p> <p> There are no immediate changes to the UK&rsquo;s laws or status in the EU, pending the outcome of the exit negotiations. The rights of EU citizens who currently live in the UK, and the rights of British citizens who reside in other EU countries, will be an early priority in the negotiations. However, as the future status of these citizens has not yet been guaranteed, we continue to recommend that all EU nationals currently living in the UK apply for a residence card to confirm their status.</p> <p> Tomorrow, the UK Government will publish a White Paper confirming its plans to convert the existing EU laws into British law. Following exit from the EU, there may be changes to UK law to remove certain EU-derived protections and provide businesses with more flexibility, consistent with the UK Government&rsquo;s statement that the UK would try to lighten tax and regulation. Negotiations between the UK and EU teams are expected to begin in earnest in May, at which point we will have more detail of their positions on the key negotiating points.</p> <p> Most immigration and employed-related issues remain uncertain and will be decided during the negotiation process. We will update clients as further details are announced.</p> http://www.seyfarth.com:80/publications/EA032917-France No Turning Back: The Brexit Process Begins | Le point de non-retour: le processus du Brexit est lancé http://www.seyfarth.com:80/publications/EA032917-France Wed, 29 Mar 2017 00:00:00 -0400 <div> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Seyfarth Shaw&rsquo;s Global Mobility and International Employment Law Practices host attorneys licensed to practice in the UK, Canada, Australia, China, Ireland, Germany, and France. These groups have &nbsp;assisted clients in more than 150 jurisdictions around the world. &nbsp;If we can assist you in international employment or immigration matters, please call your usual Seyfarth contact attorney. We will be happy to help you.</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>Today, British Prime Minister Theresa May invoked Article 50, formally starting the two-year negotiation process for the United Kingdom to withdraw from the European Union.</em></div> <div> &nbsp;</div> <div> <strong>Article 50 triggered</strong></div> <div> &nbsp;</div> <div> The UK Government today notified the European Council President of the UK&rsquo;s intention to withdraw from the European Union, in accordance with Article 50 of the Lisbon Treaty. This formally kick-starts the two year negotiation process between the UK and the remaining 27 member states. In Prime Minister Theresa May&rsquo;s address to Parliament, she stated: &ldquo;This is an historic moment from which there can be no turning back.&rdquo;&nbsp;<br /> &nbsp;</div> <div> The UK and the EU now have a maximum of two years to negotiate the terms of exit for the UK, during which the UK Government also wants to explore its ongoing relationship and trade terms with the EU. &nbsp;If no agreement has been reached by the end of the two year period, the UK relationship with the EU will become the same as that of any other country under the WTO rules, with no preferential terms, unless the European Council (comprised of the Heads of all Member States) agrees to extend the negotiations. Based on recent UK Government statements, there seems to be an increasing acceptance that terms for the ongoing relationship will not be finalized by the end of March 2019, and some form of transitional arrangement to continue free trade may be necessary. Europe has however indicated this would be for only an additional three years.</div> <div> &nbsp;</div> <div> With respect to immigration, the Prime Minister confirmed the UK government&rsquo;s intention to maintain the common travel area with the Republic of Ireland and that there should be no return to a hard border with Northern Ireland. The UK will introduce measures to control immigration, continuing to attract the &ldquo;brightest and the best&rdquo; to work or study in Britain. The aim will be to manage the immigration process so that the system serves the national interest. Details of the new immigration regime will be decided during the two year negotiation process. In the interim, the existing free movement rights for EU citizens in the UK, and vice versa, will remain unchanged.&nbsp;</div> <div> &nbsp;</div> <div> <strong>What Happens Next?&nbsp;</strong></div> <div> &nbsp;</div> <div> There are no immediate changes to the UK&rsquo;s laws or status in the EU, pending the outcome of the exit negotiations. The rights of EU citizens who currently live in the UK, and the rights of British citizens who reside in other EU countries, will be an early priority in the negotiations. However, as the future status of these citizens has not yet been guaranteed, we continue to recommend that all EU nationals currently living in the UK apply for a residence card to confirm their status.&nbsp;</div> <div> &nbsp;</div> <div> Tomorrow, the UK Government will publish a White Paper confirming its plans to convert the existing EU laws into British law. Following exit from the EU, there may be changes to UK law to remove certain EU-derived protections and provide businesses with more flexibility, consistent with the UK Government&rsquo;s statement that the UK would try to lighten tax and regulation. Negotiations between the UK and EU teams are expected to begin in earnest in May, at which point we will have more detail of their positions on the key negotiating points.&nbsp;</div> <div> &nbsp;</div> <div> Most immigration and employed-related issues remain uncertain and will be decided during the negotiation process. We will update clients as further details are announced.</div> <div> &nbsp;</div> <div> <hr /> <div> <em>L&rsquo;article ci-dessous est destin&eacute; aux entreprises &eacute;tablies &nbsp;au Royaume Uni ou qui envisagent de recruter ou d&eacute;tacher du personnel au Royaume-Uni.&nbsp;</em></div> <div> &nbsp;</div> <div> <em>Des avocats inscrits aux barreaux du Royaume-Uni, du Canada, d&rsquo;Australie, de Chine, d&rsquo;Irlande, d&rsquo;Allemagne et de France travaillent au sein des d&eacute;partements droit social international et mobilit&eacute; internationale de Seyfarth Shaw. Ils assistent des clients dans plus de 150 juridictions autour du monde. Si vous avez besoin de conseil en droit du travail international ou pour une question d&rsquo;immigration, veuillez contacter votre interlocuteur habituel au sein de Seyfarth. Nous serons heureux de vous aider.&nbsp;</em></div> <div> &nbsp;</div> <div> <em><strong>Synopsis Seyfarth:</strong> Aujourd&rsquo;hui, le premier ministre britannique, Theresa May a invoqu&eacute; l&rsquo;Article 50, lan&ccedil;ant ainsi de fa&ccedil;on formelle le processus de n&eacute;gociation de deux ans &agrave; l&rsquo;issue duquel le Royaume-Uni se retirera de l&rsquo;Union Europ&eacute;enne (UE).</em></div> <div> &nbsp;</div> <div> <strong>L&rsquo;Article 50 enclench&eacute;</strong></div> <div> &nbsp;</div> <div> Le Royaume-Uni et l&rsquo;Europe disposent d&eacute;sormais d&rsquo;une p&eacute;riode maximale de deux ans pour n&eacute;gocier les conditions de sortie du Royaume-Uni, p&eacute;riode au cours de laquelle le gouvernement britannique souhaite &eacute;galement explorer la question de ses relations avec l&rsquo;Europe et les conditions commerciales avec l&rsquo;UE. Si aucun accord n&rsquo;est trouv&eacute; &agrave; l&rsquo;issue de ces deux ann&eacute;es, la relation entre le Royaume-Uni et l&rsquo;UE deviendra la m&ecirc;me qu&rsquo;avec n&rsquo;importe quel autre pays, en application des r&egrave;gles de l&rsquo;Organisation Mondiale du Commerce, sans conditions pr&eacute;f&eacute;rentielles, &agrave; moins que le Conseil europ&eacute;en (form&eacute; des chefs d&rsquo;&eacute;tat des &eacute;tats membres) accepte d&rsquo;&eacute;tendre les n&eacute;gociations. Les r&eacute;centes d&eacute;clarations du gouvernement britannique t&eacute;moignent d&rsquo;une acceptation g&eacute;n&eacute;rale que les termes et conditions des futures relations ne seront pas finalis&eacute;s avant fin mars 2019 et que des dispositions transitoires permettant la poursuite du march&eacute; unique sera n&eacute;cessaire. L&rsquo;Europe a n&eacute;anmoins indiqu&eacute; que la prolongation n&rsquo;ira pas au-del&agrave; de trois ans suppl&eacute;mentaires.</div> <div> &nbsp;</div> <div> En mati&egrave;re d&rsquo;immigration, le premier ministre a cependant confirm&eacute; l&rsquo;intention du gouvernement britannique de maintenir une zone de libre circulation avec l&rsquo;Irlande et qu&rsquo;on ne r&eacute;tablira pas &agrave; une fronti&egrave;re avec l&rsquo;Irlande du Nord. Le Royaume-Uni introduira des mesures pour contr&ocirc;ler l&rsquo;immigration, tout en continuant d&rsquo;attirer &laquo; &nbsp;les meilleurs et les plus brillants &raquo; &agrave; venir travailler et &eacute;tudier en Grande Bretagne. Le but est de pouvoir contr&ocirc;ler le processus d&rsquo;immigration pour que le syst&egrave;me serve l&rsquo;int&eacute;r&ecirc;t national. Plus de d&eacute;tails sur ce nouveau dispositif seront d&eacute;cid&eacute;s au cours des deux ann&eacute;es du processus de n&eacute;gociation. Entre temps, le droit des ressortissants europ&eacute;ens de librement circuler vers le Royaume-Uni et r&eacute;ciproquement demeureront inchang&eacute;s.&nbsp;</div> <div> &nbsp;</div> <div> <strong>Quelles prochaines &eacute;tapes?</strong></div> <div> &nbsp;</div> <div> Dans l&rsquo;imm&eacute;diat, le droit britannique ou le statut du Royaume-Uni au sein de l&rsquo;UE demeurent inchang&eacute;s jusqu&rsquo;&agrave; la fin des n&eacute;gociations. Les droits des ressortissants europ&eacute;ens qui vivent au Royaume-Uni et les droits des citoyens britanniques qui vivent dans des pays de l&rsquo;UE seront une priorit&eacute; dans les n&eacute;gociations. Cependant, le statut &agrave; venir de ces citoyens n&rsquo;a pas &eacute;t&eacute; encore garanti et notre recommandation reste la m&ecirc;me que pr&eacute;c&eacute;demment : nous encourageons les citoyens europ&eacute;ens habitant au Royaume-Uni &agrave; faire la demande d&rsquo;une carte de r&eacute;sident afin de confirmer leur statut.&nbsp;</div> <div> &nbsp;</div> <div> Demain, le gouvernement britannique va publier une feuille de route confirmant son intention de convertir les r&egrave;gles europ&eacute;ennes existantes en droit britannique. Apr&egrave;s la sortie du Royaume-Uni, il y aura peut-&ecirc;tre des modifications du droit britannique aux fins de se d&eacute;laisser de certaines r&egrave;gles restrictives europ&eacute;ennes, et de donner plus de flexibilit&eacute; aux entreprises, conform&eacute;ment aux d&eacute;clarations du gouvernement britannique selon lesquelles le Royaume-Uni allait essayer d&rsquo;all&eacute;ger la fiscalit&eacute; et les r&egrave;gles du march&eacute;. Il est pr&eacute;vu que les n&eacute;gociations entre les &eacute;quipes britanniques et europ&eacute;ennes commenceront en mai. Nous aurons alors plus d&rsquo;information sur leurs positions respectives concernant les points forts des n&eacute;gociations.&nbsp;</div> <div> &nbsp;</div> <div> La plupart des questions relatives au droit du travail et au droit de l&rsquo;immigration restent incertaines et seront tranch&eacute;es pendant le processus de n&eacute;gociation. Nous tiendrons nos clients inform&eacute;s d&egrave;s que nous aurons plus de d&eacute;tails.&nbsp;</div> </div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/CP032917 New Regulations Limit California Employers’ Consideration of Criminal History http://www.seyfarth.com:80/publications/CP032917 Wed, 29 Mar 2017 00:00:00 -0400 <p> The California Fair Employment and Housing Council (&ldquo;FEHC&rdquo;) has approved new regulations, effective July 1, 2017, to limit employers&rsquo; use of criminal history when making employment decisions.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/29/new-regulations-limit-california-employers-consideration-of-criminal-history/?utm_source=Seyfarth+Shaw+-+California+Peculiarities+Employment+Law&amp;utm_campaign=0705c66e40-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_9a9ff93ce6-0705c66e40-71410869">click here</a></p> http://www.seyfarth.com:80/publications/EL032917 Is a Request for Religious Accommodation “Protected Activity” for a Title VII Retaliation Claim? http://www.seyfarth.com:80/publications/EL032917 Wed, 29 Mar 2017 00:00:00 -0400 <p> The Equal Employment Opportunity Commission (EEOC) has maintained in its Enforcement Guidance on Retaliation that &ldquo;persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.&rdquo; In its Questions and Answers: Religious Discrimination in the Workplace, the EEOC &ldquo;has taken the position that requesting religious accommodation is protected activity.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/is-a-request-for-religious-accommodation-protected-activity-for-a-title-vii-retaliation-claim/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=506f8b2b34-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-506f8b2b34-71256185">click here</a></p> http://www.seyfarth.com:80/news/middle-market-mergers-and-acquisitions-survey-suggests-continued-seller-favorable-deal-environment Middle-Market M&A Survey Suggests Continued Seller-Favorable Deal Environment http://www.seyfarth.com:80/news/middle-market-mergers-and-acquisitions-survey-suggests-continued-seller-favorable-deal-environment Wed, 29 Mar 2017 00:00:00 -0400 <div> NEW YORK &ndash; Leading law firm Seyfarth Shaw LLP has published the fourth edition of its Middle-Market M&amp;A SurveyBook of Key M&amp;A Deal Terms (the &ldquo;Survey&rdquo;). The Survey analyzes over 150 middle-market (&lt;$1 billion) publicly available private target acquisition agreements signed in 2016.</div> <div> &nbsp;</div> <div> The Survey focuses on the key deal terms comprising the &ldquo;indemnity package&rdquo; often included in private target acquisition agreements to address the issue of a seller&rsquo;s potential post-closing liability to a buyer and defining the scope by which the purchase price paid to a seller may be clawed back by a buyer.</div> <div> &nbsp;</div> <div> The data analyzed in the Survey suggests that while the current M&amp;A environment is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than in 2015. As evidence, the Survey data revealed an increase in the median escrow period, an increase in the number of deals with an indemnity escrow amount of 10% or more, an increase in the median escrow amount, and an increase in the use of tipping baskets as opposed to a true deductible.</div> <div> &nbsp;</div> <div> The competition among buyers searching to acquire quality assets continues to be fierce and the purchase of representation and warranty insurance continues to be a powerful tool used by buyers in an effort to make their acquisition proposal more attractive to a seller by significantly limiting potential post-closing liability of the seller.</div> <div> &nbsp;</div> <div> While the Survey summarizes a variety of deal terms and trends in middle-market M&amp;A transactions, below are several key takeaways:</div> <ul> <li> <strong>Indemnity Escrow Amounts Increase</strong> - The median indemnity escrow amount in 2016 was 8% of the purchase price compared to 6% in 2015 and 7.41% in 2014. Approximately 35% of deals surveyed had an indemnity escrow amount of 10% or more, compared to 24% in 2015, but still below 41% in 2014 and 52% in 2013.&nbsp;</li> <li> <strong>Escrow Periods Increase</strong> - The median indemnity escrow period increased in 2016 to 18 months, compared to 16.5 months in 2015 and 15 months in 2014 and 2013. The percentage of deals with an indemnity escrow period of 24 months or greater increased to approximately 16% in 2016 compared to 13% in 2015 and 11% in 2014.</li> <li> <strong>Increased Use of Tipping Baskets</strong> - The use of threshold/tipping baskets increased to approximately 28% in 2016 from 25% in 2015 and 17% in 2014.</li> <li> <strong>Median Indemnity Cap Has Remained Unchanged Since 2013</strong> - The median indemnity cap remained steady in 2016 at 10% as compared to prior years.</li> <li> <strong>Decrease in Survival Period Carve Outs Related to Employee Benefits and Environmental Representations</strong> - The percentage of deals surveyed that carved out representations and warranties regarding employee benefits was approximately 23% in 2016 compared to 28% in 2015. Similarly, the percentage of deals that carved out representations and warranties regarding environmental matters was approximately 19% in 2016, which has been on a steady decline since 2013 when it was 30%.&nbsp;</li> </ul> <div> To view Seyfarth&rsquo;s 2017 Middle-Market M&amp;A SurveyBook, <a href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1">please visit here</a>.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys and provides a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. With offices in Atlanta, Boston, Chicago, Houston, London, Los Angeles, Melbourne, New York, Sacramento, San Francisco, Shanghai, Sydney and Washington, D.C., Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth&rsquo;s acclaimed SeyfarthLean&reg; client service model has earned numerous accolades from a variety of highly respected third parties, including industry associations, consulting firms and media.&nbsp;</div> http://www.seyfarth.com:80/publications/2017-MA-Survey Middle-Market M&A Survey Suggests Continued Seller-Favorable Deal Environment http://www.seyfarth.com:80/publications/2017-MA-Survey Wed, 29 Mar 2017 00:00:00 -0400 <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The Survey focuses on the key deal terms comprising the &ldquo;indemnity package&rdquo; often included in private target acquisition agreements to address the issue of a seller&rsquo;s potential post-closing liability to a buyer and defining the scope by which the purchase price paid to a seller may be clawed back by a buyer.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The data analyzed in the Survey suggests that while the current M&amp;A environment is still trending to be more favorable to sellers as has been the case over the past two years, there are indications to suggest that certain terms are slightly less seller favorable than in 2015. As evidence, the Survey data revealed an increase in the median escrow period, an increase in the number of deals with an indemnity escrow amount of 10% or more, an increase in the median escrow amount, and an increase in the use of tipping baskets as opposed to a true deductible.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> The competition among buyers searching to acquire quality assets continues to be fierce and the purchase of representation and warranty insurance continues to be a powerful tool used by buyers in an effort to make their acquisition proposal more attractive to a seller by significantly limiting potential post-closing liability of the seller.</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> &nbsp;</div> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> While the Survey summarizes a variety of deal terms and trends in middle-market M&amp;A transactions, below are several key takeaways:</div> <ul style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> <li> <strong>Indemnity Escrow Amounts Increase</strong>&nbsp;- The median indemnity escrow amount in 2016 was 8% of the purchase price compared to 6% in 2015 and 7.41% in 2014. Approximately 35% of deals surveyed had an indemnity escrow amount of 10% or more, compared to 24% in 2015, but still below 41% in 2014 and 52% in 2013.&nbsp;</li> <li> <strong>Escrow Periods Increase</strong>&nbsp;- The median indemnity escrow period increased in 2016 to 18 months, compared to 16.5 months in 2015 and 15 months in 2014 and 2013. The percentage of deals with an indemnity escrow period of 24 months or greater increased to approximately 16% in 2016 compared to 13% in 2015 and 11% in 2014.</li> <li> <strong>Increased Use of Tipping Baskets</strong>&nbsp;- The use of threshold/tipping baskets increased to approximately 28% in 2016 from 25% in 2015 and 17% in 2014.</li> <li> <strong>Median Indemnity Cap Has Remained Unchanged Since 2013</strong>&nbsp;- The median indemnity cap remained steady in 2016 at 10% as compared to prior years.</li> <li> <strong>Decrease in Survival Period Carve Outs Related to Employee Benefits and Environmental Representations</strong>&nbsp;- The percentage of deals surveyed that carved out representations and warranties regarding employee benefits was approximately 23% in 2016 compared to 28% in 2015. Similarly, the percentage of deals that carved out representations and warranties regarding environmental matters was approximately 19% in 2016, which has been on a steady decline since 2013 when it was 30%.&nbsp;</li> </ul> <div style="color: rgb(82, 97, 102); font-family: Arial, Helvetica, sans-serif; font-size: 13px;"> To view Seyfarth&rsquo;s 2017 Middle-Market M&amp;A SurveyBook,&nbsp;<a class="cms-content-links" href="http://viewer.zmags.com/publication/f4efd8b8#/f4efd8b8/1" style="text-decoration-line: none; color: rgb(0, 168, 225); cursor: pointer;">please visit here</a>.</div> http://www.seyfarth.com:80/news/turnbull-and-howman-giles-authored-article-wolters-kluwer-032817 Justine Turnbull and Cassie Howman-Giles authored an article in <i>Wolters Kluwer</i> http://www.seyfarth.com:80/news/turnbull-and-howman-giles-authored-article-wolters-kluwer-032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> Justine Turnbull and Cassie Howman-Giles authored &quot;A Perspective on the Unequal Representation of Women in Leadership,&quot; an article on March 28 in <em>Wolters Kluwer</em>. The article considers whether this under-representation is caused by a failure to recognise that women as much as men are able to achieve and sustain appropriate business outcomes and concludes that this is a matter that good corporate governance can resolve.</p> <p> <a href="http://www.wolterskluwercentral.com.au/employment/equal-opportunity/perspective-unequal-representation-women-leadership/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/klimesh-and-maricich-quoted-pennsylvania-record-032817 Mary Kay Klimesh and Bridget Maricich quoted in the <i>Pennsylvania Record</i> http://www.seyfarth.com:80/news/klimesh-and-maricich-quoted-pennsylvania-record-032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> Mary Kay Klimesh and Bridget Maricich were quoted in &quot;Extending Title IX to hospitals &#39;a surprise to many&#39;,&quot; a March 28 story from the <em>Pennsylvania Record</em> on a decision from the U.S. Court of Appeals for the Third Circuit which overturned a Philadelphia federal court ruling that dismissed a former medical resident&rsquo;s Title IX claims against a private medical center. Klimesh and Maricich said that the hospital industry should definitely be aware of this ruling and prepare for its impact.</p> <p> <a href="http://pennrecord.com/stories/511096387-extending-title-ix-to-hospitals-a-surprise-to-many">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/ERISA032817 Administrative Exhaustion As a Defense to Statutory ERISA Claims? Not So Much. http://www.seyfarth.com:80/publications/ERISA032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> In a decision earlier this month, the Sixth Circuit joined six other circuit courts in holding that ERISA claims that seek vindication of statutory ERISA rights pertaining to the <em>legality</em> of a plan amendment, as opposed to an <em>interpretation</em> of the plan, are not subject to administrative exhaustion requirements. &nbsp;The Sixth Circuit joined the Third, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits in so holding, while the Seventh and Eleventh Circuits require administrative exhaustion even where plaintiffs assert statutory rights.</p> <p> To read the entire blog post, <a href="http://www.erisa-employeebenefitslitigationblog.com/2017/03/28/administrative-exhaustion-as-a-defense-to-statutory-erisa-claims-not-so-much/?utm_source=Seyfarth+Shaw+-+ERISA+%26+Employee+Benefits+Litigation+Blog&amp;utm_campaign=02af02ef07-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_94b26886a2-02af02ef07-73050525">click here</a></p> http://www.seyfarth.com:80/publications/ES032817 OSHA Promotes “Safe and Sound Campaign” to Assist Employers — A Change in Approach? http://www.seyfarth.com:80/publications/ES032817 Tue, 28 Mar 2017 00:00:00 -0400 <p> In a recent news release out of OSHA&rsquo;s Region 7, it notes that OSHA&rsquo;s national &ldquo;Safe and Sound Campaign&rdquo; will assist employers in keeping workplaces safe and healthy. &nbsp;OSHA is highlighting both the launch of the &ldquo;Safe and Sound Campaign&rdquo; webpage, calling on employers to review their safety and health programs to protect workers, and reduce workplace injuries and deaths, and its &ldquo;Recommended Practices for Safety and Health Programs&rdquo; webpage, that offers &ldquo;practical advice on how any organization can integrate safety and health programs.&rdquo;</p> <p> To read the entire blog post, <a href="http://www.environmentalsafetyupdate.com/osha-compliance/osha-promotes-safe-and-sound-campaign/?utm_source=Seyfarth+Shaw+-+Workplace+Safety+and+Environmental+Law+Alert+Blog&amp;utm_campaign=60fa8bc247-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_6908b63627-60fa8bc247-71407177">click here</a></p> http://www.seyfarth.com:80/publications/OMM032717-LE President Trump Revokes Government Contracting Executive Orders And Signs Disapproval Resolution of “Blacklisting” Regulations http://www.seyfarth.com:80/publications/OMM032717-LE Mon, 27 Mar 2017 00:00:00 -0400 <p> <em><strong>Seyfarth Synopsis:</strong></em> <em>Today, President Trump issued an Executive Order revoking President Obama&rsquo;s &ldquo;Blacklisting&rdquo; Executive Orders pertaining to the government contracting community.&nbsp; The President also signed the joint resolution of disapproval rescinding the resolutions issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled &ldquo;Fair Pay and Safe Workplaces&rdquo; but popularly referred to as the &ldquo;Blacklisting&rdquo; Order.&nbsp; Under the Congressional Review Act, once a resolution is rescinded, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.</em></p> <p> Today, March 27, 2017, President Trump issued a new Executive Order titled &ldquo;Revocation of Federal Contracting Executive Orders&rdquo; rescinding the &ldquo;Blacklisting&rdquo; Executive Orders issued by President Obama.&nbsp; The President also signed the resolution of disapproval passed by both <a href="http://www.seyfarth.com/publications/OMM030817-LE">Houses of Congress</a>, disapproving the regulations issued pursuant to President Obama&rsquo;s Executive Order 13678, entitled &ldquo;Fair Pay and Safe Workplaces&rdquo; but more popularly referred to as the &ldquo;Blacklisting&rdquo; Order.&nbsp; The resolution of disapproval was made pursuant to the Congressional Review Act (CRA), which permits Congress to pass legislation rescinding a particular regulation under certain restrictions.</p> <p> Both President Trump&rsquo;s new Executive Order and the rescission resolution are in line with the Trump Administration&rsquo;s stated goal of rolling back many Obama-era federal regulations.&nbsp; They also have the effect of rescinding the paycheck transparency provisions requiring contractors to provide regular statements disclosing wages and benefits to employees, which were left in place by Judge Marcia Crone&rsquo;s nationwide preliminary <a href="http://www.seyfarth.com/publications/OMM102616-LE">injunction</a> blocking the other elements of the &ldquo;Blacklisting&rdquo; Orders&rsquo; implementing regulations.</p> <p> Now that the &ldquo;Blacklisting&rdquo; Orders&rsquo; implementing regulations have been completely rescinded pursuant to the CRA, the Executive Branch is prohibited from reissuing the same regulations, or promulgating similar ones, without Congressional approval.&nbsp; The Executive Order itself is also no longer in effect, due to President Trump&rsquo;s action today to rescind it.</p> <p> The &ldquo;Blacklisting&rdquo; Order was criticized by the employer community and employer associations because of the additional financial burdens it imposed on covered contractors, the risk to reputation and business from public disclosure of alleged violations before they are proven, and the fact that agencies already had enforcement mechanisms in place to ensure contractor compliance.&nbsp; The Congressional action under the CRA removed these supplementary requirements for federal contractors and the additional responsibilities given to the contracting agencies and the Department of Labor.</p> http://www.seyfarth.com:80/news/lutkus-quoted-law360-032717 Richard Lutkus quoted in <i>Law360</i> http://www.seyfarth.com:80/news/lutkus-quoted-law360-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Richard Lutkus was quoted in &quot;Anatomy of a Hack,&quot; a March 27 cover story from <em>Law360 </em>on how cybercriminals are breaching BigLaw&rsquo;s defense. Lutkus said that brand is a hard thing to build trust in and as soon as it&rsquo;s proven wrong by the market in terms of a hack, it&rsquo;s a PR nightmare.</p> http://www.seyfarth.com:80/news/paparelli-quoted-law360-032717 Angelo Paparelli was quoted in <i>Law360</i> http://www.seyfarth.com:80/news/paparelli-quoted-law360-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;3 Things To Watch For As Congress Takes Up EB-5 Renewal,&quot; a March 27 story from <em>Law360 </em>on three things to watch for as Congress takes up EB-5. Paparelli said that the biggest stumbling block is still the dispute that has long been waged: that is, that most of the EB-5 money, as you look at the program, has gone to gateway cities or large-scale real estate projects &mdash; hotels, office buildings, mixed-use commercial development.</p> http://www.seyfarth.com:80/news/vu-quoted-courthouse-news-service-032717 Minh Vu was quoted by the <i>Courthouse News Service</i> http://www.seyfarth.com:80/news/vu-quoted-courthouse-news-service-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Minh Vu was quoted in &quot;E-tailer Fights Threat of &lsquo;Drive-By&rsquo; ADA Lawsuit,&quot; a March 27 story from the <em>Courthouse News Service</em> on the firm&rsquo;s ADA Title III research showing that Americans with Disabilities Act lawsuits filed under Title III have proliferated recently: a 37 percent increase nationally in the past year alone and a 143 percent increase since 2013. Vu said that website lawsuits are now the serial drive-by.</p> <p> <a href="https://www.courthousenews.com/e-tailer-fights-threat-drive-ada-lawsuit/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/tyman-quoted-bloomberg-BNA-032717 Annette Tyman quoted in <i>Bloomberg BNA</i> http://www.seyfarth.com:80/news/tyman-quoted-bloomberg-BNA-032717 Mon, 27 Mar 2017 00:00:00 -0400 <p> Annette Tyman was quoted in &quot;Google Fought the Labor Department, and Google Won,&quot; a March 27 story from <em>Bloomberg BNA</em> on Google Inc.&rsquo;s preliminary victory in a Labor Department lawsuit which has some government contractors rethinking the way they respond to federal pay discrimination investigations. Tyman said that the Judge made clear that the reasonableness of any data request may depend at least in part on the amount of business a company does with the federal government.</p> <p> <a href="https://bol.bna.com/google-fought-the-labor-department-and-google-won/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/weiss-quoted-USA-today-032417 Philippe Weiss quoted by <i>USA Today</i> http://www.seyfarth.com:80/news/weiss-quoted-USA-today-032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;March Madness invades the office, distracting workers,&quot; a <em>USA Today</em> story on March 24 regarding SSAW&rsquo;s new survey which ranked March Madness third among tech-related office distractions, behind texting and Facebook, as the top time waster. Weiss said that managers can&#39;t make bets and bicker about brackets, then criticize employees for engaging in the same behavior.</p> <p> <a href="http://www.usatoday.com/story/money/business/2017/03/24/march-madness-invades-office-distracting-workers/99303896/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/EA032417 France: How to Tackle Religion in the Workplace | France : Quelles réponses apporter à la religion en entreprise http://www.seyfarth.com:80/publications/EA032417 Fri, 24 Mar 2017 00:00:00 -0400 <div> Due to the recent terrorist attacks and headlines on religious extremism across Europe, the question of restricting religious expression in the workplace is becoming more prevalent for French employers. Employers would agree that the workplace should not be a place where religious tensions should arise. Until recently, employers have had few practical guidelines on how to restrict religious expressions at work, or whether these types of restrictions are lawful. Two recent decisions by the Court of Justice of the European Union (CJEU) on 14 March 2017 and a practical guideline from the French Ministry of Labour provide several helpful responses, which we summarise below.</div> <div> &nbsp;</div> <div> <strong>Conflicting Principles</strong></div> <div> &nbsp;</div> <div> Employees have fundamental rights that need to be respected: the freedom of religious belief and the right to express such belief; the right not to be discriminated against on grounds of religion; and the right to equal treatment. Employers have the right to run a business and the right to control and organise their workforce, within reason. In the public sector only, secularism at work means that French civil servants are not entitled to express their religious beliefs in the workplace. For the private sector, the Labour Law (Loi Travail) of August 2016 introduces the principle of neutrality.</div> <div> &nbsp;</div> <div> In light of this, the French Ministry of Labour recently published a practical guideline to religious practice in the form of questions and answers. Though the practical guideline is not legally binding and contains no sanctions, it is an innovative document that interprets the law and shows the critical religious issues in the workplace.</div> <div> &nbsp;</div> <div> The underlying principle is that an employee&rsquo;s religion is not in itself a ground for lawful differential treatment, as it would be a discriminatory measure. The employer, when prohibiting, limiting or sanctioning an employee&rsquo;s behaviour linked to a religion, will have the delicate task of relying on other legal principles.</div> <div> &nbsp;</div> <div> <strong>Practical Situations and Suggested Solutions by the Ministry</strong></div> <div> &nbsp;</div> <div> The Ministry of Labour&rsquo;s guideline provides some helpful examples:</div> <div> &nbsp;</div> <div> <strong>Sanctions:</strong> The employer should sanction an employee who refuses to acknowledge a female colleague on grounds of religion. This is a sexist behaviour prohibited by the Labour Code.</div> <div> &nbsp;</div> <div> <strong>Health and Safety:</strong> The employer may stop employees from wearing a kippa, scarf or Sikh turban when this is justified by external factors, such as complying with mandatory hygiene rules in a medical environment, a factory or a kitchen; or complying with health and safety rules where wearing a safety helmet is compulsory. The employer has a duty of care towards his/her employees, e.g. during Ramadan when he/she might have to stop a fasting employee from working if there&rsquo;s a risk of him/her being in danger (e.g. a crane driver). The Ministry of Labour&rsquo;s practical guide suggests, with reference to the above example, that the employer has the right not to pay the employee for the days he/she is &ldquo;fasting&rdquo;. &nbsp;In practice, this suggestion should be considered carefully when withholding salary, as the risk of claims is high. &nbsp;The employer will need to demonstrate that the employee&rsquo;s fasting is putting him/her and others in danger.</div> <div> &nbsp;</div> <div> Paid leave: The employer does not have to accept an employee&rsquo;s request to take time off for a religious event. However, if the employer refuses, it must be for objective reasons relating to the smooth running of the company.</div> <div> &nbsp;</div> <div> <strong>Neutrality in Religion - What Employers Can Do</strong></div> <div> &nbsp;</div> <div> The Loi Travail introduces the principle of neutrality as being the equivalent of secularism, applied to companies in the private sector. The employer now has the possibility of including in company rules provisions that promote neutrality inside the company and that limit the extent employees can express their personal convictions and opinions, especially religious beliefs. However, this is not without limits. The principle of neutrality can only be included in the rules when it can be justified by the nature of the employees&rsquo; tasks, it is necessary for the smooth running of the company, or when it is linked to the exercise of other basic rights and freedoms and is proportionate to the desired objective.</div> <div> &nbsp;</div> <div> When drawing up policies, employers should in any event involve unions and other staff representatives, as the religious issue covers working conditions, working organization, health and safety issues, all of which are part of their intervention authority.</div> <div> &nbsp;</div> <div> <strong>Consecration of the Principle of Neutrality by the CJEU</strong></div> <div> &nbsp;</div> <div> The CJEU had been asked the following prejudicial question: is an employer allowed to prevent an employee who is in contact with customers from wearing a head scarf because the customer requests this (French case) or because the obligation of neutrality is provided in the Internal Rules (Belgian case)?</div> <div> &nbsp;</div> <div> The CJEU rendered its decisions communicated &nbsp;in a press release dated 14 March 2017: an internal rule of an undertaking, which prohibits the visible wearing of any political, philosophical or religious sign, does not constitute direct discrimination in itself. However, in the absence of such internal policy stating the principle of neutrality, an employer cannot take into account a customer&rsquo;s wishes as an occupational requirement to sanction an employee&mdash;such measure is deemed discriminatory.</div> <div> &nbsp;</div> <div> This CJEU decision is a strong invitation to introduce the principle of neutrality in a company&rsquo;s internal rules to avoid future claims, while ensuring that the measures are justified by a legitimate aim and genuinely pursued in a consistent and systematic manner.</div> <div> &nbsp;</div> <div> &nbsp;</div> <div> <hr /> <p> France : Quelles r&eacute;ponses apporter &agrave; la religion en entreprise</p> <div> Dans le contexte des r&eacute;cents &eacute;v&egrave;nements terroristes et l&rsquo;attention port&eacute;e par les media aux comportements et expressions des extr&eacute;mismes religieux en France, la question de la n&eacute;cessit&eacute; d&rsquo;encadrer l&rsquo;expression d&rsquo;une croyance religieuse en entreprise quelle qu&rsquo;elle soit se pose de plus en plus fr&eacute;quemment. Les employeurs s&rsquo;accorderont sur le fait que le lieu de travail ne peut &ecirc;tre l&rsquo;endroit o&ugrave; les tensions religieuses s&rsquo;expriment. Toutefois, jusqu&rsquo;&agrave; r&eacute;cemment, &nbsp;les employeurs avaient peu de guides pratiques sur comment imposer des restrictions sur l&rsquo;expression de nature religieuse, voire de clart&eacute; sur la l&eacute;galit&eacute; de telles restrictions. Deux d&eacute;cisions de la Cour de Justice de l&rsquo;Union Europ&eacute;enne (CJUE) du 14 mars 2017 et un guide pratique du Minist&egrave;re du Travail apportent plusieurs r&eacute;ponses utiles que nous rappelons ci-dessous.</div> <div> &nbsp;</div> <div> <strong>Des principes qui s&rsquo;opposent</strong></div> <div> &nbsp;</div> <div> Les salari&eacute;s b&eacute;n&eacute;ficient de droits fondamentaux qui doivent &ecirc;tre prot&eacute;g&eacute;s : la libert&eacute; de croire, la libert&eacute; d&rsquo;exprimer leurs croyances, le droit de ne pas &ecirc;tre discrimin&eacute;, directement ou indirectement en raison de leur religion et le droit &agrave; une &eacute;galit&eacute; de traitement. Les employeurs ont quant &agrave; eux le droit d&rsquo;entreprendre et le droit d&rsquo;organiser le fonctionnement de l&rsquo;entreprise et de contr&ocirc;ler raisonnablement l&rsquo;activit&eacute; des salaries. Dans les services publics uniquement, le principe de la&iuml;cit&eacute; permet de limiter le droit des fonctionnaires d&rsquo;exprimer leurs croyances au travail. Dans le secteur priv&eacute;, la loi Travail d&rsquo;ao&ucirc;t 2016 a introduit le principe de neutralit&eacute;.</div> <div> &nbsp;</div> <div> Ainsi, le minist&egrave;re du travail a r&eacute;cemment publi&eacute; un guide pratique du fait religieux sous forme de questions r&eacute;ponses. Bien que ce guide n&rsquo;ait pas d&rsquo;autorit&eacute; l&eacute;gale et ne contienne aucune sanction, il s&rsquo;agit d&rsquo;un document novateur interpr&eacute;tant le principe l&eacute;gal de neutralit&eacute; et d&eacute;montrant la sensibilit&eacute; du fait religieux en entreprise.</div> <div> &nbsp;</div> <div> Le principe directeur, la religion d&rsquo;un salari&eacute; ne peut jamais &ecirc;tre invoqu&eacute;e pour l&eacute;galement justifier une diff&eacute;rence de traitement. Aussi, pour interdire, encadrer, sanctionner des comportements en lien avec la religion, l&rsquo;employeur aura toujours la d&eacute;licate t&acirc;che de devoir trouver des fondements autres.</div> <div> &nbsp;</div> <div> <strong>Exemples pratiques et solutions du Minist&egrave;re</strong></div> <div> &nbsp;</div> <div> Le guide pratique du Minist&egrave;re du Travail pr&eacute;sente quelques illustrations utiles.</div> <div> &nbsp;</div> <div> <strong>Sanctionner.</strong> L&rsquo;employeur pourra sanctionner le salari&eacute; qui refuse de saluer sa coll&egrave;gue parce qu&rsquo;elle est une femme pour un motif religieux. C&rsquo;est un comportement sexiste prohib&eacute; par le Code du travail.</div> <div> &nbsp;</div> <div> <strong>Hygi&egrave;ne et S&eacute;curit&eacute;.</strong> L&rsquo;employeur peut interdire le port de la kippa, du voile, d&rsquo;un turban sikh si cette interdiction est justifi&eacute;e par un int&eacute;r&ecirc;t autre tel que le respect des r&egrave;gles d&rsquo;hygi&egrave;ne dans le milieu m&eacute;dical, dans une usine ou une cuisine ; ou le respect des r&egrave;gles de s&eacute;curit&eacute; quand le port d&rsquo;un casque de chantier est obligatoire. L&rsquo;employeur a une obligation de s&eacute;curit&eacute; &agrave; l&rsquo;&eacute;gard de ses salari&eacute;s, aussi en p&eacute;riode de ramadan par exemple, l&rsquo;employeur peut voire m&ecirc;me doit retirer de son poste un salari&eacute; qui jeune pendant le ramadan et qui pourrait se mettre en danger (ex. grutier). Le guide pratique du minist&egrave;re sugg&egrave;re m&ecirc;me dans cet exemple que l&rsquo;employeur aurait alors le droit de ne pas payer le salari&eacute; pendant les journ&eacute;es non travaill&eacute;es de &laquo; retrait &raquo;. En pratique cette suggestion pr&eacute;sente des risques &eacute;vidents et devra &ecirc;tre analys&eacute;e au pr&eacute;alable. L&rsquo;employeur devra prouver que le jeun du salari&eacute; le mettait en danger et les autres.</div> <div> &nbsp;</div> <div> Conges. L&rsquo;employeur n&rsquo;a pas l&rsquo;obligation d&rsquo;accorder un jour de cong&eacute; au salari&eacute; qui veut s&rsquo;absenter pour une f&ecirc;te religieuse, en revanche le refus de l&rsquo;employeur doit reposer sur des raisons objectives li&eacute;es au fonctionnement de la soci&eacute;t&eacute;.</div> <div> &nbsp;</div> <div> <strong>La neutralit&eacute; en mati&egrave;re religieuse - Ce que les employeurs peuvent faire</strong></div> <div> &nbsp;</div> <div> La Loi Travail a introduit le principe de neutralit&eacute;, soit l&rsquo;&eacute;quivalent du principe de la&iuml;cit&eacute; appliqu&eacute; aux entreprises du secteur priv&eacute;. L&rsquo;employeur a d&eacute;sormais la facult&eacute; d&rsquo;introduire dans le r&egrave;glement int&eacute;rieur des dispositions instaurant une neutralit&eacute; au sein de l&rsquo;entreprise qui conduit &agrave; limiter l&rsquo;expression des convictions personnelles, notamment religieuses des salari&eacute;s. Cependant, cette possibilit&eacute; n&rsquo;est pas absolue. Le principe de neutralit&eacute; ne peut &ecirc;tre inscrit dans le r&egrave;glement int&eacute;rieur que s&rsquo;il est justifi&eacute; par la nature de la t&acirc;che &agrave; accomplir, les n&eacute;cessit&eacute;s tir&eacute;s du bon fonctionnement de l&rsquo;entreprise, ou l&rsquo;exercice d&rsquo;autres libert&eacute;s et droits fondamentaux et s&rsquo;il est proportionn&eacute; au but recherch&eacute;.</div> <div> &nbsp;</div> <div> Les employeurs qui entendent mettre en place de nouvelles normes en entreprise doivent &nbsp;se concerter avec les syndicats et autres repr&eacute;sentants du personnel, car la question du fait religieux touche aux conditions de travail, &agrave; l&rsquo;organisation du travail, aux r&egrave;gles d&rsquo;hygi&egrave;ne et de s&eacute;curit&eacute;, lesquels rel&egrave;vent de leurs comp&eacute;tences.</div> <div> &nbsp;</div> <div> <strong>Cons&eacute;cration du principe de neutralit&eacute; par la CJUE</strong></div> <div> &nbsp;</div> <div> La CJUE avait &eacute;t&eacute; saisie de la question pr&eacute;judicielle suivante : un employeur peut-il interdire le port du voile &agrave; une salari&eacute;e en contact avec la client&egrave;le au motif que la client&egrave;le en a fait la demande (affaire fran&ccedil;aise) ou par principe &agrave; tous les salari&eacute;s (affaire belge)?</div> <div> &nbsp;</div> <div> La CJUE a rendu ses d&eacute;cisions rappel&eacute;es dans un communiqu&eacute; de presse le 14 mars dernier: une r&egrave;gle interne d&rsquo;une entreprise interdisant le port visible de tout signe politique, philosophique ou religieux est justifi&eacute; et non discriminatoire en soit. En revanche, en l&rsquo;absence d&rsquo;une tel r&egrave;glement int&eacute;rieur &eacute;non&ccedil;ant le principe de neutralit&eacute;, l&rsquo;employeur ne peut tenir compte des souhaits du client comme une obligation professionnelle pour sanctionner une salari&eacute;e - une telle mesure est discriminatoire.</div> <div> &nbsp;</div> <div> La d&eacute;cision de la CJUE devrait inciter les employeurs &agrave; introduire sans tarder le principe de neutralit&eacute; dans leur r&egrave;glement int&eacute;rieur pour limiter les contentieux, en veillant notamment &agrave; ce que toute discrimination indirecte &eacute;ventuelle soit justifi&eacute;e par un objectif l&eacute;gitime et appliqu&eacute; de mani&egrave;re coh&eacute;rente et syst&eacute;matique.</div> <div> &nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM032417-LIT Star Athletica v. Varsity Brands, Inc. Copyright Case http://www.seyfarth.com:80/publications/OMM032417-LIT Fri, 24 Mar 2017 00:00:00 -0400 <div> <em>The following alert is directed to those clients in the fashion and design industries that manufacture or otherwise produce useful items (e.g., clothing, furniture, bottles, etc.) with unique design features that they would like to protect.&nbsp;</em></div> <div> &nbsp;</div> <div> <em><strong>Seyfarth Synopsis: </strong>On March 22, 2017, the United States Supreme Court issued its opinion in the Star Athletica v. Varsity Brands, Inc. case, affirming and holding that &ldquo;a &nbsp;feature &nbsp;incorporated &nbsp;into &nbsp;the &nbsp;design &nbsp;of &nbsp;a &nbsp;useful &nbsp;article &nbsp;is &nbsp;eligible &nbsp;for copyright &nbsp;protection &nbsp;only &nbsp;if &nbsp;the &nbsp;feature: &nbsp;(1) &nbsp;can &nbsp;be &nbsp;perceived as a two- or three-dimensional work of art separate from the useful article; and (2) would qualify as a protectable &nbsp;pictorial, &nbsp;graphic, &nbsp;or &nbsp;sculptural &nbsp;work-either &nbsp;on &nbsp;its own &nbsp;or &nbsp;fixed &nbsp;in &nbsp;some &nbsp;other &nbsp;tangible &nbsp;medium &nbsp;of &nbsp;expression-if &nbsp;it &nbsp;were &nbsp;imagined &nbsp;separately &nbsp;from &nbsp;the &nbsp;useful &nbsp;article &nbsp;into &nbsp;which &nbsp;it &nbsp;is &nbsp;incorporated.&rdquo; &nbsp;The Court held that the test was satisfied in this case, which involved geometric shapes on cheerleader uniforms.</em></div> <div> &nbsp;</div> <div> The recently issued Supreme Court decision in <em>Star Athletica, LLC v. Varsity Brands, Inc.</em> came after being closely watched for several years. What intrigued many about the case was that it left open the opportunity for broader protection of designs of useful articles, such as appliques on clothing, furniture, perfume bottles, among many other things. &nbsp;It also gave the Supreme Court the opportunity to bring some harmony among the various federal courts to the practical standards they are to apply, and perhaps some greater predictability in the outcome of infringement cases involving useful items. &nbsp;</div> <div> &nbsp;</div> <div> The useful articles at issue in <em>Star </em>were cheerleader uniforms made and sold by Varsity Brands, Inc. &nbsp;The uniforms featured design elements (for which Varsity obtained copyright registrations) consisting of various geometric shapes like chevrons and stripes; such shapes by themselves do not ordinarily constitute copyrightable subject matter.</div> <div> &nbsp;</div> <div> <div> While Congress has afforded (limited) protection to such designs, where protection for the designs begins and ends has been entrenched in muddy waters for decades, in part due to incongruous judicial interpretations of the &ldquo;separability test,&rdquo; (i.e., whether elements of an item are &ldquo;separable&rdquo; from the useful article itself, and thus, protectable). &nbsp;Various Courts of Appeals have adopted their own iteration of the separability test. &nbsp;The Sixth Circuit, from which the <em>Star </em>case arose, created its own multi-factor separability test to assess whether the geometric designs on the uniforms were protectable. &nbsp;It held in the affirmative. &nbsp;However, while the Supreme Court affirmed, it did so by creating its own separability test.</div> <div> &nbsp;</div> <div> In his five-member majority opinion, Justice Thomas resolved this matter in favor of Varsity on the basis of an express reading of Section 101 of the Copyright Act, and consideration of the Court&rsquo;s prior decisions. &nbsp;The Court&rsquo;s test to determine copyrightability for an artistic element of a useful article is: &ldquo;if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article [the &ldquo;separate-identification&rdquo; element] and (2) would qualify as a protectable pictorial, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article [the &ldquo;independent-existence requirement&rdquo;].&rdquo; &nbsp;Without determining whether the separated, non-utilitarian portion of the item is in fact copyrightable and therefore protected as an artistic work, the majority found that the uniform designs passed the test. &nbsp;But, the Court said, Varsity cannot stop others from making cheerleading uniforms in the same cut or shape.</div> <div> &nbsp;</div> <div> Even getting past the first prong of the test will be challenging, as Justice Breyer&rsquo;s dissent (joined by Justice Kennedy) already demonstrates. &nbsp;Where the majority found that the artistic element can be perceived separately, the dissent sees no such artistic element in the uniform. &nbsp;It argues that the decorations are ineligible for copyright protection because, when imaginatively extracted, they form a picture of a cheerleading uniform. &nbsp;The majority, however, took issue with the dissent&rsquo;s assessment, explaining that the artistic design may take the shape of whatever canvas on which it is placed.</div> <div> &nbsp;</div> <div> Referring to the surface of a canvas rather than its shape, Justice Ginsburg, in her concurring opinion, determined that the Court&rsquo;s test is not even relevant here. &nbsp;In her view, Varsity wins because the &ldquo;designs at issue are not designs of useful articles &hellip; [but rather] &hellip; copyrightable pictorial or graphic works reproduced on useful articles.&rdquo; &nbsp;Thus, by her measure, the useful article is a blank canvas on which the artistic elements are applied and therefore copyrightable. &nbsp;</div> <div> &nbsp;</div> <div> Just as the history of this case demonstrates the inherent subjectivity in determining whether a useful article can be copyrightable, where four federal judges at the District and Circuit Courts split 2-2 on copyrightability, yesterday&rsquo;s three opinions from the eight-member Court make clear that subjectivity in determining copyrightability of useful articles remains a significant factor in any infringement analysis. &nbsp;This outcome demonstrates a lost opportunity by the Court to set an analytical standard that would increase the likelihood of predictable outcomes rather than keep such determinations in the realm of the subjective.</div> <div> &nbsp;</div> <div> From a practical perspective, this case potentially muddies the copyright landscape even more than before, and may be viewed as opening the door to designers and others to become a bit more aggressive in seeking and enforcing copyright registrations, even for designs that may not immediately seem copyrightable (like designs consisting primarily of geometric designs). &nbsp;Eventually, over time as litigations are filed and courts apply their own varied and diverse interpretations of the Court&rsquo;s test in <em>Star</em>, designers may be reined in on the basis of judicial precedent from the lower courts.&nbsp;</div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/OMM032417-LE New Department of State Cable Implements Extreme Vetting Measures http://www.seyfarth.com:80/publications/OMM032417-LE Fri, 24 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments,<a href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b"> sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong>&nbsp; New DOS cable instructs U.S. consular posts to identify population groups for tougher visa screening, which will likely lead to increased processing times.</em></p> <p> On March 17, Secretary of State Rex Tillerson issued a cable to all diplomatic and consular posts worldwide calling for the immediate implementation of heightened screening of visa applications.&nbsp; Through the cable, Secretary Tillerson instructed consular posts to undertake additional screening measures based on the conclusions of the interagency working groups mandated by the President&rsquo;s Executive Order.&nbsp; Visa processing screens at U.S. consular posts will be more invasive and time-consuming for certain individuals, particularly those from the countries listed in the President&rsquo;s most recent Executive Order and those from Iraq.</p> <p> Secretary Tillerson began issuing cables in early March with a view to providing consular staff with instructions on how to implement the President&rsquo;s March 6 Executive Order barring certain individuals from six countries from travelling to the U.S.&nbsp; As the legal challenges against the Order mounted, Secretary Tillerson retracted certain instructions in favor of a set of more narrow guidance designed to comply with judicial and administrative requirements while still advancing the President&rsquo;s &ldquo;extreme vetting&rdquo; agenda.</p> <p> The most recent cable, released on March 17, orders the Department of State to identify &ldquo;populations warranting increased scrutiny&rdquo; and subject them to heightened security screening.&nbsp; Moreover, if a consular officer determines that a visa applicant may have links to any terrorist group or has ever been present in a territory controlled by the Islamic State, the applicant will be subjected to a review of his/her social media activity.&nbsp; This review, which is normally a rare event, is known to be a time and labor-intensive process.&nbsp; To accommodate this directive, the cable guides consular posts to limit the number of visa interviews per day with the understanding that appointment backlogs may increase.</p> <p> In light of this cable, we expect increased visa processing times and decreased visa appointment availability at U.S. consular posts globally.&nbsp; Further, applicants described in the cables should anticipate more rigorous questioning and intrusive searches into online activity.</p> http://www.seyfarth.com:80/publications/WC032417 Keys To Successor Liability: EEOC Discrimination Suit In Alabama http://www.seyfarth.com:80/publications/WC032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> An Alabama district court granted a temporary staffing company&rsquo;s motion to dismiss all claims in one of the EEOC&rsquo;s most high-profile lawsuits asserting hiring discrimination and abuse of vulnerable workers. The ruling illustrates the procedural defenses that employers possess to ensure that pre-lawsuit investigations undertaken by the EEOC accord with its obligations under the law.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/keys-to-successor-liability-eeoc-discrimination-suit-in-alabama/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=5c2cbcc1dc-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-5c2cbcc1dc-73050581">click here</a></p> http://www.seyfarth.com:80/publications/HRCMA-032417 Issue 107: House Pulls AHCA Minutes After Expected Vote - Future of Repeal Efforts Uncertain http://www.seyfarth.com:80/publications/HRCMA-032417 Fri, 24 Mar 2017 00:00:00 -0400 <div> <em>This is the one hundred and seventh issue in our series of alerts for employers on selected topics on health care reform. (Click <a href="http://www.seyfarth.com/Healthcare-Reform-Team">here</a> to access our general Summary of Health Care Reform and other issues in this series.) This series of Health Care Reform Management Alerts is designed to provide an in-depth analysis of certain aspects of health care reform and how it will impact your employer-sponsored plans.</em></div> <div> &nbsp;</div> <div> As noted in <a href="http://www.seyfarth.com/publications/HRCMA-030817">Issue 106</a>, earlier this month Congressional Republicans introduced the American Health Care Act (&ldquo;AHCA&rdquo;), which was intended to &ldquo;repeal&rdquo; the Affordable Care Act (&ldquo;ACA&rdquo;). The AHCA faced challenges from the outset, including:&nbsp;</div> <div> &nbsp;</div> <ul> <li> Congressional Democrats are completely united in opposition to the AHCA.</li> <li> Moderate Republicans are concerned about the potential coverage losses resulting from the AHCA.</li> <li> Conservative Republicans believe the AHCA does not go far enough, does not truly repeal the ACA, and will not do enough to drive down the cost of health coverage.</li> <li> Congressional Budget Office scores showed the AHCA resulting in 24 million fewer insureds over the next decade, as compared to the ACA.&nbsp;</li> <li> Senate reconciliation rules significantly limit the scope of what provisions of the AHCA may be passed through &ldquo;reconciliation&rdquo; (the legislative process available in the Senate for passing a budget bill, requiring 51 rather than 60 votes).&nbsp;</li> <li> The ACA&rsquo;s popularity has risen (although it still remains underwater) since President Trump&rsquo;s inauguration. &nbsp;</li> </ul> <div> &nbsp;</div> <div> Notwithstanding the challenges, the AHCA enjoyed the full backing of President Trump and most establishment Republicans (as represented by Speaker Paul Ryan). Over the last week, Paul Ryan, as well as President Trump, have made a number of concessions (mostly at the request of the Freedom Caucus, representing the more conservative wing of the Republican party) to shore up votes. Even though these efforts resulted in a few Republicans moving away from &ldquo;no,&rdquo; many Freedom Caucus members remained staunchly opposed, and certain moderate Republicans started wavering. &nbsp;</div> <div> &nbsp;</div> <div> The vote on the AHCA was originally scheduled for Thursday, but it was delayed when it became apparent the votes were not there. Late Thursday night (following additional concessions to the Freedom Caucus), President Trump issued an ultimatum, demanding a vote on Friday and threatening that this would be the last opportunity to address the ACA if Republicans did not line up in support. &nbsp;</div> <div> &nbsp;</div> <div> Late Friday afternoon, Paul Ryan announced the vote would not be held (at the request of President Trump). This means the ACA remains in full effect and, the future of any repeal efforts are uncertain. During a press conference held soon after the announcement, Paul Ryan indicated that Congress is going to have to figure out the next steps. There are a few possible &ldquo;next steps&rdquo; (this list is by no means comprehensive):</div> <div> &nbsp;</div> <ul> <li> <em>Retain the ACA.</em> President Trump could hold firm on his ultimatum and advise Congress that he will support no further efforts to repeal the ACA. To a certain extent, this would allow President Trump to test his theory that the best way to address the ACA is to let it collapse. &nbsp;</li> <li> <em>Further Negotiations.</em> The timeframe for repealing the law was largely symbolic (House Republicans wanted to hold their vote on the anniversary of the ACA). Nothing would stop Congress from further negotiations to attempt to drum up more votes. But, the more time devoted to the repeal of the ACA, the less time available for votes on other Republican pet projects (e.g., tax reform). &nbsp;</li> <li> <em>Piecemeal Efforts.</em> President Trump has expressed regret both that he attempted to address the ACA first and that he attempted to address repeal in one comprehensive effort. Republicans might attempt to add piecemeal repeal efforts into future legislation, or to address those components on a stand-alone basis. Assuming Congress takes this approach, it is unlikely there will be any further significant efforts to repeal the ACA in the short term. &nbsp;</li> <li> <em>Administrative Action.</em> Even in the absence of a comprehensive repeal or reconciliation effort, the Administration retains great flexibility, through regulatory action, to water down various provisions of the ACA. But, this remains more difficult with the law on the books.&nbsp;</li> </ul> <div> &nbsp;</div> <div> Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.</div> <div> &nbsp;</div> http://www.seyfarth.com:80/publications/ADA032417 Public Accommodations are Starting to Win Website Accessibility Lawsuits http://www.seyfarth.com:80/publications/ADA032417 Fri, 24 Mar 2017 00:00:00 -0400 <p> The litigation tide might be turning for public accommodations choosing to fight lawsuits brought by blind individuals claiming that the businesses&rsquo; websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them. &nbsp;As we have previously reported, about a dozen or so plaintiffs&rsquo; firms have filed hundreds of lawsuits and sent thousands of demand letters to businesses asserting this type of claim on behalf of blind clients in the past two years. &nbsp;Most of these matters have settled quickly and confidentially, and the relatively few defendants who chose to litigate rarely had success in getting the cases dismissed. &nbsp;However, two recent decisions from California and Florida federal judges do provide encouragement for businesses that are willing to spend the money to litigate.</p> <p> To read the entire blog post, <a href="http://www.adatitleiii.com/2017/03/public-accommodations-are-starting-to-win-website-accessibility-lawsuits/?utm_source=Seyfarth+Shaw+-+ADA+Title+III+News+%26+Insights&amp;utm_campaign=caffe75e7e-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_decb46f1f5-caffe75e7e-71256157">click here</a></p> http://www.seyfarth.com:80/publications/TS032217 Texas Court Holds Mere Possession and Opportunity to Use Trade Secrets is Sufficient for Misappropriation http://www.seyfarth.com:80/publications/TS032217 Thu, 23 Mar 2017 00:00:00 -0400 <p> The San Antonio Court of Appeals recently held that an applicant for a temporary injunction in a trade-secret-misappropriation case under the Texas Uniform Trade Secrets Act is not required to show the defendant is actually using trade-secret information. Instead, the applicant need only show that the defendant possesses trade secrets and is in a position to use them.</p> <p> To read the entire blog post, <a href="http://www.tradesecretslaw.com/2017/03/articles/trade-secrets/texas-court-holds-mere-possession-and-opportunity-to-use-trade-secrets-is-sufficient-for-misappropriation/">click here</a></p> http://www.seyfarth.com:80/publications/EL032317 Court Upholds ULP Finding Against Employer Despite Union “Gamesmanship” http://www.seyfarth.com:80/publications/EL032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> An employer that withdraws recognition from a union as the exclusive bargaining agent of its employees does so, as the Board and Courts say, &ldquo;at its peril.&rdquo; It&rsquo;s a risky move, one that requires objective evidence that a union has actually lost the majority support among the employees it represents. &nbsp;And the employer must be correct about the actual loss of majority support or it will face an unfair labor practice charge for refusing to bargain with a union. &nbsp;Consider it a form of strict liability in the labor-relations context. &nbsp;But what if the employer has objective evidence that a union has lost majority support, and then the union regains the majority support before the employer withdraws recognition? &nbsp;Also, if an employer is found to have violated the law under those circumstances, what is the remedy when the union deliberately did not disclose to the employer it had regained majority status?</p> <p> To read the entire blog post,&nbsp;<a href="http://www.employerlaborrelations.com/2017/03/23/court-upholds-ulp-finding-against-employer-despite-union-gamesmanship/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=fbd151d68c-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-fbd151d68c-71423401">click here</a></p> http://www.seyfarth.com:80/publications/WH032317 Wait! Did the Fourth Circuit Just Define FLSA Joint Employment More Broadly Than Obama’s DOL? http://www.seyfarth.com:80/publications/WH032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> Employers have no doubt been paying close attention to the future of the joint employer doctrine, which was a focus of change and expansion for DOL leadership during the Obama administration. With a new administration in place, many have speculated as to the doctrine&rsquo;s narrowing and possible demise.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/joint-employment/fourth-circuit-joint-employment/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=4cda4571fb-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-4cda4571fb-73050573">click here</a></p> http://www.seyfarth.com:80/publications/EL03232017 Searches of Devices at the U.S. Border http://www.seyfarth.com:80/publications/EL03232017 Thu, 23 Mar 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Business Immigration Group recently launched a new blog that features a huge team of national and international immigration thought leaders. &nbsp;Check out their most recent post on searches of personal devices at the U.S. Border by clicking <a href="http://www.laborandemploymentlawcounsel.com/2017/03/searches-of-devices-at-the-u-s-border/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=5c5c09a9c9-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-5c5c09a9c9-71256185">[HERE]</a>.</p> http://www.seyfarth.com:80/news/seyfarth-real-estate-sentiment-survey-referenced-politico-0323178 Seyfarth’s Real Estate Sentiment Survey referenced in <i>Politico</i> http://www.seyfarth.com:80/news/seyfarth-real-estate-sentiment-survey-referenced-politico-0323178 Thu, 23 Mar 2017 00:00:00 -0400 <p> Seyfarth&rsquo;s Real Estate Sentiment Survey was referenced in &quot;Trump&#39;s early policy moves benefit the industries he knows best &mdash; his own,&quot; a March 23 story from <em>Politico</em>. The survey showed that two-thirds of the commercial real estate market expected a positive effect from the Republican president thanks to his push for deregulation, tax reform and the dismantling of the Dodd-Frank consumer protection law.</p> <p> <a href="http://www.politico.com/story/2017/03/trump-business-policy-moves-ethics-236392">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/paparelli-quoted-human-resource-executive-032317 Angelo Paparelli was quoted in <i>Human Resource Executive</i> http://www.seyfarth.com:80/news/paparelli-quoted-human-resource-executive-032317 Thu, 23 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;HR&#39;s Immigration Concerns,&quot; a March 23 story from <em>Human Resource Executive</em> on why employers need to explore other ways to get the talent they need while the new administration attempts to fulfill campaign promises on immigration. Paparelli said that employers need to look at all the visa categories, including the L1, which would allow someone to come back to the U.S. after a one-year stint abroad in an affiliate company.</p> <p> <a href="http://www.hreonline.com/HRE/view/story.jhtml?id=534362094&amp;.">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/corporate-counsel-rank-seyfarth-among-brand-elite-for-sixth-straight-year Corporate Counsel Rank Seyfarth Among Brand Elite for Sixth Straight Year http://www.seyfarth.com:80/news/corporate-counsel-rank-seyfarth-among-brand-elite-for-sixth-straight-year Wed, 22 Mar 2017 00:00:00 -0400 <div> CHICAGO (March 22, 2017) &mdash;&nbsp;For the sixth consecutive year, Seyfarth Shaw LLP has been named one of the top law firm brands in the world, according to corporate counsel in the <em>2017 BTI Brand Elite: Client Perceptions of the Best-Branded Law Firms </em>report.</div> <div> &nbsp;</div> <div> Seyfarth again ranks among the <em>Brand Elite</em>, the top-tier group of 28 law firms which enjoy the most powerful brands. Explaining Seyfarth&rsquo;s strengths, BTI notes the firm&rsquo;s longstanding reputation for innovation:</div> <div> &nbsp;</div> <div> <em>&ldquo;Clients continue to reward Seyfarth Shaw&rsquo;s strong brand as the firm makes its 6th appearance in a row. Top legal decision makers have long recognized the firm for its Innovative ways.&rdquo;&nbsp;</em></div> <div> &nbsp;</div> <div> Conducted by BTI Consulting Group, these annual rankings are based on direct and unprompted feedback from nearly 650 general counsel and legal decision makers at the world&rsquo;s largest companies.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> &nbsp;</div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> <div> &nbsp;</div> <div> <strong>Contacts:</strong></div> <div> &nbsp;</div> <div> <strong>Brian Kiefer, Director of Public Relations</strong></div> <div> (312) 460-6401, bkiefer@seyfarth.com</div> <div> &nbsp;</div> <div> <strong>Martin Grego, Public Relations Manager</strong></div> <div> (312) 460-6659, mgrego@seyfarth.com</div> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-the-indiana-lawyer-032217 Sam Schwartz-Fenwick quoted by <i>The Indiana Lawyer</i> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-the-indiana-lawyer-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited,&quot; a March 22 story by <em>The Indiana Lawyer</em> on recent disputes taking aim at a section of the Employment Retirement Income Security Act of 1974 that exempts churches from its reporting and funding requirements. Schwartz-Fenwick sees the need for the justices to weigh in to settle the constitutional question of how far the government can step into church matters.</p> <p> <a href="http://www.theindianalawyer.com/religious-exemption-at-heart-of-employee-pension-disputes/PARAMS/article/43141">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/paparelli-quoted-bloomberg-daily-labor-report-032217 Angelo Paparelli was quoted in <i>Bloomberg Daily Labor Report</i> http://www.seyfarth.com:80/news/paparelli-quoted-bloomberg-daily-labor-report-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Angelo Paparelli was quoted in &quot;Government to Start Auditing Immigrant Investor Centers,&quot; a March 21 story from <em>Bloomberg Daily Labor Report</em> on the USCIS announcement that it will start auditing immigrant investor regional centers that are part of the EB-5 investor visa program. Paparelli said that the concept of an audit is welcome, but there are concerns as to how it will be carried out.</p> http://www.seyfarth.com:80/news/gurell-quoted-law360-032217 Marc Gurell quoted in <i>Law360</i> http://www.seyfarth.com:80/news/gurell-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Marc Gurell was quoted in &quot;4 Must-Knows For Developers As Trump Cabinet Ramps Up,&quot; a March 22 story from <em>Law360 </em>on the four things lawyers say they&#39;re telling real estate clients amid the Trump administration. Gurell said that developers and investors should closely monitor P3 activity and its impact on investment structure going forward.</p> http://www.seyfarth.com:80/news/maluf-quoted-corporate-counsel-032217 Edward Maluf quoted in <i>Corporate Counsel</i> http://www.seyfarth.com:80/news/maluf-quoted-corporate-counsel-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Edward Maluf was quoted in &quot;Did SCOTUS Miss Chance to Fine-Tune IP Protection for Apparel?&rdquo; &mdash; a March 22 story from <em>Corporate Counsel</em> on the U.S. Supreme Court&#39;s copyright decision in Star Athletica v Varsity Brands. Maluf said that the problem has been around for decades, but the court&#39;s decision amounts to &ldquo;what we said before is what we really mean today.&quot;</p> http://www.seyfarth.com:80/news/maluf-quoted-law360-032217 Edward Maluf quoted in <i>Law360</i> http://www.seyfarth.com:80/news/maluf-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Edward Maluf was quoted in &quot;5 Keys To High Court&#39;s Cheerleader Uniform Ruling,&quot; a March 22 story from <em>Law360 </em>on the U.S. Supreme Court&#39;s copyright decision in Star Athletica v Varsity Brands. Maluf said that this outcome demonstrates a lost opportunity by the court to set an analytical standard that would increase the likelihood of predictable outcomes rather than keep such determinations in the realm of the subjective.</p> http://www.seyfarth.com:80/news/lurie-quoted-law360-032217 Dawn Lurie was quoted in <i>Law360</i> http://www.seyfarth.com:80/news/lurie-quoted-law360-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Dawn Lurie was quoted in &quot;USCIS Rolls Out EB-5 Regional Center Audit Program,&quot; a March 22 story from <em>Law360</em> on U.S. Citizenship and Immigration Services&rsquo; recent announcement of the start of an EB-5 regional center audit program, which will involve audit teams examining documents and interviewing staffers, with the move coming roughly a month before the visa program&rsquo;s regional center aspect is set to expire. Lurie said that while there have been site visits before now, which she characterized as more project-based, the audits are a new development.</p> http://www.seyfarth.com:80/publications/WC032217 What The Confirmation Hearing For Judge Gorsuch Means For Employers http://www.seyfarth.com:80/publications/WC032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> After three days of 10 hour hearings, employers are wondering what the big takeaway is for them. In this blog video, we address the major issues in the confirmation process that are pertinent to employers.</p> <p> To read the entire blog post, <a href="http://www.workplaceclassaction.com/2017/03/what-the-confirmation-hearing-for-judge-gorsuch-means-for-employers/?utm_source=Seyfarth+Shaw+-+Workplace+Class+Action+Blog&amp;utm_campaign=54c381afd8-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_535dd45f41-54c381afd8-73050581">click here</a></p> http://www.seyfarth.com:80/publications/OMM032217-LE Brexit Process to Begin on March 29 http://www.seyfarth.com:80/publications/OMM032217-LE Wed, 22 Mar 2017 00:00:00 -0400 <p> <em>The following alert is directed to organizations with a presence in the UK or who anticipate the need to place talent at a UK work site.</em></p> <p> <em>Seyfarth Shaw&rsquo;s Global Mobility Practice hosts attorneys licensed to practice in the UK, Canada, Ireland and Germany. The group has the capability to assist clients with obtaining work and residence visas for over 70 jurisdictions around the world.&nbsp; If we can assist you in placing talent, please call your Seyfarth attorney. We will be happy to help you.</em></p> <p> <em><strong>Seyfarth Synopsis: </strong></em><em>On March 29, 2017, British Prime Minister Theresa May will invoke Article 50, initiating the formal two-year negotiation process for the United Kingdom to leave the European Union. </em></p> <p> <strong>What Will Happen Next? </strong></p> <p> Britain&rsquo;s European Union (EU) Ambassador today informed the EU Council President that the U.K. government will give formal notice on March 29, 2017 of the U.K.&rsquo;s intention to leave the EU. This will start the withdrawal process, which will take a minimum of two years. If the complex negotiations and legal procedures conclude within that timeframe, the U.K.&rsquo;s exit from the EU could be completed by March 2019.&nbsp;</p> <p> Once the U.K. has given formal notice to withdraw, the remaining 27 EU member states must then align their negotiating position, which is likely to take several weeks. Immigration&nbsp;was a central issue in the run up to the referendum and the desire to curb the free movement of EU nationals into the U.K. was one of the primary drivers of the &quot;leave&quot; campaign.&nbsp;Immigration will continue to play a central role in the negotiation process. Although the government has stated its aim to protect the future status of EU nationals and their family members who currently reside in the U.K., the position remains uncertain and will be decided during the negotiation process.</p> <p> <strong>How Will This Affect EU Nationals in the UK?</strong></p> <p> As stated in our <a href="http://www.seyfarth.com/publications/OMM031417-LE">previous alert</a>, the rights of EU nationals and their family members to reside and work in the U.K. will remain unchanged during the transition process. However, the future status of this group of EU citizens has not yet been guaranteed. Therefore, we recommend that all EU nationals currently living in the U.K. apply for a residence card to confirm their status. Given the likely increase in applications once the Brexit process has formally begun, and potential delays in processing times, applicants should file their applications as soon as possible.</p> <p> The Prime Minister will address Parliament regarding the Brexit withdrawal process on March 29, 2017. We will update clients as further details are announced</p> http://www.seyfarth.com:80/publications/turnbull-authored-article-wolters-kluwer-032217 Justine Turnbull authored an article in <i>Wolters Kluwer</i> http://www.seyfarth.com:80/publications/turnbull-authored-article-wolters-kluwer-032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Justine Turnbull authored &quot;Is a workplace relationship ever consistent with good governance?&quot; &mdash; an article on March 22 in <em>Wolters Kluwer</em>. The article discusses the question: Is it ever appropriate for a senior executive to conduct a sexual relationship with a workplace colleague, whether they are an employee, a representative of a client or customer, contractor or consultant to the business?</p> <p> <a href="http://www.wolterskluwercentral.com.au/employment/human-resources/workplace-relationship-ever-consistent-good-governance/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/CP032217 Dressing for Work in California this Summer http://www.seyfarth.com:80/publications/CP032217 Wed, 22 Mar 2017 00:00:00 -0400 <p> Who doesn&rsquo;t love wearing khakis and polos to work? Relaxed summer dress codes are a common practice among businesses that seek to boost employee morale during a time when some folks want to be at the beach. Establishing these summer dress code guidelines, however, can be a challenge because they can introduce ambiguity and confusion. Employees may not have a clear sense of what attire satisfies a &ldquo;relaxed&rdquo; dress code, and as a result wear clothing that is inappropriate.</p> <p> To read the entire blog post, <a href="http://www.calpeculiarities.com/2017/03/22/dressing-for-work-in-california-this-summer/">click here</a></p> http://www.seyfarth.com:80/publications/WH032117 Comma, Comma, Comma, Comma, Comma Chameleon: Liability Comes and Goes with Oxford Comma http://www.seyfarth.com:80/publications/WH032117 Tue, 21 Mar 2017 00:00:00 -0400 <p> Vampire Weekend crassly and rhetorically asked us, &ldquo;Who gives a f*** about an Oxford comma?&rdquo; As it turns out, lots of people: First Circuit judges, dairy farmers in Maine, truck drivers, your authors&mdash;the list goes on.</p> <p> To read the entire blog post, <a href="http://www.wagehourlitigation.com/state-claims/liability-comes-and-goes-with-oxford-comma/?utm_source=Seyfarth+Shaw+-+Wage+%26+Hour+Litigation&amp;utm_campaign=f75b786f47-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_3f0d6d9d5f-f75b786f47-73050573">click here</a></p> http://www.seyfarth.com:80/publications/OMM032117-LIT New Executive Order Directs Federal Agencies to Trim The Fat http://www.seyfarth.com:80/publications/OMM032117-LIT Tue, 21 Mar 2017 00:00:00 -0400 <div> <strong>Seyfarth Synopsis:</strong> &nbsp;President Trump&rsquo;s executive order directs all federal agencies to point out where they can be trimmed down to meet his proposed budget.&nbsp;</div> <div> &nbsp;</div> <div> On Monday, March 13, President Trump signed Executive Order 13781 (EO) giving the head of each agency 180 days to submit a plan to reorganize their agency with the goal of improving &ldquo;efficiency, effectiveness, and accountability.&rdquo; The reports along with public suggestions will be aggregated by the Director of the Office of Management and Budget (Director) who will propose a final plan of reorganization to the president later this year.&nbsp;</div> <div> &nbsp;</div> <div> In the EO, the president requested recommendations to eliminate unnecessary agencies, components of agencies, and agency programs as well as any recommendations to merge functions. The Director will look to what agency functions should be left to the states or public sector, what redundancies can be eliminated, and make a cost-benefit analysis of agency functions.&nbsp;</div> <div> &nbsp;</div> <div> The EO was published on March 16, the same day as the president&rsquo;s budget proposal for 2018. Through the budget, the heads of the agencies have an apparent goal to meet in order to comply with the president&rsquo;s expectations. The president&rsquo;s budget proposes $54 billion in cuts to the federal government from last year, including a 31.4% reduction for the EPA, 28.7% reduction for the Department of State, and 16.2% reduction for the Department of Health and Human Services. The budget also proposed the elimination of 19 federal programs including the Legal Services Corporation (LSC), The National Endowment for Humanities, and the Corporation for Public Broadcasting to name a few.&nbsp;</div> <div> &nbsp;</div> <div> While the budget proposes $54 billion in cuts to the federal agencies and programs, an identical number has been spoken of in connection with an increase to the budget of the Department of Defense.&nbsp;</div> <div> &nbsp;</div> <div> The EO requires the Director to allow for a period of public suggestion. Some have already taken the initiative to directly respond to the Director. For example, in response to the threat of elimination to the LSC, which assists low-income Americans in need of civil legal aid, leaders of 157 law firms signed a letter sent to the Director in support of the LSC.</div> <div> &nbsp;</div> <div> While the president has made his intentions known, ultimately it is up to the Appropriations Committee to determine what, if any, agencies will be defunded. Seyfarth Shaw LLP will continue to monitor the implementation of the Executive Order and any subsequent legal challenges.</div> <div> &nbsp;</div> <div> Seyfarth is a member of a Steering Committee of law firm leaders and pro bono counsel from a group of Big Law firms which are rallying support for LSC. Recently, the Steering Committee sent <a href="http://www.lieffcabraser.com/wp-content/uploads/20170309_letter_to_OMB.pdf">a letter to the director of the Office of Management and Budget</a> that was signed by leaders of 157 law firms with offices in all 50 states. The letter makes a variety of points, such as the clear return on investment derived from support for legal aid, and that eliminating the Legal Services Corporation will not only imperil the ability of civil legal aid organizations to serve Americans in need, it will also vastly diminish the private bar&rsquo;s capacity to help these individuals.</div> http://www.seyfarth.com:80/publications/MA032117-LE Searches of Devices at the U.S. Border http://www.seyfarth.com:80/publications/MA032117-LE Tue, 21 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis: </em></strong><em>Although longstanding policy of U.S. Customs and Border Protection authorizes searches of electronic devices in the possession of travelers arriving in the United States, recent reports of such searches have heightened businesses&#39; concerns when their employees travel.&nbsp; In the event of such a search, this guidance informs employees about what they can expect, and provides employers with recommendations to ensure against loss, corruption or misuse of company information</em></p> <p> <strong>Overview:</strong>&nbsp; United States&rsquo; Customs laws and regulations (See, 8 U.S.C. &sect;&nbsp;1582, 19 C.F.R &sect; 162.6) authorize customs officers to inspect, search and/or detain any person, baggage, and/or merchandise arriving in, and or departing from, the United States. This authority extends to inspections, searches and temporary detentions of electronic devices possessed by travelers, including mobile telephones, tablets, and laptop computers.&nbsp; Increasingly searches are becoming more common, and employees traveling with company data and/or information should carry this guidance when returning from foreign travel.&nbsp; &ldquo;Supreme Court decisions have upheld the doctrine that CBP&#39;s search authority is unique and does not violate the fourth amendment&#39;s protection against <em>unreasonable</em> searches and seizures.&rdquo;<a href="#_ftn1" name="_ftnref1" title="">[1]</a> This exception allows CBP to conduct &ldquo;routine&rdquo; searches on luggage, devices, vehicles or persons without a warrant. &ldquo;However, with this authority, CBP expects all of its officers to conduct their duties in a professional manner, and treat each traveler respectfully.&rdquo;<a href="#_ftn2" name="_ftnref2" title="">[2]</a></p> <p> <strong>Who May Be Chosen for an Inspection:</strong> United States Customs and Border Protection (&ldquo;CBP&rdquo;) guidance states that a variety of circumstances can lead agents to select a traveler for inspection, search and/or detention of electronic devices, including: travelers holding incomplete travel documents or lacking proper documents and/or visa; travelers who have previously violated a law that CBP enforces; travelers with a name that matches a person of interest in government enforcement databases; and/or travelers randomly selected for such a search.&nbsp; Selection for a search does not necessarily mean that CBP believes that you have done something wrong. A <a href="https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf">2012 CBP Directive </a>noted that &ldquo;in the course of a border search, with or without individualized suspicion, an Officer may examine electronic devices and may review and analyze the information encountered at the border&rdquo;.</p> <p> At this time, CBP has not articulated policies that consider a traveler&rsquo;s nationality as a factor supporting a search; however, not all criteria applied by CBP have been made public. CBP has also not disclosed whether travel to certain countries could draw scrutiny. There have been reports of foreign visitors as well as United States citizens being subjected to inspections.</p> <p> <strong>What Will Occur During the Search</strong><strong>:&nbsp; </strong>The manner in which a search is conducted may vary widely depending on a number of factors.&nbsp; A customs official may simply conduct a search through the device and then return it to you.&nbsp; At the other times, CBP may elect to take temporary custody (&lsquo;detention&rsquo;) of the device for further examination.&nbsp; If CBP decides to detain your electronic devices, the customs officer will issue you a written receipt (Form 6051-D), which will detail what items are being detained, who at CBP will be your point of contact, and your own contact information in order to facilitate return of the items within a reasonable time. &nbsp;After CBP has concluded inspecting your device, they will contact you to come retrieve the device. If you are unable to retrieve the device in person, CBP will provide instructions to have the device shipped to you at your expense. In some cases, devices could be turned over to Immigration and Customs Enforcement who also have border search authority.&nbsp;</p> <p> <strong>What You Should Do During the Search</strong>:&nbsp; Generally speaking, a traveler has the right to remain in the room unless there are national security, law enforcement or other considerations that would make it inappropriate to allow individuals to observe the review. It is important that you cooperate with the Officer by providing the device to the official and logging in or providing password information where requested. Failure to cooperate in the search may result in either seizure or extended detention of the device, and in the case of certain non-citizens could result in denial of entry into the United States. How your employee handles a border entry may be driven by his or her citizenship status. In summary, U.S. citizens may be delayed but will be granted entry, lawful permanent residents should plan on a high level of scrutiny and non- citizens could be barred from entry.</p> <p> <strong>What You Should Do If Your Device Contains Privileged or Sensitive Material:&nbsp; </strong>While we recommend that travelers cooperate with CBP, it is critical that you communicate to the Officer the presence of any privileged or sensitive material. This data should be &ldquo;passphrase&rdquo; protected and the appropriate encryption tools should be implemented.</p> <p> <em>Privileged</em>. Keep in mind confidential privileged legal materials are not necessarily exempt from CBP access and review; however, they may be subject to special handling as follows: &ldquo;If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney&#39;s Office as appropriate.&rdquo;<a href="#_ftn3" name="_ftnref3" title="">[3]</a> In other words CBP may choose not to inspect, but in the event they determine a review is pertinent the Agent should follow the procedure seeking internal legal advice.&nbsp;</p> <p> <em>Sensitive.</em> According to the CPB field directive Officers are instructed as follows: &ldquo;Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy. Questions regarding the review of these materials shall be directed to the CBP Associate/Assistant Chief Counsel, and this consultation shall be noted in appropriate CBP systems of records.&rdquo;<a href="#_ftn4" name="_ftnref4" title="">[4]</a></p> <p> Invoking a <em>privilege </em>or requesting a<em> sensitive review</em> has implications from a practical perspective. If you plan to take this route, you should consider entering the U.S. during normal business hours, carrying a copy of this <a href="https://www.dhs.gov/xlibrary/assets/cbp_directive_3340-049.pdf">CBP Directive</a> (and ensuring that the directive remains applicable under the current administration), and consider the likely delay and the effect on connecting flights.</p> <p> <strong>What You Should Do to Protect Data/Information Belonging to an Employer</strong>: CBP policy directs officials conducting searches and/or inspections of electronic devices containing &ldquo;business or commercial information&rdquo; to &ldquo;treat such information as business confidential information and . . . take all reasonable measures to protect that information from unauthorized disclosure.&rdquo;&nbsp; Nonetheless, customs searches entail certain risks necessitating safeguards on the part of the traveling employee.</p> <p> <strong>Some tips to consider:</strong></p> <ul> <li> Whenever possible, employees should take safeguards to avoid loss or destruction of files or data by backing up such files or data onto company servers or into a secure cloud based account.</li> <li> To the extent possible devices should be both electronically and physically labelled as belonging to the company.</li> <li> Files that contain confidential or propriety information should be marked as such both within the document and in the file name of the document and should appropriately encrypted.</li> <li> Have employees use strong encrypted passwords and shut down devices during border crossings (this is to ensure that devices are not hacked).</li> <li> Consider traveling with an empty device (employees can work from their cloud account during the trip).</li> <li> Consider traveling with an inexpensive laptop storing only critical information.</li> <li> Consider traveling with a &ldquo;temporary&rdquo;, inexpensive phone for work and leave the smart phone at home.</li> </ul> <p> <strong>What if You Believe that You Have Been Mistreated, Harassed or Are Repeatedly Selected For Device Searches</strong></p> <p> If still in the customs area, you can request to speak with an onsite supervisor. Additionally, travelers who are concerned that they have been incorrectly selected for enhanced screening, particularly if on a repeated basis can seek assistance from the&nbsp; <a href="https://www.dhs.gov/dhs-trip">Traveler Redress Inquiry Program</a>. &nbsp;Additionally, travelers can contact the <a href="http://www.dhs.gov/civilliberties">Department of Homeland Security Office of Civil Rights and Civil Liberties</a>.</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> United States.. Customs and Border Protection &lt; https://help.cbp.gov/app/answers/detail/a_id/176/~/cbp-search-authority.&gt;</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> Id.</p> </div> <div id="ftn3"> <p> <a href="#_ftnref3" name="_ftn3" title="">[3]</a> <em>Id </em>at 5.2.1 page 3</p> </div> <div id="ftn4"> <p> <a href="#_ftnref4" name="_ftn4" title="">[4]</a> <em>Id. </em>at 5.2.2 page 3</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/EL032117 Eleventh Circuit Finds Insurance Carrier Responsible In Georgia For Harm Caused By Intoxicated Employee http://www.seyfarth.com:80/publications/EL032117 Tue, 21 Mar 2017 00:00:00 -0400 <div> In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee&rsquo;s vehicle usage. <em>Great American Alliance Ins. Co. v. Anderson,</em> No. 15-12540 (11th Cir., February 8, 2017).</div> <div> &nbsp;</div> <div> In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer&rsquo;s permission. &ldquo;After a jury found the driver liable and awarded the appellant one million dollars, the employer&rsquo;s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user &ndash; and thus not covered under the applicable insurance policies &ndash; because he broke internal company policies.&rdquo;</div> <div> &nbsp;</div> <div> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/eleventh-circuit-finds-insurance-carrier-responsible-in-georgia-for-harm-intoxicated-employee/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=b39744d7ad-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-b39744d7ad-71256185">click here</a></div> http://www.seyfarth.com:80/publications/workplace-relationship-good-governance Is a workplace relationship ever consistent with good governance http://www.seyfarth.com:80/publications/workplace-relationship-good-governance Mon, 20 Mar 2017 00:00:00 -0400 <p> Much has been made of recent scandals arising from sexual relationships in the workplace and in most cases the relationships are said to have been &lsquo;personal and consensual&rsquo;. While not a new issue, we have seen changes to the way organisations have responded to the relationships, perhaps as a reflection that our culture is less accepting of the conduct.</p> <p> To read the entire blog post, <a href="http://www.workplacelawandstrategy.com.au/2017/03/is-a-workplace-relationship-ever-consistent-with-good-governance/?utm_source=Seyfarth+Shaw+-+Workplace+Law+%26+Strategy&amp;utm_campaign=ee560f94b5-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_b1822045fb-ee560f94b5-73050585">click here</a></p> http://www.seyfarth.com:80/news/seyfarth-expands-employee-benefits-platform-seyfarth-benefits-consulting Seyfarth Expands Employee Benefits Platform with Seyfarth Benefits Consulting http://www.seyfarth.com:80/news/seyfarth-expands-employee-benefits-platform-seyfarth-benefits-consulting Mon, 20 Mar 2017 00:00:00 -0400 <div> CHICAGO - (March 20, 2017) - Seyfarth Shaw LLP announced today the expansion and redesign of its Employee Benefits Administrative Service Center, which has evolved into Seyfarth Benefits Consulting.&nbsp;</div> <div> &nbsp;</div> <div> Introduced in 2014 by Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department to provide a relatively narrow set of employee benefits administrative services, SBC grew in scope as plan sponsors and administrators drove demand for broader support maintaining their employee benefit plans more efficiently.&nbsp;</div> <div> &nbsp;</div> <div> &ldquo;The success of Seyfarth Benefits Consulting continues to be driven by our ability to scale and match our offerings with the increasing demands of our clients,&rdquo; said Rob Flanagan, chair of Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department. &ldquo;Seyfarth Benefits Consulting is uniquely positioned to handle the day-to-day, yet time-sensitive, aspects of plan administration, upkeep and compliance, so our clients can focus on their more strategic priorities.&rdquo; &nbsp;&nbsp;</div> <div> &nbsp;</div> <div> Based on SeyfarthLean principles and backed by one of the largest Employee Benefits &amp; Executive Compensation practices in the country, SBC focuses on supporting clients&rsquo; ongoing legal counseling and administrative needs in relation to their retirement, health and welfare programs.&nbsp;</div> <div> &nbsp;</div> <div> With a strategic staffing model, fixed fees, and other available alternative rate structures to optimize efficiency and delivery, SBC features a growing range of services, including:</div> <ul> <li> Annual Compliance Reporting</li> <li> Claim Administration&nbsp;</li> <li> Determination Letter Filings</li> <li> HIPAA Privacy&nbsp;</li> <li> Legal Instrument and Levy Review&nbsp;</li> <li> Nondiscrimination Testing&nbsp;</li> <li> Qualified Domestic Relations Order Administration</li> <li> Qualified Medical Child Support Order Administration</li> <li> Special Projects</li> </ul> <div> SBC represents an integrated offering from the lawyers and staff of Seyfarth&rsquo;s Employee Benefits &amp; Executive Compensation department, not a separate legal entity. To learn more, visit: <a href="http://www.seyfarth.com/BenefitsConsulting">seyfarth.com/BenefitsConsulting</a>.</div> <div> &nbsp;</div> <div> <strong>About Seyfarth Shaw LLP</strong></div> <div> Seyfarth Shaw has more than 900 attorneys in 14 offices providing a broad range of legal services in the areas of labor and employment, employee benefits, litigation, corporate and real estate. Seyfarth&rsquo;s clients include over 300 of the Fortune 500 companies and reflect virtually every industry and segment of the economy. A recognized leader in delivering value and innovation for legal services, Seyfarth has earned numerous accolades from a variety of highly respected industry associations, consulting firms and media.</div> http://www.seyfarth.com:80/news/wahlander-quoted-SHRM-032017 Michael Wahlander quoted by <i>SHRM</i> http://www.seyfarth.com:80/news/wahlander-quoted-SHRM-032017 Mon, 20 Mar 2017 00:00:00 -0400 <p> Michael Wahlander was quoted in &quot;Unlimited Vacation: Is It About Morale or the Bottom Line?&quot; &mdash; a March 20 story by <em>SHRM </em>on how some argue that unlimited vacation benefits a company&#39;s bottom line more than it benefits the company&#39;s employees. Wahlander said that at many companies with unlimited vacation, managers encourage workers to take off if their work is done.</p> <p> <a href="https://www.shrm.org/resourcesandtools/hr-topics/employee-relations/pages/unlimited-vacation-is-it-about-morale-or-the-bottom-line.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/weiss-quoted-employee-benefit-news-031917 Philippe Weiss quoted by <i>Employee Benefit News</i> http://www.seyfarth.com:80/news/weiss-quoted-employee-benefit-news-031917 Sun, 19 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;How employers can manage March Madness workplace distractions,&quot; an <em>Employee Benefit News story</em> on March 19 regarding SSAW&rsquo;s new survey. Weiss said that March Madness and other online pools/games ranked third among all tech-related causes of work delays, with 30% of managers/HR reps citing them as a major employee distractor, following text messaging and Facebook use.</p> <p> <a href="https://www.benefitnews.com/slideshow/how-employers-can-manage-march-madness-workplace-distractions">You can view the full article here</a>.</p> http://www.seyfarth.com:80/publications/vu-sarnoff-fritz-authored-article-franchise-law-journal-031917 Minh Vu, Julia Sarnoff and Kevin Fritz authored an article for the <i>Franchise Law Journal</i> http://www.seyfarth.com:80/publications/vu-sarnoff-fritz-authored-article-franchise-law-journal-031917 Sun, 19 Mar 2017 00:00:00 -0400 <p> Minh Vu, Julia Sarnoff and Kevin Fritz authored &quot;Website, Kiosks, and Other Self-Service Equipment in Franchising: Legal Pitfalls Posed by Title III of the Americans with Disabilities Act,&quot; an article for the <em>Franchise Law Journal</em>. &nbsp;This article reviews the most common types of customer-facing electronic information technology (EIT) that franchisors and franchisees are using, the murky and evolving legal requirements that apply to them, the legal controversies that have arisen in connection with their use, and what can be done to ensure legal compliance.</p> <p> <a href="http://www.seyfarth.com/dir_docs/publications/FLJ_Vu_Sarnoff_3192017.pdf">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/weiss-quoted-global-banking-and-finance-review-031817 Philippe Weiss quoted by <i>Global Banking & Finance Review</i> http://www.seyfarth.com:80/news/weiss-quoted-global-banking-and-finance-review-031817 Sat, 18 Mar 2017 00:00:00 -0400 <p> Philippe Weiss was quoted in &quot;FOUR TIPS FROM PHILIPPE WEISS TO KEEP THE MADNESS DISTRACTIONS &amp; MAYHEM TO A MINIMUM,&quot; a <em>Global Banking &amp; Finance Review</em> story on March 18 regarding SSAW&rsquo;s new survey. Weiss said that if supervisors engage in a cash pool they and the company may run afoul of gambling laws and, in any case, they erode their ability to manage bracket-crazy employees that cross the line.</p> <p> <a href="https://www.globalbankingandfinance.com/four-tips-from-philippe-weiss-to-keep-the-madness-distractions-mayhem-to-a-minimum/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/lorber-quoted-human-resource-executive-031717 Larry Lorber quoted by <i>Human Resource Executive</i> http://www.seyfarth.com:80/news/lorber-quoted-human-resource-executive-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Larry Lorber was quoted in &quot;Downsizing the DOL,&quot; a March 17 story in <em>Human Resource Executive</em> on President Trump&rsquo;s proposed cutbacks to the Department of Labor. Lorber said that staff and travel cutbacks at entities such as WHD and OSHA are inevitably going to translate into less enforcement.</p> <p> <a href="http://blog.hreonline.com/2017/03/17/budget-plan-targets-the-department-of-labor/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/laughton-quoted-the-ambulatory-m-and-a-advisor-031717 Adam Laughton quoted in <i>The Ambulatory M&A Advisor</i> http://www.seyfarth.com:80/news/laughton-quoted-the-ambulatory-m-and-a-advisor-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Adam Laughton was quoted in &quot;FEC Historical Impact and Expansion on the Market: Part 2,&quot; a March 17 story from <em>The Ambulatory M&amp;A Advisor</em> on the history, impact on the market, and routes for expansion in the FEC industry. Laughton said that in the past three to five years there has definitely been more of a recent development in the transaction market.</p> <p> <a href="http://www.ambulatoryadvisor.com/fec-historical-impact-expansion-market-part-2/">You can read the full article here</a>.</p> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-SHRM-031717 Sam Schwartz-Fenwick quoted by <i>SHRM</i> http://www.seyfarth.com:80/news/schwartz-fenwick-quoted-SHRM-031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Sam Schwartz-Fenwick was quoted in &quot;Appeals Court Rules Sexual Orientation Discrimination Is Not Prohibited,&quot; a March 17 story by <em>SHRM </em>on how an appeals court recently excluded sexual orientation discrimination from protection under Title VII of the Civil Rights Act of 1964. Schwartz-Fenwick said that a split among the appeals courts may emerge, which could lead to the Supreme Court resolving the question.</p> <p> <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/11th-circuit-title-vii-.aspx">You can read the full article here</a>.</p> http://www.seyfarth.com:80/publications/LR031717 Giving the Unions Their Dues: NLRB ALJ Finds Partial Preemption of Wisconsin Right-to-Work Law http://www.seyfarth.com:80/publications/LR031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> If you are an avid reader of our blog, you will undoubtedly recall that approximately two years ago, Wisconsin became the then-25th right-to-work state when it enacted legislation that made union security agreements requiring workers to pay union dues as a condition of employment illegal. In addition, the law also made it an unfair labor practice for an employer to collect dues from workers&rsquo; wages unless an employee directed it to do so by written notice, which was revocable with 30 days notice.</p> <p> To read the entire blog post, <a href="http://www.employerlaborrelations.com/2017/03/17/giving-the-unions-their-dues-nlrb-alj-finds-partial-preemption-of-wisconsin-right-to-work-law/?utm_source=Seyfarth+Shaw+-+Employer+Labor+Relations+Blog&amp;utm_campaign=0b51c54366-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_287228f319-0b51c54366-71423401">click here</a></p> http://www.seyfarth.com:80/publications/MA031717-LE If Pain, Yes Gain—Part XXVII: Maryland Close to Catching Paid Sick Leave Bug http://www.seyfarth.com:80/publications/MA031717-LE Fri, 17 Mar 2017 00:00:00 -0400 <p> <strong><em>Seyfarth Synopsis:</em></strong><em> After several years of failed legislative attempts to pass a statewide paid sick leave law, Maryland is nearing the finish line following the state Senate&rsquo;s approval of the Maryland Healthy Working Families Act on March 16, 2017.</em></p> <p> The 2017 calendar year very well may be the year that Maryland joins the ranks of states that have passed a statewide mandatory paid sick leave law.<a href="#_ftn1" name="_ftnref1" title="">[1]</a>&nbsp; On March 16, 2017, the Maryland Senate voted on and passed the Maryland Healthy Working Families Act (&ldquo;HWFA&rdquo;) by a 29-18 vote.&nbsp; Less than two weeks earlier, on March 3, 2017, the Maryland House of Delegates approved a proposed paid sick leave bill, also titled the Maryland Healthy Working Families Act, by a vote of 88 to 51. &nbsp;</p> <p> Despite these developments, the two chambers must resolve and reconcile distinctions between the bills before they can formally place a paid sick leave proposal before Governor Larry Hogan.&nbsp; The deadline to reconcile these differences is April 10, 2017, the final day of the state&rsquo;s current legislative session.&nbsp; Notably, if the state legislature can compromise on a single paid sick leave proposal, Governor Hogan has indicated that he will veto any such bill.&nbsp; However, the Governor&rsquo;s veto may not cure Maryland businesses&rsquo; sick leave woes as the votes from March 3rd and 16th were by sufficient margins to overcome a Governor veto.&nbsp;</p> <p> Here are some key areas of overlap and discrepancy between the Senate and House versions of the HWFA:</p> <ul> <li> <strong>Effective Date:</strong> One important similarity between the Senate and House sick leave bills is that they both indicate that the HWFA would go into effect on January 1, 2018.&nbsp;</li> <li> <strong>Preemption of Local Paid Sick Leave Laws:</strong> Both bills state that the HWFA would not preempt or otherwise affect any other law that provides more generous paid sick leave benefits than that provided under the HWFA.&nbsp; However, the bills also clarify this provision with an exception, namely that local Maryland jurisdictions would be preempted from passing ordinances on or after January 1, 2017 that impose sick and safe leave obligations on private employers.&nbsp; Significantly, this language would not apply to the Montgomery County, MD Earned Sick and Safe Leave Act, which was passed on October 1, 2016 and amended in November 2016.<a href="#_ftn2" name="_ftnref2" title="">[2]</a>&nbsp;&nbsp;</li> <li> <strong>Employee Eligibility:</strong> While both bills exclude several of the same types of workers from paid sick leave eligibility, such as individuals under the age of 18, there are at least a few discrepancies between the bills on this point.&nbsp; First, the Senate version generally does not apply to workers who are employed by temporary services agencies, while the House version is silent on this point and thus presumably would apply to such workers.&nbsp; Second, the House version does not apply to employees who regularly work less than eight hours each week <u>or</u> construction employees who are covered by a CBA that waives the HWFA&rsquo;s requirements.&nbsp; By comparison, the Senate version lacks any exemption for employees who work less than eight hours per week, and instead excludes employees who (a) regularly work less than 12 hours per week, (b) are employed in the construction industry, <u>and</u> (c) are covered by a CBA that expressly waives compliance with the HWFA.</li> <li> <strong>Covered Employers:</strong> The Senate and House bills both state that employers with 15 or more employees must provide <u>paid</u> sick leave benefits to eligible employees, while employers with fewer than 15 employees must provide their employees with <u>unpaid</u> sick leave benefits.</li> <li> <strong>Start of Accrual: </strong>Under both bills employees would begin to accrue paid sick leave on January 1, 2018 or their hire date if hired after January 1, 2018.</li> <li> <strong>Paid Sick Leave Accrual, Usage, and Carryover:</strong> The bills both state that employees must accrue paid sick leave at a rate of at least one hour for every 30 hours worked.&nbsp; Both bills also contain annual and &ldquo;point in time&rdquo; accrual caps.&nbsp; However, the amount of these accrual caps and the amount of the bills&rsquo; annual usage and year-end carryover caps vary. <ul> <li> <u>Annual Accrual Cap</u>: House Bill - 56 hours; Senate Bill - 40 hours.</li> <li> <u>&ldquo;Point in Time&rdquo; Accrual Cap</u>: House Bill - 80 hours; Senate Bill - 72 hours.</li> <li> <u>Annual Usage Cap</u>: House Bill - 80 hours; Senate Bill - 72 hours.</li> <li> <u>Year-End Carryover Cap</u>: House Bill - 56 hours; Senate Bill - 40 hours.</li> </ul> </li> <li> <strong>Frontloading:</strong> Both bills note that employers can award employees the full amount of paid sick leave that they would earn over the course of the year at the start of each year instead of following an accrual system.&nbsp; Moreover, adopting a frontloading system will absolve employers&rsquo; year-end carryover obligations under both bills.&nbsp;</li> <li> <strong>Usage Waiting Period: </strong>Another aspect of the two bills that must be reconciled is the paid sick leave usage waiting period imposed on new hires.&nbsp; The House bill states that new hires can begin using paid sick leave after 90 calendar days or 480 hours worked, whichever is shorter, from their date of hire.&nbsp; By comparison, the Senate bill states that new hires must wait 106 calendar days from the start of their employment to begin using paid sick leave.</li> <li> <strong>Protected Reasons for Use:</strong> Under both bills employees can use paid sick leave for (a) their own or a covered family member&rsquo;s mental or physical injury, illness or condition, or need for preventive medical care, and (b) certain absences related to domestic violence, sexual assault or stalking of the employee or the employee&rsquo;s covered family member.&nbsp; Importantly, unlike the House Bill, the Senate bill also allows employees to use paid sick leave for maternity or paternity leave.</li> <li> <strong>Covered Family Members:</strong> Both bills define &ldquo;family member&rdquo; to include children, parents, spouses, grandparents, grandchildren, and siblings.</li> <li> <strong>Employer Ability to Prohibit Abuse of Sick Leave Rights:</strong> Both bills expressly allow employers to adopt and enforce a policy that prohibits employees from improperly using paid sick leave, including prohibiting a pattern of abuse of paid sick leave.</li> <li> <strong>Notice of Available Paid Sick Leave:</strong> Both bills mandate that employers provide employees with a statement of their available paid sick leave balance each time wages are paid.&nbsp; This requirement can be met under both bills through the use of an online system.</li> <li> <strong>Existing Paid Leave Policies:</strong> Neither bill requires employers to modify existing paid leave policies if employees can accrue and use paid leave under terms and conditions that are equivalent to paid sick leave provided under the HWFA.&nbsp; The Senate bill takes this provision a step further and explicitly notes that &ldquo;existing paid leave&rdquo; includes vacation days, sick days, short-term disability benefits, floating holidays, parental leave, and other PTO.</li> <li> <strong>No Payout on Termination:</strong> Neither bill requires employers to compensate employees for earned, unused paid sick time upon separation of employment.</li> </ul> <p> We will continue to monitor and provide updates on Maryland paid sick leave developments as the April 10th deadline approaches and any changes that take place thereafter.&nbsp; To stay up-to-date on Paid Sick Leave developments, <a href="http://marketing.seyfarth.com/reaction/RSGenPage.asp?RSID=46_CcQ6ql8Lkw6aicQPtbWkBfaxfQM19fM28NxhOC7Y&amp;RS_REFERRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj&amp;RS_ORIGRSID=46_CcQ6ql8Lkw6aicQPtbTM3fBrFqIlgZooDy0P0jkXGEn2_HUcHkvk7fbGMmqjj">click here</a> to sign up for Seyfarth&rsquo;s Paid Sick Leave mailing list.&nbsp;</p> <div> <br clear="all" /> <hr align="left" size="1" width="33%" /> <div id="ftn1"> <p> <a href="#_ftnref1" name="_ftn1" title="">[1]</a> The seven states that have passed paid sick leave laws are Connecticut, California, Massachusetts, Oregon, Vermont, Arizona and Washington. The Arizona law becomes effective on July 1, 2017 and the Washington law becomes effective on January 1, 2018.&nbsp; The current municipal paid sick leave laws include: (1) San Francisco, CA; (2) Washington, D.C.; (3) Seattle, WA; (4) Long Beach, CA; (5) SeaTac, WA; (6) New York City, NY; (7) Jersey City, NJ; (8) Newark, NJ; (9) Passaic, NJ; (10) East Orange, NJ; (11) Paterson, NJ; (12) Irvington, NJ; (13) Los Angeles, CA; (14) Oakland, CA; (15) Montclair, NJ; (16) Trenton, NJ; (17) Bloomfield, NJ; (18) Philadelphia, PA; (19) Tacoma, WA; (20) Emeryville, CA; (21) Montgomery County, MD; (22) Pittsburgh, PA; (23) Elizabeth, NJ; (24) New Brunswick, NJ; (25) Spokane, WA; (26) Santa Monica, CA; (27) Plainfield, NJ; (28) Minneapolis, MN; (29) San Diego, CA; (30) Chicago, IL; (31) Berkeley, CA; (32) Saint Paul, MN; (33) Morristown, NJ, and (34) Cook County, IL. A number of these laws, including Minneapolis, Chicago, Saint Paul, Berkeley, Cook County, and Pittsburgh, are not yet in effect.&nbsp; The Los Angeles law for private employers became effective for most companies on July 1, 2016. There is also a separate Los Angeles paid sick leave law that has been in effect since late-2014 and applies to certain hotel employers. Similarly, the Long Beach and SeaTac ordinances only apply to hospitality or transportation employers.</p> </div> <div id="ftn2"> <p> <a href="#_ftnref2" name="_ftn2" title="">[2]</a> See our <a href="http://www.seyfarth.com/publications/MA093016-LE">prior alert</a> for more information on Montgomery County, MD paid sick leave requirements.</p> </div> </div> <p> &nbsp;</p> http://www.seyfarth.com:80/publications/ADA031717 Natalya Northrip, Emily Dorner to Present Regarding Litigation Hold Maintenance and Retention of HR Records in April http://www.seyfarth.com:80/publications/ADA031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> Natalya Northrip and Emily Dorner will be presenting on two interesting eDiscovery topics this April; presentations will focus on litigation hold maintenance and best practices, as well as recordkeeping for human resources professionals. &nbsp;Presentations will take place on April 6, and April 26, respectively. &nbsp;Summaries of presentation content and links to sign up are provided below! &nbsp;Friends of Seyfarth can use the following promo code for 35% off: SPKR35</p> <p> To read the entire blog post, <a href="http://www.carpedatumlaw.com/2017/03/natalya-northrip-emily-dorner-present-regarding-litigation-hold-maintenance-retention-hr-records-april/?utm_source=Seyfarth+Shaw+-+Carpe+Datum+Law&amp;utm_campaign=0eb747ea52-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_35044d1f41-0eb747ea52-72857025">click here</a></p> http://www.seyfarth.com:80/publications/EL031717 “I’ll Be Back To Work Soon”: Massachusetts Addresses An Employer’s Obligations When Employee On Leave Gives An Indefinite Return Date http://www.seyfarth.com:80/publications/EL031717 Fri, 17 Mar 2017 00:00:00 -0400 <p> What should an employer do when an employee whose medical leave has ended cannot provide a return to work date? Fire the employee? &nbsp;Not so fast. &nbsp;The MCAD recently found that it was unlawful for an employer to terminate such an employee without engaging in the interactive process to determine if an extension of the employee&rsquo;s leave would be reasonable.</p> <p> To read the entire blog post, <a href="http://www.laborandemploymentlawcounsel.com/2017/03/ill-be-back-to-work-soon-massachusetts-addresses-an-employers-obligations-when-employee-on-leave-gives-an-indefinite-return-date/?utm_source=Seyfarth+Shaw+-+Employment+Law+Lookout&amp;utm_campaign=c78dd4afb1-RSS_EMAIL_CAMPAIGN&amp;utm_medium=email&amp;utm_term=0_0dfec06b7a-c78dd4afb1-71256185">click here</a></p> http://www.seyfarth.com:80/publications/boutros-meier-authored-article-bloomberg-white-collar-crime-report-031717 Andrew Boutros and Alex Meier authored an article for <i>Bloomberg’s White Collar Crime Report</i> http://www.seyfarth.com:80/publications/boutros-meier-authored-article-bloomberg-white-collar-crime-report-031717 Fri, 17 Mar 2017 00:00:00 -0400 <div> Andrew Boutros and Alex Meier authored &quot;An Endangered Claim Reemerges: The Defend Trade Secrets Act Breathes New Life Into Trade-Secrets-Based RICO Claims,&quot; an article on March 17 for <em>Bloomberg&rsquo;s White Collar Crime Report</em>. This article examines how the DTSA, in certain circumstances, may create liability under RICO for the misappropriation of trade secrets.&nbsp;</div> <div> &nbsp;</div> <div> Pre-DTSA, courts were hesitant to impose RICO liability based on trade-secrets misappropriation, because even fraudulent acts with the end goal of misappropriating trade secrets did not present a threat of ongoing criminal activity (&ldquo;continuity,&rdquo; in RICO parlance). With the DTSA&rsquo;s passage, however, the misappropriation, copying, disclosure, and use of trade secrets constitute &ldquo;predicate acts&rdquo; that may satisfy RICO&rsquo;s continuity requirement. The article analyzes two scenarios that may create civil RICO liability: First, a coordinated departure involving multiple employees defecting to join the same competitor; and, second, when a company repeatedly hires key employees in an attempt to acquire its competitors trade secrets.</div> <div> &nbsp;</div> <div> <a href="http://www.seyfarth.com/dir_docs/publications/BoutrosMeierPublished.pdf">You can read the full article here</a>.</div> http://www.seyfarth.com:80/publications/OMM031617-LE Federal Courts Temporarily Block the Trump Administration's Revised Travel Ban http://www.seyfarth.com:80/publications/OMM031617-LE Thu, 16 Mar 2017 00:00:00 -0400 <p> <strong>To stay up-to-date on Immigration developments, <a class="cms-content-links" href="http://lexblog.us6.list-manage.com/subscribe?u=1684e2d964bfa9b5d101ab1dc&amp;id=12ee41b37b">sign up</a> for Seyfarth&rsquo;s new BIG Immigration Law Blog.</strong></p> <p> <em><strong>Seyfarth Synopsis:</strong> Federal judges from Hawaii and Maryland have issued nationwide Temporary Restraining Orders (TROs) effectively blocking the implementation of the Trump administration&rsquo;s revised travel ban, which was scheduled to take effect on March 16, 2017. &nbsp;</em></p> <p> Late on Wednesday, March 15, Judge Derrick K. Watson of the Federal District Court in Honolulu issued a nationwide TRO suspending the implementation of the Trump administration&rsquo;s revised Executive Order (EO) and associated travel ban. Early Thursday morning, Maryland federal Judge Theodore D. Chuang issued a separate TRO blocking key provisions of the EO from taking effect nationwide. Both decisions took the position that the revised EO violates the First Amendment because it was designed to discriminate against Muslims. According to Judge Watson, even the new order was &ldquo;issued with a purpose to disfavor a particular religion, in spite of its stated, religiously neutral purpose.&rdquo;</p> <p> The revised EO would temporarily restrict certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entry into the United States for 90 days, aiming to resolve issues and ambiguities cited in the litigation related to the previous Executive Order signed on January 27, 2017. &nbsp;</p> <p> The Department of Justice (DOJ) has signaled that it will likely file an emergency appeal to the Federal Court of Appeals requesting that the TROs be overturned and that the EO be reinstated. &nbsp;</p> <p> At present, foreign nationals who would have been impacted by the revised EO can be admitted to the United States. However, this situation remains fluid and can change any day. More information on the revised EO can be found in our <a href="http://www.seyfarth.com/publications/OMM030617-IMM">prior alert</a> on the topic. Seyfarth Shaw will continue to keep our clients informed on further developments.</p>